United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, OR, Employer
__________________________________________

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Docket No. 13-1000
Issued: September 16, 2013

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

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 4, 2013 appellant filed a timely appeal from a September 10, 2012 Office of
Workers’ Compensation Programs’ (OWCP) merit decision which denied her claim. 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 the case.
ISSUE
The issue on appeal is whether appellant met her burden of proof to establish that she
developed a low back condition while in the performance of duty.
FACTUAL HISTORY
On January 8, 2011 appellant, then a 43-year-old clerk filed an occupational disease
claim alleging that she developed a herniated disc after performing repetitive walking, standing,
pushing, sorting, lifting and bagging parcels of mail at work. She became aware of her condition
1

5 U.S.C. §§ 8101-8193.

on November 30, 2010 and first realized it was causally related to her work on
December 20, 1010. Appellant stopped work on November 30, 2010.
Appellant was treated by Dr. Tori Jones, a Board-certified orthopedic surgeon. In reports
dated December 6 and 20, 2010, Dr. Jones noted treating appellant for a nonwork-related
medical illness and that she was totally disabled. Appellant was treated by Dr. John P. Seymour,
a Board-certified orthopedic surgeon, on January 14, 2011. Dr. Seymour diagnosed a disorder of
the lumbar intervertebral disc and right lumbar radiculopathy and advised that appellant was
disabled from January 14 to February 4, 2011.
In a letter dated February 9, 2011, OWCP advised appellant of the factual and medical
evidence needed to establish her claim and requested that she submit such evidence.
A December 6, 2010 x-ray of the lumbar spine revealed a minimal scoliotic curvature. A
December 16, 2010 magnetic resonance imaging (MRI) scan of the lumbar spine revealed
scoliosis and multilevel degenerative changes including an extruded disc fragment at L2-3 with
mass effect on the right L2 nerve root and foraminal and lateral disc bulge at L3-4 and L4-5
contacting the L3 and L4 roots. In a December 20, 2010 report, Dr. Jones diagnosed lumbar
radiculopathy, headache and disorder of the lumbar intervertebral disc. She indicated that
appellant’s condition seemed to have come on from a work-related injury, but could not confirm.
Appellant was treated by Dr. Seymour on December 23, 2010 and February 4, 2011 for low back
pain. She reported working as a clerk at the employing establishment for 22 years. On
November 13, 2010 appellant performed heavy lifting and had back pain. Dr. Seymour reported
a prior left lower back injury some 10 to 15 years earlier. He diagnosed right L2 lumbar disc and
advised that appellant was totally disabled. In workers’ compensation forms dated December 23,
2010 to February 17, 2011, Dr. Seymour diagnosed lumbar intervertebral disc disorder at L2-3
and lumbar radiculopathy from an November 30, 2010 injury and advised that appellant was
disabled. On February 17, 2011 he advised that appellant was lifting sacks and pushing bins
when the injury occurred. Dr. Seymour diagnosed right L2-3 herniated disc and opined that
appellant was totally disabled.
In a January 6, 2011 report, Dr. Carrie Shulman, a Board-certified neurologist, treated
appellant for low back pain and leg pain caused by an occupational injury. She noted intact
motor and sensory examination and reflexes and diagnosed disorder of the lumbar intervertebral
disc and lumbar radiculopathy. In a February 9, 2011 report, Dr. Scott Young, a Board-certified
physiatrist, treated appellant for low back pain. He noted that appellant’s work involved
repetitive lifting of trays often weighing 40 pounds and pushing heavy carts. Dr. Young advised
that appellant had a history of low back strain 15 years prior and was thereafter symptom free.
On November 30, 2010 appellant reported a gradual onset of low back pain through the workday
with repetitive lifting although she could not recollect one specific incident and the next day she
experienced pain and tingling to the anterior right thigh. Dr. Young noted diffuse midline and
paravertebral tenderness to the lumbar spine, no atrophy to the lower extremities, diminished
sensation to the anterior right thigh and normal motor function. He diagnosed extruded disc
fragment at L2-3 with ongoing pain and recommended epidural steroid injections and possible
surgery. Dr. Young noted appellant’s history was of onset of pain with fairly strenuous activities
on the job and noted that she had a discrete lesion on the MRI scan and opined that this was a
work-related condition. On February 18, 2011 appellant was treated by Dr. Suzanne Zarling, a

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Board-certified internist, for low back pain which began after lifting and sorting parcels at the
employing establishment on November 30, 2010. She diagnosed lumbar radiculopathy and
recommended steroid injections which were performed on March 4 and April 8, 2011.
In an undated statement, appellant advised that on November 30, 2010 she worked in
express operation where she dumped mail into a hamper and put express mail weighing from 30
to 50 pounds into sacks. She also worked in the horseshoe operation where she sorted priority
mail sacks weighing 30 to 50 pounds and priority flat rate boxes and regular flat rate boxes
which weighed up to 70 pounds. Appellant reported having back pain on November 30, 2010
but she kept working.
On March 10, 2011 OWCP requested that the employing establishment address the
weight of items appellant was required to move, the tasks performed and precautions taken to
minimize activities. In a March 15, 2011 statement, the employing establishment provided a
report of appellant’s work duties and noted requirements of lifting and carrying from 5 to 70
pounds intermittently with the average weight being several ounces to 20 pounds and
occasionally weighing 35 to 40 pounds, but never above 40 pounds and sacks and pouches of
priority mail weighing 10 pounds to 50 pounds occasionally.
In an April 22, 2011 decision, OWCP denied appellant’s claim finding that the medical
evidence was not sufficient to establish that her back condition was caused by employment
factors.
On May 17, 2011 appellant requested a review of the written record. She submitted a
December 6, 2010 lumbar spine x-ray and a December 16, 2010 MRI scan of the lumbar spine as
well as reports from Dr. Jones all previously of record.
In a December 20, 2010 report of work ability, Dr. Jones noted treating appellant for a
medical illness which was undetermined as to whether it was work related. On November 30,
2010 Dr. Richard Polin, a Board-certified neurologist, diagnosed L2-3 radicular pain and
disorder of the lumbar intervertebral disc at L2-3. On April 8 and May 27, 2011 Dr. Zarling
performed medial branch blocks. Appellant was treated by Dr. Seymour from April 22 to
June 10, 2011. Dr. Seymour noted that appellant worked at the employing establishment and
performed heavy lifting. He diagnosed history of right L2-3 disc herniation with L3
radiculopathy, resolved. Dr. Seymour noted that appellant had improvement of her lumbar
degenerative disc disease with medial branch blocks. In a May 12, 2011 report, he noted that
appellant’s work involved repetitive lifting of trays often weighing 40 pounds and pushing heavy
carts. Dr. Seymour noted that appellant had a history of low back strain about 15 years earlier
with some referred symptoms to the left leg for a year. He noted that on November 30, 2010
appellant noted a gradual onset of low back pain through the workday with repetitive lifting
though she could not recollect one specific incident. Dr. Seymour noted appellant’s history of an
onset of pain with fairly strenuous activities on the job with discrete lesion on MRI scan and
opined that this was a work-related condition.
In a decision dated August 18, 2011, OWCP affirmed the decision dated April 22, 2011.

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On July 16, 2012 appellant requested reconsideration and submitted a report from
Dr. Young previously of record.
In a decision dated September 10, 2012, OWCP denied modification of the decision
dated August 18, 2011.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing 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 time limitation
of FECA, that an injury was sustained 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. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.3 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability, claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.4
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.6

2

Gary J. Watling, 52 ECAB 357 (2001).

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Id.

5

Leslie C. Moore, 52 ECAB 132 (2000).

