United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
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)
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and
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DEPARTMENT OF VETERANS AFFAIRS,
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HEFNER VETERANS MEDICAL CENTER,
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Salisbury, NC, Employer
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_________________________________________ )
B.C., Appellant

Appearances:
Humphrey S. Cummings, Esq., for the appellant
Hans K. Wild, Esq., for the Director

Docket No. 10-1173
Issued: January 26, 2011

Oral Argument September 8, 2010

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On March 24, 2010 appellant filed a timely appeal from a February 23, 2010 merit
decision of the Office of Workers’ Compensation Programs denying his schedule award claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
claim.
ISSUE
The issue is whether appellant met his burden of proof to establish employment-related
permanent impairment.
FACTUAL HISTORY
This case was previously before the Board. In a February 24, 2010 decision,1 the Board
reversed a January 9, 2009 Office decision which terminated appellant’s compensation benefits
1

Docket No. 09-1484 (issued February 24, 2010).

effective May 9, 2008. The Board found that the opinion of an Office referral physician was
insufficiently rationalized to meet the Office’s burden of proof to show that appellant’s
employment-related conditions had resolved without residual. The facts of the case as set forth
in the Board’s decision are incorporated herein by reference. The relevant facts are set forth.
The Office accepted that on January 24, 2007 appellant, a 50-year-old nursing assistant,
sustained a lumbar and cervical strain when he was pressed between a door and a wall while
attempting to keep a patient on the ward. Appellant returned to full-time limited-duty work on
June 27, 2007 and received compensation. Under claim number xxxxxx128, the Office accepted
the conditions of cervical sprain, closed fracture of right ribs, intervertebral disc disorder with
myelopathy, lumbar region, intervertebral disc disorder with myelopathy, thoracic region as a
result of a December 15, 2005 work injury. On May 31, 2007 the Office combined the present
claim with claim number xxxxxx128.
On November 19, 2007 appellant filed a claim for a schedule award. In a November 26,
2007 letter, the Office advised him of the medical evidence necessary to support his claim under
the American Medical Association, Guides to the Evaluation of Permanent Impairment,2
(hereinafter A.M.A., Guides).
In a June 13, 2007 report, Dr. Andrew Sumich, a Board-certified physiatrist, provided an
impression of right-sided thoracic and lumbar pain, mostly myofascial/soft tissue; degenerative
changes in the thoracic and lumbar spine with small disc herniations/protrusions on the right at
T8-T9 and T9-T10 with no thoracic or lumbar radicular symptoms and normal neurologic
examination. He advised that appellant reached maximum medical improvement. Dr. Sumich
opined that appellant had two percent impairment based on the claim from 2005 and 2007 where
he had original rib injuries as well as the small disc herniations and protrusions.
In an October 7, 2007 report, Dr. T. Kern Carlton, a Board-certified physiatrist, reported
appellant’s status and noted examination findings. He diagnosed lumbar strain, thoracic strain,
mild congenital canal narrowing and small disc herniations at T7-T8 and T8-T9, congenital canal
narrowing and mild spondylosis at L3-L4 and L4-L5, and cervical strain. Dr. Carlton opined that
appellant reached maximum medical improvement and had six percent impairment of his back.
In a March 13, 2008 decision, the Office denied the schedule award claim finding
insufficient medical evidence to support permanent impairment of a scheduled member.
On April 7, 2008 appellant requested an oral hearing, which was held on
December 30, 2008. Prior to the hearing, the Office received a December 14, 2007 report from
Dr. Carlton who stated that there appeared to be mild weakness in plantar flexion on the right.
Based on the A.M.A., Guides, Table 17-8, Dr. Carlton assigned seven percent impairment of the
right leg. In a February 1, 2008 report, Dr. Eric C. Troyer, a Board-certified family practitioner,
advised appellant’s depression and myalgia were stable.
On July 29, 2008 an Office medical adviser reviewed Dr. Carlton’s December 14, 2007
report and concluded that a medical conflict existed between Dr. Carlton and Dr. Troyer. He
2

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

2

advised that a medical report addressing the symptoms and physical examination findings of the
lower extremities with any diagnostic and imaging studies were necessary.
In a September 2, 2008 letter, the Office requested that Dr. Carlton provide a
supplemental report in response to the Office medical adviser’s discussion regarding his
impairment rating. An unsigned and undated response received on November 17, 2008 stated:
“Table 17, page 532, 5th edit.”
In a March 17, 2009 decision, an Office hearing representative set aside the March 13,
2008 decision and remanded the case for further development. The hearing representative found
that, while it was questionable that a conflict in medical evidence existed, the Office’s request to
Dr. Carlton for additional information to further develop the schedule award claim was
unanswered. Accordingly, the hearing representative directed a second opinion evaluation.
In a March 23, 2009 letter, the Office requested that Dr. Carlton provide further evidence
that supported his opinion of seven percent impairment to the right leg. In an April 1, 2009
report, Dr. Carlton noted appellant had an updated magnetic resonance imaging (MRI) scan. He
listed an impression of lumbar strain; thoracic strain; mild congenital canal narrowing and small
disc herniations at T7-T8 and T8-T9 by MRI scan; congenital canal narrowing and mild
spondylosis at L3-L4 and L4-L5 by MRI scan and cervical strain. In response to the Office’s
question, Dr. Carlton stated there was no imaging study to support the impairment rating of the
right lower extremity. The rating was based on the A.M.A., Guides and his weakness which was
reported in plantar flexion on the right.
The Office referred appellant, together with a list of questions and the medical record, to
Dr. Harrison A. Latimer, a Board-certified orthopedic surgeon, for a second opinion examination
to assess whether he had any ratable impairment due to the January 24, 2007 work injury. The
record reflects that appellant previously saw Dr. Latimer for a second opinion evaluation
regarding whether he had residuals of his work injury and whether he could work. In a
December 11, 2008 report, Dr. Latimer reviewed an October 21, 2008 statement of accepted
facts, the medical record and presented his examination findings.3 He found that appellant
reached maximum medical improvement but there were residual symptoms and he was not able
to perform full duties as a nursing assistant. Dr. Latimer completed a January 9, 2009 work
capacity evaluation form listing such restrictions, which he deemed were permanent. He further
stated that he concurred with Dr. Carlton’s assessment that appellant had A.M.A., Guides
disability of six percent of the back and seven percent of the right leg.
In a June 18, 2009 report, Dr. Latimer evaluated the medical record and presented
findings on examination. He found no notable muscle atrophy throughout the lower extremity.
Dr. Latimer stated that the most recent MRI scan showed “beautiful lumbar discs with excellent
hydration and no evidence of any significant problem with such discs.” Appellant’s thoracic
MRI scan showed slight disc bulge at two mid thoracic levels with no evidence of neurologic
impingement and “excellent hydration throughout the thoracic spine.” Appellant reached
3

The most recent statement of accepted facts of record is dated October 21, 2008. It contains a listing of
diagnostic testing appellant underwent and notes the last MRI scan for both the thoracic and lumbar spines was
October 30, 2006.

