United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Morton Grove, IL, Employer
__________________________________________

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

Docket No. 07-2005
Issued: February 19, 2008

Case Submitted on the Record

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

JURISDICTION
On July 26, 2007 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ March 1, 2007 merit decision finding that she failed to establish a recurrence of total
disability; two decisions dated June 7, 2007, finding that she had received overpayments of
compensation; and a nonmerit decision dated May 15, 2007. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merit and nonmerit issues of this case.
ISSUES
The issues are: (1) whether appellant sustained a recurrence of total disability on
November 8, 2006 causally related to her accepted left ankle injuries; (2) whether the Branch of
Hearings and Review properly denied appellant’s request for an oral hearing on the grounds that
it was not timely filed; (3) whether appellant received an overpayment in the amount of
$1,029.92 for the period January 26 through February 11, 2005; (4) whether appellant received
an overpayment in the amount $883.46 for the period July 22, 2005 to August 6, 2005;
(5) whether the Office properly denied waiver of the $1,029.92 overpayment on the grounds that
appellant was at fault in the creation of this overpayment; and (6) whether the Office properly

denied waiver of the $883.46 overpayment on the grounds that appellant was at fault in creating
this overpayment.
FACTUAL HISTORY
On September 21, 2004 appellant, then a 57-year-old automation clerk, filed an
occupational disease claim alleging that she sustained a stress fracture to her left ankle due to
standing in the performance of duty. The Office accepted her claim for left ankle stress fracture
on August 31, 2004. The Office also accepted aggravation of osteoarthrosis of the left ankle.
The Office authorized surgical treatment.
On February 25, 2005 appellant’s attending physician, Dr. Howard I. Freedberg, a Boardcertified orthopedic surgeon, performed left foot triple arthrodesis with a calcaneocuboid strut
allograft, adjuctive platelet gel concentrate and graft on bone grafting with strayer gastrocnemius
recession. The Office entered appellant on the periodic rolls on April 11, 2005. It informed
appellant that in order to avoid an overpayment of compensation, she must notify the Office
immediately when she returned to work and that, if she worked for any portion of the period for
which a payment was made, she must return the check to the Office to avoid an overpayment of
compensation.
Dr. Freedberg released appellant to return to work on June 29, 2005. He indicated that
she could sit eight hours a day, walk and stand a total of two and a half hours a day and that she
could push, pull and lift up to five pounds for no more than two and a half hours a day. The
employing establishment provided appellant with a light-duty job assignment on June 22, 2005.
Appellant declined this position on June 20, 2005.
In a letter dated July 1, 2005, the Office informed appellant that the Department of the
Treasury would issue a duplicate payment for the period January 26 to February 11, 2005 in the
amount of $1,029.92. The Office requested that appellant return the check or draft a personal
check in the amount of $1,029.92. In a telephone conversation of the same date, the claims
examiner noted that appellant stated that she would return the check when she received it.
Through a personal check dated July 6, 2005, appellant provided the Office with a payment of
$1,029.92.
By letter dated July 18, 2005, the Office informed appellant that it found the position
offered by the employing establishment to be suitable work. The Office allowed appellant
30 days to accept the position or offer her reasons for refusal. Appellant responded that she
would report to work on July 22, 2005.
Dr. Freedberg examined appellant on July 27, 2005 and noted that she was capable of
walking more than 200 feet and that her pain had been reduced by 50 percent. On October 12,
2005 he found that appellant was doing well and had reached maximum medical improvement.
Dr. Freedberg examined appellant on May 9, 2006 due to pain in her left foot, vertigo
necessitating a walker and right foot pain. He noted that she required new orthopedic boots. On
June 6, 2006 Dr. Freedberg noted that appellant’s new orthopedic boots did not fit and that she
could not wear them. He stated that appellant had another injury at work on May 9, 2006 when
she fell on her left side bruising her left, ribs and two little fingers. Dr. Freedberg recommended

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new refitted boots and no intervention for her May 9, 2006 injury. He examined appellant on
September 5, 2006 and found that she had pes planovalgus with pain over the lateral plate.
Dr. Freedberg stated that appellant had not yet received her new orthopedic boot.
In a note dated November 14, 2006, Dr. Freedberg stated that appellant injured her left
leg and should not work for three weeks. Appellant telephoned the Office on November 17,
2006 and reported that the employing establishment had relocated her limited-duty assignment
area requiring her to walk further. She alleged that this change had resulted in pain in her ankle
and limited her ability to work. Appellant completed a claim for compensation on November 19,
2006 and requested compensation for leave without pay from November 14 to 24, 2006. She
also completed a notice of recurrence of disability dated November 19, 2006. Appellant alleged
that she sustained a recurrence of total disability on November 8, 2006. She stated: “I was
walking to the fax machine when my left knee began to buckle. This caused excruciating pain in
my left ankle. This injury happened because my managers moved me away from the location
that I was performing my doctor’s restricted light duties.” Appellant noted that she had fallen on
May 9, 2006 at work and bruised her torso. Karen Coleman, her supervisor, reported on the
reverse of the form that appellant was not required to fax or copy any documents once she
arrived at her desk. Ms. Coleman stated that appellant did not report for work on November 9,
2006 stating that she was sick. She noted that November 10, 2006 was a federal holiday and that
appellant was only in the office for two hours on November 13, 2006, her next scheduled
workday. Ms. Coleman stated that appellant informed her on November 14, 2006 that she
twisted herself while on the way to the copy/fax machine area.
The employing establishment disputed appellant’s claim on November 27, 2006, noting
that she called in sick on November 9, 2006 and reported for work for a short time on
November 13, 2006. On November 14, 2006 appellant informed her supervisor that she twisted
her leg on November 8, 2006 while walking to the copy machine. She did not mention this
injury to her supervisor on November 9 or 13, 2006.
By letters dated December 5, 2006, the Office requested additional information regarding
appellant’s November 19, 2006 claim for compensation and claim for recurrence of disability.
The Office allowed appellant 30 days for a response.
On December 21, 2006 appellant stated that she was moved so far away from the
entrance of the building that she was required to walk excessively. She alleged that her
supervisors violated her work restrictions. On November 14, 2006 Dr. Freedberg diagnosed left
leg radiculopathy and indicating with a checkmark “yes” that this condition was related to work.
In a report dated December 5, 2006, Dr. Freedberg noted that appellant described pain in her foot
and ankle and stated that this pain was related to increased walking at work. He recommended a
wheelchair. On December 7, 2006 Dr. Freedberg opined that appellant required a wheelchair
due to “a multiplicity of problems and surgeries.” He stated that this need was related to
appellant’s employment based on history and the surgeries. Appellant informed Dr. Freedberg
that the distance from the front door of the employing establishment to her desk was 188 feet. In
a note dated December 26, 2006, Dr. Freedberg released appellant to return to work in a
wheelchair on December 28, 2006. On January 9, 2007 he prescribed a motorized wheelchair
due to left leg radiculopathy, bilateral pes planovalgus and prior left foot triple arthrodesis.

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Dr. Freedberg in a separate note of the same date indicated that appellant should work part time
beginning 10:30 a.m.
The Office again requested additional information from appellant on January 11, 2007.
The Office allowed appellant 30 days for a response. In a report dated January 16, 2007,
Dr. Freedberg noted that appellant was using a wheelchair and had an Arizona brace on the right
leg. He diagnosed significant pes planovalgus deformity with no discreet areas of tenderness.
By decision dated March 1, 2007, the Office denied appellant’s claim for recurrence of
disability. It found that the medical evidence submitted was not sufficient to establish her
claim.1
In a letter dated March 12, 2007, the Office informed appellant of its preliminary
determination that she had received an overpayment of compensation in the amount of $1,029.92
because she was sent duplicate payments for the period January 26 through February 11, 2005.
The Office stated that the refund check she sent the Office to repay the debt was written on an
account which contained insufficient funds to make the payment. The Office found that
appellant was at fault in the creation of the overpayment as she received notification of the
duplicate payment by letter dated July 1, 2005. The Office allowed her 30 days to respond.
On March 13, 2007 the Office made a preliminary determination that appellant received
an overpayment in the amount of $883.46 because she received compensation for total disability
after she returned to work on July 22, 2005. The Office found that she was at fault in the
creation of the overpayment as she knowingly accepted a compensation benefit payment dated
August 6, 2005. Appellant received compensation on August 6, 2005 covering the period
July 10 to August 6, 2005 in the amount of $1,546.05. The Office stated that as she returned to
work on July 22, 2005 she was entitled to compensation for the period July 10 to 22, 2005, in the
amount of $662.59. The Office concluded that appellant received an overpayment in the amount
of $883.46, the difference between the amount of compensation she actually received and the
amount of compensation to which she was entitled. The Office allowed 30 days for a response.
Appellant requested a prerecoupment hearing on April 16, 2007. She submitted
documentation from her bank, that the July 6, 2005 check to the Office was returned due to
insufficient funds. Appellant alleged that she was confused due to the requirement by the Office
and the employing establishment that she return to work by July 22, 2005. By decision dated
1

