United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Washington, DC, Employer
__________________________________________

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

Docket No. 09-553
Issued: August 21, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 19, 2008 appellant filed a timely appeal of the September 22, 2008
nonmerit decision of the Office of Workers’ Compensation Programs, which denied her request
for reconsideration. The last merit decision was issued on December 20, 2006. Because
appellant filed the current appeal more than a year after the Office’s December 20, 2006
decision, the Board does not have jurisdiction over the merits of the claim.1
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.

1

20 C.F.R. §§ 501.2(c), 501.3(d) (2008). The record on appeal includes evidence received after the Office issued
its September 22, 2008 decision. The Board cannot consider evidence for the first time on appeal. The review of a
case shall be limited to the evidence in the case record which was before the Office at the time of its final decision.
20 C.F.R. § 501.2(c).

FACTUAL HISTORY
This case was previously on appeal. Appellant, a 56-year-old medical supply technician,
was struck in the head in the performance of duty on October 29, 1988. She sustained another
employment-related head injury (xxxxxx508) on March 31, 1989, which the Office combined
with the 1988 claim. Appellant’s accepted conditions include scalp contusions, post-traumatic
encephalgia, neck sprain and left shoulder sprain. The last time the case was on appeal, the
Board set aside a March 10, 2004 decision denying modification of a December 6, 1995 loss of
wage-earning capacity (LWEC) determination.2 In remanding the case, the Board instructed the
Office to refer appellant to an impartial medical examiner to resolve a conflict regarding the
nature of appellant’s impairments and her ability to work.3
Dr. William Peterson, a Board-certified neurologist and impartial medical examiner, saw
appellant on November 11, 2006. At the time, appellant’s complaints included chronic
headaches, neck and low back pain, memory impairment and visual impairments. Dr. Peterson
found evidence of a mild injury to the cervical and lumbar spines manifested solely by muscle
spasm in the left trapezius and cervical and lumbosacral paraspinal muscles. He reported no
clinical evidence of radiculopathy or pinched nerves in the cervical or lumbosacral spine.
Dr. Peterson advised that his clinical evaluation suggested a hysterical component. As to
appellant’s complaint of chronic headaches, he indicated that the lack of description and
appellant’s evasiveness raised some questions and effectively impeded a more accurate
diagnosis.4 However, Dr. Peterson noted that it was unlikely that appellant had migraine
headaches “three [to] four times a week ... for many years.” He further stated that, while there
may be some cognitive impairment, it was difficult to assess and he would defer to the opinion of
appellant’s neuropsychologist. Lastly, Dr. Peterson noted that he personally believed there was a
strong psychiatric component to appellant’s problems, which needed to be addressed.
In a decision dated December 20, 2006, the Office found that appellant had not
established a basis for modifying the December 6, 1995 LWEC determination. It relied upon the
impartial medical examiner’s November 11, 2006 report.5
2

The December 6, 1995 LWEC determination reduced appellant’s wage-loss compensation based upon her
ability to earn weekly wages of $232.00 in the selected position of telephone order clerk. Once the wage-earning
capacity of an injured employee is determined, a modification of such determination is not warranted unless there is
a material change in the nature and extent of the injury-related condition, the employee has been retrained or
otherwise vocationally rehabilitated or the original determination was erroneous. Tamra McCauley, 51 ECAB 375,
377 (2000). The burden of proof is on the party seeking modification of the wage-earning capacity determination.
Id.
3

Docket No. 04-1482 (issued January 12, 2005). The Board’s latest decision, dated January 12, 2005, is
incorporated herein by reference.
4

Dr. Peterson noted, among other things, that appellant found it difficult to localize the area of the head where her
headaches arose from or where they were most prominent. He also noted that she was unable to describe whether
the onset of her headaches was gradual or sudden. Appellant reported that her headaches occurred four to five days
a week.
5

The Office further advised that, because appellant’s current psychiatric condition was not an accepted condition,
it was not addressed in the decision.

2

On December 24, 2007 the Office received an undated letter from appellant with the
heading “Reconsideration.” Appellant noted, among other things, that Dr. Peterson was
“unfair.” She claimed to have been in and out of his office in 30 minutes. On December 26,
2007 the Office received an unsigned and undated copy of the appeal request form that
accompanied the December 20, 2006 decision denying modification. A handwritten “X”
appeared on the line next to “RECONSIDERATION.” The record also includes a signed copy of
the same above-noted appeal request form, which was dated March 21, 2008 and date-stamped
as being received by the Office that same day.6 On September 11, 2008 the Office received
another signed copy of the appeal request form. However, this copy was dated March 20, 2007.
The document includes the notation “correction date ... sign (sic) wrong date [and] year
‘reconsideration’ was send (sic) in timely.” None of these submissions were accompanied by
additional medical evidence and other than appellant’s characterization of Dr. Peterson as
“unfair,” the various filings did not allege any specific error on the part of the Office with respect
to either the December 6, 1995 LWEC determination or the December 20, 2006 decision denying
modification.
While appellant did not submit any new evidence with her various requests for
reconsideration, she did file a claim (Form CA-7) for a schedule award on April 3, 2008, and
subsequently submitted a July 15, 2008 impairment rating from Dr. Michael E. Batipps, a Boardcertified neurologist, who found 34 percent impairment of brain and brain function, 16 percent
bilateral upper extremity impairment and 10 percent bilateral lower extremity impairment.
Dr. Batipps’ diagnoses included traumatic brain injury with chronic memory loss and cognitive
dysfunction, post-traumatic headaches, chronic bilateral C5-6 radiculopathy and chronic
lumbosacral radiculopathy, all of which he attributed to appellant’s employment-related injuries
in 1988 and 1989. He was on one side of the conflict in medical opinion that the Board
identified in its January 12, 2005 decision. Even after the impartial medical examiner’s
November 11, 2006 report, Dr. Batipps continued to diagnose cervical and lumbosacral
radiculopathy and found appellant totally disabled. However, his subsequent reports do not
specifically address appellant’s ability to perform the duties of a telephone order clerk.
By decision dated September 22, 2008, the Office denied appellant’s request for
reconsideration because it was untimely and she failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act does not entitle a claimant
to a review of an Office decision as a matter of right.7 The Office has discretionary authority in
this regard and it has imposed certain limitations in exercising its authority.8 One such limitation
is that the application for reconsideration must be sent within one year of the date of the Office
6

On April 10, 2008 the Office acknowledged receipt of the March 21, 2008 request for reconsideration, but
advised appellant that it would not take further action because it was unclear “which decision or issues” appellant
was asking the Office to reconsider.
7

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a) (2006).
8

20 C.F.R. § 10.607.

3

decision for which review is sought.9 When a request for reconsideration is untimely, the Office
will undertake a limited review to determine whether the application presents “clear evidence of
error” on the part of the Office in its “most recent merit decision.”10
ANALYSIS
Appellant’s request for reconsideration was dated more than a year after the Office issued
its December 20, 2006 decision denying modification. The earliest filing that arguably indicated
appellant’s desire for reconsideration was received on December 24, 2007. Afterwards the
Office received three appeal request forms from the December 20, 2006 decision that indicated a
desire for reconsideration. The first form was unsigned and undated, the second was dated
March 21, 2008, and the third form, which the Office received on September 11, 2008, was
clearly back-dated to March 20, 2007. Because appellant’s requests were untimely she must
demonstrate “clear evidence of error” on the part of the Office in denying modification of the
December 6, 1995 LWEC determination.11
To establish clear evidence of error, appellant must submit evidence relevant to the issue
that was decided by the Office.12 The issue was whether appellant established a basis for
modifying the Office’s December 6, 1995 LWEC determination. Based on Dr. Peterson’s
November 11, 2006 report, the Office previously found no basis for modification. Dr. Batipps’
latest impairment ratings are insufficient to overcome the weight accorded the impartial medical
examiner’s November 11, 2006 report. Moreover, these reports are insufficient to create a new
conflict of medical opinion.13 Dr. Batipps’ latest evidence does not specifically address
appellant’s ability to perform the duties of a telephone order clerk. Furthermore, appellant has
not alleged any specific error on the part of the Office with respect to either the December 6,
1995 LWEC determination or the December 20, 2006 decision denying modification. As such,
appellant has not established clear evidence of error. The Board finds that the Office properly
declined to reopen appellant’s case under 5 U.S.C. § 8128(a).

