United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Troy, MI, Employer
__________________________________________

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Docket No. 18-1324
Issued: January 21, 2020

Case Submitted on the Record1

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

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

JURISDICTION
On June 22, 2018 appellant filed a timely appeal from nonmerit decisions dated
February 22 and March 5, 2018 of the Office of Workers’ Compensation Programs (OWCP). As
more than 180 days has elapsed from the last merit decision, dated October 10, 2017, to the filing
of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s January 10, 2018 request
for an oral hearing as untimely filed; and (2) whether OWCP properly denied appellant’s request
for reconsideration of the merits of her claim, pursuant to 5 U.S.C. § 8128(a).

1

On her application for review (Form AB-1), appellant requested oral argument pursuant to 20 C.F.R. § 501.5(b).
By order dated March 11, 2019, the Board exercised its discretion and denied appellant’s request finding that the
appeal could be adequately addressed in a decision based on a review of the case as submitted on the record. Order
Denying Request for Oral Argument, Docket No. 18-1324 (issued March 11, 2019).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 14, 2017 appellant, then a 42-year-old customer service representative, filed a
notice of occupational disease (Form CA-2) claiming that she developed a severe cough after
entering her work area. She noted that her team relocated and she began to experience nose
burning, headaches, and dizziness. Appellant became aware of her condition on December 19,
2014 and realized that it was causally related to factors of her federal employment on
October 20, 2015. She stopped work on March 18, 2017.
Dr. Michael R. Harbut, Board-certified in occupational medicine, treated appellant on
March 17, 2017 for a medical condition and took her off work.
By development letter dated April 17, 2017, OWCP informed appellant that the evidence
submitted was insufficient to establish the claim. It advised her of the type of medical and factual
evidence needed to establish her claim. OWCP specifically requested that appellant complete an
enclosed questionnaire and submit a comprehensive narrative medical report from her treating
physician that included a diagnosis and a reasoned explanation as to how specific work factors
and/or incidents caused or contributed to the diagnosed condition(s). It afforded her 30 days to
submit the necessary evidence.
Appellant was treated by Dr. Harbut on March 17 and June 16, 2017 for a cough which
was exacerbated by her workplace. She reported working at the employing establishment which
was at the time undergoing construction. Appellant indicated that she typically got a cough the
same time each year, but since the workplace construction started her condition became worse
when she entered the building. She was off work for January and February due to coughing spells.
Dr. Harbut noted equal breathing sounds, no acute respiratory distress, quiet rales, and no wheezes,
or rhonchi. He diagnosed moderate intermittent asthma with acute exacerbation, interstitial lung
disease, and asbestos exposure. Dr. Harbut placed appellant off work.
A pulmonary function test (PFT) dated April 6, 2017 revealed an overall normal
spirometry. A computerized tomography (CT) of the thorax dated April 25, 2017 was
unremarkable. A CT of the maxillofacial dated April 25, 2017 revealed inflammatory and
structural changes.
Attending physician’s reports (Form CA-20) from Dr. Harbut dated April 14 and 20, 2017
diagnosed asthma with acute exacerbation. Appellant reported an exacerbation of cough upon
entering the workplace while under construction. He noted with a check in a box marked “yes”
that appellant’s condition was caused or aggravated by an employment activity noting workplace
exposure to asthmatogens.
Appellant submitted a statement dated May 3, 2017 and indicated that she was unsure of
what she was exposed to, but she never suffered from bronchitis or asthma until she began working
in the employing establishment building. She described the work facility as having poor air
circulation and was extremely cold with air vents blowing directly into her face. Appellant wore
a mask at work which helped with her coughing. She indicated that she was off work for one to
three months due to frequent headaches and nostril burning. Appellant reported that she did not
have allergies, she had bronchitis in 2015, and she was diagnosed with asthma in 2017.

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Appellant was treated by Dr. Vilma Drelicham, Board-certified in infectious disease, on
June 8 and 22, 2017, who diagnosed history of recurrent respiratory infections, chronic cough for
three months, and pigeon/dove antibody titer positive on the hypersensitivity pneumonitis panel.
On June 30, 2017 Dr. Harbut treated appellant in follow-up for a cough which was
exacerbated by her workplace. She reported that her work facility was a large open area where
she saw pigeons flying and roosting. Appellant further indicated that she typically developed a
cough in December which would last one to three months but since construction began in her
workplace her cough worsened when entering the building. Dr. Harbut noted findings that
appellant was obese, there were adventitious lung sounds, the PFT revealed an interstitial lung
disease, and blood tests revealed the presence of antibodies to pigeon dropping. He indicated that
appellant would be off work until the employing establishment obtained a properly completed
industrial hygiene evaluation. Dr. Harbut opined that appellant’s asthma was exacerbated and/or
caused by exposure to pigeon droppings, construction dust, and extreme temperatures at her
workplace.
In a prescription slip dated September 1, 2017, Dr. Harbut returned appellant to work on
September 11, 2017. He noted that she could not be exposed to mists, dusts, fumes, smoke,
extreme temperatures, humidity, and other asthmatogens and must be permitted to leave work if
she became symptomatic.
The employing establishment submitted an e-mail from D.J., supervisor of customer
relations, who noted the customer care center was under construction in January 2017 but appellant
was not in the “direct path” of the construction. D.J. noted that appellant’s attendance did not
allow her to be at the customer care center for the majority of the construction time and
construction was performed after hours.
By decision dated October 10, 2017, OWCP denied appellant’s claim because the
evidence was insufficient to support that the injury or event occurred as alleged. It concluded,
therefore, that the requirements have not been met to establish an injury as defined by FECA.
A PFT dated June 26, 2017 revealed mild restrictive impairment possibly from
extrapulmonary etiology (body habitus/abdominal obesity) or parenchymal process. A PFT
performed on August 24, 2017 revealed spirometry within normal limits and methacholine
challenge testing indicating normal bronchial responsiveness.
In a report dated July 21, 2017, Dr. Harbut treated appellant in follow up. Appellant
reported severe coughing upon exposure to cold air, smoke, or dust. He noted breathing sounds
were equal, no acute respiratory distress, no rales, wheezes at the periphery, and no rhonchi.
Dr. Harbut diagnosed asthma, moderate and persistent. On September 1, 2017 he rechecked
appellant for asthma symptoms. Appellant reported being off work and away from the exposures
that exacerbated her cough since March 17, 2017 and she was feeling better. Dr. Harbut noted
examination findings were unchanged and diagnosed asthma cough variant and returned her to
work on September 11, 2017.
On December 12, 2017 appellant requested reconsideration of the October 10, 2017
decision.
In an undated statement, appellant indicated that she could not return to work because it
was not a safe environment and she experienced an allergic reaction. She reported chest tightening,
3

headaches, and severe cough. Appellant further indicated that she did not have any income and
would return to work if she could and feared that she would not be able to care for her family.
Appellant submitted a September 1, 2017 prescription note from Dr. Harbut, previously of
record. On October 6, 2017 Dr. Harbut noted that appellant had cough variant asthma and positive
antibodies and could not return to work at her present location. On December 1, 2017 Dr. Harbut
indicated that appellant had cough variant asthma and could not be exposed to mists, dust, fumes,
smoke, extreme temperature, humidity and other asthmatogens in her present work location.
The employing establishment submitted a statement from appellant’s supervisor D.J. who
noted that there were 392 agents in the customer care center and appellant was the only one to
allege fumes, dust, or chemicals affected her breathing at work. D.J. noted that there were no
harmful substances use in the center and any levels of dust would be what you would experience
in any office setting. She indicated that cleaning was performed by the overnight shift so that
employees are not exposed to fumes or chemicals. D.J. noted that no air sampling was performed
or was needed as it was a general office setting. She indicated that appellant performed her normal
duties daily except when she was on leave and did not request a mask or respirator to minimize
her exposure.
On January 16, 2018 appellant requested an oral hearing with a representative of OWCP’s
Branch of Hearings and Review. The request was dated January 10, 2018 and postmarked on
January 16, 2018.
By decision dated February 22, 2018, OWCP denied appellant’s request for an oral
hearing. It found that her request was not made within 30 days of OWCP’s October 10, 2017
decision. As such, appellant was not entitled to a hearing as a matter of right. OWCP exercised
its discretion and determined that it would not grant a hearing for the reason that the issue in the
case could equally well be addressed by requesting reconsideration and submit new evidence
establishing an employment-related injury.
By decision dated March 5, 2018, OWCP denied appellant’s request for reconsideration of
the merits of the case.
LEGAL PRECEDENT -- ISSUE 1
Section 8124 of FECA provides that a claimant is entitled to a hearing before an OWCP
representative when a request is made within 30 days after issuance of an OWCP final decision.3
Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
between two formats: An oral hearing or a review of the written record.”4
Under section 10.616(a), “[a] claimant injured on or after July 4, 1966, who had received
a final adverse decision by the district OWCP may obtain a hearing by writing to the address
3

