United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, NETWORK
DISTRIBUTION CENTER, Sharonville, OH,
Employer
__________________________________________

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

Docket No. 18-0742
Issued: March 12, 2020

Case Submitted on the Record

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

JURISDICTION
On February 23, 2018 appellant, through counsel, filed a timely appeal from a January 26,
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 January 26, 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 OWCP properly reduced appellant’s wage-loss compensation
benefits, effective May 17, 2017, based on her ability to earn wages in the constructed position of
receptionist.
FACTUAL HISTORY
On September 14, 2012 appellant, then a 60-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on August 23, 2012 she pulled a muscle in her lower back when
removing sacks of mail from a belt and loading them into over-the-road (OTR) containers while
in the performance of duty. OWCP accepted the claim for lumbar strain.4 Appellant stopped work
on August 29, 2012 and returned to light-duty work on September 14, 2012. She again stopped
work on March 13, 2013 when she was sent home as no work was available within her restrictions.
OWCP paid appellant wage-loss compensation on the periodic rolls effective May 1, 2015.
On April 30, 2015 OWCP referred appellant to Dr. Edward G. Fisher, a Board-certified
orthopedic surgeon, for a second opinion examination in order to determine whether appellant
continued to suffer residuals of her accepted lumbar sprain condition, whether she was capable of
returning to her regular mail handler position, whether she had any nonwork-related medical
conditions precluding her returning to work, and what work restrictions she had based on the
accepted work injury.
In a report dated May 19, 2015, based on an examination performed May 14, 2015,
Dr. Fisher noted his review of appellant’s history of injury and the medical reports of record. On
examination he found a negative straight leg test bilaterally and intact lower extremity sensation
and motor power. Dr. Fisher opined that appellant had no residuals from the sprain sustained on
August 23, 2012, but that she had suffered muscle deconditioning of the lower back, and mild
arthritis and mild disc bulge/protrusion, which were the result of the normal aging process and
were directly aggravated by the August 23, 2012 employment injury. He found that appellant had
no work restrictions or treatment recommendations in regard to the August 23, 2012 lumbar sprain,
as it was no longer clinically present, but that she “should perform daily aggressive home exercises
to strengthen her back and increase her mobility.”
On November 3, 2015 OWCP requested clarification of Dr. Fisher’s report. It requested
that Dr. Fisher provide medical rationale for his opinion that appellant’s mild arthritis and mild
disc bulge/protrusion were a result of the normal aging process, but also directly aggravated by the
August 23, 2012 work-related injury; whether there were residuals of this aggravation; and if there
were residuals, whether she was capable of returning to her position of mail handler and what, if
any, work restrictions were applicable.
In an addendum report dated December 3, 2015, Dr. Fisher clarified his May 19, 2015
report. He indicated that subsequent to August 23, 2012, appellant was unable to work with or
without restrictions due to her markedly decreased range of back motion and persistent back pain,
which supported an aggravation of her preexisting arthritic back condition due to her accepted
4

OWCP had previously accepted appellant’s claims for thoracic sprain and lumbar sprain under File No.
xxxxxx952 and for lumbar strain under File No. xxxxxx899. Appellant’s claims have been administratively combined
with the present claim, File No. xxxxxxx952, with File No. xxxxxx952 designated as the master file.

2

work injury. He opined that she was not capable of performing the duties of a mail handler. In a
December 2, 2015 work capacity evaluation (OWCP-5c), Dr. Fisher opined that: appellant could
work full time with permanent work restrictions of no standing or walking over two hours per day,
with breaks every half hour; no twisting, bending, or stooping; and no lifting, pushing, or pulling
over 10 pounds frequently and 20 pounds occasionally.
On January 8, 2016 OWCP requested that appellant’s treating physician, Dr. James Lutz,
an occupational medicine specialist, review Dr. Fisher’s May 19, 2015 report and December 3,
2015 addendum and provide comments on areas of agreement and disagreement. OWCP afforded
Dr. Lutz 30 days to respond. No response was received.
Appellant was subsequently referred to an OWCP-sponsored vocational rehabilitation
program. On April 7, 2016 appellant’s vocational rehabilitation counselor determined that she was
capable of working as a receptionist or registration clerk and that state labor market surveys on
that date showed that these positions were reasonably available in her commuting area. The
receptionist position, under the Department of Labor, Dictionary of Occupational Titles #237.367038, was characterized as sedentary in nature and involved such duties as receiving callers at
establishments, determining the nature of their business, operating telephones, and recording the
information of callers.5 Physical demands of the position were listed as frequent reaching,
handling, talking, and hearing, as well as occasional fingering. The vocational rehabilitation
counselor indicated that appellant would meet the specific vocational preparation (SVP) for the
position by completing a short training course in computer skills.
Appellant underwent nine weeks of computer skills training from April 25 through
June 24, 2016. On June 28, 2016 90 days of job seeking skills training and job searching
commenced and was subsequently extended through December 24, 2016. OWCP again extended
the job search through January 27, 2017. Appellant had not obtained a position by January 27,
2017 and her vocational rehabilitation file was closed.
On January 12, 2017 the vocational rehabilitation counselor completed an updated job
classification (Form CA-66) for the position of receptionist. She advised that appellant met the
SVP for the position by her completion of a computer skills training course. The vocational
rehabilitation counselor advised that the state job market outlook established that the position was
reasonably available in her commuting area with entry level wages of $324.40 per week.
In a March 6, 2017 letter, OWCP advised appellant that it proposed to reduce her
compensation based on her capacity to earn wages in the constructed position of receptionist. It
indicated that the duties of the receptionist position, based on the Department of Labor, Dictionary
of Occupational Titles, were within her work capacity based on the work restrictions provided by
Dr. Fisher, and that the position was reasonably available within her commuting area. Appellant’s
loss of wage-earning capacity (LWEC) was calculated based on her ability to earn wages of
$324.40 per week in the receptionist position. According to the Shadrick formula, codified at 20

5

Sedentary work, according to the Department of Labor, Dictionary of Occupational Titles, involves occasionally
exerting up to 10 pounds of force and sitting most of the time, but may involve walking or standing for brief periods
of time. See G.E., Docket No. 18-0663 (issued December 21, 2018); P.J., Docket No. 15-0295 (issued May 20, 2015).

3

C.F.R. § 10.403, this resulted in an LWEC of $828.40 per week.6 OWCP afforded appellant 30
days to provide evidence or argument against the proposed decision to reduce compensation.
Subsequently OWCP received a March 2, 2017 report from Dr. Hal S. Blatman, Boardcertified in occupational medicine. Dr. Blatman examined appellant and noted tenderness in the
muscles of the lower back. He advised that appellant should continue her home program physical
massage therapy. In his report of April 3, 2017, Dr. Blatman noted that he had examined appellant
and found continued tenderness and spasm in her lower back and buttocks. He reiterated his
recommendation to continue home program physical massage therapy and to return in four weeks.
OWCP subsequently expanded acceptance of the claim to include an aggravation of
degenerative disc disease at L2-3 and L3-4 and an aggravation of facet arthropathy at L4-5 and
L5-S1.
By decision dated May 16, 2017, OWCP reduced appellant’s compensation, effective
May 17, 2017, based on her ability to earn wages in the constructed position of receptionist. It
found that the evidence of record established that she was physically and vocationally capable of
earning wages of $324.40 per week in the constructed position of receptionist and that the position
was reasonably available in her commuting area.
In a report dated May 8, 2017, Dr. Blatman again examined appellant finding tenderness
and spasm in the muscles of the lower back and buttocks. He again noted that appellant should
continue her home physical massage therapy program and return in four weeks. Dr. Blatman
submitted similar reports from June through August 2017.
On May 24, 2017 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative.
The hearing was held on November 14, 2017. During the hearing, counsel argued that
appellant was vocationally unable to earn wages as a receptionist because of her age and lack of
experience working in an office setting. Appellant testified that she was physically unable to
perform as a receptionist as it required extensive sitting, and she was unable to sit for more than
20 or 30 minutes. Counsel further argued that the acceptance of her claim should be expanded to
include the additional conditions identified in Dr. Fisher’s reports.
By decision dated January 26, 2018, OWCP’s hearing representative affirmed the May 16,
2017 LWEC determination finding that the selected position of receptionist was medically and
vocationally suitable. The hearing representative noted that progress notes from Dr. Blatman
documented that appellant was being treated for low back pain, but did not address appellant’s
physical restrictions or opine that she was unable to perform in the selected position. She found
that the position of receptionist was within the physical restrictions provided by Dr. Fisher and that
the vocational expert had found that the position was vocationally suitable.

