United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT
AGENCY, FLORIDA RECOVERY CENTER,
Lake Mary, FL, Employer
__________________________________________

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

Docket No. 10-611
Issued: December 6, 2010

Case Submitted on the Record

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

JURISDICTION
On January 4, 2010 appellant, through her attorney, filed a timely appeal from a
November 19, 2009 decision of the Office of Workers’ Compensation Programs terminating
compensation and medical benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether the Office properly denied appellant’s claim for wage loss
for the period January 26 to February 14, 2009; and (2) whether the Office met its burden of
proof to terminate appellant’s medical benefits effective January 26, 2009.
On appeal, counsel contends that the Office’s November 19, 2009 decision is contrary to
fact and law.

FACTUAL HISTORY
The Office accepted that on May 21, 2008 appellant, then a 48-year-old project manager,
sustained an insect bite to the right foot, causing an infection, rash, edema, uticaria, cellulitis of
the right foot and cellulitis of the right forearm. Appellant stopped work on May 27, 2008 and
received emergency room treatment, including oral steroids. She received continuation of pay
from May 27 to July 11, 2008, followed by compensation on the supplemental rolls through
January 17, 2009.
In a May 29, 2008 report, Dr. M.A. Awan, an attending internist, diagnosed right foot
swelling, mild cellulitis, generalized itching and a rash due to an insect bite. He recommended
that appellant continue taking steroids and prescribed an antibiotic.1 Dr. Awan referred appellant
to Dr. Jose Andrade, a Board-certified allergist and rheumatologist, who diagnosed a
hymenoptera allergy. From July to December 2008, appellant was followed by Dr. S. Marcus
Hopkins, an attending internist, who held her off work due to generalized arthralgias, headaches
and intermittent edema related to the May 2008 insect bite.
In an October 31, 2008 report, Dr. Robert M. Chapa, an attending physician Boardcertified in occupational medicine, noted a history of injury and treatment. On examination, he
noted mild limitation of all joints due to obesity and mild swelling in the right foot and forearm.
Dr. Chapa diagnosed a possible insect bite, resolved acute inflammatory response, history of
polyarthralgia, resolved edema and headache due to steroids. He ordered an infectious disease
consultation on November 3, 2008 from Dr. Walter C. Hellinger, a Board-certified internist, who
found no infection or active inflammatory process. Dr. Chapa also obtained a consultation with
Dr. Kenneth T. Calamia, an attending Board-certified rheumatologist, who diagnosed rheumatoid
arthritis unrelated to the insect bite on December 9, 2008.
In a December 12, 2008 report, Dr. Chapa opined that the insect bite had resolved
without acute symptoms. The subjective polyarthralgias and possible soft tissue swelling were
unrelated to the insect bite. Dr. Chapa explained that Dr. Calamia clearly identified rheumatoid
arthritis as the cause of appellant’s complaints. On January 16, 2009 he found that appellant had
reached maximum medical improvement and could resume full duty. Dr. Chapa reiterated that
appellant’s rheumatoid arthritis was not related to the insect bite.
On January 21, 2009 Dr. Awan released appellant to sedentary duty for six hours a day.
Appellant returned to work on January 22, 2009 in a full-time modified position. She worked six
hours on January 26 and 27, 2009 four hours on January 28, 2009 then stopped work. Appellant
sought emergency room treatment for abdominal pain on January 28, 2009. Dr. Michael Coussa,
a physician specializing in emergency medicine, diagnosed possible biliary colic and chronic
rheumatoid arthritis. He instructed appellant not to undertake strenuous physical activity.
In a January 28, 2009 form report, Dr. Awan noted that appellant had been to the
emergency room that day. He checked boxes holding her off work, indicating that he could not
determine if her condition was work related.
1

Appellant sought emergency room treatment on May 27, June 1 and 4, 2008 for polyarthralgia, edema, uticaria,
chest pain and dyspnea complicated by morbid obesity.

2

Appellant claimed wage loss from January 26 to 29, 2009. In a February 4, 2009 letter,
the Office advised her that additional evidence was needed to establish her claim, noting that
Dr. Chapa found her condition resolved as of January 16, 2009. Appellant was afforded 30 days
to submit additional evidence.
On February 18, 2009 appellant claimed wage-loss compensation from January 30 to
February 14, 2009. In a February 26, 2009 letter, she contended that she was disabled for work
due to swelling and weakness in her right arm.
By decision dated March 17, 2009, the Office denied appellant’s claims for wage loss
from January 26 to February 14, 2009. It found that she had received medical benefits for
treatment of the accepted insect bite and that the condition had resolved. The Office determined
that appellant’s claims for medical treatment on and after January 26, 2009 were not authorized
and prior authorization, if any, was terminated.
In a March 21, 2009 letter, appellant requested a telephonic hearing. At the
September 28, 2009 hearing, she asserted that she remained under treatment for disabling,
systemic residuals of the May 21, 2008 injury.2
By decision dated and finalized November 19, 2009, an Office hearing representative
affirmed the March 17, 2009 decision. The hearing representative found that appellant did not
submit rationalized medical evidence supporting that the accepted insect bite disabled her for
work from January 26 to February 14, 2009. The hearing representative further found that the
Office met its burden of proof to terminate appellant’s medical benefits as the medical evidence
failed to establish work-related residuals after January 26, 2009.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking compensation under the Federal Employees’ Compensation Act3
has the burden of establishing the essential elements of her claim by the weight of the reliable,
probative and substantial evidence.4
To establish a causal relationship between a claimed period of disability claimed and the
accepted employment injury, an employee must submit rationalized medical evidence based on a
complete medical and factual background, supporting such a causal relationship.5 Causal
relationship is a medical issue and the medical evidence required to establish a causal
relationship is rationalized medical evidence.6 Rationalized medical evidence is evidence which
includes a physician rationalized medical opinion on the issue of whether there is a causal
2

Counsel requested that the record be held open for 30 days to allow her to submit additional evidence. No
additional evidence was received prior to November 19, 2009.
3

5 U.S.C. §§ 8101-8193.

4

Amelia S. Jefferson, 57 ECAB 183 (2005).

5

Manuel Gill, 52 ECAB 282 (2001).

6

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

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relationship between the claimant s diagnosed condition and the implicated employment factors.
The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS -- ISSUE 1
The Office accepted that on May 21, 2008 appellant sustained an insect bite on her right
foot causing swelling, itching, a rash and cellulitis. Appellant received wage-loss compensation
on the supplemental rolls through January 17, 2009. Dr. Chapa, an attending physician Boardcertified in occupational medicine, found that the insect bite resolved without residuals as of
January 16, 2009. Appellant returned to work part time from January 22 to 26, 2009, then
stopped work on January 27, 2009.
She claimed wage loss from January 26 to
February 14, 2009.
In support of her claim, appellant submitted a January 28, 2009 report from Dr. Michael
Coussa, a physician specializing in emergency medicine, diagnosing biliary colic and chronic
rheumatoid arthritis. Dr. Coussa did not mention the accepted insect bite or attribute the
diagnosed conditions to it. He advised appellant not to perform strenuous activity but did not
otherwise comment on her ability to work. Dr. Awan, an attending internist, indicated on a
January 28, 2009 form report that appellant could not work due to a condition of undetermined
etiology. Neither Dr. Coussa nor Dr. Awan provided medical rationale explaining how and why
residuals of the accepted May 21, 2008 insect bite would disable appellant for work from
January 26 to February 14, 2009. Their reports are, therefore, insufficient to meet appellant’s
burden of proof.8
The Board notes that, in a February 4, 2009 letter, the Office advised appellant of the
additional evidence needed to establish her claim, particularly as Dr. Chapa, an attending
occupational disease specialist, found that the accepted conditions ceased without residuals as of
January 16, 2009. Appellant did not submit such evidence. The Board, therefore, finds that the
Office properly denied her claim for wage loss from January 26 to February 14, 2009.
On appeal, counsel contends that the Office’s November 19, 2009 decision is contrary to
fact and law. The Office properly denied wage-loss compensation from January 26 to
February 14, 2009 as appellant did not submit sufficient rationalized medical evidence
supporting this period of disability.
LEGAL PRECEDENT -- ISSUE 2
Once the Office has accepted a claim and pays compensation, it bears the burden to
justify modification or termination of benefits.9 Having determined that an employee has a
7

Leslie C. Moore, 52 ECAB 132 (2000).

