United States Department of Labor

Employees’ Compensation Appeals Board

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H.W., Appellant

and

DEPARTMENT OF DEFENSE, NEW 

CUMBERLAND ARMY DEPOT, Fairview, PA, 

Employer

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Docket No. 18-1472

Issued: March 6, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On July 23, 2018 appellant filed a timely appeal from February 13 and June 26, 2018 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 over the merits of this case.2 

ISSUES

The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s 

wage-loss compensation, effective February 13, 2018; and (2) whether appellant has met his 

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the February 13, 2018 decision terminating appellant’s wage-loss compensation, 

OWCP received additional evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a 

case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not 

before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the 

Board is precluded from reviewing this additional evidence on the termination issue for the first time on appeal. Id.
2

burden of proof to establish permanent impairment of a scheduled member of function or the body,

entitling him to a schedule award. 

FACTUAL HISTORY

On July 16, 2008 appellant, then a 53-year-old materials handler, filed a traumatic injury 

claim (Form CA-1) alleging that, on July 15, 2008, he injured his middle and lower back when 

moving a box from a cart on the floor. OWCP accepted the claim for thoracic sprain and thoracic 

neuritis. Following his injury, appellant performed limited-duty employment. 

An official position description for the job of materials handler indicated that it required 

frequent lifting and carrying of up to 40 pounds and the potential for lifting “greater weights with 

assistance.”

In a report dated August 17, 2015, Dr. Maciej T. Charczuk, a Board-certified physiatrist, 

diagnosed chronic middle back pain, chronic thoracic sprain/strain, myofascial pain syndrome, and 

degenerative joint disease. He noted that appellant continued to perform modified-duty work.

OWCP, on October 28, 2016, referred appellant to Dr. Robert F. Draper, Jr., a Boardcertified orthopedic surgeon, for a second opinion examination. 

In a report dated December 19, 2016, Dr. Draper reviewed appellant’s history of injury and 

the medical evidence of record. He measured range of motion of the lumbar spine and found a 

negative straight leg raise test bilaterally. Dr. Draper further found full motor function and 

sensation of the lower extremities. He diagnosed thoracic strain and neuritis. Dr. Draper opined 

that appellant could perform medium level employment lifting no more than 75 pounds 

occasionally and 50 pounds frequently.

Dr. Draper, in a supplemental report dated January 12, 2017, advised that appellant had no 

additional diagnoses other than the conditions accepted by OWCP. 

By letter dated May 8, 2017, the employing establishment informed appellant that the 

medical evidence from Dr. Draper indicated that he could perform lifting, pushing, and pulling up 

to 50 pounds frequently and 75 pounds occasionally. It noted that these restrictions were within 

the physical requirements of the position of materials handler and offered him his date-of-injury 

position.

On May 16, 2017 the employing establishment clarified that the offered position was for 

full-time work in appellant’s date-of-injury position. It noted that the official position description 

of materials handler required frequent lifting and carrying of up to 40 pounds and the lifting of

greater weight with assistance. The employing establishment advised appellant that he could 

perform the full duties of his position “while adhering to the medical restrictions provided by

Dr. Draper.”

In a progress report dated June 12, 2017, Dr. Bruce S. Cohick, Board-certified in family 

medicine, related that appellant described “a history of chronic mid back pain in the area of T10-

11 since July 1, 2008. The history as related by [appellant] is that his was secondary to a work[-]

related injury. It started while he was lifting at work.” Dr. Cohick noted that the employing 
3

establishment had offered appellant a position that would require lifting up to 50 pounds. He 

diagnosed chronic thoracic back pain secondary to an employment injury. Dr. Cohick related, “I 

do not feel [appellant] would be capable of performing regular duties, especially he could not pick 

up 50 pounds from the floor.”

On August 14, 2017 Dr. Brian C. Quirk, Board-certified in family medicine, obtained a 

history of appellant performing modified employment after lifting a heavy object while at work in 

2008. He diagnosed chronic parathoracic strain and indicated that he had evaluated him for an 

employment injury. Dr. Quirk advised that appellant should continue with his current restrictions.

Appellant, on November 21, 2017, filed a claim for a schedule award (Form CA-7). 

A December 4, 2017 telephone memorandum (Form CA-110), documents that the 

employing establishment telephoned OWCP and advised that it had accommodated appellant with 

a limited-duty job after his injury. It was now offering him a position in his usual employment 

based on the findings of the second opinion physician. 

OWCP, on December 7, 2017, notified appellant of its proposed termination of his wageloss compensation as the evidence established that he no longer had an employment-related 

disability causally related to his July 15, 2008 employment injury.

By decision dated February 13, 2018, OWCP terminated appellant’s entitlement to wageloss compensation, effective that date. It found that Dr. Draper’s opinion represented the weight 

of the evidence and established that he had no further disability due to his July 15, 2008

employment injury. OWCP advised appellant that his claim remained open for medical treatment.

On February 15, 2018 OWCP requested that appellant submit an impairment evaluation 

from his attending physician in accordance with the sixth edition of the American Medical 

Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)

3

addressing 

whether he had reached maximum medical improvement (MMI) and the extent of any permanent 

impairment. 

