United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
SUPPLY SYSTEMS COMMAND, Gulfport, MS,
Employer
__________________________________________

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

Docket No. 17-1603
Issued: April 10, 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 July 18, 2017 appellant filed a timely appeal from March 13 and 22, and May 12, 2017
merit decisions and May 5 and June 22, 2017 nonmerit decisions 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 the
case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish employmentrelated carpal tunnel syndrome and whether OWCP properly denied the request for decompression
surgery for this condition; (2) whether appellant established more than seven percent permanent
impairment of the right arm for which he received a schedule award; (3) whether OWCP properly
denied appellant’s request for reconsideration of the merits of his claim pursuant to 5 U.S.C.
§ 8128(a) regarding denial of the expansion of his claim and authorization for surgery; and,
1

5 U.S.C. § 8101 et seq.

(4) whether OWCP properly denied appellant’s request for reconsideration of the merits of his
claim pursuant to 5 U.S.C. § 8128(a) regarding the schedule award issue.
On appeal appellant asserts that the medical evidence establishes that carpal tunnel
syndrome is causally related to the July 8, 2008 employment injury and that he is entitled to an
increased schedule award.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated November 15, 2010,
the Board affirmed September 29, 2009 and January 4, 2010 OWCP merit decisions that denied
appellant’s claim for a schedule award.2 In a February 14, 2013 decision, the Board found that,
by a July 26, 2012 decision, OWCP properly denied appellant’s request for a hearing.3 In a second
February 14, 2013 decision, the Board affirmed an August 17, 2012 OWCP decision on the issue
of whether appellant established clear evidence of error regarding the denial of his claim for
disability compensation. The Board, however, found that OWCP erroneously denied appellant’s
request for reconsideration regarding his entitlement to a schedule award under the clear evidence
of error standard because the record contained a September 15, 2010 impairment analysis from an
attending Board-certified orthopedic surgeon, Dr. Henry Leis, who concluded that, under the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides),4 appellant had four percent permanent right arm impairment. The Board
remanded the case to OWCP to issue a merit decision regarding appellant’s schedule award
request.5 By decision dated October 24, 2016, the Board found that appellant did not establish
more than seven percent impairment of the right arm, for which he previously received a schedule
award. The Board further found that OWCP properly refused to reopen appellant’s claim for
further review of the merits of the schedule award pursuant to 5 U.S.C. § 8128(a), and that OWCP
properly denied appellant’s request for a hearing.6 The facts of the case as presented in the prior
Board decisions are incorporated herein by reference. The relevant facts are as follows.
The accepted conditions in this case are sprain of the right elbow and forearm, lateral
epicondylitis and entrapment lesion of the ulnar nerve at the right elbow, and articular cartilage
disorder of the right elbow, caused by a July 8, 2008 employment injury when appellant was
unloading pallets of electricians’ kits in his capacity as a materials handler. He last worked at the
2

Docket No. 10-823 (issued November 15, 2010). On July 8, 2008 appellant, a 49-year-old materials handler,
sustained work-related sprains of the right elbow and forearm and right lateral epicondylitis while unloading pallets.
He had right arm surgery on February 16, 2009 and returned to modified duty on March 2, 2009. Appellant was
removed from federal employment for cause in April 2009. On September 29, 2009 OWCP denied his claim for
disability compensation, noting that he was terminated for cause and not due to his inability to perform his modifiedduty assignment. By separate September 29, 2009 decision, OWCP denied appellant’s claim for a schedule award
finding that the medical evidence submitted did not establish permanent impairment.
3

Docket No. 12-1699 (issued February 14, 2013).

4

A.M.A., Guides (6th ed. 2009).

5

Docket No. 12-1906 (issued February 14, 2013).

6

Docket No. 16-0669 (issued October 24, 2016).

2

employing establishment on February 16, 2009. By decision dated April 3, 2013, appellant was
granted a schedule award for seven percent permanent impairment of the right arm.
During the pendency of appellant’s most recent appeal before the Board,7 in treatment
notes dated October 28, 2015 to March 10, 2016, Dr. Brian K. Tsang, a Board-certified
anesthesiologist, described monthly pain management for the accepted right upper extremity
conditions.
On October 23, 2015 Dr. Leis advised that, in accordance with the sixth edition of the
A.M.A., Guides, appellant had eight percent right upper extremity impairment and had reached
maximum medical improvement on August 6, 2015.
A January 26, 2016 magnetic resonance imaging (MRI) scan of the right elbow
demonstrated osteoarthrosis, chronic partial-thickness tear bisecting the common extensor tendon
with superimposed chronic lateral epicondylitis, mild chronic medial epicondylitis, mild bicipital
tendinopathy, mild triceps tendinopathy, and mild ulnar neuritis. A June 7, 2016 electromyogram
(EMG) study demonstrated bilateral carpal tunnel syndrome.
Beginning on April 10, 2016, pain management reports from Dr. Tsang’s office were
completed by Linda Bell and Ashley Burroughs, both of whom are nurse practitioners.
Dr. Leis reviewed the EMG on June 13, 2016 and diagnosed carpal tunnel syndrome. He
recommended surgical release, and requested authorization for the surgery on June 29, 2016. In a
treatment note dated June 21, 2016, Dr. Leis noted appellant’s report of recalcitrant right arm pain
worsening over the past three weeks with heavy labor. He advised that physical examination
showed a significant progression in neurological symptoms from the employment injury. Dr. Leis
diagnosed cubital tunnel syndrome, elbow pain, lateral epicondylitis, and carpal tunnel syndrome.
By decision dated August 30, 2016, OWCP found that the evidence of record did not
support expansion of the acceptance of appellant’s claim to include bilateral carpal tunnel
syndrome and also denied authorization for right wrist endoscopic carpal tunnel release.
In an August 3, 2016 treatment note, submitted on October 4, 2016, Dr. Leis reiterated his
conclusions reported on June 21, 2016.
In August 2016, OWCP referred appellant to Dr. Simon Finger, a Board-certified
orthopedic surgeon, for a second opinion evaluation to assess the extent and degree of appellant’s
disability related to the July 8, 2008 employment injury. In a September 15, 2016 report,
Dr. Finger noted the history of injury and appellant’s report of continued right elbow pain and
weakness. Following physical examination, he advised that the accepted conditions had not
resolved, noting objective findings of pain with extension of the wrist and fingers, positive Tinel’s
at the elbow, decreased sensation in the ulnar digits, and a weak ulnar grip. Dr. Finger advised
that appellant could not perform his regular job duties, but could work eight hours of restricted

7

Id.

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duty daily with restrictions of no overhead lifting, no repetitive motion of the right upper extremity,
and a weight restriction of five pounds.
Appellant requested reconsideration of the August 30, 2016 decision denying expansion of
the acceptance of his claim on September 26, 2016.
Following the Board’s October 24, 2016 decision,8 by decision dated November 22, 2016,
OWCP found that the medical evidence of record did not establish that the diagnosed carpal tunnel
syndrome and need for decompression surgery were causally related to the July 8, 2008
employment injury and therefore denied modification of its August 30, 2016 decision.
On December 13, 2016 appellant requested reconsideration of the November 22, 2016
decision. On December 21, 2016 he filed a schedule award claim (Form CA-7). On December 21,
2016 appellant also requested reconsideration of the schedule award issue affirmed in the
October 24, 2016 Board decision.
In a December 23, 2016 treatment note, Dr. Leis reiterated his findings and conclusions.
Ms. Bell completed a work capacity evaluation (Form 5c) on January 16, 2017. She advised that
appellant had a permanent weight limit of five pounds. Ms. Bell and Ms. Burroughs continued to
submit monthly treatment notes.
By decision dated March 13, 2017, OWCP noted that the medical evidence did not
establish that the diagnosed carpal tunnel syndrome and need for decompression surgery were
causally related to the July 8, 2008 employment injury and denied modification of the August 30,
2016 decision.
By decision dated March 22, 2017, OWCP found the record insufficient to establish right
upper extremity permanent impairment greater than seven percent, for which appellant previously
received a schedule award.
In an April 10, 2017 memorandum, OWCP asked its medical adviser to review the record
for an impairment evaluation. The memorandum instructed that a clear explanation regarding
calculations should be given, and, if applicable, and an explanation as to why the method of
diagnosis-based impairment (DBI) or range of motion (ROM) was chosen.
On April 17, 2017 appellant requested reconsideration of the March 22, 2017 decision. On
April 19, 2017 he requested reconsideration of the March 13, 2017 decision.
In a May 1, 2017 report, Dr. William Tontz, Jr., a Board-certified orthopedic surgeon and
OWCP medical adviser, reviewed the medical record for the purpose of an impairment evaluation.
He concluded that, for a diagnosis of lateral epicondylitis with no significant objective abnormal
findings, under Table 15-4 of the A.M.A., Guides, appellant had zero permanent impairment.
By decision dated May 5, 2017, OWCP denied appellant’s request for reconsideration of
the merits of the March 13, 2017 decision, finding the evidence submitted irrelevant or immaterial
8

Supra note 6.