8

Deborah L. Beatty, 54 ECAB 340 (2003).

9

Bernadine P. Taylor, 54 ECAB 342 (2003).

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disability causally related to his or her federal employment, the Office may not terminate
compensation without establishing either that the disability has ceased or that it is no longer
related to the employment.10
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.11 To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.12 Office procedures require notification prior to
terminating all medical benefits.13 The Board has held that the Office must follow its procedures
and provide claimant notice and an opportunity to respond prior to the termination of
compensation benefits.14
ANALYSIS -- ISSUE 2
The Office accepted that appellant sustained an insect bite on her right foot with rash,
swelling, itching and mild cellulitis. It authorized appropriate medical care. By decision dated
March 17, 2009, and affirmed by decision dated November 19, 2009, the Office terminated
appellant’s medical benefits on the grounds that the accepted conditions ceased without
residuals. The Board finds that the Office failed to meet its burden of proof in terminating her
medical benefits.
Under the Office’s procedures, a notice of proposed termination should have been sent to
appellant, allowing her 30 days to respond.15 The Office did send a February 4, 2009 letter
advising appellant of the need for additional medical evidence to establish her claim for wageloss compensation. However, this letter did not indicate that the Office contemplated
termination of her medical benefits. It cannot be construed as a pretermination notice.
Therefore, since there is no evidence that the Office provided notice and an opportunity to
respond prior to termination of all appellant’s medical benefits, the Office failed to meet its
burden of proof.16 The November 19, 2009 decision will be reversed in part regarding the
termination of medical benefits.

10

Id.

11

Roger G. Payne, 55 ECAB 535 (2004).

12

Pamela K. Guesford, 53 ECAB 726 (2002).

13

Winton A. Miller, 52 ECAB 405 (2001); Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances,
Chapter 2.1400.6b (March 1997).
14

Winton A. Miller, supra note 13.

15

Federal (FECA) Procedure Manual, supra note 13 at Chapter 2.1400.6b (March 1997).

16

Winton A. Miller, supra note 13; see also T.D., (Docket No. 09-1028 & 09-1029, issued January 11, 2010) (the
Board held that the Office failed to meet its burden of proof in terminating the claimant’s medical benefits because it
failed to issue a notice of proposed termination).

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CONCLUSION
The Board finds that the Office properly denied appellant’s claim for wage-loss
compensation for the period January 26 to February 14, 2009. The Board further finds that the
November 19, 2009 termination decision was improper as the Office failed to provide notice of
the proposed termination.
ORDER
IT IS HEREBY ORDERED THAT the November 19, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed in part regarding denial of wage-loss
compensation from January 26 to February 14, 2009 and reversed in part regarding termination
of medical benefits.
Issued: December 6, 2010
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 11-132
Issued: September 12, 2011

Case Submitted on the Record

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

JURISDICTION
On October 22, 2010 appellant filed a timely appeal of the October 12, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her recurrence of
disability claim.1 Pursuant to the Federal Employees’ Compensation Act2 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that she sustained a recurrence of disability
commencing June 28, 2010 causally related to her accepted employment-related injuries.

1

In an order dated May 25, 2011, the Board dismissed appellant’s appeal of OWCP’s decision dated June 17,
2010 which found that she had no more than six percent impairment of each lower extremity as untimely. Docket
No. 11-537 (issued May 25, 2011).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 1, 1996 appellant, then a 36-year-old mail handler, filed an occupational
disease claim alleging that on July 12, 1996 she sustained a herniated disc due to loading and
unloading mail on various floors of a building. She stopped work on July 22, 1996 and returned
to work on August 1, 1996.3 OWCP accepted appellant’s claim for herniated disc at L4-L5,
herniated cervical disc, other unspecified arthropathies, lumbar radiculitis, degeneration of the
lumbar intervertebral disc and hyperactive bladder.4
On June 28, 2010 appellant filed a recurrence of disability claim (Form CA-2a) beginning
July 12, 1996.
By letter dated July 1, 2010, OWCP requested that appellant submit factual and medical
evidence, including a rationalized medical opinion from an attending physician explaining
whether or how her current condition was causally related to the accepted employment injuries.
In an undated narrative statement, appellant described her work duties as a mail handler
and related that following her accepted employment injuries she underwent three back surgeries
in March and August 2002 and June 2004. After her surgeries, she was placed on light-duty
status. Appellant listed her physical limitations due to her back condition. She was either
partially or totally disabled on intermittent dates from August 26, 1993 through October 9, 1999.
In medical reports dated August 2, 2000 through February 14, 2008 Dr. Charles N.
Narrow, a Board-certified physiatrist, Dr. Reginald J. Davis, a Board-certified neurologist,
Dr. Brian M. Block, a Board-certified anesthesiologist, Dr. Louis M. Panlilio, a Board-certified
anesthesiologist, Aaron R. Noonberg, Ph.D., a clinical psychologist, and a physician whose
signature is illegible, addressed appellant’s back treatment and emotional conditions. Surgical
notes dated August 29, 2001, March 25, 2002 and September 17, 2008 indicated that appellant
underwent lumbar fusions or received epidural injections to treat her accepted conditions.
Diagnostic test reports dated May 8 and December 15, 2003 and February 10, 2010 by
Dr. Lee A. Goodman, a Board-certified radiologist, Dr. Courtney Perez, a radiologist, and an
unknown physician also addressed appellant’s lumbar and cervical conditions.
In an August 20, 2010 report, Dr. Davis noted appellant’s complaint of neck pain that
radiated to her shoulders and bilateral upper extremities. She also had numbness and tingling in
her bilateral upper extremities accompanied by weakness. Dr. Davis reviewed appellant’s
medical records and found that her complaints of the cervical spine and upper extremity
numbness occurred following her lumbar spine surgery.
He diagnosed cervical
myeloradiculopathy, but concluded that the cause of her condition could not be determined.

3

Appellant retired from the employing establishment on June 5, 2005.

4

By letter dated July 17, 2003, OWCP accepted that appellant sustained a recurrence of disability as of March 25,
2002 causally related to the accepted injuries.

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In an October 12, 2010 decision, OWCP denied appellant’s recurrence of disability
claim. The medical evidence of record was found insufficient to establish that she was totally
disabled commencing June 28, 20105 due to her accepted employment-related injuries.6
LEGAL PRECEDENT
A recurrence of disability is the inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition, which had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment, which
caused the illness. The term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force) or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.7
A person who claims a recurrence of disability has the burden of establishing by the
weight of the substantial, reliable and probative evidence that the disability, for which he claims
compensation is causally related to the accepted employment injury.8 Appellant has the burden
of establishing by the weight of the substantial, reliable and probative evidence a causal
relationship between his recurrence of disability and his employment injury.9 This burden
includes the necessity of furnishing evidence from a qualified physician who, on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury.10 Moreover, the physician’s conclusion must be supported by
sound medical reasoning.11
The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury.12 In this regard, medical evidence
5

In the October 12, 2010 decision, OWCP stated that it was not clear as to why appellant claimed that she
sustained a recurrence of disability on July 12, 1996. It found that June 30, 2010, the date she signed her Form
CA-2a, was the date her claimed recurrence of disability began. The Board notes, however, that appellant signed
her Form CA-2a on June 28, 2010. It was received by OWCP on June 30, 2010.
6

Following the issuance of OWCP’s October 12, 2010 decision, OWCP received additional evidence. The Board
may not consider evidence for the first time on appeal which was not before OWCP at the time it issued the final
decision in the case. 20 C.F.R. § 501.2(c); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R.
Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
7

20 C.F.R. § 10.5(x).

8

Kenneth R. Love, 50 ECAB 193, 199 (1998).

