United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL SEA
SYSTEMS COMMAND, Jacksonville, FL,
Employer
__________________________________________

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

Docket No. 19-0257
Issued: August 5, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On November 15, 2018 appellant filed a timely appeal from an October 10, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish greater than 52
percent binaural hearing loss, for which he previously received schedule award compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as set forth
in the Board’s prior decisions and orders are incorporated herein by reference. The relevant facts
are as follows.
On November 9, 2009 appellant, then a 70-year-old former supply technician, filed an
occupational disease claim (Form CA-2) alleging that he had experienced increased hearing loss
causally related to factors of his federal employment. OWCP assigned the claim OWCP File No.
xxxxxx423.
OWCP had previously accepted appellant’s January 25, 1983 occupational disease claim,
assigned OWCP File No. xxxxxx735, for left-sided monaural hearing loss. By decision dated
May 21, 1984, it granted him a schedule award for 18 percent monaural hearing loss in the left ear
under OWCP File No. xxxxxx735. Appellant retired from employment in 1995.
By decision dated February 4, 2010, OWCP denied appellant’s November 9, 2009
occupational disease claim under OWCP File No. xxxxxx423. It found that the medical evidence
of record was insufficient to establish that he had sustained a diagnosed condition causally related
to the accepted employment factors.
Appellant appealed to the Board. By decision dated February 4, 2011, the Board set aside
the February 4, 2010 decision.3 The Board determined that the medical evidence of record
established appellant’s claim for binaural hearing loss and remanded the case for OWCP to
determine whether he had sustained ratable permanent impairment due to his binaural hearing loss.
On May 3, 2011 OWCP advised appellant that it had accepted his claim for binaural
hearing loss and bilateral tinnitus.
By decision dated July 27, 2011, OWCP granted appellant a schedule award for 39 percent
binaural hearing loss, minus the 18 percent left ear monaural hearing loss previously awarded
under OWCP File No. xxxxxx735. The period of the award ran for 68.64 weeks from April 24,
2011 to August 17, 2012.
Appellant appealed to the Board. By decision dated May 7, 2012, the Board affirmed the
July 27, 2011 decision.4 The Board found that appellant had no more than 39 percent binaural
hearing loss. The Board noted that OWCP had subtracted the 9.36 weeks of compensation that
appellant previously received for his left monaural hearing loss from the 78 weeks owed for the
39 percent binaural hearing loss.

2

Docket No. 10-1013 (issued February 4, 2011); Docket No. 12-0015 (issued May 7, 2012), Order Denying
Petition for Reconsideration (issued January 7, 2013); Order Dismissing Appeal, Docket No. 13-0811 (issued July 1,
2013); Docket No. 16-1863 (issued April 3, 2017).
3

Id.

4

Id.

2

By decision dated December 10, 2014, OWCP denied appellant’s claim for an additional
schedule award. It found that the medical evidence of record failed to establish greater than 39
percent binaural hearing loss for which he previously received schedule award compensation.5
On July 18, 2016 appellant requested reconsideration. He submitted a May 18, 2016
audiologist’s report in support of appellant’s claim for an increased schedule award. By decision
dated August 12, 2016, OWCP denied his request for reconsideration as it was untimely filed and
failed to demonstrate clear evidence of error.
Appellant appealed to the Board. By decision dated April 3, 2017, the Board set aside the
August 12, 2016 decision.6 The Board noted that appellant had contended that he was entitled to
an increased schedule award and submitted new evidence. The Board determined that OWCP had
erred in treating his claim for an increased schedule award as a request for reconsideration. The
Board remanded the case for OWCP to consider whether appellant had established entitlement to
an increased schedule award.
On July 11, 2017 OWCP referred appellant to Dr. John F. Ansley, a Board-certified
otolaryngologist, for a second opinion evaluation.
In a report dated July 27, 2017, Dr. Ansley diagnosed work-related sensorineural hearing
loss. He recommended hearing aids. Dr. Ansley obtained an audiogram on July 27, 2017 showing
decibel (dB) losses at the frequency levels of 500, 1,000, 2,000, and 3,000 hertz (Hz) in the right
ear of 30, 40, 54, and 70 dBs, respectively, and in the left ear of 30, 40, 70, and 80 dBs, respectively.
He determined that appellant had 40 percent binaural hearing loss with an additional 3 percent
impairment for tinnitus, for a total binaural hearing impairment of 43 percent.
On September 27, 2017 Dr. Jeffrey M. Israel, a Board-certified otolaryngologist serving as
a district medical adviser (DMA), reviewed the audiological testing performed by Dr. Ansley. He
applied OWCP’s standardized procedures to his evaluation. Using the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment, Dr. Israel
determined that appellant had 39 percent right monaural hearing loss, an additional 18 percent left
monaural loss, and a binaural hearing loss of 37 percent. He noted that the 37 percent binaural
hearing loss was less than the amount previously awarded for binaural hearing loss of 39 percent
and, thus, concluded that appellant was not entitled to an increased award.
By decision dated October 19, 2017, OWCP denied appellant’s claim for an increased
schedule award.
On January 19, 2018 appellant requested reconsideration. He advised that his tinnitus had
worsened. In support of his request, appellant submitted audiograms dated November 14 and 15,
and December 29, 2017. He further submitted a November 27, 2017 audiogram.
Appellant additionally submitted a January 12, 2018 report from a physician assistant
prepared on behalf of Cortney Van Ausdal, an audiologist. The physician assistant discussed his
5

By decision dated June 17, 2015, OWCP denied appellant’s request for an oral hearing as untimely under 5 U.S.C.
§ 8124(b).
6

Supra note 2.

3

complaints of tinnitus bilaterally and noise exposure during the course of his federal employment.
She diagnosed bilateral sensorineural hearing loss, an asymmetric word recognition score, and
occupational exposure to loud noise.
On February 15, 2018 Dr. Israel reviewed the November 27, 2017 audiogram. He found
that appellant had 63.75 percent right monaural hearing loss and 67.50 percent left monaural
hearing loss. Dr. Israel subtracted the previously awarded 18 percent left monaural hearing loss
to find 49.5 percent left monaural hearing loss. He applied the formula for determining binaural
hearing loss using the 49.5 left monaural hearing loss and the 63.74 percent right monaural hearing
loss to find 51.9 percent binaural hearing loss. Dr. Israel subtracted the 39 percent previous award
for binaural loss to find an additional 12.9 percent hearing loss. He opined that the results of
testing revealed hearing loss “due at least in part to noise-induced work-related acoustic trauma.
It appears that the audiometric test results are valid and representative of this claimant’s hearing
sensitivity.”
By decision dated April 23, 2018, OWCP vacated the October 19, 2017 decision and found
that appellant was entitled to an additional 13 percent binaural hearing loss.
By decision dated May 1, 2018, OWCP granted appellant a schedule award for an
additional 13 percent binaural hearing loss. The period of the award ran for 26 weeks from
November 27, 2017 to May 27, 2018.
On July 16, 2018 appellant requested reconsideration. He contended that he was entitled
to a schedule award for the period from August 2012 to the present. Appellant resubmitted the
November 27, 2017 audiogram.
By decision dated October 10, 2018, OWCP denied modification of its May 1, 2018
decision.
LEGAL PRECEDENT
The schedule award provisions of FECA,7 and its implementing federal regulation,8 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 loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. 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.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009.9 The Board has approved the use by

7

Supra note 2.

8

20 C.F.R. § 10.404.

9
For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.6 (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

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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.10
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each
frequency are added up and averaged.11 Then, the fence of 25 decibels is deducted because, as the
A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions.12 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.13 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss, the lesser loss is multiplied by
five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss.14 The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.15 The policy of OWCP is to round the calculated percentage of
impairment to the nearest whole number.16 OWCP’s procedures provide that percentages should
not be rounded until the final percent for award purposes is obtained. Fractions should be rounded
down from .49 and up from .50.17
If tinnitus interferes with activities of daily living, including sleep, reading, and other tasks
requiring concentration, enjoyment of quiet recreation and emotional well-being, up to five percent
may be added to measurable binaural hearing impairment.18
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish greater than 52
percent binaural hearing loss, for which he previously received schedule award compensation.
On prior appeal, by decision dated May 7, 2012, the Board affirmed OWCP’s July 27, 2011
decision, finding that appellant had not established greater than 39 percent binaural hearing loss
for which he previously received a schedule award. The Board’s review of the medical evidence
submitted prior to the July 27, 2011 decision is res judicata absent any further review by OWCP
under section 8128 of FECA.19
10

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

11

See Section 11.2, Hearing and Tinnitus, A.M.A., Guides 248-51 (6th ed. 2009).

12

Id. at 250.

13

Id. at 250-51.

14

Id. at 251.

15

See B.E., Docket No. 18-1785 (issued April 1, 2019).

16

M.H., Docket No. 18-1417 (issued February 13, 2019).

