United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Petersburg, FL, Employer
__________________________________________

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

Docket No. 11-1388
Issued: January 5, 2012

Case Submitted on the Record

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

JURISDICTION
On May 25, 2011 appellant filed a timely appeal from a May 11, 2011 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration. Because more than one year elapsed between the last merit decision dated
April 17, 20061 to the filing of this appeal, the Board lacks jurisdiction to review the merits of
this case pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3.3

1

The last merit decision was the Board’s April 17, 2006 decision affirming an OWCP decision dated August 31,
2005 terminating appellant’s wage-loss benefits and entitlement to a schedule award pursuant to 5 U.S.C.
§ 8106(c)(2).
2
3

5 U.S.C. § 8101 et seq.

For final adverse decisions issued by OWCP prior to November 19, 2008, a claimant had up to one year to file
an appeal with the Board. See 20 C.F.R. § 501.3(d)(2). For final adverse decisions issued by OWCP on and after
November 19, 2008, a claimant has 180 days to file an appeal. See 20 C.F.R. § 501.3(e).

ISSUES
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and did not demonstrate clear evidence of error.
On appeal, appellant asserts that OWCP erred in finding that he refused an offer of
suitable work in view of the determinations by the Department of Veterans Affairs and the Social
Security Administration, which found him to be totally disabled from working.
FACTUAL HISTORY
This case has previously been before the Board.4 The Board issued a decision on April 1,
1998 in which it reversed decisions of OWCP dated June 11 and September 11, 1997 on the
grounds that it improperly terminated appellant’s compensation.5 In a decision dated July 15,
2003, the Board reversed a February 3, 2003 hearing representative’s decision affirming a
September 6, 2002 decision terminating appellant’s compensation benefits on the grounds that he
no longer had any continuing disability due to his accepted September 7, 1989 employment
injury.6 The Board found that the record contained an unresolved conflict in the medical
evidence. On April 17, 2006 the Board affirmed an August 31, 2005 decision in which OWCP
terminated appellant’s compensation effective September 4, 2005 on the grounds that he refused
an offer of suitable work.7 On May 23, 2008 the Board affirmed a May 3, 2007 OWCP hearing
representative’s decision finding an overpayment of compensation and denying waiver of the
recovery of the overpayment.8 The Board issued an order dismissing appellant’s appeal on
March 24, 2010 as no person adversely affected by OWCP’s final decision or authorized
representative had filed an appeal with the Board.9 On June 30, 2010 the Board issued an order

4

On September 7, 1989 appellant, then a 43-year-old mail processor clerk, filed a traumatic injury claim alleging
that he injured his back that date while breaking down mail. OWCP accepted the claim for a low back strain. It was
assigned File No xxxxxx808. On February 23, 1990 appellant filed an occupational disease claim alleging that on
September 7, 1989 he first realized his lower back, left lumbar and left hip conditions were employment related.
This was assigned claim File No. xxxxxx173, which was deleted on May 31, 1990 as OWCP determined appellant’s
February 23, 1990 claim was actually a claim for a recurrence of disability. The Office of Personnel Management
(OPM) approved appellant’s application for disability retirement on October 2, 1990. Appellant retired from the
employing establishment effective October 1, 1990. On July 22, 1991 OWCP accepted his recurrence claim and
expanded his claim to include the condition of herniated nucleus pulposus. On October 2, 1991 appellant filed an
election form opting to receive benefits under FECA effective September 11, 1990. By letter dated September 27,
1991, he was placed on the periodic rolls for temporary total disability.
5

Docket No. 98-75 (issued April 1, 1998).

6

Docket No. 03-1009 (issued July 15, 2003).

7

Docket No, 06-73 (issued April 17, 2006).

8

Docket No. 07-2010 (issued May 23, 2008).

9

Docket No. 09-1939 (issued March 24, 2010).

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denying his petition for reconsideration. The facts and the circumstances of the case up to that
point as set forth in the Board’s prior decisions are incorporated herein by reference.10
On April 22, 2011 appellant requested reconsideration. He argued that OWCP erred in
finding that he refused an offer of suitable work as both the Department of Veterans Affairs and
the Social Security Administration issued findings that he was totally disabled. Appellant
contended that the offered job was not suitable as documentation from the employing
establishment found him to be a poor candidate for rehabilitation services. He also argued that
his psychiatric condition was not considered by OWCP in the suitability determination and it
erred in finding that he was capable of performing the offered position and that it was suitable.
Appellant submitted factual evidence including his statements, correspondence and disability
determinations by the Department of Veterans Affairs and Social Security Administration.
By decision dated May 11, 2011, OWCP denied appellant’s request for reconsideration
finding that it was not timely filed and failed to present clear evidence of error.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under section 8128(a) of FECA.11 It will not review a decision denying or terminating
a benefit unless the application for review is filed within one year of the date of that decision.12
When an application for review is untimely, OWCP undertakes a limited review to determine
whether the application presents clear evidence that the final merit decision was in error.13 Its
procedures state that OWCP will reopen a claimant’s case for merit review, notwithstanding the
one-year filing limitation set forth under section 10.607 of OWCP regulations,14 if the claimant’s
application for review shows clear evidence of error.15 In this regard, OWCP will limit its focus
to a review of how the newly submitted evidence bears on the prior evidence of record.16
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.17 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error. Evidence which does not raise a substantial
10

On July 3, 1998 and October 17, 2003 appellant filed election forms opting to receive compensation benefits
under FECA.
11

See J.W., 59 ECAB 507 (2008); Mary A. Ceglia, 55 ECAB 626 (2004).

12

20 C.F.R. § 10.607; see A.F., 59 ECAB 714 (2008); Gladys Mercado, 52 ECAB 255 (2001); B.W., Docket No.
10-323 (issued September 2, 2010).
13

D.G., 59 ECAB 455 (2008); Cresenciano Martinez, 51 ECAB 322 (2000).

14

20 C.F.R. § 10.607.

15

See Robert G. Burns, 57 ECAB 657 (2006); M.L., Docket No. 09-956 (issued April 15, 2010).

16

Andrew Fullman, 57 ECAB 574 (2006); Alberta Dukes, 56 ECAB 247 (2005).

17

S.D., 58 ECAB 713 (2007); Joseph R. Santos, 57 ECAB 554 (2006); F.R., Docket No. 09-575 (issued
January 4, 2010).

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question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough to merely show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review of how the evidence submitted with
the reconsideration request bears on the evidence previously of record and whether the new
evidence demonstrates clear error. To show clear evidence of error, the evidence submitted must
be of sufficient probative value to prima facie shift the weight of the evidence in favor of the
claimant and raise a substantial question as to the correctness of OWCP’s decision.18
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence which on its face shows that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report which, if submitted before the denial was issued,
would have created a conflict in medical opinion requiring further development, is not clear
evidence of error.19 The Board makes an independent determination of whether a claimant has
submitted clear evidence of error on the part of OWCP.20
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
application for review. The Board procedures provide that the one-year time limitation period
for requesting reconsideration begins on the date of the original OWCP decision.21 A right to
reconsideration within one year also accompanies any subsequent merit decision on the issues.22
As appellant’s April 22, 2011 request for reconsideration was submitted more than one year
following the most recent merit decision issued by the Board on April 17, 2006, it was untimely.
Consequently, he must demonstrate clear evidence of error by OWCP in denying his claim for
compensation.23
Appellant argued that OWCP erroneously determined that the offered position was
suitable without taking into consideration his psychological condition, disability findings by the
Department of Veterans Affairs and the Social Security Administration and the employing
establishment’s finding that rehabilitation was not suitable for him. He had raised the argument
that he was totally disabled due to his psychological condition previously and the Board noted in
the April 17, 2006 decision that there was no rationalized medical evidence explaining how the
position violated his work restrictions. Moreover, appellant has not presented any additional
evidence to establish that the position was outside a specific work restriction. As to his
18

D.D., 58 ECAB 206 (2006); Robert G. Burns, supra note 15; J.S., Docket No. 10-385 (issued
September 15, 2010).
19

James Mirra, 56 ECAB 738 (2005); Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsideration,
Chapter 2.1602.3(c) (October 2011).
20

See G.H., 58 ECAB 183 (2006); Jack D. Johnson, 57 ECAB 593 (2006); M.L., supra note 15.

21

20 C.F.R. § 10.607(a).

22

Robert F. Stone, 57 ECAB 393 (2005).

