United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF HOMELAND SECURITY,
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TRANSPORTATION SECURITY
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ADMINISTRATION, Los Angeles, CA, Employer )
__________________________________________ )
M.A., Appellant

Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0120
Issued: January 8, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On October 18, 2019 appellant, through counsel, filed a timely appeal from an April 12,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 12, 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.

ISSUES
The issues are: (1) whether OWCP properly found that appellant received an overpayment
of compensation in the amount of $24,613.05 because he concurrently received Social Security
Administration (SSA) age-related retirement benefits and FECA wage-loss benefits, for the period
September 1, 2011 through October 13, 2018, without an appropriate offset; (2) whether OWCP
established that appellant was at fault in the creation of the overpayment thereby precluding waiver
of recovery of the overpayment; and (3) whether OWCP properly required recovery of the
overpayment by deducting $500.00 every 28 days from appellant’s continuing compensation
payments.
FACTUAL HISTORY
On December 21, 2010 appellant, then a 65-year-old supervisory transportation security
officer (screener), filed a traumatic injury claim (Form CA-1) alleging that on December 9, 2010
he sustained a left ankle sprain, slipped disc, and left lower back sprain when his foot caught on
the edge of a stair while in the performance of duty. He stopped work on that same date. The
employing establishment noted that appellant’s retirement coverage was under the Federal
Employees Retirement System (FERS). OWCP initially accepted the claim for lumbar sprain, and
left hip and thigh sprain, and later expanded acceptance of the claim to include left inguinal hernia
and aggravation of degenerative lumbar disc disease.
OWCP paid appellant wage-loss compensation for total disability on the supplemental rolls
from January 24 through November 18, 2011 and on the periodic rolls from November 20, 2011
through October 20, 2012.
In a letter dated November 29, 2011, OWCP explained appellant’s entitlement to
compensation benefits. It advised him that, if he was covered under FERS, it must deduct at least
part of his SSA retirement benefit to which he would be entitled based on age, explaining that a
portion of a FERS benefit was included in SSA retirement benefits. Appellant was therefore
advised to notify OWCP immediately after filing for or receiving SSA retirement benefits.
Appellant returned to full-time modified work on October 1, 2012.4 He did not receive
FECA wage-loss compensation again until February 13, 2013.
OWCP paid appellant
compensation for loss of wage-earning capacity on the supplemental rolls from February 13
through August 24, 2013 and on the periodic rolls from August 24 through October 19, 2013.
Appellant did not receive wage-loss compensation from October 20 until November 22, 2013. His
modified work accommodation was withdrawn effective November 20, 2013. OWCP paid
appellant wage-loss compensation for total disability on the supplemental rolls from November 22
through December 14, 2013 and on the periodic rolls from December 15, 2013 through
March 9, 2015.
By decision dated March 10, 2015, OWCP reduced appellant’s compensation effective on
that date based on his capacity to earn wages as a security guard. It paid him compensation for
loss of wage-earning capacity on the supplemental rolls from March 10 through April 4, 2015 and
on the periodic rolls from April 5, 2015 through October 13, 2018.

4

Appellant received wage-loss compensation from October 1 to 20, 2012, which was determined to be an
overpayment of compensation by decision dated December 5, 2012.

2

In an undated EN1032 form received October 11, 2012 and in EN1032 forms dated
September 25, 2014; November 12, 2015; and October 5, 2016, appellant indicated that he was
not in receipt of SSA benefits as part of an annuity for federal service.5 In EN1032 forms dated
October 5, 2017 and October 1, 2018, he indicated that he was not in receipt of SSA benefits as
part of an annuity for federal service, but asserted that he was in receipt of monthly SSA payments
to which he was entitled after age sixty-five.
On November 2, 2017 OWCP forwarded a FERS/SSA dual benefits calculation form to
SSA.
The form as completed by SSA, was received by OWCP on October 26, 2018, and
indicated that, with FERS, appellant was entitled to monthly payments of $960.80 effective
September 2011; $995.30 effective December 2011; $999.70 effective January 2012; $1,016.60
effective December 2012; $1,026.80 effective January 2013; $1,042.20 effective December 2013;
$1,084.80 effective January 2014; $1,103.20 effective December 2014 and December 2015;
$1,106.50 effective December 2016; and $1,128.60 effective December 2017. Without his federal
service contribution, he was entitled to a monthly payment rate of $732.50 effective
September 2011; $758.80 effective December 2011 and January 2012; $771.60 effective
December 2012 and January 2013; $783.10 effective December 2013 and January 2014; $796.40
effective December 2014 and December 2015; $798.70 effective December 2016; and $814.60
effective December 2017.
In a FERS offset calculation form dated November 2, 2018, OWCP documented its
calculation of the total overpayment in the amount of $24,613.05 for the period September 1, 2011
through October 13, 2018. It determined that, during the 91 days from September 1 to
November 30, 2011, appellant received an overpayment in the amount of $684.90; during the 31
days from December 1 to 31, 2011 an amount of $241.70; during the 335 days from January 1 to
November 30, 2012 an amount of $2,660.49; during the 31-day period December 1 to 31, 2012 an
amount of $250.38; during the 334-day period January 1 to November 30, 2013 an amount of
$2,810.00; during the 31-day period December 1 to 31, 2013 an amount of $264.79; during the
334-day period January 1 to November 30, 2014 an amount of $3,322.02; during the 365-day
period December 1, 2014 to November 30, 2015 an amount of $3,691.71; during the 366-day
period December 1, 2015 to November 30, 2016 an amount of $3,701.83; during the 365-day
period December 1, 2016 to November 30, 2017 an amount of $3,703.75; and during the 317-day
period December 1, 2017 to October 13, 2018 an amount of $3,281.47.
On November 8, 2018 OWCP issued a preliminary determination that an overpayment of
compensation in the amount of $24,613.05 had been created. It explained that the overpayment
occurred because a portion of appellant’s SSA age-related retirement benefits that he received
from September 1, 2011 through October 13, 2018 included a prohibited FERS component that
was not offset from his FECA benefits. OWCP found him at fault in the creation of the
overpayment because he had not reported receipt of SSA retirement benefits on his EN1032 forms.
It provided an overpayment action request form and an overpayment recovery questionnaire (Form
OWCP-20) for appellant’s completion. OWCP informed him of the actions he could take and
allotted 30 days for him to respond.

The EN1032 forms signed by appellant provided: “Report any benefits received from the SSA which you receive
as part of an annuity under the FERS. DO NOT report any benefits received from the SSA on account of employment
in the private sector.” (Emphasis in the original).
5

3

On a December 7, 2018 overpayment action request form, appellant requested a
prerecoupment hearing before a representative of OWCP’s Branch of Hearings and Review. He
disagreed with OWCP’s finding regarding the fact and amount of overpayment, and requested
waiver of recovery of the overpayment. Appellant asserted that he had been informed by SSA that
he could collect SSA benefits while still employed. He also asserted that he had informed OWCP
that he was in receipt of SSA benefits, but did not know that his SSA benefits included a prohibited
FERS component.
A telephonic hearing was held on March 7, 2019. Counsel was in attendance.
On a Form OWCP-20 dated April 4, 2019 appellant noted a monthly gross income of
$1,160.00 in SSA benefits for himself, $1,781.00 in SSA benefits for his spouse, $2,057.00 in
FECA benefits, and $4,020.00 from his continued employment, for a total of $9,018.00 in monthly
income. He noted $6,449.00 in monthly expenses and assets of $25,360.00. Appellant attached
financial documentation to substantiate his expenses.
By decision dated April 12, 2019, OWCP’s hearing representative finalized the
preliminary determination, finding that an overpayment of compensation in the amount of
$24,613.05 occurred because appellant received FECA wage-loss compensation and SSA agerelated retirement benefits without the appropriate offset. She further found that he was at fault in
the creation of the overpayment because he had failed to report his SSA retirement benefits as he
had been instructed. The hearing representative required recovery of the overpayment by
deducting $500.00 every 28 days from appellant’s continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
Section 8102 of FECA provides that the United States shall pay compensation for the
disability of an employee resulting from personal injury sustained while in the performance of
duty.6 Section 8116 limits the right of an employee to receive compensation. While an employee
is receiving compensation, he or she may not receive salary, pay, or remuneration of any type from
the United States.7
Section 10.421(d) of the implementing regulations requires that OWCP reduce the amount
of compensation by the amount of SSA age-related retirement benefits that are attributable to
federal service of the employee.8 FECA Bulletin No. 97-09 provides that FECA benefits have to
be adjusted for the FERS portion of SSA age-related retirement benefits because the portion of the
SSA benefit earned as a federal employee is part of the FERS retirement package, and the receipt
of FECA benefits and federal retirement concurrently is a prohibited dual benefit.9

6

5 U.S.C. § 8102(a).

7

Id. at § 8116.

