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

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

Docket No. 07-1532
Issued: November 26, 2007

Case Submitted on the Record

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

JURISDICTION
On May 9, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ schedule award decision dated December 8, 2006. Under 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 more than a 16 percent permanent impairment to her
right upper extremity.
FACTUAL HISTORY
Appellant, a 43-year-old letter carrier, injured her right shoulder and neck while casing
mail on October 8, 1999. She filed a claim for benefits, which the Office accepted for
aggravation of cervical radiculopathy and herniated nucleus pulposus at C6-7. The Office
authorized surgery for acromioplasty, a resection arthroplasty of the right shoulder, which

appellant underwent on April 24, 2001. On July 1, 2003 appellant injured her right shoulder
while lifting a tub of mail. The Office accepted the claim for right shoulder sprain.1
In a report dated September 9, 2004, Dr. Nicholas P. Diamond, an osteopath, found that
appellant had an 18 percent impairment of the right upper extremity. He stated:
“Examination of the right shoulder reveals acromioclavicular point tenderness....
Range of motion reveals forward elevation of 0 to 150/180 degrees; abduction of
150/180 degrees; crossover adduction of 0 to 60/75 degrees; external rotation of 0
to 90/90 degrees, and internal rotation of 50/80 degrees. All ranges of motion
were carried through with pain at the extremes reached.”
Dr. Diamond found, based on the above calculations, that appellant had a two percent
impairment for right shoulder range of motion deficit based on flexion pursuant to Figure 16-40
at page 476 of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (fifth edition) [the A.M.A., Guides]; a 1 percent impairment for right shoulder range
of motion deficit based on abduction pursuant to Figure 16-43 at page 476 of the A.M.A.,
Guides; a 2 percent impairment for right shoulder internal rotation pursuant to Figure 16-46 at
page 479 of the A.M.A., Guides; a 10 percent impairment for right shoulder resection
arthroplasty pursuant to Table 16-27 at page 506 of the A.M.A., Guides; and a 3 percent
impairment for pain under Table 18-1 at page 574 of the A.M.A., Guides, for a total 18 percent
right upper extremity impairment.
On January 31, 2005 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of her right upper extremity.
In a report dated January 30, 2006, an Office medical adviser found that appellant had a
16 percent permanent impairment.
The Office found that there was a conflict in the medical evidence between the
impairment ratings of Dr. Diamond and the Office medical adviser. The Office remanded the
case for referral to an impartial medical specialist to resolve the conflict regarding the correct
amount of impairment to assign to appellant’s accepted right shoulder condition.
The Office referred appellant, together with a statement of accepted facts and the case
record, to Dr. David A. Bundens, a Board-certified orthopedic surgeon, for an impartial medical
evaluation. In a report dated March 28, 2006, Dr. Bundens determined that appellant had a 16
percent right upper extremity impairment due to her accepted right shoulder condition. He
concurred with Dr. Diamond’s rating of two percent impairment for right shoulder internal
rotation pursuant to Figure 16-46 at page 479 of the A.M.A., Guides. However, Dr. Bundens
measured a forward flexion of 100 degrees, which yielded a five percent impairment for right
shoulder range of motion deficit based on flexion pursuant to Figure 16-40 at page 476 of the
A.M.A., Guides; abduction of 90 degrees, which yielded a four percent impairment for right
shoulder range of motion deficit based on abduction pursuant to Figure 16-43 at page 476 of the
1

This claim was referenced by the hearing representative in his December 8, 2006 decision. However, there is no
documentation pertaining to this claim contained in the instant case file.

2

A.M.A., Guides; Dr. Bundens also reduced the impairment for appellant’s right shoulder
resection arthroplasty pursuant to Table 16-27 at page 506 of the A.M.A., Guides to five percent.
He further stated:
“Dr. Diamond refers to [T]able 16-27 on [p]age 506 for resection arthroplasty but
the acromioplasty is not within that list. A total resection of the distal clavicle is
10 percent. The acromioplasty is just a resection of the spurs on the underneath;
therefore, I would judge this to be about five percent. I do not feel that a separate
rating is noted for pain because I believe this is implicit in an impingement
syndrome that requires an acromioplasty; therefore, I do not believe a separate
award for pain would be warranted.”
By decision dated April 26, 2006, the Office granted appellant a schedule award for a 16
percent permanent impairment of the right upper extremity for the period March 28, 2006 to
March 12, 2007, for a total of 49.92 weeks of compensation.
By letter dated May 3, 2006, appellant’s attorney requested an oral hearing, which was
held on October 17, 2006.
By decision dated December 8, 2006, an Office hearing representative affirmed the
April 26, 2006 Office decision, finding that Dr. Bundens’ referee opinion that appellant was
entitled to no greater than a 16 percent impairment for her right upper extremity represented the
weight of the medical evidence.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 sets forth
the number of weeks of compensation to be paid for permanent loss, or loss of use of the
members of the body listed in the schedule. Where the loss of use is less than 100 percent, the
amount of compensation is paid in proportion to the percentage loss of use.3 However, the Act
does not specify the manner in which the percentage of loss of use of a member is to be
determined. For consistent results and to ensure equal justice under the law to all claimants, the
Office has adopted the A.M.A., Guides (fifth edition) as the standard to be used for evaluating
schedule losses.4
Section 8123(a) of the Act provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.5

2

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

3

5 U.S.C. § 8107(c)(19).

4

20 C.F.R. §10.404.

5

5 U.S.C. § 8123(a).

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ANALYSIS
The Board initially finds that the Office erred in finding a conflict in the medical
evidence prior to its December 8, 2006 decision. The Office found that there was a conflict
between the impairment ratings of Dr. Diamond, who found that appellant had an 18 percent
right upper extremity impairment, and the Office medical adviser, who accorded appellant a 16
percent impairment for her right upper extremity impairment. However, a review of the Office
medical adviser’s January 30, 2006 report reveals that he miscalculated the amount of
impairment presented by Dr. Diamond’s September 9, 2004 evaluation. Although the Office
medical adviser adopted the identical findings and impairment ratings for range of motion
deficit, right shoulder resection arthroplasty and pain computed by Dr. Diamond, he improperly
found that these calculations added up to a 16 percent impairment. As the two physicians of
record who rendered impairment ratings essentially presented the same impairment rating, based
on the same tables of the A.M.A., Guides, the Board finds that no conflict existed in the medical
evidence at the time of the Office’s referral to Dr. Bundens, whose March 28, 2006 report is
therefore not entitled to the special weight of an impartial medical specialist.
The Board finds, however, that, although Dr. Bundens’ opinion does not merit the special
weight of an impartial medical examiner, it is entitled to its own intrinsic weight.6 Dr. Bundens
concurred with Dr. Diamond’s rating of two percent impairment for right shoulder internal
rotation pursuant to Figure 16-46 at page 479 of the A.M.A., Guides. However, he measured a
forward flexion of 100 degrees, which yielded a five percent impairment for right shoulder range
of motion deficit based on flexion pursuant to Figure 16-40 at page 476 of the A.M.A., Guides;
and abduction of 90 degrees, which yielded a four percent impairment for right shoulder range of
motion deficit based on abduction pursuant to Figure 16-43 at page 476 of the A.M.A., Guides.
These findings were proper and in conformance with the applicable tables of the A.M.A.,
Guides.7 In addition, Dr. Bundens properly rejected the five percent impairment Dr. Diamond
awarded for pain pursuant to Chapter 18. FECA Bulletin No. 01-05 and section 18.3(b) provide
that Chapter 18 should not be used to rate pain-related impairment when conditions are
adequately rated in the other chapters of the A.M.A., Guides. The Board has held that an
additional rating for pain is not appropriate in the absence of an explanation of why the protocols
of other chapters of the A.M.A., Guides would not adequately rate appellant’s impairment.8
Lastly, the Board notes that Table 17-2 of the A.M.A., Guides expressly prohibits an award for
impairments based on gait derangement, muscle atrophy, muscle strength (loss), range of motion
loss or ankylosis in combination with an impairment due to a diagnosis-based estimate (resection

6

See Pierre W. Peterson, 39 ECAB 955 (1988).

7

These findings for loss of range of motion are supported by the figures and tables referenced in subchapter
16.4i, “Shoulder Motion Impairment,” at pages 474-77 of the A.M.A., Guides. The Board notes that Dr. Bundens
accorded a greater degree of impairment for loss of flexion and abduction than did Dr. Diamond in his September 9,
2004 report, which was issued 16 months years prior to Dr. Bundens’ March 28, 2006 report. As Dr. Bundens’
report is the more recent of the two, it may be considered an updated, and more accurate, medical evaluation of
appellant’s current condition.
8

See Mark A. Holloway, 55 ECAB 321 (2004).

