United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.W., Appellant
and
TENNESSEE VALLEY AUTHORITY,
PARADISE FOSSIL PLANT, Drakesboro, KY,
Employer
__________________________________________

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Appearances:
Ronald K. Bruce, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1
Issued: July 2, 2010

Case Submitted on the Record

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

JURISDICTION
On September 30, 2009 appellant, through his representative, filed a timely appeal from
the June 26, 2009 merit decision of the Office of Workers’ Compensation Programs, which
denied his claim for a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant has a ratable lung impairment causally related to his
employment-related coal workers’ pneumoconiosis.

FACTUAL HISTORY
On the last appeal,1 the Board found that clarification was warranted from the impartial
medical specialist, Dr. Robert W. Powell, a Board-certified specialist in pulmonary disease. The
Office selected Dr. Powell under 5 U.S.C. § 8123(a) to resolve a conflict in medical opinion.2
Appellant’s attending pulmonologist, Dr. William C. Houser, had diagnosed
pneumoconiosis, category 1/0, due to occupational mixed dust exposure. He reported a
moderately reduced forced vital capacity, and taking into account appellant’s previous stroke, he
concluded that the restrictive impairment was due to pneumoconiosis. The Office referral
pulmonologist, Dr. Kenneth Anderson, had reported a chest x-ray abnormality of 1/0 profusion
secondary to exposure in federal employment. However, he noted that appellant was unable to
complete pulmonary function tests due to inactivity from a previous stroke. Dr. Anderson found
that the early pneumoconiosis suggested by chest x-ray should not be physically disabling and
that appellant’s main pulmonary function test abnormality was related to his previous
cerebrovascular accident (CVA).
On September 21, 2005 an Office hearing representative found that appellant met his
burden to establish a medical condition causally related to factors of his federal employment.
However, he found a conflict between Dr. Houser and Dr. Anderson on the issue of impairment
resulting from the work-related pneumoconiosis.
The Office referred appellant to Dr. Powell to resolve the issue. Dr. Powell reported that
x-rays showed no pleural abnormalities that would suggest pneumoconiosis. Further, he reported
that appellant’s pulmonary functions were normal. He concluded that appellant had no
impairment due to pneumoconiosis.
The Board remanded the case for a supplemental report from Dr. Powell because the
Board could not obtain the predicted values he reported. The Board found that Dr. Powell
should explain how the predicted values he reported were consistent with the American Medical
Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001). If he could not,
then the Board found he should apply the criteria of the A.M.A., Guides to evaluate any
impairment demonstrated by the pulmonary function studies he obtained on December 21, 2005.
The Board added: “He must then explain whether any such impairment is causally related to
appellant’s accepted employment injury.”
On remand, the Office asked Dr. Powell for additional information, but he did not
respond. It therefore referred appellant, together with the case record and a statement of
accepted facts, to Dr. Manoj H. Majmudar, a Board-certified pulmonologist, for an impartial
medical evaluation.

1

Docket No. 08-319 (issued May 12, 2008).

2

In 2002 appellant, then a 79-year-old auxiliary operator, filed a claim alleging that he developed
pneumoconiosis as a result of his federal employment. The Office accepted his claim for bilateral pneumoconiosis,
which it later updated to coal workers’ pneumoconiosis.

2

On August 28, 2008 Dr. Majmudar related appellant’s history and findings on physical
examination. But appellant was unable to perform the pulmonary function test, which
Dr. Majmudar judged to be of very poor quality: “I don’t think that we can interpret this PFT
very well.” Dr. Majmudar added that the chest x-ray was also very poor quality because
appellant was unable to stand up. He assessed the following:
“[An] 85-year-old gentleman who has a CVA and is totally disabled because of
the CVA came for a cough and shortness of breath. His cough and shortness of
breath is most likely from his previous history of smoking and mild chronic
obstructive pulmonary disease. There is no significant clinical evidence of
pneumoconiosis. Most of the disability in this patient is related to his underlying
CVA.”
On September 19, 2008 Dr. Majmudar added that appellant’s impairment was Class 4
under the A.M.A. Guides and that appellant was 51 to 100 percent totally disabled.
An Office medical adviser noted that Dr. Majmudar could not obtain meaningful
pulmonary tests or an adequate x-ray due to appellant’s limitations from a stroke. The medical
adviser noted that Dr. Majmudar did not feel that appellant had a work-related pulmonary
disorder. “And, in any event, I doubt we will be able to ever obtain truly valid pulmonary
function studies for this 85-year-old gentleman who is totally disabled from his CVA.”
In a decision dated November 7, 2008, the Office denied appellant’s claim for a schedule
award. It found that the weight of the medical evidence rested with Dr. Majmudar and
established no ratable impairment. On June 26, 2009 an Office hearing representative affirmed.
The hearing representative found that the evidence was insufficient to establish appellant’s
entitlement to a schedule award.
On appeal, appellant’s representative argues that the Office accepted pneumoconiosis, so
its existence is not an issue. He argues that Dr. Majmudar did not address the issue he was
selected to address, namely, impairment due to the accepted pneumoconiosis. Further,
appellant’s representative argues that Dr. Majmudar’s opinion on the existence of
pneumoconiosis is at odds with appellant’s treating physician, with the Office referral physician,
and with Dr. Powell, the initially selected impartial medical specialist. He argues that
Dr. Majmudar’s opinion is not well rationalized or based on accepted facts.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act3 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.4
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

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When the Office secures an opinion from an impartial medical specialist for the purpose of
resolving a conflict in the medical evidence and the opinion from the specialist requires
clarification or elaboration, the Office has the responsibility to secure a supplemental report from
the specialist for the purpose of correcting a defect in the original report. When the impartial
medical specialist’s statement of clarification or elaboration is not forthcoming or if the specialist
is unable to clarify or elaborate on the original report or if the specialist’s supplemental report is
also vague, speculative, or lacks rationale, the Office must submit the case record together with a
detailed statement of accepted facts to a second impartial specialist for a rationalized medical
opinion on the issue in question.5 Unless this procedure is carried out by the Office, the intent of
section 8123(a) will be circumvented when the impartial specialist’s medical report is insufficient
to resolve the conflict of medical evidence.6
ANALYSIS
The Office referred appellant to Dr. Majmudar, a Board-certified pulmonologist, to
resolve the conflict over the extent of any lung impairment resulting from appellant’s workrelated pneumoconiosis, but he was unable to obtain a meaningful pulmonary function test. In a
follow-up report, he stated that appellant’s impairment was Class 4, representing a 51 to 100
percent impairment of the whole person, but he did not explain how he was able to rate this
impairment without a useable pulmonary function test.
The Board finds that Dr. Majmudar’s opinion requires clarification. He has not resolved
the extent of any lung impairment resulting from appellant’s work-related pneumoconiosis. The
Board will remand the case for a supplemental report and a well-reasoned opinion from
Dr. Majmudar. If, as it appears, there is little likelihood of obtaining a truly valid pulmonary
function study at this point, Dr. Majmudar should review the pulmonary function studies
previously obtained and select one as the best representation of appellant’s pulmonary function.
He must give reasons for his choice. Using the selected study, he should determine the extent of
any lung impairment under the proper edition of the A.M.A., Guides. He must explain whether
any impairment demonstrated by this study is causally related to appellant’s work-related
pneumoconiosis.
The Board will set aside the Office’s June 26, 2009 decision and remand the case for
further development of the medical evidence. After such further development as may be
necessary, the Office shall issue an appropriate final decision on appellant’s entitlement to a
schedule award.
On appeal, appellant’s representative argues that the Office accepted pneumoconiosis and
that the conflict the Office selected Dr. Majmudar to resolve was not whether appellant has this
disease but whether appellant has any ratable lung impairment attributable to the accepted
pneumoconiosis. Dr. Houser opined in the affirmative, Dr. Anderson in the negative, attributing
the main pulmonary function test abnormality to the CVA. Dr. Majmudar must resolve this
conflict with sound medical reasoning. In doing so, he must base his opinion on the accepted
5

See Nathan L. Harrell, 41 ECAB 402 (1990).

6

Harold Travis, 30 ECAB 1071 (1979).

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facts of the case, which means accepting that appellant developed an employment-related
bilateral or coal workers’ pneumoconiosis.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of the
medical evidence is warranted.
ORDER
IT IS HEREBY ORDERED THAT the June 26, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: July 2, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Miami, FL, Employer
__________________________________________

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

Docket No. 13-2107
Issued: April 21, 2014

Case Submitted on the Record

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

JURISDICTION
On September 18, 2013 appellant filed a timely appeal from an August 20, 2013 schedule
award 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 the schedule award decision.2
ISSUE
The issue is whether appellant met his burden of proof to establish more than a 16 percent
impairment of the left lower extremity for which he received a schedule award.

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2

5 U.S.C. §§ 8101-8193.

The Board notes that appellant submitted evidence with his appeal to the Board. The Board may not consider
this evidence as its review of the case is limited to the evidence of record which was before OWCP at the time of its
final decision. 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57 ECAB 126 (2005).

