United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

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

Docket No. 09-1924
Issued: July 7, 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 July 22, 2009 appellant filed a timely appeal from the June 25, 2009 decision of the
Office of Workers’ Compensation Programs denying her claim for wage-loss compensation.
Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant met her burden of proof to establish intermittent disability
commencing November 14 through 26, 2008.
FACTUAL HISTORY
On June 10, 2008 appellant, then a 45-year-old clerk, filed an occupational disease claim
alleging that she developed carpal tunnel syndrome as a result of her employment activities. Her
claim was accepted for right forearm strain and right wrist tendinitis. The Office paid
compensation for total disability until appellant returned to work six hours a day with no
restrictions on September 19, 2008. It paid wage-loss compensation for two hours a day
beginning September 19, 2008.

On October 21, 2008 appellant’s treating physician, Dr. A. Diane Obayan, diagnosed
right wrist tendinitis. She stated that appellant could work six hours a day; however, appellant
was restricted from repetitive lifting above 15 pounds and was advised to limit repetitive wrist
movements by 50 percent.
On November 5, 2008 a nurse at the employing establishment health unit stated that
appellant was fit for limited duty until December 5, 2008. Restrictions included no pushing or
pulling more than 10 pounds, limited use of the right arm and hand and reducing repetitive
movement of the right arm and hand by 50 percent.
On November 5, 2008 Dr. Obayan noted that appellant had recently returned to work
without restrictions. She stated that appellant had sustained a repetitive stress injury to the
muscle groups in the right upper extremity as a result of performing most of her duties using
only the right arm. Appellant’s symptoms included recurrence of pain in the forearm and new
pain complaints in the lateral aspect of the wrist with discomfort in her shoulder. Examination
revealed tenderness at the lateral epicondyle. Resistive testing of the wrist extensor muscles
together with passive stretch of the same muscle group reproduced symptoms of pain at the
elbow with radiation into the forearm. Appellant had a positive Finkelstein’s test confirming the
presence of tendinitis in the abductor pollicis longus and extensor pollicis brevis tendons. She
also had limited elevation of the right shoulder. Internal and external rotation movements were
close to normal. Rotator cuff muscle strength was 4/5. Dr. Obayan diagnosed extensor
tendinitis; right de Quervain’s tenosynovitis; right lateral epicondylitis; and right shoulder rotator
cuff tendinitis. She recommended that restrictions be reinstated to include limiting use of the
right arm, reducing repetitive movements of the wrist and arm by 50 percent on the right side and
lifting to no more than 10 to 15 pounds. Dr. Obayan also recommended that appellant be placed
in a position where she could perform most of her job duties with the left arm.
Appellant stopped working on November 14, 2008. She filed a notice of recurrence of
disability on December 2, 2008 alleging intermittent disability commencing November 13, 2008.
In a report dated November 19, 2008, Dr. Obayan stated that appellant developed
significant neck, mid and low back pain due to sitting on a stool and casing mail after she
returned to work in her formal position. The pain progressively worsened until November 13,
2008 when her back allegedly locked up on her. Appellant was sent to the employer’s clinic and
was taken off work. On examination, cervical flexion and left rotation movements were reduced
and resulted in soft tissue neck pain. Spurling’s maneuver was negative for return to class signs.
Strength was 4/5 on the right side due to pain. Sensation was grossly intact. Reflexes were 2+,
brisk but symmetrical. Examination of the right shoulder revealed limited elevation and rotation
movements. Rotator cuff muscle strength was 4+/5. Examination of the back revealed forward
flexion of 90, with increased pain in her lumbosacral spine. Side flexion movements were close
to normal. Straight leg raise was negative. Motor strength was 5/5 in the legs. Sensation was
grossly intact. Reflexes were brisk but symmetrical. There was palpable tightness of muscles in
the cervical spine, interscapular area and lumbosacral spine. Dr. Obayan diagnosed cervical
dorsal lumbar myofascial pain due to work-related activities; extensor tendinitis; right
de Quervain’s tenosynovitis; right lateral epicondylitis; and right shoulder rotator cuff tendinitis.
She stated that appellant could continue to work with her previous restrictions and emphasized

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that performance of repetitive activities put significant stress on appellant’s musculoskeletal
system.
The Office referred appellant to Dr. B.S. Bohra, an orthopedic surgeon, for a second
opinion examination as to whether she had residuals of the accepted right forearm strain and
wrist tendinitis. In a November 20, 2008 report, Dr. Bohra reviewed the medical record and
history of injury. On examination, the cervical spine revealed no spasms or tenderness of the
trapezius or tenderness and a full range of motion. Axial compression with the cervical spine in
hyperextension and right rotation caused no radiculopathy to the right upper limb. Examination
of the right shoulder showed no evidence of any atrophy of the scapular muscles or the deltoid
and there was no tenderness of the acromioclavicular joint. Active abduction of the right
shoulder was 120 degrees. The range of active movements of the right and the left shoulders
were equal. Forward elevation was 120 degrees. Extension to the right and left was 30 degrees.
Internal and external rotation was equal on both sides and without any pain. Impingement test
was negative. Apprehension test was negative. Examination of the right elbow region showed
no effusion and no swelling. Range of motion was 0 to 130 degrees. There was no evidence of
any localized tenderness in the lateral epicondyle and medial epicondyle of the humerus or in the
distal supracondylar ridge of the humerus on the lateral side or the medial side. Pronation and
supination of the right elbow with elbow flexion of 90 degrees showed identical range of
movements of the right and the left elbow. There was no evidence of any pain during resisted
pronation or supination of the right forearm with the elbow in 90 degrees of flexion. There was
no tenderness in the region of the superior radial ulnar joint or the head of the radius or of any
tendinitis of the triceps or the biceps tendon. Examination of the right wrist showed no evidence
of any tenderness or acute swelling in relation to the tendons in the extensor compartment of the
wrist or the flexor carpi radialis or the flexor carpi ulnaris tendons. There was no evidence of
tenosynovitis in any of the tendons of the wrist on the right side. Range of motion was normal.
Watson test was negative. There was no evidence of any localized tenderness of the carpal
bones. Tinel’s sign was negative. On compression test for the median nerve at the wrist she
complained of pain in the first web space and the right forearm and the arm region which
indicated a negative compression test for the carpal tunnel. Dr. Bohra noted that an
electromyogram of the right upper extremity was negative for any cervical radiculopathy or
carpal tunnel syndrome. He found no evidence of any disease process that required work
limitations. Dr. Bohra advised that appellant was capable of performing her date-of-injury
position and that no further treatment was indicated. He did not address the issue of her
disability for work during the period in question.
On December 10, 2008 Dr. Obayan recommended continuing work restrictions. She did
not address appellant’s ability to work during the period in question.
By decision dated January 9, 2009, the Office denied appellant’s claim. It noted that it
paid her two hours a day from November 14 to 26, 2008. The medical evidence was found
insufficient to establish disability for the remaining time claimed.

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Appellant submitted a work slip dated November 26, 2008 from Dr. Obayan. The form
indicated that she was seen in her physician’s office that date and should engage in “no activity
after injection.”1
On January 14, 2009 appellant requested a telephonic hearing. She submitted a
January 7, 2009 slip from Dr. Obayan reflecting that she was disabled from January 2
through 7, 2009. On January 7, 2009 Dr. Obayan opined that appellant could return to work with
restrictions.
In statements dated December 8 and 15, 2008, appellant advised that she worked until
November 13, 2008, when she was sent home by the employing establishment medical unit. Her
arm had become swollen and she had experienced pain in her shoulder and back. Appellant
stated that her physician restricted her to six hours a day on November 19, 2008. She contended
that she provided adequate documentation to support disability for the period claimed. The
record contains a notification of absence dated November 13, 2008, which contains appellant’s
statement that she was sent home from work by “medical” on that date.
On January 27, 2009 the Office asked Dr. Obayan to provide a rationalized opinion
explaining how the conditions diagnosed on November 19, 2008, including cervical dorsal
lumbar myofascial pain due to work-related activities; extensor tendinitis; right de Quervain’s
tenosynovitis; right lateral epicondylitis; and right shoulder rotator cuff tendinitis, were causally
related to appellant’s accepted forearm strain and wrist tendinitis. Dr. Obayan was provided with
a copy of Dr. Bohra’s November 20, 2008 report for review and comment.
In a November 21, 2008 disability slip, Dr. Anthony F. Harris, a treating physician, noted
that appellant was totally disabled from November 13 through 26, 2008. He stated that she
would be physically able to return to work with restrictions. In a December 8, 2008 disability
certificate, Dr. Harris reiterated his statement that appellant was disabled from November 13
through 26, 2008. He diagnosed tendinitis of the right wrist.2
At a May 11, 2009 telephonic hearing, appellant testified that while engaging in
repetitive work activities on November 13, 2008, her right arm and shoulder began burning and
tingling and she became unable to work. She sought treatment from Dr. Raymond Edison, a
treating physician, who instructed her to stop work in order to avoid aggravating her shoulder
condition. Appellant and her representative stated that they would provide a copy of
Dr. Edison’s report concerning the November 13 or 14, 2008 visit. The hearing representative

1

The record contains additional reports from Dr. Obayan, which do not address the period in question.