6

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

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ANALYSIS
Appellant worked as a clerk and performed repetitive walking, standing, pushing, sorting,
lifting and bagging parcels of mail while in the performance of duty.
OWCP denied appellant’s claim for compensation on the grounds that the medical
evidence was not sufficient to establish that her low back condition or herniated disc was caused
by or contributed to by her employment. The Board finds that medical evidence submitted by
appellant generally supports that she developed a low back condition from lifting mail trays, mail
sacks and mail carts in the performance of duty.
On February 9, 2011 Dr. Young noted appellant’s employment involved repetitive lifting
of trays weighing up to 40 pounds and pushing heavy carts. On November 30, 2010 appellant
reported a gradual onset of low back pain through the workday with repetitive lifting. The next
day, she experienced pain and tingling to the anterior right thigh. Dr. Young noted diffuse
midline and paravertebral tenderness of the lumbar spine and diminished sensation to the anterior
right thigh. He diagnosed an extruded disc fragment at L2-3 with ongoing pain and
recommended epidural steroid injections and possible surgery. Dr. Young noted appellant’s
history was of onset of pain with fairly strenuous activities on the job and noted that she had a
discrete lesion on the MRI scan that he stated was work related. On February 17, 2011
Dr. Seymour advised that appellant was lifting sacks and pushing bins when the injury occurred.
He diagnosed right L2-3 herniated disc and opined that appellant was totally disabled. In a
May 12, 2011 report, Dr. Seymour obtained a history that appellant’s work involved repetitive
lifting of trays often weighing 40 pounds and pushing heavy carts. On November 30, 2010
appellant noted a gradual onset of low back pain through the workday with repetitive lifting.
Dr. Seymour opined that appellant’s history was of onset of pain with fairly strenuous activities
on the job with a discrete lesion supported by the MRI scan. He opined that this was a workrelated condition. Although the physician’s opinions are not fully rationalized on the issue of
causal relation or aggravation, the evidence is uncontroverted in the record and sufficient to
require further development of the case by OWCP.7
In view of the above evidence, OWCP should have referred the matter to an appropriate
Board-certified medical specialist to determine whether appellant may have sustained a low back
condition as a result of her employment duties. Proceedings under FECA are not adversary in
nature nor is OWCP a disinterested arbiter. While the claimant has the burden to establish
entitlement to compensation, OWCP shares responsibility in the development of the evidence. It
has the obligation to see that justice is done.8
Therefore, the Board finds that the case must be remanded to OWCP for preparation of a
statement of accepted facts concerning appellant’s working conditions and referral of the matter
to an appropriate medical specialist, consistent with OWCP procedures, to determine whether
appellant may have sustained a low back condition as a result of performing her employment

7

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

8

John W. Butler, 39 ECAB 852 (1988).

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duties. Following this, and any other further development as deemed necessary, OWCP shall
issue an appropriate merit decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 10, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
in accordance with this decision of the Board.
Issued: September 16, 2013
Washington, DC

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

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

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

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

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

Docket No. 18-0547
Issued: November 7, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 22, 2018 appellant, through counsel, filed a timely appeal from a November 13,
2017 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 her burden of proof to establish more than two
percent permanent impairment of the bilateral upper extremities, for which she previously received
schedule award compensation.
FACTUAL HISTORY
On April 7, 2012 appellant, then a 44-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome causally related
to repetitive upper extremity motions while sorting and delivering mail. She indicated on the claim
form that she first became aware of her claimed condition on January 30, 2006 and of its relation
to her federal employment on March 30, 2012. Appellant remained exposed to the identified work
factors until she stopped work on March 30, 2012.
In a report dated May 2, 2012, Dr. Chris Huang, an attending Board-certified orthopedic
surgeon, noted that he began treating appellant on April 13, 2012. Appellant presented with
numbness and tingling in the thumb and index and long fingers of each hand. An April 4, 2012
electromyography (EMG) and nerve conduction velocity (NCV) study demonstrated moderate
bilateral carpal tunnel syndrome. Dr. Huang attributed the condition to repetitive wrist flexion
while delivering mail. He performed a left carpal tunnel release on April 19, 2012.
On May 21, 2012 OWCP accepted that appellant sustained bilateral carpal tunnel
syndrome. It paid her wage-loss compensation for temporary total disability for the period May 8
to December 14, 2012.
On July 2, 2012 Dr. Huang performed an authorized right carpal tunnel release.3 In a report
dated August 2, 2012, he opined that appellant’s numbness and tingling in both hands had resolved
after the bilateral carpal tunnel releases. Appellant participated in physical therapy to mobilize
and strengthen both wrists. In an August 10, 2012 report, Dr. Huang noted that she had developed
bilateral cubital tunnel syndrome in both elbows. On September 14 and October 12, 2012 he
diagnosed bilateral triangular fibrocartilage complex (TFCC) tears at the radial attachment.
Dr. Huang noted that he “could not say for certain” whether the TFCC tears were occupationally
related. He released appellant from care on October 12, 2012.
On December 3, 2012 appellant accepted a limited-duty job for one hour a day, casing and
pulling down a mail route. She returned to this work on December 4, 2012. OWCP paid appellant
compensation for the remaining seven hours a day commencing December 15, 2012.
In an April 2, 2013 report, Dr. Huang noted that appellant wore bilateral wrist braces. On
examination he found well-healed surgical scars, positive compression tests bilaterally, tenderness
to palpation over the TFCC in both wrists, symmetric range of motion, positive Tinel’s sign over
the cubital tunnel bilaterally, sensation intact to light touch throughout both hands, no thenar or
3

In a July 11, 2012 report, Dr. Donald D. Higgins, Jr., an attending osteopath, opined that appellant had bilateral
carpal tunnel syndrome, however, noted that he would not comment on whether or not the condition was related to
her federal employment.

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interossei atrophy, full extension, and full composite grasp of all digits. Dr. Huang diagnosed
status post bilateral carpal tunnel releases, with residual numbness and tingling, ulnar-sided
bilateral wrist pain secondary to TFCC tears.
In a June 4, 2013 letter, Dr. Huang opined that appellant had reached maximum medical
improvement (MMI) and had completed all necessary treatment.
On August 6, 2013 appellant filed a claim for a schedule award (Form CA-7) based on a
partial loss of use of her bilateral upper extremities.
In support of her claim, appellant provided a September 7, 2013 impairment rating based
on an August 27, 2013 examination by Dr. Neil Allen, a Board-certified internist and neurologist.
Dr. Allen reviewed medical records, electrodiagnostic test results, and opined that appellant had
attained MMI. He related appellant’s account of mild interference with travel; moderate
interference with activities of daily living including self-care, personal hygiene, communication,
and sleep; and severe interference with physical activity. Dr. Allen administered a QuickDASH
questionnaire which yielded a score of 66. On examination of the right wrist, he found a wellhealed surgical scar, minimal hypothenar atrophy, a normal sensory examination, tenderness to
palpation over the carpal tunnel, and negative Phalen’s and reverse Phalen’s tests. Dr. Allen
observed 60 degrees flexion, 55 degrees extension, 20 degrees radial deviation, 35 degrees ulnar
deviation, and 50 degrees abduction. On examination of the left wrist, he noted no atrophy, a
normal sensory examination, and tenderness to palpation over the carpal tunnel. Dr. Allen
observed 25 degrees flexion, 65 degrees extension, 25 degrees radial deviation, 25 degrees ulnar
deviation, and 50 degrees abduction. Referring to Table 15-23,4 he assessed six percent
impairment of the right upper extremity, a grade 1 modifier for clinical studies (GMCS) of 1 for
conduction delay, a grade modifier for functional history (GMFH) of 3 for constant symptoms,
and a physical examination (GMPE) of 1 for normal findings with a QuickDASH score of 66.
Dr. Allen made an identical assessment for the left wrist using the same criteria, finding six percent
permanent impairment of the left upper extremity.
On September 16, 2013 OWCP obtained a second opinion from Dr. Theodore J. Suchy, a
Board-certified orthopedic surgeon. Dr. Suchy reviewed the medical record, a statement of
accepted facts, and a list of questions regarding appellant’s physical condition and ability to return
to work. He related appellant’s complaints of numbness and tingling throughout both hands in a
nondermatomal pattern, and bilateral elbow pain radiating to both forearms which awakened her
from sleep. On examination of both wrists, Dr. Suchy found well-healed surgical scars, dorsal
bosses at the dorsoradial aspect, full range of wrist and finger motion, negative Tinel’s sign,
positive Phalen’s sign, and symmetric two-point discrimination at six millimeters (mm). He
opined that appellant had attained MMI. Dr. Suchy noted that her subjective symptoms exceeded
her objective physical findings on examination. He found appellant able to perform full-time light-

4
Table 15-23, page 449 of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) is titled “Entrapment/Compression Neuropathy Impairment.”