Appellant initially alleged that she was totally disabled beginning November 8, 2006. She indicated that she
sustained an additional injury to her left leg and reported this injury to her attending physician, Dr. Freedberg, a
Board-certified orthopedic surgeon, who stated on November 14, 2006 that appellant injured her left leg. Appellant
stated that as she walked to the fax machine her left knee began to buckle causing pain in her left ankle. Her
supervisor stated that appellant informed her that she twisted her left leg on the way to the fax machine. The
Office’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident, or
series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. The Board notes that this description of appellant’s injury on November 8, 2006 appears to be a new
traumatic injury. 20 C.F.R. § 10.5(ee). Appellant alleged a specific event identifiable as to time and place of
occurrence and member of the body affected, twisting of her left leg on November 8, 2006 as she walked to the fax
machine, which caused her to be totally disabled. The Office has not issued a final decision regarding this aspect of
appellant’s claim and the Board may not address this issue for the first time on appeal. 20 C.F.R. § 501.2(c).

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May 15, 2007, the Branch of Hearings and Review denied her request for a prerecoupment
hearing on the grounds that it was not timely filed.
By decision dated June 7, 2007, the Office finalized the March 12, 2007 finding that
appellant was at fault in the creation of an overpayment in the amount of $1,029.92, which
occurred as she received duplicate checks and failed to maintain adequate funds in her account to
cover the refund check she tendered. In a separate decision dated June 7, 2007, the Office
finalized the March 13, 2007 preliminary finding that appellant was at fault in the receipt of an
overpayment in the amount of $883.46 as she returned to work on July 22, 2005 and received
compensation for total disability through August 6, 2005.2
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability is the inability to work after an employee has returned to work,
caused by a spontaneous change in a medical condition which had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment which
caused the illness. The term also means an inability to work that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or
her work-related injury or illness is withdrawn (except when such withdrawal occurs for reasons
of misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.3
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.4
ANALYSIS -- ISSUE 1
Appellant alleged that she sustained a recurrence of total disability on November 8, 2006.
She attributed this recurrence of disability to a change in the nature and extent of her light-duty
job requirements. Appellant contended that her supervisors required her to work outside her
light-duty job requirements as her workstation was moved within the employing establishment so
that she had to walk a greater distance to reach her desk. She indicated that she had to walk 188
feet from the front of the employing establishment to her desk. Dr. Freedberg, a Board-certified
orthopedic surgeon and appellant’s attending physician, indicated on July 27, 2005 that she was
2

Following the Office’s June 7, 2007 decisions, appellant submitted additional new evidence. As the Office did
not consider this evidence in reaching a final decision, the Board may not review the evidence for the first time on
appeal. See 20 C.F.R. § 501.2(c).
3

20 C.F.R. § 10.5(x).

4

Joseph D. Duncan, 54 ECAB 471, 472 (2003); Terry R. Hedman, 38 ECAB 222, 227 (1986).

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capable of walking more than 200 feet. As this distance does not appear to exceed appellant’s
work restrictions, she must submit additional medical evidence in support of her claim.
Beginning on November 14, 2006 Dr. Freedberg supported appellant’s disability for
work. He indicated that she injured her left leg, but failed to describe how this injury occurred.
This report is not sufficient to establish a change in the nature and extent of appellant’s injuryrelated condition or a change in the nature and extent of her light-duty job requirements.
Dr. Freedberg also diagnosed left leg radiculopathy on November 14, 2006 and indicating
with a checkmark “yes” that this condition was due to appellant’s employment. He did not
explain why and how appellant had developed left leg radiculopathy. The Board has held that an
opinion on causal relationship which consists only of a physician checking “yes” to a medical
form report question on whether the claimant’s condition was related to employment is of little
probative value. Without any explanation or rationale for the conclusion reached, such a report
is insufficient to establish causal relationship.5
On December 5, 2006 Dr. Freedberg attributed the increasing pain in appellant’s left
ankle to increased walking at work. This statement is not sufficient to meet appellant’s burden
of proof in establishing a recurrence of disability as she has not submitted any evidence that her
light-duty job requirements of walking increased. Her supervisor, Ms. Coleman denied that
appellant was required to walk to deliver documents and stated that she was instructed to utilize
e-mail instead. As appellant has not submitted the necessary factual and medical evidence to
establish a change in the nature and extent of her injury-related condition or a change in her
light-duty job requirements, she has failed to meet her burden of proof and the Office properly
denied her claim for recurrence of disability.
LEGAL PRECEDENT -- ISSUE 2
Section 10.432 of the Office’s regulations provides that, in response to a preliminary
notice of an overpayment, a claimant may request a prerecoupment hearing within 30 days of the
written notice of overpayment.6 Failure to request the hearing within this 30-day time period
shall constitute a waiver of that right.7
ANALYSIS -- ISSUE 2
The Office issued a preliminary finding of overpayment and fault in the creation of the
overpayment on March 13, 2007. Appellant requested a prerecoupment hearing on this matter
on April 16, 2007. As she did not request the prerecoupment hearing within the required 30-day
time period, she waived her right to this hearing.

5

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

6

20 C.F.R. § 10.432. See Willie C. Howard, 55 ECAB 564 (2004).

7

M.B, (Docket No. 07-380, issued June 1, 2007).

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LEGAL PRECEDENT -- ISSUE 3
Section 8116 of the Federal Employees’ Compensation Act defines the limitations on the
right to receive compensation benefits. This section of the Act provides that, while an employee
is receiving compensation, he may not receive salary, pay or remuneration of any type from the
United States, except in limited circumstances.8 When a claimant receives a duplicative
compensation payment for a period that he has already received compensation for wage loss, an
overpayment of compensation is created.9
ANALYSIS -- ISSUE 3
The record establishes that the Office issued appellant a duplicate payment in the amount
of $1,029.92 for the period January 26 through February 11, 2005 on July 1, 2005. As appellant
was not entitled to duplicate compensation for the same period, an overpayment of compensation
of $1,029.92 was created.
LEGAL PRECEDENT -- ISSUE 4
Section 8102(a) of the Act10 provides that the United States “shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty. A claimant, however, is not entitled to
receive temporary total disability and actual earnings for the same period.11 Office procedures
provide that an overpayment in compensation is created when a claimant returns to work but
continues to receive wage-loss compensation.12
ANALYSIS -- ISSUE 4
Appellant returned to full-time light-duty work on July 22, 2005. The Office issued her a
check on August 6, 2005 covering the period July 10 to August 6, 2005, in the amount of
$1,546.05. As appellant returned to work on July 22, 2005, she was not entitled to receive
compensation for temporary total disability and actual earnings for the same period. She was
only entitled to receive compensation through July 21, 2005 in the amount of $662.59.
Therefore, appellant was not entitled to receive compensation from July 22 through August 6,
2005 and received an overpayment of compensation of $883.46 the difference between the
amount she received and the amount to which she was entitled.

8

5 U.S.C. § 8116(a).

9

See Lawrence J. Dubuque, 55 ECAB 667, 670-71 (2004).

10

5 U.S.C. §§ 8101-8193, 8102(a).

11

Supra note 8.

12

Danney E. Haley, 56 ECAB 393,400 (2005); Federal (FECA) Procedure Manual, Part 6 -- Debt Management,
Initial Overpayment Actions, Chapter 6.200.2(a) (September 1994).

