United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lancaster, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-1728
Issued: March 19, 2019

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 September 13, 2018 appellant, through counsel, filed a timely appeal from an
August 17, 2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.3

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

5 U.S.C. § 8101 et seq.

3
The Board notes that following the August 17, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that her right knee
condition was causally related to the accepted January 16, 2018 employment incident.
FACTUAL HISTORY
On January 16, 2018 appellant, then a 38-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sustained a right knee injury after slipping on an icy sidewalk
while in the performance of duty. On the reverse side of the claim form the employing
establishment noted that she stopped work on January 16, 2018.
In a report dated January 16, 2018, Megan M. Kegley, a nurse practitioner, indicated an
impression of acute right knee pain.
By development letter dated January 25, 2018, OWCP advised appellant of the type of
medical and factual evidence needed to establish her claim, including a comprehensive narrative
medical report from a qualified physician. It also provided her with a questionnaire for completion.
OWCP afforded appellant 30 days to submit the necessary evidence.
In a report dated January 16, 2018, Ms. Kegley indicated that appellant had knee pain and
that she should not return to work until she underwent a magnetic resonance imaging (MRI) scan.
In a report dated January 31, 2018, Jennifer C. Daniel, a nurse practitioner, indicated that
appellant had recurrent right knee instability. She noted that appellant should remain off work
unless she was able to perform sedentary work.
On February 1, 2018 Ms. Kegley noted that appellant’s history of injury consisted of knee
hyperextension with instability. She related that appellant should not return to work for two weeks.
In a supplemental statement dated February 2, 2018, appellant explained that her injury
occurred when she ascended a staircase to a mailbox, placed mail in the mailbox, descended the
stairs, but slipped and hit her knee as she stepped onto the sidewalk. She noted that she heard a
pop, and her knee became weak and unstable.
In a report dated February 19, 2018, Dr. Donald Hamner, Board-certified in family practice
and geriatric medicine, noted a diagnosis of lateral derangement of the right knee.
By decision dated February 28, 2018, OWCP accepted that the employment incident
occurred as alleged, but denied appellant’s claim finding that she had not submitted any medical
evidence containing a medical diagnosis in connection with the accepted January 16, 2018
employment incident. It concluded, therefore, that she had not met the requirements to establish
an injury as defined by FECA.
In a form report dated March 5, 2018, Dr. Hamner noted that appellant had right knee
instability after slipping on ice on January 16, 2018. He indicated that she should not return to
work until April 5, 2018.

2

In a report dated March 5, 2018, Ms. Daniel examined appellant and noted an impression
of internal derangement of appellant’s right knee. She related that appellant should remain off
work until she could be evaluated by an orthopedic surgeon.
On March 28, 2018 appellant requested a review of the written record before an OWCP
hearing representative.
In a letter dated March 22, 2018, received by OWCP on April 2, 2018, Ms. Daniel
indicated that Dr. Hamner had cosigned her reports on February 20, 2018.
In a medical report and a work excuse note dated April 9, 2018, Ms. Daniel related that
appellant suffered from an unspecified internal derangement of her right knee, and that appellant
should be excused from work for one month. She provided the same information on reports dated
May 9 and June 6, 2018. Ms. Daniel indicated that appellant could not return to work until
July 9, 2018.
By decision dated August 17, 2018, an OWCP hearing representative affirmed the
February 28, 2018 decision as modified. She indicated that appellant sustained a diagnosed
condition. However, the hearing representative found that appellant had not submitted rationalized
medical opinion evidence from a physician which established causal relationship between the
diagnosed condition and the accepted January 16, 2018 employment incident.
LEGAL PRECEDENT
A claimant seeking benefits under FECA4 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged, and that any specific
condition or disability claimed is causally related to the employment injury.5
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Generally, fact of
injury consists of two components that must be considered in conjunction with one another. The
first component is whether the employee actually experienced the employment incident that
allegedly occurred.6 The second component is whether the employment incident caused a personal
injury.7 An employee may establish that an injury occurred in the performance of duty as alleged,
but fail to establish that the disability or specific condition for which compensation is being
claimed is causally related to the injury.8

4

See supra note 2.

5

20 C.F.R. § 10.115(e), (f); T.O., Docket No. 18-1012 (issued October 29, 2018); see Jacquelyn L. Oliver, 48
ECAB 232, 235-36 (1996).
6

See T.O., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

7

A.J., Docket No. 18-1116 (issued January 23, 2019); John J. Carlone, 41 ECAB 354 (1989).

8

K.C., Docket No. 17-1693 (issued October 29, 2018); Shirley A. Temple, 48 ECAB 404, 407 (1997).

3

Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment incident must be based on a
complete factual and medical background.10 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and the
employment incident.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her right
knee condition was causally related to the accepted January 16, 2018 employment incident.
In support of her claim, appellant initially submitted a series of reports from Ms. Kegley
and Ms. Daniel, nurse practitioners. Certain healthcare providers such as physician assistants,
nurse practitioners, physical therapists, and social workers are not considered “physician[s]” as
defined under FECA.12 Consequently, their medical findings and/or opinions are of no probative
value and will not suffice for purposes of establishing entitlement to compensation benefits.13
The reports of record from Ms. Daniel and cosigned by Dr. Hamner, are sufficient to
establish a diagnosis of an internal derangement right knee condition.14 However, appellant has
not met her burden of proof to establish that this diagnosed condition was causally related to the
accepted January 16, 2018 employment incident. In his March 5, 2018 report, Dr. Hamer noted
that she had slipped on ice on January 16, 2018, but he provided no opinion on the issue of causal
relationship.
Since appellant has not submitted rationalized medical evidence explaining how her
diagnosed internal derangement of the right knee was causally related to her accepted January 16,
2018 employment incident, she has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

9

See K.C., id.; Robert G. Morris, 48 ECAB 238 (1996).

10

See A.J., supra note 7; Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

Id.

12

Section 8101(2) of FECA provides that medical opinion, in general, can only be given by a qualified physician.
This section defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by state law. See also J.R., Docket No. 180801 (issued November 26, 2018).
13

B.J., Docket No. 18-1276 (issued February 4, 2019); see David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006); see
also S.J., Docket No. 17-0783 n.2 (issued April 9, 2018) (nurse practitioners are not considered physicians under
FECA).
14

A medical opinion constitutes competent medical evidence if it was cosigned by a physician as defined under
FECA. See E.S., Docket No. 17-1598 (issued November 8, 2018).

4

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her right
knee condition was causally related to the accepted January 16, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 17, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 19, 2019
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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 15-1545
Issued: October 28, 2015

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 July 10, 2015 appellant filed a timely appeal from a February 19, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed since the last merit decision dated December 2, 2011, 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.2
ISSUE
The issue is whether OWCP properly determined that appellant’s application for
reconsideration was untimely filed and failed to show clear evidence of error.