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duty work with lifting up to 20 pounds and no more than two hours a day of repetitive upper
extremity tasks.
In a June 2, 2014 report, Dr. David H. Garelick, an OWCP district medical adviser,
reviewed the medical record and Dr. Suchy’s report. He found that appellant had attained MMI
on October 12, 2012 when Dr. Huang discharged her from care. Dr. Garelick noted that, according
to Dr. Suchy, there was no evidence of muscle atrophy, subjective paresthesias in both hands, and
“nearly normal” two-point discrimination at six mm. He opined that, according to Table 15-23,
appellant had two percent permanent impairment of each upper extremity.
By decision dated May 29, 2015, OWCP granted appellant a schedule award for two
percent permanent impairment of her left upper extremity and two percent permanent impairment
of her right upper extremity. The award ran for 12.48 weeks, covering the period April 23 to
July 19, 2013. OWCP based this award on Dr. Suchy’s September 16, 2013 physical findings as
reviewed by Dr. Garelick.
On June 8, 2015 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative. At the hearing, held on February 17, 2016, counsel contended that
there was a conflict of medical opinion between Dr. Allen, for appellant, and Dr. Suchy, for the
government, regarding the appropriate percentage of permanent impairment. He requested that
OWCP select an impartial medical specialist to resolve the conflict.
By decision dated May 2, 2016, OWCP’s hearing representative vacated OWCP’s May 29,
2015 schedule award determination, finding that the medical adviser had not considered
Dr. Allen’s September 7, 2013 clinical findings in determining the percentage of permanent
impairment. She remanded the case to OWCP to obtain a supplemental opinion from OWCP’s
medical adviser for review and consideration of Dr. Allen’s findings, to be followed by a de novo
decision.
In a June 5, 2016 report, Dr. Morley Slutsky, an OWCP district medical adviser, compared
Dr. Allen’s September 17, 2013 impairment rating to Dr. Suchy’s findings as reviewed by
OWCP’s medical adviser on June 2, 2015. He noted that Dr. Allen assessed a GMFH of 3,
whereas the medical adviser found a GMFH of 1. Also, Dr. Allen found that the QuickDASH
score of 66 demonstrated a severe impairment, whereas the medical adviser found it invalid or
unreliable. Dr. Slutsky assessed a GMFH of 1 as according to Dr. Allen and Dr. Suchy appellant
did not require assistance with activities of daily living, and there was no electrodiagnostic
evidence of conduction block or axonal involvement. He found a GMPE for local nerve
compression of zero as appellant had two-point discrimination within normal limits, with no
atrophy or muscle loss attributable to median nerve involvement. Dr. Slutsky assessed a GMCS
of 1 for electrodiagnostic studies. He found that the QuickDASH score of 66 as obtained by
Dr. Allen was unreliable as appellant had no physical findings and only mild symptoms.
Dr. Slutsky averaged the GMCS of 1, GMPE of 0, and GMFH of 1 to equal .67, rounded upward
to 1.0, leaving the default class of diagnosis (CDX) of 2 percent unchanged. He therefore

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concurred with Dr. Garelick’s finding of two percent permanent impairment of each upper
extremity.
By decision dated August 30, 2016, OWCP denied appellant’s claim for an additional
schedule award. It found that she had not established more than two percent permanent impairment
of her left upper extremity and two percent permanent impairment of her right upper extremity,
for which she previously received schedule award compensation.
On September 12, 2016 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative. During the hearing, held on September 12, 2017, counsel
contended that Dr. Allen’s report should be accorded the weight of the medical evidence as he was
a Board-certified neurologist and properly applied the A.M.A., Guides to assess the appropriate
percentage of permanent impairment. Alternatively, he alleged a conflict of medical opinion
between Dr. Allen and Dr. Suchy, or Dr. Allen and Dr. Slutsky, requiring resolution by an
impartial medical specialist. Counsel submitted additional medical evidence.
In a report dated October 18, 2017, Dr. Allen disagreed with Dr. Slutsky’s invalidation of
the QuickDASH score of 66. He indicated that all patient histories were inherently subjective and
that it was a physician’s duty to record the history as “reported by the patient, not out interpretation
of symptoms based upon available diagnostic testing.” Dr. Allen contended that, as symptom
frequency was “subjective in nature, it [was] not ethical to alter this information.” He affirmed his
September 17, 2013 calculation of six percent permanent impairment of each upper extremity.
By decision dated November 13, 2017, an OWCP hearing representative affirmed the
denial of appellant’s claim for an additional schedule award. He found that she had not established
more than two percent permanent impairment of her left upper extremity and two percent
permanent impairment of her right upper extremity, for which she previously received schedule
award compensation. The hearing representative found that Dr. Slutsky fully considered
Dr. Allen’s impairment rating and applied the appropriate portions of the A.M.A., Guides to his
clinical findings. He further found that there was no conflict of medical opinion as Dr. Slutsky
provided a thorough, detailed explanation of the appropriate ratings criteria, and how Dr. Allen
had misapplied the A.M.A., Guides.
LEGAL PRECEDENT
The schedule award provisions of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

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evaluating schedule losses.7 The claimant has the burden of proof to prove that the condition for
which a schedule award is sought is causally related to her employment.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).9 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment of the class of diagnosis (CDX) condition, which is then adjusted by
grade modifiers based on GMFH, GMPE, and GMCS.10 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).11
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.12 In
Table 15-23, grade modifiers levels (ranging from zero to four) are described for the categories
test findings, history and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.13
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser providing
rationale for the percentage of impairment specified.14
ANALYSIS
The Board finds that the case is not in posture for a decision.

7

Id.

8

Veronica Williams, 56 ECAB 367, 370 (2005).

9

A.M.A., Guides, supra note 4 at 3, section 1.3, The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.
10

Id. at 385-419.

11

Id. at 411.

12

Id. at 449.

13

Id. at 448-50. See also M.C., Docket No. 16-1645 (issued May 3, 2018).

14
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).

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The Board has held that an impairment rating that is not based on reasonably current
examination findings is of little probative value.15 The physical findings on which the
November 13, 2017 decision relies were reported by Dr. Suchy approximately four years prior on
September 16, 2013. It was improper for OWCP to have relied on his findings in its November 13,
2017 schedule award determination as they were no longer sufficiently current.16
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter.17 While the claimant has the burden of proof to establish entitlement
to schedule award compensation, OWCP shares the responsibility in the development of the
evidence to see that justice is done.18 As it undertook development of the evidence by referring
appellant for a second opinion examination, it had the duty to secure an appropriate impairment
rating based upon reasonably current physical findings as opposed to relying on stale medical
evidence.19 The case will therefore be remanded to OWCP for additional development. On
remand of the case, OWCP shall refer appellant for a new second opinion examination in
accordance with its procedures to obtain current physical findings.20 After such further
development, as it deems necessary, it should issue an appropriate de novo decision.
CONCLUSION
The Board finds that the case is not in posture for a decision.

15
T.M., Docket No. 16-0429 (issued August 11, 2016) (whether the Board held that an OWCP medical adviser’s
impairment rating based on stale medical evidence was of little probative value in determining the appropriate
percentage of permanent impairment); see W.M., Docket No. 12-0773 (issued March 29, 2013) (where a physician
sought in June 2011 to update a prior impairment rating, but the Board found that the May 2004 findings which served
as the basis for he updated rating constituted stale medical evidence); P.S., Docket No. 12-0649 (issued February 14,
2013) (the Board found that a physician’s January 2010 impairment rating was of reduced probative value because
the physician relied upon October 2007 findings as the basis for this update impairment rating).
16

A.W., Docket No. 14-0199 (issued September 1, 2017) (where the Board held that medical opinions predicated
on stale medical evidence lack probative value as to the extent of permanent impairment); T.M., id.
17

Id.

18

Id.

19

Id.

