United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.E., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 09-1013
Issued: October 26, 2009

Oral Argument September 24, 2009

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

JURISDICTION
On March 9, 2009 appellant timely appealed the December 4, 2008 merit decision of the
Office of Workers’ Compensation Programs, which denied her occupational disease claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant’s claimed right shoulder condition is employment related.
FACTUAL HISTORY
Appellant, a 56-year-old limited-duty clerk, filed an occupational disease claim on
May 8, 2008 for tendinitis in the right hand and right shoulder.1 She identified December 1,
2007 as the date she first became aware of her employment-related condition. Appellant
attributed her current problems to working at a computer terminal keying two to three hours per
1

Appellant has an accepted claim (xxxxxx866) for right ganglion cyst and right carpal tunnel syndrome, which
arose on or about September 1, 1985.

day. She also noted that the chair she used was not ergonomically safe. Additionally, appellant
claimed there was a continuous flow of cold air blowing directly on her right side.2
In April 2007, Dr. Margit L. Bleecker, a Board-certified neurologist, began treating
appellant with respect to her right upper extremity.3 In addition to right carpal tunnel syndrome,
Dr. Bleecker diagnosed lateral epicondylitis, ulnar neuritis, thoracic outlet syndrome, myofascial
pain syndrome and tendinitis of the right rotator cuff.
In a report dated May 21, 2008, Dr. Bleecker noted that appellant’s right shoulder was
always aching. Appellant also reported pain shooting to the elbow. Additionally, Dr. Bleecker
noted that there was a lot of tension in the right shoulder and neck area. Appellant reportedly
attributed the stiffness to cold air blowing on her and having to sit on a broken chair without
adequate back support. Dr. Bleecker commented that appellant worked at a desktop with a
keyboard, a mouse and a gel wrist rest to alleviate pain in her right wrist. She explained that
shoulder ergonomic stressors included reaching for mail from trays and then reaching to replace
mail when appellant finished keying. Dr. Bleecker noted that another major problem was the
position of appellant’s monitor, which was “to the left and too high.” According to her,
appellant was constantly looking down at the mail and then having to look up to the left to check
the monitor to see if the information entered was correct. Dr. Bleecker indicated that the pain in
the shoulder area originated in the muscles, which had increased tension and active trigger
points. She explained that this developed because of appellant’s constant looking up to the left at
her monitor. Dr. Bleecker described a more suitable placement for the monitor that would
prevent constant rotation and extension of the neck. With respect to appellant’s decreased
shoulder range of motion, she indicated that it was most likely tendinitis of the rotator cuff due to
constant reaching to retrieve mail from trays and replace it when finished.
On August 14, 2008 the Office denied the claim because appellant failed to establish that
her diagnosed condition was due to her employment activities. Appellant requested a review of
the written record. However, she did not submit additional evidence. By decision dated
December 4, 2008, the hearing representative similarly found that appellant failed to establish
that her right shoulder condition was due to her employment. In both decisions the Office found
that Dr. Bleecker had not adequately explained her opinion on causal relationship.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act4 has the
burden of establishing the essential elements of her claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as

2

On June 10, 2008 the Office sought additional information regarding appellant’s specific employment duties.
However, neither appellant nor the employing establishment provided a detailed account of appellant’s job duties
and work environment on or about December 1, 2007. Rose E. Day, an acting supervisor, indicated that appellant
had “no real job description for her position.”
3

Dr. Bleecker first treated appellant on April 19, 2007.

4

5 U.S.C. §§ 8101-8193 (2006).

2

alleged and that any specific condition or disability claimed is causally related to the
employment injury.5
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (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 diagnosed condition is causally related to the
identified employment factors.6
ANALYSIS
Proceedings under the Act are not adversarial in nature and the Office is not a
disinterested arbiter. While the claimant has the burden to establish her entitlement, the Office
shares responsibility in the development of the evidence to see that justice is done.7 Although
Dr. Bleecker’s opinion is insufficient to discharge appellant’s burden of proving that the claimed
right shoulder condition is causally related to her federal employment, this evidence is sufficient
to require further development of the case record by the Office.8 On remand, the Office should
refer appellant, the case record, and a statement of accepted facts to an appropriate orthopedic
specialist for an evaluation and a rationalized medical opinion regarding whether appellant’s
claimed right shoulder condition is causally related to her federal employment.9 After the Office
has developed the case record to the extent it deems necessary, a de novo decision shall be
issued.

5

20 C.F.R. § 10.115(e), (f) (2008); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question, which generally requires rationalized medical opinion evidence to resolve the issue. See
Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between
the diagnosed condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment
factors. Id.
6

Victor J. Woodhams, supra note 5.

7

Horace L. Fuller, 53 ECAB 775, 777 (2002); James P. Bailey, 53 ECAB 484, 496 (2002); William J. Cantrell,
34 ECAB 1223 (1983).
8

See John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

9

The Office has not made any findings with respect to appellant’s specific employment duties on or about
December 1, 2007. Neither the employing establishment nor appellant was particularly responsive to the Office’s
June 10, 2008 request for information regarding appellant’s specific employment duties. Dr. Bleecker appears to
have been privy to much more information regarding appellant’s job duties. On remand, the Office should again
solicit input from both appellant and the employing establishment regarding the limited-duty assignment appellant
was reportedly performing at the time of her alleged injury. This information should then be incorporated into the
statement of accepted facts.

3

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 4, 2008 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: October 26, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Addison, TX, Employer
__________________________________________

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

Docket No. 09-1153
Issued: December 1, 2009

Case Submitted on the Record

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

JURISDICTION
On March 26, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated February 17, 2009 regarding a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has more than a 16 percent permanent impairment to her
left second finger.
FACTUAL HISTORY
On November 28, 2007 appellant, then a 42-year-old distribution clerk, filed an
occupational disease claim (Form CA-2) alleging that she sustained an injury to her left middle
finger as a result of repetitive motion in her federal employment. The Office accepted the claim
for left trigger finger. Appellant underwent trigger finger release surgery for the second left
finger on April 8, 2008.

In a report dated July 28, 2008, Dr. Robert Helsten, a pain management specialist,
reported appellant had 71 degrees of MP (metacarpophalangeal) joint flexion and 4 degrees of
extension. For the PIP (proximal interphalangeal) joint, the range of motion was 88 degrees
flexion and 3 degrees extension. Dr. Helsten opined that appellant had a 16 percent left second
finger impairment for MP loss of motion and 6 percent for PIP, combining for a 21 percent
impairment to the finger. He stated this converted into a four percent hand impairment or a four
percent left arm impairment.
An Office medical adviser reviewed the medical evidence and in a report dated
October 27, 2008 opined that appellant had a 16 percent left second finger impairment for loss of
motion. The medical adviser found that Dr. Helsten had incorrectly given a 16 percent
impairment for MP loss of flexion, when the proper number was 11 percent. He also indicated
that the date of maximum medical improvement was July 28, 2008.
By decision dated February 17, 2009, the Office issued a schedule award for a 16 percent
impairment to the left middle finger. The period of the award was 4.80 weeks from
July 28, 2008.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act provides that, if there is
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member
or function.1 Neither the Act nor the regulations specify the manner in which the percentage of
impairment for a schedule award shall be determined. For consistent results and to ensure equal
justice for all claimants, the Office has adopted the American Medical Association, Guides to the
Evaluation of Permanent Impairment as the uniform standard applicable to all claimants.2
ANALYSIS
In the present case, appellant submitted a report from Dr. Helsten, finding an impairment
of 21 percent to the left second finger.3 The impairment was based on loss of range of motion
for the MP and PIP joints. For the MP joint, Figure 16-25 provides the finger impairments.
Dr. Helsten reported 71 degrees of MP flexion, which is an 11 percent finger impairment under
Figure 16-25.4 The Office medical adviser found that Dr. Helsten erred by assigning a 16
percent impairment for loss of flexion. However, the medical adviser fails to acknowledge that
Dr. Helsten reported four degrees of MP extension, which would result in a five percent

1

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
2

A. George Lampo, 45 ECAB 441 (1994).

3

The medical reports use the term “long” finger and the Office identified it as the “middle” finger. The Act
refers to the fingers by numbers one through four, and the Board will follow this terminology. See 5 U.S.C. § 8107.
4

A.M.A, Guides 464, Figure 16-25.

