United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.J., Appellant
and
U.S. POSTAL SERVICE, CENTRAL
FACILITY, Chicago, IL, Employer
__________________________________________

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Appearances:
Stephanie N. Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 15-0029
Issued: September 15, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JURISDICTION
On October 7, 2014 appellant, through counsel, filed a timely appeal from an April 9,
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 this case.
ISSUES
The issues are: (1) whether appellant has established modification of the April 18, 2003
loss of wage-earning capacity determination; and (2) whether she established carpal tunnel
syndrome due to or as a consequence of her accepted employment injury.

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 The facts and circumstances set forth in
the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below. On February 24, 2001 appellant, then a 39-year-old distribution clerk, filed an
occupational disease claim (Form CA-2) alleging that she sustained right carpal tunnel syndrome
causally related to factors of her federal employment. OWCP accepted her claim for a right
wrist sprain and tenosynovitis.
In a report dated July 12, 2001, Dr. Samuel J. Chmell, an attending Board-certified
orthopedic surgeon, found that appellant could work with restrictions of no repetitive movement,
throwing, or casing mail. He also found that she should wear a wrist brace.
Appellant accepted a limited-duty position as a modified distribution clerk on
July 19, 2001. The duties of the positon were to “[w]ork mail in accordance with work
restrictions.” The physical requirements consisted of “no casing or throwing mail, avoiding
prolonged repetitive right wrist movements, and the use of a brace.” The job offer noted that
appellant was entitled to eight hours of work each day “in accordance with FECA laws” and that
she might also perform other duties as needed within her limitations. It indicated that the positon
was available from July 19 through September 20, 2001 and would “continue in accordance with
[her] doctor’s instructions.” The job offer further indicated that appellant’s work location and
tour of duty would be determined based on her restrictions, its needs, and availability.
In an initial evaluation dated January 8, 2002, a nurse noted that appellant advised that
she worked in the nixie unit and that her duties included “casing mail and taping and stamping
mail, as needed.”
By decision dated April 18, 2003, OWCP reduced appellant’s compensation to zero
based on its finding that her actual earnings as a modified distribution clerk effective July 19,
2001 fairly and reasonably represented her wage-earning capacity.4
On May 26, 2007 appellant accepted a position as a modified mail processing clerk
repairing unsealed or damaged mail.
On June 19, 2010 the employing establishment assigned appellant to work for two hours
per day in the nixie unit.
On April 21, 2011 appellant filed a claim for compensation (Form CA-7) beginning
April 8, 2011. She related that she was sent home from work as part of the National
Reassessment Program (NRP).
In a report dated April 21, 2011, Dr. Chmell diagnosed right carpal tunnel syndrome and
multiple tendinitis. He advised that appellant could work seven hours per day with restrictions.
3

Docket No. 13-4 (issued March 12, 2013).

4

In a decision dated April 24, 2003, OWCP granted appellant a schedule award for 21 percent permanent
impairment of the right upper extremity. By decision dated September 15, 2010, OWCP found that she did not
establish a recurrence of disability from April 14 through 24, 2010.

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On May 18, 2011 Dr. Chmell related that he had treated her for 10 years for employment-related
right wrist strain and multiple tendinitis and tenosynovitis. He noted that the employing
establishment had decreased appellant’s work hours to two hours per day and, thus, the original
loss of wage-earning capacity determination was erroneous.
By decision dated June 13, 2011, OWCP denied appellant’s claim for compensation
beginning April 8, 2011. It determined that the evidence of record failed to establish that its
original loss of wage-earning capacity determination should be modified.
On July 7, 2011 appellant requested a telephone hearing before an OWCP hearing
representative. At the telephonic hearing, held on October 12, 2011, counsel contended that the
original loss of wage-earning capacity determination was in error as the offered position was
makeshift in nature. Appellant related that she had worked in the nixie unit since 2001.
By decision dated December 19, 2011, an OWCP hearing representative affirmed the
June 13, 2011 decision. She found that appellant had not established that the original loss of
wage-earning capacity determination was in error or that her condition had materially worsened.
On January 11, 2012 Dr. Chmell related that appellant’s right upper extremity condition
“has shown steady and progressive deterioration as she has continued to work following her
original injury.” He attributed her right carpal tunnel syndrome to her chronic tendinitis.
Dr. Chmell asserted that appellant’s condition had materially changed.
On March 23, 2012 Dr. Chmell advised that diagnostic studies confirmed right carpal
tunnel syndrome. He noted, “In essence, she has had a significant deterioration of her already
accepted work-related condition of multiple tendinitis of her right forearm and wrist and right
wrist strain such that her tendons and wrist remain inflamed and swollen to the point where they
have compressed the median nerve which is known as a compression neuropathy of the median
nerve at her right wrist….”
On April 3, 2012 appellant, through counsel, requested reconsideration. He argued that
the opinion of Dr. Chmell established a material worsening of her condition, and alternatively,
that the original job offer by the employing establishment was makeshift in nature.
By decision dated July 25, 2012, OWCP denied modification of its December 19, 2011
decision.
Appellant appealed to the Board. In a decision dated March 12, 2013, the Board set aside
the July 25, 2012 decision.5 It remanded the case for OWCP to apply the guidelines of FECA
Bulletin No. 09-05 to determine whether she had established modification of the loss of wageearning capacity determination.
In a report dated February 3, 2013, received by OWCP on February 12, 2014, Dr. Chmell
related that he had treated appellant over the past 13 years.6 He advised that her multiple
5

Supra note 3.

6

In a report dated April 26, 2013, Dr. Chmell related his belief that the original loss of wage-earning capacity
determination was in error as it was based on a full-time position, but the employing establishment reduced
appellant’s hours to two per day.

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tendinitis of the right wrist had worsened with the “performance of her limited work duties
including repairing of letters.” Dr. Chmell opined that appellant had sustained carpal tunnel
syndrome due to her multiple tendinitis, and described the mechanism by which the inflamed
tendons “compromised the function of the median nerve at the carpal tunnel of [her] right wrist.”
By letter dated April 17, 2013, OWCP requested that the employing establishment
address whether the position on which it based its loss of wage-earning capacity determination
was a bona fide position. It further asked that the employing establishment submit any relevant
medical evidence in its possession and a formal job description of appellant’s position. No
response was received.
By decision dated July 12, 2013, OWCP denied modification of its April 18, 2003 loss of
wage-earning capacity determination. It consequently found that appellant was not entitled to
compensation beginning April 8, 2011. OWCP further found that the medical evidence of record
failed to establish carpal tunnel syndrome as a consequence of her accepted employment injury.
On July 30, 2013 appellant requested a telephone hearing.
In a report dated October 10, 2013, Dr. Chmell noted that appellant had multiple
tendinitis or swelling of the tissues. He explained that as the tendons “became inflamed and
swollen they become larger and larger in the enclosed space and press harder and harder on the
median nerve. As this condition continues and worsens, a carpal tunnel syndrome develops
because of continued pressure on the median nerve preventing it from working properly.”
Dr. Chmell diagnosed carpal tunnel syndrome due to appellant’s employment-related multiple
tendinitis, which he opined established a material worsening of her condition.
At the telephone hearing, held on January 23, 2014, appellant related that she worked in
the nixie unit sealing, stamping, and repairing mail. Counsel argued that the May 2007 offer was
tailored to meet her restrictions.
On January 28, 2014 counsel contended that appellant was disabled from her date-ofinjury position and that OWCP should expand her claim to include carpal tunnel syndrome. She
also argued that electrodiagnostic testing confirmed right carpal tunnel syndrome, which
demonstrated a material worsening. Counsel also asserted that the original loss of wage-earning
capacity determination was erroneous as it was based on a position that was not a bid position or
available to the general public.
By decision dated April 9, 2014, OWCP’s hearing representative affirmed the July 12,
2013 decision.
On appeal counsel argues that the medical evidence establishes that appellant remains
disabled from her usual employment due to her work injury, as evidenced by reports dated
January 11 and March 23, 2012 by Dr. Chmell. She also contends that appellant’s claim should
be expanded to include carpal tunnel syndrome as a consequential injury. Counsel maintains that
appellant has shown a material change in her condition and that the original loss of wage-earning
capacity was erroneous as it was based on a makeshift position. She notes that a positon should
be a classified position rather than tailored for a claimant’s limitations, citing A.J.7 Counsel also
7

Docket No. 10-619 (issued June 29, 2010).

