United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.T., Appellant
and
U.S. POSTAL SERVICE, MARKET SQUARE
POST OFFICE, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 07-268
Issued: April 12, 2007

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 November 2, 2006 appellant filed a timely appeal from a May 19, 2006 decision of
the Office of Workers’ Compensation Programs that denied his request for reconsideration
without conducting a merit review. He also appealed a November 4, 2005 merit decision of an
Office hearing representative that affirmed the denial of his claim for recurrence of disability.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merit and
nonmerit decisions.
ISSUE
The issues are: (1) whether appellant met his burden of proof in establishing that he
sustained a recurrence of disability on May 20, 1999 that was causally related to his accepted
occupational disease; and (2) whether the Office properly denied his request for reconsideration
without conducting a merit review.

FACTUAL HISTORY
On August 21, 2000 appellant, then a 36-year-old letter carrier, filed an occupational
disease claim stating that he developed nerve damage, pain and discomfort and spasms in his
neck, arm and shoulder. He stated that he first became aware of the disease or illness on
October 16, 1998 and first related it to his employment on May 19, 1999. Appellant indicated
that he stopped work following a nonoccupational motor vehicle accident on October 16, 1998
and returned to work under medical restrictions in March 1999, but was required to perform full
duty. He stopped work on May 20, 1999. The Office accepted appellant’s claim for brachial
neuritis on November 22, 2000 and advised him how to file a claim for compensation if he
experienced wage loss.
On August 5, 2003 the Office received a November 6, 1999 claim for recurrence of
disability for which appellant advised that he stopped work on May 20, 1999. Appellant listed
his original injury as October 16, 1998 and noted that he was involved in an accident on
October 16, 1998 and returned to work in March 1999. He stated that his recurrence of disability
was precipitated by the employing establishment’s refusal to assign him light-duty work in
accordance with his medical restrictions. Appellant also asserted that the requirements of his
job, including casing, carrying and lifting mail, caused him to experience constant neck, back
and shoulder pain, which ultimately caused nerve damage. On February 28, 2003 the Office also
received a November 6, 1999 claim for compensation (Form CA-7), beginning
October 16, 1998.
In support of his claim for recurrence of disability, appellant submitted numerous reports
from Dr. John Szostek, a chiropractor, who diagnosed cervical radiculitis with associated
paresthesias, as well as chronic moderate cervical strain/sprain with associated cervical somatic
dysfunction, cervical ligament instability and cervicalgia.
On June 3, 2004 the Office requested additional information concerning appellant’s
claim. In response, appellant forwarded a June 22, 1999 report of diagnostic testing from
Dr. Eusebio Nunez, a Board-certified physiatrist, diagnosing chronic neck pain syndrome with
radicular symptoms in the left upper extremity and left brachial plexus lesion. Dr. Nunez
indicated that appellant was involved in a motor vehicle accident on October 16, 1998. In a
June 22, 1999 narrative report, he also noted the history of the motor vehicle accident on
October 16, 1998 and recorded the same diagnoses. Dr. Nunez recommended a home exercise
regimen and chiropractic care. In a June 14, 1999 Form report, he indicated that appellant had
full range of motion in both the cervical and lumbar spine and normal strength in his upper
extremities. In a July 27, 2000 report, Dr. Nunez indicated that appellant complained of
persistent neck and shoulder pain and had been on leave from employment since May 20, 1999
as he was unable to lift the heavy bags of mail required of him and there was no available lightduty work. On July 1, 2004 Dr. Nunez stated that appellant received a consultation and
electromyography (EMG) study in connection with a “work[-]related injury” and that he was
unable to work from May 20, 1999 through November 7, 2000, enclosed the results from a
June 14, 1999 EMG study that indicated prolonged left ulnar F-wave and referenced appellant’s
October 16, 1998 accident.

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Also provided was a December 11, 1998 report from Dr. William Mangino II, an
anesthesiologist, indicating that appellant had been in good health and able to work without
difficulty before his October 16, 1998 motor vehicle accident. He found that appellant had
“diminished range of motion of the cervical spine with paracervical spasm and tenderness and
pain on palpation of the cervical spinous processes from C4 to C7.” Dr. Mangino diagnosed
bilateral cervical radiculopathy, bilateral lumbar radiculopathy, bilateral scalene, trapezius and
lumbar myofascial pain syndrome, cervical, thoracic and lumbar sprain/strain and contusion and
possible left brachial plexus traction injury or thoracic outlet syndrome. He concluded: “Within
a reasonable degree of medical certainty, I do feel that the above-mentioned diagnoses are as a
direct result of the injuries that [appellant] sustained on impact, in a motor vehicle accident on
October 16, 1998.” Dr. Mangino also recommended that, since appellant was “a [l]etter [c]arrier
whose job requires physical type of work, I would suggest keeping him out of work for several
weeks until he begins to improve with therapy.” The December 29, 1999 computerized
tomography (CT) scan reports from Dr. R. Scott Scheer, a radiologist, noted appellant’s history
of trauma sustained in a motor vehicle accident and stated that testing revealed normal results for
his cervical and lumbosacral spine.
Appellant also submitted November 20, 1998 and July 9, 1999 reports from Dr. Joseph J.
Davidson, a chiropractor, who diagnosed post-traumatic acute cervicobrachial syndrome,
cervicalgia, cervical kinesalgia, cervical segmental dysfunction, cervical sprain/strain, pain in the
thoracic spine, thoracic segmental dysfunction and thoracic sprain/strain. Dr. Davidson indicated
that appellant’s conditions were the result of a motor vehicle accident on October 16, 1998. In a
report with an illegible date, Dr. Davidson indicated that it appeared that appellant “has
symptoms that stem from job.” Appellant also provided additional reports from Dr. Szostek that
reiterated his previous diagnoses and noted his status. Also provided was a November 29, 1998
unsigned “accident examination” indicating that, following his motor vehicle accident, appellant
had muscle spasms in the cervical and thoracic spine as well as swelling and edema and
decreased range of motion in the cervical spine.
By decision dated August 13, 2004, the Office denied appellant’s claim for recurrence of
disability on the grounds that the medical evidence was insufficient to establish that his claimed
May 20, 1999 recurrence of disability was causally related to appellant’s accepted brachial
neuritis.
Appellant requested an oral hearing and provided a November 9, 2004 report from
Dr. Byrne L. Solberg, a Board-certified, physiatrist who advised that an EMG and nerve
conduction study indicated left C6 and C8 acute cervical radiculopathy.
An oral hearing was conducted on August 16, 2005. The hearing representative noted
that appellant’s claim had been accepted for medical care only and the Office had not authorized
a period of disability. At the hearing, appellant confirmed that his current claim was for a
recurrence of disability.
Following the hearing, appellant submitted an August 18, 2005 report from Dr. Despina
Tsirakoglou, his treating physician, who indicated that appellant had severe neck pain and
cervical spondylosis, as well as “some narrowing of central spinal canal and left neural foramina
encroachment.” In a handwritten addendum, Dr. Tsirakoglou noted that appellant sustained an

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injury at work on May 17, 1999 and was disabled since May 20, 1999. Appellant also submitted
the results of a magnetic resonance imaging (MRI) scan conducted on August 17, 2005 by
Dr. John J. Manning1 who revealed disc bulging at several levels in appellant’s cervical spine.
By decision dated November 4, 2005, the hearing representative affirmed the denial of
appellant’s recurrence of disability claim. The hearing representative found that his conditions
were due to his October 16, 1998 nonoccupational motor vehicle accident and that the medical
evidence did not establish that he sustained a recurrence of disability causally related to his
employment.
Appellant requested reconsideration on March 13, 2006. With his request, additional
copies of the August 17, 2005 MRI scan and Dr. Tsirakoglou’s August 18, 2005 report were
provided. In an undated statement, appellant asserted that the employing establishment caused
an “aggravation to a preexisting injury” when, upon returning from leave in connection with his
nonoccupational motor vehicle accident, he was required to perform full-duty work. Appellant
also stated that “there was never a reoccurrence because I have never returned back to work since
the CA-2a was filed for May 17, 1999, the only reason that a CA-2a form was filed” was because
he was told by the Office that it had to be filed “in order for my file to be opened.”
By decision dated May 19, 2006, the Office denied appellant’s request for
reconsideration without conducting a merit review.
LEGAL PRECEDENT -- ISSUE 1
Section 10.5(x) of the Office’s regulations provides, in pertinent part:
“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
had resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness.”2
The Board has held that in order to establish a claim for a recurrence of disability,
appellant must establish that he suffered a spontaneous material change in the employmentrelated condition without an intervening injury.3 Appellant has the burden of establishing that he
sustained a recurrence of a medical condition4 that is causally related to his accepted
employment injury. To meet his burden, appellant must furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes
1

Dr. Manning’s specialty could not be ascertained from the record.

