United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
DEPARTMENT OF THE INTERIOR, BUREAU
OF SAFETY & ENVIRONMENTAL
ENFORCEMENT, Washington, DC, Employer
__________________________________________

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Appearances:
Andrew Douglas, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1285
Issued: March 4, 2022

Case Submitted on the Record

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

JURISDICTION
On August 25, 2021 appellant, through counsel, filed a timely appeal from an August 13,
2021 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant

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

Counsel did not appeal from July 2 and 16, 2021 OWCP merit decisions. He identified only the August 13, 2021
nonmerit decision on the application for review (Form AB-1). As such, the July 2 and 16, 2021 merit decisions are
not properly before the Board on the current appeal. See 20 C.F.R. § 501.3; see also M.M., Docket No. 20-0523
(issued August 25, 2020).

to the Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case. 4
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 25, 2017 appellant, then a 63-year-old administrative specialist, filed a
traumatic injury claim (Form CA-1) alleging that on that date she injured her left foot when a
19-pound box fell on her foot while in the performance of duty. She stopped work on the date of
injury. OWCP accepted appellant’s claim for left ankle and foot arthropathies and left foot
fracture. It paid wage-loss compensation on the supplemental rolls beginning March 20, 2017 and
placed her on the periodic rolls, effective February 4, 2018.
On March 1, 2018 OWCP referred appellant, along with a statement of accepted facts
(SOAF), a copy of the case record, and a series of questions, to Dr. Robert Smith, a Board-certified
orthopedic surgeon, for second opinion evaluation regarding the status of her accepted January 25,
2017 employment injury. In a March 15, 2018 report, Dr. Smith reviewed her history, including
the SOAF, and conducted a physical examination. In response to OWCP’s questions, he indicated
that appellant’s accepted left foot fracture and left foot and ankle arthropathies had resolved and
that the only remaining medical condition of concern was Complex Regional Pain Syndrome
(CPRS)/Reflex Sympathetic Dystrophy (RSD). Dr. Smith recommended a bone scan for the left
lower extremity.
On March 14, 2018 OWCP also referred appellant to Dr. Ira Kornbluth, a Board-certified
pain management and physical medicine and rehabilitation physician, for a second -opinion
examination. In an April 6, 2018 progress note, Dr. Kornbluth indicated that he had reviewed the
SOAF, and provided examination findings. In response to OWCP’s questions, he reported that
appellant had residuals of her left foot arthropathy condition. Dr. Kornbluth opined that she was
capable of working in “a light physical capacity level.” He completed a work capacity evaluation
form (Form OWCP-5c) which indicated that appellant could work full time with restrictions of
sitting up to 4 hours, walking, standing, bending/stooping, and operating a motor vehicle up to 1
hour, pushing, pulling, and lifting up to 10 pounds, and no squatting, kneeling, or climbing.
In a June 15, 2018 report, Dr. Lee Ann Rhodes, a Board-certified anesthesiologist and pain
medicine physician, recounted appellant’s complaints of left lower extremity pain since a
January 2017 work-related injury. She noted physical examination findings of slightly reduced
3

5 U.S.C. § 8101 et seq.

4

The Board notes that, following the August 13, 2021 decision, appellant submitted additional evidence to
OWCP. 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

2

range of motion and strength on the left lower extremity. Dr. Rhodes assessed RSD and opined
that appellant’s left foot RSD/CPRS was a direct result of her work injury. She also reported that
there were no tests to confirm this diagnosis and that bone density tests were not diagnostic.
On August 31, 2018 the employing establishment offered appellant a full-time, modifiedduty position as an administrative specialist based on Dr. Kornbluth’s work restrictions. The
physical requirements of the position included sitting up to 4 hours, walking, standing, operating
a motorized scooter, twisting, bending, and stooping up to 1 hour, and pushing, pulling, and lifting
up to 10 pounds less than 1 hour.
In an October 18, 2018 supplemental report, Dr. Kornbluth noted appellant’s accepted left
foot arthropathy and left foot fracture conditions. He indicated that she was not disabled from
work and could work at the sedentary physical capacity level.
In a November 30, 2018 letter, Dr. Smith opined that appellant did not have RSD in her
left lower extremity causally related to the accepted January 25, 2017 employment incident. He
explained that physical examination on March 15, 2018 did not show dystrophic signs of any kind
in her left lower extremity.
In a February 1, 2019 addendum note, Dr. Rhodes provided examination findings and
assessed CRPS of the left lower extremity. She reported that appellant met the criteria on skin
color changes, sensory changes in the area of pain, and edema. Dr. Rhodes indicated that
appellant’s pain prohibited appellant from working until August 2019.
In a February 5, 2019 letter, a human resources specialist for the employing establishment,
advised that the August 31, 2018 job offer remained available. He also noted that appellant did
not respond to the August 31, 2018 job offer.
By notice dated February 12, 2019, OWCP advised appellant that it determined that she
refused or failed to report to the offered position as a modified administrative specialist. It
informed her that it had reviewed the offered position and found that it was suitable in accordance
with the medical limitations provided by Dr. Kornbluth in his October 18, 2018 report. Pursuant
to 5 U.S.C. § 8106(c)(2), OWCP afforded appellant 30 days to either accept the position or to
provide adequate reasons for refusal. It informed her that, if she failed to report to work or failed
to demonstrate that the failure was justified, her right to compensation for wage loss or a schedule
award would be terminated.
By notice dated March 19, 2019, OWCP notified appellant that her reasons for refusing the
August 31, 2018 job offer were not valid. It provided her 15 days to accept the position or have
her entitlement to wage-loss compensation benefits terminated. OWCP advised appellant that the
offered position remained available.

3

On April 3, 2019 appellant returned to work, but stopped working after a few hours.5
By decision dated April 10, 2019, OWCP terminated appellant’s wage-loss compensation
and entitlement to a schedule award, effective April 10, 2019.
On April 9, 2020 appellant, through then-counsel, requested reconsideration. She asserted
that new medical documentation from appellant’s treating physician demonstrated that appellant
was justified in rejecting the August 31, 2018 job offer due to work restrictions resulting from the
January 25, 2017 employment injury.
Appellant submitted an April 24, 2019 functional capacity evaluation summary report,
which indicated that she was capable of working full-time modified light-duty work. OWCP also
received additional treatment notes, laboratory test result reports, and physical therapy notes dated
April 24 through November 4, 2019.
By decision dated July 6, 2020, OWCP denied modification of the April 10, 2019 decision.
On April 6, 2021 appellant, through counsel, requested reconsideration. Counsel argued
that OWCP failed to meet its burden of proof to terminate appellant’s wage-loss compensation
because a conflict in medical evidence existed between Dr. Smith, OWCP’s second opinion
examiner, and Dr. Rhodes, appellant’s treating physician, regarding whether appellant had CPRS
of the left lower extremity as a result of the January 25, 2017 employment incident and the need
for further medical treatment. Counsel asserted that this issue should have been resolved before
OWCP terminated appellant’s wage-loss compensation and entitlement to schedule award benefits
based on her refusal of suitable work.
In a June 14, 2019 report, Dr. Rhodes reviewed appellant’s history and recounted
appellant’s complaints of low back pain radiating into the left buttock, thigh, and calf. She
provided examination findings and diagnosed CRPS of the left lower extremity. Dr. Rhodes
reported that appellant was 100 percent disabled and could not return to work in any capacity.
By decision dated July 2, 2021, OWCP denied modification of the July 6, 2020 decision.
On July 23, 2021 appellant, through counsel, requested reconsideration. Counsel argued
that OWCP erroneously interpreted the law regarding a conflict in the medical evidence
requirement for a referee medical examination. He contended that a conflict in the medical opinion
evidence existed between Dr. Smith and Dr. Rhodes regarding whether appellant had CPRS
causally related to the accepted January 25, 2017 employment incident and whether appellant
required further medical treatment in order to return to work. Counsel asserted that OWCP erred
in terminating appellant’s wage-loss compensation benefits before a referee medical examiner
could resolve the conflict in medical evidence.