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LEGAL PRECEDENT -- ISSUE 5 & 6
Section 8129(b) of the Act13 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 the Act of would be against equity and
good conscience.”
The Office may consider waiving an overpayment only if the individual to whom it was
made was not at fault in accepting or creating the overpayment. Each recipient of compensation
benefits is responsible for taking all reasonable measures to ensure that payments he or she
received from the Office are proper. The recipient must show good faith and exercise a high
degree of care in reporting events, which may affect entitlement to or the amount of benefits. A
recipient who has done any of the following will be found to be at fault with respect to creating
an overpayment: (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 incorrect (this provision applies only to the overpaid individual).14
Whether or not the Office determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that he or she is being overpaid.15
ANALYSIS -- ISSUE 5
The Office determined that appellant was not without fault regarding the July 1, 2005
overpayment because she accepted a payment that she knew or should have known was
incorrect. The factual history of the case establishes that the Office informed appellant of the
duplicate payment for the period January 26 to February 11, 2005, before she received it and that
she did not dispute her entitlement to the duplicate payment in the amount of $1,029.92. The
check issued by the Office was not returned, as requested. Rather, appellant attempted to repay
this amount by personal check dated July 6, 2005, however, this repayment was not successful
due to insufficient funds in her account. As she accepted a payment which she knew or should
have known was incorrect, she was not without fault under the third standard outlined above and
recovery of the overpayment of compensation in the amount of $1,029.92 may not be waived.
ANALYSIS -- ISSUE 6
The Office determined that appellant was not without fault regarding the August 6, 2005
overpayment on the grounds that she accepted a payment that she knew or should have know
was incorrect. In order for the Office to establish that she was at fault in creating the
13

5 U.S.C. § 8129(b).

14

20 C.F.R. § 10.433(a).

15

Id. § 10.433(b).

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overpayment of compensation, the Office must establish that, at the time appellant received the
compensation checks in question, she knew or should have know that the payment was incorrect.
Appellant returned to work on July 22, 2005 and received a check on August 6, 2005 for the
period July 10 to August 6, 2005. The Office informed appellant at the time she was entered on
the periodic rolls that she must return any check received after she returned to work to avoid an
overpayment. Appellant alleged that she was confused as she was “forced” to return to work and
felt that she was entitled to an additional period of total disability. The Board finds that appellant
was aware or should have been aware at the time she accepted the August 6, 2005 check that it
included a period of time for which she was not entitled to compensation benefits in addition to
her actual earnings.16
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained a recurrence of disability on November 8, 2006. The Board further finds that appellant
did not request a prerecoupment hearing within 30 days from the Office’s preliminary finding of
overpayment and that she therefore waived the right to such a hearing. The Board further finds
that appellant received overpayments of compensation in the amounts of $1,029.92 and $883.46
and that she was at fault in the creation of these overpayments such that the overpayments are
not subject to waiver.

16

The Board notes that it does not have jurisdiction to consider recovery of these overpayments as the Office is
not seeking recovery from continuing compensation under the Act. Judith A. Cariddo, 55 ECAB 348, 353 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 7, May 15 and March 1, 2007 are affirmed.
Issued: February 19, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.B., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, Vincennes, IN,
Employer
__________________________________________

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

Docket No. 19-1491
Issued: February 3, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 1, 2019 appellant filed a timely appeal from a May 14, 2019 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish ratable binaural
hearing loss for schedule award purposes.
FACTUAL HISTORY
On November 21, 2018 appellant, then a 32-year-old mine safety and health inspector, filed
an occupational disease claim (Form CA-2) alleging binaural hearing loss due to factors of his
1

5 U.S.C. § 8101 et seq.

federal employment including daily exposure to loud noise from mining equipment commencing
in August 2011.2 He noted that he first became aware of his condition and realized that it was
caused or aggravated by factors of his federal employment when he was advised by the employing
establishment on July 17, 2018 that a June 5, 2018 screening audiogram demonstrated a bilateral
standard threshold shift (STS).
A June 5, 2018 employing establishment audiogram reflected testing at the frequency
levels of 500, 1,000, 2,000, and 3,000 hertz (Hz) and revealed findings for the right ear of 20, 20,
20, and 20 decibels (dBs) and for the left ear 20, 20, 20, and 20 dBs. These levels indicated a
bilateral STS when compared to appellant’s August 5, 2011 baseline audiometric results at the
same frequency levels of 15, 10, 5, and 5 dBs for the right ear and 15, 5, 10, and 0 dBs on the left.3
On February 26, 2019 OWCP referred the case record, including a statement of accepted
facts (SOAF) listing appellant’s noise exposure, and lists of questions to Dr. Mitchell D. Kaye, a
Board-certified otolaryngologist, for a second opinion evaluation. In a March 20, 2019 report,
Dr. Kaye examined appellant and administered an audiogram. The audiogram reflected testing at
the frequency levels of 500, 1,000, 2,000, and 3,000 Hz and revealed findings for the right ear of
20, 20, 20, and 20 dBs and for the left ear 15, 15, 10, and 15 dBs. Dr. Kaye diagnosed a nonratable
binaural hearing loss with intermittent, bilateral tinnitus. He opined that appellant’s hearing loss
was in excess of expected presbycusis and related it to noise exposure encountered in his federal
employment. Dr. Kaye further found that, based on results of the February 20, 2019 audiogram,
the impairment calculations under the American Medical Association, Guides to the Evaluation of
Permanent Impairment4 (A.M.A., Guides) revealed a monaural loss of zero percent in each ear.5
He indicated that tinnitus was present and added one percent to arrive at a total permanent binaural
hearing loss of one percent.
By decision dated April 23, 2019, OWCP accepted appellant’s claim for binaural hearing
loss.
On April 23, 2019 OWCP referred the case record, including Dr. Kaye’s March 20, 2019
report and audiogram, to a district medical adviser (DMA) to determine whether appellant had a
ratable hearing loss. In a May 2, 2019 report, Dr. Jeffrey M. Israel, a Board-certified
otolaryngologist serving as the DMA, reviewed appellant’s medical records, the SOAF, and
Dr. Kaye’s March 20, 2019 report and audiogram. He found that the date of maximum medical
improvement was March 20, 2019 and that appellant had hearing loss of zero percent under the
A.M.A., Guides. The DMA noted that, although Dr. Kaye had added one percent permanent
impairment for tinnitus, this was contrary to the A.M.A., Guides, which only permitted the addition
of up to five percent for tinnitus to a measurable hearing impairment, and because appellant did
2
Appellant also disclosed a history of noise exposure in private sector quarrying and mining positions from
May 2005 through January 2007, May to August 2007, and May 2008 through August 2011.
3

Employing establishment audiograms performed on July 1 and 21, 2015 and April 7, 2016 did not indicate an STS
compared to the baseline August 5, 2011 audiogram.
4

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

5

Dr. Kaye noted that the audiometer had last been calibrated on March 13, 2019.

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not have a measurable hearing impairment the addition was improper. Based upon the audiogram
the total for the left ear was 55, while the total for the right ear was 80. These totals were divided
by four, resulting in 13.75 for the left ear and 20 for the right ear. These averages were reduced
by the 25 dBs fence, resulting in zero percent monaural loss for both ears, and zero percent binaural
loss. The DMA thus concluded that appellant did not have a ratable permanent hearing loss and
did not require hearing aids.
On May 9, 2019 appellant filed a claim for a schedule award (Form CA-7).
By decision dated May 14, 2019, OWCP found that appellant’s hearing loss was not
sufficiently severe to be considered ratable and he was therefore not entitled to schedule award
compensation. It further found that he was not entitled to hearing aids or other medical benefits.
LEGAL PRECEDENT
The schedule award provisions of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides has
been adopted by OWCP as a standard for evaluation of schedule losses and the Board has
concurred in such adoption.8 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides, published in 2009.9
A claimant seeking compensation under FECA has the burden of proof to establish the
essential elements of his or her claim.10 With respect to a schedule award, it is the claimant’s
burden of proof to establish permanent impairment of a scheduled member or function of the body
as a result of his or her employment injury.11 The medical evidence must include a detailed
description of the permanent impairment.12

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id.; see also Jacqueline S. Harris, 54 ECAB 139 (2002).

9

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

C.U., Docket No. 18-1480 (issued February 6, 2019); John W. Montoya, 54 ECAB 306 (2003).

11
D.S., Docket No. 19-0292 (issued June 21, 2019); Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L. Meehan,
53 ECAB 229 (2001).
12

See Vanessa Young, 55 ECAB 575 (2004).

