United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Los Angeles, CA, Employer
__________________________________________

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

Docket No. 16-0514
Issued: May 24, 2016

Case Submitted on the Record

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

JURISDICTION
On January 27, 2016 appellant filed a timely appeal from a January 5, 2016 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 the case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a right ankle
injury causally related to an April 26, 2015 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence with his request for appeal. The Board’s
jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. Therefore,
the Board is precluded from considering the new evidence for the first time on appeal pursuant to 20 C.F.R.
§ 501.2(c)(1).

FACTUAL HISTORY
On June 2, 2015 appellant, then a 53-year-old animal caretaker, filed a traumatic injury
claim (Form CA-1) alleging that on April 26, 2015 he stepped into an unmarked and unprotected
hole in a walkway area and sprained his right ankle while performing animal care duties. He
stopped work on April 28, 2015 and returned to work on May 11, 2015.
Appellant submitted an April 26, 2015 report from Dr. Michelle Beshara, a Boardcertified general surgeon, who treated appellant for a right ankle sprain and right foot sprain.
Dr. Beshara recommended ice and an ace bandage. In a work status report dated April 26, 2015,
she diagnosed right foot sprain and recommended modified duty from April 26 to May 10, 2015.
Appellant also submitted an April 29, 2015 report from Dr. John A. Villanueva, a Board-certified
physiatrist, who diagnosed right ankle sprain and right knee joint pain. Dr. Villanueva noted that
appellant was disabled from April 29 to May 9, 2015 and could return to work limited duty on
May 10, 2015. In a work status report dated June 9, 2015, he noted that appellant injured his
ankle on April 26, 2015. Dr. Villanueva diagnosed right ankle joint pain and right ankle sprain.
He recommended an ankle sleeve and ice and returned appellant to modified work status on
June 9, 2015.
In a June 10, 2015 accident report, appellant indicated that on April 26, 2015 he entered
the canine social housing unit and while doing visual observations on the conditions of the
research animals he stepped into a hole and sprained his right ankle. He indicated that, upon
exiting the immediate area, he tripped on an exposed sprinkler head that was covered with
mulch.
By letter dated June 16, 2015, OWCP advised appellant of the type of evidence needed to
establish his claim, particularly requesting that he submit a physician’s reasoned opinion
addressing the relationship of his claimed condition and specific employment event.
In a decision dated June 16, 2015, OWCP determined that appellant was not entitled to
continuation of pay for the period April 27 to June 10, 2015 because he did not file his claim
within 30 days of the alleged injury.
Appellant submitted an attending physician’s supplemental report (Form CA-20a) from
Dr. Taha M. Ahmad, a Board-certified physiatrist, dated June 9, 2015, who noted that appellant
was released to modified duty. In a June 23, 2015 attending physician’s supplemental report,
Dr. Ahmad released appellant to full duty. In reports dated June 9 and 23, 2015, Dr. Villanueva
treated appellant in follow-up for right ankle and right knee pain from a work-related injury.
Appellant reported that the swelling and erythema decreased. However, he continued to
experience pain in the lateral malleolus and lateral inferior tibia area. Appellant noted his right
knee condition resolved. Dr. Villanueva noted findings on examination of swelling of the lateral
ankle, ecchymosis of the lateral ankle, mild tenderness in the right lateral ankle in the anterior
talofibular ligament and calcaneofibular ligament, limited range of motion due to pain, intact
motor examination, and intact sensation examination. He diagnosed right lateral ankle sprain
slowly improving and right ankle joint pain. Dr. Villanueva returned appellant to work with
restrictions and recommended an ankle sleeve and ice.

2

In a decision dated July 16, 2015, OWCP denied appellant’s claim because the evidence
of record was insufficient to establish an injury or medical condition causally related to the
accepted work events.
On July 27, 2015 appellant requested a review of the written record by an OWCP hearing
representative. He noted that he no longer worked for the employing establishment and was
employed by the Department of Agriculture. Appellant indicated that he had proof of a workrelated injury in medical records and photographs.
The employing establishment noted that appellant separated from employment on
July 3, 2015.
In a decision dated January 5, 2016, the OWCP hearing representative affirmed the
July 16, 2015 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that
any disability and/or specific condition for which compensation is claimed is causally related to
the employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.4
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.5
Moreover, an injury does not have to be confirmed by eyewitnesses. The employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his subsequent
course of action. An employee has not met his or her burden in establishing the occurrence of an
injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim. Circumstances such as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury, and failure to

3

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

4

T.H., 59 ECAB 388 (2008).

5

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

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obtain medical treatment may, if otherwise unexplained, cast doubt on an employee’s statement
in determining whether a prima facie case has been established.6
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
It is undisputed that on April 26, 2015 appellant stepped into an unmarked and
unprotected hole in a walkway area while performing animal care duties. It is also undisputed
that he was diagnosed with a right ankle sprain. However, the Board finds that appellant has not
submitted sufficient medical evidence to establish that stepping into an unmarked and
unprotected hole in a walkway area caused a right ankle injury.
Appellant submitted an April 29, 2015 report from Dr. Villanueva who diagnosed right
ankle sprain and right knee joint pain. Dr. Villanueva noted that appellant was disabled from
April 29 to May 9, 2015 and could return to limited duty on May 10, 2015. In reports dated
June 9 and 23, 2015, he treated appellant in follow-up for right ankle and right knee pain from a
work-related injury. Dr. Villanueva noted positive findings on examination and diagnosed right
lateral ankle sprain improving and right ankle joint pain. Similarly, in an industrial work status
report dated June 9, 2015, he noted that appellant sustained an ankle injury on April 26, 2015.
Dr. Villanueva diagnosed right ankle joint sprain and released appellant to modified duty.
However, he did not provide a history of injury8 or specifically explain how the April 26, 2015
work incident caused or aggravated a diagnosed medical condition.9 Therefore these reports are
insufficient to meet appellant’s burden of proof.
In an April 26, 2015 report, Dr. Beshara treated appellant for a right ankle sprain and
right foot sprain. She recommended conservative treatment including ice and an ace bandage.
In a work status report dated April 26, 2015, Dr. Beshara diagnosed right foot sprain and
recommended modified duty. Similarly, in attending physician’s supplemental report forms
dated June 9 and 23, 2015, Dr. Ahmad released appellant to full duty. Dr. Beshara’s and
Dr. Ahmad’s reports are insufficient to establish appellant’s claim as the physicians did not

6

Betty J. Smith, 54 ECAB 174 (2002).

7

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

8

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
9

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).

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provide a history of injury10 or specifically explain how the April 26, 2015 work incident caused
or aggravated a diagnosed medical condition.
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated, or aggravated by her employment is
sufficient to establish causal relationship. Causal relationship must be established by
rationalized medical opinion evidence.11 As appellant failed to submit such evidence she has not
met her burden of proof.
On appeal appellant asserts that he did not receive timely correspondence from OWCP as
he relocated to Georgia and his mail was not forwarded. He indicates that he mailed and faxed
evidentiary findings to OWCP, however, the facsimile number was not functioning. The record
supports that OWCP’s July 16, 2015 and January 5, 2016 decisions were sent to appellant at the
address of record and does not indicate that it was returned as undeliverable. Under the
“mailbox rule,” it is presumed, absent evidence to the contrary, that a notice mailed to an
individual in the ordinary course of business was received by that individual.12
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 failed to establish an injury causally related to an
April 26, 2015 employment incident.

10

See supra note 8.

11

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

12

A.C. Clyburn, 47 ECAB 153 (1995).

