United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.S., Appellant
and
U.S. POSTAL SERVICE, QUINCY POST
OFFICE, Quincy, MA, Employer
__________________________________________

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Appearances:
John DeGeneres, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0559
Issued: October 29, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On January 14, 2020 appellant, through counsel, filed a timely appeal from a December 2,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the
Federal Employees’ Compensation Act3 (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
Appellant timely requested oral argument pursuant to section 501.5(b) of the Board’s Rules of Procedure. 20
C.F.R. § 501.5(b). By order dated October 26, 2020, the Board exercised its discretion and denied the request, finding
that the argument on appeal could adequately be addressed in a decision based on the case record. Order Denying
Request for Oral Argument, Docket No. 20-0559 (issued October 26, 2020).
3

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish greater than
21 percent permanent impairment of his right lower extremity, for which he previously received a
schedule award; and (2) whether OWCP abused its discretion in denying appellant’s request for
subpoenas.
FACTUAL HISTORY
OWCP accepted that on July 9, 2009 appellant, then a 63-year-old letter carrier, sustained
a right hip occupational injury due to factors of federal employment. By decision dated August 5,
2009, it accepted the claim for aggravation of preexisting osteoarthritis of the right hip, but later
found a permanent aggravation.
On April 21, 2009 Dr. Peter Dewire, appellant’s treating physician and a Board-certified
orthopedic surgeon, performed an OWCP-approved total right hip replacement.
In a March 12, 2014 report, Dr. Dewire reported that appellant was referred by his attorney
for an evaluation of the left hip and knees. He reported that his examination revealed full painless
range of motion of the right hip and full painless range of motion of the left hip. Dr. Dewire noted
that it had been nearly four years since appellant’s total right hip replacement and he was doing
well postoperatively. He found that evaluation of the left hip joint revealed normal findings and
radiographs also confirmed normal left hip findings.
On March 25, 2014 appellant filed a claim for a schedule award (Form CA-7). In support
of his claim, he submitted a March 4, 2014 impairment evaluation from Dr. Byron V. Hartunian,
a Board-certified orthopedic surgeon. Dr. Hartunian provided right hip examination findings,
noting mild discomfort at the combined flexion and rotation. He reported that the range of motion
(ROM) of right hip was measured with a goniometer and performed three times with the highest
range recorded which amounted to 87 degrees flexion, 8 degrees extension, 14 degrees internal
rotation, 20 degrees external rotation, 27 degrees abduction, and 16 degrees adduction.
Dr. Hartunian diagnosed status post right total hip replacement for end stage degenerative arthritis
and determined that maximum medical improvement (MMI) had been reached. In accordance
with the American Medical Association, Guides to the Evaluation of Permanent Impairment (6th
ed. 2009) (A.M.A., Guides),4 Table 16-4 on page 515, he identified the diagnosis as class 3 hip
replacement, which yielded a default impairment value of 37 percent. When determining the
impairment class, Dr. Hartunian noted a class 3 diagnosis was used for total hip replacement due
to mild motion deficit based on the right hip ROM findings of 87 degrees flexion, 14 degrees
internal rotation, and 20 degrees external rotation.5 He discussed grade modifiers and explained
that functional history (GMFH) would amount to a grade modifier of one for an antalgic limp and
a mild problem for gait derangement. However, Dr. Hartunian reported that appellant’s American
Academy of Orthopedic Surgery (AAOS) Lower Limb Questionnaire indicated a grade three
modifier due to severe deficit, explaining that the higher grade modifier should be used in the
4

A.M.A., Guides (2009).

5

Id. at 549, Table 16-24.

2

calculation based on the A.M.A., Guides.6 He did not assign a grade modifier for physical
examination (GMPE) as it was used to determine class placement. Dr. Hartunian further explained
that grade modifier for clinical studies (GMCS) was excluded from the net adjustment formula as
postoperative x-rays taken at the one year follow-up merely confirmed the diagnosis. Application
of the net adjustment formula amounted to no adjustment resulting in a grade C default value of
37 percent permanent impairment of the right lower extremity. Dr. Hartunian determined that
MMI was reached on April 30, 2010, the date of Dr. Dewire’s examination.
Following review by an OWCP district medical adviser (DMA), the case was referred to
Dr. Christopher Geary, a Board-certified orthopedic surgeon, for a second opinion evaluation and
opinion on permanent impairment of the right lower extremity on October 30, 2014.
In an October 30, 2014 report, Dr. Geary reported that appellant walked with a mildly
antalgic gait. He noted right hip findings of 90 degrees forward flexion, 10 degrees internal
rotation, and 25 degrees external rotation. Dr. Geary determined that appellant sustained a
permanent aggravation of his right hip degenerative joint disease (DJD) as a result of his 2009
work-related accident. He found that utilizing Table 16-4, Hip Regional Grid, of the A.M.A.,
Guides, a diagnosis-based impairment (DBI) of total hip replacement with a good result
represented a class 2 impairment value.7 Dr. Geary assigned grade modifiers of one for GMFH,
one for GMPE, and two for GMCS. Application of the net adjustment formula amounted to a net
grade modifier of negative two, warranting movement two places to the left of the default value
equaling 21 percent permanent impairment of the right lower extremity. Dr. Geary concluded that
MMI was reached on April 30, 2010.
The file was reviewed by a DMA who agreed with Dr. Geary’s rating of 21 percent
permanent impairment of the right lower extremity.
In reports dated June 4, 2014 and August 30, 2015 report, Dr. Hartunian disagreed with the
21 percent impairment rating of the right hip and contended that Dr. Geary failed to provide a
medical examination in accordance with the A.M.A., Guides.
By decision dated October 17, 2016, OWCP granted appellant a schedule award for 21
percent permanent impairment of the right lower extremity.
On November 10, 2016 appellant, through counsel, requested an oral hearing.
By decision dated June 6, 2017, a hearing representative set aside the October 17, 2016
decision and remanded the case for a referee examination due to a conflict in medical opinion
between Dr. Hartunian for appellant and Dr. Geary for the government.
On remand OWCP referred appellant to Dr. John Chaglassian, a Board-certified orthopedic
surgeon, for an impartial medical examination (IME) on September 6, 2017 to resolve the conflict
in the case. In his September 6, 2017 report, Dr. Chaglassian reported that right hip ROM testing
6

Id. at 515, Table 16-4.

7

Id.

3

revealed 90 degrees flexion, 0 degrees extension, 30 degrees abduction, 10 degrees internal
rotation in flexion, and 35 degrees external rotation in flexion. He reported that impairment was
assessed based upon the need for a hip replacement with subsequent pain, limp, and loss of ROM.
Dr. Chaglassian assigned a class 2 diagnosis for total hip replacement with good results. He
assigned grade modifiers of one for GMFH, one for GMPE, and one for GMCS. Following
application of the net adjustment formula, Dr. Chaglassian determined that a class 2 grade A
diagnosis for total right hip replacement amounted to 21 percent permanent impairment of the right
lower extremity.8
By decision dated October 4, 2017, OWCP denied entitlement to a schedule award greater
than the 21 percent permanent impairment of the right lower extremity previously received.
On October 16, 2017 appellant, through counsel, requested an oral hearing.
By decision dated June 6, 2018, an OWCP hearing representative set aside the October 4,
2017 decision and remanded the case for further development. The hearing representative
requested that Dr. Chaglassian provide a supplemental report with additional rationale explaining
his calculations, and further instructed that the report of the referee physician should be reviewed
by a DMA to determine the A.M.A., Guides were properly applied to his examination findings.
On June 13, 2018 Dr. Chaglassian’s report was reviewed by a DMA who opined that the
ROM findings amounted to mild motion impairment for assignment of a class 3 diagnosis for total
right hip arthroplasty with a fair result, amounting to 37 percent permanent impairment of the right
lower extremity.
In a June 18, 2018 report, Dr. Chaglassian reviewed the DMA’s recommendation and
revised his impairment rating to 37 percent permanent impairment of the right lower extremity.
He found that the ROM findings for flexion and internal rotation qualified as mild motion
impairment, which justified a class 3 diagnosis for total right hip replacement with fair result.
On July 6, 2018 a DMA reviewed Dr. Chaglassian’s June 18, 2018 report and revised his
prior assessment, noting that the class 3 diagnosis for total hip replacement would actually amount
to 31 percent permanent impairment of the right lower extremity. He explained that application
of the grade modifiers in the net adjustment formula warranted movement two places to the left of
the grade C default value to grade A.
Following the DMA’s July 6, 2018 report, OWCP requested clarification from
Dr. Chaglassian pertaining to his impairment rating. In an August 8, 2018 report, Dr. Chaglassian
revised his impairment rating back to 21 percent permanent impairment of the right lower
extremity.
By decision dated August 14, 2018, OWCP denied an increased schedule award finding
that appellant had previously been granted a schedule award for 21 percent permanent impairment
of the right lower extremity, and that the special weight of medical evidence rested with

8

Id.

