United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
OAKHURST OUTPATIENT CLINIC,
Oakhurst, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Sara Kincaid, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0364
Issued: July 3, 2019

Case Submitted on the Record

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

JURISDICTION
On December 10, 2018 appellant, through counsel, filed a timely appeal from a June 14,
2018 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most
recent merit decision was a Board decision dated March 21, 2017, which became final after 30
days of issuance and is not subject to further review.2 As there was no merit decision by OWCP
within 180 days of the filing of this appeal, pursuant to the Federal Employees’ Compensation

1

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

20 C.F.R. § 501.6(d); see A.F., Docket No. 18-0645 (issued October 26, 2018).

Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits
of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances of the case
as set forth in the prior decision is incorporated herein by reference. The relevant facts are as
follows.
On January 21, 2014 appellant, then a 54-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on January 13, 2014 she vomited twice, lacked focus, became confused,
and experienced headache and dizziness due to her exposure to toxic fumes from a malfunctioning
heating unit at work. She claimed that toxic exhaust fumes were emitted into her office,
examination rooms, and nearby areas of a clinic.
By decision dated February 17, 2015, OWCP denied the claim, finding that the evidence
of record was insufficient to establish that the January 13, 2014 incident occurred at work, as
alleged. It noted that the employing establishment submitted evidence to establish that appellant
was not exposed to carbon monoxide or toxic gas. Further, that Dr. Gerald B. Levine, a Boardcertified internist specializing in pulmonary diseases and OWCP referral physician, found no
factual or objective confirmation of a diagnosis of carbon monoxide poisoning. Appellant, through
counsel, subsequently requested reconsideration, however, by decisions dated September 11, 2015
and May 4, 2016, OWCP denied modification of its prior decision.
Appellant, through counsel, appealed to the Board on October 17, 2016. By decision dated
March 21, 2017, the Board affirmed the May 4, 2016 merit decision, finding that appellant had
failed to provide evidence sufficient to establish that the January 13, 2014 incident occurred at
work, as alleged. The Board noted that, although appellant’s statement that she sustained a
traumatic injury on January 13, 2014 was entitled to great weight, it was contradicted by the
employing establishment’s evidence and the medical evidence of record.
On March 20, 2018 appellant, through counsel, requested reconsideration, contending that
the additional factual and medical evidence submitted were sufficient to establish that appellant
sustained an injury due to her exposure to toxic fumes from a malfunctioning heating unit at work
on January 13, 2014.

3

5 U.S.C. § 8101 et seq.

4

Docket No. 17-0056 (issued March 21, 2017).

2

A heating, ventilation, and air conditioning (HVAC) service order invoice dated
January 28, 2013 from Wilkins Enterprises indicated, among other things, that a heat exchange
had been replaced at the employing establishment.
An undated and unsigned employing establishment incident report noted that appellant
noticed “a bad odor” when she arrived at the clinic on the morning of January 13, 2014. She
reported the odor to a supervisor who immediately shut off the HVAC units and opened all of the
windows in the clinic. Appellant was assigned to a room furthest away from the odor and was
permitted to go outside to get fresh air. A propane company was called to determine whether there
were any leaks in the heating system. No leaks were found and it was determined that the odor
was from a soot buildup in a heating unit. The odor completely cleared from the clinic around
noon.
In a June 9, 2016 transcript of his deposition, John Sunderson, a certified physician
assistant, addressed his January 24, 2014 notes in which he diagnosed toxic effect of carbon
monoxide and advised that he did not specifically find a causal correlation between the alleged
January 13, 2014 incident and appellant’s current symptoms.
Discharge summaries dated January 21, 2017 from Dr. Archana Pasupleti, a Boardcertified neurologist, and Dr. Robert C. Knowlton, a neurologist, noted a history that appellant
experienced a strong odor of car exhaust at her workplace on January 13, 2014. Both physicians
provided an assessment of nonepileptic spells and headache.
In progress notes dated June 7 and 6, 2017, Dr. David C. Perry, a Board-certified
neurologist, indicated that appellant presented for a follow-up of her cognitive symptoms,
headache, gait, and movement changes. He provided an impression that she had multiple systemic
and neurologic symptoms following self-reported workplace exposure on January 13, 2014.
Largely, appellant reported these symptoms as unchanged. Dr. Perry noted that her cognitive
symptoms largely reflected attention and concentration difficulty and her observable speech and
movement findings had improved.
In a medical report dated November 20, 2017, Dr. James Craner, Board-certified in
occupational medicine, noted a history that appellant noted a noxious “nasty” exhaust odor as she
walked into her office building on January 13, 2014. He diagnosed occupational acute carbon
monoxide toxicity with delayed-onset encephalopathy. Dr. Craner opined that this poisoning and
its sequelae were directly caused by a malfunctioning and/or improperly designed or installed
propane-fired heating system.
Appellant resubmitted a January 20, 2014 statement by her coworker, M.F., indicating that
he developed carbon monoxide poisoning due to his exposure to exhaust fumes at work on
January 13, 2014; a HVAC service order invoice dated January 13, 2014 from Wilkins Enterprises
indicating that, an air conditioner was plugged with soot, a heat exchange was replaced, and burner
operation was checked; Mr. Sunderson’s January 24, 2014 notes; and Dr. Levine’s January 25,
2015 second opinion report.

3

OWCP, by decision dated June 14, 2018, denied appellant’s March 20, 2018 request for
reconsideration of the merits of her claim, finding that the evidence submitted was insufficient to
warrant merit review.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.5 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.6 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.7
Upon receipt of a timely application, OWCP exercises its discretion in accordance with the
guidelines set forth in section 10.606(b)(3) of the implementing federal regulations, which
provides that a claimant may obtain review of the merits of his or her written application for
reconsideration, including all supporting documents, sets forth arguments and contain evidence
which either: (1) shows that OWCP erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes
relevant and pertinent new evidence not previously considered by OWCP.8
Section 10.608(b) provides that any application for review of the merits of the claim which
does not meet at least one of the requirements listed in section 10.606(b) will be denied by OWCP
without review of the merits of the claim.9
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Initially, the Board notes that findings made in prior Board decisions are res judicata absent
any further review by OWCP under section 8128 of FECA. The Board will therefore not review
the evidence addressed in the prior appeal.10

5

This section provides in pertinent part: the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
6

20 C.F.R. § 10.607.

7

C.C., Docket No. 18-0316 (issued March 14, 2019); id. at § 10.607(a). For merit decisions issued on or after
August 29, 2011, a request for reconsideration must be received by OWCP within one year of OWCP’s decision for
which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4
(February 2016). Timeliness is determined by the document receipt date of the request for reconsideration as indicated
by the received date in the integrated Federal Employees’ Compensation System. Id. at Chapter 2.1602.4b.
8

Id. at § 10.606(b)(3).

9

Id. at § 10.608(b).

10

See C.B., Docket No. 19-0175 (issued May8, 2019); M.M., Docket No. 18-1366 (issued February 27, 2019).

4

Appellant’s timely request for reconsideration did not show that OWCP erroneously
applied or interpreted a specific point of law, or advance a new and relevant legal argument not
previously considered by OWCP. Consequently, she was not entitled to a review of the merits
based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered by OWCP. The underlying issue in this case is whether appellant
submitted sufficient factual evidence to establish that an employment incident occurred on
January 13, 2014, as alleged. In support of her reconsideration request, she submitted an
employing establishment incident report. However, this incident report, while new, is not relevant
because it does not indicate that appellant was exposed to toxic fumes from a malfunctioning
heating unit. The report noted that a propane company had inspected the heating system and
determined that the odor reported by her was from soot buildup in the heating system. The Board
has held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.11 Thus, the Board finds that this report is insufficient
to require OWCP to reopen the case for merit review.12
The reports of Drs. Pasupleti, Knowlton, Perry, and Craner, while new, contained a history
of injury as communicated by appellant, however, the physicians failed to provide factual
corroboration of appellant’s exposure to toxic fumes at work on January 13, 2014. This is
particularly important in this case as OWCP found, and the Board previously affirmed, that she
failed to establish that the January 13, 2014 incident at work, as alleged. The Board finds,
therefore, that these reports are insufficient to require OWCP to reopen the case for merit review.
The remaining evidence of record, while new, is not relevant. The January 28, 2013 HVAC
service order invoice from Wilkins Enterprises predates the alleged January 13, 2014 employment
incident. Mr. Sunderson, in a June 9, 2016 deposition, failed to provide a factual history of
appellant’s injury.13 For these reasons, the Board finds that this evidence is insufficient to reopen
the case for merit review.
Appellant resubmitted M.F.’s January 20, 2014 statement, a January 13, 2014 HVAC
service order invoice from Wilkins Enterprises, Mr. Sunderson’s January 24, 2014 notes, and
Dr. Levine’s January 25, 2015 second opinion report. The Board finds that the submission of this
evidence did not require reopening her case for merit review because it was previously of record
and considered by OWCP in its February 17, 2015 decision and the Board in its March 21, 2017
decision.14

11

See S.C., Docket No. 18-0814 (issued January 18, 2019); David J. McDonald, 50 ECAB 185 (1998).

