United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
AIS INC, Marion, MA, Employer
__________________________________________

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

Docket No. 20-1566
Issued: August 31, 2021

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 August 31, 2020 appellant filed a timely appeal from an August 6, 2020 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.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a diagnosed medical
condition causally related to the accepted September 15, 2019 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 6, 2020 decision, appellant submitted 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.

FACTUAL HISTORY
On September 19, 2019 appellant, then a 22-year-old fisheries observer,3 filed a traumatic
injury claim (Form CA-1) alleging that on September 15, 2019 he sustained a right ankle strain
when on a fishing vessel while in the performance of duty. He stopped work on
September 21, 2019.
In a September 24, 2019 report, Amanda Walker, a physician assistant, noted that, on
September 15, 2019, appellant was on a fishing boat in Alaska, the boat hit a wave as he was
descending stairs and his ankle “snapped.” She reviewed x-rays of his right ankle and found no
acute fractures, dislocation, or obvious degenerative changes. Appellant’s diagnosis was listed as
sprain of right ankle, unspecified ligament, and initial encounter.
In a September 27, 2019 attending physicians report (Form CA-20), Ms. Walker noted that
on September 15, 2019 appellant sustained a right ankle sprain. She marked the box “Yes” in
response to whether she believed that the condition was caused or aggravated by an employment
activity. Ms. Walker recommended that appellant continue in a boot and engage in limited weight
bearing on the right leg. Appellant was also seen by her on October 15, 2019.
In a September 30, 2019 Form CA-20, a nurse practitioner noted that on September 15,
2019 appellant missed two steps when descending stairs and twisted his right ankle. The nurse
also noted that he had sprained his joints while playing sports. An x-ray of appellant’s right ankle
revealed normal findings.
Ms. Walker, in a November 5, 2019 treatment note, indicated that appellant had minimal
pain and had completed physical therapy. She diagnosed sprain of anterior talofibular ligament,
subsequent encounter.
OWCP received physical therapy notes dating from September 26 to October 29, 2019.
In a development letter dated July 6, 2020, OWCP informed appellant of the deficiencies
of his claim. It advised him that the medical evidence must be submitted by a qualified physician
and must contain a valid medical diagnosis. OWCP explained that the medical reports submitted
to date were not signed by a physician. It requested a narrative medical report from appellant’s
treating physician that contained a detailed description of findings, a diagnosis, and an explanation
as to how the claimed employment incident caused, contributed to, or aggravated a medical
condition. OWCP provided 30 days for appellant to respond. No further medical evidence was
received.
By decision dated August 6, 2020, OWCP denied appellant’s claim. It found that appellant
had not submitted medical evidence from a physician containing a medical diagnosis in connection
with the accepted employment incident. OWCP concluded, therefore, that the requirements had
not been met to establish an injury as defined by FECA.

3

The record establishes that appellant was covered under FECA as a federal employee.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA,4 that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.6
In order to determine whether an employee actually sustained an injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Fact of
injury consists of two components which must be considered in conjunction with one another. The
first component to be established is that the employee actually experienced the employment
incident which is alleged to have occurred.7 The second component is whether the employment
incident caused a personal injury and generally can be established only by medical evidence.8
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.9 Causal relationship is a medical issue, and
the medical evidence required to establish causal relationship is rationalized medical evidence.10
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the employee.11 Neither the mere fact that a disease or condition
manifests itself during a period of employment, nor the belief that the disease or condition was

4

K.R., Docket No. 20-0995 (issued January 29, 2021); A.W., Docket No. 19-0327 (issued July 19, 2019); S.B.,
Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
5
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

See P.F., Docket No. 18-0973 (issued January 22, 2019); see also Elaine Pendleton, 40 ECAB 1143 (1989).

8

M.H., Docket No. 18-1737 (issued March 13, 2019); John J. Carlone, 41 ECAB 354 (1989).

9

J.L., Docket No. 18-0698 (issued November 5, 2018); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB
465 (2005).
10

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

11

L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

3

caused or aggravated by employment factors or incidents is sufficient to establish causal
relationship.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted September 15, 2019 employment incident.
OWCP received physical therapy reports dated September 26 to October 29, 2019;
physician assistant reports dated September 24 and 27, October 15, and November 5, 2019; and a
nurse practitioner Form CA-20 report dated September 30, 2019. Certain healthcare providers
such as physician assistants, nurse practitioners, physical therapists, and social workers are not
considered “physician[s]” as defined under FECA.13 Consequently, their medical findings and/or
opinions will not suffice for purposes of establishing entitlement to FECA benefits.14
The Board finds that the evidence of record is insufficient to establish that the
September 15, 2019 employment incident caused a right ankle condition and, therefore, fails to
establish entitlement to compensation under FECA.15 Accordingly, appellant has not met his
burden of proof.
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 has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted September 15, 2019 employment incident.

12

T.H., Docket No. 18-1736 (issued March 13, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

13

Section 8101(2) provides that under FECA the term physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by the applicable state law. 5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See Federal (FECA) Procedure Manual, Part 2
Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006)
(lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical
opinion under FECA); see also R.L., Docket No. 19-0440 (issued July 8, 2019) (nurse practitioners and physical
therapists are not considered physicians under FECA).
14
D.P., Docket No. 19-1295 (issued March 16, 2020); G.S., Docket No. 18-1696 (issued March 26, 2019); see
M.M., Docket No. 17-1641 (issued February 15, 2018); K.J., Docket No. 16-1805 (issued February 23, 2018);
David P. Sawchuk, id.
15
See J.L., Docket No. 18-1804 (issued April 12, 2019); D.H., Docket No. 17-1913 (issued December 13, 2018);
see Linda I. Sprague, 48 ECAB 386 (1997).

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ORDER
IT IS HEREBY ORDERED THAT the August 6, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 31, 2021
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Gilbert, AZ, Employer
__________________________________________

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

Docket No. 15-1936
Issued: January 29, 2016

Case Submitted on the Record

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

JURISDICTION
On September 28, 2015 appellant filed a timely appeal from a September 14, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury in the
performance of duty.
FACTUAL HISTORY
On July 28, 2015 appellant, then a 30-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that she sustained a low back and right side injury in the

1

5 U.S.C. § 8101 et seq.

performance of duty. She alleged that she sustained the injury when she lifted a bundle of mail
on July 28, 2015. Appellant did not stop work.
In a statement received on August 3, 2015, appellant advised that she bent down to pick
up a bundle of magazines when she felt shooting pain on the right side of her low back. She
noted that she continued working, but when she bent down again the pain returned.
On August 3, 2015 the employing establishment controverted appellant’s claim. It
argued that she indicated on her traumatic injury claim form that she lifted a bundle of mail, but
alleged in her statement that she felt pain when she simply bent down. The employing
establishment asserted that this inconsistency cast doubt on the validity of her claim and that
bending down was not a valid mechanism of injury.
In a July 28, 2015 report, Dr. Dungchi Nguyen, an osteopath specializing in occupational
medicine, noted that appellant related she had been bending over to pick up a bundle of
magazines when she felt shooting pain in her lower right back. He diagnosed lumbar sprain.
Dr. Nguyen limited lifting, pushing, and pulling to five pounds. He advised that appellant could
not drive and limited her bending, stooping, and twisting at the waist. In a July 28, 2015 duty
status report (Form CA-17), Dr. Nguyen limited lifting and carrying to two pounds, limited
pushing and pulling to five pounds, and restricted appellant from driving a postal vehicle.
By letter dated August 5, 2015, OWCP advised appellant of the type evidence needed to
establish her claim. It allowed her 30 days from the date of the letter to submit responsive
evidence.
On July 31, 2015 appellant returned to full-duty work without restrictions.
In an August 10, 2015 report, Dr. Nguyen advised that appellant had complained of a
constant ache in her back. He noted that on July 31, 2015 appellant had gone back to work, but
that her back was sore after three hours. Dr. Nguyen noted that appellant currently related that
she felt better, had no residual pain, and felt that her condition was resolved. Examination
revealed a steady gait, adequate range of motion, no tenderness, and no muscle spasm on
palpation. In a separate August 10, 2015 report, Dr. Nguyen advised that appellant was
discharged from his medical care and was fully recovered.
By decision dated September 14, 2015, OWCP denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish that the diagnosed condition was
causally related to the accepted work incident.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,2 including that he or she is an “employee” within the meaning of FECA and that he or