3

maximum medical improvement within six weeks of his January 24, 2007 injury and there was
no reliable way to determine restriction in degrees of motion as appellant showed extreme
symptom exaggeration. He concluded that appellant had no permanent partial impairment.
Dr. Latimer based his findings on the recent MRI scans, the lack of objective findings of
decreased strength, atrophy, ankylosis, or sensory changes and “the lack of reliability” of
appellant’s presentation symptoms.
On July 31, 2009 an Office medical adviser reviewed Dr. Latimer’s June 18, 2009 report
and concurred with his conclusion that there was no impairment of the extremities.
By decision dated August 7, 2009, the Office denied appellant’s schedule award claim.
The weight of the medical opinion evidence was accorded to Dr. Latimer.
On August 17, 2009 appellant requested a hearing, which was held telephonically on
December 14, 2009. No additional medical evidence or comments following the hearing were
submitted.
By decision dated February 23, 2010, an Office hearing representative affirmed the
August 7, 2009 decision.
On appeal, appellant’s counsel argues that Dr. Latimer’s report does not constitute the
weight of the medical evidence.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulations5 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. The Act, however, does not specify the manner in which the percentage of loss shall
be determined. The method used in making such a determination is a matter that rests within the
sound discretion of the Office.6 For consistent results and to ensure equal justice under the law
to all claimants, good administrative practice necessitates the use of a single set of tables so that
there may be uniform standards applicable to all claimants. The A.M.A., Guides has been
adopted by the implementing regulations as the appropriate standard for evaluating schedule
losses.7 As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule
awards.8

4

5 U.S.C. §§ 8101-8193.

5

20 C.F.R. § 10.404.

6

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

7

Ronald R. Kraynak, 53 ECAB 130 (2001).

8

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

4

It is the claimant’s burden to establish that he or she has sustained a permanent
impairment of the scheduled member or function as a result of any employment injury.9 Office
procedures provide that, to support a schedule award, the file must contain competent medical
evidence which shows that the impairment has reached a permanent and fixed state and indicates
the date on which this occurred (date of maximum medical improvement), describes the
impairment in sufficient detail so that it can be visualized on review and computes the
percentage of impairment in accordance with the A.M.A., Guides.10 The weight of medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.11 It is well established that proceedings under the Act are not adversarial in nature and
while the claimant has the burden to establish entitlement to compensation, the Office shares
responsibility in the development of the evidence.12
ANALYSIS
Dr. Sumich opined that appellant had two percent impairment based on the original injury
to the ribs as well as the small disc herniation and protrusion. He provided no explanation as to
how he arrived at his impairment rating or make reference to the A.M.A., Guides. Dr. Sumich
did not indicate whether the impairment was to a scheduled member or function of the body as a
result of the employment injuries.13 Dr. Carlton found appellant had five percent impairment for
the back, but did not explain how he arrived at this rating or whether it was based on the A.M.A.,
Guides. It is well established that neither the Act nor the implementing regulations provide for
payment of a schedule award for the permanent loss of use of the back or the body as a whole. A
claimant is not entitled to a schedule award for the ribs or back.14 While Dr. Carlton
subsequently found seven percent impairment of the right leg, which was based on weakness
reported in plantar flexion, he did not address how he rated impairment based on the A.M.A.,
Guides despite the Office’s request for such explanation.15 Accordingly, the reports of
Dr. Sumich and Dr. Carlton are insufficient to establish appellant’s schedule award claim.

9

Tammy L. Meehan, 53 ECAB 229 (2001).

10

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

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

12

Dorothy L. Sidwell, 36 ECAB 699 (1985); William J. Cantrell, 34 ECAB 1233 (1983).

13

No schedule award is payable for a member, function or organ of the body not specified in the Act or in the
implementing regulations. S.K., 60 ECAB ___ (Docket No. 08-848, issued January 26, 2009); Thomas J. Engelhart,
50 ECAB 319 (1999).
14

See D.N., 59 ECAB 576 (2008); Jay K. Tomokiyo, 51 ECAB 361 (2000).

15

The Board notes that Dr. Carlton failed to provide an explanation for his impairment rating in his December 14,
2007 report. Furthermore, the Office properly excluded the unsigned and undated response it received on
November 17, 2008 in response to its September 2, 2008 letter to Dr. Carlton. The Board has held that lacking
proper identification, such a report cannot be considered as probative evidence. Merton J. Sills, 39 ECAB
572 (1988).

5

In denying appellant’s schedule award claim, the Office relied on the June 18, 2009
report of Dr. Latimer who served as an Office referral physician. The Board finds that the
opinion of Dr. Latimer requires clarification.
On June 18, 2009 Dr. Latimer listed the findings of his examination, which were notable
for no muscle atrophy throughout the lower extremities. On review of the most recent MRI
scans, he found that appellant’s lumbar discs were “beautiful … with excellent hydration and no
evidence of any significant problem.” The thoracic discs, which had a slight disc bulge at two
mid-thoracic levels, showed no evidence of neurologic impingement and excellent hydration.
Dr. Latimer found maximum medical improvement within six weeks of the January 24, 2007
injury and that there was no reliable way to determine restriction in degrees of motion as
appellant showed extreme symptom exaggeration. He concluded that there was no permanent
impairment involved based on the most recent MRI scans, the lack of objective findings of
decreased strength, atrophy, ankylosis, or sensory changes, and “the lack of reliability” of
appellant’s presentation symptoms.
The Board notes that Dr. Latimer made no mention of the date of appellant’s most recent
MRI scan dated October 30, 2006. Dr. Sumich and Dr. Carlton advised that small disc
herniations were present on the right side at T8-T9 and T9-T10. Dr. Carlton also found
congenital canal narrowing and mild spondylosis at L3-L4 and L4-L5. It does not appear that
Dr. Latimer reviewed the same studies as Dr. Sumich or Dr. Carlton. Dr. Latimer described
“recent” MRI scan study which revealed beautiful lumbar discs with excellent hydration and
slight disc bulges at two mid-thoracic levels with excellent hydration throughout the thoracic
spine. It is unclear that Dr. Latimer was referencing the October 30, 2006 studies. As noted, the
Office accepted thoracic disc disorders under another claim.
On appeal appellant’s attorney argued that Dr. Latimer agreed with Dr. Carlton’s
assessment of six percent of the back and seven percent of the right lower extremity. At the time
of his December 11, 2008 report, Dr. Latimer was appointed by the Office to provide a reasoned
opinion on whether appellant had any work-related residuals and whether he was capable of
resuming his date-of-injury position. His remark agreeing with Dr. Carlton’s impairment rating
is incidental to the issue which he was asked to resolve. Furthermore, there is no discussion or
rationalized explanation for his opinion on permanent impairment. Moreover, when Dr. Latimer
was later asked to provide a reasoned opinion on the issue of whether appellant had any
impairment related to his work-related injuries, his opinion could change based on current
examination findings and his review of the medical evidence. Thus, given the totality of the
circumstances, Dr. Latimer’s December 11, 2008 remark regarding impairment is of no
probative value.
On remand, the Office should request that Dr. Latimer clarify his opinion.16 If
Dr. Latimer is unwilling or unable to provide such clarification, the Office should refer appellant
to another appropriate specialist for evaluation. After such development as deemed necessary,
the Office should issue an appropriate decision as to whether appellant has established
permanent impairment of his lower extremities.
16

If it is determined that appellant has permanent lower extremity impairment referable to his employment
injuries, the appropriate standards of the A.M.A., Guides should be used to evaluate such impairment.

