United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF THE NAVY, EMPLOYEE
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RELATIONS & DEVELOPMENT BRANCH,
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Washington, DC, Employer
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___________________________________________ )
A.H., Appellant

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

Docket No. 06-877
Issued: March 20, 2007

Case Submitted on the Record

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

JURISDICTION
On March 8, 2006 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated November 28, 2005 which denied modification of its
March 1, 2005 schedule award decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the schedule award decision.
ISSUE
The issue is whether appellant has more than a 20 percent permanent impairment of her
right upper extremity for which she received a schedule award.
FACTUAL HISTORY
On April 29, 1992 appellant, then a 43-year-old secretary, filed an occupational disease
claim alleging that she sustained a hand and shoulder condition. The Office accepted her claim

for right shoulder strain, rotator cuff tear, right rotator cuff repair, right carpal tunnel syndrome
and right carpal tunnel release. Appellant received appropriate compensation benefits.1
In an October 5, 1998 report, Dr. Kevin E. McGovern, a treating physician and a Boardcertified orthopedic surgeon, opined that appellant’s right rotator cuff tear and right carpal tunnel
syndrome were surgically corrected and that she was capable of returning to full duty. Appellant
subsequently requested a schedule award.
On January 8, 2001 the Office referred appellant for a second opinion, along with a
statement of accepted facts, a set of questions and the medical record to Dr. German H. Nader, a
Board-certified orthopedic surgeon.
In an undated report, Dr. Nader described appellant’s history of injury and treatment, and
provided an impairment rating in which he advised that she was entitled to an award of 17
percent to the right upper extremity. He explained that he arrived at this rating by noting that
appellant had median nerve residuals at the wrist and that, according to Table 16 of the American
Medical Association, Guides to the Evaluation of Permanent Impairment, (5th ed. 2001)
(A.M.A., Guides), appellant would receive 10 percent. Furthermore, Dr. Nader advised that,
because appellant had weakness in the rotator cuff comprised of a Grade 4 for a motor deficit,
then appellant would be entitled to 25 percent according to Table 12. He further explained that,
according to Table 13, appellant had a 30 percent motor deficit which would result in a 7 percent
impairment of the upper extremity. Dr. Nader determined that this would equate to a total of a
17 percent impairment of the upper extremity and opined that appellant reached maximum
medical improvement six months post surgery or repair.
On April 1, 2003 the Office medical adviser determined that appellant was entitled to an
impairment of 20 percent to the right upper extremity. He noted that appellant was entitled to an
impairment of 10 percent for her right rotator cuff tear according to Table 16-182 and 10 percent
for her carpal tunnel syndrome according to Table 16-15.3
In a decision dated May 19, 2003, the Office granted appellant a schedule award for 20
percent impairment of the right upper extremity. The award covered a period of 62.40 weeks
from May 9, 2001 to July 19, 2002.
On June 11, 2003 appellant requested a hearing.
In a June 6, 2003 report, Dr. Hampton J. Jackson, a Board-certified orthopedic surgeon
and treating physician, explained that he did not understand Dr. Nader’s impairment rating. He
referred to the A.M.A., Guides and determined that appellant was entitled to an impairment of 26
percent to the right upper extremity for the right shoulder and a 42 percent impairment due to
carpal tunnel syndrome.

1

The Office subsequently found that the work-related disability had ceased effective January 30, 2000.

2

A.M.A., Guides 499.

3

Id. at 492.

2

In a September 17, 2003 electromyography (EMG) scan and nerve conduction velocity
(NCV) study, Dr. Daniel R. Ignacio, a Board-certified physiatrist, determined that appellant had
borderline distal sensory latencies of the right median nerve with normal proximal conduction
velocity across the right shoulder, normal NCV of bilateral ulnar and radial nerves and abnormal
EMG findings with evidence of denervation of the selected muscles of the right arm, shoulder
and cervical paraspinal muscles along the right C5 and C6 distribution. He also indicated that
appellant had right C5-6 nerve root irritation and chronic stable right carpal tunnel syndrome
with improvement compared to a previous nerve conduction study.
In a November 3, 2003 decision, the Office hearing representative set aside the May 19,
2003 schedule award for further development. He found that the Office medical adviser’s report
was incomplete as no medical examination findings were utilized to determine appellant’s
impairment.
On November 25, 2003 the Office medical adviser explained that the recent diagnostic
studies of Dr. Ignacio were not considered reliable or independent. He recommended referral to
a physician not associated with appellant’s treating physician. The Office medical adviser noted
that, in order to rate the right rotator cuff tear, actual measured ranges of motion were required.
On January 9, 2004 the Office referred appellant, together with a statement of accepted
facts and the medical record, to Dr. Michael Joly, a Board-certified orthopedic surgeon, for an
impartial medical evaluation to resolve a conflict in opinion between Dr. Jackson and Dr. Nader
regarding the percentage of impairment to her right upper extremity.
In an April 7, 2004 report, Dr. Joly noted appellant’s history of injury and treatment and
conducted an examination. He determined that there was no clinical evidence of right wrist
impairment despite the EMG/NCV studies documenting persistent carpal tunnel syndrome.
Dr. Joly noted that appellant’s right wrist was “doing very well.” He indicated that appellant had
minimal limitation of right shoulder function and explained that the majority of appellant’s
present symptoms appeared to be cervical in nature. Dr. Joly opined that the evidence did not
support an additional impairment of the right arm. He explained that there was no clinical
evidence of right wrist impairment and that appellant’s residual right upper extremity weakness
and decreased sensation did not follow a dermatomal pattern. Dr. Joly explained that an
additional impairment rating should not be based on EMG/NCV studies as they “tended to be
abnormal after successful surgery for carpal tunnel syndrome.” He opined that appellant had a
nine percent impairment of the right upper extremity based upon the A.M.A., Guides and
reached maximum medical improvement related to her rotator cuff repair in November 1989 and
in February 1997 after her right carpal tunnel release. Dr. Joly explained that appellant had only
a slight restriction in her range of motion which would warrant a four percent impairment
because she had 130/30 degrees for flexion to extension and referred to Figures 16-38, 39
and 40.4 He advised that appellant would be entitled to three percent because of limited
abduction to adduction of 130/30 degrees and referred to Figures 16-41, 42 and 43.5 Dr. Joly

4

Id. at 475, 476.

5

Id. at 477.

3

also explained that appellant would be entitled to an impairment of two percent for slightly
restricted external rotation to internal rotation of 60/30 and referred to Figures 16-44, 45 and 46.6
In a June 14, 2004 report, the Office medical adviser reviewed the report of Dr. Joly. He
noted that appellant reached maximum medical improvement on April 7, 2004. The Office
medical adviser noted that the only ratable impairment described by Dr. Joly for the right
shoulder was restricted range of motion. He noted that flexion of the right shoulder of 130
degrees was equal to a three percent permanent impairment and that extension of the right
shoulder of 30 degrees warranted a one percent permanent impairment of the right upper
extremity pursuant to Figure 16-40.7 The Office medical adviser noted that a reduction of the
right shoulder of 130 degrees warranted a two percent permanent impairment of the right upper
extremity pursuant to Figure 16-43.8 He referred to Figure 16-469 and indicated that external
rotation of 60 degrees was equal to a zero percent permanent impairment of the right upper
extremity, whereas internal rotation of 30 degrees was equal to a two percent permanent
impairment of the right upper extremity. Regarding the wrist, the Office medical adviser
referred to Figure 16-28 and 3110 and noted that appellant had dorsiflexion and plantar flexion of
60 degrees, radial deviation of 20 degrees and ulnar deviation of 30 degrees, which did not
indicate entitlement to impairment. He explained that the total percentage “in aggregate”
allowed for a 10 percent permanent impairment of the right upper extremity, which differed from
the impartial medical examiner by 1 percent but explained that this was “allowable in the
statistical scheme of things.”
By decision dated June 17, 2004, the Office denied appellant’s request for an additional
schedule award.
On July 16, 2004 appellant requested an oral hearing, which was held on
December 7, 2004.
In an October 15, 2004 report, Dr. Jackson opined that he did not believe that there was
any significant change from his examination and ratings given on June 6, 2003. He noted that
the strength index for appellant was equivalent to a 20 percent impairment of the right upper
extremity and was the same for pinch of only two kilograms. Furthermore, Dr. Jackson noted
that appellant had another 20 percent impairment of her right upper extremity and concurred with
Dr. Nader’s findings. He explained that, pursuant to Table 16, appellant was entitled to a 10
percent impairment, Table 12 a 25 percent impairment, and Table 13 with a 30 percent
impairment.11 Dr. Jackson referred to page 604 of the AM.A., Guides and opined that this would
correlate to a 42 percent impairment of the right arm. He opined that his calculations remained
6

Id. at 478, 479.

7

Id. at 476.

8

Id. at 477.

9

Id. at 479.

10

Id. at 467, 469.

11

He did not refer to the specific chapter that he was utilizing in the A.M.A., Guides.

