United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, NETWORK
DISTRIBUTION CENTER, Kansas City, KS,
Employer
__________________________________________

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Appearances:
Houston Ford, Jr., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1826
Issued: February 26, 2018

Case Submitted on the Record

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

JURISDICTION
On August 29, 2017 appellant, through her representative, filed a timely appeal from a
July 28, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has more than 15 percent permanent impairment of the
right upper extremity, for which she previously received schedule awards.
FACTUAL HISTORY
On September 25, 2013 appellant, then a 41-year-old modified mail handler, filed an
occupational disease claim (Form CA-2) alleging that she sustained headaches and pain in her
shoulder, arm, wrist, hand, and fingers causally related to factors of her federal employment.
OWCP assigned File No. xxxxxx866 and accepted the claim for an aggravation of spinal stenosis
in the cervical region at C5-6 and C6-7.
OWCP previously accepted that appellant sustained right carpal tunnel syndrome under
File No. xxxxxx535. Appellant underwent an authorized right carpal tunnel release on
November 16, 2001. In a March 3, 2003 decision, issued under File No. xxxxxx535, OWCP
granted her a schedule award for 10 percent permanent impairment of the right upper extremity
due to carpal tunnel syndrome.
OWCP also accepted that appellant sustained right medial and lateral epicondylitis, right
shoulder tendinitis, and cervical strain under File No. xxxxxx136.3 By decision dated
February 7, 2006 under File No. xxxxxx136, it granted her a schedule award for five percent
permanent impairment of the right upper extremity due to loss of range of motion of the
shoulder.4 OWCP combined appellant’s claims under master File No. xxxxxx535.
In an impairment evaluation dated February 17, 2016, Dr. M. Stephen Wilson, an
orthopedic surgeon, discussed appellant’s history of injury and the results of diagnostic studies.
On examination, he found weakness in the shoulders, elbows, and wrists bilaterally and a loss of
sensation at the “C6 dermatomes of the bilateral upper extremities.” Dr. Wilson further found
muscle spasms from C2 through C7 bilaterally and a loss of two-point discrimination at C6 and
C7 on the right. He applied the sixth edition of the American Medical Association, Guides to
Evaluation of Permanent Impairment (A.M.A., Guides)5 to his clinical findings.
Citing proposed Table 1 of The Guides Newsletter, Rating Spinal Nerve Impairment
Using the Sixth Edition (July/August 2009),6 Dr. Wilson found that appellant had mild sensory
loss at C6, which yielded a default value of one percent, and mild motor loss at C6, which
yielded a default value of five percent. He applied grade modifiers of one for functional history
3

OWCP additionally accepted that appellant sustained an aggravation of spondylolisthesis under File No.
xxxxxx874.
4

In an August 7, 2008 decision, issued under File No. xxxxxx136, OWCP denied appellant’s claim for an
increased schedule award.
5

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

6
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (Exhibits 1, 4)
(January 2010).

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and clinical studies, for no adjustment from the default value. Dr. Wilson utilized the Combined
Values Chart to find six percent right upper extremity permanent impairment due to C6
radiculopathy. He further found mild sensory and motor loss at C7, which yielded default values
of one percent and five percent, respectively. Dr. Wilson applied grade modifiers of one for
functional history and two for clinical studies, which he determined yielded no adjustment from
the default values. He combined the right upper extremities impairments to find 12 percent right
upper extremity permanent impairment resulting from cervical radiculopathy at C6 and C7.
Dr. Wilson indicated that appellant had previously received a schedule award for 15 percent
permanent impairment of the right upper extremity due to carpal tunnel syndrome, and related
that it was his “opinion that her right upper extremity neuropathy as a result of the injury to her
neck be considered separately from her previous injury and rating to her hand.”
On April 14, 2016 appellant filed a claim for a schedule award (Form CA-7) under File
No. xxxxxx866.
Dr. Herbert White, Jr., an occupational medicine specialist serving as an OWCP medical
adviser, reviewed the evidence on July 17, 2016 and concurred with Dr. Wilson’s finding that
appellant had 12 percent permanent impairment of the right upper extremity due to radiculopathy
at C6 and C7. He advised that he could not address whether she had impairment due to her right
carpal tunnel syndrome and epicondylitis. Dr. White opined that the 12 percent permanent
impairment was “in addition to the award already given.”
On September 8, 2016 OWCP requested that Dr. White clarify whether the current
percentage found was in addition to the prior schedule award for 15 percent permanent
impairment of the right upper extremity due to right carpal tunnel syndrome, right elbow medial
and lateral epicondylitis, and right shoulder tendinitis. On September 12, 2016 Dr. White related
that the current impairment of the right upper extremity was 12 percent, less than that previously
awarded, and thus appellant was not entitled to an additional award.
By decision dated October 5, 2016, OWCP denied appellant’s request for an additional
schedule award. It found that she had no more than the previously awarded 15 percent right
upper extremity permanent impairment.
Appellant, on October 26, 2016, requested an oral hearing before an OWCP hearing
representative.
In a report dated October 19, 2016, Dr. Wilson noted that he rated appellant on
February 17, 2016 for radiculopathy at C6 and C7 using The Guides Newsletter.
At the telephone hearing, held on May 16, 2017, appellant’s representative maintained
that the 12 percent permanent impairment rating for radiculopathy was separate from the
previous right upper extremity awards.
By decision dated July 28, 2017, OWCP’s hearing representative affirmed the October 5,
2016 decision. She found that appellant’s 12 percent right upper extremity permanent
impairment was less than the 15 percent previously awarded, and therefore was not entitled to an
additional schedule award.

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On appeal appellant’s representative asserts that Dr. Wilson found 12 percent permanent
impairment and notes that Dr. White initially concurred with his finding that the impairment
rating was in addition to the prior award. He argues a conflict now exists between Dr. White and
Dr. Wilson.
LEGAL PRECEDENT
The schedule award provision of FECA,7 and its implementing federal regulation,8 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.9 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.10
The sixth edition requires identifying the impairment Class of Diagnosis (CDX)
condition, which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).11 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. Recognizing that certain jurisdictions, such as
federal claims under FECA, mandate ratings for extremities and preclude ratings for the spine,
the A.M.A., Guides has offered an approach to rating spinal nerve impairments consistent with
sixth edition methodology.12 OWCP has adopted this approach for rating impairment of the
upper or lower extremities caused by a spinal injury, as provided in section 3-700 of its
procedures which memorializes proposed tables outlined in a July/August 2009, The Guides
Newsletter.13
It is well established that benefits payable under 5 U.S.C. § 8107(c) are reduced by the
period of compensation paid under the schedule for an earlier injury if: (1) compensation in both
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. at § 10.404(a).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
11

A.M.A., Guides 494-531.

12
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5c(3) (February 2013); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Exhibit 4 (January 2010).
13
Federal (FECA) Procedure Manual, supra note 6 at Chapter 3.700, Exhibit 1, note 5 (January 2010). The
Guides Newsletter is included as Exhibit 4.

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cases is for impairment of the same member or function or different parts of the same member or
function; and (2) the latter impairment in whole or in part would duplicate the compensation
payable for the preexisting impairment.14
ANALYSIS
OWCP accepted that appellant sustained right carpal tunnel syndrome under File No.
xxxxxx535, right medial and lateral epicondylitis, right shoulder tendinitis, and cervical strain
under File No. xxxxxx136, and an aggravation of cervical spinal stenosis at C5-6 and C6-7 under
File No. xxxxxx866.
By decision dated March 3, 2003, OWCP granted appellant a schedule award for 10
percent permanent impairment of the right upper extremity due to carpal tunnel syndrome under
File No. xxxxxx535. In a February 7, 2006 decision, it granted her a schedule award for five
percent permanent impairment of the right upper extremity due to reduced range of motion of the
right shoulder under File No. xxxxxx136.
On April 14, 2016 appellant requested a schedule award under File No. xxxxxx866. In a
February 17, 2016 impairment evaluation, Dr. Wilson, referencing The Guides Newsletter,
opined that appellant had six percent permanent impairment of the right upper extremity due to
sensory and motor loss at C6 and six percent permanent impairment of the right upper extremity
due to sensory and motor loss at C7, for a total right upper extremity permanent impairment of
12 percent.
Dr. White, an OWCP medical adviser, reviewed the evidence of record on July 17, 2016
and concurred with Dr. Wilson’s finding that appellant had 12 percent permanent impairment of
the right upper extremity due to C6 and C7 radiculopathy. He indicated that the 12 percent
permanent impairment was in addition to the prior awards, noting that he was unable to
determine if she had permanent impairment as a result of her right carpal tunnel syndrome and
medial and lateral epicondylitis. On September 12, 2016 Dr. White indicated that as the current
permanent impairment of 12 percent was less than the prior awards, appellant was not entitled to
an additional schedule award.
The Board finds that the case is not in posture for decision. A claimant is not precluded
from an additional schedule award solely because he or she received a greater award to the same
scheduled member from another claim.15 The issue is whether the current impairment rating
duplicates in whole or in part the prior rating.16 As the Board has explained in J.S., simply
comparing the prior percentage of impairment awarded to the current impairment for the same
member is not always sufficient.17 In J.S., the claimant had received a prior schedule award of
14
20 C.F.R. § 10.404(d); see T.S., Docket No. 16-1406 (issued August 9, 2017); T.S., Docket No. 09-1308 (issued
December 22, 2009).
15

See J.K., Docket No. 16-1361 (issued April 18, 2017).

