United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Plainsboro, NJ, Employer
__________________________________________

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

Docket No. 08-1874
Issued: January 14, 2009

Case Submitted on the Record

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

JURISDICTION
On June 26, 2008 appellant filed a timely appeal from a March 20, 2008 decision of an
Office of Workers’ Compensation Programs’ hearing representative who affirmed an August 6,
2007 decision denying her claim of an injury in the performance of duty. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant established that she sustained an injury on May 31, 2007
in the performance of duty, as alleged.
FACTUAL HISTORY
On June 26, 2007 appellant, then a 47-year-old sales associate and distribution of
dispatch, filed a traumatic injury claim alleging that on May 31, 2007 she injured her back while
performing her job duties of lifting, dispatching, pulling and pushing.

In a letter dated July 3, 2007, the Office informed appellant that the evidence of record
was insufficient to support her claim. Appellant was advised to submit additional medical and
factual evidence in support of her claim.
In response, appellant submitted prescription notes dated June 18 to July 17, 2007 and a
July 17, 2007 duty status report (Form CA-17) from Dr. Howard Kuo, an attending Boardcertified neurologist. On June 29, 2007 Dr. Kuo noted that appellant was under his care for a
lumbar disc herniation at L5-S1 and was currently unable to work for the period June 30 to
July 20, 2007. On June 19 and July 17, 2007 he requested appellant be excused for work due to
her lumbar disc herniation. In the July 17, 2007 duty status report, Dr. Kuo diagnosed lower
back herniation and provided work restrictions beginning August 6, 2007. He also noted that the
injury occurred while appellant was performing her duties of lifting, dispatching, pulling and
pushing. In a June 5, 2007 magnetic resonance imaging (MRI) scan, Dr. Lawrence M. Ratner, a
Board-certified radiologist, reported a moderate size disc herniation at L5-S and small central
L4-5 disc herniation.
By decision dated August 6, 2007, the Office denied appellant’s claim on the grounds
that the evidence was insufficient to establish that the injury occurred as alleged. It also found
the medical evidence insufficient to establish that her disc herniation was causally related to her
employment.
Following the denial of her claim, the Office received an August 6, 2007 report from
Dr. Kuo who diagnosed L4-5 and L5-S1 disc herniations based upon an MRI scan. Dr. Kuo
advised that appellant was totally disabled for the period June 5 to August 6, 2007 and could
return to light-duty work on August 6, 2007.
On August 13, 2007 appellant requested an oral hearing before an Office hearing
representative, which was held on December 17, 2007. In a December 20, 2007 prescription
note, Dr. Kuo advised that appellant’s lower back condition could have happened while she was
performing her job duties.
By decision dated March 20, 2008, the Office hearing representative affirmed the
August 6, 2007 decision denying appellant’s claim. The Office hearing representative found the
evidence sufficient to establish that the May 31, 2007 incident occurred as alleged, but that the
medical evidence failed to establish that she sustained a disc herniation due to the incident at
work.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of her claim by the weight of the reliable,

1

5 U.S.C. §§ 8101-8193.

2

probative and substantial evidence,2 including that she is an “employee” within the meaning of
the Act3 and that she filed her claim within the applicable time limitation.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.5 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.6
To establish a causal relationship between a claimant’s condition and the employment
event or incident, she must submit rationalized medical opinion evidence based on a complete
factual and medical background supporting such a causal relationship.7 Rationalized medical
opinion evidence is medical evidence which includes a physician’s opinion on the issue of
whether there is a causal relationship between the claimant’s diagnosed condition and the
implicated employment factors.8 The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.9
ANALYSIS
Appellant alleged that, on May 31, 2007, she injured her back while performing her job
duties of lifting, dispatching, pulling and pushing. The Office hearing representative found that
appellant established the incident occurred, as alleged. The Board finds, however, that the
medical evidence is insufficient to establish that the employment incident caused a back injury.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
3

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
4

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
5

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

6

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
7

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008).

8

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008).

9

S.D., 58 ECAB ___ (Docket No. 07-1120, issued September 24, 2007); Gary J. Watling, 52 ECAB 278 (2001);
Shirley A. Temple, 48 ECAB 404 (1997).

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The Board finds that the medical evidence provides insufficient explanation of how the incident
of May 31, 2007 caused or aggravated the diagnosed disc herniation at L5-S1.10
The relevant medical evidence includes prescription notes and a July 17, 2007 duty status
report from Dr. Kuo who indicated that appellant was disabled from work due to a lumbar disc
herniation. In the brief prescription notes of record, Dr. Kuo provided no opinion as to the cause
of appellant’s back condition. While he described appellant’s work duties in the July 17, 2007
duty status report, he provided no rationale explaining how the diagnosed disc herniation was
causally related to her employment duties on May 31, 2007. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty and must be supported by medical rationale explaining the nature of
the relationship between the diagnosed condition and the specific employment factors identified
by appellant.11 Dr. Kuo’s treatment notes do not meet these criteria. In addition, his
December 20, 2007 report is speculative on the issue of causal relation. Dr. Kuo opined that
appellant’s lower back condition could have happened while she was performing her job duties.
While the opinion of a physician supporting causal relationship need not be one of absolute
medical certainty, the opinion must not be speculative or equivocal.12 The opinion should be
expressed in terms of a reasonable degree of medical certainty.13 Dr. Kuo did not provide an
opinion of sufficient certainty addressing how appellant’s diagnosed back condition was a result
of her employment duties on May 31, 2007. He merely noted that appellant’s condition “could
have happened” while she was performing her job duties. For these reasons, Dr. Kuo’s notes and
report are not sufficient to establish that appellant’s herniated disc was causally related to his
work activity on May 31, 2007.
The record also contains a June 5, 2007 lumbar MRI scan by Dr. Ratner who diagnosed
disc herniations at L4-5 and L5-S1. Dr. Ratner did not address the cause of appellant’s
herniations. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.14
An award of compensation may not be based on surmise, conjecture or speculation.15
Appellant must submit a physician’s report in which the physician reviews those factors of
employment identified by her as causing her condition and, taking these factors into
consideration as well as findings upon examination and the medical history, explain how
10

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 2006); Ricky S. Storms, 52 ECAB 349 (2001)
(while the opinion of a physician supporting causal relationship need not be one of absolute medical certainty, the
opinion must not be speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.
11

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007).

12

L.R. (E.R.), 58 ECAB ___ (Docket No. 06-1942, issued February 20, 2007).

13

See Ricky S. Storms, 52 ECAB 349 (2001); Morris Scanlon, 11 ECAB 384, 385 (1960).

14

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007).

15

See S.S., 59 ECAB ___ (Docket No. 07-579, issued January 14, 2008); Patricia J. Glenn, 53 ECAB 159 (2001).
Dennis M. Mascarenas, 49 ECAB 215 (1997).

4

employment factors caused or aggravated any diagnosed condition and present medical rationale
in support of his or her opinion.16 She failed to submit such evidence and therefore failed to
discharge her burden of proof.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained an injury on May 31, 2007 while in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 20, 2008 is affirmed.
Issued: January 14, 2009
Washington, DC

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

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

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

16

Robert Broome, 55 ECAB 339 (2004).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
(Widow of P.K.S.)
and
DEPARTMENT OF THE NAVY, NORTH
ISLAND NAVAL BASE, Coronado, CA,
Employer
__________________________________________
Appearances:
Steven E. Brown, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1400
Issued: March 14, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On September 23, 2021 appellant, through counsel, filed an appeal from a purported
decision of the Office of Workers’ Compensation Programs (OWCP) dated August 24, 2019. The
Clerk of the Appellate Boards assigned the appeal Docket No. 21-1400.
The Board has duly considered the matter and concludes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 2
This jurisdiction encompasses any final adverse decision issued by OWCP within 180 days of the
date appellant filed her appeal. 3 The case record as transmitted to the Board does not contain a
final adverse decision of OWCP issued within 180 days from the date of docketing of the current
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.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
3

appeal.4 As there is no final adverse decision issued by OWCP over which the Board may properly
exercise jurisdiction, the Board concludes that the appeal docketed as No. 21-1400 must be
dismissed.5 Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as Docket No. 21-1400 is
dismissed.
Issued: March 14, 2022
Washington, DC

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

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

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

4

Id. The most recent decision of record was issued by this Board on August 24, 2021, under Docket No. 20-0215.
See Docket No. 20-0215 (issued August 24, 2021). Appellant, through counsel, filed a timely petition for
reconsideration from that Board decision. An order on appellant’s petition for reconsideration will be issued under a
separate order.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.” 20
C.F.R. § 501.6(d).
5

