United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF AGRICULTURE, FOOD
SAFETY & INSPECTION SERVICE,
Minneapolis, MN, Employer
__________________________________________

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

Docket No. 17-0974
Issued: January 16, 2018

Case Submitted on the Record

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

JURISDICTION
On April 3, 2017 appellant filed a timely appeal from a November 17, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of his lungs, warranting a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances outlined in
the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On March 29, 2006 appellant, then a 45-year-old inspector, filed an occupational disease
claim (Form CA-2) alleging that he experienced dry mouth, coughing, headaches, upset stomach,
chest pain, tightness of the chest, and nose and throat irritation due to a sharp and unusual smell
in the air while working. He first became aware of his condition on March 7, 2006.
On March 14, 2006 appellant’s supervisor noted that appellant reported symptoms that he
attributed to high ozone levels at the employing establishment. He advised that the employing
establishment had previously had a problem with the automated chlorine system which resulted
in a strong chlorine smell and burning eyes for some employees. The supervisor reported that
both ozone and chlorine were used to reduce the pathogens present in the slaughter environment.
In a report dated April 19, 2006, Dr. Tracy T. Phillips, an osteopath, indicated that
appellant reported that he was exposed to ozone gases at work. Appellant listed his symptoms as
headaches, chest tightness, shortness of breath, and thickened saliva. Dr. Phillips reported that
appellant’s chest x-ray was normal and referred him to a pulmonologist.
OWCP accepted appellant’s claim on May 25, 2006 for exposure to unspecified gas,
fume, or vapor with a toxic effect and unspecified asthma with acute exacerbation. It authorized
wage-loss compensation benefits from March 15 through April 4, 2006. Appellant was
transferred to another location at the employing establishment on July 9, 2006 and reported
additional symptoms. OWCP authorized wage-loss compensation benefits from October 2
through November 25, 2006.
On September 10, 2013 appellant filed a claim for a schedule award (Form CA-7). In a
letter dated September 18, 2013, OWCP requested that he provide additional medical evidence
addressing his permanent impairment due to his accepted conditions in accordance with the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment.3
OWCP subsequently received a note from Dr. Ali Al-Nashif, a Board-certified sleep
specialist, following an April 12, 2013 examination of appellant diagnosing occupational asthma.
Dr. Al-Nashif indicated that appellant’s symptoms worsened in the workplace. He opined that
appellant’s workplace exposure caused a permanent condition and permanent restrictions from
exposure to chemicals.
OWCP referred appellant’s medical records and his request for a schedule award to
OWCP’s medical adviser on November 4, 2013. In a report dated November 10, 2013, OWCP’s
2

Docket No. 16-1044 (issued October 20, 2016).

3

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

2

medical adviser requested pulmonary function studies to determine whether appellant had any
permanent impairment as a result of his accepted condition of asthma.
OWCP referred appellant for a second opinion examination with Dr. Robert Walter, a
Board-certified pulmonologist, on June 6, 2014. Dr. Walter examined appellant on July 8, 2014
and noted his history of chemical exposure at work. He found that appellant’s nose was normal
and that his mouth and throat exhibited prominent turbinates with somewhat boggy, blue
mucosa. Dr. Walter found that appellant used normal effort in his pulmonary examination with
no stridor, respiratory distress, wheezes, rales or tenderness. He diagnosed occupational asthma
and noted that appellant exhibited bronchial hyperresponsiveness while working at the
employing establishment since 2006. Dr. Walter opined that appellant’s condition was
permanent and had reached maximum medical improvement (MMI). He reported that appellant
had continued symptoms of runny nose, nasal congestion, facial pressure, and wheezing or
dyspnea. Dr. Walter reported that appellant used a short-acting beta agnostic (SABA) inhaler
twice a day and about one canister a month. Appellant explained that he awakened most nights
wheezing and could climb only one flight of stairs without having to rest. Dr. Walter noted that
asthma severity was rated on a multidimensional scale, including physiology, clinical and
functional assessment. He found that appellant’s asthma was not well controlled and his
impairment rating would be class 3, 28 percent based on clinical parameters. Dr. Walter reported
that appellant’s spirometry was normal, but his prior monitoring suggested significant airflow
variability. He provided appellant’s pulmonary function testing. This demonstrated a forced
expiratory volume within the first second (FEV1) of 108 percent of reference and forced vital
capacity (FVC) of 103 percent of reference with the FEV1/FVC ratio of 104 percent which was
normal. Spirometry and lung volumes were within normal limits, and diffusing capacity was
normal. Dr. Walter did not provide post-bronchodilator studies.
OWCP’s medical adviser reviewed the medical record as well as Dr. Walter’s report on
September 30, 2014 and determined that appellant had reached MMI. He reported that the
record before OWCP did not support that appellant had been treated for pulmonary mediated
symptoms after 2006. OWCP’s medical adviser applied the A.M.A., Guides,4 to the pulmonary
function test results and found no ratable permanent impairment of either lung. He concluded
that appellant’s pulmonary conditions had resolved.
By decision dated September 30, 2014, OWCP denied appellant’s claim for a schedule
award as he had not met his burden of proof to establish a ratable impairment to a scheduled
member.
On October 30, 2014 appellant requested a review of the written record from OWCP’s
Branch of Hearings and Review. He argued that OWCP’s medical adviser had improperly
applied Table 5-4 Pulmonary Dysfunction,5 rather than Table 5-5 of the A.M.A., Guides, which
addresses impairments due to asthma.6 Appellant argued that he required medication to treat his
4

A.M.A., Guides 90, Table 5-5, Criteria for Rating Permanent Impairment due to Asthma.

5

Id. at 88, Table 5-4.

6

Supra note 4.

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condition and that he had frequent attacks as documented by Drs. Al-Nashif and Walter. In
support of this request, he submitted notes dated June 19, 2007, November 2, 2010, and April 15,
2013 from Dr. Mohammad Zakiullah, a general practitioner, diagnosing bronchial asthma.
Appellant resubmitted Dr. Al-Nashif’s January 23, 2012 note and a note dated April 12, 2013.
By decision dated April 17, 2015, an OWCP hearing representative affirmed OWCP’s
September 30, 2014 decision. She found that the weight of the medical evidence did not
establish a ratable pulmonary impairment for schedule award purposes.
On June 12, 2015 appellant requested reconsideration. He asserted that he had a class 3
impairment for 28 percent for occupational asthma and that he required further medical
treatment. Appellant resubmitted Dr. Walter’s July 8, 2014 report. He also submitted additional
medical records addressing his left ankle injury in 2014.
By decision dated August 24, 2015, OWCP denied appellant’s request for reconsideration
of the merits of his claim, finding that the evidence he submitted was repetitious or irrelevant.
Appellant again requested reconsideration on October 23, 2015. He provided his
interpretation of Dr. Walter’s second opinion report. Appellant also submitted a note dated
May 29, 2015 from Dr. Walter and an October 13, 2015 letter. Dr. Walter reviewed OWCP’s
decision with appellant on May 29, 2015 and contended that normal spirometry did not exclude
the diagnosis of asthma. He also opined that OWCP used only a single dimension of the
A.M.A., Guides rating scale to determine appellant’s disability.
Dr. Walter completed a report on October 13, 2015. He noted that asthma was
characterized by episodic increased in airflow obstruction, which may be fully normalized
between exacerbations. Dr. Walter found that measuring asthma required multidimensional tools
and that reliance on a single metric such as FEV1 did not appropriately capture disease severity.
He noted that the current A.M.A., Guides recognized that spirometry/FEV1 was variable and
depended on adequacy of therapy. Dr. Walter contended that FEV1 could be entirely normal
after a dose of SABA. He reported that the A.M.A., Guides provide for both bronchial
hyperresponsiveness and FEV1 in quantifying disease severity. Dr. Walter opined that a
disability determination using solely FEV1 would not comport with these standards. He noted
that appellant had documented bronchial hyperresponsiveness evidenced by his serial pulmonary
function tests and peak flow measures. Dr. Walter contended that the degree of appellant’s
bronchial hyperresponsiveness had not been quantified. He noted, “It is notable that he, at our
last encounter, was on daily inhaled steroids as well as leukotriene inhibitors and was still using
daily inhaled bronchodilators. This would suggest, using [the A.M.A., Guides], at least a
mild/moderate (i.e., class 2 or 3) disability.”
By decision dated January 12, 2016, OWCP denied appellant’s request for
reconsideration of the merits of his claim. It found that Dr. Walter’s notes were cumulative.
Appellant appealed to the Board and by its October 20, 2016 decision, the Board remanded the
case for consideration of the merits of his claim.7 Following remand from the Board, OWCP
referred the medical evidence to a different medical adviser. In his November 8, 2016 report, the
7

Supra note 2.