20
Federal (FECA) Procedure Manual, Part 3 -- Medical, Second Opinion Examinations, Chapter 3.500.c(3)(b)
(June 2015).

7

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 13, 2017 is set aside and the case remanded to OWCP
for additional development consistent with this decision of the Board.
Issued: November 7, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Waco, TX, Employer
)
___________________________________________ )
J.F., Appellant

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

Docket No. 11-133
Issued: October 19, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JURISDICTION
On October 22, 2010 appellant filed a timely appeal from the September 20, 2010
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant’s actual earnings as a
modified duty clerk fairly and reasonably represented her wage-earning capacity.
FACTUAL HISTORY
On July 15, 2008 appellant, then a 63-year-old distribution clerk, felt a sharp pain in her
low back and left side at work. She stopped work on July 15, 2008. Appellant had been working
in a permanent modified position as a clerk. The position included working four hours per day in
manual distribution and four hours in the office answering the telephone and performing
1

5 U.S.C. § 8101 et seq.

paperwork. Appellant’s restrictions included 10 pounds lifting/pushing/pulling and no reaching
over the shoulder. OWCP accepted her claim for lumbar sprain, lumbar radiculopathy and
herniated lumbar disc. Appellant received compensation benefits.2
Appellant received treatment from Dr. Les Benson, a general practitioner, from
January 2009 through May 2010 and Dr. Jacob Rosenstein, a Board-certified neurological
surgeon, from August 2009 through March 2010. In a March 3, 2009 report, Dr. Rosenstein
diagnosed right Grade 1, L5 and S1 radiculopathy; L4-5 spondylolisthesis; multilevel lumbar
bulging discs with facet arthropathy and lumbar facet syndrome. He recommended continued
medications and lumbar epidural steroid injections. Dr. Rosenstein continually advised that
appellant remain off work.
OWCP referred appellant to Dr. Robert Holladay, a Board-certified orthopedic surgeon,
for a second opinion examination and Dr. William P. Osborne, an occupational medicine
specialist, for a functional capacity evaluation (FCE). In his April 8, 2009 report, Dr. Holladay
noted appellant’s history of injury and treatment and examined appellant. He determined that
appellant had no remaining work-related disability. Dr. Holladay explained that any remaining
disability was due to her underlying degenerative disc disease. He provided restrictions based
upon the April 8, 2009 FCE from Dr. Osborne. In the FCE, Dr. Osborne determined that
appellant was to return to sedentary or light duty which was comprised of a maximum of no
lifting over 20 pounds; frequent lifting of no more than 10 pounds; sitting and standing for two
hours at a time with a short break before repeating; occasional bending; stooping, squatting and
kneeling. He also indicated that appellant could walk up several flights of stairs but no climbing
ladders or working at unprotected heights.
In a May 6, 2009 report, Dr. Benson disagreed with the findings of Drs. Holladay and
Osborne. He stated that appellant had a significant lumbar disc injury with radiculopathy.
Dr. Benson noted that, while appellant had adult onset diabetes, her condition was under control
and the radiculopathy was not related to her diabetes. He opined that appellant was unable to
work in any capacity.
On August 12, 2009 OWCP referred appellant to Dr. Benzel C. MacMaster, a Boardcertified orthopedic surgeon, for an impartial medical evaluation to resolve the conflict in
opinion between Drs. Holladay and Drs. Roenstein and Benson, regarding appellant’s work
capacity.
In a September 8, 2009 report, Dr. Benson advised that appellant had objective findings
which included palpable spasm, decreased range of motion and positive straight leg raising. He
indicated that appellant’s conditions had not ceased. Dr. Benson noted that appellant’s activities
were limited with regard to prolonged standing, sitting, lifting, bending, stooping, and or
walking. He opined that he did not believe that appellant would be able to return to the job she
performed. Furthermore, Dr. Benson did not believe that work hardening would be beneficial to
appellant. He noted that appellant’s limitations included inability of prolonged standing, sitting,
lifting, bending stooping and or walking. Dr. Benson recommended continued injections and
possible surgical intervention.
2

Appellant had several previous claims which are not before the Board on the present appeal.

2

In a September 9, 2009 report, Dr. MacMaster noted having reviewed appellant’s medical
history of injury and treatment and noted a physical examination of appellant. He indicated that
the only objective findings were diminished Achilles’ reflexes, which were symmetrical
bilaterally. Dr. MacMaster noted the accepted conditions of lumbar sprain, unspecified thoracic
or lumbosacral neuritis or radiculitis and disc herniation. He further diagnosed lumbar
spondylosis. Dr. MacMaster explained that, although the lumbar sprain may have aggravated
underlying arthritis, the evidence on examination showed no residuals of the accepted work
injuries. He further noted that the accepted work injury of lumbar sprain was not active or
disabling. Dr. MacMaster noted that appellant may well suffer from her preexistent condition
which may require medication and self-directed exercise, but they show no material aggravation
due to the work injury. He found she was able to return to work as a clerk with the limitations
she had before the present injury. In a September 10, 2009 work capacity evaluation,
Dr. MacMaster indicated that appellant could work for eight hours per day with restrictions
which included: no reaching above the shoulder; pushing and pulling for no more than 30
minutes and no lifting over 10 pounds.
On October 28, 2009 the employing establishment offered appellant a modified mail
processing clerk position. The duties included manual letter cases at shoulder height for six
hours daily and stamping/taping mail at a heavy table for two hours daily. The physical
requirements included four hours of simple grasping, two hours of fine manipulation, and lifting
trays for no more than one hour.
On November 4, 2009 OWCP determined further clarification was needed from
Dr. MacMaster as to whether the additional accepted conditions of disc herniation and lumbar
radiculopathy caused any work-related disability. In a December 14, 2009 addendum,
Dr. MacMaster explained that there were no residuals of any of the accepted work injuries. He
reiterated that the lumbar sprain may have temporarily aggravated underlying arthritis but his
examination did not show any residuals. Dr. MacMaster also determined that appellant’s
condition had returned to baseline as there was no objective evidence of any residuals of the disc
herniation or the lumbar radiculopathy. He opined that there was no evidence that any of the
accepted work injuries were currently active or disabling. Furthermore, Dr. MacMaster noted
that none of the accepted injuries prevented appellant from returning to work as a mail
processing clerk with the specific previously placed limitations. In response to an additional
question of OWCP as to whether she required any pain treatment, Dr. MacMaster explained that
facet injections would be necessary solely for the diagnosis and treatment of lumbar facet
syndrome, which was not a part of the accepted diagnoses. He indicated that no additional
treatment was warranted for the accepted conditions.
Appellant accepted the employing establishment’s job offer under protest on
December 16, 2009.3
On January 21, 2010 the employing establishment noted that, effective September 15,
2009, appellant’s date-of-injury position of Grade 6, Step 0 earned $51,049.00 per year. It noted
that the current pay rate for the date-of-injury step and grade was equivalent to $53,102.00 per
3

On March 9, 2010 appellant filed a claim for recurrence effective February 18, 2010. This aspect of appellant’s
claim is being reviewed by OWCP and is not before the Board at this time.

3

year. Additionally, the employing establishment noted that the current pay at appellant’s
limited-duty position was $53,102.00 per year.
In a February 18, 2010 decision, OWCP found that the modified mail processing clerk
position fairly and reasonably represented appellant’s wage-earning capacity. It found she had
been employed as a modified mail processing clerk, effective December 16, 2009, which was
over 60 days, and that she earned weekly wages of $1,077.19. OWCP found that there was no
evidence the job was temporary and that the impartial medical examiner’s medical restrictions of
September 10, 2009 supported appellant’s capacity to perform such work. It found that her
actual earnings fairly and reasonably represented her wage-earning capacity. In a computation of
compensation worksheet, OWCP advised that the weekly pay rate when disability began,
effective July 15, 2008, was $999.24 and the current pay rate for the date-of-injury position,
effective February 17, 2010, was $1,039.47. It used the current rate for appellant’s date-ofinjury position, $1,039.47, and applied its standard formula to find a zero loss in wage-earning
capacity. Accordingly, OWCP found that appellant had no loss of wage-earning capacity
effective February 18, 2010.
On March 8, 2010 appellant’s representative requested a telephonic hearing, which was
held on June 9, 2010. During the hearing, appellant described the duties of the modified position
she performed on her return to work. They included scanning and casing mail. Appellant
confirmed that she was not performing full duty at the time of her injury as it was a modifiedduty position as a “PDC” training clerk as a result of another work injury. In response to
questioning, she claimed that her wage-earning capacity position was not open for bidding from
other workers, was not classified, and was made solely to accommodate her restrictions.
Appellant noted that she cased mail and signed in scanners from truck drivers and confirmed that
if she were not performing those duties, the duties would have to be performed by another
employee. Her representative argued that the rating was erroneous because it was based upon a
position which was not a real job on which appellant or others could bid; therefore, it was a
make-shift type of job.
By decision dated September 20, 2010, OWCP’s hearing representative affirmed the
February 18, 2010 wage-earning capacity decision.4
LEGAL PRECEDENT
Under section 8115(a) of FECA,5 wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his wage-earning
capacity. Generally, wages actually earned are the best measure of a wage-earning capacity and,
in the absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.6 The formula for
determining loss of wage-earning capacity based on actual earnings, developed in the Board’s
4

