United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Boston, MA,
Employer
__________________________________________

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

Docket No. 13-2023
Issued: March 6, 2014

Case Submitted on the Record

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

JURISDICTION
On September 3, 2013 appellant, through her attorney, filed a timely appeal of the May 7,
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 the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
in the performance of duty.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This is the second appeal in this case. In a decision dated December 18, 2012, the Board
affirmed a March 13, 2012 decision which denied appellant’s claim for a traumatic injury.2 The
facts and circumstances of the case up to that point are set forth in the Board’s prior decision and
incorporated herein by reference.3
On December 18, 2012 appellant, through his attorney, requested reconsideration.
Appellant asserted that OWCP erred in concluding that he had not presented sufficient evidence
to support his claim for compensation. He noted the general legal principles for establishing a
traumatic injury claim including fact of injury and causation. Appellant renewed his previous
argument made in support of the new medical evidence. He resubmitted the December 2, 2011
report from Dr. Drachman and an OWCP questionnaire dated December 9, 2011, both previously
of record.
In a May 7, 2013 decision, OWCP denied modification of a December 18, 2012 decision
finding that the medical evidence did not demonstrate that the claimed condition was causally
related to the established work-related events.
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 filed within the applicable time limitation
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 are causally related to the
employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.4
To determine whether an employee actually sustained an injury in the performance of
duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.5 The second component of fact of
injury is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability claimed and the employment event or incident, the employee

2

Docket No. 12-1130 (issued December 18, 2012).

3

On November 1, 2011 appellant, then a 67-year-old revenue agent, filed a traumatic injury claim, alleging that,
on October 18, 2011, he developed chest pain and shortness of breath after a fire evacuation drill at the employing
establishment building. He stopped work on October 18, 2011.
4

Gary J. Watling, 52 ECAB 357 (2001).

5

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

2

must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.6
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.7 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.8
ANALYSIS
In the instant case, it is not disputed that appellant worked as a revenue agent and that, on
October 18, 2011, he walked down five flights of stairs and an additional block after a fire
evacuation at the employing establishment. It is also not disputed that he was diagnosed with
acute coronary syndrome. However, appellant has not submitted sufficient medical evidence to
establish that his acute coronary syndrome was in any way causally related to the October 18,
2011 work incident. He did not submit a rationalized medical report from a physician
sufficiently explaining how the October 18, 2011 incident caused or aggravated a diagnosed
medical condition.
Appellant asserted that OWCP erred in concluding that he did not present sufficient
evidence to support his claim for compensation. Counsel provided an argument with basic
general legal principles for establishing a traumatic injury claim including fact of injury and
causation; however, he did not explain how these legal standards applied to the facts of his claim.
There is no new medical evidence in the record that has not already been reviewed by the Board.
Appellant submitted an OWCP questionnaire dated December 9, 2011, however, this document
is irrelevant to establish his claim. His claim was denied because he failed to submit rationalized
medical evidence establishing that he sustained a cardiac condition causally related to his
employment incident of October 18, 2011. This questionnaire is not medical evidence and
therefore insufficient to establish appellant’s claim.
For these reasons, OWCP properly found that appellant did not meet his burden of proof
in establishing his claim.

6

Id.

7

Leslie C. Moore, 52 ECAB 132 (2000).

8

Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not containing rationale on causal relationship are
entitled to little probative value); Jimmie H. Duckett, 52 ECAB 332 (2001).

3

On appeal appellant asserted that Dr. Drachman’s December 2, 2011 report supported
that exertion could trigger an acute coronary event; however, this report has already been
reviewed and found lacking.9
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 meet his burden of proof to establish that his
claimed conditions were causally related to his employment.
ORDER
IT IS HEREBY ORDERED THAT the May 7, 2013 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 6, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9

Supra note 2.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.S., Appellant
and
U.S. POSTAL SERVICE, PHILADELPHIA
PROCESSING & DISTRIBUTION CENTER,
Philadelphia, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-863
Issued: September 26, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 18, 2011 appellant, through her attorney, filed a timely appeal of the
September 22, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
terminating her compensation benefits. 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 OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective September 26, 2010 on the grounds that she no longer had any
residuals or disability causally related to her accepted employment-related injuries.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on June 25, 2008 appellant, then a 41–year-old mail handler,
sustained a right ankle sprain while pushing an all-purpose container filled with mail.
Subsequently, it accepted her claim for consequential osteochrondritic desiccans. On May 28
and June 11, 2009 appellant underwent right ankle arthroscopy, debridement of microfracture
and open excision of an os trigonum which were performed by Dr. Gene W. Shaffer, an
attending Board-certified orthopedic surgeon.
In prescriptions dated April 6 and May 15, 2010, Dr. Irwin Jacobson, an attending,
Board-certified osteopath, stated that appellant was still under his care and that she was unable to
work.
In an April 28, 2010 medical report, Dr. Jin J. Luo, a Board-certified neurologist,
obtained a history of the June 25, 2008 employment injuries and appellant’s medical treatment,
social and family background. He listed his findings on physical examination and diagnosed
peripheral polyneuropathy that was likely chronic inflammatory demylinaring polyneuropathy.
In a June 29, 2010 Form CA-17, Dr. Jacobson advises that appellant had postsurgical
right ankle pain. He stated that she could return to her regular work duties on a full-time basis
with no restrictions as of that date. Appellant did not return to work.
In addition to the medical evidence outlined, the record contains reports and memoranda
generated by the employing establishment which document an on-going fraud investigation by
the Postal Service Office of Inspector General.2 These documents show that the employing
establishment had direct in person contact with appellant’s treating doctor on two occasions and
showed him edited surveillance video of the claimant.3 The agents informed Dr. Jacobson that
they were pursuing a healthcare fraud investigation of appellant.4 The agents talked about the
video evidence with Dr. Jacobson and had him fill-out and sign under oath a Postal Service
Questionnaire.5 Dr. Jacobson signed an “Official Statement,” drafted by a Postal Service Special
Agent, which stated that he had watched only half the offered video and that he agreed that
2

