United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

M.C., Appellant

and

DEPARTMENT OF THE TREASURY, 

INTERNAL REVENUE SERVICE,

San Diego, CA, Employer

__________________________________________

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Docket No. 17-1242

Issued: December 20, 2017

Appearances: Case Submitted on the Record

Alan J. Shapiro, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On May 16, 2017 appellant, through counsel, filed a timely appeal from a March 15, 

2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to 

the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the 

Board has jurisdiction over the merits of the 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.
2

ISSUE

The issue is whether appellant has established employment-related permanent 

impairment of her left upper extremity warranting a schedule award.

FACTUAL HISTORY

On August 9, 2012 appellant, then a 53-year-old employment tax specialist/revenue 

agent, filed an occupational disease claim (Form CA-2) alleging that she sustained pain in her 

left shoulder due to carrying heavy paperwork to and from the office. She first became aware of 

her condition and its relationship to her federal employment on July 16, 2012. Appellant stopped 

work on July 16, 2012. 

OWCP accepted that appellant sustained a sprain of the left shoulder and upper arm and 

disorder of the bursae and tendons in the left shoulder. It paid wage-loss compensation for 

intermittent wage-loss from work from October 22 to November 8, 2012.

3

 Appellant accepted a 

limited-duty job offer on November 14, 2012.

In a report dated January 9, 2014, Dr. Dayang Kim Mariena Jaya, a Board-certified 

internist, diagnosed left shoulder bursitis, impingement syndrome, and adhesive capsulitis. She

discussed appellant’s history of experiencing shoulder pain on July 12, 2012 carrying case files. 

Dr. Jaya noted that a magnetic resonance imaging (MRI) scan showed biceps tendinitis and 

subacromial bursitis. She found that appellant had reached maximum medical improvement and 

had no restrictions. Dr. Jaya further opined that appellant had no ratable impairment based on 

the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent 

Impairment (A.M.A., Guides).4

Appellant, on May 9, 2016, filed a claim for a schedule award (Form CA-7).5 By letter 

dated May 11, 2016, OWCP requested that she submit an impairment evaluation from her 

attending physician addressing the extent of any employment-related impairment in accordance 

with the sixth edition of the A.M.A., Guides.

6

 No further information was provided.

By decision dated June 13, 2016, OWCP denied appellant’s schedule award claim. It 

found that she had not submitted any medical evidence supporting a permanent impairment due 

to her accepted work injury.

On June 17, 2016 appellant, through counsel, requested a telephone hearing before an 

OWCP hearing representative.

 

3 OWCP also paid appellant for time lost from work for medical appointments from January 23 to 

September 4, 2013.

4

5

th ed. 2001.

5 By decision dated October 3, 2014, OWCP found that appellant had not established a recurrence of a medical 

condition.

6

6

th ed. 2009.
3

In an impairment evaluation dated June 22, 2016, Dr. Mesfin Seyoum, who specializes in 

family medicine, obtained a history of appellant experiencing the sudden onset of left shoulder 

pain on July 16, 2012 while carrying a “heavy briefcase on her left shoulder.” He reviewed the 

objective studies of record and discussed her current complaints of continued left shoulder pain 

aggravated by cold, overhead reaching, and lifting. Dr. Seyoum measured range of motion for 

the left shoulder and performed a neurological examination. He diagnosed a left shoulder strain

and left rotator cuff syndrome “caused and aggravated by work activities,” noting that she had a 

specific injury to her left shoulder on July 16, 2012. Using Table 15-5 on page 402 of the 

A.M.A., Guides, 6

th ed., Dr. Seyoum identified the diagnosis as a class 1 rotator cuff tear with 

residual loss. After applying grade modifiers, he determined that appellant had five percent 

upper extremity impairment.

During the telephone hearing, held on February 10, 2017, counsel requested that 

OWCP’s hearing representative remand the case for OWCP’s medical adviser to consider

Dr. Seyoum’s impairment evaluation.

In a decision dated March 15, 2017, OWCP’s hearing representative affirmed the 

June 13, 2016 decision. She found that Dr. Seyoum did not provide an accurate history of injury 

and rated appellant for a rotator cuff tear, a condition not accepted by OWCP as employment 

related.

On appeal counsel contends that she submitted evidence supporting permanent 

impairment.