2

impairment under Figure 16-25.5 Based on Dr. Helsten’s findings, he correctly reported a 16
percent finger impairment for loss of MP motion.
With respect to loss of PIP motion, both Dr. Helsten report a six percent impairment for
88 degrees of flexion, based on Figure 16-23. The reported three degrees of PIP extension does
not result in a ratable impairment. The 16 percent MP impairment and the 6 percent PIP
impairment are combined, rather than added, using the Combined Values Chart.6 Combing 16
and 6 results in a 21 percent impairment. The Board accordingly finds that appellant’s finger
impairment was 21 percent based on the evidence of record.
On appeal, appellant indicates that Dr. Helsten reported a four percent arm impairment.
It is well established, however, that only when the residuals of an injury extend into an adjoining
area of a scheduled member is the larger member utilized for a schedule award.7 In this case,
there was no evidence that the injury extended beyond the second finger. The schedule award
was properly based on an impairment to the second finger.
Pursuant to 5 U.S.C. § 8107, the maximum impairment for the second finger is 30 weeks
of compensation. Since appellant has a 21 percent impairment, she is entitled to 21 percent of 30
weeks, or 6.30 weeks. She received 4.80 weeks of compensation; therefore, she is entitled to an
additional 1.50 weeks. The case will be remanded for an appropriate decision.
CONCLUSION
The medical evidence establishes a 21 percent impairment to the left second finger,
entitling appellant to 6.30 weeks of compensation.

5

Id. The Board notes that 4 degrees falls in between the angles listed in Figure 16-25 (0 degrees is a five percent
impairment, 10 degrees is a three percent impairment). While the A.M.A., Guides indicate that impairment values
may be adjusted proportionally, Dr. Helsten assigned the closest value of five percent, and the A.M.A., Guides do
not prohibit this method.
6

Id. at 465. The Combined Values Chart is at page 604.

7

Dennis R. Stark, 57 ECAB 306 (2006); Charles B. Carey, 49 ECAB 528 (1998).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 17, 2009 is set aside and the case remanded for action
consistent with this decision of the Board.
Issued: December 1, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


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

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

Docket No. 10-341
Issued: October 21, 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 November 18, 2009 appellant filed a timely appeal from an October 19, 2009 merit
decision of the Office of Workers’ Compensation Programs establishing his wage-earning
capacity. 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 made a retroactive determination that appellant’s
actual earnings as a modified rural carrier fairly and reasonably represented his wage-earning
capacity.
FACTUAL HISTORY
On February 15, 2006 appellant, a 60-year-old rural letter carrier, filed an occupational
disease claim alleging that he developed a left shoulder condition and bilateral carpal tunnel
syndrome (CTS) as a result of repetitive work activities. The Office accepted his claim for left
shoulder impingement, left rotator cuff tear and bilateral CTS. It approved left carpal tunnel

release surgery. Appellant stopped work at the time of his surgery and was placed on the
periodic rolls.1
In a December 6, 2006 report, Dr. Patrick J. Moriarty, an attending Board-certified
orthopedic surgeon, advised that appellant was able to return to light duty provided that he
engage only in “light, clean activities with the surgical hand.” He was restricted from working at
or above shoulder level and from repetitive lifting above 20 pounds with the left arm.
On December 12, 2006 appellant accepted a job offer as a modified rural carrier. His
included answering telephones, casing checks and delivering some rural route packages.
Permanent restrictions included light, clean activities with the surgical hand; no repetitive
pushing or pulling with the left arm; no work at or above shoulder level with the left arm.
Appellant submitted claims for lost wages commencing September 26, 2007, alleging
that his limited-duty job offer was withdrawn on that date. He was told that he was disability
retired and instructed to turn in his badge.
Appellant submitted an undated statement from a coworker, who witnessed a
conversation between appellant and Dan Delisle, the postmaster, on September 26, 2007.
Mr. Delisle informed appellant that his job status was retired as of the previous Thursday.
Appellant’s job was gone, including his light-duty assignment.
In a July 24, 2007 letter, the Office of Personnel Management (OPM) advised appellant
that it had received his Federal Employment Retirement System (FERS) application for disability
retirement. A September 27, 2007 notice of personnel action (Form SF50) reflected that
appellant retired on disability as of September 20, 2007.
The record contains a July 23, 2007 letter from appellant to “HRSSC,
Retirement/Separations, P.O. Box 970500, Greensboro, NC.” Appellant requested that the
agency discontinue all work on medical retirement for me. By letter dated October 30, 2007,
OPM advised appellant that his application for disability retirement benefits had been withdrawn
per his request.
In a November 27, 2007 letter, appellant stated that he received a “paper for retirement”
after he faxed Shared Services a notice that he did not want to retire. When he informed the
postmaster that he did not want to retire, he was told that it was “up to Dept of Labor to find me
a job.” Appellant submitted several letters to the postmaster requesting reassignment to the
limited-duty job he held in September 2007, or to a similar position.
On February 28, 2008 the Office requested information from the employing
establishment regarding the limited-duty job held by appellant upon his return to work on
December 12, 2006, including: whether his duties changed from the time he began working to
the date he last worked; whether the job would have remained available to him had he not
requested retirement; and if so, was the job temporary.
1

On December 18, 2007 the Office granted appellant a schedule award for a 15 percent permanent impairment of
the left upper extremity.

2

The employing establishment informed the Office that appellant asked for and accepted a
formal disability retirement. After appellant’s retirement, the vacated position was posted and
acquired by the most senior bidder. He later changed his mind and petitioned to withdraw his
application for retirement. As any other prospective employee, appellant would be required to
go through the hiring process again to be considered for employment.
In a February 28, 2008 letter, the employer noted that appellant worked in a permanent
modified assignment from March 9, 2006 until the date of his retirement. The position would
have remained available to him if he had not retired. The employing establishment informed the
Office that appellant’s weekly pay rate when his disability began was $1,043.33, which was
identical to the current weekly pay rate for the job and step when injured.
By decision dated March 27, 2008, the Office found that appellant’s actual wages of
$1,043.33 in his modified position, effective December 12, 2006, fairly and reasonably
represented his wage-earning capacity. Appellant demonstrated an ability to perform the duties
of the job for two months or more, and the position was found suitable to his partially disabled
condition. The Office noted that his date-of-injury pay rate was $1,043.33, that the current pay
rate for his date-of-injury position was $1,043.33, and that the employing establishment had
advised that the position would have remained available had he not retired. As appellant’s wages
met or exceeded the wages of the job he held when injured, his entitlement to wage-loss
compensation ceased when he was reemployed with no loss in wage-earning capacity.
In a March 28, 2008 letter, appellant contended that his request to withdraw the
application for disability retirement was not received in a timely fashion, because he was given
an incorrect fax number.
On April 26, 2008 appellant requested an oral hearing. He alleged that the modified job
would not have remained available had he not stopped working on September 20, 2007.
In a March 16, 2009 letter, appellant’s representative contended that appellant sent his
request to stop the retirement process to the wrong party, as he had been given the wrong fax
number. Appellant believed he had followed correct procedures, because he received a letter
from OPM repealing his disability retirement and the employing establishment informed him that
he would be going back to work.
Appellant submitted a copy of his July 23, 2007 letter requesting that all work on medical
retirement be stopped, together with a fax coversheet directed to: HRSSC (651) 994-3543. By
letter dated October 18, 2007, the employing establishment notified him that it was currently
reviewing the issue as to whether he rescinded his disability retirement that was effective
September 20, 2007.
At the July 17, 2009 telephonic hearing, appellant described his duties in his modified
job, which included answering telephones, delivering packages and casing checks. He stated that
there was no end date for his modified position. Appellant put in for retirement in May 2007,
because he believed it was financially beneficial to do so. When he was informed in July 2007
that his benefits would be reduced when he attained the age of 62, he changed his mind and sent
a fax telling Shared Services to stop all efforts on his retirement. Appellant’s fax was not