Memoranda from the Special Agent in Charge, Eastern Area Field Office, Office of Inspector General, U.S.
Postal Service to the Regional Director U.S. Department of Labor, Office of Workers’ Compensation Programs,
dated May 12, 2009 and July 29, 2010 along with a supporting Report of Investigation (ROI) for each memorandum
which described surveillance video obtained and interviews conducted by agents of the Postal Service with Dr. Irwin
Jacobson on April 15, 2009 and June 29, 2010, Dr. Gene Shaffer, the surgeon, who operated on appellant and Marta
Jaramillo, a Physician Assistant, both on April 15, 2009.
3

Memorandum of Interview, bearing the name and badge logo of the Postal Service Office of Inspector General,
dated June 29, 2010, 3 pages, identified as “Exhibit 13” in the materials provided with the memorandum to OWCP
dated July 29, 2010 and a similar Memorandum of Interview, dated April 15, 2009, 2 pages, identified as “Exhibit 5
in the materials provided with the memorandum to OWCP dated May 12, 2009.
4

Id.

5

Questionnaire, bearing the name and law enforcement logo of the Postal Service Office of Inspector General,
dated June 29, 2010, 2 pages, identified as “Exhibit 12” in the materials provided with the memorandum dated
July 29, 2010.

2

appellant could work.6 Also on June 29, 2010, Dr. Jacobson filled-out a Department of Labor
Form CA-17 on which he checked a box indicating that appellant was able to return to regular
work, a box indicating appellant could work full time and failing to note any medical restriction.7
During the discussion of appellant’s claim, Dr. Jacobson suggested the special agents talk
to appellant’s other doctor:
“Dr Jacobson [stated that] SA Dixon should talk with [appellant’s] neurologist as
well. He [stated], ‘I do [not] see how Dr. Lou could [not] return [appellant] back
to work full duty after seeing the video tape. If Dr Jacobson’s tests show she has
nerve damage, then I guess she can work with nerve damage.’ SA Dixon [stated
that] he would discuss interviewing Dr. Lou with his supervisor. [He] [stated]
that it would be unusual give[n] that Dr. Jacobson was the deciding treating
medical physician according to the Department of Labor.”8
The memoranda and investigative materials state that the video evidence had been edited
but contain no explanation of how it was edited or who performed the editing. The video
evidence was not shown to Dr. Jacobson in its entirety and the interview materials do not note
what she saw and what he declined to view.9 The record does not contain evidence that appellant
was aware in advance that her employer intended to present surveillance evidence to her doctors
or that she ever had an opportunity to obtain a copy of the video and offer any explanation or
comment. The surveillance information, tapes and memos, was intended to be kept secret.10 The
investigation of appellant began with a “Proactive review of individuals listed on the periodic
rolls.”11 It is not clear from the record whether this type of investigation occurs often or is
unique to appellant’s case.
In addition to the visits to Dr. Jacobson’s office on April 15, 2009 and June 29, 2010,
there were visits and interviews with Dr. Gene Shaffer M.D. and Marta Jaramillo, a physician’s
6

Identified as “Exhibit 11” in the material provided along with the Postal Service memorandum dated
July 29, 2010.
7

Duty Status Report, U.S. Department of Labor, identified as “Exhibit 10” in the materials provided with the
memorandum to OWCP dated July 29, 2010.
8

Memorandum of Interview, June 29, 2010, supra note 4.

9

Id.

10

The two Postal Service “Report of Investigation” documents which accompany the two memoranda from the
Postal Service Inspector General’s Office to OWCP, supra note 3, are apparently printed on special stationary which
bares the notation “Restricted Information.” The stationary also has the following statement:
“This report is furnished on an official need to know basis and must be protected from
dissemination which may compromise the best interests of the U.S. Postal Service Office of
Inspector General. This report shall not be released in response to a Freedom of Information Act
or Privacy Act request or disseminated to other parties without prior consultation with the Office
of Inspector General. Unauthorized release may result in criminal prosecution.”
11

Postal Service Office of Inspector General, “Report of Investigation”, July 14, 2010, section entitled
“Predication.”