6

5 ECAB 376 (1953).

4

LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.7 OWCP’s
burden of proof includes the necessity of furnishing rationalized medical opinion evidence based
on a proper factual and medical background.8
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his or her wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity, or
if the employee has no actual earnings, the wage-earning capacity is determined with due regard
to the nature of the injury, the degree of physical impairment, the usual employment, age,
qualifications for other employment, the availability of suitable employment and other factors and
circumstances which may affect the wage-earning capacity in his or her disabled condition.9
Wage-earning capacity is a measure of the employee’s ability to earn wages in the open labor
market under normal employment conditions.10 The job selected for determining wage-earning
capacity must be a job reasonably available in the general labor market in the commuting area in
which the employee lives.11 The fact that an employee has been unsuccessful in obtaining work
in the selected position does not establish that the work is not reasonably available in his or her
commuting area.12
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP or to an OWCP wage-earning capacity specialist for selection of a position, listed in the
Department of Labor, Dictionary of Occupational Titles or otherwise available in the open labor
market, that fits that employee’s capabilities with regard to her physical limitations, education,
age, and prior experience. Once this selection is made, a determination of wage rate and
availability in the open labor market should be made through contact with the state employment
service, local Chamber of Commerce, employer contacts, and actual job postings.13 Lastly, OWCP

7

C.F., Docket No. 19-0595 (issued September 9, 2019); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005).
8

S.N., Docket No. 17-1589 (issued January 3, 2018); Del K. Rykert, 40 ECAB 284 (1988).

9

5 U.S.C. § 8115(a); K.S., Docket No. 19-0678 (issued October 25, 2019); E.W., Docket No. 14-584 (issued
July 29, 2014); 5 U.S.C. § 8115(a).
10

See M.P., Docket No. 18-0094 (issued June 26, 2018); see also Federal (FECA) Procedure Manual, Part 2 -Claims, Determining Wage-Earning Capacity Based on a Constructed Position, Chapter 2.816.3 (June 2013).
11

C.M., Docket No. 18-1326 (issued January 4, 2019).

12

Id.; see also Leo A. Chartier, 32 ECAB 652 (1981).

13

Supra note 10 at Chapter 2.816.6.a (June 2013).

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applies the principles set forth in Albert C. Shadrick14 as codified in section 10.403 of OWCP’s
regulations,15 to determine the percentage of the employee’s LWEC.16
ANALYSIS
The Board finds that OWCP properly reduced appellant’s wage-loss compensation
benefits, effective May 17, 2017, based on her capacity to earn wages in the constructed position
of receptionist.
In a report dated May 19, 2015, Dr. Fisher, an OWCP referral physician, found that
appellant had no further residuals of her accepted lumbar sprain, but had sustained an aggravation
of mild arthritis of the back and disc bulges causally related to her August 23, 2012 employment
injury. In a December 3, 2015 addendum, he opined that she could work with restrictions of no
standing or walking over two hours per day, with breaks every half hour; no twisting, bending, or
stooping; and no lifting, pushing, or pulling of over 10 pounds frequently and 20 pounds
occasionally. The Board thus finds that OWCP properly referred appellant for vocational
rehabilitation as the medical evidence established that she was no longer totally disabled due to
residuals of her employment injury based upon the report of Dr. Fisher.17
The Board further finds that the selected position of receptionist is within appellant’s
physical work tolerances as detailed by Dr. Fisher. There are no other medical reports of record
containing contemporaneous work restrictions or addressing her ability to perform the duties of a
receptionist. The receptionist position was defined as sedentary in nature, meaning that appellant
would occasionally exert up to 10 pounds of force and sit most of the time, as well as possibly
walk or stand for brief periods of time. The Board finds that Dr. Fisher’s opinion is reasoned and
based on a complete and accurate history and thus constitutes the weight of the evidence and
establishes that appellant has the requisite physical ability to earn wages as a receptionist.18
In reports dated March through May 2017, Dr. Blatman treated appellant for lower back
tenderness and spasm and recommended massage therapy. He did not, however, address the
relevant issue of whether she could perform the position of receptionist and thus his opinion is of
little probative value.19
The Board, therefore, finds that the weight of the evidence establishes that appellant had
the physical capacity to perform the duties of the selected position.20

14

Supra note 6.

15

20 C.F.R. § 10.403.

16

See K.S., supra note 9; J.M., Docket No. 17-0397 (issued April 3, 2018).

17

C.M., supra note 11.

18

Id.

19

See M.K., Docket No. 18-0907 (issued February 7, 2019).

20

See T.J., Docket No. 16-1473 (issued January 26, 2017).

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In assessing the claimant’s ability to perform the selected position, OWCP must consider
not only physical limitations, but also take into account work experience, age, mental capacity and
educational background.21 Appellant’s vocational rehabilitation counselor determined that she
was able to perform the position of receptionist and demonstrated that the position was available
in sufficient numbers so as to make it reasonably available within her commuting area. The
vocational rehabilitation counselor is an expert in the field of vocational rehabilitation and OWCP
may rely on the counselor’s opinion regarding reasonable availability and vocational suitability.22
OWCP considered the proper factors, such as availability of suitable employment and appellant’s
physical limitations, usual employment, age, and employment qualifications, in determining that
the position of receptionist represented her wage-earning capacity effective May 17, 2017.23
Appellant attended nine weeks of computer skills training from April 25 through June 24, 2016.
The evidence of record establishes that she had the requisite physical ability, skill, and experience
to perform the position of receptionist and that such a position was reasonably available within the
general labor market of her commuting area at a weekly entry-level wage of $342.40. OWCP also
properly determined her LWEC in accordance with the formula developed in Shadrick and
codified at 20 C.F.R. § 10.403.24 Therefore, OWCP properly reduced appellant’s compensation
effective May 17, 2017 based on her capacity to earn wages as a receptionist.
On appeal counsel contends that appellant does not have the vocational capacity to work
as a receptionist as she only had a graduate equivalent degree, nor had she worked in an office or
similar work environment. As discussed, however, the vocational rehabilitation counselor found
that she met the SVP for the position as she had completed a computer training program.
Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP properly reduced appellant’s wage-loss compensation
benefits, effective May 17, 2017, based on her ability to earn wages in the constructed position of
receptionist.

21

R.D., Docket No. 19-0752 (issued August 20, 2019).

22

See J.B., Docket No. 17-0817 (issued April 26, 2018); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.6(b) (June 2013).
23

See T.B., Docket No. 17-1777 (issued January 16, 2019); Clayton Varner, 37 ECAB 248 (1985).

24

Supra note 7; OWCP divided appellant’s employment capacity to earn wages of $324.40 a week by the current
pay rate of the position held when injured of $1,204.44 per week to find 27 percent wage-earning capacity. It
multiplied the pay rate at the time of disability of $1,134.80 by the 27 percent wage-earning capacity percentage.
OWCP subtracted the resulting amount of $306.40 from appellant’s date-of-injury pay rate of $1,134.80 which
provided a loss of wage-earning capacity of $828.40 per week. It then multiplied this amount by the appropriate
compensation rate of three-fourths and applied adjustments, which yielded net compensation of $1,716.13 every four
weeks.

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ORDER
IT IS HEREBY ORDERED THAT the January 26, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 12, 2020
Washington, DC

Christopher J. Godfrey, Deputy Chief Judge
Employees' Compensation Appeals Board

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
PEACE CORPS, Yaoundé, Cameroon, Employer
__________________________________________

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

Docket No. 12-1375
Issued: February 12, 2013

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 June 11, 2012 appellant timely appealed the June 5, 2012 nonmerit decision of the
Office of Workers’ Compensation Programs (OWCP) which denied reconsideration. He also
appealed OWCP’s May 22, 2012 merit decision denying a schedule award. 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 the schedule award claim.2
ISSUES
The issues are: (1) whether appellant has a ratable impairment of a scheduled member;
and (2) whether OWCP properly denied her May 29, 2012 request for reconsideration.

1
2

5 U.S.C. §§ 8101-8193.

The current record includes evidence received after OWCP issued its June 5, 2012 final decision. The Board’s
review is limited to the evidence of record at the time OWCP issued its final decision. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
This case was previously before the Board.3 Appellant, a 44-year-old former Peace
Corps volunteer, has an accepted claim for psychosis, depression -- single episode, which arose
on or about December 15, 1991. The Board previously affirmed OWCP’s denial of a schedule
award.4 When the case was last on appeal, the Board set aside OWCP’s June 27, 2011 decision
because it was unclear what standard of review had been applied with respect to appellant’s
request for reconsideration.5 Accordingly, the Board remanded the case to OWCP for proper
adjudication of appellant’s request for reconsideration.6
On remand, OWCP reviewed the merits of the previously denied schedule award claim.
Appellant had submitted various psychiatric treatment records dating back to March 2009.
However, the medical evidence did not specifically address whether appellant had permanent
impairment of a scheduled member. By decision dated December 2, 2011, OWCP denied
modification.
On December 6, 2011 appellant requested reconsideration. He submitted recent
psychiatric treatment records dated October 11, November 15, December 13, 2011, January 11,
February 9 and March 8, 2012.
In a decision dated May 22, 2012, OWCP denied modification. It explained that FECA
did not cover schedule awards for psychiatric claims.
On May 29, 2012 appellant requested reconsideration. He did not submit any additional
medical evidence at the time.
By decision dated June 5, 2012, OWCP denied appellant’s request for reconsideration.
LEGAL PRECEDENT -- ISSUE 1
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.7 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the American Medical Association, Guides to the
3

Docket No. 09-1145 (issued August 20, 2009) and Docket No 11-1677 (issued October 26, 2011).