9

Carmen Gould, 50 ECAB 504 (1999); Lourdes Davila, 45 ECAB 139 (1993).

10

Ricky S. Storms, 52 ECAB 349 (2001); see also 20 C.F.R. § 10.104(a)-(b).

11

Alfredo Rodriguez, 47 ECAB 437 (1996); Louise G. Malloy, 45 ECAB 613 (1994).

12

See Ricky S. Storms, supra note 10; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.2 (June 1995).

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of bridging symptoms between the recurrence and the accepted
physician’s conclusion of a causal relationship.13 While the opinion
causal relationship need not be one of absolute medical certainty,
speculative or equivocal. The opinion should be expressed in terms
medical certainty.14

injury must support the
of a physician supporting
the opinion must not be
of a reasonable degree of

ANALYSIS
OWCP accepted that appellant sustained herniated disc at L4-L5, herniated cervical disc,
other unspecified arthropathies, lumbar radiculitis, degeneration of the lumbar intervertebral disc
and hyperactive bladder while in the performance of duty. Appellant claimed a recurrence of
total disability commencing June 28, 2010. The Board finds that appellant has failed to submit
sufficient medical evidence to establish that her claimed recurrence was caused or aggravated by
her accepted injuries.
Dr. Davis’ August 20, 2010 report noted appellant’s complaints of neck pain that radiated
to her shoulders and bilateral upper extremities, and numbness and tingling in her bilateral upper
extremities accompanied by weakness. After reviewing her medical records, he determined that
these cervical spine and upper extremity symptoms occurred following her lumbar spine surgery.
Dr. Davis found that appellant had cervical myeloradiculopathy, but stated that the cause of the
condition could not be determined. The Board has held that a physician’s opinion, which does
not address causal relationship, is of diminished probative value.15 Dr. Davis did not provide an
opinion addressing how appellant’s cervical condition in 2010 was due to the accepted lumbar
and bladder conditions. He did not provide any opinion addressing her disability for work
commencing June 28, 2010. The Board finds that Dr. Davis’ report is insufficient to meet
appellant’s burden of proof in establishing a recurrence of disability.
The other medical evidence dated August 2, 2000 through September 17, 2008 predate
the alleged recurrence of disability commencing June 28, 2010 and, thus, does not render any
opinion on causal relationship. The Board finds that these reports do not establish appellant’s
claim for a recurrence of disability.
Appellant failed to submit rationalized medical evidence establishing that her disability
commencing June 28, 2010 resulted from the residuals of her accepted lumbar and bladder
conditions.16 She has not met her burden of proof.17

13

For the importance of bridging information in establishing a claim for a recurrence of disability, see Richard
McBride, 37 ECAB 748 at 753 (1986).
14

See Ricky S. Storms, supra note 10; Morris Scanlon, 11 ECAB 384, 385 (1960).

15

See A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
16

Cecelia M. Corley, 56 ECAB 662 (2005).

17

Tammy L. Medley, 55 ECAB 182 (2003).

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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 failed to establish that she sustained a recurrence of
disability commencing June 28, 2010 causally related to her accepted employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the October 12, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 12, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.R., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Dayton, OH, Employer
__________________________________________

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

Docket No. 16-0544
Issued: June 15, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 2, 2016 appellant, through counsel, filed a timely appeal from a
November 25, 2015 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 met his burden of proof to establish an injury in the
performance of duty on January 25, 2013.
FACTUAL HISTORY
On January 23, 2014 appellant, then a 50-year-old medical administration specialist, filed
a traumatic injury claim (Form CA-1) alleging that at 8:30 a.m. on January 25, 2013 he sustained
injury due to a motor vehicle accident, which occurred on Interstate 71 approximately 25 miles
east of Louisville, Kentucky. He did not stop work around the time of the claimed January 25,
2013 work injury, but he stopped work on November 25, 2013. On the same form appellant’s
immediate supervisor checked a box marked “No” indicating that the claimed January 25, 2013
work injury did not occur in the performance of duty and noted, “The purpose of the trip was
exclusively to explore employment opportunities, [appellant] was not on a work detail.” The
supervisor indicated that appellant’s regular duty station was the employing establishment
Medical Center and that his regular hours were 7:30 a.m. to 4:00 p.m., Monday through Friday.
In a January 23, 2014 statement, appellant indicated that on January 25, 2013 he was on
orders to proceed to a detailed assignment at the employing establishment’s Valley Coastal Bend
Health Care System facilities in Harlingen and Corpus Christi, Texas. He noted that he was
attaching a copy of his travel orders. Appellant advised that he was driving in an ice storm near
Louisville on January 25, 2013, the first day of his trip, when at approximately 8:00 or 9:00 a.m.
he was involved in a motor vehicle accident, which caused his vehicle to roll over four times.3
He indicated that his injuries, including pain/bruising in his neck and extremities, did not appear
severe at the time of the January 25, 2013 accident, and that he continued his trip to the Valley
Coastal Bend Health Care System facilities. Appellant noted that, when he returned to work in
Dayton, Ohio, he reported the accident to his immediate supervisor and another employee,
sought medical treatment from employing establishment physicians, and used annual and sick
leave. He advised that it was not until December 2013 that he realized the full extent of his left
hip and leg injuries due to the January 25, 2013 accident and he indicated that he suffered posttraumatic stress disorder due to the accident. Appellant asserted that his need for total hip
replacement surgery was related to the January 25, 2013 accident.
In a Report of Contact with a “Date of Contact” of February 6, 2014, it was indicated
that, “[Appellant] requested approval to take a trip to Texas to interview for a potential job
assignment(s) and early placement out of the Technical Career Field Program [(TCFP)].”4 The
document provided a text of appellant’s January 24, 2013 e-mail to several individuals, including
his immediate supervisor, which was entitled, “Use of [TCFP] Funds for Final Placement Site
Visit.” In this e-mail appellant indicated that he wanted to clarify the purpose of his trip after
speaking with an individual in the Chief Business Office of the TCFP. He advised that he was
3

Appellant submitted copies of photographs which presumably depict his vehicle after the January 25, 2013
accident.
4

Appellant’s immediate supervisor signed the “Executed By” portion of the signature block for this employing
establishment form.

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going to two locations in Texas, the primary location being in Harlingen, and the secondary
location being in Corpus Christi, to engage in site visits for permanent placement to complete the
TCFP. Appellant indicated that he had already undergone telephone interviews and that the
positions in both locations met the final placement criteria for the TCFP. He reported that his
program manager for the TCFP in Atlanta, Georgia, could verify that TCFP funds could be used
for the visits.
Appellant submitted the fourth page of a four-page document which lists the dates on
which employees submitted expense reports. The document indicates that he submitted an
expense report on February 21, 2013. An appointment list produced on January 23, 2014 shows
medical clinic appointments made for appellant between March 4 and December 16, 2013.
In a letter dated February 6, 2014, a workers’ compensation specialist for the employing
establishment indicated that the employing establishment was challenging appellant’s claim for a
January 25, 2013 injury. The specialist advised that he was not in the performance of duty when
the alleged work-related injury occurred on January 25, 2013 and that the purpose of his trip to
Texas was exclusively to explore employment opportunities. She noted that appellant was not
on a work-detail status from the employing establishment Medical Center as alleged. The
specialist indicated that a 120-Day Commitment Agreement for the TCFP, signed by appellant
on December 21, 2012, provided that the employing establishment could not offer him a position
at the end of the TCFP, and that he was responsible for finding suitable employment prior to the
end of the term of the TCFP.
The specialist attached a copy of the 120-Day Commitment Agreement signed by
appellant on December 21, 2012 in which it was noted that his two-year anniversary date as an
intern in the TCFP was September 26, 2013. Appellant signed a certification block in which he
affirmed that, since his work facility could not offer him a position at the end of the TCFP, he
understood that it was his responsibility to find suitable placement prior to the two-year
anniversary of the date he was hired into the TCFP. He further affirmed that he agreed to work
with the National Career Field Program Manager to find placement and that he understood he
had to accept or decline a placement offer at least 60 days prior to his two-year anniversary date.
In a February 20, 2014 letter, OWCP requested that appellant submit additional factual
and medical evidence and to complete an attached questionnaire in support of his claimed
January 25, 2013 work injury. On the same date it requested additional information from the
employing establishment and asked it to complete an attached questionnaire.
Appellant submitted a March 10, 2014 statement in which he asserted that various
documents he was submitting in connection with the statement showed that he was on “approved
travel” when he was injured in the January 25, 2013 accident. He indicated that he was driving
his private-owned vehicle because a government-owned vehicle was not available for use.
Appellant asserted that the January 25, 2013 accident occurred on the most direct route between
the employing establishment Medical Center and the Valley Coastal Bend Health Care System
facilities.5 He indicated that he reported the January 25, 2013 accident to an official at the
5