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arthroplasty).9 The Board therefore disallows the five percent impairment that Dr. Bundens
accorded for appellant’s July 2000 resection arthroplasty.
The Board finds that Dr. Bundens’ opinion constituted a sufficient basis for an award
based on an 11 percent right upper extremity impairment, as modified. The Office therefore
properly found that his opinion constituted the weight of the medical evidence. Following this
decision, appellant’s attorney requested a hearing, but did not submit any additional medical
evidence. The Board therefore affirms the December 8, 2006 decision of the Office hearing
representative.
As there is no other medical evidence establishing that appellant sustained any additional
permanent impairment, the Board finds that appellant has not established that she has more than
a 16 percent impairment of the right upper extremity.
CONCLUSION
The Board finds that appellant has no more than a 16 percent impairment of the right
upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the December 8, 2006 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: November 26, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

9

See James R. Taylor, 56 ECAB ___ Docket No. 05-135 (2005). In this case the Board held that the principle
enunciated in Table 17.2, page 526 for not combining these awards in lower extremity impairments also applies to
upper extremity impairments.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
East Orange, NJ, Employer
__________________________________________

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

Docket No. 07-1915
Issued: December 28, 2007

Case Submitted on the Record

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

JURISDICTION
On July 11, 2007 appellant timely filed an appeal from the Office of Workers’
Compensation Programs’ May 10, 2007 merit decision which denied her recurrence claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
claim.
ISSUE
The issue is whether appellant established that she sustained a recurrence of disability on
or after October 18, 2002 causally related to her accepted employment injury.

FACTUAL HISTORY
On November 20, 2002 appellant, then a 57-year-old food service worker, filed an
occupational disease claim alleging that she developed aggravated chronic venous insufficient in
both her right and left legs starting on January 19, 2002.1
In a June 11, 2002 note, Dr. Garth Samuels recommended that appellant be off her legs
for three hours out of an eight-hour shift. In a July 16, 2002 note, Dr. Samuels stated that
appellant needed to sit for one hour after standing for two hours. As a result of appellant’s
treating physician’s restrictions appellant was placed in a limited-duty sedentary position.
On December 23, 2002 the Office accepted appellant’s claim for chronic venous
insufficiency of the lower limbs.
On August 23, 2004 appellant filed a notice of recurrence of disability alleging that
beginning on October 18, 2002 her employer could not accommodate her as her limited-duty job
was no longer available.
In a December 4, 2002 supervisor’s report, Margaret Gering stated that appellant went on
disability retirement on October 21, 2002, that she had been working in a limited duty, sedentary
position per her physician’s orders and that this position was still available to her.
In a January 23, 2003 physician’s report, Dr. Samuels stated that prolonged standing
aggravated appellant’s chronic venous insufficiency. Additionally, he stated that he was
unaware that appellant was not working as he did not authorize her to stop.2
In a February 20, 2003 report, Dr. Trudy Hall diagnosed lumbar radiculopathy and low
back pain, stated that appellant was unable to sit for greater than 30 minutes and that her pain
was exacerbated by bending and lifting. Dr. Hall also stated that appellant’s period of total
disability was from October 18, 2002 to present.
In an August 20, 2004 letter, Vivian Henry, supervisory dietician, stated that when
appellant was employed as a food service worker “she was not able to perform the tasks of the
position because of her disability.”
In a December 28, 2004 supervisor’s report, Norma Holmes stated that appellant was
placed on light duty and that “she was not told to retire. When she was told she could not be
accommodated for light duty forever and could not be forced elsewhere by OWCP specialist
because of her extremely limited activities, she was given options to consider.”
In a September 26, 2005 letter, the Office requested additional information from
appellant to support her recurrence of disability claim. On September 26, 2005 the employing

1

Appellant noted she was previously accepted for chronic venous insufficiency in her left leg.

2

On February 26, 2003 the Office received a notice of recurrence of disability dated June 17, 2002 for the period
from April 28 through May 20, 2002. This period of disability is not the subject of this appeal.

2

establishment noted that there was nothing in appellant’s file to support that her limited-duty
position was withdrawn and that it accommodate any restrictions identified.
In a December 6, 2005 decision, the Office denied appellant’s recurrence claim on the
grounds that the evidence did not support that the limited-duty position was withdrawn and that
the medical evidence did not support a change or worsening of her condition.
On December 20, 2005 appellant requested an oral hearing. The hearing was held on
April 19, 2006.
By decision dated June 20, 2006, an Office hearing representative affirmed the
December 6, 2005 decision denying appellant’s claim on the grounds that the evidence was
insufficient to support that she was totally disabled from work subsequent to October 21, 2002.
It found that appellant was capable of continuing to work within the restrictions provided by her
physician.
On July 27, 2006 appellant requested reconsideration and submitted two April 20, 2006
statements from appellant’s coworkers stating that appellant worked her regular duties the week
of and up to her last day on October 18, 2002.
On November 6, 2006 the Office denied modification of the June 20, 2006 decision.
On November 28, 2006 appellant requested reconsideration. On May 10, 2007 the Office
issued a merit decision which again denied modification.
LEGAL PRECEDENT
Recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness. This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn or when the physical requirements of such an
assignment are altered so that they exceed his or her established physical limitations.3
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence of
record establishes that he or she can perform the light-duty position, the employee has the burden
to establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and show that he or she cannot perform such light duty. As part of this burden, the
employee must show either a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the light-duty requirements.4 The issue of whether an
3

20 C.F.R. § 10.5(x).

4

J.F., 58 ECAB ___ (Docket No. 06-186, issued October 17, 2006); Albert C. Brown, 52 ECAB 152 (2000);
Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB 222 (1986).

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employee has disability from performing a modified position is primarily a medical question and
must be resolved by probative medical evidence.5
ANALYSIS
Appellant’s claim was accepted for chronic venous insufficiency of the lower limbs. She
claims that due to her condition she was totally disabled and incapable of performing her lightduty position from October 18, 2002 to the present.
Appellant has the burden to show a change in the nature of her condition or a change in
the nature of her light-duty requirements in order to establish a recurrence of total disability. She
has not shown a change in her condition. None of the medical evidence demonstrates a change
in her accepted condition of venous insufficiency rendering her disabled as of October 18, 2002.
The report from Dr. Hall diagnosed lumbar radiculopathy and stated that appellant was totally
disabled on October 18, 2002. However appellant’s claim has not been accepted for lumbar
radiculopathy nor does the report demonstrate by medical evidence that the lumbar radiculopathy
is causally related to her chronic venous insufficiency. Therefore the report has little probative
value to establish that appellant was totally disabled during the claimed time period due to her
accepted condition. None of the other medical reports address the issue of appellant’s total
disability on October 18, 2002.
Appellant claims that her light-duty position was withdrawn. However there is no
evidence to support her allegation. The report from Ms. Gering stated that appellant had been
working in a limited-duty position when she went on disability retirement and that her position
was still available. The report from Ms. Holmes stated that appellant was not forced to retire and
was given options to consider because of her extremely limited activities. In the conference
memorandum with the Office, the employing establishment stated that they would accommodate
any restrictions identified and that there was no record of the limited-duty position being
withdrawn. The statements from appellant’s coworkers do not establish that appellant’s lightduty position was withdrawn.
There is no evidence to support appellant’s claim that a light-duty position was not
available or that her restrictions were not being accommodated. As such the Board finds that
appellant has failed to meet her burden to establish that she sustained a recurrence due to a
change in the nature of her condition or a withdrawal of her light-duty position.
CONCLUSION
Appellant has failed to establish that she was totally disabled from October 18, 2002 to
the present.

5

Cecelia M. Corley, 56 ECAB ___ (Docket No. 05-324, issued August 16, 2005); Bryant F. Blackmon, 56 ECAB
___ (Docket No. 04-564, issued September 23, 2005).