5

Appellant subsequently filed a notice of recurrence of disability (Form CA-2a) claim alleging that on April 3,
2019 she sustained a recurrence of the accepted January 25, 2017 employment injury. In a May 12, 2020 decision,
OWCP denied the recurrence claim. The recurrence issue is currently not before the Board.

4

By decision dated August 13, 2021, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
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. 6
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.7
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 8 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 9 If the request is timely but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsidera tion without
reopening the case for review on the merits. 10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
With appellant’s July 23, 2021 request for reconsideration, counsel submitted a statement
alleging that OWCP erroneously interpreted the law regarding a conflict in the medical evidence.
He argued that OWCP erred in terminating appellant’s wage-loss compensation benefits before an
impartial medical examiner could resolve the conflict in medical evidence between Dr. Smith and
Dr. Rhodes regarding whether appellant had CPRS causally related to the accepted January 25,
2017 employment incident and whether appellant required further medical treatment in order to
6

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).
7

20 C.F.R. § 10.606(b)(3); see P.M., Docket No. 20-0780 (issued November 24, 2020); J.W., Docket No. 19-1795
(issued March 13, 2010); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
8

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 (September 2020). 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). Id. at Chapter 2.1602.4b.
9

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

10

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

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return to work. Appellant’s reconsideration request does not advance a new legal argument not
previously considered nor show that OWCP erroneously applied or interpreted a specific point of
law. Her argument was substantially similar to that which was previously considered and
discussed in OWCP’s July 2, 2021 decision.11 Consequently, appellant is not entitled to further
review of the merits of her claim based on either the first or second above-noted requirements
under 20 C.F.R. § 10.606(b)(3). 12
Furthermore, the Board finds that appellant has not provided any relevant and pertinent
new evidence not previously considered. 13 Thus, appellant is also not entitled to a review of the
merits of her claim based on the third above-noted requirement under section 10.606(b)(3).14
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. 15
CONCLUSION
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).

11

See T.S., Docket No. 20-0968 (issued August 17, 2021); see also J.V., Docket No. 19-1554 (issued
October 9, 2020).
20 C.F.R. § 10.606(b)(3)(i) – (ii); P.M., Docket No. 20-0780 (issued November 24, 2020); G.Q., Docket No. 181697 (issued March 21, 2019); Alan G. Williams, 52 ECAB 180 (2000).
12

13

T.H., Docket No. 20-1598 (issued June 2, 2021); F.D., Docket No. 19-0890 (issued November 8, 2019).

14

20 C.F.R. § 10.606(b)(3)(iii); J.V., Docket No. 19-1554 (issued October 9, 2020); T.M., Docket No. 19-0535
(issued July 25, 2019).
15

S.M., Docket No. 21-0392 (issued August 12, 2021); D.G., Docket No. 19-1348 (issued December 2, 2019); A.R.,
Docket No. 16-1416 (issued April 10, 2017); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006)
(when a request for reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b), OWCP will deny the request for reconsideration without reopening the case for a review on the merits).

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ORDER
IT IS HEREBY ORDERED THAT the August 13, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 4, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS, VA
MEDICAL CENTER, New Orleans, LA,
Employer
__________________________________________

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

Docket No. 17-1542
Issued: February 1, 2018

Case Submitted on the Record

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

JURISDICTION
On July 6, 2017 appellant filed a timely appeal from a June 20, 2017 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition in the performance of duty on March 17, 2016.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 11, 2016 appellant, then a 47-year-old supply technician, filed a traumatic injury
claim (Form CA-1) alleging that on March 17, 20162 he sustained an emotional condition when
he was inappropriately touched and assaulted at work.3 The claim form did not indicate whether
appellant stopped work.4
Appellant submitted two handwritten employee health records dated July 8 and 26, 2016
from an unknown provider. In the July 8, 2016 note, the provider indicated that appellant
complained of headaches and nightmares following an incident when he was groped by another
employee in the ambulatory procedure unit (APU) while on duty. Appellant complained of
mental anguish and post-traumatic stress disorder (PTSD).
By development letter dated July 28, 2016, OWCP advised appellant that the evidence
submitted was insufficient to establish his claim. It requested that he respond to the attached
questionnaire in order to establish that the employment incident occurred as alleged and provide
additional medical evidence to establish a diagnosed condition causally related to the alleged
incident. Appellant was afforded 30 days to submit the requested evidence. Appellant did not
respond within the allotted time.
OWCP denied appellant’s claim by decision dated August 30, 2016. It determined that
appellant had failed to provide a factual basis for his claim because he only provided vague and
general information about the alleged March 17, 2016 employment incident. OWCP also found
that appellant had failed to submit sufficient medical evidence to establish a diagnosed condition
causally related to his federal employment.
On October 27, 2016 appellant requested reconsideration. In an attached statement, he
reported that on February 17, 2016 he was sexually assaulted by a physician at work. Appellant
indicated that he was providing OWCP the police report and a copy of his psychologist’s report.
He alleged that the evidence showed clearly that the incident did happen and was reported to the
police.
Appellant submitted a March 4, 2016 investigation report by Officer R.T. He indicated
that on February 26, 2016 he received a telephone call about a possible sexual assault against
appellant that had occurred on February 17, 2016. Officer R.T. had an informal conversation
with appellant who informed him that someone had touched him on the back, and he did not like
it. The report contained a March 1, 2016 statement by appellant. Appellant described that on the
day or between the days of February 17 or 18, 2016 between the hours of 10:30 a.m. and 12:00
p.m. he was improperly touched by a doctor5 at the APU when he had his back turned. He
2
Although appellant reported a date of injury of March 17, 2016 on the Form CA-1, subsequent medical reports
and personal statements, however, indicated that the date of injury was February 17, 2016.
3

Appellant noted that the touching occurred from close to “sexual organ, up toward chest area and back.”

4

On August 3, 2016 appellant filed a claim for compensation (Form CA-7) for intermittent periods of disability
from March 17 to August 3, 2016.
5

The doctor’s name was crossed out in the interview notes.