2

20 C.F.R. § 10.5(x) (2002).

3

Carlos A. Marrero, 50 ECAB 117 (1998).

4

Recurrence of medical condition means a documented need for further medical treatment after release from
treatment for the accepted condition or injury when there is no accompanying work stoppage. Continuous treatment
for the original condition or injury is not considered a “need for further medical treatment after release from
treatment,” nor is an examination without treatment. 20 C.F.R. § 10.5(y) (2002).

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that the condition is causally related to the employment injury and supports that conclusion with
sound medical rationale.5 Where no such rationale is present, the medical evidence is of
diminished probative value.6
ANALYSIS -- ISSUE 1
The Office accepted appellant’s claim for brachial neuritis and authorized medical
treatment. Appellant then submitted a claim for recurrence of disability stating that he was
initially injured on October 16, 1998 the date of his nonoccupational motor vehicle accident and
sustained a recurrence of disability on approximately May 20, 1999, after he returned to full-duty
employment. The Board finds that he did not meet his burden of proof in establishing that he
sustained a recurrence of disability that was causally related to his accepted condition.
The medical evidence supports that appellant was unable to work during the period
May 20, 1999 through November 7, 2000. However, the evidence does not establish that his
disability during that time period was causally related to the accepted employment condition,
brachial neuritis. Appellant submitted several reports from Dr. Nunez, indicating that he had
consistently complained of neck and shoulder pain since his nonoccupational motor vehicle
accident. In a July 27, 2000 report, Dr. Nunez noted that appellant had to take a leave of absence
from his job, as he was unable to carry mailbags and there was no light-duty assignment
available for him. Dr. Nunez did not, however, explain how appellant’s inability to carry
mailbags was caused by employment factors, rather than by appellant’s nonoccupational motor
vehicle accident. Additionally, in a July 1, 2004 report, Dr. Nunez indicated that appellant took
leave from work between May 20, 1999 and November 7, 2000, due to a “work[-]related injury.”
However, he did not identify the injury to which he referred, nor did he discuss the relevance of
appellant’s nonoccupational injury of October 16, 1998. Therefore, the Board finds that
Dr. Nunez’s reports are based on an incomplete medical history7 and are not fortified by
sufficient explanation or rationale8 and accordingly are of diminished probative value.
Dr. Tsirakoglou’s August 18, 2005 report is also insufficient to establish appellant’s
claim. She noted that he had been on leave from work since May 20, 1999 due to an “injury at
work” on May 17, 1999. Dr. Tsirakoglou did not identify the injury to which she referred and
did not further address the question of causal relationship between appellant’s claimed
recurrence of disability and employment factors. To the extent that her report supports causal
5

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

6

Albert C. Brown, 52 ECAB 152 (2000).

7

See Leonard J. O’Keefe, 14 ECAB 42, 48 (1962) (where the Board held that medical opinions based upon an
incomplete history or which are speculative or equivocal in character have little probative value).
8

In order to be considered rationalized medical evidence, a physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the claimant’s specific employment factors. Victor J. Woodhams,
41 ECAB 345, 352 (1989); Steven S. Saleh, 55 ECAB 169, 172 (2003). The Board has held that a medical opinion
not fortified by medical rationale is of little probative value. Caroline Thomas, 51 ECAB 451, 456 n.10 (2000);
Brenda L. Dubuque, 55 ECAB 212, 217 (2004).

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relationship, Dr. Tsirakoglou did not provide any medical rationale to explain the basis of her
opinion.9 Accordingly, the Board finds that Dr. Tsirakoglou’s report is of little probative value
on the question of whether appellant’s claimed recurrence of disability was causally related to his
accepted medical condition. The Board notes that appellant also submitted reports from
Dr. Scheer and Dr. Solberg. However, these reports do not address causal relationship, but
merely state the physicians’ findings upon performing diagnostic tests. Furthermore,
Dr. Mangino’s December 11, 1998 report, opining that appellant’s injuries were the direct result
of his nonoccupational motor vehicle accident is insufficient as it was prepared before the date of
the claimed recurrence of disability.
The record also contains numerous reports from Dr. Szostek and Dr. Davidson.
However, the Board notes that as Dr. Szostek and Dr. Davidson are chiropractors and did not
diagnose a subluxation of the spine based on x-rays, their reports do not constitute competent
medical evidence.10 Therefore, Dr. Szostek’s and Dr. Davidson’s reports are not probative on
the question of whether appellant sustained a recurrence of disability that was causally related to
his accepted condition.
Accordingly, the Board finds that appellant did not meet his burden of proof in
establishing that his claimed May 20, 1999 recurrence of disability was causally related to his
initially accepted condition of brachial neuritis.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128 of the Federal Employees’ Compensation Act, the Office has
discretion to grant a claimant’s request for reconsideration and reopen a case for merit review.
Section 10.606(b)(2) of the implementing federal regulations provides guidance for the Office in
using this discretion.11 The regulations provide that the Office should grant a claimant merit
review when the claimant’s request for reconsideration and all documents in support thereof:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by [the
Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”12

9

See id.

10

Under the Act, “the term ‘physician’ includes chiropractors only to the extent that their reimbursable services
are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by
x-ray to exist.” 5 U.S.C. § 8101(2) (1993); Isabelle Mitchell, 55 ECAB 623 (2001).
11

20 C.F.R. § 10.606(b)(2) (1999).

12

Id.

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Section 10.608(b) provides that when an application for review of the merits of a claim
does not meet at least one of the three requirements enumerated under section 10.606(b)(2), the
Office will deny the application for reconsideration without reopening the case for a review on
the merits.13 When reviewing an Office decision denying a merit review, the function of the
Board is to determine whether the Office properly applied the standards set forth at section
10.606(b)(2) to the claimant’s application for reconsideration and any evidence submitted in
support thereof.14
ANALYSIS -- ISSUE 2
The Board finds that the Office properly denied appellant’s request for reconsideration
without conducting a merit review. Appellant did not submit new and relevant medical evidence
in connection with his reconsideration request. Rather, he submitted an additional copy of
Dr. Tsirakoglou’s August 18, 2005 report which had been submitted and received into the record
prior to the Office’s final decision. Appellant also submitted an incomplete version of
Dr. Manning’s previously submitted August 17, 2005 report. The Board has held that
submission of duplicative or repetitious evidence is insufficient to require the Office to reopen a
case for merit review.15 Accordingly, the Board finds that appellant did not submit new and
relevant evidence sufficient to warrant a merit review by the Office.
Appellant also did not assert that the Office misinterpreted a point of law, nor did he
advance a new legal argument. Rather, appellant submitted an undated statement and repeated
his assertion that his job requirements aggravated a preexisting injury, namely, his October 16,
1998 nonoccupational motor vehicle accident. This argument is repetitious of appellant’s
previous arguments and consequently does not suffice to require the Office to conduct a merit
review. Accordingly, the Board finds that appellant’s reconsideration request did not meet the
statutory conditions requiring the Office to reopen his claim for merit review.
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that on
May 20, 1999 he sustained a recurrence of disability that was causally related to his accepted
condition. The Board also finds that the Office properly denied appellant’s claim without
conducting a merit review.

13

20 C.F.R. § 10.608(b) (1999).

14

Annette Louise, 54 ECAB 783 (2003).

15

Edward W. Malaniak, 51 ECAB 279 (2000); Eugene F. Butler, 36 ECAB 393 (1984); Jerome Ginsburg,
32 CAB 31 (1980).