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regarding the merit issue of whether carpal tunnel syndrome was employment related and whether
surgery for the condition should be authorized.
By decision dated May 12, 2017, OWCP denied appellant’s request for an additional
schedule award for his right upper extremity conditions. It noted that the evidence submitted did
not address additional impairment and that its medical adviser found that the evidence did not
demonstrate impairment.9
In separate requests dated June 2, 2017, appellant requested reconsideration of the May 5
and 12, 2017 OWCP decisions. He generally asserted that he was entitled to an increased schedule
award and that carpal tunnel syndrome should be accepted as a work-related condition.
In correspondence dated June 21, 2017, OWCP informed appellant that his only right of
appeal from the May 5, 2017 decision was an appeal to the Board.
By decision dated June 22, 2017, OWCP denied appellant’s request for reconsideration of
the merits of the May 12, 2017 schedule award decision. It noted that medical evidence submitted
did not address the issue of permanent impairment and, thus, was insufficient to warrant merit
review of the May 12, 2017 decision.
LEGAL PRECEDENT -- ISSUE 1
In discussing the range of compensable consequences, once the primary injury is causally
connected with the employment, Larson notes that, when the question is whether compensability
should be extended to a subsequent injury or aggravation related in some way to the primary injury,
the rules that come into play are essentially based upon the concepts of direct and natural results
and of claimant’s own conduct as an independent intervening cause. The basic rule is that a
subsequent injury, whether an aggravation of the original injury or a new and distinct injury, is
compensable if it is the direct and natural result of a compensable primary injury.10
A claimant bears the burden of proof to establish a claim for a consequential injury. As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. The opinion must be one
of reasonable medical certainty and must be supported by medical rationale explaining the nature
of the relationship of the diagnosed condition and the specific employment factors or employment
injury.11

9

In separate May 12, 2017 correspondence, OWCP informed appellant that it appeared that he was requesting that
additional conditions be accepted. It explained that the instant claim was accepted for a right arm injury that occurred
on July 8, 2008, and if he believed he had additional medical conditions resulting from repetitive or cumulative work
exposure, these must be addressed in a separate occupational disease claim.
10

Arthur Larson & Lex K. Larson, The Law of Workers’ Compensation § 3.05 (2014); see Charles W. Downey,
54 ECAB 421 (2003).
11

Charles W. Downey, id.

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In order for a surgical procedure to be authorized, a claimant must submit evidence to show
that the surgery is for a condition causally related to an employment injury and that it is medically
warranted. Both of these criteria must be met in order for OWCP to authorize payment.12
ANALYSIS -- ISSUE 1
The Board finds that appellant did not meet his burden of proof to establish that the
diagnosed carpal tunnel syndrome was causally related to the July 8, 2008 employment injury.
The medical evidence that addresses carpal tunnel syndrome includes a June 7, 2016 EMG
study that demonstrated bilateral carpal tunnel syndrome. This study does not address a cause of
the diagnosed condition. Diagnostic studies are of limited probative value as they do not address
whether the employment incident caused any of the diagnosed conditions.13 Medical evidence that
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.14 On June 13, 2016 Dr. Leis reviewed the EMG and
diagnosed carpal tunnel syndrome. He recommended surgical release and requested authorization
for the study on June 29, 2016. On June 21, 2016 Dr. Leis again diagnosed carpal tunnel
syndrome. He, however, did not relate appellant’s diagnosed carpal tunnel syndrome in any way
to the July 8, 2008 employment injury.
It is appellant’s burden to establish that a consequential condition is causally related to the
July 8, 2008 employment injury.15 The record before the Board contains insufficient evidence to
establish that appellant’s bilateral carpal tunnel syndrome was causally related to this injury. As
he has not established employment-related carpal tunnel syndrome, OWCP did not abuse its
discretion in denying authorization for corrective surgery for that condition.16
LEGAL PRECEDENT -- ISSUE 2
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.17 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use
of specified members, functions, and organs of the body.18 FECA, however, does not specify the
manner by which the percentage loss of a member, function, or organ shall be determined. To
ensure consistent results and equal justice under the law, good administrative practice requires the
12

R.C., 58 ECAB 238 (2006).

13

See J.S., Docket No. 17-1039 (issued October 6, 2017).

14

Willie M. Miller, 53 ECAB 697 (2002).

15

Charles W. Downey, supra note 10.

16

R.C., supra note 12.

17

See 20 C.F.R. §§ 1.1-1.4.

18

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C. § 8107(c)(1).

6

use of uniform standards applicable to all claimants. Through its implementing regulations,
OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.19
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first printing
of the A.M.A., Guides. In April 2009, these changes were formally incorporated into the second
printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).20 The Board has approved the use by OWCP of the A.M.A., Guides
for the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.21
ANALYSIS -- ISSUE 2
By decision dated April 3, 2013, OWCP granted appellant a schedule award for seven
percent permanent impairment of the right arm. As to whether appellant is entitled to an additional
schedule award for the accepted right upper extremity conditions, the Board finds this case is not
in posture for decision.
The Board has found that OWCP had inconsistently applied Chapter 15 of the sixth edition
of the A.M.A., Guides when granting schedule awards for upper extremity claims. No consistent
interpretation had been followed regarding the proper use of DBI or ROM methodology when
assessing the extent of permanent impairment for schedule award purposes.22 The purpose of the
use of uniform standards is to ensure consistent results and to ensure equal justice under the law
to all claimants.23 In T.H., the Board concluded that OWCP physicians were at odds over the
proper methodology for rating upper extremity impairment, having observed that attending
physicians, evaluating physicians, second opinion physicians, impartial medical examiners, and
district medical advisers use both DBI and ROM methodologies interchangeably without any
consistent basis. The Board observed that physicians interchangeably cite to language in the first
printing or the second printing when justifying use of either ROM or DBI methodology. Because
OWCP’s own physicians were inconsistent in the application of the A.M.A., Guides, the Board
found that OWCP could no longer ensure consistent results and equal justice under the law for all

19

20 C.F.R. § 10.404; see also Ronald R. Kraynak, 53 ECAB 130 (2001).

20
See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
21

Isidoro Rivera, 12 ECAB 348 (1961).

22

T.H., Docket No. 14-0943 (issued November 25, 2016).

23

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

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claimants.24 OWCP issued FECA Bulletin No. 17-06 on May 8, 2017. It directs the rating
physician and its OWCP medical adviser to calculate upper extremity permanent impairment using
both the ROM and DBI methods and identify the higher rating and, if the medical evidence or
record is insufficient for OWCP’s medical adviser to render a ROM rating, he should advise
OWCP what medical evidence is necessary to complete a rating.25
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the June 22, 2017 decision. Utilizing a
consistent method for calculating permanent impairment for upper extremities applied
uniformly,26 and after such other development as may be deemed necessary, OWCP shall issue a
de novo decision on appellant’s claim for an upper extremity schedule award.
In light of the Board’s disposition regarding this issue, the issue of whether OWCP properly
denied appellant’s request for reconsideration of the merits of his claim in its June 22, 2017
decision is rendered moot.
LEGAL PRECEDENT -- ISSUE 3
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on application
by a claimant.27 Section 10.608(a) of OWCP’s regulations provide that a timely request for
reconsideration may be granted if OWCP determines that the employee has presented evidence
and/or argument that meets at least one of the standards described in section 10.606(b)(3).28 This
section provides that the application for reconsideration must be submitted in writing and set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; or (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.29 Section 10.608(b) provides that when a request for reconsideration is
timely, but fails to meet at least one of these three requirements, OWCP will deny the application
for reconsideration without reopening the case for a review on the merits.30
ANALYSIS -- ISSUE 3
On April 19, 2017 appellant requested reconsideration of the March 13, 2017 decision
denying that the diagnosed carpal tunnel syndrome and need for decompression surgery were
24

Supra note 22.

25

FECA Bulletin No. 17-06 (issued May 8, 2017).

26

Id.

27

5 U.S.C. § 8128(a).

28

20 C.F.R. § 10.608(a).

29

Id. at § 10.606(b)(3).

30

Id. at § 10.608(b).