16

See supra note 13.

17

See J.S., Docket No. 15-1252 (issued January 19, 2016).

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54 percent permanent impairment for the right leg. The medical evidence showed permanent
impairment of the right ankle of 12 percent, but OWCP found no additional permanent
impairment because the current impairment was not greater than the prior award. The Board
remanded the case, finding there was no medical evidence explaining how the current permanent
impairment duplicated the prior impairment.18
In this case, OWCP’s medical adviser was not provided with a complete factual and
medical background with respect to the prior schedule awards. OWCP should have provided a
complete background and requested a medical adviser provide an opinion regarding the current
permanent impairment to the right upper extremity and its relationship to the prior schedule
awards. The case will be remanded to OWCP to properly resolve the issue presented. After
such further development as is deemed necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 28, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: February 26, 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
18

Id.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
CONTRACT MANAGEMENT AGENCY,
Smyrna, GA, Employer
__________________________________________

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

Docket No. 18-0635
Issued: August 14, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 1, 2018 appellant filed a timely appeal from an August 9, 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 to
consider the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the August 9, 2017 decision, OWCP received additional evidence.
However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty, as alleged.
FACTUAL HISTORY
On May 15, 2015 appellant, then a 54-year-old contract termination specialist, filed an
occupational disease claim (Form CA-2) alleging that she developed symptoms of nausea,
headaches, light-headedness, and major depression causally related to factors of her federal
employment. She noted that she first became aware of her claimed conditions on January 5, 2014
and their relationship to her federal employment on June 1, 2014. On the reverse side of the claim
form, J.L., appellant’s supervisor, challenged the claim. He noted that a return-to-work letter was
issued to her on May 11, 2015 and that she had not returned.
Appellant subsequently submitted a May 11, 2015 statement in which she attributed her
claimed emotional conditions to the “foul and pungent body odor” and appearance of a coworker.
She claimed that in May 2014, during J.L.’s first visit to her worksite, he noticed that coworker’s
poor hygiene. J.L. remarked that this was an unacceptable situation, and appellant informed him
that she had an ad hoc telework schedule to avoid being around the coworker. In September 2013
appellant’s former supervisor, K.A., had approved her request for a four-day-per-week telework
schedule. K.A. had a conversation with the coworker about his poor hygiene and his condition
immediately improved. During the improvement period appellant converted to a three-day-perweek telework schedule. However, as the problem worsened K.A. granted her request for an ad
hoc telework day on a weekly basis, usually on Wednesdays. J.L. told her that she could continue
her ad hoc telework schedule and that he would speak to him about his hygiene. He also offered
appellant the option of relocating or sharing a desk with R.I., a coworker, but she declined his
offer. J.L. denied her request for a four-day-per-week telework as a reasonable accommodation.
Appellant claimed that J.L. thereafter became hostile towards her with no sympathy or concern for
her health even after he had promised to handle the situation. J.L. later informed her that he would
no longer approve more than three days of telework. Appellant became ill in the office and
requested leave. She noted that J.L. never requested that she submit supportive medical
documentation. Appellant contended that he did not notify her about filing OWCP forms,
available compensation or leave under the Family and Medical Leave Act (FMLA) and he did not
complete the necessary forms. She filed an Equal Employment Opportunity (EEO) complaint
alleging an unhealthy work environment. Appellant noted that J.L. denied her requests for
reasonable accommodation in May, July, and September 2014, and January 2015. In
September 2014 J.L. was instructed to relocate her desk away from her peers, to utilize R.I.’s desk
when she was absent from work, or move to the desk of another coworker, S.C., in the next aisle
to avoid exposure to the coworker. Appellant refused to move because he had not been asked to
relocate to another work area. In October 2014 U.B., an employee, informed her that she had
instructed the coworker how to perform his daily hygiene routine and wash his clothes, to refrain
from wearing untidy clothes to work, and where to buy his clothes. He later had at least five or
six relapses during that month. J.L. continued to deny appellant’s request for a reasonable
accommodation. She stopped working in the office and requested leave on Wednesdays and
Fridays. Mediation between appellant and V.H., a manager, was held from January 9 to 15, 2015,
regarding the denial of her requests for a reasonable accommodation and other related matters, but
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V.H. called an impasse. Also, in January 2015, J.L. denied appellant’s requests for an ad hoc
telework schedule. He also denied her requests for annual leave until she submitted a physician’s
slip. Appellant filed a FMLA request.
Appellant also attributed her emotional conditions to several other work factors. She
claimed that the EEO process was poorly managed as her husband was not allowed to participate
in the mediation process held from January 9 to 16, 2015. Appellant contended that she was
treated differently and discriminated against based on her sex, race, and disability in the abovenoted incidents. She claimed that while her request for a four-day telework schedule was denied,
other employees were currently worked on this same schedule. Additionally, appellant noted that
the coworker was never relocated and she believed that her relocation was not a proper solution
because he could walk down the aisle to talk to his peers.
OWCP thereafter received additional medical evidence and a copy of appellant’s May 20,
2015 request for a reasonable accommodation.
In a development letter dated May 26, 2015, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It advised her of the type of factual and medical
evidence necessary to establish her claim and attached a questionnaire for her completion. In a
separate development letter of even date, OWCP requested that the employing establishment
provide additional information, including comments from a knowledgeable supervisor and an
explanation of appellant’s work activities. It afforded both parties 30 days to submit the necessary
evidence.
In a June 3, 2015 statement, J.L. recounted that on June 17, 2014 appellant approached him
and complained about the coworker’s poor hygiene. He immediately offered to move her to an
empty cubicle which was located in a different aisle than the coworker while management
investigated the issue. Appellant rejected the offer and requested an ad hoc telework schedule.
J.L. noted that she was already approved for regular telework three days per week. He granted
appellant’s request for an additional ad hoc telework day until January 2015. J.L. addressed the
issue directly with the coworker and management continued to explore possible accommodations/
solutions. Additionally, he offered appellant a workspace on a different ﬂoor in the building as a
reasonable accommodation, but she rejected the offer. Meanwhile, employees informed
management that the coworker’s personal hygiene had tremendously improved. On November 6,
2014 J.L. provided this update to appellant and warned her that he would not continue to grant her
an ad hoc telework schedule because her complaint had been resolved. He noted that, although
she had barely physically reported to the office for months at that point, she insisted that the
coworker’s situation could not have possibly improved. J.L. granted appellant’s request for leave
on the days she was to report to work in the office through January 2015 because justiﬁcation for
ad hoc telework no longer existed. He claimed that he was never notiﬁed that she had a medical
condition that might require special accommodation. In January 2015 appellant notified J.L. about
her request for leave under FMLA. He was first notified about her medical condition in
February 2015 after she had already begun her FMLA leave. J.L. indicated that appellant had not
teleworked or reported for duty since January 23, 2015. Appellant’s FMLA leave was approved
and 480 hours were exhausted in April 2015. J.L. issued a letter directing appellant to return to
work on May 13, 2015, but she did not return. Instead, one week later, appellant submitted new