1
2

5 U.S.C. § 8101 et seq.

Appellant submitted additional evidence on appeal. The Board can review only evidence that was before
OWCP at the time of the final decision on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
The case has been before the Board on prior appeals. In a decision dated October 17,
2000, the Board remanded the case for further development with respect to appellant’s claim for
a schedule award for permanent impairment of the left leg.3 By decision dated July 16, 2004, the
Board found appellant had submitted an application for reconsideration that was sufficient to
require a merit review of the claim, regarding the degree of permanent impairment of appellant’s
right arm.4 On the last appeal, the Board affirmed a December 19, 2012 OWCP decision finding
that appellant’s reconsideration request was untimely filed and failed to show clear evidence of
error in a December 2, 2011 OWCP decision which denied an additional schedule award for the
left leg or right arm.5
As the Board noted in its prior decisions, OWCP accepted that appellant sustained
injuries in a motor vehicle accident on March 4, 1988, while in the performance of duty, in his
capacity as a distribution clerk. The accepted conditions initially were left femur fracture, left
knee laceration, left orbit fracture, and right wrist fracture.6 Appellant also had an occupational
disease claim filed on March 8, 2007 accepted for bilateral calcifying tendinitis of the shoulder in
OWCP File No. xxxxxx855.
With respect to permanent impairment to the left leg, OWCP issued a schedule award for
25 percent impairment on September 11, 1995, 15 percent on April 22, 1997, 18 percent on
September 25, 1998, and an additional 8 percent on January 25, 2001, for a total of 66 percent.
As to the right arm, the record indicates that it issued a schedule award for 30 percent
impairment on September 19, 1995, and an additional 5 percent on December 29, 2004 for a total
of 35 percent. The permanent impairment to the right arm was based on impairment to the right
wrist.
OWCP referred appellant for a second opinion examination by Dr. Fernando Rojas, an
orthopedic surgeon. In a report dated January 29, 2010, Dr. Rojas provided results on
examination, including range of motion for the shoulders. He completed a permanent
impairment worksheet on March 30, 2010, opining that appellant had 16 percent permanent right
arm impairment based on carpal tunnel syndrome and 75 percent permanent left leg impairment.
In a report dated May 15, 2010, an OWCP medical adviser reviewed Dr. Rojas’ report and
opined that the impairment to the left upper extremely was 18 percent and 34 percent to the left
leg.
By decision dated September 14, 2010, OWCP determined that appellant was not entitled
to an increased schedule award for the right arm or either leg. In a decision dated September 15,
3

Docket No. 99-727 (issued October 17, 2000).

4

Docket No. 04-871 (issued July 16, 2004).

5

Docket No. 13-1255 (issued December 3, 2013).

6

Subsequent development of the record established that additional conditions were accepted: general anxiety
disorder, right wrist arthritis, bilateral carpal and cubital tunnel syndromes, cervical radiculopathy, thoracic myositis,
bilateral shoulder bursitis or impingement, and lumbar para-radiculopathy.

2

2010, it issued a schedule award for 18 percent permanent impairment to the left arm. The
period of the award was for 56.16 weeks from August 29 to September 25, 2010.
On September 7, 2011 OWCP received a request for reconsideration of the
September 14, 2010 decision. Appellant submitted a July 30, 2011 report from Dr. Eric Javier, a
physiatrist, who referred to the right shoulder range of motion results from Dr. Rojas. Dr. Javier
opined that appellant had 26 percent permanent right arm impairment based on loss of shoulder
range of motion. He also referred to 16 percent whole person impairment based on the right
shoulder, and found that appellant had 16 percent permanent right upper extremity impairment
for which he had not previously been compensated.
By decision dated December 2, 2011, OWCP reviewed the merits of the claim and denied
modification. It found the evidence did not establish an increased schedule award greater than
that previously awarded.7 OWCP found that appellant had already received schedule awards for
35 percent right arm permanent impairment and 66 percent left leg permanent impairment.
OWCP received a request for reconsideration on December 6, 2012. As noted above, the
Board on December 3, 2013 in Docket No. 13-1255, affirmed a December 19, 2012 OWCP
decision finding that appellant’s request for reconsideration was untimely filed and failed to
show clear evidence of error.
The record indicates that OWCP referred appellant for a second opinion examinations by
Dr. Jose Rios-Robles, a psychiatrist, and Dr. Rojas. OWCP requested the physicians discuss
whether appellant had continuing employment-related conditions or disability. In a report dated
August 11, 2014, Dr. Rios-Robles diagnosed major depressive disorder with anxiety features.
He noted that appellant’s psychiatric condition may be aggravated by his physical condition, but
there was no direct relationship between appellant’s job and his emotional condition. In a report
dated August 29, 2014, Dr. Rojas opined that appellant was disabled for his date-of-injury
position, but could work sedentary duty. Neither physician discussed permanent impairment.
Dr. Rojas completed a duty status report (Form OWCP-5c) diagnosing right shoulder bursitis and
providing work restrictions.
Appellant submitted an August 24, 2014 report from Dr. Dwight Santiago, an internist,
on September 9, 2014. Dr. Santiago opined that appellant was permanently disabled. He did not
discuss a permanent impairment rating.
On December 2, 2014 OWCP received a November 22, 2014 application for
reconsideration. Appellant stated that it had erroneously interpreted Dr. Javier’s July 30, 2011
report. He argued that Dr. Javier awarded 35 percent for the right wrist and an additional 16
percent for the right shoulder. Appellant also referred to the reports of Dr. Rojas and
Dr. Santiago. As to medical evidence, he resubmitted the following: a September 16, 1999
shoulder sonogram; a brief note dated March 6, 2002, diagnosing right shoulder tendinitis, and
7

The decision incorrectly stated that the reconsideration request received on September 7, 2011 requested review
of the September 15, 2010 decision. Appellant requested review of a schedule award with respect to the right arm
and the legs, which was the subject of the September 14, 2010 decision. The December 2, 2011 decision does
address the medical evidence submitted with respect to a right arm permanent impairment.

3

right wrist capsulitis;8 an October 12, 2006 report from Dr. Efrain Asmar, an orthopedic surgeon,
diagnosing bilateral shoulder impingement syndrome and shoulder tendinitis; the July 30, 2011
report from Dr. Javier; and the August 29, 2014 Form OWCP-5c report from Dr. Rojas.
Appellant also submitted a brief note dated May 6, 2002 from Dr. Jan Zegarra, an orthopedic
surgeon, providing diagnoses for the right shoulder and wrist.
By decision dated February 19, 2015, OWCP found that appellant’s application for
reconsideration was untimely filed and failed to show clear evidence of error by OWCP. It was
therefore, insufficient to warrant reopening the case for merit review.
LEGAL PRECEDENT
FECA provides that OWCP may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision.9 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.”10
According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP
decision as a matter of right.11 This section vests OWCP with discretionary authority to
determine whether it will review an award for or against compensation.12 OWCP, through
regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C.
§ 8128(a) of FECA. As one such limitation, 20 C.F.R. § 10.607 provides that an application for
reconsideration must be received within one year of the date of OWCP decision for which
review is sought.13 OWCP will consider an untimely application only if the application
demonstrates clear evidence of error on the part of OWCP in its most recent merit decision. The
evidence must be positive, precise, and explicit and must manifest on its face that OWCP
committed an error.14
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.15 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
8

The signature of the physician is illegible.

9

5 U.S.C. § 8128(a).

10

20 C.F.R. § 10.605.

11

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

12

Under section 8128 of FECA, “[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.”
13

20 C.F.R. § 10.607 (2012).

14

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

15

Annie L. Billingsley, 50 ECAB 210 (1998).