2

related that he was opening boxes and unloading material for the APU when the doctor came up
from behind him, put his hands around appellant’s stomach close to his male private parts, and
slid his hands up to touch appellant’s chest and back. Appellant stated that the doctor said
something to him in a low voice and left quickly through the APU back exit door. He indicated
that he felt violated and very uncomfortable for several days.
In a March 7, 2016 note, Officer R.T. indicated that he viewed the closed-circuit
television (CCTV) recordings for the dates and times that appellant had provided. He initially
saw no signs of an alleged sexual assault, but when he went back to the footage from
February 17, 2016 at 10:00 a.m., he observed something that might be relevant to the
investigation.
Officer R.T. provided a March 9, 2016 note about his interview with the physician who
allegedly assaulted appellant. The physician explained that he had no recollection of the alleged
assault. He stated that when he visited the APU, he always tried to provide encouragement to the
staff and surgical team.
Ms. Ilyse S. Goldberg, a licensed clinical social worker, treated appellant. In an April 8,
2016 report, Ms. Goldberg related that appellant’s primary care physician recommended a
consultation after appellant “recently had [an] incident where he was groped by another
employee.” She reviewed appellant’s history and noted that appellant currently reported
problems with sleep, increased anxiety, nightmares, and intrusive thoughts. Appellant also
indicated that he had violent feelings towards the individual who groped him at work and felt
regret for not reacting violently when the alleged incident occurred. Ms. Goldberg reported no
homicidal or suicidal ideation, no psychomotor problems observed, and no psychosis. She
diagnosed acute stress reaction.
Appellant provided a May 27, 2016 consultation note cosigned by Dr. Eliza S. McManus,
a postdoctoral fellow, and Dr. Lisa-Ann J. Cuccurullo, a clinical psychologist. Dr. Cuccurullo
related appellant’s complaints of chronic low back pain, nasal congestion and rhinitis, and sleep
apnea.
In June 3 and July 7, 2016 reports cosigned by Dr. Cuccurullo, it was reported that
appellant was referred for an assessment of Military Sexual Trauma (MST)/PTSD and related
symptoms. Dr. Cuccurullo reviewed appellant’s history and noted a history of ongoing sexual
harassment from one of appellant’s direct supervisors in the Navy for approximately six weeks.
Appellant also related that on numerous occasions, while waiting to cash his check, other sailors
and service members would whistle at him. He indicated that on a few occasions it escalated
into physical fights when he confronted the men. Appellant further described an incident in
February 2016 when a coworker inappropriately touched him at work. He stated that the
coworker walked behind him, put his arms around him, and slid his arms up towards his chest.
Appellant complained of unpleasant dreams related to his work-related incident and of feeling
emotionally upset and nauseous when reminded of this incident. He also reported feeling “on
guard and watchful” much of the time, especially at work. Dr. Cuccurullo diagnosed adjustment
disorder with anxiety. She noted that appellant reported a “work-related stressor which occurred
approximately three months ago.” Dr. Cuccurullo related that appellant had numerous anxiety

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symptoms related to this event. In a July 7, 2016 report, she indicated that appellant began
treatment for his psychological symptoms.
OWCP received a September 3, 2016 handwritten statement by appellant. Appellant
explained that on February 17, 2016 he was working in the rear employee entrance of APU when
the alleged assaulter, a physician, walked through the door and they said “hello” to each other.
He related that the physician came behind him, put his arms around his waist, and rubbed his
hands all the way up to his chest area. The physician then put his head on appellant’s back and
said something, but appellant could not hear because he was in shock. Appellant indicated that
the physician moved rapidly out the back door of the APU. He stated that he told two nurses in
the break area about the assault and also noted that there was a surveillance camera monitoring
the hall way in addition to a VA police report. Appellant resubmitted Officer R.T.’s
investigation report.
On February 13, 2017 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a copy of the medical record, to Dr. Talaat H. Mohamed, a Board-certified
psychiatrist, for a second opinion examination to determine whether he sustained an emotional
condition causally related to a compensable employment factor. In a March 9, 2017 report,
Dr. Mohamed reviewed appellant’s history and noted his current complaints of sleep apnea and
back pain. Upon examination, he reported that appellant was oriented to time, place, and person,
but not to situation (partially). Dr. Mohamed noted that appellant’s thinking was intact and
logical. He indicated no symptoms or signs of PTSD and no symptoms or signs of real
depression or major mental illness. Dr. Mohamed reported a diagnosis of adjustment disorder
with anxiety (DSMV) and personality disorder. He explained that, after a thorough evaluation,
he concluded that there was no disability.
In response to OWCP’s questions, Dr. Mohamed reported that appellant had no major
psychiatric or emotional issues to interfere with his daily work. He indicated that appellant could
return to work with no limitations. Dr. Mohamed diagnosed adjustment disorder to stress with
mild anxiety. He responded “No,” that appellant’s diagnosed condition was not caused,
worsened, or precipitated by the accepted employment incident outlined in the SOAF.
In a May 30, 2017 addendum report, Dr. Mohamed related that back in 2016 appellant
had psychological testing and received a diagnosis of adjustment reaction with anxiety per the
DSM-V as he had reported numerous anxiety events. He indicated that appellant had numerous
incidents that occurred prior to his federal employment, so appellant’s federal employment did
not play a role in the diagnosed conditions. Dr. Mohamed further noted that a July 2016 police
investigation was closed because they could not find sexual harassment.
By decision dated June 20, 2017, OWCP affirmed the denial of appellant’s emotional
condition claim with modification. It accepted that the February 17, 2016 incident occurred as
alleged, that appellant was diagnosed with a medical condition, and that the employment incident
was within the performance of duty. OWCP denied appellant’s claim because he failed to
establish that his emotional condition was causally related to the accepted February 17, 2016
compensable employment factor or incident.

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LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment.6 There are situations where an injury or illness
has some connection with the employment, but nevertheless does not come within the concept or
coverage of workers’ compensation.7 In the case of Lillian Cutler,8 the Board explained that
there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition under FECA. Where the injury or illness results from an employee’s
emotional reaction to his or her regular or specially assigned duties or to a requirement imposed
by the employing establishment or by the nature of the work, the injury, or illness comes within
the coverage of FECA.9
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, OWCP, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable work factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
compensable factors of employment and may not be considered.10
Physical contact by a coworker or supervisor may give rise to a compensable work factor,
if the incident is established factually to have occurred as alleged.11 If a compensable factor of
employment is substantiated, OWCP must base its decision on an analysis of the medical
evidence.12
To establish an emotional condition claim, an employee must also submit rationalized
medical evidence establishing that his or her claimed condition is causally related to the accepted
compensable employment factor.13 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.14 The
weight of the medical evidence is determined by its reliability, its probative value, its convincing

6

L.D., 58 ECAB 344 (2007); Robert Breeden, 57 ECAB 622 (2006).

7

A.K., 58 ECAB 119 (2006); David Apgar, 57 ECAB 137 (2005).

8

28 ECAB 125 (1976).

9

Id.; see also Trudy A. Scott, 52 ECAB 309 (2001).

10

Dennis J. Balogh, 52 ECAB 232 (2001).

11

Denise Y. McCollum, 53 ECAB 647 (2002); Helen Casillas, 46 ECAB 1044 (1995).

12

Norma L. Blank, 43 ECAB 384, 389-90 (1992).

13

See William P. George, 43 ECAB 1159 (1992).

14

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

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quality, the care of analysis manifested, and the medical rationale expressed in support of the
physician’s opinion.15
ANALYSIS
Appellant alleged that he sustained an emotional condition as a result of being
inappropriately touched on February 17, 2016 by a physician at work. OWCP accepted as a
compensable employment incident that he had been inappropriately touched by a physician, a coworker, on that date.16 Appellant’s burden of proof, however, also requires the submission of
rationalized medical evidence establishing that his claimed condition is causally related to the
compensable employment incident.17
The Board finds that appellant has failed to meet his burden of proof to establish that his
emotional condition resulted from the compensable February 17, 2016 employment incident.
In support of his claim, appellant submitted medical reports dated May 27 through July 7,
2016 cosigned by Dr. Cuccurullo. Dr. Cuccurullo reviewed appellant’s history and indicated that
appellant reported ongoing sexual harassment when he was in the Navy. Appellant also stated
that on numerous occasions while waiting to cash his check, other sailors and service members
would whistle at him. Dr. Cuccurullo described a February 2016 incident when a coworker
inappropriately touched him at work. She related that appellant complained of unpleasant
dreams, feeling emotionally upset and nauseous, and feeling watchful most of the time following
the work-related incident. Dr. Cuccurullo diagnosed adjustment disorder with anxiety. She did
not, however, offer an opinion as to whether the February 17, 2016 incident caused or
contributed to appellant’s emotional condition. The Board has held that medical evidence that
does not offer any opinion regarding the cause of an employee’s condition is of limited probative
value on the issue of causal relationship.18 These reports, therefore, are insufficient to establish
appellant’s claim.
Appellant also provided an April 8, 2016 report by Ms. Goldberg, a licensed clinical
social worker. Ms. Goldberg indicated that appellant recently had an incident where he was
groped by another employee and diagnosed acute stress reaction. Social workers are not
physicians as defined under FECA; therefore, their opinions are of no probative value.19
Likewise, the employee health records dated July 8 and 26, 2016 by an unknown provider
are also insufficient to establish appellant’s claim as there is nothing in the record to substantiate
15

James Mack, 43 ECAB 321 (1991).

