United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF THE AIR FORCE, NELLIS
AIR FORCE BASE, NV, Employer
__________________________________________

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Appearances:
Nicole Marley, for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1476
Issued: March 23, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On June 27, 2019 appellant, through his representative, filed a timely appeal from a
May 30, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the May 30, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of total
disability commencing June 1, 2009 causally related to his September 5, 2000 employment injury.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On September 5, 2000 appellant filed an occupational disease (Form CA-2) claim alleging
that he developed bilateral carpal tunnel syndrome due to factors of his federal employment,
including repetitive use of tools. On September 23, 2000 OWCP accepted his claim for bilateral
carpal tunnel syndrome. On June 1, 2009 appellant voluntarily retired from the employing
establishment.
By decision dated March 16, 2010, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective that date, finding that the medical evidence of record established
that he had no ongoing disability or medical residuals due to his accepted condition. Appellant
appealed to the Board. By decision dated August 24, 2011, the Board affirmed the March 16, 2010
termination.5 The Board further found that appellant had submitted additional medical evidence
which required further development regarding whether he continued to experience residuals or
disability due to left carpal tunnel syndrome.
By decision dated December 30, 2011, OWCP accepted appellant’s claim for left carpal
tunnel syndrome. Appellant underwent a left carpal tunnel release on December 14, 2012.
Effective that date, OWCP entered him on the periodic rolls for total disability compensation.
On August 7, 2013 appellant filed a claim for compensation (Form CA-7) requesting wageloss compensation from the date of his retirement on June 1, 2009 to December 13, 2012 when he
was reentered on the periodic rolls.
In a letter dated October 29, 2013, the employing establishment advised that it would have
continued to accommodate appellant with restrictions prescribed by his treating physician if he
had not voluntarily retired, effective June 1, 2009. On November 4, 2013 appellant reported that
he was self-employed as a contractor during the period June 2010 to November 2011.
By decision dated December 16, 2013, OWCP denied his claim for wage-loss
compensation due to total disability for the period June 1, 2009 through December 13, 2012.
Appellant appealed this decision to the Board and on July 1, 2014,6 it set aside the December 16,
2013 decision and remanded for additional development including a supplemental report from the
second opinion physician, Dr. Ascar Egtedar, a Board-certified orthopedic surgeon, regarding
4
Docket No. 10-2223 (issued August 24, 2011); Docket No. 12-1480 (issued December 10, 2012); Docket No. 140540 (issued July 1, 2014).
5

Id.

6

Id.

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whether the medical record established that a change in the nature and extent of the injury-related
condition prevented appellant from performing his modified duties from June 1, 2009 to
December 14, 2012.
On February 24, 2016 OWCP referred appellant for a second opinion evaluation with
Dr. Aubrey A. Swartz, a Board-certified orthopedic surgeon. In a report dated March 6, 2016,
Dr. Swartz reviewed the statement of accepted facts (SOAF) and medical history. He noted that
following his carpal tunnel release surgeries, appellant returned to full-time modified work from
May 18, 2006 through his retirement in June 2009. Dr. Swartz opined, “With respect to the date
that he stopped working, June 20, 2009, I do not find that he was temporary totally disabled for
any period of time since his retirement of June 20, 2009, until the date of his revision surgery of
December 14, 2012.” He noted that he had examined appellant on July 30, 2007 and that he was
capable of gainful employment at that time. Dr. Swartz opined that appellant’s description of his
pain as 8/10 was inconsistent with the activities he reported at home. He concluded that there was
no evidence of any injury-related change preventing appellant from performing gainful activity on
or after June 1, 2009 through December 13, 2012.
In a January 9, 2019 memorandum to file, OWCP noted that the circumstances of the case
required that the second opinion physician review all medical records from 2009 through 2012 in
accordance with the Board’s prior decision.
On January 24, 2019 OWCP referred appellant, an updated SOAF, and a list of questions
for a second opinion evaluation with Dr. Gary J. La Tourette, an orthopedic surgeon.
In his March 4, 2019 report, Dr. La Tourette reviewed the SOAF and medical records. He
opined that after reviewing the medical records from November 7, 2011 through June 1, 2015
appellant could not have performed his modified duties as a carpenter based on the
electromyogram (EMG) reports. Dr. La Tourette found that the EMG reports and bilateral positive
Tinel’s signs were consistent with bilateral carpal tunnel syndrome. He found that appellant had
not reached maximum medical improvement. Dr. La Tourette noted that appellant had undergone
a total of four carpal tunnel release surgeries. He opined that, due to the chronicity of the condition,
further surgery would not be of benefit. Dr. La Tourette found that appellant could not return to
his job as carpenter. He found that appellant was totally disabled from work.
On April 4, 2019 OWCP requested that Dr. La Tourette provide clarification with regard
to whether the accepted bilateral carpal tunnel syndrome prevented appellant from performing his
modified word duties from June 1, 2009 through December 14, 2012.
On April 29, 2019 Dr. La Tourette provided an addendum to his March 4, 2019 report,
noting that he had reviewed the medical records from June 1, 2009 through December 14, 2012.
He opined that appellant could have performed his modified duties as a carpenter which included
no gripping or lifting over 20 pounds and no use of vibration tools through June 1, 2009.
By decision dated May 30, 2019, OWCP denied appellant’s claim for a recurrence of
disability commencing June 1, 2009.

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LEGAL PRECEDENT
An employee seeking benefits under FECA7 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence.8 For each period of disability claimed, the employee has the burden of proof to establish
that he or she was disabled from work as a result of the accepted employment injury.9 This burden
of proof requires that a claimant furnish medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that, for each period of disability
claimed, the disabling condition is causally related to the employment injury, and supports that
conclusion with medical reasoning.10
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.11 This term also means an inability to work when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to the work-related injury or
illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force), or when the physical requirements of such
an assignment are altered so that they exceed his or her established physical limitations.12
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the weight
of reliable, probative, and substantial evidence a recurrence of total disability. As part of this
burden of proof, the employee must show either a change in the nature and extent of the injuryrelated condition, or a change in the nature and extent of the light-duty requirements.13
An individual who claims a recurrence of disability resulting from an accepted employment
injury has the burden of proof to establish that the disability is causally related to the accepted
injury. This burden requires furnishing medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disabling condition is

7

Supra note 2.

8
D.M., Docket No. 18-0527 (issued July 29, 2019); B.K., Docket No. 18-0386 (issued September 14, 2018);
Amelia S. Jefferson, 57 ECAB 183 (2005); Nathaniel Milton, 37 ECAB 712 (1986).
9

W.H., Docket No. 19-0168 (issued May 10, 2019); D.G., Docket No. 18-0597 (issued October 3, 2018).

10

J.D., Docket No. 18-0616 (issued January 11, 2019); C.C., Docket No. 18-0719 (issued November 9, 2018).

11
20 C.F.R. § 10.5(x); M.S., Docket No. 18-0130 (issued September 17, 2018); Theresa L. Andrews, 55 ECAB
719 (2004).
12

Id.

13

M.S, supra note 11; Shelly A. Paolinetti, 52 ECAB 391 (2001); Robert Kirby, 51 ECAB 474 (2000); Terry R.
Hedman, 38 ECAB 222 (1986).

