United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

E.R., Appellant 

and 

U.S. POSTAL SERVICE, BALCONES 

STATION, Austin, TX, Employer 

__________________________________________ 

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Docket No. 15-1046 

Issued: November 12, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On April 7, 2015 appellant filed a timely appeal from December 10, 2014 and March 24, 

2015 merit decisions 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 to review the merits of this case. 

ISSUES 

The issues are: (1) whether appellant’s May 27, 2009 injury disabled appellant for work 

from December 30, 2013 to June 10, 2014; and (2) whether OWCP properly assessed the extent 

of permanent impairment of his right upper extremity, for which he previously received a 

schedule award. 

FACTUAL HISTORY 

On May 27, 2009 appellant, a 43-year-old mail carrier, sustained a traumatic injury to his 

shoulder in the performance of duty when he caught a falling tray of mail. OWCP accepted his 

 1

 5 U.S.C. § 8101 et seq.
2

claim for rotator cuff syndrome of the right shoulder and allied disorders, for which he 

underwent surgery on September 4, 2009. It later accepted appellant’s claim for bilateral sprain 

of the shoulder and upper arm, acromioclavicular disorder of the bilateral bursae and tendons in 

the shoulder region, unspecified, and other affliction of the right shoulder region not elsewhere 

classified. Appellant received a schedule award for 10 percent impairment of the right upper 

extremity due to acromioclavicular joint injury or disease. He also received compensation for 

wage loss through December 27, 2013. 

Appellant claimed compensation for wage loss from December 30, 2013 to 

June 10, 2014. On December 30, 2013 Dr. Helo Chen, the treating osteopath, noted that 

appellant had returned to work part time on modified duty. He detailed appellant’s restrictions 

and indicated that they would apply for approximately three to six months. 

On January 22, 2014 appellant formally accepted a part-time limited-duty assignment at 

retained pay.2

 

Dr. Chen completed duty status reports setting forth appellant’s physical limitations while 

working four hours a day. He increased appellant’s daily hours to six in February 2014 and to 

eight hours in March 2014. Appellant was allowed to reach above shoulder level an extra hour 

per day in April 2014. 

On September 5, 2014 appellant advised that he tried to return to work under Dr. Chen’s 

restrictions, but the employing establishment sent him home stating no work was available 

within those restrictions. OWCP asked the employing establishment whether this was the case. 

The employing establishment responded: “That is not correct. There were some administrative 

issues going on at that time. [Appellant] was never told there was no work available.” 

In a decision dated December 10, 2014, OWCP denied appellant’s claim for wage-loss 

compensation from December 30, 2013 to June 10, 2014. It found that the medical evidence did 

not support an inability to work during the period claimed. 

Appellant filed a claim for an increased schedule award. Dr. Philip E. Rosen, a Boardcertified orthopedic surgeon and consultant to Dr. Chen, examined appellant on July 8, 2014. 

Dr. Rosen diagnosed a right rotator cuff tear with very mild acromioclavicular separation. 

Referring to Table 15-5, page 402, of the American Medical Association, Guides to the 

Evaluation of Permanent Impairment (6th ed. 2009), he noted that appellant had a partial 

thickness rotator cuff tear with a history of painful injury and residual symptoms without 

consistent objective findings. The default impairment value was one percent, and no adjustment 

was warranted for functional history, physical examination, or clinical studies. Dr. Rosen 

concluded that appellant had one percent impairment of his right upper extremity due to a partial 

rotator cuff tear. 

An OWCP medical adviser reviewed Dr. Rosen’s evaluation and confirmed his 

impairment rating. He noted, however, that appellant had previously received a schedule award 

for 10 percent impairment of the right upper extremity. Therefore, appellant had no additional 

impairment. 

 2

 On the date of injury appellant was a Grade 2, Step L employee earning $53,637.00 per year. The modified 

part-time assignment he accepted on January 22, 2014 paid $58,281.00. 
3

On March 24, 2015 OWCP issued a schedule award for an additional one percent 

impairment of the right upper extremity. 

On appeal, appellant argues that the employing establishment had been sending incorrect 

information to OWCP for the past two years. He further asserts that “I am hoping someone can 

launch an investigation on that office to prevent them from continuing to send incorrect 

information on their employees.” 

