United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT
COMMAND, FORT MEADE, MD, Employer
__________________________________________

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

Docket No. 17-0012
Issued: March 16, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 5, 2016 appellant filed a timely appeal from an April 25, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated February 11, 2016 to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for review of the written
record as untimely filed under 5 U.S.C. § 8124(b).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 29, 2015 appellant, then a 49-year-old supervisor at the Soldier and Family
Assistance Center, filed a traumatic injury claim (Form CA-1) alleging that, on June 25, 2015, he
was bitten by a tick while taking trash outside. He stopped work on December 1, 2015.
In a December 16, 2015 note, Dr. Swati M. Desai, an internist, diagnosed appellant’s
condition as Lyme disease with third nerve palsy.
In a development letter dated January 6, 2016, OWCP advised appellant of the
deficiencies in his claim and requested additional factual and medical evidence. Appellant was
provided a development questionnaire for his completion and was afforded 30 days to submit the
requested information.
In response to its request, OWCP received appellant’s completed development
questionnaire, 39 pages of a chronological record of medical care, a January 29, 2016 report
from Captain Jennifer H. Masel, M.D., an internist, laboratory and blood test results, and a
February 3, 2016 statement from a coworker.
By decision dated February 11, 2016, OWCP denied appellant’s claim, finding that the
medical evidence of record failed to establish that her diagnosed Lyme disease, a tick born
infection, was causally related to the accepted June 25, 2015 employment incident. Appeal
rights were enclosed with the decision, which was addressed to appellant’s last known address.
In a March 23, 2016 telephone report, appellant called OWCP to inquire about the status
of his claim. He indicated that he had not received a denial decision. A copy of OWCP’s
February 11, 2016 decision was resent to appellant’s home address.
On April 15, 2016 OWCP received appellant’s appeal request form dated April 13, 2016
and postmarked April 14, 2016, in which he requested a review of the written record by an
OWCP hearing representative. An envelope from OWCP containing the postmark date of
March 24, 2016 was attached.
OWCP continued to receive medical evidence.
By decision dated April 25, 2016, OWCP’s Branch of Hearings and Review denied
appellant’s request for review of the written record. It found that as the request was not made
within 30 days, it was untimely filed and appellant was not entitled to a review of the written
record as a matter of right. However, in its discretion, OWCP considered his request, but found
that the issue in the case could be addressed equally well through a request for reconsideration
and the submission of evidence showing that he has a condition causally related to the
established employment incident.
LEGAL PRECEDENT
Section 8124(b) of FECA provides that a claimant for compensation not satisfied with a
decision of the Secretary is entitled, on request made within 30 days after the date of the issuance

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of the decision, to a hearing on his claim before a representative of the Secretary.2 Section
10.615 of the federal regulations implementing this section of FECA provides that a claimant
shall be afforded a choice of an oral hearing or a review of the written record.3 The request must
be sent within 30 days (as determined by postmark or other carrier’s date marking) of the date of
the decision for which a hearing is sought.4 A claimant is entitled to a hearing or review of the
written record as a matter of right if the request is filed within 30 days.5
While a claimant may not be entitled to a hearing or review of the written record as a
matter of right if the request is untimely, OWCP has the discretionary authority to grant the
request and must properly exercise such discretion.6
ANALYSIS
The Board finds that OWCP properly determined that appellant’s April 14, 2016 request
for a review of the written record was untimely as it was filed more than 30 days after the
issuance of OWCP’s February 11, 2016 decision.
By decision dated February 11, 2016, OWCP denied appellant’s claim for compensation.
The record indicates that appeal rights accompanied the decision, which was sent to appellant’s
last known address of record. A copy of OWCP’s February 11, 2016 decision was resent to
appellant on March 24, 2016 per appellant’s telephonic request. OWCP’s regulations provide
that a copy of the decision shall be mailed to the employee’s last known address.7 The Board has
found that, in the absence of evidence to the contrary, a letter properly addressed and mailed in
the due course of business, such as in the course of OWCP’s daily activities, is presumed to have
arrived at the mailing address in due course.8 This is known as the “mailbox rule.” Appellant
did not submit evidence to rebut the presumption of receipt.9 The record does not contain
written notice of a change of address from appellant.

2

5 U.S.C. § 8124(b)(1).

3

20 C.F.R. § 10.615.

4

Id. at § 10.616(a).

5

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

6

20 C.F.R. § 10.616(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the
Written Record, Chapter 2.1601.4(a) (October 2011).
7

20 C.F.R. § 10.127. A copy of the decision shall be mailed to the employee’s last known address.

8

See Shakeer Davis, 52 ECAB 448 (2001). Where OWCP mailed a copy of the preliminary decision to both
appellant and counsel at their addresses of record. No evidence had been presented to rebut the presumption of
receipt. Thus, it is presumed that the preliminary decision reached both appellant and her attorney.
9

E.T., Docket No. 17-1201 (issued August 11, 2017).

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Thus, appellant had 30 days to request a review of the written record from the
February 11, 2016 decision.10 As appellant’s request for a review of the written record was
postmarked April 14, 2016 it was not made within 30 days of February 11, 2016 and appellant
was not entitled to a hearing/review of the written record as a matter of right.11
OWCP has the discretion to grant an oral hearing or review of the written record when a
claimant is not entitled to a hearing or review as a matter of right. It properly exercised its
discretion in this case by noting that it had considered the matter in relation to the issue involved
and denied appellant’s request for review on the basis that the case could be resolved by
submitting additional evidence to OWCP with a reconsideration request. The Board has held
that the only limitation on OWCP’s discretionary authority is that of reasonableness. An abuse
of discretion is generally shown through proof of manifest error, clearly unreasonable exercise of
judgment, or actions taken which are contrary to both logic and probable deduction from
established facts.12 In this case, the evidence of record does not establish that OWCP committed
any action in connection with its denial of appellant’s request for review of the record which
could be found to be an abuse of discretion. Consequently, OWCP properly denied his request
for a review of the written record as untimely under section 8124(b) of FECA.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for review of the written
record as untimely filed under 5 U.S.C. § 8124(b).

10

Supra note 4. This regulation provides that the hearing request must be sent within 30 days ... of the date of the
decision for which a hearing is sought.
11

OWCP erroneously found that the postmark date of appellant’s request for review of the written record was
March 24, 2016. As noted, infra, March 24, 2016 refers to the date OWCP sent appellant a duplicative copy of its
February 11, 2016 decision.
12

See L.W., 59 ECAB 471 (2008).

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ORDER
IT IS HEREBY ORDERED THAT the April 25, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 16, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Laredo, TX, Employer
__________________________________________

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

Docket No. 19-0891
Issued: October 1, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 21, 2019 appellant filed a timely appeal from a February 26, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees ’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish ratable hearing loss,
warranting a schedule award.
FACTUAL HISTORY
On September 23, 2016 appellant, then a 52-year-old customs and border protection
officer, filed an occupational disease claim (Form CA-2) alleging that he developed hearing loss
and tinnitus as a result of 15 years of employment-related noise exposure during daily processing
of commercial cargo vehicles and quarterly weapons qualifications. He alleged that he first
1