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causally related to the employment injury and supports that conclusion with sound medical
reasoning.14
ANALYSIS
The Board finds that this case is not in posture for decision.
In his March 4, 2019 report, Dr. La Tourette reviewed medical records from November 7,
2011 through June 1, 2015 and opined that appellant was totally disabled from work as he could
not have performed his modified duties as a carpenter based on the EMG reports. On April 4,
2019 OWCP requested that Dr. La Tourette provide clarification with regard to whether the
accepted bilateral carpal tunnel syndrome prevented appellant from performing his modified work
duties from June 1, 2009 through December 14, 2012. In his April 29, 2019 addendum report,
Dr. La Tourette reviewed the medical records from June 1, 2009 through December 14, 2012 and
opined that appellant was not disabled from work as he could have performed his modified duties
as a carpenter “through June 1, 2009.” As Dr. La Tourette still has not addressed the issue of
whether appellant had a recurrence of disability from June 1, 2009 through December 14, 2012,
the Board finds that his opinion is of diminished probative value and is insufficient to carry the
weight of the medical evidence.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility to see that justice is done.15 The nonadversarial policy of proceedings
under FECA is reflected in OWCP’s regulations at section 10.121.16 Once OWCP undertakes to
develop the medical evidence further, it has the responsibility to do so in a proper manner.17
The case must therefore be remanded for clarification from Dr. La Tourette, as to whether
appellant was totally disabled from work from June 1, 2009 through December 14, 2012. If
Dr. La Tourette is unable to clarify or elaborate on his previous reports, or if the supplemental
report is also vague, speculative, or lacking rationale, OWCP must submit the case record and a
detailed SOAF to another second opinion physician for the purpose of obtaining a rationalized
medical opinion on the issue.18 After this and such other further development as deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.

14

M.S., supra note 11; S.S., 59 ECAB 315 (2008).

15

H.T., Docket No. 18-0979 (issued February 4, 2019); John J. Carlone, 41 ECAB 354, 358-60 (1989).

16

20 C.F.R. § 10.121.

17

Id.

18

R.O., Docket No. 19-0885 (issued November 4, 2019); Talmadge Miller, 47 ECAB 673 (1996).

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ORDER
IT IS HEREBY ORDERED THAT the May 30, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for proceedings consistent
with this decision of the Board.
Issued: March 23, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.J., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION FACILITY, Rocky Mount, NC,
Employer
__________________________________________

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

Docket No. 15-0777
Issued: February 3, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 19, 2015 appellant filed a timely appeal from a January 5, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
has elapsed from the last merit decision dated April 18, 2014 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.2
ISSUE
The issue is whether appellant abandoned a telephonic hearing before an OWCP hearing
representative, which was scheduled for December 10, 2014.
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2

5 U.S.C. § 8101 et seq.

Appellant filed a timely request for oral argument, pursuant to 20 C.F.R. § 501.5(b). By order dated August 27,
2015, the Board, after exercising its discretion, denied his request as his arguments could be adequately addressed in
a decision based on a review of the case record. Order Denying Request for Oral Argument, Docket No. 15-0777
(issued August 27, 2015).

On appeal, appellant stated that he incorrectly read that OWCP would initiate the
telephone conference call. He contended that the evidence of record established that he
sustained an injury at work.
FACTUAL HISTORY
On July 21, 2013 appellant, then a 64-year-old electronic technician, filed a traumatic
injury claim (Form CA-1) alleging that on that date he injured the back of his head, his hand,
right elbow, neck, buttocks, and back when he fell backward while putting on a drive belt and hit
his head on the floor.
By letter dated March 14, 2014, OWCP stated that when appellant’s claim was first
received, it appeared to be a minor injury, which resulted in minimal or no lost time from work,
and payment of a limited amount of medical expenses was administratively approved. It
reopened the claim for consideration because he was requesting further medical treatment.
OWCP informed appellant that the evidence submitted was insufficient to establish that the
incident or employment factor occurred as alleged or how his injury resulted in the diagnosed
condition. It instructed him regarding the medical and factual evidence needed, provided him a
series of questions to answer, and afforded him 30 days to respond to its inquiries.
By decision dated April 18, 2014, OWCP denied appellant’s claim as it found he failed to
establish fact of injury. Specifically, it found none of the medical evidence submitted by him
established that the diagnosed condition was causally related to the July 21, 2013 employment
incident.
On May 14, 2014 OWCP received appellant’s May 5, 2014 request for an oral hearing
before an OWCP hearing representative.
On October 29, 2014 OWCP notified appellant that a hearing would be held on
December 10, 2014 at 9:00 a.m. Eastern Standard Time (EST). It instructed him to call the
provided toll-free number a few minutes before the scheduled hearing time and enter in a pass
code when prompted.
By decision dated January 5, 2015, OWCP’s Branch of Hearings and Review found that
appellant had abandoned his hearing request. It found that he received written notification of the
hearing 30 days in advance, but failed to appear. The Branch of Hearings and Review further
determined that nothing in the record established that appellant contacted, or attempted to
contact, OWCP either prior to or subsequent to the scheduled hearing to explain his failure to
participate. It concluded that he had abandoned his hearing request.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.3 Unless
3

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

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otherwise directed in writing by the claims examiner, an OWCP hearing representative will mail
a notice of the time and place of the hearing to the claimant and any representative at least 30
days before the scheduled date.4 OWCP has the burden of proving that it mailed notice of a
scheduled hearing to a claimant.5
A hearing before the Branch of Hearings and Review can be considered abandoned only
under very limited circumstances.6 With respect to abandonment of hearing requests, Chapter
2.1601.6(g) of OWCP procedure manual provides in relevant part that failure of the claimant to
appear at the scheduled hearing, failure to request a postponement, and failure to request in
writing within 10 days after the date set for the hearing that another hearing be scheduled shall
constitute abandonment of the request for a hearing.7 Under these circumstances, the Branch of
Hearings and Review will issue a formal decision finding that the claimant has abandoned his
request for a hearing and return the case to the district office.8
ANALYSIS
Following OWCP’s April 18, 2014 decision denying his claim, appellant timely
requested a telephonic hearing before an OWCP hearing representative. On October 29, 2014
OWCP notified appellant that his hearing was scheduled for December 10, 2014 at 1:00 p.m.,
EST. It provided a toll-free number and a pass code to use at the time of the hearing. Appellant
did not request a postponement, failed to call in at the scheduled hearing, and failed to provide
any notification for such failure to OWCP within 10 days of the scheduled date of the hearing.
As he did not appear and did not comply with OWCP’s requirements regarding requesting
postponement and/or rescheduling within the allotted time, the Board finds that OWCP properly
determined that he had abandoned his hearing request.
On appeal, appellant provided an explanation as to why he did not appear for the
scheduled telephone hearing. However, the Board concludes that this explanation constitutes
new evidence which the Board is precluded from reviewing for the first time on appeal.9
Appellant further contends on appeal that he established that he sustained an
employment-related injury. However, as noted above, the Board does not have jurisdiction over
the merits of his claim. The only issue on appeal is whether appellant abandoned a telephonic
hearing on December 10, 2014. As the Board has found, there is no evidence of record that he

4

20 C.F.R. § 10.617(b).

5

See also Michelle R. Littlejohn, 42 ECAB 463 (1991).

6

Claudia J. Whitten, 52 ECAB 483 (2001).

7

20 C.F.R. § 10.622(f).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written Record, Chapter
2.1601.6(g) (October 2011).
9

See 20 C.F.R. § 501.2(c)(1).

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followed any of OWCP’s protocols relative to the scheduled telephone hearing. Thus, the Board
finds that appellant abandoned his request for an oral hearing.10
CONCLUSION
The Board finds that appellant abandoned his request for a telephonic hearing before an
OWCP hearing representative, which was scheduled for December 10, 2014.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 5, 2015 is affirmed.11
Issued: February 3, 2016
Washington, DC

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

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

10

C.H., Docket No. 14-620 (issued June 25, 2014).