9

Id. at § 10.607(a).

10

Id. at § 10.607(b). To establish clear evidence of error, a claimant must submit evidence relevant to the issue
that was decided by the Office. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive, precise
and explicit and it must be apparent on its face that the Office committed an error. See Leona N. Travis, 43 ECAB
227 (1991). It is not enough to merely show that the evidence could be construed to produce a contrary conclusion.
Id. Evidence that does not raise a substantial question concerning the correctness of the Office’s decision is
insufficient to establish clear evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990).
11

20 C.F.R. § 10.607(b).

12

Dean D. Beets, supra note 10.

13

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. Richael O’Brien, 53 ECAB 234, 242 n.6 (2001).

4

CONCLUSION
Appellant’s request for reconsideration was untimely and she failed to demonstrate clear
evidence of error. Accordingly, she is not entitled to further merit review.
ORDER
IT IS HEREBY ORDERED THAT the September 22, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 21, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.G., Appellant
and
DEPARTMENT OF THE ARMY, FORT
JACKSON MEDDAC, Columbia, SC, Employer
__________________________________________

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

Docket No. 10-1861
Issued: March 21, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 7, 2010 appellant filed a timely appeal from an April 14, 2010 nonmerit decision
of the Office of Workers’ Compensation Programs denying her request for reconsideration on
the grounds that it was untimely and failed to establish clear evidence of error. The most recent
merit review in this case was the Office’s March 3, 2009 decision denying her occupational
disease claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this
nonmerit decision.1
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely and failed to establish clear
evidence of error.

1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3 (2008).

FACTUAL HISTORY
On December 31, 2008 appellant, a 60-year-old information technologist specialist, filed
an occupational disease claim alleging that she contracted a herpes virus from a coworker, who
had frequent outbreaks over the course of a year. The employing establishment controverted the
claim stating that there was no way to prove how she contracted the claimed disease.
Appellant submitted a December 4, 2008 report from Dr. Greta C. Zimmerman, a Boardcertified internist, who diagnosed “left index finger changes of herpes virus infection.”
By decision dated March 3, 2009, the Office denied appellant’s claim on the grounds that
appellant had failed to establish the fact of injury. It found that the evidence was insufficient to
establish that the event had occurred as alleged, and there was no medical evidence that could be
connected to the claimed event.
On March 22, 2010 appellant requested reconsideration, asking that the Office make an
exception to its policy. She contended that someone should have ensured her safety in the
workplace and her supervisor should have investigated the situation. Appellant noted that her
doctor was unable to provide an opinion as to the cause of her condition because he was unable
to examine her infected coworker.
In a March 11, 2010 report, Dr. Zimmerman stated that the report of appellant’s biopsy
showed changes of a herpes virus infection. Clinically, she suspected the infection was due to
herpetic whitlow, a term used to indicate the infection is simply a solitary lesion, like a cold sore
and not the product of shingles. Dr. Zimmerman was unable, however, to state with certainty
that appellant had not experienced an outbreak of shingles. She stated: “Whether you got [the
herpes virus] from a coworker, infection from your own lip, or another person at any other period
in time, I cannot state.”
Appellant also submitted December 4, 2010 notes from Dr. Zimmerman reflecting
irritation of appellant’s left index finger on that date.
The record contains a November 11, 2009 letter from appellant’s representative
informing her that she had one year from the March 3, 2009 decision in which to file a request
for reconsideration. Counsel also advised her to submit new evidence, including a medical
report clearly stating that her diagnosed condition was caused by a coworker.
Appellant submitted an undated publication from the U.S. Army Center for Health
Promotion and Preventive Medicine. The article addressed the symptoms of herpetic whitlow
and how it is contracted.
In an April 14, 2010 decision, the Office denied appellant’s request for reconsideration
on the grounds that it was untimely and failed to establish clear evidence of error.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides that the Secretary of Labor may
review an award for or against payment of compensation at any time on her own motion or on
2

application.2 The Office, through its regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a). To be entitled to a merit review of the Office
decision denying or terminating a benefit, a claimant must file her application for review within
one year of the date of that decision.3 The Board has found that the imposition of the one-year
limitation does not constitute an abuse of the discretionary authority granted the Office under
section 8128(a) of the Act.4
The Office, however, may not deny an application for review solely on the grounds that
the application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.5 The Office regulations and procedure provide that it will reopen a claimant’s
case for merit review, notwithstanding the one-year filing limitation set forth in 20 C.F.R.
§ 10.607(a), if the claimant’s application for review shows clear evidence of error on the part of
the Office.6
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office.7 The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error.8 Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.9 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.10 This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office.11 The Board
makes an independent determination of whether a claimant has submitted clear evidence of error

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.607(a).

4

Supra note 3; Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

5

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

6

Id. at § 10.607(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d
(January 2004). The term clear evidence of error is intended to represent a difficult standard. The claimant must
present evidence which on its face shows that the Office made an error (for example, proof that a schedule award
was miscalculated). Evidence such as a detailed, well-rationalized medical report which, if submitted before the
denial was issued, would have created a conflict in medical opinion requiring further development, is not clear
evidence of error. Id. at Chapter 2.1602.3c.
7

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

8

See Leona N. Travis, 43 ECAB 227, 240 (1991).

9

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

10

See M.L., Docket No. 09-956 (issued April 15, 2010). See Leona N. Travis, supra note 8.

11

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

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on the part of the Office such that it abused its discretion in denying merit review in the face of
such evidence.12
ANALYSIS
The Office properly determined that appellant failed to file a timely application for
review. The one-year time limitation period for requesting reconsideration begins on the date of
the original Office decision and upon any subsequent merit decision.13 As appellant’s March 22,
2010 request for reconsideration was submitted more than one year after the Office’s March 3,
2009 merit decision, it was untimely filed. Consequently, she must demonstrate clear evidence
of error by the Office in the denial of her claim.14
Appellant asked the Office to make an exception to its policy. She contended that
someone should have ensured her safety in the workplace and her supervisor should have
investigated the situation. Appellant noted that her doctor was unable to provide an opinion as to
the cause of her condition because he was unable to examine her infected coworker. These
contentions do not establish error on the part of the Office, but merely repeat arguments
previously raised and considered by the Office. The Board finds that appellant’s contentions are
not persuasive and are insufficient to raise a substantial question concerning the correctness of
the Office’s denial of his claim or to shift the weight of the evidence in her favor.
Moreover, the medical reports submitted by appellant are insufficient to establish clear
error by the Office in denying her claim. Dr. Zimmerman’s December 4, 2008 report does not
address the underlying issue of causal relationship which renders it irrelevant. Her March 11,
2010 report reflects her uncertainty as to the cause of appellant’s diagnosed condition. The term
clear evidence of error is intended to represent a difficult standard. The submission of a detailed,
well-rationalized medical report which, if submitted prior to when the denial was issued, would
have created a conflict in medical opinion requiring further development, is not clear evidence of
error.15 Dr. Zimmerman’s report does not raise a substantial question as to the correctness of the
Office’s decision, nor does it even support appellant’s claim.
The November 4, 2009 letter from appellant’s counsel is irrelevant to the issue at hand
and merely provides evidence that appellant was aware of the medical evidence required to
establish his claim. This evidence does not establish clear error by the Office. Finally, the
article on herpetic whitlow is of no evidentiary value in establishing whether appellant
contracted the herpes condition as a result of the claimed exposure, as the Board has held that
such materials are of general application and are not determinative of whether the specifically

12

Pete F. Dorso, 52 ECAB 424 (2001).

13

20 C.F.R. § 10.607(a); see Robert F. Stone, 57 ECAB 292 (2005).

14

Id. at § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

15

Joseph R. Santos, 57 ECAB 554 (2006).

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claimed condition is related to the particular employment factors alleged by the employee.16
Therefore, appellant has not submitted evidence of clear error.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that her request was untimely and failed to
demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the April 14, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 21, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

16

See Kathy Marshall (Dennis Marshall), 45 ECAB 827 (1994); Dominic E. Coppo, 44 ECAB 484 (1993).

