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

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

Docket No. 07-2071
Issued: April 16, 2008

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 August 6, 2007 appellant filed a timely appeal from the October 12, 2006 schedule
award of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to review the merits of the appeal.
ISSUE
The issue is whether appellant has more than 10 percent impairment to her left upper
extremity, for which she received a schedule award.
FACTUAL HISTORY
On May 9, 2000 appellant, then a 54-year-old mail clerk, filed a claim for left carpal
tunnel syndrome which she attributed to her federal employment. She noted prior surgery for
carpal tunnel on her right hand, following which she used her left hand for heavy lifting.
Appellant’s claim was accepted by the Office for left carpal tunnel syndrome. She underwent
surgical decompression on November 16, 2000. Appellant received appropriate benefits for
intermittent disability and subsequently filed a claim for a schedule award.

On June 9, 2005 Dr. Howard L. Blank, an attending orthopedic surgeon, reported that
appellant had complaints of intermittent tingling and numbness in the second and third fingers of
the left hand, occasionally going to the thumb. Sometimes appellant’s symptoms extended from
the wrist to the elbow. She had no complaints of weakness. Dr. Blank reviewed a February 26,
2005 nerve conduction study which revealed no denervation in the thenar muscles which
correlated with his findings on physical examination of no thenar weakness or atrophy. He
described appellant’s symptoms as sensory, not motor, and secondary to residual carpal tunnel
syndrome due to scarring around the median nerve. Dr. Blank advised that appellant was
capable of performing light repetitive activities and she was not a candidate for further surgery.
An Office medical adviser reviewed the report of Dr. Blank, noting that appellant
experienced sensory changes following her surgery in 2000 with no motor deficit. He utilized
the American Medical Association, Guides to the Evaluation of Permanent Impairment (5th
edition) to rate impairment. Under Table 16-10, Dr. Blank found that appellant’s sensory
impairment would be classified as Grade 4 for distorted superficial tactile sensibility (diminished
light touch), with or without minimal abnormal sensations of pain that is forgotten during
activity.1 The medical adviser allowed 25 percent sensory deficit based on Dr. Blank’s clinical
description of appellant’s symptoms. Under Table 16-15, he noted that the maximum upper
extremity impairment allowed for sensory loss of the median nerve below the forearm was 39
percent.2 The Office medical adviser multiplied the sensory deficit (25 percent) by the
maximum impairment value (39 percent) to find that appellant had 10 percent impairment of her
left upper extremity.3 He advised that appellant had reached maximum medical improvement as
of June 9, 2005, the date of Dr. Blank’s examination.
In support of her claim, appellant submitted the September 1, 2005 report of Dr. Nicholas
Diamond, an osteopath. Examination of the left wrist revealed a three centimeter scar from
surgery with palmar aspect tenderness. Dr. Diamond described left hand thenar atrophy and
provided range of motion findings for the fingers. Grip strength testing revealed equal forces of
strength for the right and left hands. Dr. Diamond stated that appellant had residual sensory
neuropathy due to her bilateral carpal tunnel syndrome. He advised that she had complaints of
daily left hand pain which waxed and waned. Dr. Diamond described diminished light touch and
two-point discrimination at three millimeters. He advised that appellant had 31 percent
impairment to her left upper extremity, indicating that her sensory deficit was Grade 2 for the left
median nerve.
On July 27, 2006 an Office medical adviser reviewed the medical evidence and disagreed
with the impairment rating by Dr. Diamond. He stated that Dr. Diamond incorrectly rated the
median nerve deficit as Grade 2 as his physical examination revealed normal two-point
discrimination measured at three millimeters. The medical adviser stated that two-point
discrimination at six millimeters or less was equivalent to zero percent impairment of the nerve
1

A.M.A., Guides 482.

2

Id. at 492.

3

The total of 9.75 percent was properly rounded to 10 percent pursuant with Office standards in schedule award
claims. See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(b)
(October 1990).

2

as recorded in the medical literature. He agreed with the prior impairment rating of 10 percent
impairment based on a Grade 4 sensory deficit. The medical adviser concluded that appellant
did not have greater than 10 percent impairment to her left arm.
On August 17, 2006 the Office granted appellant a schedule award for 10 percent
impairment of the left upper extremity. The period of the award ran for 31.2 weeks of
compensation from November 11, 2000 to June 22, 2001. On October 12, 2006 the Office
modified the schedule award determination to reflect that period covered was June 9, 2005 to
January 13, 2006.
Appellant, through counsel, requested a hearing before an Office hearing representative
which was held on December 12, 2006. In a February 23, 2007 decision, the Office hearing
representative found that appellant had no more than 10 percent impairment to her left arm.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act and its
implementing federal regulations set forth the number of weeks of compensation payable to
employees who sustain permanent impairment from the loss, or loss of use, of schedule members
or functions of the body.4 The Act, however, does not specify the manner in which the
percentage loss of a member 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 Office has
adopted the American Medical Association, Guides to the Evaluation of Permanent Impairment
for evaluation of scheduled losses.5
If, after an optimal recovery time following surgical decompression, an individual
continues to experience pain, paresthesias or difficulties performing certain activities and there
are positive clinical findings of median nerve dysfunction and electrical conduction delays, the
impairment due to residual carpal tunnel syndrome is rated according to sensory or motor
deficits.6 Table 16-10 of the A.M.A., Guides set forth a grading scheme and procedure for
determining impairment of the upper extremity due to sensory deficit or pain resulting from
peripheral nerve disorders.7
ANALYSIS
Appellant’s claim was accepted for left carpal tunnel syndrome for which she underwent
surgery on November 16, 2000. Dr. Blank, an attending physician, noted on examination that
appellant had symptoms of intermittent tingling and numbness of several fingers of her left hand.
4

5 U.S.C. § 8107; 20 C.F.R. § 10.404. See Michelle L. Collins, 56 ECAB 552 (2005).

5

20 C.F.R. § 10.404. Effective February 1, 2001 the Office began using the fifth edition of the A.M.A., Guides.
See David W. Ferrall, 56 ECAB 362 (2005).
6

A.M.A., Guides 495.

7

Id. at 482.