23

20 C.F.R. § 10.607(a); see D.G., 59 ECAB 455 (2008); Debra McDavid, 57 ECAB 149 (2005).

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contentions regarding disability determinations by the Social Security Administration and the
Department of Veterans Affairs, the Board notes that findings of other administrative agencies
are not determinative of his level of disability under FECA. It is well established that decisions
of other federal agencies or governmental bodies are not dispositive to issues raised under
FECA. Decisions made by such tribunals are pursuant to different statutes which have varying
standards for establishing eligibility for benefits.24 Thus, appellant’s contention is not
meritorious.
The arguments raised in support of appellant’s untimely reconsideration request were
previously considered or irrelevant and, thus, insufficient to establish clear evidence of error. In
order to establish clear evidence of error, the evidence submitted must raise a substantial
question as to the correctness of OWCP’s decision.25 The arguments and evidence presented by
appellant on reconsideration failed to meet this standard.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and insufficient to establish clear evidence of error.

24

Andrew Fullman, 57 ECAB 574 (2006).

25

See G.H., supra note 20; Jack D. Johnson, supra note 20.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 11, 2011 is affirmed.
Issued: January 5, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE
Bartlett, TN, Employer
__________________________________________

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

Docket No. 07-764
Issued: June 19, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 25, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated November 28, 2006 which denied his
occupational disease claim and a December 21, 2006 nonmerit decision denying his request for
reconsideration. Pursuant to C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of appellant’s claim
ISSUES
The issues are: (1) whether appellant established that he sustained an occupational
disease in the performance of duty; and (2) whether the Office properly denied his request for
reconsideration.
FACTUAL HISTORY
On September 16, 2006 appellant, then a 48-year-old mail carrier, filed a traumatic injury
claim alleging that on March 7, 2006 he sustained an injury to his right shoulder when he fell
over a stack of tubs. He continued to work regular duty until he filed his claim. In a

September 12, 2006 letter, Dr. Carlos Cyrus, Board-certified in physical medicine and
rehabilitation, diagnosed right rotator cuff tendinitis and prescribed light duty. In a note dated
September 18, 2006, he indicated that appellant was beginning shoulder rehabilitation and would
return to full duty on September 21, 2006. In a September 22, 2006 letter, appellant described
how his condition began on March 7, 2006 but worsened over time due to continual overhead
lifting and repetitive motion.
In an October 25, 2006 letter, the Office requested additional information from appellant
and asked him to clarify whether his claim was for a traumatic injury or an occupational disease.
In a November 8, 2006 letter, appellant agreed with the Office’s characterization of his injury as
an occupational disease. He described his doctor visits and informed the Office that he was
waiting on reports from various doctors. The Office received additional work restriction notes
from Dr. Cyrus dated April 13 and July 13, 2006.
By a November 28, 2006 decision, the Office denied appellant’s claim on the grounds
that the medical evidence of record did not establish that his medical condition resulted from the
accepted events.
In a December 12, 2006 letter, appellant requested reconsideration. By a December 21,
2006 decision, the Office denied reconsideration on the grounds that no new relevant evidence
was submitted or any new legal contentions presented.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of establishing the essential elements of his or her claim by the weight of the reliable,
probative and substantial evidence, including the fact that the individual is an “employee of the
United States” within the meaning of the Act and that the claim was timely filed within the
applicable time limitation period of the Act, that an injury was sustained in the performance of
duty as alleged and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.1
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying the factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed, or stated differently, medical evidence establishing that the diagnosed condition is
causally related to the factors identified by the claimant.2

1

Anthony P. Silva, 55 ECAB 179 (2003).

2

Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB ___ (Docket No. 05-715, issued October 6, 2005).

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ANALYSIS -- ISSUE 1
Appellant alleged that his right shoulder condition was causally related to factors of his
federal employment which began with his work-related fall on March 7, 2006 and worsened over
time due to continual overhead lifting and repetitive motion required by his regular work duties.
The Board finds that appellant has submitted insufficient medical evidence to establish that his
right shoulder condition was caused or aggravated by his federal employment.
The medical evidence of record consists of reports dated April 13 to September 18, 2006,
from Dr. Cyrus. In a September 12, 2006 letter, Dr. Cyrus diagnosed right rotator cuff tendinitis
and listed appellant’s light-duty restrictions. The treatment notes listed appellant’s weight and
movement restrictions. The medical evidence establishes that a shoulder condition exists but
Dr. Cyrus failed to provide a rationalized opinion on causal relationship. The notes of record do
not address the March 7, 2006 fall or those work duties involving overhead lifting or repetitive
motions. Dr. Cyrus made no mention of appellant’s work history nor identified any work factors
which caused or contributed to the diagnosed right shoulder condition. He did not provide a full
medical history or other information to establish a causal relation between appellant’s condition
and factors of his employment.
Appellant failed to submit medical evidence to establish causal relationship and,
therefore, has failed to discharge his burden of proof to establish that he sustained a condition
due to factors of his federal employment.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128 (a) of the Act,
the Office’s regulations provide that the application for reconsideration, including all supporting
documents, must set forth arguments and contain evidence that either: (1) shows that the Office
erroneously applied or interpreted a specific point of law; (2) advances a relevant legal argument
not previously considered by the Office; or (3) constitutes relevant and pertinent new evidence
not previously considered by the Office.3
ANALYSIS -- ISSUE 2
Appellant’s application for review of the Office’s November 28, 2006 decision did not
satisfy the standards of 20 C.F.R. § 10.606(b). His December 12, 2006 request for
reconsideration neither alleged nor demonstrated that the Office erroneously applied or
interpreted a specific point of law, nor did it advance a relevant legal argument not previously
considered by the Office. Appellant did not submit any additional documentation after the
Office issued its November 28, 2006 merit decision, therefore, no relevant and pertinent new
evidence was submitted. He is not entitled to review of the merits of his claim based on any of
the three requirements under section 10.606(b)(2).

3

20 C.F.R. § 10.606(b)(2)(iii) (2004).

3

As appellant is not entitled to a review of the merits of his claim, the Board finds that the
Office properly refused to reopen his case for further review of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
CONCLUSION
The Board finds that appellant failed to establish that he sustained an occupational
disease in the performance of duty. Additionally, the Office properly denied appellant’s request
for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the December 21 and November 28, 2006
decisions of the Office of Workers’ Compensation Programs are affirmed
Issued: June 19, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 10-2080
Issued: May 5, 2011

Case Submitted on the Record

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

JURISDICTION
On August 10, 2010 appellant filed a timely appeal from a July 8, 2010 merit decision of
the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’
Compensation Act1 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 established entitlement to an additional schedule
award for the left leg.
FACTUAL HISTORY
On January 3, 2005 appellant, then a 56-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on December 30, 2004 he sustained a left foot and ankle injury

1

5 U.S.C. § 8101 et seq.

when he slipped on ice while in the performance of duty. The Office accepted the claim for a
left ankle sprain on February 17, 2005.2 Appellant returned to work in a light-duty position.
In a report dated March 28, 2006, Dr. Timothy Morley, an osteopath, provided a history
and results on examination. He opined that appellant had a 14 percent left leg permanent
impairment due to loss of left ankle range of motion. An Office medical adviser concurred that
appellant had a 14 percent left leg impairment in a June 5, 2006 report.
By decision dated July 21, 2006, the Office issued a schedule award for a 14 percent
permanent impairment to the left leg. The period of the award was 40.32 weeks commencing
March 28, 2006.
On August 24, 2009 appellant submitted a claim for compensation (Form CA-7) dated
August 18, 2009, checking a box for a schedule award. He submitted a report dated
September 4, 2009 from Dr. William Grant, an internist, who provided a history and results on
examination. Dr. Grant noted left ankle swelling, mild atrophy, reduced range of motion and
diffuse weakness about the ankle and foot. He opined that, under the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter
referred to as the A.M.A., Guides), appellant had a 26 percent left leg impairment. Dr. Grant
referred to the foot and ankle regional grid (Table 16-2) and found a default value of 30 percent
was adjusted to 26 percent.
In a report dated November 15, 2009, an Office medical adviser reviewed the evidence
and opined that, under Table 16-2, the appropriate default impairment was 10 percent, for
peroneal tendinitis with moderate motion deficits and/or significant weakness. This impairment
was adjusted to eight percent based on functional history and clinical studies. The medical
adviser also found one percent impairment under Table 16-2 for joint instability and ligamentous
laxity, with no adjustment.
The Office determined that a conflict existed under 5 U.S.C. § 8123(a) and appellant was
referred to Dr. Alan Wilde, a Board-certified orthopedic surgeon selected as a referee examiner.
In a report dated February 2, 2010, Dr. Wilde provided a history and results on examination.
With respect to permanent impairment, he stated that he agreed with the Office medical adviser,
who followed the A.M.A., Guides. Dr. Wilde stated that for a Class 1, Grade C peroneal
tendinitis the impairment was seven percent. He also found that, for ankle joint instability,
ligamentous laxity with no clinical instability, the impairment was one percent for Class 1.
Dr. Wilde indicated that physical examination was used for the diagnosis, that functional history
did not require a modifier as appellant did not have a limp. He noted the clinical studies,
including x-rays and magnetic resonance imaging (MRI) scan and stated that they did not have
an impact on the impairment. Dr. Wilde concluded that appellant had an eight percent left leg
permanent impairment. The Office referred the case to an Office medical adviser, who opined in
a February 25, 2010 report that appellant had a nine percent left leg impairment.
2

Appellant had a prior claim (File No. xxxxxx183) that was accepted for left ankle and foot sprain. Pursuant to
this claim, he received a schedule award for a four percent permanent left leg impairment on July 26, 2002, and an
additional five percent by decision dated December 10, 2003. The impairments were based on loss of ankle and
hindfoot range of motion.

