United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
STATION, San Diego, CA, Employer
__________________________________________

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

Docket No. 09-1087
Issued: July 13, 2010

Case Submitted on the Record

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

JURISDICTION
On March 16, 2009 appellant filed a timely appeal from the January 6, 2009 merit
decision of the Office of Workers’ Compensation Programs that denied her emotional condition
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits
of the claim.
ISSUE
The issue is whether appellant sustained an emotional condition in the performance of
duty.
FACTUAL HISTORY
Appellant, a 54-year-old former electronic integrated systems mechanic, filed a May 4,
2007 claim for employment-related depression and anxiety.1 She identified March 20, 2000 as
1

Appellant also noted she had post-traumatic stress disorder (PTSD), which had previously been linked to a
sexual assault that occurred during her military service.

the date she first realized her condition was employment related. Appellant alleged a hostile
work environment, sexual harassment, derogatory name calling and that coworkers spread
rumors about her being a child molester. She also alleged being falsely accused of a crime and
abused by the Naval Criminal Investigative Service (NCIS) and improperly charged absence
without leave (AWOL).
The employing establishment controverted appellant’s claim; rather it attributed her
emotional reaction to recent disciplinary actions. Beginning in November 2006, appellant was
investigated, charged, suspended and ultimately relieved of her duties for unauthorized use of a
government computer system and use of Privacy Act information.2
In a July 24, 2007 statement, appellant described numerous events over the previous
decade that contributed to her claimed psychiatric condition. She alleged sexual harassment by
Jim Page, a former supervisor, and two coworkers, Hunter Cross and Lazar Lopez. In June or
July 1996, Mr. Page allegedly asked appellant to go out with him and then threatened her when
she refused. He made her sit in his office and would not allow her to work. Appellant alleged
that coworkers referred to her as Mr. Page’s “‘sexratery.’” Mr. Cross also harassed appellant by
asking her out and told her that her problems stemmed from her refusal to date Mr. Page.
Appellant also alleged that Mr. Cross took pictures of her bending over at work and stuck his
hand down the back of her pants while she was bent over working on an airplane.
Appellant reported the misconduct of Mr. Cross and Mr. Page but action was not taken.
She alleged that, when she was working a night shift with Mr. Cross on May 3, 2000, he fondled
his penis three times while they worked in a cockpit. Appellant described an incident when
Mr. Cross reportedly showed her that he was not wearing any underwear beneath his coveralls.
She complained to a supervisor about the cockpit fondling incident and she prepared a written
statement dated May 9, 2000. Appellant’s supervisor continued to schedule her to work with
Mr. Cross on the night shift. Mr. Cross eventually retired. The record indicates that Mr. Cross
received a verbal warning on May 4, 2000 for misconduct involving appellant. Shop Supervisor
Bill Robinette advised Mr. Cross that “he had to stop.” Mr. Robinette also told Mr. Cross to be
more aware of what he was doing around appellant and advised him to keep his conversations
with her on work-related issues.
Appellant alleged that Mr. Lopez began harassing her in 2003 by making sexually-related
remarks. Mr. Lazar asked her to go into the hanger with him to look for parts and, when they
were alone, he told her to look at his erect penis and grabbed at her. Appellant stated that she hit
him, told him to stop and left the hanger. She reported the incident and, when questioned by Jan
Burris, the supervisor, Mr. Lopez denied doing anything wrong. According to appellant,
Mr. Lazar repeated this behavior on numerous occasions and repeatedly told her that he wanted
to have sex with her. She also alleged that in 2004 Brian Mallak allegedly asked her if she had
sex with her son. Appellant stated that Mr. Mallak told her he had heard the rumor from a

2

Appellant was charged with unauthorized entry into a federal computer system and alteration of documents
stored in its database. She gained access to an employee resume database and altered several resumes. While the
investigation was still pending, appellant was barred from entering the facility where she worked. She was placed
on indefinite suspension effective January 29, 2007 and was removed from federal service effective June 10, 2007.

2

female coworker, Gabriel Howard.
making the comment.

She subsequently confronted Ms. Howard, who denied

Appellant reported that she had problems with her resume that took years to fix. The
outcome was a letter from the employing establishment explaining that, due to an administrative
error, her resume was not put on the certification list for a supervisory position. A copy of a
May 17, 2005 letter from the employer’s Resume Intake and Employment Information Center
was submitted to the record. Due to an administrative oversight, appellant was not considered
for a particular position. She was further advised that to correct the problem, her name would be
placed on a priority consideration list, which meant she would be referred to the selecting official
for consideration before any other promotional candidates. Appellant contended that this was
retaliation for having previously filed an Equal Employment Opportunity (EEO) complaint.
Appellant claimed she was improperly charged 96 hours AWOL in November 2006. She
stated that she was on administrative leave beginning November 5, 2006 because of her alleged
unauthorized access to the employee resume database.3 On November 6, 2006 appellant learned
that her father was dying and she went to be with him. She alleged that she told Doug Burkett,
her immediate supervisor, that she had to leave; however, Dennis Weddle, the department head,
placed her on AWOL for not informing anyone of her whereabouts. Appellant contended that
Mr. Weddle knew she was visiting her father.
Appellant contended that she was “set-up” regarding her alleged unauthorized access to
the employing establishment’s computer system. She stated that NCIS personnel detained her
for more than eight hours and screamed at her, telling her to confess. Appellant alleged that
NCIS refused to allow her to speak with an attorney and forced her to sign a prepared statement.
Additionally, her home was searched after 10:00 p.m. and NCIS reportedly grabbed appellant’s
elderly mother and made her wait outside. Appellant alleged that Mr. Lazar visited her at home
and told her that he informed management that she had access to his e-mail account. She alleged
that he grabbed and squeezed her breast which was witnessed by her mother.4
In a December 1, 2006 note, Dr. Cheng-I Lin, a Board-certified family practitioner,
reported that appellant had been treated for “PTSD ... depression and anxiety.” He did not
provide any treatment records or identify any specific cause for appellant’s diagnosed psychiatric
condition.
In a November 30, 2007 decision, the Office denied appellant’s emotional condition
claim. It found that the majority of her allegations were not factually established; however, it
accepted three incidents as established: that Mr. Cross fondled himself while working with
appellant in an airplane cockpit on May 3, 2000; that appellant was under investigation in 2006
for unauthorized entry into a federal computer system and the alteration of documents stored in
the database; and, on a July 24, 2007 visit to appellant’s home, Mr. Lopez grabbed her breast.
Of these three incidents, only the May 3, 2000 incident involving Mr. Cross was found to
3

The employing establishment barred appellant from entering the base effective November 6, 2006.

4

Appellant’s mother provided two signed statements stating that she witnessed Mr. Lopez grab her daughter’s
breast while the two were seated on a bench outside appellant’s home.

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constitute a compensable factor of employment. The Office determined that the investigation
resulting in appellant’s suspension and removal was a disciplinary action for which she failed to
establish error or abuse.5 With respect to the incident with Mr. Lazar while at home, it found
that she was not in the performance of duty at the time it occurred. The Office found that the
medical evidence from Dr. Lin did not relate her diagnosed condition to the May 3, 2000
incident with Mr. Cross.
Appellant requested an oral hearing that was held on July 8, 2008. In a report dated
November 27, 2006, Dr. Linda Maggio, Ph.D., a marriage and family therapist, advised that
appellant had been in counseling since April 2005. She obtained a history that appellant was
sexually assaulted and harassed while in the military and developed PTSD. Dr. Maggio stated
that, when appellant experienced sexual harassment in her workplace, she attempted to resolve
these issues but none of the rulings were in appellant’s favor. Appellant reported that her issues
were denied, dismissed or ignored and she became depressed and felt helpless. She applied for a
promotion but received a letter that her application had been inadvertently lost. As a result,
appellant could not be considered for promotion. Dr. Maggio also indicated that appellant was
assigned duty where she was likely to cross paths with a person she had accused of sexual
harassment.
With respect to the unauthorized computer access, Dr. Maggio noted that back in 1997
appellant received paperwork associated with a sexual harassment hearing and, included among
those papers, was personal information about various employees. Appellant came across this old
paperwork and her brother reminded her of how she had been wronged and overlooked in the
past. Dr. Maggio explained that appellant impulsively wanted to make a statement about how
“stupid” people had been in dealing with her claims and was able to make ludicrous statements
in their online resumes. Dr. Maggio noted that, when confronted, appellant admitted that she had
played a prank. She noted that appellant’s actions indicated impulsivity, frustration and poor
judgment. According to Dr. Maggio, appellant had not intended to hurt any other employee or
compromise the system and attributed her actions to “a long trauma history” and the feeling that
no one took her claims of sexual harassment seriously.
On July 14, 2008 Dr. Maggio noted that appellant advised her that she had been sexually
harassed by a supervisor in 1997 and when she reported the incident there was a delayed
investigation and ultimately she lost the claim. She stated that appellant outlined other incidents
of harassment and a history of sexual trauma during the military. In 2005, appellant was again
assigned to work under a supervisor who had previously sexually harassed her. She began taking
anti-anxiety medication and she experienced dread at the thought of going to work. Dr. Maggio
stated that appellant was constantly fearful about bad things that might happen and her anxiety
regarding work remained elevated without significant improvement.
In a July 14, 2008 report, Dr. Kristin S. Beizai, a Board-certified psychiatrist associated
with the San Diego Department of Veterans Affairs Medical Center, stated that appellant had
been seen in the outpatient mental health clinic and was diagnosed with a recurrent major
depressive disorder. Appellant’s treatment included pharmacotherapy and psychotherapy.
5