3

received by Shared Services, however, because he was given the wrong fax number. Because
OPM did not receive his request to stop his retirement application, the retirement was not
vacated until October 30, 2007. When appellant received a September 12, 2007 letter stating that
his application for retirement had been approved, he assumed it was a mistake.
Counsel argued that the employing establishment withdrew the modified carrier position.
Because appellant’s retirement was rescinded, he was entitled to go back to work. As the
employing establishment was unable to accommodate his restrictions, he was totally disabled.
By decision dated October 19, 2009, an Office hearing representative affirmed the
March 27, 2008 decision, finding that the Office properly made a retroactive determination that
appellant’s actual earnings in his limited-duty position effective December 12, 2006 fairly and
reasonably represented his wage-earning capacity. The representative found that the reason
appellant stopped work was due to the approval of his application for disability retirement, rather
than to the employment injury. He further found that the job was permanent and full time, with
regular job duties, and was not make-shift in nature.
LEGAL PRECEDENT
Section 8115(a) of the Federal Employees’ Compensation Act provides that, in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by actual earnings if actual earnings fairly and reasonably represent the wage-earning
capacity.2 Generally wages actually earned are the best measure of a wage-earning capacity and,
in the absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.3
The Office’s procedure manual states that, when an employee cannot return to the dateof-injury job because of disability due to work-related injury or disease, but does return to
alternative employment, the claims examiner must determine whether the earnings in the
alternative employment fairly and reasonably represent the employee’s wage-earning capacity.4
The procedure manual provides in relevant part that to determine whether a claimant’s
work fairly and reasonably represents his wage-earning capacity, the claims examiner should
consider whether the kind of appointment and tour of duty are at least equivalent to those of the
job held on the date of injury. Unless they are, the work may not be considered to be suitable.5
The Office’s procedure manual provides that the Office can make a retroactive wageearning capacity determination if appellant worked in the position for at least 60 days, the

2

5 U.S.C. §§ 8101-8193, § 8115(a).

3

Selden H. Swartz, 55 ECAB 272, 278 (2004).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (July 1997).
5

Id. at Chapter 2.814.7(a).

4

position fairly and reasonable represented his wage-earning capacity and the work stoppage did
not occur because of any change in his injury-related condition affecting the ability to work.6
ANALYSIS
The Board finds that the Office’s retroactive determination that appellant’s actual
earnings as a modified rural carrier fairly and reasonably represented his wage-earning capacity
was proper under the circumstances of this case. The record reflects that appellant worked in his
modified position for more than 60 days, the work stoppage did not occur due to any change in
his injury-related condition affecting his ability to work and the employment fairly and
reasonably represents his wage-earning capacity.7
The Office accepted appellant’s claim for left shoulder impingement, left rotator cuff tear
and bilateral carpal tunnel syndrome. Effective December 12, 2006, appellant accepted a
modified rural carrier position, with duties and restrictions in accordance with those
recommended by his treating physician. He worked in the modified position until his application
for disability retirement was accepted by OPM effective September 20, 2007. The record,
therefore, establishes the first of the three requirements for a retroactive wage-earning capacity
determination, namely that he worked in his modified position for more than 60 days.
The record also establishes that the work stoppage did not occur because of any change in
appellant’s injury-related condition affecting his ability to work. Rather, the work stoppage was
related to his application for disability retirement. Appellant stated that he applied for disability
retirement because he believed that it was financially beneficial. There is no medical evidence to
establish his disability for work commencing September 20, 2007, or any medical opinion that
appellant’s work stoppage was causally related to a change in his employment-related
conditions.
Appellant contends that he attempted to withdraw his application when he learned that
his disability retirement was not financially to his advantage, and that the process was derailed
because he was given an incorrect fax number. The issue, however, is whether his work
stoppage on September 20, 2007 occurred because of any change in his injury-related conditions
affecting his ability to work. The evidence establishes that the work stoppage occurred because
the employing establishment received notice that appellant’s application for disability retirement
was effective September 20, 2007.8 The employing establishment stated that the modified
position would have continued to be available to appellant had he not retired. Appellant has not
provided any evidence to the contrary. Upon notice of his retirement, the job was posted and
acquired by the most senior bidder. The fact that appellant changed his mind about whether to
retire does not establish that his employer withdrew the position for reasons related to his injuryrelated condition.
6

Id. at Chapter 2.814.7(e).

7

Id.

8

A determination made for disability retirement purposes is not determinative of the extent of physical disability
or impairment for compensation purposes under the Act. James E. Norris, 52 ECAB 93 (2000).

5

In this case, the Office properly determined that appellant’s actual wages fairly and
reasonably represent his wage-earning capacity.9 The record reflects that the requirements and
restrictions of the job were consistent with those provided by his physician. Appellant worked at
the light-duty position for more than 60 days, with no probative evidence that the work stoppage
was due to a change in the employment-related condition. There is no evidence that the lightduty position was part time, sporadic, seasonal or temporary work.10 As noted, actual wages
earned are generally the best measure of wage-earning capacity, and the Board finds that the
Office properly found that the actual earnings fairly and reasonably represented appellant’s
wage-earning capacity. The requirements for a retroactive wage-earning capacity determination
have accordingly been met.
The actual earnings in the position are compared with the current wages of the date-ofinjury position to determine loss of wage-earning capacity.11 The record indicates, and appellant
does not contest, that the actual wages were equal to the current date-of-injury position wages.
Accordingly, the Office properly determined that appellant had no loss of wage-earning
capacity.12
CONCLUSION
The Board finds that the requirements for a retroactive wage-earning capacity
determination have been met in this case, and thus the Office properly determined that appellant
had no loss of wage-earning capacity.

9

5 U.S.C. § 8115(a). Dennis E. Maddy, 47 ECAB 259 (1995).

10

See Monique L. Love, 48 ECAB 378 (1997).

11

Albert C. Shadrick, 5 ECAB 376 (1953); 20 C.F.R. § 10.303.

12

See Mary Jo Colvert, 45 ECAB 575 (1974); see also Federal (FECA) Procedure Manual, supra note 4 at
Chapter 2.814.7(a).

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
October 19, 2009 decision is affirmed.
Issued: October 21, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
STATION, Milton, FL, Employer
__________________________________________

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

Docket No. 08-269
Issued: May 1, 2008

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 November 5, 2007 appellant filed a timely appeal from an August 7, 2007 nonmerit
decision of the Office of Workers’ Compensation Programs which denied his request for
reconsideration without reviewing the merits of the claim. Because more than one year has
elapsed from the last merit decision, dated July 17, 2006, to the filing of this appeal, the Board
lacks jurisdiction to review the merits of appellant’s claim 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
without conducting a merit review.
FACTUAL HISTORY
On March 24, 2005 appellant, then a 46-year-old quality assurance specialist, filed an
occupational disease claim stating that he developed bilateral hearing loss in the performance of
duty. Appellant first realized his condition on February 25, 2005. He did not stop work. In a

