United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.F., Appellant
and
DEPARTMENT OF THE AIR FORCE,
WRIGHT-PATTERSON AIR FORCE BASE,
Greene, OH, Employer
__________________________________________

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Appearances:
William S. Shanahan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1790
Issued: February 6, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 2, 2008 appellant filed a timely appeal from a September 10, 2007 decision of
the Office of Workers’ Compensation Programs that denied her claim. Pursuant to 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 established that she was totally disabled beginning
March 4, 2004 due to her accepted bilateral upper extremity conditions; and (2) whether the
Office met its burden of proof to terminate her medical benefits effective February 22, 2007.
FACTUAL HISTORY
On May 18, 1988 appellant, then a 34-year-old management analyst, sustained an
employment-related fracture of the right wrist. She lost little time from work and returned to full
duty within four months of the injury.1 Appellant voluntarily retired on January 3, 2003 and
1

In 1998 appellant’s workstation was evaluated by occupational medicine and she was given an ergonomic chair.

received a retirement incentive of $25,000.00.2 On May 24, 2004 she filed a Form CA-2,
occupational disease claim, alleging that factors of her federal employment caused carpal tunnel
and tendinitis in both wrists. On September 14, 2004 appellant filed a Form CA-7, claim for
compensation, beginning March 4, 2004.
In a March 4, 2004 report, Dr. Tiina Luig, Board-certified in family medicine, noted
appellant’s complaints of right wrist and arm pain. She diagnosed de Quervain’s tenosynovitis
and history of long-standing carpal tunnel syndrome. In reports dated April 2 to July 13, 2004,
Dr. Kenneth L. Corbin, Board-certified in family medicine, noted appellant’s history that she had
problems with her wrists beginning in 1992, that she retired in January 2003 and was working on
her computer at home for one to two hours per day. Appellant complained of bilateral arm,
hand, and thumb pain. Dr. Corbin diagnosed bilateral thumb pain, tenosynovitis of both thumbs
with de Quervain’s syndrome, extensor tendinitis of both wrists and mild carpal tunnel syndrome
bilaterally. By report dated August 23, 2004, Dr. Jeffrey O. McGillicuddy, a Board-certified
orthopedic surgeon, noted appellant’s complaints of bilateral wrist, hand and thumb pain. He
provided physical findings and diagnosed bilateral de Quervain’s tenosynovitis.
On September 3, 2004 the Office accepted that appellant sustained bilateral carpal tunnel
syndrome and right tennis elbow.
In reports dated October 19, 2004, Dr. Corbin reiterated his diagnoses, noted that
appellant had limited motion of her left thumb and advised that appellant could perform
nonrepetitive work with her hands for short duration only. He referred her to Dr. James T. Lin,
Board-certified in plastic and hand surgery. By report dated November 30, 2004, Dr. Lin noted
appellant’s complaints of bilateral wrist, forearm and thumb pain and that her left thumb locked.
Wrist compression and Phalen’s tests were positive bilaterally. Dr. Lin diagnosed bilateral
de Quervain’s tenosynovitis, left greater than right; bilateral thumb tenosynovitis, left greater
than right; left thumb stenosing tenosynovitis and bilateral carpal tunnel syndrome. He noted
that appellant was retired and if she was to return to work, she should remain on light duty
without repetitive wrist motion. A January 4, 2005 upper extremity electromyography (EMG)
and nerve conduction study (NCS) was interpreted as abnormal with evidence of bilateral
median neuropathy across the wrist consistent with bilateral mild carpal tunnel syndrome and
evidence of de Quervain’s tenosynovitis. On January 11, 2005 Dr. Lin advised that appellant
should remain on light duty with no repetitive wrist motion.
On January 27, 2005 the Office accepted bilateral thumb tendinitis and bilateral
de Quervain’s wrist tendinitis.
On February 17, 2005 Dr. Lin provided left carpal tunnel release and left trigger thumb
release. On June 29, 2005 the Office referred appellant to Dr. Aubrey A. Swartz, Board-certified
in orthopedic surgery, for a second opinion evaluation. On August 2, 2005 Dr. Lin advised that
appellant could type for four hours daily.

2

In statements, appellant described her job duties up to her retirement and described her symptoms, noting that
they worsened in February 2004.

2

In an August 3, 2005 report, Dr. Swartz noted his review of the statement of accepted
facts and medical record, appellant’s complaint of left wrist, shoulder, elbow, hand and thumb
pain, and right elbow, wrist and hand pain, and her report that she spent two hours daily on her
home computer. Phalen’s test was negative bilaterally. Dr. Swartz advised that appellant had
mild, employment-related carpal tunnel syndrome on the left with no residuals and no evidence
of carpal tunnel syndrome on the right. He stated that her activities of daily living, including
computer work at home, hypothyroid condition and obesity were aggravating factors. Dr. Swartz
found that the effects of the repetitive duties at work subsided within one year of her retirement
on January 3, 2004. He advised that appellant could repetitively use her hands for 30 minutes
each hour, and that she would no longer have been disabled within three months after her left
carpal tunnel and thumb surgery. Dr. Swartz concluded that any work-related residual for the
neck, shoulders, left elbow, de Quervain’s tendinitis of the left wrist or any symptoms in the
right upper extremity would no longer be considered work related as of January 3, 2004. In an
attached work capacity evaluation, he advised that appellant could work eight hours daily with
permanent restrictions of six hours reaching, four hours reaching above the shoulder, six hours
operating a motor vehicle, four to five hours repetitively moving her wrists and elbows, four
hours of pushing, pulling and lifting with a 10-pound weight restriction.
By report dated September 3, 2005, Dr. Corbin noted that he had not seen appellant for
one year and that she had surgery on her left wrist and thumb in the interim. He listed physical
findings and diagnosed bilateral carpal tunnel syndrome, both improved substantially, negative
bilateral epicondylitis, bilateral thumb de Quervain’s syndrome, persistent but improved, and
bilateral wrist extension tendinitis. Dr. Corbin noted his disagreement with Dr. Swartz’s
conclusion that appellant’s current condition was no longer employment related. He advised that
the thumb tendinitis, de Quervain’s syndrome and wrist tendinitis were an ongoing work-related
disability that had not resolved and opined that her current employment was limited due to lack
of ability for repetitive hand use. In a supplementary report dated October 3, 2005, Dr. Swartz
advised that appellant still had a work-related component to her condition of about 50 percent
and that she could work with repetitive hand use restricted to 30 minutes per hour.
On September 13 and October 31, 2005 Dr. Lin advised that appellant could work
modified duty of two hours typing and six hours of not typing. On December 5, 2005 he noted
that appellant had retired in January 2003. Dr. Lin stated:
“[Appellant] had left carpal tunnel release and trigger thumb release on
February 17, 2005. Postoperatively, her hand was stiff that she required
aggressive range of motion exercise. After extensive therapy [appellant’s] left
hand had improved. Since [she] wanted to go back to work, I requested her to go
back to work with four hours of computer usage and four hours of no computer
usage. It appears that [appellant’s] workplace could not find this kind of
modification that she did not go back to work. She however had been practicing
data entry skill at home to see how her hand could tolerate the restriction. There
is a note from September 13, 2005 stating that [appellant] had been typing four