16

Supra note 11.

17

Supra note 13.

18
C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
19

The Board has held that medical evidence must be from a qualified physician and that a social worker is not a
physician as defined under FECA such that an opinion from a social worker is of no probative medical value. See
S.S., Docket No. 13-1919 (issued May 16, 2014); 5 U.S.C. § 8101(2) (defines the term physician).

6

that they were signed by a physician. The Board has found that a medical report may not be
considered probative medical evidence if there is no indication that the person completing the
report qualifies as a physician under FECA.20
Thus, the Board finds that appellant has not submitted rationalized medical evidence
establishing that his personality adjustment and anxiety disorder is causally related to the
accepted compensable employment incident.21
Appellant was also examined by Dr. Mohamed, OWCP’s second opinion examiner who
indicated in a March 9, 2017 report that appellant’s adjustment disorder with anxiety DSM-V
and personality disorder were not caused, worsened, or precipitated by the compensable
employment factor. In a May 30, 2017 addendum report, he noted that appellant reported
numerous anxiety events and that a great deal of those incidents occurred prior to federal
employment. The Board finds, therefore, that appellant did not meet his burden of proof to
establish his emotional condition claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an emotional
condition in the performance of duty on March 17, 2016.

20

R.M., 59 ECAB 690 (2008).

21

See M.W., Docket No. 16-0877 (issued March 17, 2017).

7

ORDER
IT IS HEREBY ORDERED THAT the June 20, 2017 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 1, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.L., Appellant
and
U.S. POSTAL SEVICE, POST OFFICE,
Poplarville, MS, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-1422
Issued: June 2, 2014

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 29, 2013 appellant filed a timely appeal from a January 29, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this overpayment case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $40,099.72 for the period March 1, 2008 to January 14, 2012 because she
concurrently received FECA and Social Security Administration (SSA) benefits without an
appropriate retirement benefit offset; (2) whether appellant was without fault in the creation of
the overpayment for the periods March 1, 2008 to December 17, 2009 and from November 13,
2010 to November 24, 2011; (3) whether OWCP properly denied waiver of recovery of the
overpayment; and (4) whether OWCP properly found that the overpayment should be recovered
by deducting $923.08 from appellant’s continuing compensation payments.
1

5 U.S.C. § 8101 et seq.

On appeal appellant agreed that she did get double pay but contended that she was not at
fault because every year she completed the SSA-581 and someone did not do their job in
allowing the overpayment.
FACTUAL HISTORY
OWCP accepted appellant’s claim for a cervical strain and herniated cervical disc due to
an employment-related injury on October 6, 1999. Appellant worked limited duty since
September 13, 2000, and stopped working on June 12, 2006. She was placed on the periodic
rolls.
On November 20, 2008 appellant completed an OWCP Form EN-1032. She advised that,
for the preceding 15 months, although she was receiving SSA benefits, she was not receiving any
benefits from SSA as part of an annuity for her federal service. On December 14, 2008 appellant
completed another Form EN-1032 indicating that she had not received any retirement check and
reiterated that she did not receive SSA benefits for her federal service. On December 18, 2009
appellant completed another Form EN-1032. She noted that she had not received a regular
retirement check. Appellant did receive benefits from SSA during the preceding 15 months as
part of an annuity for federal service, but made a notation that she did not understand the
question. In the Form EN-1032 completed on November 13, 2010, she advised that she had not
received SSA benefits for her federal service for the prior 15 months. In the form signed on
November 25, 2011, appellant listed that she did receive SSA benefits for her federal service.
In response to a query from OWCP, on January 12, 2012 SSA noted that commencing
March 2008, appellant’s SSA rate with Federal Employees’ Retirement System (FERS) was
$1,262.40 and without FERS was $442.00. For the period commencing December 2008, the rate
with FERS was $1,335.40 and without FERS was $467.60. Effective December 2009, the rate
was $1,335.50 with FERS and $467.60 without FERS. For the period commencing
December 2010, the rate with FERS was $1,335.50 and without FERS was $467.60; for
December 2011, the rate with FERS was $1,382.90 and without FERS was $484.40.
On February 10, 2012 OWCP made a preliminary determination that appellant was
overpaid in the amount of $40,099.72 as her compensation payments for the period March 1,
2008 through January 14, 2012 were not reduced based on the SSA offset amount. It made a
preliminary determination that she was at fault in the creation of the overpayment because she
accepted payments that she knew or should have known to be incorrect. OWCP gave appellant
the opportunity to respond to the determination and to complete financial paperwork. In a

2

supporting memorandum, OWCP explained how it determined that she was overpaid
$40.099.72.2
Appellant responded on February 19, 2012 and contended that the overpayment occurred
through no fault of her own and requested a waiver. Appellant noted that she did nothing wrong
and if she had known better she would never have accepted the money. She noted that she filled
out the yearly paperwork. Appellant requested a prerecoupment hearing. She also submitted
completed financial forms. In a letter dated February 19, 2012, appellant stated that she did not
know that she could not draw SSA and OWCP benefits. She noted that she could not afford to
repay the overpayment and that the money was used to repair her home that was damaged by
Hurricane Katrina.
At the telephonic hearing held on November 19, 2012, appellant noted that she started
receiving SSA benefits in March 2008. She did not know that she did anything wrong when
completing the form. With regard to her finances, appellant testified that she receives about
$1,800.00 for OWCP compensation and about $1,300.00 a month from SSA. Appellant noted
that her husband received about $1,300.00 to $1,400.00 in SSA disability payments and $131.00
for retirement from International Paper Company. For expenses, she paid $292.00 to the Small
Business Administration, $400.00 for food, $700.00 a month for utilities, $252.00 for insurance,
$200.00 for a truck payment, $200.00 for gas and medical and $150.00 for drugs. Appellant had
about $500.00 to $600.00 in bills at Wells Fargo. After the hearing, she submitted a document
from the Internal Revenue Service (IRS) indicating that she owed $12,132.85 in back taxes and
penalties and made monthly payments in the amount of $170.00.
By decision dated January 29, 2013, an OWCP hearing representative found that
appellant received an overpayment of compensation in the amount of $40,099.72. She
determined that appellant was at fault in the creation of the overpayment for the periods March 1,
2008 to December 17, 2009 and November 13, 2010 to November 24, 2011. The hearing
representative determined that appellant was not at fault for the periods December 18, 2009
through November 12, 2010 or November 25, 2011 to January 14, 2012; but appellant was not
entitled to waiver of recovery of the overpayment. The hearing representative determined that
appellant should repay the overpayment by having $923.08 deducted from her continuing
compensation.