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assistant, both on April 15, 2009. Dr. Shaffer performed ankle surgery on appellant. He was
shown part of the video and repeated that he had released appellant to sedentary duty. The
special agent conducting the interview stated:
“Dr. Shaffer was shown the limited-duty job offer, dated February 4, 2009 and
stated [that] she would be able to perform those job duties. [He] completed an
OWCP-5c Form, Work Capacity Evaluation Musculoskeletal Conditions, with
Stewart’s current restrictions.”
Marta Jaramillo, P.A., showed some resistance to the interview process. After being shown
some portion of the video by the agents, she declined to answer questions about appellant
without legal advice.12
On August 3, 2010 OWCP issued a notice of proposed termination of appellant’s
wage-loss compensation and medical benefits based on Dr. Jacobson’s medical opinion.
In an August 25, 2010 letter, appellant disagreed with OWCP’s proposed action. She
contended that she was misdiagnosed with a right ankle strain by an employing establishment
physician. Appellant had lumbar peripheral polyneuropathy as diagnosed by Dr. Shaffer and
Dr. Luo based on magnetic resonance imaging scan and electromyogram test results. In
prescriptions dated August 4, 2010, he ordered medication to treat appellant’s diagnosed
condition.
In a September 22, 2010 decision, OWCP terminated appellant’s wage-loss compensation
and medical benefits effective September 26, 2010. It found that Dr. Jacobson’s opinion
represented the weight of the medical evidence.13
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
her employment, OWCP may not terminate compensation without establishing that the disability
had ceased or that it was no longer related to the employment.14 OWCP’s burden of proof
includes the necessity of furnishing rationalized medical opinion evidence based on a proper
factual and medical background.15
Furthermore, the right to medical benefits for an accepted condition is not limited to the
period of entitlement for disability. To terminate authorization for medical treatment, OWCP
12

Postal Service Office of Inspector General, Memorandum of Interview dated April 15, 2009.

13

Following the issuance of OWCP’s September 22, 2010 decision, OWCP received additional evidence. The
Board may not consider evidence for the first time on appeal which was not before OWCP at the time it issued the
final decision in the case. 20 C.F.R. § 501.2(c) (1).
14

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

15

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

4

must establish that a claimant no longer has residuals of an employment-related condition that
requires further medical treatment.16 The attending physician must provide periodic, detailed
reports as described in the regulations.17 The FECA Regulations allow limited contact between
the employing establishment and the employee’s treating doctor but explicitly forbid contact by
telephone or by direct, personal visit.18
Where OWCP intends to offer surveillance video as evidence to a physician for the
purpose of obtaining a medical opinion, it must notify the employee of its intention to do so. If
the employee requests a copy of the surveillance video OWCP must provide a copy. Appellant
must then be afforded an opportunity to comment and explain the events depicted in the video.19
ANALYSIS
The issue before the Board is whether OWCP properly terminated appellant’s benefits
because the disability related to her accepted June 25, 2008 right ankle injury had fully resolved.
The Board finds that OWCP did not meet its burden of proof to terminate compensation.
OWCP’s decision dated September 22, 2010 relied on medical evidence that appellant’s
disability had ceased as stated on the Form CA-17 completed by Dr. Jacobson on June 29, 2010.
The Board notes that this form was filled-out during the second of two visits to the attending
physician’s office by agents of the employing establishment. The regulatory violation could not
be more obvious.20 The fact that the Postal Service agents also made personal visits to
appellant’s surgeon and to a physician’s assistant involved with her treatment removes the
possibility chance that this regulatory violation was inadvertent. The fact that OWCP Regional
Director received two official memoranda from the Postal Service suggests that OWCP was a

16

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

17

Title 20 -- Employees’ Benefits CHAPTER 1 -- OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
DEPARTMENT OF LABOR PART 10 -- CLAIMS FOR COMPENSATION UNDER THE FEDERAL
EMPLOYEES’ COMPENSATION ACT, AS AMENDED Subpart D -- Medical and Related Benefits § 10.332
What additional medical information will OWCP require to support continuing payment of benefits?
In all cases of serious injury or disease, especially those requiring hospital treatment or prolonged care, OWCP
will request detailed narrative reports from the attending physician at periodic intervals. The physician will be asked
to describe continuing medical treatment for the condition accepted by OWCP, a prognosis, a description of work
limitations, if any, and the physician’s opinion as to the continuing causal relationship between the employee’s
condition and factors of his or her Federal employment.
18

Title 20 -- Employees’ Benefits CHAPTER I -- OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
DEPARTMENT OF LABOR PART 10 -- CLAIMS FOR COMPENSATION UNDER THE FEDERAL
EMPLOYEES’ COMPENSATION ACT, AS AMENDED Subpart F -- Continuing Benefits § 10.506 May the
employer monitor the employee’s medical care?
19

J.M., 58 ECAB 478 (2007); Frederick Nightingale, 6 ECAB 268 (1953).

20

Supra note 16.

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willing recipient of information obtained by methods which ECAB precedent and the Procedure
Manual deny to OWCP claims examiners.21
It is clear from the record that OWCP accepted medical opinion evidence without
probative value as dispositive. The record shows that the video evidence was edited but there is
no information about how extensively it was edited or who decided what to eliminate from the
tape.22 The record shows that neither Dr. Jacobson nor Dr. Shaffer, interviewed at different
times, saw the entire edited video (or whether they saw different edited video) and there is no
indication whether they saw a representative sample of the video that was available.23 The
agents talked to Dr. Jacobson and placed their inquiry in the context of a fraud investigation
before asking the doctor to opine whether appellant was disabled.24 The agents also evaluated
Dr. Jacobson’s recommendation that they also interview Dr. Luo although this decision is a
medical and claims management judgment.25 It is clear that the agents of the employing
establishment took an active, and on some issues decisive, role in developing appellant’s claim
and building the case for termination of her benefits. The Board finds that OWCP departed from
the implementing federal regulations by relying on evidence obtained through direct contact
between agents of the employer and appellant’s treating doctor.26
Under ECAB precedent, OWCP should not have accepted the evidence as probative
because the appellant was never informed of its existence and intended use and allowed to offer a
comment or explanation. Almost 60 years ago, in a case involving witness statements, the Board
cautioned in Frederick Nightingale:
“More important, appellant should have been apprised of the conflicts and
inconsistencies and the general nature of the adverse evidence developed, in order
that he might know the nature of the issues to be met and have an opportunity to
present such rebuttal or explanation as was available. This in the Board’s view is
vital in the non-adversary proceedings under the[FECA], as it is the function of