5 U.S.C. § 8101 et seq.

became aware of the conditions on September 27, 2012 and their relationship to his federal
employment on August 26, 2016. Appellant did not stop work.
In a development letter dated October 14, 2016, OWCP advised appellant that the evidence
submitted was insufficient to establish his claim. It advised him of the type of evidence necessary
to establish his claim and provided a questionnaire for completion. OWCP afforded appellant 30
days to submit the necessary evidence. In a letter of even date, it requested that the employing
establishment provide comments regarding his exposure to hazardous noise during his federal
employment.
OWCP received responses from both appellant and the employing establishment clarifying
appellant’s exposure to hazardous noise from heavy vehicle traffic during the period July 2001 to
May 2005, as well as exposure to heavy commercial truck traffic, and quarterly weapons
qualifications from May 2005 to the present.
Following initial development of the claim, on November 8, 2016 OWCP referred
appellant for audiometric testing and a second opinion examination to Dr. Paul W. Loeffler, a
Board-certified otolaryngologist, to evaluate the nature, extent, and relationship of his hearing loss.
In a November 22, 2016 report, Dr. Loeffler opined that appellant sustained work-related
bilateral sensorineural hearing loss and tinnitus. He further related that hearing aids were not
recommended. Audiometric testing was performed on November 17, 2016. Testing at the
frequencies of 500, 1,000, 2,000, and 3,000 Hertz (Hz) revealed the following: right ear 25, 25,
20, and 20 decibels (dBs); left ear 25, 20, 25, and 20 dBs. Dr. Loeffler determined that appellant
had no ratable hearing impairment and listed November 17, 2016 as the date of maximum medical
improvement (MMI).
By decision dated December 9, 2016, OWCP accepted appellant’s claim for bilateral
sensorineural hearing loss and tinnitus due to his employment-related noise exposure. It further
determined that hearing aids were not authorized.
On December 15, 2016 Dr. Jeffrey M. Israel, a Board-certified otolaryngologist, OWCP’s
district medical adviser (DMA), reviewed Dr. Loeffler’s report and the November 17, 2016
audiometric testing. He concluded that, in accordance with the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment 2 (A.M.A., Guides),
appellant had zero percent monaural hearing loss in each ear and zero percent binaural hearing
loss. The DMA determined that appellant’s hearing loss was not sufficiently severe to be ratable
for schedule award purposes after applying OWCP’s standards for evaluating hearing loss to the
results of the November 17, 2016 audiogram. He recommended yearly audiograms, noise
protection for appellant’s ears, and hearing aids for both hearing loss and tinnitus masking.
On December 21, 2016 appellant filed a claim for a schedule award (Form CA-7).
By decision dated January 12, 2017, OWCP denied appellant’s claim for a schedule award.
It explained that under the A.M.A., Guides his hearing loss was not sufficiently severe to be
considered ratable for purposes of a schedule award.

2

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

2

On February 3, 2017 appellant requested a telephonic hearing before an OWCP hearing
representative. A hearing was held on July 12, 2017. In support of his claim, appellant submitted
a July 20, 2017 audiogram.
By decision dated September 8, 2017, OWCP’s hearing representative affirmed the
January 12, 2017 decision denying appellant’s claim for a schedule award. He noted that OWCP
may consider further evaluation to determine whether hearing aids should be authorized to treat
appellant’s work-related hearing loss and tinnitus.
Audiograms dated October 12, 2017 and June 6, 2018 were received by OWCP. On
October 2, 2018 appellant filed another Form CA-7 claim for a schedule award.
On October 17, 2018 OWCP referred appellant for audiometric testing and a second
opinion examination with Dr. William C. Smith, a Board-certified otolaryngologist.
In a
November 5, 2018 medical report, Dr. Smith diagnosed bilateral high-frequency sensorineural
hearing loss and tinnitus as a result of employment-related noise exposure. He recommended
hearing aids. November 5, 2018 audiometric testing at the frequencies of 500, 1,000, 2,000, and
3,000 Hz revealed the following: right ear 10, 10, 15, and 35 dBs; left ear 10, 10, 15, and 25 dBs.
Dr. Smith determined the monaural hearing loss of each ear was zero percent, but that appellant
had one percent binaural hearing loss due to tinnitus. The date of MMI was noted as
November 5, 2018.
On January 31, 2019 Dr. Israel, acting as OWCP’s DMA, reviewed Dr. Smith’s
November 5, 2018 report and audiometric testing and determined that no additional impairment
had been incurred. He explained that, in accordance with the A.M.A., Guides, appellant had zero
percent monaural hearing loss in each ear. Dr. Israel noted that, while Dr. Smith provided one
percent permanent impairment for binaural hearing loss for tinnitus, a tinnitus award could not be
granted under the A.M.A., Guides “when there is a zero percent binaural hearing impairment such
as in this case.” Thus, appellant sustained zero percent binaural hearing loss. Dr. Israel
recommended hearing aids and noted the date of MMI as November 5, 2018.
By decision dated February 26, 2019, OWCP found that, although appellant’s hearing loss
was employment related, it was insufficient to establish that appellant has ratable binaural hearing
loss and therefore, a schedule award for tinnitus was not payable. It further determined that he
was entitled to medical benefits and hearing aids for his condition if recommended by his
physician.
LEGAL PRECEDENT
The schedule award provisions of FECA,3 and its implementing federal regulation,4 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,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

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the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009.5 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 6
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each
frequency are added up and averaged. 7 Then, the fence of 25 dBs is deducted because, as the
A.M.A., Guides points out, losses below 25 dBs result in no impairment in the ability to hear
everyday speech under everyday conditions. 8 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.9 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.10 The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.11
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish ratable hearing
loss, warranting a schedule award.
Appellant submitted audiograms dated October 12, 2017 and June 6, 2018 from an
audiologist. However, these audiogram do not constitute probative medical evidence of hearing
loss because they were not certified by a physician as being accurate. The Board has held that, if
an audiogram is prepared by an audiologist, it must be certified by a physician as being accurate
before it can be used to determine the percentage of hearing loss. 12
OWCP properly referred appellant to Dr. Smith for a second opinion examination relative
to evaluate his hearing loss. In his November 5, 2018 report, Dr. Smith related appellant’s
audiogram findings and concluded that his binaural sensorineural hearing loss was due to his
workplace noise exposure. He determined that appellant sustained zero percent monaural hearing
loss in each ear and provided one percent binaural hearing impairment for tinnitus.

5

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

6

See J.W., Docket No. 17-1339 (issued August 21, 2018); R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52
ECAB 143 (2000).
7

A.M.A., Guides 250.

8

Id.; C.D., Docket No. 18-0251 (issued August 1, 2018).

9

Id.

10

Id.

11

V.M., Docket No. 18-1800 (issued April 23, 2019).

12

See J.O., Docket No. 17-1618 (issued June 14, 2018).

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On January 31, 2019 the DMA reviewed Dr. Smith’s report and concurred that appellant
had zero percent monaural hearing loss in each ear. Testing at the frequency levels of 500, 1,000,
2,000, and 3,000 Hz revealed decibel losses of 10, 10, 15, and 35 for the right ear and 10, 10, 15,
and 25 for the left ear. The decibel losses for the right ear were totaled at 70 and then divided by
4 to obtain the average hearing loss of 17.5. The decibel losses for the left ear were totaled at 60
and then divided by 4 to obtain the average hearing loss of 15. After subtracting the 25 decibel
fence, both the right ear and left ear losses were reduced to zero. When multiplied by 1.5, the
resulting monaural loss in each ear was zero percent. The DMA therefore found a total of zero
percent binaural hearing loss. The Board finds that the DMA properly concluded that appellant
did not have permanent impairment of his hearing warranting a schedule award. 13 Although
appellant has accepted employment-related hearing loss, it is not sufficiently severe to be ratable
for schedule award purposes. 14
The Board notes that, while Dr. Smith found one percent permanent impairment due to
tinnitus, the DMA properly explained that because appellant’s hearing loss was not ratable, he was
not entitled to a schedule award for tinnitus. The A.M.A., Guides provide that, if tinnitus interferes
with activities of daily living (ADL’s), including sleep, reading (and other tasks requiring
concentration), enjoyment of quiet recreation and emotional well-being, up to five percent may be
added to a measurable binaural hearing impairment.15 A schedule award for tinnitus however is
not payable unless the medical evidence establishes that the condition caused or contributed to a
ratable hearing loss. 16 As such, the Board has held that, in the absence of ratable hearing loss, a
schedule award for tinnitus is not appropriate. 17 Accordingly, the Board finds that appellant is not
entitled to a schedule award for tinnitus. 18
The Board finds that there is no current medical evidence of record supporting that
appellant has ratable hearing loss under OWCP’s standardized procedures for rating hearing
impairment.19 Although the evidence of record establishes that appellant has an employmentrelated hearing loss, it is not sufficiently severe to be ratable for schedule award purposes. 20
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.