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ORDER
IT IS HEREBY ORDERED THAT the May 19, 2006 and November 4, 2005 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 12, 2007
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

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

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

Docket No. 12-413
Issued: July 5, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 21, 2011 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) November 28, 2011 decision denying entitlement to a
schedule award and a request for hearing aids. 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.
ISSUES
The issues are: (1) whether appellant has established that he has a ratable hearing loss
entitling him to a schedule award; and (2) whether OWCP properly exercised its discretion in
denying authorization for hearing aids.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On March 30, 2011 appellant, then a 59-year-old electrician supervisor, filed an
occupational disease claim (Form CA-2) alleging that he sustained a binaural hearing loss due to
employment-related noise exposure. He submitted personnel records and results of audiograms
dated 1977 to 2011, which showed varying degrees of binaural hearing loss.
In a March 23, 2011 report, Dr. Gerald G. Randolph, a Board-certified otolaryngologist,
forwarded an audiogram performed by Amy Becken, a certified audiologist. It revealed a
bilateral high frequency sensorineural hearing loss, with speech reception thresholds of 15
decibels in the right ear and 5 decibels in the left ear. Discrimination scores were measured at 96
percent in the right ear and 100 percent in the left ear. The audiogram reflected testing at the
frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second and revealed the following
decibel losses: 15, 15, 10 and 20 for the right ear and 5, 0, 10 and 25 for the left ear respectively.
Dr. Randolph opined that appellant’s workplace exposure was sufficient as to intensity and
duration to have caused the loss in question. He diagnosed noise-induced sensorineural hearing
loss and opined that this condition was due to noise exposure at appellant’s federal employment.
In accordance with the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides), Dr. Randolph concluded that appellant
had a zero percent binaural hearing loss. He stated that appellant was a borderline candidate for
hearing aid evaluation and fitting.
In a letter dated September 8, 2011, OWCP requested additional information from
Dr. Randolph, including a certificate of calibration regarding the March 23, 2011 audiogram, a
diagnosis, examination findings and comments on the development of appellant’s hearing loss in
light of his review of his medical record.
In an October 20, 2011 supplemental report, Dr. Randolph provided examination
findings, reiterated his diagnosis of noise-induced sensorineural hearing loss and opined that this
condition was due to noise exposure at appellant’s federal employment. Based upon the results
of the March 23, 2011 audiogram, he concluded that appellant did not previously have a ratable
hearing loss. Dr Randolph stated that appellant’s hearing loss, for the most part, affected the
higher frequencies and that his hearing through the speech frequencies was nearly normal. He
opined that at most, appellant was a borderline candidate for hearing aid evaluation and fitting.
Dr Randolph provided a certificate reflecting that the audiometer was calibrated on
November 11, 2010.
On November 2, 2011 OWCP accepted appellant’s claim for bilateral sensorineural
hearing loss.
The case record was forwarded to OWCP’s medical adviser for review and an opinion as
to whether appellant had a ratable hearing loss. In a November 15, 2011 report, the medical
adviser reviewed Dr. Randolph’s reports and the otologic and audiologic testing performed.
Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second
revealed decibel losses of 5, 0, 10 and 25 respectively. These decibel losses were totaled at 40
decibels and were divided by 4 to obtain the average hearing loss of 10 decibels. This average
loss was then reduced by 25 decibels (25 decibels being discounted as discussed above) to equal

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a negative figure. Testing for the right ear revealed decibel losses of 15, 15, 10 and 20
respectively. These decibel losses were totaled at 60 decibels and were divided by 4 to obtain
the average hearing loss of 15 decibels. This average loss was then reduced by 25 decibels,
resulting in a negative figure. The medical adviser concluded that the calculations showed that
appellant had a zero percent binaural sensorineural hearing loss under the sixth edition of the
A.M.A., Guides. The medical adviser recommended that hearing aids not be authorized.
By decision dated November 28, 2011, OWCP found that appellant did not have a ratable
hearing loss that would entitle him to a schedule award. It also found that the weight of the
medical evidence established that he would not benefit from hearing aids.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA2 and its implementing regulations3 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. FECA does not, however,
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.4
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged.6 Then, the fence of 25 decibels is deducted.
The remaining amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural
hearing loss.7 The binaural loss is determined by calculating the loss in each ear using the
formula for monaural loss; the lesser loss is multiplied by five, then added to the greater loss and
the total is divided by six to arrive at the amount of the binaural hearing loss.8 The Board has
concurred in OWCP’s adoption of this standard for evaluating hearing loss.9

2

Id. at § 8107.

3

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

4

Id.

5

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4b (January 2010).

6

Id.

7

Id.

8

Id.

9

See Donald Stockstad, 53 ECAB 301 (2002), petition for recon., granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).

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ANALYSIS -- ISSUE 1
The evidence of record is insufficient to establish that appellant is entitled to a schedule
award for his hearing loss in accordance with the sixth edition of the A.M.A., Guides.
On November 15, 2011 OWCP’s medical adviser reviewed the otologic and audiologic
testing performed on appellant and properly applied OWCP’s standardized procedures to this
evaluation. Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles
per second revealed decibel losses of 5, 0, 10 and 25 respectively. These decibel losses were
totaled at 40 decibels and were divided by 4 to obtain the average hearing loss of 10 decibels.
Reducing this average loss by 25 decibels resulted in a negative figure. Testing for the right ear
revealed a total loss of 60 decibels (15, 15, 10 and 20, respectively), which when divided by 4,
produced an average hearing loss of 15 decibels. Reducing this average loss by 25 decibels
again resulted in a negative figure. Based upon these calculations, the medical adviser properly
concluded that appellant had a zero percent binaural sensorineural hearing loss and, therefore,
did not have a ratable hearing loss under the relevant standards of the A.M.A., Guides.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA provides that the United States shall furnish to an employee
who is injured while in the performance of duty, the services, appliances and supplies prescribed
or recommended by a qualified physician, which the Secretary of Labor considers likely to cure,
give relief, reduce the degree or the period of any disability or aid in lessening the amount of any
monthly compensation.10 OWCP must therefore exercise discretion in determining whether the
particular service, appliance or supply is likely to affect the purposes specified in FECA.11
ANALYSIS -- ISSUE 2
The Board finds that OWCP did not abuse its discretion under section 8103(a) by
denying authorization for hearing aids.
As noted, hearing aids and other medical benefits may still be payable if an
employment-related hearing loss exists. OWCP will furnish appliances and supplies prescribed
or recommended by a qualified physician if they are deemed likely to cure, give relief, reduce the
degree or the period of any disability or aid in lessening the amount of any monthly
compensation.12 In this case, however, appellant’s physician did not prescribe or recommend
that appellant receive hearing aids.
In his March 23 and October 11, 2011 reports, Dr. Randolph stated that appellant’s
hearing loss, for the most part, affected the higher frequencies and that his hearing through the
speech frequencies was nearly normal. He opined that at most, appellant was a borderline
10

5 U.S.C. § 8103(a).

11

Marjorie S. Geer, 39 ECAB 1099 (1988) (OWCP has broad discretionary authority in the administration of
FECA and must exercise that discretion to achieve the objectives of section 8103).
12

Supra note 10.

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candidate for hearing aid evaluation and fitting. These reports did not offer a clear, rationalized
explanation of how hearing aids were medically necessary due to the accepted condition.13
Rather, Dr. Randolph’s opinion was speculative as to whether appellant’s near-normal hearing
through speech frequencies would be improved by the use of a hearing aid. Therefore, OWCP’s
denial of appellant’s request was reasonable under the circumstances. The Board finds that
OWCP did not abuse its broad discretion in denying authorization for hearing aids.14
CONCLUSION
The Board finds that appellant has failed to establish that he sustained a ratable hearing
loss entitling him to a schedule award. The Board further finds that OWCP did not abuse its
discretion in denying authorization for hearing aids.
ORDER
IT IS HEREBY ORDERED THAT the November 28, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 5, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

13

J.Y., Docket No. 11-971 (issued November 17, 2011).

14

Appellant is not precluded from seeking authorization for hearing aids or other appropriate medical treatment in
the future. See Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter
3.400.3(d)(2) (October 1990); Raymond VanNett, 44 ECAB 480 (1993).

