United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
A.J., Appellant
and
SMITHSONIAN INSTITUTION, ANACOSTIA
MUSEUM, Suitland, MD, Employer
_________________________________________

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

Docket No. 11-381
Issued: October 4, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 7, 2010 appellant filed a timely appeal from the June 16, 2010 Office of
Workers’ Compensation Programs’ (OWCP) merit decision. Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues on appeal are: (1) whether OWCP properly terminated appellant’s
compensation benefits effective March 19, 2009; and (2) whether appellant met her burden to
establish that she had any disability after March 19, 2009 causally related to the February 12,
2008 employment injury.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 12, 2008 appellant, then a 24-year-old security guard, filed a traumatic
injury claim alleging that on that date, she slipped on an icy sidewalk and hurt her back in the
performance of duty. She stopped work on that date. OWCP accepted the claim for cervical
strain, neck sprain and multiple contusions. Appellant was placed on the periodic rolls and
received compensation benefits.
Appellant had received treatment from Dr. George H. Drakes, a Board-certified internist.
In a March 20, 2008 report, Dr. Drakes diagnosed cervical sprain, lumbosacral sprain/strain,
myofascial pain and fibromyalgia. He requested physical therapy along with other treatment
comprised of whirlpool, ultrasound, stretching, and hot and cold packs. A February 14, 2008
x-ray read by Dr. Verne F. Kemerer, Jr., a Board-certified diagnostic radiologist, revealed a
normal left hand, cervical spine and left elbow. A June 3, 2008 magnetic resonance imaging
(MRI) scan of the cervical spine, read by Dr. Nina J. Gordon, a diagnostic radiologist, showed
reversal of normal cervical lordosis and desiccation at C3-C4. Dr. Kemerer noted that the
lordosis reversal might be voluntary or due to muscle spasm. There was no significant spinal
canal or neural foraminal stenosis or cervical abnormalities. On July 22, 2008 Dr. Drakes
performed a medial branches block at the bilateral C4-C5, C5-C6 and C6-C7 levels. He
diagnosed cervical facet syndrome and cervical sprain.
In a July 30, 2008 report, Dr. Nelson Henry, a Board-certified family practitioner, noted
appellant’s history and diagnosed other disorders of the cervical region, thoracic or lumbosacral
neuritis or radiculitis. He referred appellant for physical therapy and advised that she would be
disabled until October 12, 2008.
On September 16, 2008 OWCP referred appellant to Dr. Robert F. Draper, a Boardcertified orthopedic surgeon, for a second opinion examination. In a September 25, 2008 report,
Dr. Draper described appellant’s history of injury and treatment, noting findings of diagnostic
testing. He set forth his examination findings that included normal upper extremity motor
strength, normal reflexes and normal light touch sensation in cervical spine dermatomes.
Dr. Draper noted cervical range of motion findings and advised that there was no cervical spine
muscle spasm or tenderness. He noted that there was no tenderness or deformities of the thoracic
spine and she had a normal lumbar spine. Dr. Draper diagnosed a cervical strain and contusion
of the left upper extremity to include left hand and left elbow. He advised that, while appellant
clearly had soft tissue injuries as documented, she had recovered. Dr. Draper explained that his
examination basically revealed no objective findings. He indicated that disability would have
lasted 30 days from the date of the accident. Dr. Draper advised that appellant had no residuals,
a negative physical examination and negative studies. He opined that appellant reached
maximum medical improvement and could return to her full-duty position for eight hours per
day. Dr. Draper stated that she had no physical limitations.
In an October 7, 2008 report, Dr. Jean-Marc Voyadzis, a Board-certified neurosurgeon,
noted appellant’s history of injury and treatment and examined appellant. His findings included
normal cervical and lumbar range of motion. Dr. Voyadzis indicated there was some mild
lumbar and cervical tenderness. He indicated that he had reviewed the diagnostic tests of the
cervical spine from June 3, 2008. Dr. Voyadzis noted that there was no evidence of significant

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degenerative disc disease, no evidence of canal or foraminal stenosis and no evidence of spinal
cord or nerve root impingement, no evidence of degenerative disc disease, disc fracture or
subluxation and a slight reversal of the normal cervical lordosis. He indicated that appellant did
not need surgery but he opined that she “was suffering from cervical and lumbar strain as a result
of the fall back in February.” Dr. Voyadzis advised that appellant would “likely get better over
time.”
In an October 16, 2008 report, Dr. Drakes examined appellant and found that appellant’s
cervical range of motion showed decreased flexion with pain, normal extension with pain,
normal left tilt without pain, normal right tilt without pain, normal left rotation without pain,
normal right rotation without pain. He advised that on palpation, appellant had pain on
paracervical musculature upper trapezius bilaterally and cervical facet bilaterally. Dr. Drakes
determined that appellant’s thoracic and lumbar motion were normal. He diagnosed cervical
sprain, cervical facet syndrome, myofascial pain/fibromyalgia, lumbar strain/sprain, lumbar facet
syndrome and recommended continued physical therapy.
On February 12, 2009 OWCP proposed to terminate compensation benefits based on
Dr. Draper’s report which supported that residuals of the February 12, 2008 work injury had
ceased.
In a February 24, 2009 duty status report, Dr. Henry indicated that appellant had a
cervical and lumbar sprain, and checked the box “no” in response to whether she was able to
resume work.
By decision dated March 19, 2009, OWCP terminated appellant’s compensation benefits
effective March 19, 2009, on the grounds that she had no continuing residuals of her
employment injury.
By letter dated March 10, 2010, appellant’s attorney requested reconsideration and
submitted additional evidence. He submitted arguments that not all of appellant’s conditions
caused by her February 12, 2008 employment incident were accepted. Counsel asserted that
OWCP should expand the claim to include all of appellant’s medical conditions. He alleged that
Dr. Draper’s report was insufficient to support the termination of benefits and that his report, at
best, created a conflict in the medical evidence. Counsel also alleged that she continued to suffer
from her employment-related conditions.
OWCP received a July 23, 2009 report from Dr. Drakes and a September 14 and 30, 2009
reports from Dr. Tristan J. Shockley, Board-certified in physical medicine and rehabilitation.
Both physicians diagnosed cervical facet syndrome, neck sprain and strain, lumbar sprain and
strain, lumbosacral facet syndrome, unspecified myalgia and myositis and spinal enthesopathy.
OWCP also received copies of previously submitted reports.
In a letter dated March 26, 2010, appellant’s attorney alleged that appellant continued to
suffer from disability causally related to her employment incident.
By decision dated June 16, 2010, OWCP denied modification of the March 19, 2009
decision.
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LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.2 Having determined that an employee has a disability
causally related to his or her federal employment, OWCP may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.3 The right to medical benefits for an accepted condition is not limited to the period
of entitlement to compensation for disability.4 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.5
ANALYSIS -- ISSUE 1
At the time of OWCP’s March 19, 2009 termination decision, the Board finds that the
weight of the medical evidence was represented by the second opinion physician, Dr. Draper, a
Board-certified orthopedic surgeon, who submitted a well-rationalized opinion based on a
complete and accurate factual and medical history.
In a September 25, 2008 report, Dr. Draper determined that appellant’s cervical strain and
contusions resolved within 30 days from the date of the accident with no residuals. He detailed
his findings on examination and explained that there were no objective findings that the accepted
conditions continued. Dr. Draper also determined that appellant’s essentially negative findings
that her accepted conditions had resolved without residual and that disability from the accepted
condition would have lasted 30 days. He determined that she could return to her regular duties
and that she had no work limitations. The Board finds that the weight of the medical evidence
rested with the report of Dr. Draper, who submitted a thorough medical opinion based on a
complete and accurate factual and medical history. Dr. Draper performed a complete
examination, reviewed the record and found no basis on which to attribute any continuing
condition or disability to the February 12, 2008 injury. Thus, the Board finds that his report
established that appellant ceased to have any disability or condition causally related to the
accepted employment injuries, thereby justifying OWCP’s March 19, 2009 termination of
benefits, including medical benefits.
Although appellant submitted reports which included an October 7, 2008 report from
Dr. Voyadzis, his findings included that she had normal cervical and lumbar range of motion.
Dr. Voyadzis indicated that appellant did not need surgery. He noted that appellant was
“suffering from cervical and lumbar strain as a result of the fall back in February.” The Board
initially notes that appellant’s claim was accepted for a cervical strain and neck sprain. As noted,
appellant’s range of motion was normal. The lumbar strain was not an accepted condition.
Where an employee claims that a condition not accepted or approved by OWCP was due to an
2

Curtis Hall, 45 ECAB 316 (1994).

3

Jason C. Armstrong, 40 ECAB 907 (1989).

4

Furman G. Peake, 41 ECAB 361, 364 (1990); Thomas Olivarez, Jr., 32 ECAB 1019 (1981).

5

Calvin S. Mays, 39 ECAB 993 (1988).