4

the same for the impairment of the right shoulder, which: was an additional 26 percent
impairment and when combined with the 42 percent, the total impairment of the shoulder, hand
and wrist condition equated to 57 percent of the right arm. In a December 2, 2004 report,
Dr. Jackson opined that his opinion remained that appellant was entitled to an impairment of 57
percent due to the multiple injuries she received from the work injury.
By decision dated March 1, 2005, the Office hearing representative affirmed the June 17,
2004 decision. The Office hearing representative found the report of Dr. Joly represented the
special weight of medical opinion. Furthermore, he found that the reports of Dr. Jackson were
insufficient to overcome the special weight or to create a new conflict with that of Dr. Joly, the
impartial medical examiner.
On July 19, 2005 appellant, through her attorney, requested reconsideration.
In a January 6, 2005 report, Dr. Jackson noted that he had previously evaluated appellant
and recommended an impairment of 57 percent to the right upper extremity and noted that
appellant also had a separate impairment for “pain alone.” He explained that appellant had
findings in the right shoulder, right elbow, right hand and wrist that were persistent. There was
no change in appellant’s grip strength and lateral pinch strength. Dr. Jackson noted that his
findings were the same and that he had “rereferred to the fifth guides to the evaluation of
permanent impairment published by the [A.M.A., Guides] and reconsulted Table 16-31 through
Table 16-34 for calculating physical impairment based on loss of strength specifically grip and
lateral pinch strength.” He explained that his ratings were still the same and opined that
appellant had a 20 percent impairment of the arm for loss of grip strength and a 20 percent
impairment of the right arm for loss of lateral pinch strength. Dr. Jackson referred to Tables 1631 to 16-34.12 He also indicated that, for her loss of strength and lateral pinch, appellant was
entitled to a 40 percent impairment of the arm. Dr. Jackson also noted that appellant had
“observable pain behaviors.” They included that appellant held and supported her affected arm,
frequent shifts of posture, and moving in a guarded and protected fashion. Dr. Jackson
determined that her global pain behavior warranted a score of five and completed Table 18-413 to
determine appellant’s impairment associated with pain, Dr. Jackson explained that appellant had
a total pain-related impairment score of 55.04 according to Table 18-6 and 18-714 and advised
that appellant was in the second highest impairment class titled moderately severe impairment
and opined that her “pain is totally related. This patient only has pain in her right upper
extremity.” Dr. Jackson also noted that appellant continued to be entitled to 6 percent for
instability and a 20 percent impairment according to Table 16-3515 due to loss of strength in the
flexion, extension, abduction, internal rotation and external rotation. Dr. Jackson opined that the
total combined impairment of appellant’s right upper extremity was equal to 76 percent.

12

Id. at 509.

13

Id. at 576, 577.

14

Id. at 584.

15

Id. at 510.

5

In an October 12, 2005 report, the Office medical adviser reviewed the medical records,
noting that the basis for appellant’s impairment rating was due to loss of motion in her shoulder.
He noted that flexion was equal to 130 degrees and resulted in a three percent impairment with
extension of 30 degrees resulting in one percent impairment. The Office medical adviser noted
that abduction of 130 degrees resulted in a two percent impairment, while adduction to 30
degrees resulted in a one percent impairment. He also indicated that external rotation to 60
degrees resulted in zero percent impairment while internal rotation to 30 degrees resulted in four
percent impairment. The Office medical adviser explained that this would result in a total
impairment of 11 percent to the right upper extremity for loss of motion at the shoulder. He
referred to Figures 16-40, 16-43 and 16-46.16 The Office medical adviser explained that
appellant was not entitled to any impairment for her carpal tunnel syndrome. He referred to
Chapter 16 of the A.M.A., Guides,17 the paragraph on carpal tunnel syndrome and explained that
there was no basis for an impairment rating for any residuals due to entrapment of the median
nerve related to appellant’s carpal tunnel syndrome because there was no documentation on
EMG and nerve conduction studies of any residuals of the carpal tunnel syndrome. Furthermore,
the Office medical adviser explained that wrist ranges of motion submitted by Dr. Joly were
normal. He noted that Dr. Hampton submitted an impairment rating for loss of grip strength, but
explained that loss of grip strength could not be considered to be an additional impairing factor
in rating carpal tunnel syndrome. The Office medical adviser explained that the “only basis for
rating an impairment for carpal tunnel syndrome is residual entrapment of the median nerve
itself” and there was no evidence of any residual entrapment of the median nerve. He opined
that appellant’s total impairment rating was 11 percent and that appellant did not have any
increase in impairment beyond the 20 percent which was previously awarded.
By decision dated November 28, 2005, the Office denied modification of the March 1,
2005 decision.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act18 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.19 The Act, however, does not specify the manner by which the
percentage loss of a member, function or organ shall be determined. To ensure consistent results
and equal justice for all claimants under the law, good administrative practice requires the use of
uniform standards applicable to all claimants.20 The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.21
16

Id. at 476, 477, and 479.

17

Id. at 495.

18

5 U.S.C. §§ 8101-8193.

19

5 U.S.C. § 8107.

20

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

21

A.M.A., Guides (5th ed. 2001); 20 C.F.R. § 10.404.

6

Section 8123(a) of the Act provides in pertinent part: 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.22 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in the medical
evidence.23 In situations where a case is referred to an impartial medical specialist for the
purpose of resolving a conflict in medical opinion, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, will be given special weight.24
In a situation where the Office secures an opinion from an impartial medical examiner for
the purpose of resolving a conflict in the medical evidence and the opinion from such examiner
requires clarification or elaboration, the Office has the responsibility to secure a supplemental
report from the examiner for the purpose of correcting the defect in the original opinion.25
ANALYSIS
The Office accepted that appellant sustained an employment-related right shoulder strain,
right rotator cuff repair, right carpal tunnel syndrome and right carpal tunnel release. In a
decision dated May 19, 2003, the Office granted appellant a schedule award for 20 percent
impairment of the right upper extremity. However, on November, 3, 2003, the Office hearing
representative set aside the Office’s May 19, 2003 schedule award decision. A conflict
subsequently arose regarding the extent of appellant’s impairment between appellant’s treating
physician, Dr. Jackson, who opined that appellant was entitled to an impairment of 57 percent to
the right upper extremity and Dr. Nader, the second opinion physician, who opined that appellant
was entitled to 17 percent impairment to the right upper extremity. The Office and appellant
were referred for an impartial medical examination with Dr. Joly, a Board-certified orthopedic
surgeon.
In an April 7, 2004 report, Dr. Joly conducted a physical examination and advised that
there was no clinical evidence of right wrist impairment despite the EMG/NCV studies
documenting persistent carpal tunnel syndrome. He explained that EMG/NCV studies “tended
to be abnormal after successful surgery for carpal tunnel syndrome” and noted that her right
wrist was “doing very well.” Dr. Joly also determined that appellant had minimal limitation of
right shoulder function, and noted that appellant’s residual right upper extremity weakness and
decreased sensation did not follow a dermatomal pattern. He noted that appellant only had a
slight restriction in her range of motion of the right shoulder which was equal to 130/30 degrees
for flexion to extension and advised that this would equate to a four percent impairment
according to Figures 16-38, 39 and 40.26 Dr. Joly advised that appellant would be entitled to
22

5 U.S.C. § 8123(a).

23

Williams C. Bush, 40 ECAB 1064, 1975 (1989).

24

See Jaja K. Asaramo, 55 ECAB 200 (2004).

25

Nancy Lackner (Jack D. Lackner), 40 ECAB 232, 238 (1988); Harold Travis, 30 ECAB 1071, 1078 (1979).

26

A.M.A., Guides 475, 476.

7

three percent because of limited abduction to adduction of 130/30 degrees and referred to Figures
16-41, 42 and 43.27 He also explained that appellant would be entitled to an impairment of two
percent for slightly restricted external rotation to internal rotation of 60/30 and referred to
Figures 16-44, 45 and 46.28 However, for 30 degrees of internal rotation, the Board notes that
appellant would be entitled to an impairment of four percent instead of the noted two percent.29
While Dr. Joly opined that appellant had a nine percent permanent impairment of the right upper
extremity based upon the A.M.A., Guides, the Board notes that, with the error related to the
value for 30 degrees of internal rotation, appellant would be entitled to an additional 2 percent
and thus his calculation amounted to an impairment of 11 percent to the right upper extremity.
The Board finds that Dr. Joly’s report is based upon a proper factual background and sufficiently
well rationalized such that it is entitled to special weight and establishes that appellant was
entitled to an impairment of 11 percent to the right upper extremity.
The Office medical adviser utilized the report of Dr. Joly and noted that appellant
reached maximum medical improvement on April 7, 2004. He concurred with the findings
provided by Dr. Joly and explained that the only ratable condition that appellant was entitled to
receive was for the right shoulder, due to restricted range of motion. As noted above, the Office
medical adviser’s findings corresponded with those of Dr. Joly, who was accorded the special
weight, and indicate that appellant was not entitled to receive any further impairment.
Appellant subsequently submitted additional reports dated October 15, 2004 and
January 6, 2005 from Dr. Jackson who essentially reiterated his previous findings. The Board
notes that a subsequently submitted report of a physician on one side of a resolved conflict of
medical opinion is generally insufficient to overcome the weight of the impartial medical
specialist or to create a new conflict of medical opinion.30 Dr. Jackson did not provide sufficient
explanation for the opinions he expressed. The Board, therefore, finds that these reports are
insufficient to establish entitlement to a greater impairment. In his January 6, 2005 report,
Dr. Jackson added that appellant was entitled to a 20 percent impairment of the upper extremity
for loss of grip strength and a 20 percent impairment of the right upper extremity for loss of
lateral pinch strength and referred to Tables 16-31 to 16-34.31 However, the A.M.A., Guides
provides that “in compression neuropathies, additional impairment values are not given for
decreased grip strength.”32 Additionally, the A.M.A., Guides provides that loss of strength may
be rated separately if such a deficit has not been considered adequately by other rating methods.
27

Id. at 477.