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maintains that the limited-duty assignment was temporary in nature. She further notes that
OWCP did not comply with the Board’s instructions to apply FECA Bulletin No. 09-05 as the
employing establishment did not respond to its development letter.
LEGAL PRECEDENT -- ISSUE 1
A wage-earning capacity is a determination that a specific amount of earnings, either
actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.8 OWCP procedures contain provisions regarding
the modification of a formal loss of wage-earning capacity.9 The relevant part provides that a
formal loss of wage-earning capacity will be modified when: (1) the original rating was in error;
(2) the claimant’s medical condition has materially changed; or (3) the claimant has been
vocationally rehabilitated.10 OWCP procedures further provide that FECA Bulletin No. 09-05
should be consulted if the circumstances in the case indicate that the position in question may
have been withdrawn (in whole or in part) as a result of NRP.11 FECA Bulletin No. 09-05
outlines the procedures OWCP should follow when limited-duty positions are withdrawn
pursuant to NRP. If OWCP has issued a formal wage-earning capacity determination, it must
develop the evidence to determine whether a modification of that determination is appropriate.12
FECA Transmittal No. 13-09 provides information regarding updating OWCP Procedure Manual
Chapters 2.814 to 2.816 and 2.1500 to 2.1501.13 OWCP procedures further provide that the
party seeking modification of a formal loss of wage-earning capacity decision has the burden to
prove that one of these criteria has been met.14
OWCP procedures provide that factors to be considered in determining whether the
claimant’s work fairly and reasonably represents his or her wage-earning capacity include the
kind of appointment, that is, whether the position is temporary, seasonal, or permanent and the
tour of duty, that is, whether it is part time or full time.15 Further, a makeshift or odd-lot position
designed for a claimant’s particular needs will not be considered suitable.16

8

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

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity, Chapter
2.1501 (June 2013).
10

Id. at Chapter § 2.1501.3(a).

11

Id. at Chapter § 2.1501.1.

12

FECA Bulletin No. 09-05 (issued August 18, 2009).

13

FECA Transmittal No. 13-09 (issued June 4, 2013).

14

Federal (FECA) Procedure Manual, supra note 9 at Chapter 2.1501.4 (June 2013).

15

Id. at Chapter 2.815.5c(1).

16

Id. at Chapter 2.815.5c(2)(a).

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ANALYSIS -- ISSUE 1
In the prior appeal, the Board remanded the case to OWCP to follow the procedures
outlined in FECA Bulletin No. 09-05 with respect to claims for compensation when the
employing establishment withdraws a light-duty positon pursuant to the NRP and a loss of wageearning capacity determination is in effect. The Board specifically noted that FECA Bulletin No.
09-05 required that the record contain documentary evidence that the positon performed was a
bona fide position and that current medical evidence be obtained.
On remand OWCP sent an April 17, 2013 letter to the employing establishment
requesting that it provide current medical evidence, copies of a job description and other
documentation related to the position, and a written statement addressing whether the positon
offered at the time of the loss of wage-earning capacity determination was bona fide. The
employing establishment, however, did not respond to its request.
Appellant alleged that her condition had worsened or, in the alternative, that OWCP’s
original wage-earning capacity determination was in error as it was makeshift in nature. The
Board has found that a loss of wage-earning capacity determination can be modified by
establishing that the original decision was in error.17
In the case of A.J.,18 the Board discussed several factors that could support a finding that
an offered position was makeshift or odd-lot in nature. These factors include: (1) the position
did not have an official title or formal position description; (2) there were strict physical
limitations, such as five-pound lifting and no casing of mail, which indicated that the claimant
would not be able to secure a position in the community at large with such limited duties; (3) the
claimant did not perform any meaningful tasks in the position; and (4) the job appeared to be
temporary in nature.19
The Board finds that the July 19, 2001 modified assignment upon which OWCP based
the April 18, 2003 loss of wage-earning capacity determination was makeshift in nature.
Although the position had a formal title of distribution clerk, appellant had strict restrictions
against throwing or casing mail or performing any repetitive wrist movements. The actual duties
of the positon were not set forth in the job offer, which specified only that she should work
within her restrictions. The offer did not indicate that she performed any meaningful tasks. The
nurse assigned to appellant’s claim indicated that appellant was casing, taping, and stamping
mail, yet those duties were not listed in the job offer and were prohibited by her physical
restrictions. OWCP requested additional information about her work duties and the nature of her
assignment, but the employing establishment again did not respond to its request. The offer did
not specify appellant’s work schedule or work location, but instead indicated that these matters
would be determined by management based on availability, the employing establishment’s
needs, and her restrictions. Additionally, the job offer provided that it was available only from
July 19 through September 20, 2001, though it further indicated that it would continue in
accordance with instructions by her physician.
17

See supra note 8.

18

See A.J., supra note 5.

19

See also V.H., Docket No. 13-2076 (issued March 5, 2014).

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As the job offer did not set forth appellant’s work duties, included strict physical
limitations, such that the position would not generally be available in the general community,
indicated that the specific offer was temporary, and did not provide her work schedule or work
location, the Board finds that the offered position was makeshift in nature and designed to meet
her particular needs.20 The positon, therefore, did not fairly and reasonably represent her wageearning capacity. Accordingly, appellant has met her burden of proof to establish that the
April 18, 2003 loss of wage-earning capacity determination should be modified.
LEGAL PRECEDENT -- ISSUE 2
The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause, which is attributable to the employee’s own intentional conduct.
The subsequent injury is compensable if it is the direct and natural result of a compensable
primary injury. With respect to consequential injuries, the Board has stated that, where an injury
is sustained as a consequence of an impairment residual to an employment injury, the new or
second injury, even though nonemployment related, is deemed, because of the chain of causation
to arise out of and in the course of employment and is compensable.21
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, it shares
responsibility to see that justice is done.22 The nonadversarial policy of proceedings under
FECA is reflected in OWCP’s regulations at section 10.121.23
ANALYSIS -- ISSUE 2
On appeal counsel argues that appellant’s claim should be expanded to include carpal
tunnel syndrome as a consequential injury. In its July 12, 2013 decision, OWCP found that
Dr. Chmell’s reports were insufficiently rationalized to establish that she sustained right carpal
tunnel syndrome due to the work factors identified as causing her original work injury.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.24 The Board
has reviewed Dr. Chmell’s reports and notes that he provided a clear opinion that appellant
sustained right carpal tunnel syndrome as a consequence of her accepted right tendinitis. He
based his diagnosis of right carpal tunnel syndrome on positive diagnostic studies. Dr. Chmell
explained that appellant’s tendinitis caused wrist inflammation and swelling that compressed the
median nerve of her right wrist and resulted in compression neuropathy. His opinion is
20

See A.J., supra note 5; see also 20 C.F.R. § 10.510.

21

See S.S., 59 ECAB 315 (2008); Debra L. Dillworth, 57 ECAB 516 (2006).

22

Jimmy A. Hammons, 51 ECAB 219 (1999).

23

20 C.F.R. § 10.121.

24

A.A., 59 ECAB 726 (2008); Phillip L. Barnes, 55 ECAB 426 (2004).

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supportive, unequivocal, bolstered by objective findings, and based on a firm diagnosis and an
accurate work history. Consequently, while the medical evidence from Dr. Chmell is
insufficiently rationalized to meet appellant’s burden of proof to establish that she sustained right
carpal tunnel syndrome as a consequence of her work injury, it raises an undisputed inference of
causal relationship sufficient to require further development by OWCP.25 Accordingly, the
Board will remand the case to OWCP. On remand it should further develop the medical record
to determine whether appellant sustained employment-related right carpal tunnel syndrome.
Following this and such further development as OWCP deems necessary, it shall issue a de novo
decision.
CONCLUSION
The Board finds that appellant has established modification of the April 18, 2003 loss of
wage-earning capacity determination. The Board further finds that the case is not in posture for
decision regarding whether she sustained right carpal tunnel syndrome as a consequence of her
accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the April 9, 2014 decision of the Office of
Workers’ Compensation Programs is reversed and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: September 15, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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Id.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.C., Appellant
and
DEPARTMENT OF THE AIR FORCE,
PETERSON AIR FORCE BASE,
Denver, CO, Employer
__________________________________________

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

Docket No. 07-2407
Issued: March 12, 2008

Case Submitted on the Record

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

JURISDICTION
On September 26, 2007 appellant filed a timely appeal from the September 29, 2006 and
August 30, 2007 merit decisions of the Office of Workers’ Compensation Programs, which
denied her claim for compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of her claim.
ISSUE
The issue is whether appellant’s left arm and right thumb conditions are causally related
to her former federal employment.
FACTUAL HISTORY
On April 7, 2003 appellant, then a 57-year-old retired fiscal quality specialist,1 filed a
claim alleging that her left arm and right thumb conditions were causally related to her former
1