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ORDER
IT IS HEREBY ORDERED THAT the January 5, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 24, 2016
Washington, DC

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

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

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

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

Appearances:
Arthur G. Girton, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-763
Issued: February 10, 2011

Case Submitted on the Record

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

JURISDICTION
On January 27, 2010 appellant, through his attorney, filed a timely appeal from a
September 21, 2009 Office of Workers’ Compensation Programs’ decision that denied
modification of its prior decisions which denied his 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 met his burden of proof in establishing that he sustained an
injury in the performance of duty on August 7, 2008.
FACTUAL HISTORY
On August 12, 2008 appellant, then a 41-year-old transitional letter carrier, filed a
traumatic injury claim alleging that, on August 7, 2008, he was delivering mail when he had
muscle spasms on the right side of his lower back as well as pain and numbness in the right leg
and back. The employing establishment controverted the claim and noted that appellant had a
previous back injury at home in June 2008. He stopped work on August 8, 2008.
In support of his claim, appellant submitted reports dated August 14 and 25, 2008 from
Dr. Edward O’Dell, a Board-certified internist and an osteopath, who related that appellant was
walking down steps and started having muscle spasms in the lower back and shooting pain down

the right leg and tingling in the toes. Dr. O’Dell noted that appellant had a history of low back
pain and spondylosis in 2006, as well as muscle spasm and diagnosed sciatica. He advised that
appellant could work but that he could not operate a car or truck, he could not bend, kneel or
squat and should be placed on sedentary duty with the ability to stand and walk as needed. In his
August 25, 2008 report, Dr. O’Dell noted that appellant was still in pain and continued the work
restrictions. He advised that appellant was not working.
On September 4, 2008 the Office advised appellant that additional evidence was needed.
It stated that he had not described an “inciting event” and that pain did not constitute a work
injury. The Office requested details of appellant’s prior history of low back pain. Appellant was
advised that he should have his attending physician submit a detailed medical report providing a
history of previous injuries along with a medical explanation as to how the reported work
incident caused the claimed injury as well as the effects of the preexisting condition.
The Office received a September 3, 2008 report from Dr. O’Dell, who diagnosed an L3-4
lumbar disc herniation. Dr. O’Dell recommended a four-hour workday, five days a week, due to
the “large disc herniation.”
In an August 11, 2008 note, Dr. Bao T. Nguyen, a Board-certified family practitioner and
osteopath, noted that an x-ray of the lumbar spine was ordered due to unknown back pain. In a
separate August 11, 2008 report, he advised that appellant could not do heavy lifting until he was
medically cleared.
In an email correspondence dated September 4, 2008, the employing establishment
explained that it was controverting appellant’s claim because in June 2008 he “injured his back
at home (off the clock). [Appellant] fell on his deck/porch at this home, when he had slipped on
a step.” The employer stated that he was off work for one week.
In a letter dated September 15, 2008, appellant alleged that on August 7, 2008, he was
delivering mail while carrying “a full mailbag which consisted of Ikea catalogs and weekly
advertisement mailings, weighing approximately 40 to 50 pounds. It was an unusually heavy
day.” Appellant did not address his prior back injury.
In a letter dated September 16, 2008, Diane Castro, a health and resource manager,
controverted the claim. She enclosed email correspondence dated September 9, 2008 from
Patricia L. Whalen, a postmaster, who confirmed that appellant had a back injury at home in
June 2008, about two months before he claimed a work-related injury on August 7, 2008.
Ms. Whalen alleged that he returned to full duty but believed that he had not fully recovered.
Dr. O’Dell continued to treat appellant and recommend restrictions. On September 30,
2008 he placed appellant off work until October 9, 2008. Appellant received physical therapy
from September 2008.
In an October 8, 2008 decision, the Office denied the claim finding that appellant did not
identify a work incident or specific work factors as causing the claimed condition.
The Office received additional physical therapy notes and copies of previously received
reports. It also received another controversial letter from the employing establishment dated
September 8, 2008.
2

On October 17, 2008 appellant requested an examination of the written record. He
provided an October 8, 2008 report from Dr. Andrew Freese, a Board-certified neurosurgeon,
who related that, on August 7, 2008, appellant was on his walking route, carrying a 50-pound
bag and, as he turned, developed muscle spasm in his back and shooting pain down the right leg.
Dr. Freese noted that appellant’s past medical history was remarkable for a pinched nerve in
2006, which responded to physical therapy, but that he was out of work for six months, and able
to return to work with no restrictions. He advised that appellant “has otherwise, no significant
medical history.” Dr. Freese reviewed magnetic resonance imaging (MRI) scans of the lumbar
spine from 2006 and determined that they revealed some degenerative changes at L1-2 and L3-4,
without a large herniation. He advised that the MRI scan from 2008 showed some progression
with evidence of further collapse at L3-4 and a disc herniation. Dr. Freese also noted that
appellant had a less noticeable abnormality at L1-2 with evidence of degenerative changes
throughout the lumbar spine.
In an October 14, 2008 report, Dr. O’Dell noted that appellant presented on August 14,
2008 for treatment of right lower back and right leg pain that was due to an August 7, 2008 work
injury. Appellant related that he was walking down steps while carrying a mailbag when he felt
a sharp stabbing pain in his right lower back. Dr. O’Dell noted that appellant described the pain
as “muscle spasms” and that the pain radiated down the right leg to the foot with the pain
worsening over the next week. He stated that appellant had a history of low back pain associated
with lumbar spondylolisthesis in 2000 and a work injury on October 26, 2006 for lumbosacral
sprain and radiculopathy.
Dr. O’Dell advised that a 2006 MRI scan revealed mild
spondylolisthesis, L5 on S1, bulging of the L2-3, L3-4 and L5-S1 discs but no evidence of
herniation. It also revealed mild degenerative arthritis. Dr. O’Dell also noted that the August 26,
2008 MRI scan revealed a new right paracentral and right lateral disc herniation at L3-4, which
was not previously present. He advised that appellant had a worsening of degenerative changes
at L3-4. Dr. O’Dell diagnosed L3-4 disc herniation with lower extremity radiculopathy, which
was complicated by degenerative changes and central spinal stenosis at L3-4.
The Office also received a September 18, 2008 report from Dr. Kenan Aksu, an
osteopath, who advised that appellant related that he was delivering mail and turned to walk off a
porch and felt a pull in his lumbar spine and right lower extremity pain. Dr. Aksu diagnosed
L3-4 disc herniation and right lower extremity radiculopathy.
In a January 8, 2009 decision, an Office hearing representative affirmed the October 8,
2008 decision.
Appellant requested reconsideration and submitted a January 28, 2009 report from
Dr. O’Dell, who advised that he had reviewed medical records pertaining to appellant’s injury on
June 3, 2008. Dr. O’Dell noted that he originally saw him on August 14, 2008 for an August 7,
2008 injury. He advised that appellant noted a history of low back pain dating back to 2006 but
that he did not reveal a June 3, 2008 low back injury. Dr. O’Dell reviewed the reports pertaining
to the June 3, 2008 injury and noted that appellant was treated very conservatively with rest and
medication. He advised that the June 10, 2008 report revealed that appellant’s pain completely
resolved as he had a completely normal examination. Dr. O’Dell indicated that appellant was
discharged pain free on June 10, 2008. He opined that while appellant “may have suffered a disc
injury on June 3, 2008 (it is impossible to say what was injured) his symptoms did completely
resolve and he was discharged without functional deficits.” Dr. O’Dell advised that he could
“comfortably state within a reasonable degree of medical certainty, that [appellant] did suffer a
3