FACTUAL HISTORY
On August 18, 2010 appellant, then a 53-year-old letter carrier, filed an occupational
disease claim alleging that heavy, continuous lifting and bending caused degenerative lumbar
disc disease. He stopped work on July 29, 2010. OWCP accepted that appellant sustained an
employment-related aggravation of degeneration of lumbar or lumbosacral intervertebral disc
and displacement of intervertebral lumbar disc without myelopathy. On August 13, 2010
Dr. Joseph A. Traina, a Board-certified neurosurgeon, performed a hemilaminectomy at L3-4
and L4-5. A November 9, 2010 electrodiagnostic study of the lower extremities was interpreted
by Dr. Ray Lopez, an attending Board-certified neurologist, as compatible with denervation at
left L4-5 with evidence of left S1 nerve compression and/or irritation. Appellant was placed on
the periodic compensation rolls.
On April 6, 2011 appellant filed a schedule award claim. By letter dated April 19, 2011,
OWCP asked Dr. Lopez to provide an impairment evaluation in accordance with the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).3 In an April 13, 2011 report, Dr. Lopez noted that appellant
complained of radiating low back pain and left leg weakness. He provided physical examination
findings that included left thigh atrophy and loss of sensation along the lateral aspect of the left
thigh and calf. Dr. Lopez diagnosed herniated lumbar disc with postoperative left L4 root motor
residual and evidence of nerve root compression with both weakness and sensory abnormality in
the left leg, a portion of which involved the left L5 root; multisegmental degenerative lumbar
disc disease; right ankle arthritis associated with overuse during rehabilitation of the left leg; left
ulnar neuropathy; obstructive sleep apnea; status post arthroscopic left knee surgery; and
borderline hypertension. He advised that appellant remained disabled for gainful employment
and that, under the A.M.A., Guides, he had a nine percent whole person impairment due to a
herniated disc at L3-4 with postoperative residuals of L4 motor impairment with atrophy and L5
sensory impairment.
On May 18, 2011 Dr. H.P. Hogshead, an OWCP medical adviser and a Board-certified
orthopedist, noted his review of the medical record. He advised that, in accordance with
proposed Table 2, spinal nerve Impairment, lower extremity, found in The Guides Newsletter of
July and August 2009, for an L4 injury, appellant had 13 percent moderate motor impairment
and 3 percent moderate sensory impairment, for a total left leg impairment of 14 percent, with
April 13, 2011 the date of maximum medical improvement.
On May 19, 2011 OWCP informed appellant that he was entitled to a schedule award but
since he was receiving wage-loss compensation, it could not process the schedule award at that
time. It stated that he could receive both schedule award compensation and Office of Personnel
Management retirement benefits. On May 23, 2011 disability retirement was approved by the
social security administration.
In June 2011, OWCP referred appellant to Dr. David B. Lotman, a Board-certified
orthopedic surgeon, for a second-opinion evaluation to determine whether appellant continued to
3

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

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have residuals of employment injuries and his work capability. In a July 29, 2011 examination
report, Dr. Lopez diagnosed status post lumbar laminectomy at L4 and probable neuropraxia at
S1. He recommended lower extremity electrodiagnostic studies that were done on August 15,
2011 and were interpreted as suggestive of a left L4-5 nerve root lesion. In an undated
supplementary report, Dr. Lotman advised that the electrodiagnostic study findings were
consistent with appellant’s physical findings of weakness and dysesthesias with possible
diagnoses of inadequate disc decompression, recurrent disc herniation or chronic arachnoiditis
from scar tissue formation. He recommended referral to appellant’s surgeon for evaluation and
advised that appellant could return to sedentary duty and that he would be a candidate for
vocational rehabilitation. Dr. Lotman did not perform an impairment evaluation.
By report dated February 17, 2012, Dr. Lopez advised that appellant had reached
maximum medical improvement as of August 13, 2011. He described residual symptoms of low
back pain and left leg pain and weakness, with absolute loss of sensation along the lateral aspect
of left thigh and calf, moderate motor weakness of the left extensors of the great toe and evertors
of the left foot and atrophy of the left quadriceps muscle. Dr. Lopez advised that, in accordance
with the proposed A.M.A., Guides for rating spinal nerve impairments, appellant had a very
severe sensory loss of left L4 for 7 percent impairment, a severe sensory loss at left L5 for
6 percent impairment, a moderate motor loss at L4 for 13 percent impairment and a mild motor
loss at L5 for 5 percent impairment, which yielded a total left lower extremity impairment of
31 percent.
On March 2, 2012 Dr. Hogshead, the medical adviser, noted that the November 9, 2010
and August 15, 2011 electrodiagnostic studies were compatible, showing a finding of left L4
motor and sensory nerve root injury. He concluded that, in accordance with The Guides
Newsletter of July and August 2009, for an L4 injury, appellant had 13 percent moderate motor
impairment for injury to the L4 motor nerve root and three percent impairment for injury to the
L4 sensory nerve root, for a total left lower extremity impairment of 16 percent, with April 13,
2011 the date of maximum medical improvement.
Dr. Lopez continued to submit reports describing his findings and conclusions.
In June 2012, OWCP referred appellant to Dr. Gilbert D. Beauperthuy, a Board-certified
osteopath specializing in orthopedic surgery, for a second-opinion evaluation, including an
impairment evaluation. In a July 6, 2012 report. Dr. Beauperthuy advised that lower extremity
examination demonstrated 5/5 motor strength bilaterally except 4/5 ankle extensor strength on
the left. Sensation over the L4 nerve distribution appeared diminished to pinprick examination
and there was left thigh and calf atrophy. Dr. Beauperthuy advised that the objective findings on
physical examination and electrodiagnostic studies correlated with appellant’s subjective
complaints for a diagnosis of lumbar radiculopathy. He advised that, in accordance with The
Guides Newsletter of July and August 2009, appellant had severe sensory loss at L4 for 6 percent
impairment and a moderate motor loss at L4 for 11 percent impairment, for a total left lower
extremity impairment of 17 percent.
In reports dated July 6, 2012, Dr. John P. Wilkerson, a Board-certified orthopedist,
diagnosed a right knee internal derangement and advised that appellant could work modified
duty. Appellant continued to submit reports describing his right knee condition.

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On August 6, 2012 OWCP forwarded Dr. Beauperthuy’s July 6, 2012 impairment
evaluation to Dr. Lopez for review. In a September 26, 2012 report, Dr. Lopez advised that he
had reviewed the July 6, 2012 report, noting that the discussion and rating were limited to the L4
segment. He maintained that the L5 segment was also involved.
In September 2012, OWCP referred appellant to Dr. Peter J. Millheiser, a Board-certified
orthopedic surgeon, for a second-opinion evaluation in regard to residuals of the accepted
conditions and appellant’s work capacity. In a September 24, 2012 report, Dr. Millheiser noted
his review of record and appellant’s complaints of sharp back pain, left lower extremity
numbness and weakness and right knee pain. Lumbar spine examination demonstrated
decreased range of motion, no tenderness and mild spasm. Left leg examination demonstrated
hypesthesia about the entire circumference of the left leg below the knee and left thigh and calf
atrophy. Dr. Millheiser diagnosed postlumbar laminectomy and right knee pain. He opined that
appellant’s right knee condition was not related to his back problems and advised that he could
perform sedentary work on a part-time or full-time basis.
On November 8, 2012 Dr. James W. Dyer, an OWCP medical adviser who is Boardcertified in orthopedic surgery, agreed that, in accordance with The Guides Newsletter of July
and August 2009, appellant had a left lower extremity L4 nerve root sensory deficit of 6 percent
and a motor deficit of 11 percent, for a total left lower extremity impairment of 17 percent, with
maximum medical improvement reached on July 6, 2012.
In December 2012, OWCP determined that conflicts in medical evidence had been
created between Dr. Lopez and Dr. Millheiser regarding appellant’s work capacity and between
Dr. Lopez and Dr. Beauperthuy regarding the degree of appellant’s left leg impairment. It
referred appellant to Dr. Jay E. Stein, a Board-certified orthopedic surgeon, for an impartial
evaluation. On December 12, 2012 Dr. Lopez advised that appellant’s condition was unchanged.
In a January 14, 2013 report and attached work capacity evaluation, Dr. Stein reported his
review of the medical records, appellant’s work history and his complaint of constant lower back
pain. He described examination findings including a negative straight leg raising, decreased
sensation over the dorsal aspect of the left foot and lateral aspect of the left calf and thigh.
Lower extremity strength was 5/5 and left calf and thigh atrophy was present. Dr. Stein
diagnosed status post lumbar laminectomy at L4-5, left L4 nerve root residual, status post left
knee surgery and right knee pain. He indicated that appellant was at maximum medical
improvement and opined that his right knee symptoms were unrelated to employment duties.
Dr. Stein advised that appellant could perform sedentary duties full time with permanent physical
restrictions. He concluded that appellant had 4 percent impairment attributable to a moderate
sensory loss in the L4 distribution and 11 percent moderate motor loss in the L4 distribution, for
a combined 15 percent impairment of the left lower extremity.
By report dated February 13, 2013, Dr. Hogshead, an OWCP medical adviser, noted his
review of Dr. Stein’s January 14, 2013 report. He compared Dr. Stein’s conclusion that
appellant had a 15 percent left lower extremity impairment, with that of Dr. Dyer dated
November 8, 2012, who found 16 percent impairment. Dr. Hogshead indicated that the
difference lay in the application of The Guides Newsletter tables. He stated that the difference
related to the choice of a moderate sensory loss or a severe sensory loss and this was subjective.