Appellant had been suspended without pay effective January 29, 2007 and she was removed from federal service
effective June 10, 2007.

4

In a January 6, 2009 decision, an Office hearing representative affirmed the
November 30, 2007 decision.
LEGAL PRECEDENT
To establish that she sustained an emotional condition causally related to factors of her
federal employment, appellant must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to her condition;
(2) rationalized medical evidence establishing that she has an emotional condition or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that her emotional condition is
causally related to the identified compensable employment factors.6
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within the purview of workers’
compensation. When disability results from an emotional reaction to regular or specially
assigned work duties or a requirement imposed by the employment, the disability is deemed
compensable.7 Disability is not compensable, however, when it results from factors such as an
employee’s fear of a reduction-in-force or frustration from not being permitted to work in a
particular environment or hold a particular position.8 Perceptions and feelings alone are not
compensable. To establish entitlement to benefits, a claimant must establish a basis in fact for
the claim by supporting her allegations with probative and reliable evidence.9 When the matter
asserted is a compensable factor of employment and the evidence of record establishes the truth
of the matter, the Office must base its decision on an analysis of the medical evidence.10
As a general rule, an employee’s emotional reaction to an administrative or personnel
matter is not covered under the Federal Employees’ Compensation Act.11 Such matters, while
related to the employment, are functions of the employer rather than duties of the employee.12
Investigations and discipline are administrative functions which, absent evidence of error or
abuse, are not generally compensable.13

6

See Kathleen D. Walker, 42 ECAB 603 (1991).

7

Pamela D. Casey, 57 ECAB 260, 263 (2005).

8

Lillian Cutler, 28 ECAB 125, 129 (1976).

9

Kathleen D. Walker, supra note 6.

10

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

11

See Ana D. Pizarro, 54 ECAB 430 (2003).

12

See Karen K. Levene, 54 ECAB 671 (2003).

13

See Debora L. Hanna, 54 ECAB 548 (2003); Judy L. Kahn, 53 ECAB 321 (2002); Thomas D. McEuen, 41
ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991).

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ANALYSIS
Initially, the Board notes that appellant has not alleged any compensable factor relating to
the performance of her regular or specially assigned work duties under Cutler. Appellant’s
allegations have pertained to the investigation and disciplinary action taken by her employer and
to incidents of alleged sexual harassment by former coworkers. The record reveals that she was
investigated for unauthorized entry into a federal computer system and the alteration of
documents in the database. Appellant was placed on indefinite suspension on January 29, 2007
and removed from federal service as of June 10, 2007. On May 4, 2007 she filed a claim
alleging an emotional condition due to various incidents in the workplace that she characterized
as sexual harassment and a hostile work environment. The Office accepted as a compensable
factor that on May 3, 2000 Mr. Cross had fondled himself while working in a cockpit with
appellant. It denied her claim, finding that the medical evidence was not sufficient to establish
that her diagnosed condition or disability was caused or contributed to by this accepted factor.
Appellant claimed that a former supervisor, Mr. Page, began sexually harassing her in
1996. Verbal altercations and difficult relationships with supervisors when sufficiently detailed
and supported by the record may constitute compensable factors of employment.14 Appellant did
not substantiate her allegations pertaining to Mr. Page with probative and reliable evidence.15
She did not substantiate her allegations that he had asked her to go out with him or threatened her
when she refused. Appellant did not submit evidence from any witness to the comments or
actions she attributed to her former supervisor.
Appellant alleged that Mr. Cross sexually harassed her on numerous occasions, including
sticking his hand down the back of her pants, taking photographs of her while bent over, and
fondling himself in her presence. As noted, the Office accepted the May 3, 2000 incident in
which he fondled himself while working with appellant in a cockpit. The record establishes that
the employer issued a verbal warning to Mr. Cross on May 4, 2000 for misconduct and
admonished him to be more aware of what he was doing around her. The remaining allegations
involving Mr. Cross are not supported by any contemporaneous witness statements or documents
from the employer of appellant making such complaints. The Office properly accepted the
May 3, 2000 incident based on contemporaneous statements and other documentary evidence
indicating that Mr. Cross received a verbal warning for his misconduct.
Appellant alleged that on or about July 1, 2007 Mr. Lopez visited her home during work
hours and grabbed her breast. The Office properly determined that that this incident was not a
compensable factor as appellant was not at working when it occurred. Appellant had been on
indefinite suspension without pay since January 29, 2007, and apparently removed from federal
service when this occurred. Although she claimed other instances of harassment involving
Mr. Lopez, such as showing her his erection in an airplane hanger, she did not substantiate the
allegations with contemporaneous witness statements or evidence that she had raised the matter
with her employer.

14

Marguerite J. Toland, 52 ECAB 294, 298 (2001).

15

See Kathleen D. Walker, supra note 6.

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Appellant also claimed that coworkers allegedly referred to her as Mr. Page’s
“‘sexratery’” and rumors were spread about her. As noted, for harassment to give rise to a
compensable disability there must be evidence that the claimed incident occurred as alleged.16
Appellant’s perception of harassment is not compensable.17
The record reflects that appellant was investigated for unauthorized computer access and
barred from entering the base as of November 6, 2006. Appellant explained that she was on
administrative leave and went to be with her father, who was ill at the time. She was charged
with 96 hours of AWOL for not informing her employer as to her whereabouts. Although time
and attendance issues are generally related to the employment, they are administrative functions
of the employer and not a duty of the employee.18 As a general rule, an employee’s reaction to
administrative or personnel matters falls outside the scope of the Federal Employees’
Compensation Act.19 Appellant has not presented evidence sufficient to establish error or abuse
on the part of her managers or employer with respect to the investigation and discipline she
received for her unauthorized computer access or in being AWOL. She argued that she had been
set up, but this is not supported by sufficient evidence. Appellant’s complaints about the
interrogation and alleged mistreatment of herself and her mother are similarly not supported by
probative evidence. There is also nothing to substantiate her allegation that she informed the
employing establishment of her whereabouts while she was on administrative leave and visiting
her father.
Accordingly, appellant’s emotional reaction to being charged AWOL in
November 2006 is not a compensable factor.
Appellant also claimed that her employer retaliated against her for filing an EEO
complaint by intentionally misplacing her application for a supervisory position. The record
does not establish this allegation. By letter dated May 17, 2005, the employer advised appellant
that due to an administrative oversight she had not been considered for a particular position. In
an effort to rectify the problem, appellant was placed on priority consideration list for
consideration before any other promotional candidates. Her frustration from not being promoted
to supervisor or holding that particular position is not a compensable factor.20
As appellant established the May 3, 2000 incident involving Mr. Cross, the Office
considered the medical evidence in her claim.
Dr. Lin’s December 1, 2006 report did not attribute appellant’s PTSD condition,
depression or anxiety to the May 3, 2000 incident or her civilian employment in general.
Similarly, Dr. Beizai did not attribute appellant’s recurrent major depressive disorder to her
federal employment or the accepted incident. The reports of Dr. Maggio discussed certain of
appellant’s allegations pertaining to sexual harassment while in the military and as a mechanic in
16

Donna J. DiBernardo, 47 ECAB 700, 703 (1996).

17

Id.

18

Joe M. Hagewood, 56 ECAB 479, 488 (2005).

