United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

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

Docket No. 16-1270
Issued: October 11, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 6, 2016 appellant filed a timely appeal from a March 23, 2016 merit decision
and an April 28, 2016 nonmerit 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.
ISSUES
The issues are: (1) whether appellant has established a recurrence of a medical condition
on or about December 31, 2015; and (2) whether OWCP properly denied a request for a review
of the written record as untimely filed.
FACTUAL HISTORY
On July 26, 2005 appellant, then a 36-year-old mail carrier, filed a traumatic injury claim
(Form CA-1) alleging a low back injury while in the performance of duty on July 1, 2005. She
1

5 U.S.C. § 8101 et seq.

reported that she was putting a tray of mail in the employing establishment vehicle and felt low
back pain. Appellant did not initially stop working. OWCP accepted the claim on September 2,
2005 for a lumbar sprain/strain. The record indicates that appellant filed intermittent claims for
wage-loss compensation commencing September 10, 2010.
OWCP paid intermittent
compensation through March 1, 2012.
Appellant submitted treatment reports from Dr. Douglas Bostick, III, a Board-certified
orthopedic surgeon. In a report dated May 22, 2014, Dr. Bostick indicated that appellant was
treated for low back pain and bilateral hip pain, worse with prolonged standing or walking. The
history noted that appellant had been diagnosed in 2012 with a medial meniscus tear and
underwent arthroscopic right knee surgery in 2012. Dr. Bostick submitted a report dated
October 16, 2014 indicating appellant was treated for hip pain. He noted that appellant had a
“history of trauma from a work-related injury.” By report dated May 18, 2015, Dr. Bostick
reported that appellant complained of low back pain with radiation into both legs. He also noted
bilateral hip pain. In a report dated October 28, 2015, Dr. Bostick diagnosed lumbago and
bilateral knee patellofemoral arthralgia.
In a brief report dated November 5, 2015, Dr. Bostick wrote that appellant was seen for
hip pain on October 16, 2014, bilateral knee and left ankle pain on January 7, 2015,2 and for her
lumbar spine on May 18, 2015. He opined, “All of which are related to workers’ comp[ensation]
injury and claim.” In a note dated November 16, 2015, Dr. Bostick wrote that, due to appellant’s
workers’ compensation injuries, she was “able [sic] to work 8 hours per day/40 hours per week
until further notice.”
Appellant submitted a notice of recurrence (Form CA-2a) dated December 31, 2015
indicating that she was seeking medical treatment only. She indicated that the date of the
original injury was July 1, 2005 and that her pain had never stopped. In a report dated January 6,
2016, Dr. Bostick reported that appellant was seen for worsening low back pain. He indicated
that the pain was worse with prolonged sitting and standing, and appellant had a bad flare up of
symptoms during the holidays. Dr. Bostick provided results on examination and diagnosed
lumbar back sprain.
In a report dated January 6, 2016, Dr. Bostick reported that appellant had back pain that
was worse with prolonged standing or sitting. He provided results on examination and
diagnosed lumbar back sprain. In a report dated February 17, 2016, Dr. Bostick reported that
appellant was seen for follow up of low back pain with radiation into her right hip. He
diagnosed lumbago and lumbar back sprain. Dr. Bostick also completed duty status reports
dated January 6 and February 17, 2016 indicating that appellant could work with restrictions.
By letter dated February 23, 2016, OWCP requested that appellant submit additional
evidence with respect to the claim for a recurrence of a medical condition.

2

The record does not contain a January 7, 2015 report. In a report dated November 7, 2014, Dr. Vicki Hebert,
Board-certified in internal medicine, reported that appellant sustained a knee and ankle injury when she tripped and
fell to her knees while delivering mail.

2

In a decision dated March 23, 2016, OWCP denied the claim. It found the medical
evidence of record did not establish how appellant’s current condition was causally related to the
original employment injury.3
On April 27, 2016 OWCP received a request for a review of the written record before an
OWCP hearing representative. The request was postmarked April 25, 2016.4
By decision dated April 28, 2016, OWCP’s Branch of Hearings and Review denied the
request for a review of the written record. The Branch found the request was untimely filed as
the request was not made within 30 days of the March 23, 2016 decision. In addition, the Branch
considered the request in its discretion and found that it could be equally well addressed in a
reconsideration request.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of a medical condition is defined under OWCP regulations as “a
documented need for further medical treatment after release from treatment for the accepted
condition or injury when there is no accompanying work stoppage.”5 It is appellant’s burden of
proof to establish a recurrence of a medical condition.6 When a claim for a recurrence of
medical condition is made more than 90 days after release from medical care, a claimant is
responsible for submitting an attending physician’s report which contains a description of current
objective findings and provides medical rationale for the causal relationship between the
claimant’s current condition(s) and the accepted condition(s).7 Medical rationale is a medically
sound explanation for the opinion offered.8
ANALYSIS -- ISSUE 1
In the present case, the original injury occurred while appellant was putting trays of mail
into a truck on July 1, 2005 and was accepted for a lumbar sprain/strain. Appellant submitted a
Form CA-2a dated December 31, 2015 indicating she believed her continuing medical treatment
was causally related to the 2005 work injury. It is her burden of proof to submit rationalized
medical evidence on causal relationship between the current condition and the employment
injury.9
3

OWCP found appellant last received medical treatment for her employment-related condition on May 18, 2015.

4

The copy of the Express Mail envelope in the record is difficult to read. USPS tracking information shows that
the document was submitted and accepted on August 25, 2016.
5

20 C.F.R. § 10.5(y).

6

See E.C., Docket No. 16-0413 (issued June 20, 2016).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.4(b) (June 2013).

8

See Ronald D. James, Sr., Docket No. 03-1700 (issued August 27, 2003); Kenneth J. Deerman, 34 ECAB 641
(1983) (the evidence must convince the adjudicator that the conclusion drawn is rational, sound and logical).
9

Supra note 6.

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The Board finds that the medical evidence of record is insufficient to meet appellant’s
burden of proof. In his November 5, 2015 report, Dr. Bostick referred to appellant’s treatment
for hip pain, knee and ankle injuries, and low back pain. He opined that “all of these” are work
injuries, without further explanation. The knee and ankle injuries appear to be a reference to a
different work injury in November 2014, not the 2005 back injury. Dr. Bostick does not discuss
a current diagnosed condition or explain any causal connection to the July 1, 2005 employment
injury.10 There is no proper medical and factual history or any medical rationale to establish that
appellant’s current condition was employment related. The February 17, 2016 report from
Dr. Bostick does not discuss causal relationship with the July 1, 2005 employment injury,
lacking a rationalized medical opinion establishing causal relationship, this report is of limited
probative value.11
On appeal, appellant argues that Dr. Bostick explained there was no gap in her treatment
and she was still in pain. The issue in the case is whether there is probative medical evidence
establishing that appellant continued to have a medical condition causally related to the July 1,
2005 employment injury. The Board has reviewed the medical evidence that was before OWCP
at the time of the March 23, 2016 decision and finds it is insufficient to meet appellant’s burden
of proof for the reasons discussed above.
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.
LEGAL PRECEDENT -- ISSUE 2
5 U.S.C. § 8124(b)(1) provides that “a claimant for compensation not satisfied with a
decision of the Secretary ... is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his claim before a representative of the Secretary.”12
20 C.F.R. § 10.615 of the federal regulations implementing this section of FECA provides that a
claimant shall be afforded a choice of an oral hearing or a review of the written record.13 The
regulations provide that a request for a hearing or review of the written record must be made
within 30 days, as determined by the postmark or other carrier’s date marking, of the date of the
decision.14
ANALYSIS -- ISSUE 2
In the present case, appellant’s request for a review of the written record was mailed
April 25, 2016. The 30th day following the March 23, 2016 OWCP decision was Friday,
10

See e.g. J.C., Docket No. 15-0765 (issued September 2, 2016) (no opinion on causal relationship).

11

Id.

12

5 U.S.C. § 8124(b)(1).

13

20 C.F.R. § 10.615.

14

Id. at § 10.616(a).

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April 22, 2016. Since the request for a review of the written record was made more than 30 days
after the March 23, 2016 OWCP decision, appellant is not entitled to a review of the written
record as a matter of right.
Although appellant’s request for a review of the written record was untimely, OWCP has
discretionary authority with respect to granting the request and OWCP must exercise such
discretion.15 In this case OWCP advised appellant that the issue could be addressed through the
reconsideration process and the submission of new evidence. This is considered a proper
exercise of OWCP’s discretionary authority.16 There is no evidence of an abuse of discretion in
this case with respect to the denial of request for review of the written record.
CONCLUSION
The Board finds that appellant did not establish a recurrence of a medical condition on or
about December 31, 2015. The Board further finds that OWCP properly denied the request for a
review of the written record.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 28 and March 23, 2016 are affirmed.
Issued: October 11, 2016
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
15

See Cora L. Falcon, 43 ECAB 915 (1992).