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employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.6 Dr. Voyadzis either did not identify objective findings to
support those diagnoses or did not provide medical rationale to explain why the accepted
condition continued or how any of the additional conditions were causally related to the accepted
employment injury. For example, while he indicated that appellant had a cervical strain from the
work injury, he did not explain this in light of his finding of normal finding for cervical range of
motion. Dr. Voyadzis did not explain how any particular diagnosed condition, with
accompanying objective findings, were attributable to her accepted employment injuries. His
report is of little probative value.7
In an October 16, 2008 report, Dr. Drakes diagnosed cervical sprain, cervical facet
syndrome, myofascial pain/fibromyalgia, lumbar strain/sprain, lumbar facet syndrome and
recommended continued physical therapy. As noted above, the only condition accepted by
OWCP was the cervical strain and multiple contusions and sprain of the neck. Dr. Drakes also
did not address or explain why any of the diagnosed conditions were caused or aggravated by the
February 12, 2008 work injury.
In these circumstances, OWCP properly accorded the weight of the evidence to
Dr. Draper’s September 25, 2008 report. Accordingly, it met its burden of proof to justify
termination of compensation benefits on March 19, 2009.
LEGAL PRECEDENT -- ISSUE 2
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that she had an employment-related disability, which continued after termination of
compensation benefits.8
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between
appellant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of appellant, 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 appellant.9

6

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

7

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).
8

Talmadge Miller, 47 ECAB 673, 679 (1996); Wentworth M. Murray, 7 ECAB 570, 572 (1955).

9

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

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ANALYSIS -- ISSUE 2
Subsequent to OWCP’s March 19, 2009 decision, appellant requested reconsideration. It
received a July 23, 2009 report from Dr. Drakes and a September 14 and 30, 2009 reports from
Dr. Shockley. Both physicians noted diagnoses including ones that were never accepted as being
work related by OWCP.10 Furthermore, these reports do not offer any opinion on whether
appellant’s continuing conditions or disability are causally related to the February 12, 2008 work
injury.
Other medical reports submitted by appellant also did not address the cause of her
condition. Appellant also submitted on reconsideration reports that were previously submitted
and considered by OWCP.
Consequently, appellant has not established that her condition on and after March 19,
2009 was causally related to her accepted employment injury.
On appeal and before OWCP, appellant’s attorney asserts that appellant continues to
suffer from her employment-related conditions and that Dr. Draper’s opinion was insufficient to
meet OWCP’s burden of proof. However, as noted above, OWCP met its burden of proof to
justify termination of benefits on March 19, 2009, as the medical evidence established that
appellant ceased to have any disability or condition causally related to the accepted employment
injuries.11 Counsel also requested that OWCP expand her claim as not all of her conditions
caused by her February 12, 2008 employment incident were accepted. As noted, appellant has
the burden of proof to establish that conditions not accepted by OWCP are employment related.12
CONCLUSION
The Board finds that OWCP met its burden of proof in terminating appellant’s benefits
effective March 19, 2009 and that appellant did not meet her burden of proof to establish that she
had any injury-related condition or disability after March 19, 2009 causally related to the
February 12, 2008 employment injury.

10

See supra note 6.

11

Counsel also asserted that, at a minimum, Dr. Draper’s report created a conflict in the medical evidence.
However, as explained, infra, reports from appellant’s physicians were of limited probative value. The Board has
also held that a simple disagreement between two physicians does not, of itself, establish a conflict. John D.
Jackson, 55 ECAB 465 (2004). The reports of appellant’s physicians were insufficient to create a medical conflict.
12

The Board notes that the record does not contain a final OWCP decision regarding appellant’s claim to expand
her claim. Therefore, the Board does not have jurisdiction over that issue. See 20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the June 16, 2010 decision of Office Workers’
Compensation Programs is affirmed.
Issued: October 4, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION, Boston, MA,
Employer
__________________________________________

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

Docket No. 13-1767
Issued: January 14, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 22, 2013 appellant filed a timely appeal from a February 15, 2013 decision of the
Office of Workers’ Compensation Programs (OWCP) that denied her claim for an additional
schedule award and an April 19, 2013 decision that denied her request for a hearing. 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 the appeal.
ISSUES
The issues are: (1) whether appellant has more than 47 percent impairment of the right
leg for which she received schedule awards; and (2) whether OWCP properly denied her request
for a hearing.
On appeal, appellant asserts that the schedule award decision was in error because neither
OWCP’s referral physician nor the medical adviser properly applied the sixth edition of the
1

5 U.S.C. §§ 8101-8193.

American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).2 They failed to utilize section 3.700 for rating a spinal nerve extremity impairment,
they did not consider an electrodiagnostic study and the schedule award decision did not include
an impairment rating for her right upper extremity.
FACTUAL HISTORY
On August 12, 2009 appellant, then a 33-year-old claims examiner, sustained an injury to
the right leg and right shoulder when she slipped on plastic stripping while at work. The claim
was initially accepted for sprain of the right shoulder, sprain of the right hip and lumbar strain.
Appellant remained off work until September 14, 2009 when she returned to modified duty for
four hours daily. A February 2, 2010 lower extremity electrodiagnostic study demonstrated
moderate right L5-S1 radiculopathy. The claim was accepted for displacement of lumbar
intervertebral disc (L5-S1) without myelopathy and right thoracic or lumbosacral neuritis or
radiculitis. The previously accepted right shoulder sprain was changed to right rotator cuff
strain. Appellant received wage-loss compensation until July 17, 2010 when she accepted a fulltime position as program specialist with another federal agency.
On August 17, 2011 appellant filed a schedule award claim. In reports dated February 25
and August 12, 2011, Dr. James T. McGlowan, a Board-certified orthopedic surgeon, who
provided examination findings. He noted discomfort on range of motion of the right shoulder
with 4/5 deltoid and rotator cuff and right hip strength. There was a positive Patrick Faber test in
the right hip which was stiff and weak, tenderness to palpation of the right sacroiliac (SI) joint
and right leg foot drop. Dr. McGlowan advised that appellant had reached maximum medical
improvement. On October 3, 2011 Dr. Daniel D. Zimmerman, an OWCP medical adviser and a
Board-certified internist, recommended a second-opinion evaluation.
On November 16, 2011 OWCP referred appellant to Dr. Gilbert Shapiro, a Boardcertified orthopedic surgeon, for a second-opinion examination and an impairment rating. In a
December 16, 2011 report, Dr. Shapiro reviewed the medical record and diagnostic studies. He
described the employment injury and appellant’s complaints of an improved right shoulder with
ongoing low back pain and numbness radiating into the right leg and a drop-foot type of gait.
Dr. Shapiro diagnosed right shoulder strain, resolved; right hip strain, resolved; right sciatica
with foot drop; and disc protrusion at L5-S1. He found a grade 2, moderate impairment under
Table 16-11, Sensory and Motor Impairment, due to weakness against gravity. Dr. Shapiro
applied the grade 2 impairment to Table 16-12, Peripheral Nerve Impairment, finding a class 1
impairment due to sciatica. He found grade 1 modifiers for functional history and clinical
studies and no modifier for physical examination because appellant’s physical findings were
used to define impairment ranges. After applying the net adjustment formula, which moved the
default value to grade E, Dr. Shapiro concluded that she had a right lower extremity sensory
deficit of 9 percent and a motor deficit of 13 percent, for a total right leg impairment of
22 percent. He further concluded that appellant had no impairment for the resolved right
shoulder and hip strains.

2

A.M.A., Guides (6th ed. 2008).

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On January 4, 2012 Dr. Zimmerman, the medical adviser, advised that maximum medical
improvement was reached on December 16, 2011, the date of Dr. Shapiro’s evaluation. He
agreed with Dr. Shapiro’s conclusion that appellant had a 22 percent right leg impairment.
On January 17, 2012 appellant was granted a schedule award for a 22 percent impairment
of the right lower extremity, for a total of 63.36 weeks, to run from December 16, 2011 to
March 3, 2013.
Appellant timely requested a hearing, that was held on May 10, 2012. On May 14, 2012
OWCP accepted right foot drop. On May 16, 2012 Dr. McGlowan found mildly positive
Hawkins and Neer impingement signs and near full right shoulder range of motion with
continued 4/5 strength. He diagnosed foot drop and SI joint discomfort, work related; and right
rotator cuff tendinosis, work related.
By decision dated July 17, 2012, an OWCP hearing representative set aside the
January 17, 2012 decision and remanded the case to Dr. Shapiro for further medical
development. Upon remand, OWCP was to prepare an updated statement of accepted facts and
remand the case to Dr. Shapiro for a new examination and opinion.3
In an August 17, 2012 report, Dr. McGlowan stated that appellant continued to have
uncomfortable range of motion of the right hip and foot and that her foot drop continued.
Appellant was seen in an emergency room on October 11, 2012 for complaints of back pain.
Myofascial strain, lumbar strain and herniated disc were diagnosed and she was provided
medications.
In an October 24, 2012 report, Dr. Shapiro reviewed the statement of accepted facts and
medical record, including Dr. McGlowan’s reports. He diagnosed right shoulder strain with
impingement, resolved; disc protrusion at L5-S1 with right sciatica and foot drop; strain of right
hip, resolved; and contusion of right wrist, question ligamentous tear.4 Dr. Shapiro advised that
right hip and shoulder examinations were normal with no impairment. In reference to the foot
drop, he indicated that appellant had a class 3 impairment under Table 16-12, due to a severe
motor deficit which had a default value of 47 percent impairment. Dr. Shapiro found a grade
modifier 3 for functional history, no modifier for physical examination because neurologic
findings were used to define the impairment range and no modifier for clinical studies because
no electrodiagnostic testing was done. He applied the net adjustment formula, which yielded no
adjustment. Dr. Shapiro concluded that appellant had reached maximum medical improvement
and had 47 percent impairment of the right leg.