12

See A.J., Docket No. 10-1537 (issued February 9, 2011).

13

Supra note 11.

14

See G.M., Docket No. 17-0345 (issued May 1, 2017); C.N., Docket No. 08-1569 (issued December 9, 2008).

5

The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.15
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the June 14, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 3, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

15
See supra note 8 at § 10.608; see also D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032
(issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.D., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Albuquerque, NM, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0199
Issued: March 20, 2019

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 November 6, 2017 appellant filed a timely appeal from May 26, July 19, and August 7,
2017 merit decisions and a May 10, 2017 nonmerit decision of the Office of Workers’
Compensation Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a recurrence
of total disability for the period April 3 through 14, 2017 and intermittent periods from May 1
1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the August 7, 2017 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to evidence in the case record that was
before OWCP at the time of its final decision. Evidence not before OWCP at the time of the August 7, 2017 decision
will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded
from reviewing this additional evidence for the first time on appeal. Id.

through June 9, 2017 causally related to her February 6, 2014 accepted employment injury; and
(2) whether OWCP properly denied appellant’s request for reconsideration of the merits of the
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 4, 2014 appellant, then a 38-year-old training instructor, filed a traumatic injury
claim (Form CA-1) alleging that, on February 6, 2014, she was hit on the head by several
dodgeballs while in the performance of duty. OWCP accepted the claim for displacement of
cervical interval disc without myelopathy. It subsequently expanded acceptance of the claim to
include cervical disc disorder with myelopathy at C5-6 and spondylosis without myelopathy or
cervical radiculopathy.
Appellant initially lost no time from work, but then stopped work on May 4, 2014. On
May 8, 2014 she underwent an OWCP authorized cervical arthroplasty at C5-6 with an artificial
cervical disc device. On June 23, 2014 appellant returned to work in a full-time modified-duty
capacity. She resumed full-duty work on August 28, 2014.
Approximately one year later, on August 28, 2015, appellant reported to a hospital
emergency department noting that she hit the back of her neck on a metal bar a week prior and
experienced ongoing neck pain and headaches. She stopped work on September 14, 2015 and has
not returned.
On September 22, 2015 appellant filed a claim for wage-loss compensation (Form CA-7)
alleging a change or worsening of her February 6, 2014 accepted employment injury.
By decision dated November 6, 2015, OWCP denied appellant’s recurrence claim for
wage-loss compensation commencing September 22, 2015 due to her accepted injury. It found
that she had sustained an intervening injury in August 2015 rather than a recurrence of her accepted
February 6, 2014 employment injury.
In a report dated October 28, 2015, Dr. Richard E. Manos, a Board-certified orthopedic
surgeon, related that appellant was seen in follow up on September 15, 2015 for headaches, which
may be the result of a postconcussive syndrome since she had been hit on the head with a dodge
ball. He related that on August 28, 2015 she was seen in an emergency room after she hit her neck
on a metal bar, but he concluded that this incident was not an intervening injury. Dr. Manos noted
that he took appellant off work on September 15, 2015.
In a report dated December 1, 2015, Dr. Manos related that on May 8, 2014 appellant had
undergone cervical arthroplasty at C5-6 for a disc herniation. He noted that when he last saw her
on September 15, 2015 she related that she found it difficult to work because her headaches and
neck pain were constant. Dr. Manos opined that appellant’s symptoms existed before she hit her
neck on a metal bar, and she had no significant change from her preexisting symptoms. He
concluded that her symptoms were residual to her cervical arthroplasty and that at this point she
could return to light duty, with periodic 10-minute breaks every hour.
On January 26, 2016 appellant filed a request for reconsideration of the November 6, 2015
decision. By decision dated May 5, 2016, OWCP denied modification of the November 6, 2016
2

decision, finding that the medical evidence submitted was insufficient to establish a change or
worsening of her accepted work-related condition(s) without intervening cause.
On May 5, 2017 appellant requested reconsideration of OWCP’s May 5, 2016 decision.
She contended that Dr. Manos had opined in an October 28, 2015 report that her increasing
headaches may be the result of a postconcussive syndrome and that this was “new evidence” and
supported her claim for recurrence.
By decision dated May 10, 2017, OWCP denied appellant’s request for reconsideration
without performing a merit review. It found that she had not established that it had erroneously
applied or interpreted a specific point of law, nor did she advance a relevant legal argument not
previously considered by OWCP.
On April 13, 2017 appellant submitted a claim for wage-loss compensation (Form CA-7)
for total disability for the period April 3 to 14, 2017.
In an April 3, 2017 work status slip, Robert McDonald, a certified physician assistant,
diagnosed cervical radiculopathy/pain and took appellant off work from April 3 to 13, 2017.
By development letter dated April 20, 2017, OWCP advised appellant regarding the
medical evidence necessary to establish her recurrence claim and afforded her 30 days to provide
the requested information.
On April 24, 2017 Dr. Beth S. Rogers, Board-certified in physical medicine and
rehabilitation, performed a cervical facet arthropathy.
On May 18 and 24, 2017 appellant filed claims for compensation (Form CA-7) claiming
total disability for the periods May 1 to 12 and May 15 to 25, 2017, respectively.
Evidence received in support of the wage-loss compensation claim included resubmission
of Dr. Manos’ October 28, 2015 letter. OWCP also received a May 4, 2017 work slip from
Mr. McDonald wherein he took appellant off work from May 4 to 15, 2017. In a May 10, 2017
work slip, Mr. McDonald held her off work due to increased headaches, but did not specify a time
frame.
By decision dated May 26, 2017, OWCP denied appellant’s claim for wage-loss
compensation for the period April 3 to 14, 2017, for a total of 64 hours.
In a development letter dated May 26, 2017, OWCP advised appellant of the deficiencies
in her claims for disability compensation for the period May 1 to 26, 2017. It afforded her 30 days
to submit additional medical information.
On June 15, 2017 appellant filed an additional claim for wage-loss compensation (Form
CA-7) for the period May 29 to June 9, 2017.
In a June 9, 2017 report, Stephanie Mooney, a nurse practitioner, released appellant back
to work 4 hours per day with 10- to 15-minute breaks every hour.

3

In a June 19, 2017 letter, Dr. Manos indicated that appellant was off work while
undergoing continued treatment for severe headaches and ongoing symptoms related to her
February 6, 2014 employment injury. He noted that on June 12, 2017 she was released to modified
duty with restrictions. Dr. Manos also provided work slips dated March 30, April 3, May 10, and
June 9, 2017 which indicated that appellant was unable to work due to cervical pain and increased
headaches. In the June 9, 2017 work slip, he indicated that she could return to modified work part
time with restrictions.
By development letter dated June 20, 2017, OWCP advised appellant that the evidence
received in support of her claim for wage-loss compensation for the period May 29 through June 9,
2017 was insufficient. It afforded her 30 days to submit the evidence necessary to establish her
claim.
OWCP received physical therapy reports and copies of February 14, 2017 examination
notes of Stephen Wren, a certified physician assistant. It also continued to receive progress reports
from Dr. Manos evaluating appellant’s condition after June 9, 2017.
By decision dated July 19, 2017, OWCP denied the claim for disability compensation for
the period May 1 to 12 and 15 to 26, 2017. It found the medical evidence submitted was
insufficient to establish the alleged periods of disability.
By decision dated August 7, 2017, OWCP denied appellant’s claim for disability
compensation for the period May 29 to June 9, 2017. It found that the medical evidence submitted
was insufficient to establish a worsening of her February 6, 2014 accepted employment injury.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition resulting from a previous injury or
illness without an intervening cause or a new exposure to the work environment that caused the
illness.3
Appellant has the burden of proof to establish by the weight of the substantial, reliable, and
probative evidence causal relationship between his or her recurrence of disability and the
employment injury.4 This burden includes the necessity of furnishing medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that
the disabling condition is causally related to employment factors and supports that conclusion with
sound medical reasoning.5
For each period of disability claimed, an employee must establish that he or she was
disabled from work as a result of the accepted employment injury. The Board will not require
OWCP to pay compensation for disability, in the absence of medical evidence directly addressing
3

20 C.F.R. § 10.5(x); see F.C., Docket No. 18-0334 (issued December 4, 2018).

4

C.K., Docket No. 17-1853 (issued August 17, 2018).