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.L., Appellant
and
U.S. POSTAL SERVICE, FRANKLIN D.
ROOSEVELT POST OFFICE, LENOX HILL
STATION, New York, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-2263
Issued: July 7, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On September 8, 2010 appellant, through her attorney, filed a timely appeal of the
August 19, 2010 merit decision of the Office of Workers’ Compensation Programs denying her
recurrence of disability claim. Pursuant to the Federal Employees’ Compensation Act (FECA)1
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of total disability commencing
May 14, 2010 causally related to her December 6, 2006 employment injuries.
On appeal, appellant’s attorney contends that the employing establishment’s reduction of
appellant’s limited-duty work hours effective May 14, 2010 establish a recurrence of disability
under FECA.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The Office accepted that on December 6, 2006 appellant, then a 44-year-old mail carrier,
sustained other enthesopathy of the bilateral ankle and tarsus as a result of standing on hard
floors, eight hours per day while working at the employing establishment.2
On May 21, 2010 appellant filed a claim alleging that she sustained a recurrence of
disability commencing May 14, 2010. She stated that the employing establishment reduced her
limited-duty work hours effective May 14, 2010.
By letter dated June 9, 2010, the Office requested that appellant submit factual and
medical evidence in support of her claim. It noted that she had returned to full-duty work as of
July 11, 2007 and its denial of her claim for a recurrence of disability commencing
August 15, 2007.3 The Office stated that it was unclear as to why appellant was performing
light-duty work at the time of the claimed May 14, 2010 recurrence of disability. It requested
that the employing establishment provide factual evidence regarding her light-duty work status
within 30 days. The employing establishment did not respond.
In a June 20, 2010 letter, appellant, through her attorney, contended that the employing
establishment’s reduction of her limited-duty work hours on May 14, 2010 constituted a
recurrence of disability. She submitted a copy of the employing establishment’s May 13, 2010
job offer for a modified letter carrier position with work hours from 7:30 a.m. to 8:30 a.m. and
weekends off effective May 14, 2010 which she signed and accepted on the offer date.
Medical reports dated May 26 and July 5, 2010 from Dr. Gutman advised that appellant
had been able to work eight hours per day in her limited-duty position. Appellant was able to
box up mail six hours provided that she could sit on a resting bar in the morning to take the
pressure off her feet. She was able to deliver Express Mail or daily mail but, she needed to rest
her feet for 15 minutes every 2 hours. Appellant could drive a postal vehicle but, she could not
lift packages weighing over 12 pounds. Dr. Gutman noted that currently she had weekends off
which allowed her to rest her feet. He concluded that there was no reason why appellant could
not continue her current limited duties and eight-hour work shifts.
In an August 19, 2010 decision, the Office found that appellant did not sustain a
recurrence of disability commencing May 14, 2010 due to her accepted December 6, 2006
employment injuries.4
2

In a prior appeal, the Board issued a decision on March 7, 2011 which affirmed the Office’s November 6, 2009
nonmerit decision, denying appellant’s request for reconsideration of the finding that she did not sustain a recurrence
of disability commencing August 15, 2007 due to her accepted December 6, 2006 employment-related injuries.
Docket No. 10-1419 (issued March 7, 2011).
3

The record reveals that appellant was released to return to full-duty work by Dr. Aaron L. Gutman, an attending
podiatrist. Appellant actually returned to full-duty work on August 6, 2007.
4

Following the issuance of the Office’s August 19, 2010 decision, the Office received additional evidence. The
Board may not consider evidence for the first time on appeal which was not before the Office at the time it issued
the final decision in the case. 20 C.F.R. § 501.2(c)(1).

2

LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.5 This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn (except when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force), or when the
physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.6
When an employee who is disabled from the job she held when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence of record
establishes that she can perform the limited-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence a recurrence of total
disability and to show that she cannot perform such limited-duty work. As part of this burden,
the employee must show a change in the nature and extent of the injury-related condition or a
change in the nature and extent of the limited-duty job requirements.7
To show a change in the degree of the work-related injury or condition, the claimant must
submit rationalized medical evidence documenting such change and explaining how and why the
accepted injury or condition disabled the claimant for work on and after the date of the alleged
recurrence of disability.8
ANALYSIS
The Board finds that the case is not in posture for decision. While the Office stated that
appellant had returned to full-duty work at the employing establishment as of July 11, 2007, the
evidence reflects that she was provided with limited-duty work for eight hours per day. The
evidence further reflects that appellant was subsequently provided with one hour of limited-duty
work effective May 14, 2010. Although the medical evidence reveals that she was found capable
by Dr. Gutman of working in her limited-duty position eight hours per day, the employing
establishment provided reduced hours of limited duty, as noted. The employing establishment
was requested by the Office to provide evidence regarding appellant’s limited-duty work status
as it was unclear as to why she was performing light-duty work in light of her return to full-duty
work. However, the employing establishment failed to submit the requested evidence prior to
the issuance of the Office’s August 19, 2010 decision. As the record does not contain a clear
response from the employing establishment for review by the Board regarding appellant’s
5

20 C.F.R. § 10.5(x).

6

Id.

7

Albert C. Brown, 52 ECAB 152, 154-55 (2000); Barry C. Petterson, 52 ECAB 120 (2000); Terry R. Hedman,
38 ECAB 222, 227 (1986).
8

James H. Botts, 50 ECAB 265 (1999).

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limited-duty work status, the case will be remanded to the Office for further development of her
recurrence claim. On remand, the Office should determine whether appellant was performing
limited-duty work and whether the employing establishment reduced her work hours in this
position as of May 14, 2010. This information is important in determining her possible
entitlement to compensation.9 Following this and such other development as deemed necessary,
the Office shall issue an appropriate merit decision on appellant’s claim for a recurrence of
disability commencing May 14, 2010.
CONCLUSION
The Board finds that the case is not in posture for decision on whether appellant has
established a recurrence of total disability commencing May 14, 2010 causally related to her
accepted December 6, 2006 employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the August 19, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to the Office for further
action consistent with this decision of the Board.
Issued: July 7, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees' Compensation Appeals Board

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

9

See 20 C.F.R. § 10.505. See also Terry Hedman, supra note 7.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Norfolk, VA, Employer
__________________________________________

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

Docket No. 07-1941
Issued: January 8, 2008

Case Submitted on the Record

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

JURISDICTION
On July 17, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated July 5, 2007 with respect to his claim for a
recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.
ISSUE
The issue is whether appellant has established a recurrence of disability on or after
September 10, 1990.
FACTUAL HISTORY
On May 16, 1989 appellant, then a 41-year-old sheet metal worker, filed a traumatic
injury claim alleging that on May 15, 1989 he sustained a bilateral trapezius strain when he
slipped on the deck of a ship. The reverse of the claim form is dated June 9, 2006 and the
employing establishment indicated that the claim had not been initially forwarded to the Office
as it was a no lost time, no medical expense claim. According to the employing establishment,

appellant’s employment was terminated April 4, 1990.
A form report (CA-20) dated
September 18, 1989 from an employing establishment physician diagnosed bilateral trapezius
strain and checked a box “yes” that the condition was employment related.
On August 10, 2006 appellant filed a notice of recurrence of disability. He reported the
date of the recurrence of disability as September 10, 1990 and April 8, 1992. Appellant stated
that after the fall at work his back was painful and as time went on his condition worsened. He
submitted medical evidence, including an April 19, 1996 report from Dr. Stephen Montgomery
diagnosing a lumbar strain in March 1996, and a March 9, 2001 report from Dr. Fred Benedict,
diagnosing a degenerative L5-S1 disc with chronic mechanical back pain.
The Office notified appellant by letter dated August 22, 2006 that his March 15, 1989
claim was accepted for a sprain to the thoracic region of the back.1 By decision dated
September 28, 2006, the Office denied the claim for a recurrence of disability commencing
September 10, 1990.
Appellant requested an oral hearing before an Office hearing
representative, which was held on April 24, 2007. He submitted a claim for compensation (Form
CA-7) dated January 16, 2007, for disability commencing June 30, 2001.2
In a report dated May 15, 2007, Dr. Jerome Ecker, an internist, provided a history that
appellant first experienced lumbar pain in 1989 after a fall sustained while aboard ship. He
stated that appellant reported that chronic lumbar pain appeared shortly after the injury, resulting
in light duty status. According to Dr. Ecker, appellant subsequently worked as a welder and then
in 1994 began working in a series of light-duty jobs until he applied for Social Security
disability. He noted that diagnostic tests showed degenerative L5-S1 changes in 1996 and severe
narrowing of the L5-S1 disc space in 2001.
By decision dated July 5, 2007, the hearing representative affirmed the September 28,
2006 decision. The hearing representative found that appellant had not established a recurrence
of disability as of September 10, 1990 or June 30, 2001.
LEGAL PRECEDENT
A person who claims a recurrence of disability due to an accepted employment-related
injury has the burden of establishing by the weight of the substantial, reliable and probative
evidence that the disability for which he claims compensation is causally related to the accepted
injury. This burden of proof requires that a claimant furnish medical evidence from a physician
who, on the basis of a complete and accurate factual and medical history, concludes that the

1

It is not clear what medical evidence the Office relied on in accepting the claim.