5


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

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

Docket No. 17-0506
Issued: July 26, 2017

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 January 5, 2017 appellant filed a timely appeal from a November 17, 2016 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 has met his burden of proof to establish permanent
impairment of his right upper extremity thereby warranting a schedule award.
FACTUAL HISTORY
On October 4, 2009 appellant, then a 50-year-old mail handler, filed an occupational
disease claim (Form CA-2) alleging an injury to his right upper extremity as a result of
repetitively lifting, pushing, and pulling cases of mail with his right upper extremity. He first
1

5 U.S.C. § 8101 et seq.

became aware of his condition and realized it resulted from his employment on March 2, 2009.
Appellant stopped work on March 1, 2009.
OWCP accepted appellant’s claim for right brachial neuritis and right cubital tunnel
syndrome. It paid disability compensation and placed him on the periodic rolls effective
September 24, 2010.2
On March 16, 2016 appellant filed a claim for a schedule award (Form CA-7).
In a letter dated March 28, 2016, OWCP requested that appellant provide a medical
report from his treating physician with an opinion as to whether appellant had reached maximum
medical improvement (MMI) and whether he had a permanent impairment, utilizing the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides). Appellant was afforded 30 days to submit the additional
evidence.
Appellant submitted an April 6, 2016 report by Dr. Migdonia M. DelosSantos, a
Board-certified family practitioner, who indicated that appellant had been under her care for a
work-related neck and right arm injury sustained on March 2, 2009. Dr. DelosSantos related that
he had undergone extensive physical and medicinal therapy and had reached MMI for his injury.
She reported that the extension of appellant’s right arm was less than 50 degrees before he
experienced pain. Dr. DelosSantos explained that he could no longer complete his duties as a
letter handler because of the pain.
In a handwritten April 11, 2016 letter, appellant noted that he had worked for the
employing establishment for over 30 years and would still be working for them if not for his
condition.
Dr. DelosSantos submitted another report dated September 8, 2016. She related that
appellant had a brachial neuritis injury to his neck and right arm on March 2, 2009, which caused
shooting pains down the right arm. Dr. DelosSantos noted that he had reached MMI. She
reiterated that appellant had less than 50 degrees of pain-free extension in the right arm and that
he could no longer perform his letter handler duties.
In a decision dated November 17, 2016, OWCP denied appellant’s claim for a schedule
award. It found that the medical evidence of record failed to establish a permanent impairment
to his right upper extremity as a result of his accepted conditions.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
2

On May 28, 2015 OWCP issued a decision terminating appellant’s entitlement to compensation for wage-loss
and schedule award effective May 30, 2015 in accordance with 5 U.S.C. § 8106(c)(2) because he refused an offer of
suitable work. On June 4, 2015 appellant requested an oral hearing before an OWCP hearing representative. By
decision dated January 27, 2016, an OWCP hearing representative reversed the May 28, 2015 decision.

2

vested the authority to implement FECA program with the Director of OWCP.3 Section 8107 of
FECA 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.4 FECA, 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 under the law, good administrative practice requires
the use of uniform standards applicable to all claimants. Through its implementing regulations,
OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.5
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).6 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning (ICF),
Disability and Health.8 Under the sixth edition, for upper extremity impairments the evaluator
identifies the impairment class for the diagnosed condition Class of Diagnosis (CDX), which is
then adjusted by grade modifiers based on Functional History (GMFH), Physical Examination
(GMPE), and Clinical Studies (GMCS).9 The net adjustment formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).10
For example, impairment due to cubital tunnel syndrome is evaluated under the scheme
found in Table 15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying
relevant text in section 15.4f of the A.M.A., Guides.11 In Table 15-23, grade modifier levels
(ranging from 0 to 4) are described for the categories test findings, history, and physical findings.
The grade modifier levels are averaged to arrive at the appropriate overall grade modifier level
and to identify a default rating value. The default rating value may be modified up or down by
one percent based on functional scale, an assessment of impact on daily living activities.12
3

See 20 C.F.R. §§ 1.1-1.4.

4

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
5

5 U.S.C.

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

6

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); id. Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6a
(February 2013).
7

Isidoro Rivera, 12 ECAB 348 (1961).

8

A.M.A., Guides, at section 1.3, The ICF, Disability and Health: A Contemporary Model of Disablement.

9

Id. at 385-419.

10

Id. at 411.

11

Id. at 433-50

12

Id. at 448-50.

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ANALYSIS
The issue on appeal is whether appellant established permanent impairment of his right
upper extremity as a result of his accepted right cubital tunnel or brachial neuritis conditions.
The Board finds that appellant has failed to meet his burden of proof to establish a
permanent impairment of his right upper extremity.
To support a schedule award, the file must contain competent medical evidence which
shows that appellant has reached MMI, the date MMI occurred, and which describes the
impairment in sufficient detail for the claims examiner to visualize the character and degree of
impairment. The medical evidence must also provide a percentage of impairment based on a
specific diagnosis, pursuant to the A.M.A., Guides.13 If a claimant requests a schedule award,
but has not submitted such evidence, the claimant should be requested to submit it.14 If the
claimant does not provide an impairment evaluation from his physician when requested, and
there is no indication of permanent impairment in the medical evidence of file, the claims
examiner may proceed with a formal denial of the award.15
The only evidence appellant submitted in support of his schedule award claim were
reports from Dr. DelosSantos. Dr. DelosSantos noted that he had reached MMI and that
extension of his right arm was less than 50 degrees. This evidence, however, did not provide
sufficient information which would allow the claims examiner or the Board to visualize the
character and degree of permanent impairment for either diagnosis of cubital tunnel syndrome or
brachial neuritis. As previously noted, impairment due to cubital tunnel syndrome is evaluated
under the scheme found in Table 15-23 of the A.M.A., Guides. In Table 15-23, grade modifier
levels (ranging from 0 to 4) are described for the categories test findings, history, and physical
findings. Dr. DelosSantos did not provide sufficient findings to rate appellant’s permanent
impairment pursuant to the applicable grade modifiers. Furthermore, she did not attempt to rate
his permanent impairment pursuant to the A.M.A., Guides.16
Accordingly, appellant has not established that he has a permanent impairment for
schedule award purposes. He has, therefore, not met his burden of proof.
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.

13

L.R., Docket No. 16-1796 (issued January 13, 2017).

14

B.R., Docket No. 16-1844 (issued March 8, 2017).

15

Id.

16

See supra note 14. For discussion of rating permanent impairment due to brachial plexus neuritis see P.H.,
Docket No. 13-1760 (issued May 7, 2014).

4

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of his right upper extremity thereby warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the November 17, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 26, 2017
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF THE
SOLICITOR, Arlington, VA, Employer
__________________________________________

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

Docket No. 13-1363
Issued: November 6, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On May 20, 2013 appellant filed a timely appeal from a November 19, 2012 Office of
Workers’ Compensation Programs’ (OWCP) decision which denied her reconsideration request
on the grounds that it was untimely filed and failed to present clear evidence of error. Because
more than 180 days has elapsed between the most recent OWCP merit decision, dated
November 3, 2011, and the filing of this appeal on May 20, 2013, the Board lacks jurisdiction to
review the merits of appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly determined that appellant’s November 2, 2012
request for reconsideration was not timely filed and failed to present clear evidence of error.
FACTUAL HISTORY
On September 11, 2008 appellant, then a 43-year-old office automation clerk, filed a
Form CA-1, traumatic injury claim, alleging that on August 21, 2008, she was lifting heavy

