United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Paul Kalker, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-720
Issued: October 21, 2013

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 February 6, 2013 appellant, through her attorney, filed a timely appeal from a
December 31, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
terminating compensation on the grounds of refusing suitable work. 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.2
ISSUE
The issue is whether OWCP properly terminated appellant’s compensation effective
September 7, 2010 on the grounds that she refused suitable work under 5 U.S.C. § 8106(c)(2).
On appeal, counsel contended that OWCP unreasonably sought second opinion and
referee medical evidence, which was not well rationalized and lacked probative value.
1
2

5 U.S.C. §§ 8101-8193.

The Board notes that, following the issuance of the December 31, 2012 OWCP decision, appellant submitted
new evidence. The Board is precluded from reviewing evidence which was not before OWCP at the time it issued
its final decision. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
OWCP accepted that appellant, then a 30-year-old city carrier, sustained lumbosacral
radiculitis as a result of lifting and pushing heavy parcels in the performance of duty on
October 27, 2009. Appellant was placed on the periodic rolls and received appropriate
compensation benefits. She stopped work on the date of injury and did not return.
OWCP referred appellant to Dr. Robert J. Orlandi, a Board-certified orthopedic surgeon,
for a second opinion evaluation. In an April 19, 2010 report, Dr. Orlandi took a detailed medical
history, reviewed appellant’s medical records and performed a physical examination. He
concluded that appellant’s lumbar condition had resolved. Dr. Orlandi found that appellant was
capable of working full-time regular duty without restrictions. He noted that there would be no
need for additional diagnostic testing, including a post-gestational lumbar magnetic resonance
imaging (MRI) scan. In an addendum dated May 25, 2010, Dr. Orlandi clarified that appellant’s
lumbar sprain had resolved with no evidence of lumbar radiculopathy.
Appellant underwent a functional capacity evaluation on April 28, 2010, which showed
that she was not able to return to work to full or modified duty.
In an April 6, 2010 report, Dr. Andrew D. Brown, a Board-certified physiatrist, opined
that appellant was totally disabled for work. Appellant was also six months pregnant.
Dr. Brown explained that it was difficult to determine her work capacity based on her low back
injury only as opposed to the additional effects of her pregnancy. He opined that appellant was
capable of working no more than three hours a day with the following restrictions: no lifting
more than 10 pounds; must change positions every 15 to 20 minutes; must take a break every 10
to 20 minutes. On May 18, 2010 Dr. Brown noted that she was seven months pregnant and
reiterated his opinion that she was capable of sedentary work with restrictions. He indicated that
appellant would require an MRI scan of the lumbar spine after giving birth to determine the
extent of her lumbosacral pathology, which could not be assessed due to her pregnancy at that
time.
On June 3, 2010 the employing establishment offered appellant a part-time modified city
carrier position which was available the next day. The sedentary position required standing,
walking and sitting for an average of one hour per day. Appellant would be scheduled to work
no more than three hours per day. She accepted the offer on June 7, 2010 with an explanation
that she could not report to duty due to her pregnancy.
By letter dated July 26, 2010, OWCP noted that appellant had accepted the job offer, but
did not report to work because she was pregnant. It advised her that her reasons for refusing the
offered position were not determined to be reasonable and her compensation benefits would be
terminated if she did not submit medical evidence from an obstetrician/gynecologist specifically
stating that she was incapable of performing the duties of the modified position within 30 days.
Appellant notified OWCP by telephone that she had given birth and was no longer pregnant.
In an August 27, 2010 letter, OWCP advised appellant that it had considered her reasons
for refusal and found them unacceptable. It afforded her 15 days in which to accept the position
or her compensation benefits would be terminated. It noted that no further reasons for refusal
would be considered.
2

Appellant submitted an August 12, 2010 report from Dr. Claudia Ravins, a Boardcertified obstetrician and gynecologist, who diagnosed post-partum depression. Dr. Ravins
opined that appellant was able to go back to work without any restrictions effective
August 30, 2010.
By decision dated September 10, 2010, OWCP terminated appellant’s compensation
benefits effective September 7, 2010 on the basis that she refused suitable employment.
On September 29, 2010 appellant, through her attorney, requested a review of the written
record by an OWCP hearing representative. In a September 10, 2010 report, Dr. Ravins
indicated that appellant had a natural delivery on July 18, 2010 and took her off work for one
month due to post-partum depression. He released appellant to work on September 27, 2010
without any restrictions. Appellant also submitted a September 28, 2010 report from Dr. Brown
who noted that she experienced increased pain to palpation, spasm and tenderness in the
paralumbar musculature and was totally disabled for her job as it had been described to him.
OWCP found a conflict in medical opinion between Dr. Brown and Dr. Orlandi. To
resolve this conflict, it referred appellant to Dr. Salvatore J. Sclafani, a Board-certified
orthopedic surgeon for an impartial medical examination. In an October 7, 2010 report,
Dr. Sclafani reviewed a statement of accepted facts, related appellant’s history, reviewed the
medical record and conducted a physical examination. He found no objective evidence of any
ongoing radiculopathy and concluded that appellant’s lumbar condition had resolved.
Dr. Sclafani found no indication upon physical examination for a need of an MRI scan and
opined that appellant was capable of her normal work without restrictions.
By decision dated February 17, 2011, an OWCP hearing representative affirmed the
September 10, 2010 decision based on a review of the written record.
On May 5, 2011 appellant, through her attorney, requested reconsideration and submitted
a February 18, 2011 MRI scan of the lumbar spine which revealed a three-millimeter central disc
herniation at L5-S1 with thecal sac flattening and transitional vertebrae lumbosacral junction.
She also submitted an April 4, 2011 report from Dr. Brown who reiterated his opinion that
appellant was totally disabled for her job description due to her employment-related condition.
On April 17, 2011 Dr. Brown opined that the herniated nucleus pulposus (HNP) at L5-S1
documented by MRI scan was causally related to the employment injury.
By decision dated August 18, 2011, OWCP denied modification of the February 17, 2011
decision.
On September 8, 2011 appellant, through her attorney, requested reconsideration and
submitted an August 30, 2011 report from Dr. Demetrios Mikelis, an internist, who diagnosed
traumatic lumbosacral pain syndrome, HNP and radiculitis and opined that appellant was
disabled from August 30 to September 12, 2011. Dr. Mikelis released appellant to light-duty
work effective September 13, 2011 with the following restrictions: no more than 3 hours of
work per day; no lifting greater than 10 pounds; must change position every 15 to 20 minutes.
By decision dated December 1, 2011, OWCP denied appellant’s request for
reconsideration of the merits.

3

On July 31, 2012 appellant’s attorney requested reconsideration and submitted a June 12,
2012 report from Dr. Mikelis who reiterated his diagnoses and opinion that appellant was
capable of working on a limited-duty basis with restrictions and frequent rest breaks every 15 to
20 minutes. Dr. Mikelis noted that appellant would not be able to perform job-related activities
continuously.
By decision dated December 31, 2012, OWCP denied modification of its August 18,
2011 decision.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation benefits.3 Section 8106(c)(2) of FECA provides that a partially disabled
employee who refuses or neglects to work after suitable work is offered to, procured by or
secured for the employee is not entitled to compensation.4 To justify termination of
compensation, OWCP must show that the work offered was suitable and must inform appellant
of the consequences of refusal to accept such employment.5 Section 8106(c) will be narrowly
construed as it serves as a penalty provision, which may bar an employee’s entitlement to
compensation based on a refusal to accept a suitable offer of employment.6
Section 10.517(a) of FECA’s implementing regulations provide that an employee who
refuses or neglects to work after suitable work has been offered or secured by the employee, has
the burden of showing that such refusal or failure to work was reasonable or justified.7 Pursuant
to section 10.516, the employee shall be provided with the opportunity to make such a showing
before a determination is made with respect to termination of entitlement to compensation.8
Before compensation can be terminated, however, OWCP has the burden of
demonstrating that the employee can work, setting forth the specific restrictions, if any, on the
employee’s ability to work, establishing that a position has been offered within the employee’s
work restrictions and setting forth the specific job requirements of the position.9 In other words,
to justify termination of compensation under 5 U.S.C. § 8106(c)(2), which is a penalty provision,
OWCP has the burden of showing that the work offered to and refused by appellant was
suitable.10

3

See Linda D. Guerrero, 54 ECAB 556 (2003).

4

5 U.S.C. § 8106(c)(2); see also Geraldine Foster, 54 ECAB 435 (2003).

5

See Ronald M. Jones, 52 ECAB 190 (2000).