2

Appellant also referred to a period from April 15, 1989 to June 1, 1990. The Office decisions do not discuss this
period.

2

disabling condition is causally related to the employment injury and supports that conclusion with
sound medical reasoning.3
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which has resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.”4
ANALYSIS
Appellant filed a claim for a recurrence of disability and he identified two dates:
September 10, 1990 and April 8, 1992. He also submitted a Form CA-7 claim for compensation
for the period June 30, 2001 to the present. It is appellant’s burden of proof to establish that on
these dates he had an employment-related condition and that the condition disabled him for
work.5
The medical evidence of record is not sufficient to establish a recurrence of disability on
or after September 10, 1990. None of the medical reports of record provide a complete history, a
diagnosis, a rationalized opinion on causal relationship between the diagnosed condition and the
employment injury, and a rationalized opinion as to a period or periods of disability. Dr. Ecker,
for example, notes that appellant had lumbar pain from a 1989 injury and he referred to 1996
tests showing degenerative lumbar changes. He did not provide a rationalized opinion with
respect to a diagnosed lumbar condition and the 1989 employment injury, or an opinion as to the
nature and extent of an employment-related disability. In the absence of probative medical
evidence, the Board finds that appellant did not meet his burden of proof to establish an
employment-related disability for the periods claimed.
CONCLUSION
Appellant did not meet his burden of proof to establish a recurrence of disability on or
after September 10, 1990.

3

Robert H. St. Onge, 43 ECAB 1169 (1992); Dennis J. Lasanen, 43 ECAB 549 (1992).

4

20 C.F.R. § 10.5(x).

5

The term disability is defined as the incapacity because of an employment injury to earn the wages the employee
was receiving at the time of the injury, i.e., a physical impairment resulting in loss of wage-earning capacity. 20
C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no loss of
wage-earning capacity).

3

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 5, 2007 and September 28, 2006 are affirmed.
Issued: January 8, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Taylor, MI, Employer
__________________________________________

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

Docket No. 14-850
Issued: September 17, 2014

Case Submitted on the Record

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

JURISDICTION
On March 4, 2014 appellant filed a timely appeal from a January 9, 2014 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.
ISSUES
The issues are: (1) whether OWCP properly found an overpayment of $22,360.04 for the
period October 25, 2009 to September 25, 2010; (2) whether OWCP properly found that
appellant was at fault in creating the overpayment; and (3) whether OWCP properly determined
the overpayment should be recovered by deducting $85.00 from her continuing compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 19, 2005 appellant, then a 46-year-old carrier, sustained injuries to her
neck and back in the performance of duty. She stated on the claim form that she was delivering
mail and fell. OWCP initially denied the claim by decision dated February 6, 2006. On
March 17, 2006 it accepted appellant’s claim for lumbar, lumbosacral, cervical and sacroiliac
strains. OWCP also accepted an L2-3 herniated disc on September 8, 2006. Appellant
underwent lumbar surgery on January 8, 2007 and received compensation for wage loss.
The record contains an EN1108 form (long form statement of recovery) dated
September 21, 2009 reflecting that appellant received a third-party settlement recovery of
$225,000.00 with respect to the employment injury. The form listed the disbursement of the
recovery amount, including attorney fees and stated that the credit against future benefits from
the third-party recovery was $22,360.04.
By letter dated November 12, 2009, OWCP provided appellant with the information
contained in the EN1108 form. In a separate letter dated November 12, 2009, it advised that she
would not receive a periodic rolls payment for the period October 25 to November 21, 2009.
OWCP further explained that, until the surplus of $22,360.04 was exhausted, appellant would
not receive a compensation payment. Appellant was advised that, based on her gross
compensation entitlement, the surplus would be exhausted in September 2010.
In a letter dated September 17, 2010, OWCP advised appellant that, for the period
October 25, 2009 to September 25, 2010, she would receive a compensation payment of
$343.88. This was the amount owed after deducting the $22,360.04 surplus. In addition,
appellant was advised that beginning September 26, 2010 she would receive her regular periodic
rolls compensation payment.
On October 1, 2010 OWCP issued a compensation payment in the amount of $22,703.92
for the period October 25, 2009 to September 25, 2010. On October 15, 2013 it advised
appellant of a preliminary determination that an overpayment of $22,360.04 was created from
October 25, 2009 to September 25, 2010. OWCP found that she received $22,703.92 for this
period, but was only entitled to $343.88. With regard to fault, it made a preliminary
determination that appellant was at fault in creating the overpayment as she had accepted a
payment she knew or should have known was incorrect. Appellant was advised to complete an
overpayment recovery questionnaire.
In an October 24, 2013 memorandum of telephone call (CA-110), OWCP noted that
appellant was upset and did not believe that she was at fault, believing that the surplus was
money owed to her. By letter dated October 24, 2013, it sent her previous correspondence
regarding entitlement to compensation from October 25, 2009 to September 25, 2010.
On November 20, 2013 OWCP received a request for a telephone conference on the issue
of fault. A telephone conference was held on December 16, 2013. Appellant reiterated her
belief that the surplus was an amount owed to her and she did not feel she was at fault.

2

By decision dated January 9, 2014, OWCP finalized the overpayment in the amount of
$22,360.04 and the finding of fault. It advised that the overpayment would be recovered by
deducting $85.00 from appellant’s continuing compensation payments.
LEGAL PRECEDENT -- ISSUE 1
FECA provides that where an injury or death for which compensation is payable is
caused under circumstances creating a legal liability in a person other than the United States to
pay damages and a beneficiary entitled to compensation from the United States for that injury or
death receives money or other property in satisfaction of that liability as a result of suit or
settlement by him or her in his or her behalf, the beneficiary, after deducting therefrom the costs
of suit and a reasonable attorney’s fee, shall refund to the United States the amount of
compensation paid by the United States and credit any surplus on future payments of
compensation payable to him for the same injury.2 The applicable regulations reiterate that after
the refund owed to the United States is calculated, FECA beneficiary retains any surplus
remaining and this amount is credited, dollar for dollar, against future compensation for the same
injury.3 OWCP will resume the payment of compensation only after FECA beneficiary has been
awarded compensation which exceeds the amount of the surplus.4
OWCP’s procedure manual further explains that where a beneficiary has received a thirdparty recovery resulting in a surplus, compensation payments are calculated and continue to be
charged against the surplus, as are medical expenses that have been paid by the claimant and
submitted for reimbursement.5 Where a beneficiary who has received a third-party recovery has
made the required refund, but subsequent events result in payment of compensation benefits,
including medical benefits, this results in an overpayment of compensation.6
ANALYSIS -- ISSUE 1
The record reflects that appellant received a third-party recovery of $225,000.00. After
appropriate deductions for the costs of the suit and attorney fees, a surplus against future
compensation of $22,360.04 was determined. As noted, future compensation payments are
charged against the surplus until it has been exhausted.
OWCP paid appellant wage-loss compensation for the period October 25, 2009 to
September 25, 2010 in the amount $22,703.92. The surplus of $22,360.04 should have been
deducted from this amount and therefore an overpayment of compensation was created.
Appellant did not offer any arguments as to the fact of overpayment and there is no contrary
2

5 U.S.C. § 8132; see also F.B., Docket No. 13-500 (issued February 6, 2014).

3

20 C.F.R. § 10.712.

4

Id.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, FECA Third Party Subrogation Guidelines, Chapter
2.1100.10(b)(3) (March 2006).
6

Id., Chapter 2.1100.10(b)(2). See also F.B., supra note 2.