4

medical adviser reviewed the A.M.A., Guides and found that the appropriate provision for rating
permanent impairment was Table 5-4, page 88. He again reviewed appellant’s pulmonary
function numbers, the key factors under the A.M.A., Guides, to determine appellant’s pulmonary
dysfunction for schedule award purposes. The medical adviser ascertained that the objective
pulmonary function tests were all consistent with class 0 indicating zero percent impairment. He
noted, “So, although airway hyperresponsiveness may exist and warrant chronic medications, no
impairment is found and job disability is based on the exposures that the specific job may entail.”
The medical adviser concluded, “Based on the A.M.A., Guides 6th edition, I feel that the level of
overall respiratory impairment for this claimant is class 0, zero percent based on my above
explanation of factors using the A.M.A., Guides 6th edition, page 88, Table 5-4 and the provided
texts from page 89.”
By decision dated November 17, 2016, OWCP denied modification of the prior schedule
award decision.
LEGAL PRECEDENT
The schedule award provisions of FECA8 and its implementing regulations9 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of use of scheduled members or functions of the body. FECA, however, does not specify
the manner in which the percentage loss of a member shall be determined. The method used in
making such determination is a matter which rests in the discretion of OWCP. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so
that there may be uniform standards applicable to all claimants. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.10
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).11 Chapter 5 of the A.M.A., Guides addresses the framework to be used for
evaluating the pulmonary system.12
OWCP’s procedures provide that all claims involving impairment of the lungs will be
evaluated by first establishing the class of respiratory impairment, following the A.M.A., Guides
as far as possible. Awards are based on the loss of use of both lungs and the percentage for the
applicable class of whole person respiratory impairment will be multiplied by 312 weeks (twice
8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.5a (February 2013); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
11

A.M.A., Guides 3, Section 1.3, The [ICF,] Disability, and Health: A Contemporary Model of Disablement.

12

Id. at 77-99.

5

the award for loss of function of one lung) to obtain the number of weeks payable in the schedule
award.13 The procedures further provide that, after obtaining all necessary medical evidence, the
file should be routed to the medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing
rationale for the percentage of impairment specified.14
ANALYSIS
The Board finds that appellant has failed to meet his burden of proof to establish
permanent impairment of his lungs, warranting a schedule award.
OWCP accepted appellant’s claim for exposure to unspecified gas, fume, or vapor with a
toxic effect and unspecified asthma with acute exacerbation. Dr. Walter, OWCP’s second
opinion physician, diagnosed occupational asthma and noted that appellant exhibited bronchial
hyperresponsiveness while working at the employing establishment since 2006. He noted that
appellant used his SABA inhaler twice a day and about one canister a month. Dr. Walter found
that appellant’s asthma was not well controlled and his impairment rating would be class 3, 28
percent based on clinical perimeters.15 He also provided appellant’s spirometry results which
resulted in FEV1 of 108 percent of reference. In his supplemental report of October 13, 2015,
Dr. Walter noted that asthma was characterized by episodic increased in airflow obstruction,
which may be fully normalized between exacerbations. He found that measuring asthma
required multidimensional tools and that reliance on a single metric such as FEV1 did not
appropriately capture disease severity. Dr. Walter noted that the current A.M.A., Guides
recognizes that spirometry/FEV1 was variable and depended on adequacy of therapy and
contended that FEV1 could be entirely normal after a dose of SABA. He reported that the
A.M.A., Guides provides for both bronchial hyperresponsiveness and FEV1 in quantifying
disease severity. Dr. Walter opined that a disability determination using solely FEV1 would not
comport with these standards.
He noted that appellant had documented bronchial
hyperresponsiveness evidenced by his serial pulmonary function tests and peak flow measures.
Dr. Walter contended that the degree of appellant’s bronchial hyperresponsiveness had not been
quantified. He noted, “It is notable that he, at our last encounter, was on daily inhaled steroids as
well as leukotriene inhibitors and was still using daily inhaled bronchodilators. This would
suggests, using [the A.M.A., Guides], at least a mild/moderate (i.e., class 2 or 3) disability.
The A.M.A., Guides provides for evaluation of asthma under Table 5-5 for asthma.14
The objective tests for asthma impairment are not the same as for the pulmonary function
impairment under Table 5-4.16 However, both tables begin rating impairment with FEV1 at 80
percent or less of predicted. There is no medical evidence of record supporting that appellant’s
FEV1 was 80 percent or less than predicted. Dr. Walter’s pulmonary function testing
demonstrated FEV1 of 108 percent of predicted. Furthermore, OWCP’s medical adviser
13

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(d)(1) (January 2010).

14

Id. at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(f) (February 2013).

15

Supra note 4.

16

W.C., Docket No. 16-1357 (issued March 9, 2017).

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disagreed with Dr. Walter’s interpretation of the A.M.A., Guides noting that Table 5-5 was not
used to determine impairment for airway hyperresponsiveness when there was an absence of
airflow limitation with asthma treatment. Table 5-5 of the A.M.A., Guides begins with a
maximum postbrochodilator FEV1 of 80 percent of predicted and then descends to 50 percent.
As appellant’s FEV1 percentage was 108 percent of reference, Table 5-5 is not applicable.17 The
A.M.A., Guides note that the individual with airway hyperresponsiveness may have no
measurable impairment (solely determined by lung function test values).18
OWCP’s medical adviser properly determined that Table 5-5 was not applicable and then
proceeded to evaluate appellant’s lung impairment in accordance with Table 5-4 of the A.M.A.,
Guides. Under Table 5-4 for Pulmonary Dysfunction, appellant’s pulmonary function testing
also did not comport with any of the objective test standards listed in Table 5-4.19 For example
an FVC value of 103 percent would not result in a ratable impairment. The FEV1 of 108 is not a
ratable test result, nor is FEV1/FVC of 104 percent. As appellant’s airway hyperresponsiveness
is not ratable by the A.M.A., Guides, he is not entitled to a schedule award for his accepted lung
conditions.20
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 employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of his lungs warranting a schedule award.

17
A.M.A., Guides 89. “Note that in the absence of airflow limitation with asthma treatment, Table 5-5 may not
be used to determine impairment for airway hyperresponsiveness….”
18

Id.

19

Supra note 5.

20

D.B., Docket No. 16-1050 (issued October 5, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the November 17, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 16, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, San Diego, CA, Employer
__________________________________________

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

Docket No. 10-1603
Issued: May 4, 2011

Case Submitted on the Record

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

JURISDICTION
On June 1, 2010 appellant filed a timely appeal of a May 19, 2010 Office of Workers’
Compensation Programs’ merit decision denying his request for a schedule award. Pursuant to
the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant sustained ratable impairment to a scheduled member based
on his accepted back injury.
FACTUAL HISTORY
This case has previously been before the Board on appeal. On August 14, 2004
appellant, then a 33-year-old transportation security screener, sustained a back injury while
1

5 U.S.C. § 8101 et seq.

lifting a heavy bag. The Office accepted his claim for thoracic and lumbar strain and sprain. It
entered appellant on the periodic rolls. The Office subsequently accepted an L5-S1 disc
herniation with radicular symptoms and authorized surgery. Dr. Kamshad Raiszadeh, a Boardcertified orthopedic surgeon performed an L5 laminectomy with decompression of the exiting L5
nerve root on August 29, 2005. The Office referred appellant for vocational rehabilitation
services.
On June 28, 2006 Dr. Raiszadeh stated that appellant’s condition had stabilized. He
found limited range of motion of the lumbar spine with normal motor and sensory examination.
Dr. Raiszadeh diagnosed L5-S1 disc injury with back and radicular symptoms markedly
improved after lumbar interbody fusion with instrumentation. He rated appellant’s permanent
impairment under the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment.2 Dr. Raiszadeh found 20 percent impairment of the whole
person due to radiculopathy and alteration of motion segment integrity. He found no objective
evidence of atrophy, weakness or reflex changes.
Dr. Arthur S. Harris, a Board-certified orthopedic surgeon, reviewed appellant’s case on
behalf of the Office and found that he had pain and decreased sensation along the S1 nerve root
that interfered with some activity. He rated three percent impairment to each lower extremity.
By decision dated May 21, 2009, the Office granted appellant schedule awards for three
percent impairment of each of his lower extremities. Appellant appealed this decision to the
Board. On March 25, 2010 the Board issued an order remanding the case and directed the Office
to apply the sixth edition of the A.M.A., Guides to calculate appellant’s permanent impairment.3
On April 24, 2010 Dr. Harris reviewed appellant’s claim and stated, “For purposes of calculating
a schedule award for the left lower extremity utilizing the A.M.A., Guides, sixth edition, the
claimant has two percent impairment of the left lower extremity for residual problems with
moderate pain/impaired sensation from lumbar radiculopathy.” He found that appellant had no
ratable impairment of the right lower extremity.
By decision dated May 19, 2010, the Office denied appellant’s request for an additional
schedule award finding that appellant had no more than three percent impairment of each of his
lower extremities for which he had received schedule awards.
LEGAL PRECEDENT
The schedule award provision of the Act4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of loss of use, of scheduled members or functions of the body. The Act, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
2

A.M.A., Guides, 5th ed. (2000).