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ORDER
IT IS HEREBY ORDERED THAT the May 10, 2007 and November 6, 2006 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 28, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
DEPARTMENT OF DEFENSE, EDUCATION
ACTIVITY -- SECTION IV, Arlington, VA,
Employer
__________________________________________

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

Docket No. 09-2034
Issued: June 3, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 4, 2009 appellant filed a timely appeal from a merit decision of the Office of
Workers’ Compensation Programs dated May 14, 2009 denying her schedule award claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met her burden of proof to establish employment-related
permanent impairment, thereby entitling her to a schedule award.
FACTUAL HISTORY
On July 13, 2005 appellant, then a 58-year-old custodial worker, injured her low back
and right elbow when she slipped on a waxed floor while buffing it. The Office accepted the
claim for lumbar strain/sprain, right elbow contusion and lumbar intervertebral disc disorder with
myelopathy and authorized lumbar spine fusion. On May 31, 2007 it accepted appellant’s claim
for a recurrence of disability beginning March 13, 2007 and subsequently placed her on the
periodic rolls in receipt of wage loss for total disability. Appellant accepted a light-duty job

offer as a modified custodial worker working four hours per day and returned to work on
November 15, 2007.1
On March 4, 2009 appellant filed a claim for a schedule award.
On March 23, 2009 Dr. James E. Rice, an attending Board-certified orthopedic surgeon,
diagnosed lumbar degenerative disc disease with residual lumbar radiculopathy and status post
fusion. He concluded that appellant had reached maximum medical improvement and had
impairment peripheral nerve involvement based on the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). On physical
examination, Dr. Rice found persistent left leg numbness in the L5-S1 distribution, absent knee
and ankle jerk reflexes and other leg and back symptoms.
By letter dated April 7, 2009, the Office informed appellant that Dr. Rice’s report did not
provide any percentage of permanent impairment. It requested that she ask him to use the sixth
edition of the A.M.A., Guides to determine her permanent impairment. The Office also advised
appellant of what information the report should include. Appellant was given 30 days to provide
the requested information. No medical evidence was received.
By decision dated May 14, 2009, the Office denied appellant’s claim for a schedule
award. It found that it had not received medical evidence to establish she had sustained
permanent impairment of a scheduled body member.3
2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act 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.6 Effective
1

Appellant resigned from her position and elected to receive retirement benefits under the Civil Service
Retirement Act in lieu of compensation benefits under the Federal Employees’ Compensation Act.
2

The Board notes that the Office issued a decision on the schedule award on February 22, 2010, which was
during the pendency of appellant’s appeal with the Board. It is well established that the Board and the Office may
not exercise concurrent jurisdiction over the same issue in the same case. D.S., 58 ECAB 392 (2007); Cathy B.
Millin, 51 ECAB 331 (2000); Douglas E. Billings, 41 ECAB 880 (1990). Therefore the Office’s February 22, 2010
decision is null and void.
3

The Board notes that, following the May 14, 2009 decision, the Office received additional evidence. However,
the Board may not consider new evidence on appeal. See 20 C.F.R. § 501.2(c); M.B., 60 ECAB ___ (Docket No.
09-176, issued September 23, 2009); J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008); G.G., 58
ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id.

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May 1, 2009, the Office adopted the sixth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.7
No schedule award is payable for a member, function or organ of the body not specified
in the Federal Employees’ Compensation Act or in the implementing regulations.8 As neither
the Act nor its regulations provide for the payment of a schedule award for the permanent loss of
use of the back or the body as a whole, no claimant is entitled to such a schedule award.9 The
Board notes that section 8101(19) specifically excludes the back from the definition of organ.10
However, a claimant may be entitled to a schedule award for permanent impairment to an upper
or lower extremity even though the cause of the impairment originated in the neck, shoulders or
spine.11
ANALYSIS
The Office accepted appellant’s claim for lumbar strain/sprain and right elbow contusion
and a lumbar intervertebral disc disorder with myelopathy. As noted, the Federal Employees’
Compensation Act does not permit a schedule award based on impairment to the back or spine.
Appellant may only receive a schedule award for impairment to lower extremities if such
impairment is established as being due to her accepted lumbar spine conditions.
Appellant did not submit sufficient medical evidence to establish that her accepted
lumbar conditions resulted in permanent impairment. A March 23, 2009 report from Dr. Rice
found that she had reached maximum medical improvement following lumbar spinal fusion. He
noted only that she had peripheral nerve impairment under the fifth edition of the A.M.A.,
Guides. Dr. Rice did not provide any impairment rating or reference any tables. He did not
explain how appellant’s lumbar condition caused impairment to either lower extremity or an
adequate description of appellant’s physical condition so that an impairment rating could be
determined by an Office medical adviser.
In order to determine entitlement to a schedule award, appellant’s physician must provide
a sufficiently detailed description of her condition so that the claims examiner and others
reviewing the file will be able to clearly visualize the impairment with its resulting restrictions

7

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 9, 2010).
8

S.K., 60 ECAB ___ (Docket No. 08-848, issued January 26, 2009); Thomas J. Engelhart, 50 ECAB 319 (1999).

9

See D.N., 59 ECAB ___ (Docket No. 07-1940, issued June 17, 2008; Jay K. Tomokiyo, 51 ECAB 361 (2000).

10

5 U.S.C. § 8101(19).

11

J.Q., 59 ECAB ___ (Docket No. 06-2152, issued March 5, 2008); Thomas J. Engelhart, supra note 8.

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and limitations.12 As Dr. Rice did not adequately describe appellant’s condition or correlate his
findings to the A.M.A., Guides, his report is insufficient to establish permanent impairment. On
April 7, 2009 the Office requested that appellant provide a report from her treating physician
addressing permanent impairment in accordance with the sixth edition of the A.M.A., Guides;
however, no additional evidence was submitted. There is no reasoned medical opinion evidence
to establish the nature or extent of any impairment correlated to the A.M.A., Guides or
explaining the causal relationship between these findings and her accepted employment injury.
Appellant has failed to establish that she sustained a permanent impairment as a result of her
accepted conditions.13
CONCLUSION
The Board finds that appellant failed to establish that she is entitled to a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 14, 2009 is affirmed.
Issued: June 3, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

12

A.A., 59 ECAB ___ (Docket No. 08-951, issued September 22, 2008); Renee M. Straubinger, 51 ECAB 667
(2000) (where the Board found that before the A.M.A., Guides can be utilized, a description of the claimant’s
impairment must be obtained from his or her physician with the description in sufficient detail so that the claims
examiner and others reviewing the file will be able to clearly visualize the impairment with its resulting restrictions
and limitations).
13

D.H., 58 ECAB 358 (2007); Tammy L. Meehan, 53 ECAB 229 (2001) (the burden is upon the employee to
establish by evidence that he or she is entitled to compensation).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.C., Appellant
and
DEPARTMENT OF THE NAVY, AIR
SYSTEMS COMMAND, Patuxent River, MD,
Employer
__________________________________________

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

Docket No. 16-0971
Issued: July 25, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 6, 2016 appellant filed a timely appeal from a February 17, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed between July 21, 2014, the date of the most recent merit decision, and the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of his claim.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim because his request was untimely filed and failed to
demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. OWCP accepted that on February 12,
2000 appellant, then a 46-year-old systems accountant, sustained an aggravation of cervical
stenosis with myelopathy when he fell, striking his back and the back of his head, in the
performance of duty. He was attending a mandatory wellness activity while on temporary duty.
Appellant stopped work on March 6, 2000 and was placed on the periodic disability rolls.
On March 29, 2000 Dr. Thomas Ducker, an attending Board-certified neurosurgeon,
performed cervical laminar decompression surgery at C3 through 7, cervical microplate
reconstruction laminoplasty and local autograft for laminoplasty. The surgery was authorized by
OWCP.
Appellant received treatment for his cervical problems from Dr. Daniel W. Alexander, an
attending chiropractor. In numerous notes dated beginning in April 2000, Dr. Alexander detailed
the findings of treatment sessions, including range of motion findings, for the cervical spine. In
January 2001, OWCP expanded the claim to include Brown-Sequard Syndrome and
myelomalacia of his cervical spine due to his February 12, 2000 work injury.
In 2012, appellant claimed that he also had sustained a spinal subluxation due to his
February 12, 2000 work injury. In an undated report received on February 28, 2012,
Dr. Alexander noted that he had examined appellant at the request of Dr. Ducker. He stated:
“In April 2000, [appellant] was noted to have subluxations at C2, T2-3, increased
neuromusculoskeletal disorders and a loss in cervical spinal range of motion due
to past surgical effects. The findings were noted from [his] symptoms, palpation,
and x-ray findings, which were reviewed with Dr. Ducker on April 25, 2000. To
the best of my knowledge during that call we talked about the x-rays, surgery and
no need for a neck brace.”
In a May 11, 2012 decision, OWCP denied appellant’s claim for a work-related spinal
subluxation, noting that the submitted evidence did not clearly establish that a subluxation had
been demonstrated by x-rays to exist. Dr. Alexander’s report was found to lack probative value
as it was vague with respect to the x-rays he reviewed.
In a May 21, 2012 letter, appellant requested reconsideration. He argued that the Board’s
decision in Christopher Smith, Docket No. 95-2631 (issued February 18, 1998), was consistent
with the facts in his case.
In a June 6, 2012 decision, OWCP denied appellant’s request for merit review of his
claim, as his argument did not meet the criteria for reopening the case for a merit review.
On June 11, 2012 appellant requested reconsideration. He submitted a June 11, 2012
report from Dr. Thomas Sievert, an attending chiropractor, who provided the diagnoses of
cervical disc degeneration, cervicobrachial syndrome, and spasms. Dr. Sievert noted that
appellant was totally disabled from work.