11

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member of the
Board effective November 16, 2015.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
West Sacramento, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 12-1781
Issued: February 12, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On August 13, 2012 appellant filed an appeal from a decision of the Office of Workers’
Compensation Programs (OWCP) dated May 15, 2012 in File No. xxxxxx954. The Board
assigned Docket No. 12-1781.1 The Board has duly considered the matter and finds this case is
not in posture for a decision.
The record reflects that OWCP issued a schedule award on October 8, 2009 for an eight
percent impairment of appellant’s right upper extremity and a zero percent impairment of the left
upper extremity. In a decision dated October 15, 2010, OWCP denied appellant’s request for
reconsideration. On May 2, 2012 appellant filed a Form CA-7, together with additional medical
evidence requesting a schedule award, contending that she had additional impairment. By letter
dated May 15, 2012, OWCP informed appellant that it would not take further action on her
request for a schedule award unless their decision was remanded back to them by the Board for
further development.
In schedule award cases, a distinction is made between an application for an additional
schedule award and a request for reconsideration of the existing schedule award. When a
claimant is asserting that the original award was erroneous based on his or her medical condition
at that time, this is a request for reconsideration. A claim for an additional schedule award may
1

This case was previously before the Board. By order dated December 21, 2011, the Board dismissed appellant’s
appeal at her request. Docket No. 11-1195 (issued December 21, 2011).

be based on new exposure to employment factors or on the progression of an employmentrelated condition, without new exposure, resulting in greater permanent impairment.2
The Board finds that appellant has submitted new evidence addressing a claim for an
additional schedule award based on a progression of her employment-related condition rather
than arguing that the original schedule award was in error.3 The Board has repeatedly held that a
claimant 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. The Board finds, therefore, that OWCP
erroneously refused to address appellant’s request for an increased schedule award. On remand,
OWCP should review and develop the medical evidence and issue an appropriate decision
regarding appellant’s request for an increased schedule award.
IT IS HEREBY ORDERED THAT the May 15, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this order of the Board.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”4
Issued: February 12, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

2

Candace A. Karkoff, 56 ECAB 622 (2005).

3

Rose V. Ford, 55 ECAB 449 (2004).

4

20 C.F.R. § 501.6(d).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Mobile, AL, Employer
__________________________________________

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Appearances:
William Fenaughty, Esq., for the appellant
No appearance, for the Director

Docket No. 09-911
Issued: January 15, 2010

Oral Argument November 19, 2009

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

JURISDICTION
On February 25, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs merit decision dated January 15, 2009 with respect to an overpayment
of compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction
over the January 15, 2009 decision.
ISSUES
The issues are: (1) whether the Office properly found an overpayment of $195,318.25
was created; (2) whether the Office properly determined appellant was not “without fault” in
creating the overpayment and therefore not entitled to waiver; and (3) whether the Office
properly found the overpayment should be recovered by deducting $620.00 every 28 days from
continuing compensation payments.
FACTUAL HISTORY
The case was before the Board on a prior appeal. In a decision dated June 3, 2008, the
Board held that appellant forfeited his compensation from January 1, 1995 to April 21, 1997 and

January 16, 1998 to April 7, 2004 because he knowingly omitted earnings.1 The history of the
case is provided in the Board’s prior decision and is incorporated herein by reference.
By letter dated June 17, 2008, the Office advised appellant of a preliminary determination
that an overpayment of compensation of $195,318.25 was created. The accompanying
memorandum stated the gross compensation for the periods January 1 to April 27, 1995 and
January 16, 1998 to April 7, 2004 was $195,318.25. The record contains a worksheet containing
compensation amounts added for the relevant period without explanation as to the specific period
for each amount. The Office also made a preliminary finding that appellant was at fault in
creating the overpayment.
On July 17, 2008 appellant requested a prerecoupment hearing and submitted an
overpayment recovery questionnaire (Form OWCP-20). He reported $2,389.00 in monthly
income and $2,489.00 in monthly expenses. At a November 7, 2008 hearing, appellant provided
additional information regarding his income and expenses. On December 15, 2008 he submitted
a December 2, 2008 letter indicating that his monthly income was $2,478.00 and his monthly
expenses $2,445.00.
By decision dated January 15, 2009, the hearing representative finalized the preliminary
findings of a $195,318.95 overpayment and fault in creating the overpayment. With respect to
repayment, he found that appellant had provided “incomplete, conflicting and undocumented”
information regarding his income and expenses. The hearing representative noted that appellant
had provided an undocumented contention in the December 2, 2008 letter that he was paying
certain bills for his mother and his niece. He concluded that appellant could repay the
overpayment by deducting $620.00 from continuing compensation. Based on Office procedures
regarding interest, the hearing representative stated that the debt was compromised to
$162,241.84.
LEGAL PRECEDENT -- ISSUE 1
If a claimant has any earnings during a period covered by a Form EN1032, which he
knowingly fails to report, he is not entitled to compensation for any portion of the period covered
by the report.2 Where the right to compensation is forfeited, the Office shall recover any
compensation already paid for the period of forfeiture.3
ANALYSIS -- ISSUE 1
The Board previously reviewed the forfeiture issue and found that appellant had forfeited
his right to compensation for the periods January 1, 1995 to April 21, 1997 and January 16, 1998
to April 7, 2004. The compensation paid to him during those periods represents an overpayment
of compensation.
1

Docket No. 08-263 (issued June 3, 2008).

2

Cheryl Thomas, 55 ECAB 610, 617 (2004); Louis P. McKenna, Jr., 46 ECAB 328 (1994).

3

20 C.F.R. § 10.529(b).

2

With respect to the amount of $195,318.25, the Office provided calculations regarding
the amount of compensation paid appellant for the periods of the forfeiture. No contrary
evidence or argument was presented. The Board finds that the amount of the overpayment was
$195,318.25 based on the evidence of record.
LEGAL PRECEDENT -- ISSUE 2
Section 8129(b) of the Federal Employees’ Compensation Act4 provides: “Adjustment or
recovery by the United States may not be made when incorrect payment has been made to an
individual who is without fault and when adjustment or recovery would defeat the purpose of the
Act or would be against equity and good conscience.”5 Waiver of an overpayment is not
permitted unless the claimant is “without fault” in creating the overpayment.6
On the issue of fault, 20 C.F.R. § 10.433 provides that an individual will be found at fault
if he or she has done any of the following: “(1) made an incorrect statement as to a material fact
which he or she knew or should have known to be incorrect; (2) failed to provide information
which he or she knew or should have known to be material; or (3) accepted a payment which he
or she knew or should have known was incorrect.”
ANALYSIS -- ISSUE 2
As the Board noted in its prior decision, appellant knowingly omitted earnings from the
EN1032 forms covering the periods January 1, 1995 to April 21, 1997 and January 16, 1998 to
April 7, 2004. The standards set forth at 20 C.F.R. § 10.433 clearly state that fault is established
when a claimant fails to provide information which he knew or should have known was material.
Appellant signed certification clauses on EN1032 forms that advised him in specific language
that he might be subject to civil, administrative or criminal penalties if he knowingly made a
false statement or misrepresentation or concealed a fact to obtain compensation. In signing the
forms he acknowledged his duty to fill out the form properly, including the duty to report
income.7 The Board finds that appellant failed to provide information that he knew or should
have known was material and the Office properly found him at fault in creating the overpayment.
Since appellant was not “without fault,” he is not entitled to waiver of the overpayment.
LEGAL PRECEDENT -- ISSUE 3
The Office’s regulations provide:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to [the Office] the amount of the
overpayment as soon as the error is discovered or his or her attention is called to
4

5 U.S.C. § 8101 et seq.

5

Id. at § 8129(b).

6

Norman F. Bligh, 41 ECAB 230 (1989).

7

See Harold F. Franklin, 57 ECAB 387, 395 (2006).