low back injury while working on [August 7, 2008].” He opined that appellant continued to have
pain and disability due to the injury he sustained on August 7, 2008.
In the June 10, 2008 report, of which Dr. O’Dell referred, Dr. Charles J. Barr, a Boardcertified family practitioner, noted that appellant was out with a back injury since “June 2nd” and
advised that he could return to full duty on June 11, 2008.
By decision dated April 30, 2009, the Office modified its prior decision to find that the
evidence established that the claimed incident occurred as alleged on August 7, 2008 but denied
the claim finding that the medical evidence did not establish that the claimed medical condition
was related to the established incident.
On September 26, 2009 appellant requested reconsideration and submitted additional
evidence. In an April 13, 2009 report, Dr. Aksu diagnosed lumbago, displacement of lumbar
intervertebral disc without myelopathy and sciatica. He noted that appellant was involved in a
work-related accident in the summer of 2008. Dr. Aksu advised that appellant was working for
the employing establishment when he stepped off a porch and experienced a sharp pain in the
lumbar spine and right lower extremity.
In an August 14, 2009 report, Dr. Barr noted that appellant complained of work-related
back pain from an August 2008 injury. He diagnosed lumbosacral radiculopathy. In an
August 20, 2009 report, Dr. Barr noted initially seeing appellant in June 2008 after an injury that
occurred at home. He advised that at that time he diagnosed lumbar strain. Dr. Barr explained
that appellant reported that his injury improved and that he was able to return to his full work
duties without pain. He indicated that appellant had a subsequent injury in August while
working and appellant was diagnosed with “a new disc herniation of the lumbar spine.” Dr. Barr
noted that appellant continued to have disabling pain a year later. He explained that the
June 2008 injury for which he treated appellant was not related to the subsequent injury in
August. Dr. Barr noted that appellant’s rapid improvement and return-to-normal work duties
were not consistent with a herniated disc. He opined that there was no evidence that appellant
had a herniated lumbar disc prior to the August injury and noted that an MRI scan the year
before treatment for back pain revealed no disc herniation. Dr. Barr stated that, while appellant
had a history of back problems, it appears to me that “the injury he sustained in August of 2008
is different in nature, and was the cause of his recent disc herniation and disability.” Appellant
also submitted a report from a physician’s assistant.
By decision dated September 21, 2009, the Office denied modification of its prior
decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act2 and that an injury was
1

5 U.S.C. §§ 8101-8193.

2

Joe D. Cameron, 41 ECAB 153 (1989).

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sustained in the performance of duty.3 These are the essential elements of each compensation
claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational
disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place and in the manner alleged.5 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.6
ANALYSIS
The evidence supports that appellant was delivering mail on August 7, 2008 as alleged.
Therefore, the Board finds that the first component of fact of injury is established. However, the
medical evidence is insufficient to establish the second component of fact of injury, that the
employment incident caused an injury. The medical reports of record do not establish that
turning to go down steps while delivering mail at work caused a personal injury on
August 7, 2008. The medical evidence contains no reasoned explanation of how the specific
employment incident on August 7, 2008 caused or aggravated an injury.7
Appellant submitted reports from Dr. O’Dell beginning August 14, 2008, shortly after the
claimed injury. Although the reports from Dr. O’Dell generally support a work injury, the Board
finds that his most contemporaneous reports did not contain an accurate history. For example in
the August 14, 25 and October 14, 2008 reports, he does not appear to be aware of the June 2008
nonwork injury. Dr. O’Dell notes a history of low back pain and spondylosis in 2006. However,
he does not address the nonwork injury from June 3, 2008. Medical conclusions based on an
inaccurate or incomplete factual history are of diminished probative value.8
The Board notes that the first time Dr. O’Dell appeared to be aware of the June 2008
nonwork injury was in his January 28, 2009 report. Dr. O’Dell noted reviewing medical
evidence pertaining to the June 3, 2008 nonwork injury and advised that appellant’s pain had
completely resolved as he was discharged pain free on June 10, 2008. He opined that while
appellant “may have suffered a disc injury on June 3, 2008 (it is impossible to say what was
injured) his symptoms did completely resolve and he was discharged without functional
deficits.” Dr. O’Dell indicated that he could “comfortably state within a reasonable degree of
3

James E. Chadden Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyett, 41 ECAB 992 (1990).

5

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

6

Id.

7

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
8

See James A. Wyrick, 31 ECAB 1805 (1980) (physician’s report was entitled to little probative value because
the history was both inaccurate and incomplete). See generally Melvina Jackson, 38 ECAB 443, 450 (1987)
(addressing factors that bear on the probative value of medical opinions).

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medical certainty, that [appellant] did suffer a low back injury while working on [August 7,
2008].” However, he explained it was “impossible” to tell what was injured and he did not
explain why he concluded that appellant’s disc injury occurred during mail delivery on August 7,
2008, as opposed to the earlier incident. A physician’s opinion on causal relationship between a
claimant’s disability and an employment injury is not conclusive simply because it is rendered by
a physician. To be of probative value, a physician must provide rationale for the opinion
reached. Where no such rationale is present, the medical opinion is of diminished probative
value.9
In an August 20, 2009 report, Dr. Barr noted that he initially saw appellant in June 2008
for an injury that occurred at home. He diagnosed a lumbar strain that improved such that
appellant returned to his full duties without pain. Dr. Barr noted that appellant had an injury in
August 2008 while working and was diagnosed with “a new disc herniation of the lumbar spine.”
He explained that the June 2008 injury was not related to the August injury. Dr. Barr advised
that appellant’s rapid improvement and return-to-normal work duties were not consistent with a
herniated disc and there was no evidence that appellant had a herniated lumbar disc before the
August injury. He explained that an MRI scan from 2006 revealed no disc herniation. An
August 26, 2008 MRI scan did reveal a herniation disc. Dr. Barr noted that, while appellant had
a history of back problems, it appears to me that “the injury he sustained in August of 2008 is
different in nature, and was the cause of his recent disc herniation and disability.” The Board
notes that his report did not fully explain the process whereby appellant’s lumbar condition
resulted only from the August 7, 2008 employment incident and could not have occurred from
the June 2008 nonemployment incident. A medical opinion that states that a condition is
causally related to an employment injury because the employee was asymptomatic before the
injury but symptomatic after is insufficient, without supporting rationale, to establish causal
relationship.10
The Office received a September 18, 2008 report from Dr. Aksu, an October 8, 2008
report from Dr. Freese and an April 13, 2009 report from Dr. Aksu. However, these physicians
provided opinions that were insufficient as the physicians did not appear to be aware of the
June 2008 nonemployment injury. As noted above, medical conclusions based on an inaccurate
or incomplete factual history are of diminished probative value.11 These reports do not otherwise
provide medical rationale explaining the reasons why the August 7, 2008 incident caused or
aggravated a diagnosed condition. Other medical reports submitted by appellant did not
specifically address causal relationship.
The Office received physical therapy reports. Health care providers such as nurses,
acupuncturists, physician’s assistants and physical therapists are not physicians under the Act.
Thus, their opinions on causal relationship do not constitute rationalized medical opinions and
have no weight or probative value.12

9

T.M., 60 ECAB ___ (Docket No. 08-975, issued February 6, 2009).

10

See id.

11

See supra note 8.

12

Jane A. White, 34 ECAB 515, 518 (1983).

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On appeal, appellant generally disagrees with the disposition of his claim and asserts that
his condition is employment related. As noted above, the medical evidence is insufficient to
establish his claim.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty on August 7, 2008.
ORDER
IT IS HEREBY ORDERED THAT the September 21, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 10, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Paterson, NJ, Employer
__________________________________________

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)
)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-846
Issued: July 3, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 26, 2013 appellant, through her attorney, filed a timely appeal from a
September 6, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying modification of a wage-earning capacity determination and a December 11, 2012
nonmerit decision denying her request for reconsideration. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether appellant established that the October 13, 2006 loss of wageearning capacity determination should be modified; and (2) whether OWCP properly denied her
request to reopen her case for further merit review under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on January 3, 2005 appellant, then a 47-year-old letter carrier,
sustained lumbar sprain, in the performance of duty.2 It previously accepted that she sustained
lumbar strain under file number xxxxxx350, which it combined under the current file number.
On February 27, 2006 the employing establishment offered appellant a full-time position
as a modified city carrier. The physical requirements included no lifting over 20 pounds and the
duties consisted of filing, answering the telephone and delivering automobile parts.
By decision dated October 13, 2006, OWCP reduced appellant’s compensation to zero
based on its finding that her actual earnings as a modified city carrier effective March 11, 2006
fairly and reasonably represented her wage-earning capacity.
On January 5, 2010 the employing establishment offered appellant a modified assignment
pending Phase 2 assessment under the National Reassessment Process (NRP). The duties
including delivering Express Mail and parcel post and collecting mail for up to four hours a day.
The employing establishment indicated that the position would be within appellant’s work
restrictions as set forth on December 8, 2009.3
On February 4, 2010 the employing establishment offered appellant a position as a
modified city carrier standing up to six hours, operating a motor vehicle up to three hours,
picking up mail and reaching above or at shoulder level for two hours per day and walking up to
four hours per day. It noted that the position was an interim assignment offered pending Phase 2
reassessment under NRP and might result in fewer hours worked than indicated in the job offer.
Appellant refused the position, noting that she had tried to deliver the route but had to return with
the mail due to right shoulder and back pain.
In a statement dated April 18, 2010, appellant related that the employing establishment
removed her limited-duty position and returned her to work as a letter carrier. She attempted to
deliver her route on January 8, 2010 but her back hurt too much for her to complete her route.
On March 10, 2011 appellant filed a notice of recurrence of disability on January 8, 2010
causally related to her January 3, 2005 work injury. She related that the employing
establishment took away her limited-duty employment under NRP and returned her to work as a
2