Appellant submitted copies of a map which he indicated showed the most direct route between Dayton and
Harlingen as derived from an internet map service.

3

Valley Coastal Bend Health Care System facility in Harlingen when he arrived there after the
accident.
Appellant submitted a January 18, 2013 e-mail to a TCFP official in which he advised
that he had been asked to travel the following week to Corpus Christi for a site visit. His e-mail
was sent in response to a January 18, 2013 e-mail of the TCFP official indicating that a position
opening might be announced. In a series of e-mails between appellant and an official with the
Valley Coastal Bend Health Care System, dated on January 23 and 24, 2013, he indicated that
his travel to the Valley Coastal Bend Health Care System facilities had been approved by his
“chief” and that he would be using TCFP funds for the trip.6 The official advised that the
specialist would be able to meet with him on January 31, 2013 to discuss a position opening at
the Harlingen facility. She indicated that she had no authority to discuss any position openings
at the Corpus Christi facility. In a January 24, 2013 e-mail to appellant, which was copied to his
immediate supervisor, a TCFP program manager in Atlanta advised that TCFP funds could “be
used towards a site visit for permanent placement.” In a February 4, 2013 e-mail to his
immediate supervisor in Dayton, appellant advised that he was home and that he had “an
interesting run in with an ice storm … which is why I am going to the [physician] today.” He
indicated that he would submit a travel authorization request.
A March 28, 2013 e-mail sent to appellant through an automated response system
indicates, “You have an Expense Report which has been approved,” and lists his immediate
supervisor as the “Final Approver.” A document lists expenses he incurred for lodging, meals,
and mileage for the period January 25 to February 4, 2013 and contains the comments, “Site visit
to south Texas for [TCFP] final placement. Shortened trip due to accident and business being
done early.” The last page of the document indicates that appellant submitted an expense report
on February 21, 2013.7
The records contains a Memorandum of Understanding (MOU) signed in March 2013 by
appellant, officials of the Valley Coastal Bend Health Care System, and officials of the
employing establishment Medical Center, including appellant’s immediate supervisor. The
document concerns the prospective relocation of appellant’s job from the employing
establishment Medical Center to the Valley Coastal Bend Health Care System effective
September 26, 2013. Appellant would begin working as a supervisory medical administration
specialist at the Harlingen facility.8 An MOU with the heading “Final Placement,” indicates that
on May 6, 2013 he would be transferred to the position of supervisory medical administration
specialist at the Harlingen facility and that, effective September 26, 2013, he would be

6

In a January 24, 2013 e-mail to the official, appellant indicated that “travel is approved” and that he would leave
for his trip the next morning. In a January 23, 2013 e-mail, he requested a government car and indicated that his trip
would last from January 25 to February 5, 2013.
7

Appellant previously submitted this last page of the document.

8

Appellant had previously submitted a job description for the position of supervisory medical administration
specialist with the Valley Coastal Bend Health Care System. He also submitted a copy of the 120-Day Commitment
Agreement he signed on December 21, 2012 with additional pages showing that his immediate supervisor signed the
document on March 6, 2013.

4

permanently placed in the position.9 In a May 6, 2013 memorandum to the TCFP program
manager in Atlanta, appellant indicated that he made a site visit to Harlingen in January 2013.
E-mails from mid-May 2013 show that he made the transfer to the Harlingen facility on
May 6, 2013.
Appellant submitted an undated Kentucky Uniform Police Traffic Collision Report
describing the January 25, 2013 motor vehicle accident. The police investigator, who arrived at
the accident scene at 10:00 a.m., noted that appellant reported that he was driving north on
Interstate 71 in his light truck when he lost control on icy roads, ran off the right shoulder, and
overturned his vehicle to an upright position. The investigator reported that it was a “single
vehicle” accident and that appellant was driving 70 miles per hour which was deemed “too fast
for conditions.”10 Appellant submitted photographs of his injuries caused by the January 25,
2013 accident as well as photographs of his vehicle before and after the January 25, 2013
accident.
Appellant also submitted medical evidence in support of his claim, including a
December 4, 2013 report in which Dr. Jarvis Earl, an attending Board-certified orthopedic
surgeon, indicated that appellant had been seen for bilateral hip pain with pain radiating to his
anterior thigh areas, left greater than right. He reported that the initial onset of pain was 30 years
prior on the left due to an explosion in the military which dislocated the left hip and 5 years prior
on the right. Dr. Earl diagnosed osteoarthritis of hip and hip pain, and he recommended total left
hip arthroplasty and on a December 31, 2013 report, he performed a left total hip arthroplasty.
In an attending physician’s report (Form CA-20) dated February 26, 2014, Dr. Earl
indicated that appellant was totally disabled from December 4, 2013 to February 28, 2014 and
partially disabled from March 1 to 21, 2014. He noted that appellant would be able to perform
his regular work beginning March 22, 2014. On March 6, 2014 Dr. Scott L. Shelby, an attending
chiropractor, diagnosed degenerative joint disease of his left hip.
In a March 21, 2014 letter, the workers’ compensation specialist for the employing
establishment, who had produced the February 6, 2014 letter submitted earlier, responded to
OWCP’s February 20, 2014 request for additional information. The specialist advised that
appellant was not on an official temporary-duty (TDY) assignment at the time of his January 25,
2013 accident. She indicated that he traveled to Texas for a job interview, as expressed through
a January 24, 2013 e-mail in which he noted that he would use TCFP funds for such travel. The
specialist advised that, prior to the January 25, 2013 accident, appellant last performed his
official duties on January 22, 2013 at his regular duty station, i.e., the employing establishment
Medical Center. She indicated that he was expected to perform his next official duty on
February 4, 2013 at his regular duty station in Dayton. The specialist advised that appellant was
not riding in or driving a government-owned car on January 25, 2013.

9

Another MOU indicates that appellant would receive relocation benefits after a signed MOU for final placement
was received.
10

In an undated Automobile Accident Questionnaire completed for an attending physician, appellant indicated
that the accident occurred at 9:30 a.m. on January 25, 2013 and noted, “Car accident on ice, rolled four times.”