3

On July 27, 2012 appellant filed a recurrence claim, indicating that her foot drop caused her to fall at home on
July 15, 2012. She submitted a July 20, 2012 report in which Dr. George Despines, a Board-certified internist,
diagnosed pain in soft tissues. A July 20, 2012 x-ray of the right forearm, wrist and hand was negative. An
August 11, 2012 magnetic resonance imaging (MRI) scan of the right wrist indicated possible mild tenosynovitis.
On October 5, 2012 Dr. McGlowan advised that an MRI scan study indicated a positive triangular fibrocartilage tear
of the right wrist. On December 20, 2012 OWCP accepted the July 15, 2012 recurrence for medical care.
4

Id.

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In a November 15, 2012 addendum, Dr. Shapiro explained that he had again reviewed
Dr. McGlowan’s reports in reference to the right shoulder and hip. He advised that right
shoulder examination approached normal with excellent strength and minimal range of motion
loss for no impairment and that there were no objective findings on right hip examination, for no
impairment. Dr. Shapiro reiterated that appellant had 47 percent right lower extremity
impairment due to foot drop and indicated that maximum medical improvement was reached in
July 2010 when she returned to full-time work and could drive to work.
On December 5, 2012 Dr. Zimmerman, the medical adviser, agreed with Dr. Shapiro’s
opinion that appellant had no impairment of the right shoulder or right hip and that she had
47 percent impairment of the right leg due to foot drop, with a date of maximum medical
improvement of July 1, 2010.
By decision dated February 15, 2013, appellant was granted a schedule award for an
additional 25 percent impairment of the right leg, or a total impairment of 47 percent. It ran for
72 weeks of compensation from July 18, 2010 to December 3, 2011. Appellant was provided
appeal rights that indicated a hearing request must be submitted within 30 calendar days of the
date of the decision, as determined by the postmark of her letter.
In a request dated March 15, 2013 and postmarked March 21, 2013, appellant requested a
hearing. In an April 19, 2013 decision, OWCP denied her request for a hearing on the grounds
that it was untimely filed. It noted that appellant’s hearing request was postmarked March 21,
2013, more than 30 days after issuance of the February 15, 2013 OWCP decision. OWCP
advised her that the issue in the case could equally be addressed by requesting reconsideration
with OWCP.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA and its implementing federal regulation,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards.7
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.8 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
5

20 C.F.R. § 10.404. See 5 U.S.C. § 8107.

6

Id. at § 10.404(a).

7

FECA Bulletin No. 09-03 (issued March 15, 2009).

8

Pamela J. Darling, 49 ECAB 286 (1998).

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the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.9
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
alternative approach to rating spinal nerve impairments.10 OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures, which memorializes proposed tables outlined in a
July/August 2009 A.M.A., Guides Newsletter.11
In addressing lower extremity impairments, due to peripheral or spinal nerve root
involvement, the sixth edition requires identifying the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on Functional History
(GMFH) and if electrodiagnostic testing were done, Clinical Studies (GMCS).12 The net
adjustment formula is (GMFH - CDX) + (GMCS - CDX).13
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision. OWCP accepted that on
August 12, 2009 appellant sustained a right shoulder rotator cuff strain, right hip and lumbar
sprains and displacement of lumbar intervertebral disc (L5-S1) without myelopathy and right
thoracic or lumbosacral neuritis or radiculitis. Appellant was granted schedule awards for right
lower extremity impairment totaling 47 percent.
OWCP has adopted the proposed tables outlined in a July/August 2009 A.M.A., Guides
Newsletter for rating impairment of the upper or lower extremities caused by a spinal injury,
which is presented as Exhibit 4 of section 3.700 of its procedures.14 In this case, rather than
utilizing Proposed Table 2, Spinal Nerve Impairment: Lower Extremity Impairment,15 in his
reports, Dr. Shapiro utilized Table 16-12, Peripheral Nerve Impairment, for rating appellant’s
right lower extremity. Dr. Zimmerman, the medical adviser, agreed with Dr. Shapiro’s findings
and conclusions.

9

Thomas J. Engelhart, 50 ECAB 319 (1999).

10

Rozella L. Skinner, 37 ECAB 398 (1986).

11

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Chapter 3.700, Exhibit 1, note 5 (January 2010); the A.M.A., Guides Newsletter is included as Exhibit 4.
12

A.M.A., Guides, supra note 2 at 533.

13

Id. at 521.

14

Supra note 11.

15

Id., Federal (FECA) Procedure Manual, supra note 11 at Chapter 3.700 at Exhibit 4.

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Dr. Shapiro did not utilize the standard set forth in the A.M.A., Guides Newsletter found
in Exhibit 4 of section 3.700 of OWCP’s procedures or explain why it was not applicable in this
case. His opinions on the extent of appellant’s right lower extremity impairment is of reduced
probative value.16 OWCP’s procedures contemplate that the examiner should apply the A.M.A.,
Guides Newsletter.17 The case will be remanded for further medical development. Thereafter,
OWCP shall issue an appropriate decision on the extent of appellant’s right lower extremity
impairment.
As to appellant’s assertion on appeal that she is entitled to a schedule award for the right
upper extremity, the Board’s jurisdiction extends only to the review of final decisions by
OWCP.18 OWCP has not issued a final decision regarding the accepted right upper extremity
condition. Regarding her argument that Dr. Shapiro did not consider an electrodiagnostic study,
the record includes a February 2, 2010 lower extremity study.
In light of the Board’s disposition regarding Issue 1, Issue 2 is rendered moot.
CONCLUSION
The Board finds that this case is not in posture for decision regarding the degree of
appellant’s right lower extremity impairment.

16

M.W., Docket No. 13-928 (issued August 15, 2013).

17

Id.

18

20 C.F.R. § 501.2(c); E.L., 59 ECAB 405 (2008).

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ORDER
IT IS HEREBY ORDERED THAT the April 19 and February 15, 2013 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded to OWCP for
proceedings consistent with this decision of the Board.
Issued: January 14, 2014
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT ADMINISTRATION,
Springfield, VA, Employer
__________________________________________

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

Docket No. 16-1513
Issued: January 11, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 18, 2016 appellant filed a timely appeal of a February 5, 2016 merit decision and
a July 8, 2016 nonmerit 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 to consider the merits of this case.2
On appeal appellant argues the evidence he submitted establishes his claim.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the July 8, 2016 nonmerit decision, OWCP received additional evidence.
Appellant also submitted new evidence with his appeal to the Board. However, the Board may only review
evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R. §§ 501.2(c)(1); M.B.,
Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R.
Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003)

ISSUES
The issues are: (1) whether appellant met his burden of proof to establish a traumatic
injury in the performance of duty on August 17, 2015; and (2) whether OWCP abused its
discretion in denying appellant’s request for review of the written record.
FACTUAL HISTORY
On August 20, 2015 appellant, then a 55-year-old Unit Chief 1811, filed a traumatic
injury claim (Form CA-1) alleging that on August 17, 2015 he sustained a left knee injury during
a training session. He did not stop work. The employing establishment checked a box marked
“yes” to the question of whether the injury was sustained in the performance of duty.
In an August 31, 2015 report, Dr. Erik M. Krushinski, a treating Board-certified
orthopedic surgeon, reported that appellant had been seen for left knee pain complaints, which
began at work. He noted that appellant was an instructor with the employing establishment and
that he provided instruction in personal defense. Appellant related his left knee pain had been
present for about two weeks with no specific injury at the time the pain began. Physical
examination findings of the left knee included mild effusion, pain with patellar compression, and
medial and lateral joint tenderness. A review of x-ray interpretations revealed mild degenerative
changes in the left patellofemoral joint and left medial and lateral knee compartments.
Dr. Krushomski provided a differential diagnosis of aggravation of early osteoarthritis versus a
meniscal tear.
Dr. Krushinski, in a November 5, 2015 report, diagnosed medial and lateral meniscal
tears and medial and patellofemoral osteoarthritis. Physical examination findings were
unchanged from the prior report. A review of an October 30, 2015 magnetic resonance imaging
(MRI) scan revealed small medial and lateral meniscus tears, and moderate-to-high grade
patellofemoral joint chondromalacia.
By letter dated January 4, 2016, OWCP informed appellant that at the time his claim had
been filed it had been considered to be a minor injury and the merits of the claim had not been
considered. It informed appellant that his claim had been reopened for a review on the merits
and that the evidence of record was insufficient to establish his claim. Appellant was advised as
to the medical and factual evidence required to establish his claim. He was afforded 30 days to
provide the requested information.
In a January 12, 2016 statement, appellant described how the injury occurred. He noted
the duties of his position and related that on August 17, 2015 he was involved in a basic agent
training class. The training session required that appellant review various defensive tactic
techniques which included full-body search, armed kneeling compliant handcuffing, and
standing compliant handcuffing. At approximately 8:30 a.m. appellant stated he felt left knee
pain and that his left knee gave out while he was walking. He attributed the injury to the
physical activity he had performed during the training session.
By decision dated February 5, 2016, OWCP denied appellant’s traumatic injury claim. It
found that he had failed to establish that the event occurred as alleged, and also found the