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He advised that she had no complaints of weakness or atrophy and that a February 26, 2005
nerve conduction study was consistent with residual left carpal tunnel syndrome. Dr. Blank
found that appellant’s residual symptoms were sensory in nature, not motor, due to scarring
around the median nerve. However, he did not provide an impairment rating.
Based on this report, an Office medical adviser found that appellant had reached
maximum medical improvement as of Dr. Blank’s June 9, 2005 evaluation. He rated appellant
as having 10 percent permanent impairment to her left arm due to sensory loss or pain. The
medical advised noted that, under the A.M.A., Guides, appellant’s symptoms as described by
Dr. Blank warranted a Grade 4 deficit under Table 16-10, which provides a range of 1 to 25
percent for sensory deficit or pain. The medical adviser allowed 25 percent under Grade 4 and,
in application of Table 16-15, noted that the maximum impairment allowed for sensory loss of
the median nerve below the forearm was 39 percent. Based on these Tables, he found 10 percent
impairment of the left upper extremity. The Board finds that this was a proper application of the
A.M.A., Guides by the medical adviser based on the clinical findings of Dr. Blank.8
Dr. Diamond rated appellant as having 31 percent impairment of her left arm. The basis
of his higher impairment rating under Table 16-15 was his determination that appellant’s residual
sensory loss was Grade 2 under Table 16-10. Grade 2 is described as decreased superficial
cutaneous pain and tactile sensibility (decreased protective sensibility), with abnormal sensations
or moderate pain that may prevent activities. This grade allows for 61 to 80 percent sensory
deficit. It is readily apparent that Dr. Diamond allowed appellant 80 percent sensory deficit
under Table 16-10 to arrive at the 31 percent impairment under Table 16-15. However, the
grading selected by Dr. Diamond is not supported by his clinical findings.
The second Office medical adviser did not accept grading of appellant’s residual sensory
loss as Grade 4. He noted that Dr. Diamond found two-point discrimination at three millimeters.
The A.M.A., Guides, provide commentary for the medical examiner in estimating the values for
each severity grade appearing at Table 16-10. It cautions that “[t]he maximum value for each
grade is not applied automatically.”9 The commentary provides that in interpretation of Table
16-10, a Grade 2 sensory deficit is possible with “a gross appreciation of two-point
discrimination (11 to 15 millimeters) at this level.”10 Dr. Diamond did not provide any
explanation for why he automatically allowed the maximum value for Grade 2 sensory deficit
(80 percent). His report noted some difficulties described by appellant in performing various
activities, but he did not state that her abnormal sensations or pain prevented any activity, a
factor which supports Grade 2 deficit. As the Office medical adviser noted, Dr. Diamond’s
finding on two-point discrimination were not characteristic of the Grade 2 classification he
selected. For these reasons, his impairment rating is of diminished probative value. The medical

8

Under accepted Office procedures, after obtaining all necessary medical evidence, the file may be routed to an
Office medical adviser for an opinion concerning the percentage of permanent impairment. See Tommy R. Martin,
56 ECAB 273 (2005).
9

A.M.A., Guides 482.

10

Id. at 483.

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evidence of record does not establish that appellant has greater than 10 percent impairment of her
left arm. The Board will affirm the schedule award granted in this case.
CONCLUSION
The Board finds that appellant has no more than 10 percent impairment of her left upper
extremity.
ORDER
IT IS HEREBY ORDERED THAT the February 23, 2007 and October 12, 2006
decisions of the Office of Workers’ Compensation Programs be affirmed.
Issued: April 16, 2008
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
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Camden, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1812
Issued: February 22, 2018

Case Submitted on the Record

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

JURISDICTION
On August 23, 2017 appellant, through counsel, filed a timely appeal from an April 5,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has more than zero percent permanent impairment of the
left lower extremity, and, more than two percent permanent impairment of the right lower
extremity, for which she previously received a schedule award.
FACTUAL HISTORY
On September 21, 2012 appellant, then a 49-year-old manual distribution clerk, filed an
occupational disease claim (Form CA-2) alleging that on July 13, 2012 she first suffered lower
lumbar and thoracic back pain extending into her legs, and first related the pain to factors of her
federal employment on July 16, 2012. She stopped work on July 13, 2012. OWCP accepted
appellant’s claim for aggravation of preexisting lumbar spinal stenosis, preexisting left L4-5
synovial cyst, and preexisting L4-5 and L5-S1 degenerative disc disease. Appellant received
wage-loss compensation and medical benefits on the periodic rolls effective November 16, 2013.
On May 6, 2014 OWCP issued a notice proposing to terminate appellant’s wage-loss
compensation and medical benefits as it found she no longer had any disability or residuals due
to her accepted conditions. By decision dated July 31, 2014, it finalized the proposed
termination effective that date. Counsel requested a hearing before an OWCP hearing
representative on August 7, 2014. On February 20, 2015 the hearing representative affirmed the
July 31, 2014 termination decision.
In a June 12, 2015 report, Dr. Arthur Becan, a Board-certified orthopedic surgeon,
discussed appellant’s medical history, provided findings on physical examination, and noted
review of diagnostic testing. He diagnosed cumulative and repetitive trauma disorder, L4-5 and
L5-S1 herniated discs, chronic lumbosacral strain and sprain, L4-5 and L5-S1 foraminal stenosis,
and occupational low back syndrome. Based on appellant’s moderate L5 motor strength deficit
right extensor halluces longus, he calculated 13 percent permanent impairment of the right lower
extremity pursuant to Table 2 of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) The Guides Newsletter.3 Dr. Becan calculated an
additional six percent permanent impairment of the right lower extremity based on severe
sensory deficit right L5 nerve root. Next, he calculated an additional three percent permanent
impairment of the right lower extremity based on mild S1 motor deficit right gastrocnemius.
Dr. Becan also calculated an additional four percent permanent impairment of the right lower
extremity based on severe sensory deficit right S1 nerve root.
Regarding appellant’s left lower extremity, based on his mild L5 motor strength deficit
left extensor halluces longus, Dr. Becan calculated five percent permanent impairment of the left
lower extremity. He calculated an additional six percent permanent impairment of the left lower
extremity based on severe sensory deficit right L5 nerve root. Next, Dr. Becan calculated an
additional three percent permanent impairment of the left lower extremity based on mild S1
motor deficit right gastrocnemius. He also calculated an additional four percent permanent
impairment of the left lower extremity based on severe sensory deficit right S1 nerve root.
3

The Guides Newsletter, July/August 2009.

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Dr. Becan concluded that appellant had reached maximum medical improvement (MMI) on
June 12, 2015 and was entitled to a schedule award for a final combined 23 percent permanent
impairment of the right lower extremity and 18 percent permanent impairment of the left lower
extremity.
On September 30, 2015 appellant filed a claim for a schedule award (Form CA-7).
On October 19, 2015 an OWCP district medical adviser (DMA) reviewed Dr. Becan’s
report and recommended a referral for a second opinion evaluation.
On January 8, 2016 OWCP referred appellant for a second opinion evaluation with
Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon, for a permanent impairment
evaluation of her bilateral lower extremities for purposes of a schedule award.
In a report dated February 8, 2016, after Dr. Hanley noted appellant’s history of injury,
and his review of appellant’s medical record, he presented his examination findings. His
examination findings included negative straight leg testing, no atrophy, and no weakness of
either leg. According to Dr. Hanley, appellant’s complaint of numbness in her legs was a
nondermatonal description. He reported no objective evidence of lower extremity lumbar
radiculopathy. Dr. Hanley observed that appellant’s subjective complaints of leg pain did not
correlate with the objective evidence. He concluded that appellant had zero percent permanent
impairment of both lower extremities relative to her accepted July 13, 2012 employment injury.
On July 5, 2016 OWCP referred appellant to Dr. Andrew Gelman, a Board-certified
orthopedic surgeon, to resolve the conflict in the medical opinion evidence between Dr. Hanley
and Dr. Becan on the issue of extent of, if any, permanent impairment of either lower extremity
due to her accepted employment conditions.
In a report dated August 2, 2016, Dr. Gelman explained the impact of the
July/August 2009 edition of The Guides Newsletter and found appellant had two percent
permanent impairment of her right lower extremity and zero percent permanent impairment of
her left lower extremity. He related that appellant’s physical examination findings included a
gait without antalgia, mild physiologic hyper lumbar lordosis, normal lower extremity strength
testing, decreased right lateral calf pin sensation, positive straight right leg raising with equivocal
Lasegue’s, intact sensation with decreased right lateral calf pin sensation, and negative left
straight leg raising. Dr. Gelman explained that appellant had no left lower extremity permanent
impairment due to absence of any subjective complaints, motor and/or sensory involvement.
With respect to the right lower extremity he observed normal and full motor grade resistance
testing and mild subjective right L5 dermatome sensory asymmetry. Dr. Gelman placed
appellant in a class 1 for mild L5 subjective sensory asymmetry using Proposed Table 2 of the
July/August 2009 The Guides Newsletter. Applying the net adjustments from functional
history,4 clinical studies,5 and physical examination,6 Dr. Gelman reached a net adjusted grade
4

A.M.A., Guides 575, Table 17-6.