6

See Joan F. Burke, 54 ECAB 406 (2003).

7

20 C.F.R. § 10.517(a).

8

Id. at § 10.516.

9

See Linda Hilton, 52 ECAB 476 (2001).

10

Id.

4

Once OWCP establishes that the work offered is suitable, the burden shifts to the
employee who refuses to work to show that the refusal or failure to work was reasonable or
justified.11 The determination of whether an employee is physically capable of performing a
modified assignment is a medical question that must be resolved by medical evidence.12 OWCP
procedures state that acceptable reasons for refusing an offered position include medical
evidence of inability to do the work.13
ANALYSIS
It is well established that once OWCP accepts a claim and pays compensation for
disability, it has the burden of justifying termination or modification of benefits. Under such
circumstances it must establish either that its original determination was erroneous or that the
employment-related disability has ceased.14 The Board finds that OWCP failed to meet its
burden of proof to terminate appellant’s compensation benefits.15
OWCP accepted appellant’s claim for lumbosacral radiculitis. By decision dated
September 10, 2010, it terminated her monetary compensation benefits effective September 7,
2010 on the basis that she refused suitable employment in reliance upon reports from Dr. Brown,
appellant’s attending physician, and Dr. Orlandi, an OWCP referral physician. Following its
termination decision, OWCP found a conflict in medical opinion between Dr. Brown, who
opined that appellant was totally disabled for work, and Dr. Orlandi, who opined that the lumbar
condition had resolved and she was capable of working full-time regular duty without
restrictions. To resolve this conflict, it referred appellant to Dr. Sclafani for an impartial medical
examination. By decision dated February 17, 2011, an OWCP hearing representative affirmed
the September 10, 2010 decision based on a review of the written record. The Board finds that
OWCP terminated appellant’s compensation benefits effective September 7, 2010 without
having first resolved the existing conflict in opinion between Dr. Brown and Dr. Orlandi.
OWCP failed to meet its burden of proof in terminating appellant’s compensation benefits.16
Moreover, there is no evidence that OWCP secured confirmation from the employing
establishment to establish that the modified position, first offered appellant on June 3, 2010,
remained open and available to her as of the February 17, 2011 decision following the impartial
medical examination.17 The duties and physical requirements of the duties of the modified

11

20 C.F.R. § 10.517(a).

12

See Gayle Harris, 52 ECAB 319 (2001).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.5(a)(3)
(June 2013).
14

See Lawrence D. Price, 47 ECAB 120 (1995).

15

See Nathaniel Davis, 50 ECAB 378 (1999); Robert Dickerson, 46 ECAB 1002 (1995).

16

See Gail D. Painton, 41 ECAB 492, 498 (1990); Craig M. Crenshaw, Jr., 40 ECAB 919, 922-23 (1989).

17

See supra note 13 at Chapter 2.814.5(e)(2) (June 2013); see also Robert Dickerson, supra note 15.

5

position should be described by the employing establishment18 and OWCP should verify that the
position is still available and offered to appellant.
Accordingly, the Board will reverse the December 31, 2012 decision which terminated
appellant’s compensation benefits on the grounds that she refused suitable work under 5 U.S.C.
§ 8106(c)(2).
CONCLUSION
The Board finds that OWCP did not properly terminate appellant’s compensation
effective September 7, 2010 on the grounds that she refused suitable work under 5 U.S.C.
§ 8106(c)(2).
ORDER
IT IS HEREBY ORDERED THAT the December 31, 2012 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 21, 2013
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

18

According to OWCP procedure, a job offer must be in writing and contain a description of the duties to be
performed and the specific physical requirements of the position; see supra note 13 at Chapter 2.814.4(a)
(June 2013); see also Nathaniel Davis, supra note 15.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.H., Appellant
and
U.S. POSTAL SERVICE, NORTHERN
FLORIDA PERFORMANCE CLUSTER,
Jacksonville, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-2367
Issued: June 16, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 20, 2010 appellant filed a timely appeal from the March 26, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Because more than 180
days has elapsed between the most recent OWCP merit decision dated October 1, 2009 and the
filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s case pursuant
to the Federal Employees’ Compensation Act (FECA)2 and 20 C.F.R. §§ 501.2(c) and 501.3.

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of the Office’s decision. See 20 C.F.R. § 501.3(f)(2). As the Office’s
decision was issued March 26, 2010, the 180-day computation begins March 27, 2010. 180 days from March 27,
2010 was September 22, 2010. Since using September 27, 2010, the date the appeal was received by the Clerk of
the Board, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The
date of the employing establishment postmark is September 20, 2010 which renders the appeal timely filed. See 20
C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for a review of the
written record as untimely.
FACTUAL HISTORY
On July 17, 2008 appellant, then a 55-year-old parcel post distribution machine operator,
filed a traumatic injury claim (Form CA-1) alleging that on July 3, 2008 he sustained a left knee
injury as a result of pushing/pulling a mail container while in the performance of duty. He did
not stop work at the time of the alleged injury. On August 20, 2008 appellant went back to work
in a limited-duty capacity.
Appellant submitted a December 9, 2008 radiological report by Dr. Kevin C. Jones, a
Board-certified radiologist, who diagnosed medial meniscus tear, moderate joint effusion and
Baker’s cyst and mild patellofemoral osteoarthritis. In a December 1, 2008 medical report,
Dr. H. Lynn Norman, a Board-certified orthopedic surgeon, diagnosed left knee pain with
effusion and chondromalacia. In a December 17, 2008 progress report, he diagnosed a tear of
the medial meniscus, left knee and chondromalacia.
By decision dated January 6, 2009, OWCP accepted appellant’s claims for tear of medial
meniscus of left knee and chondromalacia patellae, left.
On January 15, 2009 appellant underwent left knee arthroscopic surgery.
In a May 27, 2009 medical report, Dr. Norman advised appellant to return to regular
work with restrictions on deep knee bending.
On May 28, 2009 appellant returned to work in his date-of-injury position.
On June 23, 2009 appellant filed a claim for a schedule award.
By letters dated June 24, 2009, OWCP requested a medical assessment of permanent
impairment from Dr. Norman.
In a May 27, 2009 medical report, Dr. Norman opined that appellant still had some
soreness in his knee but was functioning well overall and able to do his regular job. He restricted
appellant from doing any deep knee bends and noted that he did not anticipate any long-term
permanent work restrictions.
On July 29, 2009 a district medical adviser reviewed the medical evidence on file and
concluded that it did not establish that appellant had reached maximum medical improvement
and therefore a permanent, measurable scheduled impairment could not be calculated.
By letters dated August 3, 2009, OWCP advised appellant of the deficiencies in the
evidence needed to support his claim for a schedule award and allotted 30 days to submit
additional information, including maximum medical improvement date and percentage of
impairment. Appellant did not submit any additional evidence.

2

By decision dated October 1, 2009, OWCP denied appellant’s claim on the grounds that
he did not submit sufficient medical evidence to establish entitlement to a schedule award.
In a January 7, 2010 medical report and assessment of permanent impairment,
Dr. Norman indicated that the date of maximum improvement was September 9, 2009 as it was
his last examination of appellant and he had improved as far as expected regarding his condition.
By appeal form postmarked March 16, 2010, appellant requested a review of the written
record by OWCP’s hearing representative in connection with his claim.
By decision dated March 26, 2010, OWCP denied appellant’s request for a review of the
written record. It found that his request was untimely because it was not made within 30 days of
its October 1, 2009 decision. OWCP further indicated that it had exercised its discretion and
further denied appellant’s request for the reason that the relevant issue of the case could be
addressed by requesting reconsideration and submitting evidence not previously considered by
OWCP.3
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides: “Before review under section 8128(a) of this title
[relating to reconsideration], a claimant for compensation not satisfied with a decision of the
Secretary under subsection (a) of this section is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on [his] claim before a representative of the
Secretary.”4
Section 10.615 of Title 20 of the Code of Federal Regulations provides, “A hearing is a
review of an adverse decision by a hearing representative. Initially, the claimant can choose
between two formats: An oral hearing or a review of the written record.”5 The hearing request
must be sent within 30 days (as determined by postmark or other carrier’s date marking) of the
date of the decision for which a hearing is sought.6 OWCP has discretion, however, to grant or
deny a request that is made after this 30-day period.7 In such a case, it will determine whether to
grant a discretionary hearing and, if not, will so advise the claimant with reasons.8

3

The Board notes that, following the issuance of the March 26, 2010 OWCP decision and on appeal, appellant
submitted new evidence. However, the Board is precluded from reviewing evidence which was not before OWCP at
the time it issued its final decision. See 20 C.F.R. § 501.2(c)(1). Appellant may resubmit this evidence, together
with a written request for reconsideration to OWCP, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. § 10.606(b).
4

5 U.S.C. § 8124(b)(1).

5

20 C.F.R. § 10.615.

6

Id. at § 10.616(a).