13

B.E., Docket No. 18-1785 (issued April 1, 2019).

14

W.T., Docket No. 17-1723 (issued March 20, 2018); E.D., Docket No. 11-0174 (issued July 26, 2011).

15

Id. See also Robert E. Cullison, 55 ECAB 570 (2004).

16

A.W., Docket No. 16-0795 (issued August 29, 2016).

17

D.G., Docket No. 16-1486 (issued December 16, 2016).

18

G.G., Docket No. 18-0566 (issued October 2, 2018).

19

L.H., Docket No. 18-0696 (issued November 28, 2018).

20

R.S., Docket No. 18-1524 (issued February 5, 2019).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish ratable hearing
loss, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the February 26, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 1, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 15-1496
Issued: November 4, 2015

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 June 30, 2015 appellant, through counsel, filed a timely appeal from an April 21,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish more than five percent
impairment of the right lower extremity for which he received a schedule award.
FACTUAL HISTORY
On January 21, 2009 appellant, then a 33-year-old city carrier, stepped into a hole and
injured his right ankle and foot. OWCP accepted the claim for ankle sprain, plantar fascia

1

5 U.S.C. § 8101 et seq.

sprain, and second metatarsal fracture of the right foot. Appellant stopped work that day and
later returned to a modified-duty position on June 20, 2009.
Initial medical reports assessed possible fracture of the second metatarsal and sprained
right ankle. A January 22, 2009 x-ray of the right foot revealed subtle lucency at the base of the
second metatarsal on the frontal projection, probably representing a normal variation rather than
fracture, and no evidence of fracture or dislocation of the ankle. Later, in a November 4, 2010
report, Dr. Brian Donley, Board-certified in orthopedic surgery, advised that appellant was still
experiencing ankle pain but no longer had pain in the area said to have been fractured. In a
January 30, 2011 report, Dr. Allan Boike, a podiatrist, advised that appellant had a slowly
resolving ankle strain and assessed tendinitis in the right foot, sinus tarsitis, and plantar fasciitis
of the right foot.
On November 13, 2012 appellant requested a schedule award.
In a December 4, 2012 report, Dr. John Dunne, a Board-certified osteopath specializing
in preventive and occupational medicine, provided an impairment rating. He noted appellant’s
history of injury and examined his right foot and ankle. Examination revealed a slight antalgic
shortened stance and inability to toe raise on the right with complaints of mid foot pain on the
medial aspect. Dr. Dunne advised that range of motion of the ankle was obtained via goniometer
and recorded flexion loss at 20 degrees, 10 degrees of extension, inversion at 25 degrees, and
eversion limited to 10 degrees. He found that appellant had 19 percent permanent right lower
extremity impairment in accordance with the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment.2 Using Table 16-10, pages 530-31, and
Table 16-22, page 549, Dr. Dunne determined that appellant had 7 percent impairment for
flexion, 7 percent impairment for extension, 2 percent impairment for eversion, and 2 percent
impairment for inversion, totaling 18 percent permanent left lower extremity impairment. He
advised that under Table 16-25, page 550, Range of Motion ICF Classification, appellant had a
class 2 impairment. Using Table 16-6, page 516, Dr. Dunne assigned grade modifier 1 for
Functional History (GMFH) because of appellant’s antalgic limp with shortened stance. Using
Table 16-17, page 545, he determined that his functional history adjustment was one higher than
the impairment class, resulting in an increase of five percent for his total range of motion
impairment. Multiplying 18 by 5 percent equaled .9 percent, which was rounded up to 1 percent
and increased appellant’s rating to 19 percent impairment of the right lower extremity.
Dr. Dunne advised that appellant reached maximum medical improvement (MMI) in April or
May 2009.
On January 31, 2013 an OWCP medical adviser evaluated Dr. Dunne’s report and
concurred with his 19 percent permanent impairment of the right lower extremity rating.
After counsel inquired about the status of the schedule award claim, OWCP advised
counsel on January 10, 2014 that another OWCP medical adviser would review the matter to
determine if the range of motion was an appropriate method of rating impairment.

2

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

2

On April 15, 2014 the medical adviser, Dr. Morley Slutsky, a Board-certified
occupational medicine specialist, reviewed the medical evidence, including Dr. Dunne’s report.
He determined that appellant had five percent permanent impairment of the right lower extremity
in accordance with the sixth edition of the A.M.A., Guides. Dr. Slutsky rated appellant using the
diagnosis-based impairment method as opposed to the range of motion method citing Section
16.2 of the A.M.A., Guides, which states: “Range of motion is primarily used as physical
examination adjustment factor and is only used to determine impairment values when it is not
possible to otherwise define impairment.”3 Dr. Slutsky noted that Dr. Dunne erred when he
adjusted the final ankle range of motion impairment by five percent. He noted that the A.M.A.,
Guides allows adjustment when the functional history grade modifier is greater than the range of
motion grade modifier. However, Dr. Dunne adjusted the final impairment by five percent even
though the grade modifier 1 for functional history was less than the ankle range of motion grade
modifier 2. Using Table 16-22 and Table 16-20, page 549, and Dr. Dunne’s range of motion
measurements he assessed a moderate class 2 16 percent range of motion impairment.
Dr. Slutsky advised that appellant had a class 1 ankle sprain with moderate motion deficits for
five percent default impairment rating. He advised that fractured second metatarsal was not
selected as the impairment class because it was not definitively diagnosed and Dr. Dunne did not
address this condition in his impairment rating. Dr. Slutsky assessed a grade modifier 1 for
functional history as appellant still had symptoms in the foot joint; grade modifier 1 for Physical
Examination (GMPE) as appellant had tenderness to palpation; and no grade modifier for
Clinical Studies (GMCS) as appellant had no diagnostic testing at the time of MMI. He applied
the Net Adjustment Formula to find no adjustment from the default value; thus finding that
appellant had five percent permanent impairment of the right ankle. Dr. Slutsky advised that the
date of MMI was December 4, 2012 the date of Dr. Dunne’s impairment examination.
In a June 19, 2014 decision, OWCP granted appellant a schedule award for five percent
permanent impairment of his right lower extremity. The award ran for 14.4 weeks from
December 4, 2012 to March 14, 2013.4
By letter dated June 25, 2015 appellant, though counsel, requested a telephone hearing
before an OWCP hearing representative. On February 5, 2015 a telephone hearing took place.
Counsel argued that, although the diagnosis based impairment method was the preferred method,
the sixth edition of the A.M.A., Guides specifies that the method most favorable to the claimant
should be used. He also disputed the fact OWCP deducted an overpayment of $3,817.87 from
appellant’s total schedule award payment of 10,774.74.

3

Id. at 497.

4

To recover an overpayment under a separate claim, OWCP deducted $3,817.87 from appellant’s total schedule
award payment of $10,774.74, leaving $6,956.87 to be paid to appellant. The other claim and the overpayment
matter in that claim are not before the Board on the present appeal. The record also contains a December 22, 2014
final overpayment decision in which OWCP found that appellant received a $6,956.86 overpayment of
compensation because he received a duplicate schedule award payment. Counsel appealed this decision to the
Board. On March 25, 2015 appellant repaid the overpayment. On August 6, 2015 the Board dismissed the appeal at
counsel’s request. Docket No. 15-0500.