21

John M. Fuller, 9 ECAB 320 (1957). In this case, the predecessor agency of OWCP denied a claim for a
recurrence of a hernia based upon oral statements made by two doctors to an investigator when the doctors were
explaining their reports and findings. ECAB set aside the denial of benefits and remanded the case. This opinion,
cited in the FECA Procedure Manual § 2.0800.8(e), precludes OWCP from relying on oral statements of medical
findings, opinion or rationale as competent evidence. In the case presently before ECAB it is not disputed that the
special agents offered explained the surveillance evidence to the doctor and reported in their notes verbatim quotes
from Dr. Jacobson.
22

Supra note 9.

23

For Dr. Jacobson, supra note 9. For Dr. Shaffer, United States Postal Service Office of Inspector General,
Memorandum of Interview, dated April 15, 2009.
24

The record cannot disclose the doctor’s state of mind during his interview but the possibility exists that he may
have feared that he, himself, might be dragged into the “fraud investigation” and therefore have exerted every effort
to appear cooperative with the Special Agents.
25

Supra note 9.

26

See H.C., Docket No. 11-627 (issued July 5, 2012).

6

the Bureau27 to adjudicate the rights of claimants in the light of all the relevant
facts, facts which can only be developed fully when the claimant is fairly advised
as to the nature of evidence from other sources which bears on his claim….
“The Board is aware of the informal processes employed in the administrative
development of cases, and the techniques of investigation, which sometimes lead
to records replete with hearsay evidence, and of the Bureau’s responsibility to
evaluate such evidence in the light of all the surrounding facts and circumstances
of the particular case. [Citation omitted] For these reasons technical objections
regarding the nature of the evidence are seldom of great moment, but there are
limits beyond which the process cannot extend without serious prejudice to the
right of the individual claimant or to the interests of the United States.”28
The Board more recently addressed the issue of surveillance and imposed upon OWCP
an obligation to disclose the existence of videotape evidence to the employee before it is shown
to a doctor and to allow the employee to comment on and explain the events captured on tape:
“Under certain circumstances, videotape evidence may be of value to a physician
offering an opinion regarding a claimant’s medical condition. It may reflect on
the patient’s reliability as a historian or the actual ranges of motion, lifting or
other physical activities the claimant may perform. However, a videotape may be
incorrect or misleading to a physician if there are errors, such as identity of the
individual recorded on the videotape or whether certain activities were facilitated
by the use of medication. The Office has the responsibility to make the claimant
aware that it is providing videotape evidence to a medical expert. If the claimant
requests a copy of the videotape, one should be made available and the employee
given a reasonable opportunity to offer any comment or explanation regarding the
accuracy of the recording.”29
In this case the Board reverses on several grounds. First, the employing establishment
twice violated the regulations forbidding direct contact with appellant’s treating doctor. That
violation operates to strip the doctor’s opinion of the status of a “treating doctor” opinion. It is
clear that, regardless of intent, the employing establishment treated Dr. Jacobson, appellant’s
treating physician, as if he were not covered under a regulations which explicitly limits contacts
with treating doctors while it procured from him an opinion favorable to its position. The
employing establishment and OWCP subsequently assert that the opinion procured after, two
prohibited contacts, is still that of a “treating doctor” and justifies the termination of benefits and
medical care. OWCP should have rejected evidence generated by a violation of the applicable
regulations.

27

The Bureau of Employees’ Compensation was a predecessor of the present OWCP.

28

Frederick Nightingale, 6 ECAB 268, 271 (1953).

29

J.M., 58 ECAB 478, 486 (2007).

7

Second, the circumstances of the visits by special agents coupled with the vague record
of the actual video evidence viewed by Dr. Jacobson, Dr. Shaffer and nurse Jaramillo create a
prejudice which cannot be eradicated by any subsequent action by OWCP. During both visits to
Dr. Jacobson, law enforcement agents of the employing establishment explained that they were
acting in the context of a fraud investigation. He could not have failed to note that fact and
reached draw some inferences about his patient, the appellant. The special agents discussed their
investigation and evidence with Dr. Jacobson and certainly influenced the doctor’s perception of
the persuasive value of the video itself. The special agents offered their own judgment on
whether Dr. Luo should be interviewed. This decision appears to be a medical or claims
management judgment rather than one to be made by agents in a fraud investigation. The
investigative materials in the record do not accurately and reliably identify the evidence
Dr. Jacobson (or Dr. Shaffer or nurse Jaramillo) saw and used as the basis of his opinion.
Dr. Jacobson’s opinion in the Form CA-17 is, for these reasons, tainted and unpersuasive.30
Third, appellant did not learn that Dr. Jacobson, Dr. Shaffer and nurse Jaramillo were
viewing secret evidence presented by the employing establishment. The Board has long
disfavored the use of investigative evidence which is presented for the purpose of obtaining an
adverse opinion, but not disclosed to the injured worker.31 OWCP must notify employees of the
existence of surveillance and of its intended use.32 Appellant was not afforded this notice.
This opinion should not be read as a criticism of efforts to investigate possible instances
of fraud or to prevent unwarranted payment of benefits or provision of services due to error or
misunderstanding. The Board recognizes that OWCP and employing establishments have an
affirmative duty to maintain the integrity of the system under which FECA benefits are provided.
ECAB also recognizes the need to maintain an appropriate separation between the nonadversarial
system of managing FECA claims and the investigative process of determining whether an
employee is receiving unwarranted benefits and services.
The investigative practices of the Postal Service Office of Inspector General are not
within the jurisdiction of ECAB. While there may be room for improvement with regards to the
handling of physician contacts, that responsibility does not rest with this Board.
In this appeal, the nonadversarial claims administration process was impermissibly
mingled with the investigative process. For the reasons stated, the Board finds that OWCP
accepted as evidence information useful to building a criminal or civil case but which lacked
30