4

Dr. Chaglassian, serving as the referee physician, who indicated that appellant had no more than
21 percent permanent impairment of the right lower extremity.
By decision dated December 3, 2018, OWCP’s hearing representative set aside the
August 14, 2018 decision and remanded the case for further development. She determined that
Dr. Chaglassian failed to adequately resolve the conflict of medical opinion in the case and should
not have been afforded the weight of the medical evidence. The hearing representative further
found that Dr. Chaglassian offered conflicting opinions with regard to impairment and provided
no explanation to support the difference in the impairment ratings. The case was remanded for
referral to a new impartial medical examiner to resolve the conflict originally identified between
Dr. Hartunian and Dr. Geary.
On remand OWCP referred appellant to Dr. Robert R. Pennell, a Board-certified orthopedic
surgeon, for an impartial medical examination to resolve the continuing conflict regarding the
extent of appellant’s right lower extremity impairment.
In a March 14, 2019 report, Dr. Pennell provided physical examination and ROM findings
using a goniometer for both the right and left hip joints while measured with appellant in the supine
position in accordance with the A.M.A., Guides. He indicated that he had appellant use both hands
to stabilize one knee as each hip was measured. Each measurement was repeated three times, and
the measurements were reproducible. Dr. Pennell’s examination findings indicated that in the
supine position, the right hip could ﬂex 95 degrees with slight discomfort, the left hip could ﬂex
100 degrees, and there was no ﬂexion contracture. He reported that passively, both hip joints
allowed 30 degrees of abduction and 15 degrees of adduction. Dr. Pennell indicated that while in
the prone position, the right hip measured 30 degrees of internal rotation, 35 degrees of external
rotation, and five degrees of hyperextension, while the left hip measured 20 degrees of internal
rotation, 30 degrees of external rotation, and 10 degrees of hyperextension.
Dr. Pennell explained that the basis of the conflict between Dr. Hartunian and Dr. Geary
involved range of motion pertaining to the right hip, noting that a mild loss of ROM would result
in class 3 placement while a normal ROM would result in class 2 placement of Table 16-4 of the
A.M.A., Guides.9 He referenced page 544 of the A.M.A., Guides under ROM measurements
which provides that both extremities should be compared, noting that, if the contralateral joint is
uninjured, it may serve as defining normal for the individual.”10 Dr. Pennell also referenced page
461 of the A.M.A., Guides which provides that if the opposite extremity is neither involved nor
previously injured, it must be used to define normal for that individual, and any losses should be
made in comparison to the opposite normal extremity.11 He reported that neither Dr. Hartunian
nor Dr. Geary examined the left hip joint with ROM measurements, which show a greater loss of
motion on the left than the right. Dr. Pennell explained that when ROM measurements of both hip
joints document “mild” impairment, as in appellant’s case, Table 16-24 of the A.M.A., Guides
considers it to reflect no impairment for the purposes of the rating. Therefore, he determined that
9

Id.

10

Id. at 544.

11

Id. at 461.

5

appellant’s right hip warranted a class 2 diagnosis for a good result of the right hip joint
replacement.
Utilizing Table 16-4, Dr. Pennell assigned a class 2 impairment of the right lower extremity
as a result of a total hip joint replacement with a good result, good position, stable, functional, and
no loss of motion. He applied a GMFH of one due to an occasional limp, a GMPE of one due to
minimal palpatory ﬁndings of mild tenderness over the trochanteric bursa, and a GMCS of zero
due to no relevant findings. Utilizing the net adjustment formula warranted movement two places
to the left of the default value to grade A, totaling 21 percent permanent impairment of the right
lower extremity. Dr. Pennell explained that the main conﬂict between Dr. Geary and Dr. Hartunian
centered on whether or not appellant had loss of motion of his right hip joint, which would place
him in a class 2 or class 3 assignment for a right total hip replacement. In that regard, he found
that neither Dr. Geary nor Dr. Hartunian followed the instructions of the A.M.A., Guides by
examining the opposite left hip joint to include in their motion rating and impairment calculations.
Dr. Pennell also noted a large difference between appellant’s symptoms, the level of functioning
as reported in the lower limb questionnaire that he signed on March 4, 2014, and his reported level
of functioning during his current evaluation.
On May 21, 2019 Dr. Arthur Harris, a Board-certified orthopedic surgeon serving as a
DMA, reviewed Dr. Pennell’s report and the corresponding evidence of record for an opinion on
permanent partial impairment of appellant’s right lower extremity. He concurred with
Dr. Pennell’s assessment of 21 percent permanent impairment of the right lower extremity based
on a class 2, grade A impairment for a right hip replacement arthroplasty with a good result.
By decision dated June 28, 2019, OWCP found that appellant was entitled to no more than
the previously awarded schedule award for 21 percent permanent impairment of the right lower
extremity.
On July 15, 2019 appellant, through counsel, requested an oral hearing before an OWCP
hearing representative. Appellant, through counsel, requested the issuance of subpoenas to compel
Dr. Pennell and Dr. Katz to testify during the oral hearing. Counsel asserted that the anticipated
testimony of these physicians was necessary to determine which findings formed the basis of their
decision and whether the weight of the medical evidence was properly afforded to them.
In a September 16, 2019 informational letter, OWCP’s hearing representative denied
appellant’s request for subpoenas. In denying the request, she explained that appellant had not
demonstrated that evidence from Drs. Pennell and Katz could not be obtained without the use of
subpoenas, including obtaining such evidence in writing if further clarification was deemed
necessary to resolve the underlying issue of the present case. The hearing representative indicated
that her denial of appellant’s subpoena request did not constitute a formal, appealable decision,
and advised that any unfavorable decision issued after the requested hearing was held would
contain a specific finding on the subpoena matter.
A telephone hearing was held on October 22, 2019. Counsel asserted that it was not
necessary to compare the right lower extremity to the left lower extremity and noted his bases for
disagreement with Dr. Pennell’s application of the A.M.A., Guides.

6

The record was held open for 30 days to allow for the submission of additional evidence.
On October 23, 2019 counsel submitted a post-hearing memorandum, a copy of a
November 20, 2008 CT scan of the right hip and pelvis, and an August 4, 2009 progress report
which indicated that appellant had a prior medical history of left hip osteoarthritis. The
November 20, 2008 right hip and pelvis CT scan indicated that the study also provided axial
images of the pelvis and left hip showing degenerative changes at the hip joint with a prominent
degenerative cyst in the acetabulum.
By decision dated December 2, 2019, OWCP’s hearing representative affirmed the
June 28, 2019 decision finding that appellant was entitled to no more than the previously awarded
schedule award for 21 percent permanent impairment of the right lower extremity. The hearing
representative also finalized its prior denial of appellant’s request for issuance of subpoenas to
Drs. Pennell and Katz.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA and its implementing regulations 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.12 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.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.13 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).14
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the hip, the relevant portion of the leg for the present case, reference
is made to Table 16-4 (Hip Regional Grid) beginning on page 512.15 After the class of diagnosis
(CDX) is determined from the Hip Regional Grid (including identification of a default grade
value), the net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).16

12

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

13

20 C.F.R. § 10.404; L.T., Docket No. 18-1031 (March 5, 2019); see also Ronald R. Kraynak, 53 ECAB
130 (2001).
14

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5 (March 2017).
15

A.M.A., Guides 512-15.

16

Id. at 515-22.

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FECA provides that, if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination.17
For a conflict to arise, the opposing physicians’ viewpoints must be of “virtually equal weight and
rationale.”18 Where OWCP has referred the case to an IME to resolve a conflict in the medical
evidence, the opinion of such a specialist, if sufficiently well-reasoned and based upon a proper
factual background, must be given special weight.19
ANALYSIS -- ISSUE 1
The Board finds that this case is not in posture for decision.20
OWCP determined that a conflict arose between Dr. Hartunian, an attending physician, and
Dr. Geary, the second opinion physician, regarding the extent of appellant’s permanent impairment
of the right lower extremity. It ultimately referred him to Dr. Pennell, a Board-certified orthopedic
surgeon, for an impartial medical examination.
The record reflects that Dr. Hartunian calculated 37 percent permanent impairment for a
total right hip replacement based on a class 3 assignment for mild motion deficits. Dr. Geary
calculated 21 percent permanent impairment based on a class 2 assignment for a total right hip
arthroplasty with good results. The significant difference in opinion affecting the calculation of
the disparate impairment ratings of 37 and 21 percent pertained to the issue of the right hip
examination findings, including whether appellant had a normal range of motion or mild motion
deficits on examination of the right hip, whether he had fair or good results from surgery, and
whether his impairment should be placed at a class 2 or class 3 diagnosis as a result.21 The Board
notes that the two physicians also disagreed on the application and assignment of the grade
modifiers involved.
Following development of the claim, appellant was referred to Dr. Pennell for an impartial
medical examination to resolve the conflict in the case. Dr. Pennell reported that neither
Dr. Hartunian nor Dr. Geary examined appellant’s left hip joint, which showed a greater loss of
motion than on the right. Utilizing the ROM measurements of both the left and right hip,
Dr. Pennell assigned a class 2 diagnosis for total right hip joint replacement with a good result, a
good position that was stable, functional, and had no loss of motion. Assigning grade modifiers
of one for GMFH, one for GMPE, and zero for GMCS amounted to a class 2 grade A value
resulting in 21 percent permanent impairment of the right lower extremity. On May 21, 2019
Dr. Katz, serving as a DMA, reviewed Dr. Pennell’s report and agreed with his rating for 21
percent permanent impairment of the right lower extremity.

17

5 U.S.C. § 8123(a); A.R., Docket No. 18-0632 (issued October 19, 2018).

18

C.H., Docket No. 18-1065 (issued November 29, 2018).

19

W.M., Docket No. 18-0957 (issued October 15, 2018).

20

A.R., Docket No. 19-1284 (issued January 14, 2020); D.B., Docket No. 18-0409 (issued October 28, 2019).

21

See A.I., Docket No. 19-0193 (issued May 1, 2019).