4

In its August 20, 2009 decision, the Board explained that the brain was not included among the list of scheduled
members under FECA or its implementing regulations and as such, a schedule award for brain damage was not
authorized.
5

In its October 26, 2011 decision, the Board also found that OWCP failed to comply with 20 C.F.R. § 10.126.

6

The Board’s August 20, 2009 and October 26, 2011 decisions are incorporated herein by reference.

7

5 U.S.C. § 8107(c). Under FECA, an “organ” means a part of the body that performs a special function. This
definition specifically “excludes the brain, heart and back....” Id. at § 8101(19).

2

Evaluation of Permanent Impairment as the appropriate standard for evaluating schedule losses.8
Effective May 1, 2009, schedule awards are determined in accordance with the sixth edition of
the A.M.A., Guides.9
No schedule award is payable for a member, function or organ of the body that is not
specified in FECA or in the implementing regulations.10 The list of scheduled members includes
the eye, arm, hand, fingers, leg, foot and toes.11 Additionally, FECA specifically provides for
compensation for loss of hearing and loss of vision.12 By authority granted under FECA, the
Secretary of Labor expanded the list of scheduled members to include the breast, kidney, larynx,
lung, penis, testicle, tongue, ovary, uterus/cervix and vulva/vagina.13 Neither FECA nor the
regulations provide for the payment of a schedule award for the permanent loss of use of the
back or the body as a whole.14 Moreover, FECA and its implementing regulations do not
specifically authorize payment of a schedule award for loss of cognitive function.15
ANALYSIS -- ISSUE 1
Appellant’s claim has been accepted for psychosis, depression -- single episode.16 FECA
does not authorize payment of schedule award benefits for impairment attributable to mental
and/or behavioral disorders. The Board previously affirmed OWCP’s denial of a schedule award
for what appellant characterized as “brain damage.” The brain is not considered an “organ” as
that term is defined under FECA.17 Since the Board last reviewed the merits of the claim,
appellant has submitted additional psychiatric treatment notes covering the period March 31,
2009 through March 8, 2012. His current diagnosis is schizoaffective disorder, bipolar type.18
While the above-noted treatment records document appellant’s ongoing psychiatric disorder,
8

20 C.F.R. § 10.404.

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.6a (January 2010).
10

W.C., 59 ECAB 372, 374-75 (2008); Anna V. Burke, 57 ECAB 521, 523-24 (2006).

11

5 U.S.C. § 8107(c).

12

Id.

13

Id. at § 8107(c)(22); 20 C.F.R. § 10.404(a).

14

Id. at § 8107(c); 20 C.F.R. § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000). However, a schedule
award is permissible where the employment-related back condition affects the upper and/or lower extremities.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.6a(3).
15

Brent A. Barnes, 56 ECAB 336, 339 (2005).

16

ICD-9 Code No. 296.2.

17

5 U.S.C. § 8101(19).

18

Appellant also has a differential diagnosis of substance-induced mood disorder attributable to Lariam; a drug
used for the prevention and treatment of malaria.

3

these records do not establish permanent impairment of a recognized scheduled member under
FECA. As such, OWCP properly denied appellant’s claim for a schedule award.
LEGAL PRECEDENT -- ISSUE 2
OWCP has the discretion to reopen a case for review on the merits.19 An application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (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.20
When an 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.21
ANALYSIS -- ISSUE 2
Appellant’s May 29, 2012 request for reconsideration neither alleged nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. He submitted the appeal
request form that accompanied OWCP’s May 22, 2012 merit decision. Without elaborating,
appellant merely placed an “x” on the appropriate line indicating he was seeking reconsideration.
He also submitted an undated letter in which he accused OWCP of lying. Appellant did not
advance a relevant legal argument not previously considered by OWCP. Therefore, he is not
entitled to a review of the merits based on the first and second above-noted requirements under
section 10.606(b)(2).22
Appellant also failed to submit any “relevant and pertinent new evidence” with his
May 29, 2012 request for reconsideration. Other than the request itself, he did not submit
additional documentation in support of his request for reconsideration. Because appellant did not
provide any new evidence that might arguably impact the prior decision, he is not entitled to a
review of the merits based on the third requirement under section 10.606(b)(2).23

19

5 U.S.C. § 8128(a).

20

20 C.F.R. § 10.606(b)(2).

21

Id. at § 10.608(b).

22

Id. at § 10.606(b)(2)(1) and (2).

23

Id. at § 10.606(b)(2)(3).

4

CONCLUSION
The record does not establish that appellant has an impairment of a scheduled member.
Consequently, he is not entitled to a schedule award.24 The Board also finds that OWCP
properly denied appellant’s May 29, 2012 request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the June 5 and May 22, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 12, 2013
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

24

Appellant may request a schedule award or increased schedule award based on evidence of a new exposure or
medical evidence showing progression of an employment-related condition resulting in compensable permanent
impairment or increased impairment.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, OFFICE OF FEDERAL
ASSISTANCE MANAGEMENT, Rockville, MD,
Employer
__________________________________________

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

Docket No. 19-1558
Issued: April 16, 2020

Case Submitted on the Record

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

JURISDICTION
On July 15, 2019 appellant filed a timely appeal from a February 28, 2019 nonmerit
decision of the Office of Workers’ Compensation Program (OWCP). 1 As more than 180 days
elapsed from OWCP’s last merit decision, dated January 2, 2019, to the filing of this appeal,

1

The Board notes that, during the pendency of this appeal, OWCP issued an August 19, 2019 decision, which
denied modification of the January 2, 2019 schedule award decision that is the subject of the current appeal. The
Board and OWCP may not simultaneously exercise jurisdiction over the same issue in a case on appeal. 20 C.F.R.
§§ 501.2(c)(3), 10.626. See S.C., Docket No. 18-0517 (issued February 25, 2020); Arlonia B. Taylor, 44 ECAB 591
(1993); Douglas E. Billings, 41 ECAB 880 (1990). Consequently, OWCP’s August 19, 2019 decision is set aside as
null and void.

pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this claim.3
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 August 3, 2016 appellant, then a 55-year-old grants management specialist, filed an
occupational disease claim (Form CA-2) alleging that factors of her federal employment, including
typing and casing of letters, caused trigger finger and de Quervain tendinitis of the left hand. She
first realized her condition and that it was caused or aggravated by her employment on
May 11, 2015. Appellant retired from the employing establishment effective January 1, 2016.4
On October 4, 2016 OWCP accepted appellant’s claim for left index trigger finger. On
December 8, 2016 appellant underwent an OWCP authorized left carpal tunnel release, left index
trigger finger release, and left wrist first dorsal extensor compartment release, which was
performed by Dr. Jonathan Pribaz, a Board-certified orthopedic surgeon. On January 17, 2018 she
filed a claim for a schedule award (Form CA-7).
In a December 21, 2017 report, Dr. Angela Jones, a Board-certified orthopedic surgeon
and OWCP second opinion physician, reviewed a statement of accepted facts (SOAF)5 and the
medical file and noted examination findings of the left trigger finger, which included stiffness and
soreness, and decreased range of motion. Regarding appellant’s current claim, Dr. Jones opined
that appellant had reached maximum medical improvement (MMI) on September 1, 2017, a year
following her surgery. She indicated that her impairment evaluation was based on the singular
diagnosis of trigger digit. Dr. Jones opined, under the sixth edition of the American Medical

2

5 U.S.C. § 8101 et seq.

3

The Board notes that, following the February 28, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.
4

Under OWCP File No. xxxxxx076, date of injury July 14, 1995, appellant has an accepted occupational disease
claim for bilateral carpal tunnel, sprain of the radial collateral ligament of the bilateral elbow and forearm, and sprain
of the acromioclavicular bilateral shoulder and upper arm. OWCP File No. xxxxxx076 was administratively combined
with OWCP File No. xxxxxx433 which served as the master case file. Under OWCP File No. xxxxxx433, date of
injury of September 15, 1995, appellant has an accepted occupational claim for bilateral carpal tunnel, sprain of the
radial collateral ligament of the bilateral elbow and forearm, sprain of the acromioclavicular bilateral shoulder and
upper arm, and unspecified mononeuritis of bilateral upper limb. Appellant has received schedule awards for a total
25 percent left upper extremity and total 25 percent right upper extremity impairment under this master file.
5

The SOAF reviewed by Dr. Jones is not of record.