4

establish clear evidence of error.16 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.17 A determination of whether the claimant has
established clear evidence of error entails a limited review of how the evidence submitted with
the reconsideration request bears on the evidence previously of record.18
ANALYSIS
In the present case, appellant submitted a November 22, 2014 letter requesting
reconsideration which was received by OWCP on December 2, 2014. As the Board noted in its
prior decision, there are circumstances when a claimant submits a request for reconsideration of
a schedule award decision, but is actually seeking an increased schedule award.19 When a
claimant does not submit any new evidence regarding permanent impairment, it may properly be
considered a request for reconsideration.20 Since appellant did not submit any new evidence
with respect to an increased permanent impairment, and the record does not contain any new
evidence with respect to a permanent impairment, the November 22, 2014 letter is considered a
reconsideration request of the last merit decision dated December 2, 2011. As the November 22,
2014 letter was received more than one year after the December 2, 2011 decision, it is therefore
an untimely request for reconsideration.
As an untimely request, appellant must show clear evidence of error. He has resubmitted
the July 30, 2011 report from Dr. Javier. Appellant argues that his prior schedule awards for the
right arm were based on the right wrist, while Dr. Javier discussed the right shoulder. He is
correct that the prior schedule awards were based on the right wrist. However, this does not
itself establish clear evidence of error by OWCP in determining appellant was not entitled to an
additional schedule award for the right arm. The evidence must be of such probative value that it
prima facie shifts the weight to appellant. In this regard, Dr. Javier’s report does not meet such a
standard. He refers to range of motion results not based on his own examination, but an
examination by Dr. Rojas more than a year earlier. Dr. Javier does not discuss use of range of
motion for impairment ratings under the A.M.A., Guides, or provide additional explanation.21
He also refers to a whole person impairment, which is not used under FECA.22 In addition, there
is no discussion of causal relationship between any impairment and the employment injuries.
Dr. Javier does not explain why he believed a right shoulder impairment was causally related to
appellant’s federal employment.

16

Jimmy L. Day, 48 ECAB 652 (1997).

17

Id.

18

K.N., Docket No. 13-911 (issued August 21, 2013); J.S., Docket No. 10-385 (issued September 15, 2010).

19

See Linda T. Brown, 51 ECAB 115 (1999).

20

See W.J., Docket No. 12-1746 (issued February 5, 2013).

21

See A.M.A., Guides 461.

22

Janae J. Triplette, 54 ECAB 792 (2003).

5

The clear evidence of error standard is a difficult one to meet. For the reasons discussed,
appellant did not show clear evidence of error with respect to a right arm permanent impairment.
On appeal, appellant argues that there was clear evidence of error by OWCP. For the
reasons noted, the Board finds he did not establish clear evidence of error.
The Board reiterates that a claimant may at any time submit new and relevant medical
evidence to OWCP with respect to an increased schedule award, and receive a decision on the
merits.
CONCLUSION
The Board finds 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 February 19, 2015 is affirmed.
Issued: October 28, 2015
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Gaithersburg, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 06-694
Issued: May 2, 2007

Case Submitted on the Record

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

JURISDICTION
On February 1, 2006 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated December 21, 2005. Under 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 the Office properly terminated appellant’s compensation benefits on
the grounds that she refused an offer of suitable work.
FACTUAL HISTORY
On January 17, 1996 appellant, a 40-year-old mail handler, injured her right wrist and
right elbow while pulling mail. She filed a claim for benefits, which the Office accepted for
lateral epicondylitis, right elbow, epicondyle release surgery and stellate ganglion blocks.
Appellant returned to work on April 8, 1996 on limited duty and stopped working on

August 20, 1996. The Office paid appropriate compensation.1 Appellant returned to work with
the employing establishment on September 27, 1997, but went off work again on
November 12, 1998. The Office expanded appellant’s claim to accept the condition of left carpal
tunnel syndrome on November 16, 1998, for which she underwent surgery on January 18, 1999.
The Office subsequently authorized a right shoulder arthroscopy for right rotator cuff repair with
subacromial decompression and distal clavicle excision. Dr. William B. Wolf, Board-certified in
orthopedic surgery and the attending physician, performed this procedure on August 31, 2000.
Appellant has not returned to work since November 11, 1998.
In a report dated September 15, 2003, Dr. Wolf stated that appellant had some occasional
catching in the front of her right shoulder but was essentially doing well a few years after her
shoulder surgery. Appellant stated that she had good range of motion and was able to return to
work notwithstanding the occasional catching in her shoulder; she denied having numbness and
tingling in her hands. Dr. Wolf noted no swelling, edema or erythema or unusual adenopathy,
and stated that appellant had full range of motion of the neck with no sternoclavicular or
acromioclavicular tenderness. He advised that she was able to return to unrestricted duty, stated
that she was able to “lift whatever she wants” and opined that the occasional catching in her
shoulder would resolve.
On August 6, 2004 the employing establishment offered appellant a job as a mail
processor/machine operator based on Dr. Wolf’s September 15, 2003 report and work capacity
evaluation. The job description indicated that appellant would operate mail processing machines
and other specified routine maintenance tasks, as necessary. It stipulated that appellant could
continuously lift up to 50 pounds, sit, stand, walk, climb, bend/twist, push/pull, reach above the
shoulder, operate a motor vehicle and perform simple grasping and keyboarding for eight hours
per day.
In a report dated August 12, 2004, Dr. Barry P. Boden, Board-certified in orthopedic
medicine and the new attending physician, stated that appellant reported complaints of right
shoulder pain. He noted that appellant experienced discomfort with overhead activity and
extension mostly along the inferolateal aspect of the shoulder. Dr. Boden related that appellant
believed Dr. Wolf, the previous treating physician, did not respond to her complaints of shoulder
pain, which had been persistent since the August 2000 surgery. He stated that x-rays of her right
shoulder revealed a subacromial decompression and distal clavicle excision. In addition,
Dr. Boden noted an irregularity at the anterior acromion where the surgery was performed,
indicating possible loose acromion or loose fragment.
Dr. Boden advised that appellant was experiencing right shoulder residual pain, status
post decompression. He administered a cortisone shot to alleviate the pain and stated that, if her
symptoms did not improve within the next month, she would have a magnetic resonance imaging
(MRI) scan and computerized axial tomography scan performed prior to her next appointment.

1

These facts are set forth in a Board decision dated February 16, 1999, Docket No. 99-2584, and are herein
incorporated by reference. That decision adjudicated whether an overpayment was made to appellant, an issue
which has no bearing on the instant case.

2

A work capacity evaluation form, dated August 12, 2004, signed by Dr. Boden indicated
that appellant was restricted from lifting more than 20 pounds, occasionally. Dr. Boden
indicated that these restrictions were temporary.
In a report dated September 17, 2004, Dr. Boden stated:
“[Appellant] returns to the office ... for reevaluation. The patient is status post right
shoulder decompression by Dr. Wolf in 2000. She also underwent carpal tunnel release
... on the right side. [Appellant] underwent a cortisone injection and was referred to
physical therapy. The patient states that she did not receive any relief from either
treatment. [Appellant] complains of persistent pain in the anterior aspect of the shoulder.
She is also experiencing discomfort in the right trapezial area. In addition [appellant]
reports occasional cold sensation in the right hand. She previously had an MRI [scan] of
her neck within the last year which showed a disc bulge but no herniation.”
Dr. Boden concluded:
“The assessment plan is that [appellant] is suffering from right shoulder pain consistent
with persistent impingement syndrome.... The patient is also experiencing trapezial
spasm. [Appellant] was referred for an MRI [scan] of her right shoulder and will return
with the films of her neck and shoulder. She was also referred for an EMG to rule out a
peripheral versus cervical radiculopathy. [Appellant] will follow up in the office in three
to four weeks with the results.”
By letters dated January 24 and July 7, 2005, the Office advised appellant that a suitable
position was available and that pursuant to 5 U.S.C. § 8106(c)(2),2 she had 30 days to either
accept the job or provide a written explanation for refusing the offer. The Office advised her that
it would be terminating her compensation pursuant to section 8106(c)(2) based on her refusal to
accept a suitable position which reflected her ability to work as a mail processor/machine
operator for eight hours per day. The Office stated that it had reviewed the employing
establishment’s job offer and found that it was in accordance with the work restrictions outlined
by Dr. Boden in his August 12, 2004 report. The Office advised that, if appellant refused the job
without justifiable cause or failed to report to work within 30 days, it would terminate her
compensation.
By decision dated December 21, 2005, the Office terminated appellant’s compensation
benefits on the grounds that she refused an offer of suitable work.
LEGAL PRECEDENT
Once the Office accepts a claim it has the burden of justifying termination or
modification of compensation benefits. Under section 8106(c)(2) of the Federal Employees’
Compensation Act3 the Office may terminate the compensation of an employee who refuses or