On January 21, 2005 appellant filed a notice of recurrence of disability on January 3, 2005 causally related to a
May 18, 2001 employment injury. OWCP determined that she was alleging a new injury based on her description of
the work factors that caused her condition.
3

In a duty status report dated January 21, 2010, Dr. John Ambrose, a Board-certified orthopedic surgeon,
diagnosed lumbar radiculitis and listed work restrictions of lifting and carrying 10 pounds up to four hours per day,
sitting two hours per day, standing six hours per day and walking four hours per day. In a report dated July 19,
2010, he related that he had treated appellant for a back injury on May 18, 2001. Dr. Ambrose noted that she
“returned to full duties as a letter carrier in January” but was unable to perform the employment due to her back. He
stated, “Instead of a new injury, [appellant] undoubtedly experienced a recurrence of her back symptoms on the
basis of the impairments and disabilities that proceeded from the 2001 accident at work.” On April 11, 2011
Dr. Ambrose diagnosed a herniated disc at L3-4 with lumbar radiculitis and spondylosis. He attributed the condition
to lifting incidents in May 2001 and January 2005.

2

letter carrier for four hours per day. Appellant asserted that she was unable to perform her letter
carrier duties.
By letter dated April 27, 2011, appellant’s supervisor related that she accepted a position
within her physical restrictions. She began working in the new position on January 8, 2010 but
stopped in the afternoon, citing back pain. Appellant refused a second offer made on
February 4, 2010. Her supervisor stated that both job offers were within her physical limitations.
On June 12, 2012 Don L. Hill, a union president, related that the employing
establishment provided appellant with a “makeshift job created due to her on-the-job injury.”
By decision dated June 13, 2011, OWCP denied modification of the October 13, 2006
loss of wage-earning capacity determination.
On June 17, 2011 appellant, through her attorney, requested a telephone hearing before
an OWCP hearing representative. At the telephone hearing, held on October 12, 2011, her
attorney contended that the original loss of wage-earning capacity determination was in error as
the position was makeshift in nature.
By decision dated December 30, 2011, OWCP’s hearing representative affirmed the
June 13, 2011 decision. She found that there was no evidence that the original determination
was in error or that appellant’s condition worsened such that she was unable to perform the
modified position.
On June 13, 2012 appellant, through her attorney, requested reconsideration. In a
decision dated September 6, 2012, OWCP denied modification of its December 30, 2011
decision.
On September 12, 2012 appellant, through her attorney, again requested reconsideration.
He argued that the employing establishment failed to challenge Mr. Hill’s contention that the
original position was makeshift.
In a nonmerit decision dated December 11, 2012, OWCP denied appellant’s request for
reconsideration on the grounds that the evidence submitted was insufficient to warrant reopening
the case for further merit review under section 8128.
On appeal appellant’s attorney contends that the original loss of wage-earning capacity
was erroneous as the offered position was makeshift in nature.
LEGAL PRECEDENT -- ISSUE 1
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally

3

rehabilitated or the original determination was, in fact, erroneous.4 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.5
FECA Bulletin No. 09-05 outlines very specific procedures for light-duty positions
withdrawn pursuant to NRP. Regarding claims for total disability when a wage-earning capacity
decision has been issued, OWCP should develop the evidence to determine whether a
modification of that wage-earning capacity position is appropriate.6
ANALYSIS -- ISSUE 1
OWCP issued an October 13, 2006 loss of wage-earning capacity determination based on
appellant’s actual work duties as a modified city carrier position effective March 11, 2006. She
argued that the loss of wage-earning capacity determination should be modified as the position
was makeshift and her work duties were eventually withdrawn under NRP on January 5, 2010.
The employing establishment offered appellant alternative employment.
When a loss of wage-earning capacity decision has been issued, FECA Bulletin No. 0905 requires OWCP to develop the evidence to determine whether a modification of the decision
is appropriate.7 FECA Bulletin No. 09-05 asks OWCP to confirm that the file contain
documentary evidence supporting that the position was an actual bona fide position. It requires
OWCP to review whether a current medical report supports work-related disability and
establishes that the current need for limited duty or medical treatment is a result of injury-related
residuals and to further develop the evidence from both the claimant and the employing
establishment if the case lacks current medical evidence.8
FECA Bulletin No. 09-05 states that OWCP, in an effort to proactively manage these
types of cases, may undertake further nonmedical development, such as requiring that the
employing establishment address in writing whether the position on which the loss of wageearning capacity determination was based was a bona fide position at the time of the rating and
direct the employing establishment to review its files for contemporaneous evidence concerning
the position.9
As OWCP failed to follow the guideline in FECA Bulletin No. 09-05, the Board will
remand the case for further development.

4

Harley Sims, Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375, 377 (2000).

5

Id.

6

FECA Bulletin No. 09-05 (issued August 18, 2009); see also A.T., Docket No. 11-375 (issued
September 19, 2012).
7

Id.

8

Id. at § I.A. 1-2.

9

Id. at § I.A.3.

4

CONCLUSION
The Board finds that the case is not in posture for decision.10
ORDER
IT IS HEREBY ORDERED THAT the December 11 and September 6, 2012 decisions
of the Office of Workers’ Compensation Programs are set aside and the case is remanded for
further proceedings consistent with this opinion of the Board.
Issued: July 3, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

10

In view of the Board’s disposition of the merits, the issue of whether OWCP properly denied appellant’s
request to reopen her case for further review under section 8128 is moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.G., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Newark, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1576
Issued: December 8, 2017

Case Submitted on the Record

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

JURISDICTION
On July 13, 2017 appellant, through counsel, filed a timely appeal from a February 10,
2017 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.
ISSUE
The issue is whether appellant has more than three percent permanent impairment of his
right upper extremity, for which he previously received a schedule award.
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.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as
presented in the Board’s prior decision are incorporated herein by reference. The relevant facts
are set forth below.
On December 16, 2010 appellant, then a 59-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging a right shoulder condition as a result of repetitive
employment duties. He noted on the claim form that he had not stopped work. OWCP accepted
the claim for right rotator cuff tear. Appellant received compensation benefits on the
supplemental rolls as of January 4, 2011 and on the periodic rolls from April 10 through
December 17, 2011. OWCP authorized rotator cuff repair surgery, which was performed on
June 29, 2011 by Dr. Zafer Termanini, a Board-certified orthopedic surgeon.4
On June 15, 2015 appellant filed a claim for compensation (Form CA-7) requesting a
schedule award. With his claim, he submitted an April 23, 2015 report from Dr. David Weiss, an
osteopath Board-certified in orthopedic surgery. Dr. Weiss examined appellant and noted that he
had reached maximum medical improvement (MMI) on February 9, 2015. He diagnosed a
partial thickness rotator cuff tear of the right shoulder, aggravation of a preexistent quiescent
acromioclavicular arthropathy of the right shoulder, subacromial impingement syndrome of the
right shoulder, a status post arthroscopy and arthrotomy of the right shoulder with rotator cuff
repair and subacromial decompression, recurrent sprain and strain of the right shoulder, and
moderately-severe progressive acromioclavicular arthropathy of the right shoulder. Dr. Weiss
rendered an impairment rating pursuant to the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)5 using the
range of motion (ROM) method. Noting flexion of 130 degrees, abduction of 150 degrees, and
international rotation of 70 degrees, he calculated that appellant’s right upper extremity
permanent impairment rating after net adjustment was nine percent.
On September 23, 2015 OWCP referred the case to a district medical adviser (DMA).
The DMA was asked to review the medical evidence and provide a calculation of appellant’s
percentage of permanent loss of use of the right upper extremity, along with a date of MMI, in
accordance with the sixth edition of the A.M.A., Guides.
In a report dated October 9, 2015, Dr. Henry Magliato, a Board-certified orthopedic
surgeon and DMA, reviewed the report of Dr. Weiss and found that appellant had 16 percent
3

Docket No. 13-0205 (issued March 5, 2013).