6

CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 23, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to the Office for further
proceedings consistent with this decision of the Board.
Issued: January 26, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.O., Appellant
and
DEPARTMENT OF THE NAVY, PUGET
SOUND NAVAL SHIPYARD, Bremerton, WA,
Employer
__________________________________________

)
)
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)
)
)
)
)
)

Appearances:
John Eiler Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 06-1458
Issued: February 20, 2007

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 June 5, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ May 19, 2006 decision reducing his wage-loss compensation benefits.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation based on his
capacity to earn wages in the constructed position of full-time general clerk.
FACTUAL HISTORY
This is the second appeal before the Board in this case. By decision dated June 22,
2000, the Board affirmed a November 4, 1999 decision of the Office granting appellant a
1

1

Docket No. 00-2538 (issued June 22, 2000).

schedule award for a 10 percent impairment of the right upper extremity due to an accepted
August 28, 1998 biceps tendon rupture. The Board also affirmed a January 14, 2000 decision of
the Office denying appellant’s request for a merit review. The law and the facts of the case are
set forth in the Board’s prior decision and are hereby incorporated by reference.2
Dr. Peter T. Simonian, an attending Board-certified orthopedic surgeon, submitted reports
dated from January 2000 to December 2001 finding a full range of right elbow motion with some
loss of strength. Appellant returned to light-duty work from February to October 5, 2002,
performing clerical tasks at the employing establishment. He then stopped work and received
wage-loss compensation on the daily rolls beginning October 6, 2002. Appellant’s case was
placed on the periodic rolls in December 2002. He was removed from federal employment
effective February 14, 2003 due to physical disability. Appellant continued to receive
compensation for temporary total disability on the periodic rolls.
In reports from August 1, 2002 to February 6, 2004, Dr. John R. Green, III, an attending
Board-certified orthopedic surgeon, noted that the September 4, 1998 distal biceps tendon repair
performed by Dr. Simonian was “at complete resolution.” On examination, Dr. Green observed
slightly decreased elbow flexion and forearm supination strength, with intermittent subjective
carpal tunnel symptoms.
In a January 13, 2004 report, Dr. Paul H. Reiss, a Board-certified orthopedic surgeon and
second opinion physician, reviewed a provided statement of accepted facts and the medical
record. On examination of appellant, he noted work-related residuals of diminished grip and
supination strength and opined that appellant was at maximum medical improvement. Dr. Reiss
found no objective evidence of carpal tunnel syndrome. He diagnosed status post distal rupture
of the right biceps brachii tendon at the radial tuberosity with surgical repair. Dr. Reiss opined
that appellant could work 40 hours a week with restrictions against repetitive motions of the right
elbow, lifting more than 25 pounds and pushing or pulling more than 50 pounds. He noted that
appellant’s supination weakness precluded him from working in his date-of-injury position as a
pipefitter.
In an August 10, 2004 note, Dr. Green agreed with the assessment and work restrictions
of Dr. Reiss. He submitted periodic reports through September 8, 2005 noting mildly decreased
elbow flexion and forearm supination strength. On November 3, 2004 Dr. Green stated that
appellant’s work restrictions were compatible with working as a billing specialist. In a June 7,
2005 report, Dr. Green noted encouraging appellant to “become more physically active including
walking, running, biking” and using “any commercially available cardiovascular fitness
apparatus.”
In March 2005, the Office referred appellant for vocational rehabilitation services. The
counselor reviewed vocational aptitude testing3 and noted appellant’s work experience as a data
2

The record contains an August 23, 2000 decision denying modification of the November 4, 1999 schedule
award. This decision is not before the Board on the present appeal.
3

A previous vocational rehabilitation effort from May 2003 to March 2005 focused on retraining appellant as a
medical billing specialist or dental technician. This effort did not result in employment.

2

entry clerk, file clerk, general office clerk and supply clerk at the employing establishment. On
June 22, 2005 the Office approved a vocational rehabilitation plan, with the goals of
reemployment as a general clerk, Department of Labor, Dictionary of Occupational Titles (DOT)
No. 209.562-010, file clerk I, DOT No. 206.387-034, or data entry clerk, DOT No. 203.582-054.
Following a job search, appellant began work as a file clerk for express personnel, a private
sector temporary employment agency, on October 11, 2005. Appellant worked in a temporary,
part-time position for a specialty food and packaging company retained by express personnel.
The Office reduced appellant’s wage-loss compensation benefits from October 11, 2005 to
April 29, 2006 based on his actual earnings. From October 16, 2005 to April 2, 2006, appellant
worked from 9.5 to 25 hours a week, earning $10.00 an hour.
In a December 13, 2005 closure report, the vocational rehabilitation counselor noted that
appellant had been employed for 62 days as a part-time file clerk and was “doing very well.”
The rehabilitation counselor identified the positions of file clerk I, DOT No. 206.387-034 and
general clerk, DOT No. 209.562-010, as being within appellant’s medical and vocational
capacities. Both jobs were classified as light physical demand positions, involving various
clerical tasks requiring frequent handling and fingering, with exerting up to 10 pounds of force
frequently and 20 pounds occasionally. The counselor noted that appellant had transferable
skills appropriate for either position from his work at express personnel and at the employing
establishment. December 2005 labor market data showed 89 projected job openings from 2004
to 2006 in appellant’s commuting area, with entry level wages of $9.85 an hour for file clerk and
$10.02 an hour for general office clerk.
In a March 7, 2006 report, Dr. Green noted that appellant had “been filing three hours a
day and not having much trouble with that.” He stated that appellant’s right distal biceps tendon
remained unchanged and that he seemed “to be doing fine at his clerical job.”
By notice dated April 17, 2006, the Office advised appellant that it proposed to reduce his
wage-loss compensation benefits based on the constructed position of general clerk, DOT No.
209.562-010 at the rate of $400.80 a week. The Office found that the position was within
appellant’s medical and vocational capacities and was reasonably available in his commuting
area. The Office accorded the weight of the medical evidence to Dr. Reiss, who opined on
January 13, 2004 that appellant could work with permanent restrictions.
Appellant’s attorney submitted an April 18, 2006 letter contending that appellant was
unable to earn more than $400.00 a week. In a May 1, 2006 statement, appellant asserted that it
was “fair” that he work part time and not full time, as his injury-related condition had worsened
and he was getting older. He acknowledged that he was able to perform the duties of a general
clerk as he had been doing such work for express personnel. Appellant submitted pay slips from
express personnel for April 2 to 16 and April 23 to 30, 2006, showing he worked 15 hours a
week at $10.00 an hour.
By decision dated May 19, 2006, the Office reduced appellant’s wage-loss compensation
effective that day based on his ability to earn wages in the constructed position of general clerk.
The Office calculated that appellant had a 62 percent loss of wage-earning capacity. The Office
found that the position was within his medical and vocational capacities and was reasonably

3

available in his commuting area. The Office found that appellant’s contentions and the pay slips
were insufficient to alter the proposed reduction of benefits.
LEGAL PRECEDENT
Once the Office has made a determination that a claimant is totally disabled as a result of
an employment injury and pays compensation benefits, it has the burden of justifying a
subsequent reduction of benefits.4 Under section 8115(a), 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 his or
her wage-earning capacity, or if the employee has no actual earnings, his or her wage-earning
capacity is determined with due regard to the nature of the injury, the degree of physical
impairment, his or her usual employment, age, qualifications for other employment, the
availability of suitable employment and other factors and circumstances which may affect wageearning capacity in his or her disabled condition.5
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist for
selection of a position, listed in the DOT or otherwise available in the open market, that fits the
employee’s capabilities with regard to his or her physical limitations, education, age and prior
experience. Once this selection is made, a determination of wage rate and availability in the
labor market should be made through contact with the state employment service or other
applicable service. Finally, application of the principles set forth in Albert C. Shadrick,6 will
result in the percentage of the employee’s loss of wage-earning capacity.7
ANALYSIS
Appellant received compensation for total disability beginning on October 6, 2002 due to
an accepted ruptured right biceps tendon. The Office received medical evidence from Dr. Reiss,
a Board-certified orthopedic surgeon and second opinion physician, that appellant was capable of
performing full-time light duty as of January 13, 2004. He imposed restrictions against repetitive
right elbow motion, lifting more than 25 pounds and pulling or pushing more than 50 pounds.
Dr. Green, an attending Board-certified orthopedic surgeon, concurred with Dr. Reiss’
assessment and restrictions. The weight of the medical evidence clearly demonstrates that
appellant was no longer totally disabled for work. The Office referred him for vocational
rehabilitation services in March 2005. The vocational rehabilitation counselor evaluated
appellant’s vocational aptitudes and conducted an assisted placement program. Appellant was
hired as a part-time file clerk on October 11, 2005 and performed this position through
March 2006 and continuing. The opinions of Dr. Reiss and Dr. Green, however, indicated that
4

David W. Green, 43 ECAB 883 (1992).