March 22, 2005 statement, appellant noted his history of noise exposure at the employing
establishment. The employing establishment provided personnel records and audiograms
establishing that appellant had worked in his federal civilian employment since approximately
1983 and had previously been exposed to noise from various sources while working in the
military between 1977 and 1983.
On August 17, 2005 the Office referred appellant, along with a statement of accepted
facts, to Dr. John S. Keebler, a Board-certified otolaryngologist, for a second opinion
examination to determine whether appellant had developed bilateral hearing loss as a result of his
federal civilian employment.
In a September 6, 2005 report, Dr. Keebler diagnosed bilateral moderate sensorineural
hearing loss and opined that it was due to noise exposure during appellant’s federal civilian
employment. He noted that appellant’s hearing capability had changed significantly since
beginning his employment in 1983. Dr. Keebler recommended that appellant undergo yearly
audiograms, avoid noise exposure and consider hearing aids. An audiogram performed on
Dr. Keebler’s behalf tested appellant’s hearing at the 500, 1,000, 2,000 and 3,000 cycles per
second levels and recorded the following losses: 30, 35, 25 and 30 decibels in the right ear and
40, 35, 40 and 45 decibels in the left ear.
In a September 27, 2005 report, an Office medical adviser applied Dr. Keebler’s
audiometric findings to the American Medical Association, Guides to the Evaluation of
Permanent Impairment. He concluded that appellant had 10 percent binaural hearing loss.
By decision dated September 29, 2005, the Office accepted appellant’s claim for bilateral
noise-induced hearing loss. On October 10, 2005 appellant claimed a schedule award. On
April 6, 2006 the Office granted appellant a schedule award for 10 percent binaural hearing
impairment. By correspondence dated April 17, 2006, appellant requested a review of the
written record.
By decision dated July 17, 2006, an Office hearing representative affirmed the schedule
award, finding that appellant had not presented any medical evidence to establish greater
impairment.
In a July 13, 2007 request for reconsideration, appellant stated that he was submitting a
report from Dr. Michael J. Rinaldi to support additional hearing impairment. Appellant asserted
that the Office should refer his claim to an impartial medical examiner. He also contended that
the Office was obliged to request a supplemental report, if needed, from his attending physician.
No report from Dr. Rinaldi appears in the record.
By decision dated August 7, 2007, the Office denied appellant’s request for
reconsideration, without conducting a merit review. It found that the evidence was insufficient
to warrant further merit review of his claim.
LEGAL PRECEDENT
Under section 8128 of the Federal Employees’ Compensation Act, the Office has
discretion to grant a claimant’s request for reconsideration and reopen a case for merit review.
2

Section 10.606(b)(2) of the implementing federal regulations provides guidance for the Office in
using this discretion.1 The regulations provide that the Office should grant a claimant merit
review when the claimant’s request for reconsideration and all documents in support thereof:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by [the
Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”2
Section 10.608(b) provides that when an application for review of the merits of a claim
does not meet at least one of the three requirements enumerated under section 10.606(b)(2), the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.3 When reviewing an Office decision denying a merit review, the function of the
Board is to determine whether the Office properly applied the standards set forth at section
10.606(b)(2) to the claimant’s application for reconsideration and any evidence submitted in
support thereof.4
ANALYSIS
The Board finds that the Office properly denied appellant’s request for reconsideration
without conducting further merit review because appellant did not submit new or relevant
evidence with his request. Appellant submitted a brief from his attorney. Although he did
present legal arguments, they were premised on a report from Dr. Rinaldi, which does not appear
in the record. Appellant’s attorney asserted that the Office should find a conflict of medical
evidence and refer the matter to an impartial specialist for an examination. However, appellant
did not submit a medical report or otherwise any physicians, whose reports appear in the record,
that disagree with the rating of his impairment. His contention on this point is without merit.5
Appellant also argued that the Office was obliged to seek a supplemental report from his treating
physician. However, the record does not reflect that he ever submitted a report from a treating
physician. Accordingly, appellant’s legal arguments are not relevant. While a reopening of a
case may be predicated solely on a legal premise not previously considered, such reopening for

1

20 C.F.R. § 10.606(b)(2) (1999).

2

Id.

3

20 C.F.R. § 10.608(b) (1999).

4

Annette Louise, 54 ECAB 783 (2003).

5

See 5 U.S.C. § 8123(a) (provides that if there is disagreement between the physician making the examination for
the United States and the physician of the employee, the Secretary shall appoint a third physician who shall make an
examination).

3

further review of the merits is not required where the legal contention does not have a reasonable
color of validity.6
The Board also finds that appellant has not met the third regulatory criterion justifying a
merit review. Appellant’s attorney indicated that he would provide new and relevant medical
evidence in the form of a report from Dr. Rinaldi. As noted, however, no such report is of
record.7 Appellant has not submitted any medical evidence in support of his request for
reconsideration. Consequently, the Board finds that the Office properly denied appellant’s
request for reconsideration as he did not submit any new or relevant evidence pertaining to the
extent of his hearing loss.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration
without reviewing the merits of the claim.
ORDER
IT IS HEREBY ORDERED THAT the August 7, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 1, 2008
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
6

See Cleopatra McDougal-Saddler, 50 ECAB 367 (1999).

7

On appeal, appellant submitted additional medical evidence. The Board, however, notes that it cannot consider
this evidence for the first time on appeal because the Office did not consider this evidence in reaching its final
decision. The Board’s review is limited to the evidence in the case record at the time the Office made its final
decision. 20 C.F.R. § 501.2(c).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CONNECTICUT HEALTH CARE SYSTEM,
West Haven, CT, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-500
Issued: September 1, 2009

Case Submitted on the Record

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

JURISDICTION
On December 11, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ August 8, 2008 merit decision denying her recurrence of disability
claim and the Office’s November 4, 2008 nonmerit decision denying her reconsideration request.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she
sustained a recurrence of disability on or after January 9, 2006 due to her July 6, 2005
employment injury; and (2) whether the Office properly denied her request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
The Office accepted that on July 6, 2005 appellant, then a 63-year-old food service
worker, sustained a left wrist sprain/strain and bilateral knee contusions due to a fall at work.

The medical records after appellant’s fall show that she primarily complained of left wrist, right
hip and knee pain. She stopped work after her fall and returned to regular-duty work at the
employing establishment on September 7, 2005.
Appellant stopped work on January 9, 2006 and later filed a claim alleging that she
sustained a recurrence of disability on that date due to her July 6, 2005 employment injury.1 In a
November 15, 2005 letter, she argued that the July 6, 2005 fall aggravated her preexisting spinal
stenosis condition. On January 18, 2006 Dr. Jeffrey Sumner, an attending Board-certified
orthopedic surgeon, performed an anterior corpectomy from C4-6, anterior fusion from C3-7 and
posterior fusion from C3-7 with iliac crest bone graft and fibular strut graft. The surgery was not
authorized by the Office.2
In January 12 and August 8, 2007 letters, the Office requested that appellant submit
additional factual and medical evidence in support of her claim.
In an October 18, 2006 report, Dr. Babu Kumar, an attending Board-certified internist,
stated that appellant “had a fall on July 6, 2005 at work, which required for her to have surgery.”
He indicated that since appellant’s January 18, 2006 surgery she reported experiencing neck,
back and leg pain and recommended that she be restricted from pushing, pulling, lifting and
overhead work.
In a November 22, 2006 report, Dr. Sumner mentioned appellant’s July 6, 2005
employment injury and stated:
“Shortly thereafter I evaluated [appellant] for continued numbness and burning
after a workup by Dr. Kumar revealed cervical stenosis of a significant degree.
The fall in July 2005 did not cause the stenosis but may have aggravated it by
causing her spine to be placed in a more extended position with more stress and
strain being put upon it. Therefore this is a situation of an incident aggravating a
preexisting condition.”
On August 7, 2008 Dr. Barry W. Levine, a Board-certified orthopedic surgeon serving
as an Office medical adviser, described appellant’s July 6, 2005 injury and January 6, 2005
neck surgery. He indicated that there was no mention of neck problems prior to the surgery
and stated, “Spinal stenosis is an arthritic condition which takes many years to develop. There
is no evidence in the record that the work-related fall aggravated this condition. Spinal
stenosis is a degenerative process and unrelated to trauma. The fall on July 6, 2005 had
nothing to do with the subsequent cervical surgery.”
In an August 8, 2008 decision, the Office denied appellant’s claim on the grounds that
she did not submit sufficient medical evidence to establish that she sustained a recurrence of
disability on or after January 9, 2006 due to her July 6, 2005 employment injury.
1

Appellant indicated that she had neck pain after her July 6, 2005 injury.

2

In a November 11, 2005 note, Dr. Sumner indicated that appellant was scheduled for surgery and could only
perform light-duty work. In a January 9, 2006 note, he stated that appellant was “totally disabled until further
notice.”