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medical evidence failed to contain a diagnosed condition causally related to the alleged injury or
incident.
In a March 9, 2016 report, Dr. Krushinski noted treating appellant for a left knee injury
sustained on August 17, 2015 which occurred while appellant was participating as an instructor
in a defensive tactics session. Dr. Krushomski explained that pain developed during the session
even though there had been no definitive injury. He opined that appellant’s knee injury had been
caused by the August 17, 2015 incident as there had be no prior complaints of knee pain.
On March 15, 2016 OWCP received appellant’s request for a review of the written
record, by an OWCP hearing representative. This request was postmarked March 8, 2016.
By decision dated July 8, 2016, OWCP’s Branch of Hearings and Review denied
appellant’s request for review of the written record as it was untimely filed. OWCP considered
appellant’s request and determined that his case could equally well be addressed by requesting
reconsideration and submitting new evidence.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA3 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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.6
First, the employee must submit sufficient evidence to establish that he actually experienced the
employment incident at the time, place, and in the manner alleged.7 Second, the employee must
submit sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.8
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
3

5 U.S.C. § 8101 et seq.

4

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

5

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

6

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 4.

7

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

8

C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 4.

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circumstances and his subsequent course of action.9 Such circumstances as late notification of
injury, lack of confirmation of injury, continuing to work without apparent difficulty following
the alleged injury, and failure to obtain medical treatment may, if otherwise unexplained, cast
doubt on an employee’s statements.10 However, an employee’s statement regarding the
occurrence of an employment incident is of great probative force and will stand unless refuted by
strong or persuasive evidence.11
ANALYSIS -- ISSUE 1
Appellant alleged that he sustained a left knee injury in the performance of duty on
August 17, 2015. A proper analysis of the issue is to first determine whether the evidence
establishes an employment incident.12 If the details of an employment incident are established,
then the medical evidence is reviewed to determine if a diagnosed condition is causally related to
the employment incident.13
In his statement, appellant related that on the date of the incident he had been involved in
a training session showing various defensive tactic techniques including full-body searches,
armed kneeling compliant handcuffing, and standing compliant handcuffing. During the training
session, his left knee went out while he was walking and he developed left knee pain. Appellant
attributed the injury to physical activity involved during the training session and immediately
notified his supervisor. On the back of the CA-1 form, his supervisor checked a box marked
“yes” to the question of whether he was injured in the performance of duty. There are no
inconsistencies in the record.
Additionally, the history of the work incident was confirmed by contemporaneous
medical reports. The Board notes that appellant reported the injury immediately to his
supervisor. Appellant sought medical treatment for a diagnosed left knee condition on
August 31, 2015 and provided Dr. Krushinski with a consistent history of his injury. In his
August 31, 2015 report, Dr. Krushinski noted under history of injury that appellant had
developed left knee pain while working as an instructor for personal defense and physical
exercise. In his November 5, 2015 report, he diagnosed medial and lateral meniscal tears and
medial and patellofemoral osteoarthritis. The Board finds that the evidence establishes that on
August 17, 2015 appellant was performing his work duties as an instructor, which included
demonstrating various defensive tactics during a training session. Thus, contrary to OWCP’s
finding in its February 5, 2016 decision, the Board finds that appellant has established the

9

See Betty J. Smith, 54 ECAB 174 (2002).

10

Linda S. Christian, 46 ECAB 598 (1995).

11

Gregory J. Reser, 57 ECAB 277 (2005)

12

Supra note 7.

13

Supra note 8.

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employment incident occurred, as alleged, in the performance of his employment on
August 17, 2015.14
However, with regard to the medical evidence, the Boards finds that it is insufficiently
rationalized to establish the second component of fact of injury. The medical evidence contains
no reasoned explanation of how the specific employment incident either caused or aggravated an
injury. Dr. Krushinski reviewed the medical evidence of record. He noted that x-rays of
appellant’s left knee revealed mild degenerative changes in the left patellofemoral joint and left
medial and lateral knee compartments. Dr. Krushomski provided a differential diagnosis of
aggravation of early osteoarthritis versus a meniscal tear. He however offered no medical
explanation as to how the employment incident of August 17, 2015 would have caused
appellant’s left knee condition. Medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value on the issue of causal
relationship.15 An opinion provided by a physician without the necessary rationale explaining
how and why the incident caused the diagnosed medical condition is insufficient to meet a
claimant’s burden of proof to establish a claim.16 Appellant therefore did not meet his burden of
proof to establish an injury on August 17, 2015 causally related to the accepted employment
incident.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his claim before a representative of the Secretary.17
Sections 10.617 and 10.618 of the federal regulations implementing this section of FECA
provide that a claimant shall be afforded a choice of an oral hearing or a review of the written
record by a representative of the Secretary.18 A claimant is entitled to a hearing or review of the
written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.19 Although there is no right to a review of the written record or an oral hearing

14

R.K., Docket No. 15-1524 (issued August 10, 2016).

15

See S.E., Docket No. 08-2214 (issued May 6, 2009).

16

T.D., Docket No. 16-1178 (issued November 9, 2016).

17

5 U.S.C. § 8124(b)(1).

18

20 C.F.R. §§ 10.616, 10.617

19

Id. at § 10.616(a).

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if not requested within the 30-day time period, OWCP may within its discretionary powers grant
or deny appellant’s request and must exercise its discretion.20
ANALYSIS -- ISSUE 2
OWCP received a request for review of the written record postmarked March 8, 2016.
As this postmark date was more than 30 days after the February 5, 2016 OWCP decision, it was
untimely. Section 8124(b)(1) is unequivocal on the time limitation for requesting a hearing.21
Because the hearing request was untimely filed, appellant was not entitled to a review of the
written record as a matter of right.
OWCP has the discretionary power to grant an oral hearing or review of the written
record when a claimant is not entitled to one as a matter of right. It exercised this discretion in
its July 8, 2016 decision, finding that appellant’s issue could equally well be addressed by
requesting reconsideration and submitting additional evidence. This basis for denying his
request for a review of the written record is a proper exercise of OWCP’s authority.22
Accordingly, the Board finds that OWCP properly denied appellant’s request for a review of the
written record as untimely filed.
CONCLUSION
The Board finds that appellant has established that the employment incident occurred as
alleged on August 17, 2015. The Board further finds that appellant has not established that he
sustained an injury causally related to this accepted incident. The Board further finds that
OWCP did not abuse its discretion in denying appellant’s request for review of the written record
as it was untimely filed.

20

Delmont L. Thompson, 51 ECAB 155 (1999); Eddie Franklin, 51 ECAB 223 (1999).

21

William F. Osborne, 46 ECAB 198 (1994).