28

Id. at 478, 479.

29

The Board notes that this is harmless error, as the total impairment allotted would equate to 11 percent, and
does not show that appellant would be entitled to an increased impairment over the 20 percent that she had
previously received.
30

Richard O. Brien, 53 ECAB 234 (2001).

31

A.M.A., Guides 509.

32

See page 494, the fifth edition of the A.M.A., Guides; see also Robert V. Disalvatore, 54 ECAB 351 (2003)
(where the Board found that the fifth edition of the A.M.A., Guides provides that impairment for carpal tunnel
syndrome be rated on motor and sensory impairments only).

8

An example of this situation would be loss of strength caused by a severe muscle tear that healed
leaving a palpable muscle defect. If the rating physician determines that loss of strength should
be rated separately in an extremity that presents other impairments, the impairment due to loss of
strength could be combined with the other impairments, only if based on unrelated etiologic or
pathomechanical causes. Otherwise, the impairment ratings based on objective anatomic
findings take precedence. The A.M.A., Guides further provides that decreased strength cannot
be rated in the presence of decreased motion, painful conditions, deformities or absence of parts
that prevent effective application of maximum force. A.M.A., Guides 508, section 16.8a.
He also noted that appellant was entitled to a rating for pain and referred to Chapter 18
and Table 18-4,33 to determine appellant’s impairment associated with pain. However, according
to section 18.3(b) of the A.M.A., Guides, “examiners should not use this chapter to rate painrelated impairments for any condition that can be adequately rated on the basis of the body and
organ impairment systems given in other chapters of the A.M.A., Guides.”34 Office procedures
provide that Chapter 18 is not to be used in combination with other methods to measure
impairment due to sensory pain (Chapters 13, 16 and 17).35 As noted, Dr. Jackson was
previously on one side of the conflict, and his report is generally insufficient to overcome the
weight of the impartial medical specialist or to create a new conflict of medical opinion.36
Dr. Jackson did not provide sufficient explanation for the opinions he expressed.
The Office medical adviser reviewed the medical evidence and found no basis to attribute
additional impairment. He explained the range of motion findings, which as noted above, totaled
no more than 11 percent to the right upper extremity.37 The Office medical adviser further
explained that appellant was not entitled to any impairment for her carpal tunnel syndrome and
referenced Chapter 16 of the A.M.A., Guides. The Board notes that Office procedures38 provide
that upper extremity impairment secondary to carpal tunnel syndrome and other entrapment
neuropathies should be calculated using section 16.5d and Tables 16-10, 16-11 and 16-15.39 The
Office medical adviser explained that there was no basis for an impairment rating for any
residuals due to entrapment of the median nerve at the wrist related to appellant’s carpal tunnel
syndrome because there was no reliable documentation on EMG and nerve conduction studies of
any residuals of the carpal tunnel syndrome. Furthermore, the Office medical adviser explained
that the measured ranges of motion submitted by Dr. Joly were normal at the wrist. Furthermore,
he noted that appellant’s physician failed to provide any specific basis for his impairment rating.
33

A.M.A., Guides 576, 577.

34

Id. at 571, Section 18.3b (5th ed. 2001); see Richard B. Myles, 54 ECAB 379 (2003).

35

See FECA Bulletin 01-05 (issued January 31, 2001): Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700.2 (June 2003).
36

Richard O Brien, 53 ECAB 234 (2001).

37

He referred to Figures 16-40, 16-43 and 16-46.37

38

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808 (August 2002) (March 1995).
39

A.M.A., Guides 491, 482, 484, 492, respectively; Joseph Lawrence, Jr., 53 ECAB 331 (2002).

9

There is no other evidence of an additional impairment as a result of any of appellant’s
accepted conditions. Accordingly, the Board finds that the evidence supports that appellant has
an eleven percent impairment of the right upper extremity. She has not established entitlement to
a schedule award greater than the 20 percent awarded by the Office.
CONCLUSION
The Board finds that appellant does not have more than a 20 percent impairment of her
right upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 28, 2005 is hereby affirmed.
Issued: March 20, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
London, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1747
Issued: April 18, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 9, 2017 appellant, through counsel, filed a timely appeal from a May 23, 2017
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established more than nine percent permanent
impairment of the right upper extremity, for which she previously received a schedule award.
FACTUAL HISTORY
On October 4, 2006 appellant, then a 50-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that she injured her back, neck, shoulders, and head on September 22,
2006 when her vehicle was rear-ended while in the performance of duty. She stopped work on the
date of injury. Appellant returned to part-time modified duty on November 13, 2006. OWCP
accepted the claim for sprain of neck and sprain of back, lumbar region and paid intermittent
compensation on the supplemental rolls from November 7, 2006 and on the periodic rolls from
July 29, 2012. It subsequently accepted the conditions of sprain of back, thoracic, degeneration of
thoracic or thoracolumbar, intervertebral disc, sprain of shoulder and upper arm, unspecified site,
right, thoracic outlet compression, mononeuritis multiplex, myofascitis, and shoulder bursitis,
right.
On September 29, 2011 Dr. Erdogan Atasoy, a Board-certified general surgeon, performed
authorized right upper extremity surgery including carpal and cubital tunnel releases. Appellant
returned to modified duty four hours daily on March 14, 2012. She stopped work on June 20, 2012
and was placed on the periodic compensation rolls. In a July 19, 2012 report, Dr. Atasoy
diagnosed thoracic outlet syndrome and recommended additional surgery. A September 24, 2013
right upper extremity electromyograph and nerve conduction velocity study was essentially normal
with no supportive evidence for median or ulnar nerve neuropathy on the right side.
By decision dated November 20, 2013, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that day.3 Appellant, through counsel, timely
requested a hearing before an OWCP hearing representative.
On February 20, 2014 appellant filed a schedule award claim (Form CA-7).
By development letter dated May 15, 2014, OWCP informed appellant of the evidence
needed to support her claim. Appellant was afforded 30 days to submit the necessary evidence.
In a May 6, 2014 report, received by OWCP on June 4, 2014, Dr. Atasoy noted that he last
saw appellant on March 26, 2013 at which time she continued to have symptoms of thoracic outlet
compression and distal nerve irritation, and evidence of degenerative disc disease. He noted that
an electrodiagnostic study done in 2013 demonstrated cubital tunnel syndrome and he
recommended a second opinion consultation. Dr. Atasoy also forwarded treatment notes dated
November 13, 2009 to March 26, 2013.

3
OWCP credited the opinion of Dr. Kirpal S. Sidhu, a Board-certified orthopedic surgeon, who provided a secondopinion evaluation.

2

On June 5, 2014 counsel requested that the acceptance of the claim be expanded to include
bilateral thoracic outlet compression, multiple distal nerve irritation, and associated upper back
myofascitis.4
In a July 11, 2014 report, Dr. James W. Dyer, a Board-certified orthopedic surgeon and
OWCP’s medical adviser, advised that, due to the complex issues with the upper extremity,
appellant should undergo a second-opinion evaluation. He suggested various physicians by name
to conduct a second-opinion examination.
By decision dated August 1, 2014, OWCP denied appellant’s schedule award claim.
In an August 5, 2014 decision, an OWCP hearing representative affirmed the
November 20, 2013 decision terminating appellant’s medical benefits and wage-loss
compensation.
On August 11, 2014 appellant, through counsel, requested a hearing before an OWCP
hearing representative from the August 1, 2014 decision denying her schedule award claim.
In a February 6, 2015 decision, an OWCP hearing representative noted that she had
conducted a preliminary merit review. She set aside the August 1, 2014 decision and remanded
the case for OWCP to obtain a supplemental report from its medical adviser, Dr. Dyer, for an
opinion as to whether appellant had permanent impairment to a scheduled member, in accordance
with the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (6th ed. 2009).5
In a February 17, 2015 report, Dr. Dyer advised that, in accordance with Tables 15-3 and
15-23, of the A.M.A., Guides, appellant had nine percent right upper extremity permanent
impairment with July 19, 2012 the date of maximum medical improvement.
By letter dated March 17, 2015, OWCP informed appellant that it had also accepted right
carpal tunnel syndrome and ulnar nerve (cubital) release as resulting from the September 22, 2006
employment injury. On March 24, 2015 it granted her a schedule award for nine percent
permanent impairment of the right upper extremity.
On April 15, 2015 appellant, through counsel, requested a hearing before an OWCP
hearing representative from the March 24, 2015 schedule award decision. By decision dated
January 28, 2016, the hearing representative noted that she had submitted no additional evidence
and affirmed the March 24, 2015 decision.
Counsel requested reconsideration and forwarded a March 4, 2016 permanent impairment
evaluation from Dr. Martin Fritzhand, a Board-certified urologist. He advised that, in accordance
with Table 15-7, range of motion impairment, for the accepted diagnosis of right shoulder sprain,
appellant had five percent permanent impairment due to loss of shoulder motion. Dr. Fritzhand
utilized Table 15-23 to assess the accepted right carpal tunnel syndrome and ulnar nerve lesion,
4

A hearing was held on June 4, 2014. Appellant submitted additional medical evidence.