5

Karen L. Lonon-Jones, 50 ECAB 293 (1999).

6

5 ECAB 376 (1953); see also 20 C.F.R. § 10.403(d)-(c).

7

James A. Birt, 51 ECAB 291 (2000); Francisco Bermudez, 51 ECAB 506 (2000).

4

appellant could work full time. Therefore the vocational rehabilitation counselor recommended
that the Office select a full-time clerk position to represent appellant’s wage-earning capacity.
The general clerk position was classified as light, with frequent lifting up to 10 pounds.
These physical requirements are within the restrictions set forth by Dr. Reiss and affirmed by
Dr. Green. The vocational requirements were found by the counselor to be commensurate with
appellant’s education and experience, as he performed these duties for the employing
establishment from February to October 2002 and for express personnel from October 16, 2005
through April 2006 and continuing. The specialist then determined the prevailing wage rate of
these positions and their reasonable availability in the open labor market. Based on these
calculations, the Office issued a May 19, 2006 decision reducing appellant’s compensation based
on his ability to earn $400.80 a week as a general clerk.
The Board finds that the Office considered the proper factors, such as availability of clerk
positions and appellant’s physical limitations, in determining that the general clerk position
represented his wage-earning capacity. Appellant’s actual earnings did not fairly and reasonably
represent his wage-earning capacity as such position was part time. Dr. Reiss and Dr. Green
both opined that appellant was medically capable of full-time light-duty work at the physical
demand level required by the general clerk position. Appellant performed the component tasks
of this position at the employing establishment from February to October 2002 and for express
personnel from October 16, 2005 and continuing. The vocational rehabilitation counselor found
that general clerk positions were reasonably available in appellant’s commuting area. Also, the
Office followed the established procedures under the Shadrick decision in calculating appellant’s
employment-related loss of wage-earning capacity. Appellant did not contend that the Office
erred in its mathematical calculations of his wage-earning capacity. The Board has reviewed
these calculations and finds them to be correct.
Appellant asserts that it was unfair to require him to work full time as he preferred to
work part time. He acknowledged that he was vocationally able to perform the duties of a clerk.
However, the weight of medical opinion clearly establishes his capacity to perform full-time
light-duty work within the physical demand level of the general clerk position. Appellant did not
submit medical evidence indicating that he was not capable of working eight hours a day. The
Board finds that the Office properly determined that appellant was medically and vocationally
capable of working eight hours a day as a general clerk. The Office’s May 19, 2006 decision
reducing appellant’s compensation based on his ability to earn wages in the constructed position
of a full-time general clerk is proper under the law and the facts of this case.
CONCLUSION
The Board finds that the Office properly found that the constructed position of a full-time
general clerk represented appellant’s wage-earning capacity.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 19, 2006 is affirmed.
Issued: February 20, 2007
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Pittsburgh, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1485
Issued: December 10, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 25, 2008 appellant filed a timely appeal from a February 13, 2008 merit
decision of the Office of Workers’ Compensation Programs that terminated her compensation
benefits. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the
merits of the case.
ISSUE
The issue is whether the Office met its burden of proof to terminate appellant’s medical
and compensation benefits effective February 13, 2008.
FACTUAL HISTORY
On August 21, 2006 appellant, then a 53-year-old mail handler, sustained injury when she
tripped over a tow bar. The Office accepted the claim for a neck sprain and contusions of the left
knee and hand. It paid appropriate compensation benefits. Appellant did not stop work.
On August 21, 2006 appellant was treated in an emergency room by Dr. Michael
Turturro, Board-certified in emergency medicine, for injuries sustained in a fall at work.

Dr. Turturro diagnosed cervical strain, left knee and left hand contusions. An x-ray of the left
knee revealed no fracture but mild arthritic changes. An x-ray of the cervical spine revealed no
fracture, no subluxation and no soft tissue swelling. Appellant came under the treatment of
Dr. Ellen M. Dillinger, a Board-certified internist. In reports dated September 11 and 28, 2006,
Dr. Dillinger treated her for neck, knee and hand injuries sustained in a slip and fall on
August 21, 2006 and recommended she stay off work. Appellant was referred to Dr. Howard J.
Senter, a Board-certified neurosurgeon. In reports dated September 13 to October 19, 2006,
Dr. Senter noted a history of injury and diagnosed cervical spondylosis and recommended a
cervical discectomy. On September 6, 2006 he performed a microscopic anterior cervical
discectomy, bone bank interbody fusion and anterior cervical plate fixation at C5-6 and C6-7 and
diagnosed cervical spondylosis at C5-6 and C6-7.1
In a report dated October 16, 2006, Dr. Senter noted that appellant was five weeks
postcervical discectomy and experienced neck, shoulder and arm pain. He took her off work on
October 11, 2006. On October 19, 2006 appellant returned to a limited-duty position, three days
per week. On December 23, 2006 Dr. Senter increased appellant’s work schedule to four days
per week with a lifting restriction. On February 6, 2007 appellant presented with right buttock
and right leg pain. A magnetic resonance imaging (MRI) scan of the lumbar spine revealed a
bulging disc at L5-S1. Dr. Senter advised that appellant was fully recovered from her cervical
spine surgery. In reports dated January 4 to March 23, 2007, Dr. Dillinger concurred with
Dr. Senter’s recommendation that appellant return to work four days per week with no lifting
greater than 15 pounds intermittently.
On April 3, 2007 the Office referred appellant to Dr. Jorge L. Acevedo, a Board-certified
orthopedic surgeon, for a second opinion. In a May 16, 2007 report, Dr. Acevedo, reviewed
appellant’s history of injury. A physical examination revealed reduced flexion and extension of
the neck and motor examination revealed reduced hand grip strength bilaterally and sensory
deficit in the upper extremities. Dr. Acevedo diagnosed preexisting degenerative disc disease at
C5-6 and C6-7. He opined that appellant had a preexisting condition which was aggravated by
her fall at work, which accelerated the need for surgery. In a work capacity evaluation,
Dr. Acevedo noted that appellant could return to work eight hours per day with restrictions on
reaching above the shoulder, pushing, pulling and lifting limited to five pounds with breaks. He
noted that the restrictions would apply for a three to six-month period.
On June 23, 2007 Dr. Dillinger returned appellant to work full time as of July 1, 2007
with a 15-pound restriction. She advised that the work restrictions would continue indefinitely,
possibly permanently.
On July 18, 2007 appellant accepted a job offer as a full time, modified-duty mail handler
and returned to work.

1

The record also contains earlier reports from Dr. Dillinger and Dr. Maryanne J. Henderson, an osteopath, who
treated appellant for multiple injuries, including back injuries, chronic pain syndrome and myelopathy, sustained in
a motor vehicle accident on April 1, 2001.