16

Id.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
DEPOT, Cherry Point, NC, Employer
__________________________________________

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

Docket No. 13-278
Issued: April 15, 2013

Case Submitted on the Record

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

JURISDICTION
On November 20, 2012 appellant, through his attorney, filed a timely appeal from an
October 24, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his schedule award claim. 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 schedule award
decision.
ISSUE
The issue is whether appellant is entitled to a schedule award for a permanent impairment
of the right or left upper extremity.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 In a decision dated November 4, 2010,
the Board set aside a December 30, 2009 decision denying appellant’s schedule award claim.
The Board remanded the case for OWCP to refer an October 27, 2009 impairment evaluation by
Dr. Martin Fritzhand, an attending Board-certified urologist, to an OWCP medical adviser for
review. The facts and the circumstances as set forth in the prior decision are hereby incorporated
by reference.
On December 15, 2010 Dr. H.P. Hogshead, an OWCP medical adviser, reviewed
Dr. Fritzhand’s October 27, 2009 report and noted that he used the fifth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A.,
Guides) in his impairment rating. He also found that appellant had no diagnostic evidence of
radiculopathy at C6 and advised that Dr. Fritzhand’s opinion was of diminished probative value.
By letter dated February 17, 2011, OWCP requested that Dr. Fritzhand review and
discuss OWCP’s medical adviser’s report. On March 9, 2011 Dr. Fritzhand noted that his
October 27, 2009 examination was unclear as to whether he found a loss of sensation in only the
right upper extremity or in both upper extremities. Citing to The Guides Newsletter, Rating
Spinal Nerve Impairment Using the Sixth Edition (July/August 2009), he found that appellant
had a one percent impairment due to sensory loss of the right upper extremity and a four percent
impairment due to a mild motor deficit bilaterally according to Table 15-14 on page 42.
Dr. Fritzhand concluded that appellant had an impairment of five percent of the right upper
extremity and four percent of the left upper extremity.3 He stated, “However, if we assume that
he actually has diminished sensation in both upper limbs, [appellant] would then have permanent
partial impairments of each upper extremity of five percent.”
On April 6, 2011 Dr. Hogshead reviewed Dr. Fritzhand’s report and stated that The
Guides Newsletter did not contain Table 15-14. He further noted that diagnostic studies did
reveal evidence of radiculopathy. Dr. Hogshead concluded that appellant had no impairment of
either upper extremity.
By decision dated April 27, 2011, OWCP denied appellant’s claim for an increased
schedule award.
On May 5, 2011 counsel requested a telephone hearing before an OWCP hearing
representative. Following the telephone hearing, held on August 11, 2011, appellant submitted
an August 16, 2011 report from Dr. Fritzhand, who related that, contrary to the medical adviser’s
finding, the sixth edition contained Table 15-14 and it was used to calculate impairment ratings
pursuant to The Guides Newsletter. Dr. Fritzhand maintained that appellant’s findings on
2

Docket No. 10-817 (issued November 4, 2010). On November 20, 2003 appellant, then a 50-year-old
machinist, filed an occupational disease claim alleging that he sustained osteoarthritis and bone spurs on his neck
causally related to factors of his federal employment. OWCP accepted the claim for an aggravation of cervical
degenerative disc disease and an aggravation of osteoarthritis of the cervical spine.
3

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5
(January 2010). The Guides Newsletter is included as Exhibit 4.

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examination “revealed diminished muscle strength involving both upper extremities, some
atrophy of the left upper limb and some diminished sensation involving the upper extremities.
These are objective findings illustrative of bilateral C6 radiculopathy. [Appellant’s] allowed
condition has resulted in a C6 nerve root impairment.”
In a decision dated November 10, 2011, an OWCP hearing representative vacated the
April 27, 2011 decision. She found that Dr. Fritzhand’s August 16, 2011 opinion was sufficient
to warrant further development regarding whether appellant had any upper extremity impairment
due to his accepted employment injury.
On December 16, 2011 OWCP referred appellant to Dr. Robert M. Moore, a Boardcertified orthopedic surgeon, for a second-opinion examination. It requested that he determine
whether appellant had residuals of his work injury and the percentage of any impairment of the
upper extremities pursuant to The Guides Newsletter.
In a report dated January 3, 2012, Dr. Moore discussed appellant’s complaints of neck
pain without radiation and some numbness “in the ulnar aspects of both hands.” He diagnosed
cervical degenerative disc disease and opined that appellant had continued residuals of his
degenerative disc disease and osteoarthritis of the cervical spine. On examination Dr. Moore
found grade 5 motor strength of the upper extremities with no atrophy. Regarding the extent of
any permanent impairment of the upper extremities, he stated:
“There is no objective evidence of cervical radiculopathy in [appellant].
Electrodiagnostic testing has demonstrated no evidence of radiculopathy, and
multiple clinical progress notes from 2004 through 2009 by his attending spine
surgeon have described axial neck pain, without radicular pain or objective
physical findings of radiculopathy. [Appellant] today confirms that his pain is in
the neck region, without a radicular pain pattern. In the absence of evidence of
spinal nerve root impairment, the percentage of impairment of the right and left
upper extremities is zero percent.”
On January 6, 2012 OWCP requested that Dr. Fritzhand review Dr. Moore’s report and
address whether he agreed with the findings. By letter dated February 7, 2012, Dr. Fritzhand
discussed his physical examination of appellant on October 27, 2009 and his responses to
OWCP’s request for additional information. He stated:
“Dr. Moore examined [appellant] on January 3, 2012. I examined [him] on
October 27, 2009. My impairment rating based on the [s]ixth [e]dition and The
Guides Newsletter July/August 2009 is included in my March 9, 2011 letter to
you and is based on my October 27, 2009 examination. Dr. Moore is basing all
statements on a physical examination performed last month. I performed my
history and physical examination on [appellant] when requested in a timely
fashion on October 27, 2009. I am requesting that Dr. Moore review my report
and base his impairment rating on my examination of that date.”
On March 7, 2012 an OWCP medical adviser concurred with Dr. Moore’s finding that
appellant had no impairment of either upper extremity.

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By decision dated April 3, 2012, OWCP denied appellant’s claim for an increased
schedule award. On April 12, 2012 counsel requested a telephone hearing.
In a report dated May 31, 2012, Dr. Scot E. Reeg, a Board-certified orthopedic surgeon,
discussed appellant’s complaints of continuing pain in his neck and upper back. He stated, “I am
not entirely sure why he is here, but at this point he will again be discharged from my care.
[Appellant] was given a three percent rating years ago which I still stand by.”
At the telephone hearing, held on August 8, 2012, counsel requested that the case be
remanded for further diagnostic studies to determine whether he had radiculopathy. He noted
that the medical adviser mistakenly indicated that the A.M.A., Guides did not contain a
Table 15-14.
In a report dated August 23, 2012, Dr. Ashraf F. Guirgues, a Board-certified orthopedic
surgeon, diagnosed back and neck pain, paravertebral muscle spasms, cervical sprain and
osteoarthritis, degenerative joint disease, spondylosis and degenerative disc disease of the
cervical spine. He referred appellant for diagnostic studies.
A cervical magnetic resonance imaging scan study performed on September 22, 2012,
revealed mild-to-moderate degenerative disc disease, borderline central canal stenosis at C5-6
and mild-to-moderate neural foraminal stenosis at the lower levels. An electromyogram (EMG)
and nerve conduction study (NCS) of the upper extremities dated September 26, 2012 was
interpreted as normal. On October 2, 2012 Dr. Guirgues noted that an EMG and NCS was
normal and did not show radiculitis. He recommended physical therapy.
In a decision dated October 24, 2012, an OWCP hearing representative affirmed the
April 3, 2012 decision.
LEGAL PRECEDENT
FECA4 provides compensation for both disability and physical impairment. “Disability”
means the incapacity of an employee, because of an employment injury, to earn the wages the
employee was receiving at the time of injury.5 In such cases, FECA compensates an employee
for loss of wage-earning capacity. In cases of physical impairment, FECA, under section
8107(a), compensates an employee, pursuant to a compensation schedule, for the permanent loss
of use of certain specified members of the body, regardless of the employee’s ability to earn
wages.6
A claimant seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence, it is thus the claimant’s burden to establish that he or she sustained a permanent
impairment of a scheduled member or function as a result of his or her employment injury
4

5 U.S.C. § 8101 et seq.

5

Lyle E. Dayberry, 49 ECAB 369 (1998).