17

Id; C.D., Docket No. 18-0251 (issued August 1, 2018).

18

A.M.A., Guides 249.

19

See B.W., Docket No. 18-1415 (issued March 8, 2019).

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Subsequently, OWCP further developed the evidence by referring appellant to Dr. Ansley,
who determined that he had 43 percent binaural hearing loss.
On September 27, 2017 Dr. Israel, serving as a DMA, reviewed the audiogram obtained by
Dr. Ansley and found that appellant had 37 percent binaural hearing loss, which was less than the
previously awarded 39 percent.
Appellant requested reconsideration and submitted audiograms dated November 14 and
15, and December 4, 2017.20 He subsequently submitted a November 27, 2017 audiogram and
January 12, 2018 report from a physician assistant prepared for Ms. Van Ausdal, an audiologist.
Dr. Israel reviewed the November 27, 2017 audiogram. Testing for the right ear at the
frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed decibel losses of 70, 55, 70, and 75,
respectively. These decibels were totaled at 270 and were divided by 4 to obtain an average
hearing loss at those cycles of 67.5 decibels. The average of 67.5 decibels was then reduced by
25 decibels (the first 25 decibels were discounted as discussed above) to equal 42.5, which was
then multiplied by 1.5 to equal 63.75 percent hearing loss for the right ear.
Testing for the left ear at the frequency levels of 500, 1,000, 2,000, and 3,000 Hz revealed
decibel losses of 65, 55, 75, and 85, respectively. These decibels were totaled at 280 and divided
by 4 to obtain the average hearing loss at those cycles of 70 decibels. The average of 70 was then
reduced by 25 decibels to equal 45, which was multiplied by 1.5 to equal 67.5 percent hearing loss
for the left ear. Dr. Israel subtracted the previously awarded 18 percent monaural loss from the
current 67.5 percent monaural loss to find a left monaural loss of 49.5 percent. He determined the
binaural loss by multiplying the lesser left-sided monaural loss of 49.5 by 5, adding the right-sided
hearing loss of 63.75, and dividing the total by 6, to find 51.9 percent binaural loss. Dr. Israel
subtracted the previously awarded 39 percent binaural impairment to find an additional 12.9
percent binaural hearing loss, which OWCP rounded up to equal 13 percent.21
The Board finds that there is no current medical evidence of record supporting ratable
hearing loss greater than 52 percent binaural hearing loss previously awarded. OWCP paid
appellant schedule award compensation for the appropriate number of weeks, commencing with
the dates of MMI.22 Appellant has the burden of proof to submit evidence of additional hearing

20
These audiograms do not constitute probative medical evidence of hearing loss as they have not been certified
by a physician as accurate. See J.O., Docket No. 17-1618 (issued June 14, 2018).
21

The Board notes that OWCP’s procedures provide that, in computing binaural hearing loss, percentages should
not be rounded until the final percent for award purposes is obtained and fractions should be rounded down from .49
or up from .50. Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4b(2)(b)
(January 2010); see also R.H., Docket No. 17-0434 (issued March 12, 2018).
22

See 5 U.S.C. § 8107(c)(13)(B). This provision provides that for complete loss of hearing in both ears, or 100
percent loss, the claimant is entitled to 200 weeks of compensation. A binaural hearing loss of 52 percent yields 104
weeks of compensation, or 104 multiplied by .52. Appellant received 9.36 weeks for the 18 percent monaural loss,
68.64 weeks for the 39 percent binaural loss, after subtracting the prior monaural award, and an additional 26 weeks
for the additional 13 percent impairment, a total of 104 weeks.

6

loss under OWCP’s standardized procedures for rating hearing impairment.23
submitted such evidence in support of his claim.

He has not

On appeal appellant contends that his hearing loss continues to worsen. The Board has
found, however, that there is no evidence of record establishing greater than the 52 percent binaural
hearing loss previously awarded.
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 his burden of proof to establish greater than 52
percent binaural hearing loss, for which he previously received schedule award compensation.
ORDER
IT IS HEREBY ORDERED THAT the October 10, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 5, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

23

R.H., Docket No. 18-1721 (issued March 25, 2019); J.W., Docket No. 17-1339 (issued August 21, 2018).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
SMITHSONIAN INSTITUTION,
NATIONAL GALLERY OF ART,
Washington, DC, Employer
__________________________________________

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

Docket No. 12-1133
Issued: November 5, 2012

Case Submitted on the Record

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

JURISDICTION
On April 24, 2012 appellant filed a timely appeal from the March 28, 2012 decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant sustained permanent impairment to a scheduled member of
his body due to his accepted thoracic/lumbosacral neuritis or radiculitis conditions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 19, 2010 appellant, then a 48-year-old gardener, experienced pain in his left
buttock, left leg and right groin while lifting bags of mulch on tree mounds. He filed a claim for
benefits, which OWCP accepted for thoracic or lumbosacral neuritis or radiculitis and right groin
sprain.
In a Form CA-7 dated January 3, 2011, appellant requested a schedule award based on
partial loss of use of his left and right lower extremities.
In a report dated April 1, 2011, Dr. James Graeter, a specialist in orthopedic surgery,
stated that appellant underwent a magnetic resonance imaging (MRI) scan. It showed bulging
discs on the left side at L4-5 and L5-S1 which corresponded with his left leg symptoms.
Dr. Graeter advised that appellant was neurologically intact at the L4, L5 and S1 nerve roots. He
opined that he had a 15 percent whole person impairment based on lumbar radiculopathy.
Dr. Graeter noted, however, that, because FECA does not provide impairment awards for the
spine but to a spinal nerve, appellant did not qualify for an award under FECA because he did
not have any neurodeficit.
In a July 25, 2011 report, OWCP’s medical adviser, Dr. Craig M. Uejo, Board-certified in
occupational medicine, reviewed Dr. Graeter’s report. He found that appellant had no ratable
impairment to either of his lower extremities.
By decision dated August 2, 2011, OWCP found that appellant had no ratable impairment
causally related to an accepted condition and therefore was not entitled to a schedule award.
On October 12, 2011 appellant, through his attorney, requested reconsideration.
In an August 29, 2011 report, Dr. Rafael A. Lopez Steuart, Board-certified in orthopedic
surgery, found that appellant had a 10 percent left lower extremity pursuant to the American
Medical Association, Guides to the Evaluation of Permanent Impairment (sixth edition)
(A.M.A., Guides). Appellant had complaints of pain in the back of his left leg extending down
to the ankle with activity; that was related to his January 2010 employment injury. On
examination, Dr. Steuart found sensation and motor strength was grossly intact, with no root
tension signs.
Dr. Steuart stated that he relied on section 13.9a and Table 13-17, at pages 339-40 of the
A.M.A., Guides2 to rate a two percent, class 1 impairment, based on mild dysesthetic pain, for
neuritis. With regards to the sacroiliac injury, he utilized section 17.4 and Table 17-11, at pages
592-933 of the A.M.A., Guides to rate a two percent, class 1 impairment. Under the Combined

2

A.M.A., Guides 339-40.

3

Id. at 592-93.

2

Values Chart, this equaled a four percent whole person impairment. Relying on Table 16-10,
page 531 of the A.M.A., Guides,4 Dr. Steuart found 10 percent left leg impairment.
In a report dated November 1, 2011, Dr. Christopher R. Brigham, Board-certified in
occupational medicine and an OWCP medical adviser, reviewed Dr. Steuart’s August 29, 2011
report. He found that appellant did not have any ratable impairment of the lower extremities
pursuant to the sixth edition of the A.M.A., Guides. Dr. Brigham stated that Dr. Steuart’s
findings did not support his impairment rating, noting as follows:
“Dr. Steuart’s rating is not compliant with the A.M.A., Guides. First, his rating
using Table 13.17 under [s]ection 13.9a is not supportable. This table is used for
dysesthetic pain secondary to a peripheral neuropathy or spinal cord injury. There
has been no spinal cord injury and there is no electrodiagnostic evidence of a
peripheral neuropathy. Secondly, the use of Table 17-11 is to rate pelvis
fractures. There has been no pelvic fracture. Neither table used by Dr. Steuart is
appropriate.”
Dr. Brigham explained that spinal nerve impairment (such as radiculopathy affecting the
extremities) was to be rated pursuant to the July/August 2009 issue of (The AMA Guides
Newsletter) (hereinafter, The Guides Newsletter). He noted that Dr. Steuart documented on
physical examination that sensation and motor strength was grossly intact. Therefore, there was
no ratable spinal nerve motor or motor deficits in the lower extremity.
By decision dated March 28, 2012, OWCP denied appellant’s request for a schedule
award, finding that he had no ratable impairment. It found that Dr. Brigham’s November 1, 2011
report represented the weight of the medical evidence.
LEGAL PRECEDENT
The schedule award provision 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 evaluating schedule losses.7 The claimant has the burden of proving

4

Id. at 531.