4

On December 15, 2011 appellant submitted a notice of recurrence of total disability (Form CA-2a) as of
November 20, 2011, alleging that the employing establishment was unable to provide him with work within his
restrictions. By decision dated January 24, 2012, OWCP denied appellant’s recurrence claim. By decision dated
July 6, 2012, it denied modification of its January 24, 2012 decision. By letter dated October 25, 2012, appellant
filed a timely appeal to the Board from the July 6, 2012 decision of OWCP. By decision dated March 5, 2013, the
Board affirmed the July 6, 2012 decision of OWCP. The Board found that appellant had not submitted sufficient
medical evidence to establish a recurrence of disability. Docket No. 13-0205 (issued March 5, 2013).
5

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

2

permanent impairment of his right upper extremity. He arrived at this figure by using the ROM
method, noting that appellant’s partial impairment was eight percent based on the ROM, to
which he added seven percent due to appellant’s QuickDASH score.
On November 4, 2015 OWCP requested that Dr. Magliato review his report, as it
appeared that the figures were inaccurate. No response was received, and on May 16, 2016,
OWCP forwarded the case file to another DMA for evaluation.
In a report dated May 25, 2016, Dr. Morley Slutsky, Board-certified in occupational
medicine and a DMA, reviewed the report of Dr. Weiss and found that appellant had three
percent permanent impairment of his right upper extremity. He noted that the diagnosis-based
impairment (DBI) method of calculating impairment was preferred over the ROM method used
by Dr. Weiss, and that the date of MMI was February 9, 2015. Noting a diagnosis class of 1, an
unreliable functional history, a physical examination modification of 1, and no modification due
to clinical studies, Dr. Slutsky determined that appellant had a final grade of C, which
corresponded to a right upper extremity permanent impairment of three percent.
By decision dated August 2, 2016, OWCP found that appellant had three percent
permanent impairment of the right upper extremity. It relied on Dr. Slutsky’s calculations of
appellant’s percentage of impairment, noting that Dr. Weiss had incorrectly applied the A.M.A.,
Guides.
On August 10, 2016 appellant, through counsel, requested a hearing before an OWCP
hearing representative. On November 22, 2016 counsel requested that the hearing be changed to
a review of the written record.
By decision dated February 10, 2017, the hearing representative affirmed OWCP’s
August 2, 2016 decision. She noted that appellant had not submitted sufficient medical evidence
establishing greater impairment.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.6 Section 8107
of 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.7 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. Through its implementing

6

See 20 C.F.R. §§ 1.1-1.4.

7

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).

3

5 U.S.C.

regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.8
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).9 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.10
ANALYSIS
The issue on appeal is whether appellant has more than three percent permanent
impairment of the right upper extremity.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation had been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.11
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.12 In T.H., the Board concluded that OWCP physicians
were at odds over the proper methodology for rating upper extremity impairment, having
observed attending physicians, evaluating physicians, second opinion physicians, impartial
medical examiners, and district medical advisers use both DBI and ROM methodologies
interchangeably without any consistent basis. Furthermore, the Board observed that physicians
interchangeably cited to language in the first printing or the second printing when justifying use
of either ROM or DBI methodology. Because OWCP’s own physicians were inconsistent in the

8

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
10

Isidoro Rivera, 12 ECAB 348 (1961).

11

T.H., Docket No. 14-0943 (issued November 25, 2016).

12

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

4

application of the A.M.A., Guides, the Board found that OWCP could no longer ensure
consistent results and equal justice under the law for all claimants.13
In order to ensure a consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the February 10, 2017 decision. Utilizing a
consistent method for calculating permanent impairment for upper extremities applied uniformly,
and such other development as may be deemed necessary, OWCP shall issue a de novo decision
on appellant’s claim for an upper extremity schedule award.14
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 10, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: December 8, 2017
Washington, DC

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

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

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

13

Supra note 10.

14

See FECA Bulletin No. 17-06 (issued May 8, 2017).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF THE NAVY,
PHILADELPHIA NAVAL SHIPYARD,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 11-1402
Issued: February 7, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 16, 2011 appellant filed a timely appeal from a November 17, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. As more than 180 days elapsed from the most recent merit decision of
September 7, 2010 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
the claim pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3.2
ISSUE
The issue is whether OWCP properly denied appellant’s October 22, 2010 claim for
reconsideration under 5 U.S.C. § 8128(a).
1
2

5 U.S.C. § 8101 et seq.

For OWCP decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal
of its decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. See 20 C.F.R.
§§ 501.2(c) and 501.3.

FACTUAL HISTORY
The record reflects that appellant had previously filed claims during the time period 1983
through 1985, which OWCP had accepted for early peripheral neuropathy, lumbosacral sprain
and left frontal parietal contusion. On May 6, 2010 appellant, then a 57-year-old shop ship
propeller finisher, filed an occupational disease claim alleging that he sustained a left arm injury
and underwent ulnar entrapment repair surgery as a result of working with various tools. He
realized that his condition was caused or aggravated by his employment on June 21, 1983.
Appellant submitted a supplemental statement dated March 11, 2010 which described his
previously accepted injuries and that he underwent left arm surgery. He explained that he was
diagnosed with cancer and believed that exposure to lead and other toxic chemicals at work
resulted in his conditions.
On July 1, 2010 OWCP advised appellant that the evidence submitted was insufficient to
establish his claim and requested additional factual and medical evidence.
Appellant submitted various diagnostic reports dated March 21 to June 14, 2005, medical
reports regarding his previously accepted injuries and left arm surgery and a description of his
job duties as a ship propeller finisher helper.
OWCP thereafter received a December 22, 2009 counseling report, listing appellant as
diagnosed with prostate cancer. Counsel also submitted various diagnostic reports dated
April 22 and July 6, 2010 and an April 13, 2010 surgical pathology consultation report.
In a July 13, 2010 statement, appellant explained that he noticed red dots and rashes on
his arms when he worked at the naval shipyard as a propeller finisher. He believed that his work
contributed to his left arm injury and related that it continued to bother him. On July 20, 2010
appellant noted that he was unable to work since his 1983 injuries. He explained that while
working at the shipyard he was exposed to toxic chemicals such as trichloroethane and
methylchloroform and that the air was filled with dust and metallic particles of abrasive grit and
chips.
By decision dated September 7, 2010, OWCP denied appellant’s claim finding
insufficient evidence to establish that his left arm condition was causally related to the alleged
employment exposure. It accepted that he sustained a left arm condition and that his work as a
ship propeller finisher required working with various tools, but the medical evidence did not
establish that his condition resulted from his employment duties. Appellant was advised that if
his claim was that his current condition was the result of residuals of another accepted work
injury, he could pursue a consequential injury claim by filing a CA-2 form, with supporting
medical evidence.
On October 22, 2010 appellant submitted a request for reconsideration. He resubmitted
his CA-2 form, the July 1, 2010 development letter, the September 7, 2010 decision with
handwritten notes and a July 13, 2010 statement. Appellant noted on these documents that
OWCP referenced a wrong claim number and that his claim was for surgery to his left arm.