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medical documentation concerning her diagnosis and requested a reasonable accommodation to
be relocated to the first ﬂoor in the building.
OWCP received additional medical evidence.
In an undated statement, appellant continued to claim that her requests for a four-day-perweek telework schedule and a one-day-per week ad hoc telework schedule were denied. She noted
the amount of leave she used from May 2014 to December 2014.
E-mails dated November 22 and 24 and December 8 and 10, 2014, from S.H., appellant’s
coworker; an undated witness statement by R.I., a coworker; and a December 1, 2014 witness
statement from a concerned employee corroborated appellant’s account of the coworker’s personal
hygiene.
Witness statements from appellant’s husband described her symptoms and what he
believed to be was unfair treatment by the employing establishment following her exposure to the
coworker’s poor hygiene.
Additional medical evidence was also received.
In a July 9, 2015 letter, J.L. responded to OWCP’s May 26, 2015 development letter. He
reiterated his account of appellant’s exposure to the coworker’s body odor, the approval of her
telework requests, and when he became aware of her resulting medical condition. J.L. described
her work duties as a terminating contracting officer and submitted an official copy of the position
description. He noted that the termination group in which appellant was assigned had not been
fully staffed to effectively carry out its mission due to budget constraints and employees’
retirement. J.L. related, however, that the workload was fairly distributed and constantly
reassessed. He contended that appellant never raised any concerns about her workload. Appellant
achieved a fully successful performance rating in 2014. She had some performance issues towards
the end of 2014 related to issues with contractors and business partners. Appellant also displayed
unprofessional behavior in some of her communications with J.L. over management’s handling of
her complaint pertaining to the coworker.
In an August 12, 2015 statement, appellant responded to J.L.’s July 9, 2015 statement. She
claimed that he required her to become sick before she could request an ad hoc telework schedule.
Appellant asserted that she did not receive a return-to-work letter and that she was not released to
return to work and was not medically able to return to work until June 29, 2015. She referenced
accompanying documents that indicated that she was forced to use annual/sick/credit hours every
Wednesday and Friday to mitigate her exposure to the odor in the office and becoming ill.
Appellant contended that her workload averaged about 25 to 30 dockets any given month. Her
position required substantial hours of overtime that were also considered to be credit hours.
Appellant performed at least 15 to 20 hours of overtime/credit hours, although employees were
only allowed to work 6 hours of overtime/credit per pay period. She notified J.L. and Director
P.S. that she was concerned about her reduced work schedule since she took off work on
Wednesdays and Fridays. Appellant noted that even on the days she was on leave from May 2014
to October 2014, she worked because she did not want to disappoint her customers. Eventually,
she stopped work on her days off due to stress and the denial of her requests for a reasonable

4

accommodation. Although J.L. approved her request for an ad hoc telework schedule, he would
later inconsistently approve or disapprove her request. Appellant indicated that he did not provide
reasonable accommodation until 13 months later from May 2014 to June 2015. She contended
that she had no performance problems while adapting to a reduced work schedule.
In an undated statement, appellant responded to J.L.’s June 3, 2015 letter. She contended
that while he granted her ad hoc telework on Wednesdays and Fridays, she had to first come into
the office and subject herself to the coworker’s body odor and become sick before he did so.
Appellant submitted e-mails dated August 1, 2014 to July 29, 2015 between herself, J.L.,
and S.P., and other correspondence and documents regarding her requests for an ad hoc telework
schedule, leave, and workers’ compensation.
Appellant also submitted additional medical evidence.
By decision dated August 31, 2015, OWCP accepted that appellant was subjected to an
unhealthy work environment due to her coworker’s poor hygiene, but denied her claim for an
emotional condition, finding that she had not established that it “arose during the course of
employment and within the scope of compensable work factors as defined by FECA.”
OWCP subsequently received additional medical evidence.
On April 20, 2016 appellant requested reconsideration regarding the August 31, 2015
decision.
Appellant submitted numerous time and leave records. She also continued to submit
medical evidence.
In a May 26, 2016 letter, J.L. responded to appellant’s request for reconsideration
contending that her claim should be denied. He asserted that on the rare occasions he did not
approve her ad hoc telework requests, she requested leave for the days she was scheduled to work
in the office. J.L. again noted that he granted appellant’s request for 480 hours of FMLA leave in
April 2015. On April 30, 2015 he issued a return-to-work order to her because her FMLA leave
had expired on April 21, 2015. On May 20, 2015 appellant submitted a request for a reasonable
accommodation for, among other things, a five-day-a-week telework schedule and a relocation to
the first floor in the building. J.L. immediately contacted G.C., disability program manager, and
appellant’s request for workspace on the first floor in the building was immediately made ready
and available to her. On June 5, 2015 he approved her reasonable accommodation request for a
four-day-per-week telework schedule along with one day in the office, on the first floor, on
Fridays. On June 17, 2015 J.L. modiﬁed his approval of appellant’s request for reasonable
accommodation and approved a five-day-per-week medical telework schedule beginning June 29
through September 30, 2015 based on his review of a letter from appellant’s physician. He noted
that, when she returned to work on June 29, 2015, there was a meaningful change in the manner
and tone she communicated with him. Appellant’s e-mails were obviously inﬂammatory and
contained disrespectful language and an unprofessional tone. Her response to work matters slowed
considerably. In September 2015 appellant was issued a one-day suspension for misconduct. On
September 24, 2015 she notified Director P.S. that she would be unable to return to work in the
office even one day per week because she had a relapse of her depression and her somatic therapy
5

had been suspended. J.L. again granted appellant a five-day-per-week medical telework schedule
through December 31, 2015. He twice directed her to provide updated medical documentation
addressing her work capacity, but she did not submit the requested information. J.L. related that
it could not be determined whether appellant had, in fact, undergone speciﬁc therapy previously
recommended by her physician. Also, her medical providers were not consistent. As a result, on
January 8, 2016 J.L. issued a return-to-work notice to appellant. Appellant requested leave for the
week of January 1 through 15, 2016. Following her absence from work, she was again suspended
through the end of January 2016 due to additional acts of misconduct. On February 1, 2016
appellant notified Director P.S. of another purported relapse of her depression due to continued
stress/anxiety and a hostile work environment. She again invoked FLMA leave, requested a
reasonable accommodation, and filed a workers’ compensation claim. On April 23, 2016
appellant’s second FMLA leave expired and she still had not submitted the requested medical
documentation. Accordingly, J.L. issued another return-to-work letter to her, but she did not
comply. He noted that appellant had been absent without leave since May 2, 2016 and was subject
to disciplinary action, including removal from federal service. J.L. related that she offered no
explanation for her continued failure to provide medical documentation regarding her absence
from work.
In a June 27, 2016 letter, appellant responded to J.L.’s May 26, 2016 letter. She asserted
that J.L. lied and erred in failing to remedy the situation involving the coworker. Appellant
claimed that he did not grant her a three-day-per-week telework schedule because time and
attendance records from January 2014 through May 2014 clearly indicated that she was already on
this schedule. She also claimed that he did not grant her an ad hoc telework schedule. Appellant
contended that J.L. did not provide her with a reasonable accommodation work schedule until
November 2014.
Appellant submitted additional medical evidence.
An undated statement from the coworker indicated that he was counseled by J.L. and K.A.
regarding his poor hygiene and appearance.
Witness statements from Director P.S., K.A., and other coworkers corroborated the
coworker’s poor hygiene and unkempt physical appearance.
Appellant submitted numerous e-mails dated September 5, 2013 to February 16, 2016
regarding her request for a reasonable accommodation for a telework schedule and leave.
Appellant also submitted a union agreement indicating that employees had a right to
decline to perform an assigned task in an unsafe work area and the employing establishment’s
reasonable accommodation procedures.
An undated declaration by G.C., disability program manager, indicated that appellant
requested a reasonable accommodation because she could not work in the office due to her physical
and mental limitations. He noted that she could perform her work duties at home.
OWCP, by decision dated August 31, 2016, denied modification of its August 31, 2015
decision, finding that appellant had not established a compensable factor of her federal

6

employment. It determined that the evidence of record was insufficient to demonstrate error or
abuse on the part of the employing establishment with respect to several administrative matters.
On June 14, 2017 appellant requested reconsideration and submitted additional evidence.
In an accompanying letter dated May 30, 2017, she contended that the employing establishment
failed to provide reasonable accommodation for her disability under the Americans with
Disabilities Act Amendments Act of 2008 (ADAAA).3
Appellant submitted Merit Systems Protection Board (MSPB) decisions dated
May 1, 2017. An MSPB administrative judge reversed appellant’s 14-day suspension from work
for the period May 30 through July 22, 2016 and her removal from her contract termination
position, effective July 22, 2016. He found that the employing establishment erred in rejecting her
medical documentation as administratively unacceptable and that her request for a five-day-perweek telework schedule would not have unduly burdened its operations. The administrative judge
explained that it violated the ADAAA by failing to accommodate appellant, a qualiﬁed disabled
employee, due to her major depression and other psychosomatic conditions which substantially
limited her brain function, with a ﬁve-day-per-week telework schedule. He further explained that
the employing establishment suspended her without providing due process. In the suspension
decision, the administrative judge noted that appellant was constructively suspended during the
period May 30 through July 22, 2016. In the removal decision, he found that she failed to establish
that she was removed from her position as reprisal for her prior EEO activity. The administrative
judge ordered the employing establishment to retroactively restore her to her prior position,
effective July 22, 2016, with back pay and interest.
Appellant submitted additional medical evidence.
In a July 18, 2017 letter, J.L. responded to appellant’s request for reconsideration. He
contended that her reconsideration request did not meet OWCP’s requirements and that the May 1,
2017 MSPB decision was not relevant to OWCP’s determination as it was issued long after her
claimed issues and removal.
By decision dated August 9, 2017, OWCP denied modification of the August 31, 2016
decision.
LEGAL PRECEDENT
To establish an emotional condition causally related to factors of a claimant’s federal
employment, he or she must submit: (1) factual evidence identifying and supporting employment
factors or incidents alleged to have caused or contributed to the condition; (2) rationalized medical
evidence establishing an emotional condition or psychiatric disorder; and (3) rationalized medical