ECAB has decided at least one recent appeal which did present the issue of whether surveillance conducted by
the employing establishment could, in effect, poison the evidence used by OWCP in a termination case. In K.M., the
Board held that an interview of the appellant’s treating doctor by agents of the Postal Service O.I.G. did not prevent
an affirmance of OWCP’s order terminating appellant’s wage loss benefits. The agents showed the doctor video
tape. It is difficult to harmonize that opinion with the Board’s holding in this appeal except on the basis that
appellant in K.M. argued that her physician had been coerced into offering an opinion and ECAB found no evidence
of coercion. Appellant in K.M. did not argue 20 C.F.R. 10.506 or the opinions in Nightingale or J.M. K.M., Docket
No. 10-695 (issued January 25, 2011).
31

Supra note 27.

32

Supra note 28.

8

sufficient indicia of probative value or even conformity with federal regulations. The use of that
information to terminate appellant’s benefits and medical care requires that we reverse.
CONCLUSION
The Board finds that OWCP did not properly terminate appellant’s compensation and
medical benefits effective September 26, 2010 on the grounds that she no longer had any
residuals or disability causally related to her accepted right ankle sprain and consequential
osteochrondritic desiccans of the right ankle.
ORDER
IT IS HEREBY ORDERED THAT the September 22, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 26, 2012
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.C., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, NATIONAL INSTITUTES OF
ENVIRONMENTAL HEALTH SERVICES,
Research Triangle, NC, Employer
__________________________________________

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

Docket No. 11-378
Issued: September 9, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 9, 2010 appellant filed a timely appeal from an October 22, 2010 decision
of the Office of Workers’ Compensation Programs (OWCP). 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’s actual earnings as a writer-editor fairly and reasonably
represented her wage-earning capacity.
On appeal her attorney asserts the decision is contrary to fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 11, 2006 appellant, then a 44-year-old writer/editor, who had a history of
nonemployment-related fibromyalgia, filed an occupational disease claims, alleging that
repetitive motion in computer work caused flexor tendinitis and carpal tunnel syndrome. OWCP
accepted the conditions of bilateral carpal tunnel syndrome and bilateral enthesopathy of the
Appellant stopped work on
wrist/carpus (flexor tendinitis) as employment related.2
April 25, 2006. She was placed on the periodic compensation rolls. She returned to her regular
position with prescribed assistive devices of voice activated software and an ergonomic chair on
June 8, 2009. Appellant worked four hours a day the first week, six hours a day the second, and
returned to full-time eight-hour daily employment on June 22, 2009.3
Appellant again stopped work on August 8, 2009.4 She was in a nonemployment-related
motor vehicle accident on November 6, 2009. Appellant returned to her regular position with the
above-described assistive devices on November 10, 2009. On November 14, 2009 she filed an
occupational disease claim for flexor tendinitis, carpal tunnel syndrome and fibromyalgia, stating
that her work duties aggravated these conditions.5
By decision dated February 9, 2010, OWCP found that appellant’s actual earnings,
effective November 10, 2009, fairly and reasonably represented her wage-earning capacity.
Appellant’s wage loss was reduced to zero as her earnings were equal to those earned at the time
of injury.
Appellant timely requested a hearing.
On February 25, 2010 Christine Flowers, a supervisor, reported that appellant returned to
work on November 10, 2009 at which time she was given an employee performance plan
outlining her performance requirements and task assignments. She stated that appellant was
assigned the least demanding tasks with the most flexible deadlines from the duties of the
communications program, and that these tasks allowed frequent rest periods and the ability to
2

This case has previously been before the Board on a separate issue. By decision dated March 2, 2011, Docket
No. 10-1444 the Board affirmed a March 29, 2010 decision in which an OWCP hearing representative affirmed an
October 29, 2009 decision finding that appellant did not establish that she sustained a recurrence of disability on
August 8, 2009 causally related to the accepted conditions. The facts and law of the previous Board decision are
incorporated herein by reference.
3

The physical demands for the position of writer-editor are sedentary. Major duties consisted of using
communication tools to maintain productive lines of communication and coordination among geographically
dispersed research grantees located throughout the United States; manage, from concept through publication and
distribution, news releases on grantee research outcomes, on a schedule set by senior staff; facilitate the presentation
of the grants program material on internal and public internet sites; write, edit and submit articles, briefs, fact sheets,
brochures and taking/enhancing digital photographs for other publications within the employing establishment for
media and public. Additional duties included obtaining appropriate reviews and clearances for press releases,
tracking media coverage and writing reports.
4

Appellant also filed a schedule award claim on August 8, 2009.

5

OWCP adjudicated this as a new claim.