3

the same. If no refund is made, [the Office] shall decrease later payments of
compensation, taking into account the probable extent of future payments, the rate
of compensation, the financial circumstances of the individual and any other
relevant factors, so as to minimize any hardship.”8
ANALYSIS -- ISSUE 3
The above standard indicates that the Office must consider the financial circumstances of
the individual so as to minimize hardship. In this case, the hearing representative reviewed the
financial information provided by appellant in detail. He noted a monthly income of $2,656.00,
based on $2,267.00 in compensation benefits and $389.00 in social security benefits.9 The
hearing representative accepted “without complete documentation” the $2,445.00 in monthly
expenses reported in the December 2, 2008 statement. With respect to additional expenses
listed, such as telephone bills for appellant’s mother and niece, as well as car insurance for his
niece, the hearing representative found that these expenses were new and undocumented. He
added the undocumented expenses to the $211.00 in excess income and found that appellant
could repay the overpayment by deducting $620.00 from continuing compensation.
On appeal, appellant argues that the repayment amount should be $211.00, the difference
between income and expenses. However, the standard at 20 C.F.R. § 10.441 does not require
that repayment be limited to the difference in income and expenses. As noted above, the Office
must consider the extent of future payments, rate of compensation, financial circumstances and
other relevant factors to minimize hardship. The overpayment must be recovered and the
hearing representative considered the evidence of record, the amount of the overpayment and the
financial information. He properly considered the relevant factors and attempted to “minimize
any hardship” by requiring repayment at $620.00 from continuing compensation. The Board
finds the repayment amount was determined in accord with Office regulations on recovery of an
overpayment.
It is also noted that on appeal appellant wished to submit additional financial information.
The Board’s jurisdiction is limited to review of the evidence that was before the Office at the
time of its final decision.10
CONCLUSION
The Board finds an overpayment of $195,318.25 was created and appellant was at fault in
creating the overpayment. The Office properly considered the relevant factors in requiring
repayment by deducting $620.00 every 28 days from continuing compensation.

8

20 C.F.R. § 10.441.

9

Appellant reported $2,089.00 in monthly compensation; his actual net compensation every 28 days was
$2,092.70 or $2,267.00 per month (1/12 of the annual compensation).
10

20 C.F.R. § 501.2(c).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 15, 2009 is affirmed.
Issued: January 15, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Colton, CA, Employer
__________________________________________

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

Docket No. 15-1022
Issued: August 17, 2016

Case Submitted on the Record

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

JURISDICTION
On March 30, 2015 appellant filed a timely appeal from a March 10, 2015 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained more than 21 percent
permanent impairment to his left lower extremity, for which he previously received a schedule
award.
On appeal appellant contends that the schedule award should be greater as he lost his job
and mobility as a result of his injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 4, 2004 appellant, then a 38-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) for a work-related injury to his left knee that occurred on August 25, 2004.
He alleged that the injury occurred while pushing up with his legs from a crouched position and
attaining standing position. OWCP accepted the conditions of old bucket handle tear of medial
meniscus, bilateral; and Pica Syndrome and paid benefits. Surgeries appellant underwent
include: July 22, 2008 left knee arthroscopy, debridement of the medial meniscus and lateral
meniscus, chondroplasty of the medial femoral condyle; September 26, 2011 right knee
arthroscopy with partial medial and lateral meniscectomy; and July 12, 2013 left knee
arthroscopy and partial meniscectomy. Appellant has had intermittent periods of work and work
stoppage. He has been temporarily totally disabled since the July 12, 2013 surgery.
By decision dated June 29, 2006, OWCP awarded appellant eight percent impairment for
loss of use of the left lower extremity. The award ran for 23.04 weeks for the period January 19,
2005 to June 29, 2006. Appellant thereafter requested an increased award. By decision dated
December 3, 2009, OWCP awarded an additional 12 percent impairment for loss of use of the
left lower extremity, for a total impairment of 20 percent.2 The award ran for 34.56 weeks for
the period February 19 to October 18, 2009.
On February 22, 2012 appellant filed a schedule award claim for a new increased
schedule award and submitted new medical evidence in support of the request.
In a January 25, 2012 report, Dr. Ronny Ghazal, a Board-certified orthopedic surgeon,
noted the history of injury and appellant’s physical examination findings.
On August 3, 2012 OWCP referred appellant’s record to its medical adviser for an
opinion regarding the degree of permanent impairment of appellant’s bilateral lower extremities.
In a September 7, 2012 report, an OWCP medical adviser noted that appellant was status post
partial medial and partial lateral meniscectomies, both right and left lower extremities. He noted
that with the history of right knee arthroscopy on September 26, 2011, a date of maximum
medical improvement (MMI) of January 25, 2012 would be reasonable, i.e., four months
following the surgical procedure and agreed that the 10 percent right lower extremity impairment
for status post partial medial and partial lateral meniscectomy was proper under the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). The
OWCP medical adviser further opined that the record did not document any additional left lower
extremity impairment beyond the 20 percent awarded.
Appellant continued to submit medical evidence from Dr. Ghazal regarding treatment of
his knee conditions. In a June 13, 2013 progress report, Dr. Ghazal provided an impression of
left knee medial meniscus retear with a seven millimeter osteochondral defect in the medial
femoral condyle and recommended left knee arthroscopy, which appellant underwent on
July 12, 2013. Appellant was temporarily totally disabled for a period following the surgery. On
October 24, 2013 he was released to sedentary work. However, on October 24 and
2

Twenty percent total impairment less eight percent impairment, previously awarded, equaled twelve percent
impairment owed appellant.

2

November 14, 2013, the employing establishment advised no work was available for appellant.
Progress reports from Dr. Ghazal continued to report on appellant’s lower extremity condition
and that he was capable of performing only modified, sedentary-duty work.
In an April 14, 2014 report, Dr. Richard A. Bjama, an orthopedic surgeon, noted the
history of injury, presented left knee examination findings, and diagnosed left knee posttraumatic osteoarthritis. Discussion was held with Dr. Ghazal regarding a left total knee
arthroplasty and appellant was referred to a different total joint specialist. On April 14, 2014
Dr. Bjama again diagnosed left knee traumatic osteoarthritis and recommended against a total
knee replacement.
In a June 10, 2014 report, Dr. Peter Elsissy, a Board-certified orthopedic surgeon, noted
the history of injury, appellant’s medical course, and diagnosed left knee medial osteoarthritis,
for which he recommended medial unicompartmental arthroplasty. He opined that appellant
could only work modified, sedentary-duty work and appellant’s knee condition was industrial in
nature. Appellant underwent a left medial compartment unicompartmental arthroplasty on
August 6, 2014.
In a September 8, 2014 report, Dr. David T. Easley, a Board-certified orthopedic surgeon
and OWCP referral physician, reviewed a statement of accepted facts and appellant’s medical
record. He noted examination findings and provided an impression of status post multiple
arthroscopic left knee surgeries, status post left unicompartmental knee replacement, status post
arthroscopic right knee surgery, and pes anserine bursitis left knee. Dr. Easley opined that
appellant was temporarily totally disabled following his August 6, 2014 surgery, which was
necessary due to residuals from the August 25, 2004 work injury.
Physical therapy and progress reports were submitted regarding appellant’s condition.
In a December 5, 2014 report, Dr. Elsissy noted the history of injury and set forth
examination findings. An impression of status post left medial compartment unicompartmental
arthroplasty was provided. Dr. Elsissy opined that appellant reached MMI and had permanent
work restrictions. He opined that appellant’s current left knee condition was industrial in nature.
Under the sixth edition of the A.M.A., Guides, Dr. Elsissy opined that appellant had 25 percent
left lower extremity impairment. Under Table 16-3, page 511, appellant was assigned class 2.
Dr. Elsissy accorded a functional history grade modifier 2, physical examination grade modifier
0, and clinical testing grade modifier 0. He found a net adjustment of -4, which resulted in class
2, grade C for 25 percent impairment.
On February 9, 2015 appellant filed a claim for an increased schedule award.
On February 18, 2015 OWCP referred appellant’s medical record to its medical adviser
for review. In a February 24, 2015 report, an OWCP medical adviser reviewed the medical
records of file, including Dr. Elsissy’s December 5, 2014 report. He advised that, under Table
16-3, Knee Regional Grid -- Lower Extremity Impairment, a class 2 default rating for status post
total knee replacement was 25 percent. A grade 2 modifier for functional history adjustment
would result in 0 net adjustment and a physical examination adjustment with a grade modifier of
0 would be a -2 net adjustment. Clinical studies adjustment was not applicable as it was utilized

