United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pearl River, LA, Employer
__________________________________________

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

Docket No. 08-1704
Issued: July 10, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 2, 2008 appellant filed a timely appeal from a March 28, 2008 nonmerit decision
of the Office of Workers’ Compensation Programs denying her request for reconsideration as it
was not timely filed and failed to present clear evidence of error. There is no merit decision
within one year of the filing of this appeal. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of this case. The Board has jurisdiction over the
March 28, 2008 nonmerit decision.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
it was not timely filed and did not demonstrate clear evidence of error.
FACTUAL HISTORY
This is the second appeal before the Board in this case. By decision and order issued
March 10, 2006,1 the Board affirmed the Office’s September 14, 2005 decision denying
1

Docket No. 06-427 (issued March 10, 2006).

appellant’s request for reconsideration as it was untimely filed and failed to present clear
evidence of error. The law and the facts of the case as set forth in the prior decision and order
are incorporated by reference.
In a September 20, 2006 letter, appellant requested reconsideration of April 10 and
June 16, 2006 decisions. She submitted October 2 and 17, 2006 letters alleging the Office erred
in processing her claims. Appellant also submitted a July 17, 2006 social security determination
and copies of medical evidence previously considered on the merits. By decision dated
October 18, 2006, the Office denied reconsideration as she did not provide a valid decision date
or specify her reasons for disagreement.
Appellant requested reconsideration on October 23, 2006, alleging that the Office did not
place medical evidence in the appropriate claim file. It denied reconsideration by January 8,
2007 decision, finding that she failed to demonstrate clear evidence of error.
In a February 3, 2008 letter, appellant requested reconsideration. She reiterated prior
allegations that the Office erred in developing her case and did not fully consider the evidence.
Appellant submitted several statements asserting that her claims were timely filed2 and
reiterating her account of January 1989 and April 2001 incidents. She also submitted copies of
March 2003 Office letters describing the development of her claims.
In a January 10, 2008 report, Dr. Beverly Stubblefield, an attending clinical psychologist,
related that appellant felt threatened at work on April 20, 2001 when speaking with an injury
compensation specialist.
By decision dated June 5, 2008, the Office denied reconsideration on the grounds that the
request was untimely filed and failed to present clear evidence of error in its February 25, 2002
decision, the most recent merit decision in the case. It found that appellant’s letters were
irrelevant to the claim and that Dr. Stubblefield’s report duplicated prior evidence.
LEGAL PRECEDENT
The Office, through regulation, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.3 It
will not review a decision denying or terminating a benefit unless the application for review is

2

On August 2, 2007 appellant filed a duplicate claim for an emotional condition sustained on April 26, 2001
when an injury compensation specialist discussed a job offer with her. On December 15, 2007 she filed a duplicate
claim for an emotional condition sustained on May 8, 2001, when she felt threatened at work. On January 25, 2008
the Office deleted File No. xxxxxx301 as a duplicate of File Nos. xxxxxx991 and xxxxxx188.
3

5 U.S.C. §§ 8101-8193.

2

filed within one year of the date of that decision.4 When an application for review is untimely,
the Office undertakes a limited review to determine whether the application presents clear
evidence that the Office’s final merit decision was in error.5 Office procedures state that the
Office will reopen a claimant’s case for merit review, notwithstanding the one-year filing
limitation set forth in 20 C.F.R. § 10.607, if the claimant’s application for review shows “clear
evidence of error” on the part of the Office.6 In this regard, the Office will limit its focus to a
review of how the newly submitted evidence bears on the prior evidence of record.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.8 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. 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. The Board
makes an independent determination of whether a claimant has submitted clear evidence of error
on the part of the Office such that it improperly denied merit review in the face of such
evidence.9
ANALYSIS
The Office properly determined that appellant failed to file a timely application for
review. Its procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision.10 A right to reconsideration
within one year also accompanies any subsequent merit decision.11 Appellant’s February 3,
2008 request for reconsideration was submitted more than one year after the February 5, 2002
decision, the last merit decision of record. It was therefore untimely. Consequently, appellant
must demonstrate clear evidence of error by the Office in denying her claim for compensation.12
4

20 C.F.R. § 10.607; see also Alan G. Williams, 52 ECAB 180 (2000).

5

Veletta C. Coleman, 48 ECAB 367 (1997).

6

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: “[The Office] will consider an
untimely application for reconsideration only if the application demonstrates clear evidence of error on the part of
[it] in its most recent decision. The application must establish, on its face, that such decision was erroneous.” 20
C.F.R. § 10.607(b).
7

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

8

Leon J. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55 ECAB 143 (2003).

9

Pete F. Dorso, 52 ECAB 424 (2001); John Crawford, 52 ECAB 395 (2001).

10

20 C.F.R. § 10.607(a).

11

Robert F. Stone, 57 ECAB 292 (2005).

12

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

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The Office, in its February 5, 2002 decision, denied appellant’s emotional condition
claim as she failed to establish a compensable factor of employment. Appellant attributed her
emotional condition to an April 26, 2001 conversation with an injury compensation specialist
regarding a light-duty job offer. The Office found that the conversation was an administrative
matter not within the performance of duty and that she failed to establish administrative error or
abuse. In appellant’s February 3, 2008 request for reconsideration, she did not address the
relevant issue of whether she established a compensable factor of employment. Thus, she has
not established clear evidence of error.13
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration as
it was not timely filed and did not demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 28, 2008 is affirmed.
Issued: July 10, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13

Howard Y. Miyashiro, 51 ECAB 253 (1999) (in order to establish clear evidence of error, a claimant must
submit evidence relevant to the issue which was decided by the Office).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, OFFICE OF
CHIEF COUNSEL, Chicago, IL, Employer
__________________________________________

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

Docket No. 16-1485
Issued: January 6, 2017

Case Submitted on the Record

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

JURISDICTION
On July 12, 2016 appellant, through counsel, filed a timely appeal from a May 16, 2016
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than
180 days elapsed from the last merit decision dated May 7, 2015, to the filing of this appeal on
July 12, 2016, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review 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 OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 10, 2008 appellant, then a 50-year-old legal assistant, sustained a traumatic
injury in the course of employment. In OWCP File No. xxxxxx276, OWCP accepted appellant’s
claim for a disc herniation at L4-5 and sciatica, and she was paid schedule award benefits for
nine percent permanent impairment of the left lower extremity. On November 16, 2010
appellant filed a recurrence claim (Form CA-2a), alleging that on October 22, 2010 she sustained
a recurrence when she was delivering transcripts. She stopped work on October 22, 2010 and
did not return. By decision dated February 9, 2011, OWCP denied the recurrence claim. A
hearing representative affirmed the denial of appellant’s recurrence claim. However, she also
instructed OWCP to create a new traumatic injury claim for the October 22, 2010 incident,
inasmuch as appellant cited exposure to a new work activity.
By letter dated August 2, 2013, OWCP informed appellant of the new traumatic injury
claim, and requested that she submit further information to support the relationship between a
medically-diagnosed condition and the incident of October 22, 2010.
In support of her claim, appellant submitted results of diagnostic tests taken on July 28,
2008 and July 3, 2010. She also submitted reports by Dr. Mao H. Chen, an internist, dated
August 31 and September 18, 2013. Dr. Chen noted onset of acute left leg pain in July 2008. He
also related that two radiologists had described structural changes at appellant’s L4-5 with
diagnoses of facet arthropathy, mild central stenosis, bilateral foraminal stenosis, greater on the
left, as shown on magnetic resonance imaging scan of July 23, 2010, and focal disc bulge or
herniation on the left side as shown in computerized tomography scan of July 28, 2008.
By decision dated September 25, 2014, OWCP denied appellant’s claim for
compensation as she failed to submit evidence containing a medical diagnosis in connection with
the incident. It noted that pain was a symptom and not a diagnosis of medical condition. OWCP
further noted that appellant must submit evidence of a causal relationship between a medical
diagnosis and the accepted employment incident.
On September 30, 2014 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative. At the hearing held on March 23, 2015, appellant testified with
regard to the circumstances of her injury and noted that she was currently receiving disability
retirement benefits.
By decision dated May 7, 2015, the hearing representative denied appellant’s claim. He
found that appellant failed to establish fact of injury as the evidence did not establish a medical
condition diagnosed in connection with the accepted work incident.
By letter dated February 18, 2016 appellant, through counsel, requested reconsideration.
In support thereof, counsel submitted a November 19, 2015 report wherein Dr. Charlemagne