19

Andrew J. Sheppard, 53 ECAB 170, 173 (2001).

20

Lillian Cutler, supra note 8.

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her civilian employment. The Board notes, however, that Dr. Maggio is not a physician as
defined under the Act. The record indicates that she holds a Ph.D. as a family and marriage
therapist and not as a clinical psychologist.21 For this reason, the reports from Dr. Maggio are
not probative as medical opinion evidence on the cause of appellant’s emotional condition. The
Office properly found that the medical evidence of record was not sufficient to establish
appellant’s claim.
CONCLUSION
The Board finds that appellant did not establish that she sustained an emotional condition
causally related to her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the January 6, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 13, 2010
Washington, DC

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

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

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

21

Section 8101(2) provides that the term “physician” includes clinical psychologists within the scope of their
practice as denied by state law. See Jacqueline E. Brown, 54 ECAB 583 (2003). A family therapist or marriage
counselor is not a physician under the Act. See Joe L. Wilkerson, 47 ECAB 604 (1996). See also Nancy A.
Johnson-Charpentier, Docket No. 04-1599 (issued July 25, 2005).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.D., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Memphis, TN, Employer
__________________________________________

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

Docket No. 10-967
Issued: January 7, 2011

Case Submitted on the Record

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

JURISDICTION
On February 23, 2010 appellant, through her representative, filed a timely appeal from a
November 13, 2009 decision of the Office of Workers’ Compensation Programs denying his
schedule award claim. 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 established that he sustained employment-related
permanent impairment of his left leg.
On appeal appellant, through his attorney, contends that the Office’s decision denying a
schedule award is contrary to fact and law.
FACTUAL HISTORY
On June 11, 2008 appellant, then a 44-year-old mail and file clerk, filed a traumatic
injury claim alleging that while pulling a cart he injured his left kneecap. On July 17, 2008 he

underwent a fluoroscopy of the left knee with microfracture of the lateral condyle. On
August 18, 2008 the Office accepted appellant’s claim for tear of the medial meniscus of the left
knee. On October 16, 2008 appellant underwent a left knee arthroscopic chondroplasty.
In a February 13, 2009 report, Dr. Kenneth Grinspun, an attending Board-certified
orthopedic surgeon, noted that appellant was discharged and had reached maximum medical
improvement. He advised that appellant was ambulating without a limp, had full range of
motion, no quad atrophy and excellent quad strength. Dr. Grinspun stated that this was a very
complex case regarding rating any permanent impairment. Appellant gave good effort during the
functional capacity and had what appeared to be an acute chronic injury to his knee. At the time
of his first surgery, there were two small cartilaginous pieces floating in the knee that were not
consistent with an acute injury. Dr. Grinspun noted that a second look surgery confirmed that
the microfracture had filled in the cartilage nicely. He stated that after “thoughtful deliberation”
it was unlikely that appellant’s initial injury was work related. Dr. Grinspun did not provide any
impairment rating.
On April 6, 2009 appellant filed a claim for a schedule award. In a letter from appellant’s
attorney on the same date, he indicated that he was submitting an impairment rating from
Dr. Grinspun to support the claim. He attached a previously submitted report dated November 8,
2008 in which Dr. Grinspun provided a functional capacity evaluation for internal derangement
of appellant’s right knee. Dr. Grinspun noted complaints of pain in the left knee which increased
when performing handling activities. He listed findings on active range of motion but did not
provide any rating of impairment.
By memorandum dated April 27, 2009, the Office asked the Office medical adviser to
review appellant’s record and make a recommendation for schedule award purposes. In a
response that date, the Office medical adviser noted that appellant had arthroscopic surgery
performed on July 17, 2008 and that an October 16, 2008 report revealed an intact medial
meniscectomy. He also noted that a chondroplasty was performed and that a meniscectomy was
not performed. The Office medical adviser rated the statement by Dr. Grinspun that on
February 17, 2009 appellant had zero percent impairment of the left extremity and agreed with
this finding. He concluded that appellant had no permanent impairment of his left lower
extremity.
On April 28, 2009 the Office issued a decision denying appellant’s claim for a schedule
award as the evidence was not sufficient to establish that he sustained any permanent impairment
of his left leg.
By letter dated May 5, 2009, appellant, through his attorney, requested a telephonic
hearing. At the hearing held on August 13, 2009 appellant noted that he had returned to work in
a different position and could not perform the physical duties of his prior job lifting and loading.
The hearing representative agreed to hold the record open for 30 additional days for the
submission of additional medical evidence. No new medical evidence was submitted.
By decision dated November 13, 2009, the hearing representative affirmed the April 28,
2009 decision denying appellant’s claim for a schedule award.

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,1 and its
implementing federal regulations,2 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.3 For decisions after February 1, 2001, the fifth edition of the A.M.A., Guides is used
to calculate schedule awards.4 For decisions issued after May 1, 2009, the sixth edition will be
used.5
It is the claimant’s burden to establish that he or she has sustained a permanent
impairment of the scheduled member or function as a result of any employment injury.6 Office
procedures provide that, to support a schedule award, the file must contain probative medical
evidence which establishes that the impairment has reached a permanent and fixed state and
indicates the date on which this occurred (date of maximum medical improvement), describes the
impairment in sufficient detail so that it can be visualized on review and computes the
percentage of impairment in accordance with the A.M.A., Guides.7
ANALYSIS
The Office accepted that appellant sustained a work-related tear of the medial meniscus
of the left knee. After appellant underwent surgeries on his left knee, he filed a claim for a
schedule award. The Board notes that Office procedures provide that maximum medical
improvement must be reached before a schedule award can be made.8 In this case, Dr. Grinspun
found that appellant reached maximum medical improvement as of February 13, 2009; however,
he advised that appellant was ambulating without a limp, had a full range of motion, no quad
atrophy and excellent quad strength. He did not provide any permanent impairment rating for
the left knee. The Office forwarded the medical evidence to the Office medical adviser for
review. The Office medical adviser reviewed Dr. Grinspun’s reports and concluded that
appellant had no impairment of his left lower extremity.

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

Id. at § 10.404(a)

4

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

5

Id. at Exhibit 1 (January 2010).

6

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

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(b) (January 2010).
8

See id. at Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(a)(1) (October 1990).

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The record does not provide any medical opinion finding that appellant sustained
permanent impairment to his left leg as a result of his employment injury. The Board finds that
the Office properly denied his claim for a schedule award.
CONCLUSION
The Board finds that appellant is not entitled to a schedule award for his left knee injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 13, 2009 is affirmed.
Issued: January 7, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE, WEST
PALM BEACH P & DC, West Palm Beach, FL,
Employer
__________________________________________

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

Docket No. 14-910
Issued: August 8, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 12, 2014 appellant filed a timely appeal from a January 31, 2014 decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he is entitled to a
schedule award for his right and left upper extremities.
FACTUAL HISTORY
On April 8, 2008 appellant, then a 64-year-old mail handler, filed an occupational disease
claim alleging that factors of employment caused bilateral shoulder pain. OWCP accepted
1