6

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

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entitling him or her to a schedule award.7 The evidence generally required to establish causal
relationship is rationalized medical opinion evidence. The claimant must submit a rationalized
medical opinion that supports a causal connection between his or her current condition and the
employment injury.8 The medical opinion must be based on a complete factual and medical
background with an accurate history of the claimant’s employment injury and must explain from
a medical perspective how the current condition is related to the injury.9
The schedule award provision of FECA,10 and its implementing federal regulations,11 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.12 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.13
ANALYSIS
OWCP accepted that appellant sustained an aggravation of cervical degenerative disc
disease and an aggravation of cervical osteoarthritis causally related to factors of his federal
employment. Appellant submitted an impairment evaluation dated October 27, 2009 from
Dr. Fritzhand in support of his schedule award claim. Using the fifth edition of the A.M.A.,
Guides, Dr. Fritzhand opined that appellant had 14 percent permanent impairment due to sensory
and motor loss of the upper extremities as a result of radiculopathy at C6. On March 9, 2011 he
applied the sixth edition of the A.M.A., Guides to his findings from the October 27, 2009
examination. Citing The Guides Newsletter, Dr. Fritzhand found that appellant had a five
percent right upper extremity impairment for sensory and motor loss and a four percent left
upper extremity impairment for motor loss.
An OWCP medical adviser disagreed with Dr. Fritzhand’s impairment rating, noting that
diagnostic studies revealed no evidence of radiculopathy. In a report dated August 16, 2011,
Dr. Fritzhand asserted that his clinical findings of loss of strength and sensation of the upper
extremities with atrophy on the left side constituted objective findings of radiculopathy at C6
bilaterally.
7

See Veronica Williams, 56 ECAB 367 (2005); Annette M. Dent, 44 ECAB 403 (1993).

8

Manuel Gill, 52 ECAB 282 (2001).

9

Yvonne R. McGinnis, 50 ECAB 272 (1999).

10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

12

20 C.F.R. § 10.404(a).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).

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OWCP referred appellant to Dr. Moore for a second-opinion examination to determine
whether he had a permanent impairment of the upper extremities. The Board finds that
Dr. Moore’s opinion constitutes the weight of the evidence and establishes that appellant had no
impairment of either upper extremity. In a report dated January 3, 2012, Dr. Moore noted that he
complained of neck pain without radiculopathy into the extremities. On examination he found
no loss of strength or atrophy of the extremities. Dr. Moore determined that diagnostic studies
failed to show radiculopathy and that progress reports from 2004 through 2009 failed to describe
any subjective complaints or objective findings indicative of radiculopathy. He further noted
that appellant did not complain of radiculopathy on examination. Dr. Moore concluded that he
had no impairment of the right or left upper extremities as he had no evidence of an impairment
of a spinal nerve root. He provided rationale for his opinion by explaining that, based on the
diagnostic studies, a review of progress reports and his examination, appellant did not have
cervical radiculopathy and had thus no impairment of an extremity. As Dr. Moore’s opinion is
detailed, well rationalized and based on a complete and accurate medical and factual history, the
Board finds that it represents the weight of the evidence and establishes that appellant is not
entitled to a schedule award.14
The remaining evidence is insufficient to establish that appellant sustained a permanent
impairment of the upper extremities. On February 7, 2012 Dr. Fritzhand noted that Dr. Moore
based his findings on a January 2012 examination while he based his rating on an October 27,
2009 examination. As Dr. Moore’s report is more recent by over two years, it is more probative
as to appellant’s current condition and extent of any impairment.
On May 31, 2012 Dr. Reeg related that he had previously given appellant a rating for
three percent impairment. As he did not explain the protocols used in reaching his conclusion,
his opinion is insufficient to establish permanent impairment.15
On August 23, 2012 Dr. Guirgues referred appellant for diagnostic studies. On
October 2, 2012 he noted that an EMG showed no radiculopathy. Dr. Guirgues did not provide
any impairment evaluation and thus his opinion is not probative on the pertinent issues of the
extent of any upper extremity impairment.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he is entitled to a schedule award
for a permanent impairment of the right or left upper extremity.

14

See J.L., Docket No. 09-1726 (issued June 8, 2010).

15

See Carl J. Cleary, 57 ECAB 563 (2006) (an opinion which is not based upon the standards adopted by the
Board as appropriate for evaluating schedule losses is of little probative value in determining the extent of
permanent impairment.

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ORDER
IT IS HEREBY ORDERED THAT the October 24, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 15, 2013
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
U.S. POSTAL SERVICE, KENSINGTON
STATION, Detroit, MI, Employer
__________________________________________

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Appearances:
Steve Burt, for the appellant
Office of Solicitor, for the Director

Docket No. 07-260
Issued: March 26, 2007

Case Submitted on the Record

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

JURISDICTION
On November 1, 2006 appellant filed a timely appeal of an August 28, 2006 decision of
the Office of Workers’ Compensation Programs which denied merit review. Because more than
one year has elapsed between the most recent merit decision of the Office dated September 16,
2005 and the filing of this appeal, pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board
lacks jurisdiction to review the merits of appellant’s claim.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for merit
review pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On July 20, 2005 appellant, then a 41-year-old letter carrier, filed a Form CA-2,
occupational disease claim, alleging that the continued walking, standing and climbing at work
caused pain in her feet and knees and Morton’s neuroma. She did not stop work. In a July 15,
2005 report, Dr. Luke Elliott, a Board-certified family physician, diagnosed Morton’s neuroma

of the feet caused by appellant being on her feet for extended periods of time. He stated, “since
[appellant] is at work on her feet for extended periods of time, these Morton’s neuroma may be
work related.”
The employing establishment controverted the claim and submitted a form describing the
hours worked by appellant from July 10, 2004 to June 25, 2005 which averaged 27.39 hours a
week. By letter dated July 28, 2005, the Office informed appellant of the evidence needed to
support her claim. Appellant was asked specific questions regarding her job duties and to
provide a comprehensive medical report with medical reasons for the cause of the claimed
condition. In an August 4, 2005 report, Dr. Elliott advised that he first saw her on May 17, 2005
with complaints of forefoot pain and signs of tenderness in the two and three web spaces. He
diagnosed Morton’s neuroma, recommended medication and restricted overtime at work.
Dr. Elliott noted that appellant returned on June 29, 2005 with continued pain. He recommended
physical therapy. She returned on August 1 and 4, 2005 with complaints of heel and midfoot
pain of both feet, left much greater than right. Examination on August 4, 2005 demonstrated
heel tenderness. Dr. Elliott opined, “now I believe [appellant] has plantar fasciitis that is not
responding to conservative therapy” and recommended referral to an orthopedic surgeon. In an
attached disability slip, he recommended that she stay off work from August 1 to 5, 2005 and
then return to half days.
By decision dated September 16, 2005, the Office denied the claim on the grounds that
the medical evidence was insufficient to establish that the claimed foot condition was caused by
employment factors.
On July 11, 2006 appellant requested reconsideration and submitted a statement
describing the job duties that she believed caused her condition. On July 28, 2006, in answer to
specific Office questions, Dr. Elliott stated that appellant’s diagnosis was plantar fasciitis. He
stated: “I still feel with [appellant’s] walking type of employment, her plantar fasciitis is related
to this.” He further stated that on May 13, 2005; “I thought she had Morton’s neuroma but this
seemed not to be the case,” reiterating that [appellant’s] main problem was plantar fasciitis.
Dr. Elliott concluded that “[appellant] appears at this time to have a permanent condition.”
In an August 28, 2006 decision, the Office denied appellant’s request for reconsideration.
The Office found that Dr. Elliott’s July 28, 2006 report was irrelevant and of insufficient
evidentiary value to warrant further merit review.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act1 vests the Office with
discretionary authority to determine whether it will review an award for or against compensation,
either under its own authority or on application by a claimant.2 Section 10.608(a) of the Code of
Federal Regulations provides that a timely request for reconsideration may be granted if the
Office determines that the employee has presented evidence and/or argument that meets at least
1

5 U.S.C. §§ 8101-8193.

2

5 U.S.C. § 8128(a).

2

one of the standards described in section 10.606(b)(2).3 This section provides that the
application for reconsideration must be submitted in writing and set forth arguments and contain
evidence that either: (1) shows that the Office erroneously applied or interpreted a specific point
of law; or (2) advances a relevant legal argument not previously considered by the Office; or
(3) constitutes relevant and pertinent new evidence not previously considered by the Office.4
Section 10.608(b) provides that when a request for reconsideration is timely but fails to meet at
least one of these three requirements, the Office will deny the application for reconsideration
without reopening the case for a review on the merits.5
ANALYSIS
The only decision before the Board in this appeal is the decision of the Office dated
August 28, 2006 denying appellant’s application for review. Because more than one year had
elapsed between the date of the Office’s most recent merit decision dated September 16, 2005
and the filing of her appeal with the Board on November 1, 2006, the Board lacks jurisdiction to
review the merits of her claim.6
With her July 11, 2006 reconsideration request, appellant merely described the job duties
that she felt caused her condition. She thus, did not allege or demonstrate that the Office
erroneously applied or interpreted a specific point of law or advance a relevant legal argument
not previously considered by the Office. Consequently, appellant was not entitled to a review of
the merits of her claim based on the first and second above-noted requirements under section
10.606(b)(2).7
With respect to the third above-noted requirement under section 10.606(b)(2), while
appellant submitted Dr. Elliott’s comments dated July 28, 2006, he merely reiterated findings
and conclusions described in his previous reports that were reviewed by the Office in its
September 16, 2005 decision. Evidence that repeats or duplicates evidence already in the case
record has no evidentiary value and does not constitute a basis for reopening a case.8
Dr. Elliott’s July 28, 2006 comments are insufficient to warrant merit review. As appellant did
not submit relevant and pertinent new evidence not previously considered by the Office, the
Office properly denied her reconsideration request.9

3

20 C.F.R. § 10.608(a).

4

20 C.F.R. § 10.608(b)(1) and (2).

5

20 C.F.R. § 10.608(b).

6

20 C.F.R. § 501.3(d)(2).

7

20 C.F.R. § 10.606(b)(2).

8

Freddie Mosley, 54 ECAB 255 (2002).