2

Guerrero, a Board-certified internist, diagnosed herniation of lumbar intervertebral disc with
radiculopathy, arthritis of facet joints at multiple vertebral levels, intervertebral disc stenosis of
neural canal of lumbar region, bilateral low back pain with left-sided sciatica, bilateral low back
pain with right-sided sciatica, essential hypertension, major depressive disorder, recurrent
episode, mild; morbid obesity due to excess calories, difficulty in walking, and history of
humerus fracture. Dr. Guerrero noted that appellant was still having lower back pain, but had no
further falls since she fell in a grocery store in November 2014.
By decision dated May 16, 2016, OWCP denied appellant’s request for reconsideration,
noting that Dr. Guerrero did not address any medical condition related to the accepted
employment incident of October 22, 2010.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.4
When a claimant fails to meet one of the above standards, OWCP will deny the
application for reconsideration without reopening the case for review on the merits.5
OWCP has a timeliness goal for issuing reconsideration decisions within 90 days from
receipt of the request.6 Its procedures provide that when a reconsideration decision is delayed
beyond 90 days and the delay jeopardizes the claimant’s right to review of the merits of the case
by the Board, OWCP should conduct a merit review.7 However, there is no obligation to
conduct a merit review on insufficient evidence if the maximum 180-day time limit for
requesting review by the Board will have expired within the 90-day period following OWCP’s
receipt of the claimant’s reconsideration request.8
ANALYSIS
The most recent decision on the merits of appellant’s claim was OWCP’s May 7, 2015
decision. As more than 180 days elapsed from the May 7, 2015 decision to the filing of this
appeal, the Board lacks jurisdiction to review the merits of appellant’s claim.
3

5 U.S.C. § 8128(a). Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against
payment of compensation at any time on his own motion or on application.”
4

20 C.F.R. § 10.606(b)(3).

5

Id. at § 10.608(b).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.2 (October 2011).

7

Id. at Chapter 2.1602.7

8

Id.

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The Board finds that OWCP properly denied appellant’s request for reconsideration
without further merit review. The underlying issue in this case is whether appellant has
submitted sufficient evidence to establish a diagnosed medical condition causally related to the
accepted October 22, 2010 employment incident. This is a medical issue.
Appellant offered no relevant legal argument which had not previously been considered
by OWCP, nor did she show that OWCP had erroneously applied or interpreted a specific point
of law. Thus, she is not entitled to a merit review of her claim based on the first and second
above-noted requirements under section 10.606(b)(3).
The Board also finds that appellant failed to provide relevant and pertinent new evidence
not previously considered. The only new evidence submitted on appeal was the November 19,
2015 report by Dr. Guerrero. In this report, Dr. Guerrero does note numerous medical diagnoses.
However, he fails to relate these diagnoses to the October 22, 2010 employment incident. In
fact, Dr. Guerrero specifically noted a recent fall that took place in November 2014. As his
opinion does not address a causal relationship between the employment incident and appellant’s
diagnosed medical conditions, it is not relevant and pertinent to the underlying issue of causal
relationship.9
Because appellant failed to meet one of the standards enumerated under 20 C.F.R.
§ 10.606(b)(3), she was not entitled to further merit review of her claim.8
On appeal counsel contends that OWCP delayed issuing its decision on reconsideration,
and that this delay cost appellant her appeal rights. He contends that a decision should have been
issued that protected appellant’s appeal rights. Pursuant to OWCP’s procedures, the goal for
issuing reconsideration decisions is 90 days from OWCP’s receipt of the request.10 Appellant’s
reconsideration request was received by OWCP on February 18, 2016. Ninety days from the
date of receipt of the reconsideration request would have been May 18, 2016. As the decision on
reconsideration was issued on May 16, 2016, the decision was issued within the stated time, and
counsel’s argument as to a delay is without merit.
CONCLUSION
The Board finds that OWCP properly denied reconsideration of the merits under 5 U.S.C.
§ 8128(a).

9

See W.W., Docket No. 15-1486 (issued November 18, 2015).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.2(c) (October 2011).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 16, 2016 is affirmed.
Issued: January 6, 2017
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Denver, CO, Employer
__________________________________________

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

Docket No. 06-1775
Issued: September 11, 2007

Case Submitted on the Record

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

JURISDICTION
On July 28, 2006 appellant filed a timely appeal from a June 22, 2006 decision of the
Office of Workers’ Compensation Programs that terminated her compensation benefits.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s
compensation benefits effective June 22, 2006.
FACTUAL HISTORY
On August 15, 1995 appellant, then a 36-year-old dental assistant, sustained a traumatic
injury to her right wrist, fingers and forearm. The Office accepted the claim for right wrist
sprain, right radial styloid tenosynovitis and right carpal tunnel syndrome. Appellant stopped
work on August 2, 1995 and returned to a light-duty position on August 22, 1995. On
September 5, 1995 she filed a claim for a left wrist injury, which occurred on August 25, 1995.

The Office accepted appellant’s claim for left wrist sprain and left hand and wrist tenosynovitis.
These claims were administratively joined under the same file number. She stopped work on
August 31, 1996.
Appellant came under the care of Dr. Eric Britton, a Board-certified family practitioner,
on September 11, 1995. In reports dated September 11, 1995 to August 28, 1996, Dr. Britton
noted that appellant presented with bilateral complaints of wrist pain radiating into the forearm
that began on August 15, 1995 after two weeks of engraving materials with a motorized tool at
work. He diagnosed mild bilateral carpal tunnel syndrome, bilateral forearm overuse syndrome
and bilateral forearm tendinitis. On March 25, 1996 Dr. Britton opined that appellant reached
maximum medical improvement and could return to work subject to lifting restrictions.
In a September 9, 1998 report, Dr. Suzanne Bralliar, an osteopath, noted a history of
injury and diagnosed bilateral upper extremity rapid repetitive use syndrome, chronic
cervicothoracic strain and chronic pain syndrome and anxiety disorder. She advised that
appellant was involved in two unrelated automobile accidents and was treated for upper neck and
back injuries. In reports dated September 6 to October 15, 2001, Dr. Bralliar noted appellant’s
treatment for work-related bilateral sprain and strain of wrist and hand, radial styloid
tenosynovitis, carpal tunnel syndrome and neurotic disorders. Appellant was also treated by
Dr. Carolyn R. Stoloff, a clinical psychologist. In February 16, 1998 and February 19, 1999
reports, appellant was seen for panic disorder, dysthymic depression secondary to her wrist
injury and a learning disability. She submitted electromyograms (EMG) dated July 10 and 17,
1998, which revealed no abnormalities.
On November 14 and December 18, 2002 Dr. Christopher B. Ryan, an attending Boardcertified physiatrist, treated appellant for work-related injuries as well as injuries sustained in an
automobile accident in July 1998. He noted findings upon physical examination of the upper
extremities revealed no focal atrophy, minimal musculature, no actively inflamed joints, no
limited range of motion and no focal neurological findings. Dr. Ryan diagnosed overuse upper
extremity dysfunction and chronic pain syndrome.
On February 4, 2003 the Office issued a notice of proposed termination of compensation
benefits on the grounds that Dr. Ryan’s report established no residuals of the accepted injuries.
By decision dated March 7, 2003, the Office terminated appellant’s compensation
benefits effective March 22, 2003 finding that the weight of the medical evidence established
that she had no continuing residuals of her accepted conditions.
On March 21, 2003 appellant requested reconsideration and asserted that her
representative was not properly notified of the pretermination letter or termination decision and
was not provided with a full 30 days to respond. In a May 16, 2003 decision, the Office set aside
the March 7, 2003 decision, finding that appellant’s authorized representative was not properly
notified of the proposed termination. It noted that appellant would be provided with an
additional 30 days to provide additional evidence or arguments.