3

OWCP evaluates occupational hearing loss in accordance with the standards contained in
the A.M.A., Guides.13 Using the frequencies of 500, 1,000, 2,000, and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 dBs is deducted because, as the
A.M.A., Guides points out, losses below 25 dBs result in no impairment in the ability to hear
everyday speech under everyday conditions.14 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.15 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss and the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss.16 The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.17
If tinnitus interferes with activities of daily living, including sleep, reading (and other tasks
requiring concentration), enjoyment of quiet recreation, and emotional well-being, up to five
percent may be added to a measurable binaural hearing impairment.18
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of permanent
impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the
percentage of impairment specified.19
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish ratable hearing
loss for schedule award purposes.
In a March 20, 2019 report, second opinion physician Dr. Kaye noted binaural hearing loss
with intermittent bilateral tinnitus due to noise exposure encountered in appellant’s federal
employment. An audiogram he obtained at the frequency levels of 500, 1,000, 2,000, and 3,000
Hz, respectively revealed dB losses in the right ear of 20, 20, 20, and 20 dBs, respectively, and for
the left ear of 15, 15, 10, and 15 dBs, respectively.
OWCP’s DMA, Dr. Israel, on May 2, 2019, reviewed Dr. Kaye’s report and audiometric
findings and properly applied OWCP’s standardized procedures in finding that appellant had zero
13

T.O., Docket No. 18-0659 (issued August 8, 2019); R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB
143 (2000); see also 20 C.F.R. § 10.404.
14

See A.M.A., Guides 250 (6th ed. 2009).

15

Id.

16

Id.

17

E.S., 59 ECAB 249 (2007); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

18

A.M.A., Guides 249; G.G., Docket No. 18-0373 (issued September 25, 2019); see also R.H., Docket No. 10-2139
(issued July 13, 2011).
19

Supra note 9 at Chapter 2.808.6f (March 2017).

4

percent binaural hearing loss. He totaled the dB losses to equal 55 on the left and 80 on the right.
These values, when divided by four, resulted in average hearing loss of 13.75 on the left and 20
on the right, which when reduced by the 25 dBs fence, resulted in zero percent loss.
The Board finds that, as the March 20, 2019 audiogram did not demonstrate that appellant’s
hearing loss was ratable, he is not entitled to a schedule award for his accepted hearing loss
condition. While Dr. Kaye noted that he had tinnitus and added one percent to his impairment
rating based on his observation, the DMA correctly explained that tinnitus may not be added to an
impairment rating for hearing loss under the sixth edition of the A.M.A., Guides unless such
hearing loss is ratable.20
On appeal, appellant contends that the accepted binaural hearing loss makes it difficult to
hear conversations and interferes with other activities of daily living. As explained above, he has
not established that the accepted hearing loss is ratable for schedule award purposes.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish ratable hearing
loss for schedule award purposes.

20
G.G., supra note 18; see W.G., Docket No. 17-1090 (issued March 12, 2018); Juan A. Trevino, 54 ECAB 358,
360 (2003).

5

ORDER
IT IS HEREBY ORDERED THAT the May 14, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 3, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Los Angeles, CA,
Employer
__________________________________________

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

Docket No. 09-1498
Issued: May 7, 2010

Case Submitted on the Record

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

JURISDICTION
On May 8, 2009 appellant filed a timely appeal of a November 24, 2008 decision of the
Office of Workers’ Compensation Programs, finding that his request for reconsideration was
untimely and failed to show clear evidence of error. Pursuant to 20 C.F.R. § 501.3, the Board
has jurisdiction over the November 24, 2008 decision. The Board does not have jurisdiction
over a decision on the merits of the claim.1
ISSUE
The issue is whether the Office properly found appellant’s application for reconsideration
was untimely filed and failed to show clear evidence of error.
1

The last merit decision was a Board decision dated September 25, 2002, affirming a February 24, 2000 Office
decision. The Board has jurisdiction over final decisions of the Office. See 20 C.F.R. § 501.2(c). For Office
decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of Office
decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e) (2008).

FACTUAL HISTORY
The case has been before the Board on four prior appeals. In a decision dated
September 25, 2002, the Board affirmed the termination of compensation as of June 1, 1992.2
The Board found that the weight of the medical evidence was represented by second opinion
psychiatrist, Dr. Reynaldo Abejuela, who submitted reports dated February 1, 1996 to
March 12, 1997. In a decision dated March 14, 2005, the Board affirmed a June 13, 2003 Office
decision denying appellant’s request for reconsideration without merit review of the claim.3 By
decision dated August 23, 2006, the Board affirmed a November 21, 2005 Office decision
finding appellant’s application was untimely and failed to show clear evidence of error.4 In a
decision dated June 2, 2008, the Board affirmed a September 11, 2007 Office decision finding
appellant’s application for review was untimely and failed to show clear evidence of error.5 The
history of the case is provided in the Board’s prior appeals and is incorporated herein by
reference.
On June 13, 2008 the Office received an application for reconsideration dated
June 9, 2008. Appellant stated that Dr. Abejuela saw him in 1996, not 1992 and the Office
allowed the physician to “backdate” an opinion from 1997. He reiterated his contention that he
was subject to harassment, discrimination and retaliation at the employing establishment, and
that his sick and annual leave was “stolen” by the employing establishment.
With respect to evidence submitted, an October 9, 2007 medical report from Dr. Arnold
Nerenberg, a psychologist, opined that appellant continued to have an employment-related
emotional condition after June 1, 1992.6 Dr. Nerenberg referred to chronic job stressors and a
“plethora of violations” on February 12, 1989 and “throughout” October 4, 1991. He stated that
appellant was verbally assaulted on October 4, 1991 and six months later would be April 4,
1992, not June 1, 1992 and therefore “the time frame of six months diagnoses are not an
acceptable diagnosis from Dr. Abejuela on October 10, 1996.”
On September 4, 2008 appellant submitted a statement arguing that clear evidence of
error was established by two factors. As to the first factor, he stated that he did not have pay
continued for 45 days. Appellant also argued that he was medically fit to return to work, but the
employing establishment did not accommodate him. On November 10, 2008 he submitted a
November 4, 2008 statement, stating that it was clear evidence of error to refer to a date of injury
as November 21, 1991, when an incident with his supervisor occurred on October 4, 2001.

2

Docket No. 00-1176 (issued September 25, 2002). The Office had accepted adjustment disorder and temporary
aggravation of paranoid personality disorder due to an October 4, 1991 compensable incident.
3

Docket No. 03-1724 (issued March 14, 2005).

4

Docket No. 06-375 (issued August 23, 2006), petition for recon. denied (issued January 24, 2007).

5

Docket No. 07-2386 (issued June 2, 2008), petition for recon. denied (issued October 30, 2008).

6

As the Board noted in its June 2, 2008 decision, Dr. Nerenberg had submitted a June 20, 2006 report opining
that appellant continued to have an employment-related emotional condition after June 1, 1992.

2

By decision dated November 24, 2008, the Office denied appellant’s request for
reconsideration as it was untimely and failed to establish clear evidence of error.
LEGAL PRECEDENT
The Federal Employees’ Compensation 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.7 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.”8
Section 8128(a) of the Act9 does not entitle a claimant to a review of an Office decision
as a matter of right.10 This section vests the Office with discretionary authority to determine
whether it will review an award for or against compensation.11 The Office, through regulations,
has imposed limitations on the exercise of its discretionary authority under 5 U.S.C. § 8128(a) of
the Act.12 As one such limitation, 20 C.F.R. § 10.607 provides that an application for
reconsideration must be sent within one year of the date of the Office decision for which review
is sought. The Office will consider an untimely application only if the application demonstrates
clear evidence of error on the part of the Office in its most recent merit decision. The application
must establish, on its face, that such decision was erroneous.13
The term clear evidence of error is intended to represent a difficult standard. The
claimant must present evidence which on its face shows that the Office made an error (for
example, proof of a miscalculation in a schedule award). Evidence such as a detailed, wellrationalized medical report which, if submitted prior to the Office’s denial, would have created a
conflict in medical opinion requiring further development, is not clear evidence of error and
would not require a review of the case on the Director’s own motion.14 To establish clear
evidence of error, a claimant must submit evidence relevant to the issue which was decided by
the Office. The evidence must be positive, precise and explicit and must manifest on its face that
the Office committed an error.15 The Board makes an independent determination of whether a

7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.605 (1999).

9

5 U.S.C. § 8128(a).

10

Leon D. Faidley, Jr., 41 ECAB 104 (1989).

11

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”
12

5 U.S.C. §§ 8101-8193.

13

20 C.F.R. § 10.607.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (January 2004).

15

D.O., 60 ECAB

(Docket No. 08-1057, issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005).