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

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

Docket No. 17-0811
Issued: August 1, 2017

Case Submitted on the Record

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

JURISDICTION
On March 1, 2017 appellant filed a timely appeal from an October 27, 2016 merit
decision and a December 29, 2016 nonmerit 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.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish a right wrist
condition causally related to factors of her federal employment; and (2) whether OWCP properly
denied appellant’s request for a review of the written record as untimely filed pursuant to
5 U.S.C. § 8124.
On appeal, appellant contends that an attending physician’s report (Form CA-20) from
Dr. Polina Sayess, an attending Board-certified family practitioner, found that her right wrist

1

5 U.S.C. § 8101 et seq.

injury is work related. Appellant asserts that her right wrist injury was caused by repetitive work
duties.
FACTUAL HISTORY
On August 23, 2016 appellant, then a 54-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that her tendinitis condition was caused or aggravated by
repetitive wrist action while delivering and casing mail at the office into five shelves. She
became aware of the condition and realized its relationship to her federal employment on
August 22, 2016. Appellant stopped work on the filing date of her claim and returned to work on
August 29, 2016. The employing establishment submitted a September 2016 employee
information sheet.
By letter dated September 19, 2016, OWCP informed appellant of the deficiencies of her
claim and requested that she submit medical evidence and respond to its inquiries.
On September 26, 2016 appellant responded to OWCP’s queries. She claimed that her
right wrist tendinitis was caused by work duties that included casing flats into a five-shelf case
and placing each piece in a six-inch shelf, one hour to one and one-half hours, five days and
sometimes six days a week; delivering mail by holding it in her right hand, opening a mailbox,
and putting it inside of the mailbox, six to eight hours a day, five days and sometimes six days a
week; walking her loops, two and one-half hours to three and one-half hours a day, five to six
days a week; and scanning packages while holding the scanner along with flats and letter mail in
her arms and hand, bending her wrist at odd angles to scan the packages, and driving a vehicle
probably four hours a day and sometimes more when she worked overtime, five to six days a
week. Appellant related that she noticed her wrist pain at the end of the workday on
August 22, 2016. Her pain progressively worsened at night and on August 23, 2016 she sought
medical treatment. Appellant noted her medical treatment and related that her wrist felt better
after not using it for six days. She changed her work habits to prevent further pain. Appellant
altered her work by using two hands to bend something thick into the case and not holding mail
in the same hand she used to open mailboxes.
In an August 30, 2016 Form CA-20 report, Dr. Sayess noted a history that since
August 22, 2016 appellant had wrist pain. She indicated that appellant performed repetitive wrist
motions at work as a mail carrier. Dr. Sayess provided findings on examination and diagnosed
right wrist tendinitis. She checked a box marked “yes” indicating that appellant’s condition was
caused or aggravated by an employment activity. Dr. Sayess indicated that appellant was totally
disabled from August 22 to 29, 2016 and advised that she was able to resume her regular work
on August 29, 2016.
By decision dated October 27, 2016, OWCP denied appellant’s occupational disease
claim. It found that Dr. Sayess did not provide a rationalized medical opinion explaining how
the accepted employment factors caused or contributed to the diagnosed condition.
In an appeal request form dated November 28, 2016, postmarked November 29, 2016,
and received by OWCP’s Branch of Hearings and Review on December 6, 2016, appellant

2

requested a review of the written record by an OWCP hearing representative. She submitted a
November 26, 2016 report from Dr. Sayess who assessed new right wrist pain.
By decision dated December 29, 2016, a representative of the Branch of Hearings and
Review denied appellant’s request for a review of the written record as it was untimely filed.
She found that the request was not postmarked within 30 days of the issuance of the October 27,
2016 OWCP merit decision. After exercising its discretion, the hearing representative further
found that the issue in the case could equally well be addressed through OWCP’s reconsideration
process.
LEGAL PRECEDENT -- ISSUE 1
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, 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 and/or specific condition for which compensation is claimed are causally related to the
employment injury.2 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable 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.4
ANALYSIS -- ISSUE 1
OWCP accepted as factual that appellant performed the work duties of a letter carrier,
which involved casing and delivering mail. The Board finds, however, that the medical evidence
of record is insufficient to establish that she sustained a right wrist condition caused or
aggravated by the accepted work factors.
2

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

3

S.P., 59 ECAB 184 (2007); Victor J. Woodhams, 41 ECAB 345 (1989); Joe D. Cameron, 41 ECAB 153 (1989).

4

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id.

3

Dr. Sayess’ August 30, 2016 Form CA-20 report provided a history that appellant
performed repetitive wrist motions while working as a mail carrier and diagnosed right wrist
tendinitis. She checked a box marked “yes” indicating that the condition was caused or
aggravated by an employment activity and found that appellant was totally disabled from
August 22 to 29, 2016. However, the Board has held that a checkmark notation supporting
causation, without supporting rationale, is of limited probative value and is insufficient to
establish the claim.5 Dr. Sayess did not explain how or why appellant’s diagnosed condition and
resultant disability were caused or contributed to by the accepted employment factors. Thus, the
Board finds that her report is insufficient to meet appellant’s burden of proof.
Appellant’s belief that factors of employment caused or aggravated her condition is
insufficient, by itself, to establish causal relationship.6 The issue of causal relationship is a
medical one and must be resolved by probative medical opinion from a physician. The Board
finds that there is insufficient medical evidence of record to establish that appellant’s right wrist
condition was caused or aggravated by the established employment factors. Appellant, therefore,
did not meet her burden of proof.
On appeal, appellant contends that Dr. Sayess’ Form CA-20 report found that her right
wrist injury is work related. She asserts that her right wrist injury was caused by repetitive work
duties. For the reasons stated above, however, Dr. Sayess failed to provide any medical rationale
on the issue of the causal relationship between appellant’s right wrist condition and the
established work factors.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) 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 or her claim before a representative of the
Secretary.7 Sections 10.617 and 10.618 of the federal regulations implementing this section of
FECA provide that a claimant shall be afforded a choice of an oral hearing or a review of the
written record by a representative of the Secretary.8 A claimant is entitled to a hearing or review
of the written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.9 Although there is no right to a review of the written record or an oral hearing if
not requested within the 30-day time period, OWCP may within its discretionary powers grant or
5

See D.S., Docket No. 15-1930 (issued January 30, 2016).

6

20 C.F.R. § 10.115(e); Phillip L. Barnes, 55 ECAB 426, 440 (2004).

7

5 U.S.C. § 8124(b)(1).

8

20 C.F.R. §§ 10.616, 10.617.

9

Id. at § 10.616(a).

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deny his or her request and must exercise its discretion.10 Its procedures require that it exercise
its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration under section 8128(a).11
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly determined that appellant’s request for a review of
the written record was untimely filed as it was made more than 30 days after the issuance of
OWCP’s October 27, 2016 merit decision. The November 28, 2016 form, on which appellant
requested the review, was postmarked on November 29, 2016. The time limitation to request a
review of the written record from OWCP’s Branch of Hearings and Review expired on Saturday,
November 26, 2016, 30 days after OWCP’s October 27, 2016 decision. As November 26, 2016
was a Saturday, appellant had until Monday, November 28, 2016 to file her appeal.12 However,
her request was postmarked November 29, 2016 and was untimely. Section 8124(b)(1) sets an
unequivocal time limitation for requesting a review of the written record.13 Because the request
was untimely filed, appellant was not entitled to a review of the written record as a matter of
right under section 8124(b)(1) of FECA.
Although appellant’s request for a review of the written record was untimely filed,
OWCP has the discretionary authority to grant the request and it must exercise such discretion.
In its December 29, 2016 decision, it properly exercised its discretion by notifying appellant that
it had considered the matter in relation to the issue involved and 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. An abuse of discretion is generally shown
through proof of manifest error, a clearly unreasonable exercise of judgment, or actions taken
which are contrary to both logic and probable deductions from established facts.14 In this case,
there is no evidence of record that OWCP abused its discretion by denying appellant’s request
for a review of the written record. Accordingly, the Board finds that OWCP properly denied her
November 28, 2016 request for a review of the written record.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof to establish a right
wrist condition causally related to factors of her federal employment. The Board further finds
that OWCP properly denied her request for a review of the written record as untimely filed
pursuant to 5 U.S.C. § 8124.
10

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

11

See R.T., Docket No. 08-0408 (issued December 16, 2008).

12

See John B. Montoya, 43 ECAB 1148 (1992). The Board has held that, in computing a time period, the date of
the event from which the designated period of time begins to run shall not be included while the last day of the
period so computed shall be included unless it is a Saturday, a Sunday, or a legal holiday.
13

See William F. Osborne, 46 ECAB 198 (1994).

14

Samuel R. Johnson, 51 ECAB 612 (2000).