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On June 16, 2003 appellant objected to the proposed termination and alleged that her
claim was accepted for neurotic disorders.1 In a June 9, 2003 report, Dr. Margaret M. Reiland, a
licensed clinical psychologist, noted a history of appellant’s chronic pain associated with her
work-related repetitive motion injuries. She diagnosed major depressive disorder, single
episode, moderate chronic, anxiety disorder, pain disorder associated with both psychological
factors and medical condition, bilateral carpal tunnel syndrome, bilateral flexor tendon tendinitis
in the fingers, hands wrists and forearms, fibromyalgia and chronic fatigue syndrome. The
psychologist opined that appellant’s conditions were caused by her work-related injuries and that
she was totally disabled.
On July 18, 2003 the Office referred appellant to Dr. Michael Shrift, a Board-certified
psychiatrist, for a second opinion evaluation. The Office requested that Dr. Shrift address
whether appellant’s diagnosed psychiatric condition was a result of her accepted injuries. In an
August 8, 2003 report, Dr. Shrift discussed appellant’s work history. He noted findings upon
physical examination of no attention or concentration deficits, slight short and long-term deficits
and her memory was intact. Dr. Shrift diagnosed major depressive disorder, single episode, in
partial remission, learning disorder, personality disorder and multiple medical problems. He
opined that the condition of major depression was work related; however, there was evidence
that appellant had a preexisting depression, anxiety, personality disorder and learning disorder.
Dr. Shrift indicated that appellant’s depression was not disabling and she could work four hours
per day.
On July 16, 2004 Dr. Reiland opined that appellant’s major depressive disorder was
related to her work injuries. She advised that appellant was unable to work due to her
psychological condition and the unresolved nature of her arm injuries and the limitations they
imposed.
The Office found a conflict of medical opinion between Dr. Reiland, appellant’s treating
physician, who found that appellant was totally disabled from work due to her work-related
major depressive disorder, and Dr. Shrift, an Office referral physician, who determined that
appellant’s major depression was work related but not totally disabling and that she could work
four hours per day.
The Office referred appellant to a referee physician, Dr. Burt S. Furmansky, a Boardcertified psychiatrist. In a report dated May 20, 2005, Dr. Furmansky reviewed the record and
examined appellant. He noted a history of appellant’s work-related injuries. Dr. Furmansky
noted findings upon mental examination of intact immediate, short-term and remote memory, no
hallucinations or paranoid delusions. He diagnosed somatization disorder, not work related,
possible malingering, preexisting learning disorder, personality disorder, bilateral upper
extremity tendinitis, myofascial pain syndrome of neck, upper and lower back, chronic fatigue
syndrome and whiplash injuries due to automobile accidents. Dr. Furmansky noted significant
preexisting psychological and personality factors impairing appellant’s ability to function. He
opined that appellant’s psychiatric diagnoses were not caused by work factors but were instead
due to preexisting developmental and psychological factors causally related to the development
1

The record does not reveal that appellant’s claim was accepted for neurotic disorders.

3

of her somatization disorder and preexisting personality disorder. Dr. Furmansky opined that
appellant was not capable of returning to work for eight hours per day because she had been off
work for about nine years and had developed an ego deficit. He recommended that appellant
return to work for four hours per day and increase up to eight hours per day within one year with
work hardening and vocational rehabilitation as viable options. Dr. Furmansky indicated that
appellant’s restrictions due to her tendinitis precluded her from returning to her previous job.
On June 22, 2005 the Office found that a conflict of medical opinion arose between
Dr. Reiland, who stated that appellant was totally disabled from work due to her work-related
major depressive disorder, Dr. Shrift, who determined that appellant’s major depression was
work related but was not totally disabling, and Dr. Furmansky, the impartial medical examiner.
The Office referred appellant Dr. Jeffrey J. Sabin, a Board-certified orthopedic surgeon.
In a report dated August 12, 2005, he reviewed the records provided to him and examined
appellant. Dr. Sabin noted a history of appellant’s work-related injuries. He noted findings upon
physical examination of no atrophy, her skin, pulses and sensation were intact, mild Tinel signs
bilaterally, Phalen sign was not specific for median nerve, no thenar wasting and tenderness over
the forearm musculature and medial condyles bilaterally. Elbow, wrist and finger range of
motion was normal, muscle strength was normal in flexion and extension of the elbow and the
shoulders, mild grip strength, bilaterally and sensation normal in the upper extremities.
Dr. Sabin advised that he found no objective evidence of any carpal tunnel syndrome in the
upper extremities. He noted that appellant had symptomology throughout her entire body not
limited to her upper extremities and opined that, with sundry complaints and no objective
findings that fit any known diagnoses, her focus was on psychological difficulties. Dr. Sabin
indicated that there was no medical rationale based on commonly accepted orthopedic
musculoskeletal knowledge that appellant could not perform her date-of-injury position as a
dental technician. Rather, the reason appellant could not perform her job was psychological in
nature. Dr. Sabin noted on a work-capacity evaluation that there was no orthopedic reason for
appellant not to return to full-time work. He concurred with Dr. Furmansky’s opinion that
appellant could return to work for four hours per day and gradually increase over a one-year
period to full-time work with a restriction on lifting limited to 10 pounds.
Appellant submitted a report from Dr. Reiland dated October 11, 2005. Dr. Reiland
disagreed with the reports of Drs. Furmansky and Sabin and opined that appellant was still
physically symptomatic. She indicated that Dr. Furmansky provided no rationale for his opinion
that appellant’s current psychological condition was the result of preexisting developmental
factors or an underlying personality disorder.
On April 5, 2006 the Office issued a notice of proposed termination of compensation
benefits on the grounds that Drs. Furmansky and Sabin established no continuing residuals of the
work-related employment injury.
On May 1, 2006 appellant disagreed with the proposed termination of benefits. She
noted that the statement of accepted facts failed to note that the Office had accepted her claim for
neurotic disorders. Appellant contended that Dr. Sabin’s report was not well rationalized. She
further noted that the Office failed to provide her appointed representative with a copy of the
statement of accepted facts prior to referring her for the medical examination.

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In a June 22, 2006 decision, the Office terminated appellant’s compensation benefits
effective that date, on the grounds that the weight of the medical evidence established that she
had no continuing disability resulting from her accepted employment injury.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.2 After it has determined that an employee has disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing that the disability has ceased or that it is no longer related to the
employment.3
ANALYSIS
The Office accepted appellant’s claims for left wrist sprain, left hand and wrist
tenosynovitis, right wrist sprain, right radial styloid tenosynovitis and right carpal tunnel
syndrome.4 The Office determined that a conflict in medical opinion arose between appellant’s
attending physician, Dr. Reiland, a licensed clinical psychologist, who indicated that appellant
was totally disabled due to a work-related major depressive disorder, and Dr. Shrift, an Office
referral physician, who determined that appellant’s major depression was work related but was
not totally disabling and she could work four hours per day. The Office referred appellant to
Dr. Furmansky to resolve the conflict.5 The Board finds that the opinion of Dr. Furmansky is
sufficiently well rationalized and based upon a proper factual background. It is entitled to
special weight and establishes that appellant did not develop a work-related emotional condition.
Where there exists a conflict of medical opinion and the case is referred to an impartial specialist
for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently well
rationalized and based upon a proper factual background, is entitled to special weight.6
On May 20, 2005 Dr. Furmansky reviewed appellant’s history, reported findings and
noted that appellant exhibited no objective complaints or definite work-related abnormality. He
noted findings upon mental examination and reported diagnoses of emotional and physical
conditions that included somatization disorder, possible malingering, preexisting learning
disorder and myofascial pain syndrome of neck, upper and lower back. Dr. Furmansky noted
significant preexisting psychological and personality factors impairing appellant’s ability to
function. He opined that appellant’s psychiatric diagnoses were not caused by her work factors
and were instead due to preexisting developmental and psychological factors causally related to
2

Gewin C. Hawkins, 52 ECAB 242 (2001); Alice J. Tysinger, 51 ECAB 638 (2000).

3

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

4

Appellant has alleged that her claim was accepted for neurotic disorders; however, the record is void of any
evidence to suggest that the Office accepted an emotional condition as work related. As noted, the record does
reveal that the Office further developed appellant’s claim for an emotional condition and determined that the
condition was not work related.
5

See 5 U.S.C. § 8123(a).

6

Solomon Polen, 51 ECAB 341 (2000).