boxes of files into a mail cart and strained her back. OWCP accepted her claim for a lumbar
sprain. Appellant stopped work on August 22, 2008.
Appellant came under the treatment of Dr. Hampton J. Jackson, Jr., a Board-certified
orthopedist, from September 23 to December 4, 2008, for persistent back pain after a lifting
incident at work on August 21, 2008. Dr. Jackson noted spasms at L3-4, tenderness over both
iliolumbar sacroiliac complexes, no clear cut hypoesthesia and restricted range of motion. He
diagnosed lumbar strain and lumbar disc injury superimposed upon degenerative changes in the
lumbar area. Dr. Jackson opined that work duties aggravated appellant’s condition and advised
that she was totally disabled. In an October 13, 2008 electromyogram (EMG), evidence revealed
muscle membrane irritability and left gluteal and lumbar paraspinal muscles at L4-5 distribution.
A November 12, 2008 lumbar magnetic resonance imaging (MRI) scan revealed a small
posterior disc herniation at L5-S1 barely touching the thecal sac.
In a decision dated December 31, 2008, OWCP denied continuation of pay for the period
August 22 to September 22, 2008 on the grounds that the medical evidence did not support
disability for work as a result of her accepted medical condition.
Appellant continued to submit reports from Dr. Jackson dated January 13 to June 23,
2009, who treated her for a herniated disc at L5-S1. Dr. Jackson opined that conservative care
failed and recommended surgery. He diagnosed a sub annular herniated disc at L5-S1 as a result
of her work injury of August 21, 2008 and opined that she was totally disabled.
Thereafter, OWCP referred appellant to a second opinion physician and also to an
impartial medical examiner. On September 11, 2009 it proposed to terminate all benefits finding
that the referee physician established no continuing residuals of her work-related conditions.
Appellant submitted a September 1, 2009 report from Dr. Jackson, who noted appellant
had a series of epidural blocks and was awaiting approval for surgery. Dr. Jackson diagnosed
sprain and strain of the lumbar and herniated disc at L5-S1 and opined that she was totally
disabled.
In a decision dated October 14, 2009, OWCP terminated appellant’s medical and
compensation benefits effective October 11, 2009 finding that the medical evidence established
that she had no continuing residuals of her accepted conditions.
On November 4, 2009 appellant requested an oral hearing.
She submitted a
September 29, 2009 report from Dr. Jackson who diagnosed herniated disc as a result of the
work injury of August 21, 2008. After reviewing appellant’s duties as an automation clerk he
opined that she could not perform this job.
In a decision dated October 23, 2009, OWCP vacated the October 14, 2009 decision
noting that there was a typographical error in the date of the termination of benefits. It issued a
new decision terminating appellant’s medical and compensation benefits effective October 24,
2009 finding that the medical evidence established that she had no continuing residuals of her
accepted conditions. Appellant requested an oral hearing which was held on April 12, 2010.

2

In a decision dated August 5, 2010, OWCP’s hearing representative affirmed the decision
dated October 23, 2009.
On August 4, 2011 appellant requested reconsideration. She submitted reports from
Dr. Jackson dated April 14 and August 13, 2010, who diagnosed herniated disc causally related
to the work incident of August 21, 2008. On June 6, 2011 Dr. Jackson noted that appellant’s
back pain radiated into her legs which increased with activities. He diagnosed chemical
radiculitis. In a July 5, 2011 report, Dr. Jackson noted that appellant’s back pain was partially
improved with previous epidural blocks, rest and medication. He diagnosed herniated disc at
L5-S1 and noted work activities increased her pain and aggravated her condition and she could
not work. In a July 28, 2011 prescription note, Dr. Jackson ordered lumbar spine x-rays and an
MRI scan. He treated appellant on August 3, 2011 for persistent pain, herniated disc and
cytokine tumor necrosis factor-alpha causally related to her August 21, 2008 work injury.
Dr. Jackson opined that she was not fit to return to work. In an August 3, 2011 disability
certificate, he advised that appellant was totally disabled from August 3 to September 6, 2011.
In a September 23, 2011 report, Dr. Jackson treated her for back pain and dysesthesias in the left
leg. He opined that appellant sustained a disc injury at L5-S1 and chemical radiculitis and
recommended a microdiscectomy at L5. Dr. Jackson indicated that she was totally disabled.
Appellant submitted a May 28, 2010 denial of reasonable accommodations from the employing
establishment.
In a decision dated November 3, 2011, OWCP denied modification of the August 5, 2010
decision.
In a November 2, 2012 letter, received on November 6, 2012, appellant requested
reconsideration. She asserted that she had residuals of her lumbar sprain which was documented
by Dr. Jackson. Appellant disagreed with the opinion of referee physician and advised it was not
based on a complete and accurate medical history. She submitted reports from Dr. Jackson dated
June 6 to September 23, 2011, previously of record. Other reports from him dated September 7
and 15, 2011 noted appellant’s symptoms of back pain and giving way of the left leg and knee.
Dr. Jackson noted that an MRI scan revealed a disc herniation which encroached upon the left
foramen. He advised that appellant’s herniated disc and tumor necrosis factor were pain
generators and he recommended surgery. Dr. Jackson opined that she could not work. In a
September 7, 2011 disability certificate, he noted that appellant was totally disabled due to
lumbar disc syndrome. In reports dated October 19 to December 21, 2011, Dr. Jackson opined
that the disc herniation was sustained as a result of the incident of August 21, 2008. He
recommended disc surgery. Dr. Jackson advised that the damaged tissues from the August 21,
2008 injury caused tumor necrosis factor to be released causing chronic neuropathic pain. On
January 19, 2012 he advised that appellant’s condition had not changed but she could return to
work with a lifting restriction. In a January 19, 2012 disability certificate, Dr. Jackson noted that
she was partially disabled from September 6 to January 19, 2012 due to lumbar disc syndrome.
A lumbar spine x-ray dated August 22, 2011 revealed mild facet osteoarthritis of the lumbar
spine with no evidence of instability. A lumbar spine MRI scan revealed degenerative disc
disease at L5-S1, central disc protrusion that displaces the descending right S1 nerve root.
In reports dated September 15 and 20, 2011, Dr. Joseph O’Brien, a Board-certified
orthopedist, treated appellant for severe back and left leg pain. He diagnosed neuroforaminal

3

stenosis, degenerative L5-S1 and lumbago. Dr. O’Brien recommended an anterior lumbar
interbody fusion at L5-S1. He opined that due to appellant’s severe back and leg pain she could
perform sedentary work with restrictions. In a September 15, 2011 sick leave certificate,
Dr. O’Brien advised that she could return to work on September 16, 2011 with a lifting
restriction.
By decision dated November 19, 2012, OWCP denied appellant’s request for
reconsideration as it was untimely and did not establish clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”1
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, section 10.607(a) of the
implementing regulations provide that an application for reconsideration must be received within
one year of the date of OWCP’s decision for which review is sought.2 However, OWCP will
reopen a claimant’s case for merit review, notwithstanding the one-year filing limitation, if the
claimant’s application for review shows clear evidence of error on the part of OWCP in its most
recent merit decision. To establish clear evidence of error, a claimant must submit evidence
relevant to the issue that was decided by OWCP. The evidence must be positive, precise and
explicit and must be manifest on its face that OWCP committed an error.3
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 prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.4
Evidence that does not raise a substantial question concerning the correctness of OWCP’s
decision is insufficient to establish clear evidence of error.5 It is not enough merely to show that
1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.607(a).

3

Id. at 10.607(b); Fidel E. Perez, 48 ECAB 663, 665 (1997).

4

Annie L Billingsley, 50 ECAB 210 (1998).

5

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

4

the evidence could be construed so as to produce a contrary conclusion.6 This entails a limited
review by OWCP of the evidence previously of record and whether the new evidence
demonstrates clear error on the part of OWCP.7 The Board makes an independent determination
as to whether a claimant has submitted clear evidence of error on the part of OWCP.8
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. OWCP’s procedures provide that the one-year time limitation period for
requesting reconsideration begins on the date of the original OWCP decision.9 A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.
As appellant’s November 2, 2012 request for reconsideration, received on November 6, 2012,
was not received within one year after the most recent merit decision of November 3, 2011 it was
untimely.10 Consequently, she must demonstrate clear evidence of error by OWCP in denying
her claim for compensation.
The Board also finds that appellant has not established clear evidence of error on the part
of OWCP. Appellant’s November 2, 2012 letter asserted that she continued to have residuals of
her lumbar sprain which was supported by Dr. Jackson. She disagreed with the opinion of the
referee physician and believed it was not based on complete and accurate medical history. While
appellant addressed her disagreement with OWCP’s termination decision, her general allegations
do not raise a substantial question as to the correctness of OWCP’s decision. OWCP properly
found that her statements of November 2, 2012 did not establish clear evidence of error.
The Board notes that the underlying issue is medical in nature and that, on
reconsideration, appellant submitted additional medical evidence. Appellant submitted reports
from Dr. Jackson dated June 6 to September 23, 2011, previously of record. OWCP had
previously considered this evidence and she, in submitting these documents, did not explain how
this evidence was positive, precise and explicit in manifesting on its face that OWCP committed
an error in denying her claim for compensation. It is not apparent how resubmission of this
evidence is sufficient to raise a substantial question as to the correctness of OWCP’s decision.