8

The Board notes that review of Dr. Hartunian and Dr. Geary’s medical reports indicate that
the physicians did not evaluate the left hip joint when calculating the right hip motion deficits and
impairment rating. Dr. Pennell contended that the unaffected left hip joint established normal
range of motion when compared to the measurements from the right hip joint. He asserted that the
A.M.A., Guides provide that, both extremities should be compared, and if the contralateral joint is
uninjured, it may serve as defining normal for the individual.22 Dr. Pennell further asserted that,
if the opposite member is not involved or previously injured, any losses should be made in
comparison to the opposite normal extremity.23 However, based on the record before the Board,
it is unclear if appellant’s left hip joint is unaffected such that it would be used to classify any right
hip motion deficit for assignment of the class. The record reflects that, following the October 22,
2019 hearing, appellant submitted an August 4, 2009 progress report, which indicated a prior
medical history of left hip osteoarthritis. He also submitted a November 20, 2008 CT scan of the
right hip and pelvis, which provided axial images of the pelvis and left hip showing degenerative
changes at the hip joint with a prominent degenerative cyst in the acetabulum. The Board notes
that, while these documents provide support for a left hip injury, the record also contains evidence
to support a contrary finding, which reflects no exiting injury or disability to the left hip. In a
March 12, 2014 report, Dr. Dewire reported that appellant was referred by his attorney for an
evaluation of the left hip and knees. He found that appellant had full painless range of motion of
the left hip and radiographs also confirmed normal left hip findings. In this instance, it remains
unclear if appellant’s left hip joint measurements should be included in the impairment evaluation
of the right lower extremity. Given that the stand alone measurements of the right hip could
warrant assignment of a class 3 diagnosis for mild motion deficit, as indicated in Dr. Hartunian’s
report, OWCP must determine if the left hip joint constitutes an unaffected or uninjured extremity
such that it could be used for consideration of appellant’s right hip impairment rating. As such,
Dr. Pennell’s report cannot carry the weight of the medical evidence and serve as a basis for the
schedule award.24 Consequently, the Board finds that further development of the medical evidence
is required to determine the extent of appellant’s permanent impairment for schedule award
purposes.25
The Board will, therefore, remand the case to OWCP to further develop the medical
evidence as to the extent of appellant’s right lower extremity permanent impairment.26 OWCP
shall determine if the right hip ROM measurements establish normal range of motion or mild
motion deficit for definition of a class 2 or class 3 diagnosis for total right hip replacement, and
provide a motion deficit rating based on measurements for the right hip alone. OWCP shall
thereafter determine if the left hip is an uninjured or unaffected extremity, and whether left hip
motion measurements should be factored into evaluation of the right hip motion deficits. Given
the varying opinions provided in the application of the net adjustment formula, OWCP should also

22

A.M.A., Guides 544.

23

Id. at 461.

24

V.H., Docket No. 18-0848 (issued February 25, 2019).

25

J.M., Docket No. 19-0114 (issued June 12, 2019).

26

R.S., Docket No. 17-0344 (issued February 15, 2019).

9

request additional information pertaining to the use and assignment of grade modifiers.27
Following such further development as deemed necessary, OWCP shall issue a de novo decision.28
LEGAL PRECEDENT -- ISSUE 2
In requesting a subpoena, a claimant must explain why the testimony is relevant to the
issues in the case and why a subpoena is the best method or opportunity to obtain such evidence
because there is no other means by which the testimony could have been obtained.29 The hearing
representative of OWCP’s Branch of Hearings and Review has discretion to approve or deny a
subpoena request.30 Abuse of discretion is generally shown through proof of manifest error, a
clearly unreasonable exercise of judgment, or actions taken which are clearly contrary to logic and
probable deductions from established facts.31
ANALYSIS -- ISSUE 2
The Board finds that OWCP’s hearing representative did not abuse her discretion when she
denied appellant’s subpoena requests for the testimony of Drs. Pennell and Katz. In denying the
request, the hearing representative explained that appellant had not demonstrated that evidence
from Drs. Pennell and Katz could not be obtained without the use of subpoenas, including
obtaining such evidence in writing if further clarification was deemed necessary to resolve the
underlying issue of the present case. The Board finds that there is no reason to find that the hearing
representative’s denial of appellant’s request for subpoenas constituted an abuse of discretion
under the above-noted standard.32
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that the case is not in posture for decision with respect to the schedule
award determination. The Board also finds that OWCP did not abuse its discretion in denying
appellant’s request for subpoenas.

27

M.M., Docket No. 18-0235 (issued September 10, 2019).

28

See A.P., Docket No. 17-0813 (issued January 3, 2018).

29

See 20 C.F.R. § 10.619.

30

See id.

31

B.M., Docket No. 17-1157 (issued May 22, 2018); Gerald A. Carr, 55 ECAB 225 (2004).

32

E.C., Docket No. 18-1808 (issued May 16, 2019).

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ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated December 2, 2019 is affirmed, in part, and set aside, in part. The case is remanded
for further proceedings consistent with this opinion.
Issued: October 29, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.F., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, Vicksburg, MS,
Employer
__________________________________________

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

Docket No. 09-819
Issued: January 4, 2010

Case Submitted on the Record

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

JURISDICTION
On February 5, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated April 7 and November 10, 2008 denying her
claim for a recurrence of disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant has established that she sustained a recurrence of disability
following her retirement on June 23, 2006 causally related to her accepted March 22, 1989
employment injury.
FACTUAL HISTORY
On March 23, 1989 appellant, then a 40-year-old secretary, filed a traumatic injury claim
alleging that on March 22, 1989 she broke her left hip when she slipped and fell on wet bricks in
the parking lot. The Office accepted the claim for left femur fracture and enthesopathy of the hip

region and also accepted her January 16, 1993 and May 6, 2002 recurrence claims.1 On June 15,
2002 the employing establishment offered appellant the light-duty position of computer
specialist, which she accepted on July 15, 2002.
On January 6, 2006 appellant filed a notice of recurrence (Form CA-2a) requesting that
the Office reopen her claim for medical benefits only, which the Office accepted. Appellant
retired from the employing establishment effective June 23, 2006.
On June 26, 2006 Dr. Guy T. Vise, an attending Board-certified orthopedic surgeon,
noted appellant’s employment injury and medical histories. A review of an x-ray interpretation
showed some very early left hip degenerative changes and some heterotopic bone formation
around the greater trochanter. Dr. Vise diagnosed left hip fracture with symptomatic hardware
and heterotopic calcification. He then provided an impairment rating for her left lower extremity
of 37.5 percent.
On November 14, 2006 Dr. Vise reported that appellant had bilateral knee osteoarthritis,
lumbar spine osteoarthritis, right hip osteoarthritis, cervical root compression at C6 and C7,
morbid obesity and bilateral carpal tunnel syndrome. As a result of these conditions, he stated
that appellant had “incredibly poor mobility” and would benefit from having a mobility scooter.
On March 21, 2007 Dr. Vise discussed appellant’s bad hip and bilateral knee conditions.
An examination of the left hip revealed moderate pain with severe pain on testing. Dr. Vise
attributed appellant’s problems to her bilateral knee condition and opined they were outside her
accepted employment injury.
On August 23, 2007 the Office received appellant’s claim for wage-loss compensation
(Form CA-7) for the period September 1, 2007 through December 31, 2010.2
On March 31, 2008 Dr. Bryon Thomas Jeffcoat, a second opinion Board-certified
orthopedic surgeon, diagnosed bilateral marked degenerative knee arthritis and postoperative
removal of cannulated screws for a left hip femoral neck fracture. A review of a left hip x-ray
interpretation “looks normal as far as the joint space” with some “small piece of heterotopic
calcification over the greater trochanter. Dr. Jeffcoat opined that any disability appellant has
from working is due to her knee condition and not her hip. In support of this conclusion,
Dr. Jeffcoat stated that the left hip femoral neck facture had healed, the left hip looked identical
to the right hip and there was “minimal, if any, evidence of degenerative changes.” In
concluding, he opined that appellant’s retirement on June 23, 2006 was not due to her accepted
hip condition, but due to her nonwork-related bilateral knee condition.
By decision dated April 7, 2008, the Office denied appellant’s claim for recurrence of
disability commencing on or about September 1, 2007. It found that there was no medical
1

On October 22, 1999 the Office issued a schedule award for a 37 percent impairment of the left lower extremity.
On September 19, 2006 it issued appellant a schedule award for an additional two percent impairment of her left
lower extremity. By decision dated January 17, 2007, the Office vacated the September 19, 2006 schedule award
decision and issued an award for an additional five percent impairment of the left leg on January 26, 2007.
2

Appellant noted the date on the form as “August 20, 2006.”