5

Mary A. Ceglia, 55 ECAB 626 (2004).

4

the specific dates of disability for which compensation is claimed. To do so would essentially
allow an employee to self-certify his or her disability and entitlement to compensation.6
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a recurrence of
total disability for the period April 3 through 14, 2017 and intermittent periods from May 1 through
June 9, 2017 causally related to her February 6, 2014 accepted employment injury.
In March 30 and April 3, 2017 work status reports, Dr. Manos held appellant off work until
April 13, 2017 due to cervical radiculopathy/pain. However, the Board has held that pain alone is
a symptom, not a medical diagnosis.7 Therefore, the Board finds that these reports are of limited
probative value in establishing a recurrence of disability due to the accepted medical condition
causally related to the February 6, 2014 employment injury.8
In support of the April 3 to 14, 2017 period of disability, OWCP also received an April 3,
2017 work slip from Mr. McDonald, a physician assistant, which related that appellant could not
return to work from April 3 to 13, 2017. However, this work slip has no probative value as a
physician assistant is not considered a physician as defined under FECA.9
In her April 24, 2017 report, Dr. Rogers noted that she had performed a cervical facet
arthropathy, but she did not discuss or address the issue of recurrence of disability. Since she did
not offer an opinion regarding whether appellant had a recurrence of disability from April 3 to 14,
2017 causally related to her accepted employment injury, her report therefore is of limited
probative medical value in respect to appellant’s claimed period of disability.10
The Board therefore finds that appellant has not established total disability for the period
from April 3 to 14, 2017 causally related to her accepted February 6, 2014 employment injury.
The Board also finds that appellant has not met her burden of proof to establish total
disability for intermittent periods from May 1 through June 9, 2017 causally related to her accepted
February 6, 2014 employment injury.
In support of appellant’s claims for wage-loss compensation for the period in question,
OWCP received a June 19, 2017 report from Dr. Manos. In his June 19, 2017 report, Dr. Manos
6

Fereidoon Kharabi, 52 ECAB 291 (2001).

7

Z.B., Docket No. 17-1336 (issued January 10, 2019).

8

Id.

9
See David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and
physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this subsection
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law). E.T., Docket No. 17-0265 (issued
May 25, 2018) (physician assistants are not considered physicians under FECA).
10

See E.C., Docket No. 16-0925 (issued March 3, 2018).

5

indicated that she was held off work due to a cervical C5-6 injury and had been undergoing
continued treatment for severe headaches and pain related to that injury. However, he did not
mention the specific dates of disability for which compensation is claimed. The Board will not
require OWCP to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow employees to self-certify their disability and entitlement to compensation.11
In a May 10, 2017 work status report, Dr. Manos held appellant off work for treatment due
to cervical radiculopathy/pain and headaches. While he opined that she was totally disabled for
work, his opinion is conclusory in nature and fails to explain in detail how the accepted medical
conditions were responsible for her disability without intervening injury and why she could not
perform her federal employment during the period claimed from May 1 to June 9, 2017.12 To
establish a period of disability the medical evidence must provide a discussion of how objective
medical findings attributable to the accepted conditions support a finding that appellant could not
perform her job duties.13
OWCP received additional reports from physician assistants and physical therapists,
however, these reports are also of no probative value as physical therapists and physician assistants
are not considered physicians as defined under FECA.14
The Board therefore finds that the evidence of record is insufficient to establish that
appellant was totally disabled for the claimed periods
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.15 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.16 One such limitation is that the request for reconsideration

11

E.B., Docket No. 17-0875 (issued December 13, 2018).

12

See J.J., Docket No. 15-1329 (issued December 18, 2015).

13

See W.E., Docket No. 17-0451 (issued November 20, 2017).

14

See supra note 9; S.P., Docket No. 18-1419 (issued February 27, 2019) (physical therapists are not considered
physicians under FECA).
15

This section provides in pertinent part: the Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
16

20 C.F.R. § 10.607.

6

must be received by OWCP within one year of the date of the decision for which review is sought.17
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.18 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.19
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.20 Further, the
submission of evidence which does not address the particular issue involved does not constitute a
basis for reopening a case.21
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
In support of her request for reconsideration of the denial of her recurrence of disability,
appellant did not demonstrate that OWCP erroneously applied or interpreted a specific point of
law, nor did she advance a relevant legal argument not previously considered by OWCP.22 As
such, she was not entitled to a review of the merits of her claim based on the first and second
above-noted requirements under section 10.606(b)(3).23
The Board further finds that appellant has not submitted relevant and pertinent new
evidence in support of her reconsideration request.
Appellant resubmitted Dr. Manos’ October 28, 2015 report. OWCP had previously
reviewed that report in its November 6, 2016 decision and found that Dr. Manos failed to explain
17

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
received by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the received date in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
18

20 C.F.R. § 10.606(b)(3).

19

Id. at § 10.608(a), (b).

20
See K.M., Docket No. 18-0479 (issued September 17, 2018); F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB
204 (2001).
21

See N.A., Docket No. 18-0897 (issued December 3, 2018); S.O., Docket No. 15-1412 (issued December 8, 2015);
P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).
22

See J.F., Docket No. 16-1233 (issued November 23, 2016).

23

20 C.F.R. § 10.606(b)(3).

7

how her current medical condition(s) were related to the original injury without intervening cause.
Evidence which is duplicative, cumulative, or repetitive in nature is insufficient to warrant
reopening a claim for merit review.24 Appellant therefore was not entitled to a review of the merits
of her claim based on the third above-noted requirement under section 10.606(b)(3).25
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.26
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish total disability
for the period April 3 through 14 and intermittent periods from May 1 through June 9, 2017
causally related to her February 6, 2014 accepted employment injury. The Board also finds that
OWCP properly denied her request for reconsideration of the merits of her claim pursuant to
5 U.S.C. § 8128(a).

24

See D.G., Docket No. 17-1251 (issued October 23, 2017); Denis M. Dupor, 51 ECAB 482 (2000).

25

20 C.F.R. § 10.606(b)(3).

26
See D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58
ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

8

ORDER
IT IS HEREBY ORDERED THAT the August 7, July 19, and May 26 and 10, 2017
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 20, 2019
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

9


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

)
)
)
)
)
)
)
)

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

Docket No. 14-317
Issued: July 11, 2014

Case Submitted on the Record

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

JURISDICTION
On November 26, 2013 appellant filed a timely appeal from a July 18, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained permanent impairment to her right upper
extremity, warranting a schedule award.
On appeal, appellant contends that she is entitled to compensation for her right shoulder
injury and for total disability from March to August 2012.2
1
2

5 U.S.C. § 8101 et seq.

The record reflects payment of wage-loss compensation for this period of disability. No decision denying this
period of disability is within the Board’s jurisdiction.