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

7

Id.

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that the condition for which a schedule award is sought is causally related to his or her
employment.8
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.9 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.10
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP procedures indicate that The Guides
Newsletter “Rating Spinal Nerve Extremity Impairment using the sixth edition”
(July/August 2009) is to be applied.11
In addressing lower extremity impairments, due to peripheral or spinal nerve root
involvement, the sixth edition requires identifying the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on Functional History
(GMFH) and if electrodiagnostic testing were done, Clinical Studies (GMCS).12 The net
adjustment formula is (GMFH - CDX) + (GMCS - CDX).13
ANALYSIS
OWCP accepted that appellant sustained the conditions of thoracic/lumbosacral neuritis
or radiculitis. The medical reports of record, however, do not establish permanent impairment to
the lower extremities due to the accepted conditions. Dr. Graeter stated in April 1, 2010 report
that appellant was neurologically intact at the L4, L5 and S1 nerve roots. He noted a 15 percent
whole person impairment based on lumbar radiculopathy. An OWCP medical adviser reviewed
Dr. Graeter’s report on July 25, 2010 and noted that a schedule award was not payable under

8

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

9

Pamela J. Darling, 49 ECAB 286 (1998).

10

Thomas J. Engelhart, 50 ECAB 319 (1999).

11

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, Part 3
-- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010). The Newsletter is included as
Exhibit 4.
12

A.M.A., Guides 533.

13

Id. at 521.

4

FECA for injury to the spine14 or based on whole person impairment.15 Dr. Graeter’s report
failed to properly rate impairment to a scheduled member as listed in section 8107.
Appellant requested reconsideration and submitted the August 29, 2011 report of
Dr. Steuart, a treating physician, who noted a 10 percent left leg impairment. Dr. Brigham,
OWCP’s medical adviser, reviewed this report and found that the impairment rating did not
conform to the A.M.A., Guides. He noted that the two percent impairment rating for neuritis
based on mild dysesthetic pain was not applicable because Table 13-17 was intended to rate
dysesthetic pain secondary to a peripheral neuropathy or spinal cord injury. As appellant did not
sustain a spinal cord injury and there was no electrodiagnostic evidence of a peripheral
neuropathy, Dr. Brigham found no ratable impairment under this section. In addition,
Dr. Brigham found that Dr. Steuart’s use of Table 17-11 was not appropriate because appellant
did not sustain a pelvis fracture.
Dr. Brigham determined that Dr. Steuart failed to utilize the tables in The Guides
Newsletter, July/August 2009, and page 430, in addition to the adjustment grid at section 15.3, in
conjunction with Table 15-7, Table 15-8 and Table 15-9 at page 406-11 of the A.M.A., Guides.
He explained that the examiner was required to use neurologic examination findings, apply them
to the net adjustment at Table 15-7, Table 15-8 and Table 15-9 and then define the impairment
values in Table 15-20 at page 434 of the A.M.A., Guides. Dr. Brigham stated that this same
process could be used with the new proposed tables in The Guides Newsletter, July/August 2009,
in which the ratings for the sensory and motor components are calculated through this process,
adjusted for GMFH and GMCS, then combined. Dr. Steuart noted on physical examination that
sensation and motor strength was grossly intact. Based on these findings, Dr. Brigham
concluded that appellant had no ratable spinal nerve motor or motor deficits in the lower
extremity and that he had a zero percent lower extremity impairment.
For peripheral nerve impairments to the upper or lower extremities resulting from spinal
injuries, OWCP procedures indicate that The Guides Newsletter “Rating Spinal Nerve Extremity
Impairment using the sixth edition” (July/August 2009) is to be applied.16 The Board finds that
Dr. Brigham, properly applied the A.M.A., Guides to rate appellant’s left lower extremity
impairment. Dr. Brigham’s report constitutes the weight of medical opinion. Dr. Steuart’s
August 29, 2011 report did not provide sufficient findings required to meet the standards for
rating a lower extremity impairment for appellant’s condition set forth in the sixth edition of the
A.M.A., Guides and the July/August 2009 edition of The Guides Newsletter. His report does not
provide adequate medical rationale in support of his opinion that appellant is entitled to a 10
percent schedule award for the left lower extremity.17 OWCP properly determined that

14

Supra note 9.

15

N.M., 58 ECAB 273 (2007).

16

Supra note 11.

17

William C. Thomas, 45 ECAB 591 (1994).

5

Dr. Steuart’s report did not provide a basis for a schedule award under FECA.18 The Board will
affirm the March 28, 2012 decision.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not sustained any permanent impairment to a
scheduled member of his body causally related to his accepted thoracic/lumbosacral neuritis or
radiculitis conditions, thereby entitling him to a schedule award under 5 U.S.C. § 8107.
ORDER
IT IS HEREBY ORDERED THAT the March 28, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 5, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

18

The Board notes that a description of appellant’s impairment must be obtained from appellant’s physician,
which must be in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly
visualize the impairment with its resulting restrictions and limitations. See Peter C. Belkind, 56 ECAB 580,
585 (2005).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, San Juan, PR, Employer
__________________________________________

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

Docket No. 14-1655
Issued: February 20, 2015

Case Submitted on the Record

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

JURISDICTION
On July 25, 2014 appellant filed a timely appeal from a February 12, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration without a merit review. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, and because more than 180 days elapsed from
January 23, 2013 the date of the most recent OWCP merit decision, to the filing of this appeal,
the Board lacks jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was not timely filed and failed to present clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 11, 2012 appellant, then a 35-year-old transportation security officer, filed an
occupational disease claim alleging a neck injury due to factors of her employment. She first
became aware of her condition on January 15, 2012 and became aware of its relation to her
federal employment on January 31, 2012. Appellant stopped work on February 4, 2012.
Appellant submitted a January 17, 2012 report from Dr. Nancy Alicea-Valentin, a Boardcertified physiatrist, who diagnosed shoulder pain and cervicodorsal back pain. Dr. AliceaValentin advised that the injury occurred after seasonal overuse of the extremity at the work area.
She further advised that a magnetic resonance imaging (MRI) scan of the cervical spine had been
ordered. In a February 13, 2012 report, Dr. Alicea-Valentin noted that appellant had previously
undergone shoulder decompression subacromial surgery in October 2009 and arthroscopic
synovectomy and anesthetic manipulation in April 2010. She advised that authorization requests
for the MRI scans of the spine and shoulder were still pending. Dr. Alicea-Valentin also advised
that paraspinal muscle spasms were evident at the cervicodorsal back, upper trapezius muscles,
levator scapulae muscles, and sternocleidomastoid muscle region. In a March 15, 2012 attending
physician’s report (Form CA-20), she checked the box “yes” indicating that appellant’s condition
was employment related.
In a February 16, 2012 MRI scan report of the cervical spine, Dr. Diana Fernandez
Garcia, a diagnostic radiologist, found muscle spasms, multilevel degenerative changes, and
discogenic disease.
In a February 27, 2012 report, Dr. Alicea-Valentin advised that a February 21, 2012 MRI
scan of the right shoulder revealed impingement syndrome and mild hypertrophy of the
acromioclavicular joint causing a mild mass effect. She also advised that the February 16, 2012
cervical spine MRI scan revealed multilevel degenerative disc changes, tiny anterior osteophytes
at multiple levels, and muscle spasm at C3-C4 through C7-T1 and T2-3. Dr. Alicea-Valentin
indicated that there was a three- to four-millimeter diffuse posterior disc bulge causing
impression of the subarachnoid space anteriorly, but with existing nerve roots appearing intact.
In a March 7, 2012 disability status report, she advised that appellant was unable to return to
work until March 14, 2012.
In a June 11, 2012 statement, appellant advised that on January 15, 2012 she felt neck
and shoulder pain while performing the repetitive activity of checking boarding passes and IDs.
In a statement dated June 11, 2012, appellant’s supervisor acknowledged notice of appellant’s
condition on January 15, 2012.
By letter dated July 11, 2012, OWCP notified appellant that the evidence was insufficient
to establish her claim and advised her of the type of evidence needed to establish her claim.
In an August 6, 2012 response to OWCP’s questionnaire, appellant advised that she
injured herself on January 15, 2012 when she was looking up and down to check boarding passes
and identifications. She stated that she performed this activity for four shifts on the date of her
injury for 30 to 45 minutes each shift. Appellant advised that she began to feel sharp neck pain
that was so bad that she could not lift her head. She further advised that she notified her