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causally related to the July 8, 2008 employment injury. He generally asserted that the carpal tunnel
syndrome should be accepted.
The Board finds that, as appellant did not assert that OWCP erroneously applied or
interpreted the law or advance a relevant legal argument not previously considered by OWCP, he
was 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).31
With respect to the third above-noted requirement under section 10.606(b)(2), Ms. Bell and
Ms. Burroughs submitted monthly treatment notes. Their reports, however, are not relevant as
they do not constitute competent medical evidence as a nurse practitioner is not a physician under
FECA.32
As appellant did not show that OWCP erred in applying a point of law, advance a relevant
legal argument not previously considered, or submit relevant and pertinent new evidence not
previously considered by OWCP, OWCP properly denied his reconsideration request.
CONCLUSION
The Board finds that appellant failed to establish that carpal tunnel syndrome was caused
by the July 8, 2008 employment injury, and that OWCP properly denied authorization for
decompression surgery. The Board further finds that OWCP properly denied appellant’s request
for reconsideration of the merits of his claim on these issues, pursuant to 5 U.S.C. § 8128(a). The
Board also finds this case is not in posture for decision regarding the degree of impairment of
appellant’s right upper extremity.

31

20 C.F.R. § 10.606(b).

See G.A., Docket No. 09-2153 (issued June 10, 2010). Section 8101(2) of the FECA provides that “physician”
includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law. 5 U.S.C. § 8101(2).
32

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ORDER
IT IS HEREBY ORDERED THAT the May 5 and March 13, 2017 decisions of the
Office of Workers’ Compensation Programs are affirmed. OWCP decisions dated June 22,
May 12, and March 22, 2017 are set aside, and the case is remanded for proceedings consistent
with this decision of the Board.
Issued: April 10, 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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 10-1262
Issued: December 8, 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 April 2, 2010 appellant filed a timely appeal from a February 26, 2010 merit decision
of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly declined to authorize physical therapy from
April 27 to May 25, 2009.
FACTUAL HISTORY
On February 12, 2009 appellant, then a 51-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he injured his back in the performance of duty on January 12,
2009 when he lifted a tub of mail. By report dated January 21, 2009, Dr. Nejat Destani, a family
practitioner, provided a history and results on examination, diagnosing low back pain syndrome.
In a report dated February 5, 2009, Dr. Joyce Tarbet, an orthopedic surgeon, provided a
history of lifting a tub of mail on January 12, 2009 and indicated that appellant was working light

duty. She noted a prior low back injury in 1998 which she stated was job related. Dr. Tarbet
provided results on examination and stated x-rays showed some narrowing of the L4-5 and L5S1 intervertebral disc space. She stated that appellant had muscular low back pain and
prescribed medication and physical therapy.
On February 24, 2009 the Office accepted the claim for low back pain syndrome. The
record indicates that on March 16, 2009 the Office received a March 12, 2009 request for
physical therapy authorization for the period February 9 to March 4, 2009. The diagnosis code
was 724.2 (lumbago). On March 19, 2009 the Office authorized physical therapy from
February 9 to April 2, 2009.
On April 24, 2009 the Office received an April 23, 2009 physical therapy authorization
request for the period April 27 to May 25, 2009. The diagnosis code was 722.73 (intervertebral
disc disorder with myelopathy, lumbar region). The specific part of the body to be treated was
described as L4-5 disc bulge/lower back.
By letter dated April 28, 2009, the Office advised appellant that the evidence was not
sufficient to authorize physical therapy from April 27 to May 25, 2009, as it was not established
the treatment was for an accepted employment-related condition. Appellant was advised to
submit relevant evidence within 30 days. On May 18, 2009 she submitted an April 20, 2009 note
from Dr. Tarbet diagnosing L4-5 disc bulge.
In a decision dated September 24, 2009, the Office denied authorization for physical
therapy from April 27 to May 25, 2009. It found that the medical evidence did not establish that
treatment was necessary for the accepted work injury.
Appellant requested reconsideration and submitted additional evidence. In a report dated
April 6, 2009, Dr. Tarbet indicated that a magnetic resonance imaging (MRI) scan revealed a
diffuse disc bulge at L4-5. She also noted there appeared to be a superimposed small central disc
protrusion at that level. Dr. Tarbet indicated that appellant should continue with a 10-pound
lifting restriction and physical therapy would be put on hold pending a bone scan. In a report
dated April 20, 2009, she stated the bone scan was unremarkable. Dr. Tarbet diagnosed L4-5
disc bulge with small central protrusion and recommended that appellant resume physical
therapy.
By decision dated February 26, 2010, the Office reviewed the case on its merits and
denied modification of the September 24, 2009 decision.
LEGAL PRECEDENT
Section 8103(a) of the Federal Employees’ Compensation Act provides for the furnishing
of services, appliances and supplies prescribed or recommended by a qualified physician which
the Office, under authority delegated by the Secretary, considers likely to cure, give relief,
reduce the degree or the period of disability, or aid in lessening the amount of monthly
compensation.1 In interpreting 5 U.S.C. § 8103(a), the Board has recognized that the Office has
1

5 U.S.C. § 8103(a).

2

broad discretion in approving services provided under the Act to ensure that an employee
recovers from his or her injury to the fullest extent possible in the shortest amount of time.2 The
Office has administrative discretion in choosing the means to achieve this goal and the only
limitation on the Office’s authority is that of reasonableness.3
While the Office is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.4 Proof of causal relationship must include
supporting rationalized medical evidence.5
ANALYSIS
The Office accepted that on January 12, 2009 appellant was lifting a tub of mail and she
sustained low back pain syndrome. The attending orthopedic surgeon, Dr. Tarbet, initially
recommended physical therapy in a February 5, 2009 report for treatment of the low back pain.
As of April 6, 2009, however, Dr. Tarbet diagnosed an L4-5 disc bulge with small central
disc protrusion. Appellant requested authorization for physical therapy from April 27 to
May 25, 2009. The authorization request form had a diagnosis of intervertebral disc disorder.
Dr. Tarbet did not provide any opinion relating the L4-5 disc condition to appellant’s accepted
injury.
As noted, appellant has the burden to establish that treatment is for an employmentrelated condition. The Office has not accepted an L4-5 disc bulge or intervertebral disc disorder
as causally related to the January 12, 2009 employment injury. Moreover, the medical evidence
of record does not contain a rationalized medical opinion on the issue. Dr. Tarbet provided a
diagnosis but did not offer any medical explanation on causal relationship with the employment
injury. The Office has broad discretion under 5 U.S.C. § 8103(a) to authorize physical therapy.
It was reasonable for the Office to deny physical therapy authorization on the grounds that the
treatment was for a condition not established as employment related. The Board accordingly
finds that the Office did not abuse its discretion in denying authorization for physical therapy
from April 27 to May 25, 2009 based on the medical evidence of record.
On appeal appellant states that the x-rays and MRI scan showed a disc bulge. The issue,
however, is causal relationship. The evidence does not establish the L4-5 diagnosis as causally
related to the employment injury. Therefore, it was not established that physical therapy
treatment for the requested period was employment related.

2

Dale E. Jones, 48 ECAB 648, 649 (1997).

3

Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by the Office is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment or administrative actions which are
contrary to both logic and probable deductions from established facts).
4

See Debra S. King, 44 ECAB 203, 209 (1992).

5

Id.; see also Bertha L. Arnold, 38 ECAB 282 (1986).