6

Id.

7

Id.

8

Cresenciano Martinez, 51 ECAB 322 (2000); Thankamma Mathews, 44 ECAB 765, 770 (1993).

9

20 C.F.R. § 10.607(a).

10

In computing the time for requesting reconsideration, the date of the event from which the designated period of
time begins to run shall not be included when computing the time period. However, the last day of the period so
computed shall be included unless it is a Saturday, a Sunday or a legal holiday. One year from November 3, 2011 is
Saturday, November 3, 2012. The time for requesting reconsideration of OWCP’s November 3, 2011 decision
began to run on November 4, 2011, and thus would have expired on November 3, 2012, had this date not been a
Saturday. The next business day was Monday, November 5, 2012. As appellant’s request for reconsideration was
not received until November 6, 2012, it was not timely. See Debra McDavid, 57 ECAB 149 (2005); John B.
Montoya, 43 ECAB 1148 (1992).

5

Other reports from Dr. Jackson dated September 7 and 15, 2011 noted appellant’s
symptoms and disability status. In reports dated October 19 to December 21, 2011, Dr. Jackson
noted appellant’s complaints of back pain and opined that the disc herniation was sustained as a
result of the incident of August 21, 2008. He opined that the damaged tissues of August 21,
2008 caused tumor necrosis factor to be released causing chronic neuropathic pain. On
January 19, 2012 Dr. Jackson returned appellant to work subject to a lifting restriction. Even
though he noted that she had symptoms of her lumbar sprain sustained in the workplace accident,
he did not specifically explain the reasons why she had continuing residuals causally related to
her accepted employment condition of sprain of the back and lumbar region. Rather, Dr. Jackson
attributes appellant’s condition to herniated disc at L5-S1 and tumor necrosis factor, conditions
not accepted by OWCP as work related. These reports are not rationalized as the physician does
not explain the reasons why any residuals were caused by the accepted lumbar sprain. This
evidence is not so positive, precise and explicit that it manifests on its face that OWCP
committed an error. Thus, these reports are insufficient to discharge appellant’s burden of proof.
Appellant submitted reports from Dr. O’Brien dated September 15 and 20, 2011, who
diagnosed neuroforaminal stenosis, degenerative L5-S1 and lumbago and recommended surgery
at L5-S1. Dr. O’Brien opined that she could return to work on September 16, 2011. Although
he noted that appellant had symptoms of low back and leg pain, he did not specifically explain
the reasons why she had any employment-related residuals causally related to her accepted low
back sprain. Rather, Dr. O’Brien attributes her symptoms and disability to neuroforaminal
stenosis, degenerative L5-S1 and lumbago, all conditions that were not accepted as related to the
August 21, 2008 work injury. Thus, these reports are insufficient to discharge appellant’s burden
of proof.
The Board notes that clear evidence of error is intended to represent a difficult standard.
The submission of a detailed well-rationalized medical report which, if submitted before the
denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error.11 Other medical evidence submitted by appellant did
not specifically address whether she had residuals of her accepted work injury. This evidence is
not so positive, precise and explicit that it manifests on its face that OWCP committed an error.
Appellant has not established clear evidence of error by OWCP in its November 19, 2012
decision.
CONCLUSION
The Board finds that appellant’s request for reconsideration dated November 2, 2012 was
untimely filed and did not demonstrate clear evidence of error.

11

D.G., 59 ECAB 455 Docket No. 08-137 (issued April 14, 2008); Federal (FECA) Procedure Manual, Part 2 -Claims, Reconsiderations, Chapter 2.1602.3c (January 2004).

6

ORDER
IT IS HEREBY ORDERED THAT the November 19, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 6, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.D., Appellant
and
U.S. POSTAL SERVICE, ARLINGTON POST
OFFICE, Baltimore, MD, Employer
__________________________________________

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

Docket No. 19-1405
Issued: April 9, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On May 29, 2019 appellant filed a timely appeal from a March 7, 2019 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. 2
ISSUE
The issue is whether appellant has met her burden of proof to establish a left foot condition
causally related to the accepted July 10, 2018 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the March 7, 2019 decision, 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 evidence for
the first time on appeal. Id.

FACTUAL HISTORY
On July 30, 2018 appellant, then a 25-year-old city letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on July 10, 2018 she was walking and felt a sharp pain shooting
through her left foot while in the performance of duty. The employing establishment noted that
she stopped work on July 10, 2018 and had not returned.
In a July 11, 2018 hospital record, bearing an illegible signature, it was noted that appellant
should be held off work from July 11 through 17, 2018 and provided work restrictions of no
standing or walking.
In a July 12, 2018 narrative statement, appellant noted that as she was walking down the
street at 12:00 p.m. on July 10, 2018 she felt a sharp pain shooting through her left foot. She
continued on her route and reported the incident on July 12, 2018.
A July 19, 2018 duty status report (Form CA-17) from a podiatry specialist with an illegible
signature indicated that appellant was walking when she experienced pain in her left foot. The
report indicated “rule out stress fracture and tend[i]nitis” in response to the “diagnosis due to
injury” and recommended that she not resume work. Appellant’s restrictions were also provided.
In a July 30, 2018 narrative statement, the employing establishment controverted
appellant’s claim.
In an August 14, 2019 development letter, OWCP informed appellant that her claim
initially appeared to be a minor injury that resulted in minimal or no lost time from work and that
continuation of pay was not controverted by the employing establishment, and thus limited
expenses had therefore been authorized. However, a formal decision was now required. OWCP
informed appellant that additional factual and medical evidence was required in support of her
claim. It advised her of the type of factual and medical evidence needed to establish her claim and
provided a questionnaire for her completion. OWCP afforded appellant 30 days to submit the
necessary evidence.
OWCP subsequently received an August 13, 2018 attending physician’s report (Form
CA-20), wherein Dr. Jerry Katz, a Board-certified podiatry specialist, indicated that appellant had
pain in her left foot and noted that he provided her with a surgical shoe, a cane, a walker, and
stepping padding. Dr. Katz noted that he first examined her on July 16, 2018 and that she could
not return to work until August 29, 2018. He also noted that there was no history or evidence of a
concurrent or preexisting injury, and that on August 9, 2018 appellant had a positive bone scan.
In an accompanying August 13, 2018 Form CA-17 report, Dr. Katz noted that appellant
was walking when she felt a sharp pain in her left foot. His clinical findings included a stress
fracture on the second metatarsal of her left foot, which he noted was due to her injury. Appellant
was told to not resume work, but Dr. Katz also allowed “limited duty within restrictions” and listed
her work restrictions.
In an August 13, 2018 report, Dr. Katz indicated that he diagnosed appellant with a stress
fracture of the second metatarsal of her left foot and related that it was caused by her employment,
as it involved weight bearing. He indicated that she could not return to work until August 29, 2018.
2