2

By decision dated March 3, 2010, the Office determined that appellant was not entitled to
an additional schedule award for the left leg. Appellant requested a telephonic hearing before an
Office hearing representative, which was held on June 1, 2010. By decision dated July 8, 2010,
the hearing representative affirmed the March 3, 2010 Office decision.
LEGAL PRECEDENT
The schedule award provision of the Act and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants.4 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 Office procedures provide that, effective
May 1, 2009, all schedule awards are to be calculated under the sixth edition of the A.M.A.,
Guides.6 Any recalculations of previous awards which result from hearings or reconsideration
decisions issued on or after May 1, 2009, should be based on the sixth edition of the A.M.A.,
Guides. A claimant who has received a schedule award calculated under a previous edition and
who claims an increased award, will receive a calculation according to the sixth edition for any
decision issued on or after May 1, 2009.7
It is well established that when a case is referred to a referee specialist for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a
proper factual and medical background, must be given special weight.8
ANALYSIS
The Office found that, a conflict existed under 5 U.S.C. § 8123(a) with respect to an
additional permanent impairment to the left leg.9 An attending physician, Dr. Grant, opined that
3

20 C.F.R. § 10.404 (1999).

4

See Ronald R. Kraynak, 53 ECAB 130 (2001); August M. Buffa, 12 ECAB 324 (1961).

5

20 C.F.R. § 10.404 (1999).

6

FECA Bulletin No. 09-03 (issued March 15, 2009); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700 (January 2010).
7

Id.

8

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

9

The Act provides that, if there is a disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall make the
examination. 5 U.S.C. § 8123(a). The implementing regulations state that, if a conflict exists between the medical
opinion of the employee’s physician and the medical opinion of either a second opinion physician or an Office
medical adviser, the Office shall appoint a third physician to make an examination. This is called a referee
examination and the Office will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case. 20 C.F.R. § 10.321 (1999).

3

appellant had 26 percent impairment, while an Office medical adviser opined that appellant had
9 percent impairment. At the June 1, 2010 hearing, appellant appeared to argue that because the
medical adviser did not examine appellant, his report was not sufficient to create a conflict. The
Office medical adviser provided a rationalized medical opinion that clearly explained how he
applied Table 16-2 and the net adjustment formula to determine appellant’s impairment based on
the physical findings.
The referee physician, Dr. Wilde, opined that appellant had an eight percent left leg
permanent impairment. Under Table 16-2, a Class 1 diagnosis (CDX) for ankle peroneal
tendinitis, with moderate motion deficits and/or significant weakness, has a default impairment
of 10 percent.10 The default value is adjusted by applying the net adjustment formula, which
identifies grade modifiers for functional history (GMFH), physical examination (GMPE) and
clinical studies (GMCS). If a particular criterion is used to determine the impairment class, it is
not used again to determine the grade.11 Dr. Wilde did not use physical examination grade
modifier as it was used to determine the diagnosed class. He used a grade modifier of 0 for
functional history, noting appellant did not have a limp, and 0 for clinical studies, noting the lack
of results. Applying the formula GMFH-CDX + GMCS-CDX, the net adjustment is -2, which
under Table 16-2 reduces the impairment to seven percent.12
Dr. Wilde also found that appellant had one percent impairment for ankle joint
instability/ligamentous laxity for Class 1 impairment under Table 16-2.13 The total impairment
is therefore eight percent. The Board finds that Dr. Wilde’s rationalized medical opinion
represented the weight of the medical evidence. As noted above, a referee’s opinion is entitled to
special weight.14 Since appellant had already received schedule awards totaling 23 percent for
the left leg based on left ankle and foot impairments, the Board finds that the Office properly
found he was not entitled to an additional schedule award in this case.
CONCLUSION
The Board finds the medical evidence does not establish more than a 23 percent left leg
impairment and therefore appellant is not entitled to an additional schedule award.

10

A.M.A., Guides 501, Table 16-2.

11

Id. at 521.

12

Id. at 501, Table 16-2.

13

The default value is one percent for Class 1. Under Table 16-2, a net adjustment of -2 would result in no
impairment, but Dr. Wilde chose to give appellant the default value of one percent.
14

The Office referred the case to an Office medical adviser for further review. When a conflict exists under 5
U.S.C. § 8123(a) and a referee physician is selected, the referee must resolve the conflict, not an Office medical
adviser. See Thomas J. Fragale, 55 ECAB 619 (2004).

4

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated July 8 and March 3, 2010 are affirmed.
Issued: May 5, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF THE ARMY, NATIONAL
GUARD BUREAU, Arlington, VA, Employer
__________________________________________

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

Docket No. 14-612
Issued: July 7, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 24, 2014 appellant filed a timely appeal from a November 5, 2013 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 met her burden of proof to establish a pulmonary condition
or disability of the left leg caused or aggravated by factors of her federal employment.
FACTUAL HISTORY
On June 21, 2013 appellant, then a 45-year-old procurement analyst, filed an
occupational disease claim for pulmonary disease and disability to her left leg. She alleged that
walking a far distance into the building at work worsened her left leg condition, causing swelling
1

5 U.S.C. §§ 8101-8193.

and pain which made walking difficult. Appellant also had difficulty breathing. The employing
establishment noted that she took occasional sick days and her job duties remained the same.
Appellant submitted a request for reasonable accommodation to the employing
establishment. She requested a reserved accessible parking space close to the building with an
unobstructed and easily traveled path into the workplace that was away from the smoking area.
Appellant also requested that she be provided a modified work schedule and be given a
three-month full-time telework agreement. She stated that she was unable to walk a significant
distance or climb stairs due to a permanent disability and had an increase in respiratory issues.
In letters dated July 29, 2013, OWCP informed appellant of the evidence needed to
support her claim. Appellant was specifically advised to provide a physician’s opinion as to how
employment activities caused, contributed to or aggravated the claimed conditions. OWCP also
asked the employing establishment to provide a statement regarding her exposure to harmful
substances.
In a statement dated August 29, 2013, appellant advised that her pulmonary condition
was caused by carpet glue at the employing establishment. She stated that the scent was very
strong and that she was exposed to it for approximately two hours. Appellant stated that, from
the date of her employment in October 2011, having to walk into the building and inhale
cigarette smoke for 15 minutes up to three times a day also contributed to her respiratory
condition. She had been an asthmatic since childhood but the workplace exposures caused
symptoms of difficulty breathing, shortness of breath, wheezing, coughing, vomiting, hoarseness,
chest tightness and rapid heartbeat. Appellant noted that she was permanently disabled due to a
leg condition and had to walk a long distance or approximately 25 minutes three times daily from
her vehicle to the building which resulted in severe swelling and pain.
Appellant submitted an August 2, 2012 report from Dr. John P. McConnell, a
Board-certified orthopedic surgeon, who advised that she was permanently disabled due to
patellar tendinitis, should not walk significant distances and should be allowed to park in a
handicapped parking area. Dr. Mark J. Granada, Board-certified in internal medicine and
pulmonary disease, provided an October 22, 2012 certification of health care provider. He first
saw appellant in July 2012 and she had severe coughing and asthma flares. Dr. Granada stated
that she could not perform her job due to an intractable cough, noting that she had difficulty
speaking and quickly became short of breath with limited routine activity. Appellant’s
pulmonary function studies demonstrated 60 percent of normal function. Dr. Granada noted that
she should work from home for three months. On a November 6, 2012 certification of health
care provider, Dr. McConnell stated that appellant needed to work from home from November to
February due to pain and swelling of the left knee caused by ambulation. On December 18, 2012
Dr. Granada noted a history of allergic rhinitis that was very difficult to treat, asthma and
gastroesophageal reflux. He stated that appellant was very sensitive to multiple environmental
exposures and, given the severity of her symptoms, it was in her best medical interest to be
allowed to work from home for several months in order to gain better control of her condition.
Dr. Granada repeated this request on March 13, 2013. On March 26, 2013 he indicated that
appellant was unable to work due to vomiting and excessive cough.