2

The Office found a conflict in medical opinion between Dr. Dillinger, for appellant, and
Dr. Acevedo, for the Office, regarding her work restrictions. To resolve the conflict, the Office
referred appellant to Dr. Frank J. Vertosick, a Board-certified orthopedic surgeon.
In reports dated August 20 to October 29, 2007, Dr. Dillinger noted that appellant
returned to work full-time limited duty on July 1, 2007 but had multiple partial absences. She
modified appellant’s schedule noting that she could work four days per week at limited duty. A
September 24, 2007 electromyogram was essentially normal. In a November 8, 2007 report,
Dr. Lloyd G. Lamperski, Board-certified in pain management, diagnosed lumbar spine pain
secondary to discogenic syndrome, right lower extremity radicular symptoms, cervical spinal
pain and left upper extremity pain. He recommended interlaminar lumbar epidural steroid
injections.
In a November 16, 2007 report, Dr. Vertosick reviewed the history of injury and medical
treatment. He noted findings of a well-healed incision on the neck, normal lordosis, no spasm,
minimal tenderness and normal rotation. Strength and sensation were grossly normal and
reflexes were normal. Dr. Vertosick diagnosed a neck sprain and contusion of the left knee and
left hand by history. On review of an April 24, 2006 MRI scan, he noted chronic spondylitic
disease at C5-6 and C6-7. Dr. Vertosick noted that appellant had long-standing degenerative
problems with her neck and left arm predating the work injury, which included injuries sustained
in a motor vehicle accident in 2001. He opined that appellant had sustained a cervical strain at
work from which she had recovered and that she could return to work at full duty without
restriction based on her August 21, 2006 injury. Dr. Vertosick noted that appellant had
long-standing problems with her neck and left arm and that surgery had been proposed prior to
the work injury. He advised that any work-related aggravation did not require surgical
intervention.
Dr. Vertosick further opined that appellant reached maximum medical
improvement and recovered from the accepted cervical strain. He found that appellant could
return to work full duty without restrictions.
Appellant submitted a December 6, 2007 report from Dr. Dillinger, who diagnosed status
postcervical discectomy and fusion, chronic pain and fibromyalgia. She noted that appellant’s
residuals had not resolved and that a full recovery was not expected. Dr. Dillinger noted that
appellant could resume work full time for a trial period of 40 hours per week commencing
December 17, 2007. In a December 12, 2007 letter of medical necessity, Dr. Mark Lo Dico,
Board-certified in pain management, recommended a cervical stimulator and full back
conductive garment for treatment of cervicalgia.
On January 9, 2008 the Office proposed to terminate compensation benefits for
appellant’s accepted neck sprain and contusions of the left knee and hand. It found that
Dr. Vertosick’s November 16, 2007 report established no residuals of the work-related
employment injury.
Appellant submitted reports from Dr. Lo Dico dated August 15 to December 12, 2007,
who treated her for lumbar pain and right hip pain and recommended an MRI scan of the lumbar
spine.

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By decision dated February 13, 2008, the Office terminated appellant’s compensation
benefits effective that day. The weight of the medical evidence, as represented by Dr. Vertosick,
established that she had no continuing disability or residuals resulting from her accepted
employment injury.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation benefits.2 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 has ceased or that it is no longer related to the
employment.3 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 a claimant no longer has residuals of an employment-related condition, which
requires further medical treatment.4
ANALYSIS
The Office accepted appellant’s claim for a neck sprain and contusions of the left knee
and hand. It subsequently developed the medical evidence and determined that a conflict in
medical opinion arose between appellant’s attending physician, Dr. Dillinger, who disagreed
with Dr. Acevedo, an Office referral physician, regarding appellant’s work restrictions.5
Where there exists a conflict of medical opinion and the case is referred to an impartial
specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, is entitled to special weight.6
In a November 16, 2007 report, Dr. Vertosick reviewed appellant’s history, reported
findings on examination and noted that the objective medical evidence established that her
injuries of August 21, 2006 had resolved. He noted normal findings upon physical examination.
The impairment specialist advised that appellant’s accepted conditions resolved and that she
could resume full duty. Dr. Vertosick noted that appellant had long-standing degenerative
problems with her neck and left arm predating the work injury, including those sustained in a
motor vehicle accident in 2001. He opined that appellant sustained a neck strain or at most a
temporary aggravation of her degenerative disease in the August 21, 2006 work injury which had
resolved. He advised that appellant did not require surgery due to injury. Dr. Vertosick further
opined that appellant reached maximum medical improvement and her accepted injuries had
resolved without residuals and that she could return to work full time without restrictions.
2

Gewin C. Hawkins, 52 ECAB 242 (2001).

3

Mary A. Lowe, 52 ECAB 223 (2001).

4

Id.; Leonard M. Burger, 51 ECAB 369 (2000).

5

See 5 U.S.C. § 8123(a).

6

Solomon Polen, 51 ECAB 341 (2000).

4

The Board finds that the opinion of Dr. Vertosick is sufficiently well rationalized and
based upon a proper factual background. It is entitled to special weight and establishes that
appellant’s work-related conditions have ceased and that she can return to work full time without
restrictions.
Appellant submitted a report from Dr. Dillinger who diagnosed status postcervical
discectomy and fusion, chronic pain and fibromyalgia. Dr. Dillinger advised that appellant’s
residuals had not resolved and recovery was not expected. In a duty status form, she noted that
appellant could resume work full time for a trial period of 40 hours per week commencing
December 17, 2007. However, Dr. Dillinger failed to address how appellant’s accepted
conditions caused disability or the need for physical restrictions causally related to the
August 21, 2006 employment injury.7 She was on one side of a conflict that was resolved by
Dr. Vertosick and her report does not otherwise provide new findings or medical rationale
sufficient to establish that any continuing condition or disability causally related to the
August 21, 2006 work injury.8
The letter of medical necessity from Dr. Lo Dico recommended a cervical stimulator and
full back conductive garment for treatment of cervicalgia. However, he failed to provide any
history of injury or explain how appellant’s orthopedic condition and the recommended
appliances were causally related to the accepted August 21, 2006 employment injury.9
Appellant submitted reports from Dr. Lo Dico dated August 15 to December 12, 2007.
Dr. Lo Dico treated her for lumbar pain and right hip pain and recommended an MRI scan of the
lumbar spine. However, these reports are not relevant to the accepted conditions in this case.
Dr. Lo Dico did not provide a history of injury or a rationalized opinion addressing how any
continuing condition was causally related to the August 21, 2006 injury.
The Board finds that Dr. Vertosick had full knowledge of the relevant facts and medical
history. At the time benefits were terminated, he clearly opined that appellant had no residuals
or disability attributable to her accepted orthopedic conditions. Dr. Vertosick’s opinion is found
to be probative and reliable and represents the special weight of the medical evidence. The
Office properly terminated appellant’s benefits for the accepted conditions of neck sprain and
contusions of the left knee and hand effective February 13, 2008.10

7

See Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
8

See Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101, 1115 (1992);
Dorothy Sidwell, 41 ECAB 857 (1990).
9

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
10

The Board notes that appellant did not appeal the December 11, 2007 Office decision, denying her claim for
12.06 hours of compensation for July 24 and September 19, 2007 and therefore this decision is not before the Board
at this time.