5 U.S.C. §§ 8101-8193.

calcifying tendinitis of the right shoulder and on August 13, 2008 Dr. Graham. F. Whitfield, an
orthopedic surgeon, performed surgical arthroscopy of the right shoulder with extensive
debridement of the glenohumeral joint. Appellant was placed on the periodic compensation
rolls. On January 8, 2009 OWCP accepted calcifying tendinitis of the left shoulder, and on
May 6, 2009 additionally accepted traumatic arthropathy of the left shoulder. Appellant returned
to modified duty on February 18, 2009,2 continuing until September 17, 2009, when
Dr. Whitfield’s associate, Dr. Rena Amro, Board-certified in orthopedic surgery, performed
surgical arthroscopic left rotator cuff repair with distal clavicle resection. Appellant was
returned to the periodic rolls. On October 19, 2010 Dr. Amro performed surgical arthroscopic
right rotator cuff repair with distal clavicle resection. Appellant continued under the care of
Drs. Whitfield and Amro who submitted monthly treatment notes. OWCP additionally accepted
right shoulder disorder of bursae and tendons and left shoulder contracture of shoulder joint.
On September 27, 2013 appellant filed a claim for a schedule award. In an October 7,
2013 letter, OWCP informed him of the type of evidence needed to support his claim, to include
an impairment rating in accordance with the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment3 (hereinafter A.M.A., Guides) and a
physician’s narrative opinion regarding the diagnosed conditions and degree of impairment with
a detailed description of all objective findings and subjective complaints. Appellant was allotted
30 days to submit the requested information.
Appellant returned to a modified mail handler position on October 19, 2013.
Dr. Whitfield provided treatment notes dated September 24 and October 29, 2013 in which he
described appellant’s complaints of bilateral shoulder, interscapular, neck and upper back pain.
He provided physical examination findings and diagnosed left shoulder arthralgia, with
supraspinatus, infraspinatus, and teres minor tendinitis, subscapularis tendinitis, subacromial
bursitis, and acromioclavicular joint arthralgia, status post diagnostic and surgical arthroscopic
rotator cuff repair of the left shoulder in September 2009; right shoulder arthralgia with
supraspinatus, infraspinatus, teres minor, and subscapularis tendinitis, biceps tendinitis,
subacromial bursitis, and acromioclavicular joint arthralgia, status post diagnostic and surgical
arthroscopic rotator cuff repair of the right shoulder in October 2010; cervical paraspinal muscle
spasm, with rhomboid, levator scapulae, and trapezius myalgia; bilateral carpal tunnel syndrome,
left/right wrists; and diabetes mellitus and herpes zoster/shingles. Dr. Whitfield recommended a
functional capacity evaluation that was completed by a physical therapist on December 9, 2013.
By decision dated January 31, 2014, OWCP denied appellant’s schedule award claim on
the grounds that he submitted no medical evidence to support a permanent impairment to a
scheduled member due to the accepted conditions.

2

In a July 14, 2009 decision, OWCP found that an overpayment of compensation in the amount of $2,139.48 had
been created because appellant continued to receive wage-loss compensation after his return to work.
3

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

2

LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides is to be used.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).9 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).10 The sixth edition of the A.M.A., Guides also provides that, under certain
circumstances, range of motion may be selected as an alternative approach in rating impairment.
An impairment rating that is calculated using range of motion may not be combined with a
diagnosis-based impairment and stands alone as a rating.11
ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that he has a
ratable impairment. The accepted conditions are bilateral shoulder calcifying tendinitis,
traumatic arthropathy of the left shoulder, disorder of bursae and tendons and left shoulder
contracture of shoulder joint.
By letter dated October 7, 2013, OWCP informed appellant of the type of evidence
needed to support his claim, to include a physician’s narrative opinion regarding the diagnosed
conditions and degree of impairment with an impairment rating in accordance with the sixth
edition of the A.M.A., Guides. The physician’s report was to indicate whether appellant was at
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

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

8

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

Id. at 385-419.

10

Id. at 411.

11

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

3

maximum medical improvement and was to include a detailed description of all objective
findings and subjective complaints. Appellant did not submit the requested medical evidence,
and on January 31, 2014, OWCP denied his schedule award claim on the grounds that he
submitted no medical evidence to support a permanent impairment to a scheduled member due to
the accepted conditions.
In order to determine entitlement to a schedule award, appellant’s physician must provide
a sufficiently detailed description of his condition so that the claims examiner and others
reviewing the file are able to clearly visualize the impairment with its resulting restrictions and
limitations.12 A claimant has the burden of proof to establish that he or she sustained a
permanent impairment to a scheduled member.13
The record in this case contains a number of treatment notes from Drs. Whitfield and
Amro, dated March 11, 2008 to October 29, 2013. The physicians, however, did not provide an
impairment rating, discuss whether the accepted conditions caused permanent impairment, or
state an opinion as to whether appellant was at maximum medical improvement.14 As
Drs. Whitfield and Amro did not support that the accepted conditions caused any permanent
impairment, their reports are insufficient to establish that appellant has impairment due to the
accepted conditions.15
Appellant also submitted a functional capacity evaluation dated December 9, 2013. This
was completed by a physical therapist. Lay individuals such as physician’s assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA.16 The functional
capacity evaluation is therefore of no probative value regarding appellant’s impairment.
Without probative medical opinion evidence from a physician addressing how appellant’s
impairment correlated to the A.M.A., Guides and explaining the causal relationship between
these findings and an accepted employment injury, appellant has failed to establish his claim for
a schedule award.17

12

Renee M. Straubinger, 51 ECAB 667 (2000).

13

A.L., Docket No. 08-1730 (issued March 16, 2009).

14

See D.R., 57 ECAB 720 (2006) (a schedule award is not payable unless it is determined by probative medical
evidence that the employee is at maximum medical improvement).
15

See A.L., supra note 13.

16

David P. Sawchuk, 57 ECAB 316 (2006). Section 8101(2) of FECA provides that “physician” includes
surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners
within the scope of their practice as defined by State law. See Roy L. Humphrey, 57 ECAB 238 (2005).
17

R.E., Docket No. 14-713 (issued June 26, 2014).

4

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.18
CONCLUSION
The Board finds that appellant did not establish that he has a permanent impairment due
to the accepted bilateral shoulder conditions.
ORDER
IT IS HEREBY ORDERED THAT the January 31, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 8, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

18

The Board notes that appellant requested reconsideration with OWCP simultaneous with his appeal to the
Board. OWCP and the Board may not have simultaneous jurisdiction over the same issue in the same case.
Following the docketing of an appeal with the Board, OWCP does not retain jurisdiction to render a further decision
regarding a case on appeal until after the Board relinquishes its jurisdiction. Any decision rendered by OWCP on
the same issues for which an appeal is filed is null and void. Linda D. Guerrero, 54 ECAB 556 (2003). Following
appellant’s reconsideration request with OWCP, OWCP issued a June 25, 2014 schedule award decision which is
void. Furthermore, the Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time
of the January 31, 2014 decision. J.T., 59 ECAB 293 (2008). It therefore cannot review the evidence submitted by
appellant with his March 2014 reconsideration request to OWCP, a February 12, 2014 report in which Dr. Whitfield
provided an impairment evaluation for appellant’s left upper extremity only.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.G., Appellant
and
U.S. POSTAL SERVICE, CRAGIN POST
OFFICE, Chicago, IL, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0273
Issued: December 14, 2020

Case Submitted on the Record

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

JURISDICTION
On November 18, 2019 appellant filed a timely appeal from an October 10, 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.

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.

ISSUE
The issue is whether appellant has met her burden of proof to establish right carpal tunnel
syndrome causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On July 17, 2018 appellant, then a 44-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed carpal tunnel syndrome due to factors of her federal
employment. She explained that repetitive movement of her right hand when casing and delivering
mail caused extreme pain, which eventually required surgery. Appellant noted that she first
became aware of her condition on June 8, 2016 and realized that it was caused or aggravated by
factors of her federal employment on June 1, 2016. She stopped work on July 20, 2018.
In an undated statement, appellant related that on June 1, 2016 she made an appointment
with a hand specialist because of pain, numbness, and stiffness in her right hand. She noted that
on June 8, 2016 Dr. Mark Gonzalez, an orthopedic surgeon, examined her and diagnosed right
carpal tunnel syndrome. Appellant explained that, although Dr. Gonzalez immediately
recommended surgery, she was initially scared and wanted to postpone surgery. She noted that
she was now having extreme pain in her right hand during work hours and at home. Appellant
indicated that she was scheduled to have surgery on August 13, 2018.
In a June 27, 2018 attending physician’s report (Form CA-20), Dr. Gonzalez noted that
appellant presented complaining of pain, numbness, and tingling with her right hand, which was
aggravated by her job duties including grasping and carrying. He indicated that appellant had no
history of preexisting injury or disease with her right hand. Dr. Gonzalez diagnosed right carpal
tunnel syndrome. He checked a box marked “Yes” indicating that her condition was caused or
aggravated by an employment activity. Dr. Gonzalez opined that grasping, carrying, and other
“fine motor activities required for work” aggravated appellant’s condition.
In a July 27, 2018 development letter, OWCP informed appellant of the deficiencies in her
claim. It advised her of the type of factual and medical evidence necessary to establish her claim
and provided a factual questionnaire for completion. OWCP afforded her 30 days to submit the
necessary evidence.3 No further evidence was received.
By decision dated October 4, 2018, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence submitted was insufficient to establish causal relationship
between her carpal tunnel syndrome and the accepted factors of her federal employment.
In a June 8, 2016 medical report, Dr. Gonzalez noted that appellant presented with bilateral
hand pain. Appellant indicated that she had pain in her hands for some time, especially when she
tried to grasp objects. Dr. Gonzalez observed some tenderness to cold and noted that appellant
had no previous arthritis or connective tissue disease of the hands. He noted that x-rays of the
hands revealed some arthritis throughout the interphalangeal joints with no evidence of fractures
3
On September 5, 2018 OWCP subsequently resent a copy of its July 27, 2018 development letter after appellant
indicated that she was uncertain if she had received the original copy.