2

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

2

she filed his or her claim within the applicable time limitation.3 The employee must also
establish that she sustained an injury in the performance of duty as alleged and that her disability
for work, if any, was causally related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.5
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS
OWCP accepted the July 28, 2015 incident. The Board finds, however, that appellant
failed to submit sufficient medical evidence to establish that the diagnosed medical condition
was causally related to this incident.
In his July 28, 2015 report, Dr. Nguyen noted appellant’s claim was that she was bending
over to pick up a bundle of magazines when she felt shooting pain in her lower right back. He
diagnosed lumbar spine sprain and provided work restrictions. Although Dr. Nguyen provides
the history as related by appellant, he does not provide an opinion as to the cause of appellant’s
condition. Dr. Nguyen’s July 28, 2015 duty status report and his August 10, 2015 reports are
also insufficient to discharge appellant’s burden of proof as they do not offer an opinion on
causal relationship. The Board has held that a report without an opinion as to causal relationship
is of little probative value.7 The Board therefore finds that appellant has submitted insufficient
medical evidence to establish her claim.
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.

3

R.C., 59 ECAB 427 (2008).

4

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

T.H., 59 ECAB 388 (2008).

6

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

7

See Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer an opinion regarding the cause
of an employee’s condition is of limited probative value on the issue of causal relationship).

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury in
the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the September 14, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 29, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
U.S. POSTAL SERVICE, PROCESSING
& DELIVERY CENTER, Philadelphia, PA,
Employer
__________________________________________

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

Docket No. 09-341
Issued: December 30, 2009

Case Submitted on the Record

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

JURISDICTION
On November 17, 2008 appellant, through his attorney, filed a timely appeal from
schedule award decisions of the Office of Workers’ Compensation Programs dated January 17
and August 5, 2008. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of this appeal.
ISSUE
The issue is whether appellant has more than one percent impairment to his right lower
extremity and any impairment of his left lower extremity.
On appeal, counsel for appellant contends that the case should be remanded as the report
of the second opinion physician was not based on an accurate statement of facts and he did not
consider appellant’s prior injuries to his left leg. In the alternative, counsel argues that at a
conflict in medical opinion exists.

FACTUAL HISTORY
This is the second appeal before the Board.1 In a July 14, 2006 decision, the Board
affirmed decisions of the Office that terminated appellant’s compensation benefits. The facts of
the case as set forth in the Board’s prior decision are incorporated by reference.
On March 2, 2007 appellant filed a claim for a schedule award. In a September 14, 2006
report, Dr. Nicholas Diamond, an osteopath, diagnosed post-traumatic anterior cruciate ligament
tear with Grade 1 chondral erosion of lateral femoral condyle of left knee; status post left knee
arthroscopy with debridement of the anterior cruciate ligament; post-traumatic right C5-6
herniated nucleus pulposus with radiculopathy; status post anterior cervical discectomy and
fusion with bone graft and anterior plate fixation; post-traumatic L5-S1 herniated disc with
bilateral S1 radiculopathy; and status post anterior lumbar interbody fusion at L5-S1. In
reviewing appellant’s history, he noted that appellant had an injury of left tibia and fibula
fracture in 1982 for which multiple surgeries were performed. Dr. Diamond advised that he
applied the American Medical Association, Guides to the Evaluation of Permanent Impairment
(5th edition 2001) (A.M.A., Guides) to find that appellant had 30 percent impairment to the left
leg and 40 percent impairment to the right leg.
Dr. Diamond based his rating of impairment to the left leg on motor loss. Under Table
17-8, page 532, he found Grade 4 motor strength deficit involving knee extension to the left
quadriceps for which 12 percent impairment was allowed. There was also Grade 4 motor loss
involving ankle plantar flexion of the left gastrocnemius for which 17 percent impairment was
allowed. Dr. Diamond combined the motor losses to find 27 percent impairment of the left leg
and then added 3 percent impairment for pain, indicating that he applied Figure 18-1, page 574 to
total 30 percent loss of the left leg. As to the right leg, Dr. Diamond based his impairment rating
on both motor and sensory loss. He again applied Table 17-8 to find Grade 4 strength deficit of
the right hip abductors for which 25 percent impairment was allowed and Grade 4 right
quadriceps deficit of 12 percent. As to sensory loss, Dr. Diamond stated that he applied Tables
15-15 and 15-18, page 424, which rate impairment for unilateral spinal nerves. He identified
Grade 2 sensory loss for which Table 15-15 allows up to an 80 percent deficit. Under Table 1518, Dr. Diamond identified the affected nerves as the L5 and S1 nerve roots, for which the table
allows a maximum of five percent loss to each impaired nerve root. He rated sensory

1

Docket No. 06-214 (issued July 14, 2006). On March 30, 2002 appellant fell on a concrete floor. His claim was
accepted for a herniated disc at L5-S1. The record indicates that, prior to the injury, appellant underwent anterior
C5-6 cervical decompression and fusion surgery in 1997. He underwent an anterior lumbar interbody fusion of
September 25, 2003. Appellant also has a history of nonemployment-related left leg injuries for which he
underwent approximately 18 operations in the 1980s and 1990s.

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impairment as four percent of both nerve roots. Dr. Diamond stated that he combined the motor
and sensory ratings to total 40 percent impairment of the right leg.2
In a March 13, 2007 decision, the Office denied appellant’s claim finding that he was not
entitled to a schedule award for his back. However, in June 4, 2007 decision, an Office hearing
representative set aside the schedule award denial and remanded the case for further
development of the medical evidence on the extent of permanent impairment.
The Office referred appellant, together with a statement of accepted facts, to
Dr. Robert F. Draper, Jr., a Board-certified orthopedic surgeon, for a second opinion.3 In a
July 17, 2007 report, Dr. Draper reviewed appellant’s history of injury and medical treatment,
noting that successive diagnostic studies obtained following the March 31, 2002 injury revealed
L5-S1 disc degeneration with mild right-side herniation. Following a course of conservative
care, appellant underwent surgery on September 12, 2003 consisting of an interbody fusion with
a prosthetic cage device and iliac crest bone graft. Dr. Draper noted that appellant had since
returned to work performing modified duties. On examination he noted straight leg raising was
negative bilaterally and provided findings on reflex testing of the patella and Achilles tendons.
Dr. Draper noted that appellant had marked weakness of the left leg in foot and ankle motion,
and excellent bilateral hip flexion, knee extension, knee flexors, inversion and eversion
functions. He advised that appellant’s left leg abnormalities were due to his prior injury in the
1980s and multiple surgeries and not to the accepted back injury. On sensory examination,
Dr. Draper reported that there was normal sensation in the L2, L3, L4, L5 and S1 dermatomes of
the right leg. As to the left leg, he noted normal sensation at L2 and L3 above the knee, with a
stocking glove deficit in the left leg from the mid-calf to the tip of the toes. Dr. Draper noted
that appellant attributed this to his prior leg injuries and stated that this was a finding unrelated to
the accepted back injury. He listed his diagnoses, reiterating that the motor and sensory losses to
the left leg were unrelated to the accepted employment injury but to the 18 operations on
appellant’s left lower extremity and previous fractures. As to the right leg, Dr. Draper described
a very mild S1 radiculopathy and paresthesias which, under Table 16-10 at page 82, he
characterized as a Grade 4 (20 percent) deficit for distorted superficial tactile sensibility with
cutaneous manifestation. He noted that, under Table 17-37, page 552, the maximum impairment
allowed for sensory loss to the sciatic nerve for dysthesia was five percent.4 Dr. Draper
multiplied the 20 percent deficit by 5 percent to find that appellant had 1 percent impairment of
the right leg due to mild lumbar radiculopathy. He noted that there was no impairment to
2