Appellant’s union representative, on March 12, 2018, noted that he had retired on 

December 31, 2017 and was not claiming wage-loss compensation. He questioned why he needed

to submit information in support of a schedule award determination given that OWCP had

Dr. Draper’s opinion. 

In a report dated March 2, 2018, Dr. Quirk evaluated appellant for pain in his thoracic spine 

that had begun after a 2008 employment injury. He noted that he had retired on December 31, 

2017, and needed documentation that he had reached MMI. Dr. Quirk found a negative straight 

leg raise and full lower extremity strength. He diagnosed chronic lumbar thoracic pain. Dr. Quirk

advised that he did not have the qualifications necessary to rate the percentage of appellant’s 

disability.

 

3 A.M.A., Guides (6th ed. 2009).
4

By decision dated June 26, 2018, OWCP denied appellant’s schedule award claim. It found 

that he had not submitted medical evidence establishing permanent impairment of a scheduled 

member or function of the body entitling him to a schedule award.

LEGAL PRECEDENT -- ISSUE 1

Once OWCP accepts a claim and pays compensation, it has the burden of justifying 

modification or termination of an employee’s benefits.4 After it has determined that an employee 

has disability causally related to his or her federal employment, OWCP may not terminate 

compensation without establishing that the disability has ceased or that it is no longer related to 

the employment.5 Its burden of proof includes the necessity of furnishing rationalized medical 

opinion evidence based on a proper factual and medical background.6

ANALYSIS -- ISSUE 1

The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation, effective February 13, 2018.

OWCP accepted that appellant sustained thoracic sprain and thoracic neuritis due to a 

July 15, 2008 employment injury. Appellant performed limited-duty employment following his 

injury. OWCP terminated his entitlement to wage-loss compensation effective February 13, 2018 

based on the opinion of Dr. Draper, who provided a second opinion examination.

The Board finds that Dr. Draper’s opinion is thorough and well-rationalized and thus

constitutes the weight of the evidence establishing that appellant had no further disability due to 

his accepted employment injury after February 13, 2018.7

On December 19, 2016 Dr. Draper reviewed the history of injury and provided detailed 

findings on examination. He found full motor function and sensation of the lower extremities and 

a negative straight leg raise test bilaterally. Dr. Draper diagnosed thoracic strain and neuritis. He

determined that appellant could work lifting no more than 75 pounds occasionally and 50 pounds 

frequently. Dr. Draper provided a thorough review of the factual and medical background and 

accurately summarized the relevant medical evidence. Moreover, he provided detailed findings 

on examination and reached conclusions regarding appellant’s condition which comported with 

his findings.8 Consequently, Dr. Draper’s opinion is entitled to the weight of the evidence.9 

Appellant’s official position description supports that the restrictions found by Dr. Draper were 

 

4 M.M., Docket No. 17-1264 (issued December 3, 2018).

5 E.B., Docket No. 18-1060 (issued November 1, 2018).

6 G.H., Docket No. 18-0414 (issued November 14, 2018).

7 O.W., Docket No. 17-1881 (issued May 1, 2018).

8 S.P., Docket No .16-0341 (issued November 7, 2016).

9 See S.W., Docket No. 17-0215 (issued September 19, 2017).
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within those of his date-of-injury position. Thus, the evidence establishes that appellant had no 

further disability due to his employment injury.

The remaining evidence of record submitted prior to OWCP’s termination of compensation 

is insufficient to show that appellant had continued disability due to his employment injury. On 

June 12, 2017 Dr. Cohick discussed his history of back pain at T10-11 beginning July 2008 after 

he had performed lifting at work. He diagnosed chronic thoracic pain due to an employment injury. 

Dr. Cohick opined that appellant could not perform his usual employment duties, which he found 

included lifting 50 pounds off the floor. While he provided the history of injury, he failed to 

specifically attribute his work restrictions to the accepted employment injury.10 Further, 

Dr. Cohick indicated that appellant’s position required lifting up to 50 pounds from the floor, 

which is not supported by the record. Medical opinions based on an incomplete or inaccurate 

history are of limited probative value.11 Consequently, Dr. Cohick’s opinion is of diminished 

probative value.12

Dr. Quirk, in a report dated August 14, 2017, discussed appellant’s history of a 2008 

employment injury after lifting a heavy object. He noted that he had performed modified 

employment after his injury. Dr. Quirk diagnosed chronic parathoracic strain and advised that he 

had evaluated appellant for an employment injury. He opined that he should continue working 

with the same restrictions. Dr. Quirk, however, did not provide adequate medical rationale 

explaining how the continued work restrictions were caused by the employment injury.13 Medical 

conclusions unsupported by rationale are of little probative value.14

The Board finds that Dr. Draper’s opinion represents the weight of the evidence and 

establishes that appellant has no further employment-related disability.