5

Id. at 576, Table 17-7.

6

Id. at 581, Table 17-9.

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modifier of + 1, which moved the percent default to D, resulting in a rating of two percent
permanent impairment of the right lower extremity.
OWCP referred Dr. Gelman’s report to its DMA for the purpose of “[assuring] that the
referee physician appropriately applied the A.M.A., Guides in calculating the impairment
rating.” In an October 14, 2016 report, a new DMA reviewed Dr. Gelman’s report and found
that he had correctly applied the A.M.A., Guides when he found zero percent permanent
impairment of appellant’s left lower extremity, and two percent permanent impairment of her
right lower extremity.
By decision dated November 22, 2016, OWCP granted appellant a schedule award for
two percent permanent impairment of her right lower extremity. The period of the award was
from August 2 to September 11, 2016.
In a letter dated December 1, 2016, appellant, through counsel, requested an oral hearing
before an OWCP hearing representative, which was held on March 2, 2017.
By decision dated April 5, 2017, an OWCP hearing representative affirmed the
November 22, 2016 schedule award determination. The hearing representative concluded that
Dr. Gelman’s opinion that appellant had two percent permanent impairment of the right lower
extremity, and zero percent permanent impairment of the left lower extremity constituted the
special weight of the medical opinion evidence.
LEGAL PRECEDENT
Under section 8107 of FECA7 and section 10.404 of the implementing federal
regulations,8 schedule awards are payable for permanent impairment of specified body members,
functions or organs. FECA, however, does not specify the manner in which the percentage of
impairment shall be determined. For consistent results and to ensure equal justice under the law
for 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.9
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.10 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

D.J., 59 ECAB 620 (2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

10

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

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schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.11
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment.12 For peripheral nerve impairments to the upper
or lower extremities resulting from spinal injuries, OWCP procedures indicate that The Guides
Newsletter, Rating Spinal Nerve Extremity Impairment using the sixth edition
(July/August 2009) is to be applied.13 FECA approved methodology is premised on evidence of
radiculopathy affecting the upper and/or lower extremities.14
Section 8123(a) of FECA provides in pertinent part: 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.15 Where a case is
referred to an impartial medical examiner for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background must be given special weight.16
ANALYSIS
Appellant’s claim was accepted for aggravation of preexisting lumbar spinal stenosis,
preexisting left L4-5 synovial cyst, and preexisting L4-5 and L5-S1 degenerative disc disease.
OWCP found that appellant no longer had disability or residuals of the accepted conditions as of
July 31, 2014. By decision dated November 22, 2016, it granted appellant a schedule award for
two percent permanent impairment of the right lower extremity, which was affirmed by an
OWCP hearing representative in an April 5, 2017 decision. No award was made for left lower
extremity permanent impairment.
The Board finds that appellant has not established more than two percent permanent
impairment of the right lower extremity, for which she was previously granted a schedule award.
OWCP found a conflict existed between the medical opinions of Dr. Becan, appellant’s
physician, who opined that appellant had 24 percent right lower extremity permanent impairment
and 18 percent left lower extremity permanent impairment, and Dr. Hanley, an OWCP referral
physician, who opined that appellant had no permanent impairment of either lower extremity due
11

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

12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5(a) (February 2013).
13
See G.N., Docket No. 10-0850 (issued November 12, 2010); see also id. at Chapter 3.700, Exhibit 1, n.9
(January 2010). The Guides Newsletter is included as Exhibit 4.
14

Supra note 12 at Chapter 2.808.5c(3) (February 2013).

15

5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

16

V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

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to the accepted lumbar injury. Therefore, OWCP properly referred appellant to Dr. Gelman, a
Board-certified orthopedic surgeon, for an impartial medical examination to resolve the conflict
in the medical opinion evidence.17
Dr. Gelman provided a complete history and he reviewed in detail the medical evidence
of record. He provided results on examination and based his opinion on a complete and accurate
background. Dr. Gelman referred to The Guides Newsletter, and explained that appellant had an
impairment of her right lower extremity due to her mild subjective right L5 dermatome sensory
asymmetry. He properly explained that appellant had a net adjusted grade modifier of plus one,
which moved default rating to a rating of two percent permanent impairment of the right lower
extremity. Based on his examination and review of the record, Dr. Gelman properly concluded
that appellant had two percent right lower extremity permanent impairment.
Regarding appellant’s left lower extremity permanent impairment rating, Dr. Gelman
related appellant’s physical examination findings and explained that she had no left lower
extremity permanent impairment due to absence of any subjective complaints, motor and/or
sensory involvement.
On October 14, 2016 a new DMA reviewed and found that Dr. Gelman had correctly
applied The Guides Newsletter when he found that appellant had two percent permanent
impairment of the right lower extremity and zero percent permanent impairment of the left lower
extremity permanent impairment.
The Board finds that Dr. Gelman’s opinion is thorough and well rationalized, as the
impartial medical examiner, and represents the special weight of the medical evidence.18 The
Board has carefully reviewed his reports and finds that his opinion has reliability, probative
value, and convincing quality with respect to its conclusions regarding the extent of appellant’s
permanent impairment. Dr. Gelman’s opinion is based on a proper factual and medical history
and he thoroughly reviewed the factual and medical history and accurately summarized the
relevant medical evidence.19 He provided medical rationale for his opinion by explaining that,
after careful review of all medical documentation and his clinical examination of appellant, the
evidence established two percent right lower extremity permanent impairment. Dr. Gelman’s
opinion is entitled to special weight as the impartial medical examiner and establishes that
appellant has two percent right lower extremity permanent impairment.
On appeal counsel contends that Dr. Gelman’s opinion cannot constitute the weight of the
medical opinion evidence as he did not conduct sufficient motor and sensory testing. Contrary to
counsel’s contentions, Dr. Gelman noted results from his sensory and motor testing and
explained his calculations with citations to the A.M.A., Guides. In addition, OWCP’s DMA
reviewed Dr. Gelman’s report and concluded that he had properly used the A.M.A., Guides in his
impairment rating.
17

Id.

18

Barry Neutuch, 54 ECAB 313 (2003).

19

See supra note 16.