5

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

3

finding 3 percent permanent impairment for carpal tunnel syndrome and 1.5 percent permanent
impairment for lesion of ulnar nerve. He used the Combined Values Chart and concluded that
appellant had 10 percent permanent total right upper extremity impairment. Dr. Fritzhand also
indicated that, for the accepted lumbar spine conditions, under Table 16-11 she had a severity level
of 3 sensory deficit. He then used proposed Table 2, finding a class 1 impairment of S1, for four
percent permanent impairment of each lower extremity.
On November 14, 2016 OWCP asked its medical adviser to review Dr. Fritzhand’s report
and provide an opinion regarding appellant’s employment-related impairment. In a November 27,
2016 report, Dr. David Slutsky, Board-certified in orthopedic and hand surgery, OWCP’s district
medical adviser, related that he could not provide an impairment rating for any of the accepted
conditions because he needed additional medical information.
On December 19, 2016 OWCP notified appellant that a second-opinion evaluation would
be scheduled for a permanent impairment evaluation. The letter advised appellant that, under
section 8123(d) of FECA, an employee’s right to compensation was subject to suspension if the
employee refused to submit to or obstructed a medical examination. Counsel was provided a copy
of the letter. On December 23, 2016 QTC Medical Services notified appellant that an appointment
had been scheduled for January 6, 2017 at 3:00 p.m. with Dr. Sidhu. Counsel was copied on the
letter. By letter dated January 9, 2017, QTC informed OWCP that appellant did not attend the
appointment.
In a merit decision dated January 11, 2017, OWCP denied modification of the prior
decisions. It noted that appellant did not attend the scheduled impairment evaluation and
concluded that the evidence of record was insufficient to modify the prior schedule award decision.
In correspondence dated February 6, 2017, counsel notified OWCP that appellant did not
receive the notice of appointment with Dr. Sidhu until January 19, 2017. He further stated that, as
appellant had previously seen Dr. Sidhu, “the law did not permit [appellant’s] to see the same
[physician] on the same case twice.” Counsel asked that QTC select another physician. On
February 22, 2017 appellant, through counsel, requested reconsideration. Counsel reiterated that
she had not received the notice of appointment until January 19, 2017 and his argument that
Dr. Sidhu had not been properly selected.
In a merit decision dated May 23, 2017, OWCP noted that a review of the record showed
that medical evidence submitted with a prior reconsideration request was reviewed by its OWCP
medical adviser who explained that the record contained insufficient documentation to support
entitlement to an additional schedule award. It found that, for further consideration, appellant
should provide medical evidence which contained a complete an accurate medical and factual
history from a physician, physical examination findings, and provide an impairment rating using
The Guides Newsletter July/August 2009 for spinal impairments, if the physician believed that she
had permanent impairment of her extremities due to her work injury. OWCP concluded that the
medical evidence submitted did not support permanent impairment greater than the nine percent
previously awarded.

4

LEGAL PRECEDENT
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability as
a result of federal employment, to undergo a physical examination as it deems necessary.6 The
determination of the need for an examination, the type of examination, the choice of locale, and
the choice of medical examiners are matters within the province and discretion of OWCP.7 OWCP
regulations provide that a claimant must submit to an examination by a qualified physician as often
and at such times and places as it considers reasonably necessary.8 Section 8123(d) of FECA and
OWCP regulations provide that, if an employee refuses to submit to or obstructs a directed medical
examination, his or her right to compensation is suspended until the refusal or obstruction stops.9
OWCP procedures provide that, before it may invoke these provisions, the employee should be
provided a period of 14 days within which to present in writing her reasons for the refusal or
obstruction.10 If good cause for the refusal or obstruction is not established, entitlement to
compensation is suspended in accordance with section 8123(d) of FECA.11
The Board has previously found that these sections of FECA and the regulations do not
provide a basis for the rejection of a claim for compensation.12
ANALYSIS
The Board finds that this case is not in posture for decision.
In this case, by decision dated March 24, 2015, appellant was granted a schedule award for
nine percent permanent impairment of the right upper extremity. Dr. Slutsky, the district medical
adviser, related on November 27, 2016 that he could not review her permanent impairment rating
as further medical evidence was required. OWCP notified appellant that a second-opinion
evaluation would be scheduled based upon Dr. Slutsky’s finding.
OWCP apprised appellant of the requirements for examination under section 8123(d),
which provides that, if an employee refuses to submit to or obstructs an examination, her right to
compensation under this subchapter is suspended until the refusal or obstruction stops.13 Counsel
was provided a copy of the letter. On December 23, 2016 QTC Medical Services, OWCP’s
scheduling service, notified appellant that an appointment had been scheduled for January 6, 2017
6

5 U.S.C. § 8123.

7

J.T., 59 ECAB 193 (2008).

8

20 C.F.R. § 10.320.

9

Id. at § 10.323; Dana D. Hudson, 57 ECAB 298 (2006).

10
Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13 (September 2010).
11

Id.

12

E.K., Docket No. 14-1600 (issued August 11, 2015).

13

5 U.S.C. § 8123(d).

5

at 3:00 p.m. with Dr. Sidhu. Counsel was copied on the letter. By letter dated January 9, 2017,
QTC informed OWCP that appellant did not attend the appointment.14
OWCP procedures provide that, if a claimant does not report for a scheduled appointment,
he or she should be asked in writing to provide an explanation within 14 days. If good cause is
not established, entitlement to compensation should be suspended in accordance with section
8123(d) of FECA, until the claimant agrees to attend the examination.15
The Board finds that OWCP improperly denied appellant’s request for an additional
schedule award. In this case, OWCP did not follow its procedures pursuant to 8123(d) which
includes to inform appellant in writing that she had 14 days to explain her failure to attend the
examination before denying her claim for an increased schedule award, and suspending
compensation until the refusal or obstruction stops.16 As previously noted, it cannot deny a claim
based on failure to attend a scheduled medical examination.17
While OWCP had determined that a second-opinion evaluation was necessary to determine
whether appellant was entitled to an additional schedule award, OWCP in its May 23, 2017
decision denied her schedule award claim based on the evidence of current record. This case will
therefore be remanded for OWCP to further develop the record and thereafter issue a de novo
decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

14

As a preliminary matter, although counsel asserted that OWCP could not reschedule an appointment with
Dr. Sidhu because he had previously examined appellant, there is no prohibition in scheduling multiple secondopinion evaluations with the same physician. Federal (FECA) Procedure Manual, supra note 10 at Chapter 2.810.9
(June 2015).
15

Supra note 10.

16

5 U.S.C. § 8123(d); 20 C.F.R. § 10.323(a)

17

Supra note 12.