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supervisor who switched her to a position that did not require her to look up and down.
Appellant stated that at the end of her shift she could barely stand and that her neck and
shoulders were swollen.
By decision dated September 7, 2012, OWCP denied appellant’s claim because the
medical evidence was insufficient to establish that appellant’s condition was causally related to
the accepted work events.
On October 3, 2012 appellant requested a review of the written record and provided an
October 2, 2012 report from Dr. Alicea-Valentin who diagnosed right cervical radiculitis,
cervical spine muscle spasm, cervical spine degenerative changes, and cervical spine discogenic
disease. Dr. Alicea-Valentin also noted that appellant sustained a cervical whiplash. She stated
that repetitive flexion and extension movements of the neck and trunk, while performing
assigned duties at the checkpoint area on January 15, 2012, caused appellant’s injury.
Dr. Alicea-Valentin further advised that repetitive movements with both upper extremities,
reaching above shoulder level in a repetitive fashion, and prolonged standing increased cervical
spine axial stress load and forces which may have caused progressive discogenic disease and
degenerative cervical radiculitis. She opined that she had no doubt that there was a correlation
between appellant’s job and the pathological conditions that she described.
Appellant submitted a claim for compensation (Form CA-7) requesting wage-loss
compensation for November 1, 2012 through January 3, 2013.
By decision dated January 23, 2013, an OWCP hearing representative denied appellant’s
claim because medical evidence was not based on a complete factual and accurate history and
was insufficient to establish that the diagnosed conditions were causally related to the
employment injury.
Appellant continued to submit status reports from Dr. Alicea-Valentin. These included
February 19 and May 6, 2013 attending physician’s reports noting appellant’s status, diagnosis
codes, and checking a box “yes,” that her condition was employment related. Each report
indicated that appellant performed repetitive duties at work. Dr. Alicea-Valentin also submitted
work capacity evaluation forms of the same dates, setting forth appellant’s work restrictions.
On January 28, 2014 OWCP received appellant’s request for reconsideration. In support
of her request, appellant submitted an October 23, 2013 report from Dr. Mildred Diaz, a family
medicine specialist, who noted that appellant complained of severe neck pain, severe right
shoulder pain, and weakness in the upper extremities that was more severe on the right side.
Dr. Diaz diagnosed cervical radiculopathy and cervical disc bulge at C2-3, C3-4, C4-5, C5-6,
and C-6-7. She opined that appellant’s diagnosed conditions were the direct result of repetitive
neck movements, including looking up and down to check passenger identifications and
boarding passes. Dr. Diaz stated that lifting suitcases and packages weighing up to 70 pounds
also contributed to her condition. In her opinion, these tasks put excessive strain on appellant’s
neck which led to multiple level cervical disc bulges. Those disc bulges led to appellant’s
secondary condition of cervical radiculopathy.

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By decision dated February 12, 2014, OWCP denied appellant’s request for
reconsideration because it was untimely filed and did not establish clear evidence of error.
On appeal, appellant argued that she postmarked her request for reconsideration within
one year of OWCP’s January 23, 2013 merit decision. She further argued that a snow storm
delayed the delivery of her request.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA. It will not review a decision denying or terminating a
benefit unless the application for review is received within one year of the date of that decision.2
When an application for review is untimely, OWCP undertakes a limited review to determine
whether the application presents clear evidence that OWCP’s final merit decision was in error.3
Its regulations state that OWCP will reopen a claimant’s case for merit review, notwithstanding
the one-year filing limitation set forth in section 10.607 of OWCP regulations, if the claimant’s
application for review shows clear evidence of error on the part of OWCP.4 In this regard,
OWCP will limit its focus to a review of how the newly submitted evidence bears on the prior
evidence of record.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP. The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. 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 the new evidence demonstrates clear error on the part of OWCP. To show 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.6
OWCP procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP
made an error (for example, proof that a schedule award was miscalculated). 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 not clear

2

20 C.F.R. § 10.607(a) (2011).

3

Cresenciano Martinez, 51 ECAB 322 (2000).

4

20 C.F.R. § 10.607(b) (2011).

5

See Alberta Dukes, 56 ECAB 247 (2005).

6

Robert G. Burns, 57 ECAB 657 (2006).

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evidence of error.7 The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of OWCP.8
ANALYSIS
The Board finds that OWCP properly found appellant’s request for reconsideration
untimely filed. The most recent OWCP merit decision in this case was issued on
January 23, 2013. Appellant’s request for reconsideration was not received by OWCP until
January 28, 2014, more than one year after the January 23, 2013 merit decision. Therefore, it
was not timely filed. Consequently, appellant must demonstrate clear evidence of error by
OWCP in denying her claim for compensation.
On appeal, appellant argues that she postmarked her request for reconsideration before
the one-year time limitation and that a snow storm delayed its delivery. OWCP regulations,
however, are clear that an application for reconsideration must be received by OWCP within one
year of the date of OWCP’s decision for which review is sought. Thus, the fact that the
reconsideration letter was mailed before January 23, 2014 does not constitute a timely filing.
The regulatory language unequivocally sets a one-year time limitation for reconsideration
requests to be received by OWCP.9
The Board finds that appellant has not established clear evidence of error in the denial of
her occupational disease claim. On appeal, appellant argues that medical evidence submitted
after its January 23, 2013 decision, but prior to her request for reconsideration, was not
considered and that such evidence establishes causal relationship. When evidence is submitted
in support of an untimely request for reconsideration, OWCP may only undertake a limited
review of the evidence to determine whether it amounts to clear evidence of error. The Board
finds that OWCP properly undertook a limited review of evidence submitted after its January 23,
2013 decision to determine whether there was clear evidence of error. Appellant submitted
February 19 and May 6, 2013 attending physician’s reports from Dr. Alicea-Valentin. These
reports indicated that appellant performed repetitive duties at work, noted appellant’s status, and
offered diagnoses. Dr. Alicea-Valentin checked a box “yes” on the form reports to indicate that
appellant’s condition was employment related. She also submitted work capacity evaluation
forms of the same dates, setting forth appellant’s work restrictions. The work capacity
evaluation did not specifically address causal relationship. While the attending physician’s
reports provide some support for causal relationship, they do not raise a substantial question as to

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011);
James R. Mirra, 56 ECAB 738 (2005).
8

Nancy Marcano, 50 ECAB 110 (1998).

9

20 C.F.R. § 10.607(a). (Effective August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP decision for which review is sought.)

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the correctness of OWCP’s decision in its denial of appellant’s claim.
insufficient to shift the weight of the evidence in favor of appellant.10

These reports are

Appellant also submitted Dr. Diaz’s October 23, 2013 report in which the physician
opined that appellant’s work duties were causally related to her diagnosed conditions. She stated
that appellant’s duties put excessive strain on her neck which led to multiple level cervical disc
bulges and that those bulges led to appellant’s secondary condition of cervical radiculopathy.
While this report again supports causal relationship and provides some explanation, it is
insufficient to establish clear evidence of error on the part of OWCP in its denial of appellant’s
claim. As noted, it is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. The term clear evidence of error is intended to represent a
difficult standard.11 The evidence submitted by appellant after OWCP’s January 23, 2013
decision does not manifest on its face that OWCP committed an error in denying appellant’s
claim.
Appellant has not otherwise submitted evidence of sufficient probative value to raise a
substantial question as to the correctness of OWCP’s January 23, 2013 decision. Thus, the
evidence is insufficient to establish clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.

10

See supra note 7 (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 not clear
evidence of error).
11

Id.

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ORDER
IT IS HEREBY ORDERED THAT the February 12, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 20, 2015
Washington, DC

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

Colleen Duffy Kiko, 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
__________________________________________
G.L., Appellant
and
U.S. POSTAL SERVICE, BROOKLYN
PROCESSING & DISTRIBUTION CENTER,
Brooklyn, NY, Employer
__________________________________________
Appearances:
James D. Muirhead, Esq., for the Appellant
Office of Solicitor, for the Director

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Docket No. 15-1939
Issued: April 18, 2016

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

On September 28, 2015 appellant, through counsel, filed a timely appeal from an April 9,
2015 merit decision and an August 25 nonmerit decision of the Office of Workers’
Compensation Programs (OWCP). The Clerk of the Board docketed the appeal as No. 15-1939.
The Board has duly considered the matter and finds that this case is not in posture for decision.
By letter dated May 9, 2002, OWCP accepted that on January 12, 2002 appellant, then a
55-year-old mail processor/clerk, sustained a concussion, contusion of the head, neck sprain, and
left shoulder sprain as a result of being hit on the head by the top metal bar of a post con.
Appellant was paid compensation on the daily rolls until she returned to work on April 17, 2002
in a limited-duty part-time position. She continued to be paid partial wage-loss compensation.
Appellant claimed a recurrence of disability (Form CA-2a) on May 11, 2010 which was
accepted by decision dated June 4, 2010 and she was paid wage-loss compensation. She
accepted a part-time modified-duty assignment on August 26, 2013. OWCP, however, continued
to pay compensation for total disability through October 19, 2013.
On June 19, 2014 appellant again filed a recurrence of disability claim (Form CA-2a)
alleging that her limited-duty position had been withdrawn on August 29, 2013. In an October 1,