2

evidence establishing a change in appellant’s employment-related condition or that she stopped
work due to a change in the nature and extent of her light-duty job requirements.
In a letter dated April 11, 2008, appellant noted her disagreement with the Office’s
April 7, 2008 decision. She noted that she worked four hours per day five days a week from
July 15, 2002, the date she accepted the modified job position, until she retired on June 23, 2006.
Appellant also requested an oral hearing before an Office hearing representative which was held
on September 2, 2008. During the telephonic oral hearing appellant testified that her modified
job changed in September 2002. She testified that when she accepted the position in July 2002
she was only required to work four hours per day five days a week which was changed to eight
hours per day five days a week. According to appellant working full time in the modified job
worsened her condition.
With her request for reconsideration, appellant submitted medical and factual evidence in
support of her request including a June 21, 2006 letter from the Office of Personnel Management
(OPM) approving her disability retirement and medical evidence from 2005 to 2006. In the
June 21, 2006 letter, OPM informed her that it found she was disabled from performing her
modified job due to left hip degeneration of the femoral neck, lumbar degenerative disc disease
and bilateral knee severe degeneration.
Following the telephonic hearing appellant submitted an August 22, 2008 report from
Dr. George E. Abraham, II, a treating Board-certified family practitioner and geriatric medicine
specialist, and a January 6, 2006 left hip x-ray interpretation, which showed no evidence of a hip
fracture and heterotopic bone formation at the left femoral neck. Dr. Abraham diagnosed L2-L3,
L5-S1 disc desiccation, L2-L3 and L5-S1 posterior disc protrusions, L2-L3 bilateral neural
foraminal and central canal stenosis, left hip femoral neck degeneration with heterotopic bone
formation with moderate osteoarthritis, severe bilateral knee degeneration, bilateral lower
extremity moderate polyneuropathy affecting both sensor and motor nerve fibers due to diabetes
mellitus, hypertension, asthma, metabolic syndrome, morbid obesity, dyslipidemia, sleep apnea
and bilateral carpal tunnel syndrome. He attributed appellant’s disability to work due to her
bilateral carpal tunnel syndrome and her disc bulges and degeneration. According to
Dr. Abraham, appellant’s “other conditions have resulted in numerous hospital stays and also
affect her concentration at work.” Thus, he concluded that appellant “met disability guidelines
for both her job and the Social Security Administration.”
By decision dated November 10, 2008, the hearing representative affirmed the Office’s
April 7, 2008 decision, finding that appellant had not met her burden of proof in establishing a
recurrence of disability.3

3

The Board notes that, following the November 10, 2008 hearing representative’s decision, the Office received
additional evidence. However, the Board may not consider new evidence on appeal. See 20 C.F.R. § 501.2(c); J.T.,
59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008); G.G., 58 ECAB ___ (Docket No. 06-1564, issued
February 27, 2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

3

LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.4 This term also means an inability to work that takes place when a lightduty assignment made specifically to accommodate an employee’s physical limitations due to his
or her work-related injury or illness is withdrawn (except when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties or a reduction-in-force), or when the
physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.5
A person who claims a recurrence of disability has the burden of establishing by the
weight of the substantial, reliable and probative evidence that the disability, for which he claims
compensation is causally related to the accepted employment injury.6 Appellant has the burden
of establishing by the weight of the substantial, reliable and probative evidence a causal
relationship between his recurrence of disability and his employment injury.7 This burden
includes the necessity of furnishing evidence from a qualified physician who, on the basis of a
complete and accurate factual and medical history, concludes that the condition is causally
related to the employment injury.8 Moreover, the physician’s conclusion must be supported by
sound medical reasoning.9
The medical evidence must demonstrate that the claimed recurrence was caused,
precipitated, accelerated or aggravated by the accepted injury.10 In this regard, medical evidence
of bridging symptoms between the recurrence and the accepted injury must support the
physician’s conclusion of a causal relationship.11 While the opinion of a physician supporting
causal relationship need not be one of absolute medical certainty, the opinion must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty.12
4

20 C.F.R. § 10.5(x).

5

Id. See J.F., 58 ECAB ___ (Docket No. 06-186, issued October 17, 2006).

6

Kenneth R. Love, 50 ECAB 193, 199 (1998).

7

Carmen Gould, 50 ECAB 504 (1999); Lourdes Davila, 45 ECAB 139 (1993).

8

S.S., 59 ECAB ___ (Docket No. 07-579, issued January 14, 2008); Ricky S. Storms, 52 ECAB 349 (2001); see
also 20 C.F.R. § 10.104(a)-(b).
9

Alfredo Rodriguez, 47 ECAB 437 (1996); Louise G. Malloy, 45 ECAB 613 (1994).

10

See Ricky S. Storms, supra note 8; see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.2 (June 1995).
11

For the importance of bridging information in establishing a claim for a recurrence of disability, see Richard
McBride, 37 ECAB 748 at 753 (1986).
12

See Ricky S. Storms, supra note 8; Morris Scanlon, 11 ECAB 384, 385 (1960).

4

ANALYSIS
On January 6, 2006 appellant filed a claim for a recurrence of disability for medical
treatment only beginning December 10, 2005. On August 23, 2007 the Office received her claim
for wage loss for the period September 1, 2007 through December 31, 2010. The record shows
that appellant stopped work on June 23, 2006 and OPM approved her claim for disability
retirement. The Office considered the matter as a claim for a recurrence of disability on and after
June 23, 2006.13 However, appellant did not submit sufficient reasoned medical evidence
establishing that her claimed disability was due to her March 22, 1989 left femur fracture and
enthesopathy of the hip region. The Board also notes that there is no evidence showing a change
in the nature and extent of the light-duty job requirements.14 There is no evidence that
appropriate light-duty work was not made available.
The record relevant to her disability claim includes reports from Drs. Abraham, Jeffcoat
and Vise. None of the medical evidence establishes that appellant’s disability beginning June 23,
2006 was due to her accepted hip injury. Dr. Vise, who treated appellant at the time of her
disability retirement, attributed her disability from working to her bilateral knee condition.
Dr. Jeffcoat, an Office referral physician, diagnosed bilateral marked degenerative knee arthritis
and postoperative removal of cannulated screws for a left hip femoral neck fracture. He
concluded that any disability preventing appellant from working is due to her bilateral knee
condition and not her hip. Thus the reports of Drs. Jeffcoat and Vise are insufficient to meet
appellant’s burden as neither physician attributes her disability to her accepted employment
injury.
Appellant submitted an August 22, 2008 report from Dr. Abraham, to support her
recurrence of disability. Dr. Abraham diagnosed L2-3, L5-S1 disc desiccation, L2-3 and L5-S1
posterior disc protrusions, L2-3 bilateral neural foraminal and central canal stenosis, left hip
femoral neck degeneration with heterotopic bone formation with moderate osteoarthritis, severe
bilateral knee degeneration, bilateral lower extremity moderate polyneuropathy affecting both
sensor and motor nerve fibers due to diabetes mellitus, hypertension, asthma, metabolic
syndrome, morbid obesity, dyslipidemia, sleep apnea and bilateral carpal tunnel syndrome. He
provided no rationale as the cause of appellant’s disability beyond noting it was due to her
bilateral carpal tunnel syndrome, disc bulges and degeneration and noted that her other
conditions caused multiple hospital stays and affected her work concentration. The Board has

13

Although appellant did not specifically file a claim for a recurrence of disability (Form CA-2a) for wage-loss
compensation beginning June 23, 2006, Office regulations defining a recurrence of disability are applicable to this
situation and the Office properly treated it as such. See 20 C.F.R. § 10.5(x).
14

When an employee, who is disabled from the job she held when injured on account of employment-related
residuals, returns to a light-duty position or the medical evidence of record establishes that she can perform the lightduty position, the employee has the burden to establish by the weight of the reliable, probative and substantial
evidence a recurrence of total disability and show that she cannot perform such light duty. As part of this burden,
the employee must show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty job requirements. Terry R. Hedman, 38 ECAB 222, 227 (1986).

5

held that an opinion not fortified by rationale is of diminished probative value.15 Thus,
Dr. Abraham’s opinion is insufficient to establish that appellant sustained a recurrence of
disability commencing after June 23, 2006 due to her accepted March 22, 1989 employment
injury.
Appellant also submitted a January 6, 2006 left hip x-ray interpretation, which showed no
evidence of a hip fracture and heterotopic bone formation at the left femoral neck in support of
her claim. Reports of diagnostic testing submitted by her do not offer any opinion on causal
relationship between her medical condition and her reported recurrence and, thus, are of no
probative value.16
On appeal, appellant contends that the Office erred in rejecting her recurrence claim. She
also contends that at the time of her retirement, her modified job was not the same as the one she
accepted on July 15, 2002. As noted above, the record contains no evidence that appellant’s
modified job changed in September 2002 to requiring her to work full time instead of part time.
Moreover, she worked in the modified job until her retirement in June 2006. Next, appellant
contends that OPMs approval of her disability retirement establishes that her disability is due to
her accepted hip condition. She asserted that the OPM found her totally disabled from
performing her modified job based on her left hip femoral neck degeneration with heterotopic
bone formation. The Board has held that the determinations of other administrative agencies
regarding disability are not relevant under the Federal Employees’ Compensation Act as
different criteria are used and the relationship to factors of federal employment is often not at
issue.17
As appellant failed to submit the necessary factual and rationalized medical evidence to
establish that her claimed recurrence of disability is causally related to the accepted employment
injury, the Office properly denied her claim for compensation.
CONCLUSION
The Board finds that appellant has failed to meet her burden of proof in establishing a
recurrence of disability on June 23, 2006.

15

S.S., 59 ECAB ___ (Docket No. 07-579, issued January 14, 2008) (medical reports not containing rationale on
causal relation are entitled to little probative value and are generally insufficient to meet an employee’s burden of
proof).
16

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007).