3

29 C.F.R. Part 1630; 42 U.S.C. § 12101 et seq.; Pub.L. 110-325.

7

opinion evidence establishing that the emotional condition is causally related to the identified
compensable employment factors.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to a claimant’s employment. There are situations where an injury or illness has
some connection with the employment, but nevertheless does not come within the purview of
workers’ compensation. When disability results from an emotional reaction to regular or specially
assigned work duties or a requirement imposed by the employment, the disability is deemed
compensable.5 However, disability is not compensable when it results from factors such as an
employee’s fear of a reduction-in-force, or frustration from not being permitted to work in a
particular environment, or to hold a particular position.6
To the extent that disputes and incidents alleged as constituting harassment by coworkers
are established as occurring and arising from a claimant’s performance of his or her regular duties,
these could constitute employment factors.7 However, for harassment to give rise to a
compensable disability under FECA there must be evidence that harassment did, in fact, occur.
Mere perceptions of harassment are not compensable under FECA.8 Additionally, verbal
altercations and difficult relationships with supervisors, when sufficiently detailed by the claimant
and supported by the record, may constitute factors of employment. This does not imply, however,
that every statement uttered in the workplace will give rise to coverage under FECA.9
An employee’s emotional reaction to administrative or personnel matters generally falls
outside of FECA’s scope.10 Although related to the employment, administrative and personnel
matters are functions of the employer rather than the regular or specially assigned duties of the
employee.11 However, to the extent the evidence demonstrates that the employing establishment

4
See S.K., Docket No. 18-1648 (issued March 14, 2019); C.M., Docket No. 17-1076 (issued November 14, 2018);
Debbie J. Hobbs, 43 ECAB 135 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990).
5

A.C., Docket No. 18-0507 (issued November 26, 2018); Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian
Cutler, 28 ECAB 125, 129 (1976).
6

Cutler, id.

7

See B.S., Docket No. 19-0378 (issued July 10, 2019); M.R., Docket No. 18-0304 (issued November 13, 2018);
David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).
8

A.E., Docket No. 18-1587 (issued March 13, 2019); Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

9

Y.B., Docket No. 16-0193 (issued July 23, 2018); Marguerite J. Toland, 52 ECAB 294 (2001).

10

G.R., Docket No. 18-0893 (issued November 21, 2018); Andrew J. Sheppard, 53 ECAB 170, 171 (2001);
Matilda R. Wyatt, 52 ECAB 421, 423 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42 ECAB
566 (1991).
11

David C. Lindsey, Jr., 56 ECAB 263, 268 (2005); McEuen, id.

8

either erred or acted abusively in discharging its administrative or personnel responsibilities, such
action will be considered a compensable employment factor.12
Perceptions and feelings, alone, are not compensable. To establish entitlement to benefits,
a claimant must establish a basis in fact for the claim by supporting his or her allegations with
probative and reliable evidence.13 When the matter asserted is a compensable factor of
employment and the evidence of record establishes the truth of the matter asserted, OWCP must
base its decision on an analysis of the medical evidence.14
ANALYSIS
The Board finds that this case is not in posture for decision.
As to appellant’s allegations that she was improperly terminated from her position effective
July 22, 2016 and improperly suspended from work for 14 days from May 30 through July 22,
2016, the Board finds that appellant has established error and abuse by the employing
establishment in the handling of these administrative/personnel matters.
Specifically, appellant contended that her supervisor, J.L., continually denied her requests
for a reasonable accommodation consisting of a five-day-per-week ad hoc telework schedule due
to her physical and emotional conditions resulting from her exposure to a coworker who had poor
personal hygiene. She further contends that she was improperly suspended for 14 days from
May 30 through July 22, 2016 and removed from employment effective July 22, 2016. The Board
finds that the May 1, 2017 MSPB decisions establish that the employing establishment committed
error in suspending and removing appellant. The decisions reversed the suspension and removal,
and ordered the employing establishment to restore appellant’s position and pay. The decisions
were based on the finding that the employing establishment constructively suspended and removed
appellant without providing the procedural protections to which she was entitled. The employing
establishment conceded that appellant had been constructively suspended for 14 days. The Board
finds that the MSPB decisions are sufficient to establish that the constructive suspension between
May 30 and July 22, 2016 and removal effective July 22, 2016, due to management’s failure to
provide proper procedural protections, constitutes a compensable factor of employment.15
Appellant has also attributed her emotional condition to overwork based upon her regular
and specially assigned job duties under Cutler.16 The Board has held that overwork is a
compensable factor of employment if appellant submits sufficient evidence to substantiate this
12

Id.

13

G.R., supra note 10; Roger Williams, 52 ECAB 468 (2001).

14

See C.M., supra note 4; Norma L. Blank, 43 ECAB 384, 389-90 (1992). Unless a claimant establishes a
compensable factor of employment, it is unnecessary to address the medical evidence of record. T.G., Docket No.
19-0071 (issued May 28, 2019); Garry M. Carlo, 47 ECAB 299, 305 (1996).
15

C.M., supra note 4; R.V., Docket Nos. 07-818 and 07-2285 (issued September 25, 2008).

16

Supra note 4.

9

allegation.17 Appellant noted that she handled an average of approximately 25 to 30 dockets per
month. She was required to work a substantial number of hours of overtime/credit time, at least
15 to 20 hours while employees were only allowed 6 hours per pay period. Appellant became
concerned about performing her work duties with a reduced work schedule as she was off work on
Wednesday and Friday to avoid being exposed to the coworker’s poor hygiene and remain healthy.
She noted, nonetheless, that she continued to work until she stopped due to stress and the denial
of her request for a reasonable accommodation. The Board finds that appellant has submitted no
evidence supporting her allegation of overwork. While J.L. acknowledged that appellant’s
termination group had been unable to carry out its mission due to budget constraints and a staff
shortage, he noted that the workload was fairly distributed and constantly reassessed. Moreover,
he related that she never raised any concerns about her workload. Additionally, J.L. indicated that
appellant received a fully successful performance rating in 2014. He further indicated that her
only performance issues were related to stale negotiations with contractors and business partners
and unprofessional behavior she directed towards him regarding her complaint of the coworker’s
poor hygiene. It is appellant’s burden to submit the requisite factual evidence supporting her
allegation that she was overworked, which she failed to provide.18 Thus, the Board finds that she
has not established overwork as a compensable factor of employment.
Appellant made other allegations that relate to administrative and personnel actions, which
are not compensable absent a showing of error or abuse on the part of the employing
establishment.19 She filed an EEO complaint regarding the denial of her requests for a reasonable
accommodation and other related matters. Appellant asserted that her husband was not allowed to
participate in the EEO mediation session held from January 9 to 16, 2015 regarding her complaint.
She also asserted that V.H., management’s representative, declared an impasse in the mediation.
The Board finds that the filing of grievances and EEOC complaints20 and a mediation session21
are administrative or personnel matters which, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and is not covered under FECA.22 Appellant has not
submitted corroborating evidence of error or abuse in these administrative matter, and thus, has
not established a compensable employment.23
17

D.T., Docket No. 19-1270 (issued February 4, 2020); W.F., Docket No. 18-1526 (issued November 26, 2019);
J.E., Docket No. 17-1799 (issued March 7, 2018); Bobbie D. Daly, 53 ECAB 691 (2002).
18

D.T., id.; A.J., Docket No. 18-1116 (issued January 23, 2019); Gary J. Watling, 52 ECAB 278 (2001).