Appellant retired on January 26, 2002.

federal employment: “The positions held from around 1994 to January 2002 required hours of
using handheld telephone sets, direct input to the which [sic] included processing new
applications for special pay programs manual input or 200-400 monthly statements.” She
offered more details:
“The physical problems increased around 1994 when the Directorate of Annuity
Pay opened the first telephone call center and each employee used hand held
telephones to answer incoming calls from customers from 4 to 8 hours several
times during a week. All of my job positions held issued prior to that date
required daily computer input and use of a calculator of at least 6 hours a day.
After January 1996 my job positions a Pay and [f]iscal [q]uality [s]pecialist
required hours of daily manual input of new account for special pay programs,
monthly payment of 200-400 manual payments for these accounts, typing audit
and other reports and maintaining several excel spreadsheets.
“This caused increasing pain radiating from the left hand to the shoulder and neck
area, also stiffness and numbness in the hand and wrist area. The right thumb
problem began with stiffness and pain and gradually I was unable to bend the
thumb backwards. An ergonomic evaluation was performed on July 9, 1997 by
Health South (Atch __). Since My retirement on January 26, 2002, I started
noticing more pain and tingling and weakness in the left hand and right thumb.”
On April 28, 2003 the Office asked appellant to provide a comprehensive medical report
from her treating physician, one that described her symptoms, the results of examinations and
tests, her diagnosis, the treatment provided, the effect of treatment and the doctor’s opinion,
which medical reasons, on the cause of her condition. The Office advised appellant that this
evidence was crucial to her claim.
A July 17, 2000 medical report stated that appellant had osteoarthritis and fibromyalgia,
which “has been worse recently.” A neurological examination on December 11, 2002 revealed
normal strength, motor and sensation. Nerve conduction studies were reported to be consistent
with very mild carpal tunnel syndrome bilaterally. The impression was: “Some of her
symptoms are consistent with carpal tunnel syndrome, although her electrical studies are not very
impressive. Other contributing factors could be overuse syndrome, as well as tendinitis.”
In a decision dated June 4, 2003, the Office denied appellant’s claim for compensation.
The Office accepted that the factual evidence was sufficient to establish the occupational
exposures to which appellant attributed her diagnosed condition. It found that she submitted
medical evidence connecting her diagnosed condition to the established exposure.
Appellant submitted an October 2, 2002 diagnosis of left carpal tunnel syndrome, left
lateral epicondylitis and right thumb triggering finger and deformity in respect to the distal
interphalangeal joint. Neurologic testing was recommended, however, for a better evaluation of
the left wrist. Appellant submitted a September 11, 2003 diagnosis: “Left carpal tunnel
syndrome and left shoulder rotator cuff syndrome. I believe these two entities are separate. Her
hand symptoms are more indicative of a neurological entrapment syndrome, whereas her
shoulder is more indicative of an inflammatory tendinopathy or bursitis.” She also submitted an

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October 6, 2003 prescription note from Dr. Jaime A. Panchon, a rheumatologist, who noted:
“[Appellant’s] carpal tunnel syndrome and shoulder bursitis most likely as a result of cumulative
movement disorder.”
In a decision dated December 24, 2003, the Office denied modification of its June 4,
2003 decision. The Office found that appellants did not provide sufficient medical evidence to
support a causal relationship between her current medical conditions and factors of her
employment.
Appellant submitted additional medical reports on the state of her physical condition
dated 1994 to 1997. In a decision dated March 23, 2005, the Office reviewed the merits of her
claim and denied modification of its December 24, 2003 decision. The Office found that the new
evidence was sufficient to support that appellant’s medical condition was causally related to her
federal employment.2
Appellant submitted the official position description for a fiscal quality specialist. She
submitted an October 28, 2002 medical report assessing right trigger thumb, left carpal tunnel
syndrome and left de Quervain’s tenosynovitis. An October 30, 2002 radiology report showed
degenerative changes in the right carpal bones. Appellant also submitted a hand therapy note.
On April 11, 2006 Dr. Pachon reported as follows:
“[Appellant] has been evaluated at our center on three separate occasions since
September 11, 2003.
Most recent visit occurred on April 10, 2006 for
reevaluation of her chronic left carpal tunnel syndrome, right trigger thumb and
left shoulder rotator cuff syndrome. Unfortunately, she has not responded
favorably to conservative treatments. [Appellant] continues to report persistent
left hand/wrist and shoulder pain. Prior surgery in 1983 to remove left wrist
dorsum ganglion has not played a role or cause her above noted findings.
“[Appellant] was employed by a government agency where she worked [40]
hour[s] [a] week performing daily computer input, manual filing, daily telephone
usage and classroom training. It is possible that after numerous years of exposure
to repetitive movements this has influenced her present symptoms.
“Important to note, that [appellant’s] old medical records reflect a diagnosis of
fibromyalgia. She has not exhibited findings of this condition while under my
care.”
In a decision dated September 29, 2006, the Office reviewed the merits of appellant’s
claim and denied modification of its March 23, 2005 decision. The Office found that
Dr. Panchon’s opinion was speculative.

2

Because the Office did not send its March 23, 2005 decision to appellant’s last known address, the Office sent a
copy of the decision, with appeal rights, to her current address on March 15, 2006 and advised that time limitations
would start anew that date.

3

On May 29, 2007 Dr. Patrick W. Owens, an assistant professor of clinical orthopedics,
reported as follows:
“I am writing in response to your inquiry regarding the relation of your current
symptoms and diagnoses to your previous work position as a [f]iscal [q]uality
[s]pecialist. Please note that in the package of records received by my office,
there was no report of the ganglion surgery other than the billing statement.
“The current diagnoses of right trigger thumb, left carpal tunnel syndrome and left
[de] [Q]uervain’s tenosynovitis can each be seen as occupational illness due [to]
repetitive strain.
“Although nerve conduction studies done in 1995 did not show any evidence of
nerve dysfunction, those performed by Dr. [Brad] Herskowitz in December 2002
do show evidence of carpal tunnel syndrome in both hands. Given the proximity
of these studies to your retirement, it is likely that the function of the nerve
declined during your employment and may explain some of the pain you were
experiencing in your left hand during that time as noted by Dr. [Michael C.]
Fagan. The previous injury/surgery that you described would not likely cause
carpal tunnel syndrome, which I believe is what I told you when you saw me.
The repetitive stress of your previous occupation, however, is a much more likely
cause.
“I cannot find any mention of problems with your right thumb dated prior to
Dr. [Janet M.] Baker’s first examination on October 28, 2002, so I am unable to
contribute this symptom directly to your previous job based on the records that
you forwarded. This problem is mentioned in the [F]orm CA-2, which is
unsigned and not dated.
“The same holds true for the [d]e [Q]uervain’s tenosynovitis. Radiographs that
were performed during your initial consultation with Dr. Baker demonstrate
degenerative changes in the left scaphotrapezial joint at the base of the thumb,
which can be a cause of [d]e [Q]uervain’s tenosynovitis. It is unclear if this
arthritis is secondary to the injury which led to the previous excision of the
ganglion from your wrist since I do not have the medical report. However, there
is evidence that certain ligament injuries of the wrist that are associated with
ganglion cysts are also associated with degeneration at this joint.
“As for your shoulder, there is clearly documented pain in this area that was
related to your job and this required an ergonomic workspace evaluation as part of
the treatment.”
In a decision dated August 30, 2007, the Office denied modification of its September 29,
2006 decision. The Office found that Dr. Owens did not have a complete and accurate medical
history of appellant’s upper extremities and did not list one particular job factor that he could say
caused her condition with reasonable medical certainty and medical rationale.

4

LEGAL PRECEDENT
The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.3 An employee seeking benefits
under the Federal Employees’ Compensation Act has the burden of proof to establish the
essential elements of her claim. When an employee claims that she sustained an injury in the
performance of duty, she must submit sufficient evidence to establish that she experienced a
specific event, incident or exposure occurring at the time, place and in the manner alleged. She
must also establish that such event, incident or exposure caused an injury.4
Causal relationship is a medical issue5 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,6 must be one of reasonable medical certainty7
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.8
ANALYSIS
The Office does not dispute the duties appellant performed as a fiscal quality specialist.
The Office accepts that she experienced repetitive exposures as alleged. The question that
remains is whether the specific duties appellant performed prior to her retirement on January 26,
2002 caused an injury.
The medical evidence appellant initially submitted made no connection between her
federal employment and her left arm or right thumb condition. Dr. Panchon’s October 6, 2003
prescription note stated that appellant’s carpal tunnel syndrome was most likely a result of
cumulative movement disorder. He made no mention of her former federal employment. Such
evidence has no probative value to establish appellant’s entitlement to compensation.
Dr. Panchon’s April 11, 2006 report noted that appellant was employed by a government
agency, where she worked 40 hours a week performing daily computer input, manual filing,
daily telephone usage and classroom training. He stated that it was possible, after numerous
years of exposure to repetitive movements, that this had influenced her present symptoms of left
hand/wrist and shoulder pain. Dr. Panchon did not state that these employment activities caused
3

5 U.S.C. § 8102(a).

4

See generally John J. Carlone, 41 ECAB 354 (1989).