6

ORDER
IT IS HEREBY ORDERED THAT the May 23, 2017 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this opinion.
Issued: April 18, 2018
Washington, DC

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

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

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

7


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

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Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0120
Issued: June 14, 2018

Case Submitted on the Record

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

JURISDICTION
On October 25, 2016 appellant, through counsel, filed a timely appeal from a June 14, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of total
disability causally related to his October 30, 2008 employment injury.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated April 3, 2015, the Board
set aside OWCP’s August 15, 2014 decision denying appellant’s claim for a new injury and
remanded the case for OWCP to combine the current case record, OWCP File No. xxxxxx656,
with OWCP File No. xxxxxx217, and determine whether he sustained either a recurrence of
disability due to his October 30, 2008 employment injury or a new employment injury.3 The facts
of the case, as set forth in the prior Board decision, are incorporated herein by reference. The
relevant facts are as follows.
On December 16, 2013 appellant, a 64-year-old mail processor, filed a notice of recurrence
(Form CA-2a), under OWCP File No. xxxxxx217, alleging that he sustained a recurrence of his
October 30, 2008 accepted employment injury. He indicated that he returned to limited-duty work
on November 4, 2013, but stopped work again on November 23, 2013 because the position
required him to use his thumbs and hands in excess of four hours per day. The employing
establishment contended that appellant had not performed a full day of work as he was in training
for three continuous weeks. It also contended that his work did not exceed his medical restrictions
as there was no speed requirement and he was able to use either hand or the “one finger hunt and
peck” method to keyboard as needed.
In reports dated November 12, 2013 through January 16, 2014, Dr. Robert Lombardi, a
Board-certified orthopedic hand surgeon, indicated that appellant was a federal employee and
continued to have bilateral thumb pain “with light lifting and typing.” He also reported right elbow
pain with rotational movement. Dr. Lombardi diagnosed bilateral osteoarthritis of the hand,
bilateral carpal tunnel syndrome, and severe degenerative joint disease of the bilateral wrists,
thumb, and right elbow. He restricted appellant from lifting more than one pound, no use of
thumbs, limited use of hands to four hours, no fine manipulation or grasping, and no repetitive
motion of the right and left thumb.
An electromyography and nerve conduction velocity (EMG/NCV) study dated January 15,
2014 revealed no evidence of peripheral entrapment neuropathy or cervical radiculopathy
regarding the right upper extremity and suggested ulnar nerve irritation at the elbow.
In an April 7, 2014 development letter, OWCP notified appellant of the deficiencies of his
claim and afforded him 30 days to submit additional evidence and respond to its inquiries.
In response, appellant submitted reports dated September 26, 2013 through April 10, 2014
from Dr. Lombardi who reiterated his diagnoses and opinions.

3

Docket No. 15-0359 (issued April 3, 2015).

2

Entered into the record was a September 5, 2013 rehabilitation assignment offer for the
customer care agent position from the employing establishment which indicated that the duties
required “occasional simple grasping (mouse); occasional pushing/pulling using a computer
mouse, interchangeable to right/left side as needed for comfort; and occasional fine manipulation
or use of single finger when using a keyboard.” The employing establishment noted that the
learning process encompassed three weeks of training: the first two weeks in a classroom setting
and the third week with an instructor on “live” customer calls.
In a second development letter dated May 12, 2016, OWCP advised appellant of the
deficiencies of his recurrence claim and afforded him 30 days to submit additional evidence and
respond to its inquiries. It noted that the Board had remanded the case in its April 3, 2015 decision
and the accepted conditions under the combined claims were: bilateral carpal tunnel syndrome;
right radial styloid tenosynovitis; and right hand villonodular synovitis.
Counsel submitted a brief dated June 8, 2016 contending that the factual and medical
evidence of record established that appellant’s work stoppage of November 23, 2013 was
compensable as a recurrence of total disability.
By decision dated June 14, 2016, OWCP denied appellant’s recurrence claim, finding that
the evidence of record did not show a change in the nature and extent of the injury-related
conditions or a change in the nature and extent of the limited-duty job requirements.
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 has 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 that takes place when a light-duty
assignment made specifically to accommodate an employee’s physical limitations due to his or her
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 an assignment are altered so that they exceed his established physical
limitations.5
When an employee who is disabled from the job he or she had when injured on account of
employment-related residuals returns to a limited-duty position or the medical evidence of record
establishes that he or she can perform the limited-duty position, the employee has the burden of
proof to establish by the weight of the reliable, probative, and substantial evidence a recurrence of
total disability and to show that he or she cannot perform such limited-duty work. As part of this
burden, the employee must show a change in the nature and extent of the injury-related condition
or a change in the nature and extent of the limited-duty job requirements.6 This burden includes
4

20 C.F.R. § 10.5(x). See T.S., Docket No. 09-1256 (issued April 15, 2010).

5

Id.

6

See A.M., Docket No. 09-1895 (issued April 23, 2010).

3

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 disabling condition is causally related
to the employment injury. The medical evidence must demonstrate that the claimed recurrence
was caused, precipitated, accelerated, or aggravated by the accepted injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.9
ANALYSIS
OWCP accepted that appellant developed bilateral carpal tunnel syndrome, right radial
styloid tenosynovitis, and right hand villonodular synovitis while in the performance of duty. On
December 16, 2013 appellant filed a notice of recurrence alleging that he sustained a recurrence
of his employment injury after returning to a limited-duty position. He returned to limited-duty
work as a customer care agent on November 4, 2013, but stopped work again on November 23,
2013 because he alleged that the position required him to use his thumbs and hands in excess of
his four hours per day medical restriction. Appellant has the burden of proof to provide medical
evidence establishing that he was totally disabled due to a change in his job duties such that he
was unable to perform his light-duty work.
On the recurrence claim form the employing establishment indicated that appellant had not
performed a full day of the job as he was in training for three continuous weeks and did not exceed
his medical restrictions as there was no speed requirement and he was able to use either hand or
the “one finger hunt and peck” method to keyboard as needed.
Appellant alleged that his recurrence of total disability was caused by an inability to
perform his light-duty job requirements. However, the record shows that the rehabilitation
assignment offer for the customer care agent position from the employing establishment dated
September 5, 2013 indicated that the duties required “occasional use of single finger when using
a keyboard.” The employing establishment further noted that the learning process encompassed
three weeks of training.
Further, appellant did not submit sufficient medical evidence to establish that his assigned
duties had changed such that he was no longer medically able to perform them. He did not submit
adequate medical evidence to support that his assigned duties exceeded his medical limitations or
that he otherwise had a spontaneous change in his accepted conditions in the present claim. In his
reports, Dr. Lombardi asserted that appellant continued to have bilateral thumb pain “with light
7

See L.F., Docket No. 14-1817 (issued February 2, 2015); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.2 (January 2013).
8

See I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

9

See I.J., 59 ECAB 408 (2008); see also Victor J. Woodhams, 41 ECAB 465 (2005).

4

lifting and typing” and restricted him from repetitive motions of the right and left thumb and using
his hands for more than four hours. However, he failed to provide a rationalized medical opinion
explaining how appellant’s assigned duties exceeded his physical limitations or caused or
aggravated his accepted conditions. The Board finds that there is insufficient evidence of record
to establish that appellant’s light-duty job requirements changed such that the job requirements
were no longer within the restrictions provided by Dr. Lombardi and appellant was unable to
perform his limited-duty position.10 As such, appellant has not met his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
total disability causally related to his October 30, 2008 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the June 14, 2016 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: June 14, 2018
Washington, DC

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

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

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

10

See J.F., 58 ECAB 124 (2006); see also Terry R. Hedman, 38 ECAB 222 (1986).

5


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

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

Docket No. 06-1856
Issued: April 6, 2007

Case Submitted on the Record

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

JURISDICTION
On August 8, 2006 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated May 9, 2006 denying his request for reconsideration.
The record also contains a January 19, 2006 decision on the merits of the claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established an injury in the performance of
duty on November 18, 2005; and (2) whether the Office properly refused to reopen the claim for
merit review pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On November 25, 2005 appellant, then a 35-year-old letter carrier, filed a traumatic
injury claim (Form CA-1), alleging that on November 18, 2005 he was injured in the
performance of duty. He stated that he sustained muscle spasms in his low back and neck

stiffness after his vehicle was struck from behind. The reverse of the claim form indicated that
appellant stopped working on November 18, 2005.
Appellant submitted a duty status report (Form CA-17), dated November 25, 2005, from
Dr. Michael Moccio, a chiropractor, who indicated that appellant had muscle spasms and
reduced range of motion of the spine.
The Office requested that appellant submit additional evidence regarding his claim,
noting that a chiropractor is considered a physician only if there is a diagnosis of subluxation as
shown by x-rays. Appellant submitted “disability certificate” form reports from Dr. Moccio
indicating that he was disabled through December 19, 2005.
By decision dated January 19, 2006, the Office denied the claim for compensation. The
Office found that an employment incident occurred as alleged, but the medical evidence did not
establish an injury causally related to the employment incident.
Appellant requested reconsideration on February 6, 2006. He submitted a narrative
report dated January 23, 2006 from Dr. Moccio who provided a history of a motor vehicle
accident on November 18, 2005. Dr. Moccio diagnosed acute moderate sprain/strain of the
cervical, thoracic and lumbar spine and spinal muscle spasm. He opined that appellant was
disabled through December 18, 2005. Appellant also submitted examination notes from
Dr. Moccio dated November 21 and December 16, 2005.
In a decision dated May 9, 2006, the Office determined that the request for
reconsideration was insufficient to warrant merit review of the claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that he or she sustained an injury while in the performance of duty.2 In
order to determine whether an employee actually sustained an injury in the performance of duty,
the Office begins with an analysis of whether “fact of injury” has been established. Generally,
“fact of injury” consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred. The second component is whether the
employment incident caused a personal injury, and generally this can be established only by
medical evidence.3
The Office’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.4 In clear-cut
1

5 U.S.C. §§ 8101-8193.

2

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

3

See John J. Carlone, 41 ECAB 354, 357 (1989).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(d) (June 1995).