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claimant has submitted clear evidence of error on the part of the Office such that the Office
abused its discretion in denying merit review in the face of such evidence.16
ANALYSIS
The last decision on the merits of the claim was the Board’s September 25, 2002
decision. The application for reconsideration was dated June 9, 2008. Since the application was
filed more than one year after the merit decision, it is untimely.
As an untimely application for reconsideration, the issue is whether it shows clear
evidence of error by the Office. In this case, the Office had found that the medical evidence
established appellant’s employment-related emotional conditions (adjustment disorder and
temporary aggravation of paranoid personality disorder) had resolved by June 1, 1992.
Appellant’s June 9, 2008 application for reconsideration and subsequent letters generally argue
that he was subject to harassment, discrimination and retaliation. The Board has considered
these arguments in prior appeals and appellant provided no new evidence.
Appellant alleged error by the Office in relying on Dr. Abejuela’s opinion because he did
not examine appellant until 1996 and benefits were terminated June 1, 1992. A physician is not
restricted to providing an opinion as to an individual’s current condition. The second opinion
physician was provided an accurate factual and medical background and he provided a
rationalized opinion sufficient to establish the employment-related condition had resolved by
June 1, 1992.
As to other specific arguments of error, appellant did not establish clear evidence of error
on the issue presented. He appeared to refer to continuation of pay and actions of the employing
establishment regarding his return to work.17 The Office’s adverse decision was a determination
that his employment-related condition had resolved as of June 1, 1992. The arguments raised are
not relevant to the underlying issue on which that decision was made. Appellant also argues the
date of injury was incorrect, without explaining how this establishes clear evidence of error.
When the occupational claim was filed appellant indicated that he stopped working as of
November 21, 1991, and the Office noted this in its decisions. The adverse decisions regarding
the claim for compensation were not based on a specific determination of a date of injury.
With respect to medical evidence, appellant submitted an October 9, 2007 report from
Dr. Nerenberg, who again indicated that he believed appellant continued to have an employmentrelated condition. Dr. Nerenberg generally referred to a number of job stressors, but the only
accepted compensable employment factor was an October 24, 1991 incident. He does not
provide a rationalized medical opinion based on a complete and accurate background.
Moreover, as noted above, even a rationalized medical report which could have created a conflict
in the medical evidence does not establish clear evidence of error.
16

Gregory Griffin, 41 ECAB 186 (1989), petition for recon., denied, 41 ECAB 458 (1990).

17

Office regulations provide for continuation of pay by an employer for up to 45 days for a traumatic injury. 20
C.F.R. § 10.200. Appellant did not file a traumatic injury claim; he filed an occupational disease or illness claim.
See 20 C.F.R. § 10.205.

4

On appeal, appellant repeats his contentions that he was subject to discrimination and his
claim was mishandled. The Board has addressed specific claims of error presented to the Office
in this case. The posture of the case is “clear evidence of error” which remains a difficult
standard to meet. For the reasons discussed above, the Board finds appellant did not establish
clear evidence of error and the Office properly denied merit review.
CONCLUSION
The Board finds that appellant’s application for reconsideration was untimely filed and
failed to show clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 24, 2008 is affirmed.
Issued: May 7, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bedford Park, IL, Employer
__________________________________________

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

Docket No. 13-158
Issued: May 15, 2013

Case Submitted on the Record

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

JURISDICTION
On October 31, 2012 appellant filed a timely appeal of the September 18, 2012 decision
of the Office of Workers’ Compensation Programs (OWCP) denying her claim for
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained carpal tunnel syndrome causally related to the
accepted factors of her federal employment.
FACTUAL HISTORY
On May 21, 2012 appellant, then a retired 68-year-old clerk, filed an occupational disease
claim alleging carpal tunnel syndrome as a result of her federal duties.

1

5 U.S.C. § 8101 et seq.

In support of her claim, appellant submitted results of a nerve conduction study
performed on April 27, 2007 at Midtown Physicians. The study was interpreted by an unknown
individual as being consistent with a moderate right median neuropathy at the wrist. It was
recommended that a treating physician review the computer-generated analysis. Appellant also
submitted an attending physician’s report form dated September 9, 2008 which indicated that
appellant had carpal tunnel syndrome in both her hands. The physician checked a box indicating
that he believed that this condition was related to appellant’s employment, but he did not explain
his answer. The form was not signed by a physician.
In notes dated May 17, 2011, Dr. Michael Bednar, a Board-certified orthopedic surgeon
and hand specialist, stated that appellant had carpal tunnel syndrome and a right distal motor
latency of 4.7 milliseconds. He opined that appellant had right carpal tunnel syndrome and
would need a right carpal tunnel release. In an attending physician’s report dated September 16,
2011, Dr. Bednar again stated that appellant had bilateral carpal tunnel syndrome and
recommended a right carpal tunnel release. He did not check the box with regard to whether he
believed that this condition was caused by an employment activity.
By letter dated July 19, 2012, OWCP informed appellant that the evidence of record was
insufficient to establish her claim. It requested that she submit additional factual and medical
evidence.
Appellant submitted an April 26, 2011 report from Dr. Bednar, who stated that she was
post first compartment release and had good relief from her symptoms. Dr. Bednar listed that
appellant’s main complaint was carpal tunnel syndrome. He noted numbness and tingling in
both hands. Dr. Bednar advised that appellant had a positive Tinel’s sign but a negative Phalen’s
maneuver. He noted that two-point discrimination was difficult to determine in the median nerve
distribution but appeared to be about 10 to 15 millimeters.
By decision dated September 18, 2012, OWCP denied appellant’s claim for
compensation finding that the medical evidence was not sufficient to establish that her medical
condition was causally related to work factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
2

5 U.S.C. §§ 8101-8193.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Elaine Pendleton, 40 ECAB 1143 (1989).

4

S.P., 59 ECAB 184 (2007); Victor J. Woodham, 41 ECAB 345 (1989).

2

To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.5
Causal relationship is a medical issue6 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,7 must be one of reasonable medical certainty8
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.9
ANALYSIS
OWCP accepted that appellant performed work as a clerk and that a medical condition
had been diagnosed. It denied her claim finding that she failed to establish a causal relationship
between the accepted employment factors and her bilateral wrist condition.
The Board finds that there is no rationalized medical evidence addressing how appellant’s
carpal tunnel syndrome was causally related to her federal employment. Dr. Bednar submitted
several brief notes stating a diagnosis of carpal tunnel syndrome. He did not address how the
carpal tunnel syndrome related to her federal employment. The nerve conduction study also
does not provide any statement of causal relation. In an attending physician’s report dated
September 9, 2008, an unknown physician checked a box “yes” indicating a link between
appellant’s carpal tunnel syndrome and her federal employment. The signature portion of the
form was not signed. The Board has held that an opinion on causal relationship which consists
only of a physician checking “yes” on a medical form report without further explanation or
rationale is of diminished probative value.10 Furthermore, the Board has held that reports that
are unsigned or that bear illegible signatures cannot be considered probative medical evidence
because they lack proper identification.11 Accordingly, appellant has not established that her

5

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

6

Mary J. Briggs, 37 ECAB 578 (1986).

7

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

8

See Morris Scanlon, 11 ECAB 384, 385 (1960).

9

See William E. Enright, 31 ECAB 426, 430 (1980).

10

Alberta S. Williamson, 47 ECAB 569 (1996); see also P.T., Docket No. 12-855 (issued October 23, 2012).

11

Thomas L. Agee, 56 ECAB 465 (2005); Richards F. Williams, 55 ECAB 343 (2004).