5

the development of her somatization disorder and preexisting personality disorder.
Dr. Furmansky opined that appellant was not capable of returning to work for eight hours per
day because she had not worked for about nine years. He recommended that appellant return to
work for four hours per day and increase up to eight hours per day within one year.
The Board finds that Dr. Furmansky had full knowledge of the relevant facts and
evaluated the course of appellant’s emotional condition. He is a specialist in the appropriate
field. At the time benefits were terminated Dr. Furmansky opined that appellant had no workrelated psychiatric reason for disability. His opinion as set forth in his report of May 20, 2005 is
found to be probative evidence and reliable. The Board finds that Dr. Furmansky’s opinion
constitutes the weight of the medical evidence and is sufficient to establish that appellant does
not have a work-related emotional condition.7
Thereafter, the Office found a medical conflict between Dr. Reiland, Dr. Shrift and
Dr. Furmansky and referred appellant to Dr. Sabin, a Board-certified orthopedic surgeon. The
Board notes, however, that Dr. Sabin is not an impartial medical specialist because there was no
conflict of medical opinion at the time of the Office’s referral to Dr. Sabin. Drs. Reiland and
Shrift did not specifically address appellant’s orthopedic conditions, therefore, cannot be the
basis of a conflict with regard to appellant’s orthopedic condition. Although Dr. Furmansky
noted that appellant’s tendinitis precluded her from returning to her date-of-injury position, his
opinion was obtained based on the conflict of medical opinion as to appellant’s mental status.
Even though the report of Dr. Sabin is thus not entitled to the special weight afforded an
impartial medical specialist, his report may still be considered for its own intrinsic value.8 He
found no objective evidence of any carpal tunnel syndrome in the upper extremities. Dr. Sabin
noted that appellant had symptomology throughout her entire body not limited to her upper
extremities and opined that, with sundry complaints and no objective findings that fit any known
diagnoses, her diagnoses centered on psychological difficulties. He indicated that there was no
medical basis, in view of commonly accepted orthopedic musculoskeletal knowledge, that
appellant could not perform her date-of-injury position as a dental technician. Rather, Dr. Sabin
opined that the evidence suggests that the reason appellant could not perform her job was
psychological in nature. Dr. Sabin noted on a work-capacity evaluation that there was no
orthopedic reason for appellant not to return to work full time.
Appellant contended that the statement of accepted facts failed to note that the Office
accepted neurotic disorder on April 29, 1996. The Board has reviewed the record and notes that
appellant’s condition was never accepted for a neurotic disorder. Therefore, it was properly
omitted from statement of accepted facts. The Board finds this argument to be without merit.
7

In cases where the Office has referred appellant to an impartial medical examiner to resolve a conflict in the
medical evidence, the opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight. Gary R. Sieber, 46 ECAB 215, 225 (1994).
8

See Cleopatra McDougal-Saddler, 47 ECAB 480 (1996). See Leanne E. Maynard, 43 ECAB 482 (1992) (the
Board found that a physician’s “opinion is probative even though he was not an impartial medical examiner” and
that the opinion of this physician and another physician were sufficient to establish causal relation); Rosa Whitfield
Swain, 38 ECAB 368 (1987) (the Board found that a physician was improperly designated as an impartial medical
specialist, but that his opinion nonetheless constituted the weight of the medical evidence).

6

Appellant further indicated that Dr. Sabin’s report was not well rationalized. The Board has
reviewed Dr. Sabin’s report and notes that he reviewed appellant’s history, addressed the
accepted conditions, provided findings on examination and provided a reasoned opinion that
appellant no longer experienced residuals of the accepted conditions.
The Board finds that Dr. Sabin had full knowledge of the relevant facts and evaluated the
course of appellant’s condition. He is a specialist in the appropriate field and his was well
reasoned and based upon a proper factual background. At the time benefits were terminated
Dr. Sabin clearly opined that appellant’s work-related right wrist sprain, right radial styloid
tenosynovitis and right carpal tunnel syndrome had resolved and that she could return to her
regular duties. His opinion as set forth in his report of August 12, 2005 is found to be probative
evidence and reliable. The Board finds that Dr. Sabin’s opinion constitutes the weight of the
medical evidence with regard to appellant’s physical conditions.
In view of this, the Board finds that the Office met its burden of proof in terminating
appellant’s compensation benefits.
CONCLUSION
The Board finds that the Office has met its burden of proof to terminate benefits effective
June 22, 2006.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 22, 2006 is affirmed.
Issued: September 11, 2007
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT FIELD OFFICE DIRECTOR,
Plantation, FL, Employer
__________________________________________

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

Docket No. 16-0067
Issued: March 10, 2016

Case Submitted on the Record

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

JURISDICTION
On October 15, 2015 appellant filed a timely appeal from a September 15, 2015 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 a schedule award.
FACTUAL HISTORY
On October 15, 2012 appellant, then a 48-year-old deportation officer, filed a traumatic
injury claim (Form CA-1) alleging that on October 12, 2012 he sustained head, neck, and back
1

5 U.S.C. § 8101 et seq.

injuries when the chair he was sitting in fell apart causing him to fall backward and strike the
floor. He did not stop work. OWCP accepted the claim for lumbar sprain.
On July 30, 2014 appellant was seen at the Osceola Regional Medical Center by
Dr. Judson Krosney, a specialist in emergency medicine, for acute exacerbation of back pain.
Appellant filed a notice of recurrence of medical condition on August 24, 2014 for medical
treatment only. OWCP received a July 3, 2002 magnetic resonance imaging (MRI) scan, on
October 1, 2014, which was interpreted by Dr. Bruce A. Rodan, a Board-certified diagnostic
radiologist, as revealing herniated discs at L4-5 and L5-S1.
On January 19, 2015 appellant filed a claim for a schedule award (Form CA-7).
By letter dated February 6, 2015, OWCP requested that appellant submit an impairment
evaluation from his attending physician in accordance with the American Medical Association,
Guides to the Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides).2 It
provided him 30 days to submit the requested impairment evaluation.
By letter dated March 6, 2015, appellant informed OWCP that his treating physician,
Dr. Diego Guerrero Amponsah, Board-certified in pain medicine, declined to submit a report
because he was not a specialist on matters related to the spine.
On July 28, 2015 OWCP referred appellant, a series of questions, a statement of accepted
facts (SOAF), and the medical record to Dr. Richard C. Smith, a Board-certified orthopedic
surgeon, for a second opinion examination and determination as to whether appellant sustained a
permanent impairment and the date of maximum medical improvement (MMI).
Dr. Smith evaluated appellant on August 13, 2015 and provided detailed findings on
physical examination, summary of past medical history, and review of diagnostic testing. He
noted that a March 13, 2015 x-ray of the lumbar spine revealed no fracture and dislocation, joint
spaces well preserved, and normal alignment. A 2002 MRI scan revealed herniated nucleus
pulposus (HNP) at L4-5 and L5-S1 from a prior injury. Dr. Smith diagnosed lumbargo and
lumbar sprain.
In an August 19, 2015 supplemental report, Dr. Smith opined that appellant’s accepted
condition of lumbar strain did not qualify for an impairment rating in accordance with the sixth
edition of the A.M.A., Guides. He noted that appellant had lumbar disc herniations at L4-5 and
L5-S1 which predated his 2012 date of injury. Dr. Smith explained that appellant’s neurologic
examination revealed normal findings and thus, no impairment was warranted in this case.
By decision dated September 15, 2015, OWCP denied appellant’s claim for a schedule
award as the evidence was insufficient to establish a permanent impairment to a member or
function of the body.

2

A.M.A., Guides (2009).

2

LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations 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.3 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.4
It is the claimant’s burden to establish that he has sustained a permanent impairment of
the scheduled member or function as a result of any employment injury.5 OWCP procedures
provide that, to support a schedule award, the file must contain competent medical evidence
which shows that the impairment has reached a permanent and fixed state and indicates the date
on which this occurred (date of maximum medical improvement), describes the impairment in
sufficient detail so that it can be visualized on review and computes the percentage of
impairment in accordance with the A.M.A., Guides.6
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.7 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.8
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment.9 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

3

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

4

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); see also Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter, 2.808.5a
(February 2013).
5

Tammy L. Meehan, 53 ECAB 229 (2001).

6

Supra note 4, Part 2 at Chapter 2.808.5 (February 2013).

7

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

8

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

9

Supra note 4 Part 3 at Chapter 3.700, Exhibit 4 (January 2010).