2

5 U.S.C. § 8106(c)(2).

3

5 U.S.C. § 8101 et seq.

3

neglects to work after suitable work is offered to, procured by, or secured for the employee.4
Section 10.517 of the Office’s regulations provides that an employee who refuses or neglects to
work after suitable work has been offered or secured has the burden of showing that such refusal
or failure to work was reasonable or justified and shall be provided with the opportunity to make
such a showing before a determination is made with respect to termination of entitlement to
compensation.5
Before compensation can be terminated, however, the Office has the burden of
demonstrating that the employee can work; setting for the specific restrictions, if any, on the
employee’s ability to work, and has the burden of establishing that a position has been offered
within the employee’s work restrictions, setting forth the specific job requirements of the
position.6 However, all of appellant’s medical conditions, whether work related or not, must be
considered in assessing the suitability of the position.7
To justify termination, the Office must show that the work offered was suitable and must
inform appellant of the consequences of refusal to accept such employment.8 This burden of
proof is applicable if the Office terminates compensation under 5 U.S.C. § 8106(c) for refusal to
accept suitable work.
ANALYSIS
The determination of whether an employee has the physical ability to perform a modified
position offered by the employing establishment is primarily a medical question that must be
resolved by the medical evidence.9 In the instant case, Dr. Wolf indicated in his September 15,
2003 report and work capacity evaluation that appellant was ready to return to work with no
limitations, other than the 50-pound lifting restriction. The employing establishment offered
appellant a job on August 6, 2004 as a mail processor/machine operator based on Dr. Wolf’s
report and work capacity evaluation. However, appellant subsequently submitted an August 12,
2004 report from her new treating physician, Dr. Boden, which indicated that she was
experiencing discomfort with overhead activity and extension in her right shoulder. Due to these
increasing symptoms in her work-related right shoulder condition, Dr. Boden increased
appellant’s lifting restriction to 20 pounds. He stated that x-rays of her right shoulder revealed a
subacromial decompression and distal clavicle excision, and noted “irregularity” in the anterior
acromion where the surgery had been performed, which indicated possible loose acromion or
fragments. In his September 17, 2004 report, Dr. Boden indicated that appellant had not
received any relief from physical therapy or cortisone injection and continued to experience
4

Patrick A. Santucci, 40 ECAB 151 (1988); Donald M. Parker, 39 ECAB 289 (1987).

5

20 C.F.R. § 10.517; see also Catherine G. Hammond, 41 ECAB 375 (1990).

6

Linda Hilton, 52 ECAB 476, 481 (2001).

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.4(b)(4) (December 1993).
8

See John E. Lemker, 45 ECAB 258 (1993).

9

Robert Dickinson, 46 ECAB 1002 (1995).

4

persistent pain in the anterior aspect of the shoulder, discomfort in the right trapezial area, and
occasional cold sensation in the right hand. He stated that appellant was referred for an MRI
scan of her right shoulder and neck and for an EMG to rule out a peripheral versus cervical
radiculopathy.
Once appellant submitted this additional medical evidence indicating that she had greater
physical restrictions than those upon which the mail processor/machine operator position was
based, the offered position was no longer suitable. The Office was required to consider those
conditions, regardless of etiology, prior to the July 2005 determination that the job offer was
suitable.10 The Office, however, failed to consider appellant’s increased lifting restriction,
worsening symptomatology and referral for further diagnostic testing in determining whether the
position it offered to appellant was suitable.
As it is the Office’s burden of proof to establish that appellant refused a suitable position,
the Office did not meet its burden of proof in this case to terminate appellant’s compensation
benefits pursuant to 5 U.S.C. § 8106.11 Accordingly, the Board will reverse the Office’s
December 21, 2005 decision.
CONCLUSION
The Board finds that the Office did not meet its burden to terminate appellant’s
compensation benefits pursuant to 5 U.S.C. § 8106.

10

See 20 C.F.R. § 10.124(c).

11

Barbara R. Bryant, 47 ECAB 715 (1996).

5

ORDER
IT IS HEREBY ORDERED THAT the December 21, 2005 decision of the Office of
Workers’ Compensation Programs be reversed.
Issued: May 2, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
U.S. POSTAL SERVICE, Berkley, CA, Employer
__________________________________________

)
)
)
)
)
)
)

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

Docket No. 07-555
Issued: May 21, 2007

Case Submitted on the Record

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

JURISDICTION
On December 21, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated November 1, 2006 which denied his request for
reconsideration on the grounds that it was untimely filed and failed to establish clear evidence of
error. Because more than one year has elapsed from the last merit decision dated September 19,
2005 to the filing of this appeal on December 21, 2006, the Board lacks jurisdiction to review the
merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).1
ISSUE
The issue on appeal is whether the Office properly denied appellant’s request for
reconsideration as untimely filed and lacking clear evidence of error.

1

The record includes evidence received after the Office issued the November 1, 2006 decision. The Board
cannot consider new evidence for the first time on appeal. 20 C.F.R. § 501.2(c).

FACTUAL HISTORY
On March 30, 2002 appellant, then a 34-year-old mail carrier, filed an occupational
disease claim alleging that beginning May 17, 2001 he experienced pain in his lower back and
legs which he attributed to lifting heavy loaded trays of mail. The Office accepted the claim for
lumbosacral strain as a condition caused by factors of his federal employment on July 23, 2002.
On December 12, 2003 appellant filed a claim for compensation alleging that he was
disabled from January 2 through December 12, 2003. On January 14, 2004 he filed a claim for
compensation alleging that he was disabled and unable to work from January 2, 2003 through
January 13, 2004.
By decision dated February 2, 2004, the Office denied appellant’s claim for
compensation on the basis that the evidence submitted was not sufficient to establish that he was
totally disabled for his accepted condition during the claim time period.
In a letter dated April 5, 2004, appellant requested reconsideration. Additional medical
evidence had been received by the Office after the February 2, 2004 decision.
By decision dated June 18, 2004, the Office issued a merit decision but declined to
modify the prior decision.
In a June 13, 2005 letter, appellant requested reconsideration. Additional evidence had
been received by the Office after the June 18, 2004 decision.
By decision dated September 19, 2005, the Office issued a merit decision which denied
modification of the prior decision based on the insufficiency of the additional evidence.
Following the last merit decision dated September 19, 2005, the Office continued to
receive “billing copies” of progress reports from appellant’s treating physician, Dr. Vatche
Cabayan, a Board-certified orthopedic surgeon. These progress reports did not address
appellant’s claimed period of disability, January 2 through December 12, 2003.
By letter dated September 19, 2006, appellant requested reconsideration. Appellant’s
request was postmarked September 29, 2006.
By decision dated November 1, 2006, the Office issued a nonmerit decision denying
reconsideration on the grounds that the request for reconsideration was untimely and did not
establish clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act2 does not entitle a claimant
to a review of an Office decision as a matter of right.3 This section vests the Office with
2

5 U.S.C. § 8128(a).

3

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

2

discretionary authority to determine whether it will review an award for or against
compensation.4 The Office, through regulation, has imposed limitations on the exercise of its
discretionary authority under 5 U.S.C. § 8128(a).5 As one such limitation, the Office has stated
that it will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.6 The Board has found that the
imposition of this one-year limitation does not constitute an abuse of the discretionary authority
granted the Office under 5 U.S.C. § 8128(a).7
The Board has held, however, that a claimant has a right under 5 U.S.C. § 8128(a) to
secure review of an Office decision upon presentation of new evidence that the decision was
erroneous.8 In accordance with this holding, the Office has stated in its procedure manual that it
will reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation set
forth in 20 C.F.R. § 10.607(a), if the claimant’s application for review shows “clear evidence of
error” on the part of the Office.9
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.10 The evidence must be positive, precise and explicit and must
be manifest on its face that the Office committed an error.11 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.12 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.13 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.14 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
4

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.”
5

The Office has stated that a claimant may obtain review of the merits of a claim by: (1) showing that the Office
erroneously applied or interpreted a specific point of law; (2) advancing a relevant legal argument not previously
considered by the Office; or (3) constituting relevant and pertinent evidence not previously considered by the Office;
see 20 C.F.R. § 10.606.
6

20 C.F.R. § 10.607.

7

See Leon D. Faidley, Jr., supra note 3.