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CONCLUSION
The Board finds that the Office met its burden of proof to terminate benefits effective
February 13, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 13, 2008 is affirmed.
Issued: December 10, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Alexandria, VA, Employer
__________________________________________

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

Docket No. 15-1824
Issued: December 29, 2015

Case Submitted on the Record

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

JURISDICTION
On September 4, 2015 appellant filed a timely appeal from a March 26, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
has elapsed between November 7, 2013, the date of the most recent merit decision, and the filing
of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of appellant’s claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. By decision and order issued
November 7, 2013,2 the Board affirmed an April 26, 2013 OWCP decision finding that appellant
did not meet his burden of proof to establish total disability for work from July 27, 2009 to
August 12, 2011 due to accepted bilateral foot conditions or due to a withdrawal of light-duty
work. The facts of the case as set forth in the Board’s prior decision and order are incorporated
herein by reference.
OWCP accepted that on or before September 29, 2005 appellant, then a 42-year-old letter
carrier, sustained bilateral plantar fasciitis, bilateral plantar fibromatosis, and bilateral calcaneal
spurs. He returned to work on April 15, 2008 in a modified-duty position, delivering mail for
four hours a day. Appellant received wage-loss compensation for intermittent work absences
prior to July 24, 2009, when he stopped work and did not return.3 OWCP then accepted an
aggravation of bilateral plantar fasciitis.
Appellant claimed compensation for total disability from July 27, 2009 to April 9, 2010.
In support of his claim, he submitted reports from Dr. Vincent Desiderio, an attending Boardcertified orthopedic surgeon. Dr. Desiderio opined on September 30, 2009 that carrying a heavy
pack and walking on uneven surfaces aggravated appellant’s bilateral foot conditions. He held
appellant off work through April 15, 2010. On May 24, 2010 OWCP obtained a second opinion
from Dr. Robert Smith, a Board-certified orthopedic surgeon, who opined that appellant was not
totally disabled for any period and could perform full-duty work.
Based on Dr. Smith’s opinion, OWCP issued a June 8, 2010 merit decision denying
appellant’s claim for wage-loss compensation for the period July 27, 2009 to April 9, 2010.
Appellant requested a hearing before an OWCP hearing representative. Following the hearing,
OWCP set aside the June 8, 2010 decision on November 18, 2010, finding a conflict between
appellant’s physicians and Dr. Smith. On remand of the case OWCP selected Dr. David C.
Johnson, a Board-certified orthopedic surgeon, to resolve the conflict. Dr. Johnson submitted a
March 28, 2011 report opining that appellant sustained a temporary aggravation of plantar
fasciitis in 2009 that “probably ceased after the first month.”4 In a January 31, 2012
supplemental report, Dr. Johnson opined that the 2005 and 2009 temporary aggravations
resolved in one month. He noted that any work restrictions were due only to appellant’s
subjective complaints.

2

Docket No. 13-1257 (issued November 7, 2013).

3

Appellant separated from the employing establishment effective February 25, 2011.

4

Based on Dr. Johnson’s opinion, OWCP issued a June 16, 2011 decision denying appellant’s claim for wageloss compensation on and after July 27, 2009. By decision dated August 3, 2011, an OWCP hearing representative
set aside OWCP’s June 16, 2011 decision and remanded the case for further development. By decision dated
August 19, 2011, OWCP found that appellant had established disability for work from July 27 to August 27, 2009,
based on Dr. Johnson’s opinion that the accepted July 27, 2009 aggravation of bilateral plantar fasciitis ceased one
month later. In a January 9, 2012 decision, an OWCP hearing representative set aside the August 19, 2011 decision
as Dr. Johnson’s opinion required clarification.

2

By decision dated March 9, 2012, OWCP denied appellant’s claim for wage loss
commencing July 27, 2009, finding that Dr. Johnson’s opinion established that appellant was not
totally disabled for work due to the accepted foot conditions. Following a review of the written
record, it issued a May 25, 2012 decision affirming the March 9, 2012 decision, based on
Dr. Johnson’s opinion as the weight of the medical evidence. Following a doubling of
appellant’s foot condition claims,5 OWCP issued an April 26, 2013 decision affirming its
May 25, 2012 decision. Appellant then appealed to the Board, resulting in the aforementioned
November 7, 2013 decision and order affirming OWCP’s April 26, 2013 decision.
On December 6, 2013 appellant filed a petition for reconsideration of the Board’s
November 7, 2013 decision and order. By order issued March 21, 2014,6 the Board denied
appellant’s petition for reconsideration, finding that he did not assert or establish any error of fact
or law warranting further consideration.
In an October 29, 2014 letter, received by OWCP on November 18, 2014, appellant
requested reconsideration of the Board’s November 7, 2013 decision and order and the
March 21, 2014 order. He contended that the employing establishment and OWCP’s July 24,
2009 decision withdrew the light-duty position given to him in 2008. Appellant provided a
fragment of an August 26, 2010 employing establishment form noting appellant’s unsatisfactory
conduct beginning in November 2007. A supervisor asserted that appellant did not deliver his
complete route, bringing back mail and causing unauthorized overtime. He noted that appellant
was “offered modified assignment over and above his date back to full duty.”
By nonmerit decision dated March 26, 2015, OWCP denied reconsideration under 20
C.F.R. § 10.606,7 finding that the evidence and argument presented were repetitive of documents
previously of record. It characterized appellant’s reconsideration request as timely filed.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,8
section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provide that a claimant must:
(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.9 Section 10.608(b) provides that
when an application for review of the merits of a claim does not meet at least one of the three

5

Appellant appealed the March 9, 2012 decision to the Board. By order issued December 21, 2012 under Docket
No. 12-1476, the Board remanded the case to OWCP to double File No. xxxxxx781, accepted for bilateral plantar
fasciitis, with File No. xxxxxx366, to be followed by issuance of an appropriate merit decision. OWCP also
accepted a claim for bilateral plantar fibromatosis under File No. xxxxxx936.
6

Docket No. 13-1257.

7

Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”
8

5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.606(b)(3).

3

requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.10
In support of a request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.11 Appellant need only
submit relevant, pertinent evidence not previously considered by OWCP.12 When reviewing an
OWCP decision denying a merit review, the function of the Board is to determine whether
OWCP properly applied the standards set forth at section 10.606(b)(3) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.13
ANALYSIS
OWCP accepted that appellant sustained bilateral foot conditions on or before
September 29, 2005. He worked in a modified-duty position through July 24, 2009, when he
again stopped work and did not return. Appellant claimed wage-loss compensation from July 27,
2009 to August 12, 2011, asserting that the accepted conditions totally disabled him for work.
OWCP denied appellant’s wage-loss claim on March 9, 2012, based on the opinion of
Dr. Johnson, a Board-certified orthopedic surgeon, who found that appellant was not disabled for
work for the claimed period. OWCP affirmed the March 9, 2012 decision on May 25, 2012 and
April 26, 2013.
In the prior appeal, the Board issued a November 7, 2013 decision and order affirming
OWCP’s April 26, 2013 decision, finding that appellant did not establish disability for work for
the claimed period due either to a worsening of the accepted conditions or a withdrawal of lightduty work. Appellant filed a petition for reconsideration, which the Board denied by order
issued March 21, 2014.
Appellant requested reconsideration by October 29, 2014 letter, received by OWCP on
November 18, 2014. He asserted that he stopped work in July 2009 because the employing
establishment withdrew his light-duty position. OWCP denied reconsideration by March 26,
2015 decision, finding that appellant’s request did not contain new, relevant evidence, or
argument.
The Board finds that OWCP appropriately denied reconsideration as appellant’s
argument and evidence were duplicative of documents previously submitted. Evidence which is
duplicative or cumulative in nature is insufficient to warrant reopening a claim for merit
review.14 Therefore, these documents are insufficient to warrant consideration on the merits.

10

Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008).

11

Helen E. Tschantz, 39 ECAB 1382 (1988).

12

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

13

Annette Louise, 54 ECAB 783 (2003).

14

Denis M. Dupor, 51 ECAB 482 (2000).

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A claimant may be entitled to a merit review by submitting new and relevant evidence or
argument. Appellant did not do so in this case. Therefore, pursuant to 20 C.F.R. § 10.608,
OWCP properly denied merit review.
On appeal appellant contends that OWCP denied reconsideration because his request was
untimely filed. He also contends that OWCP received his request on November 6, 2014.
However, the Board notes that OWCP exercised its discretion to adjudicate appellant’s
reconsideration request as timely. Appellant also asserts that the employing establishment failed
to provide or withdraw light-duty work. This argument pertains to the merits of the claim, which
are not before the Board on the present appeal. Appellant also submitted new evidence. He
contends that additional medical evidence accompanying his appeal request is sufficient to meet
his burden of proof. The Board notes that it may not consider evidence for the first time on
appeal that was not before OWCP at the time it issued the final decision in the case.15 Therefore,
the Board cannot review the evidence accompanying appellant’s appeal.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review
pursuant to 5 U.S.C. § 8128(a).