2

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),6 the range of
motion (ROM) methodology for an index finger impairment involving each of the joints was used,
as it resulted in the higher impairment rating over the diagnosis-based impairment (DBI)
methodology. She provided her calculations, cited to tables within the A.M.A, Guides, and opined
that appellant had 14 percent combined left digit impairment which converted to 3 percent upper
extremity impairment utilizing the ROM methodology.
In a January 5, 2018 report, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon
serving as a district medical adviser (DMA), reviewed a SOAF dated December 6, 2017,7 the
medical file and Dr. Jones’ December 21, 2017 report. Applying Dr. Jones’ examination findings
to the A.M.A, Guides, the DMA calculated eight percent impairment of the index digit for residual
problems status post release of trigger digit which converted to one percent upper extremity
impairment under the DBI methodology. Under the ROM methodology, the DMA calculated 20
percent impairment of the index digit which converted to 4 percent upper extremity impairment.
He indicated that as the ROM methodology produced the higher impairment rating, it would be
used. The DMA opined that appellant reached MMI December 21, 2017, when she was evaluated
by Dr. Jones. He further explained the differences between his impairment calculation and that of
Dr. Jones. The DMA indicated that as appellant was previously awarded 45 percent permanent
impairment of the left upper extremity and was entitled to an additional 4 percent impairment for
the index digit, she had a combined 49 percent total left upper extremity impairment.
On March 8, 2018 OWCP requested a clarification report from the DMA regarding his
comments that OWCP previously awarded appellant a total of 45 percent permanent impairment
to the left upper extremity. It advised that appellant was previously awarded a total of 25 percent
permanent impairment for the left upper extremity. An attached amended March 8, 2018 SOAF
noted the history of appellant’s employment injuries. It indicated that in OWCP File No.
xxxxxx433, appellant had been awarded 20 percent permanent impairment for the left upper
extremity and 20 percent permanent impairment for the right upper extremity with subsequent
awards for an additional 5 percent impairment for the right upper extremity and 5 percent
impairment for the left upper extremity.
In a March 10, 2018 supplemental report, the DMA reviewed the amended March 8, 2018
SOAF. He opined that, as appellant previously received 25 percent permanent impairment to the
left upper extremity and was entitled to an increase impairment of 4 percent, she had 29 percent
total left upper extremity permanent impairment.
By decision dated January 2, 2019, OWCP granted appellant an additional schedule award
for four percent permanent impairment of the left upper extremity affording the weight of the
medical evidence to the DMA. It indicated that this represented 49 percent total impairment minus
45 percent impairment previously awarded. The award ran for 1.84 weeks for the period
December 21, 2017 through January 2, 2018.

6

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

7

The SOAF sent to Dr. Harris is not in the current record.

3

On January 7, 2019 appellant requested reconsideration. In a January 7, 2019 letter, she
contended that Dr. Jones’ report did not address all her permanent conditions concerning her left
upper extremity. Appellant indicated that Dr. David Weiss, a Board-certified orthopedic surgeon
and osteopath, provided a comprehensive report of her permanent medical conditions in his
August 21, 2018 medical report.
In a January 22, 2019 letter, appellant requested that OWCP expand the acceptance of her
case to include all the medical conditions identified in Dr. Weiss’ August 21, 2018 report. She
addressed several issues she had concerning the case development of OWCP File No. xxxxxx433.
Appellant also indicated that her carpal tunnel surgery had failed and that she needed further
medical treatment.
By decision dated February 28, 2019, OWCP denied further merit review of appellant’s
claim. It found that her request for reconsideration neither raised substantive legal questions nor
included new and relevant evidence.
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 or her own motion or on application. 8
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.9
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 10 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 11 If the request is timely, but fails to meet at least one of the

8

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).
9
20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
10

Id. at § 10.607(a). The one-year period begins on the next day after the date of the originally contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
11

Id. at § 10.608(a); see D.L., Docket No. 18-0449 (issued October 23, 2019); see also M.S., 59 ECAB 231 (2007).

4

requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 12
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
In her January 7, 2019 reconsideration request, appellant contended that Dr. Jones’ report
failed to address all of her permanent medical conditions concerning her left upper extremity. She
also requested, in a January 22, 2019 letter, that OWCP evaluate her left upper extremity
permanent impairment including all the medical conditions identified in Dr. Weiss’ August 21,
2018 medical report. As appellant seeks to have all of her conditions reviewed in the determination
of the schedule award, that the Board finds that OWCP should combine the current File No.
xxxxxx331 with File No. xxxxxx433 so that all her left upper extremity accepted conditions are
considered in her schedule award rating, the Board finds that this is a relevant legal argument made
for the first time on reconsideration, under criteria number two under 20 C.F.R. § 10.606(b)(3).13
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between files. 14 For example, if
a new injury case is reported for an employee who previously filed an injury claim for a similar
condition or the same part of the body, doubling is required.
Appellant requested that OWCP take into account all of the accepted conditions of her left
upper extremity, and, as such OWCP should combine the current File No. xxxxxx331 with File
No. xxxxxx433 (which included File No. xxxxxx076). As appellant advanced a legal argument
relevant to her claim which had not previously been considered by OWCP, such argument warrants
further consideration by a merit review of her claim.15
The Board will therefore remand the case to OWCP to combine this claim with Master File
No. xxxxxx433. Following this and such other further development as it deems necessary, OWCP
shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

12
Id. at § 10.608(b); G.D., Docket No. 19-0815 (issued January 16, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).
13

See L.S., Docket No. 18-0858 (issued November 19, 2019).

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000); J.C., Docket No. 18-0649 (issued August 9, 2019).
15

See Q.M., Docket No. 18-0345 (issued May 17, 2019); D.M., Docket No. 16-1754 (issued January 10, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the February 28, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: April 16, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Aurora, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-2260
Issued: October 8, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On September 5, 2007 appellant filed a timely appeal from a May 7, 2007 loss of wageearning capacity decision1 and a June 22, 2007 decision denying her request for modification of
the loss of wage-earning capacity decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether the Office met its burden of proof to reduce appellant’s
compensation benefits based on her actual earnings; and (2) whether appellant has met her
burden of proof to modify the May 7, 2007 wage-earning capacity determination.

1

The Board notes that by another decision dated May 7, 2007, the Office denied appellant’s claim for disability
compensation for the period November 11 to 17, 2006. It noted that appellant had failed to supply her pay stub for
the relevant period as requested in the December 12, 2006 letter. As she did not appeal from this decision, the
Board has not reviewed it.

FACTUAL HISTORY
On July 21, 2001 appellant, then a 32-year-old city carrier, filed a traumatic injury claim
alleging that on that date she strained her back while lifting a heavy parcel from a vehicle. The
Office accepted the claim for cervical and thoracic strains, which was subsequently expanded to
include a temporary aggravation of major depressive disorder and temporary aggravation of
panic disorder. It placed appellant on the periodic rolls for temporary total disability by letter
dated March 22, 2004.
On April 26, 2006 appellant informed the Office that she had started part-time work on
April 10, 2006 with Noble Truss Colorado, Inc. as a temporary worker earning $8.00 per hour.2
In letters dated September 27 and October 2, 2006, Ron Weaver, Operations Manager, informed
the Office that appellant was working full time for Noble Truss as of August 14, 2006.
In determining whether appellant was capable of working full time, it reviewed the
following medical documents. In a July 11, 2006 prescription note, Dr. Julius J. Budnick, a
treating physician, provided restrictions of no lifting or carrying more than 10 pounds and no
pushing/pulling more than 15 pounds. He indicated that appellant could work four hours per
day.
On September 7 and 12, 2006 Dr. Katharine J. Leppard, a second opinion Board-certified
physiatrist with a subspecialty in pain medicine, based upon a review of medical evidence,
employment injury history and physical examination, diagnosed chronic left periscapular and
cervical myofascial pain and left ulnar neuritis due to the accepted July 21, 2001 employment
injury. A physical examination revealed “severe myofascial involvement with spasm and trigger
points throughout the “left upper trapezius, rhomboid and cervical paraspinal muscles.
Dr. Leppard also reported a positive Tinel’s sign at the elbow and “significant tenderness over
the left ulnar nerve at the elbow.” She opined that appellant was unable to perform her date-ofinjury position, but would be able to work with restrictions. The restrictions noted by
Dr. Leppard included no lifting, pushing or pulling more than 10 pounds and no reaching or
overhead work using her left shoulder. She noted that these restrictions were temporary pending
the results of a left shoulder magnetic resonance imaging scan.
On October 18, 2006 a vocational rehabilitation counselor noted that appellant had
worked for more than 60 days for her new employer, Noble Truss. She noted that appellant
worked 40 hours per week as a receptionist at Noble Truss since August 14, 2006. The position
duties and restrictions included a 10-minute break every hour and general clerical duties.
By decision dated May 7, 2007, the Office found that actual earnings in the position of
receptionist for Noble Truss. fairly and reasonably represented appellant’s wage-earning
capacity. A wage-earning capacity computation worksheet reported the current pay rate for the
date-of-injury job as $781.83 effective August 16, 2006 and in the position with Noble Truss
appellant earned $321.08 per week. Compensation benefits were reduced effective May 2, 2007
based on a 41-percent loss of wage-earning capacity. The beginning date of appellant’s new rate
of compensation was May 3, 2007.
2

The Board notes that the record contains evidence from another claimant.