2

On April 24, 2013 Dr. Bhavin Patel, a Board-certified internist, advised that appellant
must limit the use of her vocal cords due to “current medical conditions.” In brief notes dated
May 17 to July 17, 2013 Dr. Granada listed that she continued with unresolved vomiting, cough
and significant vocal cord inflammation with limited use of vocal cords. He noted that
appellant’s condition was refractory to treatment and requested that she be allowed to telework.
In August 21, 2013 correspondence, Dr. Granada noted that she had a persistent severe cough of
multifactorial etiology that was most likely from gastroesophageal reflux but that was refractory
to therapy. He deferred and opinion to a Dr. Stafford Goldstein to determine an approximate
time frame for recovery but, due to the severity of her laryngitis secondary to the reflux,
appellant could not return to work. On October 11, 2013 appellant was seen in an emergency
department by Dr. Thomas H. Clark, Board-certified in internal and emergency medicine, who
diagnosed asthma, cervical radiculitis and osteoarthritis of the cervical spine.
By decision dated November 5, 2013, OWCP denied appellant’s claim.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing 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 injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed is causally
related to the employment injury. These are the essential elements of each and every
compensation claim; regardless of whether the asserted claim involves traumatic injury or
occupational disease, an employee must satisfy this burden of proof.2
OWCP regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.”3 To
establish that an injury was sustained in the performance of duty in an occupational disease
claim, a claimant must submit the following: (1) medical evidence establishing the presence or
existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the claimant. The medical
opinion must be one of reasonable medical certainty and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.4
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical evidence.5 The opinion of the physician must be
2

Roy L. Humphrey, 57 ECAB 238 (2005).

3

20 C.F.R. § 10.5(ee).

4

Roy L. Humphrey, supra note 2.

5

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

3

based on a complete factual and medical background of the claimant, must be one of reasonable
medical certainty and must be supported by medical rationale explaining the nature of the
relationship between the diagnosed condition and the specific employment factors identified by
the employee.6 Neither the mere fact that a disease or condition manifests itself during a period
of employment nor the belief that the disease or condition was caused or aggravated by
employment factors or incidents is sufficient to establish causal relationship.7
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a pulmonary or leg condition caused by her federal employment because the medical
evidence is insufficient to establish causal relationship. The medical evidence is insufficient to
establish that any diagnosed condition was caused or aggravated by walking at work, exposure to
particular workplace substances or other work factors.
In reports dated August 2 and November 6, 2012, Dr. McConnell advised that appellant
was permanently disabled due to left patellar tendinitis and should limit walking, be given a
handicapped parking place and be allowed to work from home. He did not adequately address
how her diagnosed left knee condition was caused or aggravated by employment factors or
describe any cause of the diagnosed condition. Medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.8
In reports dated from October 22, 2012 to July 17, 2013, Dr. Granada did not address the
cause of appellant’s diagnosed respiratory condition. On August 21, 2013 he reported that she
had a persistent severe cough secondary to gastroesophageal reflux. Dr. Granada did not relate
any diagnosed condition to specific employment factors and deferred his opinion to
Dr. Goldstein. The record contains no reports from Dr. Goldstein.
Dr. Patel merely advised that appellant should limit the use of her vocal cords. Although
Dr. Clark diagnosed asthma, cervical radiculitis and osteoarthritis of the cervical spine, he too
provided no opinion regarding the cause of the diagnosed conditions.
The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to
federal employment and such relationship must be supported with affirmative evidence,
explained by medical rationale and be based upon a complete and accurate medical and factual
background of the claimant.9 It is appellant’s burden to establish that her claimed conditions are
causally related to factors of her federal employment. In this case, she submitted insufficient

6

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

7

Dennis M. Mascarenas, 49 ECAB 215 (1997).

8

Willie M. Miller, 53 ECAB 697 (2002).

9

A.D., 58 ECAB 149 (2006).

4

evidence to show that she sustained either a pulmonary or leg condition caused by her
employment duties.
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 did not establish that she sustained either a pulmonary of
leg condition causally related to factors of her federal employment in this occupational disease
claim.
ORDER
IT IS HEREBY ORDERED THAT the November 5, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 7, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.H., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
ENTERPRISE COMPUTING CENTER
SAN ANTONIO, San Antonio, TX, Employer
__________________________________________

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

Docket No. 08-2071
Issued: June 19, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 21, 2008 appellant filed a timely appeal from a March 27, 2008 merit decision of
the Office of Workers’ Compensation Programs denying compensation and a June 5, 2008
nonmerit decision of the Branch of Hearings and Review denying her request for an oral hearing.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
case.
ISSUES
The issues are: (1) whether appellant established that her intermittent periods of
disability from July 5 through August 15, 2006 were due to physical therapy treatments for the
effects of her accepted carpal tunnel syndrome; and (2) whether the Branch of Hearings and
Review properly denied her request for an oral hearing as untimely.
FACTUAL HISTORY
On June 12, 2002 appellant, then a 52-year-old computer analyst programmer, filed an
occupational disease claim (Form CA-2) alleging that she sustained carpal tunnel syndrome due

to the typing required by her employment duties. On April 20, 2002 she began experiencing pain
and cramping in her hands that moved up her arm. By May 16, 2002 appellant’s hands were
swollen and painful and she could not hold a pencil, start her car or shift into gear.1 On
October 25, 2002 the Office accepted her claim for right carpal tunnel syndrome and authorized
medical treatment.2
On February 20, 2003 appellant underwent a right carpal tunnel release and right carpi
radialis tendon steroid injection.
Appellant submitted medical reports dated February 7 through May 18, 2005 from her
treating physician, Dr. Chaula J. Rana, Board-certified in physical therapy and medicine
rehabilitation. On February 7, 2005 Dr. Rana discussed appellant’s history of bilateral carpal
tunnel syndrome. Appellant reported that after her first surgery she had triggering on her thumb,
which temporarily went away but now locks up and causes pain. She related that she could not
work full days of typing and writing, driving long distances, handling, lifting, tightening or
unscrewing objects or carry heavy objects. Dr. Rana diagnosed stable carpal tunnel syndrome
and ongoing tenosynovitis, contracture, muscle pain, spasms and trigger finger. She prescribed
occupational therapy to restore appellant’s bilateral upper extremity use and to treat her trigger
thumb, left wrist contracture and left cervical pain. Dr. Rana prescribed continuing therapy on
March 4, 2005.
In an April 6, 2005 medical report, Dr. Rana related appellant’s claims that she finished
therapy on March 18, 2005 but that she was still having trouble bending her thumb and that her
symptoms were worsened by keyboard, bedtime and writing and that she could not open
containers or write or type for long periods. Physical examination revealed symmetrical and
normal strength testing, except for weak grip strength on both sides. Dr. Rana stated that
appellant had bilateral carpal tunnel syndrome that had improved with therapy and that she was
experiencing a better range of motion and less discomfort. She noted that appellant did not wish
to proceed with surgical options.
In a medical report dated May 18, 2005, Dr. Rana stated that appellant was experiencing
recurrent symptoms associated with her carpal tunnel syndrome, including numbness and
tingling. She noted appellant’s complaints of worsening symptoms in her right hand. Dr. Rana
recommended an electromyogram and referred appellant to a hand surgeon for her trigger thumb
and possible recurrence of carpal tunnel syndrome.
On June 15, 2005 appellant was referred for an electrodiagnostic consultation. A
diagnostic examination revealed a normal study with no electrodiagnostic evidence of a right
upper extremity cervical radiculopathy or focal median, ulnar or radial neuropathy.

1

The Office initially denied appellant’s claim by decision dated July 29, 2002 on the grounds that she did not
submit medical evidence containing a diagnosis which could be connected to her employment.
2

It appears the Office also accepted left carpal tunnel syndrome, as it authorized a left carpal tunnel release and
stated that it accepted bilateral carpal tunnel syndrome in a December 14, 2004 letter.