8

Leonard E. Redway, 28 ECAB 242 (1977).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (May 1996). See
also 20 C.F.R. § 10.607(b).
10

See Dean D. Beets, 43 ECAB 1153 (1992).

11

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

12

See Jesus D. Sanchez, 41 ECAB 964 (1990).

13

See Leona N. Travis, supra note 11

14

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

3

a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office decision.15 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office improperly denied merit review in the face of such
evidence.16
ANALYSIS
The Office issued a decision on November 1, 2006 denying reconsideration of its prior
September 19, 2005 decision on the grounds that appellant’s request for reconsideration was
untimely filed. Applications for review of a decision must be filed within one year of the date of
the decision; therefore, appellant had until September 19, 2006 to file his request.17 Appellant’s
request form was dated September 19, 2006.
Appellant’s request was postmarked
September 29, 2006. The Office’s procedure manual, Chapter 2.1602.3(b)(1), provides that
timeliness for a reconsideration request is determined by the postmark on the envelope.18 As the
request for reconsideration was more than one year after the merit decision, it was properly
found to be untimely pursuant to 10.607(a).
The Office must thereafter make a determination if clear evidence of error was
demonstrated by the untimely request for reconsideration. Appellant did not submit the type of
positive, precise and explicit evidence which manifests on its face that the Office committed an
error in denying wage-loss compensation during the claimed period in 2003. Appellant
submitted progress reports pertaining to medical examinations performed in 2005 and 2006. The
evidence was not relevant value as it did not provide any opinion as to appellant’s condition
during the claimed time period; therefore, there was no probative medical evidence to shift the
weight of the evidence in favor of the appellant. Appellant did not submit evidence clearly
showing that the Office’s determination was improper. Appellant has not demonstrated clear
evidence of error on the part of the Office in issuing its September 19, 2005 decision.
CONCLUSION
The Board finds that the Office properly determined that appellant’s request for
reconsideration was untimely filed and did not establish clear evidence of error.

15

Leon D. Faidley, Jr., supra note 3.

16

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

17

20 C.F.R. § 10.607.

18

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b)(1)
(January 2004) (“[T]he application will be deemed timely if postmarked by the U.S. Postal Service within the time
period allowed.”)

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 1, 2006 is affirmed.
Issued: May 21, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phillipsburg, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0745
Issued: February 6, 2019

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 February 23, 2018 appellant, through counsel, filed a timely appeal from an October 26,
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.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant has met her burden of proof to establish more than 14 percent
permanent impairment of the right upper extremity and 10 percent permanent impairment of the
left upper extremity, for which she previously received schedule award compensation.
FACTUAL HISTORY
On November 5, 2010 appellant, then a 54-year-old custodian, filed a traumatic injury
claim (Form CA-1) alleging that, earlier that day, she tripped and fell forward over a bucket of
mail, striking her head, face, and right shoulder while in the performance of duty. She stopped
work on the date of injury and was treated at a hospital emergency department. On December 21,
2010 OWCP accepted the claim for facial contusion. It paid appellant wage-loss compensation
commencing January 8, 2011.4
On November 17, 2015 appellant filed a claim for a schedule award (Form CA-7). In
support of her claim, she provided a July 7, 2014 impairment rating from Dr. Arthur Becan, an
orthopedic surgeon, who summarized her history of injury and treatment, and opined that she had
attained maximum medical improvement (MMI). Regarding the right upper extremity, Dr. Becan
referred to the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides)5 and The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using
the Sixth Edition (July/August 2009) (The Guides Newsletter). He found a class of diagnosis
(CDX) for sensory deficit of the right C5 nerve root, equaling four percent upper extremity
impairment. Dr. Becan noted a grade modifier for functional history (GMFH) for a pain disability
questionnaire (PDQ) score of 73, and a grade modifier for clinical studies (GMCS) of 4. Applying
the net adjustment formula of (GMFH - CDX) + (GMCS - CDX), or (2-1) + (4-1) resulted in a net
adjustment of 4, equaling four percent permanent impairment of the right upper extremity.
Utilizing the same method of calculation, Dr. Becan found six percent permanent impairment of
the right upper extremity due to C6 nerve root impairment, and four percent permanent impairment
of the right upper extremity due to impairment of the C7 nerve root. He also found five percent
permanent impairment of the right arm due to a class 1 mild IV/V motor strength deficit of the
right deltoid, enervated by the right C6 nerve root. Dr. Becan applied the net adjustment formula
(GMFH - CDX) + (GMCS - CDX), (2-1) + (4-1), which yielded a net adjustment of 4, raising the
five percent impairment upward to nine percent. He also addressed entrapment neuropathy at the
right wrist. Referring to Table 15-23, Dr. Becan found 6 percent permanent impairment of the
right upper extremity due to entrapment neuropathy at the right median nerve, based on a grade
modifier for physical examination (GMPE) findings of 3 for decreased pinch strength and a GMFH
of 3 for a QuickDASH score of 68 percent. He combined these percentage values to total 25
percent permanent impairment of the right upper extremity.

4

By decision dated April 18, 2013, OWCP terminated appellant’s wage-loss compensation and schedule award
eligibility, effective that day as she refused an offer of suitable work, pursuant to 5 U.S.C. § 8106(c)(2). Following a
telephonic hearing before an OWCP hearing representative on August 22, 2013, by decision dated December 9, 2013,
an OWCP hearing representative reversed the April 18, 2013 decision and reinstated appellant’s wage-loss
compensation payments and schedule award eligibility.
5