22

A.M., Docket No. 16-1307 (issued October 27, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the July 8, 2016 decision of the Office of Workers’
Compensation Programs is affirmed and the February 5, 2016 decision is affirmed as modified.
Issued: January 11, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.N., Appellant
and
U.S. POSTAL SERICE, POST OFFICE,
Beverly, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-483
Issued: October 13, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 21, 2010 appellant filed a timely appeal from a September 20, 2010
decision of the Office of Workers’ Compensation Programs (OWCP) which granted a schedule
award.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 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 more than seven percent permanent impairment of the
right arm for which she received a schedule award.
FACTUAL HISTORY
On March 4, 2003 appellant, then a 26-year-old letter carrier, filed a Form CA-1,
traumatic injury claim, alleging that on February 27, 2003 she fell on ice and snow injuring her

1

5 U.S.C. §§ 8101-8193.

neck and shoulder. OWCP accepted cervical radiculopathy. Appellant did not stop work but
returned to a light-duty position.
From March 19 to December 10, 2003, appellant was initially treated by Dr. Eric M.
Lipnack, Board-certified in physiatry, for cervical pain and radiation into her upper extremities
after a fall at work. On physical examination, Dr. Lipnack noted equivocal weakness and
sensory changes. On April 2, 2003 he performed an electromyogram (EMG) which revealed
acute C5-6 radiculopathy on the right. In a January 11, 2006 report, Dr. Lipnack noted
appellant’s complaints of trapezius and cervical myofasciitis. On May 27, 2003 a magnetic
resonance imaging (MRI) scan of the cervical spine revealed straightening of the normally
lordotic cervical curve, paraspinal muscle spasm, mild anterior mid-cervical spondylosis and
bulging annulus at C5-6.
In a letter dated September 4, 2008, appellant through counsel requested a schedule
award. In a July 10, 2008 report, Dr. Arthur Becan, a Board-certified orthopedic surgeon,
provided an impairment rating under the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).2 He advised that
appellant had 15 percent impairment of the right arm. Dr. Becan found that she was at maximum
medical improvement.
On September 12, 2008 OWCP requested that appellant submit a Form CA-7 to claim a
schedule award. On February 24, 2009 appellant submitted a Form CA-7, claiming a schedule
award. In a March 18, 2009 report, OWCP’s medical adviser reviewed Dr. Becan’s report and
agreed with his conclusion that appellant had a total 15 percent impairment of the right arm.
OWCP subsequently asked that appellant submit a rating of permanent impairment
pursuant to the sixth edition of the A.M.A., Guides3 effective May 1, 2009. In a January 29,
2010 report, Dr. Becan provided an impairment rating under the sixth edition of the A.M.A.,
Guides.4 Cervical spine examination showed tenderness and muscle spasm in the right
paravertebral and right trapezius muscles from C4-7, positive Spurling’s test on the right, facet
joint tenderness at C5-7 facet joints, restricted range of motion with right paraspinal and right
shoulder pain. Manual muscle strength testing revealed the deltoid and biceps graded at 4/5
bilaterally and sensory examination revealed decreased sensation over the entire dorsal aspect of
the right hand and arm as compared to the left. Dr. Becan noted that the April 2, 2003 EMG
revealed right C5-6 radiculopathy and the July 23, 2003 MRI scan of the cervical spine revealed
straightening of the normal cervical lordosis and herniated cervical disc at C5-6 to the right. He
diagnosed chronic post-traumatic cervical strain and sprain, herniated C5-6 disc, post-traumatic,
right C5-6 radiculopathy, post-traumatic, chronic trapezius myofasciitis and post-traumatic
brachial neuropathy involving the right arm and shoulder secondary to thoracic outlet syndrome.
Appellant’s QuickDash disability score was 63 percent and the Pain Disability Questionnaire

2

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

3

Id. at (6th ed. 2009).

4

Id.

2

equated to a raw score of 108 for severe cervical spine pain disability. Dr. Becan noted that
appellant was at maximum medical improvement.
In accordance under Chapter 15 of the sixth edition of the A.M.A., Guides for
radiculopathy/peripheral nerve impairment of the right upper extremity, appellant had a class 1
right upper extremity impairment for mild motor strength deficit of the right biceps
(musculocutaneous), under Table 15-21, page 441, with a default grade of three percent.5 He
assigned grade modifiers, finding that the QuickDASH score of 63 yielded a Functional History
(GMFH) modifier of three;6 that the Physical Examination (GMPE) was used to get the involved
nerve, therefore it could not also be used for an adjustment modifier; and the grade modifier for
Clinical Studies (GMCS), based on a positive EMG, nerve conduction studies and MRI scan of
the cervical spine, was two.7 Dr. Becan applied the net adjustment formula to the grade
modifiers to arrive at a net adjustment of three, with an assigned grade modifier of E, which
yielded six percent right arm impairment due to motor strength deficit of the right biceps.8 He
advised that appellant was class 1 right upper extremity impairment for mild sensory deficit for
the right radial nerve (lower arm), under Table 15-21, page 442, with a default grade of one
percent.9 Dr. Becan assigned grade modifiers, finding that the QuickDASH score of 63 yielded a
GMFH modifier of three;10 that the GMPE was used to get the involved nerve, therefore it could
not also be used for an adjustment modifier; and the grade modifier for GMCS, based on a
positive EMG, nerve conduction studies and MRI scan of the cervical spine, was two.11 He
applied the net adjustment formula to the grade modifiers to arrive at a net adjustment of three,
with an assigned grade modifier of E, which remained at one percent right arm impairment for
mild sensory deficit.12 Dr. Becan then concluded that appellant had a combined right upper
extremity impairment of seven percent.
In a March 11, 2010 report, OWCP’s medical adviser reviewed Dr. Becan’s report and
agreed that appellant had seven percent impairment of the right arm.
On May 18, 2010 appellant was granted a schedule award for seven percent impairment
of the right arm. The period of the award was July 10 to December 9, 2008.

5

Id. at 441, Table 15-21.

6

Id. at 406, Table 15-7.

7

Id. at 410, Table 15-9.

8

Supra note 5. Dr. Becan noted a right lower extremity impairment after net adjustment of six percent; however,
this appears to be a typographical error and should be six percent right upper extremity impairment.
9

Supra note 5

10

Supra note 6.

11

Supra note 7.

12

Dr. Becan noted a right lower extremity impairment after net adjustment of six percent; however, this appears
to be a typographical error and should be six percent right upper extremity impairment.

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On May 24, 2010 appellant requested a review of the written record and asserted that the
schedule award claim should have been developed under the fifth edition of the A.M.A., Guides.
In a decision dated September 20, 2010, OWCP’s hearing representative affirmed the
May 18, 2005 OWCP decision.
LEGAL PRECEDENT
The schedule award provision of FECA13 and its implementing regulations14 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law 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.15
For decisions after February 1, 2001, the fifth edition of the A.M.A., Guides is used to
calculate schedule awards.16 For decisions issued after May 1, 2009, the sixth edition of the
A.M.A., Guides will be used.17 It is the claimant’s burden to establish that he or she sustained a
permanent impairment of a scheduled member or function as a result of an employment injury.18
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, Disability
and Health (ICF).19 Under the sixth edition of the A.M.A., Guides, for upper extremity
impairments the evaluator identifies the impairment class for the CDX, which is then adjusted by
grade modifiers based on GMFH, GMPE and GMCS.20 The net adjustment formula is GMFHCDX + GMPE - CDX + GMCS - CDX.21

13

5 U.S.C. § 8107.

14

20 C.F.R. § 10.404.

15

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

16

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

17

A.M.A., Guides, supra note 3.

18

Tammy L. Meehan, 53 ECAB 229 (2001).

19

A.M.A., Guides, supra note 1 at 3, section 1.3, The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.
20

Id. at 385-419.

21

Id. at 411.

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ANALYSIS
The sixth edition of the A.M.A., Guides provides that upper extremity impairments be
classified by diagnosis which is then adjusted by grade modifiers according to the formula noted
above.22 Appellant’s accepted diagnosed conditions are for cervical radiculopathy. On May 18,
2010 she was granted a schedule award for seven percent permanent impairment of the right
upper extremity. The Board finds that the medical evidence of record establishes seven percent
impairment to appellant’s right upper extremity.
By report dated January 29, 2010, Dr. Becan discussed the relevant tables in the sixth
edition of the A.M.A., Guides. He followed the assessment formula of the sixth edition of the
A.M.A., Guides and advised that, in accordance with Chapter 15, for mild motor strength deficit
for the right biceps (musculocutaneous), using Table 15-21, Peripheral Nerve Impairment:
Upper Extremity Impairments, appellant would fit a class 1 category, yielding a default grade C
for three percent impairment.23 As discussed, Dr. Becan then applied the grade modifiers for
GMFH, three, and GMCS, two, to the net adjustment formula and determined that appellant had
a net adjustment of three24 which moved the default grade of C to grade E for six percent
impairment. For mild sensory deficit affecting the right radial nerve (lower arm) using Table 1521, Peripheral Nerve Impairment: Upper Extremity Impairments, appellant would fit a class 1
category, yielding a default grade C for one percent impairment.25 As discussed, Dr. Becan then
applied the grade modifiers for GMFH, three, and GMCS, two, to the net adjustment formula
and determined that appellant had a net adjustment of three26 which moved the default grade of C
to grade E which also yielded one percent impairment.
Dr. Becan then combined the motor strength deficit of the right biceps of six percent with
the mild sensory deficit of the right radial nerve of one percent, yielding a seven percent
impairment of the right upper extremity. OWCP’s medical adviser reviewed Dr. Becan’s report
and agreed with his conclusion that appellant had a total seven percent right upper extremity
impairment.
The Board finds that OWCP’s medical adviser properly applied the A.M.A., Guides to
rate impairment to appellant’s right upper extremity. OWCP’s medical adviser, reviewed the
medical evidence and fully explained how he determined appellant’s rating in conformance with
the A.M.A., Guides.
On appeal, appellant asserts that he has property rights in a schedule award benefit under
the fifth edition of the A.M.A., Guides and a protected property interest cannot be deprived
without due process, citing Goldberg v. Kelly, 397 U.S. 254 (1970) and Mathews v. Eldridge,
22

Supra notes 13, 14.