7

G.W., Docket No. 10-782 (issued April 23, 2010). See also Herbert C. Holley, 33 ECAB 140 (1981).

8

Id. See also Rudolph Bermann, 26 ECAB 354 (1975).

3

ANALYSIS
Appellant had 30 calendar days from OWCP’s October 1, 2009 decision, or until
November 2, 2009, to request a review of the written record. Because his request was
postmarked March 16, 2010, his request was untimely. Appellant was not entitled to a review of
the written record as a matter of right under section 8124(b)(1) of FECA. Exercising its
discretion to grant a review of the written record, OWCP denied his request on the grounds that
he could equally well address any issues in his case by requesting reconsideration. Because
reconsideration exists as an alternative appeal right to address the issues raised by OWCP’s
October 1, 2009 decision, the Board finds that it did not abuse its discretion in denying
appellant’s untimely request for a review of the written record.9
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a review of the
written record.
ORDER
IT IS HEREBY ORDERED THAT the March 26, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 16, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

Gerard F. Workinger, 56 ECAB 259 (2005).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S POSTAL SERVICE, POST OFFICE,
Miami, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-2006
Issued: February 7, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 29, 2013 appellant filed a timely appeal from August 9 and May 21, 2013
merit decisions of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established a recurrence of disability on March 17, 2013
due to the accepted July 26, 2012 employment injury.
FACTUAL HISTORY
On July 26, 2012 appellant, then a 48-year-old automation clerk, filed a traumatic injury
claim (Form CA-1) alleging that he sustained spasms or pain in his lower back as a result of
bending down to pick up a tray of mail. On August 14, 2012 OWCP accepted his claim for
1

5 U.S.C. § 8101 et seq.

sprain of the lumbar region. The record indicates that appellant worked intermittently on light
and full duty until he returned to work on October 16, 2012 on full duty.
On April 9, 2013 appellant filed a notice of recurrence of total disability (Form CA-2a).
He stated that he was not certain how his recurrence happened, but that the pain in his back
progressively became worse and that his condition recurred on March 17, 2013. Appellant filed
claims for compensation (Form CA-7) for leave without pay for the period March 26 to
April 8, 2013.
Appellant submitted physical therapy notes dating from August 26, 2012 to
September 19, 2013.
On March 25, 2013 Dr. Pollak noted that appellant had described recent exacerbation of
symptoms of pain of the back and pelvis. On examination of the lumbar spine, he observed
spasm and tenderness beginning at the thoracolumbar junction and extending down to the pelvis.
Dr. Pollak also observed a decreased range of motion in all directions. Dr. Pollak treated
appellant by injection.
By letter dated May 3, 2013, Dr. Pollak stated that appellant had been treated in his office
since he was injured on July 26, 2012. He noted that appellant’s condition was such that he
would experience occasional to frequent exacerbations of symptoms and that he advised
appellant not to work during these flare-up periods.
In a report dated May 6, 2013, Dr. Pollak noted that appellant continued to have pain of
the lumbar spine, but that there had been 90 percent improvement. He stated that appellant had
reached maximum medical improvement. On examination, Dr. Pollak noted a decrease in the
amount of spasm and tenderness on palpation, as well as improvement in range of motion.
On May 14, 2013 Dr. Pollak stated that appellant had a magnetic resonance imaging scan
test performed on August 14, 2012. Appellant was diagnosed with a disc herniation at L5-S1,
disc bulging with a posterior annular tear at L4-5 and disc dessication at L3-4 with a disc bulge
and left foraminal annular tear. Dr. Pollak noted that he had been treating appellant for back
pain since an injury on July 26, 2012.
By decision dated May 21, 2013, OWCP denied appellant’s claim for recurrence. It
found that he had not submitted medical documentation including a physician’s opinion,
supported by medical explanation, as to the relationship between his current disability and the
original work injury of July 26, 2012.
In a letter dated May 28, 2013, Dr. Pollak stated that appellant’s original injury of
July 26, 2012 had caused a condition that would experience occasional flare-ups of symptoms
and that the change could happen spontaneously without new injury. He diagnosed appellant
with disc herniation, disc bulging and disc dessication.
On May 29, 2013 appellant requested reconsideration of OWCP’s May 21, 2013
decision.

2

In a report dated June 24, 2013, Dr. Pollak noted that appellant’s injury had recently
exacerbated. On examination, he observed tenderness and spasm on palpation of the lumbar
spine, as well as reduced range of motion. Dr. Pollak treated appellant by injection.
By decision dated August 9, 2013, OWCP denied appellant’s claim for recurrence after
reviewing the merits of the case. It found that he had not submitted a rationalized medical
opinion supporting that his diagnoses were related to the accepted July 26, 2012 work incident.
OWCP also found that appellant had not submitted a rationalized medical opinion supporting
that his accepted condition, lumbar sprain, had worsened as of March 25, 2013, causing him to
be disabled and incapable of work.
LEGAL PRECEDENT
Under FECA2 the term disability is defined as incapacity, because of employment injury,
to earn the wages that the employee was receiving at the time of injury.3 Disability is not
synonymous with a physical impairment which may or may not result in an incapacity to earn the
wages. An employee who has a physical impairment causally related to a federal employment
injury but who nonetheless has the capacity to earn wages he or she was receiving at the time of
injury has no disability as that term is used in FECA.4
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.5
OWCP’s procedures state that a recurrence of disability includes a work stoppage caused
by a spontaneous material change in the medical condition demonstrated by objective findings.
That change must result from a previous injury or occupational illness rather than an intervening
injury or new exposure to factors causing the original illness. It does not include a condition that
results from a new injury, even if it involves the same part of the body previously injured.6
An employee who claims a recurrence of disability due to an accepted employmentrelated injury has the burden of establishing by the weight of the substantial, reliable and
probative evidence that the disability for which he or she claims compensation is causally related
to the accepted injury. This burden of proof requires that a claimant furnish medical evidence
from a physician who, on the basis of a complete and accurate factual and medical history,
concludes that, for each period of disability claimed, the disabling condition is causally related to
2

Id. at §§ 8101-8193.

3

See Prince E. Wallace, 52 ECAB 357, 358 (2001).

4

Cheryl L. Decavitch, 50 ECAB 397, 401 n.5 (1999); Maxine J. Sanders, 46 ECAB 835, 840 (1995).

5

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525, 531 (2008). See 20 C.F.R. § 10.5(y) (defines recurrence of a
medical condition as a documented need for medical treatment after release from treatment for the accepted
condition).
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(c)(5) (October 2009).

3

the employment injury and supports that conclusion with medical reasoning.7 Where no such
rationale is present, the medical evidence is of diminished probative value.8
ANALYSIS
OWCP accepted appellant’s claim for lumbar sprain on August 14, 2012. Appellant
returned to full duty on October 16, 2012. He filed a notice of recurrence of disability on
April 9, 2013, alleging disability for the period March 26 to April 8, 2013. The Board finds that
appellant did not submit sufficient rationalized medical evidence to establish that his present
condition was causally related to his accepted injury.9
In support of his claim for recurrence, appellant submitted several reports from
Dr. Pollak. By letter dated May 3, 2013, Dr. Pollak stated that appellant had been treated in his
office since he was injured on July 26, 2012. He noted that appellant’s condition was such that
he would experience occasional to frequent exacerbations of symptoms. In a May 14, 2013
report, Dr. Pollak diagnosed disc herniation at L5-S1, disc bulging with a posterior annular tear
at L4-5 and disc dessication at L3-4 with a disc bulge and left foraminal annular tear. A May 28,
2013 report contained the same diagnoses and observations concerning appellant’s flare-ups.
To establish that a claimed recurrence was caused by an accepted injury, medical
evidence of bridging symptoms between the present condition and the accepted injury must
support the physician’s conclusion of causal relationship.10 While Dr. Pollak noted appellant’s
treatment for back pain since the initial injury, he did not specifically address appellant’s
accepted condition of back sprain as the cause of his continued complaints. More importantly,
while Dr. Pollak eventually diagnosed disc herniation, disc bulging and disc dessication he did
not explain, with medical rationale, how these diagnoses resulted either from appellant’s
diagnosed condition of back sprain or from the July 26, 2012 work incident. He merely stated
that appellant’s accepted condition would experience occasional exacerbations, without
explaining how his ultimate diagnoses related to these exacerbations.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.11 Therefore, these reports were not sufficient to establish
appellant’s claim.
Likewise, in reports dated from March 25 to June 24, 2013, Dr. Pollak advised that
appellant had experienced an exacerbation of symptoms, but did not refer to appellant’s accepted
7

Ronald A. Eldridge, 53 ECAB 218, 221 (2001).