3

2009) is to be applied.10 FECA approved methodology is premised on evidence of radiculopathy
affecting the upper and/or lower extremities.11
ANALYSIS
OWCP accepted appellant’s claim for sprain of lumbar back. The Board notes that a
schedule award is not payable under FECA for injury to the spine12 or based on whole person
impairment.13 However, 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.14
Appellant must establish impairment to a scheduled member caused by the accepted condition
before impairment due to a preexisting condition can be assessed.15 The instant record fails to
establish that appellant has any impairment caused by his accepted sprain of lumbar spine.
In his August 19, 2015 report, Dr. Smith opined that appellant’s accepted condition of
lumbar strain did not qualify for an impairment rating in accordance with the sixth edition of the
A.M.A., Guides. He noted that appellant had lumbar disc herniations at L4-5 and L5-S1 which
predated his 2012 date of accident. Dr. Smith explained that appellant’s neurologic examination
revealed normal findings and thus, no schedule award for permanent impairment was warranted
in this case.
The Board finds that Dr. Smith properly concluded that appellant had no permanent
impairment to a member or function of the body. Dr. Smith provided a well-reasoned report
based on a proper factual and medical history and included detailed findings and rationale
supporting his opinion. The August 13, 2015 examination performed revealed normal sensory
and motor findings in both lower extremities.16 As previously noted, FECA does not allow for
permanent partial impairment ratings of the back without evidence of extremity impairment.17
Thus, the record does not provide any medical opinion finding that appellant sustained
permanent impairment of the lower extremities as a result of his employment injury.18 The
Board finds that OWCP properly denied his claim for a schedule award.

10

See G.N., Docket No. 10-850 (issued November 12, 2010); see also id. at Chapter 3.700, Exhibit 1, note 5
(January 2010). The Guides Newsletter is included as Exhibit 4.
11

Supra note 6 at Chapter 2.808.5(c)(3) (February 2013).

12

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

13

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

14

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

15

See generally Thomas P. Lavin, 57 ECAB 353 (2006).

16

L.W., Docket No. 12-1613 (issued February 19, 2013).

17

Supra note 11.

18

E.D., Docket No. 10-967 (issued January 7, 2011).

4

It is appellant’s burden of proof to establish a permanent impairment of a scheduled
member as a result of an employment injury.19 The medical evidence must include a description
of any physical impairment in sufficient detail so that the claims examiner and others reviewing
the file would be able to clearly visualize the impairment with its resulting restrictions and
limitations.20 Appellant did not submit such evidence and thus, he did not meet his burden of
proof to establish a schedule award claim.21
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 met his burden of proof to establish entitlement to
a schedule award for permanent impairment of a scheduled member, due to his work-related
injury.

19

See supra note 5.

20

See A.L., Docket No. 08-1730 (issued March 16, 2009).

21

V.W., Docket No. 09-2026 (issued February 16, 2010); L.F., Docket No. 10-343 (issued November 29, 2010).

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated September 15, 2015 is affirmed.
Issued: March 10, 2016
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Macclesfield, NC, Employer
__________________________________________

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

Docket No. 18-1434
Issued: February 22, 2019

Case Submitted on the Record

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

JURISDICTION
On July 18, 2018 appellant, through counsel, filed a timely appeal from a February 9, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a back injury
causally related to the accepted May 27, 2016 employment incident.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the prior Board decision are incorporated herein by reference. The relevant facts are as follows.
On June 2, 2016 appellant, then a 49-year-old rural carrier, filed a traumatic injury claim
(Form CA-1) alleging that, on May 27, 2016, she developed right lower back pain, in the
performance of duty that was diagnosed as a subluxation. She noted that the pain went down her
right thigh to her calf area when she tried to turn to her left to move long mail trays that she was
holding on her lap. Appellant stopped work on the date of injury.
In duty status reports (Form CA-17) dated June 22 and July 1, 2016, Dr. Chawki A.
Lahoud, a Board-certified internist, noted May 27, 2016 as the date of injury, listed clinical
findings, and diagnosed muscular contracture and degenerative joint disease due to injury. He also
addressed appellant’s light-duty work capacity.
By decision dated July 21, 2016, OWCP denied appellant’s traumatic injury claim, finding
that she had not submitted medical evidence from a physician containing a medical diagnosis in
connection with the accepted May 27, 2016 employment-related incident. As such, fact of injury
as defined under FECA had not been established.
A July 25, 2016 medical report by Dr. David Musante, a Board-certified orthopedic
surgeon, provided examination findings and diagnosed degeneration of a lumbosacral
intervertebral disc.
Appellant appealed to the Board on September 26, 2016. By decision dated February 15,
2017, the Board affirmed OWCP’s July 21, 2016 decision, finding that appellant failed to submit
rationalized probative medical evidence sufficient to establish a back injury causally related to the
accepted May 27, 2016 employment incident.4
In a letter received by OWCP on June 28, 2017, appellant, through counsel, requested
reconsideration. Appellant submitted a progress note dated May 31, 2017 from Chetan D. Kapat,
a certified physician assistant, who diagnosed left shoulder pain likely from acromioclavicular
joint arthritis with rotator cuff tendinitis.
Appellant also submitted a progress note dated June 19, 2017 from Dr. Aaron P. Leininger,
a Board-certified family practitioner. Dr. Leininger related that appellant reported the history of
injury as involving trouble she had with her right knee since she stepped in a hole last year. She
3

Docket No. 16-1885 (issued February 15, 2017).

4

Id.

2

also reported a locking feeling and that a bone was catching onto something. Appellant initially
sought medical treatment in an emergency room and it was suggested that she had a meniscus
injury. Dr. Leininger reported findings on physical and x-ray examination of the right knee. He
diagnosed chronic right knee pain.
By decision dated July 19, 2017, OWCP modified its decision denying appellant’s
traumatic injury claim, finding that the medical evidence of record was sufficient to establish the
medical component of fact of injury as qualified physicians provided lumbar diagnoses. However,
it further found that the claim remained denied as the medical evidence of record was insufficient
to establish causal relationship between appellant’s diagnosed conditions and the accepted May 27,
2016 employment incident of turning to the left to move long mail trays she had been holding on
her lap.
In a discharge summary dated July 20, 2017, Dr. Leininger examined appellant and advised
that she had a complex tear of the medial meniscus and primary osteoarthritis of the right knee.
In an after visit summary report dated August 1, 2017, Dr. Richard J. Alioto, a Boardcertified orthopedic surgeon, noted that appellant’s right knee pain was likely from a posterior
medial meniscal tear, cartilage defect on the lateral femoral and tibial condyle, and patellofemoral
mal tracking. He noted her desire to undergo right knee surgery.
In office visit reports dated May 31, 2016 to August 11, 2017, Dr. James Carraher, a
chiropractor, related a history of the May 27, 2016 employment incident and reported examination
findings regarding appellant’s pelvic, lumbar, and cervical regions. He diagnosed nonallopathic
lesions of the thoracic and hip regions, sacroiliac joint somatic dysfunction, displacement of
lumbar intervertebral disc without myelopathy (disorder), cervico-occipital neuralgia, myalgia,
and contracture of muscle, multiple sites. Dr. Carraher initially advised that appellant’s prognosis
was guarded because she had not received sufficient treatment to determine a prognosis.
Subsequently, he advised that her prognosis was fair because she was responding well to
chiropractic therapy.
In office visit reports dated June 1 to 24, 2016, Dr. Collin Kurtz, a chiropractor, provided
examination findings regarding appellant’s lumbar, cervical, and thoracic spines. He initially
advised that her prognosis was guarded, but subsequently advised that appellant’s prognosis was
fair because she was responding well to chiropractic therapy.
On November 16, 2017 appellant, through counsel, requested reconsideration of OWCP’s
July 19, 2017 decision. She submitted a letter dated November 5, 2017 in which Dr. Alioto noted
that appellant reported a 2016 work injury for which he assisted in the care of her shoulder and
knee. Dr. Alioto also noted that commencing in May 2017 she was treated by his physician
assistant, Mr. Kapat, for left shoulder pain that began in 2015 and resulted from repeated use of
her shoulder while delivering mail. He listed Mr. Kapat’s left shoulder diagnosis and medical
treatment administered. Dr. Alioto indicated that appellant was treated in June 2017 by his partner,
Dr. Leininger, for a right knee injury sustained approximately one year prior to her evaluation
when she stepped in a hole. He related that there was no description of how and when the injury
occurred. Dr. Alioto noted Dr. Leininger’s right knee diagnostic findings. Based on appellant’s
history and his own examination findings, he found that her right knee symptoms were related to

3

a form of medial meniscus and patellofemoral pathology. Dr. Alioto indicated that she underwent
arthroscopy of the knee with partial medial meniscectomy and patellofemoral chondroplasty on
September 13, 2017. Appellant was progressing well postsurgery and undergoing physical
therapy. Dr. Alioto advised that the pathology discovered in her knee in the September 2017
surgery most certainly was the result of chronic changes that were present, but was also likely a
mechanical-type injury such as what would occur when someone stepped in a hole and twisted a
knee. He maintained that since there was brief documentation of appellant’s injury, he could not
corroborate that this was the same injury described during her course of employment as a postal
carrier. Dr. Alioto indicated that her knee injury was the type that should recover in time though
the preexisting status of those joints could certainly affect the long-term outcome.
OWCP, by decision dated February 9, 2018, denied modification of its July 19, 2017
decision, finding that the medical evidence submitted was insufficient to establish causal
relationship between a diagnosed medical condition and the accepted May 27, 2016 employment
incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
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 employee 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.7 Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.8
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment incident identified by the claimant.9 This medical opinion must include an accurate
5

Supra note 2.