2014 decision, OWCP denied appellant’s claim for recurrence of disability, finding that the
evidence was insufficient to establish the withdrawal of her limited-duty position.
By letter dated February 25, 2015, OWCP advised appellant of a preliminary
determination that she had received an overpayment of $5,289.43 from August 26 to October 19,
2013 as she was paid disability compensation after her return to “full-time” work on
August 26, 2013. It stated that she received compensation in the amount of $2,596.63 for the
period August 25 to September 21, 2013 and $2,692.80 for the period September 22 to
October 19, 2013, which yielded an overpayment of $5,289.43. It found appellant at fault in its
creation because she was aware or should have reasonably been aware that she accepted
payments for total disability after returning to work. OWCP afforded her 30 days to submit
financial information and to request either a telephone conference, decision on the written
evidence, or a prerecoupment hearing.
Appellant did not respond to the preliminary overpayment determination. On April 9,
2015 OWCP finalized the determination that she was at fault in the creation of the $5,289.43
overpayment because she knew or reasonably should have known that she was not entitled to
compensation after returning to work. It noted that appellant had not responded to the
preliminary determination. OWCP requested that she repay the full amount of the overpayment
within 30 days.
In letters received by OWCP on July 30, 2015, appellant, through counsel, requested a
prerecoupment hearing on the overpayment decision, requested reconsideration of the October 1,
2014 OWCP decision denying appellant’s claim for recurrence, and requested a copy of the
record. Counsel noted that on August 26, 2013 appellant had only returned to part-time work,
four hours a day and that she worked only for about one week before the position was
withdrawn. He asserted that the amount of the overpayment would have been nominal as it
should have only included four or five days of part-time work.
In an August 26, 2015 decision, OWCP’s Branch of Hearings and Review denied
appellant’s request for a prerecoupment hearing as untimely. It found that she had not requested
a hearing within 30 days after the February 25, 2015 preliminary overpayment determination,
and that a final overpayment decision was not subject to the hearing provision of 5 U.S.C.
§ 8124(b).
The Board finds that the issues concerning the overpayment decision are not in posture
for decision. Appellant’s claim that she sustained a recurrence of disability, commencing
August 29, 2013, bears on the issue of fact and amount of overpayment. On July 30, 2015
appellant requested reconsideration of the October 1, 2014 decision denying her recurrence
claim. OWCP had not issued a decision with regard to that request for reconsideration when
appellant filed this appeal.
A final decision on the recurrence claim is critical to any decision on fact or amount of
overpayment in this case. At the time of the filing of this appeal, the issue on appeal is not ripe
for decision.1 Accordingly, this case will be remanded for further development.
1

20 C.F.R. § 501.2(c)(2).

2

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 25 and April 9, 2015 are set aside and the case is
remanded for further action consistent with this order.
Issued: April 18, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.B., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF INDIAN AFFAIRS, Lapwai, ID, Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1656
Issued: July 22, 2010

Case Submitted on the Record

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

JURISDICTION
On July 22, 2009 appellant timely appealed the March 5, 2009 nonmerit decision of the
Office of Workers’ Compensation Programs, which denied reconsideration. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the March 5, 2009 nonmerit
decision.
ISSUE
The issue is whether the Office properly denied appellant’s February 18, 2009 request for
reconsideration under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case was previously before the Board.1
Appellant, a 75-year-old soil
conservationist, has an accepted claim for major depression, which arose on or about
November 1, 1986. In a decision dated February 3, 2005, the Office terminated his wage-loss
1

Docket No. 07-1265 (issued September 9, 2008).

compensation and medical benefits based on the January 4, 2005 report of Dr. Bert S.
Furmansky, a Board-certified psychiatrist and impartial medical examiner (IME), who diagnosed
recurrent major depression without psychosis, in remission, dysthymia, obsessive-compulsive
disorder and history of alcohol abuse. Dr. Furmansky found that appellant’s current psychiatric
diagnoses were unrelated to his previous employment.2 In terminating compensation and
medical benefits, the Office accorded determinative weight to the IME’s January 4, 2005
opinion. By decision dated January 11, 2007, the Branch of Hearings and Review affirmed the
Office’s February 3, 2005 decision. When the case was previously on appeal, the Board
affirmed the Office’s decision to terminate appellant’s compensation and medical benefits based
on Dr. Furmansky’s January 4, 2005 opinion. The Board’s September 9, 2008 decision is
incorporated herein by reference.
On February 18, 2009 appellant, with the assistance of counsel, filed a request for
reconsideration. The request consisted of a one-page, six-sentence letter that incorporated by
reference the July 12, 2007 brief counsel previously submitted to the Board under Docket No.
07-1265.3 In his February 18, 2009 request for reconsideration, counsel noted that the Board
reviewed the case and issued a decision on September 9, 2008. In the prior appeal, he argued,
that the IME relied on a defective SOAF dated December 30, 2003. However, Dr. Furmansky
did not rely on a December 30, 2003 SOAF, but instead relied upon an amended SOAF dated
August 19, 2004.4 On reconsideration before the Office, counsel alleged that neither the Office
nor the Board had addressed whether the “SOAF was defective.”5 He argued that the SOAF
was, in fact, defective and that it was error to base the IME’s report on a defective SOAF. No
additional evidence was submitted with the February 18, 2009 request for reconsideration.
In a decision dated March 5, 2009, the Office denied appellant’s request for
reconsideration. It indicated that Dr. Furmansky had been provided an amended SOAF dated
August 19, 2004, a fact that was duly noted in both the hearing representative’s January 11, 2007
decision and the Board’s September 9, 2008 decision. The Office quoted passages from both
decisions reflecting that the issue of the alleged defective SOAF had been previously addressed.

2

The Office provided Dr. Furmansky an August 19, 2004 amended statement of accepted facts (SOAF) that
identified appellant’s June 26, 1989 request for a desk audit as the sole compensable employment factor. Appellant
requested a desk audit because of his inability to complete certain assignments. He stated that he was expected to
fill quotas that were far beyond his “mental and physical abilities.” Appellant also noted that he had “tried to
complete [his] assignment of leases, but the amount [was] overwhelming.”
3

Counsel’s July 12, 2007 brief was not part of the case record the Board returned to the Office after issuing its
September 9, 2008 decision. Although part of the Board’s records, briefs submitted on appeal are not customarily
made a part of the permanent case record. Thus, when counsel referenced his previous appeal brief in the
February 18, 2009 request for reconsideration, the Office’s senior claims examiner had nothing to refer to on
reconsideration.
4

See supra note 2.

5

Although reconsideration was an available option, counsel did not seek further Board review following the
issuance of the September 9, 2008 decision. See 20 C.F.R. § 501.7(a) (2008).

2

Because appellant did not raise any substantive legal questions or submit any relevant and
pertinent new evidence, the Office found that he was not entitled to merit review.6
LEGAL PRECEDENT
The Office has the discretion to reopen a case for review on the merits.7 Section
10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that, the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point
of law; (ii) advances a relevant legal argument not previously considered by the Office; or
(iii) constitutes relevant and pertinent new evidence not previously considered by the Office.8
When an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration
without reopening the case for a review on the merits.9
ANALYSIS
In the current appeal, counsel acknowledged that Dr. Furmansky relied on the amended
SOAF dated August 19, 2004. For the first time on appeal, he argues that the August 19, 2004
SOAF is inaccurate and incomplete. Counsel also argues that it was error for the Office not to
conduct a merit review based on the arguments raised in his February 18, 2009 request for
reconsideration.10
Appellant’s February 18, 2009 request for reconsideration neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, he did not advance a relevant legal argument not previously considered by the
Office. Appellant’s counsel claimed that neither the Office nor the Board had addressed whether
the “SOAF was defective.” In his current brief, he acknowledged that both the hearing
representative and the Board noted in their respective decisions that the IME relied upon an
amended SOAF, and not the December 30, 2003 SOAF that he previously argued was defective.
In the March 5, 2009 decision denying reconsideration, the senior claims examiner
correctly noted that both the Branch of Hearings and Review and the Board “discussed the
updated and amended SOAF dated August 19, 2004 that was provided to Dr. Furmansky …
specifically addressed [counsel’s] argument that the SOAF was defective.”

6

The Office purports to affirm the Board’s September 9, 2008 decision. However, the Board’s decision is not
subject to review by the Office. Board decisions are final as to the subject matter appealed and such decisions shall
not be subject to review, except by the Board. 20 C.F.R. § 501.6(c).
7

5 U.S.C. § 8128(a) (2006).

8

20 C.F.R. § 10.606(b)(2) (2009).

9

Id. at § 10.608(b).

10

He cited the applicable regulations governing reconsideration requests and referenced several Board decisions
that generally describe the grounds for merit review.