2

The Office found a conflict in medical opinion as to whether appellant had continuing residuals due to her
accepted employment injury. Appellant was referred to Dr. Michael Kosinski, a Board-certified orthopedic surgeon,
in order to resolve the conflict. In a report dated June 8, 2009, Dr. Kosinski stated that she had lateral epicondylitis,
right elbow. He found no clinical evidence of carpal tunnel syndrome or cubital tunnel syndrome bilaterally.
Dr. Kosinski noted that, by history, she also had extensor tenosynovitis of the wrist and possibly intersection
syndrome. He did not address the issue of appellant’s disability from November 14 through 26, 2008.

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advised that the record would be held open for 30 days for the submission of additional
evidence.3
By decision dated June 25, 2009, the hearing representative affirmed the January 9, 2009
decision on the grounds that the medical evidence of record was insufficient to establish that
appellant was disabled for the hours not accepted as employment related.
LEGAL PRECEDENT
For each period of disability claimed, appellant has the burden of proving by the
preponderance of the reliable, probative and substantial evidence that she is disabled for work as
a result of his employment injury.4 The Board will not require the Office to pay compensation in
the absence of medical evidence directly addressing the particular period of disability for which
compensation is sought. To do so would essentially allow employees to self-certify their
disability and entitlement to compensation.5
Generally, findings on examination are needed to justify a physician’s opinion that an
employee is disabled for work. Appellant’s burden of proving that she was disabled on
particular dates requires that she furnish medical evidence from a physician who, on the basis of
a complete and accurate factual and medical history, concludes that the disabling condition is
causally related to the employment injury and supports that conclusion with medical reasoning.6
Where no such rationale is present, the medical evidence is of diminished probative value.7
A 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.8 A person who claims a recurrence of disability due to an accepted
employment-related injury has the burden of establishing by the weight of the substantial,
reliable and probative evidence that the disability for which she claims compensation is causally
related to the accepted injury. This burden of proof requires that an employee furnish medical
evidence from a physician who, on the basis of a complete and accurate factual and medical
history, concludes that the disabling condition is causally related to the employment injury and
supports that conclusion with sound medical reasoning.9 Where no such rationale is present,
medical evidence is of diminished probative value.10 To establish that a claimed recurrence of
3

The Board notes that the record does not contain a report from Dr. Edison.

4

Fereidoon Kharabi, 52 ECAB 291 (2001); see also David H. Goss, 32 ECAB 24 (1980).

5

Fereidoon Kharabi, supra note 4.

6

Ronald A. Eldridge, 53 ECAB 218 (2001).

7

Mary A. Ceglia, 55 ECAB 626 (2004).

8

20 C.F.R. § 10.5(x).

9

Supra note 7.

10

See Ronald C. Hand, 49 ECAB 113 (1957); Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

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the condition was caused by the accepted injury, medical evidence of bridging symptoms
between the present condition and the accepted injury must support the physician’s conclusion of
a causal relationship.11
ANALYSIS
Appellant claimed wage-loss compensation for disability from November 14 to 28, 2008
due to her accepted occupational injury. The Board finds, however, that she failed to submit
sufficient medical evidence to establish her disability for this period other than the two hours a
day accepted by the Office.
Dr. Obayan’s reports do not establish that appellant was disabled during the claimed
period. On November 5, 2008 she noted that appellant had recently returned to work without
restrictions and that appellant had sustained a repetitive stress injury to most muscle groups in
the right upper extremity as a result of her duties using only the right arm. Appellant’s
symptoms included recurrence of pain in the forearm, development of new pain problems in the
lateral aspect of the wrist and more discomfort in her shoulder. Dr. Obayan diagnosed extensor
tendinitis; right de Quervain’s tenosynovitis, right lateral epicondylitis and right shoulder rotator
cuff tendinitis. She did not, however, address appellant’s disability for the period claimed or
how it related to the conditions accepted by the Office. Rather, Dr. Obayan opined that appellant
could work with restrictions, including limiting use of the right arm, reducing repetitive
movements of the wrist and arm by 50 percent on the right side and lifting no more than 10 to 15
pounds. On November 19, 2008 she stated that appellant developed significant neck, mid and
low back pain while sitting on a stool and casing mail. Dr. Obayan again opined that appellant
could continue to work within her restrictions. While she emphasized that performance of
repetitive activities put significant stress on appellant’s musculoskeletal system, she did not
specifically address whether appellant was disabled from work, as required.12 In a November 26,
2008 work slip, Dr. Obayan advised that appellant was treated on that date and that she should
engage in “no activity after injection.” The Board notes that appellant may be entitled to
compensation for time missed from work for a medical appointment; however, the November 26,
2008 work slip does not contain any opinion that she was totally disabled from work due to her
accepted injury. Therefore, it is of limited probative value and is insufficient to establish
appellant’s claim. The remaining reports from Dr. Obayan do not address the claimed period of
disability and are of diminished probative value.
In a November 20, 2008 report, Dr. Bohra, a second opinion physician, found no
evidence of any disease process that required any work limitations. He opined that appellant was
capable of performing the duties of her date-of-injury position and that no further treatment was
warranted. Although Dr. Bohra did not specifically address her claimed disability for work
during the period in question, his report supports her general ability to work rather than her
disability.13
11

C.W., 60 ECAB ___ (Docket No. 07-1816, issued January 16, 2009).

12

See supra note 3 and accompanying text.

13

The Board notes that Dr. Bohra’s examination occurred during the period of appellant’s claimed disability.

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In November 21 and December 8, 2008 disability slips, Dr. Harris stated that appellant
was totally disabled from November 13 through 26, 2008. He did not, however, provide a
history of injury, examination findings or any explanation as to how her disabling condition was
causally related to her accepted injury. Therefore, Dr. Harris’ opinion is of diminished probative
value.14
Appellant submitted reports from a nurse at the employer’s health unit. A nurse is not
defined as “physician” under the Federal Employees’ Compensation Act. These reports do not
constitute probative medical opinion evidence.15 The remaining medical evidence of record,
which includes test results, which does not contain an opinion on causal relationship, is
insufficient to establish appellant’s compensation claim.
The evidence of record also fails to establish that appellant sustained a recurrence of
disability. A recurrence of disability means an inability to work after an employee has returned
to work, caused by a spontaneous change in a medical condition resulting from a previous injury
or illness without a new or intervening injury.16 To establish that a claimed recurrence of a
condition was caused by the accepted injury, medical evidence of bridging symptoms between
the present condition and the accepted injury must support the physician’s conclusion of causal
relationship.17 As noted, appellant has alleged that she sustained a repetitive stress injury to the
right upper extremity as a result of performing her employment duties after returning to work
without restrictions. She and her physician have asserted that her work activities exacerbated her
prior right upper extremity condition. As appellant submitted no medical evidence that
established a spontaneous change in her medical condition resulting from the accepted injury,
she did not meet her burden of proof to establish that she sustained a recurrence of disability.
Appellant had the burden of proving by the preponderance of the reliable, probative and
substantial evidence that she was disabled for work as a result of her employment injury. For the
reasons stated above, the Board finds that appellant failed to sustain her burden of proof to
establish that she was totally disabled due to her accepted employment condition during the
claimed period.18
On appeal, counsel contends that the hearing representative’s June 25, 2009 decision was
contrary to fact and law. For reasons stated, the Board finds that appellant did not submit
sufficient medical evidence to support her claim.