2

traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.5
Rationalized medical opinion evidence is medical evidence that includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between a diagnosed
condition and the identified employment factor. The opinion of the physician must be based on a
complete factual and medical background, must be of reasonable medical certainty and
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant. The weight of medical
evidence is determined by its reliability, its probative value, its convincing quality, the care of
the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.6
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained an employment incident as alleged on
November 18, 2005 when his vehicle was struck from behind. To establish the second
component of fact of injury, however, appellant must submit rationalized medical evidence on
causal relationship. This is not a minor injury that can be identified on visual inspection or a
clear-cut injury requiring only a physician’s affirmative statement.
The evidence submitted prior to the January 19, 2006 decision consisted of reports from
Dr. Moccio, a chiropractor. Before this evidence can be considered competent medical evidence,
Dr. Moccio must be established as a physician under the Act. Section 8101(2) of the Act
provides that the term ‘“physician’ … includes chiropractors only to the extent that their
reimbursable services are limited to treatment consisting of manual manipulation of the spine to
correct a subluxation as demonstrated by x-ray to exist.”7 Dr. Moccio did not diagnose a
subluxation in this case. Since he did not diagnose a subluxation as demonstrated by x-rays, he
is not considered a physician under the Act and his reports are of no probative medical value.8
The Board accordingly finds that appellant did not establish fact of injury as he did not
submit rationalized medical evidence on causal relationship between a diagnosed condition and
the employment incident. Appellant did not meet his burden of proof and the Office properly
denied the claim.

5

Id.

6

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

7

5 U.S.C. § 8101(2).

8

See Jack B. Wood, 40 ECAB 95, 109 (1988).

3

LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,9
the Office’s regulations provides that a claimant may obtain review of the merits of the claim by
submitting a written application for reconsideration that sets forth arguments and contains
evidence that either: “(1) shows that the Office erroneously applied or interpreted a specific
point of law; (2) advances a relevant legal argument not previously considered by the Office; or
(3) constitutes relevant and pertinent evidence not previously considered by the Office.”10
Section 10.608(b) states that any application for review that does not meet at least one of the
requirements listed in section 10.606(b)(2) will be denied by the Office without review of the
merits of the claim.11
ANALYSIS -- ISSUE 2
The claim was denied on the grounds that the medical evidence was not sufficient to
establish a diagnosed condition causally related to the November 18, 2005 employment incident.
On reconsideration, appellant submitted additional evidence from Dr. Moccio. He did not
diagnose a subluxation as demonstrated by x-rays. As noted above, Dr. Moccio’s reports are not
competent medical evidence until he is established as a physician under the Act. He is not a
physician under the Act and the evidence submitted on reconsideration is not relevant to the
medical issue presented.12
Appellant did not show that the Office erroneously applied or interpreted a specific point
of law, advance a new and relevant legal argument or submit relevant and pertinent evidence not
previously considered by the Office. He did not meet any of the requirements of 20 C.F.R.
§ 606(b)(2) and, therefore, the Office properly declined to reopen the case for merit review.
CONCLUSION
Appellant did not meet his burden of proof to establish an injury in the performance of
duty on November 18, 2005. On reconsideration, the Office properly refused to reopen the case
for review of the merits under 5 U.S.C. § 8128(a).

9

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application.”)
10

20 C.F.R. § 10.606(b)(2).

11

20 C.F.R. § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

12

The Board notes that only evidence that was before the Office at the time of the final decision may be
considered by the Board on appeal. 20 C.F.R. § 501.2(c).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 9 and January 19, 2006 are affirmed.
Issued: April 6, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.D., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
MEDICAL CENTER, PORTSMOUTH
NEURODEVELOPMENTAL PEDIATRICS
CLINIC, Portsmouth, VA, Employer
__________________________________________

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

Docket No. 15-1132
Issued: March 21, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 20, 2015 appellant filed a timely appeal of an October 28, 2014 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury on April 11, 2014 in the performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 25, 2014 appellant, then a 54-year-old pediatric occupational therapist, filed a
traumatic injury claim alleging that on April 11, 2014 she sustained severe and sudden onset of
diarrhea and vomiting, dehydration, and fainting, which caused her to hit the right side of her
head and face on the floor. Her symptoms were due to exposure to Sydney norovirus which she
contracted from a pediatric patient who had the virus. The fainting caused chipped and fractured
five front teeth and sutures for appellant’s right ear injury. On the back of the form, the
employing establishment stated that it was “unable to determine if a specific incident or work
event contributed to medical condition” as she was in a hotel on vacation when her illness
occurred.
In a September 8, 2014 letter, OWCP informed appellant that the evidence of record was
insufficient to establish her claim. Appellant was advised as to the medical and factual evidence
required and given 30 days to provide the requested information.
On September 12, 2014 OWCP received April 11, 2014 New Hanover Regional Medical
Center, Wilmington, NC reports noting that appellant was treated in the emergency room that
day and released on April 12, 2014. Appellant was seen by Dr. Randall N. Willard, an
examining Board-certified emergency room physician, who diagnosed syncope, acute
gastroenteritis, closed head injury, right earlobe laceration, and right eyelid laceration. The
injury was described as occurring due to her having a syncopal episode in which she passed out,
fell forward, and hit her head in the bathroom. The report stated prior to the syncopal episode
appellant had an episode of diarrhea and vomiting.
In her September 12, 2014 statement, appellant detailed the chronology of her exposure
to the norovirus until her injury on April 11, 2014. She stated that she was on a half-day of
personal leave on April 11, 2014 when at approximately 5:00 p.m., she began to feel nauseous,
and beginning at 6:00 p.m. she experienced significant diarrhea with subsequent episodes of
vomiting and diarrhea. At approximately 7:15 p.m. appellant remembered getting up to go to the
bathroom, lost consciousness, and woke up leaning against the bathroom counter with several
broken teeth and a bleeding right eyebrow. She was taken to the emergency room by her
fiancée. Initially, appellant was placed in a wheelchair, but due to her severe light-headedness
and nausea she was placed on a stretcher. At the emergency room she was treated for severe
dehydration and sutures were applied to her right eyebrow and right earlobe. Diagnoses included
concussion/head injury, syncope, and acute gastroenteritis. Appellant related that she had been
exposed to the norovirus due to her treatment of a toddler who had been diagnosed with it. She
was contacted by the Naval Medical Center’s Infection Control Department and Occupational
Health Department regarding her illness and contact with the patient and that four of her
coworkers became symptomatic with similar gastrointestinal symptoms.
In a September 17, 2014 report, Dr. Steven A. Carroll, a dentist, stated that on April 11,
2014 that appellant fell and hit the right side of her head on the toilet and tile floor due to
syncope caused by dehydration from vomiting and diarrhea. Appellant was seen by him for
lingual fractures of teeth numbers 7, 8, 9, broken with no tracks of teeth numbers 25 and 26 and a
broken MI angle for tooth number 7. Dr. Carroll recommended crowns for teeth numbers 25 and

2

26 and a four surface filling for tooth number 7. He attributed these conditions to appellant’s
falling and hitting her head.
On October 6, 2014 OWCP received an undated statement by appellant’s supervisor,
Commander R. Scott Akins, an osteopath and behavioral pediatrician of professorial rank, who
concurred with appellant that her gastroenteritis illness was caused by her exposure to a pediatric
patient with the virus, which is highly contagious. Commander Akins supported her claim that
she contracted the norovirus due to exposure to a pediatric patient with the virus. He stated that
appellant saw the patient on April 8 to 10, 2014 in the patent’s room and occupational therapy
clinic and that she “provided hands on occupational therapy.” The patient had an onset of
diarrhea beginning approximately April 7, 2014 and continuing to April 14, 2014.
On October 7, 2014 OWCP received an undated report from, Dr. Mark Hammett, a
reviewing Board-certified occupational medicine physician with the employing establishment.
Based upon a review of the factual and medical evidence and medical history, Dr. Hammett
opined that appellant’s injuries on April 11, 2014 were directly caused by her exposure to a
pediatric patient with the norovirus which appellant contracted. He stated that the norovirus
causes persistent vomiting and diarrhea which could result in dehydration and electrolyte
imbalances without proper treatment. Dr. Hammett also stated that the norovirus is very
contagious and appellant was in contact with a pediatric patient who was later determined to
have the norovirus. He reiterated his opinion that she sustained an occupational injury due to her
exposure to the norovirus on April 8 to 10, 2014 and her subsequent symptoms of gastroenteritis
on April 11, 2014.
By decision dated October 28, 2014, OWCP denied appellant’s claim as it found that she
failed to establish causal relationship. It found that the record failed to contain a wellrationalized medical opinion explaining how the diagnosed conditions were causally related to
the accepted employment incident/factor.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.5
2

Id.

3

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

4

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

5

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 3.