3

hours a day at home and it makes her hands swollen. My recommendation was to
decrease her job restriction to two hours of typing and six hours and no typing.”
Dr. Lin disagreed with Dr. Swartz’s analysis that appellant’s tenosynovitis was not work related,
noting that she had it on November 30, 2004 when he initially examined her. In reports dated
December 5, 2005, January 9, February 14, March 28, 2006 and May 16, 2006, he advised that
appellant was temporarily totally disabled and was awaiting authorization for surgery.
On March 13, 2006 the employing establishment informed the Office that appellant had
voluntarily retired with an incentive of $25,000.00, that she was on full duty at the time of
retirement and her position was not in jeopardy of a reduction-in-force. By decision dated
April 7, 2006, the Office denied appellant’s claim for wage-loss compensation for the period
beginning March 4, 2004 and continuing, with the exception of the period February 17 to
May 17, 2005 following her left upper extremity surgery. On April 24, 2006 appellant requested
a hearing.
The Office found that a conflict in medical opinion arose between Dr. Swartz and Dr. Lin
regarding whether appellant had residuals of her employment injuries and was totally disabled.
On July 10, 2006 it referred her to Dr. John W. Batcheller, a Board-certified orthopedic surgeon,
for an impartial evaluation.
In a report dated August 7, 2006, Dr. Batcheller reviewed the record and appellant’s
complaint of triggering in both thumbs, constant bilateral radial wrist pain, and vague numbness
of the radial wrist and thumb with morning numbness in all fingers. Physical examination of the
shoulders and upper extremities demonstrated normal mechanics of motion with no evidence of
wasting or limb asymmetry. Motor function and strength were normal and equal bilaterally, and
sensory and vascular function were within normal limits. Tinel’s and Phalen’s tests were
negative. Range of motion in all joints except the left thumb at the level of the interphalangeal
(IP) joint were normal. The left thumb IP joint flexed to 45 degrees compared to 90 degrees on
the left. Extension was full in all joints of both hands and fingers. Dr. Batcheller’s impression
was multiple upper extremity complaints with past diagnoses of bilateral carpal tunnel syndrome,
bilateral de Quervain’s tenosynovitis, bilateral tenosynovitis of the thumbs (trigger thumb left),
status postoperative left carpal tunnel release and left trigger thumb release, hypothyroidism and
obesity. He advised that appellant did not present with a typical clinical picture of carpal tunnel
syndrome, found no evidence of de Quervain’s tenosynovitis, and noted that appellant had no
lateral epicondylar complaints of either elbow at the time of his examination. Dr. Batcheller
noted that the surgery on appellant’s left thumb was not successful and would have to be
repeated but that the flare-up of her symptoms after she had retired brought into question the
relationship of her complaints to work activities which were semi-sedentary at best. He opined
that office work, whether it involved the use of a computer or not, should not have produced her
long-standing symptoms, and that her hypothyroidism could be a contributing, if not causative,
factor in all her upper extremity complaints. As appellant’s symptoms had persisted and flared
up after she retired, a rheumatology consultation was recommended. Her current complaints
were not consistent with a work-related injury and any work-related aggravation ceased
following her retirement in January 2003. Dr. Batcheller concluded that appellant had no periods
of work-related temporary disability following her retirement and that she was capable of
performing the work activities of her previous employment with the only restriction that she not

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frequently pinch. In an attached work capacity evaluation, he advised that she could work eight
hours a day with reaching and operating a motor vehicle restricted to six hours daily, repetitive
movements of the wrists and elbows restricted to four to five hours daily, and pushing, pulling
and lifting restricted to 10 pounds, four hours daily.
A telephonic hearing was held on August 28, 2006. Appellant testified that she disagreed
with the April 7, 2006 decision that she had not worked since she retired, and described her
current medical condition and need for right wrist and thumb surgery.3
By decision dated November 14, 2006, an Office hearing representative affirmed the
April 7, 2006 decision, as modified, to find that appellant was entitled to wage-loss
compensation for the period February 17 to July 15, 2005 following her left upper extremity
surgery.
In a supplementary report dated December 18, 2006, Dr. Batcheller advised that the only
objective finding in appellant’s examination was the limitation of flexion of the IP joint of the
left thumb which he did not consider to be a significant restriction since the thumb is rarely used
in the position of 90 degrees of flexion. He concluded that appellant’s complaints were not work
related.
By letter dated January 22, 2007, the Office proposed to terminate appellant’s
compensation benefits based on the opinion of Dr. Batcheller that appellant had no disability or
residuals of her work-related conditions.
Appellant submitted a form report dated February 13, 2007 in which Dr. Lin disagreed
with Dr. Batcheller’s conclusions and advised that appellant was temporarily totally disabled.
In a February 22, 2007 decision, the Office terminated appellant’s compensation benefits.
In statements dated February 17 and 21, 2007, received by the Office on February 26
and 27, 2007 respectively, appellant disagreed with the termination. On March 14, 2007 she
requested a hearing. A telephonic hearing was held on July 11, 2007. Appellant testified that
she had not seen a doctor in three or four months and still required surgery. By decision dated
September 10, 2007, an Office hearing representative affirmed the February 22, 2007 decision.
LEGAL PRECEDENT -- ISSUE 1
Under the Act4 the term “disability” is defined as incapacity, because of employment
injury, to earn the wages that the employee was receiving at the time of injury.5 Disability is
3

Appellant declined benefits under the Federal Employees’ Compensation Act and remained on Office of
Personnel Management retirement. An injured employee must make an election between compensation for
disability and retirement pay. Michael A. Grossman, 51 ECAB 673 (2000). A claimant may not concurrently
receive separation “buy-out” pay and payment for total disability. Separation pay should be applied to the amount
of wage-loss compensation on a dollar-for-dollar basis. Willard S. Moger, Jr., 51 ECAB 550 (2000).
4

5 U.S.C. §§ 8101-8193.

5

See Robert A. Flint, 57 ECAB 369 (2006).

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thus not synonymous with physical impairment which may or may not result in an incapacity to
earn the wages. An employee who has a physical impairment causally related to a federal
employment injury but who nonetheless has the capacity to earn wages he or she was receiving
at the time of injury has no disability as that term is used in the Act,6 and whether a particular
injury causes an employee disability for employment is a medical issue which must be resolved
by competent medical evidence.7 Whether a particular injury causes an employee to be disabled
for work and the duration of that disability, are medical issues that must be proved by a
preponderance of the probative and reliable medical evidence.8
The Board will not require the Office to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.9 It is well established that medical conclusions unsupported by
rationale are of limited probative value,10 and when a claimant stops working at the employing
establishment for reasons unrelated to his or her employment-related physical condition, the
claimant has no disability with the meaning of the Act.11
When there are opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based on a proper factual
background, must be given special weight.12
ANALYSIS -- ISSUE 1
When appellant retired on January 3, 2003, there was no evidence to show that she
stopped work due to an employment-related condition.13 Appellant has the burden of proof to
establish that her claimed disability beginning in March 2004 is related to her employment
injuries. The Board finds that she did not submit sufficient medical evidence to meet her burden
of proof.
The Office determined that a conflict in medical opinion arose between Dr. Lin,
appellant’s attending physician, and Dr. Swartz, who provided a second opinion evaluation for
the Office. It properly referred appellant to Dr. Batcheller, Board-certified in orthopedic surgery,
6

D.M., 59 ECAB ___ (Docket No. 07-1230, issued November 13, 2007).

7

Carol A. Lyles, 57 ECAB 265 (2005).

8

Amelia S. Jefferson, 57 ECAB 183 (2005).

9

Id.

10

See T.F., 58 ECAB ____ (Docket No. 06-1186, issued October 19, 2006).

11

See Richard A. Neidert, 57 ECAB 474 (2006).

12

Darlene R. Kennedy, 57 ECAB 414 (2006).

13

See Richard A. Neidert, supra note 11.

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for an impartial evaluation.14 The Board finds that the well-rationalized opinion of
Dr. Batcheller is entitled to special weight. On August 7, 2006 Dr. Batcheller reviewed the
medical record and appellant’s complaints. He performed physical examination of the shoulders
and upper extremities and diagnosed multiple upper extremities complaints with past diagnoses
of bilateral carpal tunnel syndrome, bilateral de Quervain’s tenosynovitis, bilateral tenosynovitis
of the thumbs (trigger thumb left), status postoperative left carpal tunnel release and left trigger
thumb release, hypothyroidism and obesity. Dr. Batcheller advised that appellant did not present
with a typical clinical picture of carpal tunnel syndrome. He found no evidence of de Quervain’s
tenosynovitis, noted that appellant had no lateral epicondylar complaints upon examination of
either elbow, and advised that, as the surgery on appellant’s left thumb was not successful, it
would have to be repeated. Dr. Batcheller opined that the relationship between appellant’s
complaints and her previous work was questionable because her symptoms flared after she had
retired and her previous work activities were semi-sedentary at best. He opined that office work,
whether it involved the use of a computer or not, should not have produced her long-standing
symptoms and her current complaints were not consistent with a work-related injury.
Dr. Batcheller concluded that any work-related aggravation would have ceased following her
retirement in January 2003 and that she was capable of performing the work activities of her
previous employment for eight hours daily with restrictions that she not frequently pinch, limit
repetitive movements of the wrists and elbows to four to five hours daily, and pushing, pulling
and lifting to 10 pounds, four hours daily. In a December 18, 2006 report, Dr. Batcheller advised
that the only objective finding in appellant’s examination was the limitation of flexion of the IP
joint of the left thumb and her complaints were not work related.
Dr. Batcheller provided a comprehensive, well-rationalized evaluation in which he found
that appellant had no periods of work-related disability following her retirement in January 2003
and was capable of performing the work activities of her previous employment. His opinion is
therefore entitled to the special weight accorded an impartial examiner and constitutes the weight
of the medical evidence that appellant had no employment-related disability after
March 4, 2004.15 While Dr. Lin disagreed with Dr. Batcheller’s findings and conclusions in a
February 13, 2007 report, a subsequently submitted report of a physician on one side of a
resolved conflict of medical opinion is generally insufficient to overcome the weight of the
impartial medical specialist or to create a new conflict of medical opinion.16 The Board finds
that Dr. Lin’s February 13, 2007 report is insufficient to overcome the weight accorded
Dr. Batcheller as an impartial medical specialist.
LEGAL PRECEDENT -- ISSUE 2
Once the Office 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.
After it has determined that an employee has disability causally related to his or her federal
employment, the Office may not terminate compensation without establishing that the disability
14

Id.