3

carpal tunnel syndrome was causally related to her federal employment. OWCP properly denied
the claim.
Appellant submitted new evidence after the September 18, 2012 decision. The Board,
however, lacks jurisdiction to review such evidence for the first time on appeal.12 Appellant may
submit new evidence or argument as part of a formal written request for reconsideration to
OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained carpal tunnel
syndrome causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 18, 2012 is affirmed.
Issued: May 15, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

12

20 C.F.R. § 501.2(c)(1).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.K., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Brooklyn, NY,
Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 17-0252
Issued: August 15, 2018

Case Submitted on the Record

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

On November 15, 2016 appellant filed a timely appeal from a September 21, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). By that decision, OWCP
denied appellant’s claim for compensation (Form CA-7) for total disability commencing June 13,
2016, finding that the medical evidence of record was insufficient to establish disability causally
related to the accepted right wrist condition. The Board assigned the appeal Docket No.
17-0252.
The Board, having duly considered the matter, concludes that the case is not in posture
for decision.
On February 28, 2016 appellant, then a 48-year-old mail handler filed an occupational
disease claim (Form CA-2) alleging that factors of his federal employment resulted in a right
wrist injury. He related that he initially became aware of this condition on April 6, 2015 and
related it to factors of his federal employment on May 8, 2015. Appellant stopped work on
May 7, 2015 and did not return. On June 10, 2016 OWCP accepted the claim for right wrist
ganglion cyst. Appellant subsequently filed a claim for compensation (Form CA-7) on July 8,
2016 for temporary total disability for the period June 13, 2015 through July 8, 2016. He
submitted several reports by Dr. William J. Lackey, a Board-certified orthopedic surgeon, to

support his claim for disability. However, by its September 21, 2016 decision, OWCP denied
appellant’s disability claim for the period beginning June 13, 2016 and continuing after
analyzing Dr. Lackey’s reports and without addressing the period of disability claimed for the
year prior, i.e., commencing June 13, 2015. Moreover, there is no indication in the record that it
was either further developing that portion of appellant’s claim, or that it planned to further
develop that portion of appellant’s claim.
The Board finds that by adjudicating only a portion of appellant’s claim for disability,
commencing June 13, 2016, as opposed to June 13, 2015, would result in piecemeal adjudication
of appellant’s claim. To consider appellant’s appeal in piecemeal fashion, as presented to the
Board, could result in further inconsistent results.1 It is the Board’s policy to avoid such an
outcome.2 In order to avoid piecemeal adjudication and inconsistent results, the Board will set
aside OWCP’s September 21, 2016 decision and remand the case to OWCP to adjudicate
appellant’s claim for compensation for disability commencing June 13, 2015 and continuing.
Following such further development as deemed necessary, OWCP shall issue a de novo decision
on appellant’s claim for total disability. Accordingly,
IT IS HEREBY ORDERED THAT the September 21, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: August 15, 2018
Washington, DC

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

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

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

1

See A.B., Docket No. 17-1480 (issued June 8, 2018).

2

Id.; see also William T. McCracken, 33 ECAB 1197 (1982).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
CORRECTIONAL INSTITUTE, Fort Dix, NJ,
Employer
__________________________________________

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

Docket No. 17-1349
Issued: February 7, 2018

Case Submitted on the Record

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

JURISDICTION
On June 7, 2017 appellant, through counsel, filed a timely appeal from a February 22,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant established permanent impairment of his upper
extremities, warranting a schedule award.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the prior Board decision are incorporated herein by reference. The relevant facts are as
follows.
On September 1, 2004 appellant, then a 54-year-old fabric worker supervisor, filed a
traumatic injury claim (Form CA-1) alleging that, on June 30, 2004, he injured his upper back,
shoulders, and hands in the performance of duty. OWCP accepted the claim for a temporary
aggravation of brachial neuritis or radiculitis. It paid appellant compensation for total disability
from September 26, 2004 until November 1, 2007, when he elected retirement benefits.
Electrodiagnostic testing performed November 3, 2004 revealed right cervical
radiculopathy at the C8 nerve root and mild right carpal tunnel syndrome. A magnetic resonance
imaging (MRI) scan study of the right shoulder showed osteoarthritis at the glenohumeral and
acromioclavicular joints with labral degeneration.
Appellant, on June 19, 2008, filed a claim for a schedule award (Form CA-7). In support
of his claim, he submitted a December 18, 2007 impairment evaluation from Dr. Steven M.
Allon, an orthopedic surgeon, who found that he had 19 percent right upper extremity permanent
impairment and 14 percent left upper extremity permanent impairment using the fifth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).4 On October 7, 2009 Dr. Allon, using the sixth edition of the A.M.A., Guides,5
identified the right upper extremity diagnoses as class 1 degenerative joint disease of the right
shoulder, class 1 severe sensory deficit of the right ulnar nerve, and entrapment neuropathy of
the right median nerve. He determined that appellant had a total right arm permanent
impairment of 19 percent. Dr. Allon found 29 percent left arm permanent impairment due to a
sensory deficit of the left ulnar nerve and left median nerve.
Dr. Henry J. Magliato, a Board-certified orthopedic surgeon and OWCP medical adviser,
disagreed with Dr. Allon’s finding of a sensory deficit of the right ulnar nerve and left median
nerve. He opined that appellant had 15 percent permanent impairment of the right upper
extremity due to entrapment neuropathy, using Table 15-23 on page 449, and four percent
permanent impairment of the left upper extremity due to a sensory deficit of the ulnar nerve
under Table 15-21 on page 443.

3

Docket No. 14-0436 (issued July 21, 2014).

4

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

5

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

2

OWCP determined that a conflict existed between Dr. Allon and Dr. Magliato regarding
the extent of appellant’s upper extremity impairment, and referred him to Dr. Ronald L. Gerson,
a Board-certified orthopedic surgeon, for an impartial medical examination. Dr. Gerson,
however, did not provide an impairment rating appropriately using the sixth edition of the
A.M.A., Guides. Consequently, on April 28, 2011 OWCP referred appellant to Dr. George
Glenn, a Board-certified orthopedic surgeon, for a second impartial medical examination. The
statement of accepted facts (SOAF) did not include the accepted conditions.
Dr. Glenn, on May 16, 2011, measured range of motion of the shoulders and found C8
radiculopathy demonstrated by electrodiagnostic testing unsupported by complaints on clinical
evaluation. He attributed the C8 radiculopathy in part to the work injury. Dr. Glenn opined that
appellant’s arthritis and loss of shoulder motion was not due to his work injury. He identified the
diagnosis of and class 1 shoulder pain using Table 15-5 on page 401. After applying grade
modifiers, Dr. Glenn found no impairment of the bilateral upper extremities.
On June 21, 2012 Dr. Magliato reviewed Dr. Glenn’s opinion and noted that he attributed
appellant’s loss of range of motion of the spine and right shoulder to preexisting degeneration,
but further found that the June 30, 2004 work injury caused an aggravation of the C8 nerve root
deficit. He recommended that Dr. Glenn clarify his findings.
In response to OWCP’s request for clarification, on October 3, 2012 Dr. Glenn opined
that the work-related aggravation of the C8 radiculopathy had resolved. He asserted that
appellant’s continued symptoms were not related to his June 30, 2004 work injury.
Dr. Magliato reviewed Dr. Glenn’s report on October 23, 2012 and concurred with his
finding that appellant had no permanent impairment of either arm.
By decision dated March 12, 2013, OWCP denied appellant’s claim for a schedule award.
On March 18, 2013 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative.
In a report dated July 9, 2013, Dr. David Weiss, an osteopath, opined that appellant had
17 percent permanent impairment of the right upper extremity and 7 percent permanent
impairment of the left upper extremity under the sixth edition of the A.M.A., Guides. He based
his report on his December 18, 2007 examination and his review of subsequent reports from
Dr. Glenn and Dr. Magliato dated 2011 and 2012, respectively.
Following a July 15, 2013 hearing, by decision dated September 18, 2013, an OWCP
hearing representative affirmed the March 12, 2013 decision. She determined that Dr. Glenn’s
report constituted the special weight of the evidence and established that appellant had no
permanent impairment due to his accepted employment injury.
Appellant appealed to the Board. By decision dated July 21, 2014, the Board set aside
the September 18, 2013 decision. It found that OWCP had failed to provide Dr. Glenn with a
SOAF setting forth the accepted conditions as required under its procedures and that his opinion
was thus insufficient to resolve the conflict in medical opinion. The Board further found that
Dr. Magliato, who was on one side of the conflict, improperly reviewed the report of the referee