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By decision dated April 21, 2015, the hearing representative affirmed OWCP’s June 19,
2014 decision finding that OWCP properly relied on Dr. Slutsky’s report when determining
appellant’s entitlement to a schedule award.
LEGAL PRECEDENT
Section 8107 of FECA provides that, if there is permanent disability involving the loss or
loss of use of a member or function of the body, the claimant is entitled to a schedule award for
the permanent impairment of the scheduled member or function.5 Neither FECA nor the
regulations specify the manner in which the percentage of impairment for a schedule award shall
be determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.MA., Guides as the uniform standard applicable to all claimants.6 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.7
The sixth edition requires identifying the impairment Class for Diagnosis (CDX), which
is then adjusted by grade modifiers based on functional history, physical examination and
clinical studies.8 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX).9 The sixth edition of the A.M.A., Guides also provides that range of motion may be
selected as an alternative approach in rating impairment under certain circumstances. A rating
that is calculated using range of motion may not be combined with a diagnosis-based impairment
and stands alone as a rating.10
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the medical adviser for an opinion concerning the nature and percentage in
accordance with the A.M.A., Guides with the medical adviser providing rationale for the
percentage of impairment specified.11
ANALYSIS
The Board finds that OWCP properly determined appellant’s five percent permanent
impairment of his right leg. OWCP accepted the claim for ankle sprain, plantar fascia sprain,

5

5 U.S.C § 8107. This section enumerates specific members or functions of the body for which a schedule award
is payable and the maximum number of weeks of compensation to be paid; additional members of the body are
found at 20 C.F.R. § 10.404(a).
6

20 C.F.R. § supra note 5.

7

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

8

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

9

Id. at 521.

10

Id. at 497; K.H., Docket No. 13-501 (issued January 28, 2014); L.B., Docket No. 12-910 (issued
October 5, 2012).
11

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

4

and second metatarsal fracture of the right foot. Appellant claimed a schedule award and
submitted an impairment rating from Dr. Dunne.
In his December 4, 2012 report, Dr. Dunne found 19 percent permanent right ankle
impairment. Using Table 16-22 and Table 16-20, page 549, he determined that appellant had 7
percent impairment for flexion, 7 percent impairment for extension, 2 percent impairment for
eversion, and 2 percent impairment for inversion, totaling 18 percent class 2 right lower
extremity impairment. Using Table 16-6 on page 516, Dr. Dunne assigned grade modifier 1 for
functional history because of appellant’s antalgic limp with shortened stance. Using Table
16-17, page 545, he determined that appellant’s functional history adjustment was one higher
than the ICF class, resulting in an increase of five percent, totaling 19 percent permanent
impairment of the lower extremity. The Board finds that this rating is not in conformance with
the A.M.A., Guides. Dr. Dunne assessed two percent permanent impairment for inversion,
which in accordance with Table 16-20 on page 549, specifies 10-20 degrees of inversion.
However, he measured inversion at 25 degrees, which should have resulted in zero percent
impairment for inversion. Dr. Dunne also incorrectly used the functional history modifier to
adjust appellant’s impairment. Table 16-17, page 545, specifies that the total range of motion
impairment should be increased by five percent if the functional history modifier is greater than
the range of motion ICF class. Here the functional history modifier of 1 is not greater that the
ICF class of 2; therefore, Dr. Dunne should not have adjusted the impairment rating.
Consistent with its procedures,12 OWCP properly referred the matter to its medical
adviser for an opinion regarding appellant’s permanent impairment in accordance with the sixth
edition of the A.M.A., Guides. The initial January 31, 2013 report from the medical adviser is of
limited probative value as it appears to merely restate Dr. Dunne’s conclusions and did not note
the errors in his calculation, noted above. OWCP thus properly referred the matter to another
OWCP medical adviser, Dr. Slutsky.
The Board finds that the second medical adviser, Dr. Slutsky, applied the appropriate
tables and grading schemes of the A.M.A., Guides, in determining that appellant has five percent
permanent impairment of the right ankle. Dr. Slutsky explained that Dr. Dunne did not properly
calculate range of motion impairment. He also explained that under the A.M.A., Guides,
diagnosis-based impairment is the preferred rating method for the lower extremities and that
range of motion ratings should only be used when no diagnosis-based ratings are available.13
Dr. Slutsky also opined that the most appropriate diagnosis-based estimate was for right ankle
sprain with moderate motion deficits, under Table 16-2 (foot and ankle-region grid), page 501.
A class 1, default grade C equated to five percent permanent impairment of the right ankle. This
selection was appropriate because the medical evidence of record specifies that appellant had a
right ankle sprain with moderate motion deficits. Dr. Slutsky assessed a grade modifier 1 for
functional history as appellant still had symptoms in the foot joint; grade modifier 1 for physical
examination as appellant had tenderness to palpation; and no grade modifier for clinical studies
as appellant had no diagnostic testing at the time of MMI. Using the net adjustment formula of
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), he found that (1-1) + (1-1) + (n/a) resulted
12

Id.

13

See A.M.A., Guides, 497, 552.

5

in a net grade modifier of zero, resulting in no change of the default grade C five percent
permanent impairment of the right leg. There is no other current probative medical evidence of
record, in conformance with the sixth edition of the A.M.A., Guides, establishing that appellant
has more than five percent permanent impairment of the right leg.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he had greater than five percent
permanent impairment of his right lower extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the April 21, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 4, 2015
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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
North Metro, GA, Employer
__________________________________________

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

Docket No. 07-495
Issued: June 4, 2007

Case Submitted on the Record

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

JURISDICTION
On December 8, 2006 appellant filed a timely appeal from a November 15, 2006 merit
decision of the Office of Workers’ Compensation Programs denying his emotional condition
claim. Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained an
emotional condition in the performance of duty causally related to his federal employment.
FACTUAL HISTORY
On June 9, 2006 appellant, then a 48-year-old mail handler, filed an occupational disease
claim alleging depression, stress and anxiety due to factors of his federal employment. He noted
that there were reports pertaining to his condition from the Equal Employment Opportunity
(EEO) Commission, Merit System Protection Board (MSPB), as well as the employing
establishment health unit. Appellant noted June 11, 2003 as the date that he realized the causal

relationship between his employment and his conditions. The employing establishment
controverted the claim. It noted that appellant was not at work on June 11, 2003. It further
advised that appellant’s last date in pay status was April 23, 2004. In August 2006, appellant
applied for disability retirement.1 The record reflects that appellant has two other claims before
the Office.2
By letter dated July 19, 2006, the Office notified appellant that the information submitted
was insufficient to establish his claim. It advised him to identify the specific incidents, dates and
individuals involved that he believed contributed to his illness. The Office requested statements
from any person who could verify his allegations and copies of any grievances and/or EEO
complaints filed. Appellant was advised to submit a medical report describing his symptoms,
treatment and an explanation as to how the alleged work incidents or exposure contributed to his
condition.
In statements dated August 9 and 13, 2006, appellant attributed his emotional condition
to the employing establishment’s knowledge of his illness, prior on-the-job injuries and his daily
pain. He stated that the employing establishment assigned him the hardest job knowing about his
low back condition. Appellant alleged that, on February 10, 2001, a Mr. Duncan, supervisor
distribution operations, instructed him to clear the floor of all the mail. He alleged that, although
Mr. Duncan had six clerks keying in the mail, no one helped him. Appellant also stated that he
could not file for unemployment benefits even though he had not worked since
October 31, 2004. He submitted numerous medical reports and documents relating to his
physical and mental conditions. The record contains various reports diagnosing depression and
alcohol dependence.
By decision dated November 15, 2006, the Office denied appellant’s claim, finding that
he failed to establish any work-related incidents which he believed caused his emotional
condition.
LEGAL PRECEDENT
To establish a claim that an emotional condition arose in the performance of duty, a
claimant must submit the following: (1) medical evidence establishing that he has an emotional
or psychiatric disorder; (2) factual evidence identifying employment factors or incidents alleged
to have caused or contributed to the condition; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to the
emotional condition.3
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness
1

The date of any disability retirement is not in the record.