The hearing representative remanded the case for consideration of modification of the wage-earning capacity
decision and termination of benefits on the basis that no remaining work-related disability or residuals existed.
5

5 U.S.C. § 8115(a).

6

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

4

decision in Albert C. Shadrick,7 has been codified by regulation at 20 C.F.R. § 10.403. OWCP
procedures provide that a determination regarding whether actual earnings fairly and reasonably
represent wage-earning capacity should be made after an employee has been working in a given
position for more than 60 days.8 The amount of any compensation paid is based on the wageearning capacity determination and it remains undisturbed until properly modified.9
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.10 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination.11
ANALYSIS
OWCP accepted appellant’s claim for lumbar sprain, lumbar radiculopathy and herniated
lumbar disc. Appellant’s treating physicians, Drs. Benson and Rosenstein, advised that appellant
was unable to work in any capacity; however, Dr. Holladay, the second opinion physician,
opined that appellant could return to sedentary or light duty with restrictions. As a result, OWCP
referred appellant to Dr. MacMaster, for an impartial medical evaluation to resolve the conflict in
medical opinion.
In his September 9, 2009 report, Dr. MacMaster noted appellant’s history of injury and
treatment and advised that the only objective findings were diminished Achilles’ reflexes, which
are symmetrical bilaterally. He explained that there were no residuals of the accepted work
injury. Dr. MacMaster indicated that appellant was able to return to work as a clerk with the
limitations she had prior to the present injury. He completed the September 10, 2009 work
capacity evaluation, which indicated that appellant could work for eight hours per day with
restrictions which included: no reaching above the shoulder; pushing and pulling for no more
than 30 minutes and no lifting over 10 pounds. In his December 14, 2009 addendum,
Dr. MacMaster explained that the accepted work injury, the lumbar sprain, temporarily
aggravated the underlying arthritis but his examination did not show any residuals. He also
determined that appellant’s condition had returned to baseline as there was no objective evidence
of any residuals of the disc herniation or the lumbar radiculopathy. Dr. MacMaster opined that
there was no evidence that any of the accepted work injuries were currently active or disabling.
Furthermore, he noted that none of the accepted injuries prevented appellant from returning to
work as a mail processing clerk with the specific previously placed limitations. Dr. MacMaster’s
7

Albert C. Shadrick, 5 ECAB 376 (1953).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (December 1993).
9

See Sharon C. Clement, 55 ECAB 552 (2004).

10

5 U.S.C. § 8123(a); Barry Neutuch, 54 ECAB 313 (2003).

11

20 C.F.R. § 10.321.

5

reports were well rationalized and based on a thorough medical examination and a review of all
the prior medical history. Thus, the Board finds that OWCP properly determined that the
position offered by the employing establishment was appropriate and consistent with appellant’s
work restrictions.12
On December 16, 2009 appellant accepted the full-time, limited-duty assignment as a
modified mail processing clerk. The Board finds that the position of a modified mail processing
clerk that she held commencing December 16, 2009 was an appropriate job and properly
determined represented her wage-earning capacity. The Board notes that appellant began her
modified position on December 16, 2009 and subsequently worked in the position for over 60
days. Appellant’s performance of this position in excess of 60 days is persuasive evidence that
the position represents her wage-earning capacity.13 While her attorney asserted during the
hearing that the position was make-shift or temporary, he based his argument simply on the fact
that it was a modified position. Counsel argued that fact alone rendered it a makeshift position.
In support of his argument, appellant cited to Nancy Darmetko, Docket No. 97-2539
(January 5, 2000). In that case, the claimant was originally working in a full-time position. The
wage-earning capacity decision was based on a part-time position. The Board found this to be
inconsistent with its procedure manual as the tour of duty was not equivalent to the date-ofinjury position. The Board disagrees that this case stands for the proposition that every modified
position, despite the work duties, is by definition a makeshift position. Rather, in the instant
case, the date-of-injury position was a full-time position. There is no evidence that the position
was seasonal, temporary or makeshift work designed for her particular needs.14 The position has
an official title and consisted of duties normally performed by clerks at the employing
establishment. As determined during the hearing, appellant described the duties and confirmed
that other employees would have to perform her work if she were away from the employing
establishment. The physical restrictions were not unduly restrictive for the position.15
The rate of pay for the modified-duty clerk in the amount of $53,102.00 exceeds
appellant’s date-of-injury position rate of pay, which was listed as $51,049.00. Therefore,
appellant had no loss of wage-earning capacity under the Shadrick formula as of February 18,
2010, as OWCP found in its February 18, 2010 decision.16

12

Aubrey Belnavis, 37 ECAB 206 (1985) (where there exists a conflict of medical opinion and the case is referred
to an impartial specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well
rationalized and based upon a proper factual background, is entitled to special weight).
13

OWCP procedures provide that a determination regarding whether actual earnings fairly and reasonably
represent wage-earning capacity should be made after an employee has been working in a given position for more
than 60 days. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning
Capacity, Chapter 2.814.7(c) (December 1993).
14

Elbert Hicks, 49 ECAB 283 (1998).

15

Compare A.J., Docket No. 10-619 (June 29, 2010).

16

Albert C. Shadrick, supra note 7.

6

As the evidence established that appellant’s actual earnings as a modified-duty clerk
properly represented her wage-earning capacity, OWCP properly accepted these earnings as the
best measure of her wage-earning capacity.
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 properly determined that appellant’s actual earnings as a
modified-duty clerk fairly and reasonably represented her wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the September 20, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 19, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.O., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, College Park, GA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 12-1775
Issued: December 3, 2012

Case Submitted on the Record

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

JURISDICTION
On August 16, 2012 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) March 30, 2012 nonmerit decision denying his request for
merit review. OWCP’s last merit decision was its February 23, 2011 decision denying
appellant’s claim for wage-loss benefits. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the
merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 5, 2009 appellant, a 41-year-old federal air marshal, filed a traumatic injury
claim alleging that he sustained injuries to his neck and upper back on August 3, 2009 while
performing a training exercise. In support of his claim, he submitted an August 24, 2009 report
of a magnetic resonance imaging (MRI) scan and a September 2, 2009 attending physician’s
report from Dr. Tariq Javed, a Board-certified neurological surgeon, who diagnosed cervical
spondylosis and stenosis.
By decision dated August 15, 2009, OWCP denied appellant’s claim on the grounds that
the medical evidence failed to establish that the claimed medical condition was causally related
to the established work event.
On March 24, 2009 appellant requested a review of the written record. By decision dated
January 26, 2010, an OWCP hearing representative affirmed the August 15, 2009 decision.
On February 17, 2010 appellant requested reconsideration. He submitted a copy of
Dr. Javed’s September 2, 2009 attending physician’s report, which was updated to indicate his
belief that appellant was injured during a training exercise.
In a decision dated February 25, 2010, OWCP denied appellant’s reconsideration request,
finding that the evidence submitted did not warrant a merit review.
On January 14, 2011 appellant, through counsel, again requested reconsideration and
submitted additional medical evidence. In a January 6, 2010 report, Dr. Kevin Hsieh, a treating
physician, stated that he reviewed appellant’s medical records, including a cervical spine MRI
scan that revealed cervical spondylosis at C5-6 and C6-7. His examination revealed restricted
range of motion of the neck and left shoulder. Appellant’s complaints of pain during testing and
numbness down the left arm were consistent with cervical spondylosis. Dr. Hsieh described the
alleged injury as reported by appellant. Regarding the cause of appellant’s cervical condition,
Dr. Hsieh stated:
“From my review of [appellant]’s job duties and the diagnostic medical evidence,
it is my professional medical opinion that the physical stress placed upon
Mr. Otero’s neck (cervical spine) during the training incident on August 3, 2009
is the direct causation to his cervical spondylosis without myelopathy. It is my
firmest medical opinion that these conditions are definitively work related due to
the traumatic injury [appellant] sustained to his neck and left shoulder in the
performance of his duties on August 3, 2009 when he was attempting to get free
from the chokehold during the training exercise.”
By decision dated February 23, 2011, OWCP denied modification of its January 26, 2010
decision. It found that Dr. Hsieh’s report was insufficiently rationalized to establish a causal
relationship between the August 2009 training event and appellant’s diagnosed condition.
On February 2, 2012 appellant again requested reconsideration of his claim. In support
of his request, he submitted a December 13, 2010 narrative report from Dr. Mark W. Freeman, a
treating physician, whose report reiterated the information contained in Dr. Hsieh’s January 6,
2