5

In a February 5, 2013 report of contact, appellant’s immediate supervisor noted that
appellant informed her that he had returned to the Dayton Veterans Affairs Medical Center
following a trip to Texas to interview for a job as a part of his attempt to obtain early placement
out of the TCFP. The supervisor noted that appellant advised her that he had been involved in a
motor vehicle accident on January 25, 2013 while driving to Texas. Appellant further informed
her that he had suffered some bruising without serious injury and that he continued with his trip
plans following the accident. The supervisor noted, “[Appellant] was not in a detail status, but
rather in a travel status.”
On March 29, 2014 appellant responded to the employing establishment’s March 21,
2014 letter. He again asserted that he had supplied a copy of an approved travel order to go to
Texas for a site visit. Appellant indicated that on January 25, 2013 his appointed place of duty
was to travel to Texas for a site visit and possible job placement there since the employing
establishment Medical Center did not have a permanent position for him as indicated by the 120Day Commitment Agreement. He asserted that he was required by the TCFP to travel to another
site for placement and that this fact was supported by the MOU in the record. Appellant
indicated that a May 6, 2013 memorandum to the TCFP program manager in Atlanta confirmed
that he had made a site visit to Harlingen in January 2013. He noted that in a January 24, 2013
e-mail sent to him, which was copied to his immediate supervisor, a TCFP program manager in
Atlanta advised that TCFP funds could be used towards a site visit for permanent placement.
In a May 6, 2014 decision, OWCP found that appellant had not met his burden of proof
to establish an injury in the performance of duty on January 25, 2013. It determined that the
evidence failed to support that the claimed injury occurred in the performance of duty as it did
not occur in “the course of employment and within the scope of compensable work factors as
defined by … FECA.” OWCP explained that appellant’s January 25, 2013 accident did not
occur while he was on official duty status, but rather occurred while he was engaged in the
personal mission of traveling to Texas for a job interview.11
In a letter dated February 26, 2015, appellant, through counsel, requested reconsideration
of OWCP’s May 6, 2014 decision. He submitted a January 23, 2015 medical report of Dr. Earl.
In a decision dated March 5, 2015, OWCP denied appellant’s request for further review
of the merits of his claim pursuant to 5 U.S.C. § 8128(a). It found that the evidence and
argument he submitted in support of his reconsideration request was irrelevant because his claim
was denied on a factual basis, i.e., failure to establish an injury in the performance of duty, rather
than a medical basis.
In a letter dated April 21, 2015, appellant, through counsel, again requested
reconsideration of OWCP’s May 6, 2014 decision.
Appellant submitted copies of e-mails that were exchanged between him and a TCFP
national program manager. In an April 8, 2015 e-mail to the coordinator, he referred to himself
11

OWCP also found that, even if appellant had established the factual aspect of his case, he did not submit
medical evidence establishing that a medical condition was causally related “to the work injury or event of
[January 25, 2013] as alleged.”

6

as a TCFP intern in the class of 2011. Appellant advised that in January 2013 he was traveling to
Texas for a site visit on a short detail and that, while he was in Texas, he was also going to
interview for a permanent placement position with the Valley Coastal Bend Health Care System.
He asked the coordinator to provide an opinion regarding whether he was in the line of duty
while traveling to Valley Coastal Bend Health Care System facilities for a site visit. In an
April 9, 2015 e-mail, the coordinator replied, “As long as you were on official travel orders for a
site visit as part of your two-year training program, I would consider that on duty as for another
other [sic] official trip you would take for [Valley Coastal Bend].”
By decision dated November 25, 2015, OWCP denied modification of its May 6, 2014
decision finding that appellant had not established an injury in the performance of duty on
January 25, 2013. It found that his activities on January 25, 2013 did not occur in the course of
his employment or arising out of his employment.
LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”12 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.”13 The phrase “in the course of employment” is recognized as
relating to the work situation, and more particularly, relating to elements of time, place, and
circumstance. To arise in the course of employment, an injury must occur at a time when the
employee may reasonably be stated to be engaged in the master’s business, at a place where he
or she may reasonably be expected to be in connection with the employment, and while he or she
is reasonably fulfilling the duties of his or her employment or engaged in doing something
incidental thereto.14 This alone is not sufficient to establish entitlement to benefits for
compensability. The concomitant requirement of an injury “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.15
The Board has held that, where an employee is on travel status or a TDY assignment, he
or she is covered by FECA 24 hours a day with respect to any injury that results from activities
essential or incidental to his or her temporary assignment.16

12

5 U.S.C. § 8102(a).

13

Charles Crawford, 40 ECAB 474, 476-77 (1989).

14

Mary Keszler, 38 ECAB 735, 739 (1987).

15

Eugene G. Chin, 39 ECAB 598, 602 (1988).

16

D.R., Docket No. 16-1395 (issued February 2, 2017); T.C., Docket No. 16-1070 (issued January 24, 2017).

7

ANALYSIS
On January 23, 2014 appellant filed a Form CA-1 claiming that on January 25, 2013 he
sustained injury due to a motor vehicle accident that occurred near Louisville, Kentucky, on the
first day of a work-related trip. He claimed that on January 25, 2013 he was on orders to proceed
to a detailed assignment at the employing establishment’s Valley Coastal Bend Health Care
System facilities in Harlingen and Corpus Christi, Texas. Appellant noted that he participated in
a training program known as the TCFP, which required him to find a new job prior to the twoyear anniversary of his first participation in the program, with his two-year anniversary being
September 26, 2013. He asserted that on January 25, 2013 his appointed place of duty was to
travel to Texas for a site visit and possible job placement there since his current employment site,
the employing establishment Medical Center, did not have a permanent position for him as
indicated by the 120-Day Commitment Agreement he signed in connection with his participation
in the TCFP. Appellant asserted that he was required by the TCFP to travel to another site for
job placement. The employing establishment controverted appellant’s claim and advised that he
was not performing his work duties or anything incidental to such duties on January 25, 2013.
The Board notes that there is conflicting evidence in the record as to whether appellant’s
January 25, 2013 accident occurred while he was on an employment-related site visit or whether
he was on a personal job hunting trip. As noted above, a claimed injury must arise in the course
of employment to be deemed a compensable injury in the performance of duty and, to arise in the
course of employment, the injury must occur at a time when the employee may reasonably be
stated to be engaged in the master’s business, at a place where he or she may reasonably be
expected to be in connection with the employment, and while he or she is reasonably fulfilling
the duties of his or her employment or engaged in doing something incidental thereto.17 The
contradictory evidence in the case record regarding the nature and purpose of appellant’s trip to
Texas in January 2013 means that the Board is currently unable to make a determination, under
the relevant standards, regarding whether he sustained an injury in the performance of duty on
January 25, 2013.
A workers’ compensation specialist for the employing establishment indicated that
appellant was not on a work-detail status from the employing establishment Medical Center as
alleged and that he was not on an official TDY or travel assignment at the time of his January 25,
2013 accident. However, although appellant’s immediate supervisor noted that on January 25,
2013 appellant was “not in a detail status,” she also made the contradictory statement that he was
“in a travel status.”
In addition, a TCFP national program manager provided evidence regarding the nature
and purpose of appellant’s January 2013 trip to Texas which contradicts evidence from
appellant’s immediate supervisor and the workers’ compensation specialist for the employing
establishment.18 In an April 8, 2015 e-mail to the TCFP national program manager, appellant
advised that in January 2013 he was traveling to Texas for a site visit on a short detail and that,
17

See supra note 14. See also C.R., Docket No. 17-0065 (issued March 28, 2017).

18

Appellant’s immediate supervisor and the workers’ compensation specialist for the employing establishment
provided opinions that appellant was not in the performance of duty at the time of the January 25, 2013 accident.

8

while he was in Texas, he was also going to interview for a permanent placement position with
the Valley Coastal Bend Health Care System. He asked the TCFP national program manager to
provide an opinion regarding whether he was in the line of duty while traveling to the Valley
Coastal Bend Health Care System facilities for a site visit. In an April 9, 2015 e-mail, she
replied, “As long as you were on official travel orders for a site visit as part of your two-year
training program, I would consider that on duty as for another other [sic] official trip you would
take for [Valley Coastal Bend].”19
Further uncertainty regarding the relationship of appellant’s trip to his employment is
created by the fact that expenses for his trip were reimbursed by the employing establishment.20
The record reflects that a TCFP official in Atlanta advised him on January 24, 2013 that he could
use TCFP funds for his trip to Texas, and that his request for reimbursement of expenses for the
period January 25 to February 5, 2013 was later approved by his immediate supervisor.21
Given the above-noted conflicting evidence in the case record, the Board finds that the
case must be remanded to OWCP for further development of the question of whether appellant
established an injury in the performance of duty on January 25, 2013. After carrying out this
development, OWCP shall issue a de novo decision on this matter.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
met his burden of proof to establish an injury in the performance of duty on January 25, 2013.
The case is remanded to OWCP for further development.