23

A.M.A., Guides 441, Table 15-21.

24

See id. at 441; (3-1) + (2 - 1) = 3.

25

Id. at 442, Table 15-21.

26

See supra note 24.

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424 U.S. 319 (1976). These cases hold only that a claimant who was in receipt of benefits (in
Goldberg public assistance, and in Mathews social security benefits) could not have those
benefits terminated without procedural due process.27 In this case appellant is simply making a
claim for a schedule award. He is not in receipt of schedule award benefits nor is OWCP
attempting to terminate any benefits. Appellant has not established a vested right to a schedule
award decision under the fifth edition of the A.M.A., Guides. As noted, OWCP began using the
sixth edition of the A.M.A., Guides, effective May 1, 2009.28
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has seven percent impairment of the right upper extremity,
for which she received a schedule award.

27

In Mathews the court noted that the private interest that would be adversely affected by the erroneous
termination of benefits was likely to be less in a disabled worker than a welfare recipient and due process would not
require an evidentiary hearing.
28

Supra note 11.

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ORDER
IT IS HEREBY ORDERED THAT the September 20, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 13, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, Washington, DC,
Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1870
Issued: April 11, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 5, 2016 appellant, through counsel, filed a timely appeal from an April 25,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met his burden of proof to establish knee osteoarthritis
causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On June 3, 2015 appellant, then a 58-year-old pipefitter, filed an occupational disease claim
(Form CA-2) alleging that he developed knee osteoarthritis as a result of his federal employment
duties. He reported that his injury was a result of the repetitious stress from 23 years of work
servicing 430 plumbing fixtures. Appellant first became aware of his condition on March 1, 2010
and of its relationship to his employment on February 1, 2015. He did not stop work.
By development letter dated July 8, 2015, OWCP informed appellant that the evidence of
record was insufficient to support his claim. OWCP advised appellant of the type of factual and
medical evidence needed and afforded him 30 days to submit the necessary evidence.
In a June 3, 2015 e-mail correspondence, appellant’s supervisor reported that appellant
worked on 432 plumbing fixtures throughout National Capital Parks East.
In an August 13, 2015 medical report, Dr. J. Michael Joly, a Board-certified orthopedic
surgeon, reported that appellant had symptomatic moderate-to-severe right medial compartment
osteoarthritis, as well as a lesser mild-to-moderate left medial compartment osteoarthritis. He
noted that he began examining appellant on March 4, 2014 for recurrent pain localized to the
medial compartment of his right knee due to moderate-to-severe medial compartment
osteoarthritis. Dr. Joly noted that the only diagnostic testing performed were x-rays during his
initial March 2014 evaluation. He opined within a reasonable degree of medical certainty that
appellant’s wear and tear osteoarthritis of the right medial compartment, and to a lesser extent the
left medial compartment, could have resulted from employment activities over many years.
In a September 2, 2015 e-mail correspondence, appellant’s supervisor reported that
appellant’s employment duties involved repairing and replacing plumbing fixtures and water lines.
He noted that appellant was recently provided a stool and given knee pads after his physician
informed him that he could not perform his employment tasks on his knees. The supervisor noted
that appellant’s duties involved walking, bending, stooping, twisting, pushing, pulling, and lifting.
By decision dated September 8, 2015, OWCP denied appellant’s claim, finding that the
evidence of record failed to establish that a diagnosed condition was causally related to the
accepted federal employment duties.
On September 24, 2015 appellant, through counsel, requested a telephone hearing before
an OWCP hearing representative.
In support of his claim, appellant submitted medical reports dated March 4, 2014 through
September 29, 2015 from Dr. Joly documenting treatment for his knee condition. In a March 4,
2014 report, Dr. Joly reported that appellant developed insidious onset of bilateral knee pain due
to osteoarthritis. He noted a prior right-sided arthroscopic surgery several years ago which was
minimally effective. X-rays taken on that date revealed moderate-to-severe right medial
2

compartment osteoarthritis and mild-to-moderate left medial compartment osteoarthritis. In a
May 19, 2015 medical report, Dr. Joly reported reviewing appellant’s job description, noting that
he worked as a pipefitter and had performed a lot of plumbing work. He reported that his recurrent
severe right knee pain due to medial compartment osteoarthritis could be a workplace injury.
Dr. Joly’s remaining medical reports documented physical examination findings and hyaluronic
injection treatments administered to the right knee.
By letter dated April 12, 2016, counsel noted submission of a March 29, 2016 medical
report from Dr. Evan Crain, a Board-certified orthopedic surgeon, in support of his occupational
disease claim.
In a March 29, 2016 narrative report, Dr. Crain reported that he initially evaluated appellant
on December 16, 2015 for bilateral knee pain. He reported that appellant had worked for over 23
years, initially as a plumber and later as a pipefitter. Dr. Crain noted that appellant’s work required
frequent squatting, kneeling, bending, and working on his knees on a regular basis. He reported
that appellant personally serviced 430 plumbing fixtures over the course of 23 years that involved
toilets, sinks, and fountains which required him to be on his knees. Dr. Crain discussed appellant’s
x-rays which revealed progressive deterioration of the medial compartment in both knees as a
result of his employment activities over the years. He noted that appellant’s bilateral knee pain
was aggravated by his work activities over the past 23 years which caused further deterioration of
his knees and the increase in symptomatology. Dr. Crain opined that, as a result of his employment
duties which entailed repetitive bending, squatting, and kneeling, appellant developed a meniscus
tear of the right knee that led to the arthroscopy, which further caused deterioration of the medial
joint space that had now collapsed to bone-on-bone contact. Based on these ﬁndings, he reported
a direct causal relationship to appellant’s symptomatology as it related to his work activities, noting
that these activities caused an exacerbation of his symptomatology and continued to do so on a
daily basis.
A hearing was held on May 16, 2016 before an OWCP hearing representative. Appellant
testified in support of his occupational disease claim, treatment pertaining to his injury, and prior
right knee surgery. Counsel noted that he would attempt to obtain appellant’s prior medical records
related to his right knee surgery. The record was held open for 30 days. No additional evidence
was received.
By decision dated July 28, 2016, an OWCP hearing representative affirmed the
September 8, 2015 decision, finding that the medical evidence of record failed to establish that
appellant’s diagnosed condition was causally related to his accepted federal employment duties.
The hearing representative noted that appellant’s physicians were relying on his self-reported
history with no medical records to support his preexisting condition.
On October 31, 2016 appellant, through counsel, requested reconsideration of the July 28,
2016 hearing representative’s decision. Along with the request, counsel submitted an April 3,
2013 operative report, as well as medical reports from 2012 through 2015 in support of appellant’s
claim.
In an April 3, 2013 operative report, Dr. Ricardo O. Pyfrom, a Board-certified orthopedic
surgeon, provided operative findings pertaining to a right knee torn medial meniscus and

3

chondromalacia arthroscopy. In progress noted dated November 27, 2012 through May 17, 2013,
he discussed appellant’s bilateral knee treatment. Physical therapy notes from Sports Pro Physical
Therapy were also submitted.
By decision dated November 17, 2016, OWCP denied modification of the July 28, 2016
decision, finding that the medical evidence of record failed to establish that appellant’s diagnosed
condition was causally related to the accepted factors of his federal employment.
On January 19, 2017 appellant, through counsel, again requested reconsideration and
submitted a January 9, 2017 medical report from Dr. Crain in support of appellant’s claim.
In the January 9, 2017 medical report, Dr. Crain noted submission of his prior March 29,
2016 report which summarized his findings and reviewed appellant’s work activities. He opined
that appellant experienced bilateral, right greater than left, knee pain aggravated by his work
activities, which he had performed over a 23-year time frame. Dr. Crain also opined that those
specific work activities caused further deterioration of his knees and an increase in his
symptomatology. He reported that appellant had undergone a previous right knee arthroscopy for
a tear of his medial meniscus. Dr. Crain explained that the tearing of the meniscus caused further
deterioration of the knee joint to the extent that appellant had loss of shock absorber on the medial
side. He noted an exacerbation and worsening of appellant’s symptoms.
Dr. Crain noted that he reviewed appellant’s prior medical reports which documented knee
pain as far back as 2012. Appellant was initially evaluated by Dr. Pyfrom on November 27, 2012
due to complaints of right knee pain for several years. He was also hit by a car in the right knee
30 years ago. Appellant had previously been diagnosed with arthritis and wore knee braces. A
prior MRI scan reviewed was suggestive of a medial meniscus tear and arthroscopic surgery was
recommended. On April 3, 2013 appellant underwent surgery which revealed a large complex tear
of the medial meniscus. Surgery further revealed degenerative changes of the medial femoral
condyle grade III and medial tibial plateau grade IV, as well as a chronically torn anterior cruciate
ligament and chondromalacia grade III of the patella. A partial medial meniscectomy and
chondroplasty were performed. Dr. Crain reported that appellant returned to work approximately
four weeks following his surgery. In 2014, he began treatment with Dr. Joly who administered
multiple injections and provided him with a knee brace. Dr. Crain reported that he initially
evaluated appellant in December 2015.
Dr. Crain noted that after review of the subsequently provided medical records, there was
no change in his opinion in regard to appellant’s condition. The medical history reflected that,
following his April 3, 2013 surgery, appellant did not develop a distinct injury, but rather a
progressive increase in knee pain which he attributed to his work activities. After having reviewed
the nature of his employment, job description, and self-reported work activities, Dr. Crain opined
that appellant’s employment duties aggravated an underlying degenerative condition. He reported
that, if appellant were in a different job that did not require those employment activities required
of him, he would not experience the symptoms necessitating his current treatment. Dr. Crain
concluded that appellant developed further deterioration of his knees and an increase in
symptomatology related to his work activities. The need for treatment was, therefore, related to
his work activities.