3

CONCLUSION
The Board finds that the Office properly denied authorization for physical therapy from
April 27 to May 25, 2009.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 26, 2010 is affirmed.
Issued: December 8, 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

4


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
J.B., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

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

Docket No. 17-0984
Issued: July 11, 2018

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 April 4, 2017 appellant filed a timely appeal from the March 1, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained
hearing loss causally related to the accepted factors of his federal employment.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 14, 2016 appellant, then an 80-year-old retired pipefitter,2 filed an
occupational disease claim (Form CA-2) alleging that his binaural hearing loss was caused by
factors of his federal employment. He indicated that he had gradual and progressive hearing loss
due to noise exposure confirmed by an audiologist. Appellant indicated that he first became
aware of his claimed condition and its relationship to factors of his federal employment on
February 28, 1991. He explained that his delay in filing his claim was because he was not told
that he could file a claim. The employing establishment indicated that a letter of controversion
would follow.
By development letter dated December 15, 2016, OWCP requested additional
information from appellant. It advised appellant to submit additional evidence regarding the
timely notification of his claim, evidence to establish that he actually experienced the
employment factors alleged to have caused his injury, and evidence to support that he was
injured while performing duties of his federal employment. Appellant was also asked to
complete a questionnaire listing his employment history, exposure to hazardous noise at work,
the date he first noticed his hearing loss, all previous ear or hearing programs in which he
participated, and hobbies involving exposure to loud noise. Additionally, he was asked to
explain his failure to file the claim in a timely manner. Appellant was afforded 30 days to
submit the requested information.
In a separate letter to the employing establishment, dated December 15, 2016, OWCP
requested information, including that the locations of appellant’s job sites where the alleged
exposure occurred, sources of exposure to noise and machinery, the decibel and frequency level
(to include a noise survey report for each job site and the period of exposure, and the types of ear
protection and noise attenuation in decibels if known. It also requested employment data and the
date of last exposure to hazardous noise and the pay rate in effect on that date.
In a letter dated November 29, 2016, T.K., a patient care coordinator, provided a copy of
appellant’s Form CA-2 and noted that he was filing a claim for hearing loss that occurred while
working for the employing establishment from August 27, 1964 until his retirement on
February 28, 1991.
In a December 15, 2016 letter, J.S., an employing establishment human resources
specialist, controverted the claim. She noted that the claim was filed more than three years after
the last known date of exposure, which was from 1964 to 1991. J.S. argued that it was unknown
if the injury occurred due to working at the employing establishment or what the exposure levels
outside the employing establishment were for the last 25 years. She also argued that there was
no medical evidence to establish that appellant sustained hearing loss due to factors of his federal
employment. J.S. noted that there was no major shift in hearing from 1964 to his last audiogram
in 1991.
OWCP received notification of personnel action forms (SF-50s) dated February 22, 1991
and April 27, 1964, a pipefitter description, appellant’s work history and application for
2

The record reflects that appellant retired on February 28, 1991.

2

employment, and an occupational hearing loss claim checklist dated November 7, 2016. It also
received employing establishment audiograms and audiometric results dated April 25, 1979,
August 24, 1981, March 3, 1983, February 2, 1984, February 7 and 26, 1985, February 7, 1987,
February 3, 1988, February 1, 1991, and November 7, 2016.
On January 25, 2017 OWCP referred appellant, together with the medical record and a
statement of accepted facts (SOAF),3 to Dr. Richard Seaman, a Board-certified otolaryngologist,
for a second opinion evaluation to include an audiogram.
In February 16, 2017 report, Dr. Seaman noted appellant’s history. He indicated that
appellant’s chief complaints were hearing loss and very occasional tinnitus, which was not
bothersome. Additionally, Dr. Seaman noted that appellant related that he first noticed hearing
loss about 10 years prior and did not have any significant tinnitus and never wore hearing aids.
Additionally, he noted that appellant believed that his hearing loss was related to his federal
employment. Dr. Seaman determined that appellant was hearing impaired in all situations and
reiterated that he had occasional tinnitus, which was not bothersome. He noted that, at the time
of appellant’s retirement in 1991, his hearing was well within normal range and that since that
time, his hearing deteriorated remarkably. Dr. Seaman indicated that appellant was also part of
the hearing conservation program. He examined appellant’s ears and found that the ear canals
and Tympanic membranes were normal. Dr. Seaman found that the 500 cycle fork was midline,
air greater than bone bilaterally, throat, and neck were negative. He also found that the
audiogram was done in a sound attenuated booth, with an audiometer calibrated on
June 23, 2016. Dr. Seaman advised that the audiogram revealed a severe bilateral high
frequency hearing loss extending well into speech ranges and that he had 72 percent
discrimination on the right and 60 percent discrimination on the left. He determined that the
speech reception thresholds and pure-tone averages agreed that the audiogram was valid and the
Tympanogram was normal bilaterally.
Dr. Seaman diagnosed bilateral sensorineural hearing loss. He explained that appellant’s
hearing loss at the beginning and the end of his federal employment was within normal limits.
With regard to comparing appellant’s present audiometric findings with those at the beginning of
exposure, Dr. Seaman advised that it was not applicable because appellant had moderate-tosevere sensorineural hearing loss that came on since his retirement. He explained that his
workplace exposure could have easily contributed to his hearing loss but there was no evidence
that this occurred. Dr. Seaman found that there were no other significant contributory factors
other than presbycusis. He also determined that there was no evidence of Meniere’s disease or
acoustic neuroma. Dr. Seaman recommended hearing aids for both ears, based upon presbycusis
and not on an industrial noise damage. He opined that his conclusion was based upon
appellant’s audiometric findings which were well within normal limits. Dr. Seaman referenced
the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment, (A.M.A., Guides).4 He determined that appellant had binaural hearing loss of
3

In the SOAF, OWCP noted that appellant was exposed to noise in his federal employment from chippers,
grinders, sanders, deck crawlers, needle guns, drills, and saws for eight hours per day, plus overtime, from April 27,
1964 to February 28, 1991. Additionally, it was noted that hearing protection was provided and used.
4

A.M.A., Guides (6th ed. 2009).

3

28.125 percent on the right and 31.875 percent on the left. Additionally, Dr. Seaman determined
that the tinnitus rating was zero. He reiterated that appellant’s hearing loss was not due to noise
damage.
By decision dated March 1, 2017, OWCP denied appellant’s claim on the fifth basic
element, causal relationship, hiding that he had not established that he sustained hearing loss
causally related to the accepted factors of his federal employment. It explained that the reason
for the finding was that Dr. Seaman opined that appellant’s hearing loss was due to presbycusis
(age) and not industrial noise exposure. OWCP noted that appellant’s hearing was within normal
limits at the time of his retirement on February 22, 1991 and there was no other evidence
submitted establishing a link between his federal employment and the current hearing loss.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty, as alleged, and
that any disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 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.6
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) a 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 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, generally, is 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 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.7

5

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

Victor J. Woodhams, 41 ECAB 345 (1989).

7

Id.

4

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he
sustained hearing loss causally related to the accepted factors of his federal employment.
Appellant did not provide any medical evidence providing a rationalized medical opinion
supportive of his claim for employment-related occupational hearing loss.
OWCP referred appellant to a second opinion physician, Dr. Seaman, who concluded that
appellant did not have any sensorineural hearing loss due to his federal employment. On
February 16, 2017 Dr. Seaman examined appellant and reviewed the medical record, including
the sequential audiograms conducted during appellant’s federal employment. He explained that
appellant’s chief complaints were hearing loss and very occasional tinnitus, which was not
bothersome. Dr. Seaman noted that appellant related that he first noticed hearing loss about 10
years ago, that he did not have any significant tinnitus, and he had never worn hearing aids. He
reviewed the record and explained that, at the time of appellant’s retirement in 1991, his hearing
was well within normal range. Dr. Seaman explained that since that time, his hearing
deteriorated remarkably. He also noted that appellant had participated in the hearing
conservation program. Dr. Seaman diagnosed binaural sensorineural hearing loss and explained
that appellant’s hearing loss at the beginning and the end of his federal employment was within
normal limits.
With regard to comparing appellant’s present audiometric findings with those at the
beginning of exposure, Dr. Seaman advised that it was not applicable because appellant had
moderate to severe sensorineural hearing loss that came on since his retirement. He also
explained that, while his workplace exposure could have easily contributed to his hearing loss,
there was no evidence to support that this occurred. Additionally, there were no other significant
contributory factors other than presbycusis. Dr. Seaman advised that there was no evidence of
Meniere’s disease or acoustic neuroma. He recommended hearing aids for both ears, based upon
presbycusis and not on industrial noise damage. Dr. Seaman opined that his conclusion was
based upon appellant’s audiometric findings which were well within normal limits. He
referenced the A.M.A., Guides and determined that appellant had monaural hearing loss of
28.125 percent on the left and 31.875 percent on the right, for a binaural loss of 28.75 percent.
Dr. Seaman also found that appellant had a zero tinnitus rating. He reiterated that appellant’s
hearing loss was not due to noise damage.
Although appellant was exposed to noise while in the performance of his federal
employment duties, the medical evidence of record is insufficient to establish that he had hearing
loss causally related to the accepted factors of his federal employment. Thus, the evidence of
record is insufficient to establish his claim.8
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.

8

See Mary E. Marshall, 56 ECAB 420, 427 (2005).