3

evidence. The Board finds that the record establishes that an overpayment of $22,360.04 was
created.
LEGAL PRECEDENT -- ISSUE 2
5 U.S.C. 8129(b) provides: “Adjustment or recovery by the United States may not be
made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of [FECA] or would be against equity and good
conscience.”7 A claimant who is at fault in creating the overpayment is not entitled to waiver.8
On the issue of fault, 20 C.F.R. § 10.433 provides that an individual will be found at fault if he or
she has done any of the following: “(1) made an incorrect statement as to a material fact which
he or she knew or should have known to be incorrect; (2) failed to provide information which he
or she knew or should have known to be material; or (3) accepted a payment which he or she
knew or should have known to be was incorrect.”
ANALYSIS -- ISSUE 2
OWCP found that appellant was at fault as she accepted a payment she knew or should
have known to be incorrect. The Board notes that OWCP specifically advised her in a
November 12, 2009 letter that as of October 25, 2009 she would not receive compensation on the
periodic rolls until the surplus of $22,360.04 was exhausted. Moreover, in a September 17, 2010
letter, OWCP advised appellant that the only compensation owed for the period October 25,
2009 to September 25, 2010 was $343.88. It explained that this was the amount after the
deduction of the surplus had been made and, as of September 26, 2010, she would begin
receiving her regular 28-day wage-loss compensation payment.
Based on the information provided to appellant, when she received the October 1, 2010
payment by check in the amount of $22,703.92 covering the period October 25, 2009 to
September 25, 2010, she should have known it was incorrect. There was no reasonable basis to
believe that she was entitled to a payment of $22,703.92 for the period covered. Appellant knew
or should have known that she was entitled to only $343.88, as the September 17, 2010 letter
specifically advised her of this amount. Pursuant to 20 C.F.R. § 10.433, OWCP properly found
her to be at fault with respect to the creation of the overpayment in this case. Since she is at
fault, appellant is not entitled to waiver of the overpayment.
On appeal, appellant correctly notes that the overpayment was the result of a mistake by
OWCP. Although OWCP may have erred, this does not relieve the overpaid individual of the
obligation to repay the overpayment if he or she was at fault in accepting the overpayment.9
Appellant also reiterated her argument that she thought the surplus was money owed to her and
she should not be found at fault. OWCP does not have to show that she knew the payment was
incorrect. Fault can be established if the circumstances show that the claimant accepted a
7

5 U.S.C. § 8129(b).

8

See Robert W. O’Brien, 36 ECAB 541, 547 (1985).

9

20 C.F.R. § 10.435(a).

4

payment he or she should have known was incorrect. As discussed above, OWCP provided
specific explanation as to the nature of the surplus and her entitlement to compensation. Based
on this evidence, appellant should have known the October 1, 2010 payment was incorrect.
LEGAL PRECEDENT -- ISSUE 3
OWCP regulations provide:
“When an overpayment has been made to an individual who is entitled to further
payments, the individual shall refund to OWCP the amount of the overpayment as
soon as the error is discovered or his or her attention is called to the same. If no
refund is made, OWCP shall decrease later payments of compensation, taking into
account the probable extent of future payments, the rate of compensation, the
financial circumstances of the individual and any other relevant factors, so as to
minimize any hardship.”10
In addition, the regulations provide that the individual who received the overpayment is
responsible for providing financial information with respect to income and expenses.11 Such
information will be used to determine the repayment schedule, if necessary.12
ANALYSIS -- ISSUE 3
OWCP requested that appellant submit an OWCP-20 form and supporting financial
documents. This information can be used to determine the amount OWCP will deduct from her
continuing compensation to minimize any hardship. Appellant did not, however, submit any
financial information. As noted above, it is her responsibility to submit such evidence. OWCP
determined that $85.00 would be deducted from appellant’s 28-day compensation payments of
approximately $1,900.00. There is no evidence that such a determination is improper under
OWCP regulations when she submitted no financial information.13 The Board finds that OWCP
properly determined the recovery schedule of the overpayment in this case.
CONCLUSION
The Board finds that OWCP properly determined that an overpayment of $22,360.04 was
created, that appellant was at fault in creating the overpayment and that the overpayment should
be recovered by deducting $85.00 from continuing compensation.

10

Id. at § 10. 441.

11

Id. at § 10.438.

12

Id.

13

See L.W., Docket No. 14-196 (issued June 17, 2014); M.R., Docket No. 14-549 (issued June 11, 2014).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 9, 2014 is affirmed.
Issued: September 17, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 10-2014
Issued: June 2, 2011

Case Submitted on the Record

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

JURISDICTION
On July 31, 2010 appellant filed a timely appeal of a February 4, 2010 decision of the
Office of Workers’ Compensation Programs, denying her application for reconsideration without
merit review of the claim. Pursuant to the Federal Employees’ Compensation Act1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the February 4, 2010 nonmerit
decision. Since more than one year has elapsed between the last merit decision on August 1,
2007 and the filing of this appeal, the Board lacks jurisdiction to review the merits of the claim
pursuant to 20 C.F.R. § 501.3(e).2
ISSUE
The issue is whether the Office properly denied appellant’s application for
reconsideration without merit review of the claim.
1
2

5 U.S.C. § 8101 et seq.

For final adverse Office decisions issued prior to November 19, 2008, a claimant had up to one year to appeal to
the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse Office decisions issued on and after November 19, 2008,
a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
The case was before the Board on a prior appeal. In a decision dated June 9, 2009, the
Board affirmed an Office merit decision dated August 1, 2007, denying appellant’s claim for a
recurrence of disability commencing March 1996.3 The Board also affirmed a November 30,
2007 Office decision denying merit review of the claim. The history of the case provided by the
Board in its prior decision is incorporated herein by reference.
In a letter dated September 14, 2009, appellant requested reconsideration of her claim.
On October 21, 2009 the Office received additional evidence. With respect to new medical
evidence, the reports submitted include a treatment note dated July 3, 1996 from Dr. Richard
Koerker, a neurologist, who stated that appellant had a history of right hand pain with repetitive
movements. According to Dr. Koerker, appellant stated that she had been dismissed from the
employing establishment due to a “dead right hand” that prohibited use of the right hand. He
further stated that she “refers to injury in the [employing establishment], but the injury appears to
be repetitive movements needed in either typing or shuffling mail. [Appellant’s] speed in typing
has gone down to under 30 words per minute.”
In a report dated August 21, 1997, Dr. Charles Paxon, an internist, stated that appellant
had reported hand dysfunction since the middle 1980’s. He noted that she worked at the
employing establishment after 1991, and she recalled an injury, but could not recall details other
than becoming aware of pain at the base of the neck. According to Dr. Paxon, appellant believed
that “this problem then evolved into episodic hand dysfunction again much like it occurred in the
Air Force.” He stated that the right hand dysfunction did not have a clear-cut diagnosis, and it
may relate to the neck dysfunction but he could not make that determination.
In a report dated October 1, 1998, Dr. Daniel Phan, an internist, stated that appellant was
seen for right hand and back pain. He reviewed medical records and provided a history that she
hurt her right hand during military service from 1984 to 1990. Dr. Phan stated that appellant
developed neck pain while working for the employing establishment from 1992 to 1994, when
there was frequent use of her arms and hands, with frequent turning of the neck. He provided
results on examination and stated that she had nonspecific right hand, neck and mid-back pain.
Dr. Phan found appellant’s gross and fine manipulation were intact, but stated that, with her
history of right hand pain, she should avoid “use” that would require prolonged use of the right
arm.4 In a brief note dated October 27, 1998, a physician whose signature is illegible stated that
appellant should avoid prolonged or repetitive use of the right arm.
By decision dated February 4, 2010, the Office determined that appellant’s application
for reconsideration and the evidence submitted was insufficient to warrant merit review of the
claim.

3

Docket No. 08-2067 (issued June 9, 2009). As the Board noted, appellant’s claim was accepted for bilateral
tenosynovitis of the hand and wrist, with appellant resigning from federal employment on May 9, 1994.
4

The word “use” was replaced by a handwritten “work,” although it is not clear who made the alteration.

2

LEGAL PRECEDENT
The Act 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.5 The
employee shall exercise this right through a request to the district Office. The request, along
with the supporting statements and evidence, is called the “application for reconsideration.”6
An employee (or representative) seeking reconsideration should send the application for
reconsideration to the address as instructed by the Office in the final decision. The application
for reconsideration, including all supporting documents, must be in writing and must set forth
arguments and contain evidence that either: (1) shows that the Office erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by the Office; or (3) constitutes relevant and pertinent evidence not previously
considered by the Office.7
A timely request for reconsideration may be granted if the Office determines that the
employee has presented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and the case is reviewed on its merits. Where the
request is timely but fails to meet at least one of these standards, the Office will deny the
application for reconsideration without reopening the case for a review on the merits.8
ANALYSIS
Appellant filed an application for reconsideration without offering a specific argument
with respect to a point of law or legal argument. She did not show that the Office erroneously
applied or interpreted a specific point of law or advance a relevant legal argument not previously
considered by the Office. Appellant did submit additional evidence with respect to her claim for
a recurrence of disability. The issue is whether there was evidence that constitutes relevant and
pertinent evidence not previously considered by the Office.
The underlying merit issue was a claim for a recurrence of disability. On the October 2,
2006 claim form appellant had identified the date of the recurrence as March 1996 and the date
she stopped working after the recurrence as February 13, 1998. Since her federal employment
had ended in May 1994, it is not entirely clear whether she was claiming an employment-related
disability from March 1996 or from February 13, 1998. To require the Office to reopen the case
for merit review, it is not necessary for appellant to establish a recurrence of disability.
Appellant must, however, submit evidence that is new, relevant and pertinent to the issue.
A review of the medical evidence submitted on reconsideration does not establish that it
is new, relevant and pertinent to the recurrence of disability issue. Dr. Koerker’s July 3, 1996
5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.605 (1999).