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The medical adviser concluded that the rules for such difference of opinion placed the deciding
opinion with the referee and concluded that appellant had 15 percent impairment of the left lower
extremity.
On March 21, 2013 OWCP referred appellant for vocational rehabilitation. On April 5,
2013 appellant elected civil service retirement benefits, effective June 5, 2013.
In a June 12, 2013 report, Dr. Lopez reiterated his findings and conclusions and
maintained that appellant had both left L4 and L5 nerve root residuals. On July 31, 2013
Dr. Hogshead, the medical adviser, advised that maximum medical improvement was reached on
January 11, 2011.
On August 20, 2013 appellant was granted a schedule award for 16 percent impairment
of the left lower extremity, for a total of 46.08 weeks, to run from June 5, 2013 to
April 23, 2014.4 OWCP stated that the impairment was based on the findings of Dr. Stein and
the medical adviser.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing federal regulations,6 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 for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.9 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a

4

OWCP noted that appellant’s schedule award compensation began the date his FECA wage-loss compensation
ended.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

FECA Bulletin No. 09-03 (issued March 15, 2009).

9

Pamela J. Darling, 49 ECAB 286 (1998).

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schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.10
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
alternative approach to rating spinal nerve impairments.11 OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures which memorializes proposed tables outlined in The Guides
Newsletter of July and August 2009.12
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.13 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.14 When there exist 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
upon a proper factual background, must be given special weight.15
OWCP’s procedures further provide that, while an OWCP medical adviser may review
the opinion of a referee specialist in a schedule award case, the resolution of the conflict is the
specialist’s responsibility and not that of the medical adviser, who should not resolve the conflict
of medical opinion or attempt to clarify or expand the opinion of the medical referee. If
clarification is necessary, a supplementary report should be obtained from the referee specialist.16
ANALYSIS
OWCP accepted that appellant sustained degeneration of a lumbar intervertebral disc and
displacement of intervertebral lumbar disc without myelopathy. The Board finds that the weight
of the medical evidence rests with the opinion of Dr. Stein, who provided an impartial medical
10

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

11

Rozella L. Skinner, 37 ECAB 398 (1986).

12

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010).
13

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

14

20 C.F.R. § 10.321.

15

V.G., 59 ECAB 635 (2008).

16

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(g)(1, 2) (February 2013); see K.O., Docket No. 11-814 (issued December 21, 2011); Robert R.
Lemay, 56 ECAB 341 (2005).

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evaluation for OWCP regarding the degree of appellant’s left lower extremity impairment.
Dr. Stein’s opinion comported with section 3.700 of OWCP’s procedures, which memorializes
proposed tables outlined in The Guides Newsletter of July and August 2009. His opinion
establishes that appellant has 15 percent impairment of the left leg.
OWCP determined that a conflict in medical evidence was created between Dr. Lopez, an
attending neurologist, and Dr. Beauperthuy, an orthopedist, who provided a second-opinion
evaluation for OWCP regarding the degree of appellant’s left lower extremity impairment. It
referred appellant to Dr. Stein for an impairment evaluation. In his January 14, 2013 report,
Dr. Stein described physical examination findings including decreased sensation over the dorsal
aspect of the left foot and lateral aspect of the left calf and thigh with lower extremity strength of
5/5 and left calf and thigh atrophy. He diagnosed status post lumbar laminectomy at L4-5, left
L4 nerve root residual, status post left knee surgery and right knee pain. Dr. Stein indicated that
appellant was at maximum medical improvement. He concluded that appellant had 4 percent
impairment attributable to a moderate sensory loss in the L4 distribution and 11 percent
moderate motor loss of the L4 distribution, for a combined 15 percent impairment of the left
lower extremity.
By report dated February 13, 2013, Dr. Hogshead, an OWCP medical adviser, compared
Dr. Stein’s report, which found a 15 percent left lower extremity impairment, with that of
Dr. Dyer dated November 8, 2012, which found a 16 percent impairment, both impairment
finding due to L4 motor and sensory loss of the left lower extremity. He indicated that the
difference lay in the application of The Guides Newsletter tables. Dr. Hogshead stated that the
difference related to the choice of a moderate sensory loss or a severe sensory loss, which was
subjective. He correctly noted that when there is a difference of opinion, the deciding opinion is
that of the referee,17 which in this case was Dr. Stein. Dr. Hogshead concluded that appellant
had 15 percent impairment of the left lower extremity.
The Board has carefully reviewed the opinion of Dr. Stein and finds that it has reliability,
probative value and convincing quality with respect to its conclusions regarding the relevant
issue in the present case. Dr. Stein’s opinion is based on a proper factual and medical history
and he thoroughly reviewed the factual and medical history. He accurately summarized the
relevant medical evidence and provided medical rationale that appellant had L4 sensor and motor
deficits which yielded a 15 percent left lower extremity impairment. This finding is in
accordance with proposed Table 2 of The Guides Newsletter, found in exhibit 4 of section 3.700
of OWCP’s procedures.18 Dr. Stein’s opinion is consequently entitled to special weight as the
impartial medical examiner and establishes that appellant has 15 percent impairment of the left
lower extremity.
Appellant therefore did not meet his burden of proof to establish that he has impairment
of his left lower extremity greater than the 16 percent previously awarded. On appeal, he asserts
that Dr. Stein should have provided additional impairment for L5. However, Dr. Stein’s
January 14, 2013 report did not indicate that any impairment for L5 was warranted.
17

Id.

18

Supra note 12.

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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 did not establish that he has greater than the 16 percent left
leg impairment for which he has already received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the August 20, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: April 21, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
U.S. POSTAL SERVICE, ROSELAND
POST OFFICE, Chicago, IL, Employer
__________________________________________

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

Docket No. 18-1765
Issued: June 11, 2019

Case Submitted on the Record

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

JURISDICTION
On September 21, 2018 appellant filed a timely appeal from a March 30, 2018 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days has
elapsed from OWCP’s last merit decision, dated December 15, 2006, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has been previously before the Board.2 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
By decision issued December 14, 2015,3 the Board affirmed an OWCP decision dated
June 10, 2015, which denied appellant’s April 8, 2015 request for an oral hearing before an OWCP
hearing representative.
In a letter dated November 29, 2016, appellant requested reconsideration with OWCP of
the Board’s December 14, 2015 decision. She contended that OWCP had erred in denying her
February 19, 2015 request for reconsideration of a nonmerit February 20, 2014 OWCP decision,
as she had submitted new, relevant medical evidence meeting the requirements of 20 C.F.R.
§ 10.606(b)(3).4 Appellant also asserted that the Board had erred by affirming OWCP’s denial of
her request for an oral hearing. She also argued that OWCP did not develop the medical evidence
in her claim as she had not been referred for a second opinion examination. Appellant referred
generally to sections of OWCP’s regulations and procedures, and various Board precedents
regarding OWCP’s duty to see that justice is done. She did not submit additional evidence in
support of her November 29, 2016 request.
By decision dated February 27, 2017, OWCP denied reconsideration, finding that
appellant’s November 29, 2016 letter was not relevant and pertinent new evidence. It found that
her assertions were insufficient to warrant reopening her claim for a merit review. Appellant then
appealed to the Board.
By decision dated January 18, 2018,5 the Board found that OWCP had erred in applying
the standards for timely requests for reconsideration as set forth in 5 U.S.C. § 8128(a) and
20 C.F.R. § 10.606(b)(3) to appellant’s November 29, 2016 request for reconsideration. The
Board found that it had received appellant’s request on November 29, 2016, more than one year
after the Board’s last merit decision of record of December 15, 2006. The Board set aside OWCP’s
February 27, 2017 decision and remanded the case to OWCP for issuance of an appropriate
decision determined under the clear evidence of error standard.
On remand of the case, by decision dated March 30, 2018, OWCP denied appellant’s
request for reconsideration, finding that it was untimely filed and failed to demonstrate clear

2
Docket No. 17-1682 (issued January 18, 2018); Docket No. 15-1679 (issued December 14, 2015); Docket No. 092374 (issued June 17, 2010); Docket No. 06-1980 (issued December 15, 2006).
3

Docket No. 15-1679 id.

4

Appellant had provided a January 29, 2015 letter from Dr. Christian Altman, a treating anesthesiologist,
pulmonary function test results, and a pulmonary imaging study.
5

Docket No. 17-1682 supra note 2.