2

In a letter dated May 12, 2007, appellant requested reconsideration. She noted that she
reduced her work hours from eight hours to four hours per day on January 18, 2007 due to her
depression and anxiety, which she noted were accepted conditions. Appellant also noted that her
work hours were reduced that date because she had an Equal Employment Opportunity (EEO)
deposition which caused her stress and depression. She also alleged that the claims examiner
caused her stress and aggravated her depression. In support of her request, appellant submitted
factual evidence regarding her EEO claim and four pages from her January 18, 2007 deposition.
On May 18, 2007 the Office received a January 16, 2007 report by Carrie L. Campen, a
licensed professional counselor, who opined that appellant’s anxiety and depression were
aggravated by work factors including her feelings of harassment by the employing establishment,
her work relocations and neck, shoulder and pain problems.
In a June 4, 2007 work capacity evaluation report (Form OCWP-5c) for
psychiatric/psychological conditions, Ms. Campen indicated that appellant was only capable of
working four hours per day. She noted that appellant was unable to work eight hours due to her
chronic neck pain “and ongoing battles w[ith] depression and anxiety.”
By decision dated June 22, 2007, the Office denied appellant’s request for modification
of the May 7, 2007 loss of wage-earning capacity decision.3
LEGAL PRECEDENT -- ISSUE 1
Section 8115(a) of the Federal Employees’ Compensation Act4 provides that, in
determining compensation for partial disability, the wage-earning capacity of an employee is
determined by actual earnings if actual earnings fairly and reasonably represent the wage-earning
capacity. Generally, wages actually earned are the best measure of a wage-earning capacity and,
in the absence of evidence showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such measure.5
The Office’s procedure manual states that when an employee cannot return to the date-ofinjury job because of disability due to work-related injury of disease, but does return to
alternative employment, the claims examiner must determine whether the earnings in the
alternative employment fairly and reasonably represent the employee’s wage-earning capacity.6
Office procedure manual provides in relevant part as follows:
“Factors considered to determine whether the claimant’s work fairly and
reasonably represents his or her wage-earning capacity, the claims examiner
3

On August 12, 2005 appellant filed a schedule award claim. As no final decision has been issued on appellant’s
request for a schedule award, the Board jurisdiction to consider this matter.
4

5 U.S.C. § 8101-8193.

5

Selden H. Swartz, 55 ECAB 272, 278 (2004).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (July 1997).

3

should consider whether the kind of appointment and tour of duty ... are at least
equivalent to those of the job held on the date of injury. Unless they are, the
[claims examiner] may not consider the work suitable.”
“For instance, reemployment of a temporary or casual worker in another
temporary or casual [employing establishment] position is proper, as long as it
will last at least 90 days and reemployment of a term or transitional [employing
establishment] worker in another term or transitional position is likewise
acceptable.”7
The Office’s procedure manual provides that the Office can make a retroactive wageearning capacity determination if appellant worked in the position for at least 60 days, the
position fairly and reasonably represented his wage-earning capacity and the work stoppage did
not occur because of any change in his injury-related condition affecting the ability to work.8
The formula for determining loss of wage-earning capacity based on actual earnings,9
which was developed in Albert C. Shadrick,10 has been codified by regulation at 20 C.F.R.
§ 10.403. Subsection (d) of this regulation provides that the employee’s wage-earning capacity
in terms of percentage is obtained by dividing the employee’s actual earnings by the current pay
rate for the job held at the time of injury.11
ANALYSIS -- ISSUE 1
The Office accepted cervical and thoracic strains, which was subsequently expanded to
include a temporary aggravation of major depressive disorder and temporary aggravation of
panic disorder. Following a period of intermittent disability, appellant returned to part-time
temporary work on April 10, 2006 and full-time work as a receptionist on August 14, 2006. Her
weekly pay rate was $321.08. She performed this position without incident for more than 60
days.
The Board finds that appellant’s performance of this position in excess of 60 days is
persuasive evidence that the position represents her wage-earning capacity.12 Moreover, there is

7

Id. at § 2.814.7(a).

8

Id. at § 2.814.7(e).

9

Hayden C. Ross, 55 ECAB 455 (2004).

10

5 ECAB 376 (1953).

11

20 C.F.R. § 10.403.

12

Office procedures provide that a determination regarding whether actual earnings fairly and reasonably
represent wage-earning capacity should be made after an employee has been working in a given position for more
than 60 days. See Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning
Capacity, Chapter 2.814.7(c) (December 1993); see also E.C., 59 ECAB ___ (Docket No. 07-1634, issued
March 10, 2008).

4

no evidence that the position was seasonal, temporary or make-shift work designed for her
particular needs.13
As there was no evidence to show that appellant’s actual earnings as a receptionist did
not properly represent her wage-earning capacity, the Board finds that the Office properly
accepted these earnings as the best measure of her wage-earning capacity.14 Further, by dividing
the pay rate for the date-of-injury job ($781.83) by the employee’s actual earnings ($321.08), the
Office properly determined a loss of wage-earning capacity of 41 percent.15
LEGAL PRECEDENT -- ISSUE 2
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless the original rating was in error, there is a material
change in the nature and extent of the injury-related condition or that the employee has been
retrained or otherwise vocationally rehabilitated. The burden of proof is on the party attempting
to show a modification of the wage-earning capacity.16
ANALYSIS -- ISSUE 2
Appellant requested reconsideration of the May 7, 2007 decision, contending that she had
sustained a material change in the nature and extent of the injury-related condition such that she
was only able to work part time. She stated that she reduced her work hours from eight to four
on January 18, 2007 due to her depression and anxiety which were accepted by the Office.
Appellant attributed the reduction in her work hours were to an EEO deposition, which she
alleged caused her stress and depression.
The only evidence of record concerning appellant’s reduction in work hours is a June 4,
2007 report from Ms. Campen, licensed professional counselor. To be considered competent
medical evidence, a medical report must be from a physician under the Act.17 Section
8101(2) provides that a physician includes, surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by state law.18 A report may not be considered as probative medical evidence if there is

13

J.C., 58 ECAB ___ (Docket No. 07-1165, issued September 21, 2007); Elbert Hicks, 49 ECAB 283 (1998).

14

Afegalai L. Boone, 53 ECAB 533 (2002).

15

Supra note 10.

16

Selden H. Swartz, supra note 5.

17

See Thomas L. Agee, 56 ECAB 465 (2005); James Robinson, Jr., 53 ECAB 417 (2002).

18

Thomas O. Bouis, 57 ECAB 602 (2006).

5

no indication that the person completing the report qualifies as a physician as defined in 5 U.S.C.
§ 8101(2).19 A licensed professional counselor is not a physician as defined by the Act.20 Thus,
the report from Ms. Campen is not considered competent medical evidence and has no probative
value in establishing that appellant’s condition has materially changed such that she was
medically unable to work more than four hours per day. There is no current psychological or
psychiatric opinion of record. Thus, the weight of the medical evidence establishes that
modification of the loss of wage-earning capacity decision is not warranted.
CONCLUSION
The Board finds that the Office properly determined on May 7, 2007 that appellant’s
position as a receptionist at Noble Truss fairly and reasonably represented her wage-earning
capacity decision. The Board further finds that appellant failed to meet her burden of proof to
modify the May 7, 2007 wage-earning capacity decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 22 and May 7, 2007 are affirmed.
Issued: October 8, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

19

See Phillip L. Barnes, 55 ECAB 426 (2004).

20

5 U.S.C. § 8101(2); see also Roy L. Humphrey, 57 ECAB 238 (2005); Jeannine E. Swanson, 45 ECAB 325,
336 (1993); Arnold A. Alley, 44 ECAB 912 (1993); Ceferino L. Gonzales, 32 ECAB 1591, 1594 (1981).