2

switch among tasks. Appellant would be provided all assistive devices she required. She was
given full access to all databases and resources. Ms. Flowers stated that appellant had not told
her that she could not meet deadlines or that she worked with pain and, as far as she was aware,
appellant was using the assistive software and other accommodating devices, and was able to
perform her assigned tasks, although she continued to have a light workload. In December 2009,
appellant volunteered to write an article for the monthly newsletter and, while she did not
complete the story, this was due to difficulty connecting with an information source.
Ms. Flowers stated that, with the exception of the above-mentioned article, appellant completed
all assignments since her return to work in November 2009 and, in her January 27, 2010
performance review, she was given a “fully successful” rating but was told if she was not able to
meet all deadlines in the next performance period, a performance improvement plan would be
initiated. She also reported that appellant frequently missed work due to a variety of health
issues and unfortunate occurrences and had applied for medical retirement. Ms. Flowers
attached a sample of appellant’s work and a position description.
By report dated January 7, 2010, Dr. Robert A. Harrell, Board-certified in internal
medicine and rheumatology, diagnosed flexor tendinitis of the hands with carpal tunnel
syndrome, osteoarthritis, fibromyalgia and a family history of rheumatoid arthritis. He noted that
appellant went back to work in early November and was trying her best to avoid typing and that,
while her hands were more stiff and sore, she had no major flare ups. Dr. Harrell provided
examination findings, noted that appellant’s hands continued to show thickening of flexor
tendons, with bony enlargement of the distal interphalangeal joints. He reported tenderness of
the trapezius muscles and medial and lateral epicondyles of the elbows and advised that the work
situation was not ideal.
In May 2010 appellant’s attorney requested a review of the written record. He asserted
that appellant’s position did not represent her wage-earning capacity because it was not a regular
job. Counsel submitted a July 1, 2010 pleading asserting that the February 9, 2010 wage-earning
capacity determination was in error because the position on which it was based consisted of
makeshift work. In a June 9, 2010 letter, appellant described her assigned job duties. She stated
that beginning on January 1, 2010 she had the sole responsibility for answering the telephones
and public inquiries, and was then assigned researching and confirming staff changes that would
result in web page updates. On March 5, 2010 appellant was assigned to cover for a staff
member on maternity leave; at the end of March was assigned the task of editing the text of the
monthly newsletter; in April 2010 she was assigned to work with another staff member to update
specific web page content; in May was assigned responsibility for researching reports of broken
links in the web site; and in June 2010 additional duties included editing transcripts, researching
and rewriting web content for specific groups, coordinating web page updates, and editing codes.
She asserted that the job she returned to in the fall of 2009 consisted of small, menial tasks that
were changed regularly, and that when she was assigned meaningful tasks, these led to increased
use of her hands. Appellant submitted a two-page February 2010 list of job duties performed,
and a list of activities that were conducive to voice-activated software and tasks that were not. In
a June 21, 2010 letter, she explained that each time her duties were changed, they became less
demanding and were of limited interest and required little skill or knowledge. Appellant also
provided a June 29, 2010 statement, identified as a mid-year review, and an employee
performance plan for the period January 1 to December 31, 2010.

3

By report dated September 9, 2010, Dr. Harrell requested that appellant be excused from
work for the period September 7 through 21, 2010 due to worsening of the severe tendinitis of
her hands and arms. He stated that he was hopeful that a period of rest would improve her
condition. Appellant retired on disability, effective October 8, 2010.
In an October 22, 2010 decision, an OWCP hearing representative affirmed the
February 9, 2010 wage-earning capacity decision.6
LEGAL PRECEDENT
Section 8115(a) of FECA provides that, in determining compensation for partial
disability, the wage-earning capacity of an employee is determined by the employee’s actual
earnings if the actual earnings fairly and reasonably represent the employee’s wage-earning
capacity.7 Generally, wages actually earned are the best measure of a wage-earning capacity,
and in the absence of showing that they do not fairly and reasonably represent the injured
employee’s wage-earning capacity, must be accepted as such a measure.8 The formula for
determining loss of wage-earning capacity based on actual earnings, developed in the Albert C.
Shadrick decision,9 has been codified at 20 C.F.R. § 10.403. OWCP calculates an employee’s
wage-earning capacity in terms of percentage by dividing the employee’s earnings by the current
pay rate for the date-of-injury job.10
ANALYSIS
OWCP accepted that appellant sustained employment-related bilateral carpal tunnel
syndrome and bilateral flexor tendinitis of the wrists. Appellant had bilateral carpal tunnel
releases in April 2007, and she returned to her regular position as writer-editor in June 2009,
initially working four hours daily. At that time she was provided with voice-activated software
and an ergonomic chair. Appellant began full-time work on June 22, 2009. She again stopped
work on August 8, 2009 but returned to her regular position as writer-editor on
November 10, 2009.
The Board finds that appellant’s actual earnings as a writer-editor with prescribed
assistive devices fairly and reasonably represent her wage-earning capacity. Appellant returned
to full-time work at her regular position on November 20, 2009 and was working in this position
on February 9, 2010, the date OWCP issued its wage-earning capacity determination. She
worked in the position for more than 60 days, and there is no evidence that the position was

6

Appellant also submitted medical evidence relevant to her schedule award claim that continued to be developed
by OWCP.
7

5 U.S.C. § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

8

Lottie M. Williams, 56 ECAB 302 (2005).

9

Albert C. Shadrick, 5 ECAB 376 (1953).