5

Mary J. Briggs, 37 ECAB 578 (1986).

6

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

7

See Morris Scanlon, 11 ECAB 384, 385 (1960).

8

See William E. Enright, 31 ECAB 426, 430 (1980).

5

an injury to a reasonable medical certainty; he stated only that it was possible. As such, the
medical opinion is speculative. The evidence, however, must show more than a medical
possibility. The Board finds that Dr. Panchon’s opinion is equivocal and of little probative
value.9 Dr. Panchon did not explain medically how the employment activities “influenced”
appellant’s diagnosed condition.
The only other medical opinion that connects appellant’s current medical condition to her
duties as a fiscal quality specialist is Dr. Owens’ May 29, 2007 report. Dr. Owens identified
appellant’s job title but he never mentioned what her duties entailed. He did not describe with any
specificity the physical requirements of her position. As such, this medical opinion is not medical
opinion is not based on an accurate factual background. It does not address how the specific duties
appellant performed as a fiscal quality specialist caused or aggravated her diagnosed condition.
Dr. Owens did not demonstrate that he understood the physical requirements of appellant’s job and
his opinion is of diminished probative value.10
Dr. Owens stated that appellant’s current diagnoses of right trigger thumb, left carpal
tunnel syndrome and left de Quervain’s tenosynovitis “can each be seen” as an occupational
illness due to repetitive strain. However, this explanation is not adequate to establish the
physicians opinion to a reasonable medical certainty. Dr. Owens did not attribute appellant’s
right thumb problems directly to her previous job based on the records he had before him and the
same held true for her de Quervain’s tenosynovitis.
Dr. Owens stated that the evidence of bilateral carpal tunnel syndrome in December 2002
made it likely, given its proximity to appellant’s retirement, that the function of the (left median)
nerve declined during employment.11 However, he stated that he was unable to attribute her
right thumb problems to her employment, as he found no mention of such problems prior to
Dr. Baker’s examination in October 2002. The distinction Dr. Owens made as to whether the
conditions in question manifested themselves in clinical findings prior to appellant’s retirement
is not well rationalized. The mere fact that a condition manifests itself or worsens during a period
of federal employment raises no inference of causal relationship between the two.12 Such temporal
relationships are not sufficient to establish causal relationship.13

9

See Philip J. Deroo, 39 ECAB 1294 (1988) (although the medical opinion of a physician supporting causal
relationship does not have to reduce the cause or etiology of a disease or condition to an absolute medical certainty,
neither can such opinion be speculative or equivocal); Jennifer Beville, 33 ECAB 1970 (1982) (statement of a Boardcertified internist that the employee’s complaints “could have been” related to her work injury was speculative and of
limited probative value).
10

See James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because the
history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987) (addressing
factors that bear on the probative value of medical opinions).
11

Despite the evidence of bilateral carpal tunnel syndrome in December 2002 and the proximity of that evidence
to appellant’s retirement, Dr. Owens did not relate her right carpal tunnel syndrome to federal employment.
12

Steven R. Piper, 39 ECAB 312 (1987).

13

See Thomas D. Petrylak, 39 ECAB 276 (1987).

6

Dr. Owens offered no medical rationale to support his assertion that documented pain in
the shoulder area was related to appellant’s job. His May 29, 2007 report is not based on a
proper factual history and is not soundly reasoned. Dr. Owens’ opinion, of limited support to
appellant’s claim, is insufficient to establish that her diagnosed conditions are causally related to
her former federal employment.14
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her left
arm and right thumb conditions are causally related to her former federal employment. She has
not submitted sufficient the medical opinion evidence to establish causal relationship.
ORDER
IT IS HEREBY ORDERED THAT the August 30, 2007 and September 29, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 12, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

14

Medical conclusions unsupported by rationale are of little probative value. Ceferino L. Gonzales, 32 ECAB
1591 (1981); George Randolph Taylor, 6 ECAB 968 (1954).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.V., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, INDIAN HEALTH SERVICE,
Polacca, AZ, Employer
__________________________________________

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

Docket No. 18-1077
Issued: August 26, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On May 2, 2018 appellant filed a timely appeal from a March 21, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish exposure to
influenza in the performance of duty as alleged.
FACTUAL HISTORY
On February 17, 2017 appellant, then a 56-year-old nurse specialist, filed an occupational
disease claim (Form CA-2) alleging that she had contracted influenza during a court appearance
1

5 U.S.C. § 8101 et seq.

while in the performance of duty. She noted that she first became aware of her condition on
March 7, 2016 and realized that it was caused or aggravated by her federal employment on
December 28, 2016. Appellant stopped work on March 7, 2016 and returned to work on
June 27, 2016.
With her claim, appellant submitted a February 18, 2016 subpoena which required her to
appear before a grand jury on March 1, 2016. The employing establishment authorized her
temporary-duty travel to Phoenix, Arizona to appear before the federal grand jury. Appellant also
submitted a publication regarding influenza infections in Arizona from October 4, 2015 through
October 1, 2016. It indicated that her home county of Navajo had 154 cases of influenza during
the week of February 28 through March 5, 2017 and the county of Maricopa, which includes the
city of Phoenix, had 456 cases of influenza.
In an undated statement, appellant noted that on March 1, 2016 she drove 320 miles in a
government vehicle for a court appearance that afternoon, stopping in Flagstaff, Arizona and
Anthem, Arizona along the way. She entered the courthouse along with a small crowd of young
adults and children. Appellant asserted that the children were coughing and had runny noses.
After she testified, she walked five blocks on crowded streets to the local office of the employing
establishment, chatting with a district attorney for the duration of the walk. Appellant spoke with
employees at the local office and stopped in a public bathroom before leaving. She stopped at
several locations on the way to her hotel, and the next day, ate breakfast, and checked out.
Appellant drove home and stopped at a public restroom along the way. On March 3 and 4, 2016
she returned to work and noticed that others were coughing. By March 5, 2016 appellant was
coughing and had a runny nose, and by March 6, 2016, she was unable to get out of bed. She felt
chills and had a fever, as well as heaviness on her chest with breathing. Appellant was admitted
to the hospital on March 7, 2019 and discharged on March 9, 2016. She returned to part-time work
in May 2016, but stopped work again on June 17, 2016 and requested a transfer to a lower altitude
location due to breathing difficulties. Appellant was later hospitalized for a stroke in
September 2016. She noted that she had smoked cigarettes on and off since she was a teenager
and most recently smoked 5 to 10 cigarettes per day from sometime in 2015 through March 2016.
Appellant asserted that she was possibly exposed to influenza when she went to Phoenix for work
and that she now required supplemental oxygen.
The record contains reports regarding appellant’s hospitalization from March 7 to 9, 2016
for influenza B and hypoxia. In a report dated November 12, 2016, Dr. Kent A. Diehl, Boardcertified in family practice, evaluated her for chronic obstructive pulmonary disease (COPD), Type
2 diabetes, and a recent cerebral vascular accident. He recommended that appellant transfer to a
job at a lower altitude and with reduced hours.2

2

On November 30, 2016 Dr. Moshe Hasbani, a Board-certified neurologist, opined that appellant was totally
disabled from work due to COPD, her cerebrovascular accident, uncontrolled diabetes, and need for oxygen treatment.
The record contains additional medical reports addressing her current condition.