2

OWCP noted as follows: the FERS offset for March 1 through November 30, 2008 was $757.29 for every 28
days, there were 275 days in this period, which resulted in an overpayment of $7,437.67. For the period
December 1, 2008 through February 28, 2009 was $801.05 for every 28 days, there were 90 days in this period,
which resulted in an overpayment of $2,574.80. For the period March 1 through November 30, 2009, the FERS
offset was $801.05 for every 28 days, there were 275 days in this period, so the overpayment would be $7,867.46.
For the period December 1, 2009 through February 28, 2010, the FERS offset was $801.14 every 28 days, there
were 90 days in this period, so the total offset was $2,575.09. For the period March 1 through November 30, 2010,
the FERS offset was $801.14 every 28 days for a period of 275 days, so the overpayment would be $7,868.34. For
the period December 1, 2010 through February 28, 2011, the offset was $801.14 every 28 days for a period of 90
days, so the overpayment would be $2,575.09. For the period March 1 through November 30, 2011, a period of 275
days, the offset was $801.14 for every 28 days or $7,868.34. Finally, for the period December 1, 2011 through
January 14, 2012, a period of 45 days, the offset was $829.38 every 28 days, of $1,332.93. The sum of the total of
these overpayments is $40,099.72, the amount OWCP found was overpaid to appellant.

3

LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of FECA provides that the United States shall pay compensation for the
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.3
Section 8116(d)(2) of FECA requires that compensation benefits be reduced by the
portion of SSA benefits based on age or death that are attributable to federal service and that, if
an employee receives SSA benefits based on federal service, his or her compensation benefits
shall be reduced by the amount of SSA benefits attributable to his or her federal service.4
OWCP’s procedures provide that, while SSA benefits are payable concurrently with
FECA benefits, the following restrictions apply: in disability cases, FECA benefit will be
reduced by SSA benefits paid on the basis of age and attributable to the employee’s federal
service.5 The offset of FECA benefits by SSA benefits attributable to employment under FERS
is calculated as follows: where a claimant has received SSA benefits, OWCP will obtain
information from SSA on the amount of the claimant’s benefits beginning with the date of
eligibility to FECA benefits. SSA will provide the actual amount of SSA benefits received by
the claimant/beneficiary. SSA will also provide a hypothetic SSA benefit computed without
FERS covered earnings. OWCP will then deduct the hypothetical benefit from the actual benefit
to determine the amount of benefits which are attributable to federal service and that amount will
be deducted from FECA benefits to obtain the amount of compensation payable.6
ANALYSIS -- ISSUE 1
Appellant received FECA wage-loss compensation and SSA benefits from March 1, 2008
to January 14, 2012. As noted, the portion of the SSA benefits she earned as a federal employee
as part of her FERS retirement package and the receipt of benefits under FECA and FERS
benefits concurrently is a prohibited dual benefit.7 OWCP requested and SSA provided
information regarding appellant’s applicable SSA rates and their effective dates. Based on these
rates, it determined that the prohibited dual benefit appellant received from March 1, 2008 to
January 14, 2012 created an overpayment of compensation in the amount of $40,099.72.
The Board has reviewed OWCP’s calculations of the dual benefits appellant received for
the period March 1, 2008 to January 14, 2012 and finds that it properly determined that appellant

3

5 U.S.C. § 8102(a).

4

Id. at § 8116(d). See G.B., Docket No. 11-1568 (issued February 15, 2012); see also Janet K. George, 54 ECAB
201 (2002).
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4(a) (February 1995);
Chapter 2.1000.1.11(b) (February 1995); see also R.C., Docket No. 09-2131 (issued April 2, 2010).
6

See P.G., Docket No. 13-589 (issued July 9, 2013); FECA Bulletin No. 97-9 (issued February 3, 1997).

7

Id.

4

received dual benefits totaling $40.099.72, creating an overpayment of compensation in that
amount.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA8 provides that an overpayment must be recovered unless incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of FECA or would be against equity and good conscience. No waiver
of an overpayment is possible if the claimant is not without fault in helping to create the
overpayment.9
In determining whether an individual is with fault, section 10.433(a) of OWCP’s
regulations provide in relevant part:
“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; or
(2) Failed to provide information which he or she knew or should have
known to be material; or
(3) Accepted a payment which the recipient knew or should have known
to be incorrect.”10
With respect to whether an individual is without fault, section 10.433(b) of OWCP’s
regulations provide in relevant part:
“Whether or not OWCP 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.11
ANALYSIS -- ISSUE 2
OWCP’s hearing representative determined that appellant was at fault in the creation of
the overpayment for the period March 1, 2008 to December 17, 2009 and from November 13,
2010 to November 24, 2011. With regard to the period December 18, 2009 to November 12,
8

5 U.S.C. § 8129(a)-(b).

9

Bonnye Mathews, 45 ECAB 657 (1994).

10

20 C.F.R. § 10.433(a).

11

Id. at § 10.433(b).

5

2010 and after November 25, 2012, appellant was not at fault in the creation of the overpayment
because she had not misrepresented the fact of receiving SSA benefits for that period. The EN1032 forms cover the period commencing 15 months prior to the signing of the form. But as she
was in receipt of such benefits commencing March 1, 2008, OWCP properly determined that
appellant was at fault in the creation of the overpayment for the periods March 1, 2008 to
December 17, 2009 and November 13, 2010 to November 24, 2011. Accordingly, the Board
finds that she was at fault in the creation of the overpayment and not entitled to waiver of
recovery of the overpayment for these time periods.12
OWCP determined that appellant was not at fault in the creation of the overpayment for
the period December 18, 2009 through November 12, 2010 and November 25, 2011 to
January 14, 2012. The hearing representative properly considered her entitlement to waiver of
recovery of the overpayment for these periods.
LEGAL PRECEDENT -- ISSUE 3
If OWCP finds that the recipient of an overpayment was not at fault, repayment will still
be required unless: (1) adjustment or recovery of the overpayment would defeat the purpose of
FECA; or (2) adjustment or recovery of the overpayment would be against equity and good
conscience.13
Recovery will defeat the purpose of FECA if both: (a) the individual from whom
recovery is sought needs substantially all of his current income (including periodic benefits
under FECA) to meet current ordinary and necessary living expenses; and (b) the individual’s
assets do not exceed the resource base (including but not limited to cash, the value of stocks,
bonds, savings accounts, mutual funds) of $4,800.00 for an individual or $8,000.00 for an
individual with a spouse or one dependent, plus $960.00 for each additional dependent. The first
$4,800.00 or more, depending on the number of claimant’s dependents, is also exempted from
recoupment as a necessary emergency resource. If an individual has current income or assets in
excess of the allowable amount, a reasonable repayment schedule can be established over a
reasonable, specified period of time. It is the individual’s burden to submit evidence to show
that recovery of the overpayment would cause the degree of financial hardship sufficient to
justify waiver.14 An individual is deemed to need substantially all of his or her income to meet
current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00.15
Recovery of an overpayment is considered to be against equity and good conscience
when any individual who received an overpayment would experience severe financial hardship
12

Lawrence J. Dubuque, 55 ECAB 667, 673 (2004).

13

20 C.F.R. § 10.434. See 5 U.S.C. § 8129(b).

14

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6(a) (October 2004). See Miguel A. Muniz, 54 ECAB 217 (2002); 20 C.F.R. §§ 10.436, 10.437.
15

Sherry A. Hunt, 49 ECAB 467, 473 (1998).