4

By decision dated April 25, 2017, OWCP denied modification of its November 17, 2016
decision, finding that the medical evidence of record failed to establish that appellant’s diagnosed
condition was causally related to his accepted factors of his federal employment.
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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.3 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.4
In order to determine whether an employee actually sustained an injury in the performance
of duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.5 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
To establish causal relationship between the condition, as well as any attendant disability
claimed and the employment event or incident, the employee must submit rationalized medical
opinion evidence supporting such causal relationship.7 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.
This medical opinion must include an accurate history of the employee’s employment injury and
must explain how the condition is related to the injury. The weight of medical evidence is

3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, supra note 3.

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

5

determined by its reliability, its probative value, its convincing quality, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.8
ANALYSIS
The Board finds that the medical evidence of record is insufficient to establish that
appellant developed knee osteoarthritis causally related to the accepted factors of his federal
employment as a pipefitter.
In support of his claim, appellant submitted medical reports dated March 4, 2014 through
September 29, 2015 from Dr. Joly documenting the treatment of his right knee. Dr. Joly provided
a diagnosis of moderate-to-severe right medial compartment osteoarthritis. He opined that
appellant’s medial compartment osteoarthritis could have resulted from his employment activities
over many years.
The Board notes that Dr. Joly’s opinion on causation is highly speculative as he notes that
appellant’s employment duties could aggravate his condition without a firm conclusion that these
duties did in fact cause or aggravate his injury.9 To be of probative value, a physician’s opinion
on causal relationship should be one of reasonable medical certainty.10 While the physician noted
that appellant worked as a pipefitter and performed a lot of plumbing work, he failed to discuss
appellant’s repetitive employment duties or explain how these movements would have caused or
contributed to his diagnosed condition. Furthermore, Dr. Joly noted appellant’s right knee
arthroscopy yet failed to provide a detailed medical history to gain any understanding of his
preexisting condition or prior injuries. He never addressed what caused the underlying condition
nor did he discuss whether his preexisting injury had progressed beyond what might be expected
from the natural progression of that condition.11 A well-rationalized opinion is particularly
warranted when there is a history of preexisting condition.12 As such, Dr. Joly’s reports lack the
specificity and detail needed to establish that appellant’s injuries are a result of a work-related
occupational exposure.13
In medical reports dated March 29, 2016 and January 9, 2017, Dr. Crain described
appellant’s employment duties as a pipefitter over the course of 23 years which entailed frequent
squatting, kneeling, bending, and working on his knees. He opined that as a result of appellant’s
employment duties which entailed repetitive bending, squatting, and kneeling, he developed a
meniscus tear of the right knee that led to his right knee arthroscopy, leading to further
deterioration of the medial joint space that had currently collapsed to bone-on-bone contact.

8

James Mack, 43 ECAB 321 (1991).

9

See Michael R. Shaffer, 55 ECAB 339 (2004).

10

See Beverly R. Jones, 55 ECAB 411 (2004).

11

R.E., Docket No. 14-0868 (issued September 24, 2014).

12

T.M., Docket No. 08-0975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

13

P.O., Docket No. 14-1675 (issued December 3, 2015); S.R., Docket No. 12-1098 (issued September 19, 2012).

6

The Board finds that the opinion of Dr. Crain is not well rationalized. The Board notes
that the record reflects that appellant had a preexisting right knee meniscus tear which resulted in
arthroscopy on April 3, 2013. Dr. Crain opined that appellant’s repetitive employment duties
caused his underlying right knee meniscus tear. While Dr. Crain reviewed and discussed
appellant’s prior medical history, he failed to provide any explanation pertaining to the mechanism
of injury to establish that the initial right knee meniscus tear was work related. His statement that
tearing of the meniscus caused further deterioration of the knee joint to the extent that appellant
had loss of shock absorber on the medial side is insufficient. Without explaining how
physiologically the movements involved in appellant’s employment duties caused or contributed
to the tearing of the meniscus, his diagnosed condition, his opinion on causal relationship is
equivocal in nature and of limited probative value.14
Dr. Crain did not explain whether appellant’s preexisting injury had progressed beyond
what might be expected from the natural progression of that condition.15 It is unclear if appellant’s
injury was caused or aggravated by his occupational employment duties, a result of a preexisting
condition, or due to degenerative changes. The Board has held that medical reports without
adequate rationale on causal relationship are of diminished probative value and do not meet an
employee’s burden of proof.16
The remaining medical evidence of record is also insufficient to establish appellant’s
occupational disease claim. Dr. Pyfrom’s medical reports dated November 27, 2012 through
May 17, 2013 document treatment for a preexisting right torn medial meniscus and
chondromalacia and April 3, 2013 arthroscopy. While the reports reflect that appellant sought
medical treatment stemming back to 2012 for his right knee injury, Dr. Pyfrom failed to discuss
appellant’s employment duties and provided no opinion regarding the cause of his injury.17 The
Board has held that medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value.18
The Sports Pro Physical Therapy notes documenting treatment for his right knee are also
insufficient to establish his claim. Physical therapists are not physicians as defined under FECA,
their opinions are of no probative value.19

14

See L.M., Docket No. 14-0973 (issued August 25, 2014); R.G., Docket No. 14-0113 (issued April 25, 2014);
K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket No. 12-0548 (issued November 16, 2012).
15

Supra note 11.

16

S.R., supra note 13.

17

C.B., Docket No. 09-2027 (issued May 12, 2010); S.E., Docket No. 08-2214 (issued May 6, 2009).

18

Id.

19

5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also Roy L. Humphrey, 57 ECAB 238 (2005). See also J.A., Docket No. 17-0119 (issued
July 11, 2017). A physical therapist is not a physician under FECA.

7

The Board notes that there is no requirement that the federal employment be the only cause
of appellant’s injury. An employee is not required to prove that occupational factors are the sole
cause of his claimed condition. If work-related exposures caused, aggravated, or accelerated
appellant’s condition, he is entitled to compensation.20 However, an award of compensation may
not be based on surmise, conjecture, speculation, or on the employee’s own belief of causal
relation.21 Appellant’s honest belief that his occupational employment duties caused his medical
injury is not in question,22 but that belief, however sincerely held, does not constitute the medical
evidence necessary to establish causal relationship.23
The evidence of record lacks rationalized medical evidence establishing a causal
relationship between appellant’s federal employment duties as a pipefitter and his diagnosed knee
osteoarthritis. Thus, appellant has failed to meet his burden of proof.
Appellant may submit additional evidence, together with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a knee
osteoarthritis causally related to the accepted factors of his federal employment.

20

See Beth P. Chaput, 37 ECAB 158, 161 (1985); S.S., Docket No. 08-2386 (issued June 5, 2008).

21

D.D., 57 ECAB 734 (2006).

22

See M.C., Docket No. 17-1579 (issued November 28, 2017).

23

Id.

8

ORDER
IT IS HEREBY ORDERED THAT the April 25, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 11, 2018
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
)
__________________________________________ )
J.D., Appellant

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

Docket No. 21-0425
Issued: January 24, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 11, 2021 appellant filed a timely appeal from a November 12, 2020 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 his burden of proof to establish more than 47 percent
permanent impairment of the right upper extremity, more than 31 percent permanent impairment
1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence on appeal. However, the Board’s Rules of Procedure
provides: “The Board’s review of a case is limited to the evidence in the case record that was before OWCP at the
time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal.”
20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on
appeal. Id.

of the left upper extremity, and more than 12 percent permanent impairment of each lower
extremity for which he previously received schedule award compensation.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On July 8, 1999 appellant, then a 45-year-old illustrator, filed a traumatic injury claim
(Form CA-1) alleging that on April 16, 1999 he sustained rotator cuff injury while in the
performance of duty. By decision dated August 31, 1999, OWCP accepted appellant’s claim for
right wrist strain, left rotator cuff tear, and lumbar strain.
Appellant subsequently filed a claim for compensation (Form CA-7) for a schedule award.
By decision dated February 27, 2001, OWCP granted appellant a schedule award for 42 percent
permanent impairment of the right upper extremity, 24 percent permanent impairment of the left
upper extremity, 3 percent permanent impairment of the right lower extremity, and 10 percent
permanent impairment of the left lower extremity. The period of the award ran for 228.96 weeks
from January 9, 2001 through May 30, 2005.4
By decision dated February 22, 2011, OWCP granted appellant a schedule award for an
additional three percent permanent impairment of the right upper extremity. The period of the
award ran for 9.36 weeks from July 21 through September 24, 2009.
On August 2, 2017 appellant filed a Form CA-7 claim for compensation for an additional
schedule award.
By decision dated April 13, 2018, OWCP granted appellant a schedule award for an
additional nine percent permanent impairment of the right lower extremity and an additional two
percent permanent impairment of the left lower extremity. It denied his request for an additional
schedule award for permanent impairment of the upper extremities.
On July 3, 2018 appellant timely appealed the April 13, 2018 merit decision to the Board.
By decision dated August 12, 2019, the Board noted that appellant had previously received
schedule award compensation for 47 percent permanent impairment of the right upper extremity,
31 percent permanent impairment of the left upper extremity, and 12 percent permanent

3

Docket No. 18-1355 (issued April 12, 2019).