3

Docket No. 09-1598 (issued March 25, 2010).

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

2

used in making such determination is a matter which rests in the discretion of the Office. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The Office evaluates
the degree of permanent impairment according to the standards set forth in the specified edition
of the A.M.A., Guides. As of May 1, 2009, any decision regarding a schedule award must be
based on the sixth edition.6
The Act does not authorize the payment of schedule awards for the permanent
impairment of the whole person.7 Payment is authorized only for the permanent impairment of
specified members, organs or functions of the body.
No schedule award is payable for a member, function or organ of the body not specified
in the Act or in the regulations.8 Because neither the Act nor the regulations provide for the
payment of a schedule award for the permanent loss of use of the back or spine,9 no claimant is
entitled to such an award.10
Amendments to the Act, however, modified the schedule award provisions to provide for
an award for permanent impairment to a member of the body covered by the schedule regardless
of whether the cause of the impairment originated in a scheduled or nonscheduled member. As
the schedule award provisions of the Act include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to a limb even though the cause of the impairment
originated in the spine.11
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition, Class of Diagnosis (CDX), which is then adjusted
by grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX).12
ANALYSIS
The Office accepted that appellant sustained thoracic and lumbar sprains and strains and
an L5-S1 disc herniation with radicular symptoms due to his August 14, 2004 employment
injury. Appellant requested a schedule award and submitted a report from Dr. Raiszadeh who
6

Id. For impairment ratings calculated on and after May 1, 2009, the Office should advise any physician
evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards & Permanent Disability Claims, Chapter 2.0808.6.a (January 2010).
7

Ernest P. Govednick, 27 ECAB 77 (1975); W.D., Docket No. 10-274 (issued September 3, 2010).

8

William Edwin Muir, 27 ECAB 579 (1976); W.D., supra note 7.

9

The Act itself specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

10

Timothy J. McGuire, 34 ECAB 189 (1982); W.D., supra note 7.

11

Rozella L. Skinner, 37 ECAB 398 (1986); W.D., supra note 7.

12

A.M.A., Guides 521. J.B., Docket No. 09-2191 (issued May 14, 2010).

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rated impairment under the fifth edition of the A.M.A., Guides and finding 20 percent
impairment of the whole person. This rating is of diminished probative value. Dr. Raiszadeh did
not provide an impairment rating in accordance with the sixth edition of the A.M.A., Guides.
Moreover, he expressed his impairment rating in terms of the whole person. It is well
established that a schedule award is not payable for impairment of the back or spine13 nor does
the Act or implementing regulations provide a schedule award for the body as a whole.14
On April 24, 2010 Dr. Harris, the Office medical consultant, concluded that appellant had
two percent impairment of his left lower extremity and no ratable impairment of his right lower
extremity. He did not, however, explain how he applied the sixth edition of the A.M.A., Guides
in reaching his determination. The sixth edition of the A.M.A., Guides does not provide a
separate mechanism for rating spinal nerve injuries as extremity impairment. Recognizing that
certain jurisdictions, such as under the Act, mandate ratings for extremities and preclude ratings
for the spine, the A.M.A., Guides has offered an approach to rating spinal nerve impairments
consistent with sixth edition methodology.15 The Office has adopted this approach for rating
impairment to the upper or lower extremities caused by a spinal injury.16 The Board will remand
the case for proper application of the A.M.A., Guides and further medical opinion to determine
the extent of permanent impairment to appellant’s lower extremities.
CONCLUSION
The Board finds that the case is not in posture for decision.

13

See Tania R. Keka, 55 ECAB 354 (2004).

14

See Guiseppe Aversa, 55 ECAB 164 (2003).

15

Rating Spinal Nerve Extremity Impairment Using the Sixth Edition, the A.M.A., Guides Newsletter (A.M.A.,
Guides Chicago, IL), July/August 2009.
16

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 (January 2010) (Exhibit
1, 4). G.N., Docket No. 10-850 (issued November 12, 2010).

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ORDER
IT IS HEREBY ORDERED THAT that the May 19, 2010 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceeding
consistent with this opinion of the Board.
Issued: May 4, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Huntley, IL, Employer
__________________________________________

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Appearances:

Docket No. 16-0476
Issued: July 15, 2016

Case Submitted on the Record

Mark A. Braun, Esq., for the appellant1
Office of Solicitor, for the Director

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

JURISDICTION
On January 12, 2016 appellant, through counsel, filed a timely appeal from a
July 16, 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 the case.3
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board.
20 C.F.R. § 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board.
Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor,
subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of
fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from July 16, 2015, the date of OWCP’s last decision was
January 12, 2016. Since using January 13, 2016, the date the appeal was received by the Clerk of the Appellate
Boards would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The date of
the U.S. Postal Service postmark is January 12, 2016, rendering the appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

ISSUE
The issue is whether appellant has more than 12 percent permanent impairment of the
right upper extremity for which he received a schedule award.
FACTUAL HISTORY
On January 22, 2006 appellant, then a 50-year-old letter carrier, injured his right shoulder
when he slipped and fell on ice while delivering mail. OWCP accepted the claim for right
shoulder contusion, closed fracture of the right sternal end clavicle, and right calcifying tendinitis
of the shoulder. It expanded the claim to include arthritis of the right acromioclavicular (AC)
joint and partial thickness insertional tear of the right infraspinatus tendon. Appellant stopped
work on January 25, 2006, returned to part-time limited-duty work on February 7, 2006, and
thereafter full-time work.
A magnetic resonance imaging (MRI) scan of the right shoulder dated January 25, 2006
revealed findings consistent with nondisplaced fracture involving the distal clavicle and partial
thickness insertional tear of the infraspinatus tendon. Appellant came under the treatment of
Dr. David McCarty, a Board-certified orthopedist, who, on April 2, 2007, performed an
authorized arthrotomy of the right shoulder with distal clavicle resection and acromioplasty for
decompression, exploration of the rotator cuff for incomplete tear of the supraspinatus, and
debridement and repair of site of incomplete tear of the rotator cuff.
Appellant filed a claim for a schedule award (Form CA-7) and submitted a
January 27, 2009 report from Dr. Jeffrey Coe, a Board-certified orthopedist. Dr. Coe diagnosed
right shoulder internal derangement with aggravation of degenerative arthritis of the right AC
joint, and partial rotator cuff tear with rotator cuff impingement. He opined that under the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment,4 (A.M.A., Guides) appellant had eight percent permanent impairment of the right
arm based on loss of range of motion.
In an April 15, 2009 report, an OWCP medical adviser reviewed the medical records
provided and opined that in accordance with the sixth edition of the A.M.A., Guides,5 appellant
sustained 12 percent impairment of the right arm due to loss of shoulder range of motion (ROM).
The medical adviser diagnosed right AC joint arthritis and partial rotator cuff tear.
In a decision dated May 15, 2009, OWCP granted appellant a schedule award for 12
percent permanent impairment of the right upper extremity. The period of the award was from
February 27 to November 16, 2009.
On July 21, 2010 appellant filed a traumatic injury claim, Form CA-1, alleging that on
that same date he reached to grab a falling parcel and felt a rip and pain in his right bicep region.
OWCP accepted his claim for right shoulder/rotator cuff sprains and right biceps tendon rupture,