2

Under file number 062109391, the Office accepted appellant’s claim, with a date of injury of June 11, 2003, for
cervical spinal stenosis and adhesive capsulitis of the left shoulder. Under file number 0621685545, the Office
denied appellant’s claim for lumbar disc disease, with a date of injury of February 10, 2001, on October 2, 2006.
3

D.L., 58 ECAB ___ (Docket No. 06-2018, issued December 12, 2006).

2

has some connection with employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the medical evidence establishes that the disability
results from an employee’s emotional reaction to his regular or specially assigned employment
duties or to a requirement imposed by the employing establishment, the disability comes within
coverage of the Federal Employees’ Compensation Act. The same result is reached when the
emotional disability resulted from the employee’s emotional reaction to the nature of his work or
his fear and anxiety regarding his ability to carry out his work duties.4 By contrast, there are
disabilities having some kind of causal connection with the employment that are not covered
under workers’ compensation law because they are not found to have arisen out of employment,
such as when disability results from an employee’s fear of reduction-in-force or frustration from
not being permitted to work in a particular environment or hold a particular position.5 An
employee’s emotional reaction to an administrative or personnel matter is generally not covered
by workers’ compensation. The Board has held, however, that error or abuse by the employing
establishment in an administrative or personnel matter may afford coverage.6
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered. If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.7
As a rule, allegations alone by a claimant are insufficient to establish a factual basis for
an emotional condition claim but rather must be corroborated by the evidence.8 Mere
perceptions and feelings of harassment or discrimination will not support an award of
compensation. The claimant must substantiate such allegations with probative and reliable

4

Ronald J. Jablanski, 56 ECAB ___ (Docket No. 05-482, issued July 13, 2005); Lillian Cutler, 28 ECAB 125,
129 (1976).
5

Id.

6

Margreate Lublin, 44 ECAB 945 (1993). See generally Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on
recon., 42 ECAB 566 (1991).
7

A.K., 58 ECAB ___ (Docket No. 06-626, issued October 17, 2006); C.S., 58 ECAB ___ (Docket No. 06-1583,
issued November 6, 2006); T.G., 58 ECAB ___ (Docket No. 06-1411, issued November 28, 2006); D.L., supra
note 2.
8

Charles E. McAndrews, 55 ECAB 711 (2004); see also Arthur F. Hougens, 42 ECAB 455 (1991) and Ruthie M.
Evans, 41 ECAB 416 (1990) (in each case, the Board looked beyond the claimant’s allegations to determine whether
or not the evidence established such allegations).

3

evidence.9 The primary reason for requiring factual evidence from the claimant in support of her
allegations of stress in the workplace is to establish a basis in fact for the contentions made, as
opposed to mere perceptions of the claimant, which in turn may be fully examined and evaluated
by the Office and the Board.10
ANALYSIS
Appellant made general allegations that because the employing establishment knew or
should have known about his various physical conditions, its actions and the actions of other
agencies, caused or contributed to his emotional condition. The thrust of appellant’s argument is
that management and other agencies treated him unfairly which caused or contributed to his
emotional condition. Because he attributes this emotional condition to administrative actions of
management, supervisors, and to various federal agencies, his claim, as a general rule, falls
outside the scope of the Act.11
The Board has recognized an exception for administrative error or abuse. Appellant
alleged that he was given the hardest jobs without any assistance from his coworkers and that he
could not file for unemployment benefits because of his on-the-job injuries. The evidence of
record does not contain probative and reliable evidence sufficient to establish a factual basis for
his allegations of mistreatment or establish administrative error or abuse. Appellant alleged that
on February 10, 2001 Mr. Duncan mistreated him by not assigning anyone to help him. An
employee’s complaints about the manner in which supervisors perform supervisory duties or the
manner in which supervisors exercise supervisory discretion fall, as a rule, outside the scope of
coverage provided by the Act. This principle recognizes that a supervisor must be allowed to
perform his duties and that employees will at times dislike actions taken.12 There is no evidence
that appellant’s supervisor acted unreasonably in assigning appellant the task of clearing the
floor of mail on February 10, 2001. To the extent that appellant thought he was mistreated
because the employing establishment knew or should have known about his various physical
conditions, there is no probative evidence of discrimination or harassment in this case.13
Appellant has failed to establish compensable work factors with respect to these allegations.
Appellant also mentioned that there were various reports from other agencies and he was
unable to file for unemployment benefits. The record reflects that he has two other claims before
the Office in various stages of development. The Board notes that the development of any
9

Joel Parker, Sr., 43 ECAB 220, 225 (1991); Donna Faye Cardwell, 41 ECAB 730 (1990) (for harassment to
give rise to a compensable disability, there must be some evidence that harassment or discrimination did in fact
occur); Pamela R. Rice, 38 ECAB 838 (1987) (claimant failed to establish that the incidents or actions which she
characterized as harassment actually occurred).
10

Paul Trotman-Hall, 45 ECAB 229 (1993) (concurring opinion of Michael E. Groom, Alternate Member).

11

L.S., 58 ECAB ___ (Docket No. 06-1808, issued December 29, 2006).

12

Linda J. Edwards-Delgado, 55 ECAB 401 (2004).

13

See Joel Parker, Sr., 43 ECAB 220 (1991) (the Board held that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).

4

condition related to such matters would not arise in the performance of duty as the processing of
compensation claims bears no relation to appellant’s day-to-day or specially assigned duties.14
Appellant also had claims considered by other federal agencies. However, findings of other
federal agencies or bodies are not dispositive with regard to questions arising under the Act.15
Appellant did not otherwise present findings by other administrative bodies supporting that the
employing establishment erred regarding matters alleged in the present case. He presented
insufficient evidence to support that the employing establishment erred or acted abusively with
regard to processing his claims. Thus, appellant failed to establish a compensable factor in this
regard.
A claimant’s burden of proof includes submission of a detailed description of the
employment factors or conditions that he believes caused or adversely affected the condition or
conditions for which compensation is claimed.16 He was advised of the deficiencies in his claim
in a letter dated July 19, 2006. However, he did not provide the requested information outlining
the specific work-related incidents, other than the February 10, 2001 incident, which he believed
caused or contributed to his emotional condition. Accordingly, appellant has failed to satisfy his
burden of proof. The Board finds that the Office properly denied his claim for benefits under the
Act.
CONCLUSION
Appellant has not met his burden of proof in establishing that he developed an emotional
condition in the performance of duty.

14

See George A. Ross, 43 ECAB 346, 353 (1991); Virgil M. Hilton, 37 ECAB 806, 811 (1986).

15

See Joe M. Hagewood, 56 ECAB ___ (Docket No. 04-1290, issued April 26, 2005).

16

Robert Breeden, 57 ECAB ___ (Docket No. 06-734, issued June 16, 2006); David Apgar, 57 ECAB ___
(Docket No. 05-1249, issued October 13, 2005).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 15, 2006 is affirmed.
Issued: June 4, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6


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

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

Docket No. 09-1926
Issued: April 7, 2010

Case Submitted on the Record

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

JURISDICTION
On July 22, 2009 appellant timely appealed the January 29, 2009 nonmerit decision of the
Office of Workers’ Compensation Programs, which denied reconsideration. He also timely
appealed the October 28, 2008 merit decision denying his claim. Pursuant to 20 C.F.R. §§ 501.2
and 501.3, the Board has jurisdiction over the merits of the claim.1
ISSUES
The issues are: (1) whether appellant sustained an injury in the performance of duty on
September 13, 2008; and (2) whether the Office properly denied appellant’s December 12, 2008
request for reconsideration under 5 U.S.C. § 8128(a).