4

In OWCP File No. xxxxxx055, appellant filed an occupational disease claim (Form CA-2) on June 20, 1996.
OWCP accepted left olecranon spur and granted him a schedule award for seven percent permanent impairment of the
left lower extremity. Additionally, OWCP File No. xxxxxx500 granted appellant a schedule award for two percent
permanent impairment of the right upper extremity. These claims have been administratively combined with the
present claim and OWCP File No. xxxxxx490 serves as the master file.

2

impairment of each lower extremity.5 The Board found that the case was not in posture for decision
as OWCP failed to provide a complete statement of accepted facts (SOAF) to the second opinion
physician. The Board directed OWCP to update the SOAF to include all of the accepted conditions
and refer appellant for a second opinion examination to determine the extent of any additional
permanent impairment due to his accepted conditions. After this and other such further
development, OWCP was to issue a de novo decision.
OWCP prepared a SOAF dated February 5, 2020. The accepted conditions were listed as:
olecranon bursitis, left; bilateral carpal tunnel syndrome; injury to left ulnar nerve, lesion of left
ulnar nerve; strain of muscles and tendons of the rotator cuff of right shoulder, other sprain of the
right shoulder joint; sprain of the shoulder and upper arm, rotator cuff, bilateral; displacement of
lumbar intervertebral disc without myelopathy; sprain of the shoulder and upper arm,
acromioclavicular, bilateral; and primary osteoarthritis, shoulder region, bilateral.
On May 13, 2020 OWCP prepared a memorandum containing questions for the second
opinion physician. The second opinion physician was asked to provide an impairment evaluation
of the bilateral upper and lower extremities, pursuant to the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).6
On July 23, 2020 OWCP referred appellant for a second opinion examination with
Dr. Michael S. Brown, a Board-certified general surgeon. In an August 26, 2020 report,
Dr. Brown noted that it was his understanding that he was to rate permanent impairment of
appellant’s bilateral shoulders. He noted the history of injury and treatment, examined appellant,
utilized the A.M.A., Guides and concluded that she had 13 percent permanent impairment of each
upper extremity, based upon loss of range of motion (ROM).
On October 5, 2020 OWCP requested that the DMA review Dr. Brown’s August 16, 2020
impairment rating and provide his opinion and comments.
In an October 23, 2020 report, the DMA noted appellant’s history of injury and treatment
and explained that he was asked to review the August 26, 2020 report of Dr. Brown. He noted that
only her shoulders were evaluated and provided an opinion for the upper extremities. The DMA
utilized the A.M.A., Guides and concluded that appellant had 13 percent right upper extremity
impairment and 13 percent left upper extremity impairment. He indicated that she reached
maximum medical improvement on August 26, 2020.
By decision dated November 12, 2020, OWCP denied appellant’s claim for an additional
schedule award. It noted that she had previously received a schedule award of 40 percent for the
right upper extremity and 24 percent for the left upper extremity and the medical evidence did not
support an increase in the impairment already compensated.

5

Docket No. 18-1355 (issued August 12, 2019).

6

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

3

LEGAL PRECEDENT
The schedule award provisions of FECA 7 and its implementing regulations 8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, OWCP has adopted the A.M.A., Guides as
the uniform standard applicable to all claimants.9 As of May 1, 2009, the sixth edition of the
A.M.A., Guides is used to calculate schedule awards. 10
The sixth edition of the A.M.A., Guides provides a diagnosis-based impairment method of
evaluation utilizing the World Health Organization’s International Classification of Functioning,
Disability and Health (ICF): A Contemporary Model of Disablement.11 Under the sixth edition,
for lower extremity impairments the evaluator identifies the impairment of the class of diagnosis
(CDX), which is then adjusted by a grade modifier for functional history (GMFH), a grade
modifier for physical examination (GMPE), and/or a grade modifier for clinical studies (GMCS).12
The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).13 The
standards for evaluation of permanent impairment of an extremity under the A.M.A., Guides are
based on all factors that prevent a limb from functioning normally, such as pain, sensory deficit,
and loss of strength. 14
Neither FECA, nor its implementing regulations, provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole. 15 However, a
schedule award is permissible where the employment-related spinal condition affects the upper
and/or lower extremities. 16 The sixth edition of the A.M.A., Guides provides a specific
methodology for rating spinal nerve extremity impairment in The Guides Newsletter, Rating Spinal
Nerve Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Id. See A.D., Docket No. 20-0553 (issued April 19, 2021); see also T.T., Docket No. 18-1622 (issued
May 14, 2019).
10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Chapter 3.700.2 and Exhibit 1 (January 2010).
11

A.M.A., Guides, page 3, section 1.3(a).

12

Id. at 493-556.

13

Id. at 521.

14

C.H., Docket No. 17-1065 (issued December 14, 2017); E.B., Docket No. 10-0670 (issued October 5, 2010);
Robert V. Disalvatore, 54 ECAB 351 (2003); Tammy L. Meehan, 53 ECAB 229 (2001).
15

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see A.G., Docket No. 18-0815 (issued January 24, 2019);
Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).
16

See supra note 10 at Chapter 2.808.5c(3) (March 2017).

4

Newsletter).17 Recognizing that certain jurisdictions, such as federal claims under FECA, mandate
ratings for extremities and preclude ratings for the spine, the A.M.A., Guides has offered an
approach to rating spinal nerve impairments consistent with sixth edition methodology.18 For
peripheral nerve impairments to the upper or lower extremities resulting from spinal injuries,
OWCP’s procedures provide that The Guides Newsletter is to be applied. 19
ANALYSIS
The Board finds that this case is not in posture for decision.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of the April 13, 2018 decision because the Board
considered that evidence in its August 12, 2019 decision. Findings made in prior Board decisions
are res judicata absent any further review by OWCP under section 8128 of FECA. 20
In the prior appeal, the Board directed that OWCP prepare a SOAF that included all of the
accepted conditions, and thereafter refer appellant for a second opinion evaluation to determine
the extent of any additional permanent impairment due to his accepted conditions. While, in the
May 13, 2020 memorandum, OWCP requested that the second opinion physician perform an
impairment evaluation of the bilateral upper and lower extremities under the A.M.A., Guides, both
the second opinion physician, Dr. Brown, in his August 26, 2020 report and the DMA in his
October 23, 2020 report only provided a permanent impairment rating addressing permanent
impairment of her bilateral shoulders.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
While the claimant has the responsibility to establish entitlement to compensation,
OWCP shares responsibility in the development of the evidence. It has the obligation to see that
justice is done. 22 Accordingly, once OWCP undertakes to develop the medical evidence further,
it has the responsibility to do so in a manner that will resolve all of the relevant issues in the case.23
arbiter.21

17

Supra note 10 at Chapter 3.700, Exhibit 4 (January 2010).

18

Supra note 10 at Chapter 2.808.5(c)(3).

19

Supra note 10 at Chapter 3.700, at Exhibit 4.

20

M.D., Docket No. 19-0510 (issued August 6, 2019); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

21

See R.R., Docket No. 18-0914 (issued February 24, 2020); M.T., Docket No. 19-0373 (issued August 22, 2019);
B.A., Docket No. 17-1360 (issued January 10, 2018).
22

C.T., Docket No. 20-0043 (issued April 20, 2021); Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).
23

T.C., Docket No. 17-1906 (issued January 10, 2018).

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On remand OWCP shall refer appellant and the case record, including an updated SOAF,24
to a second opinion physician for an examination and impairment ratings for appellant’s right and
left upper and lower extremities. Following this and other such further development as deemed
necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 12, 2020 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: January 24, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

24

The Board also notes in this regard that the SOAF should include a proper statement regarding the previous
schedule awards totaling 47 percent permanent impairment of the right upper extremity, 31 percent permanent
impairment of the left upper extremity, and 12 percent permanent impairment of each lower extremity.

6