4

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

5

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

2

claim number xxxxxx373. This claim was consolidated with the current case before the Board,
which serves as the master file number.
Appellant came under the treatment of Dr. Joshua Alpert, a Board-certified orthopedist.
On October 18, 2010 Dr. Alpert performed an authorized right shoulder arthroscopy with
debridement of rotator cuff, arthroscopic partial synovectomy, subacromial decompression, and
open biceps tenodesis. He diagnosed right shoulder proximal biceps tear, extensive synovitis,
subacromial bursitis with impingement, and partial thickness rotator cuff tear, less than 20
percent.
On April 22, 2011 appellant filed a claim for an additional schedule award. On April 29,
2011 OWCP requested that Dr. Alpert evaluate the extent of appellant’s permanent impairment
under the A.M.A., Guides. In a May 4, 2011 report, Dr. Alpert noted that appellant had done
well postsurgery following his October 2010 right shoulder arthroscopy and biceps tenodesis,
advising that appellant had returned to his employing establishment position, and his second job.
He diagnosed right shoulder proximal biceps tendon tear. Dr. Alpert noted maximum medical
improvement occurred on April 4, 2011. He noted that appellant had no permanent impairment
after surgery and his biceps tendon had healed. Dr. Alpert indicated that appellant returned to
work full duty without restriction and showed no evidence of permanent impairment.
In a May 18, 2011 report, an OWCP medical adviser reviewed and concurred with
Dr. Alpert’s opinion that appellant had no additional impairment for the right arm. He noted that
examination revealed excellent strength and full range of motion of the shoulder.
Appellant submitted a May 24, 2011 report from Dr. Coe who noted that appellant
sustained an injury to his proximal right biceps and biceps tendon at work on July 21, 2010.
Dr. Coe noted that the injury caused a rupture of the proximal right biceps tendon and internal
derangement of the right shoulder with synovitis, bursitis, and rotator cuff fraying. He noted that
appellant underwent surgery on October 18, 2010. Dr. Coe noted that examination revealed
postoperative scarring of the right shoulder from the surgery of October 18, 2010, deformity of
the right biceps, decreased range of motion of the right shoulder in abduction, forward elevation
and internal rotation, residual right shoulder joint tenderness and crepitus, and associated
weakness of the right shoulder and elbow in association with his biceps tendon tear and repair.
He noted with regard to the right shoulder, pursuant to the A.M.A., Guides, Table 15-5, Shoulder
Regional Grid, biceps tendon (page 404), appellant was a class 1, grade D, with a modifier of 3
for a total nine percent right upper extremity impairment.
In a decision dated January 5, 2012, OWCP denied appellant’s claim for an additional
schedule award.
Appellant requested reconsideration and resubmitted Dr. Coe’s report dated
May 24, 2011. He also submitted a January 5, 2012 report from Dr. Alfred Rosche, a Boardcertified anesthesiologist, who administered a right shoulder injection.
In a May 28, 2012 report, an OWCP medical adviser reviewed the medical records
provided and disagreed with Dr. Coe’s impairment rating. The medical adviser noted Dr. Coe
found nine percent impairment based on residual biceps tendon lesion pursuant to Table 15-5,
page 404 of the A.M.A., Guides. However, under the A.M.A., Guides, the highest award for

3

biceps tendon condition was five percent impairment. Additionally, Dr. Coe’s May 24, 2011
report noted findings of persistent pain in the shoulder and loss of strength which was different
from appellant’s surgeon, Dr. Alpert, who reported that appellant was doing excellent and
shoulder range of motion and strength were normal. The medical adviser found no objective
evidence for any additional right upper extremity impairment.
In a decision dated July 23, 2012, OWCP denied appellant’s claim for an additional
schedule award. It also indicated that further medical treatment was not authorized and prior
authorization was terminated. Appellant requested a hearing before an OWCP hearing
representative.
On December 10, 2012 the OWCP hearing representative vacated the July 23, 2012
decision. She found that OWCP did not meet its burden of proof to terminate medical benefits.
The hearing representative also found that, while the medical adviser found that Dr. Coe did not
properly use the A.M.A., Guides by providing nine percent impairment for a biceps tendon
condition, he improperly disregarded the remainder of Dr. Coe’s report. She instructed OWCP
to refer appellant to a second opinion examination to obtain a complete assessment of
impairment of the right upper extremity pursuant to the A.M.A., Guides.
On April 23, 2013 OWCP referred appellant for a second opinion to Dr. Allan M.
Brecher, a Board-certified orthopedist, for an impairment rating for appellant’s right shoulder in
accordance with the sixth edition of the A.M.A., Guides. In a June 20, 2013 report, Dr. Brecher
noted a history of appellant’s work injury and surgery. Findings included full active range of
motion of the right shoulder and no tenderness other than along the medial proximal humeral
scar where the biceps tenodesis was present. Dr. Brecher noted that appellant brought the
arthroscopic picture showing the degenerative biceps tendon. He opined that appellant had no
residuals of the right rotator cuff repair. Dr. Brecher noted that appellant did well after the
surgery, but reported tenderness and pain after the open biceps tenodesis. He noted that, under
the A.M.A., Guides, page 404, biceps tendon pathology, appellant had five percent permanent
impairment. Dr. Brecher noted a functional score of 2, physical examination was 1, and clinical
studies 2. Appellant had a QuickDASH score of 63. Maximum medical improvement was
reached six months after the second surgery. Dr. Brecher noted that appellant had scarring with
some discomfort and tenderness along the biceps tenodesis, but there was no change in strength
or atrophy of muscles. He had subjective complaints of pain, fatigue, discomfort, and weakness,
but normal range of motion in all planes. Dr. Brecher opined that appellant had five percent
permanent impairment using the shoulder regional grid for biceps tendon pathology.
In an August 25, 2013 report, an OWCP medical adviser reviewed the medical records
provided and concurred in the impairment determination of Dr. Brecher who found that appellant
sustained five percent impairment for biceps tenodesis pursuant to the A.M.A., Guides.
In a decision dated October 9, 2013, OWCP denied appellant’s claim for an additional
schedule award. Appellant requested an oral hearing which was held on March 19, 2014. He
submitted a January 20, 2014 procedure note from Dr. Rosche who had administered a right
shoulder supraspinatus injection.
In a decision dated June 4, 2014, the OWCP hearing representative set aside the
October 9, 2013 decision and remanded the matter for further medical development. The hearing
4

representative instructed OWCP to correct the statement of accepted facts to reflect the original
schedule award was paid under claim number xxxxxx819, refer the file to the medical adviser for
further clarification of right arm impairment and advise whether the 12 percent impairment
rating previously provided reflects the impairment due to biceps rupture and surgery.
In an August 4, 2014 report, an OWCP medical adviser reviewed the medical records.
He noted that the A.M.A., Guides provide that whenever possible impairment ratings should be
based on diagnosis-based estimates and that the most clinically relevant diagnosis should be
rated. The medical adviser noted that page 387 of the A.M.A., Guides provides that “If a patient
has 2 significant diagnoses, for instance, rotator cuff tear and biceps tendinitis, the examiner
should use the diagnoses with the highest impairment rating for the impairment calculation.” He
noted that pursuant to Table 15-5, pages 403 and 404 of the A.M.A., Guides the rotator cuff tear
diagnosis-based estimate was seven percent impairment and the right biceps tendon condition
provided five percent impairment. The medical adviser noted that the rotator cuff condition
would be used for impairment. He noted that if appellant received the most allowable for a
rotator cuff tear of seven percent, this amount was still less than what was already awarded for
the same condition in 2010. The medical adviser found that no additional permanent impairment
was warranted.
In a decision dated September 9, 2014, OWCP denied appellant’s claim for an additional
schedule award. It noted that there were no objective findings to support any additional
permanent impairment to the right arm beyond the 12 percent already paid.
On April 1, 2015 appellant requested reconsideration. In a statement dated April 24,
2015, appellant through his counsel asserted that OWCP disregarded the clear finding of the
hearing officer of the distinction between an accidental injury of January 23, 2006 involving a
rotator cuff injury and the injury of July 21, 2010 involving a distal clavicle resection and a
rupture of the bicep tendon which required surgery. Counsel asserted that OWCP created
confusion when consolidating two unrelated cases and noted the July 21, 2010 employment
injury was an entirely new injury. Appellant contended that the July 21, 2010 employment
injury resulted in permanent impairment which was distinct and established a basis for an
impairment award.
In a May 11, 2015 report, OWCP’s medical adviser reviewed the medical record and
found that appellant did not have additional impairment of the right arm. He noted that
Dr. Brecher’s report dated June 20, 2013 recommended five percent right arm impairment based
on a biceps tendon tear. The medical adviser noted that this rating is less than the 12 percent arm
impairment already awarded for a similar condition. Regarding Dr. Coe’s May 24, 2011 report,
which proposed an impairment rating of nine percent based on the “biceps tendon” as noted in
Table 15-5, page 404 of the A.M.A., Guides, he noted that the most that can be awarded for
biceps tendon pathology was five percent based on the tables on page 404. The medical adviser
further noted that in his January 27, 2009 report, Dr. Coe recommended eight percent upper
extremity impairment for loss of range of motion. However, page 387 of the A.M.A., Guides
provides that “ROM is used primarily as a physical examination adjustment factor and only to
determine actual impairment values in the rare case when it is not possible to otherwise define
impairment: this is a significant change from other editions.” The medical adviser opined that
the right arm impairment remained at 12 percent.