The Board notes that Dr. Diamond also found sensory impairment of six percent based on loss to the right C6
cervical nerve root and provided a rating for appellant’s right arm. As appellant’s 2002 injury was accepted by the
Office only for a herniated disc at L5-S1, he bears the burden of proof to establish impairment for conditions not
accepted by the Office. See Noe L. Flores, 49 ECAB 344 (1998). On causal relationship, Dr. Diamond noted
generally that “the work[-]related injuries sustained during the course of the claimant’s employment are the
competent producing factor for the subjective and objective findings of today.” He did not specifically address how
appellant’s accepted injury was competent to cause or contribute to any cervical condition or produce impairment as
described.
3

The statement of accepted facts noted appellant’s accepted condition of herniated disc at L5-S1 sustained in a
fall from the top of a metal shelving unit on March 30, 2002.
4

The Board notes that under Table 17-37, five percent represents impairment to the whole person. The table
provides that dysthesia of the sciatic nerve is 12 percent impairment of the lower extremity.

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appellant’s left leg as the findings on examination were not related to the accepted low back
injury.
In an August 16, 2007 decision, the Office again denied appellant’s claim for a schedule
award. This decision was set aside by an Office hearing representative on November 13, 2007.
The case was remanded for further development of the medical evidence.
On December 5, 2007 Dr. Arnold T. Berman, an Office medical adviser and Boardcertified orthopedic surgeon, reviewed the medical evidence of record. He noted that the
accepted condition was a herniated disc at L5-S1 and that appellant had a prior history of
cervical fusion at C5-6 in December 1997. Dr. Berman discussed the medical evidence
pertaining to appellant’s lumbar surgery of September 25, 2003, noting that the postoperative
records of the surgeon advised that appellant was neurologically intact with regard to strength,
reflex and sensory testing. As to the impairment rating by Dr. Diamond, the medical adviser
noted that the records from appellant’s surgeon did not support the loss of strength or sensory
deficits as reported. For this reason, he would not recommend that the assessment of loss at L5
and S1 by Dr. Diamond be accepted. Dr. Berman noted that Dr. Draper recommended one
percent impairment for the right lower extremity and provided appropriate rationale for his
conclusion. He found the date of maximum medical improvement to be July 17, 2007, the date
of Dr. Draper’s evaluation.
In a January 17, 2008 decision, the Office granted appellant a schedule award for one
percent impairment to the right lower extremity. It found that he had no impairment to his left
lower extremity related to the March 30, 2002 injury.
On January 22, 2008 appellant, through his attorney, requested a hearing which was held
on April 22, 2008. Counsel contended that appellant’s preexisting left leg injury was a factor to
be considered in determining the extent of permanent impairment to that member. He also
contended that a conflict in medical opinion existed between the ratings of Dr. Diamond and
Dr. Draper.
In an August 5, 2008 decision, an Office hearing representative affirmed the January 17,
2008 schedule award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act5 and its
implementing regulations6 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, the
Office has adopted the A.M.A., Guides as the uniform standard applicable to all claimants.7 The
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

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A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard
for evaluating schedule losses.8
A schedule award is not payable for a member, function or organ of the body not
specified in the Act or in the implementing regulations. The Act and federal regulations do not
provide for the payment of a schedule award for the permanent loss of use of the back or spine.9
However, as the Act provides for the lower extremities, a claimant may be entitled to a schedule
award for permanent impairment to his or her legs even though the cause of the impairment
originates in the spine.10
ANALYSIS
The Office accepted appellant’s claim for a herniated lumbar disc at L5-S1 for which he
underwent surgery. Appellant claims a schedule award for impairment to his lower extremities
due to his accepted lumbar condition. In finding that he had one percent impairment to his right
leg and no impairment to his left leg, the Office accepted the opinion of Dr. Draper as
constituting the weight of medical opinion. The Board finds, however, that the case is not in
posture for decision due to an unresolved conflict of medical opinion between Dr. Diamond and
Dr. Draper as to the extent of sensory loss to appellant’s right leg. As to the left leg, the Board
finds that appellant has not established that he sustained any permanent impairment to the
member due to his accepted back condition.11
Dr. Draper applied Table 16-10 of the A.M.A., Guides to rate appellant’s right leg
sensory deficit (pain) as Grade 4 or 20 percent. He stated that the maximum lower extremity
impairment allowed for dysthesia of the sciatic nerve under Table 17-37 was five percent.
However, the Board notes that five percent is the amount allowed for “whole person”
impairment under Table 17-37. Rather, 12 percent is the maximum allowed for impairment to
the lower extremity for dysthesia of the sciatic nerve. The schedule award for one percent
impairment as found by Dr. Draper and adopted by the Office medical adviser was in error.12 In
the alternative, in rating sensory deficit to the right leg, Dr. Diamond identified the L5 and S1
nerve roots under Table 15-18 as those impaired due to the accepted injury. This table allows a
maximum five percent for sensory loss to both these nerves. Dr. Diamond classified the extent
of sensory impairment as Grade 2 under Table 15-15, for which he allowed 80 percent sensory
deficit. He concluded that there was 4 percent impairment of both the L5 and S1 nerve roots (80
percent x 5 percent), and a total 8 percent loss. Loss of right leg strength is an impairment factor
noted by both examining physicians. They disagree as to the extent of deficit loss by which the
8

Id.

9

George E. Williams, 44 ECAB 530 (1993).

10

Id.

11

On appeal, counsel did not raise any argument pertaining to impairment of appellant’s right arm. As the Office
has not issued a final decision on this aspect of the claim, it is not an issue before the Board in the present appeal.
See 20 C.F.R. § 501.2(c).
12

20 percent deficit of the maximum 12 percent allowed would result in 2.4 percent impairment.

5

impairment should be graded. The Office medical adviser did not explain why this
determination of sensory loss to the right leg due to the accepted back condition was in error.13
Therefore, the Board finds a conflict in medical opinion between Dr. Diamond and Dr. Draper as
to the extent of sensory loss affecting appellant’s right leg.
As to right leg motor loss, Dr. Draper found that appellant exhibited full strength of the
right leg and had no functional impairment. The Office medical adviser noted that this finding
was supported by appellant’s surgeon in the months following surgery.14 As noted, Dr. Diamond
described motor deficit utilizing Table 17-8 for determining impairment due to muscle weakness.
In this regard, however, the Board must find that the impairment rating of Dr. Draper is more
probative. The textual material at 17.2e at page 531 pertaining to manual muscle testing advises
that this method of rating impairment is subject to the conscious control of the individual being
examined. It states:
“Measurements can be made by one or two observers. If the measurements are
made by one examiner, they should be consistent on different occasions. If made
by two, they should be consistent between examiners. Even in a fully cooperative
individual, strength may vary from one examination to another, but not by more
than one grade. If they vary by more than one grade between observers, or by the
same examiner on separate occasions, the measurements should be considered
invalid.”15 (Emphasis added.)
The evidence of record reflects that the absence of loss of strength as reported by
appellant’s surgeon is consistent with the findings made by Dr. Draper. Two separate examiners
made consistent findings over several years. As the loss of strength impairment values for both
lower extremities reported by Dr. Diamond vary by more than one grade from these observers,
such measurements are to be considered invalid under the A.M.A., Guides.16 Moreover, the
Board notes that the cross-usage chart at Table 17-2, page 526 specifically precludes the
13