7

Id. § 10.606(b)(2).

8

Id. § 10.608.

3

note does not discuss a disability for work. He referred to a history of a right hand injury,
without providing any additional relevant information to the issue presented. In his August 21,
1997 report, Dr. Paxon refers to a right hand condition that preexisted work at the employing
establishment, and then indicated that appellant reported neck symptoms while working at the
employing establishment. He was uncertain of the right hand diagnosis or if the condition was
related to a neck condition. There was no opinion as to disability for federal employment or any
opinion as to causal relationship between any disability and the employment injury.
Dr. Phan stated in his October 1, 1998 report that appellant should avoid using her right
arm for prolonged periods. He also indicated that gross and fine manipulation were intact.
Dr. Phan does not discuss appellant’s federal employment and it is not clear whether he felt she
was disabled for her date-of-injury position. In addition, he does not provide an opinion
regarding the right hand pain and the employment injury. Based on the history provided,
Dr. Phan appeared to relate any right hand symptoms to military service prior to work at the
employing establishment.
The remainder of the medical evidence submitted included treatment for an emotional
condition, which is not an accepted injury for this claim, and evidence that is either unsigned or
not prepared by a physician under the Act.9 The Board finds that appellant did not submit
evidence that was new, relevant and pertinent to the issue presented. Since appellant did not
meet any of the requirements of 20 C.F.R. § 10.606(b)(2), the Office properly denied the
application for reconsideration without merit review of the claim.
On appeal, appellant noted that she submitted evidence on October 21 and November 3,
2009, and submitted a November 20, 2009 letter to the Office. The evidence of record before the
Office at the time of the February 4, 2010 Office decision was considered on this appeal. For the
above reasons, the Board finds that appellant did not meet the requirements for a merit review of
her claim.
CONCLUSION
The Board finds that the Office properly determined that appellant’s application for
reconsideration was insufficient to warrant a merit review of the claim.

9

Medical evidence from a physician’s assistant is not competent medical evidence as a physician’s assistant is
not a physician under 5 U.S.C. § 8101(2). See George H. Clark, 56 ECAB 162 (2004). A medical report lacking
proper identification is of no probative medical value. Thomas L. Agee, 56 ECAB 465 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 4, 2010 is affirmed.
Issued: June 2, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORP LOGISTICS BASE, Barstow, CA,
Employer
__________________________________________

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

Docket No. 07-1061
Issued: August 15, 2007

Case Submitted on the Record

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

JURISDICTION
On March 2, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated January 10, 2007 which denied his claim for
recurrence and a nonmerit decision dated February 5, 2007 which denied his reconsideration
request. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of the appeal.
ISSUES
The issues are: (1) whether the Office properly denied appellant’s claim of recurrence;
and (2) whether the Office properly refused to reopen appellant’s case for further review of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 16, 1994 appellant, then a 40-year-old mobile equipment metal worker, filed a
traumatic injury claim with his employing establishment alleging that on May 13, 1994 he
“popped a hemorrhoid” while lifting the hood of a hummer. In a May 2, 2005 notice of

recurrence of disability, appellant alleged that his original injury never healed and that he had
sustained an anal hernia.
In an August 12, 2005 letter, the employing establishment informed the Office that
appellant’s original claim was timely filed (but had not resulted in lost time or medical expense)
and forwarded his CA-1 and CA-2a. In an August 25, 2005 letter, the Office informed appellant
that the evidence submitted was insufficient to support his claim and requested additional factual
and medical information. Appellant responded in a September 13, 2005 letter. On
September 13, 2005 the Office also received a dispensary permit dated May 14, 1994, which
contains an illegible signature by a medical officer, and which notes that appellant has a
nonoccupational “hyrnia right side.” The dispensary permit also indicates that appellant had no
medical restrictions.
By decision dated September 30, 2005, the Office denied appellant’s 1994 traumatic
injury claim. The Office found that appellant had not established that he sustained a
compensable injury as there was no medical evidence of a diagnosed condition connected with
the accepted event.
On October 4, 2005 appellant requested reconsideration. Appellant resubmitted
documents including his claim forms and letters which were previously of record. Appellant
also advised the Office again that his initial injury had never resolved. By merit decision dated
January 10, 2006, the Office denied modification of the prior decision.
A March 1, 2006 letter with copies of appellant’s Form CA-1 and previously submitted
documents was received by the Office.
On December 2, 2006 appellant requested
reconsideration accompanied by copies of previously submitted documents.
By decision dated January 10, 2007, the Office denied appellant’s May 2, 2005
recurrence claim on the grounds that appellant’s original claim was denied.
By a February 5, 2007 nonmerit decision, the Office denied appellant’s request for
reconsideration on the grounds that no new evidence was submitted.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
employment injury or illness without intervening injury or new exposure to the work
environment that caused the illness.1 An individual who claims a recurrence of disability
resulting from an accepted employment injury has the burden of establishing that the disability is
related to the accepted injury. This burden requires furnishing medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes

1

Hubert Jones, Jr., 57 ECAB ___ (Docket No. 05-603, issued March 10, 2006).

2

that the disabling condition is causally related to the employment and who supports that
conclusion with sound medical reasoning.2
ANALYSIS -- ISSUE 1
In this case, the Office denied appellant’s 1994 traumatic injury claim for a hernia on
September 30, 2005 because appellant did not submit medical evidence to establish a causal
relationship between the condition and his employment. Because more than one year elapsed
from the last merit decision regarding this claim, dated January 10, 2006, before appellant filed
the current appeal, on March 2, 2007, the Board no longer has jurisdiction over the 1994
traumatic injury claim.3 The Office denied appellant’s claim for recurrence on the grounds that
his initial claim was never accepted. To establish a compensable recurrence, appellant must
establish an initial employment-related injury, which has been accepted. As appellant’s injury
claim was never accepted, there cannot be a compensable recurrence of that injury. The Office
properly denied appellant’s claim of recurrence.
LEGAL PRECEDENT -- ISSUE 2
Under 20 C.F.R. § 10.606(b)(2), a claimant may obtain review of the merits of his or her
claim: (1) by showing that the Office erroneously applied or interpreted a specific point of law;
(2) by advancing a relevant legal argument not previously considered by the Office; or (3) by
constituting relevant and pertinent new evidence not previously considered by the Office.4
Section 10.608(b) provides that when an application for review of the merits of a claim
does not meet at least one of the three regulatory requirements the Office will deny the
application for review without reviewing the merits of the claim.5 Evidence that repeats or
duplicates evidence already in the case record has no evidentiary value and does not constitute a
basis for reopening a case.6
ANALYSIS -- ISSUE 2
Appellant requested reconsideration on December 2, 2006. Between the prior decision
on January 10, 2006 and appellant’s request the Office received copies of previously submitted
documents, and appellant’s own statements reiterating his claim. It is well established that
evidence which repeats or duplicates evidence already in the record has no evidentiary value and
constitutes no basis for reopening a case.7 Merely submitting copies of documents previously
submitted does not constitute a basis to reopen the case. The only new documents received were
2

Mary A. Ceglia, 55 ECAB 626 (2004).

3

20 C.F.R. § 501.3(d).

4

5 U.S.C. § 8128(a); Richard Yadron, 57 ECAB ___ (Docket No. 05-1738, issued November 8, 2005).

5

20 C.F.R. § 10.608(b); Richard Yadron, id.

6

Richard Yadron, id.

7

Eugene F. Butler, 36 ECAB 393 (1984); Bruce E. Martin, 35 ECAB 1090 (1984).