2

On April 11, 2006 Dr. Rana prescribed four more weeks of therapy for appellant’s
bilateral carpal tunnel syndrome, myofascial pain and trapezius spasms. On June 18, 2006 she
prescribed three more weeks of therapy for myofascial pain and upper trapezius spasms.
On September 20, 2006 appellant filed a claim for wage-loss compensation (Form CA-7)
for intermittent periods from July 5 through August 15, 2006. In a time analysis form (CA-7a)
she advised that she used 18.15 hours of leave without pay for physical therapy appointments
during this period.
By letter dated September 28, 2006, the Office notified appellant that she was required to
provide medical evidence of her physical therapy appointments before she could receive wageloss compensation.
Appellant submitted therapy notes dated April 27 through August 15, 2006. An exercise
flow sheet signed by a therapist indicated that appellant had attended several occupational
therapy appointments from June 1 through August 15, 2006. In a note dated August 15, 2006, a
therapist described appellant’s progress and stated that she had met all of her short-term goals,
including a decrease in myofascial restrictions in cervical groups, increased cervical stability,
reduction in myofascial restriction in the forearms and an increase in bilateral grip strength and
functional endurance.
By decision dated March 27, 2008, the Office denied appellant’s request for wage-loss
compensation from July 5 through August 15, 2006 on the grounds that she did not submit
sufficient medical evidence establishing that she received physical therapy treatment on the dates
claimed.
On May 2, 2008 appellant filed a request for a review of the written record by the Branch
of Hearings and Review.
By decision dated June 5, 2008, the Branch of Hearings and Review denied appellant’s
request for a review of the written record, finding that the request was not filed within 30 days.
It also determined that the issue could be addressed equally well through a request for
reconsideration on the merits.
LEGAL PRECEDENT
Section 8103 of the Federal Employees’ Compensation Act states in pertinent part that
the United States shall furnish to an employee who is injured while in the performance of duty
the services, appliances and supplies prescribed or recommended by a qualified physician, which
the Secretary of Labor considers likely to cure, give relief, reduce the degree or the period of
disability or aid in lessening the amount of the monthly compensation.3 The Board has
interpreted this section to authorize payment for loss of wages incurred while obtaining medical

3

5 U.S.C. § 8103.

3

services.4 Accordingly, an employee is entitled to disability compensation for loss of wages
incidental to treatment for an employment injury.5
ANALYSIS
The Office accepted that appellant sustained bilateral carpal tunnel syndrome due to her
employment factors. The issue is whether she established that she was undergoing medical
treatment intermittently from July 5 through August 15, 2006 for this condition.
Appellant underwent an authorized right carpal tunnel release and right carpi radialis
tendon steroid injection on February 20, 2003. In medical notes dated February 7 through
May 18, 2005, Dr. Rana noted ongoing symptoms of bilateral carpal tunnel syndrome and
referred appellant to occupational therapy for restoration of her bilateral upper extremity use.
She continued therapy through June 8, 2006 for treatment of appellant’s bilateral carpal tunnel
syndrome, trapezius spasms and myofascial pain.
Appellant submitted physical therapy notes for the period April 27 through
August 15, 2006. An exercise flow sheet signed by a therapist showed that appellant had
attended several appointments from June 1 through August 15, 2006. On August 15, 2006 a
therapist noted that appellant had met all of her short-term goals.
The Board finds that appellant was receiving medical services intermittently from July 5
through August 15, 2006 related to her employment-related carpal tunnel syndrome. The
exercise flow sheet certified that she attended occupational therapy sessions intermittently
throughout the claimed period of time. Further, the medical reports from Dr. Rana and the
August 15, 2006 physical therapy note establish that the therapy sessions were related to the
accepted work injury.6 Dr. Rana prescribed physical therapy in treatment of appellant’s carpal
tunnel syndrome through 2005. She referred appellant to occupational therapy to increase the
use of her upper extremity and to treat her bilateral carpal tunnel syndrome through
June 18, 2006. The August 15, 2006 therapy note states that appellant met her immediate
therapy goals, which included increasing grip strength and function use of her upper extremities.
The Board finds that appellant established that she was attending therapy sessions
intermittently during the period July 5 through August 15, 2006 due to the effects of her
employment-related carpal tunnel syndrome. The Office should authorize compensation for the
18.15 hours of claimed leave without pay.7

4

Dorothy J. Bell, 47 ECAB 624 (1996); Henry Hunt Searls, III, 46 ECAB 192 (1994).

5

Daniel Hollars, 51 ECAB 355 (2000).

6

Appellant is entitled to compensation for those hours of leave without pay that are shown to have been taken for
treatment for the effects of the accepted employment-related conditions. Daniel Hollars, supra note 5.
7

See also Myrtle B. Carlson, 17 ECAB 644 (1966); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Computing Compensation, Chapter 2.0901.16(a) (December 1995).

4

CONCLUSION
The Board finds that appellant established that she was prescribed physical therapy from
July 5 through August 15, 2006 for treatment of her right carpal tunnel syndrome.8
ORDER
IT IS HEREBY ORDERED THAT the June 5 and March 27, 2008 decisions of the
Office of Workers’ Compensation Programs are set aside. The case is remanded to the Office
for further action in accordance with this decision.
Issued: June 19, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8

In light of the Board’s disposition of the first issue, the second issue is moot.

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

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

Docket No. 17-1526
Issued: April 6, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 3, 2017 appellant filed a timely appeal from a June 1, 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 the case.
ISSUE
The issue is whether appellant has more than 15 percent permanent impairment of the right
upper extremity, for which she previously received a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The facts relevant to this
appeal are set forth below.
On October 14, 2009 appellant then a 52-year-old nursing assistant, injured her right
shoulder when she was pulling a patient into a bed. OWCP accepted appellant’s traumatic injury
claim (Form CA-1) for sprain of the right shoulder and upper arm, right rotator cuff and other
affections of the right shoulder region. Appellant did not stop work at that time.
Dr. Stephen D. Webber, a Board-certified orthopedic surgeon, treated appellant from
September 29, 2009 to July 20, 2010 for a right shoulder injury which occurred on September 14,
2009 when she was lifting a patient. He diagnosed adhesive capsulitis and frozen shoulder.
Although Dr. Webber recommended surgery, appellant declined, noting her diagnosed diabetes
and side effects of anesthesia. A magnetic resonance imaging (MRI) scan of the right shoulder
dated December 23, 2009 revealed an intact rotator cuff with no definite labral abnormalities.
Appellant came under the treatment of Dr. Marc E. Rankin, a Board-certified orthopedist,
on February 3, 2011. He diagnosed disorder of the bursae of the right shoulder and contusion of
the right shoulder region. Dr. Marc E. Rankin noted that appellant reached maximum medical
improvement (MMI) with nonoperative measures.
On February 25, 2011 appellant filed a claim for a schedule award (Form CA-7). On
March 9, 2011 OWCP requested that appellant have her physician evaluate the extent of her
permanent impairment of the right arm under the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment, (A.M.A., Guides).3
On April 3, 2011 Dr. Marc E. Rankin noted treating appellant since February 2011 for right
shoulder pain that began while lifting a patient. Appellant had a rotator cuff tear diagnosed by
MRI scan and he recommended a right shoulder arthroscopy. She declined surgery due to a history
of sleep apnea and fear of anesthesia. Dr. Marc E. Rankin opined that appellant reached MMI. He
noted findings for range of motion (ROM) of the right shoulder for elevation was 90 degrees,
abduction was 80 degrees, external rotation was 60 degrees, and internal rotation was 20 degrees.
Dr. Marc E. Rankin noted 4/5 rotator cuff muscle strength, intact sensation in the dermatomal
distribution of C4-T1. He noted increased signal in the anterior 25 percent of the supraspinatus
tendon and acromioclavicular joint arthrosis. Dr. Marc E. Rankin diagnosed chronic right
shoulder impingement and supraspinatus tendon tear. He opined that, under Table 15-35, A.M.A.,
Guides 475, and after applying applicable modifiers, appellant had 18 percent right arm permanent
impairment due to loss of shoulder ROM.
In a report dated April 15, 2011, Dr. E. Anthony Rankin, a Board-certified orthopedist and
an associate of Dr. Marc E. Rankin, treated appellant for continued right shoulder pain. He noted

2

Docket No. 14-2056 (issued February 2, 2017).