5

ORDER
IT IS HEREBY ORDERED THAT the December 29 and October 27, 2016 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 1, 2017
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.O., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Albuquerque, NM, Employer
__________________________________________

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

Docket No. 11-1347
Issued: March 7, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On May 10, 2011 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) merit decision dated December 7, 2010 which denied
appellant’s claim. She also appealed a January 6, 2011 decision which denied appellant’s
request for reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant has met her burden of proof in establishing that she
sustained a left hip injury in the performance of duty; and (2) whether OWCP properly denied
appellant’s request for reconsideration, pursuant to 8128(a).

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On October 20, 2010 appellant, then a 55-year-old nurse, filed a traumatic injury claim,
alleging that, on August 25, 2010, while transferring multiple patients from bed to an examining
table, she injured her left hip. She did not stop work.
By letter dated October 26, 2010, OWCP advised appellant of the type of factual and
medical evidence needed to establish her claim and requested that she submit such evidence,
particularly requesting that appellant submit a comprehensive medical report from her treating
physician which included a reasoned explanation as to how the specific work factors or incidents
identified by appellant had contributed to her claimed injury.
Appellant was treated by a physician’s assistant on October 15, 2010, who noted
appellant could return to work with restrictions including no lifting patients. The physician’s
assistant noted that appellant’s hip pathology was being investigated and her recovery required
rest. In an October 18, 2010 statement, appellant asserted that her left hip began clicking and
giving out since August 25, 2010. She noted transferring patients from bed to examining tables
and experiencing pain which progressed. Further, appellant indicated that she sought treatment
from an orthopedist on October 15, 2010 who suspected a torn labrum and recommended a
magnetic resonance imaging (MRI) scan. She informed her supervisors of her condition and
they could not accommodate her restrictions.
In a December 7, 2010 decision, OWCP denied appellant’s claim on the grounds that she
failed to establish fact of injury noting that the medical evidence failed to contain a medical
diagnoses in connection with the injury or events.
In a December 24, 2010 appeal form, appellant requested reconsideration. In a statement
dated December 24, 2010, appellant asserted that she attempted to get an MRI scan but she had
scheduling problems. She indicated that she did not realize that being treated by a physician’s
assistant was inadequate to establish her claim and advised that she had an appointment with a
physician on January 10, 2011 and would send a report.
In a January 6, 2011 decision, OWCP denied appellant’s reconsideration request finding
that the request was insufficient to warrant review of the prior decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of her claim including the fact that the individual is an employee of the United States
within the meaning of FECA, that the claim was filed within the applicable time limitation of
FECA, that an injury was sustained in the performance of duty as alleged and that any disability
and/or specific condition for which compensation is claimed is causally related to the
employment injury. 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.2

2

Gary J. Watling, 52 ECAB 357 (2001).

2

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. Generally, 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.3 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a 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, based on a complete factual and medical
background, supporting such a causal relationship.4
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.6
ANALYSIS
Appellant alleged that she sustained a left hip injury after transferring multiple patients
from bed to an examining table. The Board notes that the evidence supports that the incident,
transferring patients, occurred on August 25, 2010 as alleged. The Board finds, however, that
the medical evidence is insufficient to establish that appellant sustained a left hip injury causally
related to the August 25, 2010 work incident. On October 26, 2010 OWCP advised appellant of
the type of medical evidence needed to establish her claim. Appellant did not submit a
rationalized medical report from an attending physician in which the physician explains why the
August 25, 2010 work incident caused or aggravated her claimed condition.
Appellant submitted an October 15, 2010 report from a physician’s assistant who treated
her for a hip condition and noted that she could return to work with restrictions including no
lifting patients. However, such reports are not considered medical evidence as a physician’s

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Id.

5

Leslie C. Moore, 52 ECAB 132 (2000).

6

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).

3

assistant is not considered a physician under FECA.7 Consequently these reports were of no
probative value and do not establish appellant’s occupational illness claim.
As noted, part of appellant’s burden of proof includes the submission of rationalized
medical opinion evidence, based on a complete factual and medical background, supporting such
a causal relationship between the employment and the diagnosed condition. Therefore, these
notes are insufficient to meet appellant’s burden of proof. Appellant submitted a statement
which included a timeline and narrative of her injury. She indicated that she had an “Ortho
consult” but did not provide a name nor report.
The record contains no other medical evidence. Because appellant has not submitted
reasoned medical evidence explaining how and why her hip condition is employment related, she
has not met her burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship. Causal relationships must be established by
rationalized medical opinion evidence.8 Appellant failed to submit such evidence, and OWCP
therefore properly denied appellant’s claim for compensation.
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.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,9 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

7

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and physical
therapists are not competent to render a medical opinion under FECA); see also Charley V.B. Harley, 2 ECAB 208,
211 (1949) (where the Board has held that a medical opinion, in general, can only be given by a qualified physician).
5 U.S.C. § 8101(2) (this subsection defines a “physician” as surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined by State law).
8

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

9

5 U.S.C. § 8128(a).

4

“(iii) Constitutes relevant and pertinent new evidence not previously considered
by OWCP.”10
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.11
The Board has found that evidence that repeats or duplicates evidence already in the case
record has no evidentiary value.12
ANALYSIS -- ISSUE 2
OWCP denied appellant’s claim for a traumatic injury on the grounds that the evidence
submitted was insufficient to establish that appellant sustained a hip injury in the performance of
duty. It denied her December 24, 2010 reconsideration request, without a merit review, and she
appealed this decision to the Board. 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 her December 24, 2010 application for reconsideration, appellant did not show that
OWCP erroneously applied or interpreted a specific point of law. She 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. She did not submit any additional evidence with her
reconsideration request only a narrative statement which asserted that she was unable to get an
MRI scan due to scheduling issues. Appellant indicated that she did not realize that being treated
by a physician’s assistant was inadequate to establish her claim and advised that she had an
appointment with a physician on January 10, 2011 and would send a report thereafter. However,
her general statements and assertions do not show that OWCP erroneously applied or interpreted
a point of law nor do they advance a point of law or fact not previously considered by OWCP.
Consequently, appellant is not entitled to a review of the merits of her claim based on the first
and second above-noted requirements under section 10.606(b)(2).
With respect to the third requirement, submitting relevant and pertinent new evidence not
previously considered by OWCP, appellant, as noted above, did not submit any new evidence
with her reconsideration request. OWCP’s December 7, 2010 merit decision denied the claim
because there was no medical evidence supporting that employment factors caused her claimed
condition. Thus, the underlying issue is medical in nature but appellant did not submit any new
and relevant medical evidence with her reconsideration request.
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
10

20 C.F.R. § 10.606(b)(2).

11

Id. at § 10.608(b).

12

See Daniel Deparini, 44 ECAB 657 (1993).

5

specific point of law, advance a relevant legal argument not previously considered by OWCP, or
constitute relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
On appeal appellant submitted various medical reports and asserted that she previously
submitted this evidence to OWCP for consideration with her claim and was informed that the
evidence was lost due to an office move by OWCP. The Board notes that its jurisdiction is
limited to the evidence that was before OWCP at the time it issued its final decision; therefore,
the Board is unable to review evidence submitted by appellant on appeal.13 However, this does
not preclude appellant from requesting reconsideration before OWCP and submitting additional
evidence.
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained a hip injury causally related to her August 25, 2010 employment incident. The Board
finds that OWCP properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the January 6, 2011 and December 7, 2010
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: March 7, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
13

5 U.S.C. § 501.2(c).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.F., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
OFFICE OF HEARINGS & APPEALS,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 08-744
Issued: August 11, 2008