6

A.D., Docket No. 17-1855 (issued February 26, 2018); Gary J. Watling, 52 ECAB 357 (2001).

7

A.D., id.; T.H., 59 ECAB 388 (2008).

8

Id.

9

A.D., supra note 6; I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

4

history of the employee’s employment injury and must explain how the condition is related to the
incident. The weight of medical evidence is determined by its reliability, its probative value, its
convincing quality, the care of analysis manifested, and the medical rationale expressed in support
of the physician’s opinion.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a back injury
causally related to the accepted May 27, 2016 employment incident.
OWCP accepted that the May 27, 2016 employment incident occurred as alleged. The
issue is whether appellant established that the accepted incident caused a back condition. By
decision dated February 15, 2017, the Board affirmed OWCP’s denial of appellant’s claim.
Findings made in the prior Board decision are res judicata absent any further review by OWCP
under section 8128 of FECA.11 The Board will, therefore, not review the evidence addressed in
the prior appeal.
The June 19, 2017 progress note and July 20, 2017 discharge summary of Dr. Leininger
and August 1 and November 5, 2017 reports of Dr. Alioto related a history of injury as appellant
stepping in a hole in 2016. Dr. Leininger diagnosed pain, a complex tear of the medial meniscus,
and primary osteoarthritis of the right knee. Dr. Alioto initially diagnosed right knee pain that was
likely from a posterior medial meniscal tear, cartilage defect on the lateral femoral and tibial
condyle, and patellofemoral mal tracking. He subsequently found that appellant’s symptoms were
related to a form of medial meniscus and patellofemoral pathology for which she underwent
arthroscopic surgery on September 13, 2017. Dr. Alioto attributed the pathology discovered in her
right knee surgery to present chronic changes and stepping in a hole in 2016.
The Board finds that the progress note and reports of Dr. Leininger and Dr. Alioto are
insufficient to establish appellant’s claim for a May 27, 2016 employment injury. The subject of
OWCP’s decision presently before the Board, i.e., OWCP’s February 9, 2018 decision, is whether
appellant established a traumatic injury causally related to the accepted May 27, 2016 employment
incident which involved turning to the left to move long mail trays she had been holding on her
lap. The matter of employment-related medical conditions sustained in 2016 due to stepping in a
hole is not currently before the Board. A medical opinion should reflect a correct history and offer
a medically sound explanation by the physician of how the accepted employment incident
physiologically caused or aggravated the diagnosed conditions.12 The reports of Dr. Leininger and
Dr. Alioto are of no probative value on the relevant issue of the present case because neither

10

S.H., Docket No. 17-1660 (issued March 27, 2018); James Mack, 43 ECAB 321 (1991).

11

See E.L., 16-0635 (issue November 7, 2016); R.L., Docket No. 15-1010 (issued July 21, 2015). See also A.P.,
Docket No. 14-1228 (issued October 15, 2014).
12

See J.M., Docket No. 17-1002 (issued August 22, 2017).

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physician provided an opinion that appellant sustained a diagnosed condition due to the accepted
May 27, 2016 employment incident.13
The reports dating from May 31, 2016 to August 11, 2017 from appellant’s chiropractors,
Dr. Carraher and Dr. Kurtz, have no probative value on the issue of causal relationship.
Chiropractors are not considered physicians as defined under FECA unless it is established that
there is a spinal subluxation as demonstrated by x-ray to exist.14 Neither Dr. Carraher nor
Dr. Kurtz diagnosed subluxation based on the results of an x-ray. Therefore, their reports have no
probative value.15
The May 31, 2017 progress note from Mr. Kapat, a certified physician assistant, is also of
no probative value. The Board has held that medical reports signed solely by a physician assistant
are of no probative value as a physician assistant is not considered a physician as defined under
FECA and therefore is not competent to provide a medical opinion.16
The Board finds that appellant has not submitted rationalized, probative medical evidence
sufficient to establish a back injury causally related to the May 27, 2016 employment incident.
Appellant therefore has not met her burden of proof.
On appeal counsel contends that OWCP’s February 9, 2018 decision finds conflict in the
evidence when there is none. For the reasons explained above, the Board finds that the evidence
of record is insufficient to meet appellant’s burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a back injury
causally related to the accepted May 27, 2016 employment incident.

13

See F.A., Docket No. 17-0468 (issued June 15, 2018).

14
See 5 U.S.C. § 8101(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as
defined by State law. The term physician includes chiropractors only to the extent that their reimbursable services are
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray
to exist and subject to regulation by the secretary. See M.B., Docket No. 17-1378 (issued December 17, 2018);
Merton J. Sills, 39 ECAB 572, 575 (1988).
15

M.B., id.; P.T., Docket No. 17-1189 (issued December 27, 2017).

16

Supra note 14 at § 8101(2). See C.C., Docket No. 18-1099 (issued December 21, 2018); David P. Sawchuk, 57
ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses and physical therapists are not
competent to render a medical opinion under FECA).

6

ORDER
IT IS HEREBY ORDERED THAT the February 9, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 22, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and
U.S. POSTAL SERVICE, HELENA POST
OFFICE, Helena, MT, Employer
__________________________________________

)
)
)
)
)
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)
)

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

Docket No. 13-1620
Issued: November 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 June 28, 2013 appellantfiled a timely appeal from a March 29, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs(OWCP) denying his request for
reconsideration.Because more than 180 days elapsed from the most recent merit decision dated
November 23, 2012 to the filing of this appeal, the Board lacks jurisdiction to review the merits
of this case pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

2

See 20 C.F.R. § 501.3(e).

On appeal, appellant contends that he submitted a December 27, 2012 medical report of
Dr. Mason B. Hunter, a Board-certified orthopedic surgeon,which was sufficient to establish that
he sustained a work-related condition of his feet.
FACTUAL HISTORY
On April 30, 2012 appellant, then a 60-year-old custodial laborer, filed an occupational
disease claim alleging that on October 1, 2008 he first realized that he sustained an injury caused
by working on his feet all day for 30 years at the employing establishment.
In an April 30, 2012 letter, the employing establishment controverted the claim,
contending that appellant failed to submit any supportive factual and medical evidence.
By letter dated May 10, 2012, OWCP requested that appellant submit additional factual
and medical evidence. It requested that the employing establishment submit any medical
evidenceregarding treatment appellant received at its medical facility.
In an undated letter, appellant provided his employment history and described his work
duties as a mailhandler, part-time flexible clerk and regular clerk. The positions required heavy
lifting, loading and unloading trucks and carts, driving forklifts and standing 40 to 56 hours a
week. Appellant described the development of his bilateral knee and foot and big toeconditions
and medical treatment.
Progress notes, diagnostic test results and a hospital surgical report that addressed
appellant’sbilateral knee and foot and big toe conditions andmedical treatment.
In an August 3, 2012 decision, OWCP denied appellant’s claim, finding that the medical
evidence was insufficient to establish that he sustained a medical condition causally related to the
accepted employment factors.
On August 14, 2012 appellant requested a review of the written record by an OWCP
hearing representative. He submitted an article from the American Association of Retired
Persons’ magazineentitled “Keeping Your Knees Healthy.”A June 1, 2012note which contained
an illegible signature stated that appellant had left knee arthritis and was scheduled to undergo
knee replacement surgery on June 4, 2012. Appellant’s condition was due to being on his feet
for the last 30 years, lifting and twisting.
In a November 23, 2012 decision, OWCP’s hearing representative affirmed the August 3,
2012 decision. He found that the medical evidence did not provide a rationalized opinionbased
on a complete factual and medical background explaining how appellant’sleft knee or bilateral
foot conditionswere caused byhisemployment duties.
By letter dated January 6, 2013, appellant requested reconsideration. He resubmitted the
June 1, 2012 noteand stated that it was clearly dated June 1, 2012 and signed by Dr. Hunter.
Appellant also stated that Dr. Hunter’s December 17, 2012 report accompanied his
reconsideration request.