2

In a July 23, 2012 decision, OWCP denied appellant’s request for further merit review of
his claim, finding that the evidence submitted was irrelevant as it had not been submitted by a
physician.
By decision dated June 13, 2013,2 the Board affirmed OWCP’s May 11, June 6, and
July 23, 2012 decisions. The Board found that appellant had not submitted sufficient evidence to
establish a spinal subluxation as a result of his February 12, 2000 work injury. The Board noted
that the reports of the chiropractors would constitute medical evidence only if they diagnosed
subluxation as demonstrated by x-rays to exist.3 The Board indicated that, although
Dr. Alexander had noted in his February 2012 report that appellant had spinal subluxations, he
did not clearly diagnose these subluxations through x-ray. The Board found that the cervical
spine x-ray testing from February 12, 2000 did not show a spinal subluxation and Dr. Alexander
had diagnosed these subluxations some 12 years after the accepted incident in this case.
In a letter dated May 3, 2014, appellant requested reconsideration of his claim and, in a
decision dated July 21, 2014, OWCP determined that he had not submitted sufficient evidence to
establish spinal subluxations as a result of his February 12, 2000 work injury.
In January 20 and 21, 2016 letters, received on February 2, 2016, appellant again
requested reconsideration of his claim. In his reconsideration letters, he provided extensive
discussion of his belief that the evidence of record, including Dr. Alexander’s 2012 report,
established spinal subluxations within the meaning of FECA. Appellant’s arguments were
similar to those previously presented to OWCP and the Board. He resubmitted a copy of
Christopher Smith, Docket No. 95-2631 (issued February 18, 1998), and again argued that the
facts were consistent with the facts in his case.
In a February 17, 2016 decision, OWCP denied appellant’s request for further review of
the merits of his claim as his request was untimely filed and failed to demonstrate clear evidence
of error. It found that his reconsideration request was untimely because it was received on
February 2, 2016 more than one year after the issuance of the last merit decision on
July 21, 2014. OWCP further found that the evidence and argument submitted by appellant in
connection with his reconsideration request did not demonstrate clear evidence of error in the
July 21, 2014 decision.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation. The Secretary of Labor may review an
award for or against payment of compensation at any time on his or her own motion or on
application. The Secretary, in accordance with the facts found on review, may end, decrease or
increase the compensation awarded; or award compensation previously refused or discontinued.4
2

Docket No. 13-0128 (issued June 13, 2013).

3

See 5 U.S.C. § 8102(2).

4

Id. at § 8128(a).

3

OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the
implementing regulations provide that an application for reconsideration must be received within
one year of the date of OWCP’s decision for which review is sought.5 However, OWCP will
reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the
claimant’s application for review shows clear evidence of error on the part of OWCP in its most
recent merit decision. To establish clear evidence of error, a claimant must submit evidence
relevant to the issue that was decided by OWCP. The evidence must be positive, precise, and
explicit and must be manifest on its face that OWCP committed an error.6
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.7 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
establish clear evidence of error.8 It is not enough merely to establish that the evidence could be
construed so as to produce a contrary conclusion.9 This entails a limited review by OWCP of the
evidence previously of record and whether the new evidence demonstrates clear error on the part
of OWCP.10 The Board makes an independent determination as to whether a claimant has
submitted clear evidence of error on the part of OWCP.11
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. An application for reconsideration must be received within one year
of the date of OWCP’s decision for which review is sought.12 As appellant’s request for
reconsideration was not received by OWCP until February 2, 2016, more than one year after
issuance of its July 21, 2014 merit decision, it was untimely. Consequently, he must demonstrate
clear evidence of error by OWCP in its July 21, 2014 decision.
The Board finds that appellant has not demonstrated clear evidence of error on the part of
OWCP in issuing its July 21, 2014 merit decision.

5

20 C.F.R. § 10.607(a).

6

Id. at § 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

7

Annie L. Billingsley, 50 ECAB 210 (1998).

8

Jimmy L. Day, 48 ECAB 652 (1997).

9

Id.

10

Id.

11

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

12

See supra note 5.

4

In his reconsideration letters, appellant discussed his belief that the evidence of record,
including the report of Dr. Alexander from 2012, established spinal subluxations. He
resubmitted a copy of Christopher Smith, Docket No. 95-2631 (issued February 18, 1998) and
again argued that it was consistent with the facts in his case. The Board finds that appellant’s
application for review does not show on its face that OWCP committed error when it found in its
July 21, 2014 decision that he had not established his claim for a subluxation condition.13 The
Board notes that clear evidence of error is intended to represent a difficult standard. Other than
simply reiterating his previous argument, appellant has not met this standard in the present
case.14
According, the Board finds the evidence submitted by appellant does not raise a
substantial question concerning the correctness of OWCP’s July 21, 2014 merit decision and
OWCP properly denied the claim.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of his claim because his request was untimely filed and failed to
demonstrate clear evidence of error.

13

See S.F., Docket No. 09-0270 (issued August 26, 2009). Appellant presented similar arguments on appeal to
the Board.
14

See supra notes 6 through 9.

5

ORDER
IT IS HEREBY ORDERED THAT the February 17, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 25, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS AFFAIRS MEDICAL CENTER,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 15-0762
Issued: July 13, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On February 18, 2015 appellant, through counsel, filed a timely appeal from a
January 20, 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 was at fault in the creation of a $7,374.32 overpayment of
compensation that occurred from November 11, 2013 to March 8, 2014.
FACTUAL HISTORY
On May 6, 2010 appellant, then a 54-year-old housekeeping aid, filed a traumatic injury
claim alleging that on that date he injured his right hip, knee, wrist, ankle, shoulder, and neck
when he fell in the performance of duty. OWCP accepted the claim for sprains of the right wrist,
1

5 U.S.C. § 8101 et seq.

right ankle, right knee, lumbar spine, and neck, a contusion of the right hip, an aggravation of
preexisting osteoarthritis of the right knee, and displacement of an intervertebral lumbar disc
without myelopathy.
On February 7, 2011 appellant underwent a right total knee arthroplasty.2 He stopped
work on February 7, 2011 and returned to work on March 10, 2011. OWCP paid appellant
compensation for temporary total disability.
By decision dated December 7, 2012, OWCP granted appellant a schedule award for a 21
percent permanent impairment of the right leg. The award ran for 60.38 weeks from
September 14, 2012 to November 11, 2013.3
By letter dated December 11, 2012, OWCP advised appellant that his schedule award
would run through November 11, 2013, but that he could request to receive the remainder of his
schedule award as a lump sum if he was either working or receiving benefits from the Office of
Personnel Management (OPM).
On December 23, 2012 appellant notified OWCP that he wanted to receive the remainder
of his schedule award in a lump sum. On January 4, 2013 OWCP terminated his schedule award
compensation payments as he had elected a lump sum.
By letter dated January 27, 2013, appellant requested that OWCP continue paying him
monthly schedule award compensation. On February 6, 2013 OWCP informed him that it was
attempting to reinstate monthly payments. In a February 8, 2013 internal memorandum, it noted
that it had paid appellant $7,424.21 before stopping his schedule award compensation and that he
was entitled to compensation for an additional 302.36 days. OWCP indicated that its system did
not allow a schedule award to be reinstated once terminated and advised that it had placed
appellant on the periodic rolls effective February 10, 2013. It determined that it would issue
compensation for the period January 13 to February 9, 2013 on February 10, 2013 and noted that
it would need to manually terminate the schedule award prior to November 6, 2013.
On January 13, 2014 appellant left a message for OWCP to telephone him about his
compensation. In a memorandum documenting a January 13, 2014 telephone call, OWCP
advised him “of payment status and that he should have received payment dated January 11,
[2014] per [compensation] history.”
On May 29, 2013 appellant accepted a job offer from the employing establishment.
The record indicates that appellant was paid schedule award compensation through the
periodic rolls until March 9, 2014.
2

By decision dated December 6, 2010, OWCP denied appellant’s claim for compensation for time lost from work
due to a medical appointment on September 13, 2010. In a decision dated April 21, 2011, it denied his claim for
four hours of time lost for a medical appointment on October 18, 2011.
3

OWCP did not provide a copy of the December 7, 2012 decision to appellant’s authorized representative. On
December 10, 2012 counsel inquired when OWCP was going to issue a schedule award decision. On January 22,
2013 OWCP provided him with a copy of the December 7, 2012 schedule award decision.