2

By decision dated November 17, 2010, OWCP denied appellant’s request for
reconsideration finding that the additional evidence submitted was insufficient to warrant further
merit review under 5 U.S.C. § 8128(a). It determined that the materials submitted were
duplicative to the evidence already on record.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation.3 OWCP’s regulations provide that OWCP may
review an award for or against compensation at any time on its own motion or upon application.
The employee shall exercise his right through a request to the district office.4
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.5
A request for reconsideration must also be submitted within one year of the date of the
OWCP decision for which review is sought.6 A timely request for reconsideration may be
granted if OWCP determines that the employee has presented evidence or provided an argument
that meets at least one of the requirements for reconsideration. If OWCP chooses to grant
reconsideration, it reopens and reviews the case on its merits.7 If the request is timely but fails to
meet at least one of the requirements for reconsideration, OWCP will deny the request for
reconsideration without reopening the case for review on the merits.8
ANALYSIS
The Board has no jurisdiction to review OWCP’s September 7, 2010 merit decision
denying appellant’s compensation claim. Appellant did not file a timely appeal of that decision
and the Board may not review the merits of his case. The only decision the Board may review is
OWCP’s November 17, 2010 nonmerit decision denying his request for reconsideration. The
Board finds that OWCP properly denied appellant’s request for reconsideration. Appellant did
not meet any of the requirements sufficient to warrant merit review.

3

5 U.S.C. § 8128(a); see also W.C., 59 ECAB 372 (2008); D.L., Docket No. 09-1549 (issued February 23, 2010).

4

20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730
(issued March 16, 2009).
5

Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued
December 9, 2008).
6

Id. at § 10.607(a).

7

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

8

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

3

In his October 22, 2010 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. He did not advance a relevant legal
argument not previously considered by OWCP. Appellant’s notations that his claim number was
incorrect and that his claim pertained to a left arm surgical procedure are not new legal
arguments warranting merit review. His May 6, 2010 occupational disease claim for left arm
injury was assigned a new claim number because he filed a new occupational disease claim.
Appellant clarified that he sought payment of expenses related to his surgery. He did not file a
CA-2 form recurrence claim, alleging that his current conditions were related to his previously
accepted injuries, but identified new work factors.
To support his request for reconsideration, appellant resubmitted his CA-2 form,
OWCP’s July 1, 2010 development letter, September 7, 2010 decision with handwritten notes
and his July 13, 2010 statement. The submission of evidence which repeats or duplicates
evidence already of record and considered by OWCP does not constitute a basis for reopening a
case. It is insufficient to warrant further merit review.9 Because appellant’s request for
reconsideration failed to show that OWCP erroneously applied or interpreted a specific point of
law, failed to advance a relevant legal argument not previously considered by OWCP and failed
to provide relevant and pertinent new evidence not previously considered by OWCP, the Board
finds that OWCP properly denied further merit review of his case. The Board will affirm the
November 17, 2010 decision.
On appeal, appellant related that his peripheral neuropathy was previously accepted. He
also explained that he will have nerve damage for the rest of his life that prevents him from
working elsewhere. As explained by OWCP, if appellant is alleging that his current condition is
a residual of previously accepted injuries, he may file a CA-2 form under that claim and submit
supporting medical evidence. While appellant provided additional evidence on appeal, the Board
does not have jurisdiction to review that evidence as such evidence was not before OWCP at the
time of its final decision.10
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board find that OWCP properly denied appellant’s October 22, 2010 request for
reconsideration pursuant to 5 U.S.C. § 8128(a).

9

D.K., 59 ECAB 141 (2007); E.M., Docket No. 09-39 (issued March 3, 2009).

10

20 C.F.R. § 501.2(c)(1).

4

ORDER
IT IS HEREBY ORDERED THAT the November 17, 2010 nonmerit decision of the
Office of Workers’ Compensation Programs is affirmed.
Issued: February 7, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
AVIATION DEPOT, Pensacola, FL, Employer
__________________________________________

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

Docket No. 07-2271
Issued: March 4, 2008

Case Submitted on the Record

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

JURISDICTION
On September 5, 2007 appellant filed a timely appeal from a July 3, 2007 merit decision
of the Office of Workers’ Compensation Programs denying his claim for a schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained a
hearing loss in the performance of duty.
FACTUAL HISTORY
On July 28, 2005 appellant, then a 56-year-old retired inventory manager, filed an
occupational disease claim alleging that he sustained a hearing loss in the left ear due to his
federal employment. He also submitted a schedule award claim on the same date. Appellant
realized that his hearing loss was related to his employment on June 28, 2005, the date he retired
from his employment.

Appellant submitted evidence in support of his claim. He stated that he was exposed to
noise from metal cutting machines, grinders, plating machines, rectifiers and x-ray machines
while he installed and maintained industrial generators and motors for 40 hours per week.
Appellant worked as a mechanic from 1975 to 1985 and was exposed to test stands machines for
eight hours a day during which time he wore earplugs. He worked as an equipment specialist
from 1986 to 1996 and was exposed to helicopter and blade repair machines. Appellant
submitted a June 28, 2005 audiogram obtained at the employing establishment that revealed a
hearing loss of 0, 5, 15 and 15 decibels in the left ear and 0, 5, -5 and 5 decibels in the right ear
for frequency levels recorded at 500, 1,000, 2,000 and 3,000 hertz respectively.
The Office referred appellant for a second opinion evaluation and included a statement of
accepted facts listing his employment history. The Office noted that he was employed as both a
repairman and mechanic during which time he was exposed to various machines and motors for
eight hours a day, five days a week. A November 28, 2006 audiological evaluation recorded a
hearing loss of 0, 5, 5 and 15 decibels in the right ear and 0, 10, 15 and 25 in the left ear for
frequency levels recorded at 500, 1,000, 2,000 and 3,000 hertz respectively. Dr. John Keebler,
an otolaryngologist, reviewed the audiogram and diagnosed left ear high frequency nerve loss.
He opined that the hearing loss was probably presbycusis and not due to noise encountered in
appellant’s federal employment.
On January 24, 2007 the Office denied appellant’s claim for hearing loss. It found that
the weight of medical evidence did not establish that appellant’s hearing loss was caused by his
federal employment.
On February 7, 2007 appellant requested review of the written record. He contended that
he sustained a left ear hearing loss due to his noise exposure at work. Appellant did not submit
any additional medical evidence.
On July 3, 2007 the Office hearing representative found that there was no evidence to
establish that occupational noise exposure during appellant’s federal employment caused his
hearing loss.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.2 These are the essential

1

5 U.S.C. §§ 8101-8193

2

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

2

elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship, generally, is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4
ANALYSIS
Appellant contends that his hearing loss is causally related to noise exposure his federal
employment. The Board finds that he has not submitted medical evidence to establish that his
hearing loss was caused or aggravated by his federal employment.
In support of his claim, appellant submitted an audiogram obtained June 28, 2005 as part
of the hearing conservation program at work. This evidence did not meet the Office’s criteria as
the audiogram was not certified by a physician as being accurate.5 Thereafter, the Office
referred appellant for an evaluation by Dr. Keebler. However, while Dr. Keebler diagnosed a
hearing loss, he opined that it was due to presbycusis and not related to appellant’s history
employment of noise exposure. The report of Dr. Keebler, a specialist in the appropriate
specialty, constitutes the weight of medical opinion.6
Appellant has not satisfied the requirements to establish that his hearing loss is causally
related to his federal employment. He has failed to submit medical evidence to establish causal
relationship and, therefore, has failed to discharge his burden of proof to establish that he
sustained a condition due to factors of his federal employment.

3

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

4

Id.

5

See Robert E. Cullison, 55 ECAB 570 (2004). The Office does not have to review every uncertified audiogram.

6

See John D. Jackson, 55 ECAB 465 (2004).