5

By decision dated July 16, 2015, OWCP denied appellant’s claim for an additional
schedule award. It found that he was previously awarded 12 percent permanent impairment of
the right upper extremity and was not entitled to an additional award.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing federal regulations,7 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.8 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.9
For decisions issued beginning May 1, 2009, the sixth edition of the A.M.A., Guides will be
used.10
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).11 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment Class of diagnosis (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE), and Clinical Studies
(GMCS).12 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX).13 The grade modifiers are used on the net adjustment formula described above to
calculate a net adjustment. The final impairment grade is determined by adjusting the grade up
or down the default value C, by the calculated net adjustment.14
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical consultant for an opinion concerning the nature and

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

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

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a, (February 2013) and Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
11

A.M.A., Guides, 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement.
12

Id. at 385-419.

13

Id. at 411.

14

Id. at 411-12.

6

percentage of impairment in accordance with the A.M.A., Guides with OWCP’s medical
consultant providing rationale for the percentage of impairment specified.15
ANALYSIS
In claim number xxxxxx819, OWCP accepted right shoulder contusion, closed fracture of
the right sternal end clavicle, and right calcifying tendinitis of the shoulder, arthritis of the right
AC joint, and partial thickness insertional tear of the right infraspinatus tendon. It authorized an
arthrotomy of the right shoulder, which was performed on April 2, 2007. In claim number
xxxxxx373, OWCP accepted appellant’s claim for right shoulder/rotator cuff sprains and right
biceps tendon rupture. It authorized a right shoulder arthroscopy with debridement of rotator
cuff and open biceps tenodesis performed on October 18, 2010. On May 15, 2009 appellant was
granted 12 percent impairment of the right arm based on loss of range of motion in the shoulder.
He claimed an additional award.
In support of his request, appellant submitted a May 24, 2011 report from Dr. Coe, who
noted appellant’s history and found nine percent right arm impairment under the A.M.A.,
Guides, Table 15-5, Shoulder Regional Grid,16 for a residual biceps tendon lesion. He indicated
that appellant was a class 1, grade D, with a grade modifier of 3 for a total nine percent right arm
impairment. However, the shoulder regional grid contains no class 1 diagnoses with a grade D
impairment of nine percent. Rather, Table 15-5, Should Regional Grid, class 1, grade D provides
that the highest award for biceps tendon condition is five percent impairment. As Dr. Coe’s
impairment rating of nine percent impairment of the right arm is not properly based on the
A.M.A., Guides, it is of limited probative value.17 Furthermore, this rating is less than the 12
percent permanent impairment previously found for which a schedule award was paid.
OWCP referred appellant for a second opinion evaluation to Dr. Brecher. In a June 20,
2013 report, Dr. Brecher noted examination findings of full active range of motion of the right
shoulder and tenderness over the medial proximal humeral scar where the biceps tendinitis was
present. He opined that appellant had no residuals of the right rotator cuff repair. Dr. Brecher
noted that pursuant to the A.M.A., Guides, Table 15-5, Shoulder Regional Grid, biceps tendon
pathology, appellant was a class 1 with a functional grade modifier of 2, a physical examination
grade modifier of 1 and clinical studies grade modifier of 2 and a QuickDASH score of 63. He
opined that appellant sustained five percent permanent impairment.
The medical adviser reviewed Dr. Brecher’s report dated June 20, 2013 and concurred in
his finding that appellant had five percent right upper extremity impairment based on a biceps
tendon tear. He noted that the A.M.A., Guides provide that the most clinically relevant diagnosis
should be rated. The medical adviser noted that page 387 of the A.M.A., Guides provides that
“If a patient has 2 significant diagnoses, for instance, rotator cuff tear and biceps tendinitis, the
examiner should use the diagnoses with the highest causally-related impairment rating for the
impairment calculation.” He noted that pursuant to Table 15-5, pages 403 and 404 of the
15

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
16

See A.M.A., Guides, Table 15-5, at 401-05.

17

See Linda Beale, 57 ECAB 429 (2006).

7

A.M.A., Guides the rotator cuff tear diagnosis-based estimate allowed up to seven percent
impairment and the right biceps tendon condition provided up to five percent impairment as
noted by Dr. Brecher. The medical adviser noted that the rotator cuff condition would be used
for impairment as it was the highest causally-related impairment for the impairment calculation.
He noted that the seven percent impairment for the rotator cuff tear was still less than what was
already awarded for the same condition in 2010 such that there was no additional permanent
impairment.
The Board finds that there is no current medical evidence in accordance with the A.M.A.,
Guides which supports that appellant sustained more than 12 percent impairment for the right
upper extremity for which he has already received a schedule award.
On appeal, counsel asserts that Dr. Coe’s report substantiated his claim for a schedule
award. However, as noted above, Dr. Coe’s report failed to clearly explain how he arrived at a
nine percent upper extremity impairment rating under the A.M.A., Guides. Additionally, even if
his rating were in full conformance with the A.M.A., Guides it would be a lesser amount than
that for which appellant already received a schedule award. To the extent that counsel asserts
that appellant should receive an award for both the right shoulder biceps tendon injury and the
right shoulder rotator cuff injury, the Board has noted that FECA and its regulations provide for
the reduction of compensation for subsequent injury to the same scheduled member.18
Furthermore, the A.M.A., Guides, provides that if a claimant has two significant diagnoses in the
same region, OWCP should use the diagnosis with the greatest impairment.19
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than 12 percent permanent impairment of the
right upper extremity for which he received a schedule award.

18

5 U.S.C. § 8108; 20 C.F.R. § 10.404(d); see G.J., Docket No. 15-1103 (issued October 14, 2015).

19

See A.M.A., Guides 419.

8

ORDER
IT IS HEREBY ORDERED that the July 16, 2015 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 15, 2016
Washington, DC

Patricia H. Fitzgerald, Deputy 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.Y., Appellant
and
U.S. POSTAL SERVICE, COTTONWOOD
POST OFFICE, Salt Lake City, UT, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-1259
Issued: January 12, 2010

Case Submitted on the Record

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

JURISDICTION
On April 16, 2009 appellant filed a timely appeal from a February 24, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs denying her request for
reconsideration. There is no merit decision within one year of the filing of this appeal. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether the Office properly denied appellant’s January 27, 2009 request for
reconsideration on the grounds that it was not timely filed and did not establish clear evidence of
error.
On appeal, appellant contends that the Office’s decision denying her request for
reconsideration is contrary to fact and law.
FACTUAL HISTORY
On February 27, 2007 appellant, then a 53-year-old city letter carrier, filed an
occupational disease claim (Form CA-2) claiming that she sustained left-sided sciatica and

degenerative disc disease due to repetitive lifting, bending and twisting while processing a heavy
volume of holiday mail on or before December 26, 2006.1 In a March 9, 2007 letter, the Office
advised appellant of the evidence needed to establish her claim. It requested a rationalized
opinion from her attending physician explaining how her work factors caused the claimed
conditions.
Appellant submitted reports dated February 20 to March 16, 2007 by Dr. Rajiv R. Shah,
an attending Board-certified anesthesiologist, who diagnosed lumbar radiculopathy, paraspinal
muscle spasms, postlaminectomy syndrome at L4-5 and degenerative spondylosis at C4-6.
Dr. Shah did not address causal relationship in his reports. In an April 3, 2007 report,
Dr. David B. Jack, an attending family practitioner, opined that repetitive twisting while
processing mail and lifting 30- to 40-pound trays of mail caused the onset of back pain on
December 26, 2006. He diagnosed lumbar stenosis with nerve root compression at L5 and
denervation atrophy.
By decision dated May 30, 2007, the Office denied the claim, finding that causal
relationship was not established. It accepted that appellant’s job duties required repetitive lifting,
twisting and bending. However, appellant failed to submit sufficient rationalized medical
evidence explaining how the accepted work factors would cause degenerative disc disease or
sciatica.
In a letter dated May 12, 2008 and postmarked June 6, 2008, appellant requested
reconsideration. She submitted March 12 and April 2, 2007 duty status reports from Dr. Jack
noting work restrictions. Dr. Jack also checked a box “yes” indicating his support for causal
relationship. In a May 30, 2008 report, he found appellant permanently disabled due to
degenerative disc disease.
By decision dated June 20, 2008, the Office denied reconsideration on the grounds that
appellant’s request was not timely filed and failed to present clear evidence of error. It found
that, on limited review, the additional medical evidence submitted was insufficient to establish
that the Office erred in issuing the May 30, 2007 decision denying appellant’s claim.
In a letter dated January 21, 2009 and received by the Office on January 27, 2009,
appellant requested reconsideration. She contended that the Office erred in denying her claim as
it had accepted her previous back condition claims in 1995 and 2006. Appellant submitted an
excerpt of a February 29, 2006 decision under File No. xxxxxx379, accepting a herniated L5-S1
disc and aggravation of cervical and lumbar degenerative disc disease. She noted that the Office
accepted the claim based on a report from Dr. Jack substantially similar to his May 30, 2008
report.
In a November 12, 2008 report, Dr. Kim C. Bertin, an attending Board-certified
orthopedic surgeon, opined that appellant’s degenerative left hip arthritis was “most likely
accelerated” by her work as a letter carrier.
1

Under File No. xxxxxx379, the Office accepted a herniated L5-S1 disc with aggravation of cervical and lumbar
degenerative disc disease, requiring lumbar discectomy and fusion in 2004. This claim is not before the Board on
the present appeal.