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

2

Regarding the left upper extremity, Dr. Becan again referred to the A.M.A., Guides
July/August 2009 Guides Newsletter. He found a class 1 CDX for sensory deficit of the right C5
nerve root, equaling 3 percent impairment, a GMFH for a PDQ score of 73, and a GMCS of 4.
Applying the net adjustment formula of (GMFH - CDX) + (GMCS - CDX), or (2-1) + (4-1)
resulted in a net adjustment of 4, equaling three percent permanent impairment of the left upper
extremity. Utilizing the same method of calculation, Dr. Becan found five percent permanent
impairment of the right upper extremity due to C6 nerve root impairment, and three percent
permanent impairment of the right upper extremity due to impairment of the C7 nerve root. He
also found five percent permanent impairment of the left arm due to a class 1 mild IV/V motor
strength deficit of the right deltoid. Dr. Becan applied the net adjustment formula (GMFH CDX) + (GMCS - CDX), (2-1) + (4-1), which yielded a net adjustment of 4, raising the five percent
impairment upward to nine percent. He also found five percent permanent impairment of the right
upper extremity due to a class 1 mild IV/V motor strength deficit of the right deltoid, enervated by
the right C6 nerve root, adjusted upward to nine percent based on a GMFH of 2 and a GMCS of
4. Dr. Becan also addressed entrapment neuropathy at the left wrist. Referring to Table 15-23, he
found 6 percent permanent impairment of the left upper extremity due to entrapment neuropathy
at the left median nerve, based on a GMPE findings of 3 for decreased pinch strength and a GMFH
of 2 for a QuickDASH (Disabilities of the Arm, Shoulder, and Hand) score of 47 percent.
Dr. Becan combined these percentage values to total 22 percent permanent impairment of the left
upper extremity.
In a February 3, 2016 report, Dr. David I. Krohn, a Board-certified internist and OWCP
district medical adviser (DMA), reviewed Dr. Becan’s opinion. He noted that OWCP had not
accepted a cervical spine injury or carpal tunnel syndrome. Dr. Krohn opined that the accepted
facial contusion had not caused a permanent impairment of a scheduled member of the body.
OWCP found a conflict of medical opinion evidence between Dr. Becan for appellant, and
Dr. Krohn, for the government, regarding the appropriate percentage of permanent impairment.
To resolve the conflict, it selected Dr. Dean Carlson, a Board-certified orthopedic surgeon, as an
impartial medical specialist. Dr. Carlson submitted a July 28, 2016 report in which he reviewed
the medical record and a statement of accepted facts (SOAF). He related appellant’s symptoms of
bilateral shoulder pain and dysfunction and bilateral hand pain and paresthesias. Appellant
reported that her shoulder motion was so limited she could not wash her back. On examination,
Dr. Carlson found limited motion of the cervical spine, both shoulders, and both wrists, weakness
of both shoulders, grip strength at 15 pounds on the right and 25 pounds on the left, and diminished
light-touch sensation over the right radial thenar eminence and to the volar aspect of the fingers of
the left hand. He obtained x-rays of both shoulders which demonstrated degenerative arthritis of
the humeral head with osteophyte formation. Dr. Carlson diagnosed a resolved facial contusion
by history, bilateral idiopathic glenohumeral arthritis, right C5, C6, and C7 radiculopathy, left C7
radiculopathy, and bilateral carpal tunnel syndrome. He opined that the accepted November 5,
2010 occupational injury caused or aggravated the cervical radiculopathy and bilateral carpal
tunnel syndrome. Dr. Carlson explained that appellant’s bilateral glenohumeral arthritis was not
traumatic. He noted that she had attained MMI as of July 7, 2014.
Regarding the right upper extremity, Dr. Carlson found a CDX of 1 for C5 radiculopathy
with mild sensory deficit of the right hand according to the Guides Newsletter, equaling 1 percent
permanent impairment of the right upper extremity. He assessed a moderate motor deficit of 9
percent according to Table 15-14, resulting in 10 percent permanent impairment of the right upper
3

extremity. Dr. Carlson opined that the “grade modifiers did not come into play” as the GMCS of
3 did not alter the rating, and there was no applicable GMFH as he could not use the QuickDASH
score. He found that the right C6 radiculopathy “exhibited a moderate sensory rating of three
percent and a mild motor rating of five percent for 4/5 grip weakness, totaling eight percent.
However, as appellant had multiple simultaneous neuropathies, she received only 50 percent of
that score, so the combined upper extremity impairment of the C5 and C6 radiculopathy is 10
percent plus 4 percent equaling 14 percent.” Her “C7 radiculopathy and right median nerve
entrapment at the wrist fell under the criteria of multiple simultaneous neuropathies” rule at page
448 of the A.M.A., Guides, and were therefore not rated. Dr. Carlson combined the 10 percent
and 4 percent impairments for a combined 14 percent permanent impairment of the right upper
extremity.
Regarding the left upper extremity, Dr. Carlson noted that the C7 radiculopathy had a
moderate sensory impairment equaling 2 percent impairment of the left arm, but a “mild motor
score of [5] percent,” equaling 7 percent permanent impairment of the left upper extremity with
no applicable grade modifiers. He opined that the left carpal tunnel syndrome had a GMCS of 1,
GMFH of 3, and GMPE of 3, resulting in an average modifier of 2. As the QuickDASH score
could not be used, the default CDX of five percent remained unchanged. Utilizing the multiple
simultaneous neuropathies grading method, Dr. Carlson reduced the 5 percent impairment for
carpal syndrome by 50 percent, equaling 2.5, rounded up to 3 percent. He combined the 7 percent
impairment for C7 radiculopathy and 3 percent impairment for carpal tunnel syndrome to equal 10
percent permanent impairment of the left upper extremity.
In a report dated December 26, 2016, Dr. James W. Butler, a DMA Board-certified in
occupational medicine, reviewed the medical record and SOAF. He opined that Dr. Carlson
properly applied the appropriate portions of the A.M.A., Guides to appellant’s upper extremity
conditions.
By decision dated March 21, 2017, OWCP expanded acceptance of appellant’s claim to
include a neck sprain and lumbar sprain. It granted her a schedule award for 14 percent permanent
impairment of the right upper extremity and 10 percent permanent impairment of the left upper
extremity. The period of the award ran from July 7, 2014 to December 13, 2015.
On March 28, 2017 counsel requested a hearing before an OWCP hearing representative.
During the hearing, held on August 16, 2017, he contended that Dr. Carlson had failed to provide
a GMFH, ignored the QuickDASH score, and failed to provide an impairment rating for
osteoarthritis of the shoulder. Counsel requested that OWCP remand the case to obtain a
supplemental report from Dr. Carlson. He submitted additional medical evidence.
In a report dated August 28, 2017, Dr. Becan reviewed Dr. Carlson’s report and contended
that he had erred in applying the multiple simultaneous neuropathies grading model. He explained
that, according to page 448 of the A.M.A., Guides, the multiple simultaneous neuropathies model
applied only to “concurrent focal nerve compromise in the same upper limb, such as simultaneous
carpal tunnel syndrome and ulnar neuropathy at the elbow.” As cervical radiculopathy was not a
focal entrapment neuropathy, Dr. Carlson should not have characterized it as such in his
impairment rating. Dr. Becan also contended that, although Dr. Carlson found that the GMFH
could not be used, the Guides Newsletter mandated that GMFH should be included for each nerve
impairment. He also questioned why Dr. Carlson had not found moderate sensory deficit in the
4

left C5 and C6 dermatomes as was apparent on Dr. Becan’s July 7, 2014 examination. Dr. Becan
concluded that appellant had 22 percent permanent impairment of the left upper extremity and 24
percent permanent impairment of the right upper extremity.
By decision dated October 26, 2017, OWCP’s hearing representative affirmed the
March 21, 2017 schedule award. He noted that Dr. Carlson had properly applied the multiple
simultaneous neuropathies rule and rejected the QuickDASH scores as inconsistent with the
accepted injuries.
LEGAL PRECEDENT
The schedule award provisions of FECA6 and its implementing federal regulations,7 set forth
the number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of specified members of the body. However, FECA does not specify the manner
in which the percentage loss of a member shall be determined. The method used in making such
determination is a matter which rests in the 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.9
No schedule award is payable for a member, function, or organ of the body not specified
in FECA or in the regulations.10 Because neither FECA nor the regulations provide for the
payment of a schedule award for the permanent loss of use of the spine,11 no claimant is entitled
to such an award.12 However, in 1966, amendments to FECA modified the schedule award
provision to provide for an award for permanent impairment to a member of the body covered by
the schedule regardless of whether the cause of the impairment originated in a scheduled or
nonscheduled member. As the schedule award provision of FECA includes the extremities, a
claimant may be entitled to a schedule award for permanent impairment to an extremity even
though the cause of the impairment originated in the spine.13
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
6

5 U.S.C. § 8107.

7

20 C.F.R. §10.404.

8

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

9

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

Henry B. Floyd, III, 52 ECAB 220 (2001).