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The second full paragraph on page 6 of the Board’s September 9, 2008 decision reads as
follows:
Contrary to counsel’s argument, Dr. Furmansky did not rely on a December 30,
2003 statement of accepted facts. As noted, the Office provided Dr. Furmansky
with an amended statement of accepted facts dated August 19, 2004. This latest
statement of accepted facts correctly identified appellant’s June 26, 1986 request
for a desk audit as the only compensable employment factor, which is consistent
with the Office’s initial statement of accepted facts dated April 30, 1991.
The hearing representative similarly acknowledged counsel’s argument about an
“incomplete SOAF.” He noted that counsel “questioned whether Dr. Furmansky ... reviewed an
adequate SOAF.” The hearing representative responded that “Dr. Furmansky’s opinion was
based upon a complete and accurate factual history of the case, as he reviewed a SOAF which
was updated and amended by the Office....”
Contrary to counsel’s February 18, 2009 argument on reconsideration, both the hearing
representative and the Board addressed the allegedly defective SOAF that Dr. Furmansky
allegedly relied upon in formulating his January 4, 2005 opinion. Accordingly, 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).11 He also failed to satisfy the third requirement under
section 10.606(b)(2). Appellant did not submit any relevant and pertinent new evidence with his
February 18, 2009 request for reconsideration. Consequently, he is not entitled to a review of the
merits of his claim based on the third requirement under section 10.606(b)(2).12
CONCLUSION
The Office properly denied appellant’s February 18, 2009 request for reconsideration.

11

20 C.F.R. § 10.606(b)(2)(i) and (ii).

12

Id. at § 10.606(b)(2)(iii). Counsel’s citation regarding the grounds for merit review does not establish that the
Office improperly denied reconsideration. The propriety of the Office’s March 5, 2009 decision is judged based on
the evidence and argument presented on reconsideration.

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ORDER
IT IS HEREBY ORDERED THAT the March 5, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 22, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.A., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENER/FACILITY,
Carol Stream, IL, Employer
__________________________________________

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

Docket No. 19-1910
Issued: September 29, 2020

Case Submitted on the Record

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

JURISDICTION
On September 11, 2019 appellant filed a timely appeal from a July 8, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated June 11, 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.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the July 8, 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 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 February 10, 2018 appellant, then a 62-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that she developed “occupational illnesses” as a
result of factors of her federal employment which included moving and lifting heavy boxes. She
noted that she first became aware of her condition on June 30, 2015 and realized its relationship
to her federal employment on December 23, 2016.
OWCP subsequently received a February 7, 2018 statement from appellant claiming that
moving and lifting heavy boxes at work had taken a toll on her right knee and caused pain due to
overuse.
In a December 18, 2017 medical report, Dr. Ankur Chhadia, an attending Board-certified
orthopedic surgeon, treated appellant for right knee pain and noted a history that appellant had
worked at the employing establishment for 23 years and during the past 3 years her job duties
included moving and lifting heavy boxes which had taken a toll on her right knee and caused pain
due to overuse. He conducted a physical examination, reviewed x-rays, and noted an impression
of early right knee osteoarthritis, possible left main trunk. Dr. Chhadia advised that appellant
could perform full-duty work.
In a December 21, 2017 right knee magnetic resonance imaging (MRI) scan report,
Dr. Gregory Goldstein, a diagnostic radiologist, provided impressions of small effusion, discoid
lateral meniscus, and intact menisci and ligaments.
OWCP, in an April 4, 2018 development letter, informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her of the type of factual and medical
evidence necessary to establish her claim and provided a questionnaire for her completion to.
OWCP afforded appellant 30 days to submit the necessary evidence.
OWCP subsequently received an April 25, 2018 letter in which Dr. Chhadia noted that the
onset of appellant’s symptoms began in June 2015. Dr. Chhadia also noted her various work
duties, which included twisting, standing, walking, squatting, and bending. He diagnosed right
knee osteoarthritis with early mild aggravation and right knee discoid lateral meniscus.
Dr. Chhadia opined, “to a reasonable degree of medical certainty,” that the mechanism of loading
of appellant’s occupational functions, the time course related to these factors, and her history and
objective findings contributed and temporarily aggravated her right knee early arthritis.
By decision dated June 11, 2018, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish the alleged factors of his federal
employment. As such, it concluded that the requirements had not been met to establish an injury
as defined by FECA.

2

On June 20, 2018 appellant requested a telephonic oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
OWCP subsequently received a letter dated May 17, 2018, wherein Dr. Chhadia noted his
review of diagnostic test results and reported appellant’s right knee symptoms. Dr. Chhadia opined
that her severe right knee conditions were related to her work duties and aggravated by lifting tubs
and trays weighing between 5 and 70 pounds, bending, sitting approximately six hours per day,
five days per week, and standing and walking around in a circle for approximately 30 to 45 minutes
while dispatching.
On September 11, 2018 OWCP scheduled a telephonic hearing for October 19, 2018 and
provided appellant with the time, telephone number, and required passcode. Appellant did not
appear for the scheduled telephonic hearing.
By decision dated October 29, 2018, OWCP found that appellant had failed to appear at
the oral hearing before an OWCP hearing representative and, thus, had abandoned her request. It
indicated that she had received written notice of the hearing scheduled for October 19, 2018 30
days in advance, but she failed to appear or contact the Branch of Hearings and Review either prior
to or subsequent to the scheduled hearing to explain her absence.
On March 29, 2019 appellant requested reconsideration. In an accompanying letter, she
stated, “I am requesting a [r]econsideration in regards to my knee injury case.” Appellant
submitted copies of the previously submitted April 25 and May 17, 2018 letters of Dr. Chhadia
and December 21, 2017 MRI scan report of Dr. Goldstein and contended that this evidence was
sufficient to establish that her diagnosed right knee conditions were work related. Appellant noted
that she appeared at the scheduled hearing, but missed it by one hour.
Appellant also submitted her April 27, 2018 response to OWCP’s development
questionnaire noting that her work duties involved lifting boxes weighing up to 70 pounds eight
hours per day, five days per week. She indicated that she had no hobbies or volunteer activities
outside her federal employment.
OWCP, by letter dated June 5, 2019, informed appellant that she could not request
reconsideration of its October 29, 2018 hearing abandonment decision. It noted that the appeal
rights accompanying that decision only allowed her to appeal to the Board within 180 days of the
decision date and, “That timeframe has expired.”
In a letter received by OWCP, on June 17, 2019, appellant stated, “I … request a review
and consideration of my recently submitted reconsideration request.” She contended that she was
not given detailed instructions on how to appeal her case. Appellant also contended that she did
not attend the scheduled oral hearing because she did not know when and where it was held.
By decision dated July 8, 2019, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

3

LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, 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 The one-year period for requesting reconsideration begins
on the date of the original OWCP decision, but the right to reconsideration within one year also
accompanies any subsequent merit decision on the issues, including any merit decision by the
Board.5 Timeliness is determined by the document receipt date (i.e., the “received date” in
OWCP’s Integrated Federal Employees’ Compensation System (iFECS)).6 The Board has found
that the imposition of the one-year limitation does not constitute an abuse of the discretionary
authority granted OWCP under section 8128(a) of FECA.7
OWCP may not deny a request for reconsideration solely because it was untimely filed.
When a request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether the application demonstrates clear evidence of error.8 OWCP’s
regulations and procedures provide that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s
request demonstrates clear evidence of error on the part of OWCP.9
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflicting medical opinion or establish a clear procedural
error, but 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.10
The Board notes that clear evidence of error is intended to represent a difficult standard.11
Evidence that does not raise a substantial question concerning the correctness of OWCP’s decision
is insufficient to demonstrate clear evidence of error.12 It is not enough merely to establish that

3

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
4

20 C.F.R. § 10.607(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4a (February 2016).

6

Id. at Chapter 2.1602.4(b) (February 2016).

7

See R.L., Docket No. 18-0496 (issued January 9, 2019).

8

See 20 C.F.R. § 10.607(b); G.G., Docket No. 18-1074 (issued January 7, 2019).

9

Id. at § 10.607(b); supra note 5 at Chapter 2.1602.5(a) (February 2016).

10

G.G., supra note 8.

11

M.P., Docket No. 19-0200 (issued June 14, 2019); R.L., supra note 7.

12

E.B., Docket No. 18-1091 (issued December 28, 2018).