17

See D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); H.S., 58 ECAB ___ (Docket No. 07582, issued June 14, 2007).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 10 and April 7, 2008 are affirmed.
Issued: January 4, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
U.S. POSTAL SERVICE, LAKE OTIS
STATION, Anchorage, AK
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-0023
Issued: July 26, 2018

Case Submitted on the Record

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

JURISDICTION
On October 2, 2017 appellant filed a timely appeal from an August 11, 2017 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 claim.
ISSUE
The issue is whether appellant has met his burden of proof to establish more than one
percent permanent impairment of each upper extremity, for which he previously received schedule
awards.
FACTUAL HISTORY
On August 12, 2014 appellant, then a 53-year-old letter carrier, filed an occupational
disease claim (Form CA-2) for a bilateral hand condition causally related to factors of his federal
1

5 U.S.C. § 8101 et seq.

employment. He first became aware of his claimed condition on August 11, 2014 and he attributed
it to repetitive movements required by his work. He claimed that his hands would close on their
own accord. Appellant did not stop work.
OWCP, by development letter dated August 14, 2014, informed appellant of the
deficiencies in his claim and afforded him 30 days to submit additional factual and medical
evidence.
In an August 11, 2014 medical report, Dr. Lisa A. Rabinowitz, Board-certified in
emergency medicine, related that appellant presented with bilateral hand and wrist pain that began
approximately one week prior. She noted his complaints and history of his medical and social
background. Dr. Rabinowitz examined appellant and provided a final impression of carpal spasm.
By decision dated October 8, 2014, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record failed to establish a diagnosed condition causally
related to the accepted employment factors.
On February 23, 2015 appellant requested reconsideration and submitted a January 28,
2015 attending physician’s report (Form CA-20) from Dr. David Roberts, a neurosurgeon.
Dr. Roberts noted that appellant complained about left wrist pain radiating up to his shoulder. He
also noted that in 2011 he underwent a left ulnar nerve transposition. Dr. Roberts reported that an
electromyogram (EMG) confirmed left carpal tunnel syndrome. He diagnosed enthesopathy of
the wrist and carpus, left carpal tunnel syndrome, and lesion on the left ulnar nerve. Dr. Roberts
checked a box marked “yes” that the diagnosed conditions were caused or aggravated by an
employment activity, which he identified as repetitive motion. He advised appellant that he could
resume light work with limitations as of the date of his examination.
The record contains a memorandum of conference, dated April 2, 2015, between an OWCP
claims examiner and appellant. Appellant described his work duties at the employing
establishment, which involved casing mail two to two and one-half hours a day and delivering
mail five to five and one-half hours a day. He noted changes in his hands about one year ago.
Appellant related that both of his hands would ball up after a hard day. He had no prior hand
injuries. Appellant was not performing full-time, full-duty work due to a lifting restriction.
On April 6, 2015 OWCP prepared a statement of accepted facts (SOAF).
By letter dated April 8, 2015, OWCP referred appellant to Dr. Thomas Gritzka, a Boardcertified orthopedic surgeon, for a second opinion examination to determine whether he had a
bilateral arm or hand condition causally related to factors of his federal employment.
In a medical report dated May 19, 2015, Dr. Gritzka reviewed the SOAF and the medical
record. He noted appellant’s medical and social background, provided a review of systems and
findings on physical examination, and diagnosed bilateral carpal tunnel syndrome, left greater than
right, related to appellant’s work activites. Dr. Gritzka advised that appellant had not yet reached
maximum medical improvement (MMI). In an addendum to his August 21, 2015 report, he noted
that EMG studies performed on August 6, 2015 revealed that appellant met the criteria for a left
carpal tunnel release. Dr. Gritzka related, however, that the EMG studies of his right upper
extremity were normal.
2

By decision dated September 3, 2015, OWCP vacated its October 8, 2014 decision and
accepted appellant’s claim for bilateral carpal tunnel based on Dr. Gritzka’s opinion.
On December 9, 2015 appellant underwent authorized left endoscopic carpal tunnel release
performed by Dr. Owen Ala, an orthopedic surgeon. OWCP paid appellant wage-loss
compensation benefits on the supplemental rolls as of the date of his surgery. On January 27, 2016
Dr. Ala performed authorized right endoscopic carpal tunnel release. OWCP paid appellant wageloss compensation on the supplemental rolls as of February 6, 2016. He returned to full-time,
modified duty work on February 12, 2016.
In reports dated April 7, 2016, Jenifer Crawley, a certified physician assistant, examined
appellant and assessed status post right endoscopic carpal tunnel release, healing well. She related
that he was doing well and that he could return to work without restriction on April 8, 2016.
In an April 7, 2016 return to work Form CA-3 worksheet, the employing establishment
notified OWCP that appellant had returned to full-time, regular-duty work with no restrictions.
On December 12, 2016 appellant filed a claim for a schedule award (Form CA-7). He did
not submit any additional evidence.
By development letter dated December 30, 2016, OWCP requested that appellant submit
additional factual and medical evidence in support of his schedule award claim, including an
impairment rating, which applied the standards of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).2 It afforded
appellant 30 days to submit the requested information.
Appellant submitted an anesthesia record dated December 9, 2015 and a duplicate copy of
Ms. Crawley’s April 7, 2016 report.
On March 16, 2017 OWCP denied appellant’s claim for a schedule award. It found that
the medical evidence submitted failed to establish that he sustained measurable impairment due to
his accepted employment injury.
On May 5, 2017 appellant requested reconsideration.
In an April 26, 2017 report, Dr. Sean D. Taylor, a Board-certified physiatrist, noted that
Dr. Ala had referred appellant for a permanent impairment evaluation. He related a history of the
accepted employment injury and appellant’s medical, family, and social background. Dr. Taylor
reviewed medical records. On physical examination he reported that appellant was resting
comfortably in no acute distress. Dr. Taylor found that strength throughout the bilateral upper
extremities was five out of five. There was no atrophy noted on visual inspection of the bilateral
upper extremities. Normal muscle bulk was found in the bilateral abductor pollicis brevis. A
sensory examination included monofilament testing at 3.61 millimeter (mm) in the left thumb and
little finger, 4.31 mm in the left index, middle, and ring fingers, 2.83 mm in the little and ring
fingers, and 4.31 mm in the right thumb, index, and middle fingers. An examination of the bilateral
2

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

3

wrists and elbows revealed negative Tinel’s and Phalen’s tests. Dr. Taylor diagnosed bilateral
carpal tunnel syndrome. He noted that appellant was status post bilateral carpal tunnel release.
Dr. Taylor related that he was medically stable at the time Dr. Ala had referred him for a permanent
impairment rating.
Utilizing Table 15-23 (Entrapment/Compression Neuropathy Impairment) on page 449 of
the sixth edition of the A.M.A., Guides, for the right wrist, Dr. Taylor assigned a grade modifier 0
for clinical studies (GMCS) based on the findings of a September 24, 2014 EMG and nerve
conduction velocity (NCV) study.3 He assigned a grade modifier 2 for functional history (GMFH),
which was remarkable for significant intermittent symptoms. Dr. Taylor assigned a grade modifier
2 for physical examination (GMPE). He found an average modifier of 1.33. Dr. Taylor determined
that the default grade modifier was one, resulting in a default upper extremity impairment of two
percent. He related that appellant had a QuickDASH (Disabilities of the Arm, Shoulder, and Hand)
score of 66 that was consistent with position three, which yielded three percent right upper
extremity impairment. Dr. Taylor used Table 15-11 on page 420 to convert the three percent upper
extremity impairment rating to a two percent whole person impairment rating. For the left wrist,
he applied a grade modifier one for GMCS based on the September 24, 2014 EMG/NCV study
results. Dr. Taylor applied a grade modifier two for GMFH, noting that appellant had significant
intermittent symptoms. He applied a grade modifier two for GMPE. Dr. Taylor found an average
modifier of 1.66, which represented a default grade modifier two and a default upper extremity
impairment of five percent. He determined that a QuickDASH score of 66 was consistent with
position three, which yielded six percent left upper extremity impairment. Utilizing Table 15-11,
Dr. Taylor converted the six percent upper extremity impairment rating to four percent whole
person impairment rating. Using the combined values chart on page 604, he combined the two
percent whole person impairment on the right and the four percent whole person impairment on
the left to calculate six percent whole person impairment rating. Dr. Taylor summarized that
appellant had sustained six percent whole person impairment as a result of his work-related injury.
On July 31, 2017 Dr. Michael M. Katz, an OWCP medical adviser and a Board-certified
orthopedic surgeon, reviewed the April 6, 2015 SOAF and the medical record, including
Dr. Taylor’s April 26, 2017 findings. He found that Dr. Taylor’s report was problematic as the
electrodiagnostics performed prior to appellant’s surgery did not confirm sufficient changes in the
median nerve function to warrant use of Table 15-23 to calculate impairment for carpal tunnel
syndrome (no median nerve abnormalities were reported in the September 24, 2014 study).
Furthermore, Dr. Katz indicated that ulnar nerve lesion of the left upper extremity was not an
accepted condition under the claim. He related that, according to the A.M.A., Guides, pages 445
and 446, the diagnosis of focal neuropathy syndrome must be documented by sensory and motor
nerve conduction studies and/or needle EMG in order to be ratable as an impairment and that
normal electrodiagnostic tests failed to meet the definitions necessary to permit a diagnosis of focal
nerve compromise for the purpose of rating impairment. Dr. Katz further related that, under these
circumstances, the A.M.A., Guides, pages 445 and 446, required the wrists to be rated as
nonspecific wrist pain.4 He determined that, under Table 15-3, Wrist Regional Grid, on page 395,
using the diagnosis of wrist pain, nonspecific, residual symptoms, appellant had a class of
3

The September 24, 2014 EMG/NCV study provided an impression of left cubital tunnel syndrome.