15

See Sharyn D. Bannick, 54 ECAB 537 (2003).

16

Richard O’Brien, 53 ECAB 234 (2001).

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has ceased or that it is no longer related to the employment. The right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability. To terminate
authorization for medical treatment, the Office must establish that appellant no longer has
residuals of an employment-related condition, which require further medical treatment.17
ANALYSIS -- ISSUE 2
The Board finds that, with the exception of appellant’s left thumb, based on
Dr. Batcheller’s referee opinion, the Office met its burden of proof to establish that the residuals
of appellant’s work-related conditions had ceased. In reports dated August 7 and December 18,
2006, Dr. Batcheller advised that the only objective finding of appellant’s on physical
examination was in regard to her left thumb, discussed below. He specifically advised that
appellant did not present with a typical clinical picture of carpal tunnel syndrome, found no
evidence of de Quervain’s tenosynovitis, and noted that appellant had no lateral epicondylar
complaints at the time of his examination of either elbow and that her current complaints were
not consistent with a work-related injury and that any work-related aggravation would have
ceased following her retirement in January 2003. Dr. Batcheller concluded that appellant’s
complaints were not work related. His opinion is therefore sufficiently rationalized to establish
that appellant’s bilateral carpal tunnel syndrome, right tennis elbow, right thumb tendinitis and
bilateral de Quervain’s wrist tendinitis had ceased.18
Dr. Batcheller noted, however, that appellant continued to have a limitation in motion of
the IP joint of the left thumb. Thus, appellant is entitled to continuing medical treatment for her
left thumb condition and the Office did not meet its burden of proof to terminate medical benefits
for this condition.
CONCLUSION
The Board finds that appellant did not establish that she was totally disabled beginning
March 4, 2004 due to her accepted bilateral upper extremity conditions. The Office did not meet
its burden of proof to terminate appellant’s medical benefits effective February 22, 2007 for her
left thumb condition.

17

Kathryn E. Demarsh, 56 ECAB 677 (2005).

18

See Darlene R. Kennedy, supra note 12.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 10, 2007 be affirmed in part and reversed in part.
Issued: February 6, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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

Case Submitted on the Record

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

On September 23, 2021 appellant, through counsel, filed an appeal from a purported
decision of the Office of Workers’ Compensation Programs (OWCP) dated August 24, 2019. The
Clerk of the Appellate Boards assigned the appeal Docket No. 21-1400.
The Board has duly considered the matter and concludes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act. 2
This jurisdiction encompasses any final adverse decision issued by OWCP within 180 days of the
date appellant filed her appeal. 3 The case record as transmitted to the Board does not contain a
final adverse decision of OWCP issued within 180 days from the date of docketing of the current
1

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

5 U.S.C. § 8101 et seq.; 20 C.F.R. §§ 501.2(c) and 501.3(a).

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

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

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

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

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
U.S. POSTAL SERVICE, SOUTHEAST
STATION, Oklahoma City, OK, Employer
__________________________________________

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

Docket No. 14-2023
Issued: June 11, 2015

Case Submitted on the Record

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

JURISDICTION
On September 23, 2014 appellant, through counsel, filed a timely appeal from an
August 5, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant established that she had more than 13 percent impairment
of her lower left extremity for which she received a schedule award.
On appeal, counsel contends that the decision was contrary to fact and law.

1
2

5 U.S.C. § 8101 et seq.

Counsel did not appeal from a July 21, 2014 merit decision wherein OWCP terminated appellant’s
compensation benefits as her actual earnings as a modified city carrier fairly and reasonably represented her wageearning capacity. Thus, it is not before the Board on this appeal. See 20 C.F.R. § 501.3.

FACTUAL HISTORY
On August 10, 2012 appellant, then a 50-year-old letter carrier, filed a traumatic injury
claim alleging that on August 9, 2012 she tripped on sloped ground and a small indentation in the
grass and suffered a severely sprained left ankle. On October 23, 2012 OWCP accepted her
claim for sprain of the left ankle, other acquired deformities of left ankle and foot, and left
ganglion of tendon. On September 25, 2012 appellant underwent an arthroscopy with extensive
debridement, left ankle, modified Brostrom, left ankle, and application of posterior splint, left.
On April 9, 2013 she underwent a left ankle arthrodesis. Appellant returned to work on July 18,
2013 full time with restrictions.
On March 5, 2014 appellant filed a claim for a schedule award. In support thereof, she
submitted a March 5, 2014 Permanent Impairment Worksheet by Dr. David Wade, her treating
podiatrist,3 who found that pursuant to the American Medical Association, Guides to the
Evaluation of Permanent Impairment (6th edition 2009) (A.M.A., Guides), after applying Table
16-2 for the criteria of tibial-talar and talus/calcaneus, appellant had a class 4 Class of Diagnosis
(CDX) (neutral).4 Dr. Wade noted grade modifiers of 1 for Functional History (GMFH), grade
modifiers of 4 for Physical Examination (GMPE), and found that Clinical Studies (GMCS) were
not applicable. After applying the grade modifiers, he found that appellant had a grade A or 50
percent impairment.
On March 24, 2014 OWCP referred Dr. Wade’s report to an OWCP medical adviser. In
a March 26, 2014 report, Dr. Ronald H. Blum, a Board-certified orthopedic surgeon and an
OWCP medical adviser, noted that Dr. Wade had not provided any supporting data to justify his
functional modifiers and no description of malalignment that would allow OWCP to determine
impairment in this case. He also noted that he could not find information supporting subtalar
arthrodesis. Dr. Blum concluded that the report by Dr. Wade was not adequate to allow him to
recommend impairment as it did not meet the requirements of OWCP. He suggested that OWCP
refer appellant for an alternate impairment medical evaluation.
On April 3, 2014 OWCP referred appellant to Dr. Michael Shawn Smith, a physiatrist,
for a second opinion. In an April 22, 2014 report, Dr. Smith assessed appellant with left anklefoot fusion status post significant sprain and cartilaginous injury involving arthrodesis of the
tibia-talus, and talus-calcaneus reported history of malalignment. He determined the grade
modifiers as follows: grade modifier of 1 for functional history, grade modifier of 3 for clinical
studies based on magnetic resonance imaging (MRI) scan findings and grade modifier of 2 for
physical examination. However, Dr. Smith stated that the grade modifier for clinical studies was
not used as part of the impairment rating for arthrodesis as described in Table 16-2 on page 508
of the A.M.A., Guides. He found that the grade modifiers resulted in a -5 adjustment or a
3

OWCP and its medical adviser mistakenly indicate that the March 5, 2014 worksheet was signed by Dr. Smith, a
reference to appellant’s prior treating podiatrist, Dr. G. Trent Smith. The signature on the report is appellant’s new
treating podiatrist, Dr. Wade. In a February 24, 2014 letter to OWCP, appellant indicated that Dr. Smith died on
February 4, 2014, and asked OWCP to approve a change in her physician to Dr. Wade, who was his partner. OWCP
authorized the change in physicians on February 27, 2014.
4

A.M.A., Guides 508.