2

On February 10, 2017 Dr. Diehl related that appellant had been admitted to the hospital on
March 7, 2016 after a three- or four-day history of an upper respiratory tract illness.3 He noted
that she had traveled to Phoenix for work around the time she had become ill and had been exposed
to children and people in crowded areas at the time of her trip. Dr. Diehl advised that appellant
continued to require oxygen treatment since her hospitalization. He related, “There is reasonable
causation to assume that [appellant] developed her influenza B infection while at work.”
In a March 13, 2017 development letter, OWCP informed appellant that the evidence
currently of record was insufficient to support her claim. It advised her that she had not submitted
sufficient evidence to establish that she actually experienced the employment factor(s) alleged to
have caused injury. OWCP also requested that appellant submit medical evidence addressing
whether the identified employment exposure resulted in a diagnosed condition. It provided a
questionnaire for her completion. OWCP afforded appellant 30 days to submit additional
evidence.
In a response dated March 27, 2017, appellant described her travel to Phoenix from
March 1 to 2, 2016 in response to a subpoena. She related that when she entered the courthouse
she had to wait in the screening area for 10 minutes behind two adults and two small children who
were coughing and touching items. Later, when appellant entered the courtroom, she was exposed
to people coughing for over an hour. She noted that she may have been exposed to influenza in
various environments including public restrooms, walking to and from the local office of the
employing establishment in Phoenix, her hotel, and restaurants. Appellant asserted that at her local
employing establishment, no one had been diagnosed with her strain of influenza in March 2016.
In a report dated March 31, 2017, Dr. Diehl related that appellant had been admitted to the
hospital on March 7, 2016 for influenza B with acute hypoxic respiratory failure.4 He noted that
she had traveled to Phoenix on a work-related trip on March 1 and 2, 2016. Appellant began
feeling ill on March 4, 2016 and by March 5, 2016 she had shortness of breath and heaviness in
her chest. Dr. Diehl related, “It is clear that [appellant] was exposed to influenza in Phoenix on
March 1 or 2, [2016], as there was a high rate of influenza in that area at the time. She then
developed her symptoms within one to four days of being exposed which fits with the influenza
viral cycle or replication.”
By decision dated May 31, 2017, OWCP denied appellant’s occupational disease claim. It
found that she had not factually established that she had contracted influenza during her workrelated trip to Phoenix on March 1 to 2, 2016. OWCP noted that appellant had not established that
she was exposed to any specific individuals with influenza. It further found that she had not
submitted any medical evidence diagnosing a condition as a result of the alleged exposure.

3
The record contains additional medical evidence, including a January 31, 2008 report regarding appellant’s right
lower lobe pneumonia, possible COPD, and possible diabetes and medical evidence from 2015 through 2017 regarding
her current condition.
4
Dr. Diehl noted that appellant had not been diagnosed with COPD when evaluated subsequent to her
hospitalization, but instead hypoxia or hypoxemia most likely related to her pneumonia from influenza.

3

On June 28, 2017 appellant requested a telephonic hearing before a representative of
OWCP’s Branch of Hearings and Review.
A telephonic hearing was held on January 17, 2018. Appellant testified that official reports
demonstrated that the number of confirmed cases of influenza in Phoenix was 169 percent greater
than a typical influenza season. She further testified that, because of complications of the illness,
she had an injury to her lungs. Appellant asserted that, as her health facility had no cases of
influenza B in March 2016, she could only have come into contact with the infectious agent during
her trip to Phoenix. The hearing representative held the record open for 30 days for the submission
of additional evidence.
By letter dated February 16, 2018, appellant indicated that there was a widespread epidemic
of influenza in 2016 and that one could be infected from up to 600 feet away by respiratory droplets
or from touching inanimate objects. She noted that her employing establishment did not dispute
that her illness occurred in travel.
By decision dated March 21, 2018, OWCP’s hearing representative found that “it was
stipulated that the record established” that the appellant was on approved travel status at the time
of the reported exposure, however, affirmed the May 31, 2017 decision finding that appellant had
not established that she was exposed to the influenza virus while in the performance of duty as
alleged.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
period of FECA,6 that an injury was sustained while in the performance of duty as alleged, and
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
In an occupational disease claim, appellant’s burden requires submission of the following:
(1) a factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical

5

Supra note 1.

6

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

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

4

evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.9
Section 8124(a) of FECA provides that OWCP shall determine and make a finding of fact
and make an award for or against payment of compensation.10 Section 10.126 of Title 20 of the
Code of Federal Regulations provides that a decision shall contain findings of fact and a statement
of reasons.11 The Board has held that the reasoning behind OWCP’s evaluation should be clear
enough for the reader to understand the precise defect of the claim and the kind of evidence which
would overcome it.12
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant alleged that she contracted influenza during authorized travel for work to
Phoenix on March 1 and 2, 2016. While on travel status, she described exposure to children and
adults who were coughing, as well as exposure to public areas and at the Phoenix office of the
employing establishment.
The Board has held that an employee on travel status or a temporary-duty assignment or
special mission for his or her employer is in the performance of duty and under the protection of
FECA 24 hours a day with respect to any injury that results from activities essential or incidental
to the special duties.13 OWCP has already “stipulated” that appellant was on approved travel status
at the time of her reported exposure and was therefore in the performance of duty when she
allegedly contracted influenza. The issue, consequently, is whether the medical evidence is
sufficient to show that her diagnosed influenza was causally related to exposure while on approved
travel.
Section 8124(a) of FECA14 and section 10.126 of its implementing regulations15 require
that final decisions of OWCP contain findings of fact and a statement of reasons. A decision
denying a claim should contain a correct description of the basis for the denial in order that the
parties of interest have a clear understanding of the precise defect of the claim and the kind of

9

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

10

5 U.S.C. § 8124(a).

11

20 C.F.R. § 10.126.

12
J.R., Docket No. 19-0746 (issued June 9, 2020); L.M., Docket No. 13-2017 (issued February 21, 2014); Federal
(FECA) Procedure Manual Part 2 -- Claims, Disallowances Chapter 2.1400.5 (February 2013) (all decisions should
contain findings of fact sufficient to identify the benefit being denied and the reason for the disallowance).
13

R.R., Docket No. 19-1026 (issued January 14, 2020); W.Y., Docket No. 09-2012 (issued July 16, 2010).

14

Supra note 10.

15

Supra note 11.

5

evidence which would overcome it.16 The Board finds that OWCP’s March 21, 2018 decision was
incomplete as it failed to make findings regarding whether the medical evidence of record is
sufficient to establish causal relationship between the diagnosed influenza and appellant’s travel.
Consequently, OWCP has not fulfilled its responsibility under section 8124 of FECA and section
10.126 of its implementing regulations.17 The case will therefore be remanded to OWCP for a
proper decision, to include findings of fact and a statement of reasons, regarding whether the
medical evidence is sufficient to establish causal relationship.18 Following any further
development as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 21, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: August 26, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

16

O.M., Docket No. 19-0342 (issued November 15, 2019); Patrick Michael Duffy, 43 ECAB 280 (1991).

17

See L.D., Docket No. 19-0350 (issued October 22, 2019).

18

See S.C., Docket No. 19-1837 (issued June 9, 2020); A.C., Docket No. 17-1927 (issued April 12, 2018).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SUPPLY SYSTEMS COMMAND, Gulfport, MS,
Employer
__________________________________________

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

Docket No. 16-0669
Issued: October 24, 2016

Case Submitted on the Record

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

JURISDICTION
On February 22, 2016 appellant filed a timely appeal from an October 14, 2015 merit
decision and November 16 and December 16, 2015 nonmerit decisions of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.2
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish more than
seven percent permanent impairment of the right arm for which he received a schedule award;

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant timely requested oral argument before the Board. However, appellant withdrew
his request on March 10, 2016.

(2) whether OWCP properly denied merit review pursuant to 5 U.S.C. § 8128(a); and
(3) whether OWCP properly denied appellant’s request for a hearing.
On appeal appellant asserts that the reports of his treating physicians establish greater
right upper extremity impairment, and that OWCP improperly denied his request for a hearing.
FACTUAL HISTORY
This case has previously been before the Board. In a November 15, 2010 decision, the
Board affirmed September 29, 2009 and January 4, 2010 OWCP merit decisions that denied
appellant’s claim for a schedule award.3 In a February 14, 2013 decision, the Board found that,
by a July 26, 2012 decision, OWCP properly denied appellant’s request for a hearing.4 In a
second February 14, 2013 decision, the Board affirmed in part an August 17, 2012 OWCP
decision, finding that appellant had not demonstrated clear evidence of error in his untimely
reconsideration request regarding his claim for disability compensation.5 The Board set aside the
August 17, 2012 OWCP decision in part as it found that OWCP erroneously denied appellant’s
reconsideration request regarding his schedule award claim under the clear evidence of error
standard. It noted that the record contained a September 15, 2010 impairment analysis from
Dr. Henry Leis, an attending Board-certified orthopedic surgeon, who concluded that, under the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides),6 appellant had four percent right arm permanent
impairment. The Board remanded the case to OWCP to review and develop the medical
evidence and issue an appropriate decision regarding appellant’s request for a schedule award.7
The facts as set forth in the Board’s prior decisions are incorporated herein by reference.
Regarding appellant’s entitlement to a schedule award, on April 1, 2013 OWCP referred
the medical record, including Dr. Leis’ September 15, 2010 report, to an OWCP medical adviser
for an impairment evaluation of appellant’s right upper extremity in accordance with the sixth
edition of the A.M.A., Guides. In an April 1, 2013 report, Dr. James W. Dyer, an OWCP
medical adviser who is Board-certified in orthopedic surgery, noted his review of the medical
evidence, including Dr. Leis’ September 15, 2010 report. He advised that maximum medical
3