6

in attempting to repay the debt.16 Recovery of an overpayment is also considered to be against
equity and good conscience when any individual, in reliance on such payments or on notice that
such payments would be made, gives up a valuable right or changes her position for the worse.17
ANALYSIS -- ISSUE 3
The fact that appellant is without fault in creating a portion of the overpayment does not
mean that OWCP cannot collect the overpayment. Appellant is still required to repay the debt
unless: (1) recovery of the overpayment would defeat the purpose of FECA; or (2) recovery of
the overpayment would be against equity and good conscience.
In determining that appellant was not entitled to a waiver of the recovery of the
overpayment, OWCP reviewed appellant’s income, expenses and assets. Based on the financial
documentation supplied by appellant and reviewed at the hearing, OWCP found that appellant
had a household income of $4,731.00 and her listed expenses were $2,364.00. As the household
income exceeded her listed expenses by $2,367.00, the hearing representative properly
determined that recovery of the overpayment was not against equity and good conscious.
Further, there is no evidence in this case that appellant relinquished a valuable right or changed
position for the worse in reliance on the excess compensation she received. The Board finds that
OWCP properly denied waiver of recovery of the overpayment.
LEGAL PRECEDENT -- ISSUE 4
Section 8129 of FECA provides that when an overpayment has been made to an
individual because of an error of fact or law, adjustment shall be made by decreasing later
payments to which the individual is entitled.18
Section 10.441 of OWCP’s regulations provide that, when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to OWCP
the amount of the overpayment as soon as the error is discovered or his or her attention is called
to the same. If no refund is made, OWCP shall decrease later payments of compensation, taking
into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors so as to minimize any hardship.19
ANALYSIS -- ISSUE 4
The Board finds that OWCP gave due regard to the financial information appellant
submitted to OWCP. As appellant’s monthly household income was $4,731.00 and her monthly
household expenses were $2,364.00, OWCP’s hearing representative did not abuse her discretion
16

20 C.F.R. § 10.437(a).

17

Id. at § 10.437(b).

18

Id. at § 10.436.

19

Id. at § 10.441(a).

7

in setting the rate of recovery as $923.08 from each of appellant’s continuing compensation
payments. The Board will affirm OWCP’s decision with regard to rate of recovery.
CONCLUSION
The Board finds that appellant received an overpayment in the amount of $40,099.72 for
the period March 1, 2008 to January 14, 2012 because she concurrently received FECA and SSA
benefits without an appropriate retirement benefit offset. The Board further finds that appellant
was not without fault in the creation of the overpayment for the periods March 1, 2008 to
December 17, 2009 and from November 13, 2010 to November 24, 2011. As she was without
fault for the remaining period, waiver was properly considered, but, the Board finds that OWCP
properly denied waiver of recovery of the overpayment. Finally, the Board finds that OWCP
properly found that the overpayment should be recovered by deducting $923.08 monthly from
appellant’s continuing compensation payments.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 29, 2013 is affirmed.
Issued: June 2, 2014
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fajardo, PR, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-1042
Issued: February 12, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 24, 2018 appellant filed a timely appeal from a November 30, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision, dated December 18, 2015, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as set forth
in the prior Board decision are incorporated herein by reference. The relevant facts are as follows.
On October 19, 2015 appellant, then a 56-year-old sales associate and distribution clerk,
filed a traumatic injury claim (Form CA-1) alleging that, on October 9, 2015, she suffered an
anxiety attack and high blood pressure due to the actions of the postmaster, M.V., and a coworker,
W.M. She stopped working on the date of injury and returned to work on October 15, 2015.
By decision dated December 18, 2015, OWCP denied the claim, finding that the factual
evidence of record failed to establish that the October 9, 2015 employment incident occurred as
alleged.
On December 20, 2016 appellant requested reconsideration. In support of her
reconsideration request, appellant submitted narrative statements dated December 16, 2016 and
documentation related to an equal employment opportunity (EEO) grievance and settlement dated
January 30 and December 30, 2016. She also submitted diagnostic test results dated August 17,
2015 and September 26 and October 3, 2016. In a January 22, 2015 prescription note, it was
reported by an unidentified health care provider that appellant was a postoperative patient of left
knee arthroscopic surgery and needed more time to heal. Additionally, it was requested that
appellant be afforded the use of a chair when knee symptoms such as pain, swelling, or decreased
range of motion appeared.
Appellant further submitted a December 7, 2016 report from Dr. Gerardo Tejedor, a
psychiatrist, who diagnosed generalized anxiety disorder.
In a December 12, 2016 report, Dr. Benjamin R. Velazquez Lopez, a family practitioner,
noted that he saw appellant on August 25, 2015 and at that visit, she was diagnosed with high
blood pressure and general anxiety. He further noted that she was prescribed medication and
educated on taking her blood pressure twice a day. Dr. Lopez also indicated that on March 18,
2016 he prescribed additional medication and asked for a cardiology evaluation. He noted that in
May 2016, appellant was evaluated with a psychiatrist and cardiologist.
By decision dated March 7, 2017, OWCP denied appellant’s request for reconsideration
because it was untimely filed and failed to demonstrate clear evidence of error.
Appellant subsequently filed an appeal with the Board. By decision dated August 7, 2017,
the Board set aside OWCP’s March 7, 2017 decision as it failed to make findings or provide
analysis on the issue of whether appellant had demonstrated clear evidence of error.
By decision dated November 30, 2017, OWCP again denied appellant’s request for
reconsideration, finding that it was untimely filed and failed to demonstrate clear evidence of error.
It found that appellant had submitted additional medical evidence, personal statements that
provided a description of her work-related incidents which she believed contributed to her
2

Docket No. 17-1067 (issued August 7, 2017).

2

condition, and grievance/settlement documents in support of her claim, but had not provided an
argument in support of her contention that OWCP’s December 18, 2015 merit decision was
improperly decided.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.3 OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).4 One such limitation provides that an application
for reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought.5 The Board has found that the imposition of this one-year time limitation does
not constitute an abuse of the discretionary authority granted OWCP under 5 U.S.C. § 8128(a).6
Section 10.607(b) provides that OWCP will consider an untimely request for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. 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).7 Imposition of this one-year filing limitation does not constitute an abuse of discretion.8
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s application for review is untimely filed, it must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error.9 If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review.10 To
demonstrate clear evidence of error, a claimant must submit evidence relevant to the issue, which
was decided by OWCP.11 The evidence must be positive, precise, and explicit and must be
manifest on its face that OWCP committed an error.12 Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to demonstrate clear
evidence of error.13 It is not enough merely to show that the evidence could be construed so as to
3

See Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

4

See Annette Louise, 54 ECAB 783, 789-90 (2003).

5

20 C.F.R. § 10.607(a).

6

See Jesus D. Sanchez, supra note 3; F.R., Docket No. 09-0575 (issued January 4, 2010).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (February 2016).

8

E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D. Faidley, Jr., supra note 3.

9

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

10
M.L., Docket No. 09-0956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); supra note 7 at Chapter
2.1602.5 (February 2016).
11

See Nancy Marcano, 50 ECAB 110, 114 (1998); Dean D. Beets, 43 ECAB 1153, 157-58 (1992).

12

See Fidel E. Perez, 48 ECAB 663, 665 (1997); M.L., supra note 10.

13

See Richard L. Rhodes, 50 ECAB 259, 264 (1999).

3

produce a contrary conclusion.14 This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP.15 The evidence submitted must
not only be of sufficient probative value to create a conflict in medical opinion or demonstrate a
clear procedural error, but must be of sufficient probative value to shift the weight of the evidence
in favor of the claimant and raise a substantial question as to the correctness of OWCP’s decision.16
OWCP procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made
an error (for example, proof that a schedule award was miscalculated). Evidence such as a detailed,
well-rationalized medical report which, if submitted before the denial was issued, would have
created a conflict in medical opinion requiring further development, is not clear evidence of error.17
The Board makes an independent determination of whether a claimant has submitted clear
evidence of error on the part of OWCP such that OWCP abused its discretion in denying merit
review in the face of such evidence.18
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s March 17, 2017decision because the Board
considered that evidence in its August 7, 2017 decision and found that OWCP properly determined
that her request for reconsideration was untimely filed. Findings made in prior Board decisions
are res judicata absent any further review by OWCP under section 8128 of FECA. In support of
her reconsideration request, appellant submitted narrative statements and a December 7, 2016
report from Dr. Tejedor who diagnosed generalized anxiety disorder and a December 12, 2016
report from Dr. Lopez who diagnosed high blood pressure. Clear evidence of error is intended to
represent a difficult standard.19 Even a detailed, well-rationalized medical report which would
have created a conflict in medical opinion requiring further development if submitted prior to
issuance of the denial decision, does not constitute clear evidence of error.20 It is not enough to

14

See Leona N. Travis, 43 ECAB 227, 241 (1991).