14

Supra note 7.

15

Section 8101(2) of the Act provides as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by State law.”
16

See supra note 4 and accompanying text.

17

C.W., supra note 11.

18

See Fereidoon Kharabi, supra note 4.

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CONCLUSION
The Board finds that appellant has not established intermittent disability from
November 14, 2008 other than the two hours a day accepted by the Office to
November 26, 2008.
ORDER
IT IS HEREBY ORDERED THAT the June 25, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 7, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0705
Issued: September 9, 2016

Case Submitted on the Record

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

JURISDICTION
On February 26, 2016 appellant, through counsel, filed a timely appeal from a
September 16, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

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
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the September 16, 2015 decision. Since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt,
57 ECAB 126 (2005).

ISSUE
The issue is whether appellant has established that he sustained more than 13 percent
permanent impairment of the right lower extremity, for which he received a schedule award.
FACTUAL HISTORY
On December 29, 2010 appellant, then a 49-year-old carrier technician, filed a traumatic
injury claim (Form CA-1) alleging that on December 27, 2010 he strained his right ankle at
work. He stopped work on January 4, 2011 and returned on January 5, 2011. OWCP accepted
appellant’s claim for right ankle sprain and localized primary osteoarthritis of the right ankle and
foot.
Appellant stopped work on February 25, 2011 and filed claims for disability
compensation (Forms CA-7). OWCP paid disability compensation through April 26, 2011 when
he was authorized to return to modified duty. Appellant worked part of his shift and filed a
recurrence claim (Form CA-2a) on May 10, 2011 alleging that on April 28, 2011 he sustained a
recurrence of the December 27, 2010 employment injury. OWCP accepted his recurrence claim
and paid disability compensation.
On June 16, 2011 appellant underwent authorized surgery for right ankle arthrodesis and
calcaneal bone graft joint fusion by Dr. Steven M. Raikin, a Board-certified orthopedic surgeon.
Dr. Raikin continued to provide postoperative treatment for appellant. In a July 29, 2011
report, he related that appellant had been nonweightbearing in his short leg cast approximately
six weeks from his surgery. Upon examination, Dr. Raikin observed clean, dry, and intact
incisions and minimally soft tissue swelling. He reported that x-rays of the ankle taken and
reviewed that day demonstrated correct alignment and progressive healing of the ankle fusion.
In a September 12, 2011 note, Dr. Raikin observed no range of motion at the tibiotalar joint and
range of motion approximately 5 degrees dorsiflexion to 10 degrees plantar flexion of the midfoot. He recommended that appellant discontinue use of the boot.
In a January 20, 2012 report, Dr. Raikin conducted a follow-up examination with
appellant. He related that appellant continued to have complaints of numbness and pain along
the plantar aspect of his foot, which worsened with ambulation. Dr. Raikin reported that
appellant’s ankle fusion was completely solid. He reviewed appellant’s functional capacity
evaluation and opined that appellant was capable of doing medium level work. Dr. Raikin
related that electromyography (EMG) testing revealed chronic L5 and S1 radiculopathy with
superimposed tarsal tunnel and peroneal neuropathy. He indicated that appellant had reached
maximum medical improvement from the surgery itself.
On September 28, 2012 OWCP placed appellant on the periodic rolls.

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On August 6, 2014 appellant returned to full-time limited duty after undergoing
vocational rehabilitation.4
On November 20, 2014 appellant filed a claim for a schedule award (Form CA-7).
In a January 5, 2015 note, Dr. David Weiss, an osteopath who specializes in pain
medicine, indicated that appellant had been under his care since December 30, 2014.
In a decision dated March 2, 2015, OWCP denied appellant’s schedule award claim on
the basis of insufficient medical evidence to establish that he sustained any permanent
impairment to the right lower extremity causally related to the December 27, 2010 employment
injury.
On March 5, 2015 OWCP received appellant’s request, through counsel, for
reconsideration of the March 2, 2015 decision.
Appellant submitted a December 30, 2014 impairment rating report by Dr. Nicholas
Diamond, an osteopath who specializes in physical medicine and rehabilitation. Dr. Diamond
related that on December 27, 2010 appellant sustained a work-related injury to his right ankle
when he slipped while walking on ice at work. He reviewed the medical treatment appellant
received, including various diagnostic reports. Dr. Diamond noted that appellant complained of
right foot and ankle pain, which stiffened daily and described appellant’s limitations with
activities of daily living. He explained that the lower extremity activity scale (LEAS) revealed
an impairment level of 10/18, which equaled to a disability of 45 percent involving the right
lower extremity. Upon examination, Dr. Diamond observed medial malleolar tenderness, lateral
malleolar tenderness, anterior talofibular ligament tenderness, subtalar joint tenderness, and
posterior tibial tenderness. He provided range of motion of the ankle findings of dorsiflexion of
10/15 degrees, plantar flexion 30/55 degrees, inversion of 10/35 degrees with pain, and eversion
of 0/35 degrees with pain. Dr. Diamond indicated that range of motion testing was performed
three times. Sensory examination did not reveal any definitive sensory loss involving the right or
left lower extremities. Deep tendon reflexes were +2 bilaterally. Dr. Diamond diagnosed
post-traumatic right ankle strain and sprain, post-traumatic right ankle arthritis, post-traumatic
tarsal tunnel syndrome and peroneal neuropathy per EMG and nerve conduction velocity, and
status post right ankle fusion arthrodesis, right calcaneal bone graft.
Utilizing the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides), Dr. Diamond referenced Table 16-2, page 507, and
opined that appellant was a class 4 for right ankle arthrodesis in the neutral position, which was a
default 60 percent impairment. He noted that appellant had grade modifiers of 3 for functional
4

On September 30, 2014 OWCP issued a preliminary determination of an overpayment in the amount of
$1,936.34 for the period August 7 to 23, 2014, because appellant returned to work, but continued to receive
compensation for total disability. It found that he was at fault in the creation of the overpayment. On October 17,
2014 OWCP received appellant’s request, through counsel, for a prerecoupment hearing, which was held on
May 14, 2015. In a decision dated July 22, 2015, an OWCP hearing representative affirmed the fact and amount of
the overpayment and the finding of fault. As appellant did not file an appeal to the Board within 180 days of the
July 22, 2015 overpayment decision, the overpayment decision is not before the Board. See supra note 2 and 20
C.F.R. §§ 501.2(c) and 501.3.