LEGAL PRECEDENT

FECA7provides compensation for both disability and physical impairment. “Disability”

means the incapacity of an employee, because of an employment injury, to earn the wages the 

employee was receiving at the time of injury.8 In such cases, FECA compensates an employee 

for loss of wage-earning capacity. In cases of physical impairment FECA, under section 

8107(a), compensates an employee, pursuant to a compensation schedule, for the permanent loss 

of use of certain specified members of the body, regardless of the employee’s ability to earn 

wages.

9

The claimant has the burden of proof to establish that he or she sustained a permanent 

impairment of a scheduled member or function as a result of her employment injury.10 The 

claimant must submit a rationalized medical opinion that supports a causal connection between 

his or her current condition and the employment injury.11 The medical opinion must be based on 

 

7

Supra note 2.

8

Lyle E. Dayberry, 49 ECAB 369 (1998).

9 Renee M. Straubinger, 51 ECAB 667 (2000).

10 See Veronica Williams, 56 ECAB 367 (2005); Annette M. Dent, 44 ECAB 403 (1993).

11 Manuel Gill, 52 ECAB 282 (2001).
4

a complete factual and medical background with an accurate history of the claimant’s 

employment injury and must explain from a medical perspective how the current condition is 

causally related to the injury.12

ANALYSIS

OWCP accepted appellant’s August 9, 2012 occupational disease claim for a left 

shoulder and upper arm sprain and a disorder of the bursae and tendons of the left shoulder. 

Appellant returned to modified employment in November 2012.

On January 9, 2014 Dr. Jaya released appellant to resume her usual employment without 

restrictions. She diagnosed bursitis, impingement syndrome, and adhesive capsulitis of the left 

shoulder and found that she had no ratable impairment using the fifth edition of the A.M.A., 

Guides.

Appellant filed a schedule award claim on May 9, 2016, which OWCP denied on 

June 13, 2016 as she had not submitted an impairment evaluation in support of her claim. She 

requested a telephone hearing and submitted a June 22, 2016 impairment evaluation from

Dr. Seyoum. Dr. Seyoum related that appellant had a history of left shoulder pain on July 16, 

2012 carrying a heavy briefcase at work. He measured range of motion and performed a sensory 

examination. Dr. Seyoum diagnosed a left shoulder strain and left shoulder rotator cuff tendinitis 

due to employment activities, indicating that appellant experienced a left shoulder injury on 

July 16, 2012. Using Table 15-5 on page 402 of the sixth edition of the A.M.A., Guides, he 

identified the diagnosis as a class 1 rotator cuff tear and found, after applying grade modifiers, 

that she had five percent permanent impairment of the left upper extremity. Although 

Dr. Seyoum based his impairment assessment on a left shoulder rotator cuff tear, OWCP has not

accepted the rotator cuff tear as employment related. It is appellant’s burden to establish that the 

condition for which a schedule award is sought is causally related to her employment.13 

Schedule awards are not issued when the impairment is caused solely by a nonemploymentrelated condition.14

 Appellant has not established that the employment injury contributed to a 

permanent impairment of a scheduled member or function of the body.15 Consequently, she has 

failed to meet her burden of proof.

On appeal counsel asserts that she submitted sufficient evidence to demonstrate a 

permanent impairment. As noted, however, appellant has the burden of proof to establish a 

 

12 Yvonne R. McGinnis, 50 ECAB 272 (1999).

13 See M.B., Docket No. 17-0376 (issued July 24, 2017); Veronica Williams, 56 ECAB 367 (2005).

14 See M.B., id.

15 See D.E., Docket No. 16-0463 (issued May 17, 2016).
5

permanent impairment as the result of the accepted work injury.16 She has not submitted such 

evidence and thus failed to meet her burden of proof.17

Appellant may request a schedule award or increased schedule award at any time based 

on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.

CONCLUSION

The Board finds that appellant has not established an employment-related permanent 

impairment of her left upper extremity, warranting a schedule award.

ORDER

IT IS HEREBY ORDERED THAT the March 15, 2017 decision of the Office of 

Workers’ Compensation Programs is affirmed.18

Issued: December 20, 2017

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

16 Id.

17 See M.B., supra note 13.

18 Colleen Duffy Kiko, Judge, participated in the original decision, but was no longer a member of the Board 

effective December 11, 2017.