4

A.M.A., Guides 445-46.

4

diagnosis 1 (CDX 1) impairment, which represented one percent impairment default value.
Dr. Katz assigned a grade modifier 1 for GMPE and advised that Dr. Taylor’s grade modifier three
for GMFH and a GMCS were not applicable. Using the net adjustment formula of (GMPE - CDX)
or (1-1), he found that the net adjustment was zero, resulting in one percent permanent impairment,
grade C. Dr. Katz noted that the QuickDASH score of 66 was not applicable in his determination
because the functional history was unreliable. Citing the A.M.A., Guides on page 406, he noted
that, if functional history differed by two or more grades from the clinical studies or physical
examination findings, it should be assumed to be unreliable. Dr. Katz also noted that, if the
functional history was unreliable or inconsistent with other documentation, it was excluded from
the grading process. He concluded that appellant had one percent impairment of each upper
extremity. Dr. Katz determined that appellant had reached MMI on April 26, 2016, the date of
Dr. Taylor’s examination.
In an August 7, 2017 decision, OWCP vacated its March 16, 2016 decision, finding that
appellant had sustained permanent impairment of a scheduled member due to his accepted
employment injury. It noted that a decision addressing his claim for a schedule award would be
issued under separate cover.
By decision dated August 11, 2017, OWCP granted appellant a schedule award for one
percent permanent impairment of each upper extremity. The period of the award, equivalent to
6.24 weeks, ran from April 26 to June 8, 2017. OWCP based its determination on Dr. Katz’s
July 31, 2017 report, which evaluated the April 26, 2017 findings of Dr. Taylor.
LEGAL PRECEDENT
The schedule award provisions of FECA5 and its implementing federal regulations6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions, and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member, function,
or organ shall be determined. To ensure consistent results and equal justice for all claimants under
the law, good administrative practice requires the use of uniform standards applicable to all
claimants.7 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.8 As of May 1, 2009, schedule awards are
determined in accordance with the sixth edition of the A.M.A., Guides (2009).9 The Board has
approved the use by OWCP of the A.M.A., Guides for the purpose of determining the percentage
loss of use of a member of the body for schedule award purposes.10 It is well established that in
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

8

Id.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (March 2017).
10

Isidoro Rivera, 12 ECAB 348 (1961).

5

determining the amount of a schedule award for a member of the body that sustained an
employment-related permanent impairment, preexisting impairments are to be included.11
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).12 Under the sixth edition, the evaluator identifies the impairment class for the
CDX, which is then adjusted by grade modifiers based on GMFH, GMPE, and GMCS.13 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).14
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing
rationale for the percentage of impairment specified.15
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome. It authorized left
endoscopic carpal tunnel release performed on December 9, 2015 and right endoscopic carpal
tunnel release performed on January 27, 2016. Dr. Ala performed the surgeries. Appellant
claimed a schedule award on December 12, 2016. By decision dated August 11, 2017, OWCP
granted him a schedule award for one percent permanent impairment of each upper extremity. It
is appellant’s burden of proof to submit sufficient evidence to establish the extent of permanent
impairment.16
Appellant submitted an April 26, 2017 report from Dr. Taylor who diagnosed bilateral
carpal tunnel syndrome. Utilizing the sixth edition of the A.M.A., Guides, Dr. Taylor found that
appellant had six percent permanent impairment of the whole person due to the accepted
employment injury. The overall rating included three percent permanent impairment of the right
upper extremity due to appellant’s entrapment compression neuropathy, which Dr. Taylor
converted to a two percent whole person impairment rating and six percent permanent impairment
of the left upper extremity due to the same nerve condition which he converted to a four percent

11

See Dale B. Larson, 41 ECAB 481, 490 (1990); supra note 8 at Part 3 -- Medical, Schedule Awards, Chapter
3.700.3.a.3 (January 2010). This portion of OWCP procedures provides that the impairment rating of a given
scheduled member should include any preexisting permanent impairment of the same member or function.
12

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
13

Id. at 494-531.

14

Id. at 521.

15

See Federal (FECA) Procedure Manual, supra note 8 at Chapter 2.808.6(f) (February 2013).

16

Tania R. Keka, 55 ECAB 354 (2004).

6

whole person impairment rating.17 Dr. Taylor combined the two percent whole person impairment
rating for the right upper extremity and the four percent whole person impairment rating for the
left upper extremity to calculate a six percent whole person impairment rating.18 He concluded
that appellant had sustained six percent whole person impairment as a result of his work-related
injury. The Board notes however that there is no statutory basis for the payment of a schedule
award for whole body impairment under FECA.19
In accordance with its procedures, OWCP properly referred the evidence of record to its
OWCP medical adviser, Dr. Katz. In his July 31, 2017 report, Dr. Katz reviewed the medical
evidence of record, including Dr. Taylor’s April 26, 2017 findings, and determined that appellant
had one percent permanent impairment of each upper extremity due to bilateral wrist nonspecific
pain. As noted, however, appellant’s claim was accepted for bilateral carpal tunnel syndrome. In
addition, the Board notes that the SOAF provided to Dr. Katz did not include the accepted
condition, as it was prepared prior to the acceptance of any medical conditions in this claim and
was not updated. Thus, Dr. Katz did not provide an impairment rating based on the accepted
bilateral carpal tunnel syndrome condition.
OWCP procedures indicate that accepted conditions must be included in a SOAF and
further provides that, when an OWCP medical adviser renders a medical opinion based on a SOAF
which is incomplete or inaccurate or does not use the SOAF as the framework in forming his or
her opinion, the probative value of the opinion is diminished.20 In this case, Dr. Katz did not have
a complete SOAF for review. Since he rendered his medical opinion based on an incomplete
factual statement omitting appellant’s accepted condition of bilateral carpal tunnel syndrome, the
probative value of his report is diminished. The Board finds, therefore, that the case must be
remanded to OWCP for further development.21
On remand OWCP should prepare an updated SOAF which includes all accepted
conditions. The case shall then be forwarded to Dr. Katz for a supplemental opinion addressing
whether appellant has permanent impairment in accordance with the sixth edition of the A.M.A.,
Guides. Following this and such further development deemed necessary, OWCP shall issue a
de novo decision on appellant’s schedule award claim.
CONCLUSION
The Board finds that the case is not in posture for decision.

17

A.M.A., Guides 449, 420, Tables 15-23, 15-11, respectively.

18

Id. at 604, Combined Values Chart.

19

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); K.S., Docket No. 15-1082 (issued April 18, 2017); Jay K.
Tomokiyo, 51 ECAB 361, 367 (2000).
20

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).
21

A.R., Docket No. 10-0515 (issued November 16, 2010).

7

ORDER
IT IS HEREBY ORDERED THAT the August 11, 2017 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: July 26, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.R., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, Las Vegas, NV,
Employer
__________________________________________

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

Docket No. 15-1617
Issued: March 1, 2016

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 July 24, 2015 appellant filed a timely appeal from a July 6, 2015 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 the claim.
ISSUE
The issue is whether appellant established entitlement to compensation for wage loss
commencing as of July 7, 2014 causally related to her accepted employment injuries.
FACTUAL HISTORY
OWCP has accepted that appellant, then a 30-year-old special agent, sustained a
traumatic injury while engaged in a defensive tactics exercise on September 17, 1999. It
assigned this OWCP file number xxxxxx978 and accepted a lumbar strain and displacement of
the L4-5 lumbar intervertebral disc without myelopathy. Appellant’s ongoing back symptoms
caused her to be reassigned from the Quantico Testing Center in Virginia to the Las Vegas field
1

5 U.S.C. § 8101 et seq.

office for light-duty work as a support services clerk. While in the course of her light duty on
January 20, 2000 she lifted some boxes and experienced an increase in her back pain. On
February 5, 2000 appellant filed a new traumatic injury claim (Form CA-1), which was assigned
OWCP file number xxxxxx849. OWCP accepted this claim for an aggravation of the lumbar
strain, displacement of the L4-5 lumbar intervertebral disc without myelopathy, and
complications of bone marrow transplant. Appellant resigned from the clerk positon on June 16,
2000 and started working as a teacher effective August 28, 2000.
Appellant underwent back surgery on June 6, 2003, which was not authorized by OWCP.
Following this surgery, she returned to work as a teacher. By decision dated September 8, 2004,
OWCP terminated appellant’s wage-loss compensation effective September 10, 2004.
On June 23, 2014 appellant filed a claim for compensation (Form CA-7), claiming wage
loss from work due to a change or worsening of her accepted work-related conditions effective
July 7, 2014. In a June 23, 2014 supplemental statement, she explained that her initial injury
occurred on September 17, 1999 at the employing establishment academy. Appellant’s second
injury occurred on January 20, 2000 and was essentially a recurrence of the initial injury.
OWCP received a May 29, 2014 magnetic resonance imaging (MRI) scan which was
interpreted by Dr. David Haas, a Board-certified diagnostic radiologist, as revealing L5-S1 disc
space narrowing with degenerated desiccated disc, L4-5 dehydrated disc with small annular tear
and disc bulge, and scoliosis.
In a June 5, 2014 report, Dr. Luis L. Diaz, a Board-certified neurologist, noted the history
of injury and that appellant recently developed a new onset of low back pain radiating down to
the right leg. He noted examination findings and provided an impression of lumbosacral
radiculopathy. Dr. Diaz advised that authorization of diagnostic testing was needed to confirm
the diagnosis.
By report dated June 19, 2014, Dr. Thomas Dunn, a Board-certified orthopedic surgeon,
noted examination findings and provided, an impression of lumbar disc disease, and lumbar back
pain. He opined that appellant was unable to return to work and would be on temporary total
disability status for four weeks. Dr. Dunn advised that on a more likely than not basis, surgical
reconstruction would be required.
By letter to appellant dated July 10, 2014, OWCP noted that it had reopened her claim for
medical treatment. Appellant was advised that her claim for temporary total disability payments
was a separate issue and that the evidence received was insufficient to establish her recurrence
claim as the medical reports provided no rationalized explanation as to why she could not work.
OWCP requested additional factual and medical evidence to show disability from work,
including medical documentation to establish medical treatment or that she was unable to work
as a result of her work injury for the dates claimed. Appellant was afforded 30 days to submit
the requested information.
In a July 21, 2014 statement, appellant noted that her back condition worsened over time.
She further indicated that the mechanical back pain was from sitting for prolonged periods of
time and turning.