2

In a March 29, 2013 decision, OWCP denied appellant’s request for reconsideration
without further merit review. It found that the evidence submitted was repetitious or duplicative
in nature, and insufficient to warrant further merit review of its August 3, 2012 decision.
OWCPnoted that Dr. Hunter’s December 17, 2012 report did not accompany appellant’s
reconsideration request.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128 of FECA,3
OWCP’s regulation provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.4 To be entitled to a merit review of OWCP’s decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.5 Section 10.608(b) of the implementing regulationsstate that any
application for review that does not meet at least one of the requirements listed in 20 C.F.R.
§ 10.606(b)(3) will be denied by OWCP without review of the merits of the claim.6
ANALYSIS
On January 6, 2013 appellantdisagreed with OWCP’s November 23, 2013decision,
finding that he did not sustain left knee and bilateral foot conditions causally related to the
accepted employment factors. He requested reconsideration. The Board finds that appellantdid
not show that OWCP erroneously applied or interpreted a specific point of law. Moreover,
appellantdid not advance a relevant legal argument not previously considered.
The Board further finds that appellant did not submit relevant and pertinent new evidence
not previously considered. The June 1, 2012 note of Dr. Hunter was previously of record and
considered by OWCP in the November 23, 2012 decision. The submission of evidence which
repeats or duplicates evidence already in the case record does not constitute a basis for reopening
a case.7
Appellant stated that a copy of Dr. Hunter’s December 17, 2012 report accompanied
hisreconsideration request. The Board notes, however, that the report is not in the record.

3

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on his own motion or on application. 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(1)-(3).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

7

E.M., Docket No. 09-39 (issued March 3, 2009); D.K., 59 ECAB 141 (2007).

3

The Board finds that OWCP properly determined that appellant was not entitled to
further review of the merits of his claim pursuant to the requirements under section 10.606(b)(3).
OWCP properly denied appellant’sJanuary 6, 2013 request for reconsideration.8
On appeal, appellant contended that he submitted Dr. Hunter’s new December 27, 2012
along with his request for reconsideration which was sufficient to establish that he sustained a
work-related condition of his feet. As noted, the record does indicate that OWCP received the
report prior to the issuance of its March 29, 2013 decision denying his reconsideration request.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THATthe March 29, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 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

8

Robert E. Cullison, 55 ECAB 570 (2004); M.E., 58 ECAB 694 (2007)(when an application for reconsideration
does not meet at least one of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the
application for reconsideration without reopening the case for a review on the merits).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Deptford, NJ, Employer
__________________________________________

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)
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)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-437
Issued: October 23, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On December 27, 2011 appellant, through his attorney, filed a timely appeal from an
October 5, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
regarding his schedule award claim. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant has more than a four percent permanent impairment of the
right upper extremity and more than two percent permanent impairment of the left upper
extremity, for which he received schedule awards.
FACTUAL HISTORY
On December 5, 2003 appellant, then a 53-year-old clerk, filed an occupational disease
claim alleging that his carpel tunnel syndrome was due to repetitive motion at work. OWCP
1

5 U.S.C. §§ 8101-8193.

accepted the claim for bilateral carpal tunnel syndrome and paid all appropriate benefits.
Appellant underwent left carpal tunnel release on December 18, 2006 and right carpal tunnel
release on February 27, 2007. In an April 26, 2007 report, Dr. Robert Draper, Jr., a Boardcertified orthopedic surgeon and OWCP referral physician, documented improved examination
findings.
On January 21, 2008 appellant claimed a schedule award. In an October 2, 2007 report,
Dr. Steven M. Allon, an orthopedic surgeon, performed an impairment rating under the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides). He opined that maximum medical improvement was reached and
that appellant had 38 percent right arm impairment and 31 percent left arm impairment. On
April 14, 2008 an OWCP medical adviser opined that Dr. Allon’s findings were inconsistent
with the findings of appellant’s treating physician. He noted that Dr. Draper found essentially
normal findings on both hands postoperatively and advised that postoperative improvement and
not a worsening was expected.
In a June 17, 2008 report, Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon and
OWCP referral physician, reported normal two-point discrimination in the median distribution of
the hands, no clear sensory loss, full range of motion and normal grip strength. He reported
some numbness and tingling in the thumb of the right hand. Under the fifth edition of the
A.M.A., Guides, Dr. Hanley opined that appellant had four percent impairment of the right upper
extremity based on sensory loss and no ratable impairment for the left upper extremity.
OWCP determined a conflict in medical opinion existed between Dr. Allon and
Dr. Hanley regarding appellant’s permanent impairment and referred him to Dr. Ronald L.
Gerson, a Board-certified orthopedic surgeon, for an impartial medical examination. In a
December 15, 2008 report, Dr. Gerson noted the history of injury, his review of the medical
records and statement of accepted facts and set forth his examination findings. For the right
upper extremity, he found sensory deficit of the median nerve and no motor deficit on objective
evaluation. For the left upper extremity, Dr. Gerson reported a normal objective motor
examination with no significant symptoms or limitations. Under the fifth edition of the A.M.A.,
Guides, he opined that appellant had four percent impairment of the right arm based on sensory
defect and no impairment of the left as the objective examination was normal. In a
December 23, 2008 report, an OWCP medical adviser concurred with Dr. Gerson’s findings and
stated the fifth edition of the A.M.A., Guides were correctly used.
By decision dated April 3, 2009, OWCP granted appellant four percent permanent
impairment of the right upper extremity and zero percent of the left upper extremity.
Determinative weight was accorded to Dr. Gerson’s impartial medical opinion.
On April 9, 2009 appellant requested an oral hearing, which was held August 20, 2009.
By decision dated November 18, 2009, an OWCP hearing representative set aside the April 3,
2009 decision. OWCP was directed to obtain a supplemental report from Dr. Gerson providing
his medical rationale in support of an impairment rating under the sixth edition of the A.M.A.,
Guides.
On January 21, 2010 Dr. Gerson reevaluated appellant. He set forth the history of injury,
his review of the medical records and statement of accepted facts and set forth findings for the
2

right and left upper extremities. Under the sixth edition, page 449, Table 15-23 and page 487,
Appendix 15-B, Dr. Gerson advised that for the accepted right carpal tunnel syndrome, test
results supported a grade modifier of 1, the history supported a grade modifier of 1, physical
findings of abnormal two point discrimination supported a grade modifier of 2 and the functional
scale was mild for a grade modifier of 1. Using the criteria on page 450, he added test findings
(1) plus history (1) plus physical findings (2) and divided by 3 to find 1.33, which rounded to the
nearest whole number, equated grade modifier of 1. Since the functional scale was a grade
modifier of 1, Dr. Gerson found the impairment rating for the right arm would be two percent.
For the accepted left carpal tunnel syndrome, he found the same grade modifier with the
exception of a grade modifier of 1 for physical findings. Using page 450, Dr. Gerson calculated
that test findings (1) plus history (1) plus physical findings (1) divided by 3 equaled 1.
Therefore, he opined that appellant had two percent impairment of the left arm.
On March 30, 2010 an OWCP medical adviser reviewed Dr. Gerson’s January 21, 2010
report and opined that maximum medical improvement was reached January 21, 2010. He found
Dr. Gerson properly applied the A.M.A., Guides and concurred with Dr. Gerson’s impairment
findings.
By decision dated May 27, 2010, OWCP issued a schedule award for two percent
impairment for the left arm and found that there was no increased impairment for the right arm.
On June 3, 2010 appellant requested an oral hearing which was held September 21, 2010.
Following the hearing, he received a September 17, 2010 impairment report from Dr. Allon
based on his October 2, 2007 examination findings. Dr. Allon opined that, under the sixth
edition of the A.M.A., Guides, appellant had five percent impairment for the right upper
extremity and five percent for the left upper extremity based on combined impairment for the
accepted carpal tunnel syndrome condition and medial epicondylitis.
By decision dated November 30, 2010, an OWCP hearing representative directed OWCP
to have Dr. Allon’s September 17, 2010 report reviewed by its medical adviser.
In a December 8, 2010 report, the medical adviser applied Dr. Allon’s findings to the
sixth edition of the A.M.A., Guides and opined that appellant had five percent impairment to the
right upper extremity and five percent impairment to the left upper extremity based on combined
impairment for the accepted carpal tunnel syndrome and medial epicondylitis conditions. He
stated that Dr. Allon’s sixth edition calculation was based on his 2007 examination findings and
that the 2008 examination findings of Dr. Gerson were more current and, thus, more accurate for
impairment purposes.
By decision dated March 30, 2011, OWCP denied entitlement to an additional schedule
award.
On April 7, 2011 appellant requested an oral hearing, which was held July 19, 2011. By
decision dated October 5, 2011, an OWCP hearing representative affirmed OWCP’s March 30,
2011 decision.