4

the evidence could be construed so as to produce a contrary conclusion.13 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence demonstrates
clear error on the part of OWCP.14 In this regard, the Board will limit its focus to a review of how
the newly submitted evidence bears on the prior evidence of record.15 The Board makes an
independent determination as to whether a claimant has demonstrated clear evidence of error on
the part of OWCP.16
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
The last merit decision was OWCP’s June 11, 2018 decision, which denied appellant’s
occupational disease claim. The Board finds that the March 29, 2019 request is a timely
reconsideration request of OWCP’s June 11, 2018 merit decision denying her occupational disease
claim for an alleged knee injury. Appellant not only requested reconsideration of her hearing
abandonment issue, but she also requested “reconsideration” of her “knee injury case.” As
appellant’s request for reconsideration was received by OWCP on March 29, 2019 within one year
of the June 11, 2018 merit decision, it was timely filed. Therefore, OWCP should have applied
the standard applicable to a timely reconsideration request as set forth in 20 C.F.R. § 10.606(b)(3)
rather than the more stringent clear evidence of error standard for an untimely request for
reconsideration set forth in 20 C.F.R. § 10.607(a). Because it erroneously reviewed the evidence
submitted in support of appellant’s reconsideration request under the clear evidence of error
standard, the Board will remand the case for review of the newly submitted evidence under the
proper standard of review for a timely reconsideration request.17
Thus, the Board finds that the case shall be remanded for proper adjudication and
application of the appropriate standard of review, to be followed by an appropriate decision.18
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim.

13

J.W., Docket No. 18-0703 (issued November 14, 2018).

14

P.L., Docket No. 18-0813 (issued November 20, 2018).

15

A.F., 59 ECAB 714 (2008), D.G., 59 ECAB 455 (2008).

16

W.R., Docket No. 19-0438 (issued July 5, 2019); C.Y., Docket No. 18-0693 (issued December 7, 2018).

17

A.K., Docket No. 20-0003 (issued June 2, 2020); J.H., Docket No. 18-1367 (issued July 17, 2019); E.S., Docket
No. 17-0698 (issued July 14, 2017).
18

A.K., id.; J.H., id.; W.R., Docket No. 16-0098 (issued May 26, 2016).

5

ORDER
IT IS HEREBY ORDERED THAT the July 8, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: September 29, 2020
Washington, DC

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

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

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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 10-1050
Issued: January 13, 2011

Case Submitted on the Record

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

JURISDICTION
On March 8, 2010 appellant timely appealed a December 23, 2009 decision of the Office
of Workers’ Compensation Programs terminating her compensation. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s wage loss
and medical compensation effective March 15, 2009 on the grounds that she no longer had any
residuals or disability causally related to her accepted employment-related injuries.
FACTUAL HISTORY
On November 25, 2007 appellant, then a 56-year-old expediter, filed a traumatic injury
claim for a November 21, 2007 injury. She claimed that a trailer had pulled out when she was on
the lift and caused her to jump into the trailer. Appellant stated that, as the trailer pulled in and
out, the containers which were in the trailer kept rolling and hit her. She claimed that this injured
her entire body. Appellant stopped work on November 21, 2007. The Office accepted the claim

for sprains of the neck, lumbar region, both shoulders and upper arms and resolved contusion of
the left finger. It paid compensation benefits and eventually placed appellant on the periodic
rolls. Appellant returned to work for one day in April or May 2009 and then retired.1
Appellant was treated by Dr. John DeBender, a Board-certified orthopedic surgeon,
Dr. Stephen Esses, a Board-certified orthopedic surgeon, and Dr. Fahim Farhat, a Board-certified
family practitioner. Her attending physician, Dr. DeBender, continued to keep her off work.
The Office referred appellant to Dr. Donald Mauldin, a Board-certified orthopedic
surgeon, for a second opinion examination. Dr. Mauldin examined her on July 31, 2008 and
noted that she demonstrated extreme painful behavior. He provided an impression of status post
cervical and lumbar strain, chronic cervical radicular syndrome complaints, chronic lumbar and
lumbar radicular complaints and history of shoulder strain with no documentation of significant
structural injury. Dr. Mauldin opined there was no objective evidence that appellant sustained
anything more than a soft tissue strain of the cervical and lumbar spine possibly minimal to the
shoulders in the November 21, 2008 injury. He indicated that her complaints were all subjective
and nonphysiological in nature. Dr. Mauldin stated that appellant’s diagnostic studies were
degenerative in nature and there was no documentation that she had a significant structural injury
that required ongoing medical care. He opined that she had significant symptom magnification
and her recovery was delayed from that perspective. Dr. Mauldin stated that there was no
documentation that the injury mechanism caused significant damage to the cervical or lumbar
spine or the upper extremities that would require prolonged active medical care. He opined that
appellant could work regular duty but she would function very poorly due to her symptom
magnification. Dr. Mauldin noted that she attempted a functional capacity evaluation on July 31,
2008,2 but was only able to do the handgrip test. He noted that appellant did not want to
continue with the evaluation because she felt that she would injure her lower back.
The Office provided a copy of Dr. Mauldin’s report to Dr. DeBender. In an August 21,
2008 report, Dr. DeBender stated that he did not agree that appellant could return to work for
eight hours a day. He advised that she continued to have neck and back pain and recently had
been approved for aqua therapy treatments. Dr. DeBender further noted that appellant was
contemplating having back surgery with Dr. Esses.
The Office determined a conflict of medical opinion existed between Dr. Mauldin and
Dr. DeBender regarding appellant’s ability to work. Appellant was referred, along with a
statement of accepted facts, a list of questions and the medical record, to Dr. Grant McKeever, a
Board-certified orthopedic surgeon, for an impartial medical examination. In a December 3,
2008 report, Dr. McKeever noted her history of back problems since 1988 as well as her
November 21, 2007 work injury. He noted that since 2003 appellant worked restricted work
duties and was on the same medication for low back pain. Dr. McKeever reviewed the medical
record, which included x-rays of the cervical spine and left shoulder as well as recent magnetic
1

Under file number xxxxxx559, appellant has an accepted claim for low back strain and L4-L5 herniated nucleus
pulposus for a March 25, 2002 work injury. This claim remains open for medical benefits.
2

The functional capacity evaluation was performed on July 31, 2008 by Dr. William P. Osborne, a Boardcertified orthopedic surgeon and Office referral physician.

2

resonance imaging scans of the lumbar spine. He set forth his physical findings and
diagnosed: resolved acute cervical strain, chronic cervical syndrome, resolved acute lumbosacral
strain and chronic lumbosacral syndrome. Dr. McKeever opined that appellant’s cervical and
lumbosacral strains had resolved within a few weeks of her injury and that she returned to her
preinjury status of chronic cervical and lumbosacral syndromes. He noted current symptoms
included tenderness over the muscles and mild spasm, with no evidence of radiculopathy.
Dr. McKeever opined that these symptoms were not work related, but were an ordinary disease
of life. In a December 19, 2008 addendum, he noted that a December 16, 2008 functional
capacity evaluation showed an inconsistent effort on all tests and did not represent a valid effort.
Dr. McKeever opined that appellant could return to work without restrictions. He recommended
that she be weaned from her medication. In a December 19, 2008 work restriction evaluation,
Dr. McKeever opined that appellant could perform her usual job on a full-time basis without any
restrictions.
In a December 18, 2008 report, Dr. Esses indicated that appellant’s examination was
essentially unchanged. He noted that she was neurologically intact with decreased range of
motion of both the cervical and lumbar spine and spasm of the paravertebral muscles. Dr. Esses
thought it was reasonable for appellant to apply for disability.
On January 21, 2009 the Office proposed to terminate appellant’s compensation and
medical benefits. It determined that, based on Dr. McKeever’s December 3, 2008 report, her
injury-related disability had ceased and that the accepted conditions had resolved. Appellant was
afforded 30 days within which to submit any additional evidence.
In a February 25, 2009 statement, appellant provided a history of her injury, her opinion
regarding Dr. Mauldin’s and Dr. McKeever’s reports and advised that her back had been hurting
since 2004 and that she has an open case for that condition. She submitted diagnostic and
medical reports previously of record, along with chiropractic reports, a January 9, 2009
impairment rating and additional medical evidence.
In a January 26, 2009 report, Dr. DeBender indicated that appellant continued to have
subjective pain complaints in the cervical, thoracic and lumbar spine as well as complaints of
pain and numbness extending into both legs and the right arm. He advised no further surgery or
treatment has been recommended for her and suggested she see Dr. Esses for follow ups as
needed. Dr. DeBender continued to opine that appellant was unable to return to work.
In a February 2, 2009 report, Dr. Farhat advised that appellant had been a patient for at
least 10 years and opined that the job injury of November 21, 2007 caused her neck, shoulders,
upper arms and back pain. He stated that she was prescribed pain medication to manage her pain
and that she took her medicine on an as needed basis and did not abuse it.
In a February 3, 2009 report, Dr. Donald T. Lazarz, a Board-certified orthopedic surgeon,
noted the history of injury and that he reviewed statements from Drs. Esses, DeBender and
Farhat, which noted that appellant was totally disabled from her work injuries and could not
work. He diagnosed chronic cervical strain and chronic lumbar strain. Dr. Lazarz opined that
the work injury appellant described aggravated her previous troubles and that she would always