6


United States Department of Labor
Employees’ Compensation Appeals Board

)
)
A.C., Appellant
)
)
and
)
)
DEPARTMENT OF THE TREASURY,
)
INTERNAL REVENUE SERVICE,
)
Richmond, VA, Employer
___________________________________________ )
Appearances:
Appellant, pro se

Docket No. 14-1883
Issued: January 26, 2015

Case Submitted on the Record

Office of Solicitor, for the Director

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On August 25, 2014 appellant filed a timely appeal of an August 14, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP), finding that her request for
reconsideration was untimely and failed to show clear evidence of error. Pursuant to the Federal
Employees’ Compensation Act1 (FECA), the Board has jurisdiction over the August 14, 2014
nonmerit decision. The Board lacks jurisdiction over the merits of the claim.2
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

The last merit decision was an OWCP decision dated May 20, 2013, denying authorization for right total knee
replacement. A claimant has 180 days to file an appeal with the Board following an adverse decision by OWCP.
20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On September 20, 2011 appellant, then a 44-year-old clerk, slipped on a wet step as she
entered the employing establishment. She alleged that she injured her right knee, right wrist,
mid-way of her arm, and right shoulder in the performance of duty. On April 24, 2012 appellant
underwent a revision of a right total knee arthroplasty.
In a June 25, 2012 decision, OWCP denied appellant’s claim. It found that the medical
evidence did not demonstrate that the claimed medical condition was causally related to the
accepted injury as appellant failed to submit, as requested, a detailed narrative report from her
physician which rationally explains how the accepted work event brought about the diagnosis.
On July 13, 2012 appellant requested reconsideration and submitted additional medical
evidence. In an October 19, 2012 decision, OWCP denied modification of the prior decision.
On March 10, 2013 appellant requested reconsideration. In a December 18, 2012 report,
Dr. Robert E. Booth, a Board-certified orthopedic surgeon, noted that he was treating appellant
for persistent pain in her right knee following a slip and fall on steps at her workplace on
September 20, 2011. He noted her April 24, 2012 right total knee revisional arthroplasty.
Dr. Booth opined that “I feel the need for revisional knee surgery was precipitated by the slip and
fall that occurred on September 20, 2011.”
In an April 15, 2013 report, Dr. Kevin Hanley, a Board-certified orthopedic surgeon and
second opinion physician, noted appellant’s history of injury and treatment and examined
appellant. He advised that the September 20, 2011 fall aggravated her underlying condition, a
total knee replacement. However, Dr. Hanley opined that it did not lead to a loosening of the
prosthesis. He explained that she had loss of bone in the sub-prosthetic area, which argued
against a temporary traumatic worsening. Dr. Hanley noted that the work-related aggravation
was temporary and had long since resolved. He explained that the revision surgery was
necessary because of the natural history of the knee replacement and because she was
overweight.
By decision dated May 20, 2013, OWCP vacated the October 19, 2012 decision. It
accepted the claim for complications due to internal orthopedic device, implant and graft,
temporary, now resolved. In a separate May 20, 2013 decision, OWCP denied authorization for
revision of right total knee replacement. It found that the work injury did not lead to the need for
the April 24, 2012 total right knee replacement revision surgery. OWCP found that the weight of
the medical opinion rested with the second opinion physician, Dr. Hanley.3
On July 18, 2014 appellant requested reconsideration of the denial of authorization for
surgery. In an April 22, 2014 report, Dr. Carver Hills, an internist, noted that appellant was
3

On June 8, 2013 appellant claimed intermittent wage-loss compensation from November 8, 2011 to
April 13, 2012. The employing establishment indicated that the claim was for leave buyback. Accompanying this
claim was another copy of Dr. Booth’s April 16, 2012 report as well as disability and treatment notes. On April 8,
2014 OWCP advised her and the employing establishment that it could not process the claim for leave buyback at
that time and advised appellant and the employing establishment of the information needed to take further action on
the request. On April 17, 2014 it informed appellant that it could not authorize leave buyback associated with a
surgery that was not approved by OWCP.

2

under his care since September 2012 for multiple medical conditions including osteoarthritis of
multiple joints and lumbar disc disease. He advised that in October 2013 appellant sustained a
fall resulting in increased pain of her bilateral knees and right shoulder. Dr. Hills explained that
her examination revealed laxity of both knees and pain with movement and gait imbalance
requiring the use of a cane. He opined that appellant was totally disabled from the time of the
recurrence of her injury. Appellant also submitted October 31, 2011 right knee x-rays.
In an August 14, 2014 decision, OWCP denied appellant’s request for reconsideration for
the reason that it was not timely filed and failed to present clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for
further merit review.4 This discretionary authority, however, is subject to certain restrictions.
For instance, a request for reconsideration must be filed within one year of the date of OWCP’s
decision for which review is sought.5 Imposition of this one-year filing limitation does not
constitute an abuse of discretion.6
OWCP may not deny a reconsideration request solely on the ground that it was not timely
filed. When a claimant’s application for review is not timely filed, it must nevertheless
undertake a limited review to determine whether it establishes clear evidence of error. If an
application demonstrates clear evidence of error, OWCP will reopen the case for merit review.7
To establish clear evidence of error, a claimant must submit evidence that is relevant to
the issue that was decided by OWCP,8 is positive, precise, and explicit, and manifests on its face
that OWCP committed an error.9 The evidence must not only be of sufficient probative value to
create a conflict in medical opinion or establish a clear procedural error, but must also shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the
correctness of OWCP’s decision for which review is sought. Evidence that does not raise a
substantial question is insufficient to establish clear evidence of error. It is not enough merely to
show that the evidence could be construed so as to produce a contrary conclusion. A
determination of whether the claimant has established clear evidence of error entails a limited

4

See 5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009).

5

20 C.F.R. § 10.607(a). See also D.O., Docket No. 08-1057 (issued June 23, 2009); W.G., Docket No. 08-2340
(issued June 22, 2009).
6

E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

7

M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (October 2011) (“the term ‘clear evidence of error’ is
intended to represent a difficult standard”).
8

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

9

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

3

review of how the evidence submitted with the reconsideration request bears on the evidence
previously of record.10
ANALYSIS
In its August 14, 2014 decision, OWCP properly determined that appellant failed to file a
timely application for review. It rendered its last merit decision on May 20, 2013. Appellant’s
July 18, 2014 request for reconsideration was submitted more than one year after the May 20,
2013 merit decision and was, therefore, untimely.
The Board also finds that appellant’s untimely request failed to demonstrate clear
evidence of error. In its last merit decision dated May 20, 2013, OWCP accepted that her
September 20, 2011 fall at work aggravated her underlying condition, a previous total right knee
replacement, but found that this aggravation had resolved and that it did not necessitate the
April 24, 2012 revision of right total knee replacement. On reconsideration, appellant did not
make any arguments. She did submit medical evidence around the time of her request. In an
April 22, 2014 report, Dr. Hills advised that in October 2013 appellant sustained a fall resulting
in increased pain of her bilateral knees and right shoulder. He opined that she was totally
disabled from the time of the recurrence of her injury. The Board notes 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 of a
miscalculation in a schedule award). Evidence such as a detailed, well-rationalized report, which
if submitted prior to OWCP’s denial, would have created a conflict in medical opinion requiring
further development, is not clear evidence of error and would not require a review of a case.11
Dr. Hills’ report does not establish clear evidence of error. Appellant also submitted right knee
x-rays dated October 31, 2011 right knee x-rays but these were not accompanied by a physician’s
report and she did not otherwise explain how these established clear evidence of error. She also
resubmitted Dr. Booth’s April 16, 2012 report but she did not indicate how resubmission of this
report showed clear evidence of error.
Appellant has not otherwise provided any argument or evidence of sufficient probative
value to shift the weight of the evidence in her favor and raise a substantial question as to the
correctness of OWCP’s May 20, 2013 decision. Consequently, OWCP properly denied her
reconsideration request as her request does not establish clear evidence of error.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely filed and failed to show clear
evidence of error.

10

See J.S., Docket No. 10-385 (issued September 15, 2010); B.W., Docket No. 10-323 (issued
September 2, 2010).
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5(a) (October 2011).

4

ORDER
IT IS HEREBY ORDERED THAT the August 14, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 26, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF THE ARMY, MEDICAL
COMMAND, Fort Benning, GA, Employer
__________________________________________

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

Docket No. 18-0357
Issued: July 2, 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 December 11, 2017 appellant filed a timely appeal from a July 21, 2017 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP).1 As more than 180 days
elapsed from the last merit decision, dated June 9, 2017, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this claim.

1

In his application for review (Form AB-1), appellant identified a June 9, 2017 merit decision as the subject of the
current appeal. The appeal is dated December 4, 2017, and the postmark on the envelope is illegible. The Clerk of
the Appellate Boards received the appeal on December 11, 2017, which is more than 180 days after OWCP issued its
June 9, 2017 decision. See 20 C.F.R. § 501.3(e). As the postmark is illegible and there is no other evidence, such as
a certified-mail receipt, certificate of service, or an affidavit, to establish the mailing date, the Board considers the
date of appeal to be December 11, 2017. Id. at § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On April 26, 2017 appellant, then a 57-year-old cook leader, filed a traumatic injury claim
(Form CA-1) for a torn (left) rotator cuff that allegedly occurred at work on March 27, 2017 while
“pulling chair out from a table to sit down.” He stopped work on March 27, 2017 and resumed
work on March 29, 2017. On the claim form appellant’s supervisor, C.H., did not challenge the
claim and noted that appellant was injured in the performance of duty by placing a check in a box
marked “yes.” The claim form was not accompanied by additional factual information or any
medical evidence.
On April 27, 2017 an employing establishment injury compensation specialist challenged
appellant’s entitlement to continuation of pay. She also argued that the current record did not
establish fact of injury (medical component) or causal relationship.
By development letter dated May 1, 2017, OWCP requested that appellant respond to an
attached questionnaire and submit medical evidence in order to establish his claim. Appellant was
afforded 30 days to submit the requested information.
In a May 12, 2017 statement, appellant described the claimed March 27, 2017 incident at
work, the pain and symptoms he experienced, and the medical treatment he received. He also
indicated that he had prior surgery on April 4, 2016 that consisted of total shoulder reconstruction.
In an April 19, 2017 narrative report, Dr. George M. McCluskey III, a Board-certified
orthopedic surgeon, related that appellant pulled a chair out from a table with his left arm to sit
down and felt a pop in his left shoulder. He reviewed appellant’s history and provided physical
examination findings. Dr. McCluskey diagnosed rotator cuff tear and recommended surgery. He
provided a work status report, which recommended no work.
On May 16, 2017 Dr. McCluskey performed a left shoulder open rotator cuff repair,
subscapularis. The post- and preoperative diagnoses were left shoulder traumatic rotator tear and
status post April 4, 2016 total shoulder replacement for osteoarthritis.
OWCP received several medical reports by Dr. McCluskey, which predated the claimed
March 27, 2017 employment injury. In a June 17, 2015 narrative report, Dr. McCluskey described
appellant’s history of left shoulder pain, provided examination findings, and diagnosed left
shoulder pain and osteoarthritis. The April 4, 2016 operative report was also provided. In
narrative reports dated April 11 and June 15, 2016, Dr. McCluskey noted that appellant underwent
left total shoulder replacement surgery on April 4, 2016. In a September 20, 2016 status report
form, he indicated that appellant had been under his care since June 17, 2016.
By decision dated June 9, 2017, OWCP denied appellant’s claim because the evidence of
record was insufficient to establish fact of injury. It found that he did not submit sufficient factual
evidence to substantiate that the March 27, 2017 employment incident occurred as alleged. OWCP
2