5

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained hearing loss causally related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the March 1, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 11, 2018
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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS BASE, Albany, GA,
Employer
__________________________________________

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

Docket No. 10-440
Issued: October 15, 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 December 7, 2009 appellant, through his attorney, filed a timely appeal from a
November 5, 2009 nonmerit decision of the Office of Workers’ Compensation Programs denying
his request for reconsideration as it was untimely and did not establish clear evidence of error.
As the last merit decision of the Office is dated July 13, 2004, more than one year before the
filing of this appeal, the Board lacks jurisdiction to review the merits of this case pursuant to 20
C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
it was untimely and did not demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board. On February 14, 2005 the Board
affirmed Office decisions finding that appellant failed to establish that he sustained a cardiac

condition causally related to factors of his federal employment.1 The Board discussed his
allegations that he was exposed to fumes from Turco 6776 Thin at work, but noted that the
employing establishment disputed the extent of his exposure. The Board concluded that the
medical evidence was insufficient to establish that appellant sustained a cardiac condition as a
result of his alleged chemical exposure in the course of his employment. The findings of fact
and conclusions of law from the prior decision are hereby incorporated by reference.
In a letter dated November 25, 2008, appellant related that he requested but did not
receive a respirator when cleaning vats of Turco 6776. The Occupational Safety & Health
Administration (OSHA) tested the air quality and found that the employing establishment
violated the proper procedures for using Turco 6776. OSHA ordered the cleaning vats moved to
another area and that workers wear protective clothing and breathing apparatus. Appellant
related that his cardiologist recommended that he be moved from the area where Turco 6776 was
used.
On January 11, 2009 appellant requested reconsideration. He based his request for
reconsideration on the employing establishment’s violation of safety rules and evidence not
previously submitted. Appellant contended that the employing establishment did not notify him
of its experimental use of Turco 6776, provide protection from the chemical or test for side
effects.
In support of his request for reconsideration, appellant submitted an October 22, 2004
material safety data sheet (MSDS) on Turco 6776 Thin and the OSHA guidelines for exposure to
formic acid. The MSDS indicates that prolonged contact could interfere with the nervous system
and provides exposure limits. The OSHA guidelines noted that it is “dangerously irritating to the
skin, eyes and mucous membranes and may also be toxic to the kidneys.” It provides that
workers should wear protective equipment.
An article from the Institute for Manufacturing and Sustainment Technologies (IMST)
noted that the employing establishment was testing different chemical strippers, including Turco
6776 Thin, to determine the most effective. In a memorandum dated August 28, 2001, the
employing establishment noted that it was evaluating different chemical strippers. At the
conclusion of the project in June 2001, it selected Turco 6776 Thin. An August 2001 survey
indicated that no respiratory protection was recommended.
In a notice of unsafe or unhealthful working conditions dated January 21, 2003, OSHA
determined that the employing establishment did not inform employees of the dangers of
chemical exposure, ensure adequate airflow or evaluate respiratory hazards at the Turco 6776
paint stripper tank. The OSHA further found that the tank of Turco 6776 was not labeled and

1

Docket No. 04-2057 (issued February 14, 2005). In 2002 appellant, then a 48-year-old heavy mobile equipment
mechanic, filed claims alleging that he sustained problems with his central nervous system due to chemical exposure
to Turco 6776.

2

contained a potentially hazardous atmosphere after drainage when employees had to enter the
area and clean the bottom of the tank.2
Appellant submitted an article that described recommended improvements at the
employing establishment in the metalworking area. The article noted that “previous processes
had produced hazardous waste and emitted hazardous air pollutants….”
The medical evidence submitted by appellant in support of his request for reconsideration
included a February 17, 1993 respiratory certification and a September 11, 2003 letter from a
nurse indicating that he could not be certified to use a forklift as his physician restricted his
exposure to noxious fumes. In a chart note dated October 4, 2002, appellant related that he
believed that Turco 6776 was harming his central nervous system. On November 21, 2002 a
medical provider noted that the OSHA sampling found that the formic acid was within
acceptable limits on the date tested.
Appellant resubmitted reports from Dr. Robert V. Glover, Jr., a cardiologist, dated
February 11, 2003 to April 6, 2004. He also submitted a December 17, 2008 and June 15, 2009
medical reports regarding his back pain.
By decision dated February 11, 2009, the Office denied appellant’s request for
reconsideration after finding that it was not timely and did not show clear evidence of error.
Appellant appealed to the Board. On October 21, 2009 the Board issued an order
remanding the case. The Board determined that the Office’s February 11, 2009 nonmerit
decision failed to provide sufficient factual findings and legal conclusions to conform to the
requirements for a decision under 5 U.S.C. § 8124 and 20 C.F.R. § 10.126.3
In a decision dated November 5, 2009, the Office again denied appellant’s request for
reconsideration as untimely and insufficient to establish clear evidence of error.
LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a) of the Federal Employees’ Compensation Act.4
As once such limitations, 20 C.F.R. § 10.607 provides that an application for reconsideration
must be sent within one year of the date of the Office decision for which review is sought. The
Office will consider an untimely application only if the application demonstrates clear evidence

2

On January 14, 2003 the employing establishment provided appellant’s exposure levels to formic acid and
sodium hydroxide. On January 27, 2003 it asserted that the exposure were within acceptable levels. By letter dated
January 23, 2003, the employing establishment informed appellant that the OSHA did not show overexposure to
fumes but did identify other violations.
3

Order Remanding Case, Docket No. 09-894 (issued October 21, 2009).

4

5 U.S.C. §§ 8101-8193.

3

on the part of the Office in its most recent merit decision. The application must establish, on its
face, that such decision was erroneous.5
The term “clear evidence of error” is intended to represent a difficult standard. The
claimant must present evidence which on its face shows that the Office made an error (for
example, proof of a miscalculation in a schedule award). Evidence such as a detailed, well
rationalized medical report which, if submitted prior to the Office’s denial, would have created a
conflict in medical opinion requiring further development, is not clear evidence of error and
would not require a review of the case on the Director’s own motion.6 To establish clear
evidence of error, a claimant must submit evidence relevant to the issue which was decided by
the Office. The evidence must be positive, precise and explicit and must manifest on its face that
the Office committed an error.7
ANALYSIS
The Office properly determined that appellant failed to file a timely application for
review. Its procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision.8 A right to reconsideration
within one year also accompanies any subsequent merit decision on the issues.9 As appellant’s
January 11, 2009 request for reconsideration was submitted more than one year after the last
merit decision of record, it was untimely. Consequently, he must demonstrate clear evidence of
error by the Office in denying his claim for compensation.10
The Office denied appellant’s claim on the grounds that the evidence did not establish
that he sustained a medical condition due to his exposure to Turco 6776 Thin. With his request
for reconsideration, appellant submitted evidence from OSHA showing that the employing
establishment violated certain safety requirements in handling the chemical. Appellant also
submitted the 2004 MSDS on Turco 6776 Thin and OSHA’s guidelines for exposure to formic
acid, one of the chemicals in Turco 6776 Thin. He further submitted evidence establishing that
the employing establishment experimented with Turco 6776 Thin and other chemical strippers in
2001 to determine the most effective. This evidence, however, does not show clear evidence that
the Office erred in denying appellant’s claim, as it does not establish on its face that he sustained
a cardiac condition as a result of his exposure to Turco 6776 Thin.
Appellant also submitted a February 17, 1993 respiratory certificate, a September 11,
2003 letter from a nurse noting that he was restricted from exposure to fumes and December 17,
5

20 C.F.R. § 10.607.

6

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

7

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55
ECAB 143 (2003).
8

Id. at § 10.607(a).

9

See Robert F. Stone, supra note 7.

10

Id. at § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

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2008 and June 15, 2009 medical reports addressing his back condition. None of this evidence is
relevant to the issue of whether he sustained a medical condition as a result of exposure to the
chemicals in Turco 6776 Thin. In order to establish clear evidence of error, a claimant must
submit evidence relevant to the issue which was decided by the Office.11
Appellant also resubmitted medical reports from Dr. Glover. The Board, however,
previously considered Dr. Glover’s reports and determined that they were not sufficient to
establish that appellant sustained a cardiac condition as a result of chemical exposure in the
course of his federal employment. Consequently, this evidence does not establish clear evidence
of error.
As the evidence submitted by appellant is insufficient to shift the weight of evidence in
favor of the claimant and raise a substantial question as to the correctness of the Office’s last
merit decision, he has not established clear evidence of error.12
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration as
it was untimely and did not demonstrate clear evidence of error.

11

Howard Y. Miyashiro, 51 ECAB 253 (1999).