5 U.S.C. § 8124(b)(1).

4

20 C.F.R. § 10.615.

4

specified in the decision. The hearing request must be sent within 30 days (as determined by
postmark or other carrier’s date marking) of the date of the decision for which a hearing is sought.”5
OWCP’s regulations further provide that a request received more than 30 days after
OWCP’s decision is subject to OWCP’s discretion6 and the Board has held that OWCP must
exercise this discretion when a hearing request is untimely.7
ANALYSIS -- ISSUE 1
Appellant requested an oral hearing utilizing the appeal request form that accompanied
OWCP’s October 10, 2017 merit decision. OWCP noted that appellant’s request was postmarked
January 16, 2018, which was more than 30 days after OWCP’s October 10, 2017 decision.8
Section 8124(b)(1) is unequivocal on the time limitation for requesting a hearing.9 For this reason,
the Board finds that the request was untimely and appellant was not entitled to an oral hearing as
a matter of right.
Although appellant was not entitled to a hearing, OWCP may exercise its discretion to
either grant or deny an oral hearing even if appellant is not entitled to a review as a matter of
right.10 The Board finds that OWCP, in its February 22, 2018 decision, properly exercised its
discretionary authority by noting that it had considered the matter and denied appellant’s request
for an oral hearing as her claim could be equally well addressed through a reconsideration
application.11
The Board has held that the only limitation on OWCP’s authority is reasonableness. An
abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deduction
from established facts.12 The evidence of record does not indicate that OWCP committed an abuse
of discretion in connection with its denial of appellant’s request for an oral hearing.

5

Id. at § 10.616(a).

6

Id. at § 10.616(b).

7

D.W., Docket No. 17-1413 (issued December 18, 2018); Samuel R. Johnson, 51 ECAB 612, 613-14 (2000).

8

Under OWCP regulations and procedures, the timeliness of a request for a hearing is determined on the basis of
the postmark of the envelope containing the request. Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings
and Reviews of the Written Record, Chapter 2.1601.4(a) (October 2011). If the postmark is not legible, the request
will be deemed timely unless OWCP has kept evidence of date of delivery on the record reflecting that the request is
untimely. Id.
9

William F. Osborne, 46 ECAB 198 (1994).

10

D.E., 59 ECAB 438, 442-43 (2008); J.C., 59 ECAB 206, 210-11 (2007).

11

Abuse of discretion is generally shown through proof of manifest error, clearly unreasonable exercise of judgment
or actions taken which are contrary to both logic and probable deductions from known facts. See André Thyratron,
54 ECAB 257, 261 (2002).
12

See Daniel J. Perea, 42 ECAB 214, 221 (1990).

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LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.13 The Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.14
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted a
specific point of law; (2) advances a relevant legal argument not previously considered by OWCP;
or (3) constitutes relevant and pertinent new evidence not previously considered by OWCP.15
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.16 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.17 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
In her request for reconsideration, appellant did not show that OWCP erroneously applied
or interpreted a specific point of law. In an undated statement, she indicated that she could not
return to work because she experienced an allergic reaction to the environment. Appellant
indicated that she experienced chest tightening, headaches, and severe cough. She further
indicated that she did not have any income and would return to work if she could and feared that
she would not be able to care for her family. However, her statements do not show a legal error
by OWCP nor does it provide a new and relevant legal argument not previously reviewed. The
underlying issue in this case is whether appellant submitted sufficient factual evidence establishing
that the injury or events occurred as alleged. That is a factual issue which must be addressed by
relevant new factual evidence.19 However, appellant did not submit any new and relevant factual
evidence in support of her claim.
In a report dated July 21, 2017, Dr. Harbut treated appellant in follow-up for asthma.
Appellant reported severe coughing upon exposure to cold air, smoke, or dust. Dr. Harbut
13

5 U.S.C. § 8128(a).

14

Id. at § 8128(a).

15

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
16

20 C.F.R. § 10.607(a).

17

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

18

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

19

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

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diagnosed asthma, moderate and persistent. On September 1, 2017 he rechecked appellant who
reported being off work since March 17, 2017 and feeling better. Dr. Harbut diagnosed asthma
cough variant and recommended she return to work on September 11, 2017. Similarly, in notes
dated October 6 and December 1, 2017, he diagnosed cough variant asthma and positive antibodies
and opined that appellant could not return to work at her present location. While these reports are
new, they are not relevant as they are substantially similar to Dr. Harbut’s reports dated March 17,
April 27, June 16, and June 30, 2017 previously submitted and were considered by OWCP in its
earlier decision dated October 10, 2017 and found to be deficient. As noted, evidence that repeats
or duplicates evidence already in the case record does not constitute a basis for reopening a case.20
Therefore, these reports are insufficient to require OWCP to reopen the claim for a merit review.
Appellant submitted PFT’s dated June 26 and August 24, 2017 which revealed mild
restrictive impairment possibly from extrapulmonary etiology (body habitus/abdominal obesity)
or parenchymal process. While this evidence is new to the record, it is not relevant to the issue
for which OWCP denied appellant’s claim, the failure to establish the factual component of her
claim because the evidence did not support that the injury or events occurred as alleged.21 These
reports do not address the factual components of appellant’s claim. The submission of evidence
that does not address the particular issue involved does not constitute a basis for reopening a
case.22 Therefore, these documents do not constitute a basis for reopening appellant’s claim.23
Accordingly, appellant has not established a basis for further merit review under 20 C.F.R.
§ 10.606(b)(3)(iii).
Appellant has not met any of the regulatory requirements and OWCP properly declined her
request for reconsideration of the merits of her claim under 5 U.S.C. § 8128(a).24 Thus, OWCP
did not abuse its discretion in refusing to reopen her claim for a review on the merits.25
CONCLUSION
The Board finds that OWCP properly denied appellant’s January 10, 2018 request for an
oral hearing as untimely. The Board further finds that OWCP properly denied appellant’s request
for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

20

See Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393, 398 (1984); Bruce E. Martin, 35
ECAB 1090, 1093-94 (1984).
21

Id.

22

M.M., Docket No. 10-0224 (issued October 6, 2010).

23

See W.D., Docket No. 09-0658 (issued October 22, 2009) (causal relationship is a medical issue).

24

A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB
630 (2006).
25
Appellant submitted a new argument on appeal. However, “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 evidence for the first time on appeal. Id.