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history, due to a LEAS score of 45 percent. Dr. Diamond reported grade modifiers of 4 for
physical examination and 4 for clinical studies. He applied the net adjustment formula for a total
of -1, which resulted in 56 percent permanent impairment of the right lower extremity.
Dr. Diamond opined that appellant reached maximum medical improvement on
December 30, 2014.
In a May 18, 2015 report, Dr. Arnold T. Berman, a Board-certified orthopedic surgeon
and OWCP medical adviser, reviewed Dr. Diamond’s December 30, 2014 report and noted that
Dr. Diamond should have not considered appellant’s June 16, 2011 surgery in his impairment
rating. He explained that a January 12, 2011 magnetic resonance imaging scan of the right ankle
revealed advanced osteoarthritic changes and tear of the peroneous brevis tendon, which would
have required surgery regardless of the December 27, 2010 employment injury. Accordingly,
Dr. Berman did not agree with Dr. Diamond’s impairment rating of 56 percent. Utilizing Table
16-2, page 501, of the A.M.A., Guides, Dr. Berman determined that appellant was a class 1 for
strain tendinitis or history ruptured tendon, specifically the peroneal tendon injury alone without
arthrodesis, and moderate motion deficit and/or significant weakness, which was a default value
of 10 percent impairment. Applying Dr. Diamond’s examination findings, Dr. Berman opined
that appellant had grade modifiers of 3 for functional history, 4 for physical examination, and 4
for clinical studies. He applied the net adjustment formula for a total of +2, which equaled 13
percent impairment. Dr. Berman concluded that appellant had 13 percent permanent impairment
of the right lower extremity with the date of maximum medical improvement of
December 30, 2014.
In a decision dated June 3, 2015, OWCP vacated the March 2, 2015 denial decision and
granted appellant a schedule award for 13 percent permanent impairment for his right lower
extremity based on Dr. Berman’s May 18, 2015 medical report. The award ran for 37.44 weeks
from December 30, 2014 to May 30, 2015.
On June 30, 2015 OWCP received appellant’s request, through counsel, for
reconsideration. Counsel contended that Dr. Berman should have included appellant’s right
ankle arthrodesis with calcaneal bone graft surgery in his impairment rating calculations since
appellant’s surgery was authorized by OWCP. He also noted that even if appellant’s right ankle
condition was preexisting, schedule award calculations should include preexisting impairments.
On August 31, 2015 OWCP referred appellant’s schedule award claim back to
Dr. Berman for an impairment rating. It instructed Dr. Berman to review the attached statement
of accepted facts (SOAF) and to include the authorized June 16, 2015 surgery as part of his
impairment rating.
In a September 7, 2015 supplemental report, Dr. Berman reviewed the medical records
and SOAF and noted that appellant underwent approved surgery of fusion of the right ankle joint
for localized primary osteoarthritis. He noted that Dr. Raikin placed appellant on maximum
medical improvement from the surgery on January 20, 2012. Applying Table 16-2, page 508,
Dr. Berman opined that appellant was a class 1 for ankle fusion in the neutral position, which
was a default value of 10 percent. He indicated grade modifiers of 2 for functional history due to
a limp, 3 for physical examination based on severe reduction of range of motion, and 3 for
clinical studies. After applying the net adjustment formula, which resulted in +2, Dr. Berman

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concluded that appellant had 13 percent permanent impairment of the right lower extremity. He
explained that he disagreed with Dr. Diamond’s impairment rating because 56 percent
impairment would represent severe malalignment, plantar flexion 29 degrees, varus position 29
degrees, valgus position at 29 degrees, internal rotation at 30 degrees, and external rotation at 39
degrees. Dr. Berman noted that according to Dr. Raikin’s January 20, 2012 postoperative
examination there was no malalignment to warrant an impairment rating greater than 13 percent.
By decision dated September 16, 2015, OWCP affirmed the June 3, 2015 schedule award
decision, based on Dr. Berman’s May 18 and September 7, 2015 reports.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his claim, including that he sustained an injury in the performance of duty
as alleged and that an employment injury contributed to the permanent impairment for which
schedule award compensation is alleged.5 Where a claimant has previously received a schedule
award and subsequently claims an additional schedule award due to a worsening of his condition,
the claimant bears the burden of proof to establish a greater impairment causally related to the
employment injury.6
The schedule award provision of FECA7 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by OWCP as the appropriate standards for evaluating schedule
losses.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World health Organization’s International Classification of Functioning, Disability
and Health.9 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition is Class of Diagnosis (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE), and Clinical Studies
(GMCS). The Net Adjustment Formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS -

5

See A.M., Docket No. 13-0964 (issued November 25, 2013).

6

Edward W. Spohr, 54 ECAB 806 (2003).

7

Supra note 2.

8

20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

9

A.M.A., Guides (6th ed. 2009), p. 3, section 1.3.

5

CDX).10 Evaluators are directed to provide reasons for their impairment rating choices,
including the choices of diagnoses from regional grids and calculations of modifier scores.11
In determining impairment for the lower extremities, an evaluator must establish the
appropriate diagnosis for each part of the lower extremity to be rated. With respect to the ankle,
the relevant portion of the leg (foot) for the present case, reference is made to Table 16-2 (Foot and
Ankle Regional Grid) beginning on page 501.12 After the class of diagnosis is determined from
the Foot and Ankle Regional Grid (including identification of a default grade value), the Net
Adjustment Formula is applied using the grade modifier for functional history, grade modifier
for physical examination, and grade modifier for clinical studies.13
ANALYSIS
OWCP accepted appellant’s claim for right ankle sprain and localized primary
osteoarthritis of the right ankle and foot. It authorized surgery for right ankle arthrodesis and
calcaneal bone graft joint fusion on June 16, 2011. Appellant filed a claim for a schedule award
on November 20, 2014. OWCP granted him a schedule award of 13 percent permanent
impairment for his right lower extremity based on the report of Dr. Berman, OWCP’s medical
adviser. The Board has evaluated the evidence and finds that appellant has not established
permanent impairment greater than 13 percent, for which he previously received a schedule
award.
In support of his claim, appellant provided a December 30, 2014 impairment rating by
Dr. Diamond. Dr. Diamond reviewed appellant’s history and the medical treatment he received.
He provided examination findings and diagnosed post-traumatic right ankle strain and arthritis,
post-traumatic tarsal tunnel syndrome and peroneal neuropathy, and status-post right ankle
(fusion) arthrodesis. Dr. Diamond noted that appellant had reached maximum medical
improvement on that date. He referenced Table 16-2, page 507, of the A.M.A., Guides and
classified appellant’s impairment as a class 4, default value of 60 percent impairment, for right
ankle arthrodesis in neutral position. Dr. Diamond assigned a grade modifier of 3 for functional
history, 4 for physical examination, and 4 for clinical studies. Applying the net adjustment
formula, he calculated an adjustment of -1, which resulted in an impairment rating of 56 percent
for the right lower extremity.
Dr. Berman, an OWCP medical adviser, reviewed Dr. Diamond’s impairment rating and
disagreed with his assessment. He noted that under Table 16-2, a schedule award of 56 percent
for ankle fusion would represent severe malalignment, which appellant did not demonstrate. The
Board also notes that Dr. Diamond assigned class 4 diagnosis impairment due to arthrodesis in a
neutral position. However, according to Table 16-2, a class 4 class of diagnosis for neutral
position is assigned for pan-talar arthrodesis, not ankle arthrodesis. As there is no information in
10

Id. at 494-531.

11

Id. at 23-28; see also R.V., Docket No. 10-1827 (issued April 1, 2011).

12

Id. at 501-07.

13

Id. at 515-22.

6

the record to support that appellant underwent pan-talar arthrodesis, the Board finds that
Dr. Diamond’s impairment rating fails to establish that appellant sustained permanent
impairment greater than 13 percent for the right lower extremity.14
OWCP referred appellant to Dr. Berman, an OWCP medical adviser. In a September 7,
2015 supplemental report, Dr. Berman reviewed the medical record and opined that appellant
had 13 percent impairment of his right lower extremity. He utilized Table 16-2, page 508, and
assigned class 1 impairment for ankle arthrodesis (neutral position), which was a default value of
10 percent. Dr. Berman reported a grade modifier of 2 for functional history due to a limp. He
also assigned grade modifiers of 3 for physical examination due to severe reduction in range of
motion and 3 for clinical studies. After applying these grade modifiers to the net adjustment
formula, he concluded that appellant had 13 percent right lower extremity permanent
impairment.
The Board finds that the weight of the medical evidence rests with the opinion of
Dr. Berman, OWCP’s medical adviser, as he provided the only impairment rating that properly
applied the sixth edition of the A.M.A., Guides. The Board notes that Dr. Berman properly
reviewed the medical record and evaluated appellant’s right lower extremity in accordance with
the A.M.A., Guides. Dr. Berman appropriately applied the sixth edition of the A.M.A., Guides
in determining that appellant had 13 percent permanent impairment of the right lower extremity.
The record does not contain any current medical evidence in conformance with the A.M.A.,
Guides that shows greater impairment.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he sustained more than 13 percent
permanent impairment of the right lower extremity, for which he previously received a schedule
award.

14

See T.C., Docket No. 14-2023 (issued June 11, 2015).