As to the application of Figure 18-1, Dr. Diamond allowed an additional three percent for pain. However, he
did not explain why his sensory loss ratings under Tables 15-15 and 15-18 were not adequate. The textual material
at page 570 of the A.M.A., Guides state that an explanation should be provided in writing whenever the organ and
body rating systems of the other chapters are not adequate to rate actual impairment. Without such explanation, an
additional rating under Chapter 18 appears arbitrary.
14

By letters dated December 15, 2003 and April 29, 2004 to appellant’s counsel, Dr. Todd J. Albert, a Boardcertified orthopedic surgeon, addressed his treatment of appellant. On October 15, 2002 appellant complained of
pain in his low back, right buttock and lateral calf with weakness. He had no complaints with regard to his left leg.
On September 14, 2004 Dr. Albert examined appellant a year following surgery and found full and equal strength
throughout both lower extremities and normal reflexes. He advised that sensation was intact.
15

The A.M.A., Guides also state that individuals whose performance is inhibited by pain or fear of pain are not
good candidates for manual muscle testing and other methods for rating impairment should be considered.
Dr. Diamond did not address why he rated impairment using this method in light of the ratings for pain he also
provided.
16

This would also pertain to the motor strength loss reported by Dr. Diamond as to appellant’s left leg as
Dr. Albert found full and equal strength throughout both of appellant’s lower extremities on October 21, 2003 and
September 14, 2004. Dr. Draper reported excellent motor function bilaterally in hip flexion, knee extension and
knee flexors. The marked weakness of the left foot and ankle was attributed to the nonemployment-related injuries.

6

combination of muscle strength loss with pain due to nerve injury. This further diminishes the
probative value of the total 40 percent right leg rating provided by Dr. Diamond as he
erroneously combined invalid muscle strength impairment with the sensory nerve loss identified
at L5 and S1. Appellant has not established the motor strength deficits as reported by
Dr. Diamond to be valid.
Appellant contends on appeal that the opinion of Dr. Draper is deficient in that the
statement of accepted facts did not provide a description of his September 25, 2003 surgery or
note the prior left knee injury. The Board notes, however, that the report of Dr. Draper reviewed
the medical evidence of record and specifically addressed the surgery appellant underwent of his
lumbar spine and the prior injuries and surgeries of his left knee, the left leg fractures, and
cervical spine. The Board finds that Dr. Draper provided a thorough discussion of appellant’s
history of injuries, employment and nonemployment related, various surgeries and medical
treatment.
The weight of medical opinion establishes that appellant has no impairment to his left leg
casually related to his accepted lumbar condition. As noted, the motor strength impairment
values reported by Dr. Diamond cannot be considered as valid as they were not consistent with
the findings reported by Dr. Draper or appellant’s surgeon. Moreover, there is no evidence that
the accepted L5-S1 disc herniation is causing sensory loss into the left leg. Appellant’s surgeon
did not report any such loss following surgery, noting that appellant’s complaints were only to
his right lower extremity. Dr. Draper found no radiculopathy affecting the left leg due to the
accepted condition. Moreover, the pain rating of Dr. Diamond was made under Figure 18-1. He
did not identify or describe any sensory loss originating in the L5 or S1 nerve root of the spine
impairing the left leg. The 30 percent impairment rating of Dr. Diamond is of diminished
probative value for these reasons.
On appeal, appellant contends that the Office failed to consider his preexisting left knee
condition and lower extremity fractures. While the record supports that appellant had extensive
preexisting injury to his left leg for which he underwent multiple surgeries, there is no evidence
of any impairment caused by his lumbar condition affecting his left leg. It is well established
that, in determining the amount of a schedule award for a given member of the body that
sustained an employment-related permanent impairment, preexisting impairments of that
scheduled member of the body are to be included.17 The injury sustained in this case was to the
back or spine, for which a schedule award is not allowed. Appellant may have preexisting
impairment of his left foot, ankle and knee but it must first be established that his spine
contributes to permanent impairment to the leg, either by motor or sensory loss, before they may
be taken into consideration. None of the medical evidence of record provides any opinion
addressing how the accepted lumbar injury causes or contributes to his left foot and ankle or

17

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700.3.b. (June 1993). This portion of the Office procedure provides that the
impairment rating of a given scheduled member should include “any existing permanent impairment of the same
member or function.”

7

knee conditions.18 As noted, the loss of strength values reported by Dr. Diamond cannot be
accepted as valid in this case. Moreover, Dr. Draper advised that the loss of strength in the area
of appellant’s left foot and ankle was solely due to the prior injuries and fractures without any
contribution by the accepted L5-S1 disc herniation. Appellant was found to have excellent
motor function in his hips and knees. As appellant has not established impairment extending into
his left leg due to residuals of his accepted back condition, it is premature to consider any
preexisting impairment of the member.
CONCLUSION
The Board finds that appellant has not established that he sustained impairment to his left
lower extremity. As to the extent of right leg impairment, the Board finds a conflict in medical
opinion as to the extent of sensory loss.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 5 and January 17, 2008 are affirmed, in part, and set
aside, in part. The case is remanded for further action in conformance with this decision.
Issued: December 30, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

18

See Thomas P. Lavin, 57 ECAB 353 at 358 (2006). As noted in Michael C. Milner, 53 ECAB 446 at 450
(2002) there is a causal element as described by Professor Larson in his treatise on workers’ compensation: that the
industrial injury must first precipitate disability from a latent prior condition. See also Tammy L. Meehan, 53 ECAB
229 (2001).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Davison, MI, Employer
__________________________________________

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)

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

Docket No. 15-0725
Issued: August 12, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 3, 2015 appellant, through counsel, filed a timely appeal from a December 23,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established permanent functional impairment in support of a
schedule award for his accepted conditions.
On appeal, counsel asserts that the December 23, 2014 decision is contrary to fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On August 10, 2012 appellant, then a 60-year-old city carrier, filed an occupational disease
claim alleging that employment duties caused bulging discs in his lower back and radiating back
pain. He had stopped work on July 19, 2012. Appellant retired effective September 30, 2012.
On September 17, 2012 Dr. Carlos R. Padilla, an attending Board-certified physiatrist,
diagnosed chronic low back pain secondary to lumbar spondlylosis with degenerative disc disease
and degenerative joint disease. On September 20, 2012 Dr. Bill Hukill, an osteopath, agreed with
the degenerative disc disease and degenerative joint disease diagnoses.
On November 20, 2012 OWCP accepted the conditions of degeneration of lumbar or
lumbosacral intervertebral disc and unspecified, osteoarthrosis, of the lower leg, as employment
related.
Dr. Mokbel Chedid, a Board-certified neurosurgeon, performed lumbar decompression at
L4-5 and L5-S1 with discectomy on February 18, 2013. In a May 15, 2013 report, Dr. Padilla
advised that appellant was seen for follow-up after recent spinal fusion surgery. He advised that
appellant was at maximum medical improvement. On June 26, 2013 Melissa Shonk, a physician
assistant in Dr. Chedid’s office, noted appellant’s complaint of occasional leg pain and back pain
with increased activity. She provided physical examination findings including normal motor
strength in the lower extremities and intact sensation to light touch.
On July 12, 2013 appellant filed a schedule award claim. He submitted a July 25, 2013
impairment evaluation from Dr. John L. Dunne, an osteopath Board-certified in occupational and
family medicine. Dr. Dunne noted appellant’s employment history and his continued complaint of
low back and bilateral ankle pain that prevented many activities of daily living and provided a
history that appellant reported multiple ankle sprains while employed. He indicated that appellant
walked with a normal gait. Sensory examination revealed a diminished pin wheel sensation in the
right S1 distribution posterior lateral calf and lateral right foot compared to normal on the left and
a diminished pin wheel sensation over the dorsum of the foot on the right compared to normal on
the left. Motor testing demonstrated grade 4 weakness of the right extensor hallucis longus and
right ankle dorsiflexors compared to 5/5 strength on the left. Sitting leg extension and straight-leg
raising showed no evidence of radiculopathy and there was no atrophy of the legs. There was a
mild persistent sensory radiculopathy at the right S1 and mixed sensory motor mild degree of
radiculopathy at the right L5 level. Ankle range of motion was decreased. Dr. Dunne advised that
a history of multiple ankle sprains limited standing, walking, and running. He advised that ankle
range of motion was assessed on three trials via goniometer. Dr. Dunne stated that the maximum
range recorded on the right was 35 degrees of flexion, 10 degrees of extension, 5 degrees of
inversion, and 10 degrees of eversion, and that on the left the best flexion was 30 degrees,
extension was 10 degrees, inversion was 5 degrees, and eversion was 10 degrees, with end point
pain. He opined that it was assumed that the accepted osteoarthrosis, unspecified, lower leg
referred to the bilateral ankle joints only.
Dr. Dunne assessed appellant’s impairment in accordance with the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter

2

A.M.A., Guides).2 He found that, under Table 16-25, Range of Motion ICF Classification,3
appellant had a class 1 impairment with no adjustment, for a final impairment of 11 percent for
each ankle, based on range of motion deficits. Dr. Dunne stated that he utilized the range of
motion model because there were no medical records describing radiologic findings available, and
appellant’s only impairment was due to pain and limited motion of the ankle joint.
On November 22, 2013 Dr. Morley Slutsky, an OWCP medical adviser who is Boardcertified in occupational medicine, reviewed the medical evidence, including Dr. Dunne’s report.
He advised that additional information was needed. The medical adviser noted that both before
and after appellant’s spinal surgery, Dr. Chedid found no lower extremity sensory or motor
deficits, which was in contrast to Dr. Dunne who found diminished right S1 sensory deficits and
weakness in the right L5 distribution. Dr. Slutsky further noted that Dr. Dunne rated the claimant
using the sixth edition of the A.M.A., Guides and not the July/August 2009 The Guides
Newsletter. He requested that OWCP obtain all medical notes following the February 15, 2013
surgery date, concluding that if the notes were no longer available then the final impairment for
each lower extremity was zero percent, using The Guides Newsletter, because appellant’s best
effort equaled no loss of sensation or motor function, both before and after his lumbar surgery.
On February 6, 2014 OWCP requested that appellant provide the additional medical
information as requested. In a January 25, 2014 treatment note, Elizabeth Dale, a nurse
practitioner indicated that he had fallen from a ladder at home and sprained his ankle. She
provided physical examination findings including full strength in all extremities and intact
sensation to light touch/pinprick in all distributions. Gait and station were normal.
By decision dated March 19, 2014, OWCP denied appellant’s claim for a schedule award
because the medical evidence submitted by appellant was not in accordance with The Guides
Newsletter, used for evaluating impairment of the spine. Appellant, through counsel, timely
requested a hearing.
In a May 15, 2014 treatment note, Jamie Scalia, a physician’s assistant in Dr. Chedid’s
office, noted that appellant returned for routine follow up visit. She noted that appellant reported
occasional low back pain radiating into the right buttock, and that he was active in swimming and
at the gym and no longer had stabbing sharp low back or leg pain. Ms. Scalia advised that he had
full strength in all extremities and intact sensation to light touch/pinprick in all distributions and
advised that he could continue normal activity as tolerated.
On May 22, 2014 Dr. Chedid noted a history that appellant experienced severe back pain
since an approximately eight foot fall and that lumbar spine imaging demonstrated a broken S1
screw. Physical examination demonstrated full strength in all extremities and intact sensation to
light touch/pinprick in all distributions. Gait and station were normal. Appellant was scheduled
for lumbar exploration and revision of bilateral S1 screws. Dr. Chedid performed surgery on
June 17, 2014 including removal of the broken S1 screw and augmentation of the spinal fusion.
Appellant was discharged from the hospital on June 19, 2014 with diagnoses of back pain, status
2

A.M.A., Guides (6th ed. 2008).

3

ICF refers to the International Classification of Functioning, Disability and Health. Id. at 3, § 1.3.

3

post lumbar exploration with revision of bilateral S1 screws, and spinal stenosis, lumbar region,
without neurogenic claudication.
Appellant did not testify at the hearing which was held on October 9, 2014. However
counsel provided arguments on behalf of his client generally criticizing the use of and reliance
upon The Guides Newsletter and perceived bias practices of Dr. Slutsky as a district medical
adviser. More specifically he asserts that Dr. Slutsky goes beyond his defined role in the case to
overrule the medical findings of lower extremity impairment, of weakness, of numbness, and of
loss of sensation of impairment of the lower extremities as reported by Dr. Dunne and then
interjects his own findings to create a conflict with the treating doctor. Counsel argues the role of
Dr. Slutsky is limited to reading the medical report of the treating physician and making sure that
the evaluating physician correctly followed The Guides Newsletter when assigning permanent
functional impairment. He suggested that in this case the evaluation findings between the treating
physician and Dr. Dunne are disparate, thus creating a conflict necessitating a referee opinion.
Counsel notes that instead Dr. Slutsky’s actions, in accord with his common practice, rejected the
evaluation findings favorable to the worker, without conducting any medical evaluation, and
confirming physical evaluation findings of the other doctor in the conflict and then resolving the
conflict by weighing the facts and making findings that support a lower rating of impairment.
Finally, counsel argues that appellant had a very serious injury with invasive surgical treatment
and residuals and it is therefore unreasonable to bypass the evaluation and impairment findings of
a well-respected Eastern Ohio physician, Dr. Dunne, to reject an award based upon the conduct
and practices of Dr. Slutsky.
In a December 23, 2014 decision, an OWCP hearing representative affirmed the March 19,
2014 decision. The hearing representative noted that there was no explanation as to why the claim
had been accepted for unspecified osteoarthrosis of the lower leg since there were no medical
reports of file that diagnosed the condition. She found that The Guides Newsletter, which had
been incorporated into OWCP procedures, provided the proper methodology for an impairment to
an extremity based on an impairment that originated in the spine and dismissed counsel’s
argument concerning his disfavor with use of The Guides Newsletter. The hearing representative
found that the record did not establish impairment based on a spinal nerve root disruption. She
further found that Dr. Dunne’s impairment rating, based on bilateral ankle conditions, was not
supported by the record, specifically stating that “even if such a diagnosis was provided, there is
no medical evidence that establishes a causal relationship between that condition and the factors of
employment in the current claim. Dr. Dunne stated that the claimant has had ongoing treatment
and injections for bilateral ankle arthritis, but there are no medical reports that document any right
ankle treatment.” The hearing representative continued that there were no ankle x-rays in the
record and that Dr. Dunne did not take any ankle x-rays. She concluded that the physician’s
diagnosis of ankle osteoarthritis was speculative.
LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

4

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.6 For decisions issued after
May 1, 2009, the sixth edition of the A.M.A., Guides is to be used.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment for the Class of Diagnosis (CDX) condition, which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).9 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).10 The sixth edition of the A.M.A., Guides also provides that under certain
circumstances, range of motion may be selected as an alternative approach in rating impairment.
An impairment rating that is calculated using range of motion may not be combined with a
diagnosis-based impairment and stands alone as a rating.11
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, under FECA a schedule award is not payable for injury to the spine.12 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether the
cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as the
schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.13
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
alternative approach to rating spinal nerve impairments.14 OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in

6

Id. at § 10.404(a).

7

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

8

A.M.A., Guides, supra note 2 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
9

Id. at 385-419.

10

Id. at 411.

11

Id. at 390. The A.M.A., Guides explains that diagnoses in the grid that may be rated using range of motion are
followed by an asterisk.
12

Pamela J. Darling, 49 ECAB 286 (1998).

13

Thomas J. Engelhart, 50 ECAB 319 (1999).

14

Rozella L. Skinner, 37 ECAB 398 (1986).