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ORDER
IT IS HEREBY ORDERED THAT the March 5 and February 22, 2018 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 21, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tampa, FL, Employer
__________________________________________

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Appearances:
William Hackney, for the appellant
Office of Solicitor, for the Director

Docket No. 06-1479
Issued: April 5, 2007

Case Submitted on the Record

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

JURISDICTION
On June 12, 2006 appellant filed a timely appeal from a merit decision of an Office of
Workers’ Compensation Programs’ hearing representative dated October 6, 2005, who affirmed
the denial of his claim and a nonmerit decision of the Office dated April 28, 2006, which denied
his request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case and the nonmerit issue.
ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish that he
sustained an emotional condition in the performance of his federal duties; and (2) whether the
Office properly refused to reopen appellant’s claim for further review of the merits pursuant to
5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 5, 2004 appellant, then a 54-year-old city carrier, filed an occupational claim
(Form CA-2) alleging that he sustained stress-related chest pain. An October 5, 2004 report

from an emergency medicine physician1 indicated that appellant had chest pain with no positive
objective findings, angina and anxiety disorder during and after an “investigative interview.”
The physician opined, by placing a checkmark in the appropriate box, that appellant’s condition
was caused or aggravated by his employment. Appellant was found totally disabled from
October 5 to 6, 2004 and referred to a psychologist. He did not return to work.
In an October 19, 2004 medical report, Dr. David J. Krull, a Board-certified family
practitioner, opined that appellant was totally disabled from his job “because of the stress” and
that “he may be a threat to lose control emotionally and cause physical harm.”
In an October 29, 2004 statement, appellant reported that he returned to duty in
November 2003 after being disabled by a fractured hip sustained in a nonwork-related
automobile accident. During his absence, 60 additional stops were added to his route and that his
request for a route count was denied. He alleged that he endured daily harassment by
Supervisors Luke A. Romano and Norm Wilkins for requesting a route count and for filing Equal
Employment Opportunity (EEO) complaints. Appellant had increased workloads, his requests
for help were denied, he was issued letters of warnings for unsatisfactory performance and his
supervisors watched him on his route and unfairly criticized his work performance. He alleged
that an October 5, 2004 investigative interview caused him stress because management had come
to his route and stated that he should have had “undertime.”
In a November 9, 2004 statement, Mr. Romano, manager of customer service, disagreed
with appellant’s allegations. He advised that, while appellant was out of work, a route count and
inspection of appellant’s route showed a 15 percent decrease in volume and a decrease in mail
casing volume resulting from automation. Because appellant’s route did not have any increased
deliveries, it required an adjustment, due to the volume drop and decreased casing time required,
which was equal to about 60 additional deliveries. The union agreed with the route change. On
returning to work, appellant was extremely “put out” about his route adjustment and adopted a
confrontational demeanor with Supervisors Wilkins and Roger Parker. The investigation showed
that appellant’s modified route could be completed within eight hours. Never the less appellant
requested assistance or additional time on a near daily basis, regardless of the day’s workload or
when he left to deliver his route. Mr. Romano asserted that appellant began to waste time, which
resulted in official discussions regarding his performance and letters of warning. He stated that
appellant also filed EEO complaints against Supervisors Wilkins and Parker based on race. On
October 2, 2004 Supervisor Jacqueline Woods was assigned to appellant’s zone and spoke with
appellant about the additional 15 minutes, over and above 8 hours, he indicated was necessary to
complete his work. Although Ms. Woods instructed appellant to call her from the street to
advise her of his progress, he failed to do so. That afternoon, Ms. Woods observed appellant
making his last delivery at 3:17 p.m., approximately 23 minutes earlier than scheduled and
nearly 1 hour less time than he had insisted was required. Since appellant made his last delivery
at 3:17 p.m., he should have returned to the office no later than 3:25 p.m., because it was a
6 minute drive back. Instead he arrived at the office at 3:42 p.m., using an additional
unexplained 17 minutes. On October 5, 2004 Ms. Woods conducted an investigative interview
with appellant concerning his performance on October 2, 2004.
1

The physician can not be identified as the signature is illegible.

2

By decision dated November 22, 2004, the Office denied appellant’s claim. The Office
found that appellant had not established a compensable work factor.
Appellant requested an oral hearing, which was held on July 12, 2005. He reiterated his
contentions and also claimed that in October 2004 Mr. Parker yelled at him on the workroom
floor saying that he “can[no]t do anything right” and that he should “tell [his] customers out
there that you can[no]t do the route in [eight] hours.” Appellant stated that the outburst occurred
in October 2004 on Mr. Parker’s last day of work prior to his transfer and was prompted by
appellant’s request for assistance. He stated that he got so upset that he thought he was having a
heart attack. Appellant related that a shop steward, Bob Ketzel, came over and told Mr. Parker
that “If you was going to yell at this man, you should have took him in the office.” He alleged
that had his workload not increased, he could have performed the job.
Appellant submitted several statements from coworkers. Richard Winchester stated that,
since appellant filed an EEO complaint, he had been under very strict discipline by management.
Dave Claver stated that management yelled at appellant for asking a simple question and treated
him differently from others. Charles L. Miller, stated that management harassed appellant and
management monitored appellant. One coworker, who cased appellant’s mail, stated that only
appellant’s mail was precased daily in order to get him on the street early to avoid giving him
help on the street. The coworker additionally opined that appellant got a great deal of
harassment from management when he requested help.
Another coworker stated that since appellant filed an EEO complaint, management gave
him a very difficult time. She advised that on January 22, 2004 at approximately 2:45 p.m., she
saw Mr. Parker answer a call from appellant and heard him yelling into the telephone that he was
not going to give appellant any help, that appellant was not doing his job and that he was
expected to be off the clock by 4:00 p.m. The coworker indicated that Mr. Parker then hung up
on appellant.
In a May 13, 2004 letter, Bob Tesso, a union president, indicated that on April 27, 2004
at approximately 8:45 a.m., Mr. Parker “shouted” out on the workroom floor to ask if Mr. Tesso
wanted to help appellant. Mr. Tesso indicated that as he approached appellant, he indicated that
he could not move and when Mr. Parker asked whether he should call 911, he responded “yes.”
He also opined that the employing establishment had fabricated the facts in appellant’s case and
that an investigation into the matter would bring out the true facts.
In an August 10, 2005 statement, the employing establishment responded to the hearing
transcript and asserted that progressive administrative actions were taken by three different
supervisors (Mr. Wilkins, Mr. Parker and Ms. Woods) to correct appellant’s performance
deficiencies. Although appellant testified that Mr. Parker yelled at him everyday in
October 2004, Mr. Parker was transferred to another station effective October 1, 2004. It also
advised that there was no Mr. Ketzel and that Mr. Tesso had passed away in July 2004. The
record contains several letters of warning for unsatisfactory performance, the denial of
appellant’s request for a special route count copies of EEO complaints, including a
September 10, 2004 grievance settlement in which the time that the grieved action would remain
in appellant’s file was reduced from two to one year contingent on no further violations and
several medical reports from Dr. Walter E. Afield, a Board-certified psychiatrist.

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By decision dated October 6, 2005, an Office hearing representative affirmed the denial
of appellant’s claim finding that he had not established a compensable work factor. The hearing
representative found that although appellant alleged that Mr. Parker yelled at him on October 4,
2004, which was the “straw that broke the camel’s back” leading to his work stoppage and
disability beginning October 5, 2004, the inciting incident for appellant’s work stoppage
appeared to be the investigative interview on October 5, 2004.
On March 22, 2006 appellant requested reconsideration. In support of his allegation that
Mr. Parker yelled at him on October 4, 2004, he advised that he was submitting four exhibits of
the employing establishment’s payroll records which showed that Mr. Parker was at the same
workstation as appellant on October 4, 2004. The payroll records were alleged to contain the last
four digits of appellant’s social security number after he made corrections to employee “clock
rings.” Appellant additionally alleged that witness statements showed that Mr. Parker abused
him in front of his fellow employees. The exhibits of the employing establishment’s payroll
records were not of record.
By decision dated April 28, 2006, the Office denied reconsideration of the October 6,
2005 decision.
LEGAL PRECEDENT -- ISSUE 1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation. Where the disability results from an employee’s
emotional reaction to his regular or specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.2 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or his frustration from not being permitted to work in a
particular environment or to hold a particular position.3
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which he claims compensation was caused or
adversely affected by employment factors.4 This burden includes the submission of a detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.5
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
2

5 U.S.C. §§ 8101-8193.

3

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler,
28 ECAB 125 (1976).
4

Pamela R. Rice, 38 ECAB 838, 841 (1987).

5

Effie O. Morris, 44 ECAB 470, 473-74 (1993).