Docket No. 10-823 (issued November 15, 2010). OWCP accepted that on July 8, 2008 appellant, then a 49year-old materials handler, sustained employment-related sprains of the right elbow and forearm and right lateral
epicondylitis when he injured his arm unloading pallets. He had right arm surgery on February 16, 2009 and
returned to modified duty on March 2, 2009. Appellant was removed from federal employment for cause in
April 2009. Appellant filed claims for disability compensation (Forms CA-7) for the period February 16 to
July 27, 2009. By decision dated September 29, 2009, OWCP noted that appellant was paid compensation for all
periods claimed as a result of the surgery, but it denied appellant’s claim for compensation for the period after
March 13, 2009 because his absence was not due to the accepted injury. In a separate decision dated September 29,
2009, OWCP denied appellant’s claim for a schedule award as the medical evidence of record did not establish a
permanent impairment.
4

Docket No. 12-1699 (issued February 14, 2013).

5

Supra note 3.

6

A.M.A., Guides (6th ed. 2nd prtg. 2009).

7

Docket No. 12-1906 (issued February 14, 2013).

2

improvement (MMI) was reached on September 10, 2010. Dr. Dyer concluded that, in
accordance with the sixth edition of the A.M.A., Guides, appellant had seven percent permanent
impairment of the right upper extremity.
By decision dated April 3, 2013, OWCP granted appellant a schedule award for seven
percent permanent impairment of the right arm, for 21.84 weeks, to run from September 15,
2010 to February 14, 2011.8
Appellant appealed to the Board. In a March 14, 2014 decision, the Board affirmed the
April 3, 2013 schedule award decision.9 The Board reviewed the reports of Dr. Leis and
Dr. Dyer, the only impairment evaluations of record. The Board noted that Dr. Dyer, who relied
on the physical findings provided by Dr. Leis, properly applied the A.M.A., Guides and
concluded that appellant had seven percent permanent impairment of the right upper extremity.
In monthly reports, Dr. Brian K. Tsang, Board-certified in anesthesiology and pain
medicine, provided examination findings, described appellant’s current right arm condition, and
diagnosed right elbow and forearm sprain, lateral epicondylitis, and long term use of high-risk
medications. On August 8, 2013 Dr. Tsang advised that appellant was permanently impaired due
to the July 8, 2008 work injury and could not return to his position as a supplier.
On August 20, 2014 appellant submitted a statement requesting wage-loss compensation
for the period 2009 to present.
In a September 2, 2014 report, Dr. Leis noted appellant’s complaint of right elbow pain
which appellant described as related to playing tennis. Following physical examination, he
diagnosed lateral epicondylitis, loose body elbow, localized forearm osteoarthrosis, and cubital
tunnel syndrome.
On January 7, 2015 Dr. Leis performed revision of a right lateral epicondylectomy.
Dr. Tsang continued to submit reports describing appellant’s pain management regarding his
right arm condition.
On January 10, 2015 appellant filed a recurrence claim (Form CA-2a), asserting that he
had a recurrence of disability on July 8, 2008 when he stopped work. On January 11, 2015 he
filed a schedule award claim (Form CA-7).
In correspondence dated January 23, 2015, OWCP asked Dr. Leis to provide an
impairment evaluation in accordance with the sixth edition of the A.M.A., Guides. On a medical
excuse letter dated February 12, 2015, Dr. Tsang advised that appellant was disabled and could
8

On February 25, 2013 appellant requested reconsideration, asserting that he was entitled to wage-loss
compensation beginning in 2008. In a March 28, 2013 decision, OWCP noted that the last merit decision on the
issue of disability was issued on January 4, 2010. It denied appellant’s reconsideration request as his request was
untimely filed and failed to demonstrate clear evidence of error.
9

The Board also affirmed OWCP’s March 28, 2013 decision finding that appellant’s request for reconsideration
regarding entitlement to wage-loss compensation due to the July 8, 2008 work injury was untimely filed and failed
to demonstrate clear evidence of error. Docket No. 13-1275 (issued March 14, 2014).

3

not return to his previous employment. By letter dated February 27, 2015, OWCP informed
appellant that it would not proceed with his schedule award claim because the evidence indicated
that he had not yet reached MMI. On April 2, 2015 it advised appellant to file a Form CA-7
claim to consider wage-loss compensation following his recent surgery.
On April 17, 2015 Deborah Thompson-Spencer, a nurse practitioner and associate of
Dr. Leis, advised that appellant’s chronic recalcitrant right arm pain remained, status post
January 7, 2015 surgery. She noted a significant concern for secondary gain as appellant had not
worked since 2008 secondary to lateral epicondylitis despite revision and pain management. On
May 28, 2015 Dr. Leis reported that appellant had continuing right elbow pain. He
recommended a functional capacity evaluation (FCE). An FCE, completed on June 5, 2015,
demonstrated that appellant was capable of medium level work. Dr. Tsang continued to submit
monthly pain management reports.
On August 7, 2015 appellant again filed a schedule award claim (Form CA-7).10 In an
August 6, 2015 treatment note, Dr. Leis noted his review of the FCE. He provided physical
examination findings and indicated that appellant had a five degree loss of elbow extension
secondary to pain. Dr. Leis advised that, “in accordance with the most recent guidelines from
the American Medical Association,” appellant had eight percent permanent impairment of the
right elbow. On August 18, 2015 OWCP asked Dr. Leis to further explain the impairment rating.
In telephone calls on October 1 and 5, 2015, it informed appellant that it had not received a
supplemental report from Dr. Leis explaining his impairment evaluation in accordance with the
A.M.A., Guides.
On October 8, 2015 OWCP asked its medical adviser, Dr. Dyer, to evaluate appellant’s
right arm for schedule award purposes. In an October 9, 2015 report, Dr. Dyer related that he
had reviewed the record and advised that MMI was reached on August 6, 2015, seven months
following appellant’s right elbow surgery. He indicated that under Table 15-4, appellant had a
grade E, class 1 impairment due to repeat surgery, for seven percent permanent impairment of
the right arm, the highest value allowed under Table 15-4.
In a merit decision dated October 14, 2015, OWCP found that the weight of the medical
evidence rested with the opinion of Dr. Dyer, its medical adviser, and concluded that appellant
was not entitled to a right arm schedule award greater than the seven percent previously awarded.
On October 30, 2015 appellant requested reconsideration of the October 14, 2015
decision. He maintained that the medical evidence was sufficient to establish greater
impairment. Appellant submitted evidence previously of record and an October 23, 2015 letter
in which Dr. Leis again concluded that, under the A.M.A., Guides, appellant had eight percent
impairment of the right elbow. Dr. Leis indicated that appellant had reached MMI and was
released from his care. Appellant also forwarded an additional schedule award claim (Form

10

By order dated July 21, 2015, the Board dismissed a September 8, 2014 appeal of a February 14, 2013 decision.
The Board noted that on February 14, 2013, Docket No. 12-1699, the Board affirmed OWCP’s July 26, 2012
decision that denied appellant’s hearing request. See supra note 4. The Board further noted that there was no final
OWCP decision issued within 180 days of the filing of that appeal. Docket No. 14-2006 (issued July 21, 2015).