2

or other malalignments or abnormalities. Dr. Gonzalez indicated that it was unclear whether she
had a rheumatologic process or connective tissue disease. He ordered additional tests including
an electromyography and nerve conduction velocity study (EMG/NCV) of the bilateral upper
extremities to evaluate for nerve compression or neuropathy.
A July 15, 2016 EMG/NCV study performed by Dr. Terry L. Nicola, Board-certified in
sports medicine, revealed right carpal tunnel syndrome in association with median sensory branch
demyelination. It also revealed no evidence for a right upper extremity brachial plexus lesion or
cervical nerve root lesion.
A May 16, 2018 EMG/NCV study performed by Dr. Amir El Shami, Board-certified in
sports medicine, revealed mild right median mononeuropathy at the wrist characterized by sensory
demyelination. It noted that this was consistent with mild right carpal tunnel syndrome.
In a September 4, 2018 medical report, Dr. Gonzalez noted that appellant returned for a
second postoperative visit after she underwent a right endoscopic carpal tunnel release on
August 13, 2018. He examined her right upper extremity and found that her incision was healing
well. Dr. Gonzalez also noted that appellant’s pain and numbness improved.
In an October 3, 2018 response to OWCP’s development questionnaire, appellant indicated
that her employment activities included casing mail, sorting mail, holding mail bundles, lifting,
pulling of a mail cart, and picking up heavy packages for six to seven days for eight or more hours
each day. She noted that she had no other activities outside of work. Appellant explained that her
pain never went away and continuously worsened from mild to unbearable. She noted that she felt
pain every time she held anything that was over two pounds and that she could not open anything
because she had no strength in her hand. Appellant indicated that she had been taking medication,
and wearing a hand brace at night.
On September 12, 2019 appellant, through counsel, requested reconsideration and
submitted an August 28, 2019 medical report entitled, “Rationalized Medical Opinion Form to
establish Causal Relationship” from Dr. Craig Forsthoefel, a Board-certified orthopedic surgeon.
Dr. Forsthoefel diagnosed right carpal tunnel syndrome and opined that repetitive activities of the
hand aggravated appellant’s symptoms, leading to a decreased functional status. He signed a
preprinted statement indicating his medical opinion was based on reasonable medical probability
that the work injury was the direct and proximate cause of the diagnosed condition.
By decision dated October 10, 2019, OWCP denied modification of its October 4, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including 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

4

Supra note 2.

3

limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the claimant.8
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.9 The opinion of the physician must be based
on a complete factual and medical background of the employee, 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 specific employment factors identified by the employee.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish right carpal
tunnel syndrome causally related to the accepted factors of her federal employment.
In support of her claim, appellant submitted medical reports from Dr. Gonzalez. In reports
dated June 8, 2016 and September 4, 2018, Dr. Gonzalez noted her history of injury, physical
examination findings, and diagnosed right carpal tunnel syndrome. He did not, however, offer an
opinion on the issue of causal relationship between the accepted factors of employment and the
diagnosed condition. The Board has consistently held that medical evidence that does not offer an

5

J.W., Docket No. 18-0678 (issued March 3, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59
ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
6
J.S., Docket No.18-0657 (issued February 26, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

L.J., Docket No. 19-1343 (issued February 26, 2020); R.R., Docket No. 18-0914 (issued February 24, 2020);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

S.C., Docket No. 18-1242 (issued March 13, 2019); R.H., 59 ECAB 382 (2008).

9

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB
238 (1996).
10
R.G., Docket No. 18-0792 (issued March 11, 2020); D.J., Docket No. 19-1301 (issued January 29, 2020); I.J.,
59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

opinion regarding the cause of an employee’s condition is of no probative value on the issue of
causal relationship.11 These reports, therefore, are insufficient to establish appellant’s claim.
In a June 27, 2018 Form CA-20, Dr. Gonzalez diagnosed right carpal tunnel syndrome and
checked a box marked “Yes” indicating his belief that appellant’s condition was caused or
aggravated by her employment activities. He further explained that her condition was aggravated
by grasping, carrying, and other “fine motor activities required for work.” Dr. Gonzalez did not,
however, specifically explain details of the employment activities believed to have caused or
aggravated the diagnosed condition. Without explaining how the fine motor activities involved in
appellant’s employment duties caused or contributed to her carpal tunnel syndrome,
Dr. Gonzalez’s opinion is of limited probative value.12 As such, the Board finds that
Dr. Gonzalez’s Form CA 20 did not provide adequate medical rationale to explain the basis of his
conclusion on causal relationship.13
In an August 28, 2019 medical report, Dr. Forsthoefel, concluded that repetitive activities
of the hand aggravated appellant’s symptoms, leading to a decreased functional status. He then
signed a preprinted statement indicating that it was his medical opinion based on reasonable
medical probability that the work injury was the direct and proximate cause of appellant’s carpal
tunnel syndrome. While he supported causal relationship, Dr. Forsthoefel did not identify specific
work duties which allegedly caused or contributed to appellant’s right carpal tunnel syndrome nor
did he offer medical rationale explaining how or why he opined that appellant’s work activities
could result in the diagnosed condition. The Board has frequently explained that conclusory
medical opinions are entitled to little probative weight and are insufficient to support a causal
relationship claim.14 Thus, Dr. Forsthoefel’s report is also insufficient to establish causal
relationship.
Appellant also submitted the results of July 15, 2016 and May 16, 2018 EMG/NCV studies.
The Board has consistently held that diagnostic test studies, standing alone, are of limited probative
value on the issue of causal relationship as they do not address whether the accepted factors of her
federal employment caused appellant’s medical condition.15
On appeal counsel asserts that OWCP failed to apply the proper standard of causation and
failed to give due deference to the findings of the attending physician. As explained above,
however, the Board finds that the medical evidence of record is insufficient to establish that

11

T.W., Docket No. 19-1431 (issued April 27, 2020); L.B., Docket No. 18-0533 (issued August 27, 2018); D.K.,
Docket No. 17-1549 (issued July 6, 2018).
12

See A.P., Docket No. 19-0224 (issued July 11, 2019).

13

D.B., Docket No. 17-1845 (issued February 16, 2018); T.H., Docket No. 14-0326 (issued February 5, 2015).

14

R.R., Docket No. 19-0714 (issued August 8, 2019); M.E., Docket No. 18-0330 (issued September 14, 2018);
A.D., 58 ECAB 149 (2006).
15
See R.B., Docket No. 18-0048 (issued June 24, 2019); S.O., Docket No. 19-0307 (issued June 18, 2019); J.S.,
Docket No. 17-1039 (issued October 6, 2017).

5

appellant sustained right carpal tunnel syndrome causally related to the accepted factors of her
federal employment.16 She has, therefore, not met her burden of proof to establish a claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish right carpal
tunnel syndrome causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the October 10, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 14, 2020
Washington, DC

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

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

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

16

See N.C., Docket No. 19-0299 (issued June 24, 2019).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Denver, CO, Employer
__________________________________________

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

Docket No. 14-1432
Issued: October 7, 2014

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 June 4, 2014 appellant, through his attorney, filed a timely appeal from an April 14,
2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying his
request for a prerecoupment hearing. Because more than one year has elapsed from the most
recent merit decision dated September 13, 20001 to the filing of the appeal on June 4, 2014 and
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for a prerecoupment
hearing as untimely.
1

For final adverse decisions of OWCP issued before November 19, 2008, a claimant had up to one year to file a
Board appeal. See 20 C.F.R. § 501.3(d)(2) (2008).
2