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adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.6 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.7
With respect to a claim based on harassment or discrimination, the Board has held that
actions of an employee’s supervisors or coworkers which the employee characterizes as
harassment may constitute a factor of employment giving rise to a compensable disability under
the Act. A claimant must, however, establish a factual basis for the claim by supporting the
allegations with probative and reliable evidence.8 An employee’s allegation that he or she was
harassed or discriminated against is not determinative of whether or not harassment occurred.9
ANALYSIS -- ISSUE 1
Appellant alleged that he was given 60 additional stops on his route, was unable to
complete his route within eight hours and was harassed by his supervisors after he requested a
route count and filed EEO complaints. He also alleged that his supervisors were verbally
abusive in response to his requests for additional street time. The Office denied appellant’s
emotional condition claim on the grounds that he did not establish any compensable employment
factors. The Board must initially review whether the alleged incidents and conditions of
employment are compensable under the terms of the Act.
Appellant’s primary allegation is that he had stress due to an increased workload. A
heavy workload may be a compensable work factor, if there is probative and reliable evidence to
support the allegation.10 In this case, the evidence of record does not establish appellant’s
allegations of an increased workload as a compensable work factor. The employing
establishment indicated that appellant was given 60 additional stops as an appropriate adjustment
based on a route inspection which showed a decreased route volume and casing time. Despite
appellant’s allegations that the route could not be performed in eight hours, there is no probative
evidence showing that appellant’s workload had increased to the point where it was excessive
and would establish a compensable work factor. He did not provide any evidence that his route
had an excessive workload or otherwise support his allegation. Accordingly, the Board finds that
appellant has not established a compensable work factor regarding overwork.

6

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

7

Id.

8

Gregory N. Waite, 46 ECAB 662 (1995); Barbara J. Nicholson, 45 ECAB 803 (1994).

9

Helen P. Allen, 47 ECAB 141 (1995).

10

Bobbie D. Daly, 53 ECAB 691 (2002); Sherry L. McFall, 51 ECAB 436 (2000).

5

Appellant alleged that he was harassed by his supervisors when he requested a route
inspection. The Board has found that a disability is not compensable where it results from
appellant’s frustration from not being able to work in a particular environment or to hold a
particular position.11 Appellant’s desire for a route inspection following the addition of 60 stops
is an administrative matter and is not a compensable factor under the Act absent a showing of
error or abuse.12 The evidence submitted by appellant does not show that the agency erred or
abused its discretion in denying his request for a route inspection. The record contains a letter
from the employing establishment to appellant citing their reasons for denial of the route
inspection to appellant, which noted that a special route count is not granted when a valid
inspection indicated the need for the additional stops and the performance of the carrier
submitting the request is unsatisfactory. Additionally, there is no evidence that the employing
establishment erred in denying appellant’s requests for help to complete his route as the record
reflects that the additional 60 deliveries on appellant’s route could be performed in an eight-hour
day.
Appellant alleged that his supervisors harassed him after he requested help and filed EEO
complaints. The record establishes that the employing establishment denied appellant’s request
for additional time, monitored his route, conducted investigative interviews and issued
disciplinary actions with regard to his performance deficiencies. An employee’s complaints
about the manner in which supervisors perform supervisory duties or the manner in which
supervisors exercise supervisory discretion fall, as a rule, outside the scope of coverage provided
by the Act. This principle recognizes that a supervisor must be allowed to perform his duties and
that employees will at times dislike actions taken.13 Furthermore, the Board has held that
discussions of job performance, monitoring and assignment of work are administrative functions
that do not fall under the coverage of the Act absent a showing of error or abuse.14
Appellant has not established that the employing establishment acted unreasonably with
regard to these administrative matters. He alleged that his supervisors denied his requests for
help, improperly monitored him and issued unreasonable disciplinary actions. Appellant
submitted no evidence showing that those administrative functions were abusive or
unreasonable. Rather, evidence demonstrates that his work and performance on the job was
monitored but it does not suggest that any such monitoring was unreasonable. He alleged that
the investigative interview on October 5, 2004 was stressful. The record reflects that appellant
was interviewed with respect to his activities on his route on October 2, 2004 and subsequently
issued a letter of suspension. However, as noted above, the Board has held that discussions of
job performance and monitoring do not fall under the coverage of the Act absent a showing of
error or abuse.15 There is no evidence that appellant’s supervisor abused his discretion or was
11

See Lillian Cutler, supra note 3.

12

See Ernest J. Malagrida, 51 ECAB 287 (2000).

13

Linda J. Edwards-Delgado, 55 ECAB 401 (2004).

14

See Donney T. Drennon-Gala, 56 ECAB ___ (Docket No. 04-2190, issued April 26, 2005); Paul L. Stewart,
54 ECAB 824 (2003).
15

See Donald E. Ewals, 51 ECAB 428 (2000).

6

unreasonable in either monitoring appellant on October 2, 2004 or discussing appellant’s
performance of October 2, 2004 with appellant. Instead, evidence from the employing
establishment indicates that appellant’s route was monitored on October 2, 2004 and that the
route was completed in less than eight hours but that he did not promptly return to the employing
establishment. Appellant has failed to establish compensable work factors with respect to these
allegations.
Regarding his allegations of harassment, appellant asserted that his supervisors harassed
him after he filed EEO complaints and were verbally abusive in response to his requests for
additional street time. Several coworker statements were provided. While the majority of the
coworker statements are sympathetic to appellant’s contentions, such statements lack sufficient
detail to permit a finding instances of harassment or hostility occurred at a particular time and
place. To establish that an incident occurred as alleged, the evidence must be sufficiently
specific as to person, time and place.16 The evidence supports, that one coworker heard
Mr. Parker yell at appellant on January 22, 2004 in response to his telephone request for
additional street time and saw Mr. Parker hang up on appellant. The evidence also supports that
on April 27, 2004 Mr. Parker shouted out to Mr. Tesso on the workroom floor if he wanted to
help appellant. To the extent that appellant alleged verbal abuse by Mr. Parker, the Board has
recognized the compensability of physical threats or verbal abuse in certain circumstances. This
does not imply, however, that every statement uttered in the workplace will give rise to coverage
under the Act.17 The record does not establish how the statements by Mr. Parker rose to the level
of verbal abuse. Moreover, the employing establishment disputed appellant’s testimony that a
yelling incident occurred in October 2004 as alleged noting Mr. Parker had been transferred to
another location effective October 1, 2004. Mr. Tesso’s statement supports that Mr. Parker
shouted to Mr. Tesso, not appellant, on April 27, 2004 and asked if he wanted to help appellant.
However, there is nothing to establish how such a statement could be construed as harassment or
verbal abuse directed towards appellant. As such, it does not rise to the level of a compensable
employment factor. A claimant must establish a factual basis for his or her allegations with
probative and reliable evidence.18 The Board finds that appellant’s harassment allegations do not
rise to a level of a compensable employment factor but instead constitute his perception of
harassment. As appellant did not establish as factual a basis for his perceptions of discrimination
or harassment by the employing establishment, he did not establish that harassment or
discrimination occurred.19 The evidence instead suggests that the employee’s feelings were self-

16

See David W. Shirey, 42 ECAB 783 (1991), Mildred D. Thomas, 42 ECAB 888 (1991).

17

Charles D. Edwards, 55 ECAB 258 (2004).

18

James E. Norris, 52 ECAB 93 (2000).

19

Id. Appellant also referenced grievances and submitted a grievance settlement which made no findings on the
merits of the grievance. However, mere allegations by a claimant are insufficient without evidence corroborating
the allegations. Joe E. Hendricks, 43 ECAB 850 (1992); see also David C. Lindsey, Jr., 56 ECAB ___ (Docket No.
04-1828, issued January 19, 2005) (grievances and EEO complaints by themselves do not establish that workplace
harassment or unfair treatment occurred); Dennis J. Balogh, 52 ECAB 232 (1992) (the mere fact that personnel
actions were later modified or rescinded, does not, in and of itself, establish error or abuse).