LEGAL PRECEDENT -- ISSUE 1 

FECA provides compensation for the disability of an employee resulting from personal 

injury sustained while in the performance of duty.3 A claimant seeking benefits under FECA has 

the burden of proof to establish the essential elements of his or her claim by the weight of the 

evidence,4

 including that he or she sustained an injury in the performance of duty and that any 

specific condition or disability for work for which he or she claims compensation is causally 

related to that employment injury.5

The claimant must submit a rationalized medical opinion that supports a causal 

connection between the current disabling condition and the employment injury. The medical 

opinion must be based on a complete factual and medical background with an accurate history of 

the employment injury, and must explain from a medical perspective how the current disabling 

condition is related to the injury.6

ANALYSIS -- ISSUE 1 

Appellant claimed compensation for wage loss from December 30, 2013 to 

June 10, 2014. Dr. Chen, the treating osteopath, examined appellant that day and noted that he 

had returned to work part time on modified duty. Further, appellant formally accepted the parttime limited-duty assignment on January 22, 2014. Dr. Chen continued to complete duty status 

reports setting forth appellant’s restrictions, but at no point during the period of claimed 

disability did he advise that appellant was unable to continue his modified duty. The duty status 

reports showed a general lifting of restrictions. Appellant was essentially back to full-time work 

by March 2014. 

Moreover, there is no evidence that appellant sustained wage loss during the period 

claimed. He earned more in his part-time modified-duty assignment than he did at the time of 

injury.7

 3

 5 U.S.C. § 8102(a). 

4 Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein. 

5 Elaine Pendleton, 40 ECAB 1143, 1145 (1989). 

6 John A. Ceresoli, Sr., 40 ECAB 305 (1988). 

7

 “Disability” means the incapacity, because of an employment injury, to earn the wages the employee was 

receiving at the time of injury. 20 C.F.R. § 10.5(f). 
4

Appellant alleged that the employing establishment sent him home because there was no 

work available within his restrictions. A “recurrence of disability” includes an inability to work 

that takes place when a light-duty assignment made specifically to accommodate an employee’s 

physical limitations due to his work injury or illness is withdrawn.8

 The employing 

establishment advised that his work was never withdrawn. Apparently, there were some 

administrative issues going on at that time, but appellant was never told there was no work 

available. 

In the absence of medical opinion evidence establishing that appellant’s May 27, 2009 

employment injury disabled him for work from December 30, 2013 to June 10, 2014, the Board 

finds that appellant has not met his burden of proof to establish his claim for wage-loss 

compensation. The Board will therefore affirm OWCP’s December 10, 2014 decision. 

LEGAL PRECEDENT -- ISSUE 2 

The schedule award provision of FECA9

 and the implementing regulations10 set forth the 

number of weeks of compensation payable for permanent impairment from loss or loss of use of 

scheduled members or functions of the body. FECA, however, does not specify the manner in 

which the percentage of loss shall be determined. The method used in making such a 

determination is a matter that rests within the sound discretion of OWCP.11

For consistent results and to ensure equal justice under the law to all claimants, good 

administrative practice necessitates the use of a single set of tables so that there may be uniform 

standards applicable to all claimants. OWCP has adopted the A.M.A., Guides as the appropriate 

standard for evaluating schedule losses.12 As of May 1, 2009, the sixth edition of the A.M.A., 

Guides is used to calculate schedule awards.13

ANALYSIS -- ISSUE 2 

To support his claim for an increased schedule award, appellant submitted an evaluation 

from Dr. Rosen, an orthopedic surgeon and consultant to Dr. Chen. Dr. Rosen found that 

appellant had one percent impairment of the right upper extremity due to a partial thickness 

rotator cuff tear. Appellant, however, had already received a schedule award for 10 percent 

impairment of his right upper extremity based on an acromioclavicular joint injury or disease. 

As the A.M.A., Guides explains, it is not uncommon for rotator cuff tears, a superior labrum 

from anterior to posterior lesion or other labral lesions, and biceps tendon pathology to all be 

 8 Id. at § 10.5(x). 

9

 5 U.S.C. § 8107. 

10 20 C.F.R. § 10.404. 

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

12 20 C.F.R. § 10.404; Ronald R. Kraynak, 53 ECAB 130 (2001). 

13 Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, 

Chapter 2.808.6.6a (January 2010). 
5

present simultaneously in the shoulder. The evaluator is expected to choose the most significant 

diagnosis and to rate only that diagnosis using the diagnosis-based impairment method.14

Thus, appellant may not receive two schedule awards based on different diagnoses of the 

same shoulder joint. As OWCP’s medical adviser correctly noted, Dr. Rosen’s evaluation did 

not establish that appellant was entitled to an additional schedule award. The Board reverses 

OWCP’s March 24, 2015 decision awarding an additional one percent. 

CONCLUSION 

The Board finds that appellant has not met his burden to establish that his May 27, 2009 

injury disabled him for work from December 30, 2013 to June 10, 2014. The Board also finds 

that appellant has no more than 10 percent impairment of his right upper extremity, for which he 

previously received a schedule award. 

ORDER 

IT IS HEREBY ORDERED THAT the March 24, 2015 decision of the Office of 

Workers’ Compensation Programs is reversed. The December 10, 2014 decision of the Office of 

Workers’ Compensation Programs is affirmed. 

Issued: November 12, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 14 Id. at 390.