3

for class placement. The medical adviser opined that the total net adjustment was -2, not -4 as
found by Dr. Elsissy, which would result in a class 2, category A or a 21 percent left lower
extremity impairment. As this impairment is 1 percentage point higher than the previously
assessed 20 percent, he opined that appellant was entitled to an additional 1 percent impairment
of the left lower extremity. The medical adviser further opined that MMI was obtained
December 5, 2014, approximately four months following the medial compartment
hemiarthroplasty.
By decision dated March 10, 2015, OWCP awarded appellant an additional 1 percent left
lower extremity impairment of the left lower extremity, for a total impairment of 21 percent.
The award ran for 2.88 weeks for the period December 5 to 25, 2014. It is from this latest
decision which appellant has filed his appeal requesting an increased schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations 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.3 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law 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
A claimant may seek an increased schedule award if the evidence establishes that he or
she sustained an increased impairment at a later date causally related to his or her employment
injury.5 Moreover, OWCP procedure provides that a claim for an increased schedule award may
be based on an incorrect calculation of the original award or an increased impairment at a later
date which is due to work-related factors. In such a situation, an increased schedule award may
be payable if supported by the medical evidence.6
The A.M.A., Guides provides a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health (ICF).
For upper and lower extremity impairments, the evaluator identifies the impairment Class of
3

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

4

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition
will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
5

Linda T. Brown, 51 ECAB 115, 116 (1999); Paul R. Reedy, 45 ECAB 488, 490 (1994).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.9 (February 2013). In addition, OWCP procedures provide that a request for reconsideration of a
schedule award based on a disagreement with the percentage awarded must be distinguished from a situation where
a claimant who previously received an award is filing for an increased impairment due to a worsening of the
claimant’s medical condition due to deterioration of his condition or increased exposure. Such a request for
increased impairment is not subject to the one-year time limitation for reconsideration. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3 (October 2011); Paul R. Reedy, id.

4

Diagnosis condition (CDX), which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS). The net
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).7 Evaluators are
directed to provide reasons for their impairment rating choices, including the choices of
diagnoses from regional grids and calculations of modifier scores.8
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.9 In some instances, an OWCP medical adviser’s opinion
can constitute the weight of the medical evidence. This occurs in schedule award cases where an
attending physician indicates that the MMI has been reached and described the permanent
impairment of the affected member, but does not offer an impairment rating. In this instance, a
detailed opinion by an OWCP medical adviser, who gives a percentage based on reported
findings and the A.M.A., Guides, may constitute the weight of the medical evidence.10
OWCP procedures state that any previous impairment to the member under consideration
is included in calculating the percentage of loss, except when the prior impairment is due to a
previous work-related injury, in which case the percentage already paid is subtracted from the
total percentage of impairment.11
ANALYSIS
OWCP accepted that appellant sustained conditions of old bucket handle tear of medial
meniscus, bilateral; and Pica Syndrome and paid benefits. In a decision dated December 3,
2009, it awarded a total impairment of 20 percent for loss of use of the left lower extremity.
Appellant subsequently requested an increased schedule award on February 22, 2012 related to
his right lower extremity12 and February 9, 2015 related to his left lower extremity. By decision
dated March 10, 2015, OWCP awarded appellant an additional 1 percent left lower extremity
impairment, for a total impairment of 21 percent.
The Board finds that appellant has not established a schedule award greater than 21
percent for the left lower extremity. Both Dr. Elsissy and the medical adviser opined that
appellant reached MMI on December 5, 2014, approximately four months following the medial
compartment hemiarthroplasty. Dr. Elsissy opined that appellant had 25 percent impairment to

7

R.Z., Docket No. 10-1915 (issued May 19, 2011).

8

J.W., Docket No. 11-289 (issued September 12, 2011).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013); see also L.R., Docket No. 14-674 (issued August 13, 2014); D.H., Docket No.
12-1857 (issued February 26, 2013).
10

See Federal (FECA) Procedure Manual, id. at Chapter 2.810.8(i) (September 2010).

11

Id. at Chapter 2.808.8.b (February 2013).

12

OWCP has not issued a final decision regarding impairment to the right lower extremity.

5

the left lower extremity, while OWCP’s medical adviser opined that he had 21 percent
impairment to the left lower extremity.
The Board finds that OWCP properly relied on its medical adviser’s impairment rating.
The medical adviser’s opinion was based on the complete record. He properly applied the
appropriate portions of the A.M.A., Guides to Dr. Elsissy’s clinical findings in determining
impairment to the left lower extremity. Both Dr. Elsissy and the medical adviser properly noted
that under Table 16-3, page 511, appellant had class 2, default 25 impairment as a result of total
knee replacement. Dr. Elsissy found that appellant had functional history grade modifier 2,
physical examination grade modifier 0, and clinical testing grade modifier 0. He found a net
adjustment of -4, which resulted in class 2, grade C for 25 percent impairment, while the medical
adviser found a net adjustment of -2, which resulted in class 2, grade A for 21 percent
impairment.
The medical adviser provided proper rationale for the percentage of the left lower
extremity.13 He properly identified the default value as 25 percent for class 2, total knee
replacement. The medical adviser agreed with Dr. Elsissy that appellant had grade modifiers of
2 for functional history and 0 for physical examination. However, he disagreed that appellant
had a modifier of 0 for clinical studies, noting that the objective study was used to place
appellant into the correct diagnostic class and thus was not applicable. This is in accordance
with section 16.3c and Table 16-8 of the A.M.A., Guides, and thus could not be used as a clinical
studies modifier and was therefore not applicable.14
As noted the default impairment for total knee replacement under class 2 is 25 percent
impairment. Utilizing the net adjustment formula to the modifiers provided (GMFH-CDX) +
(GMPE-CDX) + (GMCS-CDX) or (2-2) + (0-2) equals -2. As the net adjustment is -2, the result
is a class 2, category A or a 21 percent left lower extremity impairment as the medical adviser
found. As appellant was previously awarded 20 percent impairment and is entitled to 21 percent
impairment, OWCP properly awarded him an additional 1 percent impairment of the left lower
extremity.
On appeal appellant contends that the schedule award should be greater as he lost his job
and mobility as a result of his injury. There is a distinction between the concept of disability and
that of permanent impairment. Schedule awards are included under FECA to indemnify for the
loss of or loss of use of specific members or functions of the body without regard to loss of
wage-earning capacity.15 Furthermore, there is no rationalized medical evidence of record
supporting a greater permanent impairment of the left lower extremity impairment than 21
percent.

13

See Federal (FECA) Procedure Manual, supra note 9.

14

A.M.A., Guides 518.

15

See Lorraine B. Ford, 10 ECAB 232 (1958); see also R.L., Docket No. 09-1948 (issued June 29, 2010).

6

Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant did not sustain greater than 21 percent impairment to the
left lower extremity, for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the March 10, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.16
Issued: August 17, 2016
Washington, DC

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

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

16

James A. Haynes, Alternate Judge, participated in the original decision but was longer a member of the Board
effective November 16, 2015.

7


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

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Appearances:
Arthur Wiley, for the appellant
Office of Solicitor, for the Director