9

Id.

3

CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
consideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 28, 2006 be affirmed.
Issued: March 26, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
U.S. POSTAL SERVICE, WESTPORT POST
OFFICE, Westport, CT, Employer
__________________________________________

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Appearances:
Daniel B. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0636
Issued: October 8, 2020

Case Submitted on the Record

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

JURISDICTION
On January 28, 2019 appellant, through counsel, filed a timely appeal from an August 3,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the
Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

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

Appellant timely requested oral argument before the Board. By order dated July 15, 2020, the Board exercised
its discretion and denied the request as the matter could be adequately addressed based on a review of the case record.
Order Denying Request for Oral Argument, Docket No. 19-0636 (issued July 15, 2020).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a bilateral knee
condition causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On May 16, 2017 appellant, then a 57-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained bilateral knee osteoarthritis as a result of factors of
her federal employment. She indicated that she first became aware of her condition and its
relationship to her federal employment on October 19, 2016. Appellant explained that she was
unaware of her condition until her medical examination by Dr. Michael A. Luchini, an attending
Board-certified orthopedic surgeon, on October 19, 2016. She did not stop work.
In an accompanying statement dated October 1, 2016, appellant reported that she began
working for the employing establishment in May 1986. She described the various positions she
had held and the requisite employment duties, which included standing, lifting, carrying, bending,
stooping, twisting, pushing, pulling, squatting, walking, pivoting, entering and exiting a postal
vehicle, and ascending and descending stairs.
In support of her claim, appellant submitted an April 22, 2011 medical report, Dr. Henry A.
Backe, an attending Board-certified orthopedic surgeon, noted a history that appellant had
osteoarthritis of both knees and that she was a mail carrier who had a truck route and prior to that
a walking route. Dr. Backe discussed findings on physical and x-ray examination and diagnosed
bilateral knee osteoarthritis.
In a June 3, 2011 report, Dr. Patrick W. Kwok, a Board-certified orthopedic surgeon, noted
that appellant had no new falls or injuries. He also noted that she was a postal employee and was
on her feet most of the day. Dr. Kwok reported findings on physical examination and reviewed
the results of bilateral knee x-rays performed in April 2011. He provided an assessment of bilateral
knee osteoarthritis.
In a subsequent report dated September 24, 2012, Dr. Backe indicated that appellant’s
knees were acting up again and that she denied any injury in the interval period. He provided
physical examination findings and reviewed bilateral knee x-ray results. Dr. Backe diagnosed
bilateral knee degenerative joint disease.
Dr. Kwok, in a report dated January 23, 2014, noted that appellant’s knees had been acting
up over the past several weeks without an acute mechanism of injury. He reported findings on
physical and x-ray examination. Dr. Kowk diagnosed bilateral knee degenerative joint disease.
Dr. Backe, in a September 5, 2014 report, indicated that appellant was three-months status
post-bilateral total knee replacement and she was working light duty.4 He discussed findings on
physical and x-ray examination. Dr. Backe diagnosed bilateral total knee replacement. He
4
On May 28, 2014 appellant underwent bilateral total knee replacement surgery which was performed by
Dr. Backe.

2

provided an impression that appellant was doing excellent post-surgery. In an April 6, 2015 report,
Dr. Backe noted that over the prior two weeks appellant had noticed anterior knee pain, sharp in
nature without acute mechanism of injury. He again conducted a physical examination and
reported bilateral knee x-ray results. Dr. Backe diagnosed status post bilateral total knee
replacement and left patellar tendinitis.
In an October 19, 2016 letter, Dr. Luchini reviewed appellant’s medical records and
statement of her work duties. He noted a history that appellant began having knee pain when she
was approximately 51 years old and that by April 22, 2011, appellant had developed end-stage
patellofemoral arthritis and medial narrowing and degenerative changes in the left knee and early
degenerative changes in the right knee. Dr. Luchini conducted a physical examination and
provided an impression that she had developed bilateral knee degenerative arthritis secondary to
repeated heavy lifting, carrying heavy loads, climbing up and down steps, and getting in and out
of trucks particularly with heavy loads. He opined that, based on appellant’s history of extensive
work activities, her activities as a letter carrier indeed led to the development of progressive
aggravation and acceleration of her bilateral knee arthritis resulting in bilateral total knee
replacement. Dr. Luchini explained that her statement indicated that over the years she repeatedly
walked miles in her job on a day-to-day basis carrying various amounts of weight resulting in what
was known as “high impact loading activities.” He noted that medical research established that
this type of activity resulted in a biological and chemical process which damaged and changed the
cartilage in the loaded joints leading to inﬂammation. The internal inflammation triggered
chemical responses and accelerated the loss of cartilage in the affected areas. Over time, the
cartilage became less resilient and more susceptible to degradation which permanently accelerated
and aggravated the arthritic process. Dr. Luchini maintained that appellant’s medical record
reflected that this degradation was a continued process during the time she was engaged in the
activities of walking with weights up and down steps, climbing in and out of trucks, and bending
and stooping on a repeated basis. In addition, she had fallen multiple times on her knees through
the course of her work. Dr. Luchini noted that it was also accepted that multiple contusions to the
articular cartilage caused necrosis to the articular cartilage and subsequent degenerative arthritis.
Based on his professional background, he indicated that he was very familiar with the causal
relationship in appellant’s development of progressive arthritis. Dr. Luchini noted that this was
also a matter of common sense to anyone in the musculoskeletal field who had studied articular
cartilage anatomy and pathology. Additionally, it was well known that arthroscopic surgeries with
removal of meniscal tissue in spite of it giving some temporary relief and correction of the locking
and mechanical pain, led to progression of articular cartilage destruction.
In an undated statement and letters dated May 23, 2017, the employing establishment
controverted appellant’s claim contending that she grossly over-exaggerated the performance
estimate of her work duties and never reported an accident or injury due to slips, trips, or falls.
OWCP, in a development letter dated July 7, 2017, informed appellant that the evidence
submitted was insufficient to establish her claim. It noted that she had not submitted evidence
sufficient to establish that she actually experienced the employment factors alleged to have caused
her injury or a medical condition related to the claimed employment activity. OWCP advised
appellant of the type of medical and factual evidence necessary to establish her claim. It attached
a questionnaire requesting that she provide all medical records for the treatment of both knees,
including, but not limited to the medical records before June 8, 2011. OWCP also requested that

3

appellant submit a narrative medical report from her physician explaining how factors of her
federal employment caused, contributed to, or aggravated her medical condition. In a separate
development letter of even date, it requested that the employing establishment provide a copy of
her position descriptions and physical requirements of her positions. OWCP afforded both parties
30 days to respond.
In an August 2, 2017 response to OWCP’s questionnaire, appellant reported that she had
not engaged in any walking, jogging, running, hobbies, other employment, or volunteer or
recreational activities outside of her federal employment.
In an August 8, 2017 memorandum, OWCP’s Regional Director indicated that, in
accordance with Chapter 2.800.9 of the FECA Procedure Manual,5 the claim for acceleration of
osteoarthritis was being converted into an extended occupational disease claim as it required full
scale development as to the nature of exposure, or the relationship of the condition to the exposure
was not obvious. He noted that the claim was being converted to allow for tracking as an extended
occupational disease claim as the medical evidence of record did not meet all of OWCP’s
requirements for adjudication, but established a prima facie case. The Regional Director instructed
the claims examiner to prepare a statement of accepted facts (SOAF) and questions for the
physician. The instructions provided that the claims examiner could then write directly to the
attending physician (if of the appropriate specialty), or refer appellant for examination by a
qualified specialist.
Appellant subsequently submitted medical evidence dated from April 22, 2011 to
August 20, 2014 which addressed her bilateral knee osteoarthritis and medical treatment.
OWCP, by decision dated November 6, 2017, denied appellant’s claim, finding that the
medical evidence of record was insufficient to establish that her bilateral knee osteoarthritis was
causally related to the accepted factors of her federal employment. It noted that it had requested
that she provide copies of all medical records prior to June 2011 for treatment received of her
bilateral knee condition, specifically noting the April 22, 2011, September 24, 2012, and
January 23, 2014 x-ray reports. However, appellant failed to provide these medical records as
requested. Additionally, OWCP found that Dr. Luchini’s October 19, 2016 report was not based
on a complete factual and medical background. It concluded, therefore, that the requirements had
not been met to establish an injury as defined by FECA.
On November 15, 2017 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
In a May 17, 2018 letter, counsel requested a review of the written record in lieu of an oral
hearing and submitted additional medical evidence that predated her occupational disease claim
and addressed her bilateral knee osteoarthritis.