2

evidence of error. It found that appellant’s reconsideration request did not constitute relevant
evidence as it merely reiterated the factual history of her claim and recited OWCP procedures.
LEGAL PRECEDENT
To be entitled to a merit review of an OWCP decision denying or terminating a benefit, an
application for reconsideration must be received by OWCP within one year of the date of OWCP’s
decision for which review is sought.6 Timeliness is determined by the document receipt date (i.e.,
the “received date” in OWCP’s integrated Federal Employees’ Compensation System.7 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.8
OWCP may not deny a reconsideration request solely because it was untimely filed. When
a claimant’s application for review is untimely filed, it must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error. If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review.9
To demonstrate clear evidence of error, a claimant must submit evidence that is relevant to
the issue that was decided by OWCP,10 is positive, precise, and explicit, and is manifest on its face
that OWCP committed an error.11 The evidence must not only be of sufficient probative value to
create a conflict in medical opinion or establish a clear procedural error, but must also shift the
weight of the evidence in favor of the claimant and raise a substantial question as to the correctness
of OWCP’s decision for which review is sought. Evidence that does not raise a substantial
question is insufficient to demonstrate clear evidence of error. It is not enough merely to show
that the evidence could be construed so as to produce a contrary conclusion. A determination of
whether the claimant has demonstrated clear evidence of error entails a limited review of how the
evidence submitted with the reconsideration request bears on the evidence previously of record.12
ANALYSIS
The Board finds that OWCP properly determined that appellant’s November 29, 2016
request for reconsideration was untimely filed and failed to demonstrate clear evidence of error.

6

20 C.F.R. § 10.607(a).

7

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

8

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

9
F.N., Docket No. 18-1543 (issued March 6, 2019); M.L., Docket No. 09-0956 (issued April 15, 2010). See also
20 C.F.R. § 10.607(b); supra note 7 at Chapter 2.1602.5 (February 2016) (the term clear evidence of error is intended
to represent a difficult standard).
10

See F.N., id.; A.F., Docket No. 18-0645 (issued October 26, 2018); Dean D. Beets, 43 ECAB 1153 (1992).

11

See F.N., supra note 9; A.F., id.; Leona N. Travis, 43 ECAB 227 (1991).

12

J.S., Docket No. 10-0385 (issued September 15, 2010); B.W., Docket No. 10-0323 (issued September 2, 2010).

3

Preliminarily, the Board notes that it is unnecessary for it to consider the evidence appellant
submitted prior to the issuance of OWCP’s June 10, 2015 decision because the Board considered
that evidence in its December 14, 2015 decision. Findings made in prior Board decisions are res
judicata absent any further review by OWCP under section 8128 of FECA.13
OWCP’s regulations14 and procedures15 establish a one-year time limitation for requesting
reconsideration, which begins on the date of the original OWCP merit decision. A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.16
The most recent merit decision was the Board’s December 15, 2006 decision which affirmed
OWCP’s May 22, 2006 decision denying appellant’s occupational disease claim as causal
relationship was not established. As her request for reconsideration was not received by OWCP
until November 29, 2016, more than one year after the Board’s December 15, 2006 decision, it
was untimely filed.17 Because appellant’s request was untimely, she must demonstrate clear
evidence of error on the part of OWCP in having denied her occupational disease claim.18
OWCP denied appellant’s occupational disease claim as the medical evidence of record
failed to establish a causal relationship between occupational exposures and claimed respiratory
conditions. In her November 29, 2016 request for reconsideration, appellant asserted that medical
evidence received by OWCP on February 19, 2015 was sufficient to establish causal relationship.
The Board finds that this argument fails to demonstrate clear evidence of error as it is insufficient
to demonstrate that evidence could be construed so as to produce a contrary conclusion.19
Appellant also protested the denial of her request for an oral hearing and contended that OWCP
failed to refer her for a second opinion examination. These arguments are irrelevant to the
underlying issue of causal relationship and fail to demonstrate clear evidence of error in OWCP’s
denial of appellant’s occupational disease claim.20
The Board finds that appellant’s arguments in the untimely request for reconsideration do
not raise a substantial question as to the correctness of the final merit decision and are therefore
insufficient to demonstrate clear evidence of error. The underlying issue in appellant’s claim is
medical in nature with respect to establishing causal relationship. The Board notes that the term

13

See J.L., Docket No. 17-1460 (issued December 21, 2018).

14
J.W., Docket No. 18-0703 (issued November 14, 2018); 20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB
247 (2005).
15

FECA Procedure Manual, supra note 7 at Chapter 2.1604.4 (February 2016); see Veletta C. Coleman, 48 ECAB
367, 370 (1997).
16

F.N., supra note 9; J.W., supra note 14; Robert F. Stone, 57 ECAB 292 (2005).

17

20 C.F.R. § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

18

F.N., supra note 9.

19

Id., J.S., supra note 12; B.W., supra note 12.

20

F.N., supra note 9; see M.N., Docket No. 15-0758 (issued July 6, 2015).

4

clear evidence of error is intended to represent a difficult standard.21 Even a detailed, wellrationalized medical report, which would have created a conflict in medical opinion requiring
further development if submitted prior to issuance of the denial decision, is insufficient to
demonstrate clear evidence of error.22 It is not enough to show that evidence could be construed
so as to produce a contrary conclusion. Instead, the evidence must shift the weight in appellant’s
favor.23
Accordingly, the Board finds that OWCP properly denied appellant’s reconsideration
request, as it was untimely filed and failed to demonstrate clear evidence of error.
On appeal, appellant contends that OWCP erred in its March 30, 2018 decision by failing
to address all relevant evidence she had submitted in her claim, citing to the Board’s order in J.A.24
Additionally, she sets forth multiple grievances with the claims process which are passionate, but
irrelevant. As set forth above, OWCP properly found that appellant’s November 29, 2016 request
for reconsideration failed to demonstrate clear evidence of error.
CONCLUSION
The Board finds that OWCP properly determined that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.

21
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (October 2011); see
Dean D. Beets, supra note 10.
22

F.N., supra note 9; see D.G., 59 ECAB 455 (2008).

23

F.N., supra note 9; see M.N., supra note 20.

24
Docket No. 12-1902 (issued March 12, 2013) (where the Board set aside OWCP’s August 2, 2012 decision and
remanded the case for additional development as OWCP had failed to fully consider the medical evidence of record).

5

ORDER
IT IS HEREBY ORDERED THAT the March 30, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 11, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Henderson, NC, Employer
__________________________________________

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

Docket No. 11-2039
Issued: April 18, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 13, 2011 appellant filed a timely appeal of the March 25, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his claim for
wage-loss compensation and the June 20, 2011 nonmerit decision denying his request for
reconsideration. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant is entitled to wage-loss compensation for the period
September 18 through November 5, 2010; and (2) whether OWCP properly refused to reopen his
case for further review of the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 66-year-old letter carrier, sustained a traumatic injury on April 2, 2009 when
he took a bad step while delivering mail. OWCP accepted his claim for partial tear of the left
posterior tibial muscle. Appellant returned to work on April 9, 2009 with restrictions precluding
him from walking his route. He stopped working on April, 20, 2010 when light duty was no
longer available.
On August 5, 2010 appellant’s treating physician, Dr. Richard Bruch, a Board-certified
orthopedic surgeon, diagnosed tear of the left posterior tibial muscle. He provided work
restrictions which precluded walking more than two hours per day effective August 6, 2010, with
sedentary work for eight hours per day. Beginning August 27, 2010, appellant was permitted to
walk or stand four hours per day.
Appellant accepted a job offer dated August 20, 2010, effective August 9, 2010, as a “TE
City Carrier.” Duties included delivering mail on City 5 for 2 hours a day, and delivering mail
on City 8, 9, 10, 11, 12 or 13 for 3 hours, 40 minutes per day. Physical requirements of the
position included: walking (2 hours); driving (3 hours, 40 minutes); lifting up to 70 pounds
intermittently (1 hour); and simple grasping and fine manipulation.
In an August 24, 2010 letter, the employing establishment stated that approximately an
hour after accepting the August 20, 2010 modified job offer, appellant sustained a heart attack
and was unable to work for approximately four weeks due to his heart condition.
In a September 15, 2010 report, Dr. Bruch diagnosed left posterior-tibial tendinitis and
painful leg. On examination, there was no swelling, withdrawal or shininess in the left leg.
Dr. Bruch indicated that appellant had suffered a heart attack on August 20, 2010 and had
undergone heart catheterization and placement of a stint. He opined that appellant was not able
to tolerate the duties of his current work contract, which required 2 hours of walking and 3 hours,
40 minutes of driving.
Appellant filed a claim for compensation for total disability beginning September 18
through November 5, 2010, stating that he had returned to work following release by his
cardiologist, but was informed that no work was available within his restrictions.2 The
employing establishment challenged the claim, contending that he was out of work due to his
heart condition.
In an October 28, 2010 report, Dr. Bruch diagnosed posterior-tibial tendon dysfunction.
On examination, appellant was unable to perform single heel rise, but sensibility was good.
Dr. Bruch noted that appellant had a bruise the size of a half dollar in the mid-portion of his left
leg overlying the posterior-tibial muscle and tendon, which he sustained when “something struck
this area.” He stated that appellant was unable to walk for the two hours required by his lightduty job and was temporarily totally disabled.