15

20 C.F.R. § 501.2(c).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 26, 2015 is affirmed.
Issued: December 29, 2015
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, NATIONAL DISASTER MEDICAL
SERVICES, Boston, MA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1334
Issued: December 18, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 31, 2017 appellant, through counsel, filed a timely appeal from a May 1, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the claim.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant filed a timely claim for compensation under 5 U.S.C.
§ 8122(a).
FACTUAL HISTORY
On April 21, 2014 appellant, then a 49-year-old retired paramedic, filed an occupational
disease claim (Form CA-2), alleging that exposure to airborne liquid and solid toxins while
working at the World Trade Center (WTC) rescue and recovery site (Ground Zero) during the
period September 12 through 30, 2001 caused Stage IVB Hodgkin’s lymphoma, diagnosed on
December 20, 2005, and chronic obstructive pulmonary disease (COPD) with bronchiectasis. He
worked a 20-hour shift on September 12, 2001 and 12-hour shifts from September 13 to 30,
2001, setting up and staffing medical tents. Appellant asserted that his work area smelled of
smoke and was covered in a heavy layer of dust. He alleged that he did not have training in how
to use the respirator provided, increasing his level of exposure.3 After September 30, 2001,
appellant returned to his regular job in the employing establishment until October 13, 2001 when
he stopped work due to depression and increased alcohol consumption.
Appellant also filed a claim for wage-loss compensation (Form CA-7) for the period
December 20, 2005 to October 9, 2014 and continuing. He noted that he first became aware of
his condition on December 20, 2005, but did not learn that the disease could be work related
until October 1, 2013.
In a July 17, 2014 letter, OWCP notified appellant that the evidence was insufficient to
support that he had provided timely notification of his work injury, to establish a firm diagnosis
of any condition resulting from any employment activity, or to establish how and why specific
employment activities had caused, contributed to, or aggravated his medical condition. He was
advised of the type of evidence needed to establish his claim and was asked to complete a twopage development questionnaire regarding his claim. He was afforded 30 days to submit such
evidence.
In response, appellant submitted medical evidence, along with responses to the
questionnaire dated November 4, 2014. In his responses, he noted that in December 2005, when
he was first diagnosed with Hodgkin’s lymphoma he believed that his lymphoma was due to his
exposure at Ground Zero and that he asked multiple physicians for an opinion on whether his
cancer was caused by exposure to Ground Zero, but was told that there was no science
establishing the connection and they could not make the connection. Appellant contended that
he was just a layperson and that until a physician could make that connection, he believed that
any claim he filed would have been denied. He noted that it was not until 2013 when a physician
agreed with his belief that his lymphoma could have been caused by his presence on
September 11, 2001 as a responder.

3

Under File No. xxxxxx813, OWCP accepted appellant’s claim for post-traumatic stress disorder (PTSD),
chronic, and major depressive disorder recurrent, in remission which he had attributed to his September 2001
experiences at the WTC rescue and recovery site.

2

Dr. Vincent L. Hennessy, Jr., an attending thoracic surgeon, noted on February 2, 2006
that routine laboratory tests demonstrated an elevated white count with thrombocytosis. A
computerized axial tomography (CAT) scan study showed mediastinal lymphadenopathy,
confirmed in a December 2005 biopsy as Hodgkin’s lymphoma. Dr. Hennessy diagnosed
“Nonspecific lung disease from inhalation and debris at the time of 9-11.”
By decision dated May 23, 2016, OWCP accepted that appellant was exposed to toxins at
Ground Zero as alleged from September 12 to 30, 2001. It further found, however, that the
medical evidence of record failed to establish that the accepted exposures caused or contributed
to the development of Hodgkin’s lymphoma.
In a June 22, 2016 letter, counsel requested a telephonic hearing before a representative
of OWCP’s Branch of Hearings and Review.
By decision dated May 1, 2017, an OWCP hearing representative affirmed OWCP’s
May 23, 2016 decision, finding that the medical evidence of record failed to establish a causal
connection between the exposure and the diagnosed conditions.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA, that the claim was filed within the applicable
time limitation, that an injury was sustained while in the performance of duty as alleged, and that
any disability and/or specific condition for which compensation is claimed are causally related to
the employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
Under section 8122(a) of FECA7 a claimant has three years to file a claim for
compensation.8 In a case of occupational disease, the Board has held that the time for filing a
claim begins to run when the employee first becomes aware or reasonably should have been
aware, of a possible relationship between his or her condition and the employment. Such
awareness is competent to start the limitation period even if the employee does not know the
nature of the impairment or whether the ultimate result of such affect would be temporary or

4

Supra note 2.

5

Joe D. Cameron, 41 ECAB 153 (1989).

6

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

7

5 U.S.C. § 8122.

8

Duet Brinson, 52 ECAB 168 (2000); William F. Dorson, 47 ECAB 253, 257 (1995); see 20 C.F.R. § 10.101(b).

3

permanent.9 Where the employee continues in the same employment after such awareness, the
time limitation begins to run on the date of his or her last exposure to the implicated factors.10
Even if the claim is not filed within the three-year period, it may be regarded as timely
under section 8122(a)(1) if appellant’s immediate supervisor had actual knowledge of the alleged
employment-related injury within 30 days such that the immediate superior was put reasonably
on notice of an on-the-job injury or death.11 Section 8122(b) provides that, in latent disability
cases, the time limitation does not begin to run until the claimant is aware or, by the exercise of
reasonable diligence, should have been aware, of causal relationship between the employment
and the compensable disability. The Board has held that the applicable statute of limitations
commences to run although the employee does not know the precise nature of the impairment.12
ANALYSIS
OWCP determined that the claim was timely filed and ruled on the merits of the claim.
The issue of whether a claim is timely filed, however, is a preliminary jurisdictional issue that
precedes any determination on the merits of the claim.13 The Board may raise the issue on
appeal even if OWCP did not base its decision on the time limitation provisions of FECA.14
In cases of injury on or after September 7, 1974, section 8122(a) of FECA provides that
an original claim for compensation, for disability or death must be filed within three years after
the injury or death. Compensation for disability or death, including medical care in disability
cases, may not be allowed if a claim is not filed within that time unless:
“(1) the immediate superior had actual knowledge of the injury or death within 30
days. The knowledge must be such as to put the immediate superior reasonably on
notice of an on-the-job injury or death; or
“(2) written notice of injury or death as specified in section 8119 was given within
30 days.”15
Section 8119 of FECA provides: A notice of injury or death shall-“(a) be given within 30 days after the injury or death;

9

Duet Brinson, id.

10

Larry E. Young, 552 ECAB 264 (2001).

11

5 U.S.C. § 8122(b); Bennie L. McDonald, 49 ECAB 509, 514 (1998).

12

Id. at 8122(b); Edward Lewis Maslowski, 42 ECAB 839, 846 (1991).

13

See Charles W. Bishop, 6 ECAB 571 (1954).

14

Id.

15

Supra note 2 at 8122(a).