8
20 C.F.R. § 10.421(d); see E.K., Docket No. 18-0587 (issued October 1, 2018); S.O., Docket No. 18-0254 (issued
August 2, 2018); L.J., 59 ECAB 264 (2007).
9

FECA Bulletin No. 97-09 (February 3, 1997).

4

ANALYSIS -- ISSUE 1
The Board finds that OWCP has established that appellant received an overpayment of
compensation.
OWCP found that an overpayment of compensation had been created as of September 1,
2011 based on evidence received from SSA with respect to age-related retirement benefits paid to
appellant. A claimant cannot receive both FECA compensation for wage-loss and SSA age-related
retirement benefits attributable to federal service for the same period.10 The information provided
by SSA indicated that appellant received SSA age-related retirement benefits that were attributable
to federal service during some periods that he also received FECA wage-loss compensation.
OWCP has therefore established fact of overpayment.11
The Board finds however that the amount of overpayment is not in posture for decision.
The Board finds that OWCP improperly calculated appellant’s overpayment for the period
September 1, 2011 through October 13, 2018. The record establishes that he intermittently
returned to work in different positions after his initial period of disability. Following his
December 9, 2010 injury, appellant returned to work on October 1, 2012. The record reflects that
he did not receive FECA wage-loss compensation from October 1, 2012 to February 13, 2013.
OWCP again paid appellant FECA wage-loss compensation based upon his loss of wage-earning
capacity as of February 13, 2013. The record reflects that he did not receive FECA wage-loss
compensation from October 20 to November 22, 2013. In the FERS offset calculation form dated
November 2, 2018, OWCP found that appellant had received an overpayment in the amount of
$24,613.05, seemingly without deducting the periods October 1, 2012 to February 13, 2013 and
October 20 to November 22, 2013 when he had not received FECA wage-loss compensation.
Consequently, the SSA benefits appellant received during the period were not a prohibited dual
benefit and should not have been included in the overpayment calculation.
On remand OWCP shall determine the exact amount of the overpayment of compensation
and the correct dates during which the overpayment occurred. It should then issue a new
preliminary overpayment determination, with an overpayment action request form, an
overpayment recovery questionnaire, and instructions for appellant to provide supporting financial
information. After this and other such further development as deemed necessary, OWCP shall
issue a de novo decision.12
CONCLUSION
The Board finds that the case is not in posture for decision.

10

Supra notes 8 and 9; see also M.S., Docket No. 18-0740 (issued February 4, 2019); E.K., supra note 8.

11

See L.B., Docket No. 19-1322 (issued January 27, 2020).

12

In light of the Board’s disposition as to issue 1, the remaining issues are rendered moot.

5

ORDER
IT IS HEREBY ORDERED THAT the April 12, 2019 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part and the case is remanded for
further proceedings consistent with this decision of the Board.
Issued: January 8, 2021
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.B., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Holtsville, NY, Employer
__________________________________________

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

Docket No. 09-1275
Issued: January 6, 2010

Case Submitted on the Record

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

JURISDICTION
On April 17, 2009 appellant timely appealed the March 13, 2009 nonmerit decision of the
Office of Workers’ Compensation Programs, which found that he abandoned his request for a
hearing. He also timely appealed the Office’s September 24, 2008 merit decision terminating
benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the
merits of the claim.
ISSUES
The issues are: (1) whether the Office properly terminated appellant’s compensation and
medical benefits effective September 24, 2008; and (2) whether appellant abandoned his request
for an oral hearing.

FACTUAL HISTORY
This case has previously been before the Board.1 Appellant, a 55-year-old tax-examining
technician, was involved in an employment-related fall on August 18, 2005. He has an accepted
claim for lumbago, lumbar sprain, neck sprain, cervicalgia, cervicobrachial syndrome and right
knee sprain. In November 2006, appellant returned to work in a part-time, limited-duty capacity.
He initially worked only four hours a day, but in February 2007 he increased his workday to six
hours. The Office subsequently issued a loss of wage-earning capacity (LWEC) determination
based on appellant’s six-hour work schedule. In a decision dated January 8, 2009, the Board
affirmed the Office’s August 23, 2007 LWEC determination.2
When the case was last before the Board, appellant challenged the Office’s denial of
wage-loss compensation for various periods of temporary total disability between October 2005
and November 2006. He had also been denied compensation for intermittent wage loss for
various periods between June and December 2007. In a decision dated August 29, 2008, the
Branch of Hearings & Review affirmed three separate Office decisions denying wage-loss
compensation for the above-noted periods. The hearing representative based his August 29,
2008 decision, in part, on the February 25, 2008 report of Dr. Jerrold M. Gorski, a Boardcertified orthopedic surgeon and Office referral physician. The Office had referred appellant to
Dr. Gorski to resolve a perceived conflict in medical opinion.
Dr. Gorski diagnosed degenerative arthritis of the neck and lumbar spine, severe
tri-compartmental osteoarthritis of the right knee and obesity. He explained that these conditions
were preexisting and not medically connected to appellant’s work conditions, which Dr. Gorski
characterized as a “sedentary job.” Dr. Gorski further explained that appellant may have had a
temporary aggravation due to the August 2005 work incident; however, his current complaints
were due entirely to his preexisting condition. He also indicated that the employment-related
aggravation would have lasted no more than three months. Dr. Gorski concluded that appellant
had returned to his preinjury status. As to disability, he stated that appellant was totally disabled
due to the work-related conditions “from the date of injury -- [August 10] (sic) until perhaps
[October 6, 2005].”
By decision dated September 25, 2009, the Board set aside the hearing representative’s
August 29, 2008 decision.3 The Board noted, inter alia, that Dr. Gorski’s February 25, 2008
opinion was not entitled to “‘special weight’” because there was no prior conflict in medical
opinion regarding appellant’s claimed disability from October 2005 through November 2006.
The Board further found that Dr. Gorski’s opinion regarding the cause of appellant’s post
October 6, 2005 disability was not properly rationalized.

1

Docket No. 08-401 (issued January 8, 2009); Docket No. 08-2470 (issued September 25, 2009).

2

The Board also affirmed an October 25, 2007 decision denying appellant’s request for review of the written
record.
3

Docket No. 08-2470 (issued August 29, 2008). The Board’s January 8 and September 25, 2009 decisions are
incorporated herein by reference.

2

The Office also relied upon Dr. Gorski’s February 25, 2008 report to terminate
appellant’s compensation and medical benefits effective September 24, 2008. It issued a notice
of termination on August 21, 2008 identifying Dr. Gorski’s “referee examination” as the basis
for its proposed termination of compensation and medical benefits. The Office explained that
this report established a “substantial change” in appellant’s injury-related condition sufficient to
modify the August 23, 2007 LWEC determination.
In response to the August 21, 2008 notice, appellant submitted a February 14, 2008 letter
from the U.S. Department of Health & Human Services. The letter was authored by Dr. Sylvie I.
Cohen, a Board-certified occupational medicine consultant, who offered her opinion on whether
his desire to change his evening work schedule (4:30 p.m. until 10:30 p.m.) to a daytime shift
was considered a reasonable accommodation under the ADA/Rehabilitation Act. Appellant was
undergoing physical therapy and was reportedly too tired to work his evening shift on the days
he attended therapy. Dr. Cohen concluded that his desire to change shifts did not constitute a
request for a reasonable workplace accommodation.
Appellant also submitted a September 15, 2008 letter indicating that he had accepted a
job with the employing establishment’s “SB/SE” collection division. His work schedule was
reportedly Monday through Friday, 7:30 a.m. until 4:00 p.m. Appellant also indicated that his
annual salary was $43,839.00.
In a decision dated September 24, 2008, the Office terminated compensation and medical
benefits based on Dr. Gorski’s referee examination. It also indicated that appellant’s
September 15, 2008 letter further supported that his condition had improved and that he had
“vocationally rehabilitated himself” by accepting a new position with the SB/SE collection
division and “completing” the on-the-job training required to work in that position. The Office
explained that vocational rehabilitation was grounds for modifying the previous LWEC
determination.
In a separate letter also dated September 24, 2008, the Office advised the employing
establishment that appellant had recently informed it that he accepted a job in the SB/SE
collection division. It requested a statement regarding what, if any, training appellant received
for the position.
On October 1, 2008 appellant requested an oral hearing. The Branch of Hearings &
Review acknowledged his request by letter dated October 14, 2008. On December 29, 2008 the
Branch of Hearings & Review notified appellant that his hearing was scheduled for
February 23, 2009. However, the hearing did not occur as scheduled.
By decision dated March 13, 2009, the Office’s hearing representative found that
appellant had abandoned his request for an oral hearing. Appellant had not appeared for the
February 23, 2009 hearing and there was no indication in the record that he contacted the Office
either prior or subsequent to the scheduled hearing to explain his absence.