3

the December 2, 2006 reconsideration form and a March 1, 2006 letter, neither of which alleges
that the Office erroneously applied or interpreted a specific point of law or advances a relevant
legal argument not previously considered by the Office. As appellant has not met any of the
three regulatory requirements he is not entitled to a review of the merits of his claim. The Office
properly denied appellant’s request for reconsideration.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he is
entitled to reconsideration of his claim nor has he demonstrated that he sustained a recurrence.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 5 and January 10, 2007 are affirmed.
Issued: August 15, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF THE TREASURY,
U.S. MINT, West Point, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0817
Issued: November 24, 2020

Case Submitted on the Record

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

JURISDICTION
On March 3, 2020 appellant, through counsel, filed a timely appeal from a January 15,
2020 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
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 15, 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 a recurrence of
disability, commencing June 27, 2019, causally related to her accepted August 27, 2015
employment injury.
FACTUAL HISTORY
On August 27, 2015 appellant, then a 53-year-old die setter, filed a traumatic injury claim
(Form CA-1) alleging that on that date she fell off a platform step while carrying a heavy tooling
machine part, which landed on her right middle finger causing pain, while in the performance of
duty. On February 5, 2018 OWCP accepted the claim for a crush injury of the right middle finger.
In a February 19, 2018 report, Dr. Cuartas noted that appellant reported increased pain in
the right long finger with snapping and locking. He observed moderate tenderness of the A1 pulley
of the right long finger with limited range of motion. Dr. Cuartas opined that these findings
remained causally related to the accepted August 27, 2015 injury.
On March 12, 2018 appellant filed a notice of recurrence (Form CA-2a), for medical
treatment alleging that she sustained a recurrence on November 20, 2017, while in full-duty status
as a result of her previously accepted crush injury to the right middle finger. She described ongoing
difficulties with handling tools. Appellant explained that she wished to seek additional medical
treatment. She did not stop work.4
By decision dated March 30, 2018, OWCP accepted appellant’s recurrence claim. It
authorized additional medical care for the accepted right long finger injury.
Appellant stopped work on June 27, 2019. On July 1, 2019 she filed a Form CA-2a,
alleging that she sustained a recurrence of disability on June 27, 2019. Appellant described
worsening symptoms in her right long finger without any intervening cause.5
In a development letter dated July 2, 2019, OWCP provided a definition of a recurrence of
disability. It advised appellant of the type of factual and medical evidence necessary to establish
her claim, provided a questionnaire for her completion, and afforded her 30 days to submit
additional evidence.
In response, appellant submitted a July 17, 2019 statement noting that she had returned to
full-duty work as a super die setter/metal forming machine operator, but had been on light duty
since May 2, 2019 due to a left hand injury under OWCP File No. xxxxxx619. She described a
spontaneous worsening of her right long trigger finger beginning on June 27, 2019. Appellant
provided her official position description.

4

Appellant also provided a March 17, 2018 report from a physician assistant.

5
Appellant noted that she filed a claim for a May 2, 2019 left hand injury under OWCP File No. xxxxxx619. Her
claims have not been administratively combined.

2

In a July 8, 2019 report, Dr. Gina C. Del Savio, Board-certified in orthopedic surgery and
hand surgery, held appellant off work pending surgery for right long trigger finger.
By decision dated August 8, 2019, OWCP denied appellant’s recurrence claim, finding that
she had not established that she was disabled from work commencing June 27, 2019, due to a
material change or worsening of the accepted right long finger crush injury.
On November 2, 2019 appellant, through counsel, requested reconsideration and submitted
additional evidence.
In a September 30, 2019 narrative report, Dr. Del Savio provided a detailed history of
appellant’s injury and treatment beginning on August 27, 2015. Appellant presented on May 16,
2019 with a May 2, 2019 occupational left hand injury, sustained while working with a hammer
and anvil. The hammer did not strike appellant’s left hand, but she experienced the immediate
onset of pain in the base of the left thumb. Appellant’s right long finger continued to trigger. As
of June 24, 2019, she asserted that her left hand symptoms prevented her from performing her
light-duty assignment. Dr. Del Savio recommended that appellant stop work due to her hand
injuries and noted that she “is and has been unable to work in any capacity.” In a July 8, 2019
examination, appellant reported severe right hand symptoms not relieved with over-the-counter
medication. Dr. Del Savio recommended a right long finger release. On September 9, 2019 she
diagnosed a right long trigger finger secondary to the accepted injury, and carpometacarpal joint
arthritis of the left thumb. Dr. Del Savio explained that “given the physical nature of [appellant’s]
job and the repetitive use of both hands for vigorous activities as a die setter, the injury to one hand
causes the other to be aggravated in a cyclical fashion. She recommended a “right long trigger
finger release to definitely manage the right tendinitis caused by the injury in 2015.”
By decision dated January 15, 2020, OWCP expanded its acceptance of the claim to include
a right middle trigger finger, in addition to the previously accepted crush injury to the right middle
finger.
By separate decision dated January 15, 2020, OWCP denied appellant’s claim for a
recurrence of disability commencing June 27, 2019. It found that the medical evidence of record
did not establish that she was “disabled/further disabled due to a material change/worsening of
[her] accepted work-related conditions.”
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim.7 Under FECA the term disability means incapacity, because
of an employment injury, to earn the wages that the employee was receiving at the time of injury.8
For each period of disability claimed, the employee has the burden of proof to establish that he or

6

Supra note 1.

7

See L.S., Docket No. 18-0264 (issued January 28, 2020); B.O., Docket No. 19-0392 (issued July 12, 2019).

8

20 C.F.R. § 10.5(f); J.S., Docket No. 19-1035 (issued January 24, 2020).

3

she was disabled from work as a result of the accepted employment injury.9 Whether a particular
injury causes an employee to become disabled from work, and the duration of that disability, are
medical issues that must be proven by a preponderance of probative and reliable medical opinion
evidence.10
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition that had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused
the illness. The term also means an inability to work when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to the work-related injury or
illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force), or when the physical requirements of such
an assignment are altered so that they exceed his or her established physical limitations.11
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden of proof to establish by
the weight of reliable, probative, and substantial evidence a recurrence of total disability. As part
of this burden of proof, the employee must show either a change in the nature and extent of the
injury-related condition, or a change in the nature and extent of the limited-duty requirements.12
An employee who claims a recurrence of disability resulting from an accepted employment
injury has the burden of proof to establish that the disability is related to the accepted injury. This
burden requires furnishing medical evidence from a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the disabling condition is causally related to
the employment injury and supports that conclusion with sound medical reasoning.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability, commencing June 27, 2019, causally related to her accepted August 27, 2015
employment injury.
In support of her recurrence claim, appellant submitted a July 8, 2019 report, from
Dr. Del Savio which held her off from work pending right trigger finger release. In a
September 30, 2019 narrative report, Dr. Del Savio attributed appellant’s worsened right hand
symptoms to the effects of the May 2, 2019 left hand injury. She explained that vigorous, repetitive
bilateral hand movements while working as a die setter caused a cyclical aggravation of each hand.
9

T.W., Docket No. 19-1286 (issued January 13, 2020).

10

S.G., Docket No. 18-1076 (issued April 11, 2019); Fereidoon Kharabi, 52 ECAB 291 (2001).

11

20 C.F.R. § 10.5(x); see D.T., Docket No. 19-1064 (issued February 20, 2020).

12

C.B., Docket No. 19-0464 (issued May 22, 2020); see R.N., Docket No. 19-1685 (issued February 26, 2020);
Terry R. Hedman, 38 ECAB 222 (1986).
13

Id.

4

Dr. Del Savio opined that the appellant “is and has been unable to work in any capacity.” Although
she provided an opinion regarding disability, her reports are insufficiently rationalized to establish
causal relationship between appellant’s claimed disability and the accepted August 27, 2015 right
long finger injury. The Board has held that a report is of limited probative value regarding causal
relationship if it does not contain medical rationale explaining how a given medical
condition/disability was related to employment factors.14 Therefore, the Board finds that this
evidence is insufficient to meet appellant’s burden of proof.
On appeal counsel asserts that the medical evidence of record establishes appellant’s claim
for a recurrence of disability commencing June 27, 2019, and that OWCP had unreasonably
ignored symptoms and conditions supported by appellant’s physicians. As explained above, the
medical evidence of record is insufficient to establish a recurrence of disability.
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 10.607.15
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability, commencing June 27, 2019, causally related to her accepted August 27, 2015
employment injury.

14

See Y.D., Docket No. 16-1896 (issued February 10, 2017) (finding that a report is of limited probative value
regarding causal relationship if it does not contain medical rationale describing the relation between work factors and
a diagnosed condition/disability). See also See J.M., Docket No. 16-0306 (issued May 5, 2016).
15
Upon return of the case record, OWCP may consider administratively combining the present claim with OWCP
File No. xxxxxx619.