also determined that the medical evidence submitted failed to establish a diagnosis in connection
with the alleged March 27, 2017 incident.
On July 3, 2017 appellant requested reconsideration. No other evidence was submitted
with his request.
By decision dated July 21, 2017, OWCP denied further merit review of appellant’s claim
under 5 U.S.C. § 8128(a). It found that appellant’s reconsideration request neither raised
substantive legal questions nor included new and relevant evidence sufficient to warrant further
merit review of her claim.
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.3
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument that: (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.4
A request for reconsideration must also be received by OWCP within one year of the date
of OWCP’s decision for which review is sought.5 If OWCP chooses to grant reconsideration, it
reopens and reviews the case on its merits.6 If the request is timely, but fails to meet at least one
of the requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.7
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration as he
did not submit any evidence with his reconsideration request to warrant merit review under 5
U.S.C. § 8128(a).
OWCP did not receive any additional evidence with appellant’s July 3, 2017
reconsideration request. Accordingly, the Board finds that appellant has not shown that OWCP
erroneously applied or interpreted a specific point of law. Moreover, appellant has not advanced
a relevant legal argument not previously considered by OWCP or submitted relevant and pertinent
3

Id. at § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

4
20 CFR § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
5

Id. at § 10.607(a).

6

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

7

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

3

new evidence not previously considered by OWCP. The Board finds, therefore, that appellant has
not met any of the regulatory requirements and OWCP properly declined his request for
reconsideration of the merits of his claim under 5 U.S.C. § 8128(a).8
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).
ORDER
IT IS HEREBY ORDERED THAT the July 21, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: July 2, 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
A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB
630 (2006).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
McAllen, TX, Employer
__________________________________________

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

Docket No. 12-53
Issued: June 7, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 5, 2011 appellant filed a timely appeal from a June 14, 2011 schedule award
decision of the Office of Workers’ Compensation Programs (OWCP) and a September 23, 2011
nonmerit decision denying his request for review of the written record by the Branch of Hearings
and Review. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained more than five percent binaural hearing
loss for which he received a schedule award; and (2) whether OWCP properly denied his request
for review of the written record as untimely.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 4, 2010 appellant, then a 56-year-old supervisory air interdiction agent, filed an
occupational disease claim (Form CA-2) alleging that he developed hearing loss and ringing in
his ears as a result of employment-related noise exposure. He noted that he was exposed to noise
from servicing airplanes and flying helicopters.
In an undated narrative statement, appellant described his employment duties stating that
he flew government service fixed-wing airplanes and helicopters which were flown with open
windows and no doors. He attributed the high levels of noise exposure from his federal
employment to the wind, rotator transmissions, rotator helicopter blades and tail rotor systems.
Appellant reported that he was exposed to employment-related noise from 1988 to the present,
four to five hours a day, five days a week. Despite the use of earplugs and aviator helmets, he
stated that his hearing loss progressively worsened and that he developed ringing in his ears.
In support of his claim, appellant submitted a history of audiograms dated October 3,
1988 to April 15, 2010.
By letter dated August 9, 2010, the employing establishment stated that appellant had
been exposed to very high levels of noise throughout his federal career including exposure to
helicopter rotor transmissions and noise from flying aircrafts with no doors.
OWCP referred appellant, together with a statement of accepted facts, to Dr. Gregory S.
Rowin, a Board-certified otolaryngologist, for a second opinion evaluation. An audiogram was
completed on October 26, 2010 which revealed the following decibel (dBA) losses at 500, 1000,
2000 and 3000 hertz (Hz): 20, 20, 35 and 35 for the right ear and 20, 20, 30 and 50 for the left
ear. Speech reception thresholds were 25 dBA on the left and right, while auditory
discrimination scores were 96 percent on the right and 92 percent on the left. Dr. Rowin
diagnosed high frequency sensorineural hearing loss. He opined that the hearing loss was due to
appellant’s workplace noise exposure and recommended hearing aids. Applying the standard
provided by the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment2 (A.M.A., Guides) to the October 26, 2010 audiometric data, Dr. Rowin
calculated that appellant sustained 3.75 percent monaural hearing impairment in the right ear and
7.5 percent monaural hearing impairment in the left ear. He calculated a binaural hearing
impairment of 4.375 percent. On the form report, Dr. Rowin added five percent impairment for
tinnitus, for a total of 9.3 percent binaural hearing impairment (4.375 percent + 5 percent for
tinnitus). He listed October 26, 2010 as the date of maximum medical improvement.
On December 8, 2010 OWCP’s medical adviser reviewed Dr. Rowin’s October 26, 2010
otologic examination report and agreed that appellant’s bilateral high frequency sensorineural
hearing loss was due to occupational noise exposure. He applied the audiometric data to
OWCP’s standard for evaluating hearing loss under the sixth edition of the A.M.A., Guides and
determined that appellant sustained five percent binaural hearing loss. The medical adviser
averaged appellant’s left ear hearing levels of 20, 20, 30 and 50 dB at 500, 1000, 2000 and 3000
Hz, which totaled 30. He then subtracted a 25 dBA fence and multiplied the balance of 5 by 1.5
2

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

2

to find 7.5 percent left ear monaural hearing loss which he rounded up to 8 percent. The medical
adviser then averaged appellant’s right ear hearing levels of 20, 20, 35 and 35 dBA at 500, 1000,
2000 and 3000 Hz, which totaled 27.5. After subtracting out a 25 dBA fence, he multiplied the
remaining 2.5 balance by 1.5 to calculate a 3.75 percent right ear monaural hearing loss which he
rounded up to 4 percent. The medical adviser then calculated five percent binaural hearing loss
by multiplying the lesser right ear loss of four percent by five, adding the greater eight percent
left ear loss and dividing this sum by six. He did not list any impairment due to tinnitus. The
medical adviser concluded that hearing aids were authorized and the date of maximum medical
improvement was October 26, 2010.
By decision dated December 10, 2010, OWCP accepted appellant’s claim for bilateral
hearing loss.
On May 26, 2011 appellant filed a claim for compensation (Form CA-7) for a schedule
award.

3

By decision dated June 14, 2011, OWCP granted appellant a schedule award for five
percent binaural hearing loss. The award covered a period of 10 weeks from October 26, 2010 to
January 3, 2011.4
On August 22, 2011 appellant requested review of the written record. The appeal was
postmarked on August 22, 2011.
By decision dated September 23, 2011, the Branch of Hearings and Review denied
appellant’s request for review of the written record finding that his request was not made within
30 days of the June 14, 2011 OWCP decision. The Branch of Hearings and Review further
determined that the issue in the case could equally well be addressed by requesting
reconsideration from OWCP and submitting evidence not previously considered which
establishes that he sustained a greater percentage of impairment than what was previously
awarded.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA5 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
3

Appellant did not list any dependents in section 5 of the Form CA-7.