2

In an August 31, 2008 letter, appellant requested reconsideration of her claim. She stated
that her spinal stenosis was diagnosed on May 13, 1998 and noted that she had worked with
spinal stenosis for years with no problem until she fell. Appellant also noted that she went to
physical therapy and that the Office paid for her physical therapy from July 27 to
August 29, 2005.
In a November 4, 2008 decision, the Office denied appellant’s request for further review
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
An individual who claims a recurrence of disability due to an accepted employment-related
injury has the burden of establishing by the weight of the substantial, reliable and probative
evidence that the disability for which compensation is claimed is causally related to the accepted
injury.3 This burden includes the necessity of furnishing medical evidence from a physician who,
on the basis of a complete and accurate factual and medical history, concludes that the disabling
condition is causally related to the employment injury and supports that conclusion with sound
medical rationale.4 Where no such rationale is present, medical evidence is of diminished
probative value.5
ANALYSIS -- ISSUE 1
The Office accepted that on July 6, 2005 appellant sustained a left wrist sprain/strain and
bilateral knee contusions due to a fall at work. Appellant stopped work on January 9, 2006 and
alleged that she sustained a recurrence of disability on January 9, 2006 due to her July 6, 2005
employment injury. On January 18, 2006 Dr. Sumner, an attending Board-certified orthopedic
surgeon, performed an anterior corpectomy from C4-6, anterior fusion from C3-7 and posterior
fusion from C3-7 with iliac crest bone graft and fibular strut graft. Appellant contends that the
July 6, 2005 fall aggravated her preexisting spinal stenosis condition and necessitated her neck
surgery with resultant disability.
The Board finds that appellant did not submit sufficient medical evidence to establish that
she sustained a recurrence of disability on or after January 9, 2006 due to her July 6, 2005
employment injury.
Appellant submitted an October 18, 2006 report in which Dr. Kumar, an attending Boardcertified internist, stated that she “had a fall on July 6, 2005 at work, which required for her to
have surgery.” Dr. Kumar indicated that since her January 18, 2006 surgery she reported
3

Charles H. Tomaszewski, 39 ECAB 461, 467 (1988); Dominic M. DeScala, 37 ECAB 369, 372 (1986). Pursuant to
20 C.F.R. § 10.5(x), a recurrence of disability is defined, in part, as “an inability to work after an employee has
returned to work, caused by a spontaneous change in a medical condition which had resulted from a previous injury
or illness without an intervening injury or new exposure to the work environment that caused the illness.”
4

Mary S. Brock, 40 ECAB 461, 471-72 (1989); Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

5

Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

3

experiencing neck, back and leg pain and recommended that she be restricted from pushing,
pulling, lifting and overhead work. This report, however, is of limited probative value on the
relevant issue of the present case in that Dr. Kumar did not provide adequate medical rationale in
support of his conclusion on causal relationship.6 He did not provide any medical rationale in
support of his opinion that appellant’s July 6, 2005 employment injury, accepted for knee
contusions and left wrist pain, necessitated her January 18, 2006 neck surgery. Appellant’s claim
has only been accepted for a left wrist sprain/strain and bilateral knee contusions. Such medical
rationale is necessary in the present case because the medical evidence reveals that she did not
complain of neck symptoms in the months after her July 6, 2005 fall.
In a November 22, 2006 report, Dr. Sumner mentioned appellant’s July 6, 2005
employment injury and stated that he evaluated her after Dr. Kumar’s workup revealed cervical
stenosis of a significant degree. He stated, “The fall in July 2005 did not cause the stenosis but
may have aggravated it by causing [appellant’s] spine to be placed in a more extended position
with more stress and strain being put upon it. Therefore this is a situation of an incident
aggravating a preexisting condition.” This report is of limited probative value on causal
relationship because it is equivocal on the issue of causal relation and it does not contain
sufficient medical rationale in support of Dr. Sumner’s opinion.7 Dr. Sumner did not describe
appellant’s July 6, 2005 fall at work in any detail or explain the medical process by which it
could have contributed to her need for neck surgery six months later. The medical record is
devoid of bridging evidence concerning appellant’s neck condition between the July 6, 2005 fall
and the January 18, 2006 surgery and he has not adequately explained this circumstance.
Appellant did not submit sufficient medical evidence to show that her July 6, 2005 fall
necessitated her January 18, 2006 neck surgery and caused disability. Moreover, other evidence
of record shows that her neck condition was not employment related. On August 7, 2008
Dr. Levine found no employment-related recurrence of disability. He indicated that there was no
mention of neck problems prior to appellant’s surgery and stated, “Spinal stenosis is an arthritic
condition which takes many years to develop. There is no evidence in the record that the workrelated fall aggravated this condition.” For these reasons, appellant did not show that she
sustained a recurrence of disability on or after January 9, 2006 due to her July 6, 2005
employment injury.8

6

See Leon Harris Ford, 31 ECAB 514, 518 (1980) (finding that a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).
7

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962); James P. Reed, 9 ECAB 193, 195 (1956) (finding that an
opinion which is equivocal or speculative is of limited probative value regarding the issue of causal relationship).
8

On appeal appellant asserted that her original injury occurred due to employer negligence, but it is unclear how
this assertion would be relevant to her claim for recurrence of disability.

4

LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,9 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.10 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.11 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.12 The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record13 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.14 While a 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.15 The Board has held that the mere fact that the Office authorized
and paid for some medical treatment does not establish that the condition for which the claimant
received treatment was employment related.16
ANALYSIS -- ISSUE 2
In support of appellant’s reconsideration request, she argued that she had preexisting
spinal stenosis and did not have significant problems with her neck until after her July 6, 2005
fall. This argument would not require reopening of her claim for merit review because she had
previously made a similar argument.17 The Office previously considered and rejected appellant’s
argument that the July 6, 2005 fall aggravated her preexisting spinal stenosis condition and
necessitated the January 18, 2006 neck surgery. Appellant also argued that her recurrence claim
should be accepted because she went to physical therapy and that it paid for her physical therapy
from July 27 to August 29, 2005. This does not constitute an argument with a reasonable color
9

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

20 C.F.R. § 10.606(b)(2).

11

Id. at § 10.607(a).

12

Id. at § 10.608(b).

13

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

14

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

15

John F. Critz, 44 ECAB 788, 794 (1993).

16

Dale E. Evans, 48 ECAB 692 (1997).

17

See supra note 12 and accompanying text.

5

of validity that would require merit review because the mere fact that it authorized and paid for
some medical treatment does not establish that the condition for which the claimant received
treatment was employment related.18
Appellant has not established that the Office improperly denied her request for further
review of the merits of its August 8, 2008 decision under section 8128(a) of the Act, because the
evidence and argument she submitted did not show that it erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by the Office,
or constitute relevant and pertinent new evidence not previously considered by the Office.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a recurrence of disability on or after January 9, 2006 due to her July 6, 2005
employment injury. The Board finds that the Office properly denied appellant’s request for
further review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
November 4 and August 8, 2008 decisions are affirmed.
Issued: September 1, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

18

See supra notes 14 and 15 and accompanying text.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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)
)
and
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)
DEPARTMENT OF AGRICULTURE, PULASKI )
COUNTY COOPERATIVE EXTENSION
)
SERVICE, Little Rock, AR, Employer
)
__________________________________________ )
K.M., Appellant

Appearances:
James W. Stanley, Jr., Esq, for the appellant
Office of Solicitor, for the Director