FACTUAL HISTORY
OWCP accepted that appellant, a part-time flexible clerk, sustained an aggravation of
right shoulder impingement and degenerative joint disease as a result of her repetitive work
duties. It authorized right shoulder arthroscopy, subacromial decompression, acromioplasty,
distal clavicle excision, debridement of partial anterior superior labral tear and arthroscopic
rotator cuff repair performed on March 2, 2012 by Dr. Steven K. Below, an attending Boardcertified orthopedic surgeon.
On August 2, 2012 Dr. Below released appellant to return to full-time, full-duty work
with no restrictions. He advised that she should reach maximum medical improvement in one
month.3
On September 13, 2012 appellant filed a claim for a schedule award.
In a December 21, 2012 medical report, Dr. Lisa E. Snyder, a Board-certified physiatrist,
noted appellant’s ongoing severe right shoulder pain and a history of the March 2, 2012 right
shoulder surgery. She noted that it was estimated that appellant reached maximum medical
improvement on September 2, 2012. Dr. Snyder reviewed an August 22, 2011 magnetic
resonance imaging (MRI) scan of the right shoulder, which revealed a partial thickness articular
surface tear of the supraspinatus tendon and its far lateral insertion and associated tenderness of
the rotator cuff tendon. There was also spurring on the undersurface of the acromion process.
On physical examination of the upper extremities, Dr. Snyder reported full active range
of motion to 180 degrees of abduction and flexion and well-healed surgical incisions of the right
shoulder. There was no swelling or erythema. Tenderness to palpation was present. On
neurological examination, Dr. Snyder found that strength throughout the upper extremities was
5/5 and symmetrical. Sensation to pin was intact. Reflexes were trace in the upper and lower
extremities.
Dr. Snyder determined that under Table 15-5, Shoulder Region Grid: Upper Extremity
Impairments, of the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides), appellant had a class 0 impairment rating for right
rotator cuff partial thickness tear. There were no significant objective abnormal findings at
maximum medical improvement. Utilizing Table 15-7, Functional History Adjustment: Upper
Extremities, on page 406, Dr. Snyder assessed a grade modifier 0 as no problems were reported.
She also assessed a grade modifier 0 under Table 15-8, Physical Examination Adjustment:
Upper Extremities, on page 408, as no abnormalities on physical examination were noted. Based
upon the A.M.A., Guides, a rotator cuff injury partial thickness tear with no significant objective
abnormal findings at maximum medical improvement yielded a class 0 impairment rating.
Dr. Snyder advised that currently the functional status and physical examination were also within
normal limits. She concluded that appellant had no impairment of the right upper extremity and
that she reached maximum medical improvement on September 2, 2012.

3

A September 4, 2012 report from an OWCP field nurse indicated that appellant returned to work on
August 4, 2012.

2

On May 6, 2013 Dr. David H. Garelick, an OWCP medical adviser, reviewed the medical
record and Dr. Snyder’s report. He noted that appellant was doing well following her right
shoulder surgery, that she had returned to her normal activities and had been discharged from
ongoing orthopedic care. Dr. Garelick agreed that maximum medical improvement had been
reached on September 2, 2012 and agreed with Dr. Snyder’s finding that appellant had no
impairment of the right upper extremity.
In a July 18, 2013 decision, OWCP found that appellant was not entitled to a schedule
award as the medical evidence did not establish any permanent impairment.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.6 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.7 Effective May 1, 2009,
FECA adopted the sixth edition of the A.M.A., Guides8 as the appropriate edition for all awards
issued after that date.9
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).10 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11
OWCP’s 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

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

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

7

Supra note 5; Mark A. Holloway, 55 ECAB 321, 325 (2004).

8

A.M.A., Guides (6th ed. 2009).

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
10

A.M.A., Guides 494-531.

11

Id. at 521.

3

percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.12
ANALYSIS
OWCP accepted that appellant sustained an aggravation of right shoulder impingement
and degenerative joint disease while in the performance of duty. On March 2, 2012 Dr. Below
performed a right shoulder arthroscopy, subacromial decompression, acromioplasty, distal
clavicle excision, debridement of partial anterior superior labral tear and arthroscopic rotator cuff
repair. Appellant subsequently claimed a schedule award due to her accepted conditions.
OWCP denied her claim for a schedule award. The Board finds that appellant has not met her
burden of proof to establish permanent impairment to her right arm due to her accepted
conditions.13
Dr. Snyder completed an impairment evaluation on December 21, 2012. She found that
appellant had no impairment to the right shoulder under the sixth edition of the A.M.A., Guides.
Dr. Snyder’s examination of the upper extremities was essentially normal with full active range
of motion to 180 degrees of abduction and flexion (Table 15-34 on page 475), no swelling or
erythema and well-healed surgical incisions of the right shoulder. She found some tenderness to
palpation. A neurological examination revealed 5/5 symmetrical strength throughout the upper
extremities and intact sensation to pin. Reflexes were trace in the upper and lower extremities.
Dr. Snyder noted that a right shoulder MRI scan performed prior to appellant’s March 2, 2012
authorized right shoulder surgery revealed a partial thickness articular surface tear of the
supraspinatus tendon and its far lateral insertion, associated tenderness of the rotator cuff tendon
and spurring on the undersurface of the acromion process. She determined that under Table 15-5
on page 404 appellant had a class 0 impairment for right rotator cuff partial thickness tear.
Dr. Snyder explained that there were no significant objective abnormal findings at maximum
medical improvement. Utilizing Table 15-7 on page 406, she assessed a grade modifier 0 as no
problems were reported. Dr. Snyder also assessed a grade modifier 0 under Table 15-8 on page
408 as no abnormalities on physical examination were noted. She concluded that based upon the
A.M.A., Guides, a rotator cuff injury partial thickness tear with no significant objective abnormal
findings at maximum medical improvement resulted in a class 0 impairment rating for the right
upper extremity. Dr. Snyder concluded that appellant had no right upper extremity impairment
and she reached maximum medical improvement on September 2, 2012.
On May 6, 2013 Dr. Garelick a medical adviser, reviewed Dr. Snyder’s report.14 He
agreed with her determination that appellant had no right upper extremity impairment under the
sixth edition of the A.M.A., Guides and had reached maximum medical improvement on
September 2, 2012.
12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (January 2010). See C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan,
57 ECAB 349 (2006).
13

An employee seeking a schedule award has the burden of proof to establish permanent impairment. See
Denise D. Cason, 48 ECAB 530 (1997).
14

See supra note 12.

4

The Board finds that Dr. Snyder’s report was well rationalized and provided a sufficient
basis for the schedule award determination. Dr. Snyder and Dr. Garelick considered the medical
evidence under the standards of the A.M.A., Guides to find that appellant did not sustain
permanent impairment of the right arm based on her accepted shoulder injury. Therefore,
appellant failed to submit sufficient medical evidence to establish entitlement to a schedule
award for her accepted right shoulder conditions.
On appeal, appellant contended that she was entitled to compensation for her right
shoulder injury and for total disability from March to August 2012. The Board finds that the
weight of the medical evidence does not establish permanent impairment. There is no other
medical evidence of record supporting permanent impairment under the sixth edition of the
A.M.A., Guides. The issue of appellant’s disability for work was not adjudicated in the July 18,
2013 schedule award denial and is not an issue presently before the Board.15
Appellant may request a schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment or increased impairment.
CONCLUSION
The Board finds that appellant has failed to establish that she has any permanent
impairment to the right upper extremity, warranting a schedule award.

15

See supra note 2 and 20 C.F.R. § 501.2(c).

5

ORDER
IT IS HEREBY ORDERED THAT the July 18, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 11, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
TENNESSEE VALLEY AUTHORITY,
Chattanooga, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-0031
Issued: July 11, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 10, 2016 appellant, through counsel, filed a timely appeal of an August 5,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

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.