2

Appellant also filed a claim for compensation for the period August 21 through September 17, 2010. OWCP
denied his claim in a November 12, 2010 decision. Appellant did not appeal this decision.

2

OWCP forwarded the case file to the district medical adviser for review and an opinion
regarding the status of appellant’s condition and work capacity. In a November 2, 2010 report,
the district medical adviser recommended a second opinion examination to establish a more
definitive diagnosis.
In a letter dated November 12, 2010, OWCP informed appellant that the evidence was
insufficient to establish that his claimed disability was due to the accepted leg injury. It allowed
him 30 days to provide medical evidence supporting his claim for disability.
On November 19, 2010 the employing establishment informed OWCP that the
August 20, 2010 job offer remained available.
On December 9, 2010 Dr. Bruch found no evidence of bruising about the left leg. Pain
was well localized just posterior to the tibia at the mid leg region near the musculotendinous
junction of the posterior-tibial tendon and major calf muscles, which was anterior to the usual
area where blood clots occur. Dr. Bruch diagnosed posterior tibial tendon dysfunction and
opined that appellant was unable to work.
OWCP referred appellant to Dr. William Somers, a Board-certified orthopedic surgeon,
for a second opinion examination and an opinion as to the extent of his disability and his work
capacity.3 In a December 13, 2010 report, Dr. Somers provided a history of injury and treatment
and findings on examination. Appellant was tender about the left medial tibia six to eight inches
proximal to the ankle, along the medial tibial border and into the soft tissues posterior to the
tibia. There was no pitting edema in either leg. With plantar compression with the fist and
percussion over the tibia six to eight inches proximal to the ankle produced pain. Medial and
slightly posterior to this, the soft tissue was very tender and there was fusiform thickening in the
tissues just medial and posterior to the tibia on the left, six to eight inches proximal to the ankle.
Pulses were 2/4 in the right popliteus, dorsal pedal and posterior tibial. The palpation of the
dorsal pedal and posterior tibial pulses were absent on the left. There was pain with plantar
flexion and some pain produced with stretch of the posterior tibial musculature when standing.
Dr. Somers diagnosed: “likely plantaris tendon injury on April 2, 2009; likely posterior
shin splints related to abnormal gait pattern related to the plantaris tendon injury dated April 2,
2009 likely vascular insufficiency, left leg, no evidence at this time for claudication or that this is
causing his current problem.” He opined that appellant’s diagnosed conditions were directed
related to his accepted injury. Dr. Somers stated that the bruising and swelling in the left leg
indicated some acute injury related to the soft tissues, and the diminished pulses in the left foot
and ankle suggested a vascular problem in the left leg, which he opined was not work related.
He stated that the likely scenario was that “he had a plantaris tendon rupture, walked abnormally
on this for some period of time and developed posterior shin splints related to this.”
Dr. Somers opined that appellant was unable to perform normal work activities because
he could not do the walking, and that further evaluation was necessary, including a new MRI
scan of the left leg focusing primarily six to eight inches above the ankle joint, but covering the
3

OWCP instructed Dr. Somers to refer appellant for a functional capacity evaluation if he believed he was unable
to perform the duties of his position without restrictions.

3

entire region from the metaphysis proximal to metaphysis distal in the tibia. He also stated that
appellant had never had directed treatment for shin splints and opined that a functional capacity
evaluation at that time would be worthless.
By decision dated December 14, 2010, OWCP denied wage-loss compensation for the
period September 18 through November 5, 2010, finding that the evidence was insufficient to
establish a causal relationship between his claimed disability and the accepted injury.
On January 7, 2011 appellant requested a review of the written record. On December 13,
2010 his temporary appointment with the employing establishment expired. Appellant stated
that his small bruise resulting from bumping into a coffee table prior to October 28, 2010 had
nothing to do with his inability to walk.
In a decision dated March 25, 2011, the Branch of Hearings and Review affirmed the
December 14, 2010 decision denying appellant’s disability claim.
OWCP’s hearing
representative found that the medical evidence established that appellant was capable of
performing the duties of the modified position on August 20, 2010, but that he was disabled until
September 22, 2010 due to his cardiac condition. He found that there was no evidence to support
appellant’s claim that the employing establishment did not allow him to work or that any
disability was due to his accepted leg injury. Rather, the hearing representative found that he had
experienced a new injury on October 28, 2010. He further determined that Dr. Somers’ second
opinion examination was equivocal, poorly reasoned and not contemporaneous with the claimed
period of disability and, therefore, was insufficient to establish appellant’s claim. The hearing
representative modified OWCP’s prior decision by granting compensation for four hours of
medical appointments on October 28, November 1, 3 and 5, 2010.
On May 19, 2011 appellant requested reconsideration. He contended that he had never
been treated for a bruised leg, which was a side effect of his heart medication. Appellant
submitted reports dated March 17 to April 25, 2011 from Dr. Bruch, who reiterated his opinion
that appellant was capable of sedentary work only, due to his accepted left leg condition. On
April 25, 2011 Dr. Bruch stated that his prior treatment of appellant and restrictions provided
were directly related to the original leg injury incurred on April 2, 2009.
By decision dated June 20, 2011, OWCP denied appellant’s request for reconsideration
on the grounds that the evidence submitted did not warrant further review of the merits.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition, which resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that
caused the illness.4 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his work-related
injury or illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force) or when the physical requirements of such
4

20 C.F.R. § 10.5(x).

4

an assignment are altered so that they exceed his established physical limitations.5 Moreover,
when the claimed recurrence of disability follows a return to light-duty work, the employee may
satisfy his burden of proof by showing a change in the nature and extent of the injury-related
condition such that he was no longer able to perform the light-duty assignment.6
Where an employee claims a recurrence of disability due to an accepted employmentrelated injury, he has the burden of establishing that the recurrence of disability is causally
related to the original injury.7 This burden includes the necessity of furnishing evidence from a
qualified physician who concludes, on the basis of a complete and accurate factual and medical
history, that the condition is causally related to the employment injury.8 The medical evidence
must demonstrate that the claimed recurrence was caused, precipitated, accelerated or aggravated
by the accepted injury.9
ANALYSIS
In its March 25, 2011 decision, the Office of Hearings and Review approved appellant’s
claim for compensation for medical appointments on four separate days; however, it denied his
claim for compensation for total disability from September 18 through November 5, 2010 on the
grounds that the evidence was insufficient to establish that the claimed disability was due to his
accepted leg injury. The Board finds that this case is not in posture for a decision.
On September 15, 2010 Dr. Bruch opined that appellant was not able to tolerate the
duties of his light-duty job, which required 2 hours of walking and 3 hours, 40 minutes of
driving. On October 28, 2010 he indicated that appellant was unable to walk for the two hours
required by his light-duty job and opined that he was temporarily totally disabled. OWCP
undertook development of the case by seeking an opinion from its medical adviser regarding the
status of appellant’s condition and work capacity. At the recommendation of the medical
adviser, OWCP referred appellant to Dr. Somers for a second opinion examination as to the
extent of his disability and his work capacity. The Board finds that Dr. Somers’ report is not
fully rationalized on the issues presented.
As OWCP’s hearing representative found in his March 25, 2011 decision, Dr. Somers’
December 13, 2010 report was equivocal and poorly reasoned. He failed to provide a definitive
diagnosis, but opined that appellant had a “likely” plantaris tendon injury, “likely” posterior shin
splints due to abnormal gait pattern related to the accepted injury, and “likely” left leg vascular
insufficiency. Dr. Somer opined that appellant’s diagnosed conditions were directly related to
his accepted injury. He stated that the likely scenario was that appellant “had a plantaris tendon
rupture, walked abnormally on this for some period of time and developed posterior shin splints
5

Id.

6

Theresa L. Andrews, 55 ECAB 719, 722 (2004).

7

20 C.F.R. § 10.104(b); Carmen Gould, 50 ECAB 504 (1999); Helen K. Holt, 50 ECAB 279, 382 (1999);
Robert H. St. Onge, 43 ECAB 1169 (1992).
8

See Helen K. Holt, supra note 7.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (June 1995).

5

related to this.” Dr. Somers opined that appellant was unable to perform work activities that
involved walking. He failed, however to adequately explain whether the walking restriction was
due to the accepted injury and, if so, whether the restriction was applicable to the claimed period
of disability.10 Instead, Dr. Somers recommended further evaluation, including a new MRI scan
of the left leg. His recommendation for further studies is consistent with his failure to provide a
definitive diagnosis or unequivocal opinion regarding appellant’s work capacity. For these
reasons, Dr. Somers’ report is of limited probative value.
Once OWCP undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.11 It undertook
development in this case by referring appellant to the DMA and, subsequently, to Dr. Somers for
a second opinion on his work capacity related to his accepted condition. For reasons stated,
Dr. Somers’ report is of diminished probative value and is insufficient to resolve the issue in this
case. Accordingly, the case is remanded to OWCP for further development. Once OWCP has
developed the case record to the extent it deems necessary, a de novo decision shall be issued.
CONCLUSION
The Board finds that this case is not in posture for a decision on the issue of appellant’s
total disability from September 18 through November 5, 2010.