3

First, the employee must submit sufficient evidence to establish that he or she actually
experienced the employment incident at the time, place, and in the manner alleged.6 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors.9 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.10
Simple exposure to a workplace hazard, such as an infectious agent, does not constitute a
work-related injury entitling an employee to medical treatment under FECA. The employing
establishment therefore should not use a Form CA-16 to authorize medical testing for an
employee who has merely been exposed to a workplace hazard, unless the employee has
sustained an identifiable injury or medical condition as a result of that exposure.11
ANALYSIS
OWCP accepted that appellant was in the performance of duty when she was exposed to
a patient with norovirus. It denied her claim on the basis that the medical evidence failed to
establish a causal relationship between the accepted work factor and her diagnosed medical
conditions. The Board finds that appellant failed to meet her burden of proof in establishing her
claim.
In support of her claim appellant submitted a report from Dr. Hammett, a September 17,
2014 report by Dr. Carroll, a dentist, and April 11, 2014 emergency department records from
New Hanover Regional Medical Center where she was treated by Dr. Willard. Dr. Willard
provided examination findings, a history of the injury and diagnosed syncope, acute
gastroenteritis, closed head injury, right earlobe laceration, and right eyelid laceration. He
related that appellant reported falling and hitting her head due to syncopal episode brought on by
vomiting and diarrhea. Dr. Willard did not, however, provide an opinion as to the cause of the
6

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

7

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 3.
8

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
9

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

20 C.F.R. § 10.303(a).

4

gastroenteritis. Dr. Carroll diagnosed teeth fractures as the result of appellant falling and hitting
the right side of her head on the toilet and tile floor due to syncope. He offered no opinion as to
the cause of the vomiting and diarrhea which was the cause of her dehydration and resulting
syncope. Medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value.12 Thus, the reports from Drs. Willard and
Carroll are insufficient to support a causal relationship between the diagnosed conditions and the
accepted employment factor of exposure to norovirus.
The record also contains an undated report from Dr. Hammett which concluded that there
was a relationship between appellant’s diagnosed April 11, 2014 injuries and her exposure to a
pediatric patient with norovirus. On October 7, 2014 OWCP received an undated report from
Dr. Hammett in which he noted that the norovirus causes persistent vomiting and diarrhea which
could result in dehydration and electrolyte imbalances without proper treatment. Dr. Hammett
also stated that the norovirus is very contagious and appellant was in contact with a pediatric
patient who was later determined to have contracted the norovirus. Based on his review of the
medical and factual evidence and medical history, he opined that her gastroenteritis and
subsequent injuries were a direct result of her exposure to the norovirus, which he observed was
very contagious. Dr. Hammett has not provided any rationale explaining how appellant’s
diagnosed medical conditions had been caused or aggravated by the accepted work exposure.
While he opined that the diagnosed condition was caused by appellant’s exposure to norovirus,
he failed to adequately explain how the accepted work exposure caused or contributed to the
diagnosed condition other than offering a generalized opinion that norovirus is very contagious.
As he failed to provide a sufficient explanation as to the mechanism of injury, Dr. Hammett’s
general statement that appellant sustained a work-related injury is of limited probative value.13
In addition, he did not physically examine appellant and his conclusion is based solely on his
review of the medical history and medical and available factual evidence. Thus, Dr. Hammett’s
reports are insufficient to support appellant’s burden of proof.
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained severe and sudden onset of diarrhea and vomiting, dehydration,
and fainting, which caused her to hit the right side of her head and face on the floor due to
exposure to Sydney norovirus related to the accepted work exposure. Appellant did not meet her
burden of proof.
On appeal appellant argues that she has established her claim by the submission of
reports from Dr. Hammett. As discussed above, the reports from Dr. Hammett are insufficiently
rationalized to establish that the injuries she sustained were causally related to the accepted work
factor.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
12

C.B., Docket No. 09-2027 (issued May 12, 2010); A.F., 59 ECAB 714 (12, 2008); Michael E. Smith, 50 ECAB
313 (1999).
13

S.W., Docket 08-2538 (issued May 21, 2009); Cecelia M. Corley, 56 ECAB 662 (2005).

5

CONCLUSION
The Board finds that appellant has not her met her burden of proof to establish that she
sustained an injury on April 11, 2014 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 28, 2014 is affirmed.14
Issued: March 21, 2016
Washington, DC

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

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

14

James A. Haynes, Alternate Judge, participated in the preparation of this decision but was no longer a member
of the Board effective November 16, 2015.

6


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

)
)
)
)
)
)
)
)

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

Docket No. 15-1634
Issued: September 16, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 27, 2015 appellant filed a timely appeal from a January 27, 2015 nonmerit
decision1 of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed since the last merit decision dated December 13, 2013, 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 the case.3
1

A claimant has 180 days from the date of OWCP’s decision to timely file an appeal. 20 C.F.R. § 501.3(e). In
this case, the 180-day period for the January 27, 2015 decision expired on Sunday, July 26, 2015. If the last day to
file an appeal is on a Saturday, Sunday, or Federal holiday, the 180-day period runs until the close of the next
business day. 20 C.F.R. § 501.3(f)(2). The appeal in this case, received by the Board on July 27, 2015, is therefore
timely with respect to the January 27, 2015 decision.
2
3

5 U.S.C. § 8101 et seq.

The appeal in this case identified the January 27, 2015 decision and provided arguments with respect to the
issues in that decision. See 20 C.F.R. § 501.3(c) (notice of appeal should include date of OWCP decision and
statement explaining appellant’s disagreement with the decision). Although the record contains a February 10, 2015
OWCP decision regarding expansion of the accepted conditions in appellant’s claim, appellant did not request
review of or discuss the issues raised in the February 10, 2015 decision. The Board will not review the February 10,
2015 decision in the absence of any indication in the notice of appeal that such review was sought by appellant.

ISSUE
The issue is whether OWCP properly found that appellant’s application for
reconsideration was untimely filed and failed to show clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated July 7, 2010, the
Board reversed an October 16, 2008 OWCP decision denying modification of an August 22,
2008 loss of wage-earning capacity determination.4 By decision dated March 13, 2012, the
Board affirmed May 5 and June 16, 2011 OWCP decisions denying authorization for an
orthopedic mattress.5 The facts relevant to this appeal regarding appellant’s schedule award
claim are set forth below.
In the present case, OWCP accepted that appellant, then a 45-year-old rural carrier, was
in a motor vehicle accident on December 3, 2005 while in the performance of duty. It accepted
the claim for neck, lumbar, left shoulder, and left upper arm sprains. Appellant received
intermittent wage-loss compensation through January 5, 2007.
She began receiving
compensation benefits on the periodic rolls as of November 20, 2011.
On September 18, 2007 appellant filed a claim for compensation, (Form CA-7), for
schedule award benefits.
With respect to a permanent impairment, appellant submitted a June 1, 2007 report from
Dr. Ricky McShane, an osteopath. Dr. McShane opined that she had a five percent whole person
impairment based on her lumbar spine condition. An OWCP medical adviser reviewed the
evidence and opined in a November 30, 2007 report that appellant did not have a ratable lower
extremity impairment. By decision dated January 2, 2008, OWCP found that she was not
entitled to a schedule award.
Appellant was referred by OWCP for a second opinion examination by Dr. James Hood,
a Board-certified orthopedic surgeon. In a report dated August 19, 2009, Dr. Hood opined that
she had six percent left arm permanent impairment based on left shoulder loss of range of
motion. An OWCP medical adviser concurred in a September 25, 2009 report that appellant had
six percent permanent impairment under the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).

4

Docket No. 09-2355 (issued July 7, 2010), OWCP issued an August 22, 2008 decision finding that the selected
position of dispatcher represented appellant’s wage-earning capacity. By decision dated October 16, 2008, it denied
modification of the loss of wage-earning capacity determination. As noted, the Board reversed the October 16, 2008
decision, finding that the selected position did not conform to appellant’s work restrictions based on the evidence of
record.
5

Docket No. 11-1829 (issued March 13, 2012). By decision dated May 5, 2011, OWCP denied authorization for
a mattress. It reviewed the merits and denied modification by decision dated June 16, 2011. In a decision dated
March 13, 2012, the Board affirmed OWCP’s decisions denying authorization for a mattress, finding OWCP did not
abuse its discretion.