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On November 9, 1988 appellant, then a 52-year-old food service worker, filed a traumatic
injury claim alleging that he slipped and fell hitting his chest on the edge of a table top railing on
November 8, 1988. He stated that he sustained bruised ribs as a result of this incident. OWCP
accepted appellant’s claim for brachial plexus lesions, synovitis and tenosynovitis on October 26,
1989 and left ulnar irritation on January 11, 1990. It reduced his compensation benefits based on
his capacity to earn wages as a self-service gas station attendant on February 27, 1991. By
decision dated January 27, 1992, OWCP granted appellant a schedule award for five percent
permanent impairment of his left arm.
In a letter dated March 12, 1999, OWCP informed appellant of the preliminary
determination that he had received an overpayment of compensation in the amount of $6,121.42
due to the death of his dependent. By decision dated September 13, 2000, it waived the recovery
of this overpayment.
OWCP made a preliminary finding of overpayment on December 5, 2013 in the amount
of $8,974.23 because appellant’s compensation payments had not been offset or reduced for a
portion of his social security retirement benefits earned while in federal service. It found that he
was not at fault in the creation of the overpayment. OWCP provided appellant with his appeal
rights noting that he had 30 days to request a prerecoupment hearing before a representative of
the Branch of Hearings and Review, that he could request a telephone conference or that he
could request a final decision from the district office. It also provided him with an appeals form
to complete and submit.
Appellant requested a prerecoupment hearing on a form received by the Branch of
Hearings and Review on January 27, 2014. The envelope indicated that the postmark was
January 22, 2014. Appellant also submitted an overpayment recovery questionnaire and
additional financial documents. He provided arguments in a narrative statement dated
January 20, 2014.
By decision dated April 14, 2014, the Branch of Hearings and Review denied appellant’s
request for a prerecoupment hearing as untimely.
LEGAL PRECEDENT
OWCP regulations on the recovery of overpayments provide that, before collecting the
overpayment, it must provide the claimant with written notice of the fact and amount of the
overpayment, the finding of fault, the right to submit evidence challenging the fact, amount or
finding of fault and the right to request waiver of the overpayment.3 The regulations further
provide that a claimant may request a prerecoupment hearing with respect to an overpayment.4
Failure to request the prerecoupment hearing within 30 days shall constitute a waiver of the right

3

20 C.F.R. § 10.431; see also J.J., Docket No. 13-1905 (issued April 8, 2014); A.G., 58 ECAB 625 (2007).

4

20 C.F.R. § 10.432.

2

to a hearing.5 The only right to a review of a final overpayment decision is to the Board.6 The
hearing provisions of 5 U.S.C. § 8124(b) do not apply to a final overpayment decision.7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for a prerecoupment
hearing as untimely. OWCP notified him of its preliminary determination that he received an
overpayment of compensation in a letter dated December 5, 2013. It informed appellant that he
could request a telephone conference, a prerecoupment hearing or a final decision based on the
written evidence within 30 days of the date of the letter. OWCP’s implementing regulations are
specific as to the 30-day time limitation in which to request a prerecoupment hearing.
Appellant’s request for a prerecoupment hearing was postmarked January 22, 2014 more than 30
days after OWCP’s notification of overpayment dated December 5, 2013. As provided in
OWCP regulations, his hearing request was therefore untimely and he waived his right to a
prerecoupment hearing.8
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a prerecoupment
hearing as untimely.

5

Id., J.J., supra note 2; L.C., 59 ECAB 569 (2008).

6

20 C.F.R. § 10.440(b).

7

Id.; J.J., supra note 2.

8

J.J., supra note 2.

3

ORDER
IT IS HEREBY ORDERED THAT the April 14, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 7, 2014
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, CAPITAL METRO
OPERATIONS, Gaithersburg, MD, Employer
__________________________________________

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Appearances:
Stephen H. Chirumbole, Esq., for the appellant
No appearance, for the Director

Docket No. 11-431
Issued: October 13, 2011

Oral Argument September 6, 2011

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

JURISDICTION
On December 14, 2010 appellant’s counsel timely appealed the November 16, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which affirmed his
previous schedule award. Pursuant to the Federal Employees’ Compensation Act (FECA)1 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 greater than seven percent impairment of both the left
and right lower extremities.
FACTUAL HISTORY
Appellant, then a 62-year-old retired information systems specialist, has an accepted
occupational disease claim for bilateral degenerative arthritis of the knees, which arose on or

1

5 U.S.C. §§ 8101-8193.

about October 7, 2004.2 He also had meniscal tears in both knees, which were surgically
repaired on August 5 and December 2, 2005. Additionally, appellant claimed to have sustained
an employment-related herniated disc (L3-4). OWCP has not accepted herniated lumbar disc,
bilateral meniscal tears or the associated arthroscopic surgeries. The January 3, 2008 acceptance
of the claim did not specifically address any other diagnosed conditions, but merely noted
appellant’s claim had been accepted for bilateral degenerative arthritis of the knees.3 On
April 17, 2009 OWCP amended the statement of accepted facts (SOAF) to reflect that, as of
January 3, 2008, appellant’s occupational disease claim had been accepted for bilateral
degenerative arthritis of the knees.4
On March 30, 2010 OWCP granted a schedule award for seven percent impairment of
both the left and right lower extremities.5 Appellant’s physician, Dr. Robert W. Macht, found 16
percent impairment bilaterally under the American Medical Association, Guides to the
Evaluation of Permanent Impairment (6th ed. 2008).6 His December 7, 2009 rating was based on
a combination of impairments for primary knee joint arthritis (7 percent) and meniscal injury (10
percent).7 In a report dated March 18, 2010, the district medical adviser (DMA) explained that
the sixth edition of the A.M.A., Guides provided that in most cases only one diagnosis in a
region would be appropriate.8 Thus, it was inappropriate to combine impairments for both
arthritis and meniscal injury. The DMA found that the appropriate rating under the A.M.A.,
Guides would be the 10 percent rating for partial medial and lateral meniscectomies. However,
because OWCP had not accepted meniscal tears, the DMA recommended an award of seven
percent for each lower extremity due to arthritis.9 It based the March 30, 2010 schedule award
on the DMA’s recommendation.
By decision dated November 16, 2010, the Branch of Hearings and Review affirmed the
March 30, 2010 schedule award.
2

Appellant retired effective March 21, 2006.

3

OWCP accepted appellant’s claim following referral to Dr. Hamid R. Quraishi, a Board-certified orthopedic
surgeon and impartial medical examiner. In an October 18, 2007 report, Dr. Quraishi diagnosed status post bilateral
arthroscopic surgeries with early degenerative arthritis of the left knee. He also diagnosed chronic lumbosacral
strain, with bulging disc at L3. Dr. Quraishi indicated that appellant’s lower back problem was degenerative in
nature and not employment related. As to appellant’s knees, he indicated that the condition was work related.
Dr. Quraishi also indicated that the prior “bilateral arthritic” surgeries were work related and justified.
4

The previous SOAF, dated October 4, 2007, was prepared in advance of the case being referred to Dr. Quraishi
to resolve a conflict in medical opinion.
5

The award covered a period of 40.32 weeks from December 2, 2006 through September 10, 2007.

6

Dr. Macht is a general surgeon, but he is not Board-certified in surgery.

7

Table 16-3, Knee Regional Grid (LEI), A.M.A., Guides 509, 511.

8

Section 16-2, Diagnosis-Based Impairment, A.M.A., Guides 497.

9

While Dr. Macht found appellant had reached maximum medical improvement (MMI) as of the date of his
November 30, 2009 examination, the DMA indicated that MMI had been attained one year after appellant’s
December 2, 2005 right knee arthroscopy.

2

LEGAL PRECEDENT
Section 8107 FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.10 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.11 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).12
ANALYSIS
OWCP accepted appellant’s claim for bilateral degenerative arthritis of the knees. At
oral argument, appellant’s counsel took exception to the April 17, 2009 SOAF because it did not
identify bilateral meniscal tears and the August 5 and December 2, 2005 arthroscopic surgeries
as employment related. He quoted Dr. Quraishi’s October 18, 2007 report wherein he stated that
appellant’s “problems with both knees [were] work related ... and the surgery done by
Dr. [Phillip B.] Bovell [was] related to that and [was] justified.”13 Because the SOAF omitted
certain information, counsel argued that it was flawed. He further argued that the DMA’s
March 18, 2010 report, which was based in part on the SOAF, was similarly flawed.
Contrary to counsel’s argument, the SOAF is not flawed. The April 17, 2009 addendum
accurately reflected the only condition OWCP accepted as employment related -- bilateral
degenerative arthritis of the knees. Counsel is also mistaken to the extent he believes
Dr. Quraishi’s October 18, 2007 findings should have been included in the SOAF. A SOAF may
include prior medical history, concurrent medical conditions and medical treatment received,
including initial medical treatment, surgeries, diagnostic testing and other relevant medical
procedures, but OWCP should not include a recitation of medical opinions or findings.14
Specific medical opinions, as distinguished from the medical history of the claim, should not be
included in the SOAF.15
Although counsel focused on the so-called “flawed” SOAF, his real issue appeared to be
OWCP’s acceptance of only bilateral degenerative arthritis of the knees. Since the January 3,
10

For a total loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C. § 8107(c)(2).