2010 report regarding the history of injury as related by appellant, his review of the medical
record and examination findings. Regarding the cause of appellant’s diagnosed condition,
Dr. Freeman stated:
“From my review of [appellant]’s job duties and the diagnostic medical evidence,
it is my professional medical opinion that the physical stress placed upon
Mr. Otero’s neck (cervical spine) during the training incident on August 3, 2009
is the direct causation to his cervical spondylosis without myelopathy and
traumatic spondylopathy. It is my firmest medical opinion that these conditions
are definitively work related due to the traumatic injury [appellant] sustained to
his neck and left shoulder in the performance of his duties on August 3, 2009
when he was attempting to get free from the chokehold during the training
exercise.”
By decision dated March 30, 2012, OWCP denied appellant’s request for reconsideration
on the grounds that the evidence was insufficient to warrant merit review. It found that
Dr. Freeman’s December 13, 2010 report was substantially similar to evidence of record that had
been previously considered.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.2 To be entitled to a merit review of an OWCP
decision denying or terminating a benefit, a claimant also must file his or her application for
review within one year of the date of that decision.3 When a claimant fails to meet one of the
above standards, OWCP will deny the application for reconsideration without reopening the case
for review on the merits.4 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.5
ANALYSIS
Appellant’s February 2, 2012 request for reconsideration did not allege or demonstrate
that OWCP erroneously applied or interpreted a specific point of law. Additionally, he did not
advance a relevant legal argument not previously considered by OWCP. Consequently,
appellant is not entitled to a review of the merits of his claim based on the first and second
above-noted requirements under section 10.606(b)(2). A claimant may be entitled to a merit

2

20 C.F.R. § 10.606(b)(2).

3

Id. at § 10.607(a).

4

Id. at § 10.608(b).

5

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

3

review by submitting new and relevant evidence. The Board finds that appellant did not submit
any new and relevant medical evidence in this case.
Appellant submitted a December 13, 2010 narrative report from Dr. Freeman who did not
provide new information. Rather, Dr. Freeman merely reiterated the information contained in
Dr. Hsieh’s January 6, 2010 report regarding the history of injury as related by appellant, his
review of the medical record and examination findings. The Board notes that Dr. Freeman
repeated nearly verbatim the opinion expressed by Dr. Hsieh as to the cause of appellant’s
diagnosed cervical spondylosis and spondylopathy. Dr. Freeman’s December 13, 2010 report is
therefore duplicative in nature.6 The Board finds that his report does not constitute relevant and
pertinent new evidence not previously considered by OWCP.7 Therefore, OWCP properly
determined that this evidence did not constitute a basis for reopening the case for a merit review.
The Board finds that OWCP properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2) and properly denied his February 2, 2012 request for reconsideration.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits pursuant to 5 U.S.C. § 8128(a).

6

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a claim for merit review. Denis M. Dupor, 51 ECAB 482 (2000).
7

See Susan A. Filkins, 57 ECAB 630 (2006).

4

ORDER
IT IS HEREBY ORDERED THAT the March 30, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 3, 2012
Washington, DC

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

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

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

5


States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.J., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, Vicksburg, MS,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-0714
Issued: October 3, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 29, 2016 appellant filed a timely appeal of a September 9, 2015 merit
decision and an October 9, 2015 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 met his burden of proof to establish hearing loss
causally related to his federal employment duties; and (2) whether OWCP properly refused to
reopen appellant’s case for further review of the merits pursuant to 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

The Board notes that OWCP received additional evidence following its October 9, 2015 decision. Since the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board
may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); J.T., 59 ECAB 293 (2008);
Rosemary A. Kayes, 54 ECAB 373 (2003); Sandra D. Pruitt, 57 ECAB 126 (2005).

FACTUAL HISTORY
On May 5, 2015 appellant, then a 55-year-old desk equipment foreman, filed an
occupational disease claim (Form CA-2) alleging that he developed bilateral hearing loss as a
result of working around different types of noisy equipment and tools at the employing
establishment since 1978. He first became aware of his condition and realized that it resulted
from his employment on April 30, 2015. Appellant included a detailed list and description of the
job positions he had and the noise he was exposed to during his employment from 1978 to the
present. He indicated that he did not have any preexisting hearing problems before he started
work. Appellant reported that he still worked as the desk equipment foreman and wore double
hearing protection when he was in the noisy areas. He believed his hearing loss was due to his
federal employment because he had never worked anywhere except the employing
establishment.
Appellant provided audiogram records from the employing establishment dated from
August 7, 1978 to December 15, 2014. The records indicated that on August 7, 1978 appellant’s
hearing thresholds at 500, 1,000, 2,000, and 3,000 hertz (Hz) were 80, 70, 70, and 75 decibels for
the right ear and 10, 10, 5, and 10 decibels for the left ear.
An April 30, 2015 audiogram by M. McCaskill, an audiologist, related that appellant’s
hearing thresholds at 500, 1,000, 2,000, and 3,000 Hz were 110, 120, 115, and 115 decibels for
the right ear and 25, 25, 20, and 25 decibels for the left ear.
In a letter dated May 14, 2015, OWCP informed appellant that the evidence submitted
was insufficient to establish his claim. It advised appellant to respond to the attached
questionnaire and provide evidence to establish that he sustained hearing loss as a result of his
employment. Appellant was afforded 30 days to submit this additional evidence.
OWCP sent a similar letter to the employing establishment and requested additional
evidence in order to issue a decision regarding appellant’s claim.
OWCP referred appellant’s claim, along with the medical record and the statement of
accepted facts (SOAF), to Dr. Bryan M. Clay, a Board-certified otolaryngologist, for a second
opinion examination to determine whether appellant sustained employment-related hearing loss.
Dr. Clay completed an outline for otologic evaluation (Form CA-1332) dated September 2, 2015
and provided audiometric test results. In the CA-1332 form, he noted that appellant had
significant right ear hearing loss at the beginning of his employment in 1978. Dr. Clay reported
that appellant worked in a noisy environment, but opined that there had not been much hearing
loss in appellant’s right or left ear in the sense that his right ear had severe hearing loss in 1978,
such that he never had “useful” hearing on the right. He also noted that appellant’s left ear
hearing loss was not any worse through the baseline. On examination Dr. Clay observed clear
and intact ear canals and drum mobility. He diagnosed right ear profound sensorineural hearing
loss and normal left ear hearing. Dr. Clay reported that appellant had longstanding right ear
hearing loss and checked a box indicating that appellant’s hearing loss was “not due” to his
civilian employment.

2

An audiogram performed on September 2, 2015 related hearing thresholds at 500, 1,000,
2,000, and 3,000 Hz were not ratable for the right ear, and were 10, 10, 15, and 20 decibels for
the left ear.
In a decision dated September 9, 2015, OWCP denied appellant’s claim finding the
medical evidence failed to establish that his hearing loss was caused or aggravated by his
employment.
On September 25, 2015 OWCP received appellant’s request for reconsideration.
Appellant stated that he had not worked anywhere else in his career except for at the employing
establishment. He explained that he did not have any problems with his ears or hearing problems
before he started working for the employing establishment in 1978. Appellant reported that his
workstation was extremely noisy and that he worked in this area for 20 years. He believed that
his employment affected his hearing.
By decision dated October 9, 2015, OWCP denied further merit review of appellant’s
case. It determined that no new evidence was submitted with appellant’s reconsideration
request.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4 In an occupational disease claim, appellant’s burden requires
submission of the following: (1) a factual statement identifying employment factors alleged to
have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.6 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the

3

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

4

M.M., Docket No. 08-1510 (issued November 25, 2010); G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
5

R.H., 59 ECAB 382 (2008); Ernest St. Pierre, 51 ECAB 623 (2000).