3

LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations2 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.3 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.4 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.5
Section 8123(a) provides that if there is a disagreement between the physician making the
examination for the United States and the physician of the employee the Secretary shall appoint a
third physician who shall make an examination.6 It is well established that, when a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background, must be given special weight.7
When OWCP obtains an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the specialist’s opinion requires clarification or
elaboration, OWCP must secure a supplemental report from the specialist to correct the defect in
the original report.8 However, when the impartial specialist is unable to clarify or elaborate on
the original report or if a supplemental report is also vague, speculative or lacking in rationale,
OWCP must submit the case record and a detailed statement of accepted facts to a second
impartial specialist for the purpose of obtaining a rationalized medical opinion on the issue.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability

2

20 C.F.R. § 10.404; 5 U.S.C. § 8107.

3

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

4

Ronald R. Kraynak, 53 ECAB 130 (2001).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700.2 and Exhibit 1 (January 2010).
6

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

7

Regina T. Pellecchia, 53 ECAB 155 (2001).

8

Raymond A. Fondots, 53 ECAB 637, 641 (2002); Nancy Lackner (Jack D. Lackner), 40 ECAB 232 (1988);
Ramon K. Ferrin, Jr., 39 ECAB 736 (1988).
9

Nancy Keenan, 56 ECAB 687 (2005); Roger W. Griffith, 51 ECAB 491 (2000); Talmadge Miller, 47 ECAB
673 (1996).

4

and Health (ICF).10 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on GMFH, GMPE and GMCS.11 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).12
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides with an OWCP medical
adviser providing rationale for the percentage of impairment specified.13
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome and paid
appropriate benefits, including surgical releases of both wrists. Appellant requested a schedule
award in January 2008. OWCP found a conflict in medical opinion between Dr. Allon and
Dr. Hanley regarding appellant’s permanent impairment and properly referred him to Dr. Gerson
to resolve the conflict. In his December 15, 2008 report, Dr. Gerson opined that, under the fifth
edition of the A.M.A., Guides, appellant had four percent impairment of the right upper
extremity based on sensory defect and no impairment of the left upper extremity as the objective
examination was normal.
By decision dated November 18, 2009, an OWCP hearing representative found
Dr. Gerson’s opinion lacking rationale and properly directed OWCP to obtain a supplemental
report from Dr. Gerson providing his medical rationale in support of an impairment rating under
the sixth edition of the A.M.A., Guides. Dr. Gerson reevaluated appellant on January 21, 2010
and opined, under the sixth edition of the A.M.A., Guides, that appellant had two percent
impairment of right upper extremity and two percent impairment of the left upper extremity.
OWCP subsequently awarded appellant two percent impairment for the left upper extremity with
no increase for the right upper extremity, as he had previously been awarded four percent.
By decision dated October 5, 2011, an OWCP hearing representative affirmed a
March 30, 2011 decision denying entitlement to an additional schedule award.
The Board finds that OWCP properly determined that the weight of the medical opinion
evidence regarding the extent of appellant’s permanent impairment to his upper extremities
rested with the well-rationalized opinion of Dr. Gerson.
In his January 21, 2010 report, Dr. Gerson reviewed the record, presented findings and
opined, under the sixth edition of the A.M.A., Guides that appellant had two percent impairment
of the right upper extremity and two percent impairment of the left upper extremity. He used
Table 15-23, page 449 and Appendix 15-B, page 487 to calculate the impairment for the right
10

A.M.A., Guides (6th ed. 2008), page 3, section 1.3, The ICF: A Contemporary Model of Disablement.

11

Id. at 494-531.

12

Id. at 521.

13

See Federal (FECA) Procedure Manual, supra note 5, Chapter 2.808.6(d) (August 2002).

5

and left arms. For the right arm, Dr. Gerson found the grade modifier for clinical studies was 1,
the grade modifier for history was 1 and the grade modifier for physical examination was 2.
Using the criteria on page 448, he added the grade modifiers for clinical studies (1) and history
(1) and physical examination (2) for a total of 4 and divided by 3 to find 1.33 or 1, for a final
rating category of grade modifier of 1 which has a two percent impairment rating. As the grade
modifier of 1 for functional studies equaled the final rating category of grade modifier of 1 for
the entrapment/compression neuropathy impairment under Table 15-23, appropriate impairment
rating remained two percent arm impairment. For the left arm, Dr. Gerson found grade modifiers
for clinical studies was 1, the grade modifier for history was 1 and the grade modifier for
physical examination was 1. He again used the criteria on page 448 and added the grade
modifiers for clinical studies (1) and history (1) and physical examination (1) for a total of 3 and
divided by 3 to find 1, for a final rating category of grade modifier of 1 under Table 15-23 which
has a two percent impairment rating. As the grade modifier of 1 for functional studies equaled
the grade modifier of 1 for the entrapment/compression neuropathy impairment under Table
15-23, Dr. Gerson properly found two percent left arm impairment. On March 30, 2010 an
OWCP medical adviser reviewed Dr. Gerson’s January 21, 2010 report and impairment
calculation and concurred with the result.
OWCP properly found that Dr. Gerson’s January 21, 2010 opinion regarding the extent
of permanent impairment and OWCP’s medical adviser’s concurrence in the result showed that
appellant had two percent impairment for the left upper extremity and that he did not have more
than four percent permanent impairment of his right upper extremity, for which he received a
schedule award. Dr. Allon subsequently submitted a September 17, 2010 report to comport with
the sixth edition of the A.M.A., Guides. He opined that appellant had five percent impairment
for both the left and right upper extremities. Dr. Allon did not reexamine appellant and based his
physical findings on his October 2, 2007 examination. His October 2, 2007 examination
findings constitute stale medical evidence and therefore his September 17, 2010 impairment
calculation does not create a conflict in the medical opinion evidence or show that appellant has
more than a two percent impairment of his left upper extremity and no increase from the
previously awarded four percent impairment of the right upper extremity.14
On appeal, appellant’s attorney argues that Dr. Allon’s September 17, 2010 report,
wherein he provides an impairment rating under the sixth edition of the A.M.A., Guides, should
create a new conflict in medical evidence with Dr. Gerson. Dr. Allon, however, was involved in
the original conflict in medical opinion evidence. Additional reports from physician who had
been on one side of the original conflict in medical opinion are typically insufficient to resolve
the conflict.15 As noted, Dr. Allon did not perform a current evaluation or provide current
examination findings. Thus, his application of the October 2, 2007 findings to the sixth edition
of the A.M.A., Guides is of limited probative value. Appellant’s attorney incorrectly contends
14

H.C., Docket No. 11-1407 (issued May 11, 2012) (and updated impairment rating by the claimant’s physician,
based on six-year old findings, represented stale evidence); see J.C., Docket No. 11-241 (issued September 22,
2011) (eight-and-a-half-year-old physical examination findings considered stale with respect to impairment rating
evaluation). See also Keith Hanselman, 42 ECAB 680 (1991) (two-year-old medical report was not reasonably
current for wage-earning capacity determination); Ellen G. Trimmer, 32 ECAB 1878 (1981) (two-year-old work
tolerance limitation report was outdated).
15

See Daniel F. O Donnell, Jr., 54 ECAB 456 (2003).

6

that Dr. Gerson modified his December 15, 2008 report to give a sixth edition impairment and
simply agreed with the second opinion physician, Dr. Hanley, relative to the impairment.
Dr. Gerson reevaluated appellant on January 21, 2010 and provided sixth edition impairment
findings. An OWCP medical adviser reviewed this and found that Dr. Gerson’s application of
the sixth edition to be correct. Thus, this contention lacks any merit.
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 no more than two percent left upper extremity
impairment and no more than four percent right upper extremity impairment, for which he
received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the October 5, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 23, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7