Case Submitted on the Record

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

JURISDICTION
On January 15, 2008 appellant filed a timely appeal from schedule award decisions of the
Office of Workers’ Compensation Programs dated February 13 and August 8, 2007. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award
determinations in this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she has more
than a 12 percent impairment of the right upper extremity, for which she received a schedule
award.
FACTUAL HISTORY
On July 11, 2001 appellant, then a 34-year-old lead case technician, filed a Form CA-1,
traumatic injury claim, alleging that she injured her right upper extremity and neck that day. She
stopped work and on December 10, 2001, the Office accepted that she sustained employment-

related right carpal tunnel syndrome.1 On April 1, 2002 Dr. Gary N. Goldstein, a Board-certified
orthopedic surgeon, performed decompression of the median and ulnar nerve of the right wrist
and decompression and anterior subcutaneous transposition of the ulnar nerve at the right elbow.
Pre and postoperative diagnoses were right carpal tunnel and cubital tunnel syndromes.
On May 1, 2002 appellant filed a recurrence claim, noting that she stopped work on
April 1, 2002 to undergo surgery. She received appropriate compensation. On June 21, 2002 the
Office referred appellant to Dr. Jatinkumar D. Gandhi, a Board-certified orthopedic surgeon, for
a second opinion evaluation. In a July 11, 2002 report, Dr. Gandhi noted his review of the
medical record, the history of injury and that appellant was recovering from carpal tunnel
surgery. Physical examination demonstrated mild scar tenderness, no upper extremity
neurological symptoms or atrophy, negative Tinel’s and Phalen’s tests and no evidence of
brachial plexus tenderness. Dr. Gandhi diagnosed ulnar nerve neuropathy, right elbow, cubital
tunnel syndrome and carpal tunnel syndrome on the right. He advised that the carpal tunnel
syndrome was employment related and the surgical release was appropriate but that it was
difficult to correlate the ulnar nerve neuropathy with work factors as there were no records to
back this up. Dr. Gandhi concluded that she could return to work within two or three weeks with
no limitations. Appellant returned to full duty for four hours daily on July 22, 2002, six hours
daily on August 16, 2002 and to full duty on August 19, 2002.2
In 2006 appellant moved to Greensboro, North Carolina.3 On January 3, 2007 she filed a
schedule award claim and submitted a July 6, 2004 report in which Dr. David Weiss, an
osteopath, noted the history of injury and appellant’s continued complaints of right elbow and
hand pain, stiffness and numbness. Dr. Weiss stated that appellant’s activities of daily living
were restricted with difficulties in cooking and personal care, in grasping, pulling, pushing and
fine dexterity with her right hand. He advised that her pain level was 4-7/10 in her right elbow
and 5-8/10 in her right wrist. Examination of the right elbow demonstrated normal flexionextension, pronation and supination with a positive Tinel’s sign at the cubital tunnel.
Examination of the right wrist showed no atrophy. Range of motion was normal for
dorsiflexion, palmar flexion, radial deviation, ulnar deviation and resisted thumb abduction.
Tinel’s, Phalen’s and carpal compression tests were positive. Grip strength testing was read as
50 percent on the right and pinch at 5 kilograms (kg) on the right compared with 9 kg on the left.
Neurological examination showed no deficits. Dr. Weiss diagnosed post-traumatic right cubital
tunnel syndrome, post-traumatic right ulnar neuropathy at Guyon’s canal, post-traumatic right
carpal tunnel syndrome, status post decompression of median and ulnar nerve of the right wrist
and status post decompression and anterior subcutaneous transposition of the ulnar nerve at the
right elbow. He opined that, in accordance with the fifth edition of the American Medical

1

The instant claim was adjudicated by the Office under file number 03-2001916. It is unclear from the record
when appellant returned to work following the July 11, 2001 employment injury.
2

In a claim adjudicated by the Office under file number 03-2010422, it accepted that on August 23, 2002
appellant sustained a cervical strain. She stopped work that day. On that claim, by decision dated April 12, 2006,
Docket No. 06-373, the Board affirmed an Office decision that terminated appellant’s compensation benefits,
effective October 9, 2003.
3

Although it is unclear from the record, appellant apparently continues to work for the employing establishment.

2

Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),4
under Table 16-34 appellant had a 20 percent right upper extremity impairment due to right
lateral pinch deficit and, under Table 18-1, a 3 percent pain-related impairment, for a total
23 percent right upper extremity impairment.
On January 5, 2007 the Office referred the medical record, including Dr. Weiss’ report to
an Office medical adviser. By report dated January 15, 2007, the Office medical adviser noted
his review of the medical record including Dr. Weiss’ July 6, 2004 report. He recommended that
the accepted condition be expanded to include right cubital tunnel ulnar nerve compression and
advised that maximum medical improvement had been reached on July 6, 2004. The Office
medical adviser noted that, under the A.M.A., Guides, Dr. Weiss’ reliance on lateral pinch deficit
and a pain deficit were not appropriate. He determined that under Table 16-15 appellant had a
below midforearm median nerve sensory impairment and advised that, pursuant to Table 16-10,
she had a Grade 4 sensory impairment of 25 percent which, when multiplied by the maximum
sensory impairment of 39 percent found in Table 16-15, yielded a below midforearm right upper
extremity sensory impairment rating of 9.75 percent or rounded up, a 10 percent impairment.
The Office medical adviser advised that, under Table 16-15, appellant’s above midforearm
peripheral nerve deficit was 7 percent and found that under Table 16-10 she had a Grade 4
sensory impairment of 25 percent which, when multiplied by the maximum sensory impairment
of 7 found in Table 16-15, yielded a 1.75 percent above midforearm right upper extremity
impairment which he rounded up to a 2 percent impairment. He then utilized the Combined
Values Chart of the A.M.A., Guides to find that a 10 percent impairment combined with a
2 percent impairment equaled a 12 percent right upper extremity impairment.
By decision dated February 13, 2007, appellant was granted a schedule award for a
12 percent right upper extremity impairment, to run for 37.44 weeks from July 6, 2004 to
March 25, 2005. On February 23, 2007 she, through her attorney, requested a hearing that was
held on June 12, 2007. Appellant did not appear at the hearing. Her attorney requested that
cubital tunnel syndrome be accepted as employment related and argued that it was unreasonable
not to use pinch strength in finding impairment or, at the very least, a conflict in medical
evidence had been created. Appellant submitted a March 11, 2005 report in which Dr. Alan D.
Carr, a Board-certified osteopath specializing in anesthesiology, noted that she had right elbow
and cervical pain with a positive Tinel’s test on examination. Dr. Carr recommended a
rehabilitation program. In a statement dated June 10, 2007, appellant reported that she continued
to experience pain in her wrist, hand, elbow, shoulder and neck areas while performing daily
work and home activities and that the grip and pinch strength in her right hand was considerably
weaker than on the left.
In an August 8, 2007 decision, an Office hearing representative affirmed the February 13,
2007 schedule award decision.

4

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

3

LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act5 and section 10.404 of
the implementing federal regulations,6 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides7 has been adopted by the Office and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.8
It is the claimant’s burden to establish that he or she sustained a permanent impairment of
a scheduled member or function as a result of an employment injury.9 Office procedures provide
that to support a schedule award, the file must contain competent medical evidence which shows
that the impairment has reached a permanent and fixed state and indicates the date on which this
occurred (“date of maximum medical improvement”), describes the impairment in sufficient
detail to include, where applicable, the loss in degrees of active and passive motion of the
affected member or function, the amount of any atrophy or deformity, decreases in strength or
disturbance of sensation or other pertinent description of the impairment and the percentage of
impairment should be computed in accordance with the fifth edition of the A.M.A., Guides. The
procedures further provide that, after obtaining all necessary medical evidence, the file should be
routed to the Office medical adviser for opinion concerning the nature and percentage of
impairment and the Office medical adviser should provide rationale for the percentage of
impairment specified.10
Chapter 16 of the fifth edition of the A.M.A., Guides provides the framework for
assessing upper extremity impairments.11 Regarding carpal tunnel syndrome, the A.M.A.,
Guides provide that:
“If, after an optimal recovery time following surgical decompression, an
individual continues to complain of pain, paresthesias and/or difficulties in
performing certain activities, three possible scenarios can be present --

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

A.M.A., Guides, supra note 4.

8

See Joseph Lawrence, Jr., supra note 4; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287
(1989); Francis John Kilcoyne, 38 ECAB 168 (1986).
9

Tammy L. Meehan, 53 ECAB 229 (2001).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Evaluation of Schedule Awards, Chapter 2.808.6(d)
(August 2002).
11

A.M.A., Guides, supra note 4 at 433-521.