11

20 C.F.R. § 10.404 (2010).

12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); see also Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6a
(January 2010).
13

Dr. Bovell is an orthopedic surgeon who performed both the August 5 and December 2, 2005 arthroscopic
surgeries.
14

FECA PM, Part 2 -- Claims, Statements of Accepted Facts, 2.809.6 (September 2009).

15

Id. at 2.809.7c.

3

2008 acceptance of the claim, neither appellant nor his representatives have formally petitioned
OWCP to expand the claim beyond the accepted condition of bilateral degenerative arthritis of
the knees. OWCP has not provided any definitive findings as to why appellant’s bilateral
meniscal tears and subsequent surgeries have not been accepted. Absent such findings, the issue
is not currently before the Board. The Board further notes that counsel’s reliance on
Dr. Quraishi’s October 18, 2007 opinion to establish an employment-related meniscal injury is
somewhat misplaced. Nowhere in Dr. Quraishi’s report does he reference an injury to either the
left or right meniscus. He also did not properly identify the type of surgery appellant underwent
on August 5 and December 2, 2005.
Rather than noting partial medial and lateral
meniscectomies, Dr. Quraishi described the procedures as “bilateral arthritic” surgeries. This
rather vague description is most likely due to the fact that appellant did not submit copies of both
operative reports until approximately two years after his October 2007 examination.
Dr. Quraishi also referenced magnetic resonance imaging (MRI) scans of both knees dated
April 15, 2005, but he did not discuss the results. The scans showed bilateral meniscal tears,
however, they too were not submitted into the record until December 2009.
The only issue presently before the Board is whether OWCP properly found that
appellant had seven percent impairment of each lower extremity. Dr. Macht and the DMA both
agreed that appellant had at least seven percent impairment bilaterally due to arthritis. That
rating is consistent with the A.M.A., Guides (6th ed. 2008).16 The DMA also correctly noted that
it was inappropriate to combine diagnosis-based impairments for both arthritis and meniscal
injury.17 Because the claim had not been accepted for bilateral meniscal injury, OWCP properly
limited the award to the arthritis-related bilateral knee impairment.18
The Board finds that the DMA’s March 18, 2010 impairment rating conforms to the
A.M.A., Guides (6th ed. 2008), and thus, represents the weight of the medical evidence regarding
the extent of appellant’s left and right lower extremity impairment. Appellant has not submitted
any credible medical evidence indicating he has a greater impairment than previously awarded.
CONCLUSION
Appellant has not established that he has greater than seven percent impairment of the left
and right lower extremities.

16

See Table 16-3, Knee Regional Grid (LEI), A.M.A., Guides 511.

17

Section 16-2, Diagnosis-Based Impairment, A.M.A., Guides 497.

18

Any previous impairment of the member under consideration is generally included in calculating the percentage
of loss. R.D., 59 ECAB 127, 130 (2007); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards &
Permanent Disability Claims, Chapter 2.808.7(2) (January 2010). The current record does not definitively establish
that appellant’s meniscal tears preceded the arthritis as both conditions were confirmed by an April 15, 2005 MRI
scan.

4

ORDER
IT IS HEREBY ORDERED THAT the November 16, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 13, 2011
Washington, DC

Alec J. Koromilas, 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
__________________________________________
A.J., Appellant
and
U.S. POSTAL SERVICE, POSTAL SERVICE
HEADQUARTERS, Washington, DC, Employer
__________________________________________

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

Docket No. 13-2000
Issued: March 6, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 29, 2013 appellant filed a timely appeal from a March 13, 2013 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 a consequential lumbar condition as a
result of her August 9, 2001 employment injury.
FACTUAL HISTORY
The case was before the Board on a prior appeal with respect to a schedule award.2 As
the Board noted, appellant had fallen while in the performance of duty on August 9, 2001.
1

5 U.S.C. § 8101 et seq.

2

Docket No. 05-1889 (issued June 21, 2006).

OWCP accepted the claim for left foot, left ankle and right knee sprains, as well as right patella
tendinitis. By decision dated January 5, 2004, it issued a schedule award for a five percent right
leg impairment and by decision dated February 8, 2005 issued a schedule award for an additional
five percent to the right leg. In a June 21, 2006 decision, the Board found appellant did not have
more than a 10 percent right leg permanent impairment. The history of the case as reported in
the Board’s prior decision is incorporated herein by reference.
In a report dated February 24, 2009, Dr. Daniel Ignacio, a Board-certified physiatrist,
provided a history and results on examination. He diagnosed status postsurgery to the right knee,
chronic right patellar tendinitis, chronic wasting along the right side secondary to the knee injury,
chronic right peroneal neuropathy, chronic regional pain syndrome of the right lower extremities
(right patellofemoral dystrophy) and lumbar disc syndrome. As to the lumbar condition,
Dr. Ignacio opined that appellant had developed a lumbar disc injury as a consequence of the
right knee injury with abnormal gait and chronic right knee pain. By report dated April 14, 2009,
he again provided a history and results on examination. Dr. Ignacio opined that appellant’s
lumbar disc syndrome was consequential to the right knee injury, stating the right knee “has been
weak, keeps on giving way and the abnormal gait.”
OWCP referred appellant for a second opinion evaluation. In a report dated
December 22, 2009, Dr. Kevin Hanley, a Board-certified orthopedic surgeon, provided a history
and results on examination.3 He diagnosed patella tendinitis, surgically treated and chronic
degenerative disc disease of the lumbar spine. Dr. Hanley opined, “As far as the back is
concerned, there is absolutely no evidence whatsoever that the knee condition has in anyway led
to the development of degenerative disease in the back.” He further stated that “the development
of back pain spontaneously during the course of time is not in anyway typically associated with
the minor limp such as demonstrated by [appellant]. [Appellant] suffers from a degenerative
condition in the lumbar spine and therefore it is not my belief that it is related to any work
exposure or her knee injury specifically.”
On June 25, 2010 appellant submitted a May 10, 2010 report from Dr. Peter Trent, a
Board-certified orthopedic surgeon, who provided a history and results on examination.
Dr. Trent stated that appellant had sustained an injury to her lumbar spine as a result of the work
accident. He reported that she had a preexisting scoliosis that had been asymptomatic, but was
aggravated by the employment injury.
OWCP determined that a conflict in the medical evidence existed, and Dr. Sankara
Kothakota, a Board-certified orthopedic surgeon, was selected as a referee physician. In a report
dated September 13, 2010, Dr. Kothakota provided a history and results on examination. He
stated, “I agree with Dr. Hanley’s assessment that [appellant’s] back pathology is not
consequential to the right knee injuries. Base[d] on the reports I have seen, the back condition
did not arise until several years after the original injuries. As a result, I strongly believe it is
related to her age and not related to the work[-]related injury.” He also stated that he did not
believe there was any peroneal nerve entrapment based on the evidence and clinical examination.
3

The second opinion referral was to Dr. Robert Draper. Dr. Hanley is an associate of Dr. Draper and indicated
that Dr. Draper had a scheduling conflict.