7

ORDER
IT IS HEREBY ORDERED THAT the September 16, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 9, 2016
Washington, DC

Patricia H. Fitzgerald, Deputy 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
________________________________________
B.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
_________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 14-110
Issued: April 22, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On October 18, 2013 appellant filed an application for review of an Office of Workers’
Compensation Programs’ (OWCP) decision dated September 18, 2013, which denied his
reconsideration request without reviewing the merits of the claim.1
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. In the case of William A. Couch,2 the Board held that
when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a
claimant and received by it before the final decision is issued. In this case, in a decision dated
June 7, 2013, OWCP denied modification of the December 11, 2012 decision, which denied
authorization for a requested surgery. On August 13, 2013 appellant requested reconsideration
1

On April 28, 2001 appellant, a letter carrier, filed a claim alleging an occupational disease involving his neck,
right shoulder and possible carpal tunnel in the right wrist. OWCP accepted the claim for right carpal tunnel
syndrome and cervical radiculitis. It received a request for authorization for neck spine fusion and removal,
additional neck spine fusion, insertion of spine fixation device, application of a spine prosthetic device, removal of
spinal lamina and removal of spinal lamina add on. On December 11, 2012 OWCP denied the request for surgery.
On March 11, 2013 appellant requested reconsideration and submitted additional evidence. By decision dated
June 7, 2013, OWCP denied modification of the December 11, 2012 decision.
2

41 ECAB 548 (1990).

and submitted additional medical evidence. This included reports dated July 24 and August 26,
2013 from Dr. Sarah K. Hwang, a Board-certified internist, who noted appellant’s history of
injury and treatment, examined appellant and provided findings. She provided an opinion with
regard to appellant’s care and treatment. Dr. Hwang also addressed the requested surgery and
denial. These reports were received by OWCP on September 18, 2013. In its September 18,
2013 decision, OWCP denied appellant’s reconsideration request on the grounds that he neither
raised substantive legal questions nor submitted new and relevant evidence to warrant merit
review. It did not note receipt or consideration of the July 24 and August 26, 2013 reports from
Dr. Hwang.
The Board finds that OWCP, in its September 18, 2013 decision, did not review the
July 24 and August 26, 2013 reports from Dr. Hwang and specifically found that no new medical
evidence was submitted.3 For this reason, the case will be remanded to OWCP to enable it to
properly consider all the evidence submitted at the time of the September 18, 2013 decision.
Following such further development as OWCP deems necessary, it shall issue an appropriate
merit decision on the claim.
IT IS HEREBY ORDERED THAT the September 18, 2013 decision of Office of
Workers’ Compensation Programs is set aside. The case recorded is remanded to OWCP for
further proceedings consistent with this order of the Board.
Issued: April 22, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
3

See Linda Johnson, 45 ECAB 439, 440 (1994) (where the Board held that it is necessary that OWCP review all
evidence submitted by a claimant and received by it prior to issuance of its final decision and noted that this
principal applies with equal force when evidence is received by OWCP the same day a final decision is issued).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.J., Appellant
and
U.S. POSTAL SERVICE, FAR ROCKAWAY
POST OFFICE, Far Rockaway, NY, Employer
__________________________________________
Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1044
Issued: March 16, 2022

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On June 30, 2021 appellant, through counsel, filed a timely appeal from an April 2, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards docketed the appeal as No. 21-1044.
On November 20, 2019 appellant, then a 41-year-old city carrier, filed a notice of
recurrence (Form CA-2a) alleging that on October 25, 2019 he sustained a recurrence of disability
and the need for medical treatment causally related to his accepted January 10, 2018 employment
injury,2 after his return to light-duty work. He related that his left hip degenerative joint disease
was caused by work-related activities including, sitting on a folding chair, walking, and loading
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

The record reflects that appellant has an accepted traumatic injury claim (Form CA-1) for left hip tear sustained
on January 10, 2018 following a slip and fall on ice. Appellant returned to work following this injury on
October 1, 2019. OWCP assigned this claim File No. xxxxxx514.

parcels into a postal container, however, that he had not sustained any injury between January 10,
2018 and October 7, 2019. Appellant stopped work on October 25, 2019. OWCP assigned this
claim No. xxxxxx572.
In an October 30, 2019 report, Dr. Donald Rose, a Board-certified orthopedic surgeon,
noted that appellant was approximately one year and six months status postoperative left hip
arthroscopy. He noted that appellant had returned to work and that he was working outside his
recommended restrictions. Dr. Rose explained appellant’s pain occurred when he increased
activities, which was consistent with arthritic changes.
In a November 12, 2019 report, Dr. Craig Capeci, a Board-certified orthopedic surgeon,
diagnosed left hip degenerative joint disease. He noted that appellant’s left hip pain related back
to a January 2018 work injury when he injured his left hip while slipping and falling on ice.
Dr. Capeci reported that appellant returned to work in September 2019 following the January 2018
work injury. Appellant stopped work after three weeks as his pain progressively worsened. He
explained that appellant had left hip arthritis in the setting of his 2018 left hip injury and labral
tear.
In a letter dated February 19, 2020, the employing establishment requested OWCP
adjudicate appellant’s recurrence claim as a new occupational disease claim based on his
identification of new work factors as the cause of his alleged condition. OWCP subsequently
converted the claim from a recurrence to an occupational disease claim.
By decision dated May 5, 2020, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence did not demonstrate that the claimed condition was causally
related to the accepted employment factors.
On January 11, 2021 appellant, through counsel, requested reconsideration and submitted
an August 19, 2020 report from Dr. Capeci.
Dr. Capeci, in his August 19, 2020 report, summarized appellant’s treatment from June 4,
2018 through August 19, 2020. Diagnoses included status post left hip arthroscopy and left hip
degenerative joint disease. Dr. Capeci opined that it was reasonable to attribute appellant’s left
hip degenerative joint disease to the accepted January 10, 2018 employment injury.
By decision dated April 2, 2021, OWCP denied modification. It found that Dr. Capeci’s
report did not discuss the claimed work factors, but rather explained that appellant’s left hip
condition was caused by the traumatic event of January 10, 2018, which was already accepted for
left hip strain and was currently open for medical care.

2

The Board, having duly considered the matter, finds that the case is not in posture for
decision.3
The Board finds that OWCP’s procedures provide that cases should be administratively
combined when correct adjudication of the issues depends on frequent cross-referencing between
case files.4 For example, if a new injury case is reported for an employee who previously filed an
injury claim for a similar condition or the same part of the body, doubling is required.5
As OWCP File Nos. xxxxxx572 and xxxxxx514 both involve injuries to appellant’s left
hip, for a full and fair adjudication, the Board will remand the case to OWCP to administratively
combine the present claim with OWCP File No xxxxxx514.6 This will allow OWCP to consider
all relevant claim files and accompanying evidence in developing his current compensation claim.
Following this and other such further development as deemed necessary, OWCP sha ll issue a
de novo decision.

3

The Board notes that appellant filed his claim as one for a recurrence of his accepted condition under OWCP File
No. xxxxxx514. Dr. Capeci reported that appellant’s current condition was causally related to appellant’s accepted
January 10, 2018 employment injury under OWCP File No. xxxxxx514. However, OWCP converted appellant’s
recurrence claim, which was filed within 90 days of the first return to work, to a claim for occupational disease and
denied it as appellant had not established causal relationship. In cases where a recurrence is claimed within 90 days
of the first return to duty, the focus is on disability rather than causal relationship of the accepted condition(s) to the
work injury. Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5 (June 2013); see
also R.E., Docket No. 20-0421 (issued May 17, 2021); R.W., Docket No. 17-0720 (issued May 21, 2018).
4

R.R., Docket No. 19-0368 (issued November 26, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, File
Maintenance & Management, Chapter 2.400.8c (February 2000).
5

L.B., Docket No. 21-0241 (issued October 28, 2021).

6

T.T., Docket No. 21-0049 (issued May 3, 2021); S.D., Docket No. 19-0590 (issued August 28, 2020).

3

IT IS HEREBY ORDERED THAT the April 2, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: March 16, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
_______________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Freeport, ME, Employer
_______________________________________

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

Docket No. 08-728
Issued: August 5, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On January 14, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated November 26, 2007 which denied appellant’s
claim for an occupational disease. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
developed a left shoulder condition while in the performance of duty.
FACTUAL HISTORY
On August 22, 2007 appellant, then a 30-year-old substitute rural carrier, filed an
occupational disease claim alleging that she developed a left shoulder condition while in the
performance of duty. She became aware of her condition on May 24, 2006. Appellant stopped
work on February 3, 2007 and did not return.