11

FECA specifically excludes the back from the definition of “organ.” 5 U.S.C. § 8101(19).

12

Thomas Martinez, 54 ECAB 623 (2003).

13

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

5

lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides
Newsletter is to be applied.14 The Board has long recognized the discretion of OWCP to adopt
and utilize various editions of the A.M.A., Guides for assessing permanent impairment.15 In
particular, the Board has recognized the adoption of this methodology for rating extremity
impairment, including the use of The Guides Newsletter, as proper in order to provide a uniform
standard applicable to each claimant for a schedule award for extremity impairment originating in
the spine.16
The A.M.A., Guides specifically provides that, if multiple simultaneous neuropathies occur
in the same limb, both impairments may be rated and the nerve qualifying for the larger impairment
is given the full impairment while the nerve qualifying for the smaller impairment is rated at 50
percent.17 The A.M.A., Guides further indicate that Table 15-23 is to be used for rating focal nerve
compromise.18
Section 8123(a) of FECA provides that when there is a disagreement between the physician
making the examination for the United States and the physician of the employee, a third physician
shall be appointed to make an examination to resolve the conflict.19 When there are opposing
medical reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a), to resolve the conflict in the medical evidence.20
In situations where there are opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based on a proper factual
background, must be given special weight.21 However, in a situation where OWCP secures an
opinion from an impartial medical examiner for the purpose of resolving a conflict in the medical
evidence and the opinion from such examiner requires clarification or elaboration, OWCP has the
responsibility to secure a supplemental report from the examiner for the purpose of correcting the
defect in the original opinion.22

14
See G.N., Docket No. 10-0850 (issued November 12, 2010); see also supra note 9 at Chapter 3.700, Exhibit 1,
note 5 (January 2010). The Guides Newsletter is included as Exhibit 4.
15

D.S., Docket No. 14-0012 (issued March 18, 2014).

16

See A.R., Docket No. 17-1504 (issued May 25, 2018); E.D., Docket No. 13-2024 (issued April 24, 2014); D.S.,
Docket No. 13-2011 (issued February 18, 2014).
17

A.M.A., Guides 448.

18

Id.

19

5 U.S.C. § 8123(a); Robert W. Blaine, 42 ECAB 474 (1991).

20

Delphia Y. Jackson, 55 ECAB 373 (2004).

21

Anna M. Delaney, 53 ECAB 384 (2002).

22

Margaret M. Gilmore, 47 ECAB 718 (1996).

6

ANALYSIS
The Board finds that this case is not in posture for a decision.
In support of her schedule award claim, appellant submitted a report dated July 7, 2014
from Dr. Becan, an orthopedic surgeon. Regarding the right upper extremity, Dr. Becan found
that she had 24 percent permanent impairment of the right upper extremity. Regarding the left
upper extremity, he found 22 percent permanent impairment of the left upper extremity. OWCP
referred the record to Dr. Krohn, an OWCP DMA, who opined that in a report dated February 3,
2016 that the accepted facial contusion did not result in permanent impairment of a scheduled
member of the body.
OWCP properly found a conflict of medical opinion between Dr. Becan, for appellant, and
Dr. Krohn, for the government, and selected Dr. Carlson as impartial medical examiner in the case.
Dr. Carlson provided a July 28, 2016 report. He opined that the accepted November 5,
2010 employment injury had caused cervical and lumbar spine sprains in addition to a resolved
facial contusion. Dr. Carlson rated appellant’s percentage of permanent impairment based on the
Multiple Simultaneous Neuropathies rule at page 448 of the A.M.A., Guides. This rating method
applies to “[m]ultiple, concurrent focal nerve compromise syndromes in the same upper limb,”
such as simultaneous carpal tunnel syndrome and ulnar neuropathy.23 “The nerve qualifying for
the larger impairment is given the full impairment. The nerve qualifying for the smaller
impairment is rated at 50 percent (one-half) of the impairment listed in Table 15-23” at page 229
of the A.M.A., Guides, titled “Entrapment/Compression Neuropathy Impairment.”
Referring to the multiple simultaneous neuropathies rule, Dr. Carlson characterized the C5,
C6, and C7 nerve root entrapments as peripheral, focal neuropathies. Utilizing the multiple
simultaneous neuropathy formula for the right upper extremity, he found 10 percent permanent
impairment for C5 nerve root compromise, 8 percent permanent impairment for C6 nerve root
compromise reduced by 50 percent to 4 percent, and no applicable rating for C7 nerve root
compromise and carpal tunnel syndrome, for a combined 14 percent permanent impairment of the
right upper extremity. Applying the same rating methodology to the left upper extremity,
Dr. Carlson found 7 percent permanent impairment for C7 nerve root compromise, and 5 percent
permanent impairment for carpal tunnel syndrome reduced to 2.5 percent then rounded upward to
3 percent, for a combined 10 percent permanent impairment. Dr. Butler, a DMA, concurred with
Dr. Carlson. OWCP predicated its March 21, 2017 schedule award decision on Dr. Carlson’s
impairment rating as reviewed by Dr. Butler.
Following an oral hearing before an OWCP hearing representative, counsel submitted a
report dated August 28, 2017 from Dr. Becan, who explained that Dr. Carlson mischaracterized
cervical nerve root entrapment as a focal, peripheral neuropathy under the multiple simultaneous
neuropathies rule. By decision dated October 26, 2017, OWCP affirmed the March 21, 2017
schedule award determination. The Board finds, however, that Dr. Carlson did not specify which
portion of the A.M.A., Guides allowed for rating impingement of cervical nerve roots, a pathology
occurring in the cervical spine, as a focal, peripheral entrapment neuropathy occurring in an upper

23

Supra note 17.

7

extremity. Dr. Carlson’s report thus requires clarification.24 Proceedings under FECA are not
adversarial in nature and OWCP is not a disinterested arbiter. OWCP shares responsibility to see
that justice is done.25 On remand, OWCP shall prepare an updated SOAF and request that
Dr. Carlson clarify his report to address the issue raised by Dr. Becan. After such further
development of the medical evidence as deemed necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the October 26, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for additional
development consistent with this opinion.
Issued: February 6, 2019
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

24

See supra note 9 at Part 3 -- Medical, OWCP-Directed Medical Examinations, Chapter 3.500.4g(3)(b)
(July 2011). See also supra note 22.
25

Jimmy A. Hammons, 51 ECAB 219 (1999).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.S., Appellant
and
DEPARTMENT OF AGRICULTURE, U.S.
FOREST SERVICE, Albuquerque, NM,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-0520
Issued: July 17, 2019