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Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established entitlement to a schedule award for
more than zero percent permanent impairment of the left lower extremity, and more than two
percent permanent impairment of the right lower extremity, for which she previously received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 5, 2017 is affirmed.
Issued: February 22, 2018
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
DEPARTMENT OF THE ARMY, U.S.
MEDICAL COMMAND, Fort Gordon, GA,
Employer
__________________________________________

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

Docket No. 13-1629
Issued: December 20, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 28, 2013 appellant filed a timely appeal from the April 12, 2013 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration. Because more than 180 days elapsed from March 8, 2012, the date of the most
recent merit decision, to the filing of this appeal and 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 appellant’s claim.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was not timely filed and failed to present clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 19, 2012 appellant, then a 57-year-old dental purchase care coordinator, filed
a traumatic injury claim (Form CA-1) alleging that she sustained an injury in the performance of
duties on October 4, 2011. She stated that she received an annual mandatory flu immunization
and that this procedure resulted in cardiomyopathy. Appellant did not submit any other factual
or medical evidence in support of her claim. Her employing establishment controverted
continuation of pay, stating that appellant did not file a CA-1 form within 30 days of her injury;
that she did not miss work until she was outside the 45-day continuation of pay time frame; and
that the vaccine she received on October 4, 2011 was a killed vaccine, not a live vaccine.
On January 27, 2012 OWCP requested additional factual and medical evidence from
appellant, on the grounds that she had not submitted any factual or medical evidence apart from
her CA-1 form. It afforded appellant 30 days to submit additional evidence.
By letter dated January 9, 2012, Dr. Anthony Burke, a Board-certified osteopath, stated
that appellant developed cardiomyopathy after she received a flu shot and that because that shot
was a live attenuated virus, “the possibility exists that it was a direct cause of the
cardiomyopathy.”
By letter dated January 26, 2012, Dr. Robert M. Clark, a Board-certified osteopath, stated
that he had seen appellant on August 22, 2011, before she received the influenza vaccination and
that she was in her usual state of health and was stable. On October 27, 2011 appellant returned
to Dr. Clark for a follow-up visit and was found to be tachycardic along with having a pleural
effusion, cardiomyopathy and congestive heart failure. Dr. Clark opined that, after her reaction
to an influenza vaccine, her health deteriorated because she had a compromised immune system
as a result of long-term rheumatoid arthritis.
On January 30, 2012 the Civilian Personnel Advisory Center sent a letter to OWCP
confirming that appellant received Afluira, which is a killed vaccine and not a live one as
indicated in Dr. Burke’s January 9, 2012 letter.
By letter dated February 8, 2012, Dr. Burke stated that appellant’s blood work and
echocardiogram revealed cardiomyopathy with systolic congestive heart failure. He noted that
she told him that her symptoms began a few weeks after having a flu vaccination on
October 4, 2011.
Dr. Burke maintained that he could “only deduce that [appellant’s]
cardiomyopathy was likely viral in origin given the fact that she had received the flu vaccine,
which [he understood] to be a live attenuated virus” and that “based on the objective data
pertaining to [appellant, he felt] that likely flu vaccine resulted in her cardiomyopathy.”
In an undated narrative statement, appellant stated that, immediately after she received
her flu vaccination, she began to feel dizzy. Several days after the vaccination, she noted that
she began seeing blue lines, feeling nausea and weakness and experiencing difficulty breathing,
in addition to her dizziness. On November 18, 2011 appellant was admitted to a hospital and
diagnosed with congestive heart failure. She also asserted that Dr. Clark had later given her a
clean bill of health and that she had no symptoms before the flu shot was administered.

2

In several statements dated February 7 and 8, 2013, appellant’s coworkers described her
nausea, lightheadedness, fatigue and shortness of breath following her flu vaccination on
October 4, 2011.
By decision dated March 8, 2012, OWCP denied appellant’s claim, finding that the
medical evidence was not sufficient to support her claim for compensation because it did not
establish that her medical condition was causally related to her mandatory flu vaccination. It
found that Dr. Burke’s January 9 and February 8, 2012 letters were of little probative value due
to his use of speculative or equivocal language in describing whether the October 4, 2011
employment event was related to her condition and that Dr. Clark’s January 26, 2012 letter did
not provide a detailed explanation of how her alleged condition was the direct result of the
employment event. OWCP accepted that appellant was a federal civilian employee who filed a
timely claim; that the traumatic event occurred as described; that a medical condition had been
diagnosed; and that she was within the performance of duty.
By letter dated March 1, 2013, received by OWCP on March 11, 2013, appellant
requested reconsideration of OWCP’s March 8, 2012 decision. In support of her request, she
submitted a narrative statement describing her own research and a statement from Dr. Burke. In
Dr. Burke’s statement, dated January 17, 2013, he asserted that, “in [his] professional medical
opinion, after reasonable deduction and our ability to remove certain etiologies as the possible
cause of [appellant’s] cardiomyopathy, [he could] only at this point deduce that it was likely
caused by the influenza vaccination” and that “through her testing, we were only able to deduce
with reasonable certainty that her flu vaccination was the likely cause of her cardiomyopathy.”
By decision dated April 12, 2013, OWCP denied appellant’s request for reconsideration
on the grounds that it was untimely and did not establish clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for
further merit review.2 This discretionary authority, however, is subject to certain restrictions.
For instance, a request for reconsideration must be received within one year of the date of
OWCP’s decision for which review is sought.3 Imposition of this one year receipt limitation
does not constitute an abuse of discretion.4
OWCP may not deny a reconsideration request solely on the grounds that it was not
timely filed. When a claimant’s application for review is not timely filed, it must nevertheless
undertake a limited review to determine whether it establishes clear evidence of error. If an
application demonstrates clear evidence of error, OWCP will reopen the case for merit review.5
2

See 5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009).

3

20 C.F.R. § 10.607(a).

4

See E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011) (the term “clear evidence of error”
is intended to represent a difficult standard).

3

To establish clear evidence of error, a claimant must submit evidence that is relevant to
the issue that was decided by OWCP,6 is positive, precise and explicit and manifests on its face
that OWCP committed an error.7 The evidence must not only be of sufficient probative value to
create a conflict in medical opinion or establish a clear procedural error, but must also shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision for which review is sought. Evidence that does not raise a
substantial question is insufficient to establish clear evidence of error. It is not enough merely to
show that the evidence could be construed so as to produce a contrary conclusion. A
determination of whether the claimant has established clear evidence of error entails a limited
review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record.8
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. The most recent merit decision in this case was issued by OWCP on
March 8, 2012.
According to the case record before OWCP, appellant’s request for
reconsideration was received on March 11, 2013, over a year after the most recent merit
decision. Accordingly, OWCP properly found that her request for reconsideration was not
timely filed.
The Board further finds that appellant failed to establish clear evidence of error. In its
March 8, 2012 decision, OWCP denied her traumatic injury claim on the grounds that the
medical evidence did not establish that a work factor, namely a mandatory flu vaccination,
caused or contributed to cardiomyopathy. It noted that Dr. Burke’s reports of January 9 and
February 8, 2012 were of little probative value because they were accompanied by terms that
were speculative or equivocal in nature, such as “possibly” or “likely.” Thereafter, appellant
submitted a statement from him dated January 17, 2013. In this statement, Dr. Burke asserted
that, “in [his] professional medical opinion, after reasonable deduction and our ability to remove
certain etiologies as the possible cause of her cardiomyopathy, [he could] only at this point
deduce that it was likely caused by the influenza vaccination” and that “through her testing, we
were only able to deduce with reasonable certainty that her flu vaccination was the likely cause
of her cardiomyopathy.”
As noted, the question of whether a claimant has established clear evidence of error
entails a limited review of how the evidence submitted with the reconsideration bears on the
evidence previously of record. Dr. Burke’s January 17, 2013 statement does not differ in
relevant part from the evidence previously of record because it also uses speculative or equivocal
language such as “likely” and does not manifest on its face that OWCP erred in denying
appellant’s claim in view of the earlier case record. Because the evidence submitted with
appellant’s request for reconsideration did not shift the weight of the evidence in favor of her and

6

Dean D. Beets, 43 ECAB 1153, 1158 (1992).

7

Leona N. Travis, 43 ECAB 227, 240 (1991).

8

J.S., Docket No. 10-385 (issued September 15, 2010); B.W., Docket No. 10-323 (issued September 2, 2010).