2

By decision dated December 2, 2009, OWCP issued a schedule award for six percent
permanent impairment to the left arm. The period of the award was 9.15 weeks to run from
August 19 to December 28, 2009. On December 16, 2009 OWCP also accepted left lateral
epicondylitis and left wrist sprain.6
Appellant timely requested reconsideration of the December 2, 2009 decision and
submitted a July 23, 2010 report from Dr. Lubor Jarolimek, an orthopedic surgeon.
Dr. Jarolimek opined that appellant had two percent permanent left arm impairment based on the
left shoulder, one percent impairment for the left wrist, and one percent for the left elbow.
OWCP denied modification of the December 2, 2009 schedule award decision in a
decision dated January 26, 2011, but indicated that it would further develop the medical evidence
with respect to the left arm impairment due to the additional accepted conditions. The medical
record was sent to an OWCP medical adviser for review. In a report dated February 10, 2011,
the medical adviser opined that appellant had an additional two percent permanent impairment,
based on one percent for the left elbow and one percent for the left wrist.
In a report dated July 26, 2011, Dr. Vivek P. Kushwaha, a Board-certified orthopedic
surgeon, provided results from a July 21, 2011 examination. He opined that appellant had 16
percent permanent left upper extremity impairment, based on the left shoulder (7 percent), left
wrist (9 percent), and left elbow (1 percent). The evidence was reviewed by an OWCP medical
adviser in an August 11, 2011 report. The medical adviser opined that he disagreed with
Dr. Kushwaha’s application of the wrist regional grid, as the diagnosis of a triangular
fibrocartilage complex (TFCC) tear was not established by the record. He opined that appellant
had 10 percent permanent impairment to the left arm, and therefore was entitled to an additional
4 percent impairment. The medical adviser found that she had an additional one percent for the
left shoulder, one percent for the left elbow, and two percent for the left wrist.
By decision dated August 17, 2011, OWCP issued a schedule award for an additional
four percent permanent impairment to the left arm. The period of the award was 12.48 weeks
from July 31 to October 26, 2011.
On November 4, 2011 appellant requested reconsideration of the January 26, 2011
OWCP decision. In an October 18, 2011 letter, she discussed the report of Dr. Kushwaha and
argued that she was entitled to an increased schedule award.
By decision dated December 12, 2011, OWCP denied modification of the schedule award
decisions. It found that the evidence did not warrant modification.
On December 20, 2012 OWCP received a request for reconsideration of the
December 12, 2011 decision. It requested that an OWCP medical adviser review the evidence
from Dr. Kushwaha with respect to a permanent impairment.
In a report dated December 26, 2012, the medical adviser opined that appellant had eight
percent left arm permanent impairment. He opined that she had seven percent permanent
6

OWCP indicated on June 23, 2011 that it had also accepted left carpal tunnel syndrome and left lesion of the
ulnar nerve.

3

impairment based on the left shoulder and one percent for the elbow. As to the left wrist, the
medical adviser noted the August 11, 2011 report from another OWCP medical adviser that the
diagnosis of TFCC had not been established.
By decision dated January 2, 2013, OWCP denied modification of the prior schedule
award decisions. By decision dated April 9, 2013, it found that appellant was not entitled to an
increased schedule award based on the medical evidence.7
On December 10, 2013 appellant requested reconsideration of the January 2 and April 9,
2013 OWCP decisions. She argued that she had only been paid two percent for the left wrist and
was entitled to an additional seven percent.
By decision dated December 13, 2013, OWCP denied modification of the January 2,
2013 decision. It found that the medical evidence was insufficient to warrant modification.
On December 16, 2014 OWCP received a request for reconsideration of the
December 13, 2013 decision. Appellant submitted a brief statement dated December 12, 2014
that she was requesting a trigger finger release. On December 23, 2014 OWCP received a
December 1, 2014 report from Dr. Kenneth Berliner, a Board-certified orthopedic surgeon.
Dr. Berliner provided results on examination, diagnosed multiple herniated lumbar and cervical
discs, chronic S1 radiculopathy, and left carpal tunnel syndrome. In a separate report also dated
December 1, 2014, he discussed results on examination and reported appellant’s work
restrictions were permanent.
By decision dated January 27, 2015, OWCP found that the reconsideration request was
untimely. It denied the request for reconsideration, finding that it did not show clear evidence of
error.
LEGAL PRECEDENT
FECA provides that OWCP may review an award for or against compensation upon
application by an employee (or his or her representative) who receives an adverse decision.8 The
employee shall exercise this right through a request to the district office. The request, along with
the supporting statements and evidence, is called the “application for reconsideration.”9
According to 5 U.S.C. § 8128(a), a claimant is not entitled to a review of an OWCP
decision as a matter of right.10 This section vests OWCP with discretionary authority to
determine whether it will review an award for or against compensation.11 OWCP, through
7

There is no indication that appellant had requested reconsideration of the January 2, 2013 decision prior to the
April 9, 2013 decision denying an increased schedule award.
8

5 U.S.C. § 8128(a).

9

20 C.F.R. § 10.605 (2012).

10

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

11

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

4

regulations, has imposed limitations on the exercise of its discretionary authority under 5 U.S.C.
§ 8128(a). As one such limitation, 20 C.F.R. § 10.607 provides that an application for
reconsideration must be received within one year of the date of OWCP’s decision for which
review is sought.12 OWCP will consider an untimely application only if the application
demonstrates clear evidence of error on the part of OWCP in its most recent merit decision. The
evidence must be positive, precise, and explicit and must manifest on its face that OWCP
committed an error.13
To show clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflicting medical opinion or establish a clear procedural error, but
must be of sufficient probative value to shift the weight of the evidence in favor of the claimant
and raise a substantial question as to the correctness of OWCP’s decision.14 Evidence that does
not raise a substantial question concerning the correctness of OWCP’s decision is insufficient to
establish clear evidence of error.15 It is not enough merely to show that the evidence could be
construed so as to produce a contrary conclusion.16 A determination of whether the claimant has
established clear evidence of error entails a limited review of how the evidence submitted with
the reconsideration request bears on the evidence previously of record.17
ANALYSIS
In the present case, OWCP issued a merit decision with respect to a schedule award dated
December 13, 2013. Appellant submitted a request for reconsideration that was received on
December 16, 2014. When the underlying compensation issue is a schedule award, an initial
question is whether the claimant has submitted an application for reconsideration or has
requested an increased schedule award. Even if appellant has requested “reconsideration,” if
there is new and relevant evidence with respect to an increased permanent impairment, then a
claimant may be entitled to a merit decision on the issue,18 but when a claimant does not submit
any relevant evidence with respect to an increased schedule award, then OWCP may properly
determine that she has filed an application for reconsideration of a schedule award decision.19 In
this case, she did not submit any relevant evidence with respect to an increased permanent
impairment, and therefore OWCP properly considered her submission as an application for
reconsideration.

12

20 C.F.R. § 10.607 (2012).

13

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

14

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

15

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

16

Id.

17

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

18

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

19

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

5

As noted above, a request for reconsideration must be received by OWCP within one
year of the date of OWCP’s final decision. In this case, December 13, 2014 was a Saturday. If
the last day falls on a Saturday, Sunday, or a legal holiday, the claimant has until the next
business day to timely request reconsideration.20 Therefore, appellant had until Monday,
December 15, 2014 to submit a timely reconsideration request. The date of receipt is the
“received date” in the Integrated Federal Employees’ Compensation System.21 Since the
reconsideration request was received on December 16, 2014, it is untimely.
An untimely reconsideration request must show clear evidence of error by OWCP. In
this case, appellant requested reconsideration, but did not submit any pertinent new or relevant
evidence or argument with respect to error by OWCP in her schedule award decisions. She had
submitted a December 1, 2014 report from Dr. Berliner, but this report did not evaluate her
permanent impairment pursuant to the A.M.A., Guides.22 This report therefore did not establish
that appellant’s prior schedule award was clearly erroneous, or that she might be entitled to an
additional schedule award.23
OWCP issued a schedule award for six percent permanent impairment to appellant’s left
arm by decision dated December 2, 2009, and an additional four percent on August 17, 2011.
The December 2, 2009 schedule award was based on the August 9, 2009 report from Dr. Hood
with respect to the left shoulder and review by an OWCP medical adviser. The August 17, 2011
schedule award was based on the July 26, 2011 report from Dr. Kushwaha and an August 11,
2011 review by an OWCP medical adviser. The medical adviser explained that the diagnosis of
TFCC tear was not established by the record. The December 2, 2011 and January 2, April 9, and
December 13, 2013 merit decisions found that the medical evidence was insufficient to establish
an additional impairment. The Board finds no clear evidence of error was presented in this case.
On appeal, appellant stated that she mailed her reconsideration request on
December 12, 2014. As discussed above, it is the date of receipt by OWCP that is the date of
filing of the reconsideration request. Appellant also refers to the report from Dr. Kushwaha and
Dr. McShane. The only issue presented on appeal was whether she had established clear
evidence of error. For the reasons indicated, appellant did not establish clear evidence of error in
this case.
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.

20

See A.A., Docket No. 15-540 (issued April 22, 2015); Debra McDavid, 57 ECAB 149 (2005).

21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4(b) (October 2011).

22

OWCP evaluates the degree of permanent impairment according to the standards set forth in the A.M.A.,
Guides. See K.W., 59 ECAB 284 (2007).
23

See K.D., Docket No. 15-524 (issued August 3, 2015).

6

CONCLUSION
The Board finds that OWCP properly found appellant’s application for reconsideration
was untimely filed and failed to show clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 27, 2015 is affirmed.
Issued: September 16, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7