In support of her claim, appellant submitted a May 24, 2006 report from Dr. Scott H.
Roby, an osteopath, who treated appellant for left upper thoracic and subscapular pain. She
reported working as a postal carrier where she frequently used her left arm in her daily activities.
Dr. Roby noted examination findings of left upper thoracic paravertebral muscle tenderness with
palpation. He diagnosed left upper thoracic somatic dysfunction and recommended rest and
medication. Appellant submitted reports from Dr. John A. Johnstone, an osteopath, dated
February 1 to March 2007, who treated her for left shoulder pain. She reported that five months
prior she had an onset of pain in the left shoulder and upper back but denied any trauma or
injury. Appellant indicated that she worked at the employing establishment and believed her
shoulder condition was caused by frequent carrying and lifting and got much worse during the
busy holiday season. Dr. Johnstone noted findings of tenderness upon palpation of the left
shoulder, left cervical paravert muscles, left trapezius and left upper thoracic paravert muscles,
decreased cervical range of motion and decreased shoulder abduction anteriorly. He diagnosed
rotator cuff syndrome and opined that appellant was totally disabled. In reports dated
February 15 and March 9, 2007, Dr. Johnstone diagnosed rotator cuff syndrome and advised that
appellant was undergoing physical therapy and was disabled. Appellant reported pain in the left
shoulder but believed her condition improved since she had been off work. An x-ray of the
thoracic spine dated February 1, 2007 revealed minimal scoliosis otherwise normal. A magnetic
resonance imaging (MRI) scan of the lumbar spine dated February 21, 2007 revealed a partial
tear or tendinosis due to distal supraspinous tendon.
Appellant was seen in consultation by Dr. Karyn L. Woelflern, a Board-certified
physiatrist, on March 2, 2007 for progressive left shoulder pain and a rotator cuff tear.
Dr. Woelflern noted that appellant was a rural carrier and her job required her to drive on the
right side of the car using her left arm to steer while delivering mail. She indicated that appellant
had shoulder pain on minimal flexion and abduction and tenderness over the acromioclavicular
joint, subacromial spans and pariscapular musculature. Dr. Woelflern diagnosed left rotator cuff
tear and recommended surgery. Appellant sought treatment from Dr. Stephen D. Katz, a Boardcertified orthopedic surgeon, on March 6, 2007 for left shoulder pain which started in
September 2006. Dr. Katz diagnosed multidirectional instability with secondary impingement of
the left shoulder and advised that appellant was totally disabled. He recommended lidocaine
injections, anti-inflammatory medication and physical therapy. On March 20, 2007 Dr. Katz
determined that conservative treatment failed and he recommended arthroscopic surgery. In an
April 20, 2007operative report, he performed a left shoulder arthroscopy and arthroscopic
capsular shift and diagnosed left shoulder pain with underlying multidirectional instability. In
reports dated May 1 and June 5, 2007, Dr. Katz noted that appellant was progressing well
postoperatively. On March 28, 2007 appellant was treated by Dr. John Knowles, a Boardcertified otolaryngologist, for left shoulder pain. Dr. Knowles diagnosed left shoulder rotator
cuff tear and prescribed pain medicine. Appellant submitted physical therapy notes from
February 7 to July 30, 2007.
The employing establishment submitted an August 15, 2007 statement from Victoria L.
Cloutier, supervisor of customer service, who noted that in January 2007 appellant requested a
reduced schedule because she had started working another job. Ms. Cloutier indicated that
appellant informed her that she sustained a nonwork-related rotator cuff injury in September and
was unable to work starting in April 2007 because her physician restricted her from casing mail.
She advised that appellant intended to resign from her position in July; however, she reported in
2

August and asserted that her shoulder condition was work related. Ms. Cloutier indicated that
appellant requested to work parcel assistance at Christmas, but was informed that she either had
to return to work or resign. She noted that appellant became upset and indicated that she was
going to file a compensation claim for her shoulder. Ms. Cloutier indicated that she provided
appellant a CA-1 form and initiated termination proceedings. Also submitted was a statement
from David Wyman, a coworker, who noted that in May 2006 appellant indicated that she
injured her back or shoulder in a softball game with her husband.
On August 30, 2007 the Office advised appellant of the type of factual and medical
evidence needed to establish her claim, particularly requesting that appellant submit a
physician’s reasoned opinion addressing the relationship of her claimed condition and specific
employment factors.
Appellant submitted a statement noting that she worked as a rural carrier approximately
three days per week starting in April 2006 and her duties included sorting and casing mail,
placing mail in appropriate containers and mail delivery. She indicated that, while delivering
mail, she would sit in the passenger seat and use the brake, gas and steering wheel which
required extensive stretching and reaching into the back seat. Appellant asserted that she had not
participated in sports in over 10 years. She submitted statements from her mother, Susan B.
Gorsuch-Metivier, and two friends, Tammy Clark and Shannakay Boykin Watson, who indicated
that appellant did not sustain a shoulder injury while playing softball, rather, she injured her
shoulder while working at the employing establishment.
In a decision dated November 26, 2007, the Office denied appellant’s claim on the
grounds that the medical evidence was not sufficient to establish that her condition was caused
by her employment duties.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that the injury was
sustained in the performance of duty as alleged, and that any disability and/or specific condition
for which compensation is claimed are causally related to the employment injury. These are the
essential elements of each and every compensation claim regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
1

5 U.S.C. §§ 8101-8193.

2

Gary J. Watling, 52 ECAB 357 (2001).

3

employment factors identified by the claimant were the proximate cause of the condition 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 claimant.
The medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.3
ANALYSIS
It is not disputed that appellant’s duties as a rural carrier included repetitively sorting and
casing mail and stretching and reaching while delivering mail in her car. It is also not disputed
that appellant has been diagnosed with left rotator cuff tear and impingement syndrome.
However, appellant has not submitted sufficient medical evidence to support the left rotator cuff
tear and impingement syndrome is causally related to specific employment factors or conditions.
On August 30, 2007 the Office advised appellant of the type of medical evidence needed to
establish her claim. Appellant did not submit a rationalized medical report from an attending
physician addressing how specific employment factors may have caused or aggravated her
claimed condition.
Appellant submitted a report from Dr. Roby dated May 24, 2006 who treated appellant
for left upper thoracic and subscapular pain and diagnosed left upper thoracic somatic
dysfunction. She reported working as a postal carrier where she frequently used her left arm in
her daily activities. However, Dr. Roby failed to provide a specific and rationalized opinion
regarding the causal relationship between appellant’s left upper thoracic somatic and the factors
of employment believed to have caused or contributed to such condition.4 For example, he did
not explain the process by which repetitive activities involving appellant’s left arm would cause
the diagnosed condition and why such condition would not be due to nonwork factors.
Therefore, this report is insufficient to meet appellant’s burden of proof.
Appellant also submitted medical reports from Dr. Johnstone dated February 1 to
March 9, 2007, who treated appellant for a left shoulder and back pain which began five months
prior. Dr. Johnstone diagnosed rotator cuff syndrome. Appellant reported that she worked at the
employing establishment and believed her shoulder condition was caused from frequent carrying
and lifting and became worse during the busy holiday season. Dr. Johnstone’s reports are
insufficient to establish the claim as the doctor appears merely to be repeating the history of
injury as reported by appellant without providing his own opinion regarding whether appellant’s

3

Solomon Polen, 51 ECAB 341 (2000).

4

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).