ISSUE
The issue is whether appellant has met his burden of proof to establish that he developed
Parsonage Turner Syndrome (PTS) or any other claimed medical condition causally related to
the accepted July 29, 2014 insect sting.
FACTUAL HISTORY
On August 28, 2014 appellant, then a 43-year-old property maintenance worker, filed a
traumatic injury claim (Form CA-1) alleging that he was stung on his top lip by a hornet while
cutting vegetation on July 29, 2014 in the performance of duty. He alleged that he had an
allergic reaction to the sting and was hospitalized. Appellant’s supervisor completed the Form
CA-1 and agreed that appellant was stung by an insect while performing job duties. He noted
that appellant received medical treatment and returned to work on July 30, 2014. Appellant’s
supervisor reported that appellant then claimed that he developed a groin infection and back
injuries as a result of the sting. He noted that the employing establishment did not support
appellant’s claim for a groin infection or back injuries as occurring in the performance of duty as
these conditions preexisted the July 29, 2014 employment insect sting.
Appellant submitted a series of notes beginning on August 4, 2014 from Dr. W. David
Bruce, an orthopedic surgeon, diagnosing cervical nerve root pain and left shoulder joint pain.
Dr. Bruce reported on August 4, 2014 that appellant’s lumbar pain and left shoulder pain had
begun a few days before he was stung in the lip by a bee. He noted that appellant was stung by a
wasp, and after the sting, he threw the loppers he was using. Appellant had an allergic reaction
and went to the emergency room. Dr. Bruce found that, since the sting and emergency treatment,
appellant had diffuse unrelenting pain in his shoulder and down his arm. He opined, “I have
never seen [PTS] result from a bite, but I suspect it could. I know that jellyfish can sometimes
cause it. This sounds like [PTS] to me, especially the amount of pain he is actually in.”
In his August 12, 2014 note, Dr. Bruce reviewed appellant’s treatment and failure to
improve. He found, “I cannot rule out [PTS] as a direct result of his sting. It is rare, but it does
happen.” Dr. Bruce also noted that appellant had a pustule in his groin which appeared to be a
staph infection.
Dr. Richard G. Pearce, a Board-certified orthopedic surgeon, examined appellant on
August 22, 2014. He noted that appellant had been stung by a bee on July 29, 2014 and
developed neck and left upper extremity pain with weakness. Dr. Pearce diagnosed possible
brachial plexus neuritis on the left. He noted that appellant’s clinical examination appeared to be
out of proportion to his cervical anatomic findings. Dr. Pearce found that the diffuse motor
weakness in appellant’s left arm was puzzling.
Appellant submitted medical records from Dr. David Lowry, an osteopath, noting that he
developed left upper extremity pain with radiation down his arm following an allergic reaction to
a bee sting on July 29, 2014. Dr. Lowry diagnosed cervical nerve root pain, shoulder joint pain,
degeneration of cervical intervertebral disc, neck pain, and displacement of cervical
intervertebral disc without myelopathy on August 26, 2014.

2

In a report dated August 27, 2014, Dr. Tareck A. Kadrie, a Board-certified neurologist,
examined appellant due to severe left upper extremity numbness, pain, tingling, and weakness.
He indicated that appellant’s condition began the day after he was stung by an insect. Dr. Kadrie
found that appellant had left upper extremity weakness and pain of “unclear etiology.” He noted
that appellant’s symptoms suggested a diffuse left cervical polyradiculopathy such as left
brachial plexopathy of idiopathic origin, PTS. Dr. Kadrie noted that there were cases of
encephalon myeloradiculopathy associated with bee stings.
In a letter dated September 18, 2014, OWCP requested additional factual and medical
evidence in support of appellant’s claim. It allowed 30 days for a response. Appellant submitted
additional medical evidence from Dr. Eugene H. Ryan, an internist, dated August 1, 2014.
Dr. Ryan examined appellant due to left neck and thoracic muscle spasm and noted that appellant
had been stung by a hornet on July 29, 2014.
In a note dated September 18, 2014, Dr. Bruce again opined that appellant’s condition
was PTS. He noted, “I think it is direct from the stings [appellant] got.” Dr. Bruce gave the
differential diagnosis of PTS or brachial plexus disorder.
By decision dated October 23, 2014, OWCP denied appellant’s claim finding that the
medical evidence was insufficient to establish a causal relationship between his accepted insect
sting on July 29, 2014 and any other medical condition.
Dr. Bruce completed a report on November 18, 2014 and described appellant’s history of
insect sting and initial treatment. He noted that appellant reported numbness and tingling, which
had been nonstop since the sting. Dr. Bruce reported that he requested electrodiagnostic testing
to assist with the possible diagnosis of PTS. He noted that there was no standardized test for
PTS and that it was a diagnosis of exclusion. Dr. Bruce reported that appellant made progress
with nerve blocks which indicated that the original diagnosis of PTS developed from the sting
was correct. He diagnosed PTS secondary to bee sting on July 29, 2014. Dr. Bruce again
explained that to reach a diagnosis of PTS he had to rule out other possible diagnoses. He noted,
“Prior to the sting on July 29th, [appellant] did not have a history of numbness and tingling in the
upper extremity. The physical findings on his initial visit on August 4th remained consistent if
not worse on each subsequent visit until he received the nerve blocks…. After receiving the
nerve blocks I saw some improvement….” Dr. Bruce again opined that the wasp sting on
July 29, 2014 was the origin of appellant’s condition.
Appellant, through counsel, requested an oral hearing from OWCP’s Branch of Hearings
and Review on November 21, 2014. He submitted his emergency room records from July 29,
2014, which indicated that he sustained multiple stings to his face with swelling of his lip and
throat.
In a note dated December 3, 2014, Dr. Bruce opined that appellant developed PTS and
that the nerve blocks were working well for him. He found that there was no doubt that PTS was
the correct diagnosis.

3

Dr. Gregory N. Ball, a Board-certified anesthesiologist, examined appellant on
December 11, 2014 and diagnosed reflex sympathetic dystrophy of the upper limb, brachial
plexus leases, and other symptoms affecting the cervical region.
Dr. Bruce completed a note on November 1, 2014 and diagnosed PTS or brachial plexitis
from the wasp sting. He opined that appellant’s testing was required to rule out other causes of
his conditions. In a note dated January 7, 2015, Dr. Bruce again diagnosed PTS from the workrelated stings. He opined that appellant’s condition fit the syndrome and the “way it happened.”
Appellant returned to regular duty on March 9, 2015. In a note dated June 4, 2015,
Dr. Bruce diagnosed PTS caused by a sting that occurred at work. He found that appellant had
reached maximum medical improvement and provided an impairment rating.
Appellant testified at the oral hearing on June 19, 2015 before a representative of
OWCP’s Branch of Hearings and Review. He indicated that while at work on July 29, 2014 he
was stung on the upper lip by what he believed was a hornet, that his lip began to swell, that his
throat began closing, and that he could not breathe. Appellant received emergency attention for
his reaction to the sting. He testified that his left shoulder began hurting the afternoon of July 29,
2014 following the stings. Appellant reported for work the next day, but did not work an entire
shift because his shoulder was hurting. He sought medical treatment for his left shoulder on
August 4, 2014 with Dr. Bruce. OWCP’s hearing representative allowed appellant an additional
30 days to submit medical evidence. No additional evidence was received.
By decision dated August 11, 2015, OWCP’s hearing representative reviewed the
medical evidence and found that Dr. Bruce had not explained how an insect bite could cause
PTS. He further noted that Dr. Bruce had not explained what test results confirmed the diagnosis
of PTS. The hearing representative concluded that Dr. Bruce had not provided medical rationale
causing his opinions to be of reduced probative value. He found that appellant had not met his
burden of proof to establish an injury causally related to his employment.
On January 28, 2016 counsel requested reconsideration from the August 11, 2015
decision. In support of this request, he submitted an additional medical note from Dr. Bruce.
Dr. Bruce completed a report on January 12, 2016 and diagnosed PTS. He opined that
appellant’s insect bites resulted in this diagnosis. Dr. Bruce concluded that as appellant’s insect
bites were work related and caused the PTS, then PTS was directly work related. He noted “The
literature supports this in that other creatures and bites have resulted in [PTS] and this has been
confirmed by neurologist.”
By decision dated August 5, 2016, OWCP denied modification of its prior decision. It
found that appellant had not submitted medical evidence establishing a causal relationship
between his accepted employment-related insect stings and his diagnosed condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA; that the claim was filed within the applicable

4

time limitation; that an injury was sustained while in the performance of duty as alleged; and that
any disability and/or specific condition for which compensation is claimed are causally related to
the employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of proof to demonstrate the occurrence of an injury at the time, place, and in the manner
alleged, by a preponderance of the reliable, probative, and substantial evidence.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.6 An employee may establish that the employment
incident occurred as alleged, but fail to show that his disability and/or condition relates to the
employment incident.7
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he
developed PTS or any other diagnosed medical condition as a result of employment-related
insect sting.
On July 29, 2014 appellant was stung on the top lip by an insect while performing his
federal job duties. This aspect of his claim is not in dispute. Appellant testified that, following
his hospitalization and treatment for allergic reaction to the insect sting, he developed left
shoulder and upper extremity pain. He initially sought treatment for this condition on August 4,
2014 from Dr. Bruce. Beginning on August 4, 2014, Dr. Bruce tentatively diagnosed PTS as a
result of the insect sting. He continued to support this diagnosis and relationship on
November 1, 2014 and January 7, 2015. In his August 27, 2014 note, Dr. Kadrie also suggested
that appellant’s condition could be PTS or left brachial plexopathy of idiopathic origin. These
initial reports were insufficient to meet appellant’s burden of proof as neither Dr. Kadrie nor
Dr. Bruce provided a firm diagnosis.8 The remainder of appellant’s physicians, Drs. Pearce,
Lowry, Ryan, and Ball, provided alternative diagnoses and did not suggest that appellant’s left
shoulder and upper extremity conditions were due to his employment injury of July 29, 2014. As

3

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

4

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

5

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

6

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

7

Id.