4

(1) Positive clinical findings of median nerve dysfunction and electrical
conduction delay(s): the impairment due to residual CTSE is rated
according to the sensory and/or motor deficits as described earlier.12
(2) Normal sensibility and opposition strength with abnormal sensory
and/or motor latencies or abnormal EMG [electromyogram]testing of the
thenar muscles: a residual CTSS is still present and an impairment rating
not to exceed 5 percent of the upper extremity may be justified.
(3) Normal sensibility (two-point discrimination and Semmes-Weinstein
monofilament testing), opposition strength and nerve conduction studies:
there is no objective basis for an impairment rating.”13
Section 16.5d of the A.M.A., Guides provide that, in compression neuropathies,
additional impairment values are not given for decreased grip strength. Carpal tunnel syndrome
is an entrapment/compression neuropathy of the median nerve and the A.M.A., Guides provides
that impairment for carpal tunnel syndrome be rated on motor and sensory deficits only and that
in the absence of a complex regional pain syndrome, additional impairment values are not given
for decreased motion.14
Section 16.8a provides that, in a rare case, if the examiner believes the individual’s loss
of strength represents an impairing factor that has not been considered adequately by other
methods, the loss of strength may be rated separately. An example of such situation would be
loss of strength due to a severe muscle tear that healed leaving a palpable muscle defect.
Decreased strength cannot be rated in the presence of decreased motion, painful conditions,
deformities or absence of parts that prevent effective application of maximal force in the region
being evaluated.15 Section 16.4 provides that in evaluating abnormal motion both active and
passive motion measurements are necessary to evaluate the joint motion under the appropriate
charts and these should be added to obtain the total motion impairment.16 Section 16.8b states
that pinch strength measurements are done with a pinch gauge and should be repeated three
times. These are averaged and compared with the opposite extremity, if normal but if both

12

Section 16.5b of the A.M.A., Guides describes the methods for evaluating upper extremity impairments due to
peripheral nerve disorders and provides that the severity of the sensory or pain deficit and motor deficit should be
classified according to Tables 16-10a and 16-11a respectively. The impairment is evaluated by multiplying the
grade of severity of the sensory or motor deficit by the respective maximum upper extremity value resulting from
sensory or motor deficits of each nerve structure involved. When both sensory and motor functions are involved,
the impairment values derived for each are combined. Id. at 481; Kimberly M. Held, 56 ECAB 670 (2005).
13

A.M.A., Guides, supra note 4 at 495.

14

Id. at 494; Kimberly M. Held, supra note 12.

15

Id. at 508; see Cerita J. Slusher, 56 ECAB 532 (2005).

16

A.M.A., Guides, supra note 4 at 451-52.

5

extremities are involved, the strength measurements are compared to the average normal
strengths listed in Tables 16-31 through 16-33.17
Section 18.3b provides that pain-related impairment should not be used if the condition
can be adequately rated under another section of the A.M.A., Guides. Office procedures provide
that, if the conventional impairment adequately encompasses the burden produced by pain, the
formal impairment rating is determined by the appropriate section of the A.M.A., Guides.18
Section 18.3d provides guidance on how a pain-related impairment should be rated, noting that
an award of up to three percent whole person impairment may be granted if pain increases the
burden of the employee’s condition.19 While the A.M.A., Guides, provides for impairment to the
individual member and to the whole person, the Act does not provide for permanent impairment
for the whole person.20
ANALYSIS
The Board finds that appellant has a 12 percent impairment of the right upper extremity.
As stated above, section 16.5d of the A.M.A., Guides provides three scenarios for assessing
impairment due to carpal tunnel syndrome following a surgical decompression21 and if, as in this
case, on examination a physician finds positive clinical findings of median nerve dysfunction,
the impairment due to residual carpal tunnel syndrome is to be rated according to the sensory
and/or motor deficits described in section 16.5b of the A.M.A., Guides.22 The Office medical
adviser utilized Dr. Weiss’ findings of a sensory deficit to determine that appellant had a below
midforearm median nerve sensory impairment and properly found that, under Table 16-15, the
maximum upper extremity impairment was 39 percent.23 He then utilized Table 16-10 and
determined that appellant had a Grade 4 impairment, which he rated at 25 percent and properly
multiplied this value with the maximum 39 percent sensory impairment to find that she had a
below midforearm right upper extremity sensory impairment of 9.75 percent or, rounded up, a
10 percent impairment.
The Office medical adviser then properly graded appellant’s impairment above the
midforearm and found that, under Table 16-15, the maximum upper extremity impairment was
seven percent.24 He then utilized Table 16-10 and determined that appellant had a Grade 4
impairment, which he rated at 25 percent and properly multiplied this value with the maximum
17

Id. at 508.

18

FECA Bulletin No. 01-01 (issued January 29, 2001).

19

See Richard B. Myles, 54 ECAB 379 (2003); A.M.A., Guides, supra note 4 at 573, 588.

20

See Janae J. Triplette, 54 ECAB 792 (2003).

21

A.M.A., Guides, supra note 4 at 495.

22

Supra note 7.

23

A.M.A., Guides, supra note 4 at 492.

24

Id. at 492.

6

7 percent sensory impairment to find that she had an above midforearm right upper extremity
sensory impairment of 1.75 percent or, rounded up, a 2 percent above midforearm impairment.
The Office medical adviser then properly utilized the Combined Values Chart of the A.M.A.,
Guides to find that 10 percent combined with 2 percent equaled a 12 percent right upper
extremity impairment.25
While Dr. Weiss opined that under Table 16-34 appellant had a right lateral pinch deficit
of 20 percent and a 3 percent impairment for pain under Table 18-1, the A.M.A., Guides
provides that strength testing is not to be used in cases with compression neuropathy.26
Furthermore, the A.M.A., Guides warns that examiners should not use Chapter 18 to rate
pain-related impairment for any condition that can be adequately rated on the basis of the body
and organ impairment rating systems given in the other chapters27 and pain is encompassed in
the impairment ratings described in Table 16-15 which was used by the Office medical adviser in
this case.28
CONCLUSION
The Board finds that appellant has not established that she is entitled to a schedule award
greater than the 12 percent previously awarded for her right upper extremity impairment.

25

Id. at 604.

26

Id. at 494.

27

Id. at 571.

28

Id. at 492.

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs’ hearing representative dated August 8, 2007 is affirmed
Issued: August 11, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


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

)
)
)
)
)
)
)
)

Appearances:
Capp Taylor, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1074
Issued: January 7, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On May 1, 2018 appellant, through counsel, filed a timely appeal from a March 12, 2018
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most recent
merit decision was a Board decision dated January 9, 2015, which became final 30 days after
issuance, and is not subject to further review.2 As there was no merit decision by OWCP within
180 days of the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

20 C.F.R. § 501.6(d); see J.P., Docket No. 17-0053 (issued May 23, 2017); R.M., Docket No. 14-1213 (issued
October 15, 2014).
3

5 U.S.C. § 8101 et seq.

(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of
this case.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances outlined in
the prior Board decision is incorporated herein by reference. The relevant facts are as follows.
On May 11, 1998 appellant, then a 46-year-old mail processor, filed an occupational
disease claim (Form CA-2) alleging that her mood disorder and sleep deprivation occurred as a
result of her work shift hours commencing at 1:00 a.m. OWCP accepted the claim for sleep
disturbances and mood disorder, secondary to sleep deprivation. On August 4, 1999 it issued a
wage-earning capacity determination, finding that appellant’s actual earnings at the employing
establishment since March 20, 1999 represented her wage-earning capacity. Appellant continued
to receive compensation based on wage-earning capacity.
OWCP sent appellant EN1032 forms that requested information, regarding employment
activity. On March 31, 2014 it received a March 24, 2014 report from the employing
establishment’s Office of Inspector General (OIG) regarding appellant’s involvement in internet
sales. According to the report, appellant was engaged in selling items on eBay with a registered
PayPal account and eBay profile. The report includes a document listing eBay sales to appellant’s
account, indicating that, during the period December 23, 2011 to April 23, 2012, she sold 71 items
on eBay.
By decision dated April 11, 2014, OWCP found that appellant had forfeited her
compensation from December 13, 2010 to March 11, 2013. It found that she had earnings that
were knowingly omitted from the EN1032 forms signed on March 13, 2012 and March 11, 2013.
In a preliminary determination dated April 11, 2014, OWCP found that an overpayment of
compensation in the amount of $4,950.68 was created. It indicated that this was the compensation
paid from the current claim during the period December 13, 2010 to March 11, 2013. OWCP also
preliminarily determined that appellant was at fault in the creation of the overpayment because she
made an incorrect statement as to a material fact that she knew or should have known was incorrect.
By decision dated May 14, 2014, it finalized its determination of a $4,950.68 overpayment of
compensation. OWCP found that appellant was required to report her business activity regarding
her eBay account, even if it were for a friend. In addition, it denied waiver of recovery of the
overpayment, finding that she was at fault in creating the overpayment.