2

On March 25, 2014 OWCP identified an overpayment of compensation because
appellant’s schedule award payments had not been manually terminated on November 6, 2013,
but instead continued through March 8, 2014. It noted that he was working full time while
receiving his schedule award payments.
On April 10, 2014 OWCP advised appellant of its preliminary determination that he
received an overpayment of compensation in the amount of $7,347.32 because he received
schedule award compensation from November 11, 2013 through March 8, 2014 to which he was
not entitled. It calculated the overpayment by determining the amount he received from
November 17, 2013 to March 8, 2014 to find an overpayment of $7,347.32. OWCP further
advised appellant of its preliminary determination that he was at fault in the creation of the
overpayment. It requested that he complete the enclosed overpayment recovery questionnaire
and submit supporting financial documents. Additionally, OWCP notified appellant that, within
30 days of the date of the letter, he could request a telephone conference, a final decision based
on the written evidence, or a prerecoupment hearing.
On April 15, 2014 appellant requested a prerecoupment hearing and telephone
conference. In an overpayment recovery questionnaire, he challenged the existence and amount
of the overpayment and the finding that he was at fault. Appellant maintained that he telephoned
OWCP in January 2014 to inquire about the payments and OWCP told him that changing his
lump-sum request to a request to receive monthly payments altered the date the schedule award
expired. OWCP advised him that when he received less than the regular payment that would be
the final check.
During the telephone prerecoupment hearing, held on November 10, 2014, appellant and
counsel stipulated as to fact and amount of the overpayment. Counsel noted that appellant was
not informed that his schedule award payments were being changed to payments on the periodic
rolls. He also asserted that OWCP did not advise him of the change.
On December 8, 2014 appellant submitted financial information.
By decision dated January 20, 2015, an OWCP hearing representative determined that
appellant was at fault in the creation of an overpayment of compensation in the amount of
$7,347.32 from November 11, 2013 to March 8, 2014. She found that the December 7, 2012
decision put him on notice of the ending date of his schedule award compensation and that he
consequently knew or should have known that he was not entitled to compensation after that
date. The hearing representative instructed appellant to repay the overpayment in full.
LEGAL PRECEDENT
Under OWCP regulations, waiver of the recovery of an overpayment may be considered
only if the individual to whom it was made was not at fault in accepting or creating the
overpayment.4 The fact that the overpayment was the result of error by OWCP or another
government agency does not by itself relieve the individual who received the overpayment of

4

20 C.F.R. § 10.433(a).

3

liability for repayment if the individual also was at fault for receiving the overpayment.5 Each
recipient of compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she received from OWCP are proper. The recipient must show good faith
and exercise a high degree of care in reporting events that may affect entitlement to or the
amount of benefits. A recipient who has done any of the following will be found to be at fault
with respect to creating an overpayment: (1) made an incorrect statement as to a material fact
which he or she knew or should have known to be incorrect; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a payment which he
or she knew or should have known to be incorrect (this provision applies only to the overpaid
individual).6
Whether or not OWCP determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he is being overpaid.7
ANALYSIS
Appellant, through counsel, stipulated that he received an overpayment of compensation
in the amount of $7,347.32 for the period November 11, 2013 to March 8, 2014, but challenged
the finding that he was at fault in creating the overpayment. OWCP determined that he was at
fault because he accepted compensation benefits that he knew or should have known to be
incorrect. It found that the December 7, 2012 schedule award decision clearly identified the
expiration date of the schedule award as November 11, 2013. The Board finds, however, that
OWCP did not support its finding of fault because of its interruption of his schedule award
payments after he requested a lump-sum payment. This complicated the payment process.
Appellant requested a lump-sum payment in lieu of monthly compensation for his
schedule award. On January 4, 2013 OWCP stopped paying him compensation for his schedule
award based on his request for a lump sum. Appellant subsequently advised OWCP that he did
not want a lump-sum payment for the remainder of his schedule award. OWCP notified him on
February 6, 2013 that it was attempting to reinstate his schedule award payments. It again began
paying appellant monthly schedule award compensation on February 10, 2013. The February 10,
2013 payment covered the period January 13 to February 9, 2013. OWCP paid appellant
schedule award compensation using the periodic rolls as the computer system did not allow it to
reinstate the schedule award payments. It did not, however, stop payments on November 11,
2013 but instead continued to pay him compensation for the schedule award until March 8, 2014.
In response to OWCP’s preliminary determination that he was at fault in creating an
overpayment of compensation, appellant asserted that in January 2014 he telephoned OWCP to
ask about the continuing payments. He maintained that OWCP advised him that changing the
5

Id. at § 10.435(a).

6

Id. at § 10.433(a); see Kenneth E. Rush, 51 ECAB 116 (1999).

7

Id. at § 10.433(b); see also L.J., 59 ECAB 264 (2007).

4

lump-sum request back to a request for monthly payments altered the termination date of the
schedule award payments. Appellant related that OWCP informed him that he would recognize
the final installment because the benefit amount would be less than the usual amount of prior
payments.
The record indicates that on January 13, 2014 appellant left a message requesting to
speak with OWCP about his compensation. In a memorandum of a telephone call dated
January 13, 2014, an OWCP claims examiner advised appellant that based on the compensation
history he should have received the payment dated January 11, 2014. The January 13, 2014
report of telephone call, while not definitively establishing that OWCP told him that the ending
date of his schedule award had changed, lends support to his allegation.
Additionally, OWCP informed appellant on February 6, 2013 that it had not yet
reinstated his schedule award payments, given the confusion, it was reasonable for him to believe
that the correct date of his last schedule award payment had been altered by the interruption.
Consequently, it has not shown that he knew or should have known at the time he received the
schedule award payments subsequent to November 11, 2013 that they were inaccurate. OWCP
thus erred in finding that appellant was at fault in creating the overpayment.
The Board will set aside OWCP’s January 20, 2015 decision on the issue of fault. On
remand, OWCP must determine whether appellant is eligible for waiver of recovery of the
overpayment. The Board will remand the case for further development of the evidence regarding
his current financial circumstances and for an appropriate final decision on the issue of waiver.
CONCLUSION
The Board finds that OWCP has not established that appellant was at fault in creating the
overpayment of compensation in the amount of $7,347.32 for the period November 11, 2013 to
March 8, 2014. The case is remanded for further development on the issue of waiver of recovery
of the overpayment.

5

ORDER
IT IS HEREBY ORDERED THAT the January 20, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is
remanded for further proceedings consistent with this decision of the Board.
Issued: July 13, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, Denver, CO, Employer
__________________________________________

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

Docket No. 08-1379
Issued: December 15, 2008

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 April 8, 2008 appellant filed a timely appeal from the September 25, 2007 merit
decision of the Office of Workers’ Compensation Programs, which denied her claim for
compensation and a March 17, 2008 nonmerit decision denying reconsideration. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of the case.
ISSUES
The issues are: (1) whether appellant sustained an emotional injury in the performance of
duty on or about September 14, 2006; and (2) whether the Office properly denied her March 3,
2008 request for reconsideration.
FACTUAL HISTORY
On September 19, 2006 appellant, then a 43-year-old modified duty clerk filed a claim
alleging that she sustained an emotional injury in the performance of duty: “The stressful and
hostile treatment and attitude directed toward me by Kirk Bateman when I tried to talk to him
concerning my change of schedule.” She explained that she trained from June to August to have