19
See A.C., Docket No. 18-0507 (issued November 26, 2018); Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy
Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate, 41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260,
1266-67 (1988).
20
W.F., Docket No. 18-1526; B.O., Docket No. 17-1986 (issued January 18, 2019); James E. Norris, 52 ECAB
93 (2000).
21

M.Z., Docket No. 13-0023 (issued April 15, 2013).

22

T.L., Docket No. 18-0100 (issued June 20, 2019); Matilda R. Wyatt, 52 ECAB 421 (2001); McEuen, supra
note 10.
23

R.B., Docket No. 19-0343 (issued February 14, 2020); R.V., Docket No. 18-0268 (issued October 17, 2018).

10

Appellant contended that she was treated differently and discriminated against based on
her sex, race, and disability in the claimed incidents at work. For harassment or discrimination to
give rise to a compensable disability under FECA, there must be probative and reliable evidence
that harassment or discrimination did in fact occur.24 Mere perceptions of harassment, retaliation,
or discrimination are not compensable under FECA.25 Appellant claimed that her coworkers
currently had a four-day telework schedule while her request for the same schedule was denied.
Additionally, she claimed that she was offered relocation to avoid being exposed to the coworker’s
poor hygiene, but he was never relocated to a different workspace. Appellant has not submitted
any corroborative evidence to establish a factual basis for her allegations. The Board notes that
both J.L., K.A., appellant’s former supervisor, and U.B., an employee, had conversations with the
coworker about his poor hygiene and his condition improved. The employee acknowledged that
J.L. and K.A. spoke to him about his hygiene. Based on the evidence of record, the Board finds
that appellant has not established, with corroborating evidence, that she was discriminated against
by the employing establishment.
As noted above, the Board finds that appellant has established a compensable employment
factor with regard to her claim of being improperly suspended and removed from the employing
establishment during the period May 30 through July 22, 2016. Accordingly, OWCP must analyze
the medical evidence to determine whether she sustained an emotional condition as a result of this
compensable employment factor. The case will therefore be remanded to OWCP. After this and
other such further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

24

T.G., Docket No. 19-0071 (issued May 28, 2019); Marlon Vera, 54 ECAB 834 (2003).

25

Id.; see also Kim Nguyen, 53 ECAB 127 (2001).

11

ORDER
IT IS HEREBY ORDERED THAT the August 9, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: August 14, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Lisbon, OH, Employer
__________________________________________

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

Docket No. 12-1093
Issued: October 3, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 18, 2012 appellant, through his attorney, filed a timely appeal from a March 28,
2012 merit decision of the Office of Workers’ Compensation Programs. 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 met his burden of proof to establish that he sustained an
emotional condition in the performance of duty due to factors of his federal employment.
On appeal appellant, through counsel, contends that OWCP’s decision was contrary to
fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 11, 2010 appellant, then a 41-year-old factory recovery technician, filed an
occupational disease claim alleging severe anxiety disorder, stress, bipolar disorder and major
depressive disorder as a result of exposure to high levels of metals in Federal Prison Industries
(trade name UNICOR) buildings, the conditions in UNICOR buildings and not knowing if he
would have a job in the future. He first became aware of his condition and realized it resulted
from his employment on May 5, 2010.
On May 10, 2011 OWCP advised appellant that no evidence was submitted to establish
that he actually experienced the employment factors as alleged or that he sustained any
diagnosed condition as a result of his employment. It requested that he answer specific questions
related to the conditions he believed contributed to his claim, identify relevant dates and
locations of the alleged exposures, and describe how often and the duration of the alleged
exposures. OWCP also requested that appellant provide a narrative medical report from a
physician which included an accurate history of injury, description of examination findings, a
firm medical diagnosis and the physician’s opinion regarding the cause of his alleged emotional
condition. No additional evidence was received.
In a decision dated August 23, 2011, OWCP denied appellant’s claim finding insufficient
evidence to establish that he was exposed to any compensable factors of employment.
On August 30, 2011 appellant submitted a request for a telephonic hearing, which was
held on December 19, 2011. He was represented by counsel. Appellant worked for the
employing establishment for almost 15 years and realized that he had psychiatric conditions in
2005 when he was transferred to work in the UNICOR buildings. He stated that inmates were
involved in electronics recycling and industrial processes and he alleged exposure to lead,
cadmium and beryllium inside cathode ray tubes that inmates broke out of computers. The
inmates wore dust masks but he did not and there was no air ventilation in the warehouse.
Appellant alleged that an air test revealed cadmium levels 450 times higher than the federal
safety limits and that the recycling warehouse was shut down because a report indicated that the
levels at UNICOR were very unfavorable. He stated that he did not test positive for any heavy
metals in his blood, but he was informed they could lay dormant in his liver and kidneys. The
hearing representative advised appellant to provide additional factual evidence to establish that
he was exposed to heavy metals at work and a medical report from a physician explaining how
any exposure at work caused or contributed to a diagnosed medical condition. Appellant was
informed that the record would remain open for 30 days to allow for submission of additional
evidence. He did not respond.
On January 13, 2012 the employing establishment addressed the hearing transcript. It
stated that OSHA air tests were within permissible exposure limits. The employing
establishment explained that one reading was conducted during a filter change out procedure. A
noncompliant inmate slammed the filter on the floor, which caused the high reading. A later
reading revealed that the levels were well below permissible exposure limits. The employing
establishment maintained that appellant could not have been exposed to high levels of metals
because he did not perform any glass breaking work and was never directly over the breakage
working area but only supervised the recycling process. It reported that he and other staff

2

members completed weekly fire and safety sheets and did not note any issues arose. Staff
working in the area had extensive blood work and heavy metals were not detected. The
employing establishment also refuted that OSHA never requested them to terminate their
recycling operation.
By decision dated March 28, 2012, an OWCP hearing representative affirmed the
August 23, 2011 decision denying appellant’s occupational disease claim. He found that the
factual evidence was insufficient to support appellant’s exposure allegations. Further, no
medical evidence was submitted to establish psychological conditions causally related to factors
of his employment.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.2 There are situations where an injury or an
illness has some connection with the employment but nevertheless does not come within the
concept or coverage of workers’ compensation.3 Where the disability results from an
employee’s emotional reaction to his regular or specifically assigned duties or to a requirement
imposed by the employment, the disability comes within the coverage of FECA.4 On the other
hand, the disability is not covered where it results from such factors as an employee’s fear of
reduction-in-force or his frustration from not being permitted to work in a particular environment
or to hold a particular position.5
A claimant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition, for which he claims compensation was caused or
adversely affected by employment factors.6 This burden includes the submission of a detailed
description of the employment factors or conditions, which appellant believes caused or
adversely affected the condition or conditions, for which compensation is claimed.7
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.8 If a claimant does implicate a factor of
2

L.D., 58 ECAB 344 (2007).

3

A.K., 58 ECAB 119 (2006).

4

Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

5

J.F., 59 ECAB 331 (2008); Gregorio E. Conde, 52 ECAB 410 (2001).

6

Pamela R. Rice, 38 ECAB 838 (1987).

7

Effie O. Morris, 44 ECAB 470 (1993).

8

D.L., 58 ECAB 217 (2006).

3

employment, OWCP should then determine whether the evidence of record substantiates that
factor.9 When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, OWCP must base its decision on an analysis of
the medical evidence.10
ANALYSIS
Appellant alleged that he developed stress, anxiety and major depressive disorders due to
exposure to harmful levels of metals at work and whether he would have a job in the future.
OWCP denied his claim finding that he did not establish any compensable employment factors.
The Board must review whether the alleged incidents or conditions of employment are
established as compensable employment factors.
Appellant alleged that he was exposed to high levels of lead, cadmium and beryllium as a
result of the recycling process the inmates participated in at work. He did not, however, specify
any dates, duration of exposures or provide a detailed description of how he was exposed to the
alleged metals. Appellant’s allegation is not adequate to establish that he was exposed to heavy
metals at work. He did not submit any evidence such as witness statements or copies of any
OSHA or other reports to establish high amounts of heavy metals in the environment. The
employing establishment denied that exposure took place because appellant only supervised the
inmates and was never directly over the breakage working area or participated in the glass
breaking procedure. The employing establishment also explained that testing did not reveal any
toxicity above permissible levels. The Board finds that appellant has not established that he was
exposed to high levels of heavy metals at work.11
Appellant also alleged that he experienced anxiety over worrying about whether he would
have a job in the future. As noted, however, factors such as an employee’s fear of a reductionin-force or to hold a specific position are not considered a compensable factor of employment.12
Consequently, the Board finds that appellant has not established his claim for an emotional
condition because he has not established any compensable employment factors.13
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(a)
and 20 C.F.R. §§ 10.605 through 10.607.