4

raise a substantial question as to the correctness of the March 8, 2012 decision, OWCP properly
determined that the untimely request failed to establish clear evidence of error.
Appellant contends on appeal that OWCP received her reconsideration request in a timely
manner and submitted new evidence. The Board lacks jurisdiction to review evidence for the
first time on appeal.9 Appellant may submit new evidence to OWCP with a written request for
reconsideration in order to determine whether this new evidence establishes clear evidence of
error in its most recent merit decision, pursuant to 20 C.F.R. § 10.607(b).
CONCLUSION
The Board finds that appellant’s request for reconsideration dated March 2, 2013 was
untimely received and did not demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the April 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 20, 2013
Washington, DC

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

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

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

9

20 C.F.R. § 501.2(c).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Flushing, NY,
Employer
__________________________________________

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

Docket No. 10-1567
Issued: March 11, 2011

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 May 25, 2010 appellant filed a timely appeal of a March 11, 2010 nonmerit decision
of the Office of Workers’ Compensation Programs. The last merit decision in this case was
issued on November 16, 2009,1 pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board does not
have jurisdiction over the merits of this case.2
ISSUE
The issue is whether the Office properly denied appellant’s December 7, 2009 request for
reconsideration pursuant to 5 U.S.C. § 8128(a).

1
2

The 180-day period expired from this decision on May 5, 2010.

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. See 20 C.F.R.
§§ 501.2(c) and 501.3(e).

FACTUAL HISTORY
On March 27, 2008 appellant, then a 54-year-old electronic technician, filed a claim for
traumatic injury alleging that on March 24, 2008 he sustained a lower back injury when he bent
down to retrieve his bag from his toolbox. He also noted that he was being kicked out of the
building at the time of the alleged incident.
The employing establishment controverted the claim on the grounds that appellant’s
alleged injury was not related to a work assignment or job function and did not occur in the
performance of duty. It explained that he was not authorized to work since he had rejected a job
offer for limited duty on March 4, 2008 and did not have a job assignment at the time of the
alleged incident. In a March 28, 2008 letter of controversion appellant’s supervisor stated that
on March 24, 2008 he notified appellant that because he was on the premises without proper
clearance, he was not authorized for work and needed to leave the premises. In another letter of
controversion dated March 10, 2008, it was noted that appellant failed to report to a supervisor
when he showed up to work on March 24, 2008 and was not assigned any work duties.
On April 11, 2008 the Office advised appellant that the evidence he submitted was
insufficient to support his claim and requested additional factual and medical evidence.
Appellant submitted additional medical documentation and a personal statement dated
March 27, 2008.
In a decision dated May 13, 2008, the Office denied appellant’s traumatic injury claim
finding insufficient evidence to establish that the claimed incident occurred or that he sustained a
medical condition causally related to the alleged employment incident.
On May 16, 2008 appellant requested a hearing before the Branch of Hearings and
Review, which was held on September 17, 2008. He submitted two (CA-17 forms) dated
February 19 and April 7, 2008.
By decision dated December 15, 2008, an Office hearing representative accepted as
factual that the March 24, 2008 incident occurred, but denied appellant’s claim on the grounds of
insufficient medical evidence to establish that he sustained a back injury as a result of the
employment incident.
On June 29, 2009 appellant submitted a request for reconsideration.
In a decision dated November 16, 2009, the Office affirmed the May 13, 2008 decision
with modification. It found that appellant’s injury did not occur in the performance of duty since
he was retrieving personal property, was not authorized to work at the time he was injured, and
was not performing any duty or function reasonably incidental to his employment.
On December 7, 2009 appellant submitted a request for reconsideration claiming that his
injury occurred in the performance of duty because he was looking for his identification (ID)
badge at his supervisor’s request. He submitted a February 19, 2008 CA-17 form, a March 25,
2008 e-mail, a March 27, 2008 personal statement with various exhibits, a March 28, 2008 letter

2

of controversion from the employing establishment and excerpts from the September 17, 2008
hearing transcript.
By decision dated March 11, 2010, the Office denied appellant’s request for
reconsideration finding the evidence submitted was previously considered and the arguments
presented were duplicative and immaterial.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office with
discretionary authority to determine whether to review an award for or against compensation.3
The Office’s regulations provide that the Office may review an award for or against
compensation at any time on its own motion or upon application. The employee shall exercise
his right through a request to the district Office.4
To require the Office to reopen a case for merit review pursuant to the Act, the claimant
must provide evidence or an argument that: (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.5 A request for reconsideration must also be submitted within one year
of the date of the Office decision for which review is sought.6 When a claimant fails to meet one
of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.7
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record or does not address the particular issue involved does not constitute a
basis for reopening a case.8 While reopening of a case may be predicated solely on a legal
premise not previously considered, such reopening is not required where the legal contention
does not have a reasonable color of validity.9

3

5 U.S.C. § 8128(a); see also D.L., 61 ECAB __ (Docket No. 09-1549, issued February 23, 2010); W.C., 59
ECAB 372 (2008).
4

20 C.F.R. § 10.605; see also R.B., 61 ECAB __ (Docket No. 09-1241, issued January 4, 2010); A.L., 60 ECAB
__ (Docket No. 08-1730, issued March 16, 2009).
5

Id. at § 10.606(b); see also L.G., 61 ECAB __ (Docket No. 09-1517, issued March 3, 2010); C.N., 60 ECAB __
(Docket No. 08-1569, issued December 9, 2008).
6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8

Ronald A. Eldridge, 53 ECAB 218 (2001); James E. Norris, 52 ECAB 93 (2000).

9

E.M., 60 ECAB __ (Docket No. 09-39, issued March 3, 2009); Jennifer A. Guillary, 57 ECAB 485 (2006);
Vincent Holmes, 53 ECAB 468 (2002).

3

ANALYSIS
The Board finds that the Office properly denied appellant’s December 7, 2009 request for
reconsideration because he did not meet any of the requirements warranting reconsideration
under 20 C.F.R. § 10.606(b). Appellant did not allege that the Office erroneously applied or
interpreted a specific point of law. He also failed to advance a relevant legal argument not
previously considered by the Office or to submit relevant and pertinent evidence not previously
considered by the Office.
Appellant submitted a February 19, 2008 CA-17 form, a March 25, 2008 e-mail, a
March 27, 2008 personal statement, a March 28, 2008 controversion letter, excerpts from the
September 17, 2008 hearing transcript and copies of previous Office decisions. These materials
were all previously considered in the May 13 and December 15, 2008 merit decisions. It is wellestablished that evidence which duplicates that previously submitted has no evidentiary value
and does not constitute a basis for reopening a case.10 The Board finds that appellant failed to
submit new pertinent or relevant evidence sufficient to warrant reopening the case.
Additionally, appellant’s argument that he was retrieving his personal tool box in order to
find his ID badge at his supervisor’s request is insufficient to warrant reconsideration. Although
not previously proffered, this argument is immaterial to the issue of whether he was authorized to
be on the premises of the employing establishment or in the performance of duty at the time of
the incident.11 Appellant did not address the performance of duty issue of whether he was
scheduled to work or perform any employment duties at the time in question. The fact that his
ID badge may have been in his tool box is not relevant to whether he was authorized to report to
work or perform any employment duties.12 Appellant did not advance a new relevant argument
sufficient to constitute further review on the merits.
The Board finds that appellant did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office or submit relevant and pertinent new evidence not previously considered by the
Office. Accordingly, the Office properly denied merit review of his claim.
CONCLUSION
The Board finds that the Office properly denied appellant’s December 7, 2009 request for
reconsideration pursuant to 5 U.S.C. § 8128(a).