a bid on Tour 2. When she was told she could not have the Tour 2 bid and would not receive
reasonable accommodation,1 she gave Mr. Bateman a request for a change of schedule for the
rest of the year. Appellant alleged as follows:
“On the 14th of September, I saw Mr. Bateman by the scale, across from express
mail room at approximately 8:30 p.m. I asked [Mr. Bateman] if he had heard
anything about my request from the [T]our 2 MDO [manager distribution
operations]. Mr. Bateman was very nasty and hostile in his response, stating that
he was not going to approve my change of schedule for any time because I had
one last year and took advantage of it. I said it was not true and then he turned
and left.
“I had heard enough, I could not believe that I was being treated like this, I have
been working where they had asked me to help out (express mail) where I was not
able to perform a major part of the job which was heavy lifting but was asked to
help out doing what I could throwing the mail I could lift or scan, yet here I am
applying for a bid and passing all the tests and training and I can not have the job
even though I could do all the functions of the job except the heavy lifting. Then
being told I could not even have a change of schedule to go to the bid hours for
even a little while.
“It is just too much dealing with the treatment that I am receiving and the very
stressful and hostile work environment that management is creating.”
***
“Management’s actions and treatment of my situation caused it to be very
stressful and traumatic. The incident with Mr. Bateman was the worse. He spoke
to me and treated me like I was a criminal or just a person that was not good
enough to speak to. [Mr. Bateman] made me feel like I was totally worthless.”
Appellant stopped work on September 14, 2006. She complained of tension headaches,
loss of concentration, difficulty sleeping and loss of appetite. Appellant stated that she was
always upset due to stress. She submitted a disability slip from her family practitioner,
Dr. Martin D. Hannemann, who found her disabled for work secondary to stress and anxiety
beginning September 14, 2006. Dr. Hannemann stated that her extreme stress reaction with
anxiety and depression was “directly related to her feeling she had been ‘passed over’ thru a
technicality after having mastered the material for the job.”
Mr. Bateman, lead manager distribution operations Tour III, responded:
“I met with [appellant] twice. The first time I told her that she needed to submit
medical documentation because she was asking for a six[-]month change of
schedule (COS). The second time I saw her I explained that Cecilia Lopez had
granted her a COS to Tour 2 for [two] weeks but that she had taken advantage of
1

Appellant has permanent restrictions from a previous work injury. OWCP File No. xxxxxx004.

2

it and stayed on Tour 2 for a year. [Appellant] told Cecilia that if the supervisor
did not notice that she was missing what difference did it make. I told her that I
was not going to grant her this COS because she had not provided medical and
had taken advantage of the situation in the past.”
***
“I told [appellant] why I was not approving her COS. She became agitated.
[Appellant] was not treated ‘as a criminal.’ I left because I had no desire to have
a possible conflict.”
***
“I explained to her why I was disapproving her COS. [Appellant] did not get the
answer that she wanted. She was upset but she had neither provided the requested
medical documentation and she had taken advantage in the past when Cecilia
Lopez had granted her a COS.”
In a decision dated February 9, 2007, the Office denied appellant’s claim for
compensation. It found that she had not established a compensable factor of employment. The
Office noted that determinations on scheduling of personnel are a management or administrative
function, and reactions to those decisions are not compensable. Appellant did not provide
sufficient evidence to show abuse or error in management’s decision and her allegations of a
hostile attitude expressed by Mr. Bateman were not established.
Appellant requested an oral hearing before an Office hearing representative, which was
held on June 19, 2007. Following the hearing, the Office received additional evidence.
Charmaine A. Ehrenshaft, District Reasonable Accommodation Committee Coordinator,
confirmed that appellant had passed her training; however, awarding her the bid was dependent
on whether she was able to perform the full duties of the position. She stated that the Committee
was unable to come up with a way to reasonably accommodate appellant’s restriction without
taking away the core functions of the job. Moreover, appellant did not provide documentation
from her physician that she would be able to perform the full functions of the job within six
months of her bid. Appellant submitted documents relating to an Equal Employment
Opportunity complaint, including her COS request, which showed that she was asking for a COS
from September 1, 2006 through March 3, 2007. A mail handler stated that he saw appellant in
an upset mood and with tears in her eyes on September 14, 2006. The supervisor of distribution
operations (acting) Tour III stated that appellant approached her on September 14, 2006 to ask if
she could go home because she was upset and did not get the bid that she just qualified for. The
supervisor stated that appellant became upset and started to cry when she related that
Mr. Bateman refused her COS because of her history with a past COS.
In a decision dated September 25, 2007, the Office hearing representative affirmed the
denial of compensation benefits. The hearing representative found that appellant failed to
establish a compensable factor of employment.
On March 3, 2008 appellant requested reconsideration. She argued that she was
submitting documentation clearly showing that the employing establishment considered her
3

condition to be job related.2 Appellant submitted copies of claim forms and a copy of the
narrative statement she initially submitted to support her claim.
In a March 17, 2008 decision, the Office denied appellant’s reconsideration request
finding that no relevant or pertinent evidence was submitted.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides compensation for disability of an
employee resulting from personal injury sustained while in the performance of duty.3 When an
employee experiences emotional stress in carrying out her employment duties or has fear and
anxiety regarding her ability to carry out her duties and the medical evidence establishes that the
disability resulted from her emotional reaction to such situation, the disability is generally
regarded as due to an injury arising out of and in the course of employment. This is true when
the employee’s disability resulted from her emotional reaction to a special assignment or
requirement imposed by the employing establishment or by the nature of her work. By contrast,
there are disabilities having some kind of causal connection with the employment that are not
covered under workers’ compensation because they are not found to have arisen out of
employment, such as when disability results from an employee’s fear of a reduction-in-force or
frustration from not being permitted to work in a particular environment or to hold a particular
position.4
Workers’ compensation does not cover an emotional reaction to an administrative or
personnel action unless the evidence shows error or abuse on the part of the employing
establishment.5 The Board has held that actions of an employer which the employee
characterizes as harassment or discrimination may constitute a factor of employment giving rise
to coverage under the Act, but there must be some evidence that harassment or discrimination
did in fact occur. As a rule, allegations alone by a claimant are insufficient to establish a factual
basis for an emotional condition claim.6 Mere perceptions and feelings of harassment or
discrimination will not support an award of compensation. The claimant must substantiate such
allegations with probative and reliable evidence.7 The primary reason for requiring factual
evidence from the claimant in support of his or her allegations of stress in the workplace is to
2

On March 31, 2008 the Office received a duty status report, on which a supervisor described how the injury
occurred as “on the job stress.”
3

5 U.S.C. § 8102(a).

4

Lillian Cutler, 28 ECAB 125 (1976).

5

Thomas D. McEuen, 42 ECAB 566, 572-73 (1991).

6

See Arthur F. Hougens, 42 ECAB 455 (1991); Ruthie M. Evans, 41 ECAB 416 (1990) (in each case the Board
looked beyond the claimant’s allegations of unfair treatment to determine if the evidence corroborated such
allegations).
7

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability, there must be some evidence that harassment or discrimination did in fact
occur); Pamela R. Rice, 38 ECAB 838 (1987) (claimant failed to establish that the incidents or actions which she
characterized as harassment actually occurred).

4

establish a basis in fact for the contentions made, as opposed to mere perceptions of the claimant,
which in turn may be fully examined and evaluated by the Office and the Board.8
ANALYSIS -- ISSUE 1
Appellant attribute her emotional condition to certain administrative denials: the denial
of a bid on Tour 2, the denial of reasonable accommodation and the denial of her COS request.
As a general rule, such administrative actions are not covered by workers’ compensation. There
is an exception, however, where the evidence establishes error or abuse by the employer in an
administrative or personnel matter. Appellant has not submitted probative evidence of such. She
explained that she worked very hard in training to pass the tests for the scheme and the window
training, but she did not establish that her manager’s erroneously denied her the bid.
Ms. Ehrenshaft, District Reasonable Accommodation Committee Coordinator, acknowledged
that appellant passed her training but awarding the bid was dependent on whether she was able to
perform the full duties of the position. The Committee was unable to come up with a way to
reasonably accommodate appellant’s physical restrictions without taking away the core functions
of the job. Further, appellant did not provide documentation from her physician that she would
be able to perform the full functions of the job within six months of her bid. The factual
evidence fails to establish that the employer committed administrative error or abuse in the
matter.
Appellant did not submit evidence that Mr. Bateman committed error or abuse in denying
her COS request. Mr. Bateman told her that he was not going to grant her COS request because
she had not provided the medical documentation required and because she had taken advantage
of the situation in the past. Appellant alleged that Mr. Bateman became very nasty and hostile in
his response to her on September 14, 2006. However, she submitted no evidence to confirm this.
Mr. Bateman countered that it was appellant who became agitated because she did not get the
answer she wanted. He denied treating her in an abusive manner and stated that he left the
encounter because he had no desire to have a possible conflict. In the absence of factual
evidence supporting her account of events and rebutting Mr. Bateman’s description of what
happened on September 14, 2006, the Board finds that appellant has not met her burden of proof
to establish error or abuse by Mr. Bateman in his treatment of her.9
The witness statement that appellant became upset on September 14, 2006 does not show
why she was upset. The supervisor’s statement -- that appellant became emotional when she
asked to go home on September 14, 2006 because Mr. Bateman had denied her COS request -does not establish that Mr. Bateman mistreated appellant in denying her request. This evidence
is consistent with appellant’s disappointment in not getting the bid or reasonable accommodation
or COS. The Board has held that denials of a request for a different job or transfer are not

8

Paul Trotman-Hall, 45 ECAB 229 (1993) (concurring opinion of Michael E. Groom, Alternate Member).