2

In a December 1, 2008 report, Dr. Jack stated that he was familiar with appellant’s work
duties and had once worked at a post office himself. He opined that appellant’s back condition
was entirely attributable to spinal damage caused by bending, twisting and lifting at work.
By decision dated February 24, 2009, the Office denied appellant’s January 27, 2009
request for reconsideration on the grounds that it was not timely filed and failed to present clear
evidence of error. It found that appellant’s January 27, 2009 request was not made within one
year of the May 30, 2007 decision, the last merit decision in the case. The Office found that the
medical evidence submitted in support of the request did not demonstrate clear evidence of error
by the Office in issuing the May 30, 2007 decision.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act2 does not entitle a claimant
to a review of an Office decision as a matter of right.3 This section vests the Office with
discretionary authority to determine whether it will review an award for or against
compensation.4 The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority. One such limitation is that the Office will not review a decision denying
or terminating a benefit unless the application for review is filed within one year of the date of
that decision.5 The Board has found that the imposition of this one-year time limitation does not
constitute an abuse of the discretionary authority granted the Office under 5 U.S.C. § 8128(a).6
In those cases where requests for reconsideration are not timely filed, the Office must
nevertheless undertake a limited review of the case to determine whether there is clear evidence
of error pursuant to the untimely request in accordance with section 10.607(b) of its regulations.7
Office regulations states that the Office will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in the Office’s regulations, if the
claimant’s request for reconsideration shows “clear evidence of error” on the part of the Office.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.9 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.10 Evidence which does not raise a
2

5 U.S.C. § 8128(a).

3

Thankamma Mathews, 44 ECAB 765, 768 (1993).

4

Id.; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

5

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in the Office’s limitation of its discretionary
authority; see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
6

Id. at § 10.607(b); Thankamma Mathews, supra note 3 Jesus D. Sanchez, supra note 4.

7

Thankamma Mathews, supra note 3.

8

20 C.F.R. § 10.607(b).

9

Thankamma Mathews, supra note 3.

10

Leona N. Travis, 43 ECAB 227 (1991).

3

substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.13
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of the Office’s decision.14 The Board must
make an independent determination of whether a claimant has submitted clear evidence of error
on the part of the Office such that the Office abused its discretion in denying merit review in the
face of such evidence.15
ANALYSIS
In its February 24, 2009 decision, the Office properly determined that appellant failed to
file a timely application for review. It rendered its most recent merit decision on May 30, 2007.
Appellant’s request for reconsideration was received by the Office on January 27, 2009, more
than one year after May 30, 2007. Accordingly, her request for reconsideration was not timely
filed.
The Board finds that appellant’s January 27, 2009 letter does not raise a substantial
question as to whether the Office’s May 30, 2007 decision was in error or shift the weight of the
evidence in her favor. It is insufficient to establish clear evidence of error. The decision excerpt
and medical report pertaining to a prior compensation claim are not relevant to the claim on the
present appeal. The November 12, 2008 report of Dr. Bertin, an attending Board-certified
orthopedic surgeon, pertains to left hip arthritis, a condition not accepted in appellant’s
February 27, 2007 back condition claim. The Board has held that irrelevant evidence is
insufficient to establish clear evidence of error.16
In a December 1, 2008 report, Dr. Jack opined that appellant’s back condition was
entirely attributable to spinal damage caused by the accepted work factors. This opinion is
repetitive of his reports previously considered by the Office. Evidence or argument which is
duplicative or cumulative in nature is insufficient to warrant reopening a claim for merit

11

Jesus D. Sanchez, supra note 4.

12

Leona N. Travis, supra note 10.

13

Nelson T. Thompson, 43 ECAB 919, 922 (1992).

14

James R. Mirra, 56 ECAB 738 (2005).

15

Gregory Griffin, supra note 5.

16

Thankamma Mathews, supra note 3.

4

review.17 The report does not manifest on its face that the Office erred in denying appellant’s
occupational disease claim and is insufficient to establish clear evidence of error.
Appellant has not provided any argument or evidence of sufficient probative value to
shift the weight of the evidence in her favor and raise a substantial question as to the correctness
of the Office’s May 30, 2007. On appeal, she asserted that the Office’s February 24, 2009
decision was contrary to fact and law. However, appellant did not submit evidence
demonstrating any error by the Office. Consequently, the Office properly denied her
reconsideration request as her request does not establish clear evidence of error.
CONCLUSION
The Board finds that appellant’s January 27, 2009 request for reconsideration was
untimely filed and failed to show clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 24, 2009 is affirmed.
Issued: January 12, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

17

Denis M. Dupor, 51 ECAB 482 (2000).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Cincinnati, OH,
Employer
__________________________________________

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

Docket No. 19-1078
Issued: January 9, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On April 16, 2019 appellant, through counsel, filed a timely appeal from a March 12, 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.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the March 12, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of her left upper extremity, warranting a schedule award.
FACTUAL HISTORY
On January 4, 2005 appellant, then a 45-year-old expeditor/clerk, filed a traumatic injury
claim (Form CA-1) alleging that on January 4, 2015 she injured her neck, arm, and chest when
bending down to pull open a truck door while in the performance of duty. On February 17, 2005
OWCP accepted this claim, assigned File No. xxxxxx159 for sprain/strain of the neck and brachia
neuritis or radiculitis.
On June 1, 2009 appellant, filed an occupational disease claim (Form CA-2) alleging that
she developed cervical disc disease due to factors of her federal employment including throwing
priority packages, bending over, hanging priority pouches, and other repetitive motions. OWCP
assigned the claim File No. xxxxxx128. On July 8, 2009 it accepted the claim for aggravation of
cervical intervertebral disc disorder with myelopathy and aggravation of left brachial neuritis or
radiculitis. On November 23, 2009 appellant underwent a cervical magnetic resonance imaging
(MRI) scan which demonstrated mild-to-moderate multilevel disc degeneration with a mild-tomoderate broad-based disc bulge at C4-5 displacing the cord and causing left neural foraminal
narrowing. On November 15, 2010 she was released to return to full-duty work.4
On May 19, 2018 appellant filed a schedule award claim (Form CA-7) in File No.
xxxxxx128 alleging permanent impairment due to her accepted cervical intervertebral disc
disorder with myelopathy and aggravation of left brachial neuritis or radiculitis.
In a May 24, 2018 development letter, OWCP advised appellant of the deficiencies of her
claim and requested medical evidence containing a detailed description of her permanent
impairment specific to the accepted work-related conditions in accordance with the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment,
(A.M.A., Guides),5 a date of MMI, a final rating of permanent impairment, and a discussion of the
rationale for calculation of appellant’s claimed permanent impairment of a scheduled member. It
afforded her 30 days to respond.
In a note dated May 9, 2018, Dr. Rashid M. Khan, an internist, reported that appellant had
reached MMI on May 17, 2018 due to her accepted cervical conditions.

4

On January 5, 2011 appellant filed an occupational disease claim (Form CA-2) alleging that she developed a
ganglion cyst on her right wrist due to factors of her federal employment including repetitive movements and motions.
OWCP assigned this claim File No. xxxxxx442. On February 4, 2011 it accepted appellant’s January 5, 2011 claim
for aggravation of ganglion cyst right wrist and right wrist tendinitis. By decision dated September 13, 2018, OWCP
granted her a schedule award for two percent permanent impairment of the right upper extremity due to aggravation
of ganglion cyst right wrist and tendinitis right wrist. On August 31, 2018 it administratively combined File No.
xxxxxx128, File No. xxxxxx159, File No. xxxxxx442, and File No. xxxxxx306. OWCP designated File No.
xxxxxx128 as the master file.
5

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

2

By decision dated July 30, 2018, OWCP denied appellant’s schedule award claim under
File No. xxxxxx128. On August 7, 2018 appellant, through counsel, requested an oral hearing
before an OWCP hearing representative.
In a November 15, 2018 electromyogram, appellant exhibited C5-6 nerve root denervation
and chronic reinnervation, chronic right C7 nerve root radiculopathy, and mild left median
neuropathy the wrist or carpal tunnel syndrome.
In a letter dated January 10, 2019, counsel requested referral to Dr. Rohn T. Kennington, a
Board-certified family practitioner, for an impairment rating regarding appellant’s accepted
cervical conditions.
A hearing was held on January 8, 2019. Appellant testified that she had continuing medical
issues with her left arm and wrist. She noted that she had retired from the employing establishment
on April 30, 2018. Counsel requested an additional 30 days to submit medical evidence of
permanent impairment of the left upper extremity.
In a letter dated February 28, 2019, counsel again requested referral to Dr. Kennington for
an impairment rating regarding appellant’s accepted cervical conditions.
By decision dated March 12, 2019, OWCP’s hearing representative affirmed OWCP’s
July 30, 2018 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA6 and its implementing federal regulations7 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.8 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.9
Neither FECA nor its regulations provide for a schedule award for impairment to the back
or to the body as a whole.10 Furthermore, the back is specifically excluded from the definition of

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700.2 and Exhibit 1 (January 2010).
10

L.L., Docket No. 19-0214 (issued May 23, 2019); N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB
354 (2004).