3

LEGAL PRECEDENT
A wage-earning capacity determination is a finding that, a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.4 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.5 Once the wage-earning capacity of an injured
employee is determined, a modification of such determination is not warranted unless there is a
material change in the nature and extent of the injury-related condition, the employee has been
retrained or otherwise vocationally rehabilitated or the original determination was erroneous.6
The burden of proof is on the party seeking modification of the wage-earning capacity
determination.7
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.8 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.9 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability.10 To terminate authorization for medical treatment,
the Office must establish that appellant no longer has residuals of an employment-related
condition which require further medical treatment.11
ANALYSIS
In his February 25, 2008 report, Dr. Gorski stated that appellant’s employment-related
aggravation was “temporary ... and would be expected to have lasted no more than [three]
months.” He further stated that appellant was “totally disabled due to the work[-]related
conditions from the date of injury -- [August 10, 2005] (sic) until perhaps October 6, 2005.”
Dr. Gorski opined that any “subsequent disability ... would be due to [appellant’s] underlying
and preexisting condition.” Based on this information, the Office terminated appellant’s
compensation and medical benefits effective September 24, 2008. For the reasons outlined in
our September 25, 2009 decision (Docket No. 08-2470), the Board finds that Dr. Gorski’s
February 25, 2008 opinion regarding the cause of appellant’s post October 6, 2005 disability is
not sufficiently rationalized.
4

5 U.S.C. § 8115(a) (2006); see Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

5

See Katherine T. Kreger, 55 ECAB 633, 635 (2004).

6

Tamra McCauley, 51 ECAB 375, 377 (2000).

7

Id.

8

Curtis Hall, 45 ECAB 316 (1994).

9

Jason C. Armstrong, 40 ECAB 907 (1989).

10

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

11

Calvin S. Mays, 39 ECAB 993 (1988).

4

As previously explained, Dr. Gorski stated that the August 2005 employment-related
aggravation was “temporary ... and would be expected to have lasted no more than [three]
months.” However, he failed to explain why appellant’s temporary aggravation reportedly
ceased within less than two month’s time. The Board found that absent such an explanation, the
October 6, 2005 date identified by Dr. Gorski seemed arbitrary. The Board also found suspect
Dr. Gorski’s opinion that appellant had returned to his preinjury status. Appellant had ongoing
right knee complaints, which he did not have prior to the August 18, 2005 employment injury.
Mindful of these factors, it was difficult to ascertain how Dr. Gorski concluded that appellant
had returned to his preinjury status. Lastly, the Board questioned the emphasis Dr. Gorski’s
placed on appellant’s “sedentary job” in forming his opinion on causal relationship. The Board
noted that it was unclear how appellant’s “sedentary job” duties factored into an opinion on
causal relationship in a traumatic injury claim. In view of these deficiencies, Dr. Gorski’s
February 25, 2008 report is insufficient to justify termination of compensation and medical
benefits. The report is similarly insufficient to warrant modification of the Office’s August 23,
2007 LWEC determination.
The Office also appears to justify modification of the prior LWEC determination based
on appellant’s purported vocational rehabilitation. However, appellant’s unsubstantiated
September 15, 2008 letter does not establish that he has been vocationally rehabilitated. He
claimed to have accepted a full-time position with an annual salary of $43,839.00. However,
there was no information about appellant’s particular duties or when he presumably returned to
full-time employment. The Office’s September 24, 2008 decision indicated that he had
completed on-the-job training required to work in the SB/SE collection division, but there was
no such evidence in the record at the time the Office issued its decision terminating benefits. In
fact, it wrote to the employing establishment that same day inquiring whether appellant had
received any training for the position in the SB/SE collection division.
The Board finds that the record does not justify termination of compensation and medical
benefits. Furthermore, the Office has not otherwise demonstrated a basis for modifying the
August 23, 2007 LWEC determination.
CONCLUSION
The Office has not met its burden to justify termination of benefits. In light of the
Board’s determination on the merits of the claim, the March 13, 2009 decision finding that
appellant abandoned his hearing request is moot.

5

ORDER
IT IS HEREBY ORDERED THAT the September 24, 2008 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: January 6, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.K., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, Petersburg, VA, Employer
__________________________________________

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

Docket No. 12-1557
Issued: March 11, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 10, 2012 appellant, through his attorney, filed a timely appeal from the Office of
Workers’ Compensation Programs’ (OWCP) decisions dated January 24 and June 28, 2012.
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 more than a two percent impairment of his left leg.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 7, 2008 appellant, a 37-year-old correctional officer, injured his left knee when
he slipped and fell to the floor. OWCP accepted the claim for sprain of the left cruciate ligament
and torn medial meniscus of the left knee. On November 21, 2008 Dr. Geoffrey B. Higgs,
Board-certified in sports medicine and a specialist in orthopedic surgery, performed a left knee
anterior cruciate ligament/autograft hamstring reconstruction procedure. On September 9, 2009
he performed surgery for open hardware removal of the tibial anterior cruciate ligament fixation,
a bursectomy involving the pes anserinus bursa and a release of fibrous adhesions, and
notchplasty of lysis of adhesions with infrapatellar capsular release for left knee notch
impingement and arthrofibrosis. Both of these procedures were authorized by OWCP.
In an August 23, 2010 report, Dr. Higgs rated a 13 percent impairment of the left leg
pursuant to the American Medical Association, Guides to the Evaluation of Permanent
Impairment (sixth edition) (A.M.A., Guides). He stated that appellant had undergone two
operations, one to reconstruct his anterior cruciate ligament and the other to release adhesions
associated with the pes anserinus bursa region and perform a notch plasty and intra-articular
adhesions. Dr. Higgs advised that appellant had residual pain associated with the fibrosis of the
pes anserinus bursa and associated tendons which precluded him from performing preinjury
activities.
Dr. Higgs found that appellant had a stable ligamentous examination with full range of
motion and strength. He rated a five percent impairment for fibrosis and scar tissue over the
medial aspect of his leg and an eight percent impairment for pain. Dr. Higgs used the Combined
Values Chart at page 604 of the A.M.A., Guides to arrive at the 13 percent left leg rating.
On September 23, 2010 appellant filed a Form CA-7 claim for a schedule award.
In a report dated March 11, 2011, Dr. Christopher Brigham, Board-certified in
occupational medicine and an OWCP medical consultant, found that Dr. Higgs’ impairment
rating was not in conformance with the A.M.A., Guides. Dr. Higgs applied the proper tables and
protocols of the A.M.A., Guides. Dr. Brigham found that appellant had a one percent
impairment of the left leg pursuant to the sixth edition of the A.M.A., Guides. He stated that,
under Table 16-3, Knee Regional Grid, Lower Extremity Impairments, at page 509 of the
A.M.A., Guides,2 the section pertaining to muscle/tendon impairments, appellant’s left knee
strain yielded a class 1 rating for strain, which had a default score of two percent lower extremity
impairment based on “palpatory findings,” for a mild problem.3 Using the Adjustment Grid,
Functional History, at Table 16-6, page 516 of the A.M.A., Guides,4 Dr. Brigham found that
2

A.M.A., Guides 509.