Docket No. 07-2276
Issued: May 20, 2008

Case Submitted on the Record

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

JURISDICTION
On September 5, 2007 appellant, through her attorney, filed a timely appeal of a July 16,
2007 merit decision of an Office of Workers’ Compensation Programs’ hearing representative,
which affirmed the finding that the constructed position of customer service representative
represented her wage-earning capacity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation effective
August 21, 2006 based on its determination that the constructed position of customer service
representative represented her wage-earning capacity.
FACTUAL HISTORY
On September 24, 1996 appellant, then a 46-year-old program assistant, filed a traumatic
injury claim alleging that on September 20, 1996 she turned her ankle and fell on her knees as

she got out of her van and stepped up onto the curb to go to a staff meeting. By letter dated
February 28, 1997, the Office accepted the claim for right medial meniscal tear and authorized
arthroscopic surgery. Appellant stopped work on May 9, 1997. The Office subsequently
accepted the claim for aggravation of degenerative arthritis of the right knee and Fulkerson
anterior tubercle of the right knee.
The Office received a March 17, 2004 medical report of Dr. Stephen Hudson, an
attending Board-certified orthopedic surgeon, which stated that appellant suffered from
degenerative joint disease of the right knee.
By letter dated April 5, 2004, the Office requested that Dr. Hudson provide an opinion as
to whether appellant had any residuals of her employment-related injuries and restrictions and
whether she could return to her date-of-injury position. In a work capacity evaluation dated
June 10, 2004, Dr. Hudson stated that although appellant could not perform her regular work
duties, she could work eight hours per day with restrictions. She could sit eight hours per day
and walk and stand intermittently four hours per day. Appellant could not twist, bend, stoop,
squat, kneel or climb. She could push, pull and lift up to 10 pounds.
On July 1, 2004 the Office referred appellant to a vocational rehabilitation counselor
based on Dr. Hudson’s June 10, 2004 opinion.
The Office received a July 15, 2004 report of Dr. Joseph K. Bissett, an attending Boardcertified internist specializing in cardiovascular disease. Dr. Bissett stated that appellant was
under his care for heart disease with atrial fibrillation. He had not released her to return to work
and stated that she would not be able to participate in vocational rehabilitation at that time.
By letter dated July 28, 2004, appellant’s attorney advised the Office that he had
instructed her to participate in the initial vocational assessment but, this did not mean that she
would participate in vocational rehabilitation.1 In an August 12, 2004 letter, the Office advised
counsel that there was no rationalized medical evidence of record establishing that appellant’s
cardiac condition prevented her from performing any type of sedentary work.
By letter dated August 19, 2004, the Office requested that Dr. Bissett provide a medical
opinion which addressed appellant’s heart condition and her ability to perform sedentary work.
On August 23, 2004 the Office received Dr. Hudson’s August 16, 2004 report which
stated that appellant needed a total knee replacement. He noted that the surgery could not be
scheduled until it was approved by her cardiologist.
The Office received an August 24, 2004 report of Dr. Richard Harper, an attending
ophthalmologist. Dr. Harper stated that appellant had cataracts. She had undergone surgery in
the right eye on April 14, 2004 and that her visual acuity was 20/20 in the right eye and 20/25 in
the left eye. Dr. Harper opined that appellant’s cataracts condition could be related to her steroid
use.

1

Appellant first met with the vocational rehabilitation counselor on July 30, 2004.

2

On August 30, 2004 the Office received Dr. Bissett’s August 19, 2004 report. Dr. Bissett
noted appellant’s family history of cardiomyopathy which she had been diagnosed as having
along with multiple episodes of atrial fibrillation. He opined that she was permanently and
totally disabled due to cardiomyopathy. Dr. Bissett stated that she could develop atrial
fibrillation at any time, hypotension and syncope.
On March 15, 2006 the vocational rehabilitation counselor identified the position of
customer service representative as being within appellant’s physical limitations, vocational skills
and geographical area.2 The customer service representative position, as it appeared in the
Department of Labor, Dictionary of Occupational Titles (DOT), was classified as a sedentary
position. The position required interviewing applicants and recording interview information into
a computer for water, gas, electric, telephone or cable television system service. It further
required talks with customers by telephone or in person and receipt of orders for installations,
turn-on, discontinuance or change in service. The position required filling out contract forms,
determining charges for service requested, collecting deposits, preparing change of address
records and issuing discontinuance orders using a computer. The solicitation of the sale of new
or additional services, adjustment of complaints concerning billing or service rendered and
referral of complaints of service failures such as, low voltage or low pressure to designated
departments for investigation were permitted. The position also permitted visits to customers at
their place of residence to investigate conditions preventing completion of service-connection
orders and to obtain contract and deposit when service was being used without a contract.
Discussion of cable television equipment operation with a customer over the telephone to explain
equipment usage and to troubleshoot equipment problems was allowed. The physical
requirements included sedentary strength that involved lifting up to 10 pounds occasionally,
reaching, handling, feeling and near acuity often, fingering occasionally and talking and hearing
constantly. No climbing, balancing, stooping, kneeling, crouching, crawling, tasting/smelling,
far acuity, depth perception, accommodation, color vision and field of vision were required. The
vocational rehabilitation counselor found that appellant’s prior work experience and college
degree would meet the five to six months specific vocational preparation. The vocational
rehabilitation counselor listed the average weekly earnings of a customer service representative
as $12.47 per hour or $498.80 per week. She stated that the position was available in sufficient
numbers on a full-time basis and in appellant’s commuting area based on a labor market survey.
In a July 19, 2006 notice, the Office advised appellant that it proposed to reduce her
compensation because the medical and factual evidence of record established that she was no
longer totally disabled. The Office found that she had the capacity to earn the wages of a
customer service representative. Based on the formula developed in Albert C. Shadrick,3 the
Office determined that appellant’s compensation would be reduced to $498.80 every four weeks.
It indicated that appellant’s salary on the date her disability began effective March 21, 1997, was
$303.60 per week; that the current adjusted pay rate for her job on the date of injury was $519.24
per week effective March 16, 2006 and that she was currently capable of earning $498.80 per
week, the pay rate of a customer service representative. The Office determined that appellant
2

The vocational rehabilitation counselor also identified the position of production coordinator as being within
appellant’s physical limitations, vocational skills and geographical area.
3

5 ECAB 376 (1953).

3

had a 96 percent wage-earning capacity, which resulted in an adjusted wage-earning capacity of
$291.46 per week. It determined that she had a loss of wage-earning capacity of $12.14 per
week. The Office concluded that, based upon a three-fourths compensation rate, appellant’s new
compensation rate was $9.11 per week, increased by cost-of-living adjustments to $44.00 per
week. Appellant was provided 30 days to submit additional evidence or argument in support of
any objection to the proposed reduction.
In a July 23, 2006 letter, appellant disagreed with the proposed action, stating that she did
not have the vocational skills to perform the duties of a customer service representative, that
none of the employers she contacted could accommodate her restrictions and that she was totally
disabled due to her right ankle and heart conditions.
In a July 24, 2006 report, Dr. Bissett reiterated his prior diagnosis and opinion regarding
appellant’s disability. He stated that she had periods of irregular rhythm with increased heart
rate. Appellant also experienced continuing pain and difficulty with weight bearing on her right
knee and ankle. She was currently walking in a cast and had been advised to undergo total knee
replacement. Dr. Bissett noted the September 1996 employment-related right knee condition and
stated that the limitation of motion and discomfort resulted in traumatic arthropathy.
By decision dated August 21, 2006, the Office finalized the reduction of appellant’s
compensation benefits effective that date. In a letter dated August 27, 2006 appellant, through
her attorney, requested an oral hearing before an Office hearing representative.
Appellant submitted Dr. Hudson’s reports covering intermittent dates from May 25, 2006
to April 23, 2007, which stated that she had a healing lateral malleolus fracture, postdegenerative arthritis and laxity of the right knee.
A February 5, 2007 report of
Dr. Darpan Bansal, a Board-certified internist, stated that appellant had atrial fibrillation that was
possibly secondary to atrioventricular node reentry tachycardia (AVNRT).
At a May 5, 2007 telephonic hearing, appellant described her work duties as a program
assistant. She also testified that she had a history of an irregular heart beat since approximately
1988. As part of appellant’s vocational rehabilitation counseling, she enrolled in computer
classes but, three to four weeks later, she underwent additional surgery on her right knee. She
only received credit for one class in medical terminology. Appellant had been advised by
Dr. Hudson and Dr. Bissett to refrain from driving. Dr. Hudson recommended a total knee
replacement but Dr. Bissett would not provide authorization for this surgery. Appellant
described her symptoms related to her right knee and ankle and heart. She testified that she
could not perform the duties of the stressful customer service representative position due to her
cardiac condition.
By decision dated July 17, 2007, an Office hearing representative affirmed the August 21,
2006 reduction of appellant’s wage-loss compensation based upon the constructed position of
customer service representative. The hearing representative found that no evidence had been
submitted establishing that she suffered from cardiac conditions prior to her September 20, 1996
accepted employment injuries. The hearing representative also found that the Social Security
Administration’s decision finding that appellant was totally disabled was immaterial.