4

condition was work related.5 To the extent that the doctor is providing his own opinion, the
doctor failed to provide a rationalized opinion regarding the causal relationship between
appellant’s condition and the factors of employment believed to have caused or contributed to
such condition.6
Appellant submitted a March 2, 2007 report from Dr. Woelflern who treated appellant for
progressive left shoulder pain and a rotator cuff tear. Dr. Woelflern noted appellant was a rural
carrier and her job required her to drive on the right hand side of the car using her left arm to
steer when delivering mail. She diagnosed left rotator cuff tear and opined that appellant would
need surgery. However, Dr. Woelflern failed to provide a specific and rationalized opinion
regarding the causal relationship as her report did not explain the processes by which specific
employment duties caused or aggravated a diagnosed left rotator cuff tear.7 Therefore, this
report is insufficient to meet appellant’s burden of proof.
Other reports from Dr. Katz dated March 6 to June 5, 2007 noted appellant’s complaints
of left shoulder pain which started in September 2006. Dr. Katz diagnosed multidirectional
instability with secondary impingement of the left shoulder and performed arthroscopic surgery
on April 20, 2007. Likewise, a March 28, 2007 report from Dr. Knowles noted appellant’s
treatment for left shoulder pain and diagnosed left shoulder rotator cuff tear. However, Drs. Katz
and Knowles failed to provide a history of injury8 and they did not provide a specific opinion on
the causal relationship between appellant’s job and her diagnosed left shoulder condition. For
this reason, this evidence is not sufficient to meet appellant’s burden of proof.9 Therefore, these
reports are insufficient to meet appellant’s burden of proof.
Also submitted were physical therapy notes from February 7 to July 30, 2007. The Board
has held that treatment notes signed by a physical therapist are not considered medical evidence
as a physical therapist is not a physician under the Act.10 Therefore, these notes are insufficient
to meet appellant’s burden of proof.
The remainder of the medical evidence, including an x-ray of the thoracic spine and a
MRI scan of the lumbar spine fail to provide an opinion on the causal relationship between
5

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
6

Jimmie H. Duckett, supra note 4.

7

Id.

8

See Frank Luis Rembisz, supra note 5.

9

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006) (medical evidence which does not offer
any opinion regarding the cause of an employee’s condition is of limited probative value on the issue of causal
relationship).
10

See 5 U.S.C. § 8101(2) (this subsection defines a “physician” as surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also Jane A. White, 34 ECAB 515 (1983) (a physical therapist is not a “physician” within the
meaning of the Act and therefore not competent to give a medical opinion).

5

appellant’s job and her diagnosed left rotator cuff tear and impingement syndrome. For this
reason, this evidence is not sufficient to meet appellant’s burden of proof.
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 his condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship.11 Causal relationship must be established by
rationalized medical opinion evidence. Appellant failed to submit such evidence, and the Office
therefore properly denied appellant’s claim for compensation.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
developed an employment-related injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the November 26, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 5, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

11

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, LOS ANGELES
PROCESSING & DISTRIBUTION CENTER,
Los Angeles, CA, Employer
__________________________________________

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Appearances:
Bridget Wolfe Williams, for the appellant
Office of Solicitor, for the Director

Docket No. 10-855
Issued: November 12, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 29, 2010 appellant filed a timely appeal from a November 13, 2009 decision
of the Office of Workers’ Compensation Programs, which denied her request for an oral hearing
before the Branch of Hearings and Review. Because more than one year elapsed from the most
recent merit decision dated December 14, 2007 to the filing of this appeal, the Board lacks
jurisdiction to review the merits of her case pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1 The
only decision properly before the Board is the November 13, 2009 nonmerit decision denying
her request for an oral hearing.
ISSUE
The issue is whether the Office properly denied appellant’s request for an oral hearing
before the Branch of Hearings and Review as untimely filed.

1

For final adverse Office decisions issued prior to November 19, 2008, a claimant had up to one year to appeal to
the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse Office decisions issued on and after November 19, 2008,
a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On March 19, 2007 appellant, then a 61-year-old mail clerk, filed an occupational disease
claim for anxiety, depression, weight loss, hair loss, high blood pressure and post-traumatic
stress disorder. She alleged that her physical and emotional problems manifested as a result of
her supervisor’s “abusive behavior” over a four-year period.
In a decision dated December 14, 2007, the Office denied appellant’s claim for
compensation benefits due to insufficient evidence that appellant’s emotional condition occurred
in the performance of duty. It found that the evidence failed to establish that her supervisor’s
conduct constituted abusive conduct.
In a letter dated September 13, 2009, appellant requested a hearing before the Branch of
Hearings and Review.
By decision dated November 13, 2009, the Office denied appellant’s hearing request as
untimely filed. Exercising its discretion, the Office found that the issue in appellant’s case could
be equally well addressed by requesting reconsideration and submitting evidence not previously
considered.
LEGAL PRECEDENT
Section 8124(b)(1) of the Federal Employees’ Compensation Act provides that a claimant
is entitled to an oral hearing or a review of the written record when a request is submitted in
writing within 30 days after the issuance of a final decision by the Office.2 The Office, through
its regulations, has determined that a claimant injured on or after July 4, 1966, who has received
a final adverse decision by the Office, may obtain a hearing by writing to the address specified in
the decision. The request must be sent within 30 days (as determined by the postmark or other
carrier’s date marking) of the date of the decision for which a hearing is sought, and the claimant
cannot have previously submitted a request for reconsideration on the same decision.3 As
section 8124(b)(1) is unequivocal in establishing the time limitation for requesting a hearing, a
claimant is not entitled to a hearing as a matter of right if the hearing request is made after the
30-day period.4
The Office, under its broad discretionary authority in the administration of the Act, has
the power to hold hearings in certain circumstances where no legal provision was made for such
hearings and the Office must exercise this discretionary authority in deciding whether to grant a
hearing. Specifically, the Board has held that the Office has the discretion to grant or deny a
hearing request that is untimely made after the established 30-day period and that such discretion
is a proper interpretation of the Act.5
2

5 U.S.C. § 8124(b)(1).

3

20 C.F.R. § 10.616(a); Brenton A. Burbank, 53 ECAB 279 (2002); D.E., 59 ECAB 438 (2008).

4

Claudio Vazquez, 52 ECAB 496 (2001); P.P., 58 ECAB 673 (2007); R.T., 60 ECAB __ (Docket No. 08-408,
issued December 16, 2008).
5

Marilyn F. Wilson, 52 ECAB 347 (2001); André Thyratron, 54 ECAB 257 (2002); J.C., 59 ECAB 206 (2007).

2

ANALYSIS
The Board finds that appellant did not timely request a hearing. The record establishes
that the Office issued a December 14, 2007 decision denying her claim; but appellant’s request
for an oral hearing was made on September 13, 2009. The Board finds that appellant is not
entitled to an oral hearing as a matter of right because her hearing request of September 13, 2009
was not made within 30 days of the December 14, 2007 decision.
The Board also finds that the Office properly exercised its discretion in denying
appellant’s hearing request. In its November 13, 2009 letter, the Office noted that it carefully
considered her request and determined that appellant’s concerns could be addressed by
requesting reconsideration from the district Office with the submission of additional evidence.
The Board finds that appellant’s request for a hearing was untimely filed and the Office properly
exercised its discretionary authority when denying the request. The Office’s decision will be
affirmed.
CONCLUSION
The Board finds that appellant’s September 13, 2009 hearing request was not timely
filed. The Office properly exercised its discretionary authority in denying her request.
ORDER
IT IS HEREBY ORDERED THAT the November 13, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 12, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Las Vegas, NV, Employer
__________________________________________

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

Docket No. 17-0623
Issued: June 27, 2017

Case Submitted on the Record

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

JURISDICTION
On January 26, 2017 appellant filed a timely appeal from an August 3, 2016 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 OWCP properly approved attorney fees in the amount of $4,720.83
for services rendered from October 22, 2007 through July 29, 2009.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board with respect to the issue of employmentrelated disability commencing July 20, 2007.2 The facts of the case as presented in the Board’s
prior decision are incorporated herein by reference. The relevant facts are as follows.
On October 20, 2006 appellant, then a 52-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that she injured her lower back while lifting
luggage while in the performance of duty on October 13, 2006.
OWCP initially denied the claim by decision dated December 14, 2006. Appellant
requested a hearing and, by decision dated August 14, 2007, an OWCP hearing representative
vacated the December 14, 2006 decision. She directed OWCP to accept the claim for lumbar
strain, resolved.
Appellant subsequently filed a claim for wage-loss compensation (Form CA-7) from
July 20 to September 1, 2007. By decision dated October 19, 2007, OWCP denied the claim for
compensation commencing July 20, 2007. It found that the medical evidence of record was
insufficient to establish the claimed period of disability.
On November 8, 2007 appellant authorized counsel to represent her before OWCP.
Counsel requested a hearing before an OWCP hearing representative. By decision dated May 5,
2008, the hearing representative affirmed the October 19, 2007 decision. She found that the
medical evidence of record did not establish an employment-related disability.
On June 2, 2008 appellant, through counsel, filed a timely appeal before the Board. By
decision dated January 8, 2009, the Board set aside the May 5, 2008 decision and remanded the
case, finding that OWCP had not adequately addressed the issues. Appellant had returned to a
light-duty job and, as of July 19, 2007, the employing establishment had indicated that light-duty
work was not available for appellant.3
In a March 18, 2009 decision, OWCP expanded acceptance of the claim to include
aggravation of spondylolisthesis and aggravation of lumbar degeneration. It determined that
wage-loss compensation would be paid for the period July 20 to September 1, 2007.
On August 25, 2010 counsel submitted a fee petition in the amount of $4,720.83 for
services provided from October 22, 2007 to July 29, 2009. He billed for 17.16 hours at a rate of
$275.00 per hour. The fee petition listed the services provided and the amount of time spent on
each activity. Many of the itemized services were for reviewing e-mails or letters, with the time
reported as 15 or 20 minutes.
OWCP sent appellant a November 3, 2010 letter, noting that counsel had submitted a
request for authorization of $4,720.83 in attorney fees. Appellant was provided an opportunity
2

Docket No. 08-1713 (issued January 8, 2009).