3

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

2

right shoulder examination findings that included right shoulder flexion of 170 degrees, abduction
of 160 degrees, external rotation of 70 degrees, and internal rotation of 20 degrees.
In a May 12, 2011 report, an OWCP medical adviser reviewed the medical record and
disagreed with Dr. Marc E. Rankin’s impairment determination based on the motion
measurements recorded. The medical adviser noted that more recent motion measurements
recorded on April 15, 2011 showed greater motion capabilities and therefore should be used. The
medical adviser explained that the motion measurements recorded by Dr. E. Anthony Rankin on
April 15, 2011, resulted in 10 percent right arm permanent impairment which increased to 11
percent permanent impairment after applying applicable modifiers. Appellant reached MMI on
April 3, 2011.
By decision dated May 26, 2011, OWCP granted appellant a schedule award for 11 percent
permanent impairment of the right upper extremity. The award ran from April 3 to
November 29, 2011.
Appellant requested an oral hearing which was held before an OWCP hearing
representative on October 21, 2011. She submitted a December 8, 2011 report from Dr. E.
Anthony Rankin. Dr. E. Anthony Rankin noted range of motion (ROM) findings for both
shoulders: flexion was 70 degrees, abduction was 50 degrees, external rotation was 30 degrees
and internal rotation was zero degrees. He diagnosed disorder of the bursae of the shoulder region
bilaterally and rotator cuff sprain, bilateral complicated by adhesive capsulitis (frozen shoulder).
Dr. E. Anthony Rankin noted that appellant had not reached MMI as she had declined surgery. He
noted that she was diabetic and a frozen shoulder occurred spontaneously with diabetic patients.
Dr. E. Anthony Rankin noted that appellant had 20 percent permanent impairment of the right
shoulder and the left shoulder.4
By decision dated January 25, 2012, an OWCP hearing representative affirmed the
decision dated May 26, 2011. He noted that Dr. E. Anthony Rankin’s December 8, 2011 report
revealed that appellant had not reached MMI.
Appellant disagreed with the hearing representative’s decision. She submitted a report
from Dr. Marc E. Rankin dated February 27, 2012 who noted that his colleague, Dr. E. Anthony
Rankin, provided an impairment rating of 20 percent upper extremity impairment. Dr. Marc E.
Rankin utilized the impairment rating provided by Dr. E. Anthony Rankin in his December 8, 2011
report and indicated that appellant had reached MMI. On May 2, 2012 appellant filed a claim for
an additional schedule award (Form CA-7).
In a May 19, 2012 report, an OWCP medical adviser noted that, while Dr. Marc E.
Rankin’s February 27, 2012 report found 20 percent arm impairment, he did not provide
measurements for all the planes of motion. He recommended that Dr. Marc E. Rankin assess
shoulder ROM for internal rotation, external rotation, flexion, extension, abduction and adduction.
The medical adviser further noted that Dr. E. Anthony Rankin’s rating did not correlate with

4
Dr. Rankin noted that appellant had an unspecified class 2 diagnosis, the grade modifier for functional history was
2, the grade modifier for physical examination was 3, the grade modifier for clinical studies was 2. He applied the net
adjustment formula for a class 3, default grade C for 20 percent impairment of the bilateral arms.

3

appellant’s accepted conditions. He opined that the ROM method would provide a greater
impairment than the diagnosis-based impairment (DBI) method.
In a December 7, 2012 OWCP letter, OWCP requested that appellant have her physician
evaluate her permanent impairment of the right arm under the A.M.A., Guides.5 It specifically
requested appellant’s physician note whether MMI had been reached and a description of any
restriction of movement in terms of degrees of retained active motion.
On December 18, 2012 Dr. E. Anthony Rankin, provided a supplemental impairment
rating. He noted findings for ROM for the right and left shoulder for abduction of 120 degrees,
flexion of 120 degrees, external rotation of 50 degrees, internal rotation of 30 degrees, extension
of 10 degrees, adduction of 10 degrees, and strength testing of 4/5. Dr. E. Anthony Rankin
diagnosed disorder of the bursae of the shoulder region, adhesive capsulitis of the shoulder and
sprain and strain of other specified sites of the shoulder and upper arm. He noted MMI occurred
in December 2011. Dr. E. Anthony Rankin found that appellant had a class 2 diagnosis, the grade
modifier for functional history was 2, the grade modifier for physical examination was 3, the grade
modifier for clinical studies was 2. He applied the net adjustment formula for a class 3, default
grade C for 20 percent impairment of the bilateral upper extremities.6
OWCP’s medical adviser reviewed the medical record and disagreed with Dr. E. Anthony
Rankin’s impairment determination. He found that Dr. E. Anthony Rankin did not correctly
calculate impairment based on the motion measurements recorded. The medical adviser noted that
based on the motion measurements recorded by Dr. E. Anthony Rankin on December 18, 2012,
appellant had 15 percent permanent impairment of the right arm. The following impairment was
calculated pursuant to Table 15-34 of the A.M.A., Guides: flexion of 120 degrees would equal
three percent impairment; extension of 10 degrees would equal two percent impairment; abduction
of 120 degrees would equal three percent impairment; adduction of 10 degrees would equal one
percent impairment; external rotation of 50 degrees would equal two percent impairment; and
internal rotation of 30 degrees would equal four percent impairment.7 The medical adviser added
the ROM values to equal 15 percent permanent impairment of the right arm in accordance with
the A.M.A., Guides. He noted that based on the diagnoses given for the accepted condition
appellant would fit in a class 1 category. The medical adviser noted that Dr. E. Anthony Rankin
provided a 20 percent permanent impairment rating of the right upper extremity based on a class
2, grade C impairment; however, this finding did not correlate with the accepted conditions in the
statement of accepted facts. He noted that, as appellant previously had an award for 11 percent
permanent impairment of the right arm, he had 4 percent additional impairment in that arm. The
medical adviser noted that the date of MMI was April 3, 2011.
By decision dated March 27, 2013, OWCP granted appellant a schedule award for four
percent additional permanent impairment of the right upper extremity. It noted that, while

5

Supra note 3.

6

Dr. E. Anthony Rankin essentially restated the same impairment rating provided in his December 8, 2011 report.

7

Supra note 3 at 475.

4

OWCP’s medical adviser found a total of 15 percent right arm impairment, this included the 11
percent permanent impairment for which she previously received a schedule award.
Appellant requested an oral hearing which was held before an OWCP hearing
representative on June 26, 2014. She submitted reports from Dr. Ayasha Williams-Sharron,
Board-certified in physical medicine, dated May 12 to July 23, 2014, who treated her for bilateral
shoulder pain. Dr. Williams-Sharron diagnosed bilateral shoulder pain, bilateral shoulder
osteoarthritis and chronic pain.
By decision dated September 10, 2014, an OWCP hearing representative affirmed the
decision dated March 27, 2013.
Appellant appealed to the Board on September 29, 2014. By decision dated February 2,
2017, the Board set aside the September 10, 2014 decision.8 The Board found that OWCP had
inconsistently applied Chapter 15 of the A.M.A., Guides regarding the proper use of either the
DBI or ROM methodology in assessing the extent of permanent impairment. The Board
remanded the case for OWCP to issue a de novo decision after development of a consistent
method for calculating permanent impairment of the upper extremities.
On remand, by decision dated June 1, 2017, OWCP denied appellant’s claim for an
increased schedule award for the right upper extremity. It noted, considering the matter in
relation to FECA Bulletin No. 17-06, and found that the evidence did not support more than the
15 percent permanent impairment of the right arm, for which she previously received a schedule
award.
LEGAL PRECEDENT
The schedule award provision of FECA,9 and its implementing federal regulations,10 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.11 For decisions issued
after May 1, 2009, the sixth edition is used to calculate schedule awards.12
The sixth edition requires identifying the impairment Class of Diagnosis (CDX)
condition, which is then adjusted by grade modifiers based on Functional History (GMFH),

8

Supra note 2.

9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

11

Id. at § 10.404(a).

12
Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5(a) (February 2013).

5

Physical Examination (GMPE), and Clinical Studies (GMCS).13 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
Regarding the application of ROM or DBI impairment methodologies in rating
permanent impairment of the upper extremities, FECA Bulletin No. 17-06 provides, in part:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating
loss of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the Guides
allow for the use of both the DBI and ROM methods to calculate an impairment
rating for the diagnosis in question, the method producing the higher rating
should be used.” (Emphasis in the original.)14
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI
methods and identify the higher rating for the CE.”15
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.16
ANALYSIS
On prior appeal, the Board remanded the case for OWCP to reevaluate the extent of
appellant’s permanent impairment of her right upper extremity after it determined a consistent
method for rating upper extremity impairments under the A.M.A., Guides. On remand, OWCP
indicated that FECA Bulletin No. 17-06 provides that, if the A.M.A., Guides allowed both DBI
and ROM methods for calculating an identified diagnosis, the method that yielded the higher

13

Supra note 3 at 494-531.

14

FECA Bulletin 17-06 (issued May 8, 2017). See also D.F., Docket No. 17-1474 (issued January 23, 2018).

15

Id.

16
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).