Docket No. 09-1578
Issued: March 2, 2010

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 June 3, 2009 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ merit decision dated May 13, 2009. Under 20 C.F.R. §§ 501(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained left leg and lower back injuries in the
performance of duty on April 4, 2007.
FACTUAL HISTORY
Appellant, a 59-year-old customer service representative, filed a claim for benefits on
April 3, 2009, alleging that she strained her left leg and lower back on April 4, 2007 when she
fell into a hamper while counting mail.
In a letter dated April 7, 2009, the Office stated that the evidence was not sufficient to
establish that she actually experienced the incident or employment factor alleged to have caused
injury. It asked appellant to submit statements from any persons who witnessed her injury or had

immediate knowledge of it, to state the immediate effects of the injury and indicate what he did
immediately thereafter, and to explain why she delayed seeking medical attention. The Office
requested copies of all medical reports pertaining to the alleged work incident. It advised her that
she had 30 days to submit the requested information.
In a March 26, 2009 statement, received by the Office on April 9, 2009, appellant stated:
“These are the facts and factors of employment that I believe to be responsible for
my condition:
On about April 4, 2007 at approximately 7:15 a.m., I was lifting and
moving tubs and trays of mail from a hamper, when I fell into the hamper
as I was lifting up a tub of mail. The area manager at the time, Mr. Ayala
helped me up. I stated I felt fine at the time and did not wish to seek
medical attention. Therefore, I continued to lift and move trays weighing
(approximately two to five pounds and tubs weighing at approximately 35
pounds.
Then in June 2007, while in the supply room, I started moving and lifting
supplies weighing at approximately 55-60 pounds to clear the aisles and
entrance way, because could not walk in the supply room to obtain
supplies.
Approximately three weeks later in July, I begin to have pain in my left
leg, when I dressed, use the bathroom and drive. I continued to go about
my duties, but the pain became unbearable. I went to my primary
physician Dr. Lillian Howard on August 14, 2007 complaining of the pain
in left leg, who then referred me to Dr. Kants’ office.”
Appellant also submitted an employing establishment routing slip dated April 4, 2007,
received by the Office on April 10, 2009, which contained the following handwritten notation,
addressed to “management”:
“This is to inform you of the accident I had on April 4, 2007 at about 7:15 a.m. this
morning. I do not wish medical treatment at this time.”
In a Form CA-20, attending physician’s report dated April 2, 2009, Dr. Lillian Howard,
Board-certified in family practice, indicated that the date of injury was April 4, 2007. She stated
in a handwritten notation, however, that appellant had been referred to an orthopedic physician
on October 24, 2007 and had reported no fall and no trauma.
In a Form CA-17 report dated April 8, 2009, received by the Office on April 15, 2009,
Dr. Andrew P. Kant, Board-certified in orthopedic surgery, advised that appellant sustained
injuries to her left leg and lower back on April 4, 2007 while lifting and moving trays of mail. He
indicated that the history of injury appellant provided was consistent with the injuries she
sustained. Dr. Kant placed appellant on disability until April 22, 2009, at which time he could
return to work with restrictions. In a Form CA-20 report dated April 8, 2009, received by the
Office on April 16, 2009, he diagnosed a herniated nucleus pulposus at L5-S1 and left lumbar
2

radiculopathy. Dr. Kant reiterated that appellant sustained a work injury on April 4, 2007 and
restated her work restrictions.1
In an April 9, 2009 letter from appellant’s health and resource manager, Sharon R. Boatner,
received by the Office on April 15, 2009, the employing establishment controverted the claim.
Ms. Boatner stated that, based on its investigation of the circumstances surrounding the claim,
appellant had not established fact of injury or a causal relationship between the alleged incident
and her claimed injuries. She noted that there was no record of a report of injury in the employing
establishment’s records. Ms. Boatner asserted that the employing establishment did not have a
copy of appellant’s April 4, 2007 routing slip, despite reviewing its files in the health and resource
management office, the safety office and her work unit.
Appellant also submitted a copy of a single page from an undated hearing transcript in
which she and her husband indicated that she sustained an injury on April 4, 2007 while moving
mail in a supply room.2
In a May 1, 2009 response to the Office’s developmental letter, appellant stated that she
informed management that she had been injured on April 4, 2007 but delayed seeking medical
treatment because she felt okay. She also stated that she experienced pain on August 14, 2007 and
had experienced pain in her left leg since her injury.
By decision dated May 13, 2009, the Office denied appellant’s claim, finding that she
failed to establish fact of injury. It noted that appellant had indicated three different dates of
injury: April 4, 2007, when she alleged that she was injured when he fell into the hamper while
lifting out a tub of mail; June 2007, when she asserted that he was injured while moving and lifting
supplies in the supply room; and July 2007, when she stated that she experienced pain in her left
leg while dressing, using the bathroom and driving. The Office indicated that these conflicting
dates of injury cast doubt that she sustained an injury to her left leg and lower back on
April 4, 2007.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing that 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 the Act, that the claim was
timely filed within the applicable time limitation period of the Act, 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 are causally related to the employment injury.4 These are the essential

1

Dr. Kant indicated that he had performed an L5-S1 decompression/lumbar decompression on appellant. He did
not, however, provide any documentation or indicate the date of this procedure.
2

The Board notes that appellant has filed a separate, Form CA-2 claim for an occupational disease, Docket No.
09-1658, OWCP claim number xxxxxx615, seeking benefits for a low back condition.
3

5 U.S.C. § 8101 et seq.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

3

elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually experienced
the employment incident at the time, place and in the manner alleged.6 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish that
the employment incident caused a personal injury.7
The Office cannot accept fact of injury if there are such inconsistencies in the evidence as
to seriously question whether the specific event or incident occurred at the time, place and in the
manner alleged, or whether the alleged injury was in the performance of duty,8 nor can the Office
find fact of injury if the evidence fails to establish that the employee sustained an “injury” within
the meaning of the Act. An injury does not have to be confirmed by eyewitnesses in order to
establish the fact that an employee sustained an injury in the performance of duty, as alleged, but
the employee’s statements must be consistent with surrounding facts and circumstances and her
subsequent course of action.9 Such circumstances as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged injury,
and failure to obtain medical treatment may case doubt on an employee’s statements in
determining whether he or she has established his or her claim.10
ANALYSIS
In this case, appellant has not established fact of injury because of inconsistencies in the
evidence that cast serious doubt as to whether the specific event or incident occurred at the time,
place and in the manner alleged. She stated on her April 3, 2009 CA-1 form that she injured her
left leg and lower back on April 4, 2007 when she fell into a hamper while counting mail.
However, the record contains no contemporaneous medical reports documenting that appellant
received treatment for left leg and lower back injuries. In her May 1, 2009 response to the Office’s
developmental letter, appellant stated that she informed management that she had been injured on
April 4, 2007 but delayed seeking medical treatment because she felt okay. Although she
submitted the April 7, 2007 routing slip, which was addressed to “management,” this document
was lacking in probative value because it merely contains her unsubstantiated assertion that she
sustained an injury on April 4, 2007 for which she received medical treatment. There is no
5

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

6

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

7

Id. For a definition of the term “injury,” see 20 C.F.R. §10.5(e)(e).

8

Pendleton, supra note 4.

9

See Gene A. McCracken, Docket No. 93-2227 (issued March 9, 1995); Joseph H. Surgener, 42 ECAB 541,
547 (1991).
10

See Constance G. Patterson, 42 ECAB 206 (1989).

4

evidence that appellant ever submitted this routing slip prior to April 10, 2009; the employing
establishment indicated that it had reviewed its records and found no record of having received
such a document.11 In addition, she was unable to ascertain the exact date of injury. While
appellant reported to several physicians that she was injured on April 4, 2007, she indicated in her
March 26, 2009 statement that she sustained left leg and lower back injuries on three different
dates. She can be reasonably imputed to have knowledge of when she sustained an injury that
caused her to be medically released from work. This contradictory evidence created an uncertainty
as to the time, place and the manner in which appellant sustained her alleged left leg and lower
back injuries.
Based on the instant record, therefore, there are discrepancies in the accounts of injury
appellant provided to different people. Appellant allegedly injured her left leg and lower back on
April 4, 2007, but there is no documentation that she sought treatment for these injuries prior to
October 24, 2007. Moreover, she did not provide notification of her injury to the employing
establishment for two years.12 In addition, appellant failed to submit to the Office a corroborating
witness statement in response to the Office’s request. This casts additional doubt on her assertion
that she strained her left leg and lower back on April 4, 2007 when she fell into a hamper while
counting mail. The Office requested that appellant submit additional factual and medical evidence
explaining how she injured her left leg and lower back on the date in question. Appellant failed to
submit such evidence. Therefore, given the inconsistencies in the evidence regarding how she
sustained this injury, the Board finds that there is insufficient evidence to establish that she
sustained an injury in the performance of duty as alleged.13
CONCLUSION
The Board finds that the Office of Workers’ Compensation Programs properly found that
appellant failed to meet her burden of proof to establish that she sustained injuries to her left leg
and lower back in the performance of duty.14

11

The evidence submitted by an employing establishment on the basis of their records will prevail over the
assertions from the claimant unless such assertions are supported by documentary evidence. See generally Sue A.
Sedgwick, 45 ECAB 211, 218 n.4 (1993); Federal (FECA) Procedure Manual, Part 2 -- Claims, Computation of
Compensation, Chapter 2.900(b)(3) (September 1990).
12

Id.