2

Several progress reports and medical reports from Dr. Dunn were received. In a
February 13, 2014 report, Dr. Dunn noted the history of injury and that appellant’s low back pain
had progressed and worsened. A diagnosis of lumbar disc disease and lumbar back pain were
provided and treatment options were discussed. In a March 27, 2014 report, Dr. Dunn noted that
appellant’s symptoms were unchanged from her last visit. He diagnosed lumbago and
degenerative lumbar/lumbosacral intervertebral disc and ordered diagnostic testing. In a July 21,
2014 report, Dr. Dunn noted that prolonged sitting results in a flare up of appellant’s low back
pain that radiates down the right leg. He noted that she had been off work over the past three
weeks and had some improvement. Dr. Dunn reported that appellant’s radiographic studies and
MRI scan study both document accelerated degenerative collapse with retrolisthesis L5 on S1
aggravated by bending, stooping, and prolonged sitting and that her duties consist of sitting at a
desk for up to nine hours a day which caused pain that worsened over time and became
unmanageable. He provided an impression of lumbar disc disease, lumbar back pain, and
sciatica. Dr. Dunn ordered further diagnostic studies and indicated that, due to worsening pain
and notable low back spasms, appellant would remain off work on temporary total disability. He
noted that, if her symptoms did not improve with physical therapy, she would be a surgical
candidate. On July 21, 2014 Dr. Dunn also referred appellant for physical therapy.
Other reports from Dr. Dunn dated July 7 and 28, 2014 were provided along with
physical therapy reports.
By decision dated August 19, 2014, OWCP denied appellant’s claim for recurrence of
disability as she had not established that she was disabled due to a material change/worsening of
her accepted work-related conditions without an intervening work factor. As such, appellant’s
claim for compensation effective July 7, 2014 and continuing was denied.
On September 3, 2014 appellant requested reconsideration.
Additional medical reports from Dr. Dunn were received. In an August 20, 2014 report,
Dr. Dunn noted the history of injury and that, since appellant was unable to return to the
employing establishment academy to complete her training, she returned to work as a teacher
and has continued in that occupation. He reported that she developed progressively worsening
symptoms of axial mechanical back pain and presented on February 13, 2014 for further
evaluation and treatment. Radiographs demonstrated severe collapse at L5-S1 due to the initial
injury and subsequent required surgery. Dr. Dunn advised that this resulted in severe,
accelerated facet joint arthritis and that appellant was a candidate for further treatment, to include
physical therapy, injection therapy, and ultimately surgical reconstruction at L5-S1. A diagnosis
of accelerated degenerative disc disease, lumbar spine, and herniated nucleus pulpous was
proved. Dr. Dunn further reported that there have been no additional events of trauma
responsible for the progression of appellant’s lumbar spine condition. The initial work-related
trauma and surgery remained the only cause of her current condition involving L5-S1 and
associated symptoms. Dr. Dunn noted that there appeared to be some confusion regarding the
sitting activity that aggravated appellant’s low back pain. He advised that sitting was an activity
that causes more pain, but had nothing to do with the underlying pathology seen on radiographic
studies at L5-S1. Dr. Dunn noted that appellant expressed increasing difficulty enduring
symptoms of mechanical low back pain and associated lumbar radiculitis and that she would like
to pursue definitive surgical treatment in an attempt to improve her pain, function, and quality of
life. He provided an impression of lumbar disc disease L5-S1, lumbar back pain and radiculitis.
3

Dr. Dunn ordered physical therapy and pain control modalities as needed.
appellant agreed to proceed with the planned surgical procedures.

He noted that

Progress reports dated September 18 and October 16, 2014 from Dr. Dunn were also
received. These reports indicated that appellant was experiencing the same or increased
symptoms from her last visits and discuss the surgery which would be required.
In a November 4, 2014 report, Dr. Gary J. La Tourette, a Board-certified orthopedic
surgeon and second opinion physician, reviewed the case record and examined appellant. He
opined that her current back condition was associated with her work injuries by aggravation and
that she qualified for an L5-S1 reconstruction as her disc disease had worsened since her
microdiscectomy in June 2003. Appellant had unrelenting lumbar spine pain with an absent
Achilles reflex in the right lower extremity.
By decision dated December 2, 2014, OWCP denied modification of its prior decision as
the evidence of record was not sufficient to support that appellant’s work stoppage was the result
of her accepted medical conditions with no intervening factors. The decision noted that the
second opinion physician supported that an L5-S1 reconstruction should be authorized.
On December 12, 2014 appellant again requested reconsideration, which included a
December 8, 2014 letter from appellant in which she argued that she was disabled by a material
worsening of her accepted work injury and that the injury was spontaneous and not caused by
sitting, but aggravated by sitting. She further contended that the medical evidence demonstrated
causal relationship between her disabling back condition and that OWCP authorized spinal
fusion surgery. Appellant continued to file CA-7 forms for wage-loss compensation through
December 26, 2014.
In progress reports dated December 4, 2014 and January 5 and February 5, 2015,
Dr. Dunn noted that appellant continued to have pain, that there were no objective changes since
her last visit, and that she was to remain on temporary total disability work status for an
additional four weeks.
By decision dated March 6, 2015, OWCP denied modification of its prior decision.
Appellant was advised that the issue at hand was the claim for compensation effective July 7,
2014, not the surgery authorization.
On April 7, 2015 appellant again requested reconsideration. She included an April 2,
2015 letter in which she provided a history of her back injuries and discussed why she disagreed
with OWCP’s prior decisions.
Additional reports from Dr. Dunn dated March 5 and 30, April 2, and May 5, 2015 were
received. In his March 5, April 2, and May 5, 2015 reports, Dr. Dunn described appellant’s
current condition, her past surgical history, the pending authorization from OWCP regarding her
spinal surgery, and advised that she remained off work until her next visits. In his March 30,
2015 report, Dr. Dunn provided a history of her work injuries and clarified that she injured the
most terminal segment of her lumbosacral spine which at times had been identified as either the
L4-5 disc or as the L5-S1 disc. He explained that the L4-5 and L5-S1 discs represented the same
disc as the terminal motion segment. Dr. Dunn indicated that appellant’s actual L5-S1 disc was a
vestigial disc and had no motion. He reported that she returned to him in early 2014 with
4

progressively worsening symptoms of axial mechanical back pain. Dr. Dunn noted radiographic
studies demonstrated accelerated progression of degenerative collapse of the injured disc in the
terminal segment of her lumbosacral spine which was due to the initial injury and the
necessitated surgery that was performed as result of that work-related injury. He advised that the
reconstructive surgery which was recommended for the accelerated degenerative segment was
due to the initial work-related injury. Dr. Dunn indicated that appellant was placed on temporary
total disability as any prolonged sitting, bending, stooping, or prolonged standing resulted in
intractable, intolerable, axial mechanical back pain. He indicated that she remained on
temporary total disability while awaiting authorization for spinal surgery. Dr. Dunn indicated
that objective evidence had been provided and that appellant had no other intervening trauma or
accidents that contributed to her condition.
By decision dated July 6, 2015, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA bears the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence. For each period of disability
claimed, the employee must establish that he or she was disabled for work as a result of the
accepted employment injury. Whether a particular injury causes an employee to become
disabled for work and the duration of that disability are medical issues that must be proven by a
preponderance of reliable, probative, and substantial medical opinion evidence.2 Such medical
evidence must include findings on examination and the physician’s opinion, supported by
medical rationale, showing how the injury caused the employee disability for his or her particular
work.3
Monetary compensation benefits are payable to an employee who has sustained wage loss
due to disability for employment resulting from the employment injury.4 The Board will not
require OWCP to pay compensation for disability in the absence of medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow an employee to self-certify his or her disability and entitlement to
compensation.5
ANALYSIS
OWCP accepted appellant’s claim for lumbar sprain, lumbar intervertebral disc
displacement without myelopathy, and complications of a bone marrow transplant. Appellant
resigned from the employing establishment June 16, 2000 and started working as a teacher on
August 28, 2000. She underwent back surgery on June 6, 2003, which was not authorized by
OWCP and eventually returned to work in her teaching position. Effective September 10, 2004,
OWCP terminated appellant’s wage-loss compensation and medical benefits. Appellant
2

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

3

Dean E. Pierce, 40 ECAB 1249 (1989).

4

Laurie S. Swanson, 53 ECAB 517, 520 (2002). See also Debra A. Kirk-Littleton, 41 ECAB 703 (1990).