Dr. Katz noted limited weight bearing as a work restriction for appellant and that her bone scan
was positive.
On August 24, 2018 appellant completed OWCP’s development questionnaire and signed
the statement of certification. She noted that she had not sustained any other injury between the
date of her alleged employment injury and the date she first reported it, and she explained that she
first consulted with Krista Brown, a nurse practitioner, on July 11, 2018 regarding her injury.
Appellant indicated that she elevated her foot on and off at home and that she had no similar
disability or symptoms prior to her alleged injury.
By decision dated September 24, 2018, OWCP denied appellant’s traumatic injury claim
finding that the evidence of record was insufficient to establish causal relationship between a
diagnosed medical condition and the accepted July 10, 2018 employment incident.
OWCP subsequently received additional evidence. An August 9, 2018 bone scan report
by Dr. Pavni Patel, a Board-certified nuclear medicine specialist, noted that appellant experienced
atraumatic left foot discomfort. Her findings included focal increased blood pool uptake in the
region of the second metatarsal of the left foot. Dr. Patel concluded that appellant had an occult
fracture on the head of her second metatarsal of the left foot.
In an October 4, 2018 report, Dr. Katz indicated that appellant complained of a painful left
extremity and asked to wear a boot. He conducted a physical examination which revealed palpable
tenderness in the second metatarsal on her left foot. Appellant stood in rear-foot neutral, had a
decreased medial longitudinal arch, and her gait was heel to toe with moderate compensatory
pronation. Oblique, dorsal-plantar and lateral radiographs of her left foot revealed decreased bone
stock, and August 9, 2018 bone scan findings were consistent with a stress fracture of her left foot.
Dr. Katz noted that appellant had been doing well in a cam walker, which she used from July 26
until September 10, 2018. Appellant had transitioned into a surgical shoe with supportive shoegear and a temporary orthotic, and in the past several weeks she had increased her weight-bearing
and job-related activities. Dr. Katz recommended that she go back to using her cam walker. He
opined that, as appellant was relatively sedentary at the time of her original symptoms, she suffered
a work-related injury due to the weight-bearing activities necessitated by her job.
In an October 4, 2018 Form CA-17 report, Dr. Katz provided new work restrictions and
released appellant to work on September 10, 2018. On October 10, 2018 the employing
establishment offered her a modified assignment, but she rejected the offer.
In an October 12, 2018 medical report, Dr. Katz indicated that appellant presented with
pain in her left foot which she stated was worsening because she was using it more. He mentioned
that a July 10, 2018 bone scan was positive for a stress fracture of her second metatarsal in her left
foot. Dr. Katz discussed various treatment options with appellant and recommended using a cam
walker as needed.
On November 6, 2018 appellant requested reconsideration.
By decision dated March 7, 2019, OWCP denied modification of its September 24, 2018
decision, finding that the evidence of record was insufficient to establish causal relationship.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish 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 timely filed within the applicable
time limitation of FECA,4 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established. 7 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. 8 Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury. 9
Rationalized medical opinion evidence is required to establish causal relationship. The
opinion of the physician must be based on a complete factual and medical background, 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 incident. 10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a left foot
condition causally related to the accepted July 10, 2018 employment event.
In support of her claim appellant submitted reports from Dr. Katz. On an August 13, 2018
Form CA-17 report, Dr. Katz noted that appellant was walking when she felt a sharp pain in her
left foot. He diagnosed a stress fracture on the second metatarsal of her left foot caused by her
3

Supra note 1.

4

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7
R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2009);
Bonnie A. Contreras, 57 ECAB 364 (2006).
8

S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

9

A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008);
D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 7.
10

S.S., Docket No. 18-1488 (issued March 11, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

4

employment. Dr. Katz did not explain, however, how appellant’s walking at work caused her
diagnosed left foot stress fracture. To be of probative medical value, a medical opinion must
explain how, physiologically, the mechanism of injury was sufficient to have caused or contributed
to the diagnosed conditions. 11
In an August 13, 2018 report, Dr. Katz noted a diagnosis of stress fracture on the second
metatarsal of appellant’s left foot and opined that it was caused by her employment, as it involved
weight bearing. The Board finds that this opinion by him is conclusory in nature as it lacked
specificity and detail regarding her weight-bearing activities and how or why they were sufficient
to have caused or aggravated her diagnosed left foot condition. The Board has held that a
conclusory medical opinion is insufficient to establish causal relationship. 12 Thus, this report is
also insufficient to meet appellant’s burden of proof. 13
Similarly, in his October 4 and 12, 2018 reports, Dr. Katz noted that appellant presented
with pain in her left foot. He conducted a physical examination and diagnosed a stress fracture in
her left foot. Dr. Katz opined that, as appellant was relatively sedentary at the time of her original
symptoms, she suffered a work-related injury due to the weight-bearing activities necessitated by
her job. He did not, however, provide a pathophysiological explanation as to how the employment
incident caused or contributed to the diagnosed conditions. 14 Neither the mere fact that, a disease
or condition manifests itself during a period of employment, nor the belief that the disease or
condition was caused or aggravated by the accepted employment incident is sufficient to establish
causal relationship.15 The reports OWCP received from Dr. Katz are therefore insufficient to
establish appellant’s claim.
In support of her claim, appellant submitted July 11, 2018 hospital records and a July 19,
2018 Form CA-17 report, both of which contained illegible signatures. The Board has held a
report that is unsigned or bears an illegible signature lacks proper identification and lacks probative
value as medical evidence.16
Appellant also submitted an August 9, 2018 bone scan report by Dr. Patel. The Board has
held, however, that diagnostic studies standing alone lack probative value as they do not address
whether the employment incident caused any of the diagnosed conditions. 17

11

A.W., Docket No. 19-0327 (issued July 19, 2019).

12

J.H., Docket No. 19-1435 (issued February 6, 2020).

13

Id.

14

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

15

J.R., Docket No. 18-0853 (issued March 9, 2020).

16

Z.G., Docket No. 19-0967 (issued October 21, 2019).

17

N.B., Docket No. 19-0221 (issued July 15, 2019).

5

The Board finds that the record lacks rationalized medical evidence establishing causal
relationship between appellant’s left foot condition and the July 10, 2018 accepted employment
incident. Thus, appellant has not met her 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 her burden of proof to establish a left foot
condition causally related to the accepted July 10, 2018 employment event.
ORDER
IT IS HEREBY ORDERED THAT the March 7, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 9, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.S., Appellant
and
DEPARTMENT OF THE ARMY,
EXPEDITIONARY CONTRACTING
COMMAND, Camp Arifjan, Kuwait, Employer
__________________________________________

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

Docket No. 19-1572
Issued: March 12, 2020

Case Submitted on the Record

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

JURISDICTION
On July 18, 2019 appellant, through counsel, filed a timely appeal from an April 10, 2019
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 her burden of proof to establish a left knee condition
causally related to the accepted October 22, 2017 employment incident.
FACTUAL HISTORY
On December 19, 2017 appellant, then a 56-year-old quality assurance specialist, filed a
traumatic injury claim (Form CA-1) alleging that on October 22, 2017 she tripped over debris and
fell face down in the employing establishment’s Outside Dining Facility parking lot when walking
with a coworker during her lunchbreak while in the performance of duty. The employing
establishment controverted the claim, asserting that the alleged injury occurred during her
lunchbreak and that evidence was not provided to support an employment-related injury or
entitlement to continuation of pay. No evidence was received with the claim.
In a December 27, 2017 development letter, OWCP requested that appellant provide
additional factual and medical information in support of her claim, including a report from her
attending physician which addressed causal relationship between a diagnosed condition and the
claimed October 22, 2017 employment incident. It afforded her 30 days to submit the necessary
evidence.
In response, appellant submitted a November 22, 2017 witness statement from D.H.
attesting to her trip and fall on October 22, 2017.
A copy of appellant’s chronological record of medical care, with a date range from
September 19, 2016 through November 13, 2017, was also provided. In a November 6, 2017 entry,
Dr. Jason Alisangco, Board-certified in family practice and sports medicine, reported the history
of injury as “[patient] states she tripped two weeks ago, but did not feel pain until a week later.”
He noted that appellant was diagnosed with arthritis two months prior. Dr. Alisangco indicated
that she had abnormal movement of all extremities, normal motor strength, and no weakness
observed of the left knee. Examination findings of the left knee revealed effusion and tenderness
on palpation joint capsule. Dr. Alisangco diagnosed osteoarthritis of the knee with symptomatic
knee effusion. Treatment consisted of aspiration with steroid.
After a November 6, 2017 steroid injection, appellant developed increased pain and
inability to bear weight or flex her knee. The record reflects that she was admitted to the military
hospital on November 13, 2017 at the employing establishment. In a partially redacted
November 10, 2017 memorandum, Maj. (Dr.) Jeremy K. Rush, a Board-certified orthopedic
surgeon, indicated that appellant was admitted for left septic knee arthritis and that she required
evacuation. He opined that she would not be fit for duty for four to six months. On November 18,
2017 appellant was admitted to the hospital in Landstuhl, Germany and was released on
November 27, 2017. She was then transported to Walter Reed Hospital in Bethesda, Maryland.
By decision dated January 29, 2018, OWCP accepted that the October 22, 2017
employment incident occurred while in the performance of duty as alleged. However, it denied
her claim finding that the medical evidence of record was insufficient to establish that her
diagnosed left knee osteoarthritis, synovitis, and sepsis conditions were caused or aggravated by
the accepted October 22, 2017 employment incident.
2