5
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.9
(June 2011).

4

In a May 2, 2018 statement, appellant further responded to OWCP’s development
questionnaire. She reported that she began treating her knee condition in 2011. Appellant noted
Dr. Backe’s April 22, 2011 bilateral knee x-ray results and his diagnosis of bilateral knee
osteoarthritis. She acknowledged that she had numerous slips and trips that were not documented
as not every injury was reported or required medical treatment beyond over-the-counter pain
medication, ice, heat, and rest. Appellant maintained that, if she recorded every minor stumble, it
would detract from the meritorious claim that she had ﬁled for her bilateral knee condition.
Appellant submitted a May 17, 2018 letter by Dr Luchini who noted that appellant began
working in 1986 and that she had been exposed to more than 30 years of impact loading activities
while performing her job duties at the employing establishment. Dr. Luchini indicated that her
statement revealed that she walked more than 19,000 miles over her career. He understood that
most, if not all of this walking involved carrying some type of load in addition to her normal body
weight. Dr. Luchini noted that OWCP’s deﬁnition of causation for acceleration of arthritis
provided an example of persons who engage in substantial walking over a 15-year career. He
reported that appellant had doubled that number. Dr. Luchini opined that the work activities she
performed over 30 years at the employing establishment caused, contributed to, aggravated, and
accelerated her bilateral knee osteoarthritis resulting in her total bilateral knee replacement. He
again noted that climbing stairs, particularly, and also carrying excess amounts of weight,
accelerated wear and tear on the particular cartilage. Dr. Luchini reiterated that this activity was
known as “high impact loading activities” and that medical research supported his opinion on
causal relationship.
Appellant also submitted an October 9, 2014 report from a physical therapist addressing
the treatment of her bilateral knee condition.
By decision dated August 3, 2018, an OWCP hearing representative affirmed the
November 6, 2017 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
period of FECA,7 that an injury was sustained while in the performance of duty as alleged, and
that any disability or specific condition for which compensation is claimed is causally related to

6

Supra note 3.

7
S.C., Docket No. 18-1242 (issued March 13, 2019); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

5

the employment injury.8 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.9
In an occupational disease claim, appellant’s burden requires submission of the following:
(1) a factual statement identifying employment factors alleged to have caused or contributed to the
presence or occurrence of the disease or condition; (2) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; and (3) medical
evidence establishing that the diagnosed condition is causally related to the employment factors
identified by the employee.10
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.11 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.12
In a case where a preexisting condition involving the same part of the body is present and
the issue of causal relationship therefore involves aggravation, acceleration, or precipitation, the
physician must provide a rationalized medical opinion that differentiates between the effects of the
work-related injury or disease and the preexisting condition.13
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility to see that justice is done.14 The nonadversarial policy of proceedings under FECA
is reflected in OWCP’s regulations at section 10.121.15
ANALYSIS
The Board finds that the case is not in posture for decision.

8

T.H., Docket No. 18-1736 (issued March 13, 2019); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
9

T.E., Docket No. 18-1595 (issued March 13, 2019); Delores C. Ellyett, 41 ECAB 992 (1990).

10

S.C., supra note 7; R.H., 59 ECAB 382 (2008).

11

A.M., Docket No. 18-1748 (issued April 24, 2019); T.H., 59 ECAB 388 (2008).

12

M.V., Docket No. 18-0884 (issued December 28, 2018); I.J., 59 ECAB 408 (2008).

13

See A.T., Docket No. 19-1972 (issued June 25, 2020); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3e (January 2013).
14

J.M., Docket No. 18-1543 (issued December 28, 2015); Jimmy A. Hammons, 51 ECAB 219 (1999).

15

20 C.F.R. § 10.121.

6

Following appellant’s response to OWCP’s questionnaire its Regional Director, in an
August 8, 2017 memorandum, cited to Chapter 2.800.9 of the Federal (FECA) Procedure Manual
in providing guidance to the district office to further develop appellant’s claim.16 This Chapter
provides in pertinent part:
“9. Extended Development. Some initial claims require full-scale medical
development because the nature of exposure is in question, the diagnosis is not
clearly identified, or the relationship of the condition to the exposure is not
obvious.”
***
“If the report submitted by the claimant does not meet all of OWCP’s requirements
for adjudication but establishes a prima facie case, the [claims examiner] CE should
prepare a detailed SOAF and questions for the physician. The CE then can write
directly to the attending physician (if of the appropriate specialty) as outlined in
paragraph 8(c) of this chapter or refer the claimant for examination by a qualified
specialist.”
The Regional Director indicated that appellant’s claim was being converted to an extended
occupational disease claim as although the medical evidence of record did not meet the
requirements for adjudication, it established a prima facie case. He directed the claims examiner
to prepare a SOAF and a list of questions and either directly contact the attending physician, if a
specialist in the appropriate field of medicine, or to refer appellant for examination by a qualified
specialist. However, OWCP did not conduct any further development as instructed by the
Regional Director and denied appellant’s claim based on the status of the current record.
As noted above, it is well established that, proceedings under FECA are not adversarial in
nature, and that while appellant has the burden of proof to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. OWCP has an obligation to see
that justice is done.17
Once OWCP undertook development of the medical evidence, i.e., the intervention of the
Regional Director directing OWCP to develop the medical evidence, it had the responsibility to
do so in a manner that would resolve the relevant issues in the case.18 The Board finds that OWCP
did not resolve the relevant issues as it denied appellant’s claim without conducting any further
medical development. The case will therefore be remanded to OWCP for referral to an appropriate
medical specialist, in keeping with the Regional Director’s directive and Chapter 2.800.9 of its
procedures, for an examination and opinion on the issue of whether appellant’s preexisting
bilateral knee osteoarthritis was aggravated by the accepted factors of her federal employment and
16

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.9
(June 2011).
17

S.C., Docket No. 19-0920 (issued September 25, 2019).

18

J.M., supra note 14; P.B., Docket No. 09-2222 (issued August 10, 2010); Melvin James, 55 ECAB 406 (2004).

7

whether her May 28, 2014 bilateral total knee replacement surgery was due to an aggravation of
an employment-related condition. After this and other such further development as OWCP deems
necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 3, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: October 8, 2020
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.S., Appellant
and
OFFICE OF PERSONNEL MANAGEMENT,
FEDERAL INVESTIGATIVE SERVICES,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 15-1536
Issued: April 19, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 7, 2015 appellant, through counsel, filed a timely appeal from a March 24, 2015
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant has more than two percent permanent impairment of her
left lower extremity.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 12, 2011 appellant, a 50-year-old special agent, sustained a traumatic injury in
the performance of duty when she twisted her ankle on uneven pavement and fell to the ground.
OWCP accepted her claim for left ankle sprain and authorized surgery.
Appellant underwent surgery to repair a torn peroneal brevis tendon and a torn peroneal
retinaculum. On October 21, 2013 OWCP issued appellant a schedule award for one percent
permanent impairment of her left lower extremity.
Dr. Jacob E. Tauber, a Board-certified orthopedic surgeon, evaluated appellant on
January 14, 2014. He noted that she walked with a slight limp. Dr. Tauber also noted a healed
scar over the lateral aspect of appellant’s left ankle with tenderness. He noted pain with motion.
Appellant had 1.25 inches of atrophy at the left calf compared to the right. X-rays were negative.
Dr. Tauber opined that appellant had five percent permanent impairment of her left lower
extremity due to weakness, according to the American Medical Association, Guides to the
Evaluation of Permanent Impairment 501 (6th ed. 2009) (Table 16-2, Foot and Ankle Regional
Grid). He stated, “Please note that the patient does not have a motion deficit but does have
weakness. This patient has atrophy of the calf.”
An OWCP medical adviser reviewed Dr. Tauber’s report and noted that, although
appellant had atrophy, Dr. Tauber had not documented muscle weakness or any instability. In
the absence of motion deficit or discrete muscle weakness, he explained that appellant would not
be entitled to a rating of five percent under Table 16-2, page 501 of the A.M.A., Guides. The
medical adviser found that appellant was entitled to an additional one percent rating due to her
antalgic gait, which was not present when she received her first schedule award. He therefore
concluded that appellant had a two percent permanent impairment of her left lower extremity.
On June 10, 2014 OWCP issued a schedule award for a two percent impairment of
appellant’s left lower extremity, representing an additional one percent above the schedule award
previously paid.
By decision dated March 24, 2015, an OWCP hearing representative affirmed the
additional schedule award. She noted that Dr. Tauber had not reported any muscle strength
testing, and added that objective findings are given greater weight than subjective findings. The
hearing representative found that the opinion of OWCP’s medical adviser constituted the weight
of the medical evidence.
LEGAL PRECEDENT
The schedule award provision of FECA2 and the implementing regulations3 set forth the
number of weeks of compensation payable for permanent impairment from loss or loss of use of
scheduled members or functions of the body. FECA, however, does not specify the manner in