5

Amelia S. Jefferson, supra note 2.

5

subsequently claimed wage loss beginning July 7, 2014. By letter to appellant dated July 10,
2014, OWCP advised her that the claim for temporary total disability payments was a separate
issue from her request for further lumbar surgery and that the factual and medical evidence must
show that she was unable to work as a result of her work injury for the dates claimed. Appellant,
however, did not provide a probative rationalized medical opinion in support of her claim that
she was disabled for work because of her accepted conditions for the period July 7, 2014 until
OWCP authorized her back surgery.6
In numerous reports and treatment notes, Dr. Dunn noted appellant’s work injuries and
described her current back condition and her past surgical history. He also placed her on
temporary total disability as her pain had progressed and worsened and while awaiting
authorization for spinal surgery. Dr. Dunn noted in his July 21, 2014 report that appellant’s pain
was aggravated by bending, stooping, and prolonged sitting and that her duties consisted of
sitting at a desk for up to nine hours a day, which caused pain that worsened over time and
became unmanageable. However, he did not provide a medical opinion explaining how her
accepted back condition caused disability during the period claimed.7 Dr. Dunn made no
mention of any total disability beginning on July 7, 2014 and did not provide a rationalized
opinion explaining why appellant was totally disabled or incapable of working beginning July 7,
2014 due to her previously accepted lumbar conditions, for which benefits had been previously
terminated. His other reports which also placed her on total disability offered no medical
rationale explaining why she was totally disabled beginning July 7, 2014.
While Dr. Haas noted appellant’s diagnoses and Dr. Diaz noted a history of her injury,
they did not address whether she was disabled as result of her employment injury during the
period in question.
Appellant’s statements and her belief that her employment injury caused her disability
during the period in question are irrelevant as the question whether her disability is related to an
accepted condition is a medical question.
The treatment notes from the physical therapist are of no probative value as physical
therapists are not considered physicians as defined under FECA.8
The medical opinion evidence of record does not provide an explanation as to how
appellant’s accepted back condition caused disability during the period claimed. Thus, she has
failed to submit evidence which would indicate that her accepted conditions caused any wage
loss for the period claimed.9

6

See S.M., Docket No. 15-1118 (issued August 4, 2015).

7

Id.

8

See e.g., David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses
and physical therapists are not competent to render a medical opinion under FECA); 5 U.S.C. § 8101(2) (this
subsection defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors,
and osteopathic practitioners within the scope of their practice as defined by State law).
9

See supra note 6.

6

On appeal, appellant relates the history of her injury and provides a procedural history of
OWCP’s decisions. She contends that the medial evidence of record supports why she was
placed on total disability status. Appellant also expressed her dissatisfaction with OWCP’s
decisions and her belief that they have been acting in an adversarial role in her case. However,
for the reasons set forth above, she has failed to provide any medical opinion evidence which
indicated that her accepted conditions caused any wage loss for the period claim. There is no
mention of any total disability beginning on July 7, 2014 or a rationalized medical opinion
explaining why appellant was totally disabled or incapable of working beginning July 7, 2014.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant failed to establish entitlement to compensation for wage
loss as of July 7, 2014 causally related to her accepted employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated July 6, 2015 is affirmed.
Issued: March 1, 2016
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Salisbury, NC, Employer
__________________________________________

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

Docket No. 17-0330
Issued: December 12, 2018

Case Submitted on the Record

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

JURISDICTION
On November 30, 2016 appellant filed a timely appeal from a September 28, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty on August 3, 2016, as alleged.
FACTUAL HISTORY
On August 23, 2016 appellant, then a 50-year-old medical technician, filed a traumatic
injury claim (Form CA-1), alleging that he sustained a pulled muscle and possible ligament strain
of his right lower extremity on August 3, 2016 as a result of getting caught on the wheel of a
1

5 U.S.C. § 8101 et seq.

scooter while in the performance of duty. He stated that he was entering the door of the front desk
of the phlebotomy area where a coworker had parked her scooter just inside the door. Appellant
indicated that he walked in the door and caught his right foot on the wheel of the scooter twisting
his right foot and leg. He stopped work that same day.
By an August 25, 2016 development letter, OWCP advised appellant of the deficiencies of
his claim and afforded him 30 days to submit additional evidence and respond to its inquiries.
In response, appellant submitted the position description for his medical technician position
and an August 3, 2016 report of emergency treatment releasing him to return to full duty with an
“excuse for the two hours he was in employee health.”
In an August 3, 2016 report, a registered nurse indicated that, at 12:45 p.m., appellant stated
that he “twisted his foot while directing a patient to leave the lab, his foot ran into the scooter.”
Upon physical examination, the nurse found full range of motion, no redness, no swelling, and
noted that appellant was wearing closed-toed sneakers.
In an August 4, 2016 report, Dr. Nomita Joshi, a Board-certified internist, reported that
appellant’s “[r]ight foot and leg hurts from yesterday after he fell down” and diagnosed contusion
of right lower leg. She advised that appellant’s absence from work on August 4, 2016 had been
due to illness or injury.
On August 8, 2016 Dr. Joshi saw appellant for a follow-up examination and diagnosed
right knee pain. She asserted that he continued to suffer from right foot and lower leg pain and
indicated that his right knee had also started hurting, so he was wearing a brace. Dr. Joshi advised
that appellant’s absence from work on August 8, 2016 had been due to illness or injury.
In a September 14, 2016 letter, the employing establishment controverted appellant’s claim
on the basis that the medical evidence submitted was insufficient to establish a medical diagnosis
due to the August 3, 2016 alleged incident.
By decision dated September 28, 2016, OWCP denied the claim, finding that appellant
failed to establish that the injury and/or events occurred as he described, and that he sustained a
diagnosed medical condition in connection with the alleged incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury3 was sustained in the performance of duty, as

2

5 U.S.C. § 8101 et seq.

3
OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the body
affected. 20 C.F.R. § 10.5(ee).

2

alleged, and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. A
fact of injury determination is based on two elements. First, the employee must submit sufficient
evidence to establish that he or she actually experienced the employment incident at the time,
place, and in the manner alleged. 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. An employee may establish that the employment incident occurred as alleged, but fail to
show that his or her condition relates to the employment incident.5
An injury does not have to be confirmed by eyewitnesses in order to establish that an
employee sustained an injury in the performance of duty, but the employee’s statements must be
consistent with the surrounding facts and circumstances and his or her subsequent course of
action.6 An employee has not met his burden of proof in establishing the occurrence of an injury
when there are such inconsistencies in the evidence as to cast serious doubt upon the validity of
the claim.7 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 in
determining whether a prima facie case has been established.8 However, an employee’s statement
alleging that an injury occurred at a given time and in a given manner is of great probative value
and will stand unless refuted by strong or persuasive evidence.9
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, 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 employee.10

4

See T.H., 59 ECAB 388 (2008).

5

Id.

6

See Charles B. Ward, 38 ECAB 667 (1989).

7

See Tia L. Love, 40 ECAB 586 (1989).

8

See Merton J. Sills, 39 ECAB 572 (1988).

9

See Constance G. Patterson, 41 ECAB 206 (1989); Thelma S. Buffington, 34 ECAB 104 (1982).

10

Id.

3

ANALYSIS
The Board finds that the weight of the evidence establishes that the employment incident
of August 3, 2016 did not occur as alleged.11 On his claim form, appellant alleged that he sustained
a pulled muscle and possible ligament strain on August 3, 2016 as a result of “entering the door of
the front desk of the phlebotomy area [where his] coworker had parked her scooter just inside the
door.” However, in a report dated August 3, 2016, a registered nurse indicated that appellant stated
that he had “twisted his foot while directing a patient to leave the lab, his foot ran into the scooter.”
In contrast, Dr. Joshi indicated that appellant sustained an injury to his right foot and leg “after he
fell down.” These inconsistencies cast serious doubt on appellant’s claim. The evidence of record
is to establish consistent details establishing the manner in which the injury occurred, i.e., whether
appellant was injured while entering the door, directing a patient to leave the lab, or after he had
already fallen down. For these reasons, the Board finds that appellant has not provided sufficient
factual evidence to establish that he was injured in the performance of duty on August 3, 2016, as
alleged. Appellant has failed to meet his burden of proof.
As appellant has not established the first component of fact of injury, it is not necessary to
discuss whether he submitted medical evidence sufficient to establish that a medical condition
existed and whether the condition was causally related to the employment exposure alleged.12
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury in the
performance of duty on August 3, 2016, as alleged.

11

See A.B., Docket No. 14-522 (issued November 9, 2015) (fact of incident not established where there was
substantial inconsistency between the employee’s account of events and the accounts of coworkers and supervisor
with regard to the time and place of his alleged injury); V.J., Docket No. 13-1460 (issued January 7, 2014) (claimed
incident not established where employing establishment investigation revealed inconsistencies between the
employee’s account of the claimed incident and those of coworkers); J.W., Docket No. 12-926 (issued October 1,
2012) (claimed incident not established where there were inconsistencies between the employee’s statements and
evidence at the scene of the alleged incident).
12
See Dennis M. Mascarenas, 49 ECAB 215, 218 (1997). As appellant failed to establish that the claimed event
occurred as alleged, it is not necessary to discuss the probative value of medical evidence. Id.

4

ORDER
IT IS HEREBY ORDERED THAT the September 28, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 12, 2018
Washington, DC

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

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

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

5