4

LEGAL PRECEDENT
Once the Office has made a determination that an employee is totally disabled as a result
of an employment injury and pays compensation benefits, it has the burden of justifying a
subsequent reduction of benefits.4
Under section 8115(a) of the Federal Employees’ Compensation Act, wage-earning
capacity is determined by the actual wages received by an employee if the earnings fairly and
reasonably represent her wage-earning capacity. If the actual earnings do not fairly and
reasonably represent wage-earning capacity or if the employee has no actual earnings, her
wage-earning capacity is determined with due regard to the nature of her injuries and the degree
of physical impairment, her usual employment, the employee’s age and vocational qualifications
and the availability of suitable employment.5 Wage-earning capacity is a measure of the
employee’s ability to earn wages in the open labor market under normal employment
conditions.6 The job selected for determining wage-earning capacity must be a job reasonably
available in the general labor market in the commuting area in which the employee lives.7
After the Office makes a medical determination of partial disability and of special work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist for
selection of a position listed in the DOT or otherwise available in the open market, that fits the
employee’s capabilities with regard to her physical limitations, education, age and prior
experience. Once this selection is made, determination of wage rate and availability in the open
labor market should be made through contact with the state employment services or other
applicable services.8 Finally, application of the principles set forth in Shadrick will result in the
percentage of the employee’s loss of wage-earning capacity.9 This has been codified by the
regulations in 20 C.F.R. § 10.403(c).
In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, the Office must consider the degree of physical impairment,
including impairment results from both injury-related and preexisting conditions, but not
impairments resulting from post injury or subsequently acquired conditions.10 Any incapacity to
perform the duties of the selected position resulting from subsequently acquired conditions is

4

William H. Woods, 51 ECAB 619 (2000); Harold S. McGough, 36 ECAB 332 (1984); Samuel J. Russo,
28 ECAB 43 (1976).
5

Samuel J. Chavez, 44 ECAB 431 (1993).

6

Albert L. Poe, 37 ECAB 684, 690 (1986); David Smith, 34 ECAB 409, 411 (1982).

7

Id. The commuting area is to be determined by the employee’s ability to get to and from the work site. See
Glen L. Sinclair, 36 ECAB 664, 669 (1985).
8

Karen L. Lonon-Jones, 50 ECAB 293, 297 (1999).

9

See William H. Woods, supra note 4; Albert C. Shadrick, supra note 3.

10

Sherman Preston, 56 ECAB 607 (2005).

5

immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which appellant may receive compensation.11
ANALYSIS
Appellant received compensation for total disability due to her right medial meniscal tear,
aggravation of degenerative arthritis of the right knee and Fulkerson anterior tubercle of the right
knee. She stopped work on May 9, 1997. In finding that appellant was physically capable of
performing the duties of a customer service representative, as of August 21, 2006, the Office
relied on the June 10, 2004 work capacity evaluation of Dr. Hudson, an attending physician, who
found that, although appellant was incapable of performing her regular duties, she could work
eight hours per day with restrictions. Dr. Hudson stated that appellant could sit eight hours per
day and walk and stand intermittently four hours per day. He restricted her from twisting,
bending, stooping, squatting, kneeling and climbing. Appellant, could push, pull and lift up to
10 pounds.
The Board finds that Dr. Hudson’s work capacity evaluation establishes that appellant
was no longer totally disabled and could perform sedentary work with restrictions. The
constructed position was identified as sedentary and did not require twisting, bending, stooping,
squatting, kneeling, climbing and pushing, pulling and lifting more than 10 pounds. The weight
of the medical evidence is represented by the June 10, 2004 work capacity evaluation of
Dr. Hudson which found that appellant could perform sedentary work.
Other evidence received prior to the reduction of compensation does not establish that the
constructed customer service representative position was not medically or vocationally suitable.
Dr. Bissett’s reports stated that appellant was totally disabled for work due to cardiomyopathy
with artrial fibrillation. Dr. Harper opined that appellant’s cataracts condition was possibly
related to her steroid use. The Board notes that appellant’s claim has not been accepted for a
heart or cataracts condition and is thus her burden of proof to establish causal relationship.
Neither Dr. Bissett nor Dr. Harper addressed the issue of whether the diagnosed heart and eye
conditions were caused or aggravated by the September 20, 1996 employment-related injuries.
As previously noted, any incapacity to perform the duties of the selected position resulting from
subsequently acquired conditions is immaterial to the loss of wage-earning capacity which can
be attributed to the accepted employment injury.12
Subsequent to the reduction of her compensation appellant submitted Dr. Bansal’s
February 5, 2007 report, which found that her atrial fibrillation was possibly secondary to
AVNRT. As previously stated, appellant’s claim has not been accepted for a heart condition and
Dr. Bansal’s report fails to address whether the accepted employment injury caused or
aggravated her heart condition. Consequently, his report is immaterial to the loss of
wage-earning capacity which can be attributed to the accepted employment injury.13 The Board
11

John D. Jackson, 55 ECAB 465 (2004).

12

Id.

13

Id.

6

finds that the medical evidence established that appellant was physically capable of performing
the customer service representative position.
The vocational rehabilitation counselor determined that appellant was able to perform the
position of customer service representative. She opined that, based on her experience, education
and a labor market survey, appellant was well qualified for the position of customer service
representative and that sufficient positions were reasonably available in her commuting area.
The Office considered the proper factors, such as availability of employment and
appellant’s physical limitations, usual employment, age and employment qualifications, in
determining that the customer service representative position represented her wage-earning
capacity.14 The weight of the evidence establishes that appellant had the requisite physical
ability, skill and experience to perform the duties of customer service representative and that
such a position was reasonably available within the general labor market of her commuting area.
The Board finds that the Office properly determined appellant’s loss of wage-earning
capacity in accordance with the formula developed in Shadrick15 and codified at section 10.403
of the Office’s regulations.16 The Office indicated that appellant’s salary when her disability
began was $303.60 per week; that the current adjusted pay rate for her job on the date of injury
was $519.24 and that she was currently capable of earning $498.80 per week, the rate of the
customer service representative. It then determined that she had a 96 percent wage-earning
capacity, which resulted in an adjusted wage-earning capacity of $291.46. The Office then
determined that appellant had a loss of wage-earning capacity of $12.14 per week. It concluded
that, based on a three-fourths rate, appellant’s new compensation rate was $9.11 per week
(adjusted by cost-of-living adjustments to $44.00). The Board finds that the Office correctly
applied the Shadrick formula and, therefore, properly found that the position of customer service
representative reflected appellant’s wage-earning capacity effective August 21, 2006.17
CONCLUSION
The Board finds that the Office properly reduced appellant’s compensation effective
August 21, 2006 based on its determination that the constructed position of customer service
representative represented her wage-earning capacity.

14

Loni J. Cleveland, 52 ECAB 171 (2000).

15

See Albert C. Shadrick, supra note 3.

16

20 C.F.R. § 10.403.

17

Elsie L. Price, 54 ECAB 734 (2003); Stanley B. Plotkin, 51 ECAB 700 (2000).

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ORDER
IT IS HEREBY ORDERED THAT the July 16, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 20, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Omaha, NE, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-331
Issued: September 6, 2011

Case Submitted on the Record

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

JURISDICTION
On November 23, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) June 4, 2010 nonmerit decision denying his request for
reconsideration. Since more than 180 days have elapsed since the most recent merit decision of
August 26, 2009 to the filing of this appeal on November 23, 2010, the Board lacks jurisdiction
to review the merits of the claim pursuant to the Federal Employees’ Compensation Act (FECA)1
and 20 C.F.R. §§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for further review of the
merits of his claim under 5 U.S.C. § 8128(a).