3

physician. The Board remanded the case for OWCP to prepare a new SOAF and obtain an
opinion sufficient to resolve the pertinent issue of appellant’s entitlement to a schedule award.
On January 16, 2015 OWCP referred appellant to Dr. Stanley Askin, a Board-certified
orthopedic surgeon, for a second opinion examination. Based on his report, by decision dated
September 24, 2015, it denied appellant’s schedule award claim.
Appellant, through counsel, on September 30, 2015 requested an oral hearing before an
OWCP hearing representative. Following a preliminary review, by decision dated December 7,
2015, OWCP’s hearing representative set aside the September 24, 2015 decision, finding that
OWCP erred in referring appellant to Dr. Askin for a second opinion examination when the
record contained an unresolved conflict in medical opinion. She instructed OWCP to exclude
the opinion of Dr. Askin from the record and refer appellant for a new impartial medical
examination.
OWCP, by letter dated May 13, 2016, referred appellant to Dr. Zohar Stark, a Boardcertified orthopedic surgeon, for an impartial medical examination. In a report dated May 24,
2016, Dr. Stark reviewed the history of injury and the medical reports of record. He discussed
appellant’s current symptoms of pain radiating to his shoulder, weakness in the bilateral upper
extremities, and tingling and numbness in the hands bilaterally. On examination Dr. Stark found
no tenderness or atrophy of the left shoulder and no atrophy of the right shoulder. He found
negative impingement and apprehension tests, negative Tinel’s sign and Phalen’s test for the
median and ulnar nerves at the bilateral wrists, and a negative Tinel’s test for the ulnar nerve at
the bilateral elbows. Dr. Stark noted that the claim was accepted for a temporary aggravation of
brachial neuritis or cervical radiculitis. He reviewed Dr. Allon’s finding of 19 percent
impairment due to degenerative joint disease of the shoulder and deficits of the ulnar and median
nerve. Dr. Stark related that there was “no clinical evidence of severe sensory deficit to the right
ulnar nerve, no evidence that there is any damage to the right ulnar nerve, and no evidence of
entrapment neuropathy of the right median nerve.” He concluded that appellant had no
employment-related right arm permanent impairment. Dr. Stark further related, “As to his left
upper extremity, there is no indication that [he] is suffering from any ulnar sensory deficit or
severe sensory deficit to his left median nerve. Therefore, it is my opinion that there is [zero
percent] permanent impairment for his left upper extremity.” He opined that the accepted
condition of an aggravation of brachial neuritis or cervical radiculitis had resolved.
On August 25, 2016 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon and
OWCP medical adviser, concurred with Dr. Stark’s finding that appellant had no permanent
impairment of either the right or left arm due to his June 30, 2004 employment injury.
By decision dated September 30, 2016, OWCP denied appellant’s schedule award claim.
It found that the opinion of Dr. Stark, the impartial medical examiner, was entitled to special
weight and established that appellant did not have an employment-related permanent impairment
of the upper extremities.
On October 11, 2016 appellant, through counsel, requested an oral hearing before an
OWCP hearing representative. On January 10, 2017 counsel submitted an August 15, 2013
report from Dr. Weiss. Dr. Weiss noted that he had evaluated appellant on December 18, 2007

4

and advised that he based his impairment rating on Dr. Glenn’s October 3, 2012 examination.
Referring to his prior report dated July 9, 2013, he opined that, under the sixth edition of the
A.M.A., Guides, appellant had 18 percent left upper extremity permanent impairment due to loss
of motion and a sensory deficit on the left at C5 and C7.
During the hearing, held on January 18, 2017, counsel contended that the claim should be
expanded to include additional conditions. He also questioned how the accepted condition of
brachial neuritis and radiculitis changed to temporary aggravation of the condition. Counsel
noted that OWCP did not provide the impairment ratings found by Dr. Allon and Dr. Magliato in
its conflict statement to the impartial medical examiner. He further asserted that Dr. Stark did
not reference the A.M.A., Guides or The Guides Newsletter (July/August 2009).6
By decision dated February 22, 2017, OWCP’s hearing representative affirmed the
September 30, 2016 decision. She found that Dr. Stark’s referee opinion constituted the special
weight of the evidence and established that appellant was not entitled to a schedule award as a
result of his accepted work injury.
On appeal counsel asserts that a November 3, 2004 cervical MRI scan study showed C67 defects and an EMG showed radiculopathy at C8 and right carpal tunnel syndrome. He
maintains that Dr. Stark’s opinion is insufficient to resolve the conflict in medical opinion as he
did not reference the A.M.A., Guides or The Guides Newsletter in reaching his conclusions.
Counsel further contends that Dr. Stark did not sufficiently describe how he performed his
neurological or motor strength testing, explain whether preexisting conditions resulted in
impairment, or discuss appellant’s surgery on his left shoulder.
LEGAL PRECEDENT
The schedule award provisions of FECA,7 and its implementing federal regulations,8 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.9 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.10

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5
(January 2010); The Guides Newsletter is included as Exhibit 4.
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

20 C.F.R. § 10.404(a).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).

5

The claimant has the burden of proving that the condition for which a schedule award is
sought is causally related to his employment.11 The Board notes that, before applying the
A.M.A., Guides, OWCP must determine whether the claimed impairment of a scheduled
member is causally related to the accepted work injury.12
If there is a disagreement between the physician making the examination for the United
States and the physician of an employee, the Secretary shall appoint a third physician (known as
a referee physician or impartial medical specialist) who shall make an examination.13 In cases
where OWCP has referred appellant to an impartial medical examiner to resolve a conflict in
medical evidence, the opinion of such specialist, if sufficiently well rationalized and based upon
a proper factual background, must be given special weight.14
ANALYSIS
Dr. Stark examined appellant for an impartial medical examination regarding the extent
of permanent impairment, if any, resulting from the accepted employment injury. When a case is
referred to an impartial medical examiner for the purpose of resolving a conflict, the opinion of
such specialist, is sufficiently well rationalized and based on a prior factual and medical
background, must be given special weight.15
In a report dated May 24, 2016, Dr. Stark reviewed the medical evidence and provided
examination findings, noting that appellant had no shoulder atrophy bilaterally, a negative
Tinel’s sign and Phalen’s test of the median and ulnar nerves at the wrist and a negative Tinel’s
sign at the ulnar nerve. He found no evidence of entrapment neuropathy or other damage at the
right ulnar nerve and thus no right upper extremity impairment. Dr. Stark further found no ulnar
or median sensory deficit and thus no impairment of the left upper extremity. He opined that the
temporary aggravation of brachial neuritis or cervical radiculitis had resolved. Dr. Stark’s
opinion is based on a proper factual background and supported by rationale; consequently, his
opinion is entitled to special weight as the impartial medical examiner.16 He thoroughly
reviewed appellant’s history and provided findings on examination. Dr. Stark sufficiently
explained how his findings supported his conclusion that appellant’s temporary aggravation of
brachial neuritis or cervical radiculitis had resolved and that he had no ratable impairment due to
the work injury.17

11

Veronica Williams, 56 ECAB 367 (2005); Tammy L. Meehan, 53 ECAB 229 (2001).

12

Michael S. Mina, 57 ECAB 379 (2006).

13

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
14

See B.P., Docket No. 08-1457 (issued February 2, 2009); Gloria J. Godfrey, 52 ECAB 486 (2001).

15

See Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

16

See L.W., Docket No. 13-1374 (issued November 15, 2013).

17

See M.M., Docket No. 12-1271 (issued December 27, 2012).

6

An OWCP medical adviser, Dr. Harris, reviewed Dr. Stark’s opinion on August 25, 2016
and concurred with his conclusion. The Board, therefore, finds that Dr. Stark’s opinion
constitutes the special weight of the evidence and establishes that appellant has no employmentrelated permanent impairment of the upper extremities.18
Following OWCP’s decision, appellant submitted an August 15, 2013 report from
Dr. Weiss, which was based on a December 2007 evaluation and review of medical reports from
2012. Dr. Weiss’ report, however, is of diminished probative value as it was based on a sixyear-old physical examination rather than a current physical examination.19 His report,
therefore, is insufficient to overcome the special weight afforded Dr. Stark’s opinion or to create
a new conflict.
On appeal counsel contends that an MRI scan study showed defects at C6-7 and a
November 2004 electromyogram showed C8 radiculopathy and right carpal tunnel syndrome.
The issue, however, is whether appellant currently has an employment-related permanent
impairment due to his June 30, 2004 work injury.
Counsel argues that Dr. Stark’s opinion is insufficient to resolve the conflict in the
medical opinion as he did not refer to the A.M.A., Guides or The Guides Newsletter. Dr. Stark,
however, found no evidence of the accepted condition and thus no permanent impairment.
Counsel additionally maintains that Dr. Stark did not determine whether preexisting
conditions caused impairment or describe how he performed neurological and strength testing.
A preexisting impairment may be included in the calculation of percentage of loss referable to a
work-related injury.20 However, where there is no demonstrated permanent impairment due to
an accepted workplace injury, the claim is not ripe for consideration of any preexisting
impairment.21 As noted, Dr. Stark listed detailed findings on physical examination and
concluded that appellant had no impairment due to his accepted work injury.
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established permanent impairment of his upper
extremities, warranting a schedule award.

18

See L.W., supra note 16.

19

Id.

20

M.F., Docket No. 16-1089 (issued December 14, 2016); Thomas P. Lavin, 57 ECAB 353 (2006).