15

See Jimmy L. Day, 48 ECAB 652 (1997); Nelson T. Thompson, 43 ECAB 919, 922 (1992).

16

See Veletta C. Coleman, 48 ECAB 367, 370 (1997).

17

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 7 at Chapter 2.1602.5(a) (February 2016).

18

See Pete F. Dorso, 52 ECAB 424 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

19

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5.a (February 2016); see
Dean D. Beets, supra note 11.
20

See D.G., 59 ECAB 455 (2008); L.L., Docket No. 13-1624 (issued December 5, 2013).

4

show that evidence could be construed so as to produce a contrary conclusion. Instead, the
evidence must shift the weight in appellant’s favor.21
The narrative statements submitted by appellant merely reiterate the factual history
previously of record and the medical evidence fails to address the October 9, 2015 work incident.
Moreover, the Board finds the documentation related to appellant’s EEO grievance/settlement, her
diagnostic testing results, and the January 22, 2015 note from an unidentifiable healthcare provider
do not demonstrate clear evidence of error because they do not demonstrate that OWCP committed
an error in denying appellant’s traumatic injury claim, nor raise a substantial question as to the
correctness of OWCP’s decision. Thus, the Board finds that the evidence does not demonstrate
clear evidence of error on the part of OWCP in its December 18, 2015 decision.22
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.

21

See M.N., Docket No. 15-0758 (issued July 6, 2015).

22

See also L.M., Docket No. 14-1738 (issued March 3, 2015) (where the claimant resubmitted medical reports
previously of record, the Board found that the evidence was duplicative and failed to demonstrate clear evidence of
error).

5

ORDER
IT IS HEREBY ORDERED THAT the November 30, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 12, 2019
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Philadelphia, PA, Employer
__________________________________________

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Appearances:
Jason S. Lomax, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1587
Issued: October 24, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 1, 2014 appellant, through counsel, timely appealed the January 6, 2014
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP) denying
reconsideration.1 The latest merit decision was issued January 23, 2013, which is more than 17
months prior to the filing of the instant appeal. Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to
review the merits of this case.

1

Under the Board’s Rules of Procedure, if the date of delivery of the notice of appeal (in this case July 8, 2014)
would result in loss of appeal rights with respect to the 180-day time limitation for filing an appeal, the appeal will
be considered to be filed as of the date of postmark. 20 C.F.R. § 501.3(e) and (f). In this case, the record reflects
that the appeal was postmarked July 1, 2014, which is within 180 days of January 6, 2014.
2

5 U.S.C. §§ 8101-8193 (2006).

ISSUE
The issue is whether OWCP properly declined to reopen appellant’s case for merit review
under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
Appellant, a 42-year-old licensed practical nurse (LPN), filed a claim (Form CA-1) for a
left ankle injury that allegedly occurred on April 26, 2011. She reported having been injured by
a resident while tending to his care. Appellant later clarified that the injury was to her right
ankle. The medical evidence initially submitted did not include a specific injury-related
diagnosis other than ankle/foot joint pain (ICD-9 719.47). OWCP afforded appellant an
opportunity to supplement the record, but she did not timely comply with the May 25, 2011
request for additional medical evidence. Consequently, it denied his traumatic injury claim by
decision dated July 1, 2011.
OWCP subsequently received medical evidence indicating that appellant was treated in
the employing establishment’s emergency department on April 26, 2011 for a bruised right
ankle. It also received an April 26, 2011 employing establishment incident report which noted,
inter alia, that an 81-year-old veteran-patient became agitated and “began hitting nurses,
scratching, kicking and biting.” The incident report identified appellant as one of the LPNs
involved.
A May 4, 2011 right ankle magnetic resonance imaging (MRI) scan revealed what
appeared to be a slight degree of synovitis involving the tibiotalar and subtalar joints, as well as
the posterior tibial and peroneal tendons.
On May 24, 2012 appellant requested reconsideration.
Appellant submitted treatment notes from Dr. Alan Mlodzienski, a podiatrist. On
July 20, 2011 Dr. Mlodzienski noted that appellant continued to recover from an ankle injury.
He advised that appellant was limited to carrying 15 pounds. Dr. Mlodzienski also indicated that
standing/walking should be less than one hour per day. In his September 14, 2011 treatment
notes, he indicated that appellant was status post right ankle sprain. Dr. Mlodzienski also noted
that appellant’s MRI scan revealed mild synovitis. His October 26, 2011 treatment notes
included a diagnosis of right ankle peroneal and “PT” tendinitis. In a January 18, 2012 followup report, Dr. Mlodzienski indicated that appellant was being treated for unspecified ankle and
foot joint derangement (ICD-9 718.97).
A March 2, 2012 right ankle MRI scan revealed a small ankle and posterior subtalar
effusion with minimal synovitis. There was also evidence of remote plantar fasciitis.
Additionally, the MRI scan showed a small os trigonum likely of no clinical significance.
Appellant also submitted two April 19, 2012 prescription pad notes from Dr. J. Gregory
Bancroft, D.P.M. One of the notes recommended physical therapy and included a history of
having sustained a direct kick to the anterior lateral aspect of the right ankle. In his other

2

April 19, 2012 note, Dr. Bancroft diagnosed instability, right ankle contusion, bone bruise, right
ankle joint effusion and ligamentous injury/sprain.
In a June 14, 2012 decision, OWCP found that appellant established fact of injury.
However, the claim remained in denial status because the medical evidence was found
insufficient to establish a causal relationship between the diagnosed right ankle condition(s) and
the April 26, 2011 employment incident.
Appellant again requested reconsideration on October 25, 2012.
Appellant submitted an October 11, 2012 report from Dr. Mlodzienski who explained
that appellant sustained a right ankle injury on April 26, 2011 while assisting another nurse with
a combative patient. Dr. Mlodzienski noted that the patient kicked appellant. He also noted that
appellant was seen at the VA hospital where she was diagnosed with an ankle contusion.
Appellant was subsequently seen by her primary care physician, who ordered an MRI scan and
referred her to Dr. Mlodzienski, who noted that appellant initially presented with a painful,
edematous ankle and an MRI scan that showed fluid in the joint. Dr. Mlodzienski immobilized
the ankle and prescribed Motrin. As time went on the edema subsided, but appellant continued
to have pain and stiffness. Dr. Mlodzienski stated that he administered a series of two cortisone
injections and prescribed physical therapy. However, the treatment provided limited relief. A
follow-up MRI scan showed less fluid in the ankle joint and no other pathology, yet appellant
remained in pain. She continued to undergo physical therapy and Dr. Mlodzienski recommended
a neurologic evaluation. Dr. Mlodzienski reiterated that appellant suffered an ankle injury on
April 26, 2011.
In a January 23, 2013 decision, OWCP reviewed the merits of appellant’s claim, but
again denied modification.
On December 12, 2013 appellant’s counsel requested reconsideration of the January 23,
2013 decision. In support of the request, he submitted a July 24, 2013 report from
Dr. Mlodzienski, who indicated that appellant sustained a “right ankle injury on April 26, 2011
while assisting ... with a combative patient.” Counsel reiterated much of what he previously
discussed in his October 11, 2012 report.
By decision dated January 6, 2014, OWCP denied appellant’s request for reconsideration.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.3 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.4 One such limitation is that the application for

3

This section provides in pertinent part: “[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.” 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.607.