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

2

which the percentage of loss shall be determined. The method used in making such a
determination is a matter that rests within the sound discretion of OWCP.4
For consistent results and to ensure equal justice under the law to all claimants, good
administrative practice necessitates the use of a single set of tables so that there may be uniform
standards applicable to all claimants. OWCP has adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.5 As of May 1, 2009, the sixth edition of the A.M.A.,
Guides is used to calculate schedule awards.6
ANALYSIS
Diagnosis-based impairment is the primary method of evaluating the lower extremity.
Impairment is determined first by identifying the relevant diagnosis, then by selecting the class
of impairment: no objective problem, mild problem, moderate problem, severe problem, or very
severe problem approaching total function loss. This will identify the default impairment rating,
which can then be adjusted slightly up or down using functional history, physical examination,
and clinical studies grade modifiers.7
OWCP accepted appellant’s claim for left ankle sprain and authorized surgery to repair a
torn peroneal brevis tendon and a torn peroneal retinaculum. The A.M.A., Guides explains that
in most cases only one diagnosis in a region will be appropriate. If a patient has two significant
diagnoses, the examiner should use the diagnosis with the highest impairment rating in that
region that is causally related for the impairment calculation.8
Appellant’s torn peroneal retinaculum would be rated as a ligament injury under Table
16-2, page 502 of the A.M.A., Guides.9 But such a rating requires at least some degree of
clinical instability or ligamentous laxity, and Dr. Tauber, the evaluating orthopedic surgeon,
reported neither. As there is no basis for rating impairment for the torn peroneal retinaculum,
appellant’s impairment should be rated for the accepted left ankle sprain, or more specifically,
her torn peroneal brevis tendon.
Muscle and tendon injuries are rated under Table 16-2, page 501 of the A.M.A., Guides.10
The Foot and Ankle Regional Grid has a special entry for history of ruptured tendon specifically
involving the peroneal tendon. As Dr. Tauber did not report flexible or fixed deformity and loss
4

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

5

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

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6a (January 2010).
7

A.M.A., Guides 497.

8

Id.

9

Id. at 502.

10

Id. at 501.

3

of specific tendon function, appellant’s impairment falls under the class 1 or mild problem
category. He confirmed this with his impairment rating of five percent.
There are three levels of class 1 impairments, and appellant’s placement depends on
whether she merely had palpatory or radiographic findings (default impairment value of one
percent), mild motion deficits, (default impairment value of five percent) or moderate motion
deficits and/or significant weakness (default impairment value of 10 percent).11 Dr. Tauber
noted a healed scar over the lateral aspect of her left ankle with tenderness, which is a palpatory
finding. He made clear that appellant had no motion deficits, but he added that she did have
weakness.
As OWCP noted, Dr. Tauber did not document appellant’s weakness. He gave no
indication whether or how he evaluated it. Furthermore, for purposes of placing appellant’s
impairment in the regional grid, Dr. Tauber did not explicitly find that the weakness was
significant. OWCP therefore correctly discounted the finding and placed appellant in the class 1
category of palpatory findings, with a default impairment value of one percent.
Dr. Tauber noted that appellant walked with a slight limp. As this was absent from her
earlier schedule award evaluation, OWCP’s medical adviser adjusted the default impairment
value to two percent based on functional history. This is not supported under Table 16-6,
page 516.12 A slight limp, by itself, is regarded as a mild gait derangement, something that does
not warrant an increase in the default impairment value. To justify an increase, there must be
evidence of a moderate gait derangement, such as the routine use of a cane or crutch for
ambulatory stability. Dr. Tauber made no mention of a cane or crutch, nor did he otherwise
explain how appellant’s gait derangement satisfied the criteria of a class 2 moderate problem.
Under the circumstances, OWCP’s medical adviser erred in adjusting the default
impairment value to two percent based on functional history. Nonetheless, it is clear that
appellant does not have more than two percent permanent impairment of her left lower
extremity, which is what OWCP awarded. On that basis, the Board will affirm OWCP’s
March 24, 2015 decision.
CONCLUSION
The Board finds that appellant has no more than two percent permanent impairment of
her left lower extremity.

11

Id.

12

Id. at 516.

4

ORDER
IT IS HEREBY ORDERED THAT the March 24, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 19, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.L., Appellant
and
DEPARTMENT OF LABOR, OCCUPATIONAL
SAFETY & HEALTH ADMINISTRATION,
Atlanta, GA, Employer
__________________________________________

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

Docket No. 19-1985
Issued: May 12, 2020

Case Submitted on the Record

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

JURISDICTION
On September 30, 2019 appellant, through counsel, filed a timely appeal from an
August 15, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish that a traumatic
injury occurred in the performance of duty on April 5, 2017, as alleged.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
On April 10, 2017 appellant, then a 56-year-old safety and health clerk, filed a traumatic
injury claim (Form CA-1) alleging that, on April 5, 2017, she sustained injuries to her lower back,
groin, right leg, ankle, knee, and buttocks when she slipped and fell on wet concrete while entering
the employing establishment’s parking garage in the performance of duty. She noted that the
injury occurred at approximately 4:33 p.m. when she was leaving work for the day. Appellant
stopped work on April 7, 2017. On the reverse side of the claim form, the employing establishment
noted that appellant’s regular work hours were from 8:00 a.m. to 4:30 p.m. It contended that
appellant was not injured in the performance of duty as the parking garage was not government
property as the parking garage was “not agency owned, maintained, or controlled.”
By development letter dated April 21, 2017, OWCP informed appellant that the evidence
submitted was insufficient to establish her claim. It specifically noted that the evidence indicated
that she was injured off the premises of her employing establishment and requested that she
respond to the attached factual questionnaire in order to determine whether the alleged injury
occurred while in the performance of duty. OWCP also advised appellant of the type of medical
evidence needed to establish her claim. In a separate letter of even date, it requested that the
employing establishment answer a series of questions including whether the alleged injury
occurred on employing establishment premises and whether the parking facilities were owned,
controlled, or managed by the employing establishment. Both parties were afforded 30 days to
submit the requested information.
On May 8, 2017 OWCP received the employing establishment’s response to its April 21,
2017 development letter. The employing establishment contended that appellant was not injured
in the employing establishment’s parking garage, rather she was injured in a commercial garage.
It asserted that it did not own, control, or manage the parking facility where appellant was injured.
Also, the employing establishment did not require employees to park in that garage, nor did it
assign parking spaces in the garage or require employees to pay for parking there. It further
indicated that the public was permitted to use that garage and that it was free of charge to park in
the garage.
OWCP also received a picture of a commercial building with the parking structure and the
area surrounding it.

3

Docket No. 18-0812 (issued February 22, 2019).