8

See Val D. Wynn, 40 ECAB 666 (1989); A.R., Docket No. 16-1416 (issued April 10, 2017) (medical evidence
which does not provide a firm diagnosis is insufficient to establish a traumatic injury claim).

5

these reports do not provide an opinion on the cause of appellant’s left shoulder and upper
extremity conditions, these opinions are insufficient to establish causal relationship.9
Dr. Bruce submitted a series of notes confirming his opinion that appellant developed
PTS as a result of his accepted insect stings on July 29, 2014. Following his initial examination
on August 4, 2014, he repeated his diagnosis of PTS and his conclusions on September 18, 2014
noting, “I think it is direct from the stings [appellant] got.” This report goes further in supporting
the diagnosis of PTS as work related. Dr. Bruce was clear in his diagnosis and provided a
definite opinion on causal relationship. On November 18, 2014 Dr. Bruce explained that he
requested electrodiagnostic testing to assist with the possible diagnosis of PTS. He noted that, as
there was no standardized test for PTS, it must be diagnosed through the exclusion of other
conditions. Dr. Bruce reported that appellant made progress with nerve blocks which indicated
that the original diagnosis of PTS developed from the sting was correct. This report offers
support for appellant’s diagnosis of PTS from his July 29, 2014 employment injury, but does not
contain the necessary medical reasoning necessary to meet his burden of proof to establish that
any of the diagnosed medical conditions are causally related to the accepted insect sting. A mere
conclusion without the necessary rationale explaining how and why Dr. Bruce believes that an
incident resulted in a diagnosed condition is not sufficient to meet appellant’s burden of proof.10
Dr. Bruce did not explain why a positive response to nerve blocks would support his diagnosis of
PTS. He also opined that there was a temporal relationship between appellant’s stings on
July 29, 2014 and onset of his symptoms of numbness and tingling in the upper extremity. The
Board has held that medical reasoning which relies solely on the temporal relationship between a
condition and employment is insufficient to meet appellant’s burden of proof. Neither the fact
that the condition became apparent during a period of employment nor the belief that the
employment cause or aggravated a condition is sufficient to establish causal relationship.11
In a note dated January 12, 2016, Dr. Bruce attributed appellant’s diagnosis of PTS to the
July 29, 2014 insect bite. He noted, “The literature supports this in that other creatures and bites
have resulted in [PTS] and this has been confirmed by neurologist.” Dr. Bruce did not provide
specific citations to medical publications and did not explain how and why he reached the
conclusion that appellant’s PTS was related to the July 29, 2014 insect bite. The Board has held
that excerpts of medical publications have probative value only to the extent that the material is
interpreted and cited by a physician rendering an opinion on the causal relationship between a
condition and specified employment injury.12 Furthermore, his reliance on Dr. Kadrie’s findings
are not supportive of appellant’s claim, as Dr. Kadrie indicated that appellant’s condition could
be left brachial plexopathy of idiopathic origin.
As there is no medical evidence in the record clearly explaining how or why appellant
could have developed PTS or any other diagnosed condition causally related to an insect sting
9

D.R., Docket No. 16-0528 (issued August 24, 2016).

10

Id.

11

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

12

Harlan L. Soeten, 38 ECAB 566-67 (1987).

6

sustained in the performance of duty, he has not submitted the necessary medical opinion
evidence to meet his burden of proof to establish an injury due to his July 29, 2014 insect sting.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
developed PTS or any other claimed medical condition causally related to the accepted July 29,
2014 insect sting.
ORDER
IT IS HEREBY ORDERED THAT the August 5, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 11, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 16-0984
Issued: November 17, 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 April 8, 2016 appellant filed a timely appeal of a January 28, 2016 merit decision of
the Office of Workers’ Compensation Programs1 (OWCP). Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.3

1

Appellant filed a timely request for oral argument, pursuant to 20 C.F.R. § 501.5(b). After exercising its
discretion pursuant to 20 C.F.R. § 501.5(a) the Board by a July 27, 2016 order, denied appellant’s request because it
could adequately address appellant’s contentions based on a review of the case record. Order Denying Request for
Oral Argument, Docket No. 16-0984 (issued July 27, 2016).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence after OWCP rendered its January 28, 2016
decision. The Board’s jurisdiction, however, is limited to reviewing the evidence that was before OWCP at the time
of its final decision. Therefore the Board lacks jurisdiction to review this additional evidence on appeal. 20 C.F.R.
§ 501.2(c)(1).

ISSUE
The issue is whether OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits effective January 28, 2016.
FACTUAL HISTORY
On March 5, 2011 appellant, then a 28-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained muscle spasms after lifting the back gate of a mail
delivery vehicle on that date. He sought treatment at the emergency room and received a
diagnosis of lumbosacral strain. Appellant returned to light-duty work on March 10, 2011.
Appellant filed a claim for a recurrence of disability (Form CA-2a) on April 30, 2011
alleging that on that date he stopped work due to continuing back pain. OWCP accepted his
claim for lumbar sprain on May 5, 2011 noting that his claim had been initially handled to allow
for payment of a limited amount of medical expenses. Appellant returned to light-duty work on
July 28, 2011.
On October 24, 2011 Dr. Nancy V. Rodway, a physician Board-certified in occupational
medicine, examined appellant and reviewed the results of his magnetic resonance imaging (MRI)
scan. She diagnosed thoracic strain and T8-9 disc herniation which she attributed to appellant’s
lifting incident at work. Dr. Rodway opined that appellant was partially disabled. She provided
work restrictions on November 14, 2011. On November 21, 2011 Dr. Rodway noted that she
had first examined appellant on May 6, 2011 due to complaints of left-sided back pain caused by
lifting up a rear door on his mail truck. Appellant exhibited spasm to his left rhomboid and left
piriformis. Dr. Rodway diagnosed lumbar and thoracic sprain and returned appellant to full duty
on July 4, 2011.
OWCP authorized wage-loss compensation benefits from June 4 through 30, 2011 on
December 15, 2011. The employing establishment removed appellant from employment,
effective December 3, 2011. On December 29, 2011 OWCP’s medical adviser opined that
appellant’s T8-9 disc herniation was causally related to his March 5, 2011 lifting incident. He
recommended that appellant’s claim be expanded to include a herniated disc at T8-9. By
decision dated January 12, 2012, OWCP accepted thoracic herniated disc at T8-9 as due to
appellant’s March 5, 2011 employment incident.
Dr. Rodway completed a report on January 11, 2012 and continued to support appellant’s
work restrictions including lifting no more than 10 pounds, no climbing, twisting, pulling, or
pushing. She indicated that appellant could drive a vehicle for one hour a day. Dr. Rodway
prohibited appellant from performing a mounted route.
In a letter dated January 23, 2012, OWCP requested that the employing establishment
provide the reasons for appellant’s termination to determine whether he was eligible for further
wage-loss compensation payments through OWCP. The employing establishment submitted a
copy of a letter of warning dated March 19, 2011 that it had issued to appellant for unsatisfactory
work performance, and failure to work in a safe manner. In a notification of personnel action