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grade A. Dr. Smith noted that this would be a class 3 impairment as he found it would be more
of a neutral alignment than a malalignment as described in Table 16-2 of the A.M.A., Guides.
He noted that a grade A would result in 37 percent lower extremity impairment.
In a May 9, 2014 response, Dr. Blum reviewed the report and noted that a review of the
April 19, 2013 operative note did not reflect that anything more than a tibia/calcaneal fusion was
performed. He asked OWCP to provide Dr. Smith with a copy of his report and also a copy of
the operative notes dated September 25, 2012 (lateral ligament reconstruction) and April 9, 2013
for review and reconsideration.
On May 15, 2014 OWCP provided the medical evidence to Dr. Smith and requested a
supplemental opinion. In an opinion received by OWCP on July 11, 2014,5 Dr. Smith listed his
assessment as left ankle-foot fusion status post significant sprain and cartilaginous injury
involving arthrodesis of the tibia-talus joint. He indicated that this would indicate a class 1
impairment under ankle fusion as he found residual movement to be more of a neutral alignment
than a misalignment as described in Table 16-2, page 508. Dr. Smith noted grade modifiers of 1
for functional history, a clinical studies grade modifier of 3 based on MRI scan findings, and a
physical examination grade modifier of 2. He noted that this resulted in a net adjustment value
of +2, which results in grade E, and that grade E indicates a 13 percent lower extremity
impairment.
On July 17, 2014 OWCP again referred the case to Dr. Michael M. Katz, a Boardcertified orthopedic surgeon and OWCP medical adviser, who agreed with Dr. Smith’s
calculations. Dr. Katz listed the diagnostic key factor under Table 16-2 of the A.M.A., Guides,
as fusion ankle, neutral positon, class 1, for a default value of 10 percent. He noted that the
grade modifiers yielded a +2 modification, as this is the maximum, from the default value C,
which he concluded equals class 1, grade E. Dr. Katz thus agreed with the assessed 13 percent
impairment found by Dr. Smith.
On August 5, 2014 OWCP issued a schedule award for a 13 percent impairment to
appellant’s left lower extremity.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform stands applicable to all
claimants. OWCP evaluates the degree of permanent impairment according to the standards set
5

The report received on July 11, 2014 has the same date as the prior April 22, 2014 report. However, this is an
error as the report is clearly new.
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

3

forth in the specified edition of the A.M.A., Guides.8 The A.M.A., Guides has been adopted by
the implementing regulations as the appropriate standard for evaluating schedule losses.9 For
impairment ratings calculated on or after May 1, 2009, OWCP should advise any physician
evaluating permanent impairment to use the sixth edition.10
The sixth edition requires identifying the impairment class for the diagnosed condition,
which is then adjusted by grade modifiers based on functional history, physical examination, and
clinical studies.11 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX).12
ANALYSIS
OWCP accepted appellant’s claim for sprain of the left ankle, other acquired deformities
of the left ankle and foot, and left ganglion of tendon. Appellant underwent surgeries on her left
ankle on September 25, 2012 and April 9, 2013.
The Board finds that OWCP properly determined that appellant had a 13 percent
impairment to her left lower extremity. All medical opinions properly indicate that the
applicable table of the A.M.A., Guides is Table 16-2.13
Dr. Wade, appellant’s treating podiatrist, found that pursuant to Table 16-2, and applying
the criteria of tibial-talar and talus/calcaneus, appellant had a class 4 diagnosis (neutral). He then
applied grade modifiers which he determined yielded a grade A impairment of 50 percent.
Dr. Blum noted that Dr. Wade did not provide descriptions of the grade modifiers and there was
no description of a malalignment that would allow OWCP to determine impairment in this case.
He also noted that he could find no information supporting that a subtalar arthrodesis had been
performed. Dr. Blum recommended referral to a second opinion physician. The Board also
notes that Dr. Wade’s opinion is devoid of a narrative explanation that would assist OWCP in
determining appellant’s impairment. Furthermore, Dr. Wade states that appellant had a class 4
class of diagnosis (neutral). However, according to Table 16-2, class 4 is for a malalignment;
class 3 is for neutral. Therefore, Dr. Wade’s opinion is of limited value in determining a
schedule award.
The second opinion physician, Dr. Smith, issued his initial opinion on April 22, 2014 and
found that appellant had a 37 percent impairment of her lower extremity under Table 16-2 of the
A.M.A., Guides. In making his calculations, he noted that she had a class 3 impairment as he
8

Id.

9

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.a (January 2010).
11

A.M.A., Guides 494-531.

12

Id. at 521.

13

Id. at 508.

4

found a neutral alignment involving an arthrodesis of the tibia-talus joint and he noted that grade
modifiers would bring appellant’s impairment rating to a grade A or 37 percent impairment of
the left lower extremity. Dr. Katz found that his review of the record did not reflect anything
more than a tibia/calcaneal fusion and asked that Dr. Smith review a copy of the operative notes
from appellant’s September 25, 2012 and April 9, 2013 surgery. Dr. Smith reviewed these
documents, and issued a new evaluation wherein, applying Table 16-2 of the A.M.A., Guides, he
determined appellant’s class of diagnosis to be a class 1 impairment under ankle fusion. He
noted grade modifiers of 1 for functional history, 3 for clinical studies and 2 for physical
examination. Dr. Smith determined that applying these grade modifiers yielded a class 1, grade
E impairment, which as noted in Table 16-2, is equal to a 13 percent impairment of the left lower
extremity. Dr. Katz agreed with Dr. Smith’s calculations and conclusion.
The Board finds that Dr. Smith appropriately applied the sixth edition of the A.M.A.,
Guides determining that appellant had a 13 percent impairment of the left lower extremity.
Appellant has not established any greater impairment.
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.
CONCLUSION
The Board finds that appellant has not established that she had greater than 13 percent
impairment to her left lower extremity for which she received a schedule award.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 5, 2014 is affirmed.
Issued: June 11, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
DEPARTMENT OF JUSTICE, U.S.
MARSHALLS SERVICE, Omaha, NE, Employer
__________________________________________

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

Docket No. 15-1331
Issued: March 18, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On May 27, 2015 appellant filed a timely appeal from an April 30, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
has elapsed from the last merit decision dated August 2, 2013 to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
On appeal appellant argues that his lumbar problems relate to an accepted October 4,
2004 employment injury. He contends that the medical evidence submitted establishes his
claims and medical expenses incurred should be paid by OWCP.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 19, 2013 appellant, then a 38-year-old criminal investigator, filed a traumatic
injury claim (Form CA-1) alleging that on June 18, 2013 he sustained severe lower back pain as
the result of bending/twisting reaching for his tactical vest.2
In a July 3, 2013 letter, OWCP informed appellant that the evidence of record was
insufficient to establish his claim. It advised him as to the medical and factual evidence required
to establish his claim and afforded him 30 days to provide the requested information.
In response to OWCP’s request appellant submitted hospital and medical reports.
In a June 20, 2013 emergency room report, Dr. Jeffrey S. Cooper, an examining Boardcertified emergency room physician, noted that appellant was seen for back pain which had
begun two days prior and that, according to appellant, it was a recurrent problem. Appellant
related that he first sustained a back injury in 2004, which had previously worsened. A physical
examination revealed lumbar back tenderness, decreased range of motion, and spasm.
A June 26, 2013 x-ray interpretation showed early lumbar spondylosis and degenerative
disc disease with no evidence of instability.
In a June 26, 2013 report signed by Dr. Chris A. Cornett, an examining Board-certified
orthopedic surgeon, and Dr. Brent R. Hood, an examining osteopath, appellant was diagnosed
with a herniated disc and lumbar degenerative disc disease. The doctors noted that appellant
sustained a back injury in 2004. A magnetic resonance imaging (MRI) scan taken at the time
showed L4-5, L5-S1 bulging discs. Appellant claimed to be incapacitated by back pain several
times a year and that he recently was seen in the emergency room. Drs. Cornett and Hood
reported that appellant had a recent episode of low back pain due to twisting and reaching for his
tactical vest while at work.
By decision dated August 2, 2013, OWCP denied the claim as the medical evidence of
record failed to establish a causal relationship between the diagnosed conditions and the accepted
June 18, 2013 incident.
Appellant was seen on May 7, 2014 by Dr. Cornett for a follow-up from his 2004 back
injury. He diagnosed an exacerbation of his preexisting back condition.
On June 9, 2014 OWCP received June 23, 2013 discharge instructions from Dr. Cooper,
a June 23, 2013 Nebraska Medical Center report by Dr. Aaron N. Barksdale, an examining
Board-certified emergency room physician, and appellant’s statement.
In the June 23, 2014 report, Dr. Barksdale provided physical examination findings and
diagnosed a likely right side lumbar muscle strain. Under history of injury, he noted that

2

A June 21, 2013 memorandum to file shows that appellant has prior claims under OWCP File Nos. xxxxxx337,
xxxxxx292, xxxxxx893, xxxxxx807, and xxxxxx153. No injury dates were associated with the claim numbers.