8

Mary A. Ceglia, Docket No. 04-113 (issued July 22, 2004).

9

See T.M., Docket No. 06-440 (issued August 7, 2006).

10

See Ricky S. Storms, 52 ECAB 349, 352 (2001).

11

Walter D. Morehead, 31 ECAB 188, 195 (1986).

4

condition of back sprain or offer any explanation of how other diagnosed conditions related to
the accepted condition. He stated that appellant’s condition could spontaneously exacerbate, but
did not explain how back sprain had exacerbated or progressed into disc herniation at L5-S1, disc
bulging with a posterior annular tear at L4-5 and disc dessication at L3-4 with a disc bulge and
left foraminal annular tear. The Board finds that these reports are lacking as there is no medical
rationale to support a recurrence of disability on March 26, 2013.
OWCP also received several physical therapy reports. However, the reports of physical
therapists have no probative value on medical questions, because a therapist is not a physician as
defined by 5 U.S.C. § 8101(2) and, therefore, is not competent to render a medical opinion.12
Consequently, appellant has not met his burden of proof to establish his claim for
recurrence of disability from March 26 to April 8, 2013 causally related to the accepted work
injury of July 26, 2013.
Appellant submitted new evidence on appeal. The Board lacks jurisdiction to review
evidence for the first time on appeal.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.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of disability on March 17, 2013 causally related to the accepted work injury of July 26, 2013.

12

See Barbara J. Williams, 40 ECAB 649, 657 (1988) (regarding physical therapists); 5 U.S.C. § 8101(2) (the
term physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors and
osteopathic practitioners within the scope of their practice as defined by state law).
13

20 C.F.R. § 501.2(c).

5

ORDER
IT IS HEREBY ORDERED THAT the August 9 and May 21, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 7, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.F., Appellant
and
DEPARTMENT OF THE INTERIOR, U.S. FISH
& WILDLIFE SERVICE, Elizabeth, NJ,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-1452
Issued: February 22, 2010

Case Submitted on the Record

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

JURISDICTION
On May 20, 2009 appellant timely appealed the February 17, 2009 merit decision of the
Office of Workers’ Compensation Programs, which denied her traumatic injury claim. Pursuant
to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on
July 2, 2004.
FACTUAL HISTORY
Appellant, a 57-year-old former wildlife inspector, filed a traumatic injury claim (Form
CA-1) on July 20, 2005 for a neck and lower back injury that allegedly occurred on

July 2, 2004.1 She claimed to have been injured in the “parking lot” at 1210 Corbin St. while
loading the trunk of her car with work materials weighing in excess of 30 pounds. Appellant
stated that she planned to review the materials over the July 4th holiday weekend.
The employing establishment challenged appellant’s claim on the basis that she was not
in the performance of duty at the time of the alleged injury. Appellant’s regular tour of duty was
8:00 a.m. to 4:30 p.m., Monday through Friday, and the injury reportedly occurred at 3:15 p.m.
But on Friday, July 2, 2004 all employees were given administrative leave at 2:30 p.m. due to the
upcoming 4th of July holiday weekend. According to the employing establishment, appellant
was neither on duty nor performing functions required by the job when she allegedly injured her
neck and lower back at 3:15 p.m.
In an August 16, 2006 statement, appellant indicated that she had asked her supervisor,
Laurel Zitowsky, if she could remain at work after the 2:30 p.m. early dismissal. Ms. Zitowsky
denied the request, and according to appellant, she was “promptly ordered out of the office” on
July 2, 2004. Appellant stated that she then organized and packed her notes and materials for the
July 4th weekend. She made a few trips to her car, but did not recall the exact number. It was
during the final trip that she reportedly attempted to lift a portable, wheeled cart loaded with
materials into her car trunk, thus injuring her neck and back. After further development of the
record, the Office issued a July 17, 2008 decision denying appellant’s traumatic injury claim.2 It
noted that appellant claimed to have injured herself at 3:15 p.m., which was 45 minutes past the
time all employees were dismissed from duty on July 2, 2004. The Office explained that “45
minutes was not a reasonable amount of time to remain on the employer’s premises” absent
evidence that appellant was either authorized to do so or that she was engaged in essential work
activities. It found that appellant had been directed by her supervisor to leave the premises at
2:30 p.m. Additionally, the Office found that appellant had not established that she was
“performing an essential element or a required task of [her] job.” It stated that it had not been
established that appellant was “required to take work home.”3
Appellant requested a hearing, which was held on November 20, 2008. She submitted,
inter alia, an August 23, 2004 sworn statement indicating that on July 2, 2004, she exacerbated a

1

Appellant previously injured her neck in a June 11, 1993 motor vehicle accident. She also has an accepted
occupational disease claim for aggravation of cervical and lumbosacral spondylosis, which arose on or about
July 18, 2000 (xxxxxx049). Appellant last worked for the employing establishment on July 2, 2004. She was later
granted a disability retirement effective October 8, 2004.
2

The claim was initially denied by decision dated January 4, 2006. However, this decision was subsequently
vacated and the case remanded for further development.
3

In her August 16, 2006 statement, appellant indicated that she regularly took work home, in the form of
notepads and notebooks, in order to recopy and file new information into her personal reference manuals. She
explained that she was a copious note taker due to what she characterized as a “learning problem” and “significant
memory impairment.” Appellant would then transcribe her various work notes at home because she reportedly “was
not provided time at work for this purpose.” She also stated that she was unaware of the necessity of informing her
supervisor when she was taking material home for review and compilation of her reference manuals.

2

neck and back injury previously sustained at work on February 12, 2004.4 The July 2, 2004
exacerbation was reportedly the result of appellant’s participation in a five-hour meeting that
reportedly ended at 1:30 p.m. She claimed that sitting in a stationary position for five hours
caused a compression of her spine and resultant pain.
Appellant also attributed her claimed recurrence to “packing and transporting work
materials (notebooks, manuals) to [her] car to review over the long weekend.” This latter
incident occurred at approximately 2:30 p.m. Appellant provided a list of the “personal workrelated” items she reportedly took home for review over the 4th of July weekend. There was also
a picture of the wheeled cart she allegedly used to transport these items to her personal vehicle.
By decision dated February 17, 2009, the hearing representative affirmed the July 17,
2008 denial of appellant’s claim, but for a different reason. The hearing representative accepted
that appellant was loading paperwork into her car, however, she found that the evidence did not
support that appellant sustained a twisting injury or that she lifted a loaded cart into the trunk of
her vehicle. The hearing representative further indicated that appellant had been told she could
not work after 2:30 p.m., and that she was to have left the office 45 minutes prior to the claimed
injury.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides for the payment of compensation
for the disability or death of an employee resulting from personal injury sustained “while in the
performance of ... duty.”5 In order to be covered, an injury must occur at a time when the
employee may reasonably be said to be engaged in her master’s business, at a place where she
may reasonably be expected to be in connection with her employment and while she was
reasonably fulfilling the duties of her employment or engaged in doing something incidental
thereto.6 For an employee with fixed hours and a fixed workplace, an injury that occurs on the
employing establishment premises when the employee is going to or from work, before or after
working hours or at lunch time, is compensable.7 Coverage also extends to a “reasonable
interval” before or after the work shift while the employee is on the premises and engaged in
preparatory or incidental acts.8 But the mere fact that an injury occurs on the employing
4

Appellant’s claim for an alleged February 12, 2004 employment injury was initially denied by the Office in a
decision dated September 20, 2004 (xxxxxx781). Before filing the instant traumatic injury claim, she filed an
August 13, 2004 notice of recurrence (Form CA-2a) under claim number xxxxxx781 for a July 2, 2004 recurrence of
disability. The Office later advised appellant that because the February 12, 2004 initial injury claim was denied, she
could not file for a recurrence of a denied claim.
5

5 U.S.C. § 8102(a) (2006).

6

Roma A. Mortenson-Kindschi, 57 ECAB 418, 423-24 (2006).