2

(Form SF-50) dated December 3, 2011, appellant’s last day in pay status was December 3, 2011
due to termination of his appointment.
OWCP entered appellant on the periodic rolls on March 8, 2012. Dr. Emad Mikhail, a
physician Board-certified in pain medicine, provided appellant with a series of thoracic epidural
steroid injections. Appellant underwent an additional thoracic magnetic resonance imaging
(MRI) scan on June 25, 2013 which again demonstrated stable disc herniation at T9-10. The
radiologist noted that the prior MRI scan identified the disc herniation at T8-9, but did not
include the odontoid process, making it likely that the numbering of T8-9 was actually T9-10.
Appellant also underwent a lumbar MRI scan on the same date which demonstrated an
unremarkable lumbar spine with mild bilateral foraminal narrowing at L4-5. On July 15, 2013
Dr. Rodway diagnosed thoracic strain with thoracic disc bulge. She continued to opine that
appellant was partially disabled.
Dr. Rodway referred appellant for a functional capacity evaluation (FCE) on
February 7, 2014. No response was received. The evaluation was found to be conditionally
valid, as the results represented the level that appellant perceived was his capacity, even though
he could physically do more. Appellant was found capable of medium work, eight hours a day,
sitting eight hours a day, standing four hours a day, and walking six to seven hours a day. He
could lift above the shoulders 6 pounds frequently and 17 pounds occasionally, he could lift from
the waist 41 pounds occasionally and 19 pounds frequently, and he could lift from the floor 30
pounds occasionally. Appellant was able to push 44 pounds occasionally and pull 39 pounds
occasionally. He could carry 62 pounds on both the right and left frequently, and carry 75
pounds on the right and 70 pounds on the left occasionally. On March 7, 2014 Dr. Rodway
returned appellant to work on March 7, 2014 with restrictions in keeping with the FCE.
In a report dated July 11, 2014, Dr. Sami Moufawad, a Board-certified physiatrist and
Board-certified in pain management, noted appellant’s history of injury on March 5, 2011, his
work stoppage, and his medical treatment. Appellant reported lower back pain with no radiation.
On examination Dr. Moufawad found positive skin roll test in the lower lumbar paraspinals with
a few trigger points scattered in the lower lumbar area. Appellant exhibited lumbar range of
motion of 40 degrees of forward flexion and 20 degrees of extension. He had minimal reversal
of the lumbar lordosis with tight hip extensors bilaterally. Neurological examination of
appellant’s lower limbs demonstrated pain inhibition at the hip girdle, hip flexors, and abductors
bilateral with negative straight leg raising. Dr. Moufawad diagnosed thoracic disc displacement,
lumbosacral sprain, and lumbar sprain. He reviewed appellant’s lumbar and thoracic MRI scans
on August 15, 2014 and again diagnosed thoracic disc displacement, lumbosacral sprain, and
lumbar sprain.
On September 11, 2015 OWCP requested a supplemental report from Dr. Rodway. It
referred appellant for a second opinion evaluation on October 1, 2015 with Dr. Richard
Deerhake, a Board-certified orthopedic surgeon. In a report dated November 11, 2015,
Dr. Deerhake reviewed the statement of accepted facts and described appellant’s history of
injury. He noted appellant’s accepted conditions and medical treatment. Dr. Deerhake
performed a physical examination and found that appellant walked with a normal gait pattern,
walked on his heels and toes without difficulty, and was able to bend forward to touch his toes.
Appellant could also perform a full squat. Dr. Deerhake found no paraspinal spasms or list, and

3

normal back posture. He noted that appellant’s neurologic examination was normal in his lower
extremities. Dr. Deerhake determined that appellant’s T8-9 disc herniation was no longer active
or present to any significant degree and that appellant had normal functional abilities. He
recommended a new FCE to determine current work restrictions. Dr. Deerhake noted that
appellant had minimal residual symptoms related to his work injury, but no significant disability.
He opined, “It would be my opinion there are not work-related conditions that are still present
and active in this claimant. Appellant has reached maximum medical improvement in my
opinion and for him to get back to work an FCE would be helpful in an effort to try to define if
he has any limitations in terms of his activities.” Dr. Deerhake completed a work capacity
evaluation indicating that appellant had no restrictions, but that he needed an FCE to determine
his deficiencies.
On December 17, 2015 OWCP provided appellant with a notice of proposed termination
of his medical benefits and wage-loss compensation based on Dr. Deerhake’s November 11,
2015 second opinion report. It allowed appellant 30 days for a response. No further response
was received.
By decision dated January 28, 2016, OWCP terminated appellant’s medical benefits and
wage-loss compensation effective that date. It found that Dr. Deerhake’s November 11, 2015
report was entitled to the weight of the medical evidence and established that appellant had no
disability or medical residuals as a result of his accepted employment injury.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.4 After it has
determined that an employee has disability causally related to his or her federal employment,
OWCP may not terminate compensation without establishing that the disability has ceased or
that it is no longer related to the employment.5 Furthermore, the right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability.6 To terminate
authorization for medical treatment, OWCP must establish that appellant no longer has residuals
of an employment-related condition which require further medical treatment.7
ANALYSIS
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
medical benefits and wage-loss compensation effective January 28, 2016.
OWCP accepted appellant’s claim for T8-9 disc herniation, as well as lumbar sprain.
Appellant’s attending physicians, Drs. Rodway, Mikhail, and Moufawad supported his continued
4

Mohamed Yunis, 42 ECAB 325, 334 (1991).

5

Id.

6

Furman G. Peake, 41 ECAB 361, 364 (1990).

7

Id.

4

medical residuals and partial disability for work through August 15, 2014. OWCP then referred
appellant for a second opinion evaluation with Dr. Deerhake on November 11, 2015.
Dr. Deerhake provided an accurate history of injury and reviewed appellant’s medical
records. He found that appellant’s thoracic disc herniation was no longer active or present “to
any significant degree.” Dr. Deerhake did not discuss or address whether appellant continued to
experience residuals of his accepted lumbar sprain. He did not respond to OWCP’s request for a
diagnosis, but opined that appellant’s current residual symptoms were related to his work injury.
Dr. Deerhake did not respond to OWCP’s queries regarding the extent of appellant’s disability
for work, but indicated “there are not work-related conditions still present.” However, he further
indicated that an FCE would be helpful to define if appellant had any limitations in terms of his
activities. Finally, on the work capacity evaluation, Dr. Deerhake indicated that appellant had no
restrictions, but again recommended an FCE to determine his deficiencies.
The Board finds that Dr. Deerhake’s report is internally inconsistent and insufficient to
establish that appellant has no medical residuals or disability due to his March 5, 2011 lifting
incident. While Dr. Deerhake indicated that appellant’s accepted thoracic herniated disc was no
longer active, he qualified this statement by adding “to any significant degree.” He further
opined that appellant’s current residual symptoms were related to his work injury. Dr. Deerhake
indicated both that appellant required a functional capacity evaluation to determine his work
restrictions and opined that he had no disability from work. As there is no clear, well
rationalized medical opinion evidence establishing that appellant’s accepted conditions had
resolved without residuals requiring further medical treatment and that appellant had no
disability for work due to his accepted conditions, OWCP has not met its burden of proof to
terminate appellant’s medical benefits and wage-loss compensation benefits effective
January 28, 2016.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s
medical benefits and wage-loss compensation effective January 28, 2016.

5

ORDER
IT IS HEREBY ORDERED THAT the January 28, 2016 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: November 17, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.K., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, Miami, FL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-1833
Issued: March 10, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 31, 2013 appellant filed a timely appeal from a July 29, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP) concerning his pay rate. 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 issue.
ISSUE
The issue is whether OWCP properly computed appellant’s pay rate for compensation
purposes beginning July 13, 2013.
On appeal appellant contends that OWCP erred in the date his pay rate was calculated.
He argues that OWCP should have used December 4, 2012, the date he was separated from the
employing establishment in accordance with a settlement agreement.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a July 11, 2006 decision, the Board
reversed a January 11, 2005 OWCP decision,2 which found that appellant’s earnings as an
insurance investigator fairly and reasonably represented his wage-earning capacity.3 The Board
found that OWCP improperly relied upon the opinion of Dr. Patrick J. Barry as he was not the
physician selected as the impartial specialist. The Board found that there was an unresolved
conflict in medical opinion between Dr. Michael A. Abrahams, an attending Board-certified
orthopedic surgeon, and Dr. D. Barry Lotman, a second opinion Board-certified orthopedic
surgeon, with regard to appellant’s work restrictions and continuing residuals. On July 25, 2007
the Board issued an order dismissing appellant’s appeal.4 The Board found that it lacked
jurisdiction as OWCP had not issued an adverse final decision within a year of appellant’s
November 26, 2006 appeal. In an order dated January 30, 2008, the Board dismissed appellant’s
appeal.5 The Board found that OWCP had not issued a final decision on the reduction of his
wage-loss compensation. In a January 14, 2009 decision, the Board reversed a May 20, 2007
OWCP decision reducing his compensation based upon a constructed loss of wage-earning
capacity determination. On December 21, 2012 the Board reversed an April 23, 2012 OWCP
loss of wage-earning capacity decision.6 The Board found that OWCP failed to fully consider all
the criteria for making a retroactive wage-earning capacity decision when it found appellant’s
actual earnings as an attorney represented his wage-earning capacity. The facts of the case as set
forth in the Board’s prior decisions and orders are incorporated by reference.
On April 25, 2012 OWCP received a copy of an April 18, 2012 settlement agreement
between appellant and the employing establishment. Under the settlement agreement, the
employing establishment would retroactively reinstate appellant to his position of special agent
back to 2004 which included back pay, salary increases, cost-of-living increases, updating his
payroll account for retirement purposes and any benefits due him.
On April 25, 2012 appellant elected to receive benefits under the Office of Personnel
Management (OPM) effective July 23, 2011.