6

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

3

nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
Appellant has the burden of establishing by weight of the reliable, probative, and
substantial evidence that his hearing loss condition was causally related to noise exposure in his
federal employment.8 Neither the condition becoming apparent during a period of employment,
nor the belief of the employee that the hearing loss was causally related to noise exposure in
federal employment, is sufficient to establish causal relationship.9
Once OWCP undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.10
ANALYSIS -- ISSUE 1
Appellant alleges that he sustained bilateral hearing loss as a result of his exposure to
noisy equipment and tools as a result of his federal employment. OWCP accepted that appellant
was exposed to hazardous noise at the employing establishment, but denied appellant’s claim
finding that the medical evidence failed to establish that his hearing loss was caused or
aggravated by his employment. The Board finds that this case is not in posture for a decision
because the second opinion physician did not resolve the issue related to the cause of appellant’s
hearing loss.
OWCP referred appellant to Dr. Clay for a second-opinion examination. Dr. Clay
completed an outline for otologic evaluation (Form CA-1332) dated September 2, 2015 and
provided audiometric test results. He noted that appellant had significant right hearing loss at the
beginning of his employment in 1978 and explained that appellant did not have “useful” hearing
in the right ear as of 1978. Dr. Clay reported that appellant worked in a noisy environment and
indicated that his right ear was not any worse than baseline. He diagnosed right ear profound
sensorineural hearing loss and normal left ear hearing. Dr. Clay checked a box which indicated
that appellant’s hearing loss was “not due” to his civilian employment and explained that his
hearing loss “already existed in 1978.”
The Board finds that Dr. Clay’s report is of limited probative value because his medical
opinion is not adequately rationalized. Dr. Clay acknowledged that appellant was exposed to a
noisy work environment, but determined that his hearing loss was not related to his civilian
employment because appellant had longstanding preexisting right ear hearing loss at the time he
commenced employment in 1978. He did not, however, provide a full explanation of why
appellant’s occupational noise exposure apparently had no effect on his hearing.11 OWCP’s
7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

8

Stanley K. Takahaski, 35 ECAB 1065 (1984).

9

K.S., Docket No. 16-0035 (issued April 27, 2016).

10

Phillip L. Barnes, 55 ECAB 426, 441 (2004).

11

See M.E., Docket No. 16-0770 (issued July 26, 2016); see also F.H., Docket No. 14-268 (issued July 2, 2014).

4

procedures provide that in cases involving a preexisting or underlying condition, a secondopinion specialist should be asked to provide a rationalized opinion as to whether the preexisting
or underlying condition was aggravated by employment factors and, if so, whether the
aggravation was temporary or permanent.12 Dr. Clay’s brief opinion on the issue of causal
relationship lacks adequate medical rationale to support that appellant’s hearing loss was not
caused or contributed to by his employment.
It is well established that proceedings under FECA are not adversarial in nature, nor is
OWCP a disinterested arbiter. While the claimant has the burden to establish entitlement to
compensation, OWCP shares the responsibility in the development of the evidence to see that
justice is done.13 Once OWCP undertakes development of the record, it must do a complete job
in procuring medical evidence that will resolve the relevant issues in the case.14 When OWCP
selects a physician for an opinion on causal relationship, it has an obligation to secure, if
necessary, clarification of the physician’s report and to have a proper evaluation made.15
Because it referred appellant to a second-opinion physician, it has the responsibility to obtain a
report that will resolve the issue of whether his hearing loss was caused or aggravated by his
federal employment.16
The Board finds that this case is not in posture for a decision as Dr. Clay did not
adequately address the issue of causal relationship. On remand OWCP should refer appellant,
together with an updated SOAF and the medical record, to Dr. Clay, if available and willing, or
to another appropriate second-opinion physician for an opinion on causal relationship.
Following any necessary further development, a de novo decision shall be issued.
CONCLUSION
The Board finds that this case is not in posture for a decision regarding whether appellant
established an employment-related hearing loss in the performance of duty.17

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.9(e) (September 2010).
13

Supra note 10.

14

Phillip L. Barnes, 55 ECAB 426, 441 (2004).

15

Alva L. Brothers, Jr., 32 ECAB 812 (1981).

16

See Ramon K. Farrin, Jr., 39 ECAB 736 (1988).

17

Because of the disposition of the first issue, the second issue is moot.

5

ORDER
IT IS HEREBY ORDERED THAT the September 9, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.
Issued: October 3, 2016
Washington, DC

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

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

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

6


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

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

Docket No. 19-0960
Issued: October 7, 2019

Case Submitted on the Record

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

JURISDICTION
On April 1, 2019 appellant, through counsel, filed a timely appeal from a February 26,
2019 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. 3

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
3

5 U.S.C. § 8101 et seq.

The Board notes that following the February 26, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of her left lower extremity, warranting a schedule award.
FACTUAL HISTORY
On September 9, 2016 appellant, then a 28-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on September 6, 2016 she sustained an ankle sprain and blow to
the knee when she reportedly lost her footing when walking down steps while in the performance
of duty. She stopped work on September 7, 2016. On the reverse side of the claim form, the
employing establishment indicated that the injury occurred in the performance of duty.
In a September 7, 2016 examination report, Dr. David Pommerening, an occupational and
preventive medicine specialist, conducted an examination diagnosing left knee contusion and left
ankle sprain. He authorized appellant to return to modified duty.
On October 12, 2016 OWCP accepted appellant’s claim for left knee contusion.
Appellant continued to receive medical treatment. In an April 4, 2018 report, Dr. Elizabeth
Hall, a Board-certified physiatrist, recounted appellant’s complaints of pain in the left knee, both
medial and laterally. Upon examination of the left knee, she observed that appellant could bear all
her weight on the left leg without pain or tenderness. No effusion or instability was reported in
the knee. Dr. Hall diagnosed resolved left patellar tendinitis status post September 6, 2016 work
injury and left tibial/sural neuropathy status post September 6, 2016 work injury with some
continued pain. She recommended that appellant return to work without restrictions. Dr. Hall
reported that appellant had reached maximum medical improvement.
On July 2, 2018 appellant filed a claim for a schedule award (Form CA-7).
In a July 10, 2018 development letter, OWCP requested that appellant provide an
impairment rating in accordance with the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4 It afforded her 30 days to
submit the requested information.
By decision dated August 13, 2018, OWCP denied appellant’s claim for a schedule award
finding that she had not submitted sufficient evidence to establish permanent impairment of a
scheduled member or function of the body causally related to her accepted September 6, 2016
employment injury.
On August 23, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. A hearing was held on
January 3, 2019.

4

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

2

OWCP received a series of medical reports dated from September 19, 2016 to July 26,
2017 regarding appellant’s continued complaints of left knee pain.
In a January 30, 2019 statement, appellant explained that she experienced difficulty with
her leg at the onset of her fall and that her diagnosis changed after her physician ordered diagnostic
testing. She alleged that the final diagnosis would have been evident had diagnostic testing been
ordered at the onset of her fall.
By decision dated February 26, 2019, an OWCP hearing representative affirmed the
August 13, 2018 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. FECA,
however, does not specify the manner in which the percentage of loss of a member shall be
determined. For consistent results and to ensure equal justice, the Board has authorized the use of
a single set of tables so that there may be uniform standards applicable to all claimants. 7 For
schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition of the
A.M.A., Guides, published in 2009.8 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.9
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury. 10 OWCP’s procedures
provide that, to support a schedule award, the file must contain competent medical evidence which
shows that the impairment has reached a permanent and fixed state and indicates the date on which
this occurred, describes the impairment in sufficient detail so that it can be visualized on review,
and computes the percentage of impairment in accordance with the A.M.A., Guides.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of her left lower extremity, warranting a schedule award.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
9

D.S., Docket No. 18-1140 (issued January 29, 2019); Isidoro Rivera, 12 ECAB 348 (1961).

10

D.F., Docket No. 18-1337 (issued February 11, 2019); Tammy L. Meehan, 53 ECAB 229 (2001).

11

Supra note 9 at Chapter 2.808.5 (March 2017).