2

appellant had a history of recurrent back pain which had been aggravated when he reached into
his back seat a few days prior.
OWCP also received chiropractor reports from Mouw Family Chiropractic for the period
April 4 to July 22, 2014 which reflected a diagnosis of subluxation and provided details of the
treatment provided.
In a November 24, 2014 e-mail appellant requested help from the employing
establishment in getting his June 20, 2013 hospital bill paid. He stated that his emergency room
visits on June 20 and 23, 2013 were due to his accepted October 4, 2004 injury. While OWCP
paid the June 20, 2013 emergency room bill, it denied the June 23, 2013 emergency room bill.3
On December 1, 2014 OWCP received appellant’s July 11, 2014 reconsideration request
of the August 2, 2013 decision.
Subsequent to his request for reconsideration appellant submitted evidence regarding bills
and payment materials for the June 23, 2013 Nebraska Medicine emergency room visit, his
statement regarding unpaid bills for his accepted lumbar condition, and claims filed with OWCP
for this condition.
On February 27, 2015 OWCP accepted the condition of L4 and L5 lumbar subluxation
due to an April 4, 2014 employment injury.
By decision dated April 30, 2015, OWCP denied appellant’s July 11, 2014
reconsideration request because his request was untimely filed and failed to demonstrate clear
evidence of error.
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his application for review within one year of the date of that decision.4 The
Board has found that the imposition of the one-year time limitation does not constitute an abuse
of the discretionary authority granted OWCP under section 8128(a) of FECA.5
OWCP, however, may not deny an application for review solely as the application was
untimely filed. When an application for review is untimely filed, it must nevertheless undertake
a limited review to determine whether the application demonstrates clear evidence of error.6
OWCP regulations and procedures provide that OWCP will reopen a claimant’s case for merit
3

Appellant also submitted evidence detailing his prior OWCP claims including, OWCP File Nos. xxxxxx337 (an
October 4, 2004 injury date), xxxxxx929 (a May 1, 2006 injury date), xxxxxx893 (an October 7, 2008 injury date),
xxxxxx807 (a February 10, 2009 injury date), xxxxxx153 (an October 23, 2012 injury date), xxxxxx436 (a June 18,
2013 injury date), and xxxxxx128 (an April 4, 2014 injury date).
4

20 C.F.R. § 10.607(a).

5

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6

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

3

review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the
claimant’s application for review demonstrates clear evidence of error on the part of OWCP.7
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue which was decided by OWCP.8 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error.9 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to
demonstrate clear evidence of error.10 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.11 This entails a limited review by OWCP of
how the evidence submitted with the reconsideration request bears on the evidence previously of
record and whether the new evidence demonstrates clear error on the part of OWCP.12 To show
clear evidence of error, the evidence submitted must not only be of sufficient probative value to
create a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.13
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
It issued its most recent merit decision in this case on August 2, 2013. OWCP received
appellant’s July 11, 2014 request for reconsideration on December 1, 2014; thus, the request was
outside the one-year time limit.14 Consequently, appellant must demonstrate clear evidence of
error by OWCP in denying his traumatic injury claim.15

7

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(e)
(December 2011). OWCP procedures further provide that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP made an error (for
example, proof that a schedule award was miscalculated). Evidence such as a detailed well-rationalized medical
report which, if submitted before the denial was issued, would have created a conflict in medical opinion requiring
further development, is not clear evidence of error. Id. at Chapter 2.1602.3c.
8

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

9

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

10

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

11

See supra note 9.

12

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

13

Leon D. Faidley, Jr., supra note 5.

14

See Federal (FECA) Procedure Manual, Part 2 – Claims, Reconsiderations, Chapter 2.1602(e)(6)
(August 2011). For decisions issued on or after August 29, 2011, there is still a one-year time limit for requesting
reconsideration. The one-year period begins on the date of the original decision and the application for
reconsideration must be received by OWCP within one year of the date of the decision for which review is sought.
15

20 C.F.R. § 10.607(a); see D.G., 59 ECAB 455 (2008); Debra McDavid, 57 ECAB 149 (2005).

4

The Board finds that the evidence submitted by appellant in support of his request for
reconsideration does not raise a substantial question as to the correctness of OWCP’s August 2,
2013 decision or shift the weight of the evidence of record in his favor. In the last merit
decision, OWCP found the medical evidence of record insufficient to establish a causal
relationship between appellant’s diagnosed medical conditions and the accepted June 18, 2013
incident.
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.16 Appellant has not submitted rationalized medical evidence
addressing how the June 18, 2013 incident caused or aggravated a lumbar condition. He
resubmitted a June 23, 2014 report by Dr. Barksdale which had been considered by OWCP in its
August 2, 2013 decision. Appellant also submitted a June 20, 2013 hospital bill and treatment
reports for the period April 4 to July 22, 2014 from his chiropractor. These reports postdate and
do not discuss the June 18, 2013 incident. Appellant has not provided any well-rationalized
medical opinion establishing error in the denial of his traumatic injury claim. The evidence
submitted by appellant is insufficient to raise a substantial question as to the correctness of the
last merit decision. He has not demonstrated clear evidence of error.
On appeal appellant’s argument concerns the failure of OWCP to pay medical bills which
he argues are clearly related to his accepted October 4, 2004 employment injury. He states that
he had a healthy back prior to working for the employing establishment and sustained an
accepted work injury on October 4, 2004. Since the October 4, 2004 injury appellant has had
pain and continuing back problems. He noted that he had also filed a traumatic injury claim for
an incident which occurred on April 4, 2014, which OWCP accepted and was as accurate as the
June 18, 2013 claim. Appellant contended that both the June 18, 2013 and April 4, 2014
incidents were an aggravation of his preexisting condition. In conclusion, he requested that
OWCP pay his medical bills for the June 23, 2013 emergency room visit, the unpaid chiropractic
treatment due to the April 4, 2014 injury, and that he be granted approval for 48 chiropractic
visits per year. As discussed above, the Board does not have jurisdiction over the merits of the
underlying issue of OWCP’s denial of his June 18, 2013 traumatic injury claim. Moreover,
appellant’s arguments pertain to the failure of OWCP to approve medical expenses related to
either the October 4, 2004 injury or aggravations of this condition.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits as his request was untimely filed and failed to demonstrate clear evidence of
error.

16

Howard Y. Miyashiro, 51 ECAB 253 (1999).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 30, 2015 is affirmed.
Issued: March 18, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.S., Appellant
and
U.S. POSTAL SERVICE, STOCKBRIDGE
POST OFFICE, Stockbridge, GA, Employer
__________________________________________