5

ORDER
IT IS HEREBY ORDERED THAT the January 15, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 24, 2020
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-32
Issued: May 23, 2007

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 October 2, 2006 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decisions dated March 17 and September 13, 2006, finding a
10 percent impairment each of the right and left lower extremities for which he received a
schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this schedule award case.
ISSUE
The issue is whether appellant has more than a 10 percent impairment of each lower
extremity, for which he received a schedule award.
FACTUAL HISTORY
On May 26, 1988 appellant, then a 30-year-old city carrier, filed a traumatic injury claim.
He hurt his back on May 25, 1988 as a result of being involved in an automobile accident while
in the performance of duty. The Office accepted appellant’s claim for lumbosacral and thoracic

strains and a herniated disc at L5-S1. It authorized lumbar disc surgery which was performed on
April 9, 1990 by Dr. Harold J. Goald, an attending Board-certified neurologist.
On April 21, 1999 appellant filed a claim for a schedule award. By letter dated
September 30, 1999, the Office requested that appellant submit a report from an attending
physician, indicating whether he sustained any permanent impairment based on the American
Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed. 1995).
In an April 16, 1999 medical report, Dr. Rida Azer, a Board-certified orthopedic surgeon,
stated that appellant experienced occasional pain in the lumbar spine region. He noted that an
April 15, 1999 electromyogram (EMG) and a nerve conduction study (NCS) demonstrated left
L5-S1 radiculopathy. On physical examination, Dr. Azer reported limited motion of the lumbar
spine with pain and muscle spasm on movements. He opined that appellant had residuals of his
May 25, 1988 employment injury which resulted in permanent limitations. Based on the
A.M.A., Guides, Dr. Azer opined that he had a 45 percent impairment of the spine.
An October 15, 1999 report of Dr. Hampton Jackson, a Board-certified orthopedic
surgeon, noted appellant’s complaints of persistent lower back pain with radiation into the left
iliac crest, trochanter and the left knee with intermittent radiation into the leg, but not into the
foot. Dr. Jackson reviewed a history of appellant’s May 25, 1988 employment injury and
medical treatment. On physical examination, he reported a well-healed surgical incision and
tenderness and spasm in its adjacent area. There was limited motion of the trunk, a negative
pelvic compression test and positive straight leg raise on the left and right sides. Dr. Jackson
indicated that appellant could not heel walk on the left side but he could do so on the right side.
There was a diminished posterior tibia jerk on the left side and symmetrical ankle and knee jerks
but the latter was diminished. Dr. Jackson further reported atrophy on the left leg compared to
the right by one centimeter in the lower segments and one centimeter in the upper segments. He
opined that appellant sustained a lumbar nerve root impairment bilaterally secondary to his
May 25, 1988 employment injury. Dr. Jackson determined that involvement of the L4 root on
the right side constituted a five percent maximum loss of impairment due to sensory deficit and
pain in the L4 distribution (A.M.A., Guides 130, Table 83). He further determined that appellant
had an additional 30 percent impairment of the right lower extremity due to strength deficit.
Regarding the left lower extremity, Dr. Jackson found that appellant sustained a 15 percent
impairment at L4, L5 and S1 due to sensory deficit and pain and a 50 percent impairment due to
strength deficit. He concluded that appellant had a 35 percent impairment of the right lower
extremity and a 55 percent impairment of the left lower extremity due to the accepted
employment injury. Dr. Jackson further concluded that appellant sustained a 45 percent
impairment of the lumbar spine and pelvis based on the A.M.A., Guides.
By letters dated October 11 and 14, 2002, the Office referred appellant, together with a
statement of accepted facts, the case record and a list of questions to be addressed, to
Dr. Kevin F. Hanley, a Board-certified orthopedic surgeon, for a second opinion medical
examination. In an October 30, 2002 report, Dr. Hanley noted a history of appellant’s May 28,
1988 employment injuries and medical treatment. On physical examination, he reported that
appellant was healthy and in no acute distress. Appellant sat comfortably and moved about the
room easily. He got on and off the table without any assistance. Dr. Hanley stated that straight
leg raising was mildly positive on both sides. Appellant’s back showed a well-healed midline

2

scar and motion was good. Dr. Hanley indicated that he experienced some pain on return to the
upright position and decreased sensation and hypersensitivity to light touch in both legs. He
listed normal reflexes and strength and found no obvious weakness. Dr. Hanley diagnosed
hemilaminectomy discectomy at L4-5 and L5-S1 with bilateral radiculopathy. He stated that
appellant reached maximum medical improvement. Dr. Hanley opined that the physical findings
indicated that appellant’s accepted conditions were still active and included pain and
dysesthesias in the distribution of the nerve root. He stated that appellant sustained impairment
to both lower extremities. Dr. Hanley determined that the dysesthesias in both the common
peroneal and superficial peroneal distribution constituted a five percent impairment for each
nerve (A.M.A., Guides 552 (fifth edition 2001), Table 17-37). He concluded that appellant
sustained 10 percent impairment to each lower extremity as a consequence of his accepted
employment injuries.
On January 23, 2003 an Office medical adviser reviewed appellant’s medical records.
The medical adviser found that sensory loss at the L5 nerve root on the right lower extremity
constituted a maximum of five percent impairment (A.M.A., Guides 424, Table 15-18). He
further found that the sensory deficit at L5 constituted a Grade 1 impairment which resulted in
99 percent impairment (A.M.A., Guides 424, Table 15-15). The medical adviser determined that
sensory loss at the S1 nerve root on the right lower extremity constituted a maximum of five
percent impairment (A.M.A., Guides 424, Table 15-18). He also determined that sensory deficit
at S1 constituted a Grade 1 impairment which resulted in a 99 percent impairment (A.M.A.,
Guides 424, Table 15-15). The medical adviser multiplied 99 percent for sensory deficit by a
maximum impairment of 5 percent sensory deficit of the L5 nerve root to determine that
appellant had a 5 percent impairment of the right lower extremity (A.M.A., Guides 424, Table
15-18). He also multiplied 99 percent impairment for a Grade 1 sensory deficit by a maximum
of 5 percent sensory deficit of the S1 nerve root to determine that appellant had a 5 five percent
impairment of the right lower extremity (A.M.A., Guides 424, Table 15-18). The medical
adviser concluded that appellant sustained a 10 percent impairment of the right lower extremity.
As appellant’s condition was bilateral, he also had a 10 percent impairment of the left lower
extremity.
In a January 7, 2003 report, received by the Office on January 29, 2003, Dr. Jackson
stated that appellant’s surgical incision was benign and minimally tender, but there was a fair
amount of spasm in the lumbar paraspinal muscles. Dr. Jackson reported positive straight leg
raising on the right at 45 degrees and at 60 degrees on the left. Appellant had weakness to toe
walk on the right side. His heel walk was also diminished. Dr. Jackson found hypoesthesia in
the distribution of S1 on the right and left sides with a significantly diminished right ankle jerk.
He stated that appellant’s knee jerks were symmetrical. Dr. Jackson found postlaminectomy
syndrome with chronically progressive degeneration at the L5-S1 and L4-5 levels, probable
significant facet arthropathy and persistent radiculopathy. He opined that appellant had failed a
double-level laminectomy and considerable restriction of motion with associated pain which he
related as 40 percent impairment of the whole body regarding the lower back. Dr. Jackson
further opined that appellant had an additional impairment due to nerve damage in the lower
extremities. He stated that he sustained a 25 percent impairment of the right lower extremity and
a 10 percent impairment of the left lower extremity based on the A.M.A., Guides. Dr. Jackson
concluded that appellant was a good surgical candidate for either a closed or open lumbar
procedure and that his prognosis was poor in this regard.
3

By decision dated March 17, 2006, the Office granted appellant a schedule award for a
10 percent impairment of each lower extremity. On April 6, 2006 appellant requested a review
of the written record by an Office hearing representative.
By decision dated September 13, 2006, an Office hearing representative affirmed the
March 17, 2006 decision. The hearing representative found that Dr. Hanley’s October 30, 2002
report constituted the weight of the medical opinion evidence. He properly utilized the A.M.A.,
Guides in determining that appellant had a 10 percent impairment to each lower extremity.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulation2 set forth the number of weeks of compensation to be paid for
permanent loss, or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.3 However, neither the Act nor the regulation specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.4
No schedule award is payable for a member, function or organ of the body not specified
in the Act or in the implementing regulation.5 As neither the Act nor its regulation provide for
the payment of a schedule award for the permanent loss of use of the back or the body as a
whole, no claimant is entitled to such a schedule award.6 The Board notes that section
8109(19) specifically excludes the back from definition of organ.7 However, a claimant may be
entitled to a schedule award for permanent impairment to a scheduled member or organ even
though the cause of the impairment originated in the neck, shoulders or spine.8
ANALYSIS
The Office accepted that appellant sustained lumbar and thoracic strains and a herniated
disc at L4-S1 due to the May 25, 1988 employment injury. Appellant filed a claim for a
schedule award on April 21, 1999 and submitted impairment evaluations dated April 16, 1999
from Dr. Azer and October 15, 1999 and January 7, 2003 from Dr. Jackson. Dr. Azer stated that
1

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

2

20 C.F.R. § 10.404.

3

See supra note 1 at § 8107(c)(19).