13

See Mary Joan Coppolino, 43 ECAB 988 (1992) (where the Board found that discrepancies and inconsistencies in
appellant’s statements describing the injury created serious doubts that the injury was sustained in the performance of
duty).
14

The Board notes that appellant submitted additional evidence to the record following the April 12, 2004 Office
decision. The Board’s jurisdiction is limited to a review of evidence which was before the Office at the time of its
final review. 20 C.F.R. § 501(c).

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ORDER
IT IS HEREBY ORDERED THAT the May 13, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 2, 2010
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.V., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
BORDER PATROL, El Centro, CA, Employer
__________________________________________

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

Docket No. 07-2247
Issued: February 5, 2008

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 September 4, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated August 20, 2007 with respect to a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has more than a one percent permanent impairment to his
left leg.
FACTUAL HISTORY
The Office accepted that appellant, a border patrol agent, sustained a left ankle sprain in
the performance of duty on October 10, 2005 while chasing a suspect. He returned to work in a
light-duty position and underwent left ankle surgery on September 5, 2006.
In a report dated March 7, 2007, Dr. Mark Perlman, the attending orthopedic surgeon,
provided a history and results on examination. In July 2006, he diagnosed status post ankle

sprain with tenosynovitis, history of osteochondral defect and dorsal talar loose body, with a left
ankle synovectomy on September 5, 2006. Dr. Perlman noted that appellant had discomfort on
standing and walking and stated that his condition was permanent and stationary. For range of
motion in the left ankle, he reported 0 degrees dorsiflexion, 30 degrees plantar flexion,
10 degrees inversion and 30 degrees eversion. Dr. Perlman reported a one centimeter (cm)
atrophy in the left calf. With respect to permanent impairment as a result of loss of range of
motion, he identified Table 17-11 and 17-12 of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides). Dr. Perlman also cited Table 17-6 for
calf atrophy and opined that appellant had a five percent whole person impairment.
The Office referred appellant, medical records and a statement of accepted facts to
Dr. Thomas J. Sabourin, an orthopedic surgeon, for a second opinion evaluation. In a report
dated July 12, 2007, Dr. Sabourin provided a history and results on examination. As to left ankle
range of motion, he reported 13 degrees dorsiflexion, 30 degrees plantar flexion, 30 degrees
inversion and 20 degrees eversion. Dr. Sabourin reported a left calf circumference of one cm
less than the right. He reported that appellant had a dull pain with standing and bending and in
an accompanying form, Dr. Sabourin noted that appellant had ankle pain with prolonged activity.
An Office medical adviser reviewed the evidence in a July 29, 2007 report. The medical
adviser opined the dull pain with standing and bending would result in a one percent leg
impairment, based on a grade of 25 percent of the maximum 5 percent of the sural nerve, citing
Table 16-10. The medical adviser found the range of motion results from Dr. Sabourin would
not result in any impairment under Table 17-11. He concluded appellant had a one percent left
leg impairment and the date of maximum medical improvement was July 10, 2007,
approximately 10 months following the surgical procedure.
By decision dated August 20, 2007, the Office issued a schedule award for a one percent
left leg impairment. The period of the award was 2.88 weeks commencing July 10, 2007.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act 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.1 Neither the Act 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 the Office has adopted the A.M.A., Guides as the uniform standard
applicable to all claimants.2

1

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
2

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

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ANALYSIS
The Office issued a schedule award based on the July 29, 2007 report of the Office
medical adviser, who relied on the July 12, 2007 report of the second opinion physician. The
Board finds that the attending physician, Dr. Perlman, as well as the second opinion physician
Dr. Sabourin, provided probative medical reports with a detailed description of the impairment.
Based on the range of motion results from Dr. Perlman, under Table 17-11 of the
A.M.A., Guides appellant would have a seven percent leg impairment for zero degrees
dorsiflexion.3 In addition, 10 degrees on inversion results in a two percent leg impairment under
Table 17-12. A one cm calf muscle atrophy is a three percent leg impairment under Table 17-6.4
The range of motion results provided by Dr. Sabourin do not result in a impairment under
Tables 17-11 or 17-12. The medical adviser reviewed Dr. Sabourin’s report and found an
impairment based on pain in the sural nerve. He applied Table 17-37, which provides a
maximum five percent leg impairment due to dysesthesia in the sural nerve and graded the
impairment at 25 percent of the maximum.5 Although Dr. Sabourin found that appellant’s left
calf circumference was one cm smaller than the right, as did Dr. Perlman, the medical adviser
did not discuss whether a muscle atrophy impairment under Table 17-6 was appropriate.
Since Dr. Perlman and Dr. Sabourin provided probative medical reports describing a
permanent impairment that results in different impairment ratings under the A.M.A., Guides, the
Board finds that there is a conflict in the medical evidence under the Act. Section 8123(a)
provides that, if there is a disagreement between the physician making the examination for the
United States and the physician of the employee, the Secretary shall appoint a third physician
who shall make the examination. The case will be remanded for referral to a referee physician to
properly resolve the conflict. The referee physician should provide a detailed description of any
permanent impairment and a rationalized opinion as to the degree of the impairment under the
A.M.A., Guides. After such further development as the Office deems necessary, it should issue
an appropriate decision.
CONCLUSION
The case will be remanded to the Office to resolve a conflict in the medical evidence
pursuant to 5 U.S.C. § 8123(a).

3

A.M.A., Guides 537, Table 17-11. While Dr. Perlman referred to a whole person impairment, the table also
provides lower extremity impairment ratings, which are appropriate under the Act as a scheduled member of the
body.
4

Id. at 537, Table 17-12 and 530, Table 17-6. However, Table 17-12, the Cross Usage Chart, indicates that range
of motion loss may not be combined with impairment due to atrophy. Rage of motion impairment maybe combined
with peripheral nerve sensory lose. Id. at 526.
5

Id. at 552, Table 17-37.

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ORDER
IT IS HEREBY ORDERED THAT the decision Office of Workers’ Compensation
Programs dated August 20, 2007 is set aside and the case remanded for further action consistent
with this decision of the Board.
Issued: February 5, 2008
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Columbus, OH, Employer
__________________________________________

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

Docket No. 07-302
Issued: April 26, 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 November 14, 2006 appellant filed a timely appeal from the May 15, 2006 merit
decision of the Office of Workers’ Compensation Programs, which denied compensation for a
fractured right radius. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of the Office’s decision. The Board also has jurisdiction to review the Office’s
August 14, 2006 nonmerit decision denying reconsideration.
ISSUES
The issues are:
(1) whether the fractured right radius appellant sustained on
November 26, 2005 was a compensable consequence of her accepted employment injury; and
(2) whether the Office properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
On March 29, 2003 appellant, then a 31-year-old supervisory transportation security
screener, filed a claim alleging that her right wrist condition was a result of her federal