4
Docket No. 14-1847 (issued January 9, 2015); petition for reconsideration denied, Docket No. 14-1847 (issued
November 13, 2015).

2

Appellant appealed to the Board. By decision dated January 9, 2015, the Board affirmed
OWCP’s April 11 and May 14, 2014 decisions.5 The Board found that appellant forfeited her
compensation from December 13, 2010 to March 11, 2013 as she should have reported the
earnings from eBay sales that were sent to her PayPal account and then transferred to her bank
account. The Board found that her omission of such earnings was “knowingly” made, as she failed
to report such activity on EN1032 forms dated March 13, 2012 and March 11, 2013 in light of the
fact that multiple sales transactions had gone into her accounts. The Board further found that an
overpayment of compensation in the amount of $4,950.68 was created and that waiver of recovery
of the overpayment was properly denied as appellant was with fault in the creation of the
overpayment. The Board noted that she had made an incorrect statement regarding a material fact
that she knew or should have known was incorrect in answering “no” to the question as to selfemployment or involvement in a business enterprise. Appellant should have known that her
statement that she had no self-employment or involvement in a business enterprise was incorrect
as multiple sales transactions from eBay sales had gone into her accounts despite the fact she
alleged that the selling enterprise belonged to a friend who was using her eBay and PayPal
accounts.
On January 29, 2015 appellant requested reconsideration.6 By decision dated May 5, 2015,
OWCP denied her reconsideration request without a review of the merits.
In a January 13, 2017 letter, received by OWCP on January 17, 2017, appellant requested
reconsideration. She noted that OWCP found that she had “earnings” due to sales of items on
eBay and knowingly failure to report employment or earnings. Appellant contended that OWCP
had failed to utilize the common definition of the term “earnings.” Citing to the American Heritage
Dictionary and Webster’s New World Dictionary, she noted that there were two definitions for
“earnings.” The first definition indicated wages or salary gained in return for one’s labor and
service. The second definition pertained to business profit. Appellant cited to the dissenting
opinion in the Board’s prior decision in support of her contention that listing items on eBay should
not constitute gainful self-employment.7 She argued that OWCP never explained how the eBay
sales would rise to the level of self-employment. OWCP also never determined what, if any profit
or short/long-term capital gains were attributed to the items sold. Thus, appellant concluded that
there was no business profit. She additionally argued that OWCP improperly shifted the burden
of proof. Appellant argued that she was not “gainfully employed” from December 13, 2011 to
April 23, 2012 and had no actual earnings from the eBay sales. Rather, she was just a conduit,
using her eBay and PayPal accounts to help her friend. Appellant contended that such activity was
not compensable on the market and that there was no evidence refuting her friend’s statement that
he was responsible for all the business activities in regard to selling the items. Additionally,
OWCP failed to further investigate and had summarily concluded that she had earnings. Appellant
also argued against OWCP’s finding that she knowingly violated the reporting requirement of two
5

Id.

6
Appellant argued that she was not the one selling the goods on eBay. Rather her friend sold the goods as supported
by his notarized affidavit. Thus, appellant had no business activity for the period in question and no earnings or
employment to report on the EN1032 form. She alleged that the claims examiner did not adequately consider all of
the facts.
7

Supra note 4.

3

EN1032 forms. She contended that the language and examples found on the EN1032 forms would
not put the average claimant on notice that the use of an eBay account by a third person or by a
claimant would constitute business activity. Appellant attested that she was not self-employed or
involved in a business enterprise, did not actively participate in eBay sales, and truthfully
completed the EN1032 forms. Thus, she argued that she did not knowingly fail to report earnings
and thus was not subject to the forfeiture provisions of 5 U.S.C. § 81016(b).
By decision dated March 12, 2018, OWCP determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error. It found that
she had submitted similar argument regarding earnings and that her friend had used her accounts
to sell his own items. OWCP noted that the Board has already determined that her failure to report
this business activity constituted a knowing omission of earnings, which resulted in her forfeiture
to compensation. Thus, it concluded that appellant had not presented evidence to establish clear
evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, an
application for reconsideration must be received by OWCP within one year of the date of OWCP’s
decision for which review is sought.8 Timeliness is determined by the document receipt date (i.e.,
the “received date” in OWCP’s integrated Federal Employees’ Compensation System.9 The Board
has found that the imposition of the one-year time limitation does not constitute an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA.10
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s application for review is untimely filed, it must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error. If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review.11 To
demonstrate clear evidence of error, a claimant must submit evidence that is relevant to the issue
that was decided by OWCP,12 is positive, precise, and explicit, and is manifest on its face that
OWCP committed an error.13 The evidence must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must also shift the weight of
the evidence in favor of the claimant and raise a substantial question as to the correctness of
OWCP’s decision for which review is sought. Evidence that does not raise a substantial question
is insufficient to demonstrate clear evidence of error. It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion. A determination of whether
8

20 C.F.R. § 10.607(a).

9

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

10

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

11

M.L., Docket No. 09-0956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); supra note 9 at Chapter
2.1602.5 (February 2016) (the term clear evidence of error is intended to represent a difficult standard).
12

See A.F., Docket No. 18-0645 (issued October 26, 2018); Dean D. Beets, 43 ECAB 1153 (1992).

13

See A.F., supra note 12; Leona N. Travis, 43 ECAB 227 (1991).

4

the claimant has demonstrated clear evidence of error entails a limited review of how the evidence
submitted with the reconsideration request bears on the evidence previously of record.14
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed. OWCP’s regulations15 and procedures16 establish a one-year
time limit for requesting reconsideration, which begins on the date of the last merit decision issued
in the case. The most recent merit decision was the Board’s January 9, 2015 decision. Appellant
had one year from the date of that decision to timely request reconsideration. As her
reconsideration request was received on January 17, 2017 more than one year after the January 9,
2015 merit decision, they were untimely filed.
The Board further finds that appellant failed to demonstrate clear evidence of error on the
part of OWCP in its decision regarding forfeiture of compensation. Appellant again contended
that she had no “earnings” from sales of items on her eBay account as the sales belonged to her
friend. She also contended that did she did not knowingly fail to report such earnings. Appellant
did not sufficiently explain how largely duplicative evidence or argument raised a substantial
question as to the correctness of OWCP’s decision.17 In her reconsideration request, she also
argued general concepts of earnings and business activity. Appellant also contended that OWCP
erroneously shifted the burden of proof to her. However, these arguments do not manifest on their
face that OWCP committed an error.18 The Board finds that these arguments lack validity and fail
to demonstrate clear evidence of error.19 Thus, the Board finds that these arguments are of
insufficient probative value to shift the weight of the evidence in favor of appellant and raise a
substantial question as to the correctness of OWCP’s decision.20
Thus, the Board finds that OWCP properly denied appellant’s untimely request for
reconsideration.21

14

J.S., Docket No. 10-0385 (issued September 15, 2010); B.W., Docket No. 10-0323 (issued September 2, 2010).

15

20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

16

Supra note 9 at Chapter 2.1602.4 (February 2016); see A.F., supra note 12; Veletta C. Coleman, 48 ECAB 367,
370 (1997).
17

See J.F., Docket No. 18-0250 (issued July 6, 2018); see also A.M., Docket No. 10-0526 (issued
November 8, 2010).
18

See S.M., Docket No. 17-0385 (issued June 26, 2018).

19

D.B., Docket No. 16-1405 (issued January 9, 2017).

20

See supra note 14.

21

Nancy Marcano, 50 ECAB 110 (1998).

5

On appeal counsel contends that appellant has demonstrated clear evidence of error. He
argues that the dissenting opinion in G.G., reflects the proper analysis that should have been used
in this case. However, the Board lacks jurisdiction to review the merits of this case.
For these reasons, the evidence submitted by appellant does not raise a substantial question
concerning the correctness of OWCP’s April 11, 2014 decision and OWCP properly determined
that appellant did not demonstrate clear evidence of error in that decision.
CONCLUSION
OWCP properly determined that appellant’s request for reconsideration was untimely filed
and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the March 12, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 7, 2019
Washington, DC

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

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

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

6