10

20 C.F.R. § 10.403(c).

4

seasonal or temporary and no evidence to show that she was not working eight hours a day.11
There is also no evidence that the position consisted of makeshift work designed for her
particular needs.12 While appellant asserted that her job became less challenging, she provided
several statements in which she described tasks that were within her position description.
The Board delineated factors of makeshift work in the case of A.J., where the employee
had actual earnings as a limited-duty clerk.13 The Board reversed OWCP’s wage-earning
capacity determination, finding that the clerk position was makeshift work specifically tailored to
the claimant’s needs. For example, there was no detailed job description or set schedule, and her
significant medical limitations precluded many clerical duties.14
The facts in evidence are distinguishable from A.J. The position relied upon by OWCP
in rendering its February 9, 2010 decision was appellant’s regular position as a writer-editor,
which had a specific position description. The fact that appellant was provided voice-activated
software and an ergonomic chair does not constitute evidence that the position was makeshift,
nor is the fact that appellant felt that she was assigned duties that were less challenging. The
Board concludes that the position of writer-editor on which the February 9, 2010 wage-earning
capacity decision was based fairly and reasonable represented appellant’s wage-earning capacity.
As there is no evidence that her wages in this position did not fairly and reasonable
represent her wage-earning capacity, they must be accepted as the best measure of her wageearning capacity.15
Appellant’s actual earnings in the position of writer-editor fairly and reasonably represent
her wage-earning capacity. The Board must determine whether OWCP properly calculated her
wage-earning capacity based on her actual earnings. The Board finds that OWCP properly
determined that appellant had no loss of wage-earning capacity based on her actual earnings.
The current weekly earnings of $1,327.23 per week as a writer-editor exceeded the current
weekly wages of the date-of-injury position of $1,175.56. Appellant therefore had no loss of
wage-earning capacity under the Shadrick formula.16
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.

11

J.C., 58 ECAB 700 (2007).

12

Id.

13

A.J., Docket No. 10-619 (issued June 29, 2010).

14

Id.

15

See Loni J. Cleveland, supra note 7.

16

Albert C. Shadrick, supra note 9.

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CONCLUSION
The Board finds that OWCP met its burden of proof to establish that appellant’s actual
wages as a writer-editor fairly and reasonably represented her wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the October 22, 2010 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: September 9, 2011
Washington, DC

Richard J. Daschbach, Chief 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
__________________________________________
V.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
San Diego, CA, Employer
__________________________________________

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Appearances:
Daniel M. Goodkin, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-137
Issued: August 22, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 25, 2012 appellant, through counsel, filed a timely appeal of a June 29, 2012
decision of the Office of Workers’ Compensation Programs (OWCP) denying modification of a
loss of wage-earning capacity determination. 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 that modification of
her March 13, 2012 loss of wage-earning capacity determination is warranted.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 16, 1996 appellant, then a 50-year-old immigration inspector, filed a
traumatic injury claim alleging that on September 13, 1996 she injured her neck and jaw during
exercises and activities which involved how to fire a weapon and how to tail someone. OWCP
accepted the claim for neck strain, aggravation of cervical degenerative disc disease, thoracic
neuropathy and cervical discectomy. Appellant stopped work on September 13, 1996. By letter
dated May 22, 1998, OWCP placed her on the periodic rolls for temporary total disability.
In an October 29, 2009 work capacity evaluation form, Dr. John G. Fan, an attending
physician, diagnosed chronic neck pain and indicated that appellant was permanently disabled
from any type of work.
In a March 23, 2010 report, Dr. Michael J. Johnson, a second opinion Board-certified
orthopedic surgeon, diagnosed thoracic neuropathy, aggravation of cervical degenerative disc
disease and cervical sprain. He opined that the conditions of cervical sprain and thoracic
neuropathy had resolved, but she continued to have chronic pain due to a permanent aggravation
of cervical degenerative disc disease and surgeries. Based on a review of appellant’s underlying
conditions, objective findings and the stability of her cervical degenerative disc disease
aggravation, Dr. Johnson opined that appellant was unable to perform the duties of her date-ofinjury position of immigration inspector. However, appellant was capable of working a
sedentary position for eight hours with restrictions including no lifting more than five pounds.
In a May 17, 2010 progress report, Dr. Fan reported physical findings including limited
cervical range of motion and that her condition was stable.
On July 19, 2010 OWCP found a conflict in the medical opinion evidence between
Dr. Fan, appellant’s treating physician and and Dr. Johnson, a second opinion Board-certified
orthopedic surgeon, on the issue of appellant’s ability to work and referred appellant to
Dr. Joseph W. Huston, a Board-certified orthopedic surgeon, to resolve the conflict.
In an August 10, 2010 report, Dr. Huston reviewed the medical evidence, statement of
accepted facts and conducted a physical examination. Physical findings included full shoulder
range of motion, limited cervical range of motion, mild tenderness and soreness on palpation of
the neck and upper back. Dr. Huston noted that appellant was unable to perform quick head
motions and looking upwards on either side with her neck. He concluded that she had reached
maximum medical improvement and was capable of performing a light-duty positon with
restrictions.
By letter dated November 28, 2010, OWCP referred appellant for another impartial
medical examination with Dr. Huston to resolve the confict in the medical opinion evidence
between Drs. Fan and Johnson regarding her ability to work.
In a December 28, 2010 report, Dr. Huston provided physical findings and again
concluded that appellant was capable of working with restrictions. He recommended that a
functional capacity evaluation be performed to determine her work capabilites.