7

Id.; Denise A. Curry, 51 ECAB 158, 160 (1999); Narbik A. Karamian, 40 ECAB 617, 618-19 (1989). However,
that same employee with fixed hours and a fixed workplace would generally not be covered when an injury occurs
off the employing establishment premises while traveling to or form work. Idalaine L. Hollins-Williamson, 55
ECAB 655, 658 (2004).
8

Cemeish E. Williams, 57 ECAB 509, 512-14 (2006).

3

establishment premises following a reasonable interval after working hours is not sufficient to
bring the injury within the performance of duty.9 The employee must also show that the injury
resulted from some risk incidental to the employment and that the employing establishment
received a substantial benefit from the activity.10
The employing establishment premises may include all the property owned by the
employer.11 But even though an employer does not have ownership and control of the place
where an injury occurred, the locale may nevertheless be considered part of the premises.12 For
example, a parking lot used by employees may be considered a part of the employing
establishment premises when the employer contracted for the exclusive use of the facility or
where specific parking spaces were assigned by the employer.13 Other factors to be considered
include whether the employer monitored the parking facility to prevent unauthorized use,
whether the employer provided parking at no cost to the employee, whether the general public
had access to the parking facility and whether there was alternate parking available for the
employee.14 An employee’s mere use of a parking lot is not sufficient, by itself, to demonstrate
that the parking lot is part of the employer’s premises.15
ANALYSIS
The record indicates that appellant was leaving work for the day when she allegedly
injured her neck and back in the parking lot at 1210 Corbin St. Both the claims examiner and the
hearing representative presumed that appellant was on the employing establishment’s premises at
the time of the alleged July 2, 2004 injury. However, the record does not clearly establish that
the “parking lot” where appellant claimed to have injured her neck and lower back was part of
the employing establishment’s premises. At the November 20, 2008 hearing, appellant testified
that her employer leased space in a corporate-owned building, which was shared by at least one
other federal agency. The parking lot was reportedly located at the rear of the building, some 50
feet away. The hearing representative inquired whether appellant was “given a parking space” or
if there was “free parking around the building....” Appellant generally replied: “Yeah. It was -space for employees of the building.”
The record does not include any additional information regarding the parking lot where
appellant was allegedly injured on July 2, 2004. The limited information obtained at the
November 20, 2008 hearing is insufficient to determine whether the parking lot at 1210 Corbin
9

Id. What constitutes a “reasonable interval” before or after a work shift depends not only on the length of time
involved, but also on the circumstances occasioning the interval and the nature of the activity. Id. at 514.
10

Id.

11

Denise A. Curry, supra note 7.

12

Id.

13

Roma A. Mortenson-Kindschi, supra note 6; Diane Bensmiller, 48 ECAB 675, 678 (1997).

14

Diane Bensmiller, supra note 13.

15

Roma A. Mortenson-Kindschi, supra note 6.

4

St. is part of the employing establishment’s premises. Whether a 45-minute delay in appellant’s
departure constitutes a “reasonable interval” after her work shift or that the task may have been
incidental to her work are of little or no consequence if appellant was not on the premises at the
time of the alleged injury. Her activities at the time are largely inconsequential if appellant is
ultimately determined to have been off the employing establishment premises when the alleged
injury occurred. The Office’s factual determinations thus far are dependent on the threshold
issue of whether appellant was on the employing establishment’s premises at the time of her
alleged injury. The record in this regard is not fully developed. Accordingly, the Board finds
that the case is not in posture for decision. On remand, the Office should obtain additional
information from both appellant and the employing establishment regarding access, ownership
and control of the parking lot where the July 2, 2004 injury allegedly occurred. After the Office
has developed the case record to the extent it deems necessary, a de novo decision shall be
issued.
CONCLUSION
The case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 17, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision.
Issued: February 22, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS AIR STATION, Cherry Point, NC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 13-977
Issued: July 29, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 18, 2013 appellant filed a timely appeal from an October 25, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for an
oral hearing. As more than 180 days have elapsed since the date of the most recent merit
decision of July 10, 2012, pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing as
untimely under 5 U.S.C. § 8124.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 31, 2012 appellant, then a 44-year-old sandblast machine operator, filed an
occupational disease claim alleging that he sustained pain in his low back and left leg causally
related to factors of his federal employment. He was last exposed to the conditions alleged to
have caused his condition on March 25, 2004.
By decision dated July 10, 2012, OWCP denied appellant’s claim finding that it was not
timely filed under 5 U.S.C. § 8122.
In a form dated August 8, 2012 and postmarked August 10, 2012, appellant requested a
telephone hearing before a hearing representative of OWCP’s Branch of Hearings and Review.
By decision dated October 25, 2012, OWCP denied the request for a telephone hearing as
untimely. It exercised its discretion and determined that the issue could be equally well
addressed by appellant requesting reconsideration before OWCP and submitting evidence not
previously considered in support of his contention that he timely filed his occupational disease
claim.
On appeal, appellant argues that he continues to experience aggravation of his low back
and left leg injury caused by his employment.
LEGAL PRECEDENT
Section 8124(b) of FECA provides that a claimant for compensation not satisfied with a
decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his claim before a representative of the Secretary.2 Section
10.615 of the federal regulations implementing this section of FECA provides that a claimant
shall be afforded a choice of an oral hearing or a review of the written record.3 The request must
be sent within 30 days (as determined by postmark or other carrier’s date marking) of the date of
the decision for which a hearing is sought.4 A claimant is entitled to a hearing or review of the
written record as a matter of right if the request is filed within 30 days.5
While a claimant may not be entitled to a hearing or review of the written record as a
matter of right if the request is untimely, OWCP has the discretionary authority to grant the
request and must properly exercise such discretion.6

2

Id. at § 8124(b)(1).

3

20 C.F.R. § 10.615.

4

Id. at § 10.616(a).

5

See Leona B. Jacobs, 55 ECAB 753 (2004).

6

20 C.F.R. § 10.616(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the
Written Record, Chapter 2.1601.4(a) (October 2011).

2

ANALYSIS
In its July 10, 2012 decision, OWCP denied appellant’s occupational disease claim after
finding that it was not timely filed. By letter postmarked August 10, 2012, appellant requested a
telephone hearing. His request was postmarked more than 30 days after the July 10, 2012
decision. Consequently, appellant’s hearing request was not timely and he was not entitled to an
oral hearing as a matter of right.7
OWCP has the discretionary authority to grant a hearing even though a claimant is not
entitled to such as a matter of right. In its October 25, 2012 decision, it properly exercised its
discretion by notifying appellant that it had considered the matter in relation to the issue involved
and determined that additional argument and evidence could be submitted with a request for
reconsideration. The Board has held that the only limitation on OWCP’s authority is
reasonableness. Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
deduction from established facts.8 OWCP did not abuse its discretion in this case by denying a
discretionary hearing.
On appeal, appellant argued the merits of his case. As previously noted, however, the
Board does not have jurisdiction over the merits of this case. The only issue before the Board is
whether OWCP properly denied his hearing request under section 8124.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing as
untimely under section 8124.

7

Supra note 4.

8

See Teresa M. Valle, 57 ECAB 542 (2006); Daniel J. Perea, 42 ECAB 214 (1990).

3

ORDER
IT IS HEREBY ORDERED THAT the October 25, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 29, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Los Angeles, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1477
Issued: March 2, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 28, 2019 appellant filed a timely appeal from an April 22, 20191 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has elapsed
from OWCP’s last merit decision, dated November 24, 2017, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