10

Medical conclusions unsupported by rationale are of little probative value. Willa M. Frazier, 55 ECAB
379 (2004).
11

Richard F. Williams, 55 ECAB 343, 346 (2004).

6

ORDER
IT IS HEREBY ORDERED THAT the March 25, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed as to its approval of compensation for medical
appointments on October 28, November 1, 3 and 5, 2010. The decision is set aside and the case
is remanded for further action consistent with this decision on the issue of appellant’s total
disability during the period September 18 through November 5, 2010.12
Issued: April 18, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

12

Given the Board’s ruling on the first issue, the second issue is moot.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 14-588
Issued: July 1, 2014

Case Submitted on the Record

ORDER REMANDING CASE
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

On January 17, 2014 appellant filed a timely appeal from a January 6, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP) finding that he was at fault
in creating an overpayment of compensation. The Board docketed the appeal as No. 14-588.
On prior appeal, by decision dated December 3, 2013, the Board found that appellant
received an overpayment of compensation in the amount of $56,316.66 for the period March 1,
2009 to February 9, 2013 because he received compensation from OWCP after he elected
retirement benefits from the Office of Personnel Management (OPM).1 The Board further
determined, however, that he was not at fault in creating the overpayment. The Board noted that
appellant had not received any payment from OPM during the period of the overpayment of
compensation. The Board thus found that he had not accepted a payment that he knew or should

1

Docket No. 13-1307 (issued December 3, 2013). OWCP accepted that on July 29, 1985 appellant, then a 30year-old letter carrier, sustained acute lumbar strain and a herniated L5 disc in the performance of duty. In decisions
dated October 21, 2009 and March 10, 2011, the Board affirmed OWCP decisions denying his request for
reconsideration of its finding that he did not establish an employment-related recurrence of disability beginning
April 16, 2003 as the request was untimely and did not demonstrate clear evidence of error. Docket No. 09-435
(issued October 21, 2009); Docket No. 10-1278 (issued March 10, 2011).

have known to be incorrect.2 The Board remanded the case for consideration of waiver of
recovery of the overpayment.
On remand, by decision dated January 6, 2014, OWCP again found that appellant was at
fault in creating the $56,631.66 overpayment of compensation for the period March 1, 2009 to
February 9, 2013. It determined that, while he had not received a payment from OPM at the time
of its preliminary fault determination, it had advised him on April 16, 2013 that he had the
responsibility to pay the debt upon receipt of the money from OPM. OWCP noted that appellant
had received payment from OPM at the time it issued the final overpayment determination.
The Board, having reviewed the case record, finds that the case is not in posture for
decision. The Board has final authority to determine questions of law and fact. The Board’s
determinations are binding upon OWCP and must, of necessity, be so accepted and acted upon
by the Director of OWCP.3 Otherwise there could be no finality of decisions; the whole appeals
procedure would be nullified and questions would remain moot.4
Accordingly, as OWCP failed to follow the Board’s directive in its December 3, 2013
decision to consider waiver of recovery of the overpayment, the case must be remanded to
OWCP for the action described in the Board’s December 3, 2013 decision. Following this and
any further development deemed necessary, it should issue a decision regarding whether
recovery of the overpayment should be waived.

2

The Board cited Franklin L. Bryan, 56 ECAB 310 (2005). In Bryan, OWCP found that the claimant was at fault
in creating an overpayment of compensation from July 7 to September 7, 2002 because he received benefits from
OWCP and OPM for the same time period. The Board noted that he elected OPM disability retirement benefits on
July 2, 2002 but OWCP continued to pay him compensation until September 7, 2002. The claimant did not receive
payment from OPM during the period in question. The Board determined that as he had not received benefits from
OPM from July 7 to September 7, 2002, he did not receive a dual benefit when OWCP paid him compensation
during this period as he had not accepted payments that he knew or should have known were incorrect. The Board
stated, “Although [the claimant] was generally aware that he could not simultaneously receive OPM benefits and
workers’ compensation payments, no payment was made by OPM during the period in question.” It thus found that
he was not at fault in creating the overpayment.
3

See Paul Raymond Kuyoth, 27 ECAB 498 (1976); Anthony Greco, 3 ECAB 84 (1949); see also Frank W. White,
42 ECAB 693 (1991) (the Board’s order in a prior appeal imposed an obligation on the Director to take particular
actions as directed).
4

See Anthony Greco, supra note 3.

2

IT IS HEREBY ORDERED THAT the January 6, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: July 1, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bryan, TX, Employer
__________________________________________

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

Docket No. 12-61
Issued: May 25, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 5, 2011 appellant, through her attorney, timely appealed the September 2,
2011 nonmerit decision of the Office of Workers’ Compensation Programs’ (OWCP), which
denied reconsideration of an April 7, 2010 schedule award. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board’s jurisdiction
extends only to the September 2, 2011 nonmerit decision.2
ISSUE
The issue is whether OWCP properly declined to reopen appellant’s case for merit review
under 5 U.S.C. § 8128(a).

1
2

5 U.S.C. §§ 8101-8193.

Because the latest merit decision was issued on April 7, 2010, more than 180 days prior to the filing of the
instant appeal, the Board does not have jurisdiction over the merits of appellant’s claim for a schedule award. The
Board also notes that the current record includes evidence received after OWCP issued its September 2, 2011
decision. Because this evidence was not part of the record when OWCP issued its September 2, 2011 decision, the
Board is precluded from considering it for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
Appellant, a 57-year-old former mail processor, has accepted an occupational disease
claim for a bilateral foot condition that arose on or about October 31, 2003.3 The employing
establishment relieved her of her duties effective February 9, 2009 and she subsequently filed a
claim for wage-loss compensation, which OWCP denied.4
On March 31, 2009 appellant filed a claim for a schedule award (Form CA-7). In a
report dated February 25, 2009, Dr. W. Paul Roquet, a Board-certified family practitioner, stated
that she had activity-related corns and calluses involving the right foot that affected her gait and
activity level. Applying the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) (5th ed. 2001), he found two percent whole person
impairment for lower extremity loss of range of motion (ROM) due to mild inversion and
eversion defects. Dr. Roquet found that appellant reached maximum medical improvement
(MMI) as of February 25, 2009. In an April 9, 2009 addendum, he converted his previous whole
person impairment rating to a four percent right leg rating under the A.M.A., Guides (5th ed.
2001).
OWCP later advised appellant that her physician should submit an impairment rating
under the sixth edition of the A.M.A., Guides (2008).5 In a report dated December 1, 2009,
Dr. Roquet rated two percent right leg impairment based on a class 1, grade E soft tissue injury
under Table 16-2, Foot & Ankle Regional Grid, A.M.A., Guides 501 (6th ed. 2008). On
February 23, 2010 the medical adviser reviewed the record and concurred with Dr. Roquet’s two
percent rating.
By decision dated April 7, 2010, OWCP granted a schedule award for two percent
impairment of the right leg. The award covered a period of 5.76 weeks from February 25 to
April 6, 2009.
On July 15, 2011 appellant requested reconsideration.6 She stated that she believed
Dr. Roquet’s impairment rating was extremely low because he did not include any of the
findings from her podiatrist, Dr. Amy L. Haase. Appellant submitted treatment records from
Dr. Haase dated April 7, May 19, June 23, August 4, October 13 and December 22, 2008 and
3

OWCP accepted the claim for scar conditions and fibrosis of the skin (ICD-9 709.2) and other congenital
anomalies of the skin (ICD-9 757.39). Appellant also has an accepted claim for bilateral carpal tunnel syndrome,
which arose on or about August 3, 1998, claim File No. xxxxxx075. On February 9, 2000 OWCP granted a
schedule award for 13 percent impairment of the left upper extremity under claim File No. xxxxxx075.
4

By decision dated October 28, 2009, OWCP found that the medical evidence did not establish that appellant was
disabled from work on or after February 9, 2009 due to her accepted bilateral foot condition. It noted that the
employing establishment terminated her employment effective February 9, 2009.
5

Effective May 1, 2009, schedule awards are determined in accordance with the sixth edition of the A.M.A.,
Guides (2008). See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit
1 (January 2010); see also Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6a
(January 2010).
6

Appellant also submitted the appeal request form that accompanied the April 7, 2010 decision, which was
signed and dated July 22, 2011.