12

See Andrew Fullman, 57 ECAB 574 (2006); Joseph R. Santos, 57 ECAB 554 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the November 5, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 15, 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
__________________________________________
K.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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

Docket No. 16-1672
Issued: January 6, 2017

Case Submitted on the Record

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

JURISDICTION
On August 15, 2016 appellant filed a timely appeal from a June 23, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the date OWCP issued its latest decision on January 19, 2016, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the claim.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence with her August 15, 2016 appeal. The Board’s jurisdiction is limited to
reviewing the evidence that was before OWCP at the time of its final decision. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On September 15, 2011 appellant, then a 50-year-old mail handler, filed a traumatic
injury claim (Form CA-1) alleging that she injured her right shoulder on September 12, 2011
while lifting heavy flat trays of mail. She stopped work on September 15, 2011 and returned on
September 20, 2011. OWCP accepted the claim for right rotator cuff tear.3 On April 24, 2012
appellant underwent OWCP-approved arthroscopic surgery to repair her torn right rotator cuff.
Appellant had previously sustained injuries to her left upper extremity on November 15,
2007 (File No. xxxxxx038) and October 28, 2010 (File No. xxxxxx176). Her accepted
conditions include left wrist ganglion cyst, left wrist tenosynovitis, and left rotator cuff tear. On
July 2, 2010 appellant had undergone left shoulder surgery. OWCP subsequently granted a
schedule award for nine percent permanent impairment of the left upper extremity.
On May 21, 2013 appellant filed a claim for a schedule award (Form CA-7) with respect
to her right upper extremity. In a December 12, 2012 report, her orthopedic surgeon, Dr. Steven
Sclafani, noted that she was status post rotator cuff repair on April 24, 2012. He also reported
that appellant had finished therapy about a month ago and was doing okay, but still had some
pain, weakness, and some loss of motion of the right shoulder. Dr. Sclafani found that she had
residual loss of motion. He concluded that appellant had “25 percent schedule loss [of] use of
the arm in Guidelines with the Workers’ Compensation Guidelines of June of 1996.”
On August 5, 2013 OWCP advised appellant that Dr. Sclafani’s December 12, 2012
report was insufficient to establish her entitlement to a schedule award. It afforded her 30 days
to submit an impairment rating in accordance with the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (2009).
By decision dated September 11, 2013, OWCP denied appellant’s claim for a schedule
award. It found the evidence of record was insufficient to establish that appellant sustained
permanent impairment to a scheduled member due to her accepted work injury.
On December 19, 2013 OWCP received appellant’s reconsideration request along with an
August 21, 2013 report from Dr. Sclafani. Dr. Sclafani reiterated that appellant had 25 percent
schedule loss of her right arm due to residual loss of motion and some atrophy of the deltoid. He
also found four to five percent upper extremity impairment due to residuals of appellant’s fullthickness rotator cuff tear, which represented class 1 impairment.
OWCP referred appellant’s medical file and a statement of accepted facts, on January 7,
2014, to its district medical adviser (DMA), for an impairment rating. The DMA suspected that
appellant’s physician was unfamiliar with the A.M.A., Guides (6th ed. 2009), and therefore,
recommended referral to an orthopedic surgeon familiar with the sixth edition of the A.M.A.,
Guides.

3

In its March 13, 2012 claim acceptance letter, OWCP noted that appellant had also been diagnosed with carpal
tunnel syndrome and lumbar radiculopathy. It advised her that those conditions were not accepted because the
record did not support that they were either caused or aggravated by the accepted employment incident.

2

On January 31, 2014 OWCP referred the DMA’s January 7, 2014 report to Dr. Sclafani
for review and offered him the opportunity to explain how he arrived at four to five percent right
upper extremity impairment based on application of the A.M.A., Guides (6th ed. 2009).
By decision dated February 21, 2014, OWCP denied modification of its prior decision. It
found that appellant had failed to provide a permanent impairment from a qualified physician
based on the sixth edition of the A.M.A., Guides.
OWCP received appellant’s January 16, 2015 request for reconsideration, along with an
October 18, 2014 medical report from Dr. David Weiss, an osteopath, specializing in pain
medicine and Board-certified in family practice. With respect to appellant’s right upper
extremity, Dr. Weiss found a combined 13 percent permanent impairment due to right carpal
tunnel syndrome (6 percent) and right rotator cuff tear (7 percent).
On April 16, 2015 a DMA reviewed appellant’s medical file for schedule award
entitlement and concurred with Dr. Weiss’ seven percent impairment rating due to appellant’s
accepted right rotator cuff tear.
By decision dated July 1, 2015, OWCP issued a schedule award for seven percent
permanent impairment of the right upper extremity. The award ran for 21.84 weeks for the
period October 18, 2014 through March 19, 2015.
In a July 8, 2015 letter, appellant, through counsel, requested an oral hearing with
OWCP’s Branch of Hearings and Review. A video hearing was held on November 20, 2015.
Counsel argued that OWCP’s medical adviser failed to consider appellant’s condition of right
carpal tunnel syndrome.
By decision dated January 19, 2016, the hearing representative affirmed OWCP’s July 1,
2015 decision. He found that there was no medical evidence of record regarding a right carpal
tunnel syndrome condition other than Dr. Weiss’ statement and, thus, there was insufficient
evidence to establish such condition.
On May 2, 2016 OWCP received appellant’s April 22, 2016 request for reconsideration.
In her April 22, 2016 letter, appellant suggested that Dr. Weiss had not taken the time to do an
accurate examination. She indicated there were disparities between the percentages she received
for her left shoulder and the pain she continues to experience with her right shoulder. Appellant
also indicated that she would get a second opinion evaluation from Dr. Carol V.R. De Costa, a
Board-certified physiatrist, and forward the results once a report was completed.4 No additional
evidence was submitted.
By decision dated June 23, 2016, OWCP denied appellant’s request for reconsideration
without conducting a merit review. It found that her request neither raised substantive legal
questions nor included relevant and pertinent new evidence.

4

The record includes previous reports from Dr. De Costa dating back to September 13, 2011.

3

LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.5 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.6 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is
sought.7 A timely application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.8 When a timely request for reconsideration does not meet at least one of
the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.9
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration
without further merit review. The underlying issue on reconsideration is whether appellant has
greater than seven percent permanent impairment of the right upper extremity. Her request for
reconsideration neither alleged nor demonstrated that OWCP erroneously applied or interpreted a
specific point of law. Rather, appellant claimed that Dr. Weiss had not taken the time to perform
an accurate examination and that she would get a second opinion evaluation from Dr. De Costa
and forward the results once a report was completed. Her statement, absent medical evidence
regarding this issue, does not constitute relevant and pertinent new evidence to substantiate her
allegation. Furthermore, appellant did not advance a relevant legal argument not previously
considered by OWCP. She therefore has not met any of the regulatory requirements and OWCP
properly declined her request for reconsideration of the merits of her claim under 5 U.S.C.
§ 8128(a).10

5

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
6

20 C.F.R. § 10.607.

7

Id. § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
8

20 C.F.R. § 10.606(b)(3).

9

Id. § 10.608(a), (b).

10

M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006); A.K., Docket No. 09-2032 (issued
August 3, 2010) (when an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(3), OWCP will deny the application for reconsideration without reopening the
case for a review on the merits).

4

On appeal, appellant argues that OWCP accepted bilateral carpal tunnel syndrome under
claim number xxxxx038. To the contrary, the record indicates that OWCP accepted her
November 15, 2007 traumatic injury claim for left wrist ganglion cyst and left wrist
tenosynovitis (xxxxxx038).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration
under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 23, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 6, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT
AGENCY, Biloxi, MS, Employer
__________________________________________

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

Docket No. 15-75
Issued: March 9, 2015

Case Submitted on the Record

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

JURISDICTION
On October 14, 2014 appellant, through his attorney, filed a timely appeal from a
September 10, 2014 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 to review the merits of this case.
ISSUES
The issues are: (1) whether appellant received a $233,110.23 overpayment of
compensation; and (2) whether he was at fault in creating the overpayment, thereby rendering
him ineligible for consideration of waiver.
FACTUAL HISTORY
On April 6, 2007 appellant, a 58-year-old National Flood Insurance Program specialist
(mitigation), sustained a traumatic injury in the performance of duty when he was involved in a
1