1

Appellant’s appeal form identified the November 5, 2018 decision date denying her request for a hearing,
however, the Board notes that OWCP issued its last decision on April 22, 2019.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 23, 2017 appellant, then a 39-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on August 2, 2017 she injured her right shoulder while in the
performance of duty. She explained that her postmaster, K.S., placed his weight on her mail
satchel and then snatched it off, causing her to injure her shoulder. On the reverse side of the claim
form, appellant’s supervisor checked a box marked “yes” to indicate that appellant’s injury was
caused by her own willful misconduct, intoxication, or intent to injure herself or another.
Appellant stopped work on August 3, 2017 and returned on August 9, 2017.
Appellant provided statements to the employing establishment dated July 29 and August 1,
2017 in which she made her second and third formal requests for an occupational disease claim
form (Form CA-2). She identified a separate injury that she allegedly suffered on July 21, 2017.
Appellant also explained that she had submitted Family and Medical Leave Act forms to her
manager, Y.M., which had not been returned after two requests.
In an August 7, 2017 work status report, Dr. Bryan Ney, a Board-certified nephrologist,
diagnosed acute stress disorder and held appellant off work through August 8, 2017.
Appellant provided an August 9, 2017 medical note from Dr. Kayvon K. Yadidi, an
osteopath Board-certified in internal medicine, which diagnosed pain in her right shoulder and
recommended that she perform no pushing, pulling, or lifting over 20 pounds.
In an August 9, 2017 statement to the employing establishment, appellant requested
treatment and explained that it was her first day back after her August 2, 2017 injury and that, after
she informed her supervisors, C.G. and Y.M., that she needed medical attention, she was left on
hold for 20 minutes by Y.M. Appellant again explained that her injury was caused when K.S.
snatched her satchel and then put his weight on it while it was still on her shoulder.
In an August 10, 2017 medical report, Dr. Reese Isaacson, Board-certified in hospital
medicine, indicated that, after appellant had a disagreement with, her postmaster, K.S. over the
weight of her satchel, the postmaster placed his hand inside the bag and pressed heavily down
twice while the bag was still on her shoulder, took the bag off her shoulder, and then aggressively
placed it back on her shoulder. He noted that she felt dizzy and hot and eventually called
paramedics, who diagnosed her with acute stress disorder. When appellant returned to work on
August 9, 2017 and placed a 35-pound satchel on her shoulder, she explained that she felt like her
shoulder was “separating at the joint.” Dr. Isaacson noted that she had an x-ray done that revealed
no evidence of a fracture. Upon examination of appellant’s shoulder, he noted significant
tenderness to palpitation around the capsule. Dr. Isaacson provided a preliminary diagnosis of a
right rotator cuff sprain pending further diagnosis testing. He opined that appellant’s injury was a
direct result of her work as a postal carrier and explained that a drastic increase in weight and
pressure placed on the shoulder increases the stress placed on ligaments around the shoulder, which
can lead to a tear of the ligaments. Dr. Isaacson further explained that this tear leads to
inflammation, pain, swelling, and decreased range of motion, which was all consistent with her
symptoms, etiology of injury, and history.

2

In a duty status report (Form CA-17) of even date, Dr. Isaacson noted pain in appellant’s
right shoulder and diagnosed a rotator cuff injury.
In an August 11, 2017 diagnostic report, Dr. Jennifer Pedley, a Board-certified chiropractic
radiologist, provided a diagnosis of calcific tendinitis adjacent to the lesser tuberosity.
In an August 11, 2017 e-mail, K.S., appellant’s postmaster, provided that, on August 2,
2017 while performing an inspection of appellant’s vehicle, he asked her if she was combining
swings for her next route and appellant explained that she was not because her satchel was already
close to 35 pounds. When appellant suggested that he feel the weight for himself, he related that,
based on his many years of experience as a letter carrier and delivery manager, her satchel weighed
10 pounds at most. K.S. handed the satchel to D.G., another supervisor, for her to also feel and
instructed appellant to combine her swings before delivery. He then noted that appellant claimed
that she felt sick and called the paramedics for assistance.
In an August 15, 2017 diagnostic report, Dr. Eric Chen, a Board-certified radiologist, noted
that a magnetic resonance imaging scan of appellant’s right shoulder revealed supraspinatus and
infraspinatus tendinosis and moderate acromioclavicular (AC) joint osteoarthritis.
In an August 28, 2017 medical report, Dr. Hosea Brown, III, Board-certified in internal
medicine, noted that appellant’s postmaster snatched her satchel from her right shoulder causing
it to be pulled abruptly. He also noted that appellant’s supervisor reached into her satchel and
pressed down hard several times. When she returned to work on August 9, 2017, appellant
described persistent pain and discomfort in her shoulder. Dr. Brown also noted her diagnoses of
right shoulder calcific tendinitis, right shoulder AC joint arthropathy, and a right shoulder sprain
status post trauma and anxiety disorder.
In an accompanying Form CA-17, Dr. Brown provided work restrictions for appellant
related to his diagnosis of a right shoulder sprain.
In a development letter dated September 7, 2017, OWCP informed appellant that the
evidence of record was insufficient to establish her traumatic injury claim and provided a
questionnaire seeking further information related to the alleged August 2, 2017 employment
incident and any other preexisting medical condition of her right shoulder for her completion. It
afforded her 30 days to submit the necessary evidence.
In response, appellant provided an undated statement explaining she noted that she felt
sick, overheated, and dizzy after the incident and eventually called the paramedics to assist her.
After receiving treatment from the paramedics, she was taken home by her daughter. Appellant
added that on the first day she returned to work and placed a satchel on her right shoulder she felt
pain where she was allegedly injured by K.S. on August 2, 2017.
In an August 9, 2017 medical report, Dr. Yadidi and Dr. Vincent Lim, an osteopath
specializing in internal medicine, noted appellant’s right shoulder injury due to her postmaster K.S.
placing all his weight on her satchel while it was on her shoulder, snatching it off her shoulder,
and then slamming it back on her shoulder. They provided a diagnosis of right shoulder pain and
checked a box marked “yes” to indicate that their findings and diagnosis were consistent with her
account of the injury.
3

In an August 10, 2017 diagnostic report, Dr. Gerald Goldstein, Board-certified in
diagnostic radiology, provided the results of an x-ray of appellant’s right shoulder revealed no
fractures or dislocations. He also noted an impression of mild calcific tendinitis in her right
shoulder.
OWCP received an August 19, 2017 e-mail from C.G., an employing establishment
customer service representative, in which she explained an incident on the same day where she
repeatedly had to tell appellant to stop videotaping the office, managers and other mail carriers
with her cellphones. Appellant refused to stop, stated that management was harassing her and
disobeying orders to case her mail. C.G. eventually placed appellant on leave without pay for
insubordination.
In a September 15, 2017 letter, an employing establishment manager, Y.M., controverted
appellant’s claim explaining that appellant provided false facts and statements in regard to her
alleged August 2, 2017 employment injury. She explained that, after investigating the alleged
incident, it was revealed that Postmaster K.S. never came into direct contact with appellant. Y.M.
surmised that, because appellant had been investigated for taking additional breaks and having
unauthorized stationary events, appellant was attempting to be malicious and vindictive against
management.
Attached to Y.M.’s letter, the employing establishment provided an August 18, 2017
statement from D.G., who explained the employment incident and noted that, after the paramedics
were called, appellant had not mentioned shoulder pain to them and only related that she was
experiencing chest pains.
Appellant provided a signed questionnaire form dated October 4, 2017 and attached to it a
copy of K.S.’s August 11, 2017 statement. She also provided a medical report of even date, by
Dr. Christopher DeCarlo, a Board-certified physiatrist, wherein he noted her 19-year history as a
letter carrier and the physical requirements of her employment. Dr. DeCarlo noted that, on
August 2, 2017 while under supervision of appellant’s postmaster around 3:00 p.m., the postmaster
placed his hand in appellant’s satchel and pressed down two times with heavy force and then took
the satchel off of her shoulder and aggressively put it back on her. Appellant indicated that, when
she returned to work on August 9, 2017 and placed a satchel on her right shoulder, she felt intense
pain and that her shoulder was “separating at the joint.” Dr. DeCarlo further noted that she denied
having any other prior or subsequent injuries to her right shoulder. Upon examination of
appellant’s shoulder, he reported a positive impingement sign and a positive drop-arm test and also
noted her diagnoses of a right shoulder sprain, right shoulder AC arthropathy and right shoulder
calcific tendinitis. Dr. DeCarlo explained that tendinosis can result either from an increase in
tendon breakdown or a decrease in the tendon healing response. He provided that appellant’s
tendinosis and AC joint osteoarthritis were indeed preexisting conditions based on her employment
duties as a letter carrier for 19 years, including carrying a heavy satchel and repetitively using her
right shoulder when engaging in casing, delivering mail, and lifting, pushing and pulling heavy
packages. Dr. DeCarlo opined that, the repetitive nature of her job duties caused her conditions
and in addition, it was very apparent that her postmaster pressing down on her right shoulder
caused increased biomechanical forces to be applied in and around the tendinous tissues and AC
joint, which aggravated her inflammatory conditions. He also completed a CA-17 form of even
date which provided work restrictions for appellant.