4

“(b) be given to the immediate superior of the employee by personal delivery or
by depositing it in the mail properly stamped and addressed;
“(c) be in writing;
“(d) state the name and address of the employee;
“(e) state the year, month, day, and hour when and the particular locality where
the injury or death occurred;
“(f) state the cause and nature of the injury, or, in the case of death, the
employment factors believed to be the cause; and
“(g) be signed by and contain the address of the individual giving the notice.”16
Section 8122(b) provides that the time for filing in latent disability cases does not begin
to run until the claimant is aware or by the exercise of reasonable diligence should have been
aware, of the causal relationship between the employment and the compensable disability and the
Board has held that the applicable statute of limitations commences to run although the employee
does not know the precise nature of the impairment.17 For actual knowledge of a supervisor to
be regarded as timely filing, an employee must show not only that the immediate superior knew
that he or she was injured, but also knew or reasonably should have known that it was an on-thejob injury.18
The Board finds that appellant did not timely file his occupational disease claim. The
evidence of record reveals that appellant, a paramedic, alleged that his condition of Hodgkin’s
lymphoma was due to toxic exposures at the WTC rescue and recovery site from September 12
to 30, 2001. Appellant worked at the Ground Zero site for only that time period. He then
returned to his regular paramedic position for the employing establishment until October 13,
2001 at which time he stopped work due to depression and increased alcohol consumption.
Appellant was diagnosed with post-traumatic stress disorder.19
The time limitation began to run when appellant knew, or reasonably should have known,
of the causal relationship between a condition and the exposure. There is no evidence in the
record to suggest that appellant’s supervisor had actual knowledge of the condition or that
appellant had provided written notice of the injury within 30 days of the exposure. In his
responses to OWCP’s July 2014 development letter, appellant clearly indicated that he was
unaware of his condition until December 2005, when he was first diagnosed with Hodgkin’s
lymphoma. He was concerned at that time that his Hodgkin’s lymphoma was a result of the
exposure at Ground Zero and acknowledged that he had asked multiple physicians for an opinion
16

Supra note 2 at 8119; Larry E. Young, 52 ECAB 264 (2001).

17

Supra note 2 at 8119(b); Delmont L. Thompson, 51 ECAB 155 (1999).

18

Id. at 8122(b); Duet Brinson, 52 ECAB 168 (2000).

19

Supra note 3.

5

on whether his condition was related to his exposure at Ground Zero. Because appellant was,
therefore, aware or reasonably should have been aware of potential causal relationship between
his employment and his diagnosed Hodgkin’s lymphoma in December 2005 when he was first
diagnosed, he would have had three years from that date, or until December 2008, to have filed a
claim.
A medical report from Dr. Hennessy, dated February 2, 2006, reflects a diagnosis of
“Nonspecific lung disease from inhalation and debris at the time of 9-11.” Certainly, by that
time, appellant would have been aware that his condition could have been related to his exposure
at Ground Zero. With such a diagnosis, a reasonable person would have been aware, or
reasonably should have been aware of possible causal relationship between diagnosed condition
and toxins at Ground Zero, and the statutory time limitations would have begun to run. In fact,
appellant acknowledged in his responses to OWCP’s July 2014 development letter that he was
concerned that his cancer was caused by exposure to toxins at Ground Zero, but that he waited to
file his claim until he could find a physician who agreed with him. The Board has indicated that
an employee need only be aware of a possible relationship between his or her condition and his
or her employment to commence the running of the applicable statute of limitations.20
Even if the time began to run from the date of Dr. Hennessy’s February 2, 2006 report
wherein he attributed appellant’s Hodgkin’s lymphoma to his federal employment at Ground
Zero, appellant would have only had until February 2, 2009 to file an occupational disease claim.
As he did not file his claim until April 21, 2014, it was not filed within the statutory three-year
time period. There is no provision in FECA tolling the time limitations of the statue while
appellant searches for a physician who agrees that the diagnosed condition is causally related to
his employment. In the absence thereof, the general statutory time limitation provisions of
FECA must be applied and cannot be waived.
The Board thus finds that appellant’s claim was untimely filed.
CONCLUSION
The Board finds that appellant’s claim is barred by the applicable statutory time
limitation provisions of FECA.

20

Edward C. Hornor, 43 ECAB 834, 840 (1992).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 1, 2017 is affirmed, as modified.21
Issued: December 18, 2017
Washington, DC

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

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

21

Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board
effective December 11, 2017.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cherry Hill, NJ, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 11-348
Issued: September 15, 2011

Case Submitted on the Record

ORDER AFFIRMING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On November 30, 2010 appellant, through her attorney, filed a timely appeal from an
August 17, 2010 merit decision of the Office of Workers’ Compensation (OWCP) that affirmed
a May 18, 2010 schedule award decision.
The Board has duly considered the matter and will affirm OWCP’s August 17, 2010
decision. Appellant’s attorney expresses no disagreement with the schedule award per se.
Rather, he asserted only that OWCP delayed its adjudication of appellant’s schedule award claim
until the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (hereinafter A.M.A., Guides)1 became applicable on May 1, 2009, and
that this delay deprived appellant of due process rights regarding a determination under the fifth
edition.2 The attorney argued that appellant had a protected property interest that could not be

1

A.M.A., Guides (6th ed. 2008).

2

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

deprived without due process, citing Goldberg v. Kelly, 397 U.S. 254 (1970) and Mathews v.
Eldridge, 424 U.S. 319 (1976).3
The above-cited cases held that a claimant who was in receipt of benefits (in Goldberg
welfare benefits and in Mathews Social Security benefits) could not have those benefits
terminated without procedural due process. In this case, appellant had only made a claim for a
schedule award. She was not in receipt of schedule award benefits, and OWCP was not
attempting to terminate benefits. Appellant had no vested right to a schedule award under the
fifth edition of the A.M.A., Guides.
In Harry D. Butler,4 the Board noted that Congress delegated authority to the Director
regarding the specific methods by which permanent impairment is to be rated. Pursuant to this
authority, the Director adopted the A.M.A. Guides as a uniform standard applicable to all
claimants and the Board has concurred in the adoption.5 On March 15, 2009 the Director
exercised authority to advise that as of May 1, 2009 all schedule award decisions of OWCP
should reflect use of the sixth edition of the A.M.A. Guides.6 The applicable date of the sixth
edition is as of the schedule award decision reached. It is not determined by either the date of
maximum medical improvement or when the claim for such award was filed. Accordingly, the
Board finds that the August 17, 2010 decision will be affirmed.
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.

3

On December 6, 2005 appellant, then a 48-year-old postal clerk, filed an occupational disease claim alleging
that work duties caused upper extremity injuries. She had stopped work on September 19, 2005. OWCP accepted
as employment-related bilateral brachial neuritis/radiculitis, bilateral radial styloid tenosynovitis and bilateral
median nerve lesion. Appellant returned to modified duty on June 23, 2008. On February 2, 2009 she filed a
schedule award claim and submitted a November 5, 2008 report from Dr. Nicholas Diamond, in accordance with the
fifth edition of the A.M.A., Guides. Dr. Diamond revised his report to comport with the sixth edition of the A.M.A.,
Guides and concluded that appellant had an 11 percent impairment of the left upper extremity and a 6 percent right
upper extremity impairment. An OWCP medical adviser agreed with Dr. Diamond’s revised impairment rating. By
decision dated May 18, 2010, appellant was granted a schedule award for an 11 percent impairment of the left upper
extremity and a 6 percent impairment on the right.
4

43 ECAB 859 (1992).

5

Id. at 866.

6

FECA Bulletin No. 09-03 (March 15, 2009). The FECA Bulletin was incorporated in the Federal (FECA)
Procedure Manual, Part 2 -- Claims, Schedule Award & Permanent Disability Claims, Chapter 2.808.6(a)
(January 2010).

2

IT IS HEREBY ORDERED THAT the August 17, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 15, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3