6

impairment rating should be used.17 In this case, it noted that the medical adviser determined
that the use of ROM for rating appellant’s impairment provided the higher impairment rating.
On December 18, 2012 appellant’s treating physician, Dr. E. Anthony Rankin, noted that
appellant sustained 20 percent permanent impairment of her bilateral upper extremities pursuant
to the A.M.A., Guides.18 He diagnosed disorder of the bursae of the shoulder region, adhesive
capsulitis of the shoulder, and sprain and strain of other specified sites of the shoulder and upper
arm. Dr. E. Anthony Rankin noted findings for ROM for the right and left shoulder for abduction
of 120 degrees, flexion of 120 degrees, external rotation of 50 degrees, internal rotation of 30
degrees, extension of 10 degrees, adduction of 10 degrees, and strength testing of 4/5. He noted
that appellant had a class 2 diagnosis, the grade modifier for functional history of 2, the grade
modifier for physical examination of 3, and the grade modifier for clinical studies of 2.
Dr. E. Anthony Rankin noted grade modifiers and asserted that this provided “a net adjustment of
grade C. class 3. Default is 20 percent” arm impairment.
The Board finds that Dr. E. Anthony Rankin’s determination of 20 percent permanent
impairment of the right arm is of limited probative value. Although he purports to use a DBI rating
for the shoulder region under the A.M.A., Guides, Dr. E. Anthony Rankin does not clearly identify
the diagnosis in the A.M.A., Guides on which he is basing his impairment rating. He also indicates
that it is both a class 2 and a class 3 diagnosis with a default, grade C, impairment rating of 20
percent of the arm. However, the shoulder regional grid19 contains no class 3 diagnoses with a
default impairment of 20 percent. Regardless of whether his reference to class 3 was a
typographical error, the only class 2 rating in this grid with 20 percent default impairment is for a
type IV or higher acromioclavicular (AC) joint separation.20 Dr. E. Anthony Rankin did not
diagnose and OWCP did not accept that appellant sustained this type of AC joint separation. As
his impairment rating is not properly based on the A.M.A., Guides, it is of limited probative value
and OWCP properly referred the matter to its medical adviser.21
In his March 14, 2013 report, OWCP’s medical adviser advised that, while Dr. E. Anthony
Rankin provided 20 percent permanent impairment of the right arm based on a class 2, grade C
impairment, the diagnoses given for the accepted condition appellant fit in a class 1 category. He
indicated that class 2 diagnoses did not correlate with appellant’s accepted conditions. Instead,
the medical adviser opined that use of Dr. E. Anthony Rankin’s ROM findings would yield a
higher impairment rating for appellant. He explained that, based on the motion measurements
recorded by Dr. E. Anthony Rankin on December 18, 2012, appellant had 15 percent permanent
impairment of the right arm. The medical adviser noted that pursuant to Table 15-34 of the
A.M.A., Guides: flexion of 120 degrees equaled three percent impairment; extension of 10 degrees
equaled two percent impairment; abduction of 120 degrees equaled three percent impairment;
17

Supra note 14.

18

This appeal pertains only to impairment of the right arm as OWCP has not issued a decision adjudicating whether
appellant has a work-related condition or impairment of the left arm. See 20 C.F.R. § 501.2(c).
19

See supra note 3 at Table 15-5 at 401-05.

20

Id. at 403.

21

See Linda Beale, 57 ECAB 429 (2006).

7

adduction of 10 degrees equaled one percent impairment; external rotation of 50 degrees equaled
two percent impairment; and internal rotation of 30 degrees equaled four percent impairment.22
He added the ROM values to equal 15 percent permanent impairment of the right upper extremity
in accordance with the A.M.A., Guides. The medical adviser noted that appellant was previously
awarded 11 percent permanent impairment of the right arm due to the shoulder condition and now
had an additional right upper extremity impairment of 4 percent.
On appeal appellant asserts that Dr. E. Anthony Rankin’s report’s outlined appellant’s
permanent impairment, and substantiated her claim for a schedule award. However, as noted
above, his report failed to clearly explain how he arrived at 20 percent permanent impairment
under the A.M.A., Guides. Accordingly, Dr. E. Anthony’s opinion is of limited probative value.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than 15 percent permanent impairment of the
right upper extremity, for which she previously received a schedule award.
ORDER
IT IS HEREBY ORDERED that the June 1, 2017 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: April 6, 2018
Washington, DC

Christopher J. Godfrey, 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
22

Supra note 3 at 475.

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.I., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Placitas, NM, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Gordon Reiselt, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-2288
Issued: July 25, 2011

Case Submitted on the Record

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

JURISDICTION
On September 13, 2010 appellant timely appealed the May 19, 2010 merit decision of the
Office of Workers’ Compensation Programs (OWCP), which affirmed a prior schedule award.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has a ratable impairment of the upper extremity due to her
accepted right elbow injury.
FACTUAL HISTORY
Appellant, then a 36-year-old clerk, has an accepted occupational disease claim for right
shoulder strain and right ulnar nerve lesion, which arose on or about April 16, 2007. OWCP
approved two surgical procedures; one involving the right shoulder and another for the right
1

5 U.S.C. §§ 8101-8193.

elbow. On January 2, 2008 appellant underwent an arthroscopic right distal clavicle resection
and right shoulder subacromial decompression and acromioplasty on April 16, 2008, she
underwent a right anterior ulnar nerve transposition at the elbow.
On September 2, 2008 appellant filed a claim for a schedule award. She submitted
impairment ratings from both of her surgeons. In a report dated May 27, 2008, Dr. Dwight W.
Burney III, a Board-certified orthopedic surgeon, found 10 percent impairment of the right upper
extremity due to appellant’s distal clavicle excision.2 He did not rate appellant’s right elbow
because at that time she was about five weeks postsurgery and had yet to be released by her other
surgeon.
Dr. John M. Veitch, a Board-certified orthopedic surgeon, performed the April 16, 2008
right elbow ulnar nerve transposition, provided an August 1, 2008 impairment rating. He noted
that appellant was doing well following surgery and had regained full strength in her right arm.
Dr. Veitch indicated that she had reached maximum medical improvement (MMI) and was able
to return to full work activities. He noted that appellant’s work-related condition appeared to
have resolved. Dr. Veitch found five percent impairment of the right upper extremity.3
On October 14, 2008 the district medical adviser (DMA) reviewed the record, including
the impairment ratings provided by Dr. Veitch and Dr. Burney. With respect to appellant’s right
shoulder distal clavicle resection arthroplasty, he found that this represented 10 percent
impairment of the right upper extremity under the fifth edition of the A.M.A., Guides (2001).4
However, the DMA disagreed with Dr. Veitch’s August 1, 2008 rating of five percent. He
explained that Dr. Veitch reported normal strength and function in the right upper extremity with
resolution of the work-related problem. The DMA further noted that Dr. Veitch recommended
full work activities. According to him, this description did not support the presence of residual
impairment resulting from the lesion of the ulnar nerve. In contrast to Dr. Veitch’s five percent
rating, the DMA found zero percent impairment of the right upper extremity.
By decision dated November 19, 2008, OWCP granted a schedule award for 10 percent
impairment of the right upper extremity under the fifth edition of the A.M.A., Guides (2001).5
The award covered a period of 31.2 weeks, from August 1, 2008 through March 7, 2009.
OWCP subsequently received an April 17, 2009 nerve conduction study and
electromyography that was interpreted as “a normal right upper extremity ... study.”6
2

Dr. Burney referenced Table 15-5, page 403 of the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (2008). At the time, OWCP had yet to adopt the sixth edition of the
A.M.A., Guides. The fifth edition remained in effect through April 30, 2009.
3

Dr. Veitch too relied on the sixth edition of the A.M.A., Guides (2008). Dr. Burney and Dr. Veitch did not
identify the specific table or tables he relied upon in finding five percent impairment of the right upper extremity.
4

The DMA cited Table 16-27, page 506 of the A.M.A., Guides (5th ed. 2001).

5

OWCP explained that the DMA found that Dr. Veitch’s description of appellant’s condition did not support the
presence of residual impairment resulting from the lesion of the ulnar nerve.
6

Appellant’s two previous electrodiagnostic studies from July 2007 and March 2008 were also normal.