On January 11, 2019 appellant, through counsel, requested reconsideration.
Medical records were received consisting of laboratory and diagnostic tests results, medical
procedure notes, and counseling records related to appellant’s treatment for septic arthritis.
In a December 31, 2018 report, Dr. Joshua B. Macht, a Board-certified internist, noted his
December 20, 2018 review of appellant’s medical records. He diagnosed left knee sprain injury
treated with left knee injection complicated by septic arthritis. Dr. Macht opined that appellant
sustained an acute left knee sprain injury when she fell on October 22, 2017 as her medical records
documented the onset of swelling and pain a few days later. He noted that appellant ultimately
sought medical attention and was diagnosed with a symptomatic left knee effusion and had an
aspiration and injection procedure. Dr. Macht noted that procedure was complicated by septic
arthritis and she had to undergo additional treatment as a result. He indicated that appellant also
has a documented history of left knee osteoarthritis. Dr. Macht further opined that appellant
suffered an acute exacerbation of her chronic left knee symptoms when she fell on
October 22, 2017. He explained that the mechanism of appellant losing balance and falling, and
her attempt to maintain her balance, put an unexpected strain on the musculoligamentous structures
of the knee. This unexpected stretching of the tendons, ligaments, and muscle tissue of the left
knee joint structure and the stretching beyond its normal functional range of motion led to pain,
swelling, inflammation, and potentially tearing of the involved structures. Dr. Macht noted that
appellant had presented for examination with evidence of this mechanism of injury on
November 6, 2017 when she was found to have a knee effusion (swelling of the knee joint) and
acute pain. He opined that this was the direct result of the October 22, 2017 strain injury and, per
her documented history, she did not have this degree of pain or swelling with the left knee prior to
the October 22, 2017 accident. Dr. Macht therefore concluded that appellant suffered an acute left
knee sprain injury with exacerbation of her chronic left knee symptoms. He also opined that
appellant’s subsequent diagnosis of left knee septic arthritis was also causally related to the
October 22, 2017 accident as it developed as a post-procedural complication incurred during the
treatment of the October 22, 2017 injury.
By decision dated April 10, 2019, OWCP denied modification of its January 29, 2018
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish 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 timely filed within the applicable
time limitation period of FECA,3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related

3
S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).

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to the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.6 There are two
components that must be considered in conjunction with one another. The first component is
whether the employee actually experienced the employment incident that allegedly occurred.7 The
second component is whether the employment incident caused a personal injury.8
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. The opinion of
the physician must be based on a complete factual and medical background of the claimant, 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 claimant.9 The absence of a physical examination by a physician may affect the
weight to be a given medical report, but does not necessarily render it incompetent as medical
evidence.10 In cases where the sole issue is one of causal relationship, a physical examination is
unnecessary as it would be of no consequence and would only result in additional delay and cost.11
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship, therefore, involves aggravation, acceleration, or precipitation,
the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.12
ANALYSIS
The Board finds that this case is not in posture for decision.

4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

See C.C., Docket No. 18-1453 (issued January 28, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
6

S.S., Docket No. 18-1488 (issued March 11, 2019); T.H., 59 ECAB 388, 393-94 (2008).

7

E.M., Docket No. 18-1599 (issued March 7, 2019); Elaine Pendleton, 40 ECAB 1143 (1989).

8

E.M., id.; John J. Carlone, 41 ECAB 354 (1989).

9

See E.J., Docket No. 09-1481 (issued February 19, 2010).

10

See W.C., Docket No. 18-1386 (issued January 22, 2019); M.M., Docket No. 17-0438 (issued March 13, 2018);
C.B., Docket No. 17-0726 (issued July 3, 2017); Melvina Jackson, 38 ECAB 443, 447-52 (1987).
11

See Sherry Shreiber, Docket No. 04-1966 (issued January 24, 2005) (the Board held that the fact that an OWCPselected second opinion physician had not physically examined the claimant was of no consequence as the diagnosis
had already been established, and thus the only question was causal relationship).
12
Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013). See
R.D., Docket No. 18-1551 (issued March 1, 2019).

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In his December 31, 2018 report, Dr. Macht opined that appellant suffered an acute sprain
injury of the left knee and an acute exacerbation of her chronic left knee symptoms when she fell
on October 22, 2017. He provided a proper factual and medical history of injury, noting that
review of her medical records documented the onset of swelling and pain a few days later. This
was collaborated by Dr. Alisangco’s November 6, 2017 entry wherein he reported that appellant
felt pain about a week after she tripped. Dr. Macht further noted that appellant had a history of
left knee osteoarthritis and, per her documented history, she did not have this degree of pain or
swelling with the left knee prior to the October 22, 2017 employment incident. He noted a
diagnosis of symptomatic left knee effusion and that she underwent an aspiration and injection
procedure, which was complicated by septic arthritis. Dr. Macht explained that, when appellant
attempted to maintain her balance and avoid falling to the ground, the mechanism of losing balance
when falling put an unexpected strain on the musculoligamentous structures of the knee and that
unexpected stretching of the tendons, ligaments, and muscle tissue of the left knee joint structure
led to pain, swelling, inflammation, and potentially tearing of the involved structures. Dr. Macht
indicated that she presented with evidence of this mechanism of injury on November 6, 2017 when
she was found to have a knee effusion (swelling of the knee joint) and acute pain. He concluded
that appellant suffered an acute left knee sprain injury with exacerbation of her chronic left knee
symptoms as a result of the October 22, 2017 injury. Dr. Macht also opined that the subsequent
diagnosis of left knee septic arthritis was also causally related to the accepted October 22, 2017
employment incident as it developed as a post-procedural complication incurred during the
treatment of the October 22, 2017 injury.
The Board finds that the December 31, 2018 report of Dr. Macht is sufficient to require
further development of the medical evidence to see that justice is done.13 Dr. Macht is a Boardcertified physician in internal medicine who is qualified in his field of medicine to render
rationalized opinions on the issue of causal relationship and he provided a comprehensive and
convincing review of the medical record and case history. It is further found that he provided a
comprehensive and convincing pathophysiological explanation as to how the mechanism of the
accepted employment trip and fall was sufficient to cause the conditions of an acute sprain injury
of the left knee and acute exacerbation of her chronic left knee symptoms. The Board has long
held that it is unnecessary that the evidence of record in a case be so conclusive as to suggest causal
connection beyond all possible doubt. Rather, the evidence required is only that necessary to
convince the adjudicator that the conclusion drawn is rational, sound, and logical.14 Accordingly,
Dr. Macht’s medical opinion is well rationalized and logical and is therefore sufficient to require
further development of appellant’s claim.15
It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares

13

J.H., Docket No. 18-1637 (issued January 29, 2020); D.S., Docket No. 17-1359 (issued May 3, 2019); X.V.,
Docket No. 18-1360 (issued April 12, 2019); C.M., Docket No. 17-1977 (issued January 29, 2019); William J.
Cantrell, 34 ECAB 1223 (1983).
14

W.M., Docket No. 17-1244 (issued November 7, 2017); E.M., Docket No. 11-1106 (issued December 28, 2011);
Kenneth J. Deerman, 34 ECAB 641, 645 (1983) and cases cited therein).
15

See J.H., supra note 13.