employment: “Handling luggage, right wrist swelling has lasted [two] weeks with limited
mobility.” The Office accepted her claim for right wrist tenosynovitis, right joint derangement,
enthesopathy of the right wrist/carpus and enthesopathy unspecified. The Office authorized
surgical repair. On March 29, 2005 appellant underwent an extensor carpi ulnaris debridement
of the right wrist and reconstruction of the distal radial ulnar joint with the insertion of four pins.
The Office accepted a postoperative infection. Appellant received compensation for temporary
total disability and was placed on the periodic rolls.
On December 5, 2005 appellant called the Office to advise that she was in a motor
vehicle accident on November 26, 2005. The Office’s memorandum noted:
“The Saturday after Thanksgiving she had an accident in a store parking lot and
the airbag opened and rebroke her wrist completely. [Appellant] stated that the
surgeon at the ER set her wrist but would n[o]t do surgery because he said it
would n[o]t have broken if it were n[o]t for the work injury and pins.”
On November 30, 2005 Dr. Gary Millard, appellant’s attending family practitioner,
reported that x-rays of the distal radius showed some continued slight osteoarthritic changes with
an oblique fracture at the metaphyseal/diaphyseal junction of the radius with the fracture
extending through one of the previous pin sites. He addressed the relationship of this fracture to
appellant’s previous injury:
“[Appellant] is concerned about the positioning of the fracture that did occur at
the site of one of her pin sites and wants to know if this would have happened if
she had not had a previous surgery there. I think that the fact that she has had the
previous surgery and the fact that this does extend through one of the pin sites,
would suggest that there certainly is some relationship between the previous
injury to her wrist and this injury that she incurred today. [sic]”
On December 1, 2005 appellant underwent an open reduction and internal fixation of the
right radial shaft. X-rays showed an oblique fracture to the mid distal third of the radius
extending through one of the pin sites from her previous reconstruction surgery. X-rays also
showed some fairly significant osteopenia with the distal radius.
In a decision dated May 15, 2006, the Office denied appellant’s claim that her fractured
radius was due to her accepted work injury. The Office noted that the circumstances of the
motor vehicle accident were personal and had nothing to do with her federal employment.
Appellant was in a private vehicle on private property and was hit head-on by another vehicle.
On June 9, 2006 appellant requested reconsideration. She submitted a May 24, 2006
report from Dr. Millard:
“To help out with this claim and further explanation and to help explain further
why I thought this fracture did occur and was directly related to her previous
injury, the fracture did occur through one of the pin sites. A pin site is a hole
through the bone that is an area of weakened bone. The fracture did go through
the pin site and the areas of weakened bone and this means that there is still some
weakness within the bone secondary to the patient’s first procedure. The fact that
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the fracture did go through the pin site indicates again that the bone was
weakened in this area and I think this is a direct relationship to earlier work claim
and earlier work[-]related injury.”
In a decision dated August 14, 2006, the Office denied appellant’s request for
reconsideration. The Office found that the request was untimely and failed to present clear
evidence of error. This appeal to the Board followed.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act provides compensation for the disability or
death of an employee resulting from personal injury sustained while in the performance of duty.1
While the initial employment injury must arise out of and in the course of the claimant’s federal
employment,2 later nonindustrial injuries may also be compensable.
Thus, it is an accepted principle of workers’ compensation law that a second,
nonindustrial injury is compensable if it is the direct and natural result of an earlier compensable
injury. Where a claimant sustains an accident as a consequence of a condition residual to a
previous industrial injury, it is deemed because of the chain of causation to arise out of and in the
course of employment.3 Once the work-connected character of any condition is established, the
subsequent progression of that condition remains compensable so long as the worsening is not
shown to have been produced by an independent nonindustrial cause. If a member weakened by
an employment injury contributes to a later fall or other injury, the subsequent injury will be
compensable as a consequential injury, if the further medical complication flows from the
compensable injury, so long as it is clear that the real operative factor is the progression of the
compensable injury, with an exertion that in itself would not be unreasonable in the
circumstances.4

1

5 U.S.C. § 8102(a).

2

Bernard D. Blum, 1 ECAB 1 (1947).

3

Howard S. Wiley, 7 ECAB 126 (1954).

4

Robert W. Meeson, 44 ECAB 834 (1993). Unreasonable exertion is not an issue. The Office made no finding
that appellant engaged in activity that was unreasonable or rash under the circumstances. See Robert J. Wescoe,
54 ECAB 162 (2002) (finding that it was unreasonable for the claimant to play volleyball while on medical
restrictions after he had been advised that he was prone to further shoulder dislocations); Clement Jay After Buffalo,
45 ECAB 707 (1994) (in which the claimant reinjured his knee playing basketball directly against medical advice
only 24 hours after obtaining that advice); John R. Knox, 42 ECAB 193 (1990) (finding that basketball was not a
reasonable activity, given the claimant’s knowledge of the left knee condition). In these cases, the Board held that
because the triggering activity for the second injury was itself rash in light of the claimant’s knowledge of his
condition, the second injury could not be deemed to have arisen out of the employment, but rather was the result of
an independent intervening cause attributable to the claimant’s own intentional conduct.

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ANALYSIS -- ISSUE 1
Appellant did not allege that her employment injury caused the November 26, 2005
motor vehicle accident or that her fractured radius was the natural progression of her
tenosynovitis, joint derangement or enthesopathies or a medical complication of such conditions.
Clearly, an independent nonindustrial cause intervened to produce the subsequent injury. The
real operative factor here was the motor vehicle accident and release of the airbag, not the
progression of the compensable injury. That the force of the airbag acted upon a previously
weakened site does not turn the fracture into a direct and natural result of the accepted
employment injury. The fracture instead remains a direct and natural result of the motor vehicle
accident. That one of the pin sites offered a path of least resistance to the fracture should not
obscure the fact that an independent nonindustrial cause intervened in appellant’s life to trigger
the subsequent injury.
The Board finds that the fractured right radius appellant sustained on November 26, 2005
is not a compensable consequence of her accepted employment injury. This is not a medical
determination. This is a legal determination based on the facts of the case that an independent
nonindustrial cause intervened to break the chain of causation. Because an intervening factor
arising independent of her federal employment caused the subsequent injury, the Board will
affirm the Office’s May 15, 2006 decision denying compensation.
LEGAL PRECEDENT -- ISSUE 2
The Act provides that the Office may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision. The
employee shall exercise this right through a request to the Office. The request, along with the
supporting statements and evidence, is called the “application for reconsideration.”5
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent new evidence not previously
considered by the Office.6
An application for reconsideration must be sent within one year of the date of the Office
decision for which review is sought.7 A timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence or argument that meets at least one
of these three standards. If reconsideration is granted, the case is reopened and the case is

5

20 C.F.R. § 10.605 (1999).

6

Id. at § 10.606.

7

Id. at § 10.607(a).

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reviewed on its merits. Where the request is timely but fails to meet at least one of these
standards, the Office will deny the application for reconsideration without reopening the case for
a review on the merits.8
The Office will consider an untimely application only if the application demonstrates
clear evidence of error on the part of the Office in its most recent merit decision. The application
must establish, on its face, that such decision was erroneous.9
ANALYSIS -- ISSUE 2
Appellant’s June 9, 2006 request for reconsideration is timely. She made this request
only three weeks after the Office’s May 15, 2006 decision to deny compensation for her
fractured right radius. The Office, therefore, should have determined whether appellant
presented evidence or argument that meets at least one of the three standards noted above. The
Office instead applied the standard reserved for untimely requests, namely, whether appellant’s
application presented clear evidence of error in the Office’s May 15, 2006 decision. This is a
higher standard of review not warranted by the circumstances of the case.
The Board will, therefore, set aside the Office’s August 14, 2006 decision denying
reconsideration and will remand the case to the Office for application of the proper standard of
review and for an appropriate final decision on appellant’s June 9, 2006 request for
reconsideration.10
CONCLUSION
The Board finds that the fractured right radius appellant sustained on November 26, 2005
was not a compensable consequence of her accepted employment injury. An independent
nonindustrial cause intervened to produce the fracture, thereby breaking the chain of causation.
The Board also finds that the Office applied the wrong standard of review in denying appellant’s
June 9, 2006 request for reconsideration.

8

Id. at § 10.608.

9

Id. at § 10.607.

10

After appellant filed her appeal with the Board on November 14, 2006, the Office issued a decision on the
merits of her case on November 20, 2006. Under the principles discussed in Douglas E. Billings, 41 ECAB 880
(1990) the Office’s November 20, 2006 decision, issued while the Board had jurisdiction over the same issue, is null
and void.

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ORDER
IT IS HEREBY ORDERED THAT the May 15, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed. The Office’s August 14, 2006 decision is set
aside and the case remanded for further action consistent with this opinion.
Issued: April 26, 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

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