4

By decision dated October 24, 2017, OWCP denied appellant’s traumatic injury claim
finding that the evidence she submitted was insufficient to establish the factual component of fact
of injury because the evidence did not support that the injury and events occurred as alleged. It
explained that she and Postmaster K.S. both provided different accounts of the events, but the
employing establishment also provided witness statements from D.G., which refuted her claim that
there was direct contact between herself and K.S. OWCP concluded, therefore, that the
requirements had not been met to establish an injury as defined under FECA.
On June 23, 2018 appellant requested reconsideration of OWCP’s October 24, 2017
decision and attached a privacy release and authorization for casework inquiries form from the
office of her congressional representative. She provided a statement of even date in which she
explained that her physician and all her medical examinations made it clear that her injuries were
a direct cause of her 20 years of employment as a letter carrier. Appellant explained that the
claimed August 2, 2017 employment incident aggravated her right shoulder conditions. She also
explained that Y.M. submitted documentation with no relevance to her CA-1 form and that she
had been removed from several mail districts for behavior of like kind. Appellant explained that
the documentation submitted was disciplinary action decided in her favor and that she believed
that management was interfering with the approval of her claim for personal reasons.
By decision dated July 18, 2018, OWCP denied appellant’s request for reconsideration. It
explained that the employing establishment provided two statements that refuted her original
account of the incident and that her June 23, 2018 statement was irrelevant or immaterial because
it offered no further explanation supporting that her version of the August 2, 2017 employment
incident occurred in the way she described.
On September 25, 2018 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. She also submitted copies of medical evidence
previously considered by OWCP.
By decision dated November 5, 2018, OWCP denied appellant’s request for an oral hearing
before a representative of OWCP’s Branch of Hearing and Review. It explained that she had
previously requested reconsideration under 5 U.S.C. § 8128 and thus was not, as a matter of right,
entitled to a hearing on the same issue. OWCP also considered whether to grant a discretionary
hearing, and found that the issue could equally well be addressed by requesting reconsideration
and submitting evidence not previously considered which established that she sustained an injury
as defined by FECA.
On April 15, 2019 appellant requested reconsideration of OWCP’s November 24, 2017
decision.3
By decision dated April 22, 2019, OWCP denied appellant’s request for reconsideration
finding that it was untimely filed and failed to demonstrate clear evidence of error.

3
Appellant’s application for reconsideration identified OWCP’s July 18, 2018 decision, however, the Board notes
that OWCP’s last merit decision was on November 24, 2017.

5

LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.4 This discretionary authority, however, is subject to certain restrictions. For
instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought.5 The one-year period for requesting reconsideration begins
on the date of the original OWCP decision, but the right to reconsideration within one year also
accompanies any subsequent merit decision on the issues, including any merit decision by the
Board.6 Timeliness is determined by the document receipt date (i.e., the “received date” in
OWCP’s Integrated Federal Employees’ Compensation System (IFECS)).7 The Board has found
that the imposition of the one-year limitation does not constitute an abuse of the discretionary
authority granted OWCP under section 8128(a) of FECA.8
OWCP may not deny a request for reconsideration solely because the application was not
timely filed. When a request for reconsideration is untimely filed, it must nevertheless undertake
a limited review to determine whether the request demonstrates clear evidence of error.9 OWCP
regulations and procedures provide that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s
reconsideration request demonstrates clear evidence of error on the part of OWCP.10
To demonstrate clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflicting medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision.11 The Board
notes that clear evidence of error is intended to represent a difficult standard.12 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.13 It is not enough merely to establish that the evidence could
be construed so as to produce a contrary conclusion.14 This entails a limited review by OWCP of
4

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).
5

20 C.F.R. § 10.607(a).

6

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

7

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

8

See R.L., Docket No. 18-0496 (issued January 9, 2019).

9

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

10

Id. at § 10.607(b); supra note 6 at Chapter 2.1602.5(a) (February 2016).

11

G.G., supra note 9.

12

M.P., Docket No. 19-0200 (issued June 14, 2019); R.L., supra note 8.

13

E.B., Docket No .18-1091 (issued December 28, 2018).

14

J.W., Docket No. 18-0703 (issued November 14, 2018).

6

the evidence previously of record and whether the new evidence demonstrates clear error on the
part of OWCP.15 In this regard, the Board will limit its focus to a review of how the newly
submitted evidence bears on the prior evidence of record.16 The Board makes an independent
determination as to whether a claimant has demonstrated clear evidence of error on the part of
OWCP.17
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
A request for reconsideration must be received within one year of the date of OWCP’s
decision for which reconsideration is sought.18 As appellant’s April 15, 2019 request for
reconsideration was made more than one year after the issuance of the last merit decision dated
November 24, 2017, it was untimely filed. Consequently, she must demonstrate clear evidence of
error by OWCP in its November 24, 2017 decision.19
The Board further finds that appellant’s reconsideration request failed to demonstrate clear
evidence of error on the part of OWCP in its last merit decision. Appellant did not submit any
evidence or legal argument in support of her reconsideration request to establish that OWCP
committed an error in denying that she sustained a traumatic injury while in the performance of
duty based on factual inconsistencies. Therefore, she failed to demonstrate clear evidence of error
on the part of OWCP in issuing the November 24, 2017 decision.20 Accordingly, the Board finds
that OWCP properly denied appellant’s reconsideration request, as it was untimely filed and failed
to demonstrate clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s April 15, 2019 request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.

15

P.L., Docket No. 18-0813 (issued November 20, 2018).

16

A.F., 59 ECAB 714 (2008); D.G., 59 ECAB 455 (2008).

17

W.R., Docket No. 19-0438 (issued July 5, 2019); C.Y., Docket No. 18-0693 (issued December 7, 2018).

18

20 C.F.R. § 10.607(a).

19

Id. at § 10.607(b); S.M., Docket No. 16-0270 (issued April 26, 2016).

20

S.J., Docket No. 17-1835 (issued December 19, 2018); C.Z., Docket No. 08-2309 (issued June 10, 2009).

7

ORDER
IT IS HEREBY ORDERED THAT the April 22, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 2, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


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

)
)
)
)
)
)
)
)

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

Docket No. 07-868
Issued: July 25, 2007

Case Submitted on the Record

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

JURISDICTION
On February 8, 2007 appellant, through his representative, filed a timely appeal from the
October 27, 2006 decision of the Office of Workers’ Compensation Programs modifying his
schedule award. On January 26, 2007 the Office issued a nonmerit decision denying appellant’s
request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant established that he had more than nine percent
impairment of his left foot; and (2) whether the Office properly refused to reopen appellant’s
case for further review of the merits of his claim pursuant to 5 U.S.C. § 8128.
FACTUAL HISTORY
On February 13, 2003 appellant, then a 42-year-old letter carrier, filed an occupational
disease claim, Form CA-2, alleging that his left foot had been injured as a result of hitting his
toes on wooden and cement steps while delivering mail. On April 16, 2003 the Office accepted

his claim for Morton’s neuroma at the third interspace of his left foot. On October 6, 2003
appellant underwent surgery to remove the neuroma.
On January 14, 2005 appellant requested a schedule award for the permanent impairment
of his left foot. He submitted an impairment rating report prepared by Dr. Dewi Brown on
December 7, 2004 who found that appellant had reached maximum medical improvement.
Dr. Brown stated that there was no conventional rating for neuroma excision or impairment of
digital nerves on the foot, but that the impairment could be rated based on pain and effect on the
activities of daily living because of appellant’s character and believability. Using the American
Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001), Figure
18-1, page 574, he found a two percent whole person impairment rating.
On December 12, 2005 the Office notified both appellant and his treating physician,
Dr. Lance Macey, a Board-certified orthopedic surgeon, to submit a current medical report
indicating the date of maximum medical improvement, objective and subjective medical findings
and an impairment rating of the affected member based on the A.M.A., Guides.
On February 16, 2006 Dr. Macey stated that appellant had reached maximum medical
improvement by October 4, 2004. He found that appellant had no movement restrictions in his
left foot, but had fat-pad atrophy and palpable tenderness under metatarsal heads two, three and
four. Dr. Macey stated that appellant’s subjective complaints were consistent with the objective
findings and included pain under the affected metatarsal heads with prolonged standing and
walking. He noted that the A.M.A., Guides did not include a rating specifically for Morton’s
neuroma or work-related metatarsalgia, but Dr. Macey found the ratings for metatarsalgia related
to metatarsal fracture were a valid comparison. Dr. Macey stated that, for metatarsalgia affecting
one metatarsal, the A.M.A., Guides, Table 17-33, page 547, allowed for ratings of one percent
for the whole person, two percent for the lower extremity or three percent for the foot. Because
three metatarsals were implicated, he opined that appellant should receive an award for three
percent of his whole person, six percent of his left lower extremity or nine percent of his foot.
Dr. Macey noted that, alternatively, appellant’s impairment could be rated under the A.M.A.,
Guides section on pain-related impairments, page 574. He stated that appellant would be eligible
for a discretionary impairment rating of up to three percent of the whole person. Because both
methods resulted in the same whole person impairment rating, Dr. Macey recommended that
appellant be awarded three percent impairment of the whole person.
On April 23, 2006 the Office medical adviser reviewed appellant’s medical records,
including Dr. Macey’s impairment rating. He concurred with Dr. Macey’s use of Table 17-33,
page 547, to rate appellant’s metatarsalgia. The Office medical adviser opined that the degree of
pain and impairment in claimants with chronic metatarsalgia is comparable with that for
metatarsalgia with fracture. He opined that appellant should be awarded a two percent
impairment rating of his lower left extremity for each of the three metatarsal bones involved,
resulting in a six percent impairment of the lower left extremity.
By decision dated June 1, 2006, the Office awarded appellant a six percent impairment of
the lower left extremity or 86.10 days of compensation, for the period October 4 to