9

K.W., 59 ECAB 271 (2007); Matilda R. Wyatt, 52 ECAB 421 (2001).

10

Robert Breeden, 57 ECAB 622 (2006).

11

See D.B., Docket No. 11-1932 (issued July 19, 2012).

12

J.F., supra note 5.

13

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record. Margaret S. Krzycki, 43 ECAB 496 (1992).

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an emotional condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the March 28, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 3, 2012
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
O.C., Appellant
and
U.S. POSTAL SERVICE, EL PASO
MANAGEMENT CENTER, El Paso, TX,
Employer
__________________________________________

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Appearances:
Linda Temple, for the appellant
Office of Solicitor, for the Director

Docket No. 07-535
Issued: September 17, 2007

Case Submitted on the Record

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

JURISDICTION
On December 18, 2006 appellant, through his representative, filed a timely appeal from a
decision of the Office of Workers’ Compensation Programs’ hearing representative dated
July 24, 2006 finding that he was not entitled to an increased schedule award. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction over the merit issue of the case.1
ISSUE
The issue is whether appellant has more than a 12 percent impairment to his right lower
extremity.
FACTUAL HISTORY
On September 6, 1996 appellant, then a 54-year-old letter carrier, filed an occupational
disease claim alleging that, due to carrying a heavy load for 30 years, he developed problems
1

On appeal, appellant is only contesting the percentage of the schedule award for the impairment to his right
lower extremity.

with his knees. On October 9, 1996 the Office accepted his claim for chondromalacia patella and
dislocation of the right knee. On January 14, 1998 appellant received a schedule award for a 10
percent permanent impairment to the right lower extremity. On February 26, 2001 the Office
accepted his claim for dislocation of the right knee and torn medial meniscus of the left knee.
In a report dated October 10, 2001, Dr. Richard S. Westbrook, a Board-certified
orthopedic surgeon, noted that appellant’s chief complaint was “medial meniscal tear of the right
knee.” He diagnosed osteoarthritis of the knee, medial meniscal tear and chondromalacia of the
patella and indicated that appellant had reached maximum medical improvement (MMI).
“[Appellant] has been reviewed as far as impairment rating from the [A.M.A.,
Guides]. According to the [f]ifth [e]dition, [appellant] has a 10 percent lower
extremity impairment secondary to the narrowing of the patellofemoral joint of
two millimeters (mm) and a 7 percent lower extremity impairment secondary to
the narrowing of the knee joint at three mm by [A.M.A., Guides 544,] [T]able 1731. [Appellant’s] range of motion is 0 to 120 degrees as compared to the 0 to 140
degrees on the opposite knee by extrapolating from the value of 110 degree knee
range of motion. Because of loss of the medial meniscus, [he] has an additional
two percent lower extremity impairment. The previous impairment rating given
to [appellant] was a 10 percent lower extremity impairment in the past because of
this meniscal injury. Because of the meniscal injury and the necessity for
meniscectomy, [appellant] has had a progression of his arthritic changes in his
knee recently has a 14 percent increase in the lower extremity impairment (this
equals a 6 percent whole person impairment in addition to his previous
impairment).
The Office referred appellant’s case to the Office medical adviser. In a report dated
October 10, 2002, he stated:
“Dr. Westbrook reports right knee arthroscopy [status postoperative] partial
medial meniscectomy, osteoarthritis, patellar chondromalacia, stable knee, [range
of motion 0/120 degrees] and a 24 [percent] lower extremity impairment
consisting of 17 [percent]. For arthritis (two [mm] patellofemoral cartilage
interval and three mm knee cartilage interval), five [percent] for limited [range of
motion], a two [percent] for partial meniscectomy.
“Based upon the [A.M.A., Guides] and the report from Dr. Westbrook, I am able
to make the following determination:
Arthritis [A.M.A., Guides 544, Table 17-31] -- right
Knee-Patellofemoral Cartilage Interval -- 2 mm -- 10 [percent right
lower extremity].
Diagnosis-based Estimate [A.M.A., Guides 546, Table 17-33).
Knee -- Meniscectomy -- Partial -- Medial -- 2 [percent right lower
extremity.]
2

Combine [A.M.A., Guides 604] 10 [percent] and 2 [percent] is 12 [percent right
lower extremity]. “No consideration is given for [range of motion] deficit in
addition to arthritis, because this would be contrary to the [C]ross-[U]sage [C]hart
[A.M.A., Guides 526, Table 17-2]. Likewise, in my opinion, to consider
patellofemoral arthritis and knee arthritis separately would be duplication because
arthritis involves the entire joint.
“I was unable to find an evaluation of the left lower extremity.
“A previous schedule award for the [right lower extremity] was determined by [a
previous Office medical adviser] to be 10 [percent,] based upon range of motion
of the knee. This schedule award for the [right lower extremity] is an additional
two [percent right lower extremity].
On April 18, 2002 appellant had an arthroscopy with partial medial meniscectomy and
partial synovectomy.
In a February 9, 2003 report, Dr. Westbrook clarified his earlier opinion, stating:
“[Appellant] had a 10 [percent] impairment of the lower extremity given for prior
injuries. [He] has increased the lower extremity impairment to 24 [percent]
because of the arthritic changes that he has in his [right] knee because of the
meniscal injuries that [appellant] sustained in the most recent injury. This gives
an additional 14 [percent] lower extremity impairment to [appellant] which equals
an additional 6 [percent] whole person impairment for [appellant] for both lower
extremity, i.e., both knee injuries.”
By decision dated February 20, 2003, the Office granted a schedule award for two
percent impairment of the right lower extremity. This was in addition to the schedule award for
a 10 percent permanent impairment previously awarded.
By letter dated February 25, 2003, appellant requested review of the written record. By
decision dated July 2, 2003, the hearing representative affirmed the February 20, 2003 decision.
On February 25, 2004 appellant filed a claim for an additional schedule award. On
January 26, 2005 the Office found that the evidence submitted was insufficient to modify the
prior decision awarding a 12 percent impairment to appellant’s right lower extremity. On
January 28, 2005 the Office issued a schedule award for a 12 percent impairment of the left
lower extremity.
On March 26, 2005 appellant requested reconsideration. In a report dated March 16,
2005, Dr. Westbrook stated that appellant was entitled to a greater schedule award for his right
knee. He stated:
“By the [A.M.A., Guides], there are two areas when using Table 17-31. One table
is for whole person impairment, arthritis impairments based on
roetgengoraphically determined cartilage intervals. There is one impairment for
the knee and one impairment for the patellofemoral joint. I have tried to explain
3

this in the previous letters. I have given [appellant] two impairment ratings; one
for the knee joint, i.e., the joint between the tibia and the femur, another
impairment rating for the impairment between the kneecap and the femur, i.e., the
patellofremoral joint.
“As noted in my letter of February 9, 2003, [appellant] had a previous impairment
because of the loss of cartilage in his knee. This has been increased from 10
[percent] impairment of the lower extremity to 24 [percent] impairment of the
lower extremity secondary to the progressive arthritic changes, as viewed by
x-ray.
“[Appellant] has a patellofemoral joint space of 2 [mm], which according to the
guidelines from Table 17-3[1],2 is a 10 [percent] lower extremity impairment.
[He] has a 3 mm narrowing in the joint space of the knee, i.e., between the femur
and the tibia, which is a 7 [percent] impairment. This gives an increase in
[appellant’s] impairment, as noted above, to 14 percent over his previous
impairment. I am using the [A.M.A.,] Guides as prescribed the U.S. Department
of Labor and that is the [A.M.A.,Guides].
By letter dated May 8, 2006, the Office referred appellant to Dr. Randy Pollet, a Boardcertified orthopedic surgeon, for a second opinion. In a report dated June 14, 2006, Dr. Pollet
stated:
“At this time, after reviewing multiple medical records, clinical notes and records
that were submitted to this office and referring to page 546, [T]able 17-33 in the
[A.M.A., Guides, appellant] was found to have one [percent] impairment of the
right, one [percent] impairment whole body concerning the injuries to the right
knee, and one [percent] impairment for the left knee.
“There was no significant atrophy, no instability, no joint swelling and most of
the changes were age related and related to osteoarthritis and again and probably
not repetitive activities.
“[Appellant] had successful surgery and according to [T]able 17-33 for partial
medial or lateral meniscectomy, he should be ordered one [percent] impairment,
one [percent] injuries to the right knee and one percent injuries to the left knee,
A.M.A., Guides (5th ed.)”
On June 22, 2006 the Office referred Dr. Pollet’s report to the Office medical adviser. In
a report dated July 12, 2006, the Office medical adviser noted:
“I have reviewed the record and the [statement of accepted facts] of [appellant] on
this date. The recommendations regarding the [s]cheduled [a]ward for him are
based on the record and the [A.M.A., Guides].
2

The Board notes that Dr. Westbrook’s report contains a typographical error in that the correct Table is 17-31 and
not 17-32 as indicated.