2

March 2, May 18, June 8, July 20, October 5 and November 2, 2009 and March 8, 2010. She
also submitted a June 16, 2008 report from Dr. Roquet, as well as his December 1, 2009
impairment rating and a copy of the medical adviser’s February 23, 2010 report.
By decision dated September 2, 2011, OWCP denied appellant’s request for
reconsideration.7
LEGAL PRECEDENT
OWCP has the discretion to reopen a case for review on the merits.8 An application for
reconsideration, including all supporting documents, must set forth arguments and contain
evidence that either: (1) shows that OWCP erroneously applied or interpreted a specific point of
law; (2) advances a relevant legal argument not previously considered by OWCP; or
(3) constitutes relevant and pertinent new evidence not previously considered by OWCP.9 When
an application for reconsideration does not meet at least one of the above-noted requirements,
OWCP will deny the request for reconsideration without reopening the case for a review on the
merits.10
ANALYSIS
Appellant’s July 15, 2011 request for reconsideration neither alleged nor demonstrated
that OWCP erroneously applied or interpreted a specific point of law. Additionally, she did not
advance a relevant legal argument not previously considered by OWCP. Appellant’s
dissatisfaction with her own physician’s impairment rating is not an argument that would warrant
further merit review of her schedule award. Therefore, she is not entitled to a review of the
merits based on the first and second above-noted requirements under section 10.606(b)(2).11
Appellant also failed to submit any “relevant and pertinent new evidence” with her
July 15, 2011 request for reconsideration. Most of the evidence that accompanied her request
was previously of record.12 Submitting additional evidence that repeats or duplicates
information already in the record does not constitute a basis for reopening a claim.13 Although
Dr. Haase’s treatment records dated April 7, May 19, June 23, August 4, October 13 and
December 22, 2008 and June 8, 2009 were new to the record, the treatment notes did not
7

Although appellant filed her July 15, 2011 request more than a year after the April 7, 2010 schedule award
decision, OWCP did not apply the clear evidence of error standard under 20 C.F.R. § 10.607(b). Instead, OWCP
applied the less stringent requirements for reconsideration set forth under 20 C.F.R. § 10.606(b) (formerly 20 C.F.R.
§ 10.138(b) (1998), as referenced in the September 2, 2011 decision at footnote 3).
8

5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.606(b)(2).

10

Id. at § 10.608(b).

11

Id. at § 10.606(b)(2)(1) and (2).

12

Several of Dr. Haase’s treatment notes were verbatim copies of reports previously submitted by her colleague,
Dr. Robert D. Leisten, DPM.
13

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

3

specifically address the extent of any lower extremity impairment under the A.M.A., Guides (6th
ed. 2008), but merely chronicled appellant’s ongoing complaints and the treatment she
received.14 Appellant did not provide any new medical evidence that might arguably impact the
prior schedule award decision. Consequently, she is not entitled to a review of the merits based
on the third requirement under section 10.606(b)(2).15
CONCLUSION
The Board finds that OWCP properly denied appellant’s July 15, 2011 request for
reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the September 2, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 25, 2012
Washington, DC

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

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

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

14

Dr. Haase’s March 8, 2010 treatment note was also new to the record. However, it only noted that appellant
missed that day’s scheduled follow-up appointment.
15

Supra note 11.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.W., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
GARRISON, Fort McPherson, GA, Employer
__________________________________________

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

Docket No. 17-0020
Issued: June 23, 2017

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 October 6, 2016 appellant filed a timely appeal from a September 15, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated September 30, 2015, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On December 22, 2008 appellant, then a 59-year-old former utility systems repaireroperator, filed an occupational disease claim (Form CA-2) alleging that he developed cancer as a

1

5 U.S.C. § 8101 et seq.

result of prolonged exposure to toxic chemicals while in the performance of duty.2 In
October 2009, OWCP accepted his claim for other named lymphoma variants, lymph nodes
head, face, and neck. It later expanded the claim to include lymphoma of the left upper eyelid,
renal cell carcinoma of the right kidney with right nephrectomy, adverse effect of chemotherapy,
and chemo-induced sensory motor neuropathy of the upper and lower limbs.
In an August 20, 2013 decision, OWCP granted appellant a schedule award for 100
percent loss of his right kidney. The award covered a period of 156 weeks from May 3, 2003
through April 28, 2006.
On February 2, 2015 OWCP received appellant’s claim for an additional schedule award
(Form CA-7). In a February 23, 2015 report, Dr. Samuel J. Olsen II, a Board-certified internist,
found 50 percent permanent impairment of the left upper extremity and 40 percent permanent
impairment of the right upper extremity. He also found 40 percent permanent impairment of the
left lower extremity and 30 percent permanent impairment of the right lower extremity.
However, Dr. Olsen indicated that his impairment rating was not based on the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (2009)
(A.M.A., Guides).
Based on the March 9, 2015 advice of its district medical adviser, OWCP referred
appellant for a second opinion evaluation to determine the existence and extent of any permanent
impairment to the bilateral upper and lower extremities. Dr. Bruce R. Leforce, a Board-certified
neurologist, examined appellant on July 23, 2015 and provided a July 28, 2015 impairment
rating. He found that appellant had reached maximum medical improvement and opined that he
had three percent permanent impairment of both the left and right lower extremities due to mild
sensory changes in the distal lower extremities.
In an August 27, 2015 report, the district medical adviser, Dr. James W. Dyer, a Boardcertified orthopedic surgeon, reviewed the relevant medical evidence and concurred with
Dr. Leforce’s three percent bilateral lower extremity impairment under Table 16-12, Peripheral
Nerve Impairment, A.M.A., Guides 534 (6th ed. 2009). He also found no permanent impairment
with respect to appellant’s upper extremities.
By decision dated September 30, 2015, OWCP granted appellant a schedule award for
three percent permanent impairment of both the left and right lower extremities. The award
covered a period of 17.28 weeks from July 23 through November 20, 2015.
On September 6, 2016 OWCP received appellant’s September 1, 2016 correspondence
requesting reconsideration of his “visit to Dr. Le Force.” Appellant took issue with OWCP’s
reliance on Dr. Leforce’s evaluation. He noted that the visit and brief history lasted only 15
minutes and that Dr. Leforce did not review his record. Appellant also indicated that Dr. Leforce
only asked him a few questions concerning his medical conditions. Additionally, Dr. Leforce
reportedly spoke to appellant in a condescending manner and repeatedly asserted that appellant
“only wanted something from the Government (money).”
2

At the time he filed his claim, appellant was no longer employed by the Department of the Army. On the Form
CA-2, his former employing establishment noted that he currently worked as a project engineer with the General
Services Administration (GSA). Appellant voluntarily retired from GSA effective July 3, 2009.

2

In a September 15, 2016 decision, OWCP denied appellant’s request for reconsideration
without a review of the merits of the claim. It noted that he had not submitted any medical
evidence indicating that Dr. Leforce’s impairment rating was incorrect.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.3 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.4 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is
sought.5 A timely application for reconsideration, including all supporting documents, must set
forth arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.6 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.7
A claimant may seek an increased schedule award if the evidence establishes that he or
she sustained an increased impairment at a later date causally related to the employment injury.8
OWCP procedures provide that a claim for an increased schedule award may be based on an
incorrect calculation of the original award or an increased impairment at a later date which is due
to work-related factors. In such a situation, an increased schedule award may be payable if
supported by the medical evidence.9

3

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on [his/her] own motion or on application.” 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.607.

5

Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal
Employees’ Compensation System. Id. at Chapter 2.1602.4b.
6

20 C.F.R. § 10.606(b)(3).

7

Id. at § 10.608(a), (b).

8

See K.J., Docket No. 06-1192 (issued November 17, 2006).

9

Supra note 5 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.9
(February 2013). In addition, OWCP procedures provide that a request for reconsideration of a schedule award
based on a disagreement with the percentage awarded must be distinguished from a situation where a claimant who
previously received an award is filing for an increased impairment due to a worsening of the claimant’s medical
condition due to deterioration of his or her condition or increased exposure. Such a request for increased
impairment is not subject to the one-year time limitation for reconsideration. Supra note 5 at Chapter 2.1602.5.a
(February 2016).

3

ANALYSIS
In a September 15, 2016 decision, OWCP denied appellant’s request for reconsideration
and did not review the merits of the claim, noting that he had not submitted any medical
evidence indicating that Dr. Leforce’s impairment rating was incorrect. The Board finds that this
was proper because appellant did not claim an incorrect calculation of the original award. As
appellant has not made a claim for an increased schedule award for his lower extremities, he is
not entitled to a merit decision on the medical evidence.10
In his September 6, 2016 request for reconsideration, appellant took issue with
Dr. Leforce’s July 23, 2015 second opinion evaluation, noting that the physician was
condescending and had not conducted a thorough evaluation. However, he neither alleged nor
demonstrated that OWCP erroneously applied or interpreted a specific point of law.
Additionally, appellant did not advance any relevant legal arguments not previously considered
by OWCP. The Board finds that he is not entitled to a review of the merits based on the first and
second requirements under section 10.606(b)(3).11
Appellant also failed to submit any relevant and pertinent new evidence with his
September 6, 2016 request for reconsideration. The issue on reconsideration was whether he had
greater than three percent permanent impairment of the left and right lower extremities. This
was a medical issue, and notwithstanding appellant’s criticism of Dr. Leforce’s second opinion
evaluation, he did not submit any medical evidence demonstrating a greater impairment than
previously awarded. Because appellant did not provide any relevant and pertinent new evidence,
he is not entitled to a review of the merits based on the third requirement under section
10.606(b)(3).12 Accordingly, OWCP properly declined to reopen his case under 5 U.S.C.
§ 8128(a).
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

10

Cf., supra note 8 (where the claimant used the term reconsideration in his May 19, 2005 letter, but clearly
expressed a request for an increased schedule award, indicating that his condition had worsened and referred to a
magnetic resonance imaging scan as support for an additional schedule award, the Board found that he had made a
claim for an increased schedule award for his lower extremities and was entitled to a merit decision on the medical
evidence).
11

Id. at § 10.606(b)(3)(i) and (ii).