3

organ under FECA.11 The sixth edition of the A.M.A., Guides does not provide a separate
mechanism for rating spinal nerve injuries as impairments of the extremities. Recognizing that
FECA allows ratings for extremities and precludes ratings for the spine, The Guides Newsletter,
Rating Spinal Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The
Guides Newsletter) offers an approach to rating spinal nerve impairments consistent with sixth
edition methodology. For peripheral nerve impairments to the upper or lower extremities resulting
from spinal injuries, OWCP procedures indicate that The Guides Newsletter is to be applied.12 The
Board has recognized the adoption of this methodology for rating extremity impairment, including
the use of The Guides Newsletter, as proper in order to provide a uniform standard applicable to
each claimant for a schedule award for extremity impairment originating in the spine.13
A claimant has the burden of proof under FECA to establish permanent impairment of a
scheduled member or function as a result of his or her employment injury entitling him or her to a
schedule award.14 Before the A.M.A., Guides can be utilized, a description of the impairment
must be obtained from his or her physician. In obtaining medical evidence required for a schedule
award, the evaluation made by the attending physician must include a description of the
impairment including, where applicable, the loss in degrees of active and passive motion of the
affected member or function, the amount of any atrophy or deformity, decrease in strength or
disturbance of sensation, or other pertinent descriptions of the impairment. This description must
be in sufficient detail so that the claims examiner and others reviewing the file will be able to
clearly visualize the impairment with its resulting restrictions and limitations.15
OWCP’s procedures provide that, if a claimant has not submitted a permanent impairment
evaluation, it should request a detailed report that includes a discussion of how the impairment
rating was calculated.16 If the claimant does not provide an impairment evaluation and there is no
indication of permanent impairment in the medical evidence of file, the claims examiner may
proceed with a formal denial of the award.17
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of her left upper extremity, warranting a schedule award.
In support of her schedule award claim for permanent impairment of her left upper
extremity, appellant submitted a note dated May 31, 2018 from Dr. Khan opining that she had
11

5 U.S.C. § 8101(19); see also G.S., Docket No. 18-0827 (issued May 1, 2019); Francesco C. Veneziani, 48 ECAB
572 (1997).
12

Supra note 9 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.

13

E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).

14

M.G., Docket No. 19-0823 (issued September 17, 2019); I.T., Docket No. 18-1049 (issued December 31, 2018).

15

M.G., id.; A.T., Docket No. 18-0864 (issued October 9, 2018).

16

Supra note 9 at Chapter 2.808.6(a).

17

Id. at Chapter 2.808.6(c).

4

reached MMI in her July 8, 2009 claim for aggravation of cervical intervertebral disc disorder with
myelopathy, and aggravation of left brachial neuritis or radiculitis. Dr. Khan did not provide a
diagnosis or an impairment rating.
Appellant has not provided a medical report describing that her permanent impairment
resulted from a spinal nerve impairment in sufficient detail so that the claims examiner and others
reviewing the file would be able to clearly visualize the impairment with its resulting restrictions
and limitations.18 Although OWCP requested a medical opinion on the extent of appellant’s
permanent impairment, she did not provide such a rating. The evidence submitted does not
establish that appellant had a neurologic deficit consistent with radiculopathy, ratable pursuant to
The Guides Newsletter. As the reports of record do not comport with the A.M.A., Guides or The
Guides Newsletter, appellant has not submitted medical evidence establishing permanent
impairment of her left upper extremity due to her accepted employment injuries. The Board thus
finds that appellant has not met her burden of proof.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of new exposure, or medical evidence showing a 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 permanent
impairment of her left upper extremity, warranting a schedule award.

18

M.G., supra note 14; B.V., Docket No. 17-0656 (issued March 13, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the March 12, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 9, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Columbia, MO, Employer
__________________________________________

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Appearances:
Barbara J. Baney, for the appellant
Office of Solicitor, for the Director

Docket No. 09-269
Issued: September 10, 2009

Case Submitted on the Record

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

JURISDICTION
On November 5, 2008 appellant, through his representative, filed a timely appeal from a
September 26, 2008 nonmerit decision of the Office of Workers’ Compensation Programs
denying his untimely request for reconsideration and finding that it failed to establish clear
evidence of error. Because more than one year has elapsed between the last merit decision dated
June 21, 2007 and the filing of this appeal, the Board lacks jurisdiction to review the merits of
his claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
FACTUAL HISTORY
On January 5, 2007 appellant, then a 34-year-old police officer, filed a traumatic injury
claim alleging that on December 30, 2006 he injured his lower back while moving wheelchairs at

the main entrance. He stopped work on December 31, 2006 and returned to light-duty work on
January 13, 2007.
In support of his claim, appellant submitted orthopedic treatment notes dated June 1,
2006 to January 12, 2007 from Dr. Joel T. Jeffries, a treating Board-certified orthopedic surgeon,
and a September 14, 2006 clinic note by Diane M. Mueller, a nurse practitioner, and physical
therapy notes.
In a letter dated February 20, 2007, the Office informed appellant that the evidence of
record was insufficient to support his claim and requested additional medical and factual
evidence to support his claim. Appellant was given 30 days to provide the requested
information.
Subsequent to the February 20, 2007 letter, appellant submitted additional medical and
factual evidence including a February 13, 2007 magnetic resonance imaging (MRI) scan,
physical therapy notes, reports from Nancy Roberts, a nurse practitioner, and treatment records
from Dr. Jeffries and Dr. Robert R. Conway, and Dr. Bridget Early, treating physicians.
Dr. Early noted that appellant injured himself on December 30, 2006 when he lifted up a
wheelchair. She related that appellant had a history of back injury going back to
November 13, 2005. Dr. Early diagnosed lumbar degenerative disc disease as seen on an MRI
scan. She opined that the December 30, 2006 trauma aggravated appellant’s preexisting lumbar
degenerative disc disease.
By decision dated April 3, 2007, the Office denied appellant’s claim on the grounds that
he failed to establish that his lumbar strain was causally related to the December 30, 2006
employment incident.
On April 23, 2007 appellant requested reconsideration and submitted additional medical
evidence from Drs. Early and Jeffries.
On April 16, 2007 Dr. Early opined that appellant’s lumbar strain was caused by the
employment injury sustained on December 30, 2006. She advised that appellant sustained an
acute lower back injury when he lifted and extended the wheelchair in front of him in order to
move it to a new location. Dr. Early stated that appellant’s “pain is worsened by standing,
wearing a heavy belt and prolonged sitting, and has been incapacitating.”
By decision dated June 21, 2007, the Office denied modification of the April 3, 2007
decision.
On September 12, 2008 appellant, through his representative, requested reconsideration.
On May 24, 2008 Dr. Early reiterated that appellant had preexisting lumbar degenerative disc
disease and that the December 30, 2007 employment injury aggravated his condition. She noted
that the symptoms appellant experienced following the December 30, 2007 incident were
consistent with a new lumbar injury while lifting and extending an empty wheelchair.

2

By decision dated September 26, 2008, the Office denied appellant’s request for further
review of the merits of his claim on the grounds that it was untimely filed and failed to establish
clear evidence of error.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act1 provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision. The employee may obtain this relief through a request to the
district Office. The request, along with the supporting statements and evidence, is called the
application for reconsideration.2 To be entitled to a merit review of an Office decision denying
or terminating a benefit, a claimant must file his or her application for review within one year of
the date of that decision.3 The Board has found that the imposition of the one-year limitation
does not constitute an abuse of the discretionary authority granted the Office under section
8128(a) of the Act.4
Title 20 of the Code of Federal Regulations, section 10.607(b) provides that the Office
will consider an untimely application only if it demonstrates clear evidence of error by the Office
in its most recent merit decision. To establish clear evidence of error, a claimant must submit
evidence relevant to the issue which was decided by the Office. The evidence must be positive,
precise and explicit, and must manifest on its face that the Office committed an error. Evidence
which does not raise a substantial question concerning the correctness of the Office’s decision is
insufficient to establish clear evidence of error.5 It is not enough merely to show that the
evidence could be construed so as to produce a contrary conclusion. This entails a limited
review by the Office of how the evidence submitted with the reconsideration request bears on the
evidence previously of record and whether the new evidence demonstrates clear error on the part
of the Office. To show clear evidence of error, the evidence submitted must not only be of
sufficient probative value to create a conflict in medical opinion or establish a clear procedural
error, but must be of sufficient probative value to shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of the Office’s decision. The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of the Office such that the Office abused its discretion in denying merit
review in the face of such evidence.6

1

5 U.S.C. §§ 8101 et seq.

2

20 C.F.R. § 10.605.

3

Id. at § 10.607(a).