5

section 3.700 of its procedures, which memorializes proposed tables outlined in a
July/August 2009, The Guides Newsletter.15
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.16 In determining entitlement to a
schedule award, preexisting impairment to the scheduled member is to be included.17
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he has a
ratable impairment of either lower extremity. OWCP accepted that he sustained degeneration of
lumbar or lumbosacral intervertebral disc and unspecified osteoarthrosis, of the lower leg, as
employment related. Appellant filed a schedule award claim and submitted a July 25, 2013
impairment evaluation from Dr. Dunne.
Regarding the accepted lumbar conditions, as noted above, the approach for rating
impairment of the upper or lower extremities caused by a spinal injury is provided in section 3.700
of OWCP procedures, which memorializes proposed tables outlined in a July/August 2009 The
Guides Newsletter.18 Dr. Dunne did not provide any analysis in accordance with the
July/August 2009 The Guides Newsletter, and the record contains no other impairment evaluation.
Appellant bore the burden to prove permanent impairment for a schedule award based upon the
proper rating practices. The Board further notes that his back condition in May 2014 and
subsequently, including the June 17, 2014 surgery, was apparently due to an eight foot fall from a
ladder that occurred after appellant’s retirement in September 2012. Dr. Dunne did not evaluate
appellant’s spinal condition or mention section 3.700 or the July/August 2009 The Guides
Newsletter. Appellant therefore did not establish that he is entitled to a schedule award for the
accepted degeneration of lumbar or lumbosacral intervertebral disc.
In his impairment analysis, Dr. Dunne reported a history of multiple ankle sprains and
assumed that the accepted osteoarthrosis referred to the bilateral ankle joints. He advised that he
utilized Table 16-2519 because there were no medical records describing radiologic findings, and
appellant’s only impairment was due to pain and limited motion of the ankle joint. Dr. Dunne
concluded that appellant had 11 percent impairment of each ankle.

15

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Chapter 3.700, Exhibit 1, note 5 (January 2010); The Guides Newsletter is included as Exhibit 4.
16

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
17

Peter C. Belkind, 56 ECAB 580 (2005).

18

See supra note 15.

19

A.M.A., Guides, supra note 2 at 550.

6

As noted by the hearing representative, the record contains no explanation as to why the
claim was accepted for osteoarthrosis, unspecified, lower leg. None of the medical reports of
record at the time the claim was accepted on November 20, 2012 diagnosed any arthritic or
specific lower extremity condition. Moreover, section 16.7 provides that diagnosis-based
impairment is the method of choice for calculating impairment and that range of motion is used
principally as a factor in the physical examination adjustment grid.20
As a specific ankle condition has not been accepted as employment related, appellant has
not established entitlement to a schedule award for the accepted osteoarthrosis, unspecified, lower
leg.
The remainder of counsel’s arguments relating to the procedures and practices of
Dr. Slutsky are moot as appellant has not presented sufficient medical evidence of impairment to
establish a schedule award as he failed to offer any evidence of permanent impairment through the
use of The Guides Newsletter.
Appellant may request a schedule award or increased schedule award based on evidence of
a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish entitlement to
a schedule award for the accepted degeneration of lumbar or lumbosacral intervertebral disc and
osteoarthrosis, unspecified, lower leg, as employment related.21

20

Id. at 543. Table 16-2 (Foot and Ankle Regional Grid), Table 16-3 (Knee Regional Grid), and Table 16-4 (Hip
Regional Grid) provide the diagnoses to be used in analyzing a lower extremity impairment. Id. at 501-15. These
include specific arthritis diagnoses. Id. at 507, 511, 514.
21

At the hearing counsel maintained that The Guides Newsletter was junk science and that Dr. Slutsky was biased.
As noted above, the A.M.A., Guides have been adopted as the uniform standard applicable to all claimants for the
determination of permanent impairment under FECA. 20 C.F.R. § 10.404(a). Section 3.700 of OWCP procedures
memorializes the proposed tables outlined in a July/August 2009 The Guides Newsletter. Supra note 15. Moreover,
mere allegations are not sufficient to establish bias. There must be some evidence of actual bias or unfairness by the
physician. See J.C., Docket No. 08-1833 (issued March 23, 2009). Appellant submitted no such evidence in this case.

7

ORDER
IT IS HEREBY ORDERED THAT the December 23, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 12, 2015
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Carol Stream, IL,
Employer
__________________________________________

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

Docket No. 09-1320
Issued: December 17, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 22, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated January 16, 2009, which denied her request for merit
review. Because more than one year elapsed between the Office’s last merit decision dated
February 16, 2007 and the filing of this appeal, the Board lacks jurisdiction to review the merits
of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

The Board issued a merit decision on July 1, 2008 in Docket No. 08-467. However, this decision was final as to
the subject matter appealed and is not subject to review. 20 C.F.R. § 501.6. In a letter dated October 9, 2008, the
Clerk of the Board informed appellant that her petition for reconsideration of the Board’s July 1, 2008 decision was
not timely.

FACTUAL HISTORY
This case has previously been before the Board. On August 1, 2006 appellant then a 37year-old postal mail handler, filed an occupational disease claim alleging depression, anxiety,
panic attacks and persistent nervousness due to actions of Betty Jones, her supervisor. The
Branch of Hearings and Review denied her claim by decision dated February 16, 2007.
Appellant requested reconsideration on July 13, 2007. By decision dated August 7, 2007, the
Office denied her request for reconsideration of the merits. Appellant appealed this decision to
the Board. In a July 1, 2008 decision,2 the Board affirmed the Office’s decisions. The facts and
circumstances of the case as set forth in the Board’s prior decision are incorporated herein by
reference.
On December 26, 2008 appellant requested reconsideration before the Office. She
submitted a November 28, 2006 letter from the employing establishment that found she was
absent without leave beginning September 18, 2006. Appellant submitted medical evidence
dated July 19, 2006 to January 24, 2007. In a letter dated December 19, 2006, the employing
establishment proposed to remove her from service due to her continued absence without leave.
On January 20, 2007 the employing establishment removed appellant from duty effective
February 23, 2007. Following appellant’s grievance of this matter, on January 31, 2008 an
arbiter dismissed her grievance as untimely. She also resubmitted a report dated September 15,
2006 from a Dr. Brendon J. Bereford together with a March 13, 2007 from Dr. Bereford.
By decision dated January 16, 2009, the Office denied appellant’s request for
reconsideration of the merits finding that she failed to submit relevant and pertinent new
evidence.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,3 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.4 When a claimant fails to meet one of the above standards, the Office
will deny the application for reconsideration without reopening the case for review on the
merits.5
ANALYSIS
Appellant requested reconsideration on December 26, 2008.
In support of her
reconsideration request, she submitted documentation regarding her removal from the employing
2

Docket No. 08-467 (issued July 1, 2008).

3

5 U.S.C. §§ 8101-8193, § 8128(a).

4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.608(b).