3

have pain, limitation in activities and strength and difficulty in carrying on the type of occupation
that she had in the past. He advised that she should continue treating with Dr. Farhat.
In a February 9, 2009 report, Dr. Esses stated that appellant was being treated for low
back and neck disorders and has been demonstrated to have stenosis at L4-L5, L5-S1 and C5-C6
and C6-C7. He opined that her symptoms from her conditions were related to the November 21,
2007 work injury and that she required ongoing treatment. Dr. Esses further indicated that he
disagreed with Dr. McKeever’s opinion.
By decision dated March 11, 2009, the Office finalized the termination of compensation
benefits effective March 15, 2009. It found that the weight of the evidence rested with the
opinion of Dr. McKeever, the impartial medical examiner.
On March 26, 2009 appellant, through her attorney, requested a telephonic hearing,
which was held on October 26, 2009. She testified that she was on limited duty with back
problems due to a lifting injury in 2003 when she had the accident in the truck. Appellant stated
that she had leg numbness that went down to her feet and that she retired early as she was not
able to do what was asked of her and she limped everyday in constant pain. She stated that the
Office’s physicians lied about her and noted that the appointments only lasted 15 minutes and
that she was unable to perform the tests. Appellant indicated that she was on constant
medication, that she did not lead a normal life and that she needed her case reopened so that she
could get treatment. At the hearing, she was advised that her prior case number xxxxxxx559,
which had been combined with the current case, was still open for medical benefits.
Evidence received prior to and after the hearing included: a March 28, 2009 statement
from appellant; a March 3, 2009 functional capacity evaluation which reflected she was rated for
sedentary work and was unable to work her regular duties without a risk of reinjury; chiropractic
reports; a prescription from Dr. Esses for a manual muscle test; a copy of a November 30, 2009
manual muscle test and additional medical evidence.
The medical evidence included a January 16, 2009 report from Dr. Farhat who stated that
appellant had chronic neck and back pain for almost six years that caused physical disabilities
and affected her blood pressure. Dr. Farhat opined that she was totally disabled. In an April 6,
2009 report, he opined appellant’s chronic spine problems in her low back were a result of
recurrent work-related back injuries. Dr. Farhat noted that her first injury occurred on May 10,
1987, the second on March 25, 2002 and the third on November 21, 2007. He reiterated that
appellant’s pain medications were taken only as needed basis.
In a February 25, 2009 report, Dr. DeBender stated that he agreed with Dr. Esses that
appellant was 100 percent disabled and she could not return to the workforce due to her
November 21, 2007 work injury. In an August 4, 2009 attending physician’s report, he reiterated
that appellant was totally disabled.
In a November 30, 2009 report, Dr. Esses advised appellant continued to have neck and
back pain and that she required medication for those injuries. He also noted that she was referred
to pain management and provided a copy of the December 2, 2009 referral.

4

By decision dated December 23, 2009, an Office hearing representative affirmed the
Office’s termination of compensation. The hearing representative noted that appellant’s medical
benefits in case number xxxxxx559 were not affected by the current decision.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.3 It may not terminate compensation without establishing
that disability ceased or that it was no longer related to the employment.4 The Office’s burden of
proof includes the necessity of furnishing rationalized medical opinion evidence based on a
proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability.6 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition, which requires further medical treatment.7
In situations where there are opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual background, must be given special weight.8
ANALYSIS
The Office accepted that appellant sustained sprains of the neck, lumbar region, both
shoulders and upper arms and resolved contusion of the left finger as a result of the
November 21, 2007 work injury. It determined that a conflict in medical opinion evidence arose
between the attending physician, Dr. DeBender, and the Office referral physician, Dr. Maudlin,
as to whether appellant had any continuing residuals or disability causally related to her accepted
November 21, 2007 employment-related injury. Dr. DeBender opined that she had continued
employment-related residuals and total disability. On the other hand, Dr. Mauldin opined that
appellant’s employment-related sprains had resolved and she could return to work with no
restrictions. Consequently, the Office properly referred her to Dr. McKeever to resolve the
conflict.
In his report of December 3, 2008, Dr. McKeever provided a comprehensive review of
appellant’s history, including the fact that she was on restricted work duties since 2003 and set
3

Jorge E. Sotomayor, 52 ECAB 105, 106 (2000).

4

Mary A. Lowe, 52 ECAB 223, 224 (2001).

5

See Del K. Rykert, 40 ECAB 284 (1988).

6

T.P., 58 ECAB 524 (2007).

7

I.J., 59 ECAB 408 (2008); Kathryn E. Demarsh, 56 ECAB 677 (2005).

8

Gloria J. Godfrey, 52 ECAB 486 (2001). See 5 U.S.C. § 8123(a).

5

forth extensive findings from examination. He diagnosed resolved acute cervical strain, chronic
cervical syndrome, resolved acute lumbosacral strain and chronic lumbosacral syndrome.
Dr. McKeever opined that appellant’s cervical and lumbosacral strains had resolved within a few
weeks of her injury and that she returned to her preinjury status of chronic cervical and
lumbosacral syndromes. He opined that her current symptoms of tenderness over the muscles,
mild spasm, with no evidence of radiculopathy, were not work related but were an ordinary
disease of life. Dr. McKeever had a functional capacity evaluation performed on December 16,
2008 and noted that the testing revealed that appellant provided inconsistent effort. He opined
that she could return to work without restrictions.
The Board finds that Dr. McKeever had full knowledge of the relevant facts and
evaluated the course of appellant’s condition. Dr. McKeever is a specialist in the appropriate
field. He offered no basis to support that appellant had residuals or work-related disability from
the accepted conditions. Dr. McKeever’s opinion as set forth in his report of December 3, 2008
is found to be probative evidence and reliable. While appellant has alleged that she only saw
Dr. McKeever for 15 minutes at the most and that his report was filled with lies, she has offered
no evidence to support her allegations. The Board has held that an impartial specialist properly
selected under the Office’s rotational procedures will be presumed unbiased and the party
seeking disqualification bears the substantial burden of proving otherwise; mere allegations are
insufficient to establish bias.9 The Board finds that, under the circumstances of this case, the
opinion of Dr. McKeever is sufficiently well rationalized and based upon a proper factual
background such that it is entitled to special weight and establishes that appellant’s work-related
conditions had ceased.
Appellant submitted additional reports from Dr. DeBender in which he continued to
opine that she was totally disabled and could not return to work. Dr. DeBender did not
specifically address how any continuing condition or disability were causally related to the
accepted employment injuries. Additionally, he was on one side of a medical conflict that
Dr. McKeever resolved.10 This report is insufficient to overcome that of Dr. McKeever or to
create a new medical conflict.
Appellant also submitted medical reports from Dr. Esses, Dr. Lazarz and Dr. Farhat, who
all opined that she was totally disabled due to neck and back pain. In his February 9, 2009
report, Dr. Esses diagnosed lumbar and cervical stenosis. In his February 3, 2009 report,
Dr. Lazarz opined that appellant’s work injury aggravated her previous troubles. In his April 6,
2009 report, Dr. Farhat opined that appellant’s problems were the result of her recurrent
work-related back injuries. However, these physicians did not provide any objective evidence or
medical rationale to explain why she had continuing residuals of the November 21, 2007 work
injury which was accepted for sprains of the neck, lumbar region, shoulders and arms. The
Board has found that vague and unrationalized medical opinions on causal relationship are of
9

Geraldine Foster, 54 ECAB 435 (2003); William Fidurski, 54 ECAB 146 (2002).

10

See E.H., 60 ECAB ___ (Docket No. 08-1862, issued July 8, 2009); Dorothy Sidwell, 41 ECAB 857 (1990)
(reports from a physician who was on one side of a medical conflict that an impartial specialist resolved, are
generally insufficient to overcome the weight accorded to the report of the impartial medical examiner or to create a
new conflict).

6

diminished probative value.11 Dr. McKeever explained that appellant’s continuing symptoms
were due to the normal degenerative process. Thus, the reports from Dr. Esses, Dr. Lazarz and
Dr. Farhat are insufficient to overcome that of Dr. McKeever or to create a new medical conflict.
The other evidence submitted, such as reports of diagnostic testing, are irrelevant to the
issue at hand as they do not address causal relationship. The chiropractic reports submitted do
not diagnose a spinal subluxation based on x-ray. A chiropractor is not considered a physician
under the Federal Employees’ Compensation Act if spinal subluxation has not been diagnosed by
x-ray.12 Thus, the chiropractic reports are of no probative medical value. There is no other
medical evidence showing any continuing residuals or disability due to appellant’s accepted
conditions. Thus, the Office met its burden of proof to terminate appellant’s benefits as the
weight of the medical evidence indicates that residuals of the employment-related conditions had
ceased effective March 15, 2009.
CONCLUSION
The Board finds that the Office properly terminated appellant’s wage loss and medical
benefits effective March 15, 2009.

11

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).
12

See A.O., 60 ECAB ___ (Docket No. 08-580, issued January 28, 2009) (without diagnosing a subluxation from
x-ray, a chiropractor is not a physician under the Act).

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated December 23, 2009 is affirmed.
Issued: January 13, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8