3

The Board notes that, although appellant underwent two surgeries for anterior cruciate surgery on his left knee,
both of which were authorized by OWCP, Dr. Brigham chose to rate his diagnosis-based impairment based on
appellant’s accepted left knee strain condition. Dr. Brigham stated in his discussion of maximum medical
improvement that “the ratable condition is stabilized and unlikely to change substantially in the next year, with or
without medical treatment.”
4

A.M.A., Guides 516.

2

appellant had a grade modifier of zero for functional history, noting that he had complaints of
pain but walked with a normal gait pattern; with regard to physical examination, Dr. Brigham
assigned a grade modifier of zero because there were no abnormal findings on examination,
pursuant to Table 16-7, section 16.3b, page 517 of page 509 of the A.M.A., Guides, the tables
pertaining to rating lower extremity impairments based on physical examination. He stated that
the tenderness Dr. Higgs noted on examination was already accounted for in the specific
diagnosis, as this was a factor to determine proper class placement. Dr. Brigham found no grade
modifier for clinical studies pursuant to section 16.3c and Table 16-8, page 519 of the A.M.A.,
Guides5 since there were postsurgical clinical studies.
Based on the above findings Dr. Brigham compared the net adjustments from functional
history and physical examination grade modifiers of zero and an inapplicable grade modifier for
clinical studies at the net adjustment formula at page 521 of the A.M.A., Guides. This yielded a
diagnosis of class 1, mild problem, of minus two, for a grade A, one percent lower extremity
impairment.6 The Board notes that, although appellant underwent two surgeries for anterior
cruciate surgery on his left knee, both of which were authorized by OWCP, Dr. Brigham chose
to rate his diagnosis-based impairment based on appellant’s accepted left knee strain condition.
He stated in his discussion of maximum medical improvement that “the ratable condition is
stabilized and unlikely to change substantially in the next year, with or without medical
treatment.”
By decision dated March 17, 2011, OWCP granted appellant a schedule award for a one
percent permanent impairment of the left lower extremity for the period August 11 to 31, 2011,
for a total of 2.88 weeks of compensation.
On March 31, 2011 appellant requested an oral hearing, which was held on July 12, 2011.
In a report dated July 1, 2011, Dr. Stuart J. Goodman, a specialist in neurology, found
that appellant had a 13 percent left lower extremity impairment pursuant to the sixth edition of
the A.M.A., Guides. He advised that appellant had residual pain, discomfort and hyperesthesia
in the surgical site, with laxity of the patella joint and weakness. Dr. Goodman noted that
appellant had been unable to return back to his baseline physical status and could not engage in
his usual activities. He rated a 10 percent impairment for loss of range of motion pursuant to
Table 16-23, Knee Motion Impairment, at page 549 of the A.M.A., Guides,7 which translated to
a class 1, 13 percent impairment at Table 16-25, Range of Motion, at page 550 of the A.M.A.,
Guides8; this rating was consistent with a grade 1 impairment for physical examination
adjustment at Table 16-7. Dr. Goodman further found that appellant’s meniscal tear and surgery
elevated this to a grade 2 impairment, which yielded a 13 percent left lower extremity permanent
impairment.

5

Id. at 519.

6

Id. at 521.

7

Id. at 523.

8

Id. at 550.

3

By decision September 28, 2011, an OWCP hearing representative set aside the
March 17, 2011 decision, finding that Dr. Goodman’s July 1, 2011 report was sufficient to
warrant further development of the medical evidence.
In a report dated December 22, 2012, Dr. Morley Slutsky, Board-certified in orthopedic
surgery and an OWCP medical adviser, reviewed Dr. Goodman’s July 1, 2011 report. He found
that it presented sufficient evidence for an additional one percent left lower extremity
impairment rating under the A.M.A., Guides, based upon the condition of left knee strain/sprain.
Dr. Slutsky found that Dr. Goodman’s rating for loss of range of motion was not in conformance
with the A.M.A., Guides because he did not state that he performed three measurements, using a
goniometer, as mandated by section 16.3b, page 517 of the A.M.A., Guides.9 Further, the
A.M.A., Guides provided that a range of motion impairment should not be combined with the
diagnosed-based impairment. Dr. Slutsky found that the measurements for grade modifier
Dr. Goodman used were not valid because he failed to compare the total values for the
foot/ankle, knee, or hip to the criteria in section 16-7, page 54310 to define the range of motion
grade modifier.
By decision dated January 24, 2012, OWCP granted appellant a schedule award for an
additional one percent permanent impairment of the left lower extremity for the period
August 11 to 31, 2011, for a total of 2.88 weeks of compensation.
By letter dated January 30, 2012, appellant’s attorney requested an oral hearing, which
was held on April 16, 2012.
By decision dated June 28, 2012, an OWCP hearing representative affirmed the
January 12, 2012 schedule award decision.
LEGAL PRECEDENT
The schedule award provision of FECA11 and its implementing regulations12 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, 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.13 The claimant has the burden of proving

9

Id. at 517.

10

Id. at 543.

11

5 U.S.C. § 8107.

12

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

13

Id.

4

that the condition for which a schedule award is sought is causally related to his or her
employment.14
ANALYSIS
OWCP accepted the conditions of sprain of the left cruciate ligament and torn medial
meniscus of the left knee. It granted appellant schedule awards totaling two percent impairment
of the left leg, relying on ratings from Drs. Brigham and Slutsky.
The Board notes that the A.M.A., Guides directs examiners to rate diagnosis-based
impairments for the lower extremities pursuant to Chapter 16, which states at page 497, section
16.2a that impairments are defined by class and grade.15 In accordance with this section the
examiner is instructed to utilize the net adjustment formula outlined at pages 521-22 of the
A.M.A., Guides,16 to obtain the proper impairment rating. In a March 11, 2011 report,
Dr. Brigham reviewed the August 23, 2010 report from Dr. Higgs, appellant’s attending
physician and surgeon, who performed two procedures on his left knee. He noted that Dr. Higgs
failed to correlate his findings to the applicable tables and figures of the A.M.A., Guides to rate
13 percent left leg impairment. Dr. Brigham found that appellant had a one percent impairment
of the left leg based on the Knee Regional Grid, Lower Extremity Impairments at Table 16-3,
page 509 of the A.M.A., Guides. He applied the section on muscle/tendon impairments and
found that appellant had a class 1 rating for left knee strain, a default score of two percent lower
extremity impairment based on palpatory findings. Dr. Brigham then utilized the net adjustment
formula, applying the grade modifiers of zero for functional history and physical examination
and no grade modifier for clinical studies; he compared these net adjustments and calculated the
diagnosis for class 1 of minus two; for a grade A, one percent lower extremity impairment.
Based on his report, OWCP determined that appellant had a one percent impairment of the left
leg, as he calculated this rating based on the applicable protocols and tables of the sixth edition
of the A.M.A., Guides. Dr. Brigham applied the diagnosis-based impairment method for
appellant’s accepted left knee strain condition, rather than rating the two surgeries he underwent
to repair his anterior cruciate and torn medial meniscus. He based the rating on the fact that
appellant’s left knee had stabilized following the surgeries, which were performed in
November 2008 and September 2009.
The Board also finds that had appellant’s impairment been rated for his torn medial
meniscus, instead of the sprain, the impairment rating would have been the same. Pursuant to
Table 16-3, the default rating for meniscal injury with tear, or repair is also two percent.17

14

Veronica Williams, 56 ECAB 367, 370 (2005).

15

A.M.A., Guides 497.

16

Id. at 521-22.

17

The Board notes that Dr. Goodman provided an impairment rating for appellant’s accepted torn meniscus
condition, the only such rating in the instant record. This rating is not applicable, however, as it was based on the
range of motion method used by Dr. Goodman which Dr. Slutsky properly rejected for the reasons stated above.