2

establishment for absence without leave beginning in November 2006. This documentation is
not relevant to the factors previously alleged by appellant as causing or contributing to her
August 1, 2006 emotional condition.
Appellant also submitted medical evidence regarding her emotional condition. As she
has not established any compensable employment factors, the medical evidence of record is not
relevant to the underlying issue in her case.6 Appellant must first establish a compensable
employment factor before the medical evidence is relevant. The Office properly denied her
request for further review of the merits.
CONCLUSION
The Board finds that appellant has failed to submit relevant and pertinent new evidence
with her reconsideration request.
ORDER
IT IS HEREBY ORDERED THAT the January 16, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 17, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. See Margaret S. Krzycki, 43 ECAB 496, 502-03 (1992).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.L., Appellant
and
U.S. POSTAL OFFICE, PROCESSING &
DISTRIBUTION CENTER, Louisville, KY,
Employer
__________________________________________

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

Docket No. 12-771
Issued: August 14, 2012

Case Submitted on the Record

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

JURISDICTION
On February 23, 2012 appellant filed a timely appeal of a January 18, 2012 Office of
Workers’ Compensation Programs’ (OWCP) merit decision denying her traumatic injury claim.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c)(1) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she
sustained a right arm injury in the performance of duty on March 13, 2011.
FACTUAL HISTORY
On March 13, 2011 appellant, then a 46-year-old mail handler technician, filed a
traumatic injury claim alleging that on that date she strained her right lower arm pushing trailer
1

5 U.S.C. § 8101 et seq.

doors up. She stated that she felt a pop in her right forearm followed by pain. In support of her
claim, appellant submitted a note dated March 14, 2011 from Dr. Matthew D. Rassi, a physician
Board-certified in emergency medicine, diagnosing right forearm injury.
OWCP requested additional factual and medical evidence in support of appellant’s claim
by letter dated March 22, 2011 and allowed appellant 30 days for a response. An x-ray dated
March 14, 2011 from Dr. Rassi found no acute abnormalities. Appellant submitted work
restriction notes. On March 24, 2011 a workers’ compensation note diagnosed acute right
forearm pain. On March 23, 2011 a note signed by a physician’s assistant described appellant’s
previous right rotator cuff tear and reconstruction of the forearm tendon. The diagnoses included
right forearm pain, possible tendinitis, tendon tear or separation.
By decision dated April 26, 2011, OWCP denied appellant’s claim finding that she had
not submitted medical evidence diagnosing a compensable condition.
Dr. Akbar Nawab, a Board-certified orthopedic surgeon, completed a note on April 26,
2011 and described appellant’s history as “[a]ccording to the patient she was pushed up
March 30, 2011 and there was sharp elbow and palm pain.” He noted that she had previously
undergone elbow surgery and had experienced pain since this surgery. Dr. Nawab stated that
appellant’s entire forearm was tender. He found no conditions on x-ray and opined that her pain
was likely due to her surgery. Dr. Nawab also stated that appellant was overusing her forearm
and developed tendinitis in the flexor digitorum superficialis as well as extensor tendon. He
stated that he informed her that her pain could be referred from her elbow or that she was
compensating for her elbow condition with her forearm.
A registered nurse signed a note on March 13, 2011 and diagnosed a right forearm injury.
In a note dated April 1, 2011, a review of the magnetic resonance imaging (MRI) scan by the
physician’s assistant revealed a partial thickness scapholunate ligament tear.
Appellant underwent a right forearm MRI scan on March 31, 2011 which demonstrated a
partial thickness tear of scapholunate ligament in its dorsal portion. An MRI scan of her right
elbow was normal. A separate MRI scan of the right forearm dated March 31, 2011 found an
unremarkable MRI scan of the right forearm. Dr. Nawab completed a note reviewing MRI scans
and finding a partial thickness tear of the scapholunate in its dorsal section.
Dr. John Markert, a Board-certified family practitioner, examined appellant on April 11,
2011 and found a partial thickness tear of the scapholunate in its dorsal section which were
confirmed by a two-millimeter distance between the scapholunate joint on x-rays. He stated, “It
appears that [appellant’s] exam[ination] findings and history with her scapholunate partial tear is
related causally to her work-related injury.”
Appellant requested a review of the written record by an OWCP hearing representative
on May 23, 2011. She submitted a narrative statement asserting that as she lifted a tractor trailer
door on March 13, 2011 she felt something like a rubber band snap in her lower forearm.
Appellant noted that she had previously undergone four surgeries on her right arm. The
employing establishment submitted an authorization for examination or treatment (Form CA-16)

2

on March 13, 2011.
December 1, 2011.

Appellant altered her request to a request for an oral hearing on

By decision dated January 18, 2012, OWCP’s hearing representative reviewed the written
record and found that appellant had established that the employment incident occurred as
alleged. However, the hearing representative found that appellant failed to submit a medical
report which included the history of injury as well as a diagnosis and medical opinion regarding
the causal relationship between her diagnosed condition and her history of injury. The hearing
representative affirmed OWCP’s April 26, 2011 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative and substantial evidence,
including the fact that the individual is an “employee of the United States” within the meaning of
FECA and that the claim was timely filed within the applicable time limitation period of FECA,
that an injury was sustained in the performance of duty as alleged and that any disability or
specific condition for which compensation is claimed is causally related to the employment
injury.3 These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.4
OWCP defines a traumatic injury as, “[A] condition of the body caused by a specific
event or incident, or series of events or incidents, within a single workday or shift. Such
condition must be caused by external force, including stress or strain which is identifiable as to
time and place of occurrence and member or function of the body affected.”5 To determine
whether a federal employee has sustained a traumatic injury in the performance of duty, it must
first be determined whether a “fact of injury” has been established. First the employee must
submit sufficient evidence to establish that he and she actually experienced the employment
incident at the time, place and in the manner alleged.6 Second, the employee must submit
sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.7
ANALYSIS
Appellant alleged that she injured her right forearm lifting the door of a tractor trailer in
the performance of duty. OWCP accepted that this incident occurred as alleged. However, it
found that appellant had not submitted sufficiently detailed medical evidence to establish a
2

Id. at §§ 8101-1893.

3

Kathryn Haggerty, 45 ECAB 383, 388 (1994); Elaine Pendleton, 41 ECAB 1143 (1989).

4

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

5

20 C.F.R. § 10.5(ee).

6

John J. Carlone, 41 ECAB 354 (1989).

7

J.Z., 58 ECAB 529 (2007).

3

causal relationship between her accepted employment incident and a diagnosed medical
condition.
Appellant initially submitted hospital reports from Dr. Rassi diagnosing right forearm
injury. While Dr. Rassi supported that she sustained an injury, he did not provide a clear
diagnosis and did not offer medical reasoning explaining how the injury occurred. Dr. Nawab
provided a different description of appellant’s employment incident and attributed her current
condition to her previous surgeries rather than the employment incident of March 13, 2011. He
diagnosed tendinitis in the flexor digitorum superficialis as well as extensor tendon due to
overuse as well as referred pain. In a separate note, Dr. Nawab diagnosed a partial thickness tear
of the scapholunate in its dorsal section. These reports are not sufficient to meet appellant’s
burden of proof as neither Dr. Rassi nor Dr. Nawab provided a clear and detailed history of
injury with a diagnosis of a new condition and supported that diagnosis with an explanation
attributing the condition to appellant’s accepted employment incident of March 13, 2011.
Dr. Markert examined appellant on April 11, 2011 and found a partial thickness tear of
the scapholunate in its dorsal section which were confirmed by a two-millimeter distance
between the scapholunate joint on x-rays. He stated, “It appears that her exam[ination] findings
and history with her scapholunate partial tear is related causally to her work-related injury.”
While Dr. Markert offered an opinion that appellant’s current condition was due to work, he did
not provide a history of injury including the March 13, 2011 employment incident. As appellant
has several other claims for right arm injury, the medical evidence must attribute her current
condition to the March 13, 2011 claim.
Appellant also submitted medical reports signed by a nurse and a physician’s assistant.
She also submitted several physical therapy notes. Neither a nurse nor a physician’s assistant are
considered a physician under FECA.8 As these notes were not signed by the physician the notes
have no probative value in establishing appellant’s claim.
The Board finds that appellant has not submitted the necessary medical evidence
including a history of injury, a diagnosed condition and an opinion on the relationship between
her employment incident and current diagnosis to establish that she sustained a traumatic injury
on March 13, 2011. 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.
OWCP did not specifically address the issue of appellant’s entitlement to medical
expenses. It is required by section 8103 of FECA9 to provide all medical care necessary as a
result of an employment injury. OWCP has broad discretionary authority in the administration
of FECA and must, in fact, exercise such discretion to achieve the objective of section 8103.
Ordinarily, when an employee sustains a job-related injury which may require medical treatment,
the designated agency official shall promptly authorize such treatment by giving the employee a

8

5 U.S.C. §§ 8101-8193, 8101(2); Thomas R. Horsefall, 48 ECAB 180 (1996).

9

Id. at § 8103.