2

Dr. Veitch’s April 17, 2009 treatment notes referenced the normal test results and he described
appellant’s problem as “relatively mild.”7 In an April 24, 2009 letter to OWCP, he indicated that
appellant was a patient of his who had a right ulnar nerve transposition. He further stated that
she had reached MMI and had five percent impairment based on the nerves in the right upper
extremity.
In a decision dated July 8, 2009, the Branch of Hearings and Review affirmed the
November 19, 2008 schedule award.
On September 24, 2009 appellant requested reconsideration. OWCP received an
August 26, 2009 report from Dr. Veitch. Based upon a review of his notes, Dr. Veitch explained
that appellant had some residual discomfort on her elbow and hand area. He also reported
slightly distorted tactile sensibility and minimal motor deficit. Dr. Veitch indicated that based on
Table 16-10, Peripheral Nerve Disorders, page 482, A.M.A., Guides (5th ed. 2001), appellant had
five percent impairment of the upper extremity secondary to her work-related problem.
OWCP referred appellant’s case file to the DMA for review. In a report dated
December 29, 2009, the DMA indicated that the description of abnormality Dr. Veitch provided
on August 26, 2009 was inadequate. Based on the information provided, he was unable to
recommend impairment. The DMA further noted that Dr. Veitch cited the fifth edition of the
A.M.A., Guides, whereas OWCP currently utilized the sixth edition. He suggested that OWCP
ask Dr. Veitch to provide another evaluation with recommendations for impairment based on the
latest edition of the A.M.A., Guides (6th ed. 2008).
On March 31, 2010 OWCP advised appellant that Dr. Veitch’s latest report would not
suffice for purposes of determining her entitlement to a schedule award. It explained that the
evaluation criteria had changed effective May 1, 2009 and that she needed to have her physician
submit an impairment rating in accordance with the sixth edition of the A.M.A., Guides (2008).
OWCP afforded appellant 30 days to submit the requested information.
Appellant’s attorney responded on April 28, 2010. He noted that Dr. Veitch’s initial
August 1, 2008 impairment rating was done under the sixth edition of the A.M.A., Guides.
Counsel explained that the August 26, 2009 rating was done under the fifth edition because
appellant’s November 19, 2008 schedule award was under the fifth edition. He further noted that
Dr. Veitch’s latest report included rationale for his finding of five percent impairment, which
was due to residual discomfort in the elbow and hand area.
OWCP did not receive an additional impairment rating under the A.M.A., Guides (6th ed.
2008) as requested.
In a decision dated May 19, 2010, OWCP considered the schedule award claim on the
merits and denied modification of the July 8, 2009 decision.
7

Dr. Veitch previously examined appellant on December 5, 2008 and reported that her grip strength was equal
bilaterally. At the time, appellant reported an occasional tingling sensation in her right hand, which prompted
Dr. Veitch to order additional electrodiagnostic studies. Dr. Veitch noted that overall appellant appeared to be doing
well.

3

LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.8 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.9 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2008).10
ANALYSIS
Appellant has already received a 10 percent award for impairment of the right upper
extremity attributable to her January 2, 2008 right distal clavicle resection. Dr. Bruney found 10
percent impairment for the distal clavicle excision, albeit under the sixth edition of the A.M.A.,
Guides (2008). At the time, the DMA utilized the then-applicable fifth edition of the A.M.A.,
Guides (2001) and similarly found 10 percent impairment of the right upper extremity.11
Appellant’s counsel does not specifically challenge the percentage awarded for the right shoulder
surgery. Moreover, the medical evidence does not establish entitlement to an increased upper
extremity impairment as it pertains to appellant’s accepted right shoulder injury.
Appellant claims entitlement to an additional five percent impairment of the right upper
extremity based on Dr. Veitch’s findings regarding her right elbow injury. The procedure
manual provides that the attending physician should describe the impairment in sufficient detail
to permit clear visualization of the impairment and the restrictions and limitations which have
resulted.12 The description should include the loss in degrees of active and passive motion of the
affected member or function, the amount of any atrophy or deformity, disturbance of sensation,
or other pertinent description of the impairment.13 The procedure manual further notes that
under the sixth edition of the A.M.A., Guides (2008), clinical history is also important in the
diagnosis-based grid that ranks impairment within classes of severity.14
In his initial impairment rating dated August 1, 2008, Dr. Veitch indicated that appellant
was doing well following surgery and she had regained full strength in her right arm. He also
8

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

9

20 C.F.R. § 10.404.

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Example 1
(January 2010).
11

See Table 16-27, A.M.A., Guides 506 (5th ed. 2001).

12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3a(2) (January 2010).

13

Id.

14

Id.

4

noted that her work-related condition appeared to have resolved. Dr. Veitch further indicated
that appellant reached MMI and was able to return to full work activities. Notwithstanding what
appeared to be a full recovery from her right ulnar nerve lesion, he found five percent
impairment of the right upper extremity. Dr. Veitch ostensibly relied upon the sixth edition of
the A.M.A., Guides, but failed to identify the specific tables he utilized in determining
appellant’s right upper extremity impairment rating.
When the DMA first reviewed the August 1, 2008 impairment rating, he reasonably
questioned how Dr. Veitch’s findings supported the presence of residual impairment resulting
from the ulnar nerve lesion, particularly in light of appellant’s reported normal strength and what
Dr. Veitch described as the apparent resolution of the work-related injury. He had also released
appellant to full work activities. The DMA properly concluded that Dr. Veitch’s August 1, 2008
description of appellant’s condition warranted zero percent impairment of the right upper
extremity.
The above-noted defects in Dr. Veitch’s August 1, 2008 report were not cured by his
April 24, 2009 letter to OWCP wherein he stated that appellant had five percent impairment
based on the nerves in the right upper extremity. When appellant saw Dr. Veitch on
December 5, 2008 he noted that her grip strength was equal bilaterally. Dr. Veitch did not report
any other findings on physical examination and her only complaint at the time was an occasional
tingling sensation in the right hand. He ordered additional electrodiagnostic studies, which were
normal and consistent with appellant’s two prior studies. When he saw appellant on April 17,
2009, Dr. Veitch reviewed the normal test results and described appellant’s problem as
“relatively mild.” His December 5, 2008 and April 17, 2009 treatment records and the recent
electrodiagnostic studies provided no clarification or elucidation for his April 24, 2009 finding of
five percent impairment based on the nerves in the right upper extremity.
Dr. Veitch attempted to elaborate on his five percent impairment rating in his August 26,
2009 report. He referenced Table 16-10 of the fifth edition of the A.M.A., Guides (2001) and
noted some residual discomfort in appellant’s elbow and hand area. Dr. Veitch also noted
slightly distorted tactile sensibility and minimal motor deficit. The DMA reviewed this latest
report and found that the description of abnormality Dr. Veitch provided was inadequate. Based
on the DMA’s recommendation, OWCP asked appellant to obtain another impairment rating
from Dr. Veitch based on the sixth edition of the A.M.A., Guides (2008). However, appellant’s
counsel apparently believed Dr. Veitch’s August 1, 2008 and August 26, 2009 impairment
ratings should suffice. OWCP did not subsequently receive the requested report.
Notwithstanding the fact that appellant’s 2008 schedule award calculated pursuant to the
fifth edition of the A.M.A., Guides, all schedule award decisions issued on or after May 1, 2009
must be in accordance with the sixth edition of the A.M.A., Guides (2008). The problem with
Dr. Veitch’s August 1, 2008 impairment rating was not the version of the A.M.A., Guides he
cited, but the fact that his then description of appellant’s condition was inconsistent with a

5

finding of residual impairment attributable to the work-related right ulnar nerve lesion. As to the
August 26, 2009 report, even if the fifth edition of the A.M.A., Guides remained in effect, this
latest report would not suffice for purposes of establishing a peripheral nerve disorder.15
Dr. Veitch reportedly reviewed his notes and found evidence of “some residual discomfort on
[appellant’s] elbow and hand area.” He also mentioned evidence of “slightly distorted tactile
sensibility and minimal motor deficit.” It is not readily apparent from his various treatment notes
where Dr. Veitch gleaned this particular information. Moreover, it is not clear how this
information translated to a five percent impairment of the right upper extremity regardless of
which version of the A.M.A., Guides one applies.16 Accordingly, the Board finds that
Dr. Veitch’s various reports are insufficient to establish any additional impairment of the right
upper extremity under the A.M.A., Guides (6th ed. 2008).17
CONCLUSION
Appellant has not established entitlement to any additional impairment of the upper
extremity due to her accepted right elbow injury.

15

Dr. Veitch only referenced Table 16-10, A.M.A., Guides 482 (5th ed. 2001), which is just one step in the overall
evaluation process for determining the extent of any peripheral nerve disorder.
16

The latest version of the A.M.A., Guides addresses upper extremity peripheral nerve impairments under Table
15-14, Table 15-21 and Table 15-23, A.M.A., Guides 425, 436-44, 449 (6th ed. 2008).
17

Appellant may request a schedule award or increased schedule award based on evidence of a new exposure or
medical evidence showing progression of an employment-related condition resulting in permanent impairment or
increased impairment.

6

ORDER
IT IS HEREBY ORDERED THAT the May 19, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 25, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7