4

CA-7). The record also includes monthly pain management reports from Dr. Tsang which did
not include an impairment evaluation.
In a nonmerit decision dated November 16, 2015, OWCP denied merit review of the
October 14, 2015 schedule award decision. It found the evidence submitted was either
immaterial or repetitive and cumulative.
On November 24, 2015 appellant requested a hearing before OWCP’s Branch of
Hearings and Review regarding his schedule award claim. Evidence submitted subsequent to
this request included monthly treatment notes from Dr. Tsang who described appellant’s pain
management. On November 18, 2015 Dr. Tsang advised that appellant remained disabled due to
a right arm injury.
By decision dated December 16, 2015, OWCP’s Branch of Hearings and Review denied
appellant’s request for a hearing as a matter of right because he had previously requested
reconsideration. OWCP, in its discretion, considered the request, but determined that his request
is further denied because the case could equally well be addressed by requesting reconsideration
with OWCP and submitting new evidence not previously considered.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA,11 and its implementing federal regulation,12 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.13 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.14
The latest version of the A.M.A., Guides is the sixth edition, first printed in 2007. Within
months of the initial printing, the A.M.A. issued a 52-page document (errata/supplement) entitled
Clarifications and Corrections, A.M.A., Guides (6th ed.). The document included various
changes to the original text. Clarifications and Corrections initially served as a supplement to
the first printing. These changes were formally incorporated in the bound version of the sixth
edition during its April 2009 second printing. OWCP adopted the latest edition to the A.M.A.,
Guides more than a year after its initial publication. Effective May 1, 2009, schedule awards are
determined in accordance with the sixth edition of the A.M.A., Guides (2nd prtg. 2009).15
11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404.

13

Id. at § 10.404(a).

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
15

Id.

5

ANALYSIS -- ISSUE 1
The Board finds that appellant did not establish more than seven percent permanent
impairment of the right arm, for which he received a schedule award.
OWCP accepted that appellant sustained right elbow and forearm sprains and right lateral
epicondylitis. On April 2, 2013 appellant was granted a schedule award for seven percent
permanent impairment of the right arm. On March 14, 2014 the Board affirmed this decision.
The Board noted that reports of Dr. Leis and Dr. Dyer provided the only impairment evaluations
of record. The Board found that Dr. Dyer, who relied on the physical findings provided by
Dr. Leis, properly applied the A.M.A., Guides and concluded that appellant had seven percent
permanent impairment of the right upper extremity.16
Appellant again filed a schedule award claim on January 11, 2015. By letter dated
February 27, 2015, OWCP informed appellant that it would not proceed with this claim because
the evidence of record indicated that he had not yet reached MMI following the January 7, 2015
revision surgery. Appellant filed another schedule award claim on August 7, 2015.
In an August 6, 2015 treatment note, Dr. Leis noted his review of a June 5, 2015 FCE
which demonstrated that appellant could perform medium level work. He provided examination
findings and indicated that appellant had a five-degree loss of elbow extension secondary to pain.
Dr. Leis advised that, “in accordance with the most recent guidelines from the American Medical
Association,” appellant had eight percent impairment of the right elbow. On August 18, 2015
OWCP asked Dr. Leis to further explain the impairment rating. Dr. Leis did not respond.
In an October 9, 2015 report, Dr. Dyer indicated that he had reviewed the record and
noted appellant’s recent surgery and recurrent pain. He advised that MMI was reached on
August 6, 2015 and, under Table 15-4, appellant had a grade E, class 1 impairment due to repeat
surgery, for seven percent permanent impairment, the highest value allowed under Table 15-4.
On October 14, 2015 OWCP found that the weight of the medical evidence rested with
the opinion of Dr. Dyer, its medical adviser, and concluded that appellant was not entitled to a
right arm schedule award greater than the seven percent previously awarded.
The Board has long held that medical evidence is of little probative value where the
A.M.A., Guides are not properly followed.17 While Dr. Leis noted in his August 6, 2015 report
that he had followed the A.M.A., Guides, he did not reference a specific diagnosis or table in the
A.M.A., Guides and merely concluded that appellant had eight percent permanent impairment.
As Dr. Leis did not properly follow the A.M.A., Guides, his calculation for appellant’s right arm
impairment is of diminished probative value.
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and extent of
16

Docket No. 13-1275 (issued March 14, 2014).

17

Richard A. Neidert, 57 ECAB 474 (2006).

6

impairment in accordance with the A.M.A., Guides, with Dr. Dyer providing rationale for the
percentage of impairment specified.18 Dr. Dyer did so in this case. There is no probative
medical evidence establishing a greater degree of impairment.19
It is appellant’s burden to prove that the condition for which a schedule award is sought is
causally related to employment.20 OWCP’s medical adviser properly rendered his impairment
rating based on the accepted conditions and relied of the physical examination findings of
Dr. Leis. He reviewed the medical record and, in his October 9, 2015 report, properly
determined that, based on appellant’s diagnosis of complicated lateral epicondylitis, under Table
15-4 he was entitled to the maximum impairment allowed for this condition, seven percent.21
Appellant may at any time request a schedule award or increased schedule award based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.22 Section 10.608(a) of OWCP’s regulations provides that a timely
request for reconsideration may be granted if OWCP determines that the employee has presented
evidence and/or argument that meet at least one of the standards enumerated in section
10.606(b)(3).23 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (i) shows that OWCP
erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal
argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new
evidence not previously considered by OWCP.24 Section 10.608(b) provides that when a request
for reconsideration is timely but fails to meet at least one of these three requirements, OWCP
will deny the application for reconsideration without reopening the case for a review on the
merits.25

18

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
19

See M.P., Docket No. 15-383 (issued July 1, 2015). Although Dr. Tsang submitted monthly pain management
reports, he did not include an impairment evaluation.
20

D.H., 58 ECAB 358 (2007).

21

A.M.A., Guides, supra note 6 at 399.

22

5 U.S.C. § 8128(a).

23

20 C.F.R. § 10.608(a).

24

Id. at § 10.608(b)(3).

25

Id. at § 10.608(b).

7

ANALYSIS -- ISSUE 2
With his October 30, 2015 reconsideration request, appellant merely maintained that the
medical evidence submitted established entitlement to a greater award. He therefore did not
show that OWCP erroneously applied or interpreted a specific point of law or advance a relevant
legal argument not previously considered by OWCP. Consequently, appellant was not entitled to
a review of the merits of the claim based on the first and second above-noted requirements under
section 10.606(b)(3).26
As to the third above-noted requirement under section 10.606(b)(3), appellant submitted
an October 23, 2015 letter in which Dr. Leis repeated, word-for-word, that appellant had eight
percent permanent impairment of the right elbow. Dr. Leis had included this opinion in an
August 6, 2015 treatment note, that was reviewed by OWCP in its October 14, 2015 decision on
the merits of appellant’s schedule award claim. Thus, his October 23, 2015 letter is duplicative
and irrelevant as to whether appellant was entitled to an additional schedule award. Evidence or
argument that repeats or duplicates evidence previously of record has no evidentiary value and
does not constitute a basis for reopening a case.27
As appellant did not show that OWCP erred in applying a point of law, advance a
relevant legal argument not previously considered, or submit relevant and pertinent new
evidence not previously considered by OWCP, OWCP properly denied merit review.
LEGAL PRECEDENT -- ISSUE 3
Section 8124(b)(1) of FECA provides that a claimant dissatisfied with a decision of
OWCP shall be afforded an opportunity for an oral hearing or, in lieu thereof, a review of the
written record.28 A request for either an oral hearing or a review of the written record must be
submitted, in writing, within 30 days of the date of the decision for which a hearing is sought. If
the request is not made within 30 days or if it is made after a reconsideration request, a claimant
is not entitled to a hearing or a review of the written record as a matter of right.29 The Board has
held that OWCP, in its broad discretionary authority in the administration of FECA has the
power to hold hearings in certain circumstances where no legal provision was made for such
hearings and that OWCP must exercise this discretionary authority in deciding whether to grant a
hearing.30 Unless otherwise directed in writing by the claimant, the hearing representative will
mail a notice of the time and place of the hearing to the claimant and any representative at least
30 days before the scheduled date.31
26

Id. at § 10.606(b).

27

J.P., 58 ECAB 289 (2007).

28

5 U.S.C. § 8124(b)(1).

29

Claudio Vazquez, 52 ECAB 496 (2001).

30

Marilyn F. Wilson, 52 ECAB 347 (2001).

31

20 C.F.R. § 10.617(b); see R.E., Docket No. 13-553 (issued July 25, 2013).

8

ANALYSIS -- ISSUE 3
On November 24, 2015 appellant requested an oral hearing with regard to the
November 16, 2015 nonmerit decision that denied appellant’s reconsideration request. Because
appellant had previously requested reconsideration under section 8128 of FECA, he was not
entitled to a hearing as a matter of right under section 8124(b)(1) of FECA.32 OWCP exercised
its discretion and considered appellant’s request, but determined that the issue in the case could
be resolved equally well through a request for reconsideration and the submission of additional
evidence. The Board finds that OWCP did not abuse its discretion in denying appellant’s request
for an oral hearing in its December 16, 2015 decision.33
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish more than
seven percent permanent impairment of the right arm for which he received a schedule award.
The Board further finds that OWCP properly denied merit review pursuant to 5 U.S.C.
§ 8128(a), and that OWCP properly denied appellant’s request for a hearing.