3

Id.

2

to review the fee request, and if she did not respond within 30 days, it would be assumed she did
not wish to comment. OWCP indicated that it then would approve a fee which it determined to
be fair and reasonable.
In a letter dated November 20, 2010, appellant asserted that she was opposed to the
attorney fee request as counsel did not have expertise or ability and did nothing to further her
claim. She noted that OWCP’s claims examiner had asked why appellant was doing all the work
on her own claim, and she replied that was why she no longer had counsel.4
By letter dated June 15, 2015, counsel indicated that the 2010 fee request had never been
adjudicated. He requested a decision on the matter.
By decision dated August 13, 2015, OWCP approved the fee petition in the amount of
$4,720.83. It indicated that appellant had made only general allegations regarding counsel’s
services, and had failed to provide evidence that he had not performed the itemized services.
On August 28, 2015 appellant requested a hearing before an OWCP hearing
representative. On December 29, 2015 she submitted a copy of a retainer agreement signed
October 26, 2007, and copies of letters sent to counsel regarding her case. The evidence includes
letters that counsel, sent to appellant, with respect to requests for a hearing and a letter from
counsel to a physician. In a letter to appellant dated June 30, 2009, counsel noted that the claim
had been successfully completed based on the Board’s decision.
A hearing was held on April 7, 2016 before an OWCP hearing representative. At the
hearing appellant claimed that the amount of time counsel spent reading and writing letters was
excessive. She also argued that OWCP had not made a timely decision regarding her claim.
By decision dated June 1, 2016, the hearing representative affirmed the August 13, 2015
OWCP decision. She indicated that the case record supported that counsel performed the
itemized services and there was no evidence of record that approval of the fee petition was
improper.
On June 17, 2016 appellant requested reconsideration. She asserted that OWCP had not
accepted aggravations of spondylolisthesis and lumbar degenerative disc disease until 2011.
Appellant submitted a February 25, 2008 letter she had written to counsel and wrote that counsel
billed 15 minutes to read it, which she alleged was too long.
By decision dated August 3, 2016, OWCP reviewed the merits of appellant’s claim and
denied modification of the attorney fee determination. It found that the evidence of record was
insufficient to modify the decision to approve the fee petition.
LEGAL PRECEDENT
It is not the Board’s function to determine the fee for representative services performed
before OWCP. That is a function within the discretion of OWCP based on the criteria set forth
4

Appellant continued to pursue her claim for compensation without a representative.

3

in Title 20 of the Code of Federal Regulations and mandated by Board decisions. The Board’s
sole function is to determine whether the action by OWCP constituted an abuse of discretion.5
Generally, an abuse of discretion is shown through proof of manifest error, clearly unreasonable
exercise of judgment, or actions taken which are contrary to both logic and probable deductions
from established facts.6
Section 10.703 of the Code of Federal Regulations provides in pertinent part that a
representative must submit a fee application, which includes an itemized statement showing the
hourly rate, number of hours worked, and the work performed.7 When a fee application has been
disputed, OWCP is required to provide the claimant with a copy of the fee application and
request the submission of further information in support of any objection.8 After the claimant
has been afforded 15 days from the date the request was forwarded to respond to the request,
OWCP will then proceed to review the fee application to determine whether the amount of the
fee is substantially in excess of the value of services received by looking at the following factors:
(1) usefulness of the representative’s services; (2) the nature and complexity of the claim; (3) the
actual time spent on development and presentation of the claim; and (4) customary local charges
for services for a representative of similar background and experience.9
ANALYSIS
Counsel submitted a fee petition on August 25, 2010 for services rendered from
October 22, 2007 to July 29, 2009. Appellant has disputed the amount of the requested fee of
$4,720.83, contending that counsel spent too much time on such activities such as reviewing emails and letters. She further contends that she provided information to counsel and counsel did
little to further her claim.
As discussed above, the Board does not determine the fee for representative services
before OWCP. The Board reviews the issue to determine whether there was an abuse of
discretion by OWCP. In this case OWCP approved the requested fee of $4,720.83, noting that
appellant had provided general allegations that she felt the fee was excessive based on the work
performed. Having reviewed the evidence, the Board does not find an abuse of discretion by
OWCP.
OWCP reviewed the four factors under 20 C.F.R. § 10.703(c). As to usefulness of
services, the Board notes that, on November 8, 2007, appellant authorized counsel to represent
her before OWCP. Counsel requested a hearing before an OWCP hearing representative on
May 5, 2008. The hearing representative affirmed the October 19, 2007 decision, which denied
5

L.H., Docket No. 11-900 (issued December 6, 2011); C.H., Docket No. 10-987 (issued March 22, 2011); Eric B.
Petersen, 57 ECAB 680 (2006); Sharon Edwards, 56 ECAB 749 (2005).
6

Claudio Vazquez, 52 ECAB 496 (2001).

7

20 C.F.R. § 10.703(a)(1).

8

Id. at § 10.703(c).

9

Id.

4

appellant’s claimed period of disability. Thereafter, on June 2, 2008, counsel appealed to the
Board. The Board remanded the case in a January 8, 2009 decision. The Board found OWCP
had not adequately addressed the issues, noting that appellant had returned to a light-duty job and
as of July 19, 2007 the employing establishment had indicated that light-duty work was not
available for appellant. Following the Board’s remand, on March 18, 2009, OWCP expanded
acceptance of the claim to include aggravation of spondylolisthesis, and aggravation of lumbar
degeneration. It related that wage-loss compensation would be paid for the period July 20 to
September 1, 2007.
As to the nature and complexity of the case, the issues involved included medical
evidence as well as withdrawal of light duty. Appellant alleged that the actual time spent on the
claim was excessive. She did not provide evidence to establish that counsel failed to perform the
itemized services. The time spent on some services was limited to a quarter of an hour. OWCP
found the time spent on activities such as reviewing letters was not unreasonable, and the Board
finds no abuse of discretion in this regard. The hourly fee was $275.00, which OWCP found was
customary and no contrary evidence was presented. The Board thus finds no abuse of discretion
in this regard.
Appellant raised the issue of the timeliness of OWCP’s decision. It was counsel that
timely submitted a fee application for the services performed. The delay in issuing a decision
does not relieve OWCP of the obligation to properly render a decision on the fee application.10
The Board has frequently stated that it will not interfere with or set aside a determination
by OWCP of a fee for legal services unless the determination is clearly in error.11 OWCP has the
discretion to approve attorney fees, and in this case, the Board finds no abuse of discretion.12
CONCLUSION
The Board finds that OWCP did not abuse its discretion in approving attorney fees of
$4,720.83.

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Representatives’ Services, Chapter 2.1200.6(f)
(June 2012) (when a claimant disagrees with the amount of the fee, OWCP will issue a final decision that approves,
modifies, or denies the fee.
11

William Arthur Burney, 29 ECAB 253 (1978).

12

See R.H., Docket No. 14-0429 (issued July 28, 2014).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 3, 2016 is affirmed.
Issued: June 27, 2017
Washington, DC

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

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

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

6