4

properly executed Form CA-16 authorizing medical treatment and expenses within four hours.10
The employing establishment did so in this case. OWCP should determine the reimbursable
medical expenses as a result of this authorized treatment.
CONCLUSION
The Board finds that appellant did not submit the necessary medical opinion evidence to
establish that she sustained a traumatic injury on March 13, 2011.
ORDER
IT IS HEREBY ORDERED THAT the January 18, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 14, 2012
Washington, DC

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

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

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

10

20 C.F.R. § 10.300(b).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
SOCIAL SECURITY ADMINISTRAITON,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 12-769
Issued: August 21, 2012

Case Submitted on the Record

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

JURISDICTION
On February 22, 2012 appellant filed a timely appeal from a February 9, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Because more than 180
days has elapsed since the most recent merit decision dated February 17, 2011 and the filing of
this appeal on February 22, 2012, the Board lacks jurisdiction to review the merits of the claim
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On August 27, 2010 appellant, a 49-year-old claims representative, filed an occupational
disease claim alleging that on March 16, 2010 he developed chest pains and memory loss as a
result of a stressful work environment. He did not stop work.
By letters dated September 16 and 17, 2010, OWCP advised appellant of the type of
factual and medical evidence needed to establish his claim and requested that he submit such
evidence.
Appellant’s supervisor submitted a statement and noted that appellant informed him on
April 14, 2010 during a performance evaluation that he experienced stress and was undergoing
treatment for high blood pressure. He noted that appellant submitted two requests for reasonable
accommodation. Also submitted was a job description for a social insurance specialist.
Appellant submitted an undated statement and asserted that he developed hypertensive
cardiovascular disease and anxiety as a result of work-related stress and anxiety. He noted that
his cardiovascular disease has made it difficult to work as he had shooting chest pains and
elevated blood pressure. Appellant further noted that he experienced migraine headaches which
were aggravated by work stress and caused vision impairment. He reported all of these
conditions to his supervisor and requested reasonable accommodations but his request was
denied because of insufficient medical evidence. Appellant submitted a log from March 16 to
September 27, 2010 which noted meetings with his supervisor regarding his case load, his
inability to keep up with the workload and his performance evaluations.
Appellant was treated by Dr. Surraiya Siddique, a Board-certified family practitioner,
from March 24 to September 21, 2010, for hypertensive cardiovascular disease which was under
control but increased with anxiety and stress at work. Dr. Siddique noted that he experienced
chest pain radiating into his left arm on March 24, 2010 and a stress test revealed elevated blood
pressure and chest discomfort. On July 19, 2010 she noted that appellant presented with chest
pain which he reported only occurred at work and was stress related. Appellant was also treated
by Dr. Bonnie J. Baker, a cardiologist, from May 3 to September 10, 2010, for wandering
parasternal chest discomfort reported to occur at work. On May 3, 2010 he was treated by
Dr. Peter Tang, a Board-certified orthopedist, for worsening bilateral knee pain. On June 3, 2010
Dr. Jose C. DeHoyos, a Board-certified cardiologist, performed a stress test which revealed
symptoms consistent with chest discomfort and hypertensive response. An electrocardiogram
was normal. On June 24, 2010 appellant was treated by Dr. James Haisten, a cardiologist, who
performed an echocardiogram which revealed concentric left ventricular hypertrophy with left
ventricular diastolic dysfunction, left atrial enlargement, mitral regurgitation and pulmonary
artery pressure.
The employing establishment submitted an October 5, 2010 statement from Rich Elmore,
appellant’s supervisor, who noted that, after numerous quality reviews, appellant was placed on a
performance assistance plan on February 11, 2010. The plan was not successful and on May 10,
2010 appellant was placed on an opportunity to perform successfully. Mr. Elmore noted that
before being placed on a performance assistance plan appellant did not report chest pains. He

2

noted that appellant requested reasonable accommodation which was denied because the medical
evidence was insufficient. Also submitted was a copy of the February 23, 2010 performance
assistance plan, the May 10, 2010 opportunity to perform successfully and August 31 and
September 22, 2010 progress interviews.
In a decision dated February 17, 2011, OWCP denied appellant’s claim on the grounds
that the evidence did not support that the employment incidents occurred as alleged.
In an appeal request form dated January 9, 2012, appellant requested reconsideration. He
submitted a document entitled “medical evidence” by an unknown author which summarized his
cardiac care. The document noted appellant was diagnosed with hypertension with chest pain
which was work related. It was noted that he requested reasonable accommodations which was
denied by his employer.2 Also submitted was an x-ray of the lumbar spine dated January 24,
2012 which revealed osteoarthrosis, stable compression fracture at T12, unstable
spondylolisthesis at L5-S1 and discogenic disease. Appellant submitted a January 24, 2012
report from Dr. Siddique who treated appellant for lesions to the face, ear and arm and low back
and hip pain. Dr. Siddique diagnosed allergic rhinitis due to pollen, acute bronchitis, acuter
pharyngitis, atypical chest pain, anxiety, migraine headaches and obesity.
By decision dated February 9, 2012, OWCP denied appellant’s request for
reconsideration on the grounds that the evidence submitted was insufficient to warrant a merit
review.
LEGAL PRECEDENT
Under section 8128(a) of FECA,3 OWCP has the discretion to reopen a case for review
on the merits. OWCP must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provide that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”4

2

The second page of this document is illegible.

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(2).

3

Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.5
ANALYSIS
OWCP’s most recent merit decision dated February 17, 2011 denied appellant’s claim for
an emotional condition. It denied appellant’s January 9, 2012 reconsideration request, without a
merit review and appellant appealed this decision to the Board.
As noted above, the Board does not have jurisdiction over the February 17, 2011 OWCP
decision. The issue presented on appeal is whether appellant met any of the requirements of
20 C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the
claim. In his January 9, 2012 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. He did not identify a specific point of
law or show that it was erroneously applied or interpreted. Appellant did not advance a new and
relevant legal argument. A claimant may be entitled to a merit review by submitting new and
relevant evidence, but appellant did not submit any new and relevant evidence in this case.
Consequently, appellant is not entitled to a review of the merits of his claim based on the first
and second above-noted requirements under section 10.606(b)(2).
With respect to the third requirement, submitting relevant and pertinent new evidence not
previously considered by OWCP, appellant submitted a document entitled “medical evidence”
by an unknown author. However, this report is not relevant as it merely repeats appellant’s
general allegations that were previously considered.6 Therefore, OWCP properly determined
that this evidence did not constitute a basis for reopening the case for a merit review.
Appellant also submitted an x-ray of the lumbar spine dated January 24, 2012 and a
January 24, 2012 report from Dr. Siddique. However, this evidence is not relevant since the
underlying issue is whether appellant has established a compensable employment factor.7
Therefore, OWCP properly determined that this evidence did not constitute a basis for reopening
the case for a merit review.
Therefore, the Board finds that OWCP properly determined that appellant is not entitled
to a review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2), and properly denied his January 9, 2012 request for reconsideration.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
5

Id. at § 10.608(b).

6

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case; see Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393,
398 (1984); Bruce E. Martin, 35 ECAB 1090, 1093-94 (1984).
7

See Lori A. Facey, 55 ECAB 217 (2004) (where a claimant has not established a compensable employment
factor, the Board has held that it need not address the medical evidence of record).

4

specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
On appeal appellant asserts that he submitted sufficient evidence to support that he
sustained an emotional condition causally related to his employment. As noted above, the Board
does not have jurisdiction over the merits of his claim, only whether he submitted sufficient
evidence to warrant reopening of his claim for a merit review under 20 C.F.R. § 10.606(b)(2).
The evidence submitted with appellant’s January 9, 2012 reconsideration request was insufficient
to warrant a merit review of his decision.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the February 9, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 21, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5