21

Id.

7

ORDER
IT IS HEREBY ORDERED THAT the February 22, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 7, 2018
Washington, DC

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

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

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

8


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

)
)
)
)
)
)
)
)

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

Docket No. 20-1598
Issued: June 2, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 10, 2020 appellant filed a timely appeal from an April 23, 2020 merit
decision1 and a May 4, 2020 nonmerit 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
The record contains two April 23, 2020 decisions suspending appellant’s compensation for failure to return a
March 9, 2020 Form EN1032. One decision suspends his compensation, effective April 23, 2020, and one suspends
his compensation effective April 26, 2020. Computer records indicate that OWCP suspended appellant’s
compensation effective April 26, 2020.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 4, 2020 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.

ISSUES
The issues are:
(1) whether OWCP properly suspended appellant’s wage-loss
compensation benefits, effective April 26, 2020, for failure to complete an EN1032 form as
requested; and (2) whether it properly denied appellant’s request for reconsideration of the merits
of his claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board on different issues.4 The facts and
circumstances as set forth in the Board’s prior decisions and orders are incorporated herein by
reference. The relevant facts are as follows.
On March 18, 1985 appellant, then a 29-year-old mail processing clerk, filed a traumatic
injury claim (Form CA-1) alleging that on March 16, 1985 he sustained severe muscle spasms
while in the performance of duty. He stopped work on March 16, 1985. OWCP accepted the
claim for lumbar sprain and displacement of a lumbar intervertebral disc without myelopathy. It
subsequently expanded acceptance of the claim to include lumbosacral radiculopathy at L5-S1 and
lumbar spondylolisthesis. OWCP paid appellant wage-loss compensation on the periodic rolls
based on his loss of wage-earning capacity effective November 8, 1998.
OWCP periodically requested that appellant submit financial disclosure statements (Form
EN1032) which solicited information about his employment, volunteer work, dependent(s) status,
receipt of other federal benefits and/or payments, and third-party settlements.
On March 9, 2020 OWCP provided appellant with a Form EN1032 and informed him that
federal regulations required him to make an affidavit regarding any earnings received or
employment performed during the previous 15-month period. It advised that he was required to
fully answer all questions on the EN1032 form and return it within 30 days or his benefits would
be suspended pursuant to 20 C.F.R. § 10.528. OWCP mailed the form to appellant’s address of
record. No response was received.
By decision dated April 23, 2020,5 OWCP suspended appellant’s wage-loss compensation
benefits, effective April 26, 2020, for failing to submit the EN1032 form as requested. It noted
that he had not responded to its March 9, 2020 letter. OWCP advised that, if appellant completed
and returned an enclosed copy of the EN1032 form, it would restore his wage-loss compensation
benefits retroactive to the date of suspension.
On April 28, 2020 appellant requested reconsideration. He asserted that he had been
unable to see his physician due to the coronavirus pandemic. Appellant submitted a message from
his physician’s office confirming that he was unable to obtain an appointment because of the
4

Docket No. 04-0886 (issued October 27, 2004); Order Remanding Case, Docket No. 05-0942 (issued
September 6, 2005); Docket No. 06-1450 (issued January 30, 2007), denying petition for recon., Docket No. 06-1450
(issued July 16, 2007).
5

Supra note 1.

2

pandemic. He also submitted a March 21, 2020 letter canceling an appointment scheduled for
August 14, 2020.
By decision dated May 4, 2020, OWCP denied appellant’s request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
Section 8106(b) of FECA6 authorizes the Secretary of Labor to require a partially disabled
employee to report his or her earnings from employment or self-employment, by affidavit or
otherwise, in the manner and at the times the Secretary specifies.7
Under section 10.528 of OWCP’s implementing federal regulations, an employee in receipt
of compensation benefits must complete an affidavit as to any work or activity indicating an ability
to work, which the employee has performed for the prior 15 months.8 If an employee who is
required to file such a report fails to do so within 30 days of the date of the request, his or her right
to compensation for wage loss is suspended until OWCP receives the requested report. At that
time, OWCP will reinstate compensation retroactive to the date of suspension if the employee
remains entitled to compensation.9
ANALYSIS -- ISSUE 1
The Board finds that OWCP properly suspended appellant’s wage-loss compensation
benefits, effective April 26, 2020, for failure to complete an EN1032 form as requested.
On March 9, 2020 OWCP provided appellant with the EN1032 form and notified him that
federal regulations required him to complete the form and answer all questions concerning his
employment or earnings. It properly notified him that, if he did not completely answer all
questions and return within 30 days his benefits would be suspended. The record reflects that
OWCP’s letter was sent to appellant’s address of record and there is no indication that it was
returned as undeliverable.10 Under the mailbox rule, a document mailed in the ordinary course of
the sender’s business practices to the addressee’s last known address is presumed to be received
by the addressee.11
Appellant failed to timely submit the EN1032 form within 30 days of OWCP’s request.
He was receiving wage-loss compensation and was, therefore, required to complete the EN1032

6

Supra note 1.

7

5 U.S.C. § 8106(b).

8
20 C.F.R. § 10.528; see also R.B., Docket No. 20-0176 (issued June 25, 2020); A.H.., Docket No. 15-241 (issued
April 3, 2015).
9

Id.

10

See J.H., Docket No. 19-0785 (issued October 23, 2020); Kenneth E. Harris, 54 ECAB 502 (2003).

11

Id.

3

form.12 Appellant’s failure to file an EN1032 form within 30 days properly resulted in the
suspension of his wage-loss compensation. Thus, the Board finds that OWCP properly suspended
his wage-loss compensation benefits, effective April 26, 2020, pursuant to 20 C.F.R. § 10.528.13
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.14
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.15
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.16 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.17 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.18
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, pursuant to 5 U.S.C. § 8128(a).

12
See R.S., Docket No. 20-0580 (issued September 14, 2020); A.S., Docket No. 17-1530 (issued
November 7, 2017).
13

K.F., Docket No. 20-1248 (issued February 8, 2021); P.M., Docket No. 16-0382 (issued May 19, 2016); M.W.,
Docket No. 15-0507 (issued June 18, 2015).
14

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
15

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
16
Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Chapter 2.1602.4b.
17

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

18
Id. at § 10.608(b); Y.K., Docket No. 18-1167 (issued April 2, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).

4

Appellant has not alleged or demonstrated that OWCP erroneously applied or interpreted
a specific point of law. Moreover, he has not advanced a relevant legal argument not previously
considered. Appellant asserted that he was unable to get an appointment with his physician due to
the coronavirus pandemic. The issue, however, is whether OWCP properly suspended his
compensation based on his failure to submit an EN1032 form disclosing earnings and employment
information. The Board has held the submission of evidence or argument which does not address
the particular issue involved does not constitute a basis for reopening a case.19 Consequently,
appellant is not entitled to a review of the merits of his claim based on the first and second abovenoted requirements under section 10.606(b)(3).20
The Board further finds that appellant has not provided any relevant and pertinent new
evidence not previously considered. Appellant submitted confirmation from his physician’s office
that he was unable to get a current appointment. This evidence, however, is not relevant to the
underlying issue of the suspension of his compensation for failing to return an EN1032 form. As
noted, the submission of evidence that does not address the particular issue involved does not
constitute a basis for reopening a case.21 Appellant has not provided relevant and pertinent new
evidence and, thus, is not entitled to a merit review based on the third requirement under section
10.606(b)(3).22
The Board, accordingly, finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.23
CONCLUSION
The Board finds that OWCP properly suspended appellant’s wage-loss compensation
benefits, effective April 26, 2020, for failure to complete an EN1032 form as requested. The Board
further finds that OWCP properly denied appellant’s request for reconsideration of the merits of
his claim, pursuant to 5 U.S.C. § 8128(a).

19

See C.C., Docket No. 20-0950 (issued October 29, 2020).

20

C.B., Docket No. 18-1108 (issued January 22, 2019).

21

J.K., Docket No. 20-0591 (issued August 12, 2020); G.Q., Docket No. 18-1697 (issued March 21, 2019).

22

20 C.F.R. § 10.606(b)(3)(iii); T.W., Docket No. 18-0821 (issued January 13, 2020).

23

T.G., Docket No. 20-0329 (issued October 19, 2020); C.C., Docket No. 17-0043 (issued June 15, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the April 23 and May 4, 2020 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: June 2, 2021
Washington, DC

Janice B. Askin, 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