15

 Consequently, OWCP 

properly terminated his entitlement to wage-loss compensation effective February 13, 2018.16

LEGAL PRECEDENT -- ISSUE 2

The schedule award provisions of FECA,17 and its implementing federal regulations,

18 set 

forth the number of weeks of compensation payable to employees sustaining permanent 

impairment from loss, or loss of use, of scheduled members or functions of the body. However, 

 

10 See A.D., Docket No. 17-0793 (issued June 18, 2018).

11 See M.B., Docket No. 18-1182 (issued January 9, 2019).

12 K.L., Docket No. 17-2003 (issued April 16, 2018).

13 D.P., Docket No. 18-0038 (issued January 4, 2019).

14 Id.

15 Supra note 11.

16 See D.J., Docket No. 17-0327 (issued July 11, 2018).

17 5 U.S.C. § 8107.

18 20 C.F.R. § 10.404.
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FECA does not specify the manner in which the percentage of loss shall be determined. For 

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted 

the A.M.A., Guides as the uniform standard applicable to all claimants.19 As of May 1, 2009, the 

sixth edition of the A.M.A., Guides is used to calculate schedule awards.20

A claimant has the burden of proof under FECA to establish permanent impairment of a 

scheduled member or function as a result of his or her employment injury entitling him or her to a 

schedule award.21 Before the A.M.A., Guides can be utilized a description of impairment must be 

obtained from his or her physician. In obtaining medical evidence required for a schedule award, 

the evaluation made by the attending physician must include a description of the impairment 

including, where applicable, the loss in degrees of active and passive motion of the affected 

member or function, the amount of any atrophy or deformity, decrease in strength or disturbance 

of sensation or other pertinent descriptions of the impairment. This description must be in 

sufficient detail so that the claims examiner and others reviewing the file will be able to clearly 

visualize the impairment with its resulting restrictions and limitations.22

OWCP’s procedures provide that, if a claimant has not submitted an impairment 

evaluation, it should request a detailed report that “includes history of clinical presentation, 

physical findings, functional history, clinical studies or objective tests, analysis of findings, and 

the appropriate impairment based on the most significant diagnosis, as well as a discussion of how 

the impairment rating was calculated.”

23

 If the claimant does not provide an impairment 

evaluation, “and there is no indication of permanent impairment in the medical evidence of file, 

the CE [claims examiner] may proceed with a formal denial of the award.”

24

ANALYSIS -- ISSUE 2

The Board finds that appellant has not met his burden of proof to establish permanent 

impairment entitling him to a schedule award. 

OWCP accepted that appellant sustained thoracic sprain and thoracic neuritis causally 

related to a July 15, 2008 employment injury. On November 21, 2017 appellant filed a schedule 

award claim. OWCP, on February 15, 2018, requested that he submit an impairment evaluation 

from his physician addressing the extent of any employment-related permanent impairment using 

the A.M.A., Guides. 

 

19 Id. at § 10.404(a).

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

2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010). 

21 See I.T., Docket No. 18-1049 (issued December 31, 2018).

22 A.T., Docket No. 18-0864 (issued October 9, 2018).

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

2.808.6(a) (March 2017).

24 Id. at Chapter 2.808.6(c).
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Dr. Quirk, in a report dated March 2, 2018, found that appellant had limited thoracic motion 

due to pain, a negative straight leg raise, and full strength in the lower extremity. He related that 

he did not have the qualifications to rate a percentage of disability. 

As noted, appellant must submit an evaluation from a physician that includes a description 

of impairment in sufficient detail so that the claims examiner and others reviewing the file will be 

able to clearly visualize the impairment with its resulting restrictions and limitations.25 He has 

failed to submit any medical evidence supporting that he sustained a permanent impairment due 

to his accepted employment injury and thus has not met his burden of proof.26 Appellant requested 

that OWCP schedule a second opinion examination, and his attending physician declined to 

provide an impairment rating. However, as there was no indication of permanent impairment to a 

scheduled member or function in the record, OWCP properly denied his claim.27

On appeal appellant submitted a letter from his union steward noting that he underwent a 

functional capacity evaluation performed in April 15, 2009 and that he had submitted a report from 

his physician dated March 2, 2018. As discussed, however, he has the burden of proof to establish

permanent impairment of a scheduled member or function of the body.

28

 The April 15, 2009 

functional capacity evaluation is stale medial evidence and cannot form the basis for a current 

impairment evaluation.29 Dr. Quirk, in the March 2, 2018 report, declined to provide an 

impairment evaluation.

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 employment-related 

condition resulting in permanent impairment or increased impairment. 

CONCLUSION

The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation, effective February 13, 2018. The Board further finds that he has not met his burden 

of proof to establish permanent impairment of a scheduled member of function of the body

entitling him to a schedule award. 

 

25 See B.V., Docket No. 17-0656 (issued March 13, 2018).

26 See P.L., Docket No. 13-1592 (issued January 7, 2014).

27 See supra note 23.

28 D.S., Docket No. 18-1140 (issued January 29, 2019).

29 See S.H., Docket No. 18-1297 (issued January 3, 2019).
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ORDER

IT IS HEREBY ORDERED THAT the June 26 and February 13, 2018 decisions of the 

Office of Workers’ Compensation Programs are affirmed.

Issued: March 6, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board