3

reconsideration must be sent within one year of the date of the merit decision for which review is
sought.5
A timely application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.6 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.7
ANALYSIS
The December 12, 2013 request for reconsideration neither alleged nor demonstrated that
OWCP erroneously applied or interpreted a specific point of law. Counsel also did not advance
any relevant legal arguments not previously considered by OWCP. He merely noted that he
submitted a recent narrative report from Dr. Mlodzienski in support of establishing causal
relationship. The Board finds that appellant is not entitled to a review of the merits based on the
first and second requirements under section 10.606(b)(2).8
Appellant’s counsel also failed to submit any “relevant and pertinent new evidence” with
the December 12, 2013 request for reconsideration. Dr. Mlodzienski’s July 24, 2013 report is
almost a verbatim recitation of his October 11, 2012 report, which OWCP previously found
deficient. On reconsideration, OWCP determined that merit review was unwarranted because
the newly submitted evidence was “cumulative.” Providing additional evidence that repeats or
duplicates information already in the record does not constitute a basis for reopening a claim.9
Because appellant’s counsel did not provide any new medical evidence that might arguably
impact the prior decision, appellant is not entitled to a review of the merits based on the third
requirement under section 10.606(b)(2).10 Accordingly, OWCP properly declined to reopen
appellant’s case under 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that OWCP properly denied appellant’s December 12, 2013 request for
reconsideration.

5

Id. at § 10.607(a).

6

Id. at § 10.606(b)(2).

7

Id. at §§ 10.607(b), 10.608(b).

8

Id. at § 10.606(b)(2)(i) and (ii).

9

James W. Scott, 55 ECAB 606, 608 n.4 (2004).

10

20 C.F.R. § 10.606(b)(2)(iii).

4

ORDER
IT IS HEREBY ORDERED THAT the January 6, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 24, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.Q., Appellant
and
U.S. POSTAL SERVICE, LOADING &
DISTRIBUTION CENTER, Kearney, NJ,
Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-1623
Issued: February 13, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 17, 2014 appellant, through counsel, filed a timely appeal of a June 5, 2014
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he is entitled to a greater than four
percent right lower extremity impairment for which he received a schedule award.
FACTUAL HISTORY
On December 7, 2011 appellant, then a 48-year-old mail handler, filed a traumatic injury
claim alleging that on December 6, 2011 he injured his lower back and neck when the dock plate
1

5 U.S.C. § 8101 et seq.

slammed into the edge of the trailer that he had begun to unload. OWCP accepted the claim for
lumbosacral joint sprain, temporary lumbar disc disease aggravation at L3-4 and temporary
lumbar spondylosis aggravation without myelopathy.
On October 2, 2013 appellant filed a claim for a schedule award.
In a November 26, 2013 report, Dr. Emmanuel E. Jacob, an examining Board-certified
physiatrist, conducted a physical examination for purposes of an impairment rating. He
reviewed the medical and employment injury history and diagnosed L3-4 lumbar displacement,
L3-4 lumbar interbody fusion and L4 right root lumbar radiculopathy. Using Table 16-11, page
533 of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides), Dr. Jacob considered appellant’s sensory and motor
deficits for L4 nerve root and determined a severity of 1 or mild and placed into class 1. He then
used Table 16-12, pages 534-35 to find a one percent sensory deficit and a five percent motor
deficit. Using the net adjustment formula, Dr. Jacob assigned a grade modifier 1 for functional
history, he found the physical examination grade modifier was not relevant, and assigned a grade
modifier of 1 for clinical studies, which resulted in a final net adustment of zero. As the next
adjustment was zero, he found no change in impairment ratings. Dr. Jacob then combined the
impairment sensory and motor impairment ratings for the L4, nerve root to find a total six
percent right lower extremity impairment.
On March 5, 2014 an OWCP medical adviser reviewed the accepted conditions in
Dr. Jacob’s November 26, 2013 impairment rating report. On page two of the report, the
medical adviser opined that appellant had a four percent right lower extremity impairment while
on page six he concluded the permanent impairment to be six percent.
On June 5, 2014 OWCP requested clarification from the medical adviser as to whether
appellant had four percent right lower extremity impairment or six percent right lower extremity
impairment. No response was received.
By decision dated June 5, 2014, OWCP granted appellant a schedule award for a four
percent permanent impairment of the right lower extremity.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 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 to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the

2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

2

appropriate standard for evaluating schedule losses.4 Effective May 1, 2009, OWCP adopted the
sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that
date.5 The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).6
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment class for the Class of Diagnosis (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7
The schedule award provision of FECA8 and its implementing regulations9 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 to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.10 Effective May 1, 2009, OWCP adopted
the sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that
date.11 The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).12
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition, which is then adjusted by grade modifiers based

4

Id. See C.M., Docket No. 09-1268 (issued January 22, 2010); Billy B. Scoles, 57 ECAB 258 (2005).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claim,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
6

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
7

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

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id. See C.M., Docket No. 09-1268 (issued January 22, 2010); Billy B. Scoles, supra note 4.

11

Supra note 5.

12

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.

3

on GMFH, GMPE and GMCS. The net adjustment formula is (GMFH - CDX) + (GMPE CDX) + (GMCS - CDX).13
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.14
ANALYSIS
The sixth edition of the A.M.A., Guides provide that lower extremity impairments be
classified by diagnosis which is then adjusted by grade modifiers according to the formula noted
above.15 Appellant’s accepted diagnosed conditions were lumbosacral joint sprain, temporary
lumbar disc disease aggravation at L3-4 and temporary lumbar spondylosis aggravation without
myelopathy. The Board finds that this case is not in posture for decision.
The evidence relevant to the impairment rating for appellant’s right lower extremity
included reports from Dr. Jacob and an OWCP medical adviser. Dr. Jacob concluded that
appellant had a six percent right lower extremity impairment using Table 16-11, page 533 and
Table 16-12, pages 534-35 to determine his sensory and motor deficits. The medical adviser
reviewed Dr. Jacob’s report and provided right lower extremity impairment ratings of four
percent and six percent. OWCP requested clarification from the medical adviser, which it had
not received when issuing the June 5, 2014 schedule award decision.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter.16 While appellant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.17 Accordingly, once
OWCP undertakes to develop the medical evidence further, it has the responsibility to do so in
the proper manner.18 As it undertook development of the medical evidence by requesting
clarification from the medical adviser regarding the extent and degree of right lower extremity
impairment, it had an obligation to secure the report adequately addressing the relevant issue
prior to issue a decision.19

13

Supra note 7.

14

See supra note 5 at Chapter 2.808.6(d) (January 2010). See C.K., Docket No. 09-2371 (issued August 18,
2010); Frantz Ghassan, 57 ECAB 349 (2006).
15

Supra notes 8, 9.

16

R.B., Docket No. 08-1662 (issued December 18, 2008); A.A., 59 ECAB 726 (2008); Donald R. Gervasi, 57
ECAB 281 (2005); Vanessa Young, 55 ECAB 575 (2004).
17

D.N., 59 ECAB 576 (2008); Richard E. Simpson, 55 ECAB 490 (2004).

18

See A.A., 59 ECAB 726 (2008); Melvin James, 55 ECAB 406 (2004).

19

Id.; see also Peter C. Belkind, 56 ECAB 580 (2005).

4

CONCLUSION
The Board finds that this case is not in posture for decision. The case is remanded for
further evidentiary development, to be followed by the issuance of a de novo decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 5, 2014 is set aside and the case remanded for further
proceedings consistent with the above opinion.
Issued: February 13, 2015
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5