5

Appellant sought an additional schedule award and submitted the July 1, 2011 report of
Dr. Goodman, who also rated a 13 percent impairment of the left leg based on loss of range of
motion in the left knee, augmented by his meniscal tear and surgery, which elevated the
impairment to a grade 2, 13 percent impairment. On December 22, 2011 Dr. Slutsky reviewed
Dr. Goodman’s report. He stated that he relied on Dr. Brigham’s report but rated an additional
one percent impairment for the condition of left knee strain/sprain, to find a total two percent
impairment. Dr. Slutsky found that Dr. Goodman’s rating for loss of range of motion was not in
conformance with the A.M.A., Guides because he did not indicate that he performed three
measurements, using a goniometer, as mandated by section 16.3b, page 517 of the A.M.A.,
Guides; because the A.M.A., Guides state that a range of motion impairment should not be
combined with the diagnosed-based impairment; and because Dr. Goodman failed to compare
the total values for the foot/ankle, knee, or hip to the criteria in section 16-7, page 543 to define
the range of motion grade modifier. Dr. Goodman did not verify that he performed all of the
measurements required by section 16.7b, which states at page 517 of the A.M.A., Guides:
“Range of motion is graded according to the process and the criteria specified in
section 16.7. Lower extremity impairment can be evaluated by assessing the
range of motion of its joints, recognizing that pain and motivation may affect the
measurements. If it is clear to the evaluator that a restricted range of motion has
an organic basis, three measurements should be obtained and the greatest range
measured should be used for the determination of impairment.”18
In addition, as noted by Dr. Slutsky, section 16-2, page 497 of the A.M.A., Guides,
Diagnosis-Based Impairment, states:
“Most impairments are based on the [d]iagnosis-based [i]mpairment where
impairment class is determined by the diagnosis and specific criteria.... Range of
motion is primarily used as a physical examination adjustment factor and is only
used to determine actual impairment values when it is not possible to otherwise
define impairment. Ratings based on range of motion ... cannot be combined with
other approaches.”
Dr. Slutsky properly relied on a diagnosis-based method for rating appellant’s accepted
left knee strain. While Dr. Goodman found that appellant had a 13 percent left lower extremity
impairment, his rating is of diminished probative weight as he did not utilize the proper methods
to correlate this rating to the applicable protocols of the sixth edition of the A.M.A., Guides.19
While the record documents that appellant has an accepted cruciate injury, a diagnosisbased impairment can only be granted for a cruciate injury if measured laxity is present. As the
medical record does not substantiate laxity, appellant’s permanent impairment was not evaluated
for this diagnosis. OWCP’s medical adviser provided an impairment rating in accordance with
18

A.M.A., Guides 510.

19

The Board notes that a description of appellant’s impairment must be obtained from appellant’s physician,
which must be in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly
visualize the impairment with its resulting restrictions and limitations. See Peter C. Belkind, 56 ECAB 580,
585 (2005).

6

its applicable protocols and tables. It properly granted a schedule award for a two percent left
lower extremity impairment in its January 24, 2012 decision.
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 more than a two percent impairment of his left leg.
ORDER
IT IS HEREBY ORDERED THAT the June 28 and January 24, 2012 decisions of the
Office of Workers’ Compensation Programs be affirmed.
Issued: March 11, 2013
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.K., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Odenville, AL, Employer
__________________________________________

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

Docket No. 14-1769
Issued: December 19, 2014

Case Submitted on the Record

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

JURISDICTION
On August 13, 2014 appellant filed a timely appeal from a June 13, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that her diagnosed left
shoulder condition was caused or aggravated by factors of her federal employment.
On appeal appellant asserts that the medical evidence of record establishes her claim.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On November 25, 2013 appellant, then a 43-year-old rural carrier, filed an occupational
disease claim alleging that employment duties caused a tear in her left biceps and supraspinatus
tendon. She indicated that she was first aware of the condition and its relationship to her
employment on July 18, 2013. The employing establishment advised that appellant had not
stopped work. On an attached statement, appellant described her symptoms and the job duties
that she believed contributed to the condition. She indicated that on July 18, 2013, three days
after returning to work from a right shoulder injury,2 she began experiencing pain, swelling, and
muscle soreness that radiated down her left upper extremity. Appellant described the subsequent
medical care and indicated that surgery had been recommended.
An August 28, 2013 magnetic resonance imaging (MRI) scan of the left shoulder
demonstrated moderate to severe tendinosis of the supraspinatus with suspected tear, a ganglion
cyst developing anterior to the subscapularis, early subluxation of the biceps tendon, and
hypertrophic changes of the acromioclavicular joint. On September 13, 2013 Dr. Michael M.
Tucker, an attending Board-certified orthopedic surgeon, noted that appellant was seen for left
shoulder pain. Physical examination demonstrated pain with liftoff testing and a positive speed
test. Dr. Tucker diagnosed pain in left shoulder joint. On November 14, 2013 he advised that
appellant had been under his care since July 18, 2013 for a high grade partial thickness tear of
the subscapularis and biceps tendon of the left shoulder. Dr. Tucker indicated that he had read
appellant’s job description and that, due to an injury of July 2012, it was conceivable that this
could have caused or contributed to her shoulder pathology.
The employing establishment controverted the claim, advising that appellant reported the
left shoulder condition three days after returning to work after an absence of six months for a
right shoulder condition. On November 25, 2013 Melissa Williams, the postmaster, concurred
with appellant’s description of job duties for the most recent four years and attached a rural
carrier position description.
In letters dated December 10, 2013, OWCP informed appellant of the evidence needed to
support her claim and asked the employing establishment to respond.
In a November 12, 2012 report, Dr. Edwin Keel, a family physician, noted a complaint of
pain and decreased range of motion in both shoulders that occurred six weeks previously.
Physical examination findings included tenderness of both shoulders and increased pain with
range of motion of the left shoulder. Dr. Keel diagnosed sprain/strain of shoulder, unspecified,
and pain in shoulder joint. In a November 15, 2012 report, Dr. Michael T. Robinson, an
osteopath and associate of Dr. Keel, noted a history of right shoulder pain with weak shoulders
typical of chronic tear. He diagnosed pain and disorder of shoulder joint and referred appellant
to an orthopedic surgeon. In an August 29, 2013 report, Dr. Tucker advised that appellant had
been under his care since November 20, 2012. He noted that she had been released to return to

2

Appellant has a separate claim for a right shoulder rotator cuff tear, adjudicated by OWCP under file number
xxxxxx390. OWCP has denied the claim and appellant has an appeal before the Board, Docket No. 14-1770, that
will be adjudicated separately.

2

work without restriction on July 12, 2013 with regard to her right upper extremity, following
rotator cuff repair.3
By decision dated January 14, 2014, OWCP denied the claim, finding that the medical
evidence did not sufficiently describe the work activity that caused or aggravated the claimed
condition.
On April 8, 2014 appellant, through her representative, requested reconsideration. The
record includes a December 23, 2013 Family and Medical Leave Act (FMLA) certification in
which Dr. Tucker indicated that appellant was unable to use her left upper extremity because she
required surgery and requested intermittent time off for recovery for the period December 26,
2013 to February 28, 2014. On December 26, 2013 Dr. Tucker performed a left shoulder rotator
cuff repair, biceps tenodesis, and arthroscopic subacromial decompression. Appellant also
submitted a duplicate of the statement describing her job duties and left shoulder condition. In
treatment notes dated January 6 and February 5, 2014, Dr. Tucker described appellant’s followup care. On March 31, 2014 he reported that she had been under his care for her right shoulder
since 2012 and for her left shoulder since July 18, 2013. Dr. Tucker indicated that appellant was
status post right shoulder rotator cuff repair and stated:
“I have read the required job descriptions for the workplace which include
repetitive lifting during the activities of casing mail, loading and unloading her
vehicle and pulling down trays of mail. These activities contributed to the
diagnosed conditions of full thickness rotator cuff tear, degenerative subscapularis
and the need for surgery on [December 20, 2012] to the right shoulder and to the
diagnosed conditions of a high grad[e] partial thickness tear of the subscapularis
and biceps tendon to the left shoulder.”
In a merit decision dated June 13, 2014, OWCP denied modification of the prior decision.
It noted that Dr. Tucker did not include a complete medical and factual history to support his
conclusion.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed is causally
related to the employment injury. These are the essential elements of each and every
compensation claim, regardless of whether the asserted claim involves traumatic injury or
occupational disease, an employee must satisfy this burden of proof.4

3

Appellant also submitted evidence relevant to her right shoulder claim. Id.

4

Roy L. Humphrey, 57 ECAB 238 (2005).