9

Appellant has pursued her allegations through an EEO complaint, but the record contains no final decision
finding error or abuse by the employer in any of the incidents alleged.

5

compensable factors of employment as they do not involve the employee’s ability to perform her
assigned duties but rather constitute a desire to work in a different position.10
Because the evidence does not establish error or abuse by the employer, appellant’s claim
does not fall within the exception to the general rule that emotional reactions to administrative or
personnel matters are not compensable. The Board will affirm the hearing representative’s
September 25, 2007 decision denying coverage.
LEGAL PRECEDENT -- ISSUE 2
The Office may review an award for or against payment of compensation at any time on
its own motion or upon application.11 The employee shall exercise this right through a request to
the District Office. The request, along with the supporting statements and evidence, is called the
“application for reconsideration.”12
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.13
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.14 A timely request for reconsideration may be granted if it
determines that the employee has presented evidence or argument that meets at least one of these
standards. If reconsideration is granted, the case is reopened and the case is reviewed on its
merits. Where the request is timely but fails to meet at least one of these standards, the Office
will deny the application for reconsideration without reopening the case for a review on the
merits.15
ANALYSIS -- ISSUE 2
Appellant timely filed her March 3, 2008 request for reconsideration within one year of
the hearing representative’s September 25, 2007 decision denying compensation. The question
for determination, therefore, is whether this request meets at least one of the three standards for
obtaining a merit review of her case.
10

Brian H. Derrick, 51 ECAB 417, 422 (2000).

11

5 U.S.C. § 8128(a).

12

20 C.F.R. § 10.605 (1999).

13

Id. at § 10.606.

14

Id. at § 10.607(a).

15

Id. at § 10.608.

6

Appellant argued that she was submitting documentation clearly showing that the
employing establishment considered her condition to be job related. But no such documentation
accompanied her request for reconsideration. If appellant meant a duty status report on which
her supervisor described how the injury occurred as “on the job stress,” this is simply a repetition
of her claim. The Board has held that not every stress in the workplace is compensable.
Appellant submitted copies of claim forms and a copy of the narrative statement she initially
submitted in support of her claim, but this documentation is irrelevant. It does not address the
reason the Office denied her claim. Because appellant’s request for reconsideration does not
meet at least one of the three standards for obtaining a merit review of her case, the Board will
affirm the Office’s March 17, 2008 decision denying her request.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an emotional injury in the performance of duty on or about September 14, 2006. The
Board also finds that the Office properly denied appellant’s March 3, 2008 request for
reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the March 17, 2008 and September 25, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: December 15, 2008
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Santa Ana, CA, Employer
__________________________________________

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

Docket No. 17-0470
Issued: June 13, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 28, 2016 appellant filed a timely appeal from an August 15, 2016 nonmerit
decision of the Office of Workers’ Compensation Program (OWCP). As more than 180 days
elapsed from OWCP’s last merit decision, dated January 28, 2016, to the filing of this appeal,
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of the
case.1
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 4, 2015 appellant, then a 51-year-old mail processing clerk, filed an
occupational disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel
1

The Board notes that appellant submitted additional evidence after OWCP rendered its August 15, 2016 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 501.2(c)(1).

syndrome and bilateral de Quervain’s tenosynovitis due to employment factors. While she first
became aware of her bilateral wrist/hand condition on July 1, 2014, it was not until July 6, 2015
that appellant first realized her condition was caused or aggravated by her federal employment.
In a separate statement dated October 23, 2015, appellant indicated that she had been
working as a mail processing clerk for the past 21 years. She noted that her duties required her
to perform repetitive gripping and grasping of mail and packages, approximately eight hours per
day, five days a week. Appellant indicated that the process involved continuously grasping and
holding bundles of mail, placing the bundles onto trays, then placing the trays of mail into an allpurpose container (APC). She explained that the mail trays when full each weighed between 50
and 70 pounds. Appellant also indicated that her job required her to finger through stacks of
mail, which involved repetitive flexion and extension of both wrists. The various described
duties caused sore, achy pain in her wrists, with numbing and a tingling sensation bilaterally.
Appellant submitted a July 6, 2015 duty status report (Form CA-17) from Dr. Mesfin
Seyoum, a family practitioner,” who diagnosed bilateral wrist sprain/strain. Dr. Seyoum advised
that appellant could return to work on a part-time basis (six hours/day) as of July 6, 2015.
In a letter dated November 19, 2015, OWCP requested that appellant submit additional
factual and medical evidence in support of her claim. It requested that she complete and submit
an attached questionnaire. On November 19, 2015 OWCP also requested that the employing
establishment submit additional information.
Subsequent to the requests for additional information, OWCP received an August 3, 2015
bilateral upper extremity electromyogram and nerve conduction study (EMG/NCV) which
revealed moderate-to-severe bilateral median neuropathy and bilateral chronic cervical
polyradiculopathy affecting the C5-C8 nerve roots. Additionally, it received September 9, 2015
bilateral wrist x-rays. On the right there was evidence of tenosynovitis involving the flexor and
extensor tendons, and on the left side, there was evidence suggestive of carpal tunnel syndrome,
tenosynovitis of the extensor tendon, ganglion cysts, and triangular fibrocartilage complex
(TFCC) sprain.
OWCP also received a September 10, 2015 report from Dr. Hosea Brown, III, a Boardcertified internist, who discussed appellant’s factual and medical history and reported findings on
physical examination. Dr. Brown noted that appellant had reported that, while working for the
past 21 years as a mail processing clerk, she had to perform repetitive gripping and grasping of
mail and packages on a daily basis. Appellant advised that she was required to continuously
grasp/hold bundles of mail and finger through stacks of mail, place the mail onto trays, and place
the trays of mail weighing up to 70 pounds into an APC. Dr. Brown noted that appellant
reported that she engaged in these repetitive duties for 6 hours per day, 5 days per week, for the
past 21 years. He indicated that examination of appellant’s wrist revealed limited range of
motion and positive Tinel’s signs, and he diagnosed bilateral carpal tunnel syndrome and
bilateral de Quervain’s tenosynovitis. Dr. Brown opined that these conditions were caused by
the repetitive duties, including gripping and grasping mail and packages, that appellant
performed throughout the 21 years she worked as a mail processing clerk. In a Form CA-17
dated December 17, 2015, Dr. Brown diagnosed carpal tunnel syndrome and indicated that
appellant could return to work.

2

Appellant completed and submitted the questionnaire to OWCP. In response to a
question regarding the specific nature of her employment history and work duties as a mail
processing clerk, appellant noted, “See primary treating causal narrative dated [September 10,
2015].”
The record contains a document (Form CA-110) memorializing a January 28, 2016
telephone call between an employing establishment official and an OWCP claims examiner. The
employing establishment official advised that appellant worked for most of calendar year 2013,
that she was off work all of 2014, and that she worked six hours per day in 2015.
In a decision dated January 28, 2016, OWCP denied appellant’s claim for a work-related
bilateral upper extremity condition. It noted that appellant reported that she had performed
repetitive work duties for 8 hours per day, 5 days per week, for the past 21 years, but that the
record showed that she had not performed repetitive work duties to the extent she claimed given
the fact that there were extended periods when she did not work at all and other extended periods
when she only worked partial days.2 OWCP noted that appellant’s claim was denied because the
evidence did not support that the “injury or event(s) occurred” as she described. It further
indicated that she had failed to submit medical evidence establishing a diagnosed condition
causally related to an accepted work injury or event.
Following the January 2016 denial of the claim, OWCP received a March 17, 2016 Form
CA-17 in which Dr. Brown diagnosed carpal tunnel syndrome and indicated that appellant could
return to work that day.
On June 13, 2016 appellant requested reconsideration of OWCP’s January 28, 2016
decision. In support of her request, she submitted a May 19, 2016 report in which Dr. Brown
disagreed with OWCP’s denial of her claim for a work-related occupational disease. Dr. Brown
discussed appellant’s bilateral carpal tunnel syndrome and bilateral de Quervain’s tenosynovitis
conditions and noted, “[T]he patient has performed repetitive gripping and grasping with her
hands for approximately 15 years of her entire 22-year employment history, which unfortunately
has caused cumulative trauma resulting in these injuries.” He indicated that the fact that there
were periods when appellant did not work was irrelevant to the fact that she sustained cumulative
trauma to her wrists during the extended periods she engaged in repetitive gripping and grasping
at work. Dr. Brown requested that OWCP accept appellant’s claim for bilateral carpal tunnel
syndrome and bilateral de Quervain’s tenosynovitis.
By decision dated August 5, 2016, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence appellant
submitted in support of her reconsideration request was irrelevant or immaterial to the main issue
of the case. OWCP indicated that appellant had not submitted a statement regarding her work
duties to address the inconsistencies referenced in the January 28, 2016 decision.