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

Docket No. 16-1084
Issued: October 21, 2016

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 April 25, 2016 appellant, through counsel, filed a timely appeal from a March 31,
2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed since the most recent OWCP merit decision dated March 26, 2015, to the
filing of the current 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 case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of her claim under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 1, 2010 appellant, then a 52-year-old letter carrier, sustained a lower back,
buttocks, left leg, and right arm injury when she slipped on stairs at work. OWCP accepted the
claim for lumbar sprain and left buttock contusion. Appellant stopped work and later accepted a
modified-duty position as a rural carrier on January 7, 2011. She was placed on the
supplemental compensation rolls and began receiving wage-loss compensation for the hours she
was unable to work until June 28, 2012 when the employing establishment was no longer able to
provide limited-duty work. Beginning November 18, 2012, appellant was placed on the periodic
compensation rolls.
Initial medical evidence included a June 17, 2010 report from Dr. Frank Chevres, an
orthopedic surgeon, who noted that appellant fell down steps while delivering a package. He
noted that she had severe low back pain, swelling, and bruising in the left buttock area.
Appellant also had preexisting occasional mild back pain. Dr. Chevres reported examination
findings and assessed contusion, left buttock hematoma, left hip sprain/strain, lumbosacral
strain/sprain, and possible mild lumbar degenerative disc disease. Initial diagnostic testing
performed on October 12, 2010 revealed degenerative changes greatest at L5-S1, no evidence of
nerve root compromise, and mild L5-S1 facet degenerative changes. Dr. Chevres continued to
submit status reports on appellant’s condition.
In a May 30, 2013 report, Dr. Chevres noted the history of appellant’s injury and her
treatment. On examination he advised that appellant had pain reproduction with all movements
of the lumbar spine more on the right than left, tenderness over the right lumbar paraspinal
muscles with myositis, tenderness over the right sacroiliac (SI) joint, pain on straight leg raising,
good reflexes of the lower extremities, and slight limping due to an unrelated condition.
Dr. Chevres assessed chronic lumbar sprain/strain, chronic lumbar pain, spinal stiffness, lower
extremity and hip pain, lumbar degenerative disc disease, and prior contusion/hematoma of the
left buttock area. He found that appellant remained unable to work.
On June 26, 2013 OWCP referred appellant to Dr. Raju Vanapalli, a Board-certified
orthopedic surgeon, for a second opinion regarding the status of her work-related conditions. In
a July 28, 2013 report, Dr. Vanapalli noted the history of appellant’s injury and treatment
history. On examination he noted normal gait, no deformity of the spine, tenderness over the
lumbosacral region, hypersensitivity to touch over the right SI joint, no tenderness or deformity
over the left buttock or hip, right straight leg raising to 40 degrees, left straight leg raising to 50
degrees, and negative sciatic stretch on both sides. Dr. Vanapalli opined that appellant’s
aggravation of degenerative disc disease of the lumbar spine resolved in 2012 and that the
persistence of pain was due to her preexisting degenerative spondylosis. He noted that she only
had subjective complaints of pain and self-limiting spinal movements. Dr. Vanapalli indicated
that appellant was not capable of performing the duties of a regular rural carrier for eight hours
per day and indicated that she could perform light-to-medium work for six-to-seven hours per

2

day. Appellant continued submitting status reports from Dr. Chevres as well as from Dr. Vicente
Galan, Board-certified in anesthesiology and pain medicine, to whom appellant was referred by
Dr. Chevres.
OWCP determined that there was a conflict in the medical evidence between the treating
physician, Dr. Chevres and OWCP’s referral physician, Dr. Vanapalli, regarding whether the
accepted conditions had resolved. By letter dated September 27, 2013, it informed appellant that
it had determined a conflict in the medical evidence and scheduled an impartial medical
examination with Dr. Alexander N. Doman, a Board-certified orthopedic surgeon.
In a November 5, 2013 report, Dr. Doman noted the history of appellant’s injury and
treatment history. In reviewing the medical records, he noted that appellant had a long history of
low back and neck pain preceding the June 1, 2010 work injury, a history of Crohn’s disease,
fibromyalgia, carpal tunnel syndrome, and plantar fasciitis. Dr. Doman also noted that
diagnostic testing performed on October 12, 2010 revealed a minor disc bulge at L4-L5, L5-S1
moderate-to-severe degenerative disc disease with degenerative changes and disc height, mild
narrowing at the neuroforamen, and slight left lateral recesses narrowing. On examination he
noted a normal gait, obvious signs of symptom exaggeration, no objective evidence of muscle
atrophy or weakness in the legs, negative straight leg raising, and symmetrical deep tendon
reflexes. Dr. Doman opined that appellant sustained a temporary aggravation of lumbar
degenerative disc disease and lumbar facet joint arthrosis at the L5-S1 level and that she no
longer had any residuals of the June 1, 2010 work injury. He advised of possible symptom
exaggerating, explaining that appellant related severe low back pain with simple attempts to flex
her knee while in the prone position when there was no physiologic possibility that such a
maneuver would result in low back pain. Dr. Doman indicated that appellant was able to work
full time without restrictions for eight hours per day.
By letter dated March 17, 2014, OWCP advised appellant that it proposed to terminate
wage-loss compensation and medical benefits. It advised that the weight of the evidence was
represented by Dr. Doman who found that there were no residuals of her accepted conditions.
Appellant provided a February 11, 2014 report from Dr. Chevres who noted Dr. Doman’s
findings and disagreed with his opinion. Dr. Chevres noted appellant’s current status and opined
that she could not work as a letter carrier. In a March 26, 2014 report, he reviewed appellant’s
history of treatment and again expressed his disagreement with Dr. Doman’s conclusion. He
advised that appellant had not recovered from her accepted condition and recommended that she
undergo a functional capacity evaluation. Appellant continued to submit status reports from
Drs. Chevres and Galan.
By decision dated June 11, 2014, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective June 11, 2014.
On June 17, 2014 appellant, through counsel, requested a telephone hearing before an
OWCP hearing representative. On January 12, 2015 an oral telephone hearing took place.
Counsel argued that the case should be remanded because new evidence from Dr. Chevres was
not considered. Appellant continued to submit reports from Dr. Chevres indicating that she
remained disabled due to her accepted conditions.

3

By decision dated March 26, 2015, an OWCP hearing representative affirmed the
termination of appellant’s compensation benefits.
By letter dated February 25, 2016 received on February 29, 2016, appellant, through
counsel, requested reconsideration and submitted a January 26, 2016 diagnostic report from
Dr. Ronald Gay, a Board-certified diagnostic radiologist. He noted that magnetic resonance
imaging (MRI) scan of the lumbosacral spine revealed multilevel degenerative disc and L4-L5
spondylosis with L5-S1 small right central disc protrusion.
By decision dated March 31, 2016, OWCP denied appellant’s request for reconsideration
of the merits.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
OWCP’s regulations provide that the evidence or argument submitted by a claimant must either:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.3 Where the request from
reconsideration fails to meet at least one of these standards, OWCP will deny the application for
reconsideration without opening the case for a review of the merits.4
ANALYSIS
In a March 26, 2015 merit decision, an OWCP hearing representative affirmed the
termination of appellant’s compensation benefits. Appellant submitted a timely request for
reconsideration on February 29, 2016, which OWCP denied on March 31, 2016.
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits. In support of reconsideration appellant submitted a January 26, 2016 diagnostic
report from Dr. Gay. However, while this report is new it is not relevant because it does not
address whether appellant continues to have residuals or disability causally related to the
accepted conditions. The submission of evidence that does not address the particular issue
involved does not constitute a basis for reopening a case.5
Furthermore, appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, nor did she advance a relevant legal argument not previously considered by
OWCP. Because she failed to meet one of the standards enumerated under 20 C.F.R.
§ 10.606(b)(3), OWCP properly denied further merit review of her claim, pursuant to 5 U.S.C.
§ 8128(a).

3

E.K., Docket No. 09-1827 (issued April 27, 2010). See 20 C.F.R. § 10.606(b)(3).

4

L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.606(b).

5

Jacqueline M. Nixon-Steward, 52 ECAB 140, 142 (2000).

4

CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of the claim, pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the March 31, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 21, 2016
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
DEPARTMENT OF LABOR, OCCUPATIONAL
SAFETY & HEALTH ADMINISTRATION,
Pittsburgh, PA, Employer
__________________________________________

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Appearances:
Steven E. Brown, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 12-669
Issued: October 10, 2012

Case Submitted on the Record

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

JURISDICTION
On February 2, 2012 appellant, through her attorney, timely appealed the January 3, 2012
merit decision of the Office of Workers’ Compensation Programs (OWCP), which affirmed the
termination of all benefits. 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.
ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective June 4, 2011.

1

Appellant had previously been represented by Gordon Reiselt, Esq., who withdrew from the case on
March 12, 2012.
2