10

See Ronald A. Eldridge, supra note 8.

11

See E.S., 58 ECAB 340 (2007).

12

See A.K., 61 ECAB __ (Docket No. 09-2032, issued August 3, 2010) (where the Board found that appellant’s
injury did not occur in the performance of duty as he was performing a personal task when returning to his vehicle,
even though he also retrieved his ID badge).

4

ORDER
IT IS HEREBY ORDERED THAT the March 11, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2011
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., Appellant
and
U.S. POSTAL SERVICE, LOGISTICS &
DISTRIBUTION CENTER, Tampa, FL,
Employer
__________________________________________

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Appearances:
Wayne Johnson, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-0443
Issued: November 3, 2021

Case Submitted on the Record

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

JURISDICTION
On February 2, 2021 appellant, through counsel, filed a timely appeal from an August 11,
2020 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days have elapsed from the last merit decision dated January 21, 2016 to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3, the Board lacks jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances set forth in
the prior Board decisions and order are incorporated herein by reference. The relevant facts are as
follows.
On February 18, 2009 appellant, then a 34-year-old mail handler operator, filed a traumatic
injury claim (Form CA-1) alleging that on February 9, 2009 she injured her left arm and low back
when hooking up a tow motor to a bulk mail cart while in the performance of duty. OWCP
assigned this claim OWCP File No. xxxxxx098 and accepted it for lumbar, left shoulder, and arm
strain.4
In a letter dated December 7, 2012, OWCP noted that, under OWCP File No. xxxxxx258,
appellant would receive wage-loss benefits on the periodic rolls, effective December 16, 2012.
On December 4, 2014 OWCP referred appellant to Dr. Jonathan Black, Board-certified
orthopedic surgeon, for a second opinion evaluation. In a report dated January 13, 2015, Dr. Black
concluded that her accepted conditions of lumbar, cervical and left shoulder strains had resolved
and that she no longer had any residuals or disability causally related to her accepted employment
injuries.
In a March 18, 2015 decision, OWCP terminated appellant’s wage-loss compensation and
medical benefits for OWCP File Nos. xxxxxx098, xxxxxx258, and xxx xxx723, effective
March 18, 2015. It found that the weight of the medical evidence rested with the opinion of
Dr. Black who opined that she had no employment-related residuals or disability due to her
accepted conditions.
On August 3, 2015 appellant requested reconsideration. By decision dated October 8,
2015, OWCP denied modification. On November 2, 2015 appellant requested reconsideration.
By decision dated January 21, 2016, OWCP denied modification.

3

Order Remanding Case, Docket No. 20-0051 (issued June 29, 2020); Docket No. 15-0303 (issued January 14,
2016); Docket No. 14-0315 (issued May 21, 2014), petition for recon. denied, Docket No. 14-315 (issued
December 1, 2014).
4

On September 17, 2013 OWCP administratively combined OWCP File Nos. xxxxxx098, xxxxxx264, and
xxxxxx723. OWCP File No. xxxxxx098 was designated as the master file. Under OWCP File No. xxxxxx258, OWCP
accepted that appellant sustained cervical and lumbosacral strains on June 9, 2011 while pushing an automated mail
cart. Under OWCP File No. xxxxxx723, it accepted that appellant sustained neck, left shoulder, and upper arm strains
on March 31, 2009 while pulling a heavy tray of mail off a pallet of heavy letter trays.

2

On May 29, 2016 appellant requested reconsideration. By decision dated June 7, 2016,
OWCP denied reconsideration of the merits of her claim.
On March 19, 2019 appellant again requested reconsideration. In support of her request,
she submitted a Form CA-17 dated March 7, 2018, wherein Dr. Richard M. Blecha, a Boardcertified orthopedic surgeon, noted her diagnosis of degenerative disc disease and related that she
could return to work that day with restrictions.
A January 15, 2019 magnetic resonance imaging (MRI) scan of appellant’s left shoulder
revealed moderate acromioclavicular joint osteoarthritis, similar to prior, and small low-grade
partial thickness articular surface subscapularis tendon tear. An MRI scan of her lumbar spine of
the same date showed mild L3-4, L4-5, and L5-S1 degenerative changes without significant
stenosis.
In a February 13, 2019 report, Dr. Robert C. Nucci, a Board-certified orthopedic surgeon,
noted that appellant was seen for cervical, lumbar, and left shoulder and arm pain. He noted that
she had related a history of three work injuries. Dr. Nucci related that appellant’s physical
examination findings included positive left shoulder impingement. He diagnosed cervicalgia,
cervical ligaments sprain, other specified cervical and lumbar dorsopathies, left shoulder pain, left
shoulder impingement syndrome, low back pain, sciatica lumbar ligaments sprain, and
lumbosacral intervertebral disc displacement. In a Form CA-17 of even date, Dr. Nucci diagnosed
cervical, lumbar, and shoulder strain and related that appellant could return to work for 15 to 30
hours per week with restrictions.
A cervical MRI scan dated February 21, 2019 demonstrated C3-4 and C4-5 disc
herniations, C5-6 disc bulge, and C6-7 anterior disc bulge.
In a February 26, 2019 report, Dr. G. Jason Hunt, an osteopath specializing in orthopedics,
provided examination findings and diagnosed left shoulder impingement syndrome and left elbow
ulnar neuritis.
In a March 6, 2019 report, Dr. Dario A. Grisales, a physician specializing in anesthesiology
and pain medicine, reported that appellant was seen for complaints of neck, shoulder, and low back
pain. Physical examination findings were detailed. Dr. Grisales diagnosed chronic pain syndrome,
low back pain, lumbosacral spondylosis without myelopathy or radiculopathy, sacral and
sacrococcygeal region spondylosis without myelopathy or radiculopathy, sacroiliitis, lumbosacral
intervertebral disc disorders with radiculopathy, lumbar region intervertebral disc disorders with
radiculopathy, cervicalgia, C4-5 cervical disc disorder with radiculopathy, left shoulder pain, left
upper arm and shoulder muscles, fascia, and tendons strain, left shoulder bursitis, and lef t shoulder
muscle contracture.
Appellant also resubmitted medical evidence previously of record.
By decision dated April 10, 2019, OWCP denied appellant’s March 19, 2019 request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
It found that it was unnecessary to address the medical evidence submitted with the reconsideration
request.

3

On October 7, 2019 appellant filed an appeal with the Board. By decision dated June 29,
2020, the Board set aside the April 10, 2019 decision, finding that OWCP failed to properly explain
its findings in its decision, in contradiction to 20 C.F.R. § 10.126. The Board remanded the case
for an appropriate decision on appellant’s request for reconsideration, including findings of fact
and a clear statement of reasons explaining its disposition.
By decision dated August 11, 2020, OWCP again denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
It reviewed the evidence submitted on reconsideration and explained that the evidence received
with her March 19, 2019 reconsideration request was not of sufficient probative value to raise a
substantial question as to the correctness of OWCP’s last merit decision dated January 21, 2016
denying modification of the November 2, 2015 decision terminating her compensation benefits.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.5 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one y ear of the date of OWCP’s
decision for which review is sought. 6 The one-year period for requesting reconsideration begins
on the date of the original OWCP decision, but the right to reconsideration within one year also
accompanies any subsequent merit decision on the issues, including any merit decision by the
Board.7 Timeliness is determined by the document receipt date (i.e., the “received date” in
OWCP’s Integrated Federal Employees’ Compensation System (iFECS)). 8 The Board has found
that the imposition of the one-year limitation does not constitute an abuse of the discretionary
authority granted to OWCP under section 8128(a) of FECA. 9
OWCP may not deny a request for reconsideration solely because it was untimely filed.
When a request for reconsideration is untimely filed, it must nevertheless undertake a limited
review to determine whether the application demonstrates clear evidence of error. 10 OWCP’s
regulations and procedures provide that it will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s
request for reconsideration demonstrates clear evidence of error on the part of OWCP. 11

5

See 5 U.S.C. § 8128(a); C.H., Docket No. 21-0264 (issued June 22, 2021); L.H., Docket No. 19-1174 (issued
December 23, 2019).
6

20 C.F.R. § 10.607(a).

7

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

8

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

9

See C.H., supra note 5; R.L., Docket No. 18-0496 (issued January 9, 2019).