32

Supra note 30.

33

J.D., Docket No. 15-1679 (issued December 14, 2015).

9

ORDER
IT IS HEREBY ORDERED THAT the December 16, November 16, and October 14,
2015 decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 24, 2016
Washington, DC

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

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

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

10


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

)
)
)
)
)
)
)
)

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

Docket No. 10-1537
Issued: February 9, 2011

Case Submitted on the Record

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

JURISDICTION
On May 19, 2010 appellant filed a timely appeal from the February 19, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction to review this decision. The last merit decision was issued
by the Office on February 2, 2009. As this decision was issued more than 180 days prior to this
appeal, the Board does not have jurisdiction to review the merits of case.
ISSUE
The issue is whether the Office properly denied appellant’s January 26, 2010 request for
reconsideration pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 16, 1992 appellant, then a 34-year-old flat sorter, sustained an injury in the
performance of duty when a coworker threw a box that struck her head and broke her glasses.
The Office accepted her claim for facial contusions, headaches, cervical strain, cervical
degenerative disc disease, C5-6 herniated disc and depression. In 1996, appellant underwent

surgery on her cervical spine. She received compensation for temporary total disability on the
periodic rolls.
In a July 7, 2008 decision, the Office terminated appellant’s compensation benefits
effective July 1, 2008. It received information that she pleaded guilty to defrauding the Federal
Employees’ Compensation Act (FECA or Act) program, specifically and pled guilty to making a
material false statement in connection with her compensation benefits.
By decision dated February 2, 2009, an Office hearing representative affirmed the
termination. The hearing representative found that appellant forfeited her right to compensation
effective July 1, 2008. Appellant argued that 5 U.S.C. § 8148(a) applied only to felony
convictions, but citing Board precedent, the Office hearing representative held, that section
8148(a) applied to employees who pleaded to or were found guilty of a misdemeanor under
18 U.S.C. § 1920. She also argued the termination was premature, as the November 3, 2008
judgment accepting her plea was not a part of the record when the Office issued its decision.
The Office hearing representative citied Office procedures to support that, in the case of a plea
bargain, compensation should be terminated on the date the claimant entered the plea in open
court, not the date of sentencing or the date the court papers were signed. Appellant further
argued that she was mentally incompetent, but the hearing representative noted that section 8148
made no exception relating to mental incapacity.
On January 26, 2010 appellant requested reconsideration of the Office hearing
representative’s February 2, 2009 decision. She contended that she did not know it was against
the law to see a couple of pain physicians, especially when one treated her neck and the other
treated her low back. Appellant argued that she was under the influence of mind-altering drugs
when she was arrested and that detectives coerced her into signing a confession by threatening to
take her two dogs to the pound. She argued that someone broke into her house in
December 2006 and stole her pills. Appellant would not have signed the plea agreement if she
knew she was going to be charged with fraud. She insisted her confession was not true and that
she never sold pills. Appellant contended that the Office was responsible for her drug addiction,
mental condition and pain from 1992 to the present. She argued that she be placed back on
compensation.
Appellant argued that her lawyers coerced her into signing the plea bargain by telling her
that she was going to prison for many years. She explained that when she saw another physician,
he did not bill the Office. Appellant stated that there was no witness, no one she supposedly sold
drugs to, because she was not selling drugs. Appellant submitted a copy of a December 13, 2006
sheriff’s office incident report showing a complaint of burglary at her residence. A February 4,
2008 letter from the state attorney’s office congratulated appellant on completing Drug Felony
Pre-Trial Intervention and advised that the charges pending against her were now dismissed
effective February 1, 2008. Appellant resubmitted a copy of the Office’s July 7, 2008 decision.
In a decision dated February 19, 2010, the Office denied appellant’s request for
reconsideration. It found that the attached documents were irrelevant because they did not
address the issue of her July 1, 2008 guilty plea to defrauding the FECA program. The Office
found that appellant’s narrative did not consist of a legal arguments to support that the Office’s
February 2, 2009 decision was not based on the rules and regulations of the Act. Holding that

2

appellant failed to provide relevant or pertinent evidence not previously considered, the Office
denied further merit review of appellant’s case.
On appeal, appellant repeats many of the same arguments made to the Office. She states
that the state attorney bluffed her attorney, she was naive and gullible, never sold pills and was
heavily medicated when arrested. Appellant presented argument for a schedule award and how
the statement of accepted facts should be amended.
LEGAL PRECEDENT
The Office may review an award for or against payment of compensation at any time on
its own motion or upon application.1 The employee shall exercise this right through a request to
the district Office.2
An employee (or representative) seeking reconsideration should send the request for
reconsideration to the address as instructed by the Office in the final decision. The request for
reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.3
A request for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.4 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these standards. If reconsideration is granted, the case is reopened and the case is reviewed on
its merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the request for reconsideration without reopening the case for a review on the merits.5
ANALYSIS
The only decision the Board may review is the Office’s February 19, 2010 decision
denying appellant’s request for reconsideration. That was not a decision on the merits of her
case rather, it found that her request did not meet one of the standards for reopening her case.
The only issue the Board may decide is whether appellant’s request for reconsideration meets
one of those standards.

1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.605.

3

Id. at § 10.606.

4

Id. at § 10.607(a).

5

Id. at § 10.608.

3

Appellant’s January 26, 2010 request for reconsideration, timely filed within a year of the
Office’s most recent merit decision on February 2, 2009, did not establish that the Office
erroneously applied or interpreted a specific point of law. Section 8148(a) of the Act states that
any individual convicted of violating 18 U.S.C. § 1920 or any other federal or state criminal
statute relating to fraud in the application for or receipt of any benefit under the Act, shall forfeit
any entitlement to any benefit such individual would otherwise be entitled to under the Act for
any injury occurring on or before the date of such conviction.6 The effective date of termination
in fraud cases under section 8148(a) is the date of conviction, which in cases of a plea agreement
is the date the claimant made the plea in open court, not the date of sentencing or when the court
papers were signed.7
On July 1, 2008 appellant pled guilty in open court to fraud and the Office terminated her
benefits under the Act effective that date. Her request does not show an erroneous application or
interpretation of section 8148(a). That section does not require a felony conviction, only a
violation of any federal or state criminal statute relating to fraud.8
Appellant’s request for reconsideration did not advance a relevant legal argument not
previously considered by the Office. None of the arguments she made in her request for
reconsideration is relevant. Appellant offered various explanations, but did not deny the fact that
she was found guilty to violating 18 U.S.C. § 1920 on July 1, 2008. Her plea agreement is a
matter of record. Many of appellant’s arguments, such as her insistence that she did not sell pain
pills to anyone, have nothing to do with the termination of her compensation. She was convicted
of knowingly and willfully concealing the fact that she was being treated by other physicians
who were also prescribing pain medication. That was the fraud, appellant’s failure to disclose
this material fact. Her arguments on reconsideration do not rebut this finding as noted, the Board
has no power to review her plea agreement or her conviction for fraud. It is sufficient that the
plea agreement exists and that the record shows no evidence that her conviction for fraud was
ever reversed, vacated or set aside.
Appellant did not submit with her request for reconsideration any evidence that is
relevant and pertinent new evidence not previously considered by the Office. The December 13,
2006 sheriff’s office incident report, showing a complaint of burglary at her residence, is not
relevant to the grounds on which her compensation benefits were terminated. The February 4,
2008 letter from the state attorney’s office, congratulating appellant on completing the Drug
Felony Pre-Trial Intervention and advising that the charges pending against her were now
dismissed effective February 1, 2008, do not address her later plea agreement and fraud
conviction. A copy of the Office’s July 7, 2008 decision is not new evidence relevant to the
underlying issue.

6

5 U.S.C. § 8148(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.144.12(a) (March 1997).

8

Terry A. Keister, 56 ECAB 559 (2005) (finding that the claimant forfeited, under section 8148 of the Act, his
entitlement to compensation benefits following his guilty plea to a misdemeanor charge of making a false claim
under the Act).

4

Because appellant’s January 26, 2010 request for reconsideration does not meet at least
one of the three standards for obtaining a merit review of her case, the Board will affirm the
Office’s February 19, 2010 decision denying her request.
Appellant’s arguments on appeal are repetitive and irrelevant. Whether she sold pills is
irrelevant. Whether appellant is entitled to a schedule award is irrelevant and whether the
statement of accepted facts should be amended is irrelevant to the grounds upon which the Office
terminated her compensation benefits.
CONCLUSION
The Board finds that the Office properly denied appellant’s January 26, 2010 request for
reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the February 19, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 9, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5