3

OWCP accepted that on September 6, 2016 appellant sustained a left knee contusion while
in the performance of duty. On July 2, 2018 she filed a claim for a schedule award.
Although the treatment records covering the period September 19, 2016 to July 26, 2017
reference appellant’s ongoing left knee complaints, the medical evidence provided did not include
an impairment rating in accordance with the sixth edition of the A.M.A., Guides.
The most recent medical report of record is an April 4, 2018 report by Dr. Hall who
recounted appellant’s complaints of continued left knee pain and provided examination findings.
Dr. Hall diagnosed resolved left patellar tendinitis and left tibial/sural neuropathy status post
September 6, 2016 work injury with some continued pain. She reported that appellant had reached
maximum medical improvement. Dr. Hall did not provide an impairment rating.
The Board finds that appellant has submitted no medical evidence in conformance with the
sixth edition of the A.M.A., Guides establishing that she has permanent impairment of her left
lower extremity due to her accepted left knee injury. Consequently, appellant has not established
entitlement to a schedule award. 12
On appeal counsel alleges that the decision was contrary to law and fact. The Board finds
that his argument is without merit as he has not submitted any medical evidence to establish that
her left knee injury caused any permanent impairment to her left lower extremity. 13
Appellant may request a schedule award or increased schedule award at any time 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 not met her burden of proof to establish permanent
impairment of her left lower extremity, warranting a schedule award.

12

See C.T., Docket No. 18-0544 (issued May 22, 2019).

13

See G.S., Docket No. 17-0481 (issued July 25, 2018).

4

ORDER
IT IS HEREBY ORDERED THAT the February 26, 2019 merit decision of the Office
of Workers’ Compensation Programs is affirmed.
Issued: October 7, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 20-1651
Issued: May 6, 2021

Case Submitted on the Record

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

JURISDICTION
On September 21, 2020 appellant filed a timely appeal from a September 15, 2020
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days has elapsed from OWCP’s last merit decision, dated March 9, 2018, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On January 30, 2018 appellant, then a 51-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that on January 29, 2018 he was physically assaulted on his mail route
and sustained a fractured nose, injuries to his face, mouth, eyes, and back while in the performance
1

5 U.S.C. § 8101 et seq.

of duty. On the reverse side of the claim form appellant’s supervisor noted that appellant was
injured in the performance of duty. Appellant stopped work on January 29, 2018.
In a state workers’ compensation form dated January 29, 2018, a healthcare provider whose
signature was illegible, noted that appellant was treated for multiple injuries sustained in a physical
assault. Appellant reported working as a mail carrier and, while delivering mail on January 29,
2018, he was physically assaulted. He was diagnosed with a nasal fracture and physical assault.
In an unsigned physician’s report of work ability dated January 29, 2018, appellant was reportedly
hit in the nose, mouth, head, and experienced back pain from the incident. Similarly, in a return
to work note dated January 29, 2018, the provider noted: appellant sought emergency room
treatment; was held off work on January 30, 2018; and returned to work on February 1, 2018.
In a development letter dated February 6, 2018, OWCP informed appellant that the
evidence of record was insufficient to establish his traumatic injury claim. It noted that the
evidence of record was insufficient to establish that he actually experienced the incident alleged
to have caused his injury and no diagnosis of any condition related to his injury was provided.
OWCP requested medical evidence and provided a questionnaire seeking further information
including a description of events, a list of witnesses, and any investigative a police report related
to the January 29, 2018 employment incident. It afforded appellant 30 days to submit the necessary
evidence.
In an emergency room report dated January 29, 2018, Dr. Kirk Stiffler, Board-certified in
emergency medicine, treated appellant for facial pain, headache, and back pain. Appellant
reported working as a mail carrier when he was assaulted with a closed fist by an individual while
on his route. He alleged that he was punched repeatedly in the face and head. Findings on
examination revealed diffuse bilateral lumbar paraspinal tenderness with palpation, tenderness of
the anterior aspect of the right shoulder, and limited range of motion. An x-ray of the right shoulder
revealed no acute fracture or dislocation. A computerized tomography (CT) scan of the facial
bones revealed acute minimally displaced left and right nasal bone fractures. Dr. Stiffler
diagnosed acute nasal fracture, physical assault, and lumbar strain. He discharged appellant and
recommended that he follow-up with an otolaryngologist.
By decision dated March 9, 2018, OWCP denied appellant’s traumatic injury claim, finding
that the evidence submitted was insufficient to establish the factual component of fact of injury
because he failed to submit the requested written statements, including a police report, to clearly
establish fact of injury. It concluded, therefore, that the requirements had not been met to establish
an injury as defined under FECA.
OWCP continued to receive evidence. Appellant resubmitted the following medical
reports previously of record: emergency room records from Dr. Stiffler dated January 29, 2018;
an x-ray of his right shoulder dated January 29, 2018; a CT scan of facial bones of even date; a
state workers’ compensation form of even date; an unsigned physician’s report of work ability
dated January 29, 2018; and a return to work note dated January 29, 2018. These documents were
initially submitted on February 2 and 16, 2018.
By appeal request form postmarked August 13, 2020, received by OWCP on August 18,
2020, appellant requested both an oral hearing and reconsideration.

2

In an undated statement received by OWCP on August 31, 2020, appellant withdrew his
hearing request and requested only reconsideration.
By decision dated September 15, 2020, OWCP denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA,2 OWCP has the discretion to reopen a case for further
merit review.3 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.4 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).5 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.6
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s request for reconsideration is untimely filed, OWCP must nevertheless undertake a
limited review to determine whether it demonstrates clear evidence of error.7 If a request
demonstrates clear evidence of error, it will reopen the case for merit review.8
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.9 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error.11 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.12 This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether

2

5 U.S.C. § 8101 et seq.

3

Id. at § 8128(a); P.J., Docket No. 19-1479 (issued May 8, 2020); J.W., Docket No. 18-0703 (issued
November 14, 2018).
4

20 C.F.R. § 10.607(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (September 2020).

6

C.M., Docket No. 19-1211 (issued August 5, 2020).

7

20 C.F.R. § 10.607(b); C.M., id.

8

See also id. at § 10.607(b); supra note 5 at Chapter 2.1602.5 (September 2020).

9

J.S., Docket No. 20-0337 (issued July 15, 2020).

10

Id.

11

Id.

12

Id.

3

the new evidence demonstrates clear error on the part of OWCP.13 To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.14
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard.15 The claimant must present evidence which on its face shows that OWCP made
an error. Evidence such as a detailed, well-rationalized medical report which, if submitted before
the denial was issued, would have created a conflict in medical opinion requiring further
development, is insufficient to demonstrate clear evidence of error.16 The Board makes an
independent determination of whether a claimant has demonstrated clear evidence of error on the
part of OWCP.17
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
OWCP’s regulations provide that the one-year time limitation period for requesting
reconsideration begins on the date of the last merit decision.18 The last merit decision was dated
March 9, 2018. Because appellant’s request for reconsideration was first received on August 18,
2020, more than one year after the March 9, 2018 merit decision, the Board finds that their request
was untimely filed.19 Therefore, appellant must demonstrate clear evidence of error on the part of
OWCP.20
The Board finds that appellant failed to demonstrate clear evidence of error.
On reconsideration appellant submitted several medical reports to OWCP. These reports,
however, were previously of record. Emergency room records from Dr. Stiffler dated January 29,
2018, an x-ray of his right shoulder dated January 29, 2018; a CT scan of facial bones of even date;
a state workers’ compensation form of even date; an unsigned physician’s report of work ability
dated January 29, 2018; and a return to work note dated January 29, 2018. These documents were
previously reviewed by OWCP in its March 9, 2018 decision. The Board, therefore, finds that this

13

Id.

14

See C.M., supra note 6.

15

Supra note 5 at Chapter 2.1602.4(b) (February 2016).

16

C.M., supra note 6.

17

Id.

18

20 C.F.R. § 10.607(a).

19

Id.

20

20 C.F.R. § 501.6(d); see R.T., Docket No. 20-0298 (issued August 6, 2020); G.G., Docket No. 18-1074 (issued
January 7, 2019).

4

previously submitted evidence does not raise a substantial question concerning the correctness of
OWCP’s decision and is insufficient to demonstrate clear evidence of error.21
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the September 15, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 6, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

21

C.M., supra note 6.

5