4

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

5

See Alberta Dukes, 56 ECAB 247 (2005); see also Leon J. Modrowski, 55 ECAB 196 (2004).

6

See Alberta Dukes, supra note 5.

3

ANALYSIS
The Board finds that, in its September 26, 2008 decision, the Office properly determined
that appellant failed to file a timely request for reconsideration. The most recent merit decision
is dated June 21, 2007. Appellant’s request for reconsideration was on September 12, 2008,
more than one year after June 21, 2007. Accordingly, his request for reconsideration was not
timely filed.
In accordance with internal guidelines and Board precedent, the Office properly
performed a limited review to determine whether appellant’s application for review showed clear
evidence of error which would warrant reopening the case for further merit review under section
8128(a). It reviewed the evidence submitted by appellant in support of his application for
review, but found that it did not establish that its prior decision requesting his claim was in error.
Appellant submitted medical reports from Dr. Early which are insufficient to establish
clear evidence of error. As noted, the evidence submitted must be relevant to the issue which
was decided by the Office. Appellant’s claim was denied on the grounds that the medical
evidence did not establish a causal relationship between his low back condition and the
December 31, 2006 employment incident involving the moving of a wheelchair. The evidence
submitted in support of the reconsideration request must address causal relationship and be so
persuasive that it shifts the weight of the evidence in favor of the claimant and raises a
substantial question as to the correctness of the Office’s decision. Evidence such as a detailed,
well-rationalized medical report, which if submitted before the denial was issued, would have
created a conflict in medical opinion requiring further development, is insufficient to show clear
evidence of error.7 Dr. Early reiterated her opinion that appellant sustained a lumbar strain and
aggravation of his preexisting degenerative lumbar disc disease when he lifted and moved a
wheelchair. She provided rationale explaining how appellant’s condition was caused aggravated
by the December 31, 2006 employment incident. Accordingly, Dr. Early’s reports are
insufficient to establish clear evidence of error in the Office’s June 21, 2007 merit decision.
Appellant has submitted no other evidence sufficient to shift the weight of the evidence in his
favor and raise a substantial question as to the correctness of the Office’s decision.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration as
the request was filed outside the one-year time limitation and did not establish clear evidence of
error.

7

A.F., 59 ECAB ___ (Docket No. 08-977, issued September 12, 2008).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 26, 2008 is affirmed.
Issued: September 10, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Munford, TN, Employer
__________________________________________

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

Docket No. 17-1857
Issued: February 2, 2018

Case Submitted on the Record

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

JURISDICTION
On August 31, 2017 appellant, filed a timely appeal from an August 18, 2017 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
ISSUE
The issue is whether appellant has met her burden of proof to establish a right knee and
right elbow injury causally related to an accepted June 17, 2017 employment incident.

1
2

5 U.S.C. § 8101 et seq.

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

FACTUAL HISTORY
On June 20, 2017 appellant, then a 39-year-old mail carrier, filed a traumatic injury claim
(Form CA-1), alleging that, while delivering mail to a residence on June 17, 2017, she was
attacked by two dogs who chased her causing her to fall in the road injuring her right knee and
right elbow. She stopped work on June 17, 2017. On the CA-1 form, appellant’s supervisor
noted that appellant was injured in the performance of duty on June 17, 2017 and that she
indicated that she was first notified of the injury on June 20, 2017. Appellant stopped work on
June 17, 2017. Her supervisor further noted that the medical reports showed appellant disabled
for work.
Appellant was treated by a physician assistant on June 17, 2017 for laceration of the right
elbow, left knee, and right knee. She reported that her injury occurred on June 17, 2017 and was
caused by a fall. Findings on examination revealed bilateral knee swelling and superficial
laceration of the right knee with no bone injury. Appellant performed wound repair with eight
sutures. X-rays of the knees revealed mild bony spurring of the right patella. The physician
assistant diagnosed laceration of the right knee without foreign body, unspecified open wound,
right lower leg, abrasion of the right elbow, and pain in knees. She prescribed Keflex and a
topical ointment. The physician assistant returned appellant to work light duty. On June 30,
2017 appellant returned and presented with skin sores of the right lower extremity which began
on June 17, 2017. Findings on examination revealed a limp favoring right lower extremity and a
healing wound on the right knee and leg. The physician assistant diagnosed laceration without
foreign body, right lower leg, subsequent encounter. She returned appellant to sedentary work
with additional restrictions.
In a report dated June 24, 2017, a nurse practitioner treated appellant for suture removal.
Findings on examination revealed a healing laceration of the right knee. He removed all eight
sutures. The nurse practitioner diagnosed encounter for removal of sutures and returned
appellant to work with restrictions. On June 28, 2017 appellant’s right knee was treated again by
him. Findings revealed reduced right knee active range of motion and healing laceration of the
right knee. The nurse practitioner diagnosed laceration without foreign body and right knee. He
prescribed Keflex and continued work restrictions.
OWCP, in a July 12, 2017 development letter, advised appellant that her claim was
originally received as a simple, uncontroverted case which resulted in minimal or no time loss
from work. It noted that her claim was administratively handled to allow limited medical
payments, but the merits of the claim had not been formally adjudicated. OWCP advised that,
because appellant had not returned to work in a full-time capacity, her claim would be formally
adjudicated. It requested that she submit additional factual and medical information including a
comprehensive medical report from her treating physician addressing causal relationship.
OWCP noted that medical evidence must be submitted by a qualified physician and that a
physician assistant and a nurse practitioner were not considered physicians under FECA. It
allotted her 30 days within which to submit the requested information.
Appellant submitted a report from a physician assistant dated July 7, 2017, who noted
that she presented with healing skin sores on the right lower extremity. She reported that the
sores were the result of a work injury. Findings on examination revealed hip/thigh and right

2

knee lesions. Appellant diagnosed laceration without foreign body, right knee. The physician
assistant returned her to work without restrictions on July 8, 2017.
In an August 18, 2017 decision, OWCP denied the claim finding that appellant failed to
submit medical evidence establishing that a medical condition was diagnosed in connection with
the accepted work incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that
any disability or specific condition for which compensation is claimed is causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.5
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.6
ANALYSIS
It is undisputed that on June 17, 2017 appellant was working as a mail carrier, and while
delivering mail to a residence, she was chased by two dogs and fell in the street. However, the
Board finds that she failed to submit sufficient medical evidence to establish that this work
incident caused or aggravated her right knee and right elbow condition. In a letter dated July 12,
2017, OWCP requested that appellant submit a comprehensive report from her treating physician
which included a reasoned explanation as to how the accepted work incident had caused her
claimed injury.

3

Supra note 1.

4

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

5

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

6

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

3

Appellant submitted reports from a physician assistant dated June 17 to July 7, 2017 and
reports from a nurse practitioner dated June 24 and 28, 2017. The Board has held that notes
signed by physician assistants or nurse practitioners7 lack probative value as medical evidence as
these providers are not considered physicians under FECA.8
As noted, part of appellant’s burden of proof includes the submission of rationalized
medical opinion evidence, based on a complete factual and medical background, supporting such
a causal relationship between the employment and the diagnosed condition. Therefore, these
reports are insufficient to meet appellant’s burden of proof.
The record does not contain any other medical evidence. Because appellant has not
submitted reasoned medical evidence explaining how and why her right knee and right elbow
injuries were employment related, she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that her right
knee and right elbow injuries were causally related to the accepted June 17, 2017 employment
incident.

Paul Foster, 56 ECAB 208 (2004) (where the Board found that a nurse practitioner is not a “physician” pursuant
to FECA).
7

8

See David P. Sawchuk, 57 ECAB 316, 320, n.11 (2006) (lay individuals such as physician assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); L.D., 59 ECAB 648 (2008) (a nurse
practitioner is not a physician as defined under FECA). 5 U.S.C. § 8101(2) (this subsection defines a “physician” as
surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners
within the scope of their practice as defined by State law).

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ORDER
IT IS HEREBY ORDERED THAT the August 18, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 2, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy 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

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