4

“[Appellant] has accepted conditions derangement of both knees with surgeries....
I have been asked to review the report of Dr. Pollet dated [June 7, 2006] for the
purpose of determining impairment for the lower extremities.
“MMI was achieved June 7, 2006 (date of evaluation).
“Determination of permanent impairment for the [right lower extremity] is as
follows:
“Dr. Pollet first recommends two [percent permanent impairment]
for the [right lower extremity] based on partial meniscectomy.
After reviewing the operative note [August 13, 1996), he notes that
plica resection was performed, not menisectomy. [Dr. Pollet]
recommends [zero percent permanent impairment] for the [right
lower extremity].
“Permanent impairment of the [right lower extremity] is zero [percent].
The Office medical adviser also noted no additional impairment to appellant’s left lower
extremity.
In a decision dated July 24, 2006, the Office found that modification of the earlier
decision was not warranted, as there was no basis for an additional or supplemental award to
either lower extremity.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulation4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.5
ANALYSIS
On appeal, appellant asserts that he has greater than 12 percent impairment of his right
lower extremity.6
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

See id.; Jacqueline Harris, 54 ECAB 139 (2002).

6

Appellant does not contest the amount of the schedule award to his left lower extremity.

5

Dr. Westbrook, appellant’s treating physician, indicated in an August 2001 report, that
appellant had a narrowing of the patellofemoral joint space of two mm which according to Table
17-31 of the A.M.A., Guides7 equals a 10 percent impairment of the left lower extremity. He
further noted, by use of the same table,8 that appellant had a three mm narrowing in the joint
space of the knee between the femur and the tibia which is a seven percent impairment according
to the A.M.A., Guides. Dr. Westbrook also noted that appellant had a two percent impairment
due to the right lower extremity due to the loss of the medial meniscus. He also noted that
appellant would be entitled to an extra five percent lower extremity impairment according to the
A.M.A., Guides due to loss of range of motion. Accordingly, Dr. Westbrook opined that
appellant had a total of a 24 percent impairment to the right lower extremity or 14 percent more
than the 10 percent appellant had previously been awarded. However, his estimate of
impairment did not take the Cross-Usage Chart into consideration. Range of motion loss may
not be combined with arthritis impairment.
The Office referred this report to the Office medical adviser, who determined that
appellant was only entitled to a two percent increase based on the partial meniscectomy of his
knee. He correctly noted that no consideration should be given for range of motion deficit
because that would be contrary to the Cross-Usage Chart at Table12-2. However, the Office
medical adviser disagreed with Dr. Westbrook with regard to the seven percent impairment
rating that Dr. Westbrook found due to narrowing of the knee joint by three mm. He opined that
to consider patellofemoral arthritis and knee arthritis separate would be duplication because
arthritis involves the entire joint. The Office medical adviser provided no support for this
assertion. The Board notes that Table 17-31, page 544, of the A.M.A., Guides allows separate
ratings for loss of patellofemoral cartilage interval and knee cartilage interval.9
The Board finds that the case is not in posture for decision. The case will be remanded to
the Office for further medical opinion on the extent of permanent impairment to appellant’s right
lower extremity. After such further development as the Office deems necessary, an appropriate
decision should be issued regarding the extent of appellant’s right lower extremity impairment.
CONCLUSION
The Board finds that the case is not in posture for decision.

7

See A.M.A., Guides 544, Table 17-31.

8

Id.

9

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 24, 2006 is set aside and the case is remanded for further
action consistent with this opinion.
Issued: September 17, 2007
Washington, DC

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

__________________________________________
R.A., Appellant
and
U.S. POSTAL SERVICE, GENERAL MAIL
FACILITY, White Plains, NY, Employer
__________________________________________

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Appearances:
Stephen Larkin, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1271
Issued: October 1, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 12, 2014 appellant, through her representative, filed a timely appeal from a
nonmerit February 24, 2014 decision of the Office of Workers’ Compensation Programs
(OWCP) denying her request for reconsideration as it was not timely filed and failed to present
clear evidence of error. The most recent merit decision of record is dated December 22, 2010.
There is no merit decision within 180 days of May 12, 2014, the date appellant filed her appeal
with the Board. Therefore, pursuant to the Federal Employees’ Compensation Act (FECA)1 and
20 C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this
case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and failed to present clear evidence of error.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant’s representative asserts that OWCP erred by refusing to consider
expanding the claim to include cervicalgia, a herniated cervical disc and cervical facet syndrome.
FACTUAL HISTORY
This is the fourth appeal before the Board. By decision and order issued May 3, 2012,2
the Board affirmed OWCP’s May 28, 2011 nonmerit decision denying reconsideration on the
grounds that it did not raise substantive legal questions or include new and relevant evidence.
The Board found that the evidence submitted on reconsideration was repetitive and therefore
insufficient to warrant a merit review.3 The facts of the case as set forth in the Board’s prior
decision and order are incorporated by reference.
In an April 24, 2013 letter, appellant’s representative requested reconsideration. He
asserted that new medical evidence established that an accepted January 8, 2006 cervical sprain
also caused or aggravated herniated discs at C4-5 and C5-6, cervical spondylosis and
neuroforaminal narrowing at C6-7. Appellant’s representative contended that appellant had
ongoing injury-related residuals.
In a December 24, 2012 report, Dr. John V. Ioia, an attending Board-certified orthopedic
surgeon, diagnosed a herniated cervical disc. He opined that the medical record documented that
the January 8, 2006 lifting incident caused a “herniated cervical disc and not just a simple strain
and she [was] having ongoing issues.” In March 20 and April 17, 2013 chart notes, Dr. Ioia,
diagnosed cervical radiculopathy and significant degenerative disc disease from C3 to C5.
In an undated report received on April 30, 2013, Dr. David Ginsburg, an attending Boardcertified anesthesiologist and pain management specialist, noted the January 8, 2006 lifting
incident and accepted cervical sprain. He opined that a magnetic resonance imaging (MRI) scan
performed at the time of the January 8, 2006 injury demonstrated that the incident also caused a
disc herniation at C4-5, neuroforaminal narrowing at C5-6 and C6-7 and cervical spondylosis
because appellant heard a cracking noise in her neck at the time of injury. Dr. Ginsburg
attributed appellant’s degenerative disc disease to a “natural progression over a period of time
from the original injury of January 8, 2006.”
Appellant’s representative also provided a March 27, 2013 MRI scan showing
degenerative disc disease throughout the cervical spine.
By decision dated February 24, 2014, OWCP denied appellant’s request for
reconsideration on the grounds that the request was not timely filed and failed to present clear
evidence of error. It found that appellant’s request was received on April 30, 2013, more than
2

Docket No. 11-2091 (issued May 3, 2012).

3

On May 21, 2012 appellant filed a petition for reconsideration, repeating arguments made on appeal. The
Director filed an answer on June 1, 2012 requesting that the Board deny the petition as no error of law or fact had
been cited. Appellant’s attorney filed a June 5, 2012 response, alleging that the Director’s answer was vague. By
order issued July 27, 2012, the Board issued an order denying appellant’s petition for reconsideration on the grounds
that it failed to establish any error of fact or law warranting further reconsideration.

2

one year after the December 22, 2010 decision, the most recent merit decision in the claim.4
OWCP further found that appellant’s argument and evidence did not establish clear evidence of
error.
LEGAL PRECEDENT
Section 8128(a) of FECA5 does not entitle a claimant to a review of an OWCP decision
as a matter of right.6 This section vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation.7 OWCP, through regulations, has imposed
limitations on the exercise of its discretionary authority. One such limitation is that OWCP will
not review a decision denying or terminating a benefit unless the application for review is filed
within one year of the date of that decision.8 The Board has found that the imposition of this
one-year time limitation does not constitute an abuse of the discretionary authority granted
OWCP under 5 U.S.C. § 8128(a).9
In those cases where requests for reconsideration are not timely filed, OWCP must
nevertheless undertake a limited review of the case to determine whether there is clear evidence
of error pursuant to the untimely request in accordance with section 10.607(b) of its
regulations.10 OWCP regulations state that OWCP will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in OWCP’s regulations, if the
claimant’s request for reconsideration shows “clear evidence of error” on the part of OWCP.11
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.12 The evidence must be positive, precise and explicit and must be
manifest on its face that OWCP committed an error.13 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.14 It is not enough merely to show that the evidence could be construed
4

OWCP actually stated that the decision was issued December 20, 2010. This is a typographical error as the
decision was issued on December 22, 2010.
5

5 U.S.C. § 8128(a).

6

Thankamma Mathews, 44 ECAB 765, 768 (1993).