3

OWCP regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.”5 To
establish that an injury was sustained in the performance of duty in an occupational disease
claim, a claimant must submit the following: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
opinion must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.6
Causal relationship is a medical issue, and the medical evidence required to establish a
causal relationship is rationalized medical evidence.7 The opinion of the physician must be
based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty, and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.8 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left shoulder
condition caused by her rural carrier federal job duties as the medical evidence is insufficient to
establish causal relationship.
The August 28, 2013 MRI scan of the left shoulder did not provide a cause of any
diagnosed conditions, and medical evidence that does not offer any opinion regarding the cause
of an employee’s condition is of limited probative value on the issue of causal relationship.10
Likewise, the reports dated November 14, 2012 from Dr. Keel and dated November 15, 2012
from Dr. Robinson do not include an opinion as to the cause of any diagnosed condition.
Dr. Tucker, the attending orthopedic surgeon, noted in his September 13, 2013 report
appellant’s complaint of left shoulder pain beginning in July 2013. In an FMLA certification and
an operative report dated December 26, 2013, he described the left shoulder surgery, and in
follow-up treatment notes dated January 6 and February 5, 2014, he reported appellant’s
5

20 C.F.R. § 10.5(ee).

6

Roy L. Humphrey, supra note 4.

7

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

8

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

9

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

10

Willie M. Miller, 53 ECAB 697 (2002).

4

postoperative care and condition. In these reports, however, Dr. Tucker did not discuss any
cause of the diagnosed left shoulder condition. On November 24, 2013 he advised that that
appellant had been under his care since July 18, 2013 for a high grade partial thickness tear of
the left shoulder. Dr. Tucker indicated that he had read appellant’s job description and that, due
to an injury of July 2012, it was conceivable that this could have caused or contributed to her
shoulder pathology. He, however, did not describe a specific July 2012 employment injury or
address describe the mechanics of how any job duty or injury caused the diagnosed left shoulder
condition. Moreover, Dr. Tucker couched this opinion in speculative terms. Medical opinions
based upon an incomplete history or which are speculative or equivocal in character have little
probative value.11 Dr. Tucker also reported on March 31, 2014 that he had read appellant’s job
description of repetitive lifting while casing mail, loading and unloading a vehicle and pulling
down trays of mail, and found that these activities contributed to the diagnosed conditions of
high grade partial thickness tear of the subscapularis and biceps tendon of the left shoulder. He
did not, however, provide any rationale for his opinion other than to note appellant’s work
duties.12
The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to his
federal employment and such relationship must be supported with affirmative evidence,
explained by medical rationale and be based upon a complete and accurate medical and factual
background of the claimant.13 Dr. Tucker failed to adequately explain how appellant’s work
duties caused or aggravated her left shoulder condition. Therefore, his opinion is of diminished
probative value.
The Board finds that appellant failed to meet her burden of proof to establish that her
claimed left shoulder condition was causally related to factors of her federal employment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish a left upper extremity condition causally
related to factors of her federal employment.

11

Frank Luis Rembisz, 52 ECAB 147 (2000).

12

See D.D., 57 ECAB 734 (2006).

13

A.D., 58 ECAB 149 (2006).

5

ORDER
IT IS HEREBY ORDERED THAT the June 13, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 19, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


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

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Docket Nos. 10-2339, 10-2360
& 11-425
Issued: September 28, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
On September 15, 2010 appellant filed appeals of Office of Workers’ Compensation
Programs’ (OWCP) decisions, dated September 11 and 9, 2010,2 denying two claims for benefits
based on an emotional condition. She filed a third appeal on December 14, 2010 of an OWCP
decision dated December 8. 2010.3 For the reasons stated herein, the Board directs that these

1

OWCP claim number xxxxxx245.

2

OWCP claim number xxxxxx665.

3

OWCP claim number xxxxxx347. This is the second appeal before the Board of this claim. Appellant, then a
37-year-old postal supervisor, filed a claim for benefits on March 21, 2001, alleging that she injured her head, right
hand and lower back and experienced anxiety when an employee pushed her and knocked her to the floor. OWCP
accepted the claim for lumbar sprain/strain, neck sprain/strain, contusion of multiple sites and acute reaction to
stress. Appellant filed a claim for a recurrence of disability as of April 15, 2004 causally related to her accepted
psychological condition. By decisions dated December 15, 2004 and May 25, 2005, OWCP denied the claim. In a
decision dated December 15, 2005, the Board affirmed these decisions. Docket No. 05-1767 (issued
November 9, 2005).

claims be consolidated and remanded to OWCP for further factual finding of all allegations
raised in these claims.4
Appellant filed a claim for an emotional condition on February 18, 2010, alleging that on
August 23, 2007 she realized that her emotional distress was caused by her specially assigned
duties and to the requirements imposed by the employing establishment. She presented several
allegations of incidents which occurred between 2006 and 2007. Appellant also explained that
her reaction to some of the incidents was aggravated by post-traumatic stress syndrome, related
to her accepted March 21, 2001 claim. In the September 1, 2010 decision denying her claim,
OWCP made some findings of fact relating to specific allegations, but also found that events on
March 22 and April 4, 2007 occurred prior to the date of injury and could not be considered in
the instant claim.
Similarly in OWCP’s September 9, 2010 decision denying appellant’s September 25,
2006 claim, OWCP found that events alleged as occurring between 2002 and 2004 occurred
prior to the date of injury and could not be considered.
Section 20 C.F.R. § 10.126 requires OWCP to issue a decision containing findings of fact
and a statement of reasons.5 The Board finds that OWCP erred in its September 1 and 9, 2010
decisions by failing to discuss and analyze whether all of the alleged incidents referenced by
appellant implicated compensable acts of employment. Occupational disease claims by
definition pertain to a series of events occurring over the course of work shifts.6 OWCP
justification for not evaluating these allegations, that they occurred prior to the date of injury,
was not proper. The Board therefore directs that the September 1 and 9, 2010 decisions be
remanded to OWCP for further findings of fact.
On December 8, 2010 OWCP denied appellant’s claim for wage-loss compensation from
May 5, 2007 through September 10, 2010 pursuant to her accepted March 21, 2001 claim. The
Board notes that several of appellant’s allegations in her subsequent emotional condition claims
pertain to alleged post-traumatic stress reactions related to the accepted claim. For purposes of
judicial economy all of these cases should be consolidated. As OWCP has not made sufficient
findings of fact related to acceptance of additional factors of employment, intertwined with the
accepted claim, it is premature for the Board to adjudicate the issue raised in the December 8,
2010 decision.

4

This is the second appeal before the Board of this claim. Appellant, then a 37-year-old postal supervisor, filed a
claim for benefits on March 21, 2001, alleging that she injured her head, right hand and lower back and experienced
anxiety when an employee pushed her and knocked her to the floor. OWCP accepted the claim for lumbar
sprain/strain, neck sprain/strain, contusion of multiple sites and acute reaction to stress. Appellant filed a claim for a
recurrence of disability as of April 15, 2004 causally related to her accepted psychological condition. By decisions
dated December 15, 2004 and May 25, 2005, OWCP denied the claim. In a decision dated December 15, 2005, the
Board affirmed these decisions. Docket No. 05-1767 (issued November 9, 2005).
5

20 C.F.R. § 10.126.

6

20 C.F.R. § 10.5 (q).

2

Accordingly, the September 1 and 9, and December 8, 2010 decisions will be set aside.
These cases will be consolidated. OWCP shall thereafter issue an appropriate decision, with
findings of fact for each of appellant’s allegations. After such further development as OWCP
deems necessary, it should issue an appropriate decision to protect appellant’s appeal rights.
IT IS HEREBY ORDERED THAT that the December 8, September 9 and 1, 2010
Office of Workers’ Compensation Programs’ decisions be set aside and this case be remanded
for further development consistent with this decision.
Issued: September 28, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
DEPARTMENT OF THE ARMY, TANK
AUTOMOTIVE & ARMAMENTS COMMAND,
Warren, MI, Employer
__________________________________________