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responsibility in the development of the evidence.16 OWCP has an obligation to see that justice is
done.17
On remand OWCP shall refer appellant to an appropriate specialist, along with the case
record and a statement of accepted facts. Its referral physician shall provide a well-rationalized
opinion as to whether appellant’s diagnosed left knee conditions are causally related to or
aggravated by the accepted October 22, 2017 employment incident. After such further
development of the case record as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 10, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: March 12, 2020
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

16

See id. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219,
223 (1999).
17

See B.C., Docket No. 15-1853 (issued January 19, 2016).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New Orleans, LA, Employer
__________________________________________

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

Docket No. 08-1619
Issued: February 6, 2009

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 May 19, 2008 appellant filed a timely appeal from a February 22, 2008 decision of
the Office of Workers’ Compensation Programs denying her claim for a schedule award for
impairment to her right upper extremity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant has any permanent impairment to her right upper
extremity causally related to her October 19, 2005 employment injury.
FACTUAL HISTORY
On July 9, 1998 appellant, then a 42-year-old letter sorting machine operator and
distribution clerk, filed an occupational disease claim alleging that beginning on March 10, 1987
she developed bilateral carpal tunnel syndrome due to the repetitive motions of her hands and
wrists required while operating the letter sorting machine. On November 5, 1998 the Office
accepted her claim for bilateral carpal tunnel syndrome. She underwent a right carpal tunnel
release on January 14, 1999 and a left carpal tunnel release on April 8, 1999. Appellant returned

to work in a light-duty capacity on June 21, 1999. On March 31, 2000 the Office granted her a
schedule award for 10 percent impairment of each upper extremity, a total of 20 percent, from
December 6, 1999 to February 15, 2001 or 62.40 weeks.1
On April 26, 2006 appellant filed a new claim for a right shoulder injury. The claim was
accepted for right shoulder impingement syndrome, a right shoulder disorder of the bursae and
tendons and a cervical sprain and strain.2
On November 17, 2006 appellant underwent surgery consisting of right shoulder
arthroscopic repair of a superior labrum anterior to posterior (SLAP) lesion and subacromial
decompression debridement. There was no significant evidence of impingement at the outlet and
no distal clavicle excision was required. The operative report indicated no evidence of a rotator
cuff tear. Appellant returned to full-time limited duty on February 27, 2007. On September 29,
2007 she filed a claim for a schedule award for impairment to her right shoulder. An October 5,
2007 electromyogram of appellant’s right shoulder was reported as normal.
In an October 25, 2007 report, Dr. Gerald L. Murtagh, an attending Board-certified
orthopedic surgeon, stated that appellant was treated for a right shoulder injury and underwent
arthroscopic surgery on November 17, 2006. Appellant was performing her regular job and had
reached maximum medical improvement following her surgery one year previously.
Dr. Murtagh noted that appellant occasionally had mild aching and discomfort in her right
shoulder and occasional difficulty with repetitive use in the forward flexed, overhead position.
Appellant did not have any significant pain and was not taking any ongoing medications for her
condition. Dr. Murtagh stated that appellant had full range of motion of the right shoulder and
no evidence of atrophy or ankylosis. He stated that she had five percent impairment of her right
shoulder but did not explain how he determined her impairment.3
On December 6, 2007 Dr. Ronald Blum, an Office medical adviser, stated that
Dr. Murtagh’s October 25, 2007 report was not sufficient to establish whether appellant had any
right shoulder impairment. He recommended that the Office refer appellant to a Board-certified
medical specialist for an impairment evaluation with findings on physical examination and
reference to the applicable sections of the A.M.A., Guides.
On January 2, 2008 the Office referred appellant, together with a statement of accepted
facts and copies of medical records to Dr. Christopher E. Cenac, a Board-certified orthopedic
surgeon, for an impairment rating of her right shoulder.
1

The Federal Employees’ Compensation Act provides for 312 weeks of compensation for 100 percent loss or loss
of use of an upper extremity. 5 U.S.C. § 8107(c)(1). Multiplying 312 weeks by 10 percent equals 31.20 weeks of
compensation for each upper extremity or a total of 62.40 weeks.
2

This is a combined case which includes OWCP File No. xxxxxx320, accepted for bilateral carpal tunnel
syndrome and OWCP File No. xxxxxx800, accepted for right shoulder impingement syndrome, a right shoulder
disorder of the bursae and tendons and a cervical sprain and strain, sustained on October 19, 2005.
3

The record shows that in an October 12, 2007 letter the Office asked Dr. Murtagh to provide an impairment
rating with pertinent objective findings and reference to applicable sections of the American Medical Association,
Guides to the Evaluation of Permanent Impairment. Dr. Murtagh did not provide such a rating.

2

In a report dated January 21, 2008, Dr. Cenac reviewed the medical history and provided
findings on physical examination. Appellant had normal range of motion in her right shoulder,
normal sensation to pinprick and light touch in her shoulder and hands. Dr. Cenac measured
appellant’s right shoulder forward elevation (flexion) of 140 degrees, abduction of 140 degrees,
adduction of 30 degrees, external rotation of 90 degrees and internal rotation of 40 degrees. He
did not provide a measurement for right shoulder extension. Measurements of both shoulders
above and below the elbow were equal and symmetrical. There was no shoulder atrophy. Reflex
testing was normal in her right shoulder. An x-ray revealed minimal postsurgical changes
involving the acromioclavicular (AC) joint. There was no hardware in appellant’s right shoulder
from her surgery, all joint surfaces were intact and there was no evidence of arthritic changes.
Dr. Cenac stated that, based on the fifth edition of the A.M.A., Guides, appellant had no
anatomical impairment or residuals due to her October 19, 2005 right shoulder injury.
In a February 19, 2008 report, Dr. Blum noted that Dr. Cenac found normal range of
motion in appellant’s right shoulder and determined that there was no anatomical impairment as
a result of her October 19, 2005 employment injury. Dr. Blum stated that she had no right
shoulder impairment based on Dr. Cenac’s evaluation.
By decision dated February 22, 2008, the Office denied appellant’s claim on the grounds
that the evidence failed to establish that she had any upper extremity impairment causally related
to her October 19, 2005 accepted shoulder conditions.4
LEGAL PRECEDENT
The schedule award provision of the Act5 and its implementing regulations6 set forth a
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, the Act 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 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. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7
ANALYSIS
In a report dated January 21, 2008, Dr. Cenac stated that appellant had normal range of
motion in her right shoulder, normal sensation to pinprick and light touch in her shoulder and
hands. He measured right shoulder flexion of 140 degrees, abduction of 140 degrees, adduction
4

Subsequent to the February 22, 2008 Office decision, additional evidence was associated with the file. The
Board’s jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See
20 C.F.R. § 501.2(c). The Board may not consider this evidence for the first time on appeal.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

A.M.A., Guides (5th ed. 2001).

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of 30 degrees, external rotation of 90 degrees and internal rotation of 40 degrees. Measurements
of both shoulders above and below the elbow were equal and symmetrical. There was no
shoulder atrophy. Reflex testing was normal in appellant’s right shoulder. An x-ray revealed
minimal postsurgical changes involving the AC joint. Dr. Cenac stated that, based on the fifth
edition of the A.M.A., Guides, appellant had no anatomical impairment or residuals due to her
October 19, 2005 right shoulder injury. The Board finds that his evaluation is insufficient to
establish appellant’s right shoulder impairment. Although Dr. Cenac stated that appellant had
normal range of motion in her right shoulder, the A.M.A., Guides provides for impairment based,
on some of his range of motion findings. According to Figure 16-40 at page 476 of the A.M.A.,
Guides and 140 degrees of flexion equals three percent impairment. Figure 16-43 at page 477
provides for two percent impairment for 140 degrees of abduction and one percent for 30 degrees
of adduction. There is no impairment for 90 degrees of external rotation according to Figure 1646 at page 479. However, Figure 16-46 provides that 40 degrees of internal rotation equals three
percent impairment. Additionally, Dr. Cenac did not provide a measurement for appellant’s right
shoulder extension which is required for shoulder impairment rating based on the A.M.A.,
Guides. Due to these deficiencies, his January 21, 2008 evaluation is not sufficient to establish
appellant’s right shoulder impairment. The case will be remanded for further development on
the issue of appellant’s entitlement to a schedule award for right shoulder impairment.
CONCLUSION
The Board finds that this case is not in posture for a decision. On remand the Office
should obtain a thorough examination and evaluation of appellant’s right shoulder and an
impairment rating based on complete physical findings and the applicable sections of the
A.M.A., Guides. After such further development as the Office deems necessary, it should issue
an appropriate decision on appellant’s claim for a schedule award for her right shoulder.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 22, 2008 is set aside and the case is remanded for
further action consistent with this decision of the Board.
Issued: February 6, 2009
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

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