7

Thankamma Mathews, id.; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

8

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in OWCP’s limitation of its discretionary authority;
see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
9

5 U.S.C. § 10.607(b); Thankamma Mathews, supra note 6; Jesus D. Sanchez, supra note 7.

10

Thankamma Mathews, supra note 6.

11

20 C.F.R. § 10.607(b).

12

Thankamma Mathews, supra note 6.

13

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

14

Jesus D. Sanchez, supra note 7.

3

so as to produce a contrary conclusion.15 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error by OWCP.16 The Board must make an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.17
ANALYSIS
In its February 24, 2014 decision, OWCP properly determined that appellant failed to file
a timely application for review. The most recent merit decision of record was rendered on
December 22, 2010. Appellant requested reconsideration by April 24, 2013 letter received by
OWCP on April 30, 2013, more than one year from the issuance of the December 22, 2010
decision. OWCP denied the request by February 24, 2014 decision on the grounds that it was
not timely filed and failed to present clear evidence of error. As it is now settled that the
April 30, 2013 reconsideration request was not timely filed, it must now be determined whether
the request demonstrated clear evidence of error.
In his April 24, 2013 letter, appellant’s representative alleged that new medical evidence
demonstrated that OWCP should expand the claim to accept herniated cervical discs, cervical
spondylosis and neuroforaminal narrowing. The Board finds that this argument, which OWCP
previously rejected, does not raise a substantial question as to whether that decision was in error
or shift the weight of the evidence in appellant’s favor. Also, repetitive or cumulative evidence
is insufficient to shift the weight of the evidence in favor of the claimant.18 Therefore, the
April 24, 2013 letter is insufficient to establish clear evidence of error.
Appellant’s representative also submitted reports from Dr. Ioia, an attending Boardcertified orthopedic surgeon, who opined that the January 8, 2006 lifting incident caused a
cervical disc herniation in addition to the accepted strain. He also provided a report from
Dr. Ginsburg, an attending Board-certified anesthesiologist and pain management specialist, who
explained that the January 8, 2006 injury caused cervical disc herniations and neuroforaminal
narrowing because appellant “heard a cracking noise” in her neck at the time she sustained the
accepted cervical sprain. Appellant’s representative also submitted a March 27, 2013 imaging
study MRI scan showing degenerative disc disease throughout the cervical spine. The Board
finds that these medical reports do not establish that OWCP erred in anyway in its previous merit
decision. While the opinions of Dr. Ioia and Dr. Ginsburg and the MRI scan study suggest a
contrary conclusion to that reached by OWCP, such evidence is insufficient to establish clear
evidence of error.19
15

Leona N. Travis, supra note 13.

16

Nelson T. Thompson, 43 ECAB 919, 922 (1992).

17

Gregory Griffin, supra note 8.

18

D.E., 59 ECAB 438 (2008).

19

Leona N. Travis, supra note 13.

4

The Board finds that the additional evidence submitted does not demonstrate clear
evidence of error. Appellant has not provided argument or evidence of sufficient probative value
to shift the weight of the evidence in her favor and raise a substantial question as to the
correctness of the previous merit decision. Consequently, OWCP properly denied appellant’s
reconsideration request as her request does not establish clear evidence of error.
On appeal, appellant’s representative asserts that OWCP erred by refusing to consider
expanding the claim to include cervicalgia, a herniated cervical disc and cervical facet syndrome.
As noted, OWCP properly denied reconsideration. It previously considered and rejected the
argument concerning expansion of the claim.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 24, 2014 is affirmed.
Issued: October 1, 2014
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.J., Appellant
and
DEPARTMENT OF THE NAVY, SYSTEMS
CENTER, North Charleston, SC, Employer
__________________________________________

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

Docket No. 14-528
Issued: October 16, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 3, 2014 appellant, through counsel, filed a timely appeal from a September 6,
2013 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 an employment-related permanent impairment
entitling him to a schedule award.
FACTUAL HISTORY
On May 15, 2000 appellant, then a 35-year-old accounting technician, filed a traumatic
injury claim (Form CA-1) alleging that he sustained a low back injury on May 5, 2000 in the
performance of duty. She alleged that she fell backward while attempting to sit in a chair.
1

5 U.S.C. § 8101 et seq.

OWCP accepted sprains of the neck, thoracic spine, right elbow, wrist and forearm and lumbar
intervertebral disc displacement.
Appellant submitted a claim for compensation (CA-7) on April 12, 2012 indicating he
was claiming a schedule award. In a report dated April 2, 2012, Dr. Mark Netherton, a Boardcertified anesthesiologist, opined that, under the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment, appellant had a 31 percent
whole body impairment based on lumbar radiculopathy and chronic pain syndrome.
In an addendum report dated April 18, 2012, Dr. Netherton stated that, based on the sixth
edition of the A.M.A., Guides, appellant had a 20 percent lower extremity impairment.
Dr. Netherton assigned a class II impairment of the lower extremities after lumbar surgery and
mild sensory and motor deficits from the L4-5 nerve root. By report dated May 16, 2012, an
OWCP medical adviser opined that appellant did not have a ratable permanent impairment to
either lower extremity. The medical adviser stated there was no objective evidence to support
motor or sensory deficit.
By decision dated May 21, 2012, OWCP determined that appellant was not entitled to a
schedule award. It found the medical evidence did not establish entitlement to a schedule award.
In a letter dated August 15, 2013, appellant’s representative found that the April 18, 2012
report from Dr. Netherton did provide an opinion under the sixth edition of the A.M.A., Guides.
Appellant inquired as to why this evidence was not sufficient to establish the claim for a
schedule award.
By report dated August 21, 2013, an OWCP medical adviser opined there was no
evidence of a lower extremity impairment. The medical adviser indicated that The Guides
Newsletter must be used to determine a nerve impairment.
By decision dated September 6, 2013, OWCP stated that the report of Dr. Netherton “was
reviewed and an impairment rating was assessed.” It indicated that the report of the medical
adviser was enclosed.
LEGAL PRECEDENT
5 U.S.C. § 8107 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.2 Neither FECA 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 OWCP has

2

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

adopted the A.M.A., Guides as the uniform standard applicable to all claimants.3 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.4
ANALYSIS
In the present case, appellant had requested reconsideration of the May 21, 2012 OWCP
decision determining that appellant was not entitled to a schedule award based on the medical
evidence.5 She noted that Dr. Netherton had provided an opinion in his April 18, 2012 report
under the sixth edition of the A.M.A., Guides. The September 6, 2013 decision does not make
any findings on the issues presented. It stated only that “the report” of Dr. Netherton was
reviewed and a copy of an OWCP medical adviser’s report was enclosed.
It is a well-established principle that OWCP must make findings of fact and offer a
statement of reasons in its final decisions.6 The September 6, 2013 decision does not make
findings of fact or offer a statement of reasons. The decision appears to make a determination
that the medical evidence is not sufficient to establish a schedule award, without discussing the
medical evidence. If OWCP is finding that the weight of the evidence is represented by a report
or reports of OWCP medical advisers, then it should discuss the reports and explain its finding
that appellant is not entitled to a schedule award in this case. Dr. Netherton in his April 18, 2012
report found that appellant had a nerve root injury at the L4-5 level which caused sensory and
motor deficits and lower extremity impairment, pursuant to the A.M.A., Guides. OWCP has not
explained why this evidence is not sufficient to support a schedule award.
The case will be remanded to OWCP for a proper decision with findings of fact and a
statement of reasons with respect to the issue presented. After such development as OWCP
deems necessary, it should issue an appropriate decision.
CONCLUSION
The Board finds the case is not in posture for decision and is remanded to OWCP to issue
a proper decision in accord with its regulations and Board precedent.

3

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

4

FECA Bulletin No. 09-03 (issued March 15, 2009).

5

Even if the term reconsideration is not used, a written letter may properly be considered an application for
reconsideration. See R.C., Docket No. 13-450 (issued April 26, 2013).
6

Z.B., Docket No. 12-1164 (issued December 14, 2012); Arietta K. Cooper, 5 ECAB 11 (1952); 20 C.F.R.
§ 10.126.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 6, 2013 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: October 16, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4