19

Appellant argued that the fact that TCFP required him to find a new job prior to his two-year anniversary in the
program meant that his job search activities would be considered part of his official duties. The Board notes that
there is evidence that, a day prior to the start of the trip on January 25, 2013, appellant’s immediate supervisor was
aware of appellant’s trip to conduct interviews for a potential new job at facilities in Texas. The record does not
contain a clear statement from an employing establishment official regarding whether the ostensible requirement
that appellant had to find employment outside the TCFP rendered the January 2013 trip to Texas related to his
employment.
20

The evidence of record indicates that appellant was driving his personal vehicle at the time of the January 25,
2013 accident, but he was reimbursed for mileage placed on the vehicle.
21

A March 28, 2013 e-mail sent to appellant through an automated response system indicates, “You have an
Expense Report which has been approved,” and lists his immediate supervisor as the “Final Approver.”

9

ORDER
IT IS HEREBY ORDERED THAT the November 25, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with this decision of the Board.
Issued: June 15, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
R.G., Appellant
)
)
and
)
)
DEPARTMENT OF ENERGY, WESTERN
)
AREA POWER ADMINISTRATION,
)
Golden, CO, Employer
)
___________________________________________ )

Docket No. 08-1411
Issued: May 19, 2009

Appearances:
Samuel W. Segrist, Esq., for the appellant
Office of Solicitor, for the Director

Case Submitted on the Record

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

JURISDICTION
On April 15, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ nonmerit decision dated April 27, 2007, denying his request for further
merit review of his claim. Because more than one year has elapsed between the most recent
merit decision dated August 8, 2006 and the filing of this appeal on April 15, 2008, the Board
lacks jurisdiction to review the merits of his claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of his claim under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 25, 1973 appellant, then a 47-year-old electrician, filed a traumatic injury claim
alleging that, on that same date, he sustained injuries to his left femur, multiple lumbar spine
fractures, and a fractured pelvis, as a result of a motor vehicle accident while in the performance

of duty.1 The Office accepted appellant’s claim for comminuted fracture to the left femur,
fracture transverse process L5 on the left side, fracture left hemi pelvis, fracture to the L4
vertebrae and urethral injury. The record also reflects that the Office authorized carpal tunnel
surgery on February 25, 2002. Further, the Office accepted a ventral hernia. Appellant received
appropriate compensation and benefits.2
In an August 11, 2004, report, Dr. Diane E. Giles, a Board-certified orthopedic surgeon
and treating physician, indicated that appellant presented with complaints of bilateral shoulder
pain. She reported full range of motion of the shoulders and found no crepitus over the flexor
tendons and noted that his shoulder joints were stable. Dr. Giles advised that appellant had
increased pain with ambulating with a walker and had to “use the walker all the time because of
his lower extremity deficits from multiple spine surgeries.” She diagnosed moderate
acromioclavicular (AC) joint arthritis bilaterally, myofascial pain in the shoulders and
impingement syndrome in the shoulders.
In an October 11, 2004 report, Dr. Giles advised that appellant was seen for follow up of
bilateral shoulder pain. She diagnosed osteoarthritis in the AC joints and myofascial pain in the
left scapula. In a January 7, 2005 report, Dr. Giles opined that the “shoulders are indeed related
to the original workers’ comp[ensation] injury because he has had to use crutches for several
years causing problems with his shoulders.”
In a letter dated January 31, 2005, the Office requested that appellant provide a letter
from his physician explaining the relationship of his shoulder condition to his accepted
conditions.
In a February 7, 2005 report, Dr. Giles advised that appellant ambulated with a “walker.
Loftstrand crutches and/or[a] cane.” She diagnosed AC joint arthritis bilaterally due to longterm use of assistive devices and opined that appellant’s shoulder condition was directly related
to the use of long-term assistive devices, which were required as a result of work-related motor
vehicle accident.
In an April 11, 2005 report, an Office medical adviser noted that, on August 11, 2004,
Dr. Giles reported full range of motion and found no crepitus over the flexor tendons of the
shoulders. Dr. Giles noted that appellant’s shoulder joints were reported as stable to testing. The
Office medical adviser opined that x-rays taken that date show minimal changes despite his age
and advised that the use of assistive devices did not require repetitive motion in the six planes of
shoulder motion which was the usual cause of shoulder conditions due to repetitive trauma. He
explained that the use of assistive devices required “fixed posturing of the shoulders which even
over many years would not be expected to cause a diagnosable condition in a shoulder.” The

1

The record reflects that appellant had a preexisting laminectomy in 1970 and liver disease.

2

On November 25, 1977 the Office issued a schedule award for a 40 percent impairment of the left leg.
Appellant underwent an authorized discectomy on October 16, 1992, which resulted in complications that included
loss of vision. On September 6, 1995 the Office granted appellant a schedule award for 100 percent impairment of
the right eye and 100 percent impairment of the left eye. On March 19, 1999 it granted appellant a schedule award
for 12 percent permanent impairment of the right leg.

2

Office medical adviser opined that appellant’s condition was age related and that the Office
should not accept the bilateral shoulder condition as a consequence of his work injury.
By decision dated June 28, 2005, the Office denied appellant’s claim for a consequential
bilateral shoulder condition.
On September 26, 2005 appellant’s representative requested reconsideration. He
enclosed a copy of a July 18, 2005 report from Dr. Giles, who diagnosed AC joint arthritis,
bicipital tendinitis and impingement syndrome, bilaterally. By decision dated October 24, 2005,
the Office denied appellant’s request for reconsideration without a review of the merits of the
claim.
On December 20, 2005 and February 6, 2006 appellant’s representative requested
reconsideration. He submitted a December 5, 2005 report from Dr. Giles. In her report,
Dr. Giles indicated that appellant had been using Loftstrand crutches for his back pain and
chronic ambulatory difficulties since his employment injury on May 27, 1973. She advised that
the crutches placed an abnormal strain across the shoulder joint. Dr. Giles explained that the
prolonged chronic stress across the shoulders and the AC joint secondary to the chronic assistive
device usage. She noted that appellant had maintained his range of motion but opined that “just
because he does not have any instability to the shoulder does not mean that there has not been
chronic wear.” Dr. Giles added that she was unable to cite to “any objective references for you
to use to appeal his claim.”
By decision dated April 19, 2006, the Office denied modification of the June 28, 2005
decision.
On June 29, 2006 appellant requested reconsideration and submitted additional evidence.
The additional evidence included a May 30, 2006 report from Dr. Bryan Scheer, a Boardcertified orthopedic surgeon, who diagnosed bilateral impingement syndrome with AC joint pain
and arthritis with likely small supraspinatous tendon tears. Dr. Scheer opined that he thought it
was “reasonable to assume that his injury followed by his subsequent long-term crutch use has
predisposed him to shoulder dysfunctional and rotator cuff pathology.” He noted that, while it
was “a common degenerative condition, he seems to have a good basis for these symptoms.”
By decision dated August 8, 2006, the Office denied modification of its previous
decision. It found that Dr. Scheer’s report was speculative and lacked adequate rationale to
include a bilateral condition.
By letter dated April 11, 2007, appellant’s representative requested reconsideration. He
submitted additional evidence, which included a copy of Dr. Scheer’s May 30, 2006 report.
Appellant’s representative alleged that the report of Dr. Scheer supported that appellant’s use of
crutches contributed to the arthritic condition in his shoulders.
By decision dated April 27, 2007, the Office denied appellant’s request for
reconsideration without a review of the merits on the grounds that his request was cumulative
and, thus, it was insufficient to warrant review of its prior decision.