1

The record on appeal contains evidence submitted after the Office issued its January 29, 2009 decision. The
Board may not consider evidence that was not in the case record when the Office rendered its final decision. 20
C.F.R. § 501.2(c) (2008).

FACTUAL HISTORY
Appellant, a 60-year-old maintenance worker, has an accepted claim for lumbar sprain,
which arose on November 26, 2007 (xxxxxx115). On September 13, 2008 he reportedly pulled
muscles in his lower back and experienced a back spasm. Appellant explained that, while
exiting his personal vehicle, he had an allergy attack and sneezed while in a bent over position.
According to him, the sneeze triggered his low back complaints. The employing establishment
indicated that appellant was off duty when the September 13, 2008 sneezing incident occurred.2
Because of his claimed injury, appellant was off work from September 15 until October 5, 2008.
When he returned to work on October 6, 2008, he filed a recurrence (Form CA-2a) of disability
under claim number xxxxxx115.3 The Office, however, processed the claim as a new traumatic
injury based on appellant’s description of the September 13, 2008 sneezing incident.4
Appellant submitted medical records from Dr. Moshe Lewis, a Board-certified
physiatrist, who examined appellant on September 18, 2008 and noted that he was having a
significant flare up of his pain. His back reportedly “went out over the weekend.” Dr. Lewis
diagnosed lumbar strain and lumbar herniated disc at L4-5, and advised appellant to take off
work for the next week. The September 18, 2008 report identified November 26, 2007 as the
date of injury and referenced claim number xxxxxx115. Dr. Lewis did not specifically mention a
September 13, 2008 sneezing incident. In a September 25, 2008 follow-up evaluation, he
reported “extremely slow improvement over the past week due to ... recent exacerbation of
[appellant’s] lumbar spine.” Dr. Lewis also noted that a September 11, 2008 electrodiagnostic
study showed evidence of left S1 radiculopathy. Accordingly, he added chronic S1
radiculopathy to appellant’s prior diagnoses of lumbar strain and herniated disc at L4-5.
Dr. Lewis also advised appellant to remain off work until reevaluation on October 2, 2008.
When he next saw appellant on October 2, 2008, he diagnosed lumbar disc disease. Dr. Lewis
also released appellant to return to work with restrictions effective October 6, 2008.
In an October 28, 2008 decision denying appellant’s claim, the Office found that the
September 13, 2008 injury had not arisen in the performance of duty. It explained that
appellant’s lower back injury was due to a nonindustrial incident -- sneezing.
On December 12, 2008 appellant requested reconsideration. He did not provide any new
evidence or present any arguments, but merely submitted a copy of the Office’s October 28,
2008 decision. By decision dated January 29, 2009, the Office denied reconsideration.

2

September 13, 2008 fell on a Saturday. The employing establishment indicated that appellant regularly worked
Monday through Friday, from 10:00 a.m. until 7:00 p.m.
3

The employing establishment had advised appellant on October 1, 2008 that he “must submit” a claim for
recurrence of disability.
4

In a letter dated October 28, 2008, the Office explained that a recurrence was defined as a spontaneous
worsening of a work-related condition without new injury or exposure to work factors. It informed appellant that
the October 6, 2008 recurrence claim he filed with respect to his November 26, 2007 employment injury would be
treated as a new traumatic injury (xxxxxx000) with a September 13, 2008 date of injury.

2

LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides for the payment of compensation
for the disability or death of an employee resulting from personal injury sustained “while in the
performance of ... duty.”5 In order to be covered, an injury must occur at a time when the
employee may reasonably be said to be engaged in his master’s business, at a place where he
may reasonably be expected to be in connection with his employment and while he was
reasonably fulfilling the duties of his employment or engaged in doing something incidental
thereto.6
ANALYSIS -- ISSUE 1
The record indicates that appellant was off duty Saturday, September 13, 2008, when he
reportedly injured his lower back. At the time of the alleged injury, appellant claimed he was
exiting his personal vehicle. He attributed his low back injury to having “sneezed while in a bent
over position.” Although appellant originally filed a claim for recurrence of disability causally
related to his November 26, 2007 low back injury, the Office considered the September 13, 2008
incident as a new traumatic injury.
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.7 Based on appellant’s description of the September 13, 2008 sneezing
incident, the Office properly treated his October 6, 2008 recurrence claim as a new traumatic
injury. Appellant did not describe a spontaneous change in his condition, but instead a new or
intervening injury that was precipitated by a sneeze.
Having properly characterized the type of injury, the next inquiry was whether appellant
was in the performance of duty on September 13, 2008. As previously indicated, appellant was
off duty at the time of his alleged injury. September 13, 2008 was a Saturday, and according to
the employing establishment, he was not scheduled to work that day. There is no evidence of
record indicating that appellant was engaged in an employment-related activity at the time of the
September 13, 2008 sneezing incident. Accordingly, the Office properly denied his claim for an
employment-related low back injury.8

5

5 U.S.C. § 8102(a) (2006).

6

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

7

20 C.F.R. § 10.5(x).

8

See Roma A. Mortenson-Kindschi, supra note 6.

3

LEGAL PRECEDENT -- ISSUE 2
The Office has the discretion to reopen a case for review on the merits.9 Section
10.606(b)(2) of Title 20 of the Code of Federal Regulations provides that the application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (i) shows that the Office erroneously applied or interpreted a specific point
of law; (ii) advances a relevant legal argument not previously considered by the Office; or
(iii) constitutes relevant and pertinent new evidence not previously considered by the Office.10
When an application for reconsideration does not meet at least one of the three requirements
enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration
without reopening the case for a review on the merits.11
ANALYSIS -- ISSUE 2
Appellant’s December 12, 2008 request for reconsideration neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, he did not advance a relevant legal argument not previously considered by the
Office. Appellant merely submitted the appeal request form that accompanied the October 28,
2008 decision. He placed an “x” in the space indicating that he desired reconsideration and
returned the form along with a copy of the Office’s decision. Appellant made no specific
argument at the time. Accordingly, he is not entitled to a review of the merits of his claim based
on the first and second above-noted requirements under section 10.606(b)(2).12 Appellant also
failed to satisfy the third requirement under section 10.606(b)(2). He did not submit any relevant
and pertinent new evidence with his December 12, 2008 request for reconsideration.
Consequently, appellant is not entitled to a review of the merits of his claim based on the third
requirement under section 10.606(b)(2).13 Because he failed to establish a basis for merit review,
the Office properly declined to reopen his case under 5 U.S.C. § 8128(a).
CONCLUSION
Appellant failed to establish that he was injured in the performance of duty on
September 13, 2008. The Board further finds that the Office properly denied his December 12,
2008 request for reconsideration.

9

5 U.S.C. § 8128(a).

10

20 C.F.R. § 10.606(b)(2) (2009).

11

Id. at § 10.608(b).

12

Id. at § 10.606(b)(2)(i) and (ii).

13

Id. at § 10.606(b)(2)(iii).

4

ORDER
IT IS HEREBY ORDERED THAT the January 29, 2009 and October 28, 2008
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: April 7, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, 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
__________________________________________
T.W., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Wellfleet, MA,
Employer
__________________________________________

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Appearances:
John L. Whitehouse, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1001
Issued: November 3, 2009

Case Submitted on the Record

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

JURISDICTION
On March 6, 2009 appellant filed a timely appeal from a January 23, 2009 decision of the
Office of Workers’ Compensation Programs denying his request for reconsideration. Because
more than one year has elapsed from the Office’s last merit decision dated June 1, 2007 to the
filing of this appeal, the Board lacks jurisdiction to review the merits of his claim pursuant to 20
C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office abused its discretion in denying appellant’s request for
further merit review of his claim.