5 U.S.C. § 8101 et seq.

car accident while in the performance of duty. OWCP accepted his claim for right rotator cuff
sprain, right ankle deltoid ligament sprain, and left lateral meniscus tear.
Appellant received compensation for temporary total disability on the periodic rolls.
When OWCP placed him on the periodic rolls, it notified him in a letter dated September 19,
2007 that he was not permitted to receive workers’ compensation benefits concurrently with
retirement benefits:
“You must report any retirement income, disability income, or compensation
benefits from any [f]ederal agency. This is because a recipient of compensation
benefits under the [F]ederal Employees’ Compensation Act is not permitted to
receive benefits under certain other [f]ederal programs, including the Civil
Service [R]etirement [P]rogram.”
On the Form EN1032 he completed on July 8, 2008, appellant indicated that he had
received a regular retirement check during the past 15 months. He disclosed this information
each year thereafter.
In 2013 appellant informed OWCP that he received regular retirement benefits from the
Department of the Army. He explained that he was never in the military, but worked as a
firefighter and was now receiving regular retirement benefits. The Office of Personnel
Management (OPM) confirmed that appellant was in receipt of regular monthly retirement
benefits since 2003 for his civilian service with the Department of the Army.
OWCP made a preliminary determination on December 10, 2013 that appellant received
an overpayment of compensation in the amount of $233,110.23, which represented all the wageloss compensation he had received since the date of injury. It found that he received retirement
benefits concurrently with workers’ compensation benefits, in violation of 5 U.S.C. § 8116.
OWCP also found that appellant was at fault in creating the overpayment because he was aware
or reasonably should have been aware that he could not receive retirement benefits at the same
time as workers’ compensation under FECA. It noted its September 19, 2007 letter to appellant
specifically addressing this dual benefit situation.
Appellant submitted copies of an Application for Waiver of Civilian/Military Annuity
Reduction. The application advised that, under the Federal Employee Pay Comparability Act,
the employing establishment was granted authority to waive the civilian/military retirement
reduction during the first 120 days of a Presidential Disaster Declaration. The application also
advised: “Waivers must be approved on a case-by-case basis by the Director, Office of Human
Resources Management.”
Appellant completed Part A, certifying that he declined employment activation with the
National Flood Insurance Program unless a waiver for reduction of his civilian/military annuity
was granted. He further certified his understanding that this waiver would be in effect only for
the first 120 days from the date of the Presidential Disaster Declaration. Appellant signed the
application in April 2007.
An employing establishment manager completed Part B, which indicated that the date of
the Presidential Disaster Declaration was August 29, 2005. He justified the waiver by explaining
that the unique skills and abilities of the candidate were needed to support the disaster recovery
2

effort. The manager certified that the employment of the annuitant “should be made” without a
penalty to his civilian/military retirement annuity during the first 120 days of the disaster because
it was critical to the disaster response and recovery mission of the employing establishment. He
signed the application in April 2007.
Part C was not completed, signed, or dated by the Director of the Office of Human
Resources Management.
During a telephonic hearing before an OWCP hearing representative, appellant’s
representative argued that OWCP was more at fault for the creation of the overpayment than
appellant. He also argued that compensation was a replacement for wages, and if the waiver
meant no reduction in wages, there should be no reduction in compensation.
In a decision dated September 10, 2014, OWCP hearing representative finalized the
preliminary findings. She found that appellant had received an overpayment of $233,110.23, as
he could not collect retirement benefits and compensation for wage loss at the same time. The
hearing representative noted that the application for waiver did not expressly extend to wage-loss
compensation, and it applied for only 120 days, after which appellant’s salary would be reduced
because of his receipt of retirement benefits.
OWCP hearing representative further found that appellant was at fault in creating the
overpayment. Notwithstanding his disclosures on EN1032 forms, appellant should have known
that the compensation payments he received were incorrect because OWCP’s September 2007
letter clearly explained that he could not receive wage-loss compensation and retirement benefits
concurrently. As appellant was at fault, he was not eligible for waiver, and as he was no longer
receiving compensation from OWCP, the hearing representative found the debt due and payable
in full.
LEGAL PRECEDENT -- ISSUE 1
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his duty.2 While an employee is receiving
compensation, the employee may not receive salary, pay, or remuneration of any type from the
United States, except in limited specified instances.3 Thus, a beneficiary may not receive wageloss compensation concurrently with a federal retirement or survivor annuity. The beneficiary
must elect the benefit that he wishes to receive, and the election, once made, is revocable.4
When an overpayment has been made to an individual because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which an individual is entitled.5

2

5 U.S.C. § 8102(a).

3

Id. at § 8116(a).

4

20 C.F.R. § 10.421(a).

5

5 U.S.C. § 8129(a).

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ANALYSIS -- ISSUE 1
When appellant began receiving compensation for wage loss resulting from his April 6,
2007 work injury, he was in receipt of federal retirement benefits from his work as a firefighter
with the Department of the Army. In a letter dated September 19, 2007, OWCP notified him that
he was not permitted to receive both. By statute, a beneficiary may not receive wage-loss
compensation concurrently with a federal retirement annuity.
Appellant submitted an Application for Waiver of Civilian/Military Annuity Reduction;
however, the application was not approved. The form made clear that waivers must be approved
on a case-by-case basis by the Director of the Office of Human Resources Management.
However, Part C, where the Director was to approve or disapprove appellant’s application, was
left blank. The evidence, therefore, shows only that appellant requested a waiver, not that a
waiver was granted approved.
Also, any waiver of the retirement reduction would extend only for the first 120 days
from the date of the Presidential Disaster Declaration. On each copy of the application that
appellant submitted, the date of the Presidential Disaster Declaration was August 29, 2005.
Accordingly, if the waiver were approved, it would have expired long before appellant received
his first compensation payment in September 2007.
Further, the evidence appellant submitted to OWCP does not show that the Federal
Employee Pay Comparability Act grants any authority to OWCP to waive the retirement
reduction. OWCP is bound by section 8116(a) of FECA. Appellant argues that compensation is
a replacement for wages, and therefore the authority granted to the employing establishment
should also be extended to OWCP, but this would bring the two statutes into conflict. FECA
explicitly prohibits the concurrent receipt of wage-loss compensation and a federal retirement
annuity, and the Board finds that OWCP has no authority to waive the provisions of the statute.
In the case of C.M.,6 the claimant received compensation benefits for wage loss
concurrently with retirement benefits from OPM. The Board held that she received dual benefits
that were prohibited by statute, thereby creating an overpayment: “The clear language of section
8116(a) of FECA and section 10.421(a) of OWCP’s implementing regulations prohibit the
receipt of FECA wage-loss benefits and a federal annuity.”
As appellant received wage-loss compensation concurrently with a federal retirement
annuity, in violation of section 8116(a) of FECA, the Board finds that he received a prohibited
dual benefit and an overpayment of compensation. Appellant’s compensation payment history
confirms that he received $233,110.23 in gross compensation through December 14, 2013. The
Board will therefore affirm OWCP’s September 10, 2014 decision on the issues of fact and
amount of overpayment.
LEGAL PRECEDENT -- ISSUE 2
OWCP may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
6

Docket No. 14-696 (issued December 18, 2014).

4

benefits is responsible for taking all reasonable measures to ensure that payments he received
from OWCP are proper. The recipient must show good faith and exercise a high degree of care
in reporting events which may affect entitlement to or the amount of benefits. A recipient who
has done any of the following will be found to be at fault with respect to creating an
overpayment: (1) Made an incorrect statement as to a material fact which he knew or should
have known to be incorrect; or (2) Failed to provide information which he knew or should have
known to be material; or (3) Accepted a payment which he knew or should have known to be
incorrect (this provision applies only to the overpaid individual).7
Whether or not OWCP determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he is being overpaid.8
The fact that OWCP may have erred in making the overpayment does not, by itself,
relieve the individual who received the overpayment from liability for repayment if the
individual was also at fault in accepting the overpayment.9
ANALYSIS -- ISSUE 2
When OWCP placed appellant on the periodic rolls in September 2007, it notified him
that he was not permitted to receive wage-loss compensation concurrently with a federal
retirement annuity. As appellant was already in receipt of a federal retirement annuity, he should
have known that the payments he would soon begin to receive from OWCP were incorrect.
Appellant argued that he was granted a special waiver to receive both a federal retirement
annuity and compensation for wage loss. But as discussed above, the evidence does not support
this assertion. The approval section of the application was left blank and, by its own terms, the
waiver would have expired long before appellant began to receive wage-loss compensation. The
application gave no indication that OWCP was granted any authority to waive the provisions of
FECA. Notwithstanding what he alleges he knew, the Board finds that appellant should have
known, after receiving OWCP’s September 19, 2007 correspondence, that he could not collect
his federal retirement annuity and compensation for wage loss concurrently.
Appellant argued that he truthfully and consistently disclosed that he was in receipt of
regular retirement checks, and that OWCP was therefore more negligent than he in allowing the
payments to continue. However, the standard is not one of comparative negligence. The fact
that OWCP erred in making the payments does not relieve the individual who received the
overpayment of liability for repayment if the individual was also at fault in accepting the
overpayment.

7

20 C.F.R. § 10.433(a).

8

Id. at § 10.433(b).

9

Id. at § 10.433(a).