3

LEGAL PRECEDENT
Under section 8128(a) of the Federal Employees’ Compensation Act,3 the Office may
reopen a case for review on the merits in accordance with the guidelines set forth in section
10.606(b)(2) of the implementing federal regulations, which provide that a claimant may obtain
review of the merits if the written application for reconsideration, including all supporting
documents, sets forth arguments and contains evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by the Office;
or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by the [the Office].”4
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.5
ANALYSIS
Appellant disagreed with the Office’s June 28, 2005 decision, which denied his claim for
a bilateral shoulder condition as a consequence of his employment-related injury. The
underlying issue on reconsideration was whether appellant submitted sufficient medical evidence
to show that he sustained a bilateral shoulder condition as a consequence of his accepted
employment injury. However, appellant did not provide any relevant or pertinent new evidence
to the issue of whether appellant sustained a bilateral shoulder condition as a consequence of his
accepted employment injury.
On reconsideration, appellant’s representative submitted a copy of Dr. Scheer’s May 30,
2006 report. However, this report was not new as it was previously submitted and considered in
the August 8, 2006 decision. The Board has held that submission of duplicative or repetitious
evidence is insufficient to require the Office to reopen a case for merit review.6
Consequently, the evidence submitted by appellant on reconsideration does not satisfy the
third criterion, noted above, for reopening a claim for merit review. Furthermore, appellant also
has not shown that the Office erroneously applied or interpreted a specific point of law, or
3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b).

5

20 C.F.R. § 10.608(b).

6

Edward W. Malaniak, 51 ECAB 279 (2000); Eugene F. Butler, 36 ECAB 393 (1984); Jerome Ginsburg, 32
ECAB 31 (1980).

4

advanced a relevant new argument not previously submitted. Therefore, the Office properly
denied his request for reconsideration.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for further
review of the merits of his claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 27, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 19, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 20-0040
Issued: May 17, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 4, 2019 appellant filed a timely appeal from an April 10, 2019 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 10, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish greater than 23
percent permanent impairment of her right upper extremity, for which she previously received
schedule award compensation.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
OWCP accepted that on October 21, 1997 appellant, then a 42-year-old mail handler,
sustained a right rotator cuff tear, right biceps rupture, disorder of right shoulder bursae/tendons,
right shoulder/rotator cuff/arm sprain, right shoulder joint pain, and right rotator cuff repair due to
lifting heavy mailbags she was carrying while in the performance of duty.4
By decision dated August 1, 2008, OWCP granted appellant a schedule award for seven
percent permanent impairment of her right upper extremity. The award ran for 21.84 weeks from
January 3 through June 4, 2002 with an effective date of pay rate and a date of maximum medical
improvement (MMI) of January 3, 2002. The weekly pay rate effective January 3, 2002 was
$757.50 which, when adjusted to reflect the augmented pay for a claimant with at least one
dependent as defined under FECA, yielded an adjusted weekly pay rate of $568.13.5
The schedule award was based on the July 23, 2008 report of Dr. Amon Ferry, a Boardcertified orthopedic surgeon and OWCP district medical adviser (DMA), who applied the
diagnosis-based impairment (DBI) rating method and determined that appellant had seven percent
permanent impairment of her right upper extremity under the standards of the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).6 He based his permanent impairment calculations on the physical examinations findings
by Dr. Carole Vetter, an attending Board-certified orthopedic surgeon.
On August 8, 2017 appellant filed a claim (Form CA-7) alleging entitlement to increased
schedule award compensation due to the right upper extremity conditions she sustained in

3

Docket No. 18-0968 (issued October 23, 2018).

4
The medical evidence of record references the fact that appellant underwent OWCP-authorized right rotator cuff
repair surgery on an unspecified date. Appellant worked in limited-duty positions for the employing establishment
without wage loss.
5
Section 8110(b) of FECA provides that total disability compensation will equal three-fourths of an employee’s
monthly pay when the employee has one or more dependents. 5 U.S.C. § 8110(b). Section 8105(a) of FECA provides
that, in the absence of a qualifying dependent: “If the disability is total, the United States shall pay the employee
during the disability monthly monetary compensation equal to 66 2/3 percent of his monthly pay, which is known as
his basic compensation for total disability.” 5 U.S.C. § 8105(a).
6

A.M.A., Guides (5th ed. 2001).

2

connection with her October 21, 1997 employment injury. On the Form CA-7 she advised that
she was not making support payments for a dependent.
On March 19, 2018 OWCP referred appellant’s case to Dr. David Garelick, a Boardcertified orthopedic surgeon serving as a DMA, and requested that he review the case record and
provide an opinion on the permanent impairment of her right upper extremity under the sixth
edition of the A.M.A., Guides. In a March 22, 2018 report, Dr. Garelick determined that, utilizing
the DBI rating method, she had seven percent permanent impairment of her right upper extremity
due to her right rotator cuff tear. He then indicated that he was providing an assessment of
appellant’s right upper extremity permanent impairment under the range of motion (ROM) rating
method, but found that he could not calculate such a rating because Dr. Vetter only measured
appellant’s right shoulder ROM one time for each motion. Dr. Garelick asserted that FECA
Bulletin No. 17-06 required three independent measurements of each shoulder motion to be taken
in order to qualify for a permanent impairment rating under the ROM method.
By decision dated March 26, 2018, OWCP found that appellant did not meet her burden of
proof to establish more than seven percent permanent impairment of her right upper extremity, for
which she previously received a schedule award. It based its determination on Dr. Garelick’s
March 22, 2018 report.
Appellant appealed the case to the Board and, by decision dated October 23, 2018,7 the
Board set aside OWCP’s March 26, 2018 decision and remanded the case to OWCP for further
development. The Board directed OWCP to further develop the medical evidence in accordance
with the relevant standards, including FECA Bulletin No. 17-06 (issued May 8, 2017), and to issue
a de novo decision regarding appellant’s permanent impairment.
On remand OWCP sent Dr. Vetter a February 13, 2019 letter requesting that she provide
updated ROM findings for appellant’s right shoulder, including obtaining three measurements for
each type of ROM per the standards of FECA Bulletin No. 17-06. It afforded Dr. Vetter 30 days
to respond.
In a February 21, 2019 report, Dr. Vetter indicated that she obtained new ROM findings
for appellant’s right shoulder, which included obtaining three measurements for each type of
ROM. She reported the following ROM findings: flexion to 65, 60, and 60 degrees; extension to
15, 10, and 10 degrees; abduction to 70, 70, and 65 degrees; internal rotation to 40, 40, and 40
degrees; and external rotation to 20, 20, and 20 degrees.
On March 11, 2019 OWCP referred the case to Dr. Garelick, in his role as a DMA, and
requested that he review the medical evidence of record, including Dr. Vetter’s February 21, 2019
report, and provide an opinion on the permanent impairment of appellant’s right upper extremity
under the sixth edition of the A.M.A., Guides.
In a March 13, 2019 report, Dr. Garelick indicated that he had reviewed the medical
evidence of record, including Dr. Vetter’s February 21, 2019 report. He referred to the sixth
edition of the A.M.A., Guides and utilized the DBI rating method to find that, under Table 15-5
7

Supra note 3.