2

OWCP indicated that the record reflected that appellant was off work for eight months in 2010 and worked two
hours per day the rest of the year, was off work for months in 2011 and worked four to six hours per day the rest of
the year, was off work for approximately nine months in 2012 and worked four hours per day the rest of the year,
worked four hours per day in the first part of 2013 and was off work the rest of the year, was off work for all of
2014, and worked modified duty six hours per day in 2015. It noted that, in the prior 10 years, appellant had
approximately 53 months of no work and another 13 months when she worked less than 6 hours per day.

3

LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right.3 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.4 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is
sought.5 A timely application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.6 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.7
ANALYSIS
OWCP issued a January 28, 2016 merit decision denying appellant’s bilateral hand/wrist
occupational disease claim. Appellant timely requested reconsideration on June 13, 2016, and
submitted additional medical evidence. OWCP denied her request on August 15, 2016 without
reviewing the merits of the claim. As noted, the Board does not have jurisdiction over OWCP’s
January 28, 2016 merit decision. The issue presented on appeal is whether appellant met any of
the requirements of 20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for
reconsideration of the merits of the claim.
In support of her reconsideration request, appellant submitted a May 19, 2016 report in
which Dr. Brown, an attending physician, discussed her conditions of bilateral carpal tunnel
syndrome and bilateral de Quervain’s tenosynovitis. Dr. Brown explained that appellant had
performed repetitive gripping and grasping with her hands for approximately 15 years of her
entire 22-year employment history “which unfortunately has caused cumulative trauma resulting
in these injuries.” He indicated the fact that appellant had not worked for certain periods was
irrelevant to the fact that she sustained cumulative trauma to her wrists during the extended
periods she engaged in repetitive gripping and grasping at work. Dr. Brown requested that
OWCP accept appellant’s claim for bilateral carpal tunnel syndrome and bilateral de Quervain’s
tenosynovitis.
3

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.607.

5

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be “received” by OWCP
within one year of the OWCP decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt
date of the request for reconsideration as indicated by the “received date” in the Integrated Federal Employees’
Compensation System (iFECS). Id. at Chapter 2.1602.4b.
6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608(a), (b).

4

The Board finds that appellant submitted medical evidence addressing the deficiencies of
the claim as identified in OWCP’s January 28, 2016 merit decision. Dr. Brown’s May 19, 2016
report addresses OWCP’s concerns about the recitations of appellant’s work duties in the record.
The Board finds that the report constitutes pertinent new and relevant evidence not previously
considered by OWCP.8 Therefore, the submission of this evidence requires reopening of
appellant’s claim for merit review.9
The case shall be remanded to OWCP and, after any further development deemed
necessary, OWCP shall conduct a merit review of appellant’s claim, pursuant to 5 U.S.C.
§ 8128(a), and issue an appropriate merit decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a). The case is remanded to OWCP for
further development, including a merit review of appellant’s claim.
ORDER
IT IS HEREBY ORDERED THAT the August 15, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case remanded for further proceedings
consistent with this decision.
Issued: June 13, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8

See supra note 6.

9

See D.M., Docket No. 10-1844 (issued May 10, 2011); Kenneth R. Mroczkowski, 40 ECAB 855 (1989).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.J., Appellant
and
DEPARTMENT OF THE ARMY, RED RIVER
ARMY DEPOT, Texarkana, TX, Employer
__________________________________________

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

Docket No. 15-795
Issued: June 15, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 27, 2015 appellant filed a timely appeal from a February 11, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. As more than 180 days elapsed between the last merit decision of OWCP dated,
January 31, 2014, to the filing of this appeal, pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the
merits of this case.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).

FACTUAL HISTORY
This case has previously been before the Board.3 In a September 17, 2014 decision, the
Board affirmed a January 31, 2014 OWCP merit decision denying appellant’s occupational
disease claim, finding that the medical evidence failed to establish that the accepted work
activity, namely, driving a forklift over bad potholes and being exposed to airborne metals and
chemicals while driving a forklift 10 hours a day, 6 to 7 days a week, caused or contributed to a
back and left eye condition. The Board also affirmed OWCP’s March 18, 2014 nonmerit
decision, denying appellant’s request for reconsideration. The Board found that his request did
not satisfy the criteria for obtaining a merit review of his case. The facts relevant to this appeal
are set forth below.
On December 2, 2013 appellant, then a 47-year-old forklift operator, filed an
occupational disease claim alleging that on April 11, 2012 he first became aware of his back
injury and detached retina and realized that they were caused by driving over potholes at work.
The employing establishment controverted the claim, contending that it was unaware of
appellant’s claimed injuries, there was insufficient proof of a causal relationship between his
condition and employment. The employing establishment also reported that he did very little
forklift work. Appellant retired on disability from the employing establishment on April 8, 2013.
Following issuance of the Board’s September 17, 2014 decision appellant, on
December 25, 2014, requested reconsideration before OWCP and submitted a December 21,
2014 medical report, from Dr. Roshan L. Sharma, a Board-certified physiatrist, who reported that
an April 11, 2012 cervical magnetic resonance imaging (MRI) scan showed multilevel
significant stenosis at C3-4, C4-5, C5-6, and C6-7 levels of the neck. Appellant had moderate
spinal stenosis at each level except C5-6 where he was diagnosed with moderately severe
stenosis of the spinal canal with flexing of the spinal cord from a central disc osteophyte
complex. He also had multilevel degenerative changes in his cervical spine.
Dr. Sharma advised that an April 11, 2012 lumbar MRI scan showed severe facet
arthropathy at the L2-3 level, moderate facet arthropathy at the L3-4 level, and a disc protrusion
with moderate-to-severe left foraminal narrowing at the L5-S1 level. He noted that appellant
was known to have had a significant eye problem dating back to 2002 with multiple surgeries for
a detached retina. Dr. Sharma related that, while appellant’s actual visual acuity was not known,
the eye problem had led to chronic headache. He advised that appellant’s overall function had
been significantly restricted, noting difficulty with repetitive bending, stooping, and crawling.
Appellant was restricted to lifting, pushing, and pulling 20 pounds. Dr. Sharma stated
that working at and above shoulder level in a repetitive fashion would be difficult for appellant
because of his cervical spinal stenosis. Repetitive use of appellant’s upper extremities would
aggravate his chronic neck pain. Prolonged sitting, walking, or standing was difficult.
Dr. Sharma restricted these activities. Working at height would be unsafe for appellant.
Dr. Sharma opined that appellant was permanently disabled due to his current medical condition
and significant restrictions.
3

Docket No. 14-1028 (issued September 17, 2014).

2

In a February 11, 2015 decision, OWCP denied further merit review of appellant’s claim.
It found that his request for reconsideration did not raise any substantive legal questions or
include new and relevant evidence.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128 of FECA,4
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.5 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.6 Section 10.608(b) of the implementing regulations state that any
application for review that does not meet at least one of the requirements listed in 20 C.F.R.
§ 10.606(b)(2) will be denied by OWCP without review of the merits of the claim.7
ANALYSIS
In support of his December 25, 2014 request for reconsideration, appellant neither
demonstrated that OWCP erroneously applied or interpreted a specific point of law, nor did he
advance a relevant legal argument not previously considered by OWCP. He submitted a
December 21, 2014 report from Dr. Sharma that had not been previously considered by OWCP
or the Board. This evidence, while new, is not relevant to the issue of causal relationship.
Dr. Sharma opined that appellant’s permanent disability was due to his diagnosed cervical and
lumbar conditions and significant physical restrictions. He, however, did not address whether
appellant’s medical conditions and restrictions were caused by the accepted employment factors.
The submission of evidence or argument that does not address the particular issue involved does
not constitute a basis for reopening a case.8 The Board finds, therefore, that Dr. Sharma’s report
is not relevant and pertinent and thus, insufficient to reopen appellant’s claim for a merit review.
The Board accordingly finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
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).
4

Supra note 1. 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).
5

20 C.F.R. § 10.606(b)(3).

6

Id. at § 10.607(a).

7

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

8

R.M., 59 ECAB 690 (2008); Betty A. Butler, 56 ECAB 545 (2005).

3

ORDER
IT IS HEREBY ORDERED THAT the February 11, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 15, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4