FACTUAL HISTORY
This is the second appeal in this case.1 By decision dated June 20, 2006, the Board
affirmed June 8, 2005 and January 20, 2006 Office decisions denying appellant’s claim for an
injury on April 11, 2005. The facts and the law of the case in the Board’s prior decision are
incorporated herein by reference.
On October 25, 2006 appellant, through his attorney, requested reconsideration and
submitted additional medical evidence. By decision dated June 1, 2007, the Office upheld the
denial of appellant’s claim for an injury on April 11, 2005.
On May 20, 2008 appellant, through his attorney, requested reconsideration and
submitted an October 12, 2006 letter to a Dr. Natalie Mariano asking her to review an October 6,
2006 x-ray report. He suggested that the x-ray report confirmed her initial impression that
appellant sustained a fractured rib in 2005. Appellant asked Dr. Mariano to provide a written
opinion regarding causal relationship.2
By decision dated January 23, 2009, the Office denied appellant’s request for
reconsideration on the grounds that the evidence submitted was not sufficient to warrant further
merit review.3
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act4 does not entitle a claimant
to a review of an Office decision as a matter of right. This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.5 The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).6

1

See Docket No. 06-893 (issued June 20, 2006). On April 22, 2005 appellant, then a 71-year-old painter, filed a
traumatic injury claim alleging that on April 11, 2005 he injured the right side of his upper torso when he moved a
desk.
2

The October 6, 2006 x-ray report and an October 17, 2006 letter from Dr. Mariano regarding the x-ray report
were submitted to the Office prior to its June 1, 2007 merit decision.
3

Subsequent to the January 23, 2009 Office decision, additional evidence was associated with the file. The
Board’s jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See
20 C.F.R. § 501.2(c). The Board may not consider this evidence for the first time on appeal.
4

5 U.S.C. §§ 8101-8193.

5

Id. at § 8128(a).

6

Annette Louise, 54 ECAB 783, 789-90 (2003).

2

To require the Office to reopen a case for merit review under section 8128(a) of the Act,7
the Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.8 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.9 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.10
ANALYSIS
In his request for reconsideration of the Office’s June 1, 2007 merit decision, appellant
contended that the medical evidence was sufficient to establish that he sustained an injury on
April 11, 2005 in the performance of duty. Lay individuals such as appellant are not competent
to render a medical opinion.11 Therefore, his opinion that the medical evidence establishes a
work-related medical condition on April 11, 2005 is of no probative value. It does not constitute
relevant and pertinent evidence not previously considered by the Office. The Office’s June 1,
2007 decision denied appellant’s claim because he failed to provide rationalized medical
evidence establishing that he sustained a medical condition on April 11, 2005 causally related to
his employment. Appellant did not submit evidence or argument that showed that the Office
erroneously applied or interpreted a specific point of law, advanced a relevant legal argument not
previously considered or constituted relevant and pertinent new evidence not previously
considered by the Office. Therefore, the Office properly denied his request for reconsideration.
On appeal, appellant argues that the Office erroneously failed to conduct a merit review
of his claim in its January 23, 2009 decision. However, he did not meet any of the three criteria
for obtaining further merit review of his claim. Appellant did not submit any relevant and
pertinent new evidence not previously considered by the Office. As noted, the issue in this case
was the lack of rationalized medical evidence addressing causal relationship. Appellant did not
submit such medical evidence with his request for reconsideration. Neither did he show that the
Office erroneously applied or interpreted a specific point of law and or advance a relevant legal
argument not previously considered by the Office. Therefore, the Office properly denied his
request for further merit review of his claim.

7

Under section 8128(a) of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [his or her] own motion or on application.” 5 U.S.C. § 8128(a).
8

20 C.F.R. § 10.606(b)(2).

9

Id. at § 10.607(a).

10

Id. at § 10.608(b).

11

See Robert J. Krstyen, 44 ECAB 227 (1992).

3

CONCLUSION
The Board finds that the Office did not abuse its discretion in denying appellant’s request
for further merit review of his claim.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 23, 2009 is affirmed.
Issued: November 3, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Burlington, NJ, Employer
__________________________________________

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

Docket No. 09-765
Issued: February 19, 2010

Case Submitted on the Record

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

JURISDICTION
On January 27, 2009 appellant filed a timely appeal from a December 30, 2008 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has more than 15 percent impairment of the right leg for
which she received a schedule award.
FACTUAL HISTORY
On July 28, 1998 appellant, then a 33-year-old clerk, filed a traumatic injury claim
alleging that she injured her right knee while lifting a bucket of mail. The Office accepted her
claim for right knee sprain and authorized arthroscopic surgery. Appellant did not stop work but
returned to a light-duty position.

Appellant came under the treatment of Dr. Ronald Krasnick, a Board-certified orthopedic
surgeon.1 On April 10, 2000 Dr. Krasnick performed arthroscopic surgery with release of lateral
retinaculum and diagnosed torn medial meniscus and chondromalacia of the right knee. In
reports dated July 18, 2000 to January 16, 2001, he noted patellofemoral crepitus and tenderness
of the right knee and advised that appellant reached maximum medical improvement.
On June 21, 2001 appellant requested a schedule award. In a May 15, 2001 report,
Dr. Nicholas Diamond, an osteopath, advised that she reached maximum medical improvement
on May 10, 2001. Right knee examination revealed portal arthroscopy scars, peripatellar
tenderness, crepitus, medial mid line and lateral mid line tenderness and positive valgus and
varus stress tests. Dr. Diamond noted a normal sensory examination and motor strength testing
revealed a grade of 4 out of 5 involving the right lower extremity and a grade of 5 out of 5 for the
left lower extremity. He diagnosed post-traumatic right knee posterior horn medial meniscus
tear and post-traumatic right knee chondromalacia patella. Dr. Diamond stated that based on the
fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment,2 (A.M.A., Guides) appellant had 12 percent impairment for Grade 4 motor strength
deficit of the right quads (knee extension),3 17 percent impairment for right knee collateral
ligament laxity4 and 5 percent impairment for the right patellofemoral knee pain/crepitance
(arthritis)5 or at total 31 percent impairment of the right lower extremity.
On August 16, 2001 an Office medical adviser reviewed the medical evidence of record.
He noted the impairment rating provided by Dr. Diamond and advised that the conditions of
medial and lateral varus and valgus instability were not present at the time of surgery and could
not have developed from the work incident. The medical adviser found that appellant had
12 percent right leg impairment based on Grade 4 motor strength deficit of the right quadriceps6
and 5 percent for patellofemoral knee pain/crepitance7 or a total of 17 percent impairment to the
right leg.
The Office found a conflict in medical opinion arose between Dr. Diamond and the
Office medical adviser regarding the extent of permanent impairment. On September 14, 2001 it
initially referred appellant to Dr. Howard Zeidman, a Board-certified orthopedic surgeon,
selected as the impartial medical specialist. Based on his report, the Office granted her a
schedule award for 15 percent right leg impairment on November 15, 2001. However, this
award was vacated in a November 7, 2002 decision of an Office hearing representative. The
1

An August 4, 1998 magnetic resonance imaging scan of the right knee showed a tear of the posterior horn of the
medial meniscus and minimal joint effusion.
2

A.M.A., Guides (5th ed. 2001).

3

Id. at 532, Table 17-8.

4

Id. at 546, Table 17-33.

5

Id. at 544, Table 17-31.

6

Id. at 532, Table 17-8.

7

Id. at 544, Table 17-31.