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
Appellant, a 54-year-old safety and occupational health specialist, has several claims for
employment-related emotional conditions. Her accepted conditions include post-traumatic stress
disorder (PTSD), generalized anxiety disorder, aggravation of PTSD and aggravation of
generalized anxiety disorder. Appellant’s initial injury arose on or about April 24, 2006 (File
No. xxxxxx409), with subsequent injuries occurring on October 10, 2006 (File No. xxxxxx857),
July 11, 2008 (File No. xxxxxx113) and September 16, 2008 (File No. xxxxxx112). OWCP
combined the four above-noted emotional condition claims and designated claim File No.
xxxxxx409 as the master file. Appellant last worked on October 1, 2008. OWCP paid
appropriate wage-loss compensation beginning November 17, 2008, and subsequently placed her
on the periodic compensation rolls.
Since September 16, 2006, appellant has been under the care of Paul M. Bernstein, Ph.D.,
a psychologist, who initially diagnosed adjustment disorder with mixed anxiety and depressed
mood, then generalized anxiety disorder and ultimately PTSD. Dr. Bernstein found that she was
disabled beginning in July 2008 and supported her October 1, 2008 work stoppage. He has
continued to treat appellant on a regular basis for her symptoms of PTSD and generalized
anxiety disorder.
Dr. Christine A. Martone, a Board-certified psychiatrist and OWCP referral physician,
examined appellant on August 3, 2010. She diagnosed PTSD and generalized anxiety disorder,
with mood disturbance. Dr. Martone also noted an Axis 2 diagnosis of personality traits and
histrionics. She indicated that there was some symptom magnification or histrionic mechanism
preventing the resolution of appellant’s symptoms. Dr. Martone noted it was impossible to
determine when appellant’s symptoms had resolved given her dramatic presentation. She
believed there had been some improvement despite appellant’s statements to the contrary.
Dr. Martone indicated that appellant had returned to her April 2006 baseline and she had
received maximum medical improvement from her therapy. Although appellant could not
resume her regular duties because of the likely exacerbation of anxiety and PTSD, Dr. Martone
believed appellant could return to some other form of gainful, full-time employment or modified
work.
OWCP declared a conflict in medical opinion and referred appellant to an impartial
medical examiner.3 Dr. Stuart S. Burstein, a Board-certified psychiatrist and impartial medical
examiner, examined her on March 10, 2011. In his March 12, 2011 report, he indicated that
appellant’s PTSD had resolved, but her anger towards the employing establishment fueled her
continuing complaints. Dr. Burstein also noted that her physical health had taken a downward
turn. He indicated that the 29 months since appellant’s October 1, 2008 work stoppage, provided
ample opportunity for appellant to come to terms with her anxiety, which she had done.
Dr. Burstein explained that she was an overly excitable individual who found fault wherever she
3

OWCP initially referred appellant to Dr. Robert M. Wettstein, a Board-certified psychiatrist. It later learned that
Dr. Wettstein interviewed appellant’s psychologist, Dr. Bernstein, via telephone on October 12, 2010. Because of
the impartial medical examiner’s unauthorized direct contact with appellant’s psychologist, OWCP excluded
Dr. Wettstein’s October 28, 2010 report from the record and referred appellant to another impartial medical
examiner.

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turned with respect to her employer, and she was angry about purported deficiencies in their
operations and in particular, their response to her personal complaints and attention to her mental
health needs. While appellant showed no signs of wanting to return to work with the employing
establishment or any other employing establishment, Dr. Burstein believed from a psychiatric
standpoint, she could promptly return to full-time employment as a compliance safety and health
officer. Dr. Burstein stated that as of his March 10, 2011 examination, her generalized anxiety
disorder and PTSD ceased. He also noted that appellant reached an endpoint to her need for
psychotherapy. According to Dr. Burstein, appellant magnified symptoms and complaints in an
effort to maintain her current off-work status. There was no indication of mental impairment,
and from a psychiatric standpoint, she was capable of fully carrying out her former duties, albeit
reluctantly. In an April 19, 2011 supplemental report, Dr. Burstein clarified that his opinion
regarding the resolution of appellant’s accepted emotional condition as of March 10, 2011
pertained to all four combined claims (File No. xxxxxx409, File No. xxxxxx857, File No.
xxxxxx113 and File No. xxxxxx112).
In a decision dated January 3, 2012, OWCP terminated appellant’s wage-loss
compensation and medical benefits based on the impartial medical examiner’s March 12, 2011
findings.4 After conducting an oral hearing on October 12, 2011, the Branch of Hearings &
Review affirmed OWCP’s termination of benefits by decision dated January 3, 2012.5
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.6 Having determined that an employee has a disability
causally related to her federal employment, OWCP may not terminate compensation without
establishing either that the disability has ceased or that it is no longer related to the employment.7
The right to medical benefits for an accepted condition is not limited to the period of entitlement
to compensation for disability.8 To terminate authorization for medical treatment, OWCP must
establish that the employee no longer has residuals of an employment-related condition that
require further medical treatment.9 Once OWCP has properly modified or terminated benefits,
the burden of reinstating benefits shifts to the employee.10
4

OWCP issued an April 28, 2011 notice of proposed termination of FECA benefits and afforded appellant 30
days to submit additional evidence or argument. On May 25, 2011 counsel at the time responded challenging
OWCP’s exclusion of Dr. Wettstein’s October 28, 2010 report. OWCP did not receive any additional medical
evidence.
5

At the hearing and in his post hearing brief, appellant’s then-counsel continued to challenge OWCP’s exclusion
of Dr. Wettstein’s October 28, 2010 report.
6

Curtis Hall, 45 ECAB 316 (1994).

7

Jason C. Armstrong, 40 ECAB 907 (1989).

8

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

9

Calvin S. Mays, 39 ECAB 993 (1988).

10

Joseph A. Brown Jr., 55 ECAB 542, 544 n.5 (2004).

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FECA provides that if there is disagreement between an OWCP-designated examining
physician and the employee’s physician, OWCP shall appoint a third physician who shall make
an examination.11 For a conflict to arise the opposing physicians’ viewpoints must be of
“virtually equal weight and rationale.”12 Where OWCP has referred the case to an impartial
medical examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.13
ANALYSIS
OWCP declared a conflict in medical opinion between appellant’s psychologist,
Dr. Bernstein, and OWCP’s referral physician, Dr. Martone. Because of this conflict, OWCP
referred appellant to an impartial medical examiner.14 Dr. Burstein, the impartial medical
examiner, found that the accepted conditions of generalized anxiety disorder and PTSD had
ceased as of his March 10, 2011 examination, and appellant was capable, from a psychiatric
standpoint, of resuming her former duties and was fully capable of getting along without any
further psychotherapy. He opined that she had been out of work for over 29 months and that was
ample opportunity to come to terms with her anxiety and could promptly return to work 8 hours
a day in her job as a Compliance Safety and Health Officer. Further, Dr. Burstein stated that his
belief that appellant engages in symptom magnification to maintain her off-work status. In a
supplemental report dated April 19, 2011 and requested by OWCP, he stated that he took in all
four accepted compensable work factors in arriving at his medical conclusion.
As noted, when a case is referred to an impartial medical examiner to resolve a conflict,
the resulting medical opinion, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.15
The Board finds that OWCP properly deferred to Dr. Burstein’s March 12 and April 19,
2011 opinions regarding the resolution of appellant’s accepted emotional conditions and the
necessity of continued medical treatment. Dr. Burstein, the impartial medical examiner,
provided a well-reasoned report based on a proper factual and medical history. He accurately
summarized the relevant medical evidence, and relied on the latest statement of accepted facts
dated August 23, 2010, which included the various employment incidents considered
compensable. Dr. Burstein also examined appellant, administered additional testing and
provided a thorough review of her relevant medical records. His report included detailed
findings and medical rationale supporting his opinion. As the impartial medical examiner,
11

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994).

12

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

13

Gary R. Sieber, 46 ECAB 215, 225 (1994).

14

OWCP properly excluded Dr. Wettstein’s October 28, 2010 report because of “improper contact” with
Dr. Bernstein, who represented one side of the medical conflict. See Federal (FECA) Procedure Manual, Part 2 -Claims, Developing & Evaluating Medical Evidence, Chapter 2.810.12 (September 2010).
15

Gary R. Sieber, supra note 13.