2

December 29, 2004.1 On July 17, 2006 appellant requested reconsideration of the schedule
award. He argued that Dr. Macey’s report had stated that he was also entitled to impairment
ratings of three percent for his whole person, nine percent for his foot and three percent for pain.
On October 24, 2006 the Office medical adviser clarified his report to emphasize that the
impairment ratings for whole person, lower extremity and foot were equivalent but alternative.
He stated that he had recommended an award based on appellant’s lower left extremity, not his
left foot.
By decision dated October 27, 2006, the Office modified appellant’s schedule award. It
noted that impairment ratings for the whole body are not payable under the Federal Employees’
Compensation Act, but that the Office should select the most favorable award when impairment
can be determined based on more than one part of the body identified by the Act. The Office
stated that appellant’s impairment could be considered in terms of the toes, the foot or the leg. It
calculated that the most favorable award would be for the nine percent impairment of appellant’s
left foot which equaled 129.15 days. The Office noted that its previous award had erroneously
been calculated using values for the left foot rather than the left leg. Because appellant had
received compensation only for six percent impairment of his left foot, he was now entitled to an
additional three percent schedule award. The Office issued the amended schedule award on
October 31, 2006.
On November 13, 2006 appellant requested reconsideration of his modified schedule
award. He contended that, in accordance with Dr. Macey’s report, he was entitled to a three
percent increase in his impairment rating for the pain he continued to experience.
By nonmerit decision dated January 26, 2007, the Office denied further merit review of
appellant’s claim. It stated that appellant’s contention that he should receive an additional award
for pain could be construed as a new legal argument, but found that there was no obligation to
review the merits of the claim because the argument did not have a “reasonable color of
validity.”
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Act2 and its implementing regulation3 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 should be determined. For consistent results
and to ensure equal justice under the law for all claimants, the Office has adopted the A.M.A.,
Guides as the uniform standards applicable to all claimants.4 Office procedures direct the use of

1

The Board notes that this number is incorrect. The six percent impairment of the lower left extremity would
entitle appellant to 120.96 days of compensation.
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

20 C.F.R. § 10.404(a).

3

the fifth edition of the A.M.A., Guides, issued in 2001, for all decisions made after
February 1, 2001.5
The fifth edition of the A.M.A., Guides allows for an impairment percentage to be
increased by up to three percent for pain by using Chapter 18, which provides a qualitative
method for evaluating impairment due to chronic pain. If an individual appears to have a painrelated impairment that has increased the burden on his or her condition slightly, the examiner
may increase the percentage up to three percent. However, examiners should not use Chapter 18
to rate pain-related impairments for any condition that can be adequately rated on the basis of the
body and organ impairment systems given in other chapters of the A.M.A., Guides.6
ANALYSIS -- ISSUE 1
The Board finds that the Office medical adviser correctly followed the procedures
outlined in the A.M.A., Guides in determining that appellant’s permanent impairment and that
the Office properly determined his schedule award.
The determination of the Office medical adviser was based on the complete and thorough
examination and impairment rating performed by Dr. Macey, a Board-certified orthopedic
surgeon. He found that Dr. Macey’s use of Table 17-33, page 547, in the A.M.A., Guides, which
details ratings for fracture related metatarsalgia, was appropriate to rate appellant’s chronic
metatarsalgia. The Office medical adviser opined that “the degree of pain and impairment in
[appellant] with chronic metatarsalgia is comparable with that for metatarsalgia with fracture.”
The A.M.A, Guides’ section for forefoot deformity on Table 17-33, page 547, states that
metatarsalgia affecting any of the three middle metatarsal bones creates an impairment of one
percent of the whole person, two percent of the lower extremity or three percent of the foot.7
Finding that these percentages should be multiplied by three to account for the three metatarsal
bones that were implicated in appellant’s condition, the Office medical adviser properly
determined that the A.M.A., Guides dictated an impairment rating of either three percent of the
whole person, six percent of the lower left extremity or nine percent impairment of the left foot.
Accordingly, the Board finds that the Office medical adviser properly established appellant’s
impairment rating and the Office correctly relied on it in issuing its modified schedule award.
Based on the Office medical adviser’s report, the Office modified appellant’s schedule
award on October 27, 2006 to compensate him for the nine percent impairment of his left foot,
rather than the six percent impairment of his left leg that had been previously awarded.8 The
Office determined that an award based on the foot would be larger than one based on the leg and

5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

6

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(June 2003); A.M.A., Guides at 18.3(b); see also Philip Norulak, 55 ECAB 690 (2004).
7

A.M.A., Guides 547, Figure 17-33.

8

The Office properly did not consider a three percent whole person rating because such a rating is not
compensable under the Act.

4

properly found that appellant should have the benefit of the more favorable schedule award.9
The Board finds that the Office properly determined appellant’s schedule award under the Act.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act, the Office has the discretion to reopen a case for
review on the merits.10 Section 10.606(b)(2) of Title 20 of the Code of Federal Regulations
provides that the application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that: (i) shows that the Office erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by the Office; or (iii) constitutes relevant and pertinent new evidence not previously
considered by the Office.11 Section 10.608(b) provides that, when an application for
reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b)(2), the Office will deny the application for reconsideration without reopening the case
for a review on the merits.12
ANALYSIS -- ISSUE 2
The Board finds that appellant met none of the regulatory requirements for a review of
the merits of his claim. His November 13, 2006 request for reconsideration raised a point of
disagreement with the merit decision, but did not establish that the Office erroneously applied or
interpreted a specific point of law. He is thus, not entitled to further review on the merits of his
case under section 10.606(b)(2)(i).13 Because appellant did not submit any new medical
evidence he is not entitled to review under section 10.606(b)(2)(iii).
In his request for reconsideration, appellant contended that he was entitled to a three
percent increase in his award to compensate him for pain-related impairment. Though appellant
raised this claim in his July 17, 2006 request for reconsideration, the Office did not address the
issue of a pain-based award directly in its October 27, 2006 decision. Because it is unclear
whether the Office previously considered this argument, it was proper to construe it as a new
legal argument. While the reopening of a case for further review of the merits may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.14 The Board finds that the Office
properly determined that this legal argument was not supported by the medical evidence in the
case, as the discretionary award for pain was offered as an alternative to the nine percent left foot
9

See Patricia J. Lieb, 42 ECAB 861 (1991) and Harold T. Nelson, 42 ECAB 763 (1991); see also Susana
Sanchez, (Docket No. 99-64, issued May 22, 2000).

10

5 U.S.C. § 8128(a).

11

20 C.F.R. § 10.606(b)(2).

12

20 C.F.R. § 10.608(b).

13

20 C.F.R. § 10.606(b)(2)(i) and (ii).

14

Cleopatra McDougal-Saddler, 50 ECAB 367 (1999); Nora Favors, 43 ECAB 403 (1992); Constance G. Mills,
40 ECAB 317 (1988).

5

impairment rating that he received, not a supplement to it. The Board, therefore, finds that the
Office was not required to conduct a further merit review of this case on the basis of a new legal
argument.
Because appellant did not meet any of the statutory requirements for a review of the
merits of his claim, the Office properly denied his July 11, 2006 request for reconsideration.
CONCLUSION
The Board finds that appellant did not establish that he had more than nine percent
impairment of his left foot. The Board also finds that the Office properly refused to reopen
appellant’s case for further review of the merits of his claim pursuant to 5 U.S.C. § 8128.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 26, 2007 and October 27, 2006 are affirmed.
Issued: July 25, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6