3

(Shoulder Regional Grid), page 503, the class of diagnosis (CDX) for appellant’s full-thickness
tear of the right rotator cuff (functional with normal motion) resulted in a class 1 impairment with
a default value of five. Dr. Garelick assigned a grade modifier for functional history (GMFH) of
2 and a grade modifier for physical examination (GMPE) of 2. He found that a grade modifier for
clinical studies (GMCS) was not applicable. Dr. Garelick utilized the net adjustment formula,
(GMFH - CDX) + (GMPE - CDX) = (2 - 1) + (2 - 1) = +2, which resulted in a grade E or seven
percent permanent impairment of the right upper extremity. He noted that Table 15-5 allowed for
utilization of the ROM rating method for appellant’s right shoulder condition and referenced Table
15-34 (Shoulder Range of Motion), page 475, to find the following impairment rating for deficits
upon various types of ROM of the right shoulder: nine percent for 60 degrees of flexion; two
percent for 20 degrees of extension; six percent for 70 degrees of abduction; four percent for 40
degrees of internal rotation; and two percent for 20 degrees of external rotation. Dr. Garelick
combined these values to equal 23 percent permanent impairment of the right upper extremity. He
concluded that appellant had 23 percent permanent impairment of the right upper extremity given
that she had a higher rating for permanent impairment under the ROM rating method. Dr. Garelick
advised that, since appellant had previously received a schedule award for 7 percent permanent
impairment of the right upper extremity, she was now entitled to an additional schedule award for
16 percent permanent impairment of that extremity.
By decision dated March 22, 2019, OWCP granted appellant a schedule award for an
additional 16 percent permanent impairment of her right upper extremity. The award was based
on the February 21, 2019 report of Dr. Vetter and the March 13, 2019 impairment rating of
Dr. Garelick, serving as the DMA. It ran for 49.92 weeks from June 5, 2002 to May 20, 2003 with
an effective date-of-pay rate of January 3, 2002 and a date of MMI of February 21, 2019. OWCP
indicated that the weekly pay rate effective January 3, 2002 was $757.50 which, when adjusted to
reflect the augmented 75 percent pay rate for a claimant with at least one dependent as defined
under FECA, yielded an adjusted weekly pay rate of $568.13.8 It noted on the face of the schedule
award that the total amount of schedule award compensation that appellant was entitled to receive
was $28,517.37.
On April 10, 2019 OWCP amended its March 22, 2019 decision and issued a corrected
decision in which it granted appellant a schedule award for an additional 16 percent permanent
impairment of her right upper extremity which ran for 49.92 weeks.9 The award was also based
on the February 21, 2019 report of Dr. Vetter and the March 13, 2019 impairment rating of
Dr. Garelick, serving as DMA. However, OWCP corrected its March 22, 2019 decision to reflect
that appellant was not entitled to the augmented pay rate because she did not have at least one
dependent as defined under FECA. It noted that adjusting the weekly pay rate of $757.50 (effective
date January 3, 2002) to reflect her nonaugmented 66 2/3 percent pay rate yielded an adjusted
weekly pay rate of $505.00.10 OWCP also corrected its prior decision to reflect that the award ran
8

OWCP indicated that cost-of-living adjustments (COLAs) raised the weekly compensation at the augmented rate
to $581.75.
OWCP advised appellant that it had issued the March 22, 2019 decision before “certification of your schedule
award benefit.”
9

10

OWCP indicated that COLAs did not apply.

4

from February 21, 2019 to February 5, 2020 with a date of MMI of February 21, 2019.11 It paid
appellant $25,135.32 in connection with the April 10, 2019 schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA,12 and its implementing federal regulations,13 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.14 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.15
In determining impairment for the upper extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity
to be rated. With respect to the shoulder, the relevant portion of the arm for the present case,
reference is made to Table 15-5 (Shoulder Regional Grid) beginning on page 401. After the CDX
is determined from the Shoulder Regional Grid (including identification of a default grade value),
the net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).16 Under Chapter 2.3, evaluators
are directed to provide reasons for their impairment rating choices, including choices of diagnoses
from regional grids and calculations of modifier scores.17
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish greater than 23
percent permanent impairment of her right upper extremity, for which she previously received
schedule award compensation.
OWCP properly determined that appellant had 23 percent permanent impairment of her
right upper extremity based on the March 13, 2019 report of Dr. Garelick, the DMA interpreting
the February 21, 2019 clinical findings of Dr. Vetter. Dr. Garelick properly applied the standards
of the sixth edition of the A.M.A., Guides to the examination findings of record, including those
11

February 21, 2019 was the date of the most recent examination by Dr. Vetter.

12

5 U.S.C. § 8107.

13

20 C.F.R. § 10.404.

14

Id.

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter
2.808.5a (March 2017); id. at Chapter 3.700.2 and Exhibit 1 (January 2010).
16

See A.M.A., Guides (6th ed. 2009) 405-12. Table 15-5 also provides that, if motion loss is present for a claimant
with certain diagnosed conditions, permanent impairment may alternatively be assessed using section 15.7 (ROM
impairment). Such a ROM rating stands alone and is not combined with a DBI rating. Id. at 401-05, 475-78.
17

Id. at 23-28.

5

of Dr. Vetter, an attending physician. He correctly utilized the DBI rating method to find that,
under Table 15-5 (Shoulder Regional Grid), page 503, the CDX for appellant’s full-thickness tear
of the right rotator cuff (functional with normal motion) resulted in a class 1 impairment with a
default value of five.18 Dr. Garelick assigned a GMFH of 2 and a GMPE of 2, and found that a
GMCS was not applicable. He utilized the net adjustment formula, (GMFH - CDX) + (GMPE CDX) = (2 - 1) + (2 - 1) = +2, which resulted in a grade E or seven percent permanent impairment
of the right upper extremity.19 Dr. Garelick properly noted that Table 15-5 allowed for utilization
of the ROM rating method for appellant’s right shoulder condition and referenced Table 15-34
(Shoulder Range of Motion), page 475, to find the following impairment rating for deficits upon
various types of ROM of the right shoulder: nine percent for 60 degrees of flexion; two percent
for 20 degrees of extension; six percent for 70 degrees of abduction; four percent for 40 degrees
of internal rotation; and two percent for 20 degrees of external rotation.20 He combined these
values to equal 23 percent permanent impairment of the right upper extremity and properly
concluded that she had 23 percent permanent impairment of the right upper extremity given that
she had a higher rating for permanent impairment under the ROM rating method.21 Dr. Garelick
advised that, since appellant previously received a schedule award for 7 percent permanent
impairment of the right upper extremity, she was now entitled to an additional schedule award for
16 percent permanent impairment of that extremity, for a total 23 percent permanent impairment.
The Board also finds that OWCP properly found that the date of MMI was February 21, 2019, the
date of Dr. Vetter’s most recent examination.22
On appeal, appellant argues that she should have received $28,517.37 in schedule award
compensation, rather than the $25,135.32 she actually received. However, she was not entitled to
receive $28,517.37 in schedule award compensation because that calculation, referenced in the
March 22, 2019 schedule award decision, was based on the improper assumption that she was
entitled to receive schedule award compensation at the augmented 75 percent rate for a claimant
with at least one dependent as defined under FECA. OWCP amended the March 22, 2019 schedule
award decision after it was discovered that appellant was not entitled to receive schedule award
compensation at the augmented 75 percent rate because she no longer had at least one dependent
as defined under FECA.23 It then issued an April 10, 2019 schedule award decision in which it
properly calculated that she was entitled to $25,135.32 in schedule award compensation based on

18

See A.M.A., Guides 503, Table 15-5.

19

See supra note 16.

20

See A.M.A., Guides 475, Table 15-34.

21

See T.B., Docket No. 20-0642 (issued September 30, 2020).

22

Supra note 15 at Chapter 3.700.3a(1)(c) (January 2010) (the date of MMI is usually considered to be the date of
the evaluation accepted as definitive by OWCP).
23
On August 8, 2017 appellant filed a Form CA-7 claiming entitlement to increased schedule award compensation.
On the Form CA-7, she advised that she was not making support payments for a dependent.

6

the fact that she was only entitled to receive schedule award compensation at the nonaugmented
rate of 66 2/3 percent.24
Appellant may request a schedule award or increased schedule award at any time 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 met her burden of proof to establish greater than 23
percent permanent impairment of her right upper extremity, for which she previously received
schedule award compensation.

24

See supra note 5.

7

ORDER
IT IS HEREBY ORDERED THAT the April 10, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 17, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8