12

Id. at § 10.606(b)(3)(iii).

4

ORDER
IT IS HEREBY ORDERED THAT the September 15, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 23, 2017
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
East St. Louis, IL, Employer
__________________________________________

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

Docket No. 18-1047
Issued: February 13, 2019

Case Submitted on the Record

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

JURISDICTION
On April 26, 2018 appellant, through counsel, filed a timely appeal from a November 17,
2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days have elapsed from the last merit decision, dated August 10, 2017, to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this 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 his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 14, 2006 appellant, then a 37-year-old mail carrier, filed a traumatic injury
claim (Form CA-1) alleging that he injured his back that day while loading his delivery vehicle.
He explained that he lifted a tray of mail and felt pain in his back, under the left shoulder blade.
Appellant described his injury as a pulled muscle. On January 26, 2007 OWCP initially accepted
his claim for left thoracic region back sprain. It subsequently accepted neck sprain, and on May 1,
2007, advised appellant that the acceptance of his claim had also been expanded to include
herniated cervical discs at C4-5 and C5-6.3 OWCP paid him wage-loss compensation for
temporary total disability on the supplemental rolls beginning January 3, 2007. Appellant returned
to work August 7, 2007.
On June 15, 2015 appellant filed a claim for a schedule award (Form CA-7).
In support of his claim, appellant submitted a December 29, 2014 report, by Dr. Neil Allen,
a Board-certified internist and neurologist, who found 14 percent left upper extremity permanent
impairment due to mild sensory and mild motor deficits at the C7 nerve root. Dr. Allen also found
there were no motor or sensory deficits affecting the upper extremities at the C5, C6, and C8 nerve
roots. He based his upper extremity impairment rating on the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4
In a July 20, 2015 report, Dr. Michael Hellman, an orthopedic surgeon and OWCP district
medical adviser, reviewed the relevant medical evidence, including Dr. Allen’s December 29,
2014 report. He concurred with the finding of no upper extremity impairment at the C4-5 and
C5-6 nerve root levels. As to Dr. Allen’s impairment rating with respect to the C7 nerve root,
Dr. Hellman noted that this condition was neither preexisting nor was it accepted by OWCP as
work related. He further noted that appellant’s December 18, 2006 cervical MRI scan showed no
significant weakness or sensation loss in the C7 distribution. Dr. Hellman concluded that appellant
had zero percent bilateral upper extremity impairment due to his accepted cervical injury. He
noted a date of maximum medical improvement (MMI) of December 29, 2014.
By decision dated October 28, 2015, OWCP denied appellant’s claim for a schedule award
because the submitted evidence was insufficient to establish an employment-related permanent
impairment. Appellant timely requested a hearing, and by decision dated September 21, 2016, an
OWCP hearing representative affirmed the October 28, 2015 schedule award denial.

3

A December 18, 2006 cervical spine magnetic resonance imaging (MRI) scan revealed: (1) a large hard
disc/osteophyte complex at the C3-4 level on the left with foraminal narrowing; (2) small right-sided C4-5 hard
disc/osteophyte complex with mild right foraminal narrowing and small left osteophytic spur at the left foramen; and
(3) hard disc/osteophyte complex at the C6-7 level on the left and mild foraminal narrowing.
4
A.M.A., Guides (6th ed. 2009). Dr. Allen referenced Proposed Table 1, page 4 of The Guides Newsletter¸ Rating
Spinal Nerve Extremity Impairment Using the Sixth Edition (July/August 2009).

2

On May 15, 2017 appellant, through counsel, requested reconsideration.
In an April 30, 2017 addendum to his December 29, 2014 report, Dr. Allen related that
appellant’s claim was accepted for displacement of the cervical intervertebral disc without
myelopathy without specific mention of a spinal level. He indicated that a December 18, 2006
cervical spine MRI scan showed disc pathology at the C3-4, C4-5, and C6-7 levels. Dr. Allen
indicated that the pathology at the C6-7 level was identical to appellant’s presentation of left-sided
motor and sensory deficits on examination. He opined that the mechanism of injury at the C7 level
was that of “repetitive lifting at and above the level of the shoulder, described by the patient at the
time of the injury.” Dr. Allen explained that repetitive lifting leads to fatigue of the postural
muscles of the spine, which resulted in straining the muscles of the neck and upper back.
In a May 30, 2017 addendum report, Dr. Allen again opined that the disc pathology at C7
was related to appellant’s employment. He noted that appellant’s injuries resulted from “repetitive
micro[-]trauma, sustained while in the performance of his regular duties as a letter carrier on
November 14, 2006.” Dr. Allen concluded that his impairment rating calculated on December 29,
2014 accurately and reasonably represented the functional loss sustained by appellant as a result
of the November 14, 2006 work-related trauma. He provided his impairment rating calculations
from his December 29, 2014 report.
By decision dated August 10, 2017, OWCP denied modification of the September 21, 2016
decision. It found that the new medical reports from Dr. Allen did not establish that appellant had
a ratable impairment due to his November 14, 2006 employment injury.
On September 8, 2017 appellant, through counsel, requested reconsideration.
In a June 16, 2017 addendum report, Dr. Allen noted diagnoses of neck sprain,
displacement of cervical intervertebral disc without myelopathy, and sprain of the back, thoracic
region. He reiterated that OWCP had not specified a specific spinal level for appellant’s
displacement of cervical intervertebral disc without myelopathy and again related that appellant’s
mechanism of injury at the C7 level was “repetitive lifting at and above the level of the shoulder.”
Dr. Allen opined that appellant was entitled to a schedule award under The Guides Newsletter,
(July/August 2009) edition due to functional loss resulting from his November 14, 2006
employment injury. He indicated that he was including his impairment rating calculations from
his December 29, 2014 report for appellant’s left upper extremity.
By decision dated November 17, 2017, OWCP denied reconsideration of the merits of
appellant’s claim. It determined that the additional medical reports submitted were cumulative
and substantially similar to medical evidence previously considered.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against payment of compensation at any time on his own motion or on application.5

5

5 U.S.C. § 8128(a).

3

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.6
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.7 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.8 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.9
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant did not show that OWCP erroneously applied or interpreted a specific point of
law, did not advance a relevant legal argument not previously considered by OWCP.
Consequently, he is not entitled to further review of the merits of his claim based on the first and
second above-noted requirements under 20 C.F.R. § 10.606(b)(3). In support of his reconsideration
request, appellant submitted a June 16, 2017 addendum report by Dr. Allen. Dr. Allen alleged that
appellant’s cervical disc pathology at C6-7 was causally related to the November 14, 2006
employment injury and explained the mechanism of injury. He opined that appellant had a
permanent impairment to his left upper extremity due to his cervical injury at the C6-7 spinal level
and included his impairment calculations from his December 29, 2014 report.
The Board finds that Dr. Allen merely repeated his opinion from his previous April 30 and
May 30, 2017 reports that appellant sustained a permanent impairment of his left upper extremity
at the C7 spinal level, which he believed was work related. Dr. Allen also duplicated his
impairment calculations from his December 29, 2014 report. The Board has held that the
submission of evidence which duplicates or is substantially similar to evidence already in the case
record does not constitute a basis for reopening a case.10 Dr. Allen did not provide any relevant
and pertinent new evidence regarding appellant’s left upper extremity impairment attributable to
the November 14, 2006 employment injury. Accordingly, the Board finds that appellant did not
provide OWCP with any evidence which has met the requirements of 20 C.F.R. § 10.606(b)(3)
sufficient to require further merit review of his claim.

6

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
7

20 C.F.R. § 10.607(a).

8

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

9

20 C.F.R. § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

10

E.M., Docket No. 09-39 (issued March 3, 2009); D.K., 59 ECAB 141 (2007).

4

The Board finds that appellant has not met any of the regulatory requirements and OWCP
properly declined his request for reconsideration of the merits of his claim under 5 U.S.C.
§ 8128(a).11 Thus, OWCP did not abuse its discretion in refusing to reopen his claim for a review
on the merits.12
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 17, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 13, 2019
Washington, DC

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

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

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

11

A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58 ECAB 694 (2007); Susan A. Filkins, 57 ECAB
630 (2006).
12
When a claimant does not submit relevant evidence with respect to an increased schedule award, then OWCP
may properly determine that appellant has filed an application for reconsideration of a schedule award decision. See
K.K., Docket No. 15-1684 (issued October 23, 2015).

5