5

The Board finds that appellant was at fault in creating the overpayment on the basis that
he accepted payments which he knew or should have known to be incorrect. Accordingly, the
Board will affirm OWCP’s September 10, 2014 decision on the issue of fault.
The Board’s jurisdiction to review the collection of an overpayment is limited to cases of
adjustment, where OWCP decreases later payments of compensation to which the individual in
entitled.10 Because collection of the overpayment in this case cannot be made by adjusting later
payments -- appellant is no longer receiving wage-loss compensation -- the Board has no
jurisdiction to review the issue of recovery of the overpayment.
CONCLUSION
The Board finds that appellant received a $233,110.23 overpayment of compensation.
The Board also finds that he was at fault in creating the overpayment and is therefore not eligible
for consideration of waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the September 10, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 9, 2015
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

10

5 U.S.C. § 8129; Levon H. Knight, 40 ECAB 658 (1989).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.H., Appellant
and
DEPARTMENT OF THE NAVY, FLEET &
INDUSTRIAL SUPPLY CENTER, Norfolk, VA,
Employer
__________________________________________

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

Docket No. 14-1462
Issued: November 3, 2014

Case Submitted on the Record

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

JURISDICTION
On June 16, 2014 appellant filed a timely appeal from a January 10, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. As more than 180 days elapsed from the last merit decision dated July 3, 2013
to the filing of this appeal, the Board lacks jurisdiction to review the merits of his claim pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request to reopen his claim for
further review of the merits under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 14, 2012 appellant, then a 65-year-old budget clerk, filed a traumatic injury
claim alleging that on August 28, 1997 he sprained his lower back while moving office furniture.
He did not stop work. The employing establishment indicated that it had received notice of the
claim on May 11, 2012 and that appellant had retired on December 1, 1997. It asserted that the
claim was not timely filed.
By letter dated May 16, 2012, OWCP acknowledged receipt of the claim. In a letter
dated May 30, 2012, it advised appellant that the evidence was insufficient to show that he
timely filed his claim. OWCP requested that he submit evidence establishing that he filed his
claim within three years of the date of injury or that his immediate supervisor had actual
knowledge of the injury within 30 days. The letter was not properly addressed and was returned
to sender.
By decision dated July 2, 2012, OWCP denied appellant’s claim on the grounds that it
was not timely filed. It determined that he had not filed his claim within three years of the date
of injury or demonstrated that his supervisor had actual knowledge of the injury within 30 days.
On June 17, 2014 appellant requested reconsideration. He submitted medical evidence
from 1990 and 1997 and a December 10, 2004 statement to OWCP regarding a 1990 claim.
By decision dated July 3, 2013, OWCP denied modification of its July 2, 2012 decision.
It determined that appellant had not submitted any evidence supporting that his claim was timely
filed under 5 U.S.C § 8122.
On August 21, 2013 appellant again requested reconsideration of his claim. He related
that OWCP mailed him letters on March 7 and May 30, 2012 that were incorrectly addressed.
Appellant indicated that he received the letters in the middle of June 2013. He asserted that
OWCP denied his claim because he did not timely respond to OWCP’s letters of March and
May 2012.
By letter dated August 28, 2013, OWCP asked that appellant specify the decision from
which he was requesting reconsideration and the issue involved.
On September 30, 2013 appellant requested reconsideration of a “recent rejection notice
decision.” He related that he did not have any problems with his lower back until his injuries in
1990 and 1997. In a report dated August 29, 2013, a physician noted that appellant sustained an
injury to his low back at work on February 28, 1990 and received treatment from 1990 to 2003
for occasional low back pain, including numerous times in 1997. The physician diagnosed
lumbosacral strain and progressive traumatic degenerative disc disease.
By letter dated October 24, 2013, appellant requested reconsideration of the July 2, 2012
decision. He related that OWCP letters dated March 7, May 16 and 30, 2012 were returned to
sender and only received in the middle of June 2013; consequently, he could not timely respond
to the letters. In an unsigned medical report dated February 24, 2003, a physician diagnosed
degenerative joint disease of the left knee and low back pain with degenerative arthritis.

2

By decision dated January 10, 2014, OWCP denied appellant’s request to reopen his case
for further merit review under section 8128. It found that he had not submitted evidence or
raised an argument relevant to the determination of whether his claim was timely filed.
On appeal, appellant asserts that the medical evidence shows that he has degenerative
arthritis from a back injury. He also maintains that he wants to appeal the denial of a 1990 claim
for low back sprain. Appellant relates that he believes prior back injuries contributed to his
current condition.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,2
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.3 To be entitled to a merit review of an OWCP decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.4 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review on the
merits.5
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case.6 The Board also has
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case.7 While the 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.8
ANALYSIS
In the last merit decision dated July 3, 2013, OWCP denied modification of its finding
that appellant had not established that he timely filed his traumatic injury claim. On
October 24, 2013 appellant requested reconsideration.
2

5 U.S.C. § 8101 et seq. Section 8128(a) of FECA provides that “[t]he Secretary of Labor may review an award
for or against payment of compensation at any time on his own motion or on application.”
3

20 C.F.R. § 10.606(b)(3).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

6

F.R., 58 ECAB 607 (2007); Arlesa Gibbs, 53 ECAB 204 (2001).

7

See P.C., 58 ECAB 405 (2007); Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB
180 (2000).
8

See Vincent Holmes, 53 ECAB 468 (2002); Robert P. Mitchell, 52 ECAB 116 (2000).

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As noted above, the Board does not have jurisdiction over the July 3, 2013 decision. The
issue presented on appeal is whether appellant met any of the requirements of 20 C.F.R.
§ 10.606(b)(3), requiring OWCP to reopen the case for further review of the merits of the claim.
In his request for reconsideration, appellant did not show that OWCP erroneously applied or
interpreted a specific point of law. He did not identify a specific point of law or show that it was
erroneously applied or interpreted. Appellant did not advance a new and relevant legal
argument. He argued that he did not receive March 7 and May 16 and 30, 2012 letters from
OWCP until the middle of June 2012. The underlying issue in this case is whether appellant has
established that he filed his traumatic injury claim within three years of the date of injury or that
his supervisor had actual knowledge of the injury within 30 days.9 The record does not contain a
letter from OWCP to appellant dated March 7, 2012 under the current file number. OWCP
acknowledged receipt of appellant’s claim in its May 16, 2012 letter. On May 30, 2012 it
advised him of the type of evidence necessary to establish his claim. While the March 7 and
May 30, 2012 letters were not properly addressed, appellant received the letters by the middle of
June 2013 and had the opportunity to provide additional evidence to OWCP with his
reconsideration request. Consequently, his allegation has no reasonable color of validity.10
Appellant also submitted medical evidence but the evidence did not address the issue of whether
he timely filed a claim for an August 28, 1997 employment injury. Evidence that does not
address the particular issue involved does not warrant reopening a case for merit review.11
On appeal, appellant asserts that he wants to appeal the denial of a 1990 claim for low
back sprain. He maintains that his previous back injuries contributed to his current condition.
The Board’s jurisdiction, however, is limited to reviewing final adverse decisions of OWCP filed
within 180 days.12 Consequently, these issues are not before the Board at this time.
On appeal, appellant relates that the medical evidence establishes that he has
degenerative arthritis from a back injury. As discussed, however, the issue is whether he
submitted new evidence or raised a new argument relevant to the underlying issue of whether he
timely filed his claim for an August 28, 1997 traumatic injury. The medical evidence submitted
is not relevant to this issue and thus insufficient to warrant reopening appellant’s case for further
merit review.13

9

Section 8122(a) of FECA provides that an original claim for compensation for disability or death must be filed
within three years after the injury or death. Section 8122(b) provides that, in latent disability cases, the time
limitation does not begin to run until the claimant is aware or by the exercise of reasonable diligence should have
been aware, of the causal relationship between the employment and the compensable disability. Even if a claim was
not timely filed within the three-year period of limitation, it would still be regarded as timely under section
8122(a)(1) if the immediate superior had actual knowledge of his alleged employment-related injury within 30 days
or written notice of the injury was provided within 30 days pursuant to section 8119. See 5 U.S.C. §§ 8122(a)(1);
8122(a)(2); see also Larry E. Young, 52 ECAB 264 (2001).
10

See supra note 8.

11

See J.P., 58 ECAB 289 (2007); Freddie Mosley, 54 ECAB 255 (2002).

12

20 C.F.R. §§ 501.2(c) and 501.3.

13

Id.

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The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a specific
point of law, advance a relevant legal argument not previously considered by OWCP or submit
relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request to reopen his claim for
further review of the merits under section 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the January 10, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 3, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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