4

The Board notes that appellant was awarded $14,462.07 based on his weekly pay rate of $2,169.31 multiplied
by a compensation rate of 66 2/3 percent. Following the June 14, 2011 award of compensation, appellant informed
OWCP that he inadvertently left out his wife as a dependent under section 5 of the Form CA-7 and that his
compensation rate should be 75 percent rather than 66 2/3 percent. OWCP recalculated his award based on a 75
percent compensation rate and found that his award amounted to $16,269.83. This amount was subtracted from the
$14,462.07 award appellant had already received and he was paid the remaining sum of $1,807.46.
5

5 U.S.C. §§ 8101-8193.

3

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
(6th ed. 2009), has been adopted by OWCP for evaluating schedule losses and the Board has
concurred in such adoption.6
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 dBA is deducted because, as the
A.M.A., Guides points out, losses below 25 dBA result in no impairment in the ability to hear
everyday speech under everyday conditions.7 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss, the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.8
Regarding tinnitus, the A.M.A., Guides provide that tinnitus is not a disease but rather a
symptom that may be the result of disease or injury.9 The A.M.A., Guides state that if tinnitus
interferes with Activities of Daily Living (ADLs), including sleep, reading (and other tasks
requiring concentration), enjoyment of quiet recreation and emotional well-being, up to five
percent may be added to a measurable binaural hearing impairment.10
ANALYSIS -- ISSUE 1
The issue is whether appellant has more than a five percent binaural hearing loss.11
OWCP referred appellant, together with a statement of accepted facts, to Dr. Gregory S.
Rowin, a Board-certified otolaryngologist, for a second opinion evaluation. An audiogram was
completed on October 26, 2010 which revealed the following dBA losses at 500, 1000, 2000 and
3000 Hz: 20, 20, 35 and 35 for the right ear and 20, 20, 30 and 50 for the left ear. Auditory
discrimination scores were 96 percent on the right and 92 percent on the left. Dr. Rowin
diagnosed high frequency sensorineural hearing loss. He opined that the hearing loss was due to
appellant’s workplace noise exposure and recommended hearing aids. Applying the October 26,
2010 audiometric data, Dr. Rowin calculated that appellant sustained 3.75 percent monaural
6

See R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000).

7

See A.M.A., Guides 250.

8

See E.S., 59 ECAB 249 (2007); Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying
prior decision), Docket No. 01-1570 (issued August 13, 2002).
9

See A.M.A., Guides 249.

10

Id. See also R.H., Docket No. 10-2139 (issued July 13, 2011); Robert E. Cullison, 55 ECAB 570 (2004).

11

While Dr. Rowin recommended hearing aids and the district medical adviser stated that hearing aids should be
authorized, the record does not reflect whether OWCP authorized the purchase of hearing aids.

4

hearing impairment in the right ear and 7.5 percent monaural hearing impairment in the left ear.
He calculated a binaural hearing impairment of 4.375 percent. On the form report, Dr. Rowin
added five percent impairment for tinnitus, for a total of 9.3 percent binaural hearing impairment
(4.375 percent + 5 percent for tinnitus). He listed October 26, 2010 as the date of maximum
medical improvement.
The Board notes that Dr. Rowin did not provide a proper impairment rating in accordance
with the A.M.A., Guides. Regarding tinnitus, the A.M.A., Guides states, tinnitus in the presence
of unilateral or bilateral hearing impairment may impair speech discrimination. Therefore, add
up to five percent for tinnitus in the presence of measurable hearing loss if the tinnitus impacts
the ability to perform activities of daily living.12 Although Dr. Rowin included five percent
impairment for tinnitus, he did not diagnose tinnitus or describe how this condition impacted
appellant’s activities of daily living.13 Further, appellant’s discrimination scores of 96 percent in
the right ear and 92 percent in the left ear do not demonstrate a substantial impairment of his
speech discrimination.14 As the record does not contain evidence that he developed tinnitus
which impacted the activities of his daily living, he is not entitled to an additional schedule
award for this condition.15
OWCP properly referred the medical evidence to OWCP’s medical adviser, for a rating
of permanent impairment in accordance with the A.M.A., Guides.16
In a December 8, 2010 report, OWCP’s medical adviser applied the findings of the
October 26, 2010 audiogram to calculate five percent binaural hearing loss. In accordance with
the A.M.A., Guides, he averaged appellant’s hearing levels of 20, 20, 30 and 50 dBA in the left
ear and 20, 20, 35 and 35 dBA in the right ear at Hz levels of 500, 1,000, 2,000 and 3,000,
respectively, to find average hearing levels of 30 on the left and 27.5 on the right.17 The medical
adviser then subtracted a 25 dBA fence and multiplied the remaining balance, of 5 on the left and
2.5 on the right, by 1.5 to calculate 7.5 percent left ear monaural loss (rounded up to 8 percent)
and 3.75 percent right ear monaural loss (rounded up to 4 percent). Using the A.M.A, Guides, he
calculated five percent binaural hearing loss by multiplying the lesser right ear monaural loss of
four percent by five, adding the greater eight percent left ear loss and dividing this sum by six.18
The Board finds that the medical adviser properly applied the A.M.A., Guides in calculating that
appellant sustained five percent binaural hearing loss.

12

Supra note 9.

13

R.G., Docket No. 11-19 (issued August 3, 2011); J.P., Docket No. 09-1520 (issued March 1, 2010).

14

Id. See also S.G., 58 ECAB 383 (2007).

15

See R.D., Docket No. 07-379 (issued October 2, 2007).

16

See Hildred I. Lloyd, 42 ECAB 944 (1991).

17

Supra note 12.

18

Supra note 7.

5

It is well established that, when the examining physician does not provide an estimate of
impairment conforming to the A.M.A., Guides, OWCP may rely on the impairment rating
provided by a medical adviser.19 As OWCP’s medical adviser properly applied the A.M.A.,
Guides in calculating appellant’s impairment rating, OWCP correctly relied on his opinion to
find that appellant sustained five percent binaural hearing loss.20 The Board finds that there is no
evidence of greater impairment.
Appellant argues that this figure should have been adjusted to reflect the impact of
tinnitus (ringing in the ears) on his hearing loss. As previously noted, while Dr. Rowin included
impairment for this condition, he provided no opinion, rationalized or otherwise, specifically
addressing the impact of tinnitus on appellant’s activities of daily living and therefore neither
OWCP’s medical adviser nor OWCP were required to factor in the impact of tinnitus on
appellant’s hearing loss.21 Accordingly, the Board finds that appellant has not established
tinnitus as compensable.22
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
A claimant for compensation not satisfied with a decision by OWCP is entitled, on
request made within 30 days after the date of the issuance of the decision, to a hearing on his
claim before a representative of the Secretary.23 According to 20 C.F.R. § 10.615, a claimant
shall be afforded a choice of an oral hearing or a review of the written record.24 The regulations
provide that a request for a hearing or review of the written record must be made within 30 days
as determined by the postmark or other carrier’s date marking, of the date of the decision.25 A
claimant is not entitled to a hearing or a review of the written record as a matter of right if the
request is not made within 30 days of the date of the OWCP decision.26 OWCP has discretion,
however, to grant or deny a request that is made after this 30-day period.27 In such a case, it will

19

J.Q., Docket No. 06-2152 (issued March 5, 2008).

20

See Linda Beale, 57 ECAB 429 (2006).

21

See Juan A. Trevino, 54 ECAB 356, 358 (2003).

22

Supra note 9; see also R.G., Docket 11-19 (issued August 3, 2011); R.D., Docket No. 07-379 (issued
October 2, 2007).
23

5 U.S.C. § 8124(b)(1).

24

20 C.F.R. § 10.615.

25

Id. at § 10.616(a).

26

See James Smith, 53 ECAB 188 (2001).

27

Herbert C. Holley, 33 ECAB 140 (1981).

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determine whether to grant a discretionary hearing and, if not, will so advise the claimant with
reasons.28
ANALYSIS -- ISSUE 2
In the present case, appellant requested review of the written record on August 22, 2011
and OWCP found that the reconsideration request was postmarked on that same date. His
request was made more than 30 days after the date of issuance of OWCP’s prior decision dated
June 14, 2011. Therefore, OWCP properly found in its September 23, 2011 decision that
appellant was not entitled to an oral hearing or examination of the written record as a matter of
right because his request for review of the written record was not made within 30 days of its
June 14, 2011 decision.29
OWCP, however, has the discretionary authority to grant a hearing if the request was not
timely filed. In its September 23, 2011 decision, it considered the issue involved and properly
exercised its discretion when it denied appellant’s request for review of the written record and
determined that he could equally well address the issue of whether he sustained a greater
percentage of impairment than what was previously awarded by requesting reconsideration and
submitting new evidence. The Board has held that the only limitation on OWCP’s authority is
reasonableness. Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment or actions taken which are contrary to both logic and probable
deduction from established facts.30 In the present case, OWCP did not abuse its discretion in
denying a discretionary review of the written record and properly denied appellant’s request
under section 8124 of FECA.31
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not establish that he sustained greater than five percent
binaural hearing loss for which he received a schedule award. The Board also finds that OWCP
properly denied appellant’s request for review of the written record as untimely.

28

Id.

29

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602 (May 1991).

30

Teresa M. Valle, 57 ECAB 542 (2006); Daniel J. Perea, 42 ECAB 214 (1990).

31

See D.F., Docket No. 11-42 (issued August 1, 2011); Hubert Jones, Jr., 57 ECAB 467 (2006).

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ORDER
IT IS HEREBY ORDERED THAT the September 23 and June 14, 2011 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: June 7, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

8