2

Docket No. 06-503 (issued July 11, 2006).

3

On April 27, 2001 appellant, a 40-year-old special agent, sustained injury to his right knee, left wrist, right ankle
and lower back due to an automobile accident. OWCP accepted the claim for right knee open wound, lumbar
sprain/strain, right ankle strain/sprain left wrist strain/sprain, closed fracture of the right metatarsal and right
chondromalacia of the patella. It authorized right knee arthroscopic surgery, which was performed on November 12,
2002, and right ankle arthroscopic surgery, which was performed on January 14, 2003. By letter dated January 27,
2003, OWCP placed appellant on the periodic rolls. On June 4, 2003 appellant had metatarsophalangeal arthroscopy
surgery. On March 12, 2012 OWCP accepted right hip trochanteric bursitis, left knee chondromalacia, left ankle
synovitis, left foot plantar fasciitis and left heel spur as consequential injuries.
4

Docket No. 07-407 (issued July 25, 2007).

5

Docket No. 07-1734 (issued January 30, 2008).

6

Docket No. 12-1157 (issued December 21, 2012).

2

By letter dated May 31, 2012, OPM restored appellant’s disability annuity retroactively
to March 14, 2010, the date appellant elected OPM benefits in lieu of FECA benefits.
On October 3, 2012 appellant elected to receive benefits under FECA effective
April 6, 2012. He referenced the April 18, 2012 settlement agreement with the employing
establishment. Appellant submitted corrected SF-50s provided by the employing establishment
for the period May 15, 2005 through May 8, 2011.
In a letter dated October 25, 2012, appellant noted that he returned to federal service
effective September 9, 2012. The employing establishment informed him that he had been
placed in an OWCP leave-without-pay (LWOP) status.
On January 29, 2013 OWCP received a December 4, 2012 SF-50 showing that appellant
resigned from the employing establishment effective that day. Appellant’s adjusted based salary
was listed as $103,889.00.
On March 19, 2013 appellant elected to receive benefits under FECA effective
March 13, 2010 “or the earliest date possible.”
In a March 19, 2013 letter, appellant contended that his pay rate should be based on
GS 13-7 level with an annual compensation of $129,785.00. He stated that as part of his
settlement agreement the employing establishment would adjust his payroll records so that there
was no break in service, that he would be given back pay and then placed in an LWOP/OWCP
status.
In a March 26, 2013 memorandum of conference, appellant indicated his intent to elect
and receive compensation benefits under FECA rather than under OPM. He argued that OWCP
should compute his pay rate based upon the salary noted in the December 4, 2012 SF-50, which
was the date he was removed from the employing establishment. Appellant noted that based
upon the settlement agreement with the employing establishment he was paid back wages and
effectively restored to their rolls until December 4, 2012, when he resigned as the employing
establishment could not accommodate his work restrictions. He noted that he had been issued
retroactive promotions which he acknowledged occurred following the 2002 pay rate currently
on file with OWCP.
In a letter dated March 31, 2013, appellant contended that his resignation effective
December 4, 2012 should be considered as a recurrence of disability and, thus, his pay rate
should be based on the salary he was earning as of that date. In support of this argument, he
noted that he was restored to full duty retroactive to his 2004 removal pursuant to the settlement
agreement signed by the employing establishment and him. Appellant argued that the employing
establishment withdrew a light-duty position on or about December 4, 2012 based on its
determination that he could not perform the full duties of a special agent.
On July 23, 2013 OWCP placed appellant on the periodic rolls for temporary total
disability. It determined his weekly pay rate as $1,605.89, which was based on a November 11,
2002 recurrence date.

3

In a letter dated July 26, 2013, appellant contended that his weekly pay rate should be
$2,495.86 not $1,605.89. He noted that an SF-50 form showed his annual salary to be
$129,785.00 as of the date he was removed from employing establishment’s rolls.
By decision dated July 29, 2013, OWCP found that it properly based appellant’s wageloss compensation on the $1,605.89 per week earnings in effect at the time of his recurrence of
disability on November 11, 2002.
LEGAL PRECEDENT
Section 8101(4) of FECA7 defines monthly pay for purposes of computing compensation
benefits as follows: “the monthly pay at the time of injury or the monthly pay at the time
disability begins or the monthly pay at the time compensable disability recurs, if the recurrence
begins more than six months after the injured employee resumes regular full-time employment
with the United States, whichever is greater.8 In an occupational disease claim, the date of injury
is the date of last exposure to the employment factors which caused or aggravated the claimed
condition.”9
ANALYSIS
OWCP accepted the claim for right knee open wound, lumbar sprain/strain, right ankle
strain/sprain and left wrist strain/sprain, which was subsequently expanded to include closed
fracture of the right metatarsal, right chondromalacia of the patella, right hip trochanteric
bursitis, left knee chondromalacia, left ankle synovitis, left foot plantar fasciitis and left heel spur
as consequential injuries. It based appellant’s pay rate on his salary as of November 11, 2002,
the date of his recurrence of disability. The issue on appeal is whether appellant is entitled to a
pay rate based on his salary as of December 4, 2012, the date he resigned from the employing
establishment.
The Board finds that appellant’s rate of pay should be calculated as of November 11,
2002, the date of his last recurrence. As noted above, monthly pay is determined with reference
to the greater of the monthly pay at the time of injury, at the time disability begins, or at the time
compensable disability recurs, if the recurrence begins more than six months after the employee
resumes regular federal employment on a full-time basis.10 Appellant’s weekly pay was less
than $1,605.89 on the date of injury, April 27, 2001. While he was removed from the employing
establishment, effective December 4, 2012, with a weekly pay rate of $2,495.86, appellant had
not returned to regular full-time work. The record establishes that pursuant to a settlement
7

5 U.S.C. §§ 8101-8193.

8

5 U.S.C. § 8101(4); see J.K., Docket No. 08-1148 (issued March 13, 2009); E.C., 59 ECAB 397 (2008); Dale
Mackelprang, 57 ECAB 168 (2005).
9

M.B., Docket No. 09-176 (issued September 23, 2009); E.G., 59 ECAB 599 (2008); Patricia K. Cummings, 53
ECAB 623, 626 (2002).
10

5 U.S.C. § 8101(4); see Dale Mackelprang, supra note 8.

4

agreement the employing establishment paid appellant back wages from 2004 and placed him on
its rolls effective September 9, 2012 pending a determination on his ability to perform the duties
of his position. On December 4, 2012 appellant resigned from the employing establishment. At
no time was he working for the employing establishment, but was placed in a LWOP status. For
this reason, the pay rate as of December 4, 2012 does not factor into the determination of
appellant’s pay rate for compensation purposes. Thus, OWCP properly found November 11,
2002 was the proper date for computation of his pay rate.
On appeal appellant contends that OWCP used an incorrect pay rate. He argues that
OWCP should have used December 4, 2012 the date he was separated from the employing
establishment in accordance with a settlement agreement rather than the November 11, 2002
recurrence of disability date. Appellant contends that the December 4, 2012 date constitutes a
recurrence of disability as the employing establishment withdrew light-duty work as it could not
accommodate his restrictions. The evidence of record establishes that appellant did not even
return to work at the employing establishment. He was placed in an LWOP status by the
employing establishment until December 4, 2012. As there is no evidence that he resumed
regular full-time work with the employing establishment, as required under section 8101(4), he is
not entitled to the pay rate noted on the December 4, 2012 SF-50.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP paid appellant compensation based on the correct rate of
pay, which was the rate of pay at the time of his recurrence of compensable disability on
November 11, 2002.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 29, 2013 is affirmed.
Issued: March 10, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6