3

CONCLUSION
Appellant has not met his burden of proof to establish that he sustained an occupational
disease in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the July 3, 2007 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 4, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION Miami, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Richard Daniels, for the appellant
Office of Solicitor, for the Director

Docket No. 12-71
Issued: May 15, 2012

Case Submitted on the Record

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

JURISDICTION
On October 3, 2011 appellant, through his representative, filed a timely appeal from an
April 22, 2011 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Because more than 180 days has elapsed since the most recent merit decision dated October 1,
2010 and the filing of this appeal on October 3, 2011 the Board lacks jurisdiction to review the
merits of the claim 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 reconsideration.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 15, 2010 appellant, then a 31-year-old transportation security screener, filed a
traumatic injury claim alleging that on the same day he was lifting a bag off of a belt when he
stood up and heard a “pop” in his left knee. He stopped work.2
A January 16, 2010 magnetic resonance imaging (MRI) scan of the left knee revealed
compete disruption of the anterior cruciate ligament, indeterminate in age and complex tear of
the posterior horn of the medial meniscus. In a February 2, 2010 report, Dr. John E. Zvijac, a
Board-certified orthopedist, treated appellant for a left knee injury. Appellant reported that he
was at work lifting a heavy bag and twisted and subsequently felt a “pop” and had severe pain
and swelling in his left knee. Dr. Zvijac diagnosed torn left anterior cruciate ligament, medial
and lateral meniscal tears by MRI scan and recommended surgery. In a duty status report of the
same date he noted that appellant was totally disabled from work.
By letter dated February 10, 2010, OWCP advised appellant of the type of factual and
medical evidence needed to establish his claim. It particularly requested that he submit a
comprehensive medical report from his treating physician which included a reasoned explanation
as to how the specific work factors or incidents identified by appellant had contributed to his
claimed injury.
Appellant submitted an incident report dated January 15, 2010 and a February 25, 2010
statement, which indicated that between 8:50 a.m. to 9:00 a.m. he was lifting a bag and when he
stood up to place the bag on the carousel he heard and felt a pop in his left knee and experienced
pain and swelling. He submitted a February 22, 2010 report from Dr. Zvijac who noted that
appellant related all of his injuries to the January 15, 2010 injury at work. Dr. Zvijac opined that
appellant’s history and clinical examination were consistent with an acute injury on
January 15, 2010. He noted that the MRI scan report indicated that the age of the anterior
cruciate ligament tear was indeterminate and he could only go with appellant’s history of injury
and clinical examination which suggested that the injury occurred on January 15, 2010.
Appellant submitted a statement from Roselie Pierre, a coworker, who indicated that she was
working with him on January 15, 2010 when he injured his leg. Ms. Pierre noted that he was
unloading and checking alarm bags when he suddenly stopped and stated that he hurt his knee.
On February 25, 2010 the employing establishment controverted the claim alleging that
appellant was viewed on a closed circuit television on the day of the injury as limping and
favoring the left knee prior to the time he was alleged to have injured his knee. Also submitted
was a report from Dr. David M. Sack, a Board-certified physiatrist and employing establishment
physician, who reviewed appellant’s file and opined that the severity of his left knee injury was
out of proportion to the described mechanism of injury. He indicated that a simple lift of a bag
would not be enough to cause appellant’s left knee injury.

2

Appellant filed a claim for a lumbar strain occurring on February 24, 2005, claim number xxxxxx736; a claim
for a lumbar strain sustained on June 11, 2005, claim number xxxxxx651; a claim for a lumbar strain occurring on
March 23, 2006 claim number xxxxxx044; and a claim for a lumbar strain occurring on July 10, 2009, claim number
xxxxxx454. These claims are not before the Board on this appeal.

2

In a March 24, 2010 decision, OWCP advised appellant that his claim was originally
received as a simple, uncontroverted case which resulted in minimal or no time loss from work.
It indicated that his claim was administratively handled to allow medical payments up to
$1,500.00; however, the merits of the claim had not been formally adjudicated. OWCP advised
that, because appellant submitted a request for surgery and his employer challenged the claim,
his claim would be formally adjudicated. It denied his claim finding that the evidence did not
establish that he sustained a work-related injury.
On April 1, 2010 appellant requested an oral hearing which was held on July 9, 2010. He
submitted a statement reiterating the history of his work incident. Also submitted was an
April 2, 2010 operative report from Dr. Zvijac who performed a diagnostic arthroscopy of the
left knee, left anterior cruciate ligament reconstruction, partial medial and lateral meniscectomy
and synovectomy. He diagnosed torn left anterior cruciate ligament, medial and lateral meniscal
tears and synovitis.
In a decision dated October 1, 2010, an OWCP hearing representative affirmed the
March 24, 2010 decision, finding that the medical evidence was insufficient to establish that
appellant’s condition was due to the January 15, 2010 incident.
On January 13, 2011 appellant requested reconsideration. On March 29, 2011 he through
his representative requested a status on his claim. Appellant submitted an October 22, 2010
report from Dr. Zvijac who noted treating appellant two weeks after he sustained an injury on
January 15, 2010 while at work. He reported lifting a heavy bag and twisting his left knee when
he felt a pop and had severe pain and swelling. Dr. Zvijac noted that appellant denied any prior
injury to the left knee. He opined that, based on his history, physical examination and MRI scan,
appellant’s torn anterior cruciate ligament and medial and lateral meniscus tears were acute in
nature and causally related to his job duties and the injury on January 15, 2010.
In a decision April 22, 2011, OWCP denied appellant’s reconsideration request finding
that the request was insufficient to warrant review of the prior decision.
LEGAL PRECEDENT
Under section 8128(a) of FECA,3 OWCP has the discretion to reopen a case for review
on the merits. It must exercise this discretion in accordance with the guidelines set forth in
section 10.606(b)(2) of the implementing federal regulations, which provide that a claimant may
obtain review of the merits of his or her written application for reconsideration, including all
supporting documents, sets forth arguments and contain evidence that:
“(1) Shows that OWCP erroneously applied or interpreted a specific point of law;
or
“(2) Advances a relevant legal argument not previously considered by OWCP; or

3

5 U.S.C. § 8128(a).

3

“(3) Constitutes relevant and pertinent new evidence not previously considered by
OWCP.”4
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.5
ANALYSIS
OWCP’s most recent merit decision of October 1, 2010, found that appellant had not
established his claim because the medical evidence was insufficient to establish that his
condition was due to the January 15, 2010 incident. On April 22, 2011 it denied his January 13,
2011 reconsideration request, without a merit review and he appealed this decision to the Board.
As noted above, the Board does not have jurisdiction over the October 1, 2010 OWCP
decision. The issue presented on appeal is whether appellant met any of the requirements of 20
C.F.R. § 10.606(b)(2), requiring OWCP to reopen the case for review of the merits of the claim.
In his January 13, 2011 application for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law. He did not identify a specific point of
law or show that it was erroneously applied or interpreted. Appellant did not advance a new and
relevant legal argument not previously considered by OWCP.6 Consequently, he is not entitled
to a review of the merits of his claim based on the first and second above-noted requirements
under section 10.606(b)(2).
Appellant submitted an October 22, 2010 report from Dr. Zvijac who treated appellant
two weeks after he sustained an injury on January 15, 2010 while at work. He reported lifting a
heavy bag and twisting his left knee when he felt a pop and had severe pain and swelling.
Dr. Zvijac opined that, based on his history, physical examination and MRI scan, appellant’s torn
anterior cruciate ligament and medial and lateral meniscus tears were acute in nature and
causally related to his job duties and the injury on January 15, 2010. Although this report is new,
it is not relevant because it is similar to his notes dated February 2 and 22, 2010 previously of
record and previously considered by OWCP and found to be insufficient. Therefore, OWCP
properly determined that this evidence was cumulative and did not constitute a basis for
reopening the case for a merit review.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(2). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP or
submit relevant and pertinent evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.

4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.608(b).

6

See Bobbie F. Cowart, 55 ECAB 746 (2004).