1
2

5 U.S.C. §§ 8101-8193.

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

FACTUAL HISTORY
On September 12, 2007 appellant, then a 59-year-old retired city letter carrier, filed an
occupational disease claim alleging that his right knee condition and September 19, 2005 knee
replacement surgery were due to his 31 years of working as a letter carrier.3 He indicated that he
was first aware of his knee condition in 1978 and that it was caused or aggravated by his
employment on August 5, 2002. In a September 23, 2007 statement, appellant explained that
after he had retired on January 3, 2003, he learned that he could file his claim. He stated that he
had reported several injuries to his right leg, knee and foot during his career and underwent a
total knee replacement on September 19, 2005 after he retired. Appellant submitted numerous
medical records including a July 15, 2005 report from Dr. Mark G. Franco, a Board-certified
orthopedic surgeon, and treatment notes from Dr. William D. Murphy, a Board-certified
radiologist.
In a January 18, 2008 letter, OWCP advised appellant that the factual and medical
information submitted was insufficient to support his claim. Further information was requested
from appellant, including questions pertaining to when he was reasonably aware of a relationship
between his knee condition and factors of his employment.
In a March 11, 2008 decision, OWCP denied appellant’s claim on the grounds that it was
not timely filed under 5 U.S.C. § 8122. It found that his date of injury was August 5, 2002 and
that he should have reasonably been aware of a relationship between his knee condition and
employment by September 2004.
On March 30, 2008 appellant requested an oral hearing before OWCP’s hearing
representative, which was held on September 12, 2008.
By decision dated December 1, 2008, OWCP’s hearing representative set aside the
March 11, 2008 decision and remanded the case for further development of the issue of when
appellant became aware of the necessity of knee surgery rather than his degenerative knee
condition. Thus, the date of awareness of the need for surgery constituted the date the time
limitation would begin to run for purposes of filing the injury claim. The hearing representative
requested that OWCP obtain the July 28, 2004 report of Dr. Peter Cimino, a Board-certified
orthopedic surgeon, to verify if appellant was aware of the need for a knee replacement at that
time or if he was made aware of the surgery in July 2005, when he sought treatment with
Dr. Franco.
OWCP subsequently received Dr. Cimino’s July 28, 2004 report, which indicated that
appellant understood that he would have to have knee replacement in the not so distant future.
By decision dated January 13, 2009, OWCP denied the claim on the basis it was not
timely filed. It found appellant was aware or should have reasonably been aware that his knee
condition and need for knee replacement surgery was related to his employment on July 28,
2004, when Dr. Cimino recommended knee surgery.

3

Appellant retired from the employing establishment January 3, 2003.

2

On January 30, 2009 appellant requested a telephonic hearing before OWCP’s hearing
representative, which was held on May 14, 2009. At the hearing, appellant’s attorney asserted
that Dr. Cimino’s report noted that appellant would need surgery but did not relate appellant’s
surgery to his employment. Counsel asserted that appellant was not aware that the need for
surgery was employment related until he saw Dr. Franco in 2005 and that appellant did not
realize the relationship until 2005.
By decision dated August 26, 2009, OWCP’s hearing representative affirmed the denial
of appellant’s claim. The hearing representative advised that it was difficult to separate the need
for surgery from the condition that warranted surgery and found appellant was aware or should
have reasonably been aware that his right knee condition was related to his employment as of
January 3, 2003, the date he retired. The hearing representative further found that even if
appellant was not aware of his condition and employment at the time of his 2003 retirement, he
was aware of such relationship as well as the need for surgery on July 28, 2004, when
Dr. Cimino evaluated him. The hearing representative thus found that appellant did not file
within three years of July 28, 2004.
In a letter of May 18, 2010, appellant requested reconsideration of OWCP’s decision. He
argued that he was not claiming a degenerative knee condition. Appellant stated that this may
have affected the hearing representative’s decision, as it did not address the July 28, 2004 or
July 2005 reports from Dr. Cimino and Dr. Franco, respectively. He noted that for an OWCP
claim to be accepted the medical report must show causal relationship. Appellant stated that he
was not specifically told by Dr. Cimino on July 28, 2004 that his knee surgery was work related
and thus, there was no medical documentation to support causal relationship. Additionally,
Dr. Cimino merely indicated that he would need knee surgery in the near future, but did not
schedule any follow-up appointments or consultations. Appellant stated that he understood the
three-year limitation requirement and argued that the time limitation should begin in July 2005,
when Dr. Franco explained to him the need for surgery and the relationship of his condition to
his former employment. He requested to be given an impairment rating and issued a schedule
award. Appellant also advised that he was submitting additional documentation from
Dr. McMinn. However, a copy of Dr. McMinn’s report was not submitted.
By decision dated June 4, 2010, OWCP denied appellant’s reconsideration request on the
grounds that he failed to raise substantive legal questions or include new and relevant evidence.4
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and

4

The record reflects a March 9, 2010 report from Dr. McMinn was received by OWCP on June 21, 2010, after
the issuance of the June 4, 2010 decision. The Board’s review of the case is limited to the evidence in record before
OWCP at the time of its final decision. 20 C.F.R. § 501.2(c)(1). Consequently, the Board is precluded from
reviewing the evidence received after June 4, 2010.

3

pertinent new evidence not previously considered by OWCP.5 To be entitled to a merit review
of OWCP’s decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.6 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.7
When reviewing OWCP’s decision denying a merit review, the function of the Board is
to determine whether OWCP properly applied the standards set forth at section 10.606(b)(2) to
the claimant’s application for reconsideration and any evidence submitted in support thereof.8
ANALYSIS
Appellant’s May 18, 2010 request for reconsideration neither alleged, nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. Additionally, he did not
advance a relevant legal argument not previously considered by OWCP. Appellant argued that
he was not claiming a degenerative knee condition and that this may have influenced the hearing
representative’s decision. His argument is irrelevant and has no reasonable color of validity.9
While appellant’s claim is based on a surgical procedure for a degenerative condition, the
surgical procedure cannot be authorized unless the condition itself is accepted.10 He asserted that
the medical report must show causal relationship and further state that he wanted a schedule
award. However, these assertions have no color of validity because it is premature to consider
causal relationship between a condition and the employment until it is established that a claim is
timely filed11 and it is premature to consider a schedule award on an unapproved claim.12
Appellant asserted that he was not told by Dr. Cimino on July 28, 2004 that his knee surgery was
work related and that he only realized that his condition and need for surgery was work related in
July 2005, when Dr. Franco explained to him the need for surgery and the relationship of his
condition to his former employment. These assertions are insufficient to require OWCP to
reopen the claim for a merit review as they were previously made by appellant and previously

5

20 C.F.R. § 10.606(b)(2).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8

Annette Louise, 54 ECAB 783 (2003).

9

L.H., 59 ECAB 253 (2007) (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).
10

See, e.g., D.K., 59 ECAB 141 (2007) (to be entitled to reimbursement of medical expenses, it must be shown
that the expenditures were incurred for treatment of the effects of an employment-related injury or condition).
11

See Louis Alterisio, 32 ECAB 378, fn 6 (1980) (where a claim is not timely filed, it is unnecessary to address
the issue of causal relationship).
12

See Veronica Williams, 56 ECAB 367 (2005) (a schedule award can be paid only for a condition related to an
employment injury).

4

considered by OWCP.13 Consequently, appellant is not entitled to a review of the merits of his
claim based on the above-noted requirements under section 10.606(b)(2).14
All requests for reconsideration should be accompanied by argument or evidence meeting
the applicable standard of review.15 As appellant’s request for reconsideration was not
accompanied by argument for error or new and relevant evidence, OWCP properly denied the
request without a review on the merits of his claim.
On appeal, appellant asserts that he wants a schedule award and that he was not aware
that his condition was work related until July 2005. As explained, these assertions were made
before OWCP are insufficient to warrant reopening of the claim for a merit review. The Board
further notes that it does not have jurisdiction over the merits of the claim on the present appeal.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review pursuant to 5 U.S.C. § 8128(a).

13

See C.N., Docket No. 08-1569 (issued December 9, 2008) (evidence or argument that repeats or duplicates
evidence previously of record has no evidentiary value and does not constitute a basis for reopening a case).
14

The record indicates that appellant filed prior claims that may involve his right knee. This decision does not
affect any right appellant may have to pursue matters under his other claims.
15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (January 2010)
provides that an application for review which is not supported by additional evidence or argument for error in fact or
law is prima facie insufficient to warrant review of the case.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated June 4, 2010 is affirmed.
Issued: September 6, 2011
Washington, DC

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

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

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

6