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 January 4, 2019 appellant, through counsel, filed a timely appeal from a July 12, 2018
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 has met her burden of proof to establish an injury on
January 9, 2018, while in the performance of duty, as alleged.
FACTUAL HISTORY
On January 25, 2018 appellant, then a 65-year-old project manager, filed a traumatic injury
claim (Form CA-1) alleging that on January 9, 2018 at 3:20 p.m. she fractured her right leg and
ankle when she slipped and fell on ice on the driveway at her residence.3 On the reverse side of
the claim form, the employing establishment advised that she was not in the performance of duty
at the time of the injury as it “occurred at home after teleworking and after hours.” It indicated
that appellant’s regular-duty hours were 6:00 a.m. until 2:30 p.m. Appellant’s supervisor, in an
addendum to the form, related that appellant “had received a work headset to use, but it was not
the correct one. She had to take the headset back to UPS [United Parcel Service] and while in her
driveway she slipped on ice, hitting her head and breaking her right leg and right ankle.”
In a development letter dated January 31, 2018, OWCP advised appellant of the type of
factual and medical evidence needed to establish her claim, including a detailed description of the
January 9, 2018 employment incident and whether she was performing her job duties at the time
of the alleged incident. It afforded her 30 days to provide the necessary evidence. In a
development letter of even date, OWCP requested that the employing establishment address
whether appellant was on premises that it owned, operated, or controlled at the time of the
January 9, 2018 incident. It further requested that it provide the exact time of the incident and a
specific explanation regarding whether she was performing work duties or activities reasonably
incidental to her employment.
On February 8, 2018 the employing establishment indicated that it did not own or “control
the area in which [appellant] suffered her accident, which is outside her official telework area.” It
advised that the she had worked until 3:30 p.m. on January 9, 2018 and that the incident had
occurred at 3:20 p.m. The employing establishment responded “Yes” to the questions of whether
appellant was engaged in official duties that necessitated her being off the premises and whether
she was performing her assigned duties or an activity reasonably incidental to employment.
By decision dated March 8, 2018, OWCP denied appellant’s traumatic injury claim finding
that the January 9, 2018 incident had not occurred in the performance of duty. It accepted that the
January 9, 2018 incident occurred as alleged, but determined that appellant was not within the
course of employment as the incident had occurred more than 30 minutes after the end of her
workday and outside of her residence.
Thereafter, OWCP received appellant’s February 12, 2018 response to its development
letter. Appellant related that she had fallen on January 9, 2018 on black ice between 3:20 and 3:40

3
The claim form indicated that the injury occurred at 3:20 a.m., but appellant and the employing establishment
subsequently clarified that the incident occurred at 3:20 p.m.

2

p.m. while going “to return a headset to UPS….” She advised that she had been performing her
employment duties at the time of her fall.
Appellant submitted a January 8, 2018 e-mail to her supervisor. She informed her
supervisor that she intended to work nine hours on January 8 and 9, 2018 to earn time to take off
for an appointment on January 10, 2018. Appellant’s supervisor accepted her request in a
January 8, 2018 e-mail response.
In a statement dated March 20, 2018, appellant related that she had received an e-mail from
a communication vendor on January 9, 2018 requesting that she “send back a headset that was
purchased in error.” She advised that it was office practice that “the employee returns packages
to the UPS store themselves instead of calling UPS for pick up.” Appellant indicated that she
slipped and fell at approximately 3:20 p.m. on January 9, 2018 on her way to the UPS store to
return the headset.
On March 28, 2018 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review.
By decision dated July 12, 2018, OWCP’s hearing representative affirmed the March 8,
2018 decision. He found that the employing establishment had not sufficiently explained how
appellant’s activity on January 9, 2018 occurred within the scope of her work duties. The hearing
representative found that the fall occurred as part of a hazard shared by all travelers and that there
was no evidence that she was on a special errand or assignment of the employing establishment.
He thus found that appellant had not established that she was in the performance of duty at the
time of the January 9, 2018 incident.
LEGAL PRECEDENT
FECA provides for the payment of compensation for the disability or death of an employee
resulting from personal injury sustained while in the performance of duty.4 The phrase “sustained
while in the performance of duty” in FECA is regarded as the equivalent of the commonly found
requisite in workers’ compensation law of arising out of and in the course of employment.5
In order to be covered under FECA, an injury must occur at a time when the employee may
reasonably be stated to be engaged in his or her master’s business, at a place where he or she may
reasonably be expected to be in connection with the employment, and while he or she was
reasonably fulfilling the duties of employment or engaged in doing something incidental thereto.6

4

5 U.S.C. § 8102(a).

5

See M.S., Docket No. 18-0465 (issued August 1, 2018).

6

A.C., Docket No. 17-1927 (issued April 12, 2018).

3

OWCP’s procedures address off-premises injuries sustained by workers who perform
service at home. It provides:
“Ordinarily, the protection of [FECA] does not extend to the employee’s home, but
there is an exception when the injury is sustained while the employee is performing
official duties. In situations of this sort, the critical problem is to ascertain whether
at the time of injury the employee was in fact doing something for the employer.
The official superior should be requested to submit a statement showing:
(a) What directives were given to or what arrangements had been made with
the employee for performing work at home or outside usual working hours;
(b) The particular work the employee was performing when injured; and
(c) Whether the official superior is of the opinion the employee was
performing official duties at the time of the injury, with appropriate
explanation for such opinion.”7
OWCP’s procedures further provide that if the statements are not “sufficiently detailed or
are otherwise insufficient to permit a proper determination, additional statements should be
obtained from others in a position to know the circumstances.”8
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP accepted that on January 9, 2018 appellant, during a scheduled telework shift,
slipped and fell on ice on her driveway at her residence. However, it denied the claim finding that
the evidence of record was insufficient to establish that she had sustained the injury while in the
performance of duty.
Appellant alleged that she slipped and fell on ice on the driveway outside of her residence
when she left her home to return a work headset to the UPS store, consistent with instructions from
a communication vendor.
OWCP requested that the employing establishment address whether appellant was
performing her assigned duties or activities reasonably incidental to her employment at the time
she slipped and fell. On February 8, 2018 the employing establishment responded affirmatively
that her work duties required her to be off the premises and that she was engaged in her assigned
duties or an activity reasonably incidental to employment at the time of the January 9, 2018
incident.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5(f)(1) (August 1992);
see also M.T., Docket No. 17-1695 (issued May 15, 2018).
8

Federal (FECA) Procedure Manual, id. at Chapter 2.804.5(f)(3).

4

OWCP’s procedures provide coverage under FECA for off-premises workers who perform
services from home for their employing establishment.9 OWCP has provided that employees
engaged in the performance of their duties during authorized telework are covered under FECA.10
In these cases, the procedures direct OWCP to determine whether the employee was performing
assigned duties, was engaged in an activity reasonably incidental to the assignment, or had
deviated from the assignment and was engaged in a personal activity.11
The Board finds that OWCP failed to properly adjudicate whether appellant’s off-premises
activity was part of or incidental to her employment duties at the time of the claimed injury on
January 9, 2018.12 As noted, OWCP’s procedures provide that the official superior should submit
a statement regarding the details of the matter and, if such statements are not sufficiently detailed,
additional statements should be obtained from others in a position to know the circumstances.13
Appellant’s supervisor generally maintained that she was in the performance of duty at the time of
the alleged incident, but did not provide any detail regarding the work activities that she was
performing or why her action of returning the headset on January 9, 2018 occurred during the
course of employment. Consequently, this statement is insufficiently detailed to constitute proper
development of the factual basis of the claim.14
It is well established that proceedings under FECA are not adversarial in nature and while
the claimant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence to see that justice is done.15 Accordingly, the
case is remanded for further development, including obtaining and analyzing evidence regarding
whether appellant was reasonably fulfilling the duties of her federal employment or was engaged
in activities incidental thereto on January 9, 2018.
Following this and any other development deemed necessary, OWCP shall issue a de novo
decision on the merits of appellant’s claim.
CONCLUSION
The Board finds that the case is not in posture for decision.

9

Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.804.5(a)(4).

10

Id.

11

Federal (FECA) Procedure Manual, supra note 7 at Chapter 2.804.5(b); R.H., Docket No. 15-1339 (issued
June 13, 2016).
12

R.H., id.

13

See supra notes 7 and 8; see also A.S., Docket No. 18-1381 (issued April 8, 2019).

14

See A.S., id.

15

See A.G., Docket No. 19-0153 (issued May 13, 2019).

5

ORDER
IT IS HEREBY ORDERED THAT the July 12, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this opinion of the Board.
Issued: July 17, 2019
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

6