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

Docket No. 08-2291
Issued: May 19, 2009

Case Submitted on the Record

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

JURISDICTION
On August 19, 2008 appellant, through her attorney, filed a timely appeal from
November 8, 2007 and June 27, 2008 merit decisions of the Office of Workers’ Compensation
Programs denying her claim for disability compensation. 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 established that she sustained intermittent periods of
disability from January 13 through September 17, 2003 causally related to her accepted
employment injury.
FACTUAL HISTORY
On September 26, 2003 appellant, then a 47-year-old supply management specialist, filed
an occupational disease claim alleging that she sustained bilateral carpal tunnel syndrome due to

factors of her federal employment. The Office accepted her claim for bilateral carpal tunnel
syndrome.1
In a report dated May 22, 2003, Dr. Peter Janevski, a Board-certified surgeon, noted that
appellant used a computer in her work for the employing establishment. He diagnosed bilateral
carpal tunnel syndrome and indicated that she wanted workers’ compensation due to her 27 years
of computer use.
In a form report dated August 22, 2003, Dr. Janevski diagnosed bilateral carpal tunnel
syndrome. He indicated that the section of the form relevant to disability was not applicable.
Dr. Janevski listed the dates he treated appellant as February 15 and April 5, 1999 and
May 22, 2003.2
On January 23, 2004 Dr. Janevski related that appellant had symptoms of carpal tunnel
syndrome and required a carpal tunnel release. He discussed her history of computer work at the
employing establishment for 27 years and also noted that she had congenital abnormalities of the
hands.
On August 8, 2005 appellant filed a claim for compensation (Form CA-7) for intermittent
disability from January to September 2003. The employing establishment noted that she retired
with incentive pay on April 30, 2004 and submitted an incomplete time analysis form.
By letter dated September 22, 2005, the Office requested that the employing
establishment provide appellant’s leave usage for the period covered by the Form CA-7. In a
separate letter of the same date, the Office requested that appellant submit medical evidence
showing that she was disabled from employment for the period claimed.
In a report dated October 13, 2005, Dr. Janevski related that appellant had suspected
carpal tunnel syndrome but that the diagnosis could not be documented due to congenital
abnormalities of the hands. He asserted that she was unable “to work from January 12 to
September 20, 2003 due to chronic pain.”
In a decision dated June 13, 2006, the Office denied appellant’s claim on the grounds that
the medical evidence did not show that she was totally disabled during the period January 13
through September 17, 2003.
On July 11, 2006 appellant requested an oral hearing. Following a preliminary review,
on August 18, 2006 the hearing representative found that the case was not in posture for a
hearing. The hearing representative vacated the June 13, 2006 decision and remanded the case

1

By decision dated January 9, 2004, the Office denied appellant’s claim on the grounds that she did not establish
that she sustained bilateral carpal tunnel syndrome due to factors of her federal employment. By decision dated
March 25, 2005, a hearing representative reversed the January 9, 2004 decision and accepted the claim for bilateral
carpal tunnel syndrome.
2

On October 13, 2003 Dr. Janevski recommended a carpal tunnel release. On November 3, 2003 he opined that
appellant should limit typing to four hours per day.

2

for the Office to obtain complete information from the employing establishment regarding
appellant’s leave usage between January 12 and September 20, 2003.
On June 8, 2007 appellant, through her attorney, requested reconsideration. On
September 28, 2007 the employing establishment provided the dates that appellant used leave
and leave without pay from January 12 to September 20, 2003.3
On October 1, 2007 the Office notified appellant that it had insufficient medical evidence
to support that she was disabled for any claimed date except for May 22, 2003. It requested that
she obtained clarification from Dr. Janevski regarding whether she was unable to work due to
carpal tunnel syndrome.
By decision dated November 8, 2007, the Office denied appellant’s claim on the grounds
that the medical evidence was insufficient to support her claim for intermittent wage loss
between January 13 and September 17, 2003.
On November 28, 2007 appellant requested an oral hearing. In a report dated February 5,
2008, Dr. Jerry A. Taylor, an osteopathic hand surgeon, certified by the American Osteopathic
Association, discussed her work history of extensive typewriter and computer use and her
symptoms of hand pain and numbness beginning in 1995. In discussing appellant’s medical
history, Dr. Taylor related, “[Appellant] missed work at a rate of approximately [one to two]
days per week from Jan[uary] 2003 thr[ough] her last day of work which was April 30, 2004.
She stopped working at that time because she was no longer able to work due to the severe pain
and numbness of the hands.” He diagnosed bilateral carpal tunnel syndrome on the left more
than right, a history of congenital absence and hypoplasia of the digits of both hands and pain
and tenderness at the base of both palms of unknown etiology but possibly due to carpal tunnel
syndrome. Dr. Taylor opined that appellant was totally disabled from her employment due to her
bilateral carpal tunnel syndrome.
A hearing was held on April 30, 2008. In a decision dated June 27, 2008, the hearing
representative affirmed the November 8, 2007 decision as modified to show that appellant was
entitled to four hours of compensation for medical treatment on May 22, 2003. She determined
that there was no other medical evidence supporting either that appellant was disabled from work
or sought medical treatment for her accepted work injury from January 13 to
September 17, 2003.
LEGAL PRECEDENT
The term disability as used in the Federal Employees’ Compensation Act4 means the
incapacity because of an employment injury to earn the wages that the employee was receiving
at the time of injury.5 Whether a particular injury caused an employee disability for employment
3

The leave analysis indicates that appellant missed periodic time from work and used a combination of annual
leave and leave without pay.
4

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

5

Paul E. Thams, 56 ECAB 503 (2005).

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is a medical issue which must be resolved by competent medical evidence.6 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in the employment held when injured, the
employee is entitled to compensation for any loss of wage-earning capacity resulting from such
incapacity.7 The Board will not require the Office to pay compensation for disability in the
absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow employee’s to self-certify their
disability and entitlement to compensation.8
ANALYSIS
The Office accepted that appellant sustained bilateral carpal tunnel syndrome causally
related to factors of her federal employment. Appellant filed a claim for compensation for
intermittent periods of disability between January 13 and September 17, 2003.
On May 22, 2003 Dr. Janevski diagnosed symptoms of carpal tunnel syndrome
bilaterally. He did not address whether appellant was disabled from employment. The Office
found that she was entitled to four hours of wage-loss compensation on this date as she obtained
medical treatment for her work injury.
In an August 22, 2003 form report, Dr. Janevski diagnosed carpal tunnel syndrome and
recommended a carpal tunnel release. He indicated on the form that the questions regarding total
or partial disability were not applicable and there is no evidence that he treated appellant on this
date.
Consequently, Dr. Janevski’s report does not support her claim for disability
compensation.
On January 23, 2004 Dr. Janevski noted appellant’s history of work at the employing
establishment for 27 years and diagnosed carpal tunnel syndrome. He did not, however, address
the relevant issue of whether she had any disability between January 13 and September 17, 2003.
The Board will not require the Office to pay compensation for disability in the absence of any
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.9
In a report dated October 13, 2005, Dr. Janevski noted that appellant’s suspected
diagnosis of carpal tunnel syndrome could not be verified due to her congenital hand
abnormalities bilaterally. He opined that she was unable “to work from January 12, 2003 to
September 20, 2003 due to chronic pain.” Dr. Janevski did not, however, provide any rationale

6

Id.

7

Id.

8

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

9

Id.

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for his finding. Medical conclusions unsupported by rationale are of diminished probative
value.10
On February 5, 2008 Dr. Taylor reviewed appellant’s work history and noted that she
began experiencing pain and numbness in her hands in 1995. He noted that she had missed one
or two days of work weekly between January 2003 and April 2004. Dr. Taylor diagnosed
bilateral carpal tunnel syndrome probably due to appellant’s work for the employing
establishment, congenital absence of hypoplasia of the digits of the hands and tenderness of both
palms, etiology unknown. He found that she was totally disabled from employment due to her
carpal tunnel syndrome beginning in April 2004. While Dr. Taylor noted appellant’s history of
missing one or two days of work each week from January 2003 until April 2004 due to hand pain
and numbness, he did not provide an independent opinion that she was disabled from work on
specific dates between January and September 2003 due to her carpal tunnel syndrome.
Consequently, his opinion is insufficient to meet her burden of proof.
On appeal, appellant’s attorney advised that the employing establishment accepted her
work absences without requiring further documentation. As discussed, however, disability under
the Act is a medical issue and must be supported by competent medical evidence.11
CONCLUSION
The Board finds that appellant has not established that she sustained intermittent periods
of disability from January 13 through September 17, 2003 causally related to her accepted
employment injury.

10

Jaja K. Asaramo, 55 ECAB 200 (2004); Jacquelyn L. Oliver, 48 ECAB 232 (1996).