7

generated and thus not compensable under the Act.20 Appellant has not established compensable
work factors with respect to these allegations.
For the foregoing reasons, the Board finds that appellant has not established any
compensable employment factors under the Act and, therefore, has not met his burden of proof
in establishing that he sustained an emotional condition in the performance of duty.21
LEGAL PRECEDENT -- ISSUE 2
Section 10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that a
claimant may obtain review of the merits of the claim by either: (1) showing that the Office
erroneously applied or interpreted a specific point of law; (2) advancing a relevant legal
argument not previously considered by the Office; or (3) submitting relevant and pertinent new
evidence not previously considered by the Office.22 Section 10.608(b) provides that, 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.23
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.24 The Board also held
that the submission of evidence which does not address the particular issue involved does not
constitute a basis for reopening a case.25
ANALYSIS -- ISSUE 2
On reconsideration, appellant contested the employer’s statement that Mr. Parker was not
present at the time of the alleged harassment on October 4, 2005. The Board has held that, while
the reopening of a case may be predicated solely on a legal premise not previously considered,
such reopening for further review of the merits is not required where the legal contention does
not have a reasonable color of validity.26 Although appellant indicated that he was submitting
payroll records to show that Mr. Parker was at his workstation on October 4, 2005, no payroll
records were received into the record. Thus, this argument does not have a reasonable color of
validity. Appellant additionally disagreed with the hearing representative’s evaluation of witness
20

See Gregorio E. Conde, 52 ECAB 410 (2001).

21

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. Karen K. Levene, 54 ECAB 671 (2003); see also Margaret S. Krzycki, 43 ECAB 496, 50203 (1992).
22

20 C.F.R. § 10.606(b)(2).

23

Id. at § 10.608(b).

24

Arlesa Gibbs, 53 ECAB 204 (2001); James E. Norris, 52 ECAB 93 (2000).

25

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

26

Vincent Holmes, 53 ECAB 468 (2002).

8

statements regarding Mr. Parker. This argument is essentially repetitive of appellant’s previous
assertions on his view of the claim and does not constitute a relevant new argument not
previously considered. Thus, appellant is not entitled to a review of the merits of his claim based
on the first and second requirements under section 10.606(b)(2) as he has not established that the
Office erroneously applied or interpreted a specific point of law or advanced a relevant legal
argument not previously considered by the Office.27
With respect to the third element, the submission of relevant and pertinent new evidence
not previously considered by the Office, appellant has not submitted any new evidence although
he alluded to copies of payroll records. Inasmuch as appellant did not submit any “relevant and
pertinent new evidence,” he is not entitled to a review of the merits of his claim based on the
third requirement under section 10.606(b)(2).28
As appellant failed to raise substantive legal questions or to submit new relevant and
pertinent evidence not previously reviewed by the Office and did not abuse its discretion by
refusing to reopen appellant’s claim for review of the merits.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an emotional condition in the performance of duty. The Board further finds that the
Office properly denied appellant’s request for reconsideration as he failed to raise substantive
legal questions or to submit new relevant and pertinent evidence not previously reviewed by the
Office.

27

20 C.F.R. §§ 10.608(b)(2)(i) and (ii).

28

Id. at § 10.608(b)(2)(iii).

9

ORDER
IT IS HEREBY ORDERED THAT the April 28, 2006 and October 6, 2005 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 5, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, NEW JERSEY
INTERNATIONAL & NATIONAL
DISTRIBUTION CENTER, Jersey City, NJ,
Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-1095
Issued: March 29, 2022

Case Submitted on the Record

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

JURISDICTION
On April 29, 2020 appellant, through counsel, filed a timely appeal from a December 18,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right shoulder
condition causally related to the accepted March 31, 2014 employment incident.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On March 31, 2014 appellant, then a 48-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on that date he injured his right shoulder when picking up a foot
locker while in the performance of duty. He stopped work on the date of injury.
In an April 1, 2014 report, Dr. Norman Penera, a Board-certified internist, diagnosed right
shoulder strain and advised that appellant was unable to work in any capacity at that time.
An April 4, 2014 right shoulder magnetic resonance imaging (MRI) scan demonstrated
degenerative changes of the acromioclavicular (AC) joint, extensive thickening, and abnormal
signal within the supraspinatus, subscapularis, and biceps tendons. It also revealed probable focal
full-thickness tear of the distal supraspinous tendon.
In an April 9, 2014 referral order, Dr. Penera diagnosed a full-thickness supraspinatus
rotator cuff tear.
In an April 22, 2014 medical report, Dr. Faisal Mahmood, an attending Board-certified
orthopedic surgeon, noted findings on his physical examination and advised that appellant suffered
from a right shoulder full-thickness supraspinatus rotator cuff tear with subacromial impingement.
He also diagnosed bursitis, AC joint hypertrophy/arthritis, biceps tendinitis, and labial fraying.
Based on these findings, Dr. Mahmood recommended arthroscopic surgery. In a note of even date,
he requested that appellant be excused from work until June 22, 2014.
By decision dated May 28, 2014, OWCP accepted that the March 31, 2014 employment
incident occurred, as alleged. However, it denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish that his diagnosed right shoulder conditions were
causally related to the accepted March 31, 2014 employment incident.
OWCP subsequently received additional reports dated April 1 and 9, 2014 from Dr. Penera
who continued to treat appellant. Dr. Penera diagnosed right shoulder strain of the rotator cuff
capsule and reiterated his prior diagnosis of right shoulder full-thickness rotator cuff tear.
On June 6, 2014 appellant requested a review of the written record by a representative of
OWCP’s Branch and Hearings Review. He also provided a June 2, 2014 letter from Dr. Mahmood
who noted a history of his treatment of appellant’s injury. Dr. Mahmood reiterated his prior
3

Docket No. 19-0587 (issued July 22, 2019).

2

diagnoses and opined that appellant’s injury pattern was consistent with an injury sustained while
lifting an overhead object or repetitive use of the rotator cuff musculature leading to a fu llthickness tear and, as such, he concluded that the injury appellant sustained was causally related
to the employment incident on March 31, 2014.
OWCP subsequently received an attending physician’s report (Form CA-20) dated
May 20, 2014 in which Dr. Mahmood again noted a history of appellant’s accepted March 31,
2014 injury. Dr. Mahmood reiterated his diagnoses and checked a box marked “Yes,” indicating
that these conditions had been caused or aggravated by an employment activity of lifting overhead.
By decision dated August 19, 2015, an OWCP hearing representative affirmed the May 28,
2014 decision.
On November 5, 2015 appellant, through counsel, requested reconsideration of the
August 19, 2015 decision and submitted a November 3, 2015 letter from Dr. Mahmood, who noted
that appellant reported that lifting a foot locker weighing approximately 65 to 70 pounds at work
on March 31, 2014 led to his inability to fully abduct his shoulder. Dr. Mahmood further noted
that appellant related that, prior to this incident, he had full range of motion of the shoulder. He
explained that that, while MRI scan findings demonstrated some degenerative signs consistent
with regular use, including AC joint arthropathy, appellant also had a full-thickness tear of the
rotator cuff muscle, which was not a preexisting condition as he was able to abduct his shoulder
prior to the work-related incident. Because appellant could no longer abduct his shoulder since
the accepted March 31, 2014 incident, Dr. Mahmood concluded that appellant’s full-thickness
rotator cuff tear was consistent with a traumatic injury sustained during the accepted employment
incident.
By decision dated May 13, 2016, OWCP denied modification of the August 19, 2015
decision.
On July 5, 2016 appellant, through counsel, requested reconsideration and submitted a
June 14, 2016 letter from Dr. Mahmood, who continued to opine that appellant sustained a workrelated right shoulder condition and that there was a causal relationship between his condition and
the accepted March 31, 2014 employment incident.
By decision dated March 7, 2017, OWCP denied modification of its prior decision.
On September 13, 2017 appellant, through counsel, requested reconsideration.
By decision dated December 11, 2017, OWCP denied modification of its prior decision.
On July 18, 2018 appellant, through counsel, requested reconsideration and submitted an
addendum note dated July 11, 2018 from Dr. Mahmood, who reiterated his prior opinion that
appellant’s right shoulder injuries were work related.
By decision dated October 16, 2018, OWCP denied modification of its December 11, 2017
decision.