2

On May 15, 2017 appellant completed the factual development questionnaire, reporting
that the injury occurred in the parking facility of the building where the employing establishment
leased office space. She described that the facility was an “extension” of the premises as it was
the designated place to park for that commercial building. Appellant reported that the parking
garage was owned by CMK Property Services, LLC. She also replied that she was not required to
park in this garage and noted that she did not pay for parking.
Appellant also submitted additional medical evidence, including reports dated May 2
and 9, 2017 by Dr. Louise Sheffield, Board-certified in preventive and occupational medicine, and
reports dated April 12 to May 11, 2017 by Dr. Savitha Elam-Kootil, a Board-certified internist.
By decision dated May 26, 2017, OWCP denied appellant’s claim. It accepted that the
April 5, 2017 incident occurred as alleged and that she sustained diagnosed medical conditions,
but denied her claim, finding that the claimed April 5, 2017 incident did not occur in the
performance of duty, as alleged.
On June 7, 2017 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review, which was held on
November 17, 2017.
OWCP also received additional medical evidence, including reports by Dr. Sheffield dated
May 16 to 30, 2017.
By decision dated January 31, 2018, an OWCP hearing representative affirmed the
May 26, 2017 decision. She determined that the evidence of record established that the alleged
April 5, 2017 injury did not occur in the performance of duty as the parking garage where the
incident occurred was not owned, controlled, or managed by the employing establishment.
Appellant appealed to the Board. By decision dated February 22, 2019, the Board affirmed
the January 31, 2018 decision. The Board found that although the injury occurred within a
reasonable interval from the end of her work shift, the parking garage where the alleged April 5,
2017 injury occurred was not part of the employing establishment’s premises as it was not owned,
controlled, or managed by the employing establishment, employees were not required to park in
this garage, parking spaces were not assigned, and employees did not have to pay for parking. The
Board also determined that the parking garage did not meet the requirements as a “special hazard”
exception to the premises rule as the parking garage was not exclusively contracted for use by the
employing establishment and slipping on water was an ordinary hazard, which was shared by all
travelers.4
On June 24, 2019 appellant, through counsel, requested reconsideration and submitted
additional evidence including a copy of a June 6, 2019 affidavit wherein she related that the
building where she worked was not a U.S. Government building, but rather a commercial building
that occupied numerous businesses. Appellant indicated that since 2016 she had parked her
personal vehicle in the parking garage located adjacent to the office building. She testified that
the adjacent parking garage was the only option for all employees and tenants occupying space in
4

Id.

3

the building where the employing establishment was located. Appellant also noted that U.S.
Government owned vehicles parked in that parking garage and that outside visitors were routinely
instructed to use the parking garage when they attended meetings at the employing establishment.
OWCP also received a series of pictures of the commercial building from different angles,
including, individual parking spaces on different parking decks as well as an overhead view of the
complete building with the adjacent parking garage in question. The images contained notations
of the subject matter of the photos including a notation of no parking on the street.
By decision dated August 15, 2019, OWCP denied modification of the February 22, 2019
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 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 timely filed within the applicable
time limitation of FECA,6 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.7 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.8
The phrase “sustained while in the performance of duty” has been interpreted by the Board
to be the equivalent of the commonly found prerequisite in workers’ compensation law of “arising
out of and in the course of employment.”9 To arise in the course of employment, in general, an
injury must occur: (1) at a time when the employee may reasonably be said to be engaged in the
master’s business; (2) at a place when he or she may reasonably be expected to be in connection
with his or her employment; and (3) while he or she was reasonably fulfilling the duties of his or
her employment or engaged in doing something incidental thereto.10 This alone is insufficient to
establish entitlement to benefits for compensability. The concomitant requirement of an injury

5

Supra note 2.

6
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
8

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

See M.T., Docket No. 17-1695 (issued May 15, 2018); S.F., Docket No. 09-2172 (issued August 23, 2010);
Valerie C. Boward, 50 ECAB 126 (1998).
10
A.S., Docket No. 18-1381 (issued April 8, 2019); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006); Mary
Keszler, 38 ECAB 735, 739 (1987).

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“arising out of the employment” must be shown, and this encompasses not only the work setting,
but also a causal concept, the requirement being that the employment caused the injury.11
It is well established as a general rule of workers’ compensation law that, as to employees
having fixed hours and places of work, injuries occurring on the premises of the employing
establishment, while the employees are going to or from work, before or after working hours or at
lunch time, are compensable.12 The Board has previously found that the term “premises” as it is
generally used in workers’ compensation law, is not synonymous with “property” because it does
not depend solely on ownership. The term “premises” may include all the property owned by the
employing establishment. In other instances, even if the employer does not have ownership and
control of the place of injury, the place may nevertheless still be considered part of the
“premises.”13
The Board has also held that factors which determine whether a parking area used by
employees may be considered a part of the employing establishment’s premises include whether
the employer contracted for the exclusive use by its employees of the parking area, whether parking
spaces in the garage were assigned by the employing establishment to its employees, whether the
parking areas were checked to see that no authorized cars were parked in the garage, whether
parking was provided without cost to the employees, whether the public was permitted to use the
garage, and whether other parking was available to the employees. Mere use of a parking facility
alone is not sufficient to bring the parking garage within the premises of the employing
establishment. The premises doctrine is applied to those cases where it is affirmatively
demonstrated that the employing establishment owned, maintained, or controlled the parking
facility, used the facility with the owner’s special permission, or provided parking for its
employees.14
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a traumatic
injury in the performance of duty on April 5, 2017, as alleged.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s January 31, 2018 merit decision because the
Board considered that evidence in its February 22, 2019 decision. Findings made in prior Board
decisions are res judicata absent any further review by OWCP under section 8128 of FECA.15
11
D.C., Docket No. 18-1216 (issued February 8, 2019); R.B., Docket No. 16-1071 (issued December 14, 2016);
Eugene G. Chin, 39 ECAB 598 (1988).
12

E.O., Docket No. 19-0390 (issued January 9, 2020); Narbik A. Karamian, 40 ECAB 617, 618 (1989); Eileen R.
Gibbons, 52 ECAB 209 (2001).
13

C.L., Docket No. 18-0812 (issued February 22, 2019); Wilmar Lewis Prescott, 22 ECAB 318, 321 (1971).

14

R.K., Docket No. 18-1269 (issued February 15, 2019); Diane Bensmiller, 48 ECAB 675 (1997); Rosa M. ThomasHunter, 42 ECAB 500 (1991); Edythe Erdman, 36 ECAB 597 (1985); Karen A. Patton, 33 ECAB 487 (1982); R.M.,
Docket No. 07-1066 (issued February 6, 2009).
15

See B.R., Docket No. 17-0294 (issued May 11, 2018).

5

Accordingly, the current analysis will focus on the relevant evidence received since OWCP’s
January 31, 2018 merit decision, which is the evidence that was not before the Board when it last
reviewed appellant’s claim on February 22, 2019.
In support of her June 24, 2019 reconsideration request, appellant submitted a June 6, 2019
affidavit. She related that the commercial building where the employing establishment leased
office space was not a U.S. Government building and that numerous other businesses also occupied
space in that building. Appellant asserted that the parking garage was the only parking option for
all employees and tenants who leased space in that building. She also noted that U.S. Government
owned vehicles were parked in that parking garage.
As noted above, in determining whether a parking lot or garage should be considered part
of the employing establishment’s premises, the Board must consider such factors as whether the
employer contracted for its exclusive use by its employees, whether the employing establishment
assigned parking spaces, whether the parking area was checked to see that no authorized cars were
parked in the garage, whether the public was permitted to use the garage, whether parking was
provided without cost to the employees, and whether other parking was available to the
employees.16
The Board finds that appellant has not established that the parking garage where the
April 5, 2017 incident occurred was used exclusively or principally by employees of the employing
establishment. The Board has previously found that a parking garage attached to a commercial
building was not within the premises of the employing establishment as there was no indication
that the parking garage was for the exclusive use of the employing establishment.17 The Board
noted that the attached parking garage was provided for occupants of the commercial building.
Similarly, in this case, appellant has admitted that numerous businesses occupied office space in
the same commercial building as the employing establishment and that their employees also used
the parking garage. While appellant noted that the parking garage was the only option for all
employees and tenants who leased space in that building, she has not provided any relevant
evidence to establish that she was required to park in that parking garage or assigned specific
parking spaces.18
On appeal counsel alleges that the decision was contrary to law and fact. As explained
above, however, the Board finds that under the circumstances of the case, the parking garage where
appellant slipped and fell on April 5, 2017 was not part of the premises of the employing
establishment. Appellant, therefore, has not met her burden of proof to establish that she sustained
an injury in the performance of duty.

16

Supra note 14.

17

J.B. Docket No 17-0378 (issued December 22, 2017); Rosa M. Thomas-Hunter, 42 ECAB 500 (issued
March 18, 1991).
18
While appellant submitted pictures of the commercial building, the parking structure, and the area surrounding it
they are not relevant to the issue of whether the employing establishment exercised control over the parking garage.