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Dr. Burstein’s opinion was entitled to determinative weight.16 Accordingly, the Board finds that
OWCP satisfied its burden in terminating appellant’s wage-loss compensation and medical
benefits.
CONCLUSION
OWCP properly terminated appellant’s wage-loss compensation and medical benefits
effective June 4, 2011.
ORDER
IT IS HEREBY ORDERED THAT the January 3, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 10, 2012
Washington, DC

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

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

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

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Id.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
POSTGRADUATE SCHOOL, Monterey, CA,
Employer
__________________________________________

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Appearances:
Marshall A. Coyle, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1725
Issued: April 1, 2009

Case Submitted on the Record

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

JURISDICTION
On June 4, 2008 appellant, through his attorney, filed a timely appeal of the October 25,
2007 nonmerit decision of the Office of Workers’ Compensation Programs, denying his request
for reconsideration. Because more than one year has elapsed between the most recent merit
decision dated August 2, 2006 and the filing of the appeal, the Board lacks jurisdiction to review
the merits of his claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUE
The issue is whether the Office properly denied appellant’s request for a merit review of
his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 1, 1999 appellant, then a 49-year-old carpenter, filed a traumatic injury
claim alleging that on November 5, 1999 he sustained right shoulder and left arm strains as a
result of loading computers onto a truck. He stopped work on December 2, 1999. The Office

accepted the claim for left shoulder strain and bilateral elbow tendinitis. It paid appellant
appropriate compensation.
By decision dated September 21, 2004, the Office terminated appellant’s compensation
for wage-loss and medical benefits with regard to his accepted November 5, 1999 employmentrelated injuries, effective that date. It accorded weight to a July 8, 2004 medical report of
Dr. Aubrey A. Swartz, an Office referral physician, who found that appellant no longer had any
residuals or disability causally related to his accepted employment injuries.
Appellant requested reconsideration by letters dated October 20, 2004, April 1 and
June 10, 2005 and June 13, 2006. He submitted medical evidence in support of his contention
that he continued to have employment-related residuals and disability. In reports dated
October 30, 2004, June 3, August 19 and December 16, 2005 and May 15, 2006 Dr. Paul F.
Ware, an attending Board-certified surgeon, stated that appellant continued to have bilateral
shoulder symptoms which worsened, who opined that he was totally disabled from working as a
carpenter due to his November 5, 1999 employment injuries. He stated that appellant could
perform light-duty work with permanent restrictions related to both upper extremities. Dr. Ware
recommended a lifetime spa membership to maintain appellant’s maximal function. In a
January 28, 2005 report, he noted range of motion measurements and determined that appellant
sustained a 26 percent impairment of the left upper extremity which represented a 16 percent
impairment of the whole person based on the American Medical Association, Guides to the
Evaluation of Permanent Impairment (5th ed. 2001).
In an October 19, 2004 report, Dr. James Spiegel, an attending Board-certified orthopedic
surgeon, opined that appellant was permanently disabled from carpentry work based on his
musculoskeletal examination. A December 11, 2003 report of Dr. Martin Trieb, an attending
Board-certified orthopedic surgeon, stated that appellant’s right shoulder impingement syndrome
and laxity and early arthritic changes in the left glenohumeral joint were caused by the accepted
employment injury.1 He related that appellant had no disability prior to the 1999 employment
injury. Dr. Trieb recommended a lifetime spa membership. Reports from appellant’s physical
therapists indicated that he was treated during the period April 15, 2004 through May 10, 2005.
An undated report of Dr. Laura E. Garvin, a Board-certified internist, stated that she first
evaluated appellant on December 2, 1999 and reviewed a history of the November 5, 1999
employment injury. She related that he was diagnosed with post-traumatic stress disorder by the
Department of Veterans Affairs. Dr. Garvin was unable to comment on appellant’s ability to
work because he had not followed up with her since December 6, 1999. At that time, she
believed that appellant could not perform certain physical work duties. From a mental
standpoint, Dr. Garvin stated that appellant had difficulty interacting with his bosses and, he
remained depressed and was not taking his medication.
By decisions dated November 18, 2004, April 25 and July 26, 2005 and August 2, 2006,
the Office denied modification of its termination decision. It found that the reports from
appellant’s physical therapists did not constitute probative medical evidence as a physical
therapist is not considered to be a physician. The Office further found that the medical opinions
1

The Board notes that Dr. Trieb stated that the date-of-injury was December 5, 1999 rather than
November 5, 1999.

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of Dr. Speigel and Dr. Ware were not sufficiently well rationalized to establish that appellant had
residuals or disability causally related to his November 5, 1999 employment-related injuries as
they were not based on objective findings. It found that Dr. Garvin’s medical opinion had no
probative value since she did not opine that appellant experienced continuing employmentrelated residuals or disability
On September 5, 2006 appellant requested reconsideration of the Office’s August 2, 2006
decision.
In an October 13, 2006 decision, the Office denied appellant’s request for reconsideration
on the grounds that it neither raised substantive legal questions nor included new and relevant
evidence and was insufficient to warrant further merit review.
By letters dated May 1 and July 18, 2007, appellant, through counsel, requested
reconsideration of the August 2, 2006 decision. Counsel contended that the reports of
Drs. Ware, Spiegel, Garvin and Trieb established that appellant had residuals and disability
causally related to his accepted employment-related injuries. Contrary to the Office’s finding
that Dr. Ware did not provide objective findings to support his opinion that appellant was
permanently disabled from his carpenter position, the physician set forth appellant’s physical
restrictions and reported his range of motion findings in support of his finding that appellant
sustained a 26 percent impairment of the left upper extremity. Counsel contended that
Dr. Swartz’s medical report was of diminished probative value as he failed to provide medical
rationale to support his findings that appellant sustained temporary aggravation of a preexisting
left shoulder condition which ceased on August 1, 2001 and that he no longer had any
employment-related residuals or required further medical treatment. He noted that Dr. Swartz’s
physical restrictions precluded appellant from performing his regular work duties as a carpenter.
Counsel requested reinstatement of his lifetime spa membership based on Dr. Ware’s and
Dr. Trieb’s opinion that it was beneficial. He stated that Dr. Spiegel’s June 19 and 22, 2007
reports, which established a causal relationship between appellant’s November 5, 1999
employment injuries and his continuing medical condition, accompanied the July 18, 2007
reconsideration request.
In an October 25, 2007 decision, the Office denied appellant’s request for reconsideration
on the grounds that the evidence submitted was irrelevant or repetitious in nature, and
insufficient to warrant further merit review.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128 of the Federal
Employees’ Compensation Act,2 the Office’s regulations provide that a claimant must: (1) show
that the Office erroneously applied or interpreted a specific point of law; (2) advance a relevant
legal argument not previously considered by the Office; or (3) constitute relevant and pertinent
new evidence not previously considered by the Office.3 To be entitled to a merit review of an
2

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, [t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(1)(2).

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Office decision denying or terminating a benefit, a claimant also must file his or her application
for review within one year of the date of that decision.4 When a claimant fails to meet one of the
above standards, the Office will deny the application for reconsideration without reopening the
case for review of the merits.
ANALYSIS
In letters dated May 1 and July 18, 2007, appellant, through counsel, disagreed with the
Office’s termination of his wage-loss compensation and medical benefits effective September 24,
2004 on the grounds that he no longer had any residuals or disability causally related to his
November 5, 1999 employment-related bilateral shoulder strain and bilateral elbow tendinitis.
The underlying issue is, whether appellant had any continuing employment-related residuals or
disability causally related to the accepted employment injuries, is medical in nature.
In the requests for reconsideration, counsel contended that the Office improperly
terminated appellant’s compensation benefits as the reports of Drs. Ware, Spiegel, Garvin, Trieb
established that appellant had residuals and disability causally related to his November 5, 1999
employment-related injuries. Although counsel cited to evidence which he believed was not
properly weighed by the Office, he did not submit any new or relevant medical evidence to
warrant further merit review. Evidence that repeats or duplicates evidence already in the case
record has no evidentiary value and does not constitute a basis for reopening a case.5 The reports
cited by counsel were of record and considered by the Office in its prior decisions. They do not
constitute relevant and pertinent new evidence not previously considered by the Office.
Counsel contended that Dr. Swartz’s July 8, 2004 report was of diminished probative
value as it lacked medical rationale to support his finding that appellant no longer had any
employment-related residuals or disability. He further contended that appellant’s lifetime spa
membership should be reinstated based on, the opinions of Dr. Ware and Dr. Trieb. Counsel
stated that appellant’s July 18, 2007 request for reconsideration included Dr. Spiegel’s June 19
and 22, 2007 reports which established that his continuing shoulder and elbow problems were
causally related to his November 5, 1999 employment injuries. However, these reports are not of
record. The Board has held that the submission of evidence which does not address the
particular issue involved does not constitute a basis for reopening a case.6 Counsel’s arguments
are, therefore, insufficient to warrant reopening appellant’s claim for further merit review.
The evidence submitted by appellant did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office or constitute relevant and pertinent new evidence not previously considered by the
Office. As he did not meet any of the necessary regulatory requirements, the Board finds that he
is not entitled to further merit review.7
4

Id. at § 10.607(a).

5

James W. Scott, 55 ECAB 606, 608 n.4 (2004); Freddie Mosley, 54 ECAB 255 (2002).

6

Patricia G. Aiken, 57 ECAB 441 (2006).

7

See 20 C.F.R. § 10.608(b); Richard Yadron, 57 ECAB 207 (2005).

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CONCLUSION
The Board finds that the Office properly denied appellant’s request for a merit review of
his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 25, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 1, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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