3

On January 17, 2019 appellant, through counsel, appealed to the Board. By decision dated
July 22, 2019, the Board affirmed OWCP’s October 16, 2018 decision, finding that appellant had
not met his burden of proof to establish a right shoulder condition causally related to the accepted
Match 31, 2014 employment incident. 4
On December 5, 2019 appellant, through counsel, requested reconsideration and submitted
an October 28, 2019 medical report from Dr. David Weiss, a Board-certified orthopedic surgeon,
who examined appellant and reviewed his history of treatment and diagnostic studies. Dr. Weiss
conducted a physical examination and diagnosed a post-traumatic full-thickness rotator cuff tear
to the right shoulder, post-traumatic impingement syndrome to the right shoulder, and an
aggravation of preexisting quiescent age-related acromioclavicular joint arthropathy to the right
shoulder. He explained that an impingement syndrome occurred when one raised his or her arm
to shoulder height and above, and the space between the acromion and the rotator cuff narrowed.
Dr. Weiss indicated that the acromion could then rub against or impinge the tendon in the rotator
cuff causing irritation and pain. He further explained that this compression could cause attenuation
on the tendon and predispose appellant to tearing of the rotator cuff. Dr. Weiss noted that for a
person with aged-related osteoarthritis of the acromioclavicular joint or osteoarthritis due to
repetitive use had even less space in the area and that shoulder elevation would cause a greater
impingement and a greater probability of shoulder tendinopathy. He noted that the MRI scan
revealed that appellant had degenerative changes of the acromioclavicu lar joint predisposing him
to an impingement syndrome. Dr. Weiss opined that lifting a 65- to70-pound heavy plastic
footlocker from the ground above the shoulder at the time of the accepted March 31, 2014
employment incident led to significant impingement and caused the full thickness rotator cuff tear
of the supraspinatus tendon. He noted that, when evaluating occupational risk factors with
shoulder tendinopathy, impingement, and rotator cuff tears, there was strong evidence that
awkward postures like sustained shoulder postures with more than 60 degrees of flexion and
abduction could lead to the diagnosed pathology. Dr. Weiss concluded that the accepted
March 31, 2014 employment incident was the dominant-producing cause of appellant’s injury.
By decision dated December 18, 2019, OWCP denied modification of the prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 5 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 6 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition f or which compensation is claimed is causally related to the

4

Docket No. 19-0587 (issued July 22, 2019).

5

Supra note 2.

6

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

4

employment injury. 7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employ ee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. The second component is whether the employment
incident caused a personal injury and can be established only by medical evidence. 9
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 10 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 11
ANALYSIS
The Board finds that this case is not in posture for decision.
Preliminarily, the Board notes that findings made in prior Board decisions are res judicata,
absent further review by OWCP under section 8128 of FECA. It is, therefore, unnecessary for the
Board to consider the evidence appellant submitted prior to the issuance of OWCP’s October 16,
2018 decision as the Board considered that evidence in its July 22, 2019 decision.12
In support of his request for reconsideration, appellant submitted an October 28, 2019
medical report from Dr. Weiss who diagnosed a post-traumatic full-thickness rotator cuff tear to
the right shoulder, post-traumatic impingement syndrome to the right shoulder, and an aggravation
of preexisting quiescent age-related AC joint arthropathy to the right shoulder. Dr. Weiss
explained that an impingement syndrome occurred when one raised his or her arm to shoulder
height and above, and the space between the acromion and the rotator cuff narrowed. He related
that the acromion could then rub against or impinge the tendon in the rotator cuff causing irritation
7

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
8

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
10

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019);
Robert G. Morris, 48 ECAB 238 (1996).
11

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
12

C.D., Docket No. 19-1973 (issued May 21, 2020); M.D., Docket No. 20-0007 (issued May 13, 2020).

5

and pain. Dr. Weiss noted that this compression could cause attenuation on the tendon and
predispose appellant to tearing of the rotator cuff. He further explained that for a person with
aged-related osteoarthritis of the acromioclavicular joint or osteoarthritis due to repetitive use had
even less space in the area and that shoulder elevation would cause a greater impingement and a
greater probability of shoulder tendinopathy. Dr. Weiss noted that the MRI scan revealed that
appellant had degenerative changes of the acromioclavicular joint predisposing him to an
impingement syndrome. He opined that lifting a 65- to70-pound heavy plastic footlocker from the
ground to above the shoulder led to significant impingement and caused the full thickness rotator
cuff tear of the supraspinatus tendon. Dr. Weiss explained that, when evaluating occupational risk
factors with shoulder tendinopathy, impingement, and rotator cuff tears, there was strong evidence
that awkward postures like sustained shoulder postures with more than 60 degrees of flexion and
abduction led to the diagnosed pathology.
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done. 13
Dr. Weiss is a Board-certified physician who is qualified in his field of medicine to render
rationalized opinions on the issue of causal relationship. The Board finds that, although his opinion
is insufficiently rationalized to establish causal relationship, it does raise an uncontroverted
inference regarding causal relationship between the diagnosed conditions and the accepted
March 31, 2014 employment incident sufficient to require further development of the case record
by OWCP.14 Thus, the Board finds that Dr. Weiss’ opinion is sufficient to require further
development of the record by OWCP. 15
The Board will therefore remand the case for further development of the medical evidence.
On remand, OWCP shall prepare a statement of accepted facts and obtain a rationalized opinion
from a physician in the appropriate field of medicine as to whether the accepted employment
incident caused, contributed to, or aggravated the diagnosed right shoulder c onditions.16 If the
physician opines that the diagnosed conditions are not causally related, he or she must explain with
rationale how or why their opinion differs from that of Dr. Weiss. Following this and other such
further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

13

C.R., Docket No. 20-1102 (issued January 8, 2021); K.P., Docket No. 18-0041 (issued May 24, 2019).

14

See B.F., Docket No. 20-0990 (issued January 13, 2021); Y.D., Docket No. 19-1200 (issued April 6, 2020).

15

See A.D., Docket No. 20-0758 (issued January 11, 2021); C.R., Docket No. 20-0366 (issued December 11, 2020);
John J. Carlone, supra note 9; Horace Langhorne, 29 ECAB 820 (1978).
16

C.G., Docket No. 20-1121 (issued February 11, 2021); A.G., Docket No. 20-0454 (issued October 29, 2020).

6

ORDER
IT IS HEREBY ORDERED THAT the December 18, 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: March 29, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, POSTAL
INSPECTION SERVICE, Los Angeles, CA,
Employer
__________________________________________