10

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

11

Id. at § 10.607(b); supra note 7 a t Chapter 2.1602.5(a) (February 2016).

4

To demonstrate clear evidence of error, a claimant must submit evid ence relevant to the
issue which was decided by OWCP. 12 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. 13 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to demonstrate
clear evidence of error. 14 It is not enough merely to demonstrate that the evidence could be
construed so as to produce a contrary conclusion. 15 This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP. 16 To
demonstrate clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.17 The Board makes an
independent determination of whether a claimant has demonstrated clear evidence of error on the
part of OWCP such that it abused its discretion in denying merit review in the face of such
evidence.18
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the timeliness
of appellant’s March 19, 2019 reconsideration request as the Board considered the evidence
relative to this issue in its June 29, 2020 decision. Findings made in prior Board decisions are res
judicata absent any further review by OWCP, under section 8128 of FECA.19
Consequently, appellant must demonstrate clear evidence of error on the part of OWCP in
its January 21, 2016 merit decision.
In his March 7, 2018 Form CA-17 report, Dr. Blecha diagnosed degenerative disc disease
and noted appellant’s work restrictions. As degenerative disc disease was not an accepted
12

C.H., supra note 5; C.V., Docket No. 18-0751 (issued February 22, 2019); Darletha Coleman, 55 ECAB 143
(2003); Dean D. Beets, 43 ECAB 1153 (1992).
13

M.C., Docket No. 20-1515 (issued June 23, 2021); E.P., Docket No. 18-0423 (issued September 11, 2018);
Pasquale C. D’Arco, 54 ECAB 560 (2003); Leona N. Travis, 43 ECAB 227 (1991).
14

M.C., id.; L.B., Docket No. 19-0635 (issued August 23, 2019); V.G., Docket No. 19-0038 (issued June 18, 2019).

15

M.C., id.; V.G., id.; Leona N. Travis, supra note 13.

16

M.C., id.; L.B., supra note 14; Nelson T. Thompson, 43 ECAB 919 (1992).

17
18

D.G., Docket No. 18-1038 (issued January 23, 2019); Leon D. Faidley, Jr., 41 ECAB 104 (1989).
See C.V., supra note 12; George C. Vernon, 54 ECAB 319 (2003).

19

J.C., Docket No. 20-1253 (issued May 24, 2021); E.P., Docket No. 20-0898 (issued February 17, 2021);
J.T., Docket No. 18-1757 (issued April 19, 2019).

5

condition in any of appellant’s claims, this report does not establish on its face that she had
residuals and/or disability causally related to the accepted employment injuries.20
Dr. Nucci, in a February 13, 2019 report, diagnosed cervical, lumbar, and shoulder strain
and indicated that appellant was capable of working part time with restrictions. While his opinion
addressed her ongoing disability, it did not address the cause of her diagnosed conditions and is,
therefore, insufficient to demonstrate that OWCP committed an error, nor does it raise a substantial
question as to the correctness of OWCP’s January 21, 2016 decision.21 Evidence such as a
detailed, well-rationalized medical report that, if submitted before the denial was issued, would
have created a conflict in medical opinion requiring further development, is not clear evidence of
error.22
Neither Dr. Hunt in his February 26, 2019, nor Dr. Grisales’ March 6, 2019 reports
addressed the cause of appellant’s currently diagnosed conditions or disability. Thus, their reports
are not relevant to the underlying issue of whether she had any continuing residuals or disability
causally related to her accepted February 9, 2009 employment injury. 23
Additionally, the left shoulder, lumbar, and cervical MRI scans also are insufficient to
establish that OWCP erred in its denial of appellant’s claim for continuing disability.24 Diagnostic
test reports do not raise a substantial question as to the correctness of OWCP’s March 15, 2018
decision terminating her compensation benefits or demonstrate clear evidence of error. These
reports therefore do not demonstrate clear evidence of error and would not require a review of a
case.25
In support of her untimely request for reconsideration, appellant also submitted evidence
which was previously of record and considered by OWCP. As such, this evid ence is insufficient
to raise a substantial question as to the correctness of OWCP’s decision and thus, these reports are
insufficient to discharge her burden of proof.26
Appellant has not submitted medical evidence sufficient to shift the weight of the ev idence
in her favor or raise a substantial question as to the correctness of OWCP’s decision.
Consequently, the Board finds that she has not demonstrated clear evidence of error on the part of
OWCP such that it abused its discretion in denying merit review.

20

Supra, note 13.

21

L.N., Docket No. 20-0742 (issued October 26, 2020); C.D., Docket No. 19-1462 (issued June 26, 2020).

22

Id.

23

Supra note 14.

24

See E.H., Docket No. 19-0365 (issued March 17, 2021); D.G., Docket No. 18-1038 (issued January 23, 2019);
G.B., Docket No. 13-1260 (issued December 2, 2013); see also W.R., Docket No. 09-2336 (issued June 22, 2010).
25

See E.H., id.; D.G., id.; M.C., Docket No. 16-1135 (issued September 11, 2017); G.B., id.

26

See D.L., Docket No. 18-1112 (issued January 17, 2020).

6

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the August 11, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 3, 2021
Washington, DC

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

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

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 08-1022
Issued: November 21, 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 February 15, 2008 appellant filed a timely appeal from a November 7, 2007 merit
decision of an Office of Workers’ Compensation Programs’ hearing representative who affirmed
a June 20, 2007 decision finding that her right rotator cuff tear was not causally related to her
employment. She also appealed from a January 4, 2008 nonmerit decision denying her request
for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction
over the merits of the claim.
ISSUES
The issues are: (1) whether appellant established that she sustained a right rotator cuff
tear causally related to factors of her employment; and (2) whether the Office properly denied
her request for further merit review of her claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
On March 12, 2007 appellant, then a 46-year-old rural letter carrier, filed an occupational
disease claim alleging that she first became aware of a right shoulder condition on