4

On appeal, appellant through his representative, submitted a brief with exhibits and
asserted that he sustained a work-related left knee injury on January 15, 2010 while lifting a
heavy bag. The Board notes, however, that it only has jurisdiction over whether OWCP properly
denied a merit review of the claim. As explained, appellant did not submit evidence or argument
in support of his reconsideration request that warrants reopening of his claim for a merit review
under 20 C.F.R. § 10.606(b)(2).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the April 22, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 15, 2012
Washington, DC

Richard J. Daschbach, Chief 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
)
)
B.R., Appellant
)
)
and
)
DEPARTMENT OF LABOR, MINE, SAFETY & )
)
HEALTH ADMINISTRATION, Denver, CO,
)
Employer
___________________________________________ )
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

Docket No. 13-2005
Issued: May 5, 2014

Case Submitted on the Record

ORDER REMANDING CASE

Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

On August 29, 2013 appellant filed an application for review of an Office of Workers’
Compensation Programs’ (OWCP) decision dated August 14, 2013, which denied her emotional
condition claim.1
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. In the case of William A. Couch,2 the Board held that
when adjudicating a claim, OWCP is obligated to consider all evidence properly submitted by a
claimant and received by OWCP before the final decision is issued.

1

Appellant requested an oral argument. The Clerk of the Board mailed a letter to her to confirm a continuing
desire for an oral argument in Washington, DC. No written confirmation was received; thus the Board has decided
the appeal on the record.
2

41 ECAB 548 (1990).

The Board finds that OWCP, in its August 14, 2013 decision, did not review the April 9,
2013 factual statement from appellant that was received by OWCP on April 16, 2013.3 The
Board notes that OWCP listed all of the evidence submitted with the exception of appellant’s
statement which set forth her allegations of unfair treatment at the employing establishment.
OWCP did not otherwise indicate that it considered appellant’s statement. For this reason, the
case will be remanded to OWCP to consider all the evidence submitted at the time of the
August 14, 2013 decision. Following such further development as OWCP deems necessary, it
shall issue an appropriate merit decision on the claim.
IT IS HEREBY ORDERED THAT the August 14, 2013 decision of the Office of
Workers’ Compensation Programs is set aside. The case record is remanded to OWCP for
further proceedings consistent with this order of the Board.
Issued: May 5, 2014
Washington, DC

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

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

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

3

On February 8, 2013 appellant, then a 56-year-old mine safety and health technician, filed an occupational
disease claim alleging that she was harassed and discriminated against at work causing her to sustain stress and
anxiety in the performance of duty. By decision dated August 14, 2013, OWCP denied the claim for compensation
as the evidence was insufficient to establish that appellant sustained an injury as alleged. It found that appellant did
not establish a factual or medical basis for her claim.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.T., Appellant
and
U.S. POSTAL SERVICE, DORAVILLE POST
OFFICE, Atlanta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-553
Issued: August 11, 2014

Case Submitted on the Record

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

JURISDICTION
On January 13, 2014 appellant filed a timely appeal of a November 26, 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 greater than two percent permanent impairment of the
left and right upper extremities, for which he received schedule awards.
FACTUAL HISTORY
On August 27, 2012 appellant, then a 45-year-old letter carrier, filed an occupational
disease claim alleging that on March 1, 2012 he first realized that his bilateral carpal tunnel

1

5 U.S.C. § 8101 et seq.

syndrome was due to his employment duties of sorting and delivering mail. OWCP accepted the
claim for bilateral carpal tunnel syndrome.
In an August 23, 2013 report, Dr. Randall D. Alexander, a Board-certified orthopedic
surgeon with a subspecialty in hand surgery, diagnosed bilateral carpal tunnel syndrome with
associated persistent pain. Using the fifth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides) he determined that appellant had
five percent right upper extremity impairment and five percent left upper extremity impairment,
after reporting nonspecific discomfort in the hand, full hand motion and no atrophy.
On September 25 and October 16, 2013 appellant filed claims for a schedule award.
On October 24, 2013 OWCP’s medical adviser reviewed Dr. Alexander’s
August 23, 2013 report. He determined that maximum medical improvement occurred on
August 23, 2013, the date of Dr. Alexander’s report; however, his rating was based on an
incorrect edition of the A.MA., Guides. The medical adviser referred to Table 15-232 for
entrapment/compression neuropathy impairment to find, based on the test results of
Dr. Alexander, a two percent impairment to both the right and left upper extremities using the
sixth edition of the A.M.A., Guides. Under test results, he found a grade modifier of zero as
postoperative tests showed slow to normal motor and sensation. The medical adviser found a
grade modifier of one under history for general hand discomfort and a grade modifier of one for
the diagnosed condition. Under physical examination, he found a grade modifier of zero. The
medical adviser noted the grade modifiers bilaterally totaled -1, which represented a final rating
category of grade one or two percent impairment to appellant’s extremities.
By decision dated November 26, 2013, OWCP granted appellant schedule awards for two
percent right arm impairment and a two percent left arm impairment. The number of weeks was
12.48 and the period of the awards was from August 23 to November 16, 2013.
LEGAL PRECEDENT
Under section 8107 of FECA3 and section 10.404 of the implementing federal
regulations4 schedule awards are payable for permanent impairment of specified body members,
functions or organs. FECA, however, does not specify the manner in which the percentage of
impairment shall be determined. For consistent results and to ensure equal justice under the law
for all claimants, good administrative practice necessitates the use of a single set of tables so that
there may be uniform standards applicable to all claimants. The A.M.A., Guides has been
adopted by the implementing regulations as the appropriate standard for evaluating schedule
losses.5

2

A.M.A., Guides 449.

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404

5

D.J., 59 ECAB 620 (2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

2

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).6 Under the sixth edition, 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).7 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).8
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.9 In
Table 15-23, grade modifiers levels (ranging from zero to four) are described for the categories
test findings, history and physical findings. The grade modifier levels are averaged to arrive at
the appropriate overall grade modifier level and to identify a default rating value. The default
rating value may be modified up or down by one percent based on functional scale, an
assessment of impact on daily living activities.10
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.11
ANALYSIS
The Board finds that appellant failed to establish that he has more than a two percent
impairment of the right or left arms. The accepted condition is bilateral carpal tunnel syndrome.
On November 26, 2013 OWCP granted appellant schedule awards for impairments of two
percent of both upper extremities.
For decisions issued after May 1, 2009, the sixth edition of the A.M.A., Guides is to be
used in calculating schedule awards.12
The relevant medical evidence includes an
August 23, 2013 report from Dr. Alexander who rated appellant’s upper extremities in
accordance with the fifth edition of the A.M.A., Guides. A medical opinion not based on the
appropriate edition of the A.M.A., Guides is of diminished probative value in determining the
extent of a claimant’s permanent impairment.13 Therefore, Dr. Alexander’s August 23, 2013
report is not determinative of the extent of permanent impairment.
6

A.M.A., Guides (6th ed., 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
7

Id. at 383-419.

8

Id. at 411.

9

Id. at 449.

10

Id. at 448-50.

11

Tommy R. Martin, 56 ECAB 273 (2005).

12

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

13

See Fritz A. Klein, 53 ECAB 642 (2002).

3

OWCP’s medical adviser provided an October 24, 2013 report which he reviewed
Dr. Alexander’s August 23, 2013 report. He found that maximum medical improvement was
reached on August 6, 2012 and advised that, under Table 15-23 of the sixth edition, appellant
had a diagnosed condition grade modifier of one, a functional history grade modifier of one, a
physical examination grade modifier of zero and a clinical studies grade modifier of zero. The
medical adviser totaled these values and arrived at a net adjustment of zero. This yielded a grade
1 modifier representing an impairment rating under Table 15-23 of two percent for each upper
extremity.
The Board finds that the medical evidence of record supports that appellant has a two
percent right upper extremity impairment and a two percent left upper extremity impairment due
to bilateral carpal tunnel syndrome. There is no medical evidence in accordance with the
A.M.A., Guides to support greater permanent impairment.
On appeal, appellant argues that OWCP should have based the schedule award
determination based on Dr. Alexander’s impairment rating as he was more aware of his situation
than OWCP’s medical adviser. As noted, OWCP properly relied upon the rating of OWCP’s
medical adviser as it was based upon application of the correct edition of the A.M.A., Guides.
Dr. Alexander provided an impairment rating using the fifth instead of the sixth edition of the
A.M.A., Guides and, thus, his rating was of diminished probative value.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than a two percent right upper extremity
impairment and two percent left upper extremity impairment, for which he received schedule
awards.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 26, 2013 is affirmed.
Issued: August 8, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5