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

Docket No. 09-2176
Issued: June 3, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 27, 2009 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated March 2, 2009, which denied her reconsideration
request on the grounds that it was untimely filed and failed to establish clear evidence of error.
Because more than one year has elapsed between the last merit decision dated October 17, 2007
and the filing of this appeal on August 27, 2009, the Board lacks jurisdiction to review the merits
of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e)(2).
ISSUE
The issue is whether the Office properly determined that appellant’s request for
reconsideration was untimely filed and did not demonstrate clear evidence of error.
FACTUAL HISTORY
Appellant, 46-year-old postal police officer, filed a Form CA-2 claim for benefits on
April 6, 2007, alleging that she sustained a stress-related condition and post-traumatic stress

disorder, on March 11, 2007. This date marked the one-month anniversary of an incident in
which she witnessed her partner being struck and seriously injured by a drunk driver. On the
form and in an April 13, 2007 response to the claim, the employing establishment noted that
appellant had been placed on administrative leave for disciplinary reasons pending an
investigation into alleged misconduct in which she engaged on March 12, 2007. On April 30,
2007 the employing establishment controverted the claim.
Appellant submitted a March 12, 2007 work restriction note from her insurance company
indicating that she would be unable to work for three days, beginning March 13, 2007; a
March 13, 2007 work restriction note from her insurance company indicating that she could
return to work on March 26, 2007; and treatment notes from her treating psychiatrist, Dr. Faye I.
Mandell, dated March 13 and 21 and April 4, 2007.
On May 11, 2007 the Office advised appellant that it required additional factual and
medical evidence to determine whether she was eligible for compensation benefits. It asked her
to describe in detail the employment-related conditions or incidents which she believed contributed
to her emotional condition and to provide specific descriptions of all practices, incidents, etc.,
which she believed affected her condition. The Office asked appellant to submit a comprehensive
medical report from her treating physician describing her symptoms and the medical reasons for
her condition and an opinion as to whether her claimed condition was causally related to her
federal employment. It requested that she submit the additional evidence within 30 days.
Appellant did not submit any additional medical evidence.
In a memorandum dated March 12, 2007, received by the Office on July 9, 2007, the
employing establishment noted that appellant had been involved in an incident on March 12,
2007 in which she allegedly removed her service weapon from her holster without just cause
during a dispute with a customer. The employing establishment submitted a March 12, 2007
memorandum, received by the Office on July 24, 2007, in which it placed her on administrative
leave pending an investigation into the alleged unauthorized display of her government-issued
weapon while in the performance of her duties as a postal police officer.
By decision dated October 17, 2007, the Office denied the claim for an emotional
condition. It accepted that the February 11, 2007 incident had occurred and that appellant had
established a compensable factor of employment; i.e., the witnessing her partner being struck by
a vehicle. The Office found, however, that she failed to submit medical evidence showing that
her claimed stress-related condition was causally related to the implicated employment factor.
On December 28, 2007 appellant requested reconsideration.
She submitted a
November 21, 2007 report from Dr. Mandell who stated that she began treating appellant in
March 2007 after being involved in a serious car accident with a coworker. Dr. Mandell advised
that appellant had developed post-traumatic stress disorder and depression as a result of the
accident. She noted that appellant had symptoms of reliving the event, fearfulness, memory loss
and intense stress.

2

By decision dated April 1, 2008, the Office denied appellant’s application for review on
the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require the Office to review its prior decision.1
By letter dated November 24, 2008, appellant requested reconsideration. She submitted
progress reports from Dr. Mandell dated March 12, 2007 through April 23, 2008, which
generally indicated that appellant had developed post-traumatic stress disorder, anxiety,
anhedonia and depression after witnessing her colleague being struck by a drunk driver. The
March 12, 2007 report stated that appellant had been experiencing insomnia due to anxiety
caused after her colleague was hit by a car. Dr. Mandell’s March 13, 2007 report noted that
appellant had been placed on leave after allegedly pulling a gun on a postal customer. It also
noted that she had been experiencing headaches, anxiety, hypertension, nightmares and low selfesteem.
In Dr. Mandell’s April 19, 2007 report, she stated that appellant had reported for
treatment on March 13, 2007 after an incident at work in which she felt threatened and pulled her
gun and was placed on leave for possibly overreacting. Appellant attributed her response to
being traumatized on February 11, 2007 when she witnessed a speeding car crash into the vehicle
she had just exited and saw her partner seriously injured and trapped in the vehicle. Dr. Mandell
stated that appellant was dealing with this trauma and accumulated traumas including the suicide
of a coworker the previous year. In her subsequent progress reports, Dr. Mandell essentially
reiterated these findings and conclusions.
Appellant submitted a May 1, 2008 treatment note from the Kaiser Permanente
Psychiatry Department, which indicated that she was being treated for anger management.
By decision dated March 2, 2009, the Office denied appellant’s request for
reconsideration without a merit review, finding the request was untimely and that she had not
established clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act2 does not entitle an
employee to a review of an Office decision as a matter of right.3 This section, vesting the Office

1

The Office noted that the appellant had alleged in her CA-2 form that she sustained post-traumatic stress
disorder due to the March 11, 2007 anniversary of her partner’s accident; it subsequently accepted fact of injury
based on the occurrence of this anniversary. It therefore found that the medical evidence she submitted with her
request for reconsideration, which pertained to the February 11, 2007 incident, was not relevant to the issue of
whether her claimed condition was causally related to the accepted March 11, 2007 employment factor.
2

5 U.S.C. § 8128(a).

3

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989), petition for recon., denied,
41 ECAB 458 (1990).

3

with discretionary authority to determine whether it will review an award for or against
compensation, provides:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may-(1) end, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”
The Office, through its regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).4 As one such limitation, it has stated that it
will not review a decision denying or terminating a benefit unless the application for review is
filed within one year of the date of that decision.5 The Board has found that the imposition of
this one-year time limitation does not constitute an abuse of the discretionary authority granted
by the Office granted under 5 U.S.C. § 8128(a).6
In those cases where a request for reconsideration is not timely filed, the Board had held,
however, that the Office must nevertheless undertake a limited review of the case to determine
whether there is clear evidence of error pursuant to the untimely request.7 Office procedures
state that the Office will reopen an appellant’s case for merit review, notwithstanding the oneyear filing limitation set forth in 20 C.F.R. § 10.607(b), if the her application for review shows
“clear evidence of error” on the part of the Office.8
To establish clear evidence of error, an appellant must submit evidence relevant to the
issue which was decided by the Office.9 The evidence must be positive, precise and explicit and
must be manifested on its face that the Office committed an error.10 Evidence which does not
raise a substantial question concerning the correctness of the Office’s decision is insufficient to
establish clear evidence of error.11 It is not enough merely to show that the evidence could be
4

Thus, although it is a matter of discretion on the part of the Office whether to review an award for or against
payment of compensation, the Office has stated that a claimant may obtain review of the merits of a claim
by: (1) showing that the Office erroneously applied or interpreted a point of law; (2) advances a relevant legal
argument not previously considered by the Office; and (3) constituting relevant and pertinent new evidence not
previously considered by the Office. See 20 C.F.R. § 10.606(b).
5

20 C.F.R. § 10.607(b).

6

See cases cited supra note 2.

7

Rex L. Weaver, 44 ECAB 535 (1993).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (May 1991).

9

See Dean D. Beets, 43 ECAB 1153 (1992).

10

See Leona N. Travis, 43 ECAB 227 (1991).

11

See Jesus D. Sanchez, supra note 3.

4

construed so as to produce a contrary conclusion.12 This entails a limited review by the Office 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 the Office.13 To
show clear evidence of error, the evidence submitted must not only be of sufficient probative
value to create a conflict in medical opinion or establish a clear procedural error, but must be of
sufficient probative value to prima facie shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of the Office’s decision.14 The Board makes
an independent determination of whether an appellant has submitted clear evidence of error on
the part of the Office such that the Office abused its discretion in denying merit review in the
face of such evidence.15
ANALYSIS
The Office properly determined that appellant failed to file a timely application for
review. It issued its most recent merit decision in this case on October 17, 2007. Appellant
requested reconsideration on November 24, 2008; thus, the request is untimely as it was outside
the one-year time limit.
The Board finds that appellant’s request for reconsideration failed to show clear evidence
of error. Appellant submitted reports from Dr. Mandell from March 2007 through April 2008
which generally indicated that appellant had developed post-traumatic stress disorder and stressrelated symptoms such as headaches, anxiety, hypertension, nightmares and insomnia on the
one-month anniversary of the incident in which she witnessed her partner being struck by a
drunk driver. These reports, however, did not provide a reasoned medical opinion as to whether
appellant sustained an emotional condition as of March 11, 2007, causally related to factors of
her federal employment, but were merely cumulative and repetitive of reports and arguments
previously considered. As such, these reports do not raise a substantial question as to the
correctness of the Office’s decision denying benefits.
The May 1, 2008 treatment note from Kaiser Permanente Psychiatry Department
indicating that appellant was being treated for anger management contains no opinion on the
work relatedness of her stress-related condition. None of the reports appellant submitted with
her request are of sufficient probative value to prima facie shift the weight of the evidence in
favor of the claimant and raise a substantial question as to the correctness of the Office’s
decision. Therefore, she has failed to demonstrate clear evidence of error on the part of the
Office.
The Office reviewed the evidence appellant submitted and properly found it to be
insufficient to prima facie shift the weight of the evidence in favor of appellant. Consequently,
the evidence submitted by appellant on reconsideration is insufficient to establish clear evidence
12

See Leona N. Travis, supra note 10.