11

See Paul E. Thams, supra note 5.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 27, 2008 and November 8, 2007 are affirmed.
Issued: May 19, 2009
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.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chelsea, MA, Employer
__________________________________________

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

Docket No. 09-1683
Issued: March 11, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On June 12, 2009 appellant filed a timely appeal from a January 28, 2009 decision of the
Office of Workers’ Compensation Programs which denied merit review. Because more than one
year has elapsed between the most recent merit decision dated November 8, 2007 and the filing
of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to
20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration.
FACTUAL HISTORY
On April 17, 2007 appellant, then a 52-year-old letter carrier, filed an occupational
disease claim alleging that she developed tingling and discomfort in her hands and fingers with
neck pain. She became aware of her condition on January 23, 2007. Appellant did not stop
work. In an April 20, 2007 duty status report, Dr. Nancy S. Adams, a Board-certified internist,

noted clinical findings of carpal tunnel syndrome and cervical radiculopathy. She opined that
appellant was able to work full time without restrictions.
On June 7, 2007 the Office advised appellant of the factual and medical evidence needed
to establish her claim. Appellant thereafter submitted physical therapy notes from May 29
to 31, 2007.
In a July 10, 2007 decision, the Office denied appellant’s claim on the grounds that the
evidence submitted was not sufficient to establish that appellant sustained an injury in the
performance of duty.
On July 17, 2007 appellant requested a review of the written record. In an undated
statement, she asserted that her claimed condition was due to lifting heavy tubs of mail daily and
casing letters and flats which required constant movement of the hands and fingers for 40 hours
per week. Appellant also carried a mail satchel which caused a pinched nerve in her neck. She
submitted reports from Dr. Adams dated January 17 to July 2, 2007 for treatment of intermittent
paresthesia in the hands involving all her fingers and neck pain. Dr. Adams diagnosed acute
paresthesia and insomnia due to anxiety and fatigue and depression. In a July 2, 2007 attending
physician’s report, she diagnosed bilateral carpal tunnel syndrome and right cervical
radiculopathy. Dr. Adams noted with a checkmark “yes” that appellant’s condition was caused
or aggravated by an employment activity and indicated that appellant was a letter carrier who
sorted mail. She advised that appellant could continue working. On February 28, 2007 appellant
was seen in consultation with Dr. Luz S. Ruiz, a Board-certified neurologist, for numbness and
weakness in her hands with neck pain. Dr. Ruiz diagnosed bilateral shoulder pain associated
with intermittent numbness, paresthesias and weakness in her hands and the possibility of
bilateral cervical radiculopathy versus carpal tunnel syndrome. On April 11, 2007 he noted that
an April 2, 2007 electromyogram revealed moderate bilateral median neuropathies as seen in
carpal tunnel syndrome predominately on the left side superimposed on mild and chronic lower
cervical and upper thoracic radiculopathy on the right side. Dr. Ruiz noted that appellant’s
duties as a letter carrier could be contributory to her radiculopathy but not the cause of her
condition. Appellant submitted physical therapy notes from April 17 to May 31, 2007.
In a November 8, 2007 decision, an Office hearing representative affirmed the July 10,
2007 decision, as modified. The hearing representative noted that appellant provided sufficient
evidence to support that she was diagnosed with bilateral carpal tunnel syndrome and cervical
radiculopathy and identified employment the factors she believed contributed to her condition.
However, the medical evidence was insufficient to establish that the diagnosed conditions were
causally related to her work duties.
On October 27, 2008 appellant requested reconsideration. She submitted a copy of her
CA-2 and a July 2, 2007 attending physician’s report from Dr. Adams, both previously of record.
Appellant also submitted a November 7, 2007 duty status report from Dr. J. Saperstein, a Boardcertified orthopedic surgeon, who noted clinical findings of fibrosis of the hands and feet due to
laceration of the fingers and reflex sympathetic dystrophy. In a November 7, 2007 attending
physician’s report, Dr. Saperstein diagnosed laceration to the fingers and reflex sympathetic
dystrophy caused by a dog bite on June 25, 2007. He noted with a checkmark “yes” that
appellant’s condition was caused or aggravated by an employment duty.

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In a January 28, 2009 decision, the Office denied appellant’s reconsideration request on
the grounds that she failed to raise a substantive legal question or include new and relevant
evidence.
LEGAL PRECEDENT
Under section 8128(a) of the Act,1 the Office has the discretion to reopen a case for
review on the merits. It must exercise this discretion in accordance with the guidelines set forth
in section 10.606(b)(2) of the implementing federal regulations,2 which provide that a claimant
may obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence which:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by the
[Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.3
ANALYSIS
Appellant’s October 27, 2008 request for reconsideration neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, she did not advance a relevant legal argument not previously considered by the
Office. Consequently, appellant is not entitled to a review of the merits of her claim based on the
first and second above-noted requirements under section 10.606(b)(2).
With respect to the third requirement, appellant submitted a November 7, 2007 duty
status report from Dr. Saperstein who noted clinical findings of fibrosis of the hands and feet due
to laceration of the fingers and reflex sympathetic dystrophy. A November 7, 2007 attending
physician’s report from Dr. Saperstein diagnosed laceration to the fingers and reflex sympathetic
dystrophy caused by a dog bite on June 25, 2007. Dr. Saperstein indicated that this was
employment related. However, these reports are not relevant to appellant’s claim of
occupational disease attributed to lifting tubs of mail and casing letters. The issue on which her
claim was denied is whether appellant’s diagnosed conditions of bilateral carpal tunnel syndrome
and cervical radiculopathy were causally related to her work duties as a letter carrier as noted in
1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.606(b).

3

Id. at § 10.608(b).

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her statements to the Office. To the extent that Dr. Saperstein addressed causal relationship, he
indicated that appellant’s condition was due to a dog bite. The Board notes that appellant’s
occupational disease claim did not implicate a dog bite as a cause of her claimed condition.
Appellant resubmitted a copy of her CA-2 and a July 2, 2007 attending physician’s report
from Dr. Adams. However, this evidence is duplicative of that already contained in the record.4
It was previously considered by the Office in its November 8, 2007 decision and found to be
deficient. The Office properly determined that this evidence did not constitute a basis for
reopening the case for further merit review.
Appellant did not otherwise provide any new and relevant evidence pertaining to the
issue of whether her diagnosed conditions of bilateral carpal tunnel syndrome and cervical
radiculopathy were causally related to her work duties. Therefore, the Office properly
determined that this evidence did not constitute a basis for reopening the case for a merit review.
On appeal, appellant asserted that the Office did not consider all of the evidence she
submitted and that her supervisor encouraged her to file a claim. She also submitted new
evidence on appeal. Appellant stated that she was confused by the January 28, 2009 decision in
light of a January 23, 2009 letter to the employing establishment in which the Office indicated
that it would conduct a merit review of the claim. The Board notes that the record indicates that
the Office considered all of the evidence properly before it. At the time of the January 28, 2009
decision, the August 23, 2008 report of Dr. Ruiz was not of record. Therefore, the Board may
not consider this report on appeal.5 The fact that appellant’s supervisor encouraged her to file a
claim is not a basis for obtaining a merit review. The underlying issue in this case concerns the
medical evidence addressing the causal relationship between a diagnosed medical condition and
appellant’s work duties. The Office’s January 23, 2009 letter to the employing establishment did
not obligate the Office to issue a merit decision. The standard for obtaining a merit review has
been codified in the applicable federal regulations. The regulations address the basis on which a
claimant may obtain further merit review. To the extent the January 23, 2009 letter departs from
this standard, the January 28, 2009 decision properly applied the regulations to the evidence
submitted on reconsideration.
Appellant did not show that the Office erroneously applied or interpreted a point of law;
advance a point of law or fact not previously considered by the Office; or submit relevant and
pertinent evidence not previously considered by the Office.”6 Consequently, she is not entitled
to a review of the merits of her claim pursuant to the requirements under section 10.606(b)(2).

4

Evidence that repeats or duplicates evidence already in the case record has no evidentiary value and does not
constitute a basis for reopening a case; see Daniel Deparini, 44 ECAB 657 (1993); Eugene F. Butler, 36 ECAB 393,
398 (1984); Bruce E. Martin, 35 ECAB 1090, 1093-94 (1984).
5

See 20 C.F.R. § 501.2(c)(1) (the Board’s review of a case is limited to the evidence in the case record that was
before the Office at the time of its final decision).
6

Id. at § 10.606(b).

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CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the January 28, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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