2

Office subsequently requested clarification from Dr. Zeidman, who provided a February 4, 2003
report.
In a March 11, 2003 decision, the Office reissued the November 15, 2001 schedule award
for 15 percent impairment to the right leg. However, the decision was set aside by an Office
hearing representative on October 28, 2003. The hearing representative determined that
Dr. Zeidman’s reports were inadequate to resolve the conflict in medical opinion. On
January 13, 2004 the Office referred appellant to Dr. George P. Glenn, Jr., a Board-certified
orthopedic surgeon, to resolve the medical conflict.
In a January 29, 2004 report, Dr. Glenn noted that appellant reached maximum medical
improvement on July 18, 2000. On examination, there was no evidence of instability to either
knee, negative anterior and posterior drawer signs, no crepitus and full flexion and extension of
the left and right knee with complaint of pain. Dr. Glenn further advised that muscle tone and
strength were normal with no evidence of atrophy, peripheral pulses were symmetrical and
sensory pattern was normal. Appellant demonstrated a slight right sided limp but did not use any
assistive devices and did not qualify for impairment for gait derangement under Table 17-5, page
529 of the A.M.A., Guides. Dr. Glenn noted some alteration in range of motion of the right
knee; however, the measurement for range of motion was greater than 110 degrees and therefore
there was no impairment under Table 17-10, page 537 of the A.M.A., Guides. He noted
Dr. Krasnick’s operative note showed mild patellofemoral arthritis that was best determined by
x-ray with the knee in full extension; however, appellant could not voluntarily extend the knee
which precluded this means of measurement.8 Dr. Glenn noted that, a footnote to Table 17-31,
page 544 of the A.M.A., Guides described complaints of patellofemoral pain and crepitation on
physical examination without joint space narrowing on x-ray as five percent impairment of the
extremity, which he found applicable in appellant’s case. He noted the diagnoses based
estimates method for calculating impairment would not apply as she did not have patellar
subluxation, dislocation or residual instability and there was no evidence of peripheral or
vascular involvement. Dr. Glenn opined that appellant had reached maximum medical
improvement with five percent permanent impairment of the right leg attributable to the July 28,
1998 injury. He also addressed her disability status.
In a February 20, 2004 report, the Office medical adviser concurred in Dr. Glenn’s
determination that appellant had five percent impairment of the right leg under Table 17-31 of
the A.M.A. Guides.
In a March 3, 2004 decision, the Office denied appellant’s request for an additional
schedule award, finding that Dr. Glenn’s opinion constituted the weight of the medical evidence.
On March 10, 2004 appellant requested an oral hearing which was held on
November 13, 2006.
In a January 19, 2007 decision, the hearing representative affirmed the March 3, 2004
schedule award.

8

Id.

3

On June 12, 2007 appellant filed an appeal with the Board. On June 18, 2008 the Board
remanded the case for reconstruction and proper assemblage of the case record. The Office was
directed to issue an appropriate merit decision issued on appellant’s claim to preserve her appeal
rights.9
In a decision dated December 30, 2008, the Office reissued the January 19, 2007 decision
denying appellant’s claim for an additional schedule award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act10 and its
implementing regulations11 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.
ANALYSIS
The Office accepted appellant’s claim for right knee sprain and authorized arthroscopic
surgery, which was performed on April 10, 2000. It found that a conflict in the medical evidence
arose between Dr. Diamond and an Office medical adviser concerning the extent of impairment
of the right leg. Consequently, the Office referred appellant to Dr. Glenn to resolve the
conflict.12
Where there exists a conflict of medical opinion and the case is referred to an impartial
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, is entitled to special weight.13
The Board finds that the opinion of Dr. Glenn is sufficiently well rationalized and based upon a
proper factual background such that it is entitled to special weight and establishes that appellant
does not have impairment greater than the 15 percent schedule award previously granted.

9

Docket No. 07-1702 (issued June 18, 2008).

10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

12

As noted, appellant was initially referred to Dr. Zeidman who failed to provide responsive clarification as
requested by the Office. When an impartial medical specialist’s statement of clarification or elaboration is not
forthcoming or if the physician is unable to clarify or elaborate on the original report or if the physician’s report is
vague, speculative or lacks rationale, the Office must refer the employee to another impartial medical specialist for a
rationalized medical opinion on the issue in question. See Margaret M. Gilmore, 47 ECAB 718 (1996); Terrence R.
Stath, 45 ECAB 412 (1994); Nathan L. Harrell, 41 ECAB 402 (1990); John I Lattany, 37 ECAB 129 (1985).
13

Aubrey Belnavis, 37 ECAB 206 (1985). See 5 U.S.C. § 8123(a).

4

Dr. Glenn reviewed appellant’s history, reported findings and noted an essentially normal
physical examination. He advised that she reached maximum medical improvement. Dr. Glenn
noted examination of appellant’s right knee revealed no evidence of instability, no crepitus, full
flexion and extension with complaints of pain, muscle tone and strength were normal with no
evidence of atrophy, peripheral pulses were symmetrical and sensory pattern was normal. He
noted that she demonstrated a slight right sided limp but did not use any assistive devices and
therefore did not qualify for impairment for gait derangement under Table 17-5, page 529 of the
A.M.A., Guides. Dr. Glenn indicated range of motion of the right knee was greater than 110
degrees and therefore appellant did not qualify for impairment pursuant to Table 17-10, page 537
of the A.M.A., Guides. He advised that the diagnosis-based estimates method would not apply
as she did not have patellar subluxation, dislocation or residual instability and there was no
evidence of peripheral or vascular involvement. Dr. Glenn noted Dr. Krasnick’s operative note
showed mild patellofemoral arthritis which was best determined by x-ray with the knee in full
extension; however, appellant could not voluntarily extend the knee which precluded this means
of measurement. He noted that the footnote to the Table 17-31 provided five percent impairment
for complaint of patellofemoral pain and crepitation on physical examination without joint space
narrowing on x-ray. Dr. Glenn found that this was appropriate in appellant’s case. He opined
that pursuant to the A.M.A., Guides she had five percent permanent impairment of the right leg.
Dr. Glenn properly applied the A.M.A., Guides and determined that appellant had five
percent of the right lower extremity. This evaluation conforms to the A.M.A., Guides. On
February 20, 2004 an Office medical adviser reviewed Dr. Glenn’s findings pursuant to the
A.M.A., Guides and noted that the impartial specialist has properly applied Table 17-31.
On appeal, appellant asserts that Dr. Diamond properly applied the A.M.A., Guides and
found 31 percent impairment of the right leg. However, it must be noted that the impairment
rating of Dr. Diamond does not conform to Chapter 17, specifically the cross-usage chart at
Table 17-2, page 526. In rating impairment of 31 percent, Dr. Diamond noted strength deficit
under Table 17-8, laxity of the ligament laxity under Table 17-33, which addresses
diagnosis-based impairment estimates and arthritis under Table 17-31. Table 17-2 precludes
combining arthritis and diagnosis-based impairment estimates with loss of strength deficit. The
failure of Dr. Diamond to address the cross-usage chart reduces the probative value of his rating.
Appellant contends that Dr. Glenn did not provide adequate findings or rationale on
examination. Dr. Glenn noted that range of motion of the right knee with regard to extension
and flexion was greater than 110 degrees and normal such that there was no impairment under
Table 17-10, page 537 of the A.M.A., Guides. He noted that the operative note showed mild
patellofemoral arthritis which was best determined by x-ray. However, Dr. Glenn explained that
this means of measurement could not be performed as appellant could not voluntarily extend the
knee to allow the appropriate x-ray to be obtained. He addressed motor strength of the right
knee, finding that muscle tone and strength were normal with no evidence of atrophy. Dr. Glenn
provided sufficient reasoning for his impairment rating.

5

CONCLUSION
The Board finds that appellant has established that she has no more than 15 percent
impairment of the right leg for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the December 30, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 19, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

6