November 1, 2006. On November 15, 2006 she first realized that it was due to her repetitive
work duties. In an attached statement, appellant noted that her job duties involved many
repetitious movements on a daily basis. Her physician diagnosed a torn right rotator cuff based
upon a magnetic resonance imaging (MRI) scan. The employing establishment controverted the
claim.
In support of her claim, appellant submitted factual and medical information including a
copy of her job description, reports by Dr. Michael W. Cantrell, a treating Board-certified
orthopedic surgeon and progress notes for 2003 to 2007 and February 1, 2007 MRI scan. On
March 22, 2007 Dr. Cantrell diagnosed a partial thickness right shoulder rotator cuff tear based
upon an MRI scan. He reported that appellant underwent arthroscopic surgery with
decompression for her right shoulder on March 6, 2007. Dr. Cantrell noted appellant’s concern
that her shoulder condition was a result of her repetitive work duties which he “certainly cannot
disagree with this.”
In a letter dated May 16, 2007, the Office informed appellant that the evidence of record
was insufficient to support her claim. It advised her to submit additional medical and factual
evidence.
On May 25, 2007 Dr. Cantrell stated that he had been treating appellant for a right
shoulder partial thickness rotator cuff tear since February 22, 2007. He noted that appellant was
employed as a mail carrier which required “using her right upper extremity with repetitive
abduction and elevation of the shoulder and it is certainly consistent with her symptoms and
pathology that this could be the source of her problem.”
By decision dated June 20, 2007, the Office denied appellant’s claim. It found that the
medical evidence was insufficient to establish that her right shoulder condition was employment
related.
On July 16, 2007 appellant requested a review of the written record by an Office hearing
representative. She resubmitted her July 16, 2007 statement; a July 12, 2007 statement by
Judith O. Walker, her mother; and July 12, 2007 statement by Johnny R. Anderson, a companion
and colleague.
By decision dated November 7, 2008, the Office hearing representative affirmed the
June 20, 2007 decision.
On December 9, 2007 appellant requested reconsideration and submitted copies of a rural
route evaluation. She stated that she stopped bowling more than seven years prior.
By nonmerit decision dated January 4, 2008, the Office denied her request for
reconsideration.
LEGAL PRECEDENT -- ISSUE 1
An occupational disease or illness means a condition produced in the work environment
over a period longer than a single workday or shift by such factors as systemic infection,

2

continued or repeated stress or strain or other continued or repeated conditions or factors of the
work environment.1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) medical evidence establishing the
presence or existence of a condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the condition; and
(3) medical evidence establishing that the employment factors identified by the employee were
the proximate cause of the condition or illness, for which compensation is claimed or stated
differently, medical evidence establishing that the diagnosed condition is causally related to the
employment factors identified by the employee.2
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical evidence.3 Rationalized medical evidence is medical
evidence which includes a physician’s rationalized medical opinion on the issue of whether there
is a causal relationship between an employee’s diagnosed conditions and the implicated
employment factors.4 The opinion of the physician must be based on a complete factual and
medical background of the employee, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
conditions and the specific employment factors identified by the employee.5
ANALYSIS -- ISSUE 1
Appellant filed an occupational disease claim alleging that she sustained a right shoulder
condition as a result of repetitive motion associated with the delivery of mail. The employing
establishment did not contest that she performed these duties. However, it controverted the
claim on the basis that her condition was a result of her bowling activities. Appellant stated that
she stopped bowling more than seven years ago. The issue is whether the medical evidence
establishes a causal relationship between her right rotator cuff tear and the accepted employment
factors. The Office accepted that appellant performed the duties of a rural letter carrier.
However, it found that the medical evidence did not establish a medical condition arising from
these employment factors.
Appellant submitted a March 22, 2007 report by Dr. Cantrell, who diagnosed a partial
thickness right shoulder rotator cuff tear based upon an MRI scan. Dr. Cantrell stated that he
could “not disagree” with appellant’s belief that her shoulder condition was due to her repetitive
work duties. On May 25, 2007 he opined that appellant’s mail carrier duties, which required
1

Donald W. Wenzel, 56 ECAB 390 (2005); William Taylor, 50 ECAB 234 (1999); see also 20 C.F.R. § 10.5(q).

2

D.D., 57 ECAB 734 (2006); Donna L. Mims, 53 ECAB 730 (2002).

3

David Apgar, 57 ECAB 137 (2005).

4

G.G., 58 ECAB ___ (Docket No. 06-1564, issued February 27, 2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).
5

J.M., 58 ECAB ___ (Docket No. 06-2094, issued January 30, 2007); Roy L. Humphrey, 57 ECAB 238 (2005).

3

repetitive elevation and abduction of her shoulder, was “certainly consistent with her symptoms
and pathology that this could be the source of her problem.” Dr. Cantrell’s opinion on causal
relationship is not based on a reasonable degree of medical certainty. He premised his
conclusion on appellant’s belief of a causal relationship. Dr. Cantrell’s statement is speculative.
The Board has held that medical opinions which are speculative or equivocal in character are of
diminished probative value.6 Dr. Cantrell’s opinion is insufficient to establish that appellant’s
right shoulder rotator cuff tear was causally related to factors of her employment.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.7 Causal relationship must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence.8
As there is no rationalized medical evidence of record establishing that appellant’s right
shoulder rotator cuff tear was caused or aggravated by her employment duties as alleged, the
Board finds that she has failed to meet her burden of proof.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128 of the Federal
Employees’ Compensation Act,9 the Office’s regulation provide that a claimant must: (1) show
that the Office erroneously applied or interpreted a specific point of law; (2) advance a relevant
legal argument not previously considered by the Office; or (3) constitute relevant and pertinent
new evidence not previously considered by the Office.10 To be entitled to a merit review of an
Office 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.11 When a claimant fails to meet one of
the above standards, the Office will deny the application for reconsideration without reopening
the case for review of the merits.12

6

L.R. (E.R.), 58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007); Cecelia M. Corley, 56 ECAB
662 (2005).
7

Kathryn E. Demarsh, 56 ECAB 677 (2005).

8

Frankie A. Farinacci, 56 ECAB 723 (2005).

9

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, [t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
10

20 C.F.R. § 10.606(b)(1)-(2). See Susan A. Filkins, 57 ECAB 630 (2006).

11

Id. at § 10.607(a).

12

20 C.F.R. § 10.608(b). See Tina M. Parrelli-Ball, 57 ECAB 598 (2006) (when an application for review of the
merits of a claim does not meet at least one of the three regulatory requirements the Office will deny the application
for review without reviewing the merits of the claim).

4

ANALYSIS -- ISSUE 2
Appellant’s December 9, 2007 request for reconsideration did not allege or demonstrate
that the Office erroneously applied or interpreted a specific point of law. She did not advance a
relevant legal argument not previously considered by the Office. Consequently, appellant is not
entitled to a review of the merits of her claim based on the first and second above-noted
requirements under section 10.606(b)(2).13
In support of her reconsideration request, appellant submitted copies of a rural route
evaluation and noted that she had stopped her bowling activities. However, the underlying issue
in this case is medical in nature. The Office denied her occupational disease claim on the
grounds that the medical evidence was insufficient to establish that her right rotator cuff tear was
employment related. The copies of a rural route evaluation are not relevant to this issue.
Moreover, the fact that appellant stopped bowling is not relevant to the issue of causal
relationship absent medical evidence from a physician explaining how this pertains to her claim.
Thus, she is not entitled to a review of the merits of her claim based on the third requirement
under section 10.606(b)(2).14
Appellant did not establish that the Office erroneously applied or interpreted a point of
law; advance a legal argument not previously considered by the Office; or constitute relevant and
pertinent new evidence not previously considered by the Office.15 Therefore, the Board finds
that the Office properly denied her request for reconsideration without further merit review.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained a right rotator cuff tear causally related to her employment and that the Office properly
denied appellant’s requests for reconsideration without conducting a merit review of the claim.

13

20 C.F.R. § 10.606(b)(2)(i), (ii).

14

20 C.F.R. § 10.606(b)(2)(iii).

15

20 C.F.R. § 10.606(b).

5

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 4, 2008 and November 7, 2007 are affirmed.
Issued: November 21, 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

6