2

Dr. Kothakota concluded that the lumbar disc condition was not consequential to the work
injury.
In a letter dated September 8, 2011, OWCP requested that Dr. Kothakota provide a
supplemental report. It referred to Dr. Ignacio’s April 14, 2009 report and requested that
Dr. Kothakota provide medical rationale as to whether there was causal relationship between a
lumbar disc syndrome and the accepted work injuries.
In a report dated August 12, 2011, Dr. Kothakota indicated that he had reviewed the
April 14, 2009 report from Dr. Ignacio. He stated that the findings of Dr. Ignacio:
“[D]o not match the physical exam[ination] I have done in my office. [Appellant]
has no peripheral neuropathy. There is no peroneal neuropathy. [Appellant] has
no chronic regional pain syndrome. She has no atrophy. I have measured
[appellant’s] quadriceps both right and left, they are equal. As a result, she has no
wasting of the quadriceps muscle. The original work-related injury and
[appellant’s] back symptoms did not start for several years after the injury to the
knee joint and as a result, they were basically age related and no correlation [to]
the work-related injury. Basically, work-related injury and back symptoms start
about same time or soon after, not several years later.”
Dr. Kothakota stated that he agreed with Dr. Hanley and disagreed with Dr. Ignacio on the issue.
By decision dated March 27, 2012, OWCP determined that appellant had not established
a lumbar condition as a consequential injury.4
On February 25, 2013 appellant requested reconsideration. She submitted reports from
Dr. Ignacio from February 10, 2012 to January 16, 2013. In the January 16, 2013 report,
Dr. Ignacio reiterated that appellant had an abnormal gait and a lumbar condition was a
consequential injury. In a report dated May 24, 2012, Dr. Mark Klein, a Board-certified
neurosurgeon, provided a history and results on examination. He indicated that a lumbar
magnetic resonance imaging (MRI) scan dated January 18, 2012 showed degenerative disc
disease, facet arthropathy with some foraminal stenosis and levoscoliosis. Dr. Klein stated that
appellant’s abnormal gait was contributing to her lumbar symptomology. Appellant also
resubmitted the May 10, 2010 report from Dr. Trent and a June 18, 2012 report from Dr. Trent
with results on examination.
By decision dated March 13, 2013, OWCP reviewed the case on its merits and denied
modification. It found that the weight of the evidence was represented by the referee physician.

4

The record indicated that OWCP initially issued the decision with a date of February 24, 2011, although the
actual date of the decision appeared to be February 24, 2012. The decision was reissued with a March 27, 2012
date, stating that it superseded a February 24, 2011 decision.

3

LEGAL PRECEDENT
With respect to consequential injuries, it is an accepted principle of workers’
compensation law that, when the primary injury is shown to have arisen out of and in the course
of employment, every natural consequence that flows from the injury is deemed to arise out of
the employment, unless it is the result of an independent intervening cause which is attributable
to the employee’s own intentional conduct.5 The basic rule is that a subsequent injury, whether
an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct
and natural result of a compensable primary injury.6 A claimant bears the burden of proof to
establish a consequential injury.7
FECA 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.8 The implementing regulations state that if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third
physician to make an examination. This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.9
It is well established that, when a case is referred to a referee specialist for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a
proper factual and medical background, must be given special weight.10 Rationalized medical
evidence is an opinion of reasonable medical certainty that is supported by medical rationale
explaining the basis for the opinion.11
ANALYSIS
In the present case, the record established a conflict in the medical evidence with respect
to a consequential back condition. Dr. Ignacio, as well as Dr. Trent, provided opinions
supporting a lumbar injury as a consequence of the August 9, 2001 employment injury. The

5

Albert F. Ranieri, 55 ECAB 598 (2004).

6

See A. Larson, The Law of Workers’ Compensation § 10.01 (November 2000).

7

See J.J., Docket No. 09-27 (issued February 10, 2009).

8

5 U.S.C. § 8123.

9

20 C.F.R. § 10.321.

10

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

11

Id.

4

second opinion physician, Dr. Hanley, opined that there was no relationship between a back
condition and the employment injury.12
To resolve the conflict, appellant was referred to Dr. Kothakota for a referee examination.
In reports dated September 13, 2010 and August 12, 2011, Dr. Kothakota provided an
unequivocal opinion that the lumbar condition was not a consequence of the August 9, 2001
employment injury. He had a complete background and referred to the medical history, physical
examination findings, the nature of the lumbar condition and the lack of a temporal relationship
with the employment injury. Dr. Kothakota explained that he felt the lumbar condition was age
related and not a consequence of the work injury.
As noted above, a rationalized opinion from a referee physician on the issue presented is
entitled to special weight. The Board finds that Dr. Kothakota provided a rationalized medical
opinion and his opinion represents the weight of the medical evidence. The additional reports
from Dr. Ignacio through January 16, 2013 reiterating his opinion are not sufficient to overcome
the weight of the referee opinion.13 The May 24, 2012 report from Dr. Klein refers briefly to an
abnormal gait contributing to lumbar symptomology, without providing additional explanation or
medical rationale on the issue.
The Board accordingly finds that, based on the weight of the medical evidence of record,
OWCP properly found appellant had not established a lumbar injury as a consequence of her
August 9, 2001 employment injury. The Board notes that on appeal, appellant submitted a
July 31, 2013 report from Dr. Ignacio. Pursuant to 20 C.F.R. § 501.2(c), the Board can review
only evidence that was before OWCP at the time of the final decision on appeal.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a consequential lumbar condition as a
result of her August 9, 2001 employment injury.

12

The Board notes that Dr. Hanley was an associate of the physician selected as a second opinion physician. An
associate may not perform a referee examination, because referees are selected on a strict rotational basis and the
physician selected must perform the examination. Saundra B. Williams, 53 ECAB 334, 335 (2001). Second opinion
physicians are selected based on a flexible method using a medical referral group that is not based on a strict rotation
system. Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.3 (July 2011).
13

Additional reports from a physician on one side of the conflict that is properly resolved by a referee physician
are generally insufficient to overcome the weight accorded the referee’s report or create a new conflict. See
Harrison Combs, Jr., 45 ECAB 716 (1994); Dorothy Sidwell, 41 ECAB 857 (1990).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 13, 2013 is affirmed.
Issued: March 6, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.B., Appellant
and
TENNESSEE VALLEY AUTHORITY,
CUMBERLAND FOSSIL PLANT,
Cumberland City, TN, Employer
__________________________________________

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

Docket No. 11-2113
Issued: April 17, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 21, 2011 appellant, through his attorney, filed a timely appeal of the
July 21, 2011 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his request for reconsideration. Because more than one year elapsed between the most
recent merit decision of June 25, 2010 to the filing of this appeal, the Board lacks jurisdiction to
review the merits of the case pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant’s attorney contends that OWCP’s July 21, 2011 decision is contrary
to fact and law.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that appellant sustained noise-induced hearing loss while working as a
boilermaker welder at the employing establishment. In a decision dated June 25, 2010, it
rescinded the acceptance of the claim.2 OWCP relied on the January 12, 2010 supplemental
medical opinion of Dr. Jeffrey B. Marvel, a Board-certified otolaryngologist and OWCP referral
physician, who reviewed a revised statement of facts and found that the hearing loss was not
causally related to appellant’s federal employment.
By letter dated June 22, 2011, appellant, through his attorney, requested reconsideration.
In a July 21, 2011 decision, OWCP denied appellant’s request for reconsideration,
finding that it neither raised substantive legal questions nor included new and relevant evidence
warranting a merit review of his claim.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128 of FECA,3
OWCP’s regulations provide that a claimant must: (1) show that OWCP erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by OWCP; or (3) constitute relevant and pertinent new evidence not previously
considered by OWCP.4 To be entitled to a merit review of OWCP’s decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.5 When a claimant fails to meet one of the above standards, OWCP
will deny the application for reconsideration without reopening the case for review of the merits.
ANALYSIS
OWCP denied appellant’s request for further reconsideration on the merits of his claim
on the grounds that he failed to submit any evidence or argument to warrant a merit review. The
record reflects that he submitted no evidence or argument to OWCP subsequent to the June 25,
2010 merit decision on his claim.
Although timely filed, appellant’s June 22, 2011 application for reconsideration did not
set forth any argument or contain evidence that either: (1) showed that OWCP erroneously
applied or interpreted a specific point of law; (2) advanced a relevant legal argument not
previously considered by OWCP; or (3) constituted relevant and pertinent new evidence not

2

Also, on June 25, 2010, OWCP advised appellant that it could not consider his claim for a schedule award based
on its rescission of the acceptance of his claim.
3

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at anytime on her own motion or on application. Id. at § 8128(a).
4

20 C.F.R. § 10.606(b)(1)-(2).

5

Id. at § 10.607(a).

2

previously considered by OWCP.6 Because he failed to meet at least one of these standards,
OWCP properly denied the application for reconsideration without reopening the case for a
review on the merits.7
Counsel argued on appeal that the July 21, 2011 decision was contrary to fact and law.
As noted, appellant did not offer a valid legal contention or pertinent evidence not previously
considered by OWCP. The Board finds, therefore, that OWCP properly denied the request for
reconsideration.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the July 21, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 17, 2012
Washington, DC

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

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

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

6

Id. at § 10.606.

7

Id. at § 10.608; M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one
of the three requirements enumerated under section 10.606(b)(2), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits).

3