4

See supra note 2.

5

See Joseph Lawrence, Jr., 53 ECAB 331 (2002).

6

Thomas J. Engelhart, 50 ECAB 319 (1999).

7

5 U.S.C. § 8107; see also Phyllis F. Cundiff, 52 ECAB 439 (2001); Jay K. Tomokiyo, 51 ECAB 361 (2000).

8

Id. at § 8109(c).

4

appellant experienced occasional pain in the lumbar spine region and that an April 15, 1999
EMG/NCS demonstrated left L5-S1 radiculopathy. On physical examination, he reported his
range of motion findings regarding appellant’s lumbar spine. Dr. Azer opined that appellant had
residuals of his May 25, 1988 employment injury which resulted in permanent limitations. He
found that appellant sustained a 45 percent impairment of the spine based on the A.M.A.,
Guides. As noted, appellant is not entitled to a schedule award for impairment to the back under
the Act unless his back injury results in impairment to a scheduled member such as the lower
extremities.9 Dr. Azer did not provide any impairment rating for appellant’s lower extremities.
The Board finds that Dr. Azer’s report is of diminished probative value.
Dr. Jackson’s October 15, 1999 report indicated appellant’s complaints of persistent
lower back pain with constant radiation into the left iliac crest, trochanter and down to the left
knee and the leg. He reviewed the findings of an EMG and provided his findings on physical
examination of appellant’s lumbar spine and lower extremities. Dr. Jackson opined that
appellant sustained lumbar nerve root impairment bilaterally secondary to his May 25, 1988
employment injury. He determined that involvement of the L4 root on the right side constituted
a five percent maximum loss of use due to sensory deficit and pain in the L4 distribution
(A.M.A., Guides 130 (fourth edition 1995), Table 83). Dr. Jackson found that appellant had an
additional 30 percent impairment of the right lower extremity due to strength deficit. Regarding
the left lower extremity, he determined that appellant had 15 percent impairment at L4, L5 and
S1 due to sensory deficit and pain (5 percent impairment for each nerve) and 50 percent
impairment due to strength deficit. Dr. Jackson concluded that appellant sustained a 35 percent
impairment of the right lower extremity and a 55 percent impairment of the left lower extremity
as a result of the nerve damage caused by the accepted employment injury. He further concluded
that appellant sustained a 45 percent impairment of the lumbar spine and pelvis based on the
A.M.A., Guides. Although Dr. Jackson indicated that he used Table 83 on page 130 of the
A.M.A., Guides to calculate appellant’s nerve root impairment, he did not adequately explain
how he applied the grading scheme in the stated table in calculating impairment due to sensory
and strength deficit. The A.M.A, Guides provides, at page 130 in the section titled “Lumbar
Nerve Root Impairment,” that the percentages in Table 83 are to be multiplied by the applicable
percentages in Tables 11 and 12 at pages 47-48. Dr. Jackson did not complete the calculation as
specified in the A.M.A., Guides. He allowed appellant maximum impairment values without
grading the extent of the deficit. Dr. Jackson stated that appellant had a 30 percent permanent
impairment of the right lower extremity and 50 percent impairment of the left lower extremity
for strength deficit based on Table 83. However, the percentages for loss of function due to
strength deficit in Table 83 are 34 percent, 37 percent and 20 percent, respectively, for the L4,
L5 and S1 nerves. Dr. Jackson did not explain how he arrived at his 30 and 50 percent figures
for loss of function due to decreased strength. The Board finds that Dr. Jackson’s determination
of appellant’s permanent impairment of the right and left lower extremities is not based on
correct application of the A.M.A., Guides. As noted, appellant is not entitled to a schedule
award for permanent impairment of the back.10 The Board finds that Dr. Jackson’s October 15,
1999 report is of diminished probative value.
9

Thomas J. Engelhart, supra note 6.

10

Id.

5

Dr. Jackson’s January 7, 2003 report provided range of motion findings regarding
appellant’s lumbar spine and lower extremities. He reported that appellant had weakness to toe
walk on the right side and his heel walk was also diminished. Dr. Jackson indicated that there
was hypoesthesia in the distribution of S1 on the right and left sides, significantly diminished
right ankle jerk and symmetrical knee jerks. He diagnosed postlaminectomy syndrome with
chronically progressive degeneration at the L5-S1 and L4-5 levels, probable significant facet
arthropathy and persistent radiculopathy. Dr. Jackson found nerve damage in the right lower
extremity with presumably diminished ankle jerk and significant hypoesthesia in the distribution
of two dermatomes. Based on the A.M.A., Guides and on the fact that appellant had failed a
double-level laminectomy and considerable restriction of motion and associated pain, he rated
impairment as 40 percent impairment of the whole body. Dr. Jackson determined that appellant
had an additional impairment due to nerve damage in the lower extremities. He concluded that
appellant sustained a 25 percent impairment of the right lower extremity and a 10 percent
impairment of the left lower extremity. As noted, a schedule award is not payable for permanent
impairment of the back11 or of the whole person.12 Further, Dr. Jackson failed to provide a
rationalized medical opinion on the issue of permanent impairment of appellant’s right and left
lower extremities. He did not identify the specific figures and tables of the A.M.A., Guides he
utilized or explain how he determined that appellant sustained a 25 percent impairment of the
right lower extremity and a 10 percent impairment of the left lower extremity.
Based on the inadequacies of the medical evidence submitted, appellant was referred for
experiment by Dr. Hanley.
The October 30, 2002 report of Dr. Hanley revealed essentially normal findings on
physical examination with the exception of some pain experienced by appellant on return to an
upright position and decreased sensation and hypersensitivity in the distribution of the nerve root
to light touch in both legs. He diagnosed hemilaminectomy discectomy at L4-5 and L5-S1 with
bilateral radiculopathy.
Dr. Hanley stated that appellant reached maximum medical
improvement. He opined that appellant’s accepted conditions were still active and included pain
and dysesthesias in the distribution of the nerve roots. Dr. Hanley determined that there was
dysesthesias in both the common peroneal and superficial peroneal distribution, for which a
maximum five percent impairment was allowed for each nerve (A.M.A., Guides 552, Table
17-37). However, he did not state how he graded the sensory deficit. Dr. Hanley determined
that appellant sustained 10 percent impairment in each lower extremity as a consequence of his
accepted employment injuries.
The Office medical adviser reviewed Dr. Hanley’s physical findings, rating impairment
based on Tables 15-15 and 15-18, page 424 of the A.M.A., Guides. Table 15-18 provides
maximum impairment for the L5 and S1 nerve roots. The medical adviser determined that a
maximum of five percent impairment was allowed for the L5 and S1 nerve root (A.M.A., Guides
424, Table 15-18). The impairments are graded under Table 15-15 for sensory deficit. He
determined that sensory nerve deficit at L5 and S1 constituted Grade 1 impairment or 99 percent
impairment of the right lower extremity (A.M.A., Guides 424, Table 15-15). The medical
11

Id.

12

See Gordon G. McNeill, 42 ECAB 140, 145 (1990).

6

adviser multiplied 99 percent impairment for a Grade 1 sensory deficit by a maximum of
5 percent sensory deficit of the L5 nerve root and properly determined that appellant had a 5 five
percent impairment of the right lower extremity. In addition, he multiplied 99 percent
impairment for a Grade 1 sensory deficit by a maximum of 5 percent sensory deficit of the S1
nerve root and properly determined that appellant had a 5 five percent impairment of the right
lower extremity. The medical adviser concluded that appellant had a 10 percent impairment of
the right lower extremity. As appellant’s condition was bilateral he also rated a 10 percent
impairment of the left lower extremity.
The Office medical adviser properly applied the A.M.A., Guides and provided rationale
for rating 10 percent impairment of the right and left lower extremities. The Board finds that the
opinion of the medical adviser represents the weight of the medical evidence of record.
Appellant has no more than 10 percent impairment of each lower extremity.
CONCLUSION
The Board finds that appellant has no more than a 10 percent impairment for each of his
right and left lower extremities.
ORDER
IT IS HEREBY ORDERED THAT the September 13 and March 17, 2006 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: May 23, 2007
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

7