6

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that a traumatic
injury occurred in the performance of duty on April 5, 2017, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the August 15, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 12, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oceanside, NY, Employer
__________________________________________

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

Docket No. 07-2306
Issued: March 24, 2008

Case Submitted on the Record

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

JURISDICTION
On September 10, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decisions dated June 5 and July 30, 2007 finding that she had no
loss of wage-earning capacity. Pursuant to 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 the Office met its burden of proof to reduce appellant’s
compensation benefits based on her actual earnings; and (2) whether appellant has met her
burden of proof to modify the June 5, 2007 wage-earning capacity determination.
FACTUAL HISTORY
On January 21, 2004 appellant, then a 42-year-old letter carrier, sustained injury to her
back while walking on ice with a mailbag. The Office accepted her claim for cervical and
lumbar strains with lumbar radiculopathy on April 15, 2004. Appellant returned to work on

June 1, 2004 working four hours a day. She increased her work hours to six hours a day on
August 5, 2004. Appellant returned to full-time light duty on December 1, 2004.
Appellant submitted a duty status report dated June 16, 2006 providing additional work
restrictions due to low back pain. A duty status report dated July 26, 2006 found that she was
totally disabled for two days due to low back strain. On August 28, 2006 appellant’s attending
physician Dr. Poceso Vaillarica, Board-certified in physical medicine and rehabilitation,
diagnosed acutely exacerbated lumbosacral disc syndrome and stated that she had reinjured her
back in the performance of duty. Dr. Vaillarica requested authorization for additional physical
therapy.
The Office contacted the employing establishment on June 5, 2007 and was informed that
appellant worked 40 hours a week with a pay rate of $49,219.00 per year. The employing
establishment stated that appellant was “presently out of work for another matter not related to
this claim….”
By decision dated June 5, 2007, the Office found that appellant returned to full-time work
as a modified letter carrier on December 1, 2004 earning $875.35 per week and that her actual
earnings in this position fairly and reasonably represented her wage-earning capacity. The
Office stated that as she had performed the duties of the position for more than a year, the
position “is considered suitable to your partially disabled condition.” The Office found that
appellant’s actual earnings exceeded the wages of the position she held when injured and that her
entitlement to compensation for wage loss ended the date she was reemployed with no loss in
earning capacity and “your compensation payments have been terminated under this claim
number.”
Appellant telephoned the Office on June 11, 2007 contending that she was required to
work beyond her work restrictions and was reinjured. She stated that she had not worked since
July 2006. Appellant filed a notice of recurrence of disability on June 25, 2007 and alleged that
she sustained a recurrence of total disability due to her January 21, 2004 employment injury on
July 24, 2006.1 She stated that on July 24, 2006 while delivering a parcel she aggravated the
pain in her back and right leg.
Appellant requested reconsideration by letter dated June 25, 2007. She stated that she
returned to work following a January 21, 2004 injury as a router which required limited walking.
Appellant alleged that her supervisor, John Turner increased the walking requirements of her
light-duty position and informed her that she was not walking fast enough. Appellant stated that
on July 24, 2006 while delivering an express parcel she reinjured her back. She placed the parcel
down and experienced pain and numbness in her lower back and right leg. Appellant stated that
she had not returned to work since July 24, 2006 and was still receiving medical treatment. She
indicated that the Office had denied this claim for a new injury and alleged that the July 24, 2006
incident should be considered a recurrence of disability. Appellant filed a claim for
compensation for the period September 7, 2006 through June 25, 2007.

1

As the Office has not issued a final decision on this claim, the Board will not address this for the first time on
appeal. 20 C.F.R. § 501.2(c).

2

Appellant submitted a report dated June 6, 2007 from Dr. Benjamin Cohen, a Boardcertified orthopedic surgeon, noting that she injured her low back in July 2006. Dr. Cohen
diagnosed mechanical low back pain and radiculitis.
By decision dated July 30, 2007, the Office denied modification of the June 5, 2007
wage-earning capacity determination. The Office reviewed the evidence appellant submitted
following the June 5, 2007 decision and found that she had implicated a new employment injury
rather than a change in her accepted injury-related condition. The Office found that its initial
decision was not in error, that appellant had not sustained a change in her injury-related
condition and that there was no evidence that she had been rehabilitated.
LEGAL PRECEDENT -- ISSUE 1
Section 8115(a) of the Federal Employees’ Compensation Act2 provides that, in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by actual earnings if actual earnings fairly and reasonable represent the wage-earning
capacity. Generally, wages actually earned are the best measure of a wage-earning capacity and,
in the absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.3
Office’s procedure manual states that when an employee cannot return to the date-ofinjury job because of disability due to work-related injury of disease, but does return to
alternative employment, the claims examiner must determine whether the earnings in the
alternative employment fairly and reasonably represent the employee’s wage-earning capacity.4
The Office procedure manual provides in relevant part as follows:
“Factors Considered. To determine whether the claimant’s work fairly and
reasonably represents his or her wage-earning capacity, the claims examiner
should consider whether the kind of appointment and tour of duty … are at least
equivalent to those of the job held on the date of injury. Unless they are, the
[claims examiner] may not consider the work suitable.
“For instance, reemployment of a temporary or casual worker in another
temporary or casual [U.S. Postal Service] position is proper, as long as it will last
at least 90 days and reemployment of a term or transitional [U.S. Postal Service]
worker in another term or transitional position is likewise acceptable.”5

2

5 U.S.C. §§ 8101-8193, § 8115(a).

3

Selden H. Swartz, 55 ECAB 272, 278 ( 2004).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment and Determining Wage-Earning Capacity,
Chapter 2.814.7 (July 1997).
5

Id. at § 2.814.7a

3

The Office’s procedure manual provides that the Office can make a retroactive wageearning capacity determination if appellant worked in the position for at least 60 days, the
position fairly and reasonable represented his wage-earning capacity and “the work stoppage did
not occur because of any change in his injury-related condition affecting the ability to work.”6
The formula for determining loss of wage-earning capacity based on actual earnings,7
was developed in Albert C. Shadrick,8 has been codified by regulation at 20 C.F.R. § 10.403.9
Subsection (d) of this regulation provides that the employee’s wage-earning capacity in terms of
percentage is obtained by dividing the employee’s actual earnings by the current pay rate for the
job held at the time of injury.10
ANALYSIS -- ISSUE 1
In this case, appellant returned to full-time light-duty work on December 1, 2004. The
Office issued a decision on June 5, 2007 finding that her actual earnings fairly and reasonably
represented her wage-earning capacity. As she was earning more than her date-of-injury position
she was not entitled to further compensation benefits after December 1, 2004. At the time the
Office issued its June 5, 2007 decision the record supported that appellant had performed her
light-duty position for at least 60 days, there was no evidence that her wages did not fairly and
reasonably represent her wage-earning capacity as her kind of appointment and tour of duty were
similar to her date-of-injury position and the employing establishment indicated that appellant
had stopped work due to a separate matter not related to her January 2004 employment injury.
Therefore, the Board finds that the Office properly issued the June 5, 2007 wage-earning
capacity determination.
LEGAL PRECEDENT -- ISSUE 2
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless the original rating was in error, there is a material
change in the nature and extent of the injury-related condition or that the employee has been
retrained or otherwise vocationally rehabilitated. The burden of proof is on the party attempting
to show a modification of the wage-earning capacity.11
ANALYSIS -- ISSUE 2
Appellant requested reconsideration of the June 5, 2007 decision, contending that the
original wage-earning capacity determination was in error or that she had sustained a material
6

Id. at § 2.814.7e

7

Hayden C. Ross, 55 ECAB 455, 463-64 (2004).

8

5 ECAB 376 (1953).

9

20 C.F.R. § 10.403.

10

Id. at § 10.403(d).

11

Swartz, supra note 3 at 280.

4

change in the nature and extent of the injury-related condition. She stated that she stopped work
on July 24, 2006. Appellant described the events of July 24, 2006 as delivering an express parcel
which resulted in the reinjury of her back. She stated that she placed the parcel down and
experienced pain and numbness in her lower back and right leg. The Office’s regulations define
a traumatic injury as a condition of the body caused by a specific event or incident, or series of
events or incidents, within a single workday or shift. Such condition must be caused by external
force, including stress or strain, which is identifiable as to time and place of occurrence and
member or function of the body affected.12 Based on appellant’s description of the events of
July 24, 2006, the Office properly determined that she experienced a new traumatic injury rather
than a recurrence of disability or other change in the nature and extent of the injury-related
condition resulting from her accepted January 2004 employment injury. Appellant was able to
identify as to the time, place of occurrence and the member of the body affected by the external
strain of placing the express parcel down. The Board finds that she has identified a new
traumatic injury. For this reason, appellant has failed to establish that the June 5, 2007 wageearning capacity determination was in error or that she has sustained a material change in the
nature and extent of her injury-related condition.
As appellant did not meet her burden of proof in establishing that there was a material
change in the nature and extent of her January 2004 injury-related condition or that the original
determination was in fact erroneous and did not suggest that she was vocationally rehabilitated,
she has failed to establish that the June 5, 2007 wage-earning capacity determination should be
modified.
CONCLUSION
The Board finds that the Office properly determined on June 5, 2007 that appellant’s
limited-duty position fairly and reasonably represented her wage-earning capacity. The Board
further finds that appellant failed to meet her burden of proof to modify the June 5, 2007 wageearning capacity determination.

12

20 C.F.R. § 10.5(ee).

5

ORDER
IT IS HEREBY ORDERED THAT the July 30 and June 5, 2007 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 24, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6