13

See Nelson T. Thompson, 43 ECAB 919 (1992).

14

Faidley, supra, note 3.

15

Gregory Griffin, 41 ECAB 186 (1989), petition for recon., denied, 41 ECAB 458 (1990).

5

of error on the part of the Office such that the Office abused its discretion in denying merit
review. The Board finds that the Office did not abuse its discretion in denying further merit
review.
CONCLUSION
The Board finds that appellant has failed to submit evidence establishing clear error on
the part of the Office in her reconsideration request dated November 24, 2008. Inasmuch as
appellant’s reconsideration request was untimely filed and failed to establish clear evidence of
error, the Office properly denied further review on March 2, 2009.
ORDER
IT IS HEREBY ORDERED THAT the March 2, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 3, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
U.S. POSTAL SERVICE, GREENSBORO
PERFORMANCE CLUSTER, Greensboro, NC,
Employer
__________________________________________

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

Docket No. 12-1785
Issued: January 18, 2013

Case Submitted on the Record

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

JURISDICTION
On August 22, 2012 appellant filed a timely appeal from the February 29, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) regarding a schedule
award. 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 met her burden of proof to establish that she has more than
a five percent permanent impairment of her right arm, for which she received a schedule award.
FACTUAL HISTORY
On November 1, 2010 OWCP accepted that on February 2, 2010 appellant, then a 52year-old city letter carrier, sustained a right shoulder sprain, other affections of the right
1

5 U.S.C. §§ 8101-8193.

shoulder, right wrist sprain and neoplasm of uncertain behavior when she slipped on ice at work
and unsuccessfully tried to stop her fall with her right hand. Appellant stopped work on
February 2, 2010 and she received compensation for periods of disability. On March 3, 2010 she
underwent decompression and debridement surgery of her right shoulder due to right shoulder
impingement syndrome and right superior labral tear.
Appellant returned to light-duty work for the employing establishment. In an October 27,
2011 report, Dr. Vincent E. Paul, an attending Board-certified orthopedic surgeon, advised that
appellant could work eight hours per day with restrictions including no lifting more than 40
pounds, pushing more than 30 pounds or pulling more than 20 pounds.
On January 8, 2012 appellant filed a claim for a schedule award due to her accepted work
injuries.
In a January 24, 2012 report, Dr. Paul stated that appellant could continue to work under
the restrictions he delineated on October 27, 2011. Upon examination, appellant exhibited
normal extraocular motions, no neck masses, no accessory breathing muscles, no shortness of
breath, no skin rashes and no peripheral edema. Her right hand was much less tender to tapping
over the radial index finger area and there were no dystrophic signs. Dr. Paul indicated that full
wrist grip and extension was present with some hypersensitivity to touch and palpation. He
prescribed medication and noted that he would see appellant as needed.
On February 22, 2012 OWCP requested that Dr. James W. Dyer, a Board-certified
orthopedic surgeon serving as a medical adviser, review the reports of Dr. Paul and provide an
opinion on appellant’s permanent impairment under the standards of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment
(6th ed. 2009).
In a February 23, 2012 report, Dr. Dyer discussed appellant’s medical history, including
right shoulder surgery and examination findings related to her right shoulder and right hand. He
indicated that appellant’s right shoulder flexion was restricted to 140 degrees after her surgery.2
Dr. Dyer indicated that, under Table 15-5 (Shoulder Regional Grid) on page 402 of the sixth
edition of the A.M.A., Guides, appellant’s primary diagnosis was impingement syndrome of the
right shoulder (with residual loss) which fell under a three percent default value. He found that,
under Table 15-7 through Table 15-9 on pages 406-11, appellant fell under grade modifier 1 for
functional history, grade modifier 2 for physical examination and grade modifier 2 for clinical
studies. Applying the net adjustment formula found on page 411 meant that movement two
places to the right of the default value on Table 15-5 was warranted and that appellant’s total
right arm impairment was five percent.
In a February 29, 2012 decision, OWCP granted appellant a schedule award for a five
percent permanent impairment of her right arm. The award ran for 15.6 weeks from January 24
to May 12, 2012. The award was based on Dr. Dyer’s evaluation of the findings of Dr. Paul.

2

Dr. Dyer indicated that it was not proven that appellant had reflex sympathetic dystrophy in her right wrist.

2

LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 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.5 For OWCP decisions issued on or after
May 1, 2009, the sixth edition of the A.M.A., Guides (6th ed. 2009) is used for evaluating
permanent impairment.6
In determining impairment for the upper extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the upper
extremity to be rated. With respect to the shoulder, the relevant portion of the arm for the
present case, reference is made to Table 15-5 (Shoulder Regional Grid) beginning on page 401.
After the Class of Diagnosis (CDX) is determined from the Shoulder Regional Grid (including
identification of a default grade value), the net adjustment formula is applied using the grade
modifier for Functional History (GMFH), grade modifier for Physical Examination (GMPE) and
grade modifier for Clinical Studies (GMCS). The Net Adjustment Formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).7 Under Chapter 2.3, evaluators are directed to provide
reasons for their impairment rating choices, including choices of diagnoses from regional grids
and calculations of modifier scores.8
ANALYSIS
OWCP accepted that on February 2, 2010 appellant sustained a right shoulder sprain,
other affections of the right shoulder, right wrist sprain and neoplasm of uncertain behavior when
she slipped on ice at work and unsuccessfully tried to stop her fall with her right hand. On
March 3, 2010 appellant underwent decompression and debridement surgery of her right
shoulder due to right shoulder impingement syndrome and right superior labral tear. In a
February 29, 2012 award of compensation, OWCP granted her a schedule award for a five
percent permanent impairment of her right arm. The award was based on a February 23, 2012
impairment rating by Dr. Dyer, a Board-certified orthopedic surgeon serving as an OWCP

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

6

See FECA Bulletin No. 9-03 (issued March 15, 2009). For OWCP decisions issued before May 1, 2009, the
fifth edition of the A.M.A., Guides (5th ed. 2001) is used.
7

See A.M.A., Guides (6th ed. 2009) 401-11.

8

Id. at 23-28.

3

medical adviser, in which he evaluated the physical findings of Dr. Paul, an attending Boardcertified orthopedic surgeon.
The Board finds that OWCP properly relied on the February 23, 2012 opinion of
Dr. Dyer to find that appellant has a five percent permanent impairment of her right arm.
Dr. Dyer correctly indicated that, under Table 15-5 (Shoulder Regional Grid) on page 402 of the
sixth edition of the A.M.A., Guides, her primary diagnosis was impingement syndrome of the
right shoulder (with residual loss) which fell under a three percent default value. His determination
that appellant fell under grade modifier 1 for functional history, grade modifier 2 for physical
examination and grade modifier 2 for clinical studies was supported by the medical evidence of
record.9 Dr. Dyer correctly applied the Net Adjustment Formula to find that movement two
places to the right of the default value on Table 15-5 was warranted and that her total right arm
impairment was five percent.10
On appeal, appellant alleged that the severity of her right wrist and shoulder conditions
entitled her to additional schedule award compensation. However, she did not submit probative
medical evidence showing that she was entitled to such compensation.
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 did not meet her burden of proof to establish that she has
more than a five percent permanent impairment of her right arm, for which she received a
schedule award.

9

See A.M.A., Guides 406-11, Table 15-7, Table 15-8 and Table 15-9.

10

See id. at 402, Table 15-5.

4

ORDER
IT IS HEREBY ORDERED THAT the February 29, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 18, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5