2

In a March 28, 2011 work capacity evaluation form, Dr. Huston indicated that appellant
was capable of working an eight-hour workday in a light-duty position with restrictions.
Restrictions included: no more than two to four hours of reaching above the shoulder; two hours
twisting; one to two hours bending/stooping; up to two hours of pushing 30 pounds; up to one
hour of pulling 45 pounds; and up to two hours of lifting 20 pounds or 210 pounds frequently.
Dr. Huston also noted that appellant was limited to occasional looking up at high levels and
looking down at low levels.
On April 1, 2011 appellant was referred for vocational rehabilitation.2 By letter dated
April 8, 2011, the vocational rehabilitation counselor informed appellant of her responsibilities in
the rehabilitation effort.
On July 25, 2011 the vocational rehabilitation counselor performed a preliminary labor
market survey report indicating that in conjunction with the June 16, 2011 transferable skills
analysis report and other factors, appellant was vocationally and medically suited for the
positions of receptionist and appointment clerk with selected classes at Hutchinson Community
College to update her clerical skills. The weekly wage was listed as $385.20 for both positions.
On August 29, 2011 the vocational rehabilitation counselor identified the positions of
receptionist Department of Labor’s Dictionary of Occupational Titles (DOT) #237.367.038 and
hotel clerk (DOT #238.367.038) as being vocationally appropriate as they required four to six
months specific vocational preparation and appellant had more than nine years of experience;
both jobs fell within the light-duty category that her work restrictions suggested and both jobs
were performed in sufficient numbers so as to make it reasonably available in her commuting
area. The weekly wage for the hotel clerk position was listed as $297.60. The job classification
(Form CA-66) for the identified position of receptionist (DOT #237.367.038) described the
position as: receives callers, determines the nature of the caller’s business and direct them to a
destination; obtains caller’s name and arrange for an appointment with the individual called
upon; records name, time, call, nature of business and individual called upon; may operate
private branch exchange (PBX) telephone console; may type correspondence, reports,
memorandum and other documents, may perform variety of clerical duties; may issue visitor’s
pass when required; may collect and distributed mail; and may work in medical practitioner or
other health care facility office and be designated receptionist or outpatient receptionist. The
weekly wage for the position of receptionist was listed as $330.00 per week.
On October 10, 2011 appellant signed a job search plan indicating that she would pursue
employment in the identified positions of receptionist and hotel clerk.
In a November 2, 2011 letter to appellant, OWCP indicated that appellant would receive
90 days of job placement assistance. Appellant was also informed that, at the end of the 90-day
period, FECA required that her compensation be reduced based on the wage-earning capacity of
the selected position, even if she was not employed at that time. OWCP listed $385.20 as a
weekly salary for a receptionist and $297.60 as a weekly salary for a hotel clerk.

2

Darryl Martinez is listed as the claims examiner who made the referral.

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In a January 24, 2012 status report, the vocational rehabilitation counselor noted that the
90 days of placement services had been completed without appellant being reemployed. The
vocational rehabilitation counselor identified the positions of receptionist (DOT) #237.367.038
with weekly wages of $382.20 and hotel clerk (DOT #238.367.038) with weekly wages of
$297.60 as being reasonably available in appellant’s commuting area and within her vocational,
educational and physical limitations.
On February 3, 2012 OWCP issued a notice proposing to reduce appellant’s wage-loss
compensation finding that the medical evidence established that she was no longer totally
disabled. It found that she had the capacity to earn wages as a receptionist with a weekly salary
of $382.20
By decision dated March 13, 2012, OWCP finalized the reduction of appellant’s wageloss compensation based on the constructed position of receptionist with the ability to earn
$382.20 a week.
In a letter dated April 30, 2012, appellant’s counsel requested reconsideration and
submitted a March 22, 2012 report from Dr. Timothy L. Moore, an examining osteopath Boardcertified in family medicine. Based upon a review of the medical evidence, employment injury
history and physical examination, Dr. Moore diagnosed cervical sprain/strain, C4-5 and C5-6
disc fusion, spinal cord injury affecting appellant’s right side, depression, consequential left wrist
fracture and consequential right knee strain with degenerative joint disease. He reported that she
noted lower extremity weakness, that she spontaneously fell on several occasions and she
collapsed off of a ladder. Appellant reported that the fall off of the ladder resulted in a fracture
of her right wrist, which had been treated and repaired. A physical examination revealed
decreased range of motion in the cervical and lumbar spine; tenderness on palpation of the
cervical paravertebral muscles, thoracolumbar spine and lumbosacral and iliac joints; decreased
pelvic range of motion with rotation decreased left biceps strength; left leg weakness. Dr. Moore
attributed appellant’s right-sided sensory loss to the trauma from falling off a ladder which was
caused by her cervical spine injury and decreased sensory from the clavicle down to the left foot.
Due to appellant’s thoracic, lumbar, cervical and lower extremity sensory deficits she was
unsteady and showed instability in normal activities. Based on a review of the hotel clerk and
receptionist position descriptions, Dr. Moore opined that she was unable to perform the duties of
either postion. Specifically, he attributed appellant’s disability to her cervical spine injury and
the right-sided neurological changes which precluded her from working on a computer or sitting
for long periods of time. Dr. Moore also indicated that she was unable to stand or walk for
prolonged periods of time and was precluded from routine neck, shoulder and upper back
movement as it caused her pain. Lastly, he related that appellant lacked the manual dexterity or
functional capacity to perform the identified positions and would be unable to focus on the job.
In conclusion, Dr. Moore asserted that she has been totally disabled due to her employment
injury from 1998 until the present and that this disability was for an indeterminate period.
In a March 22, 2012 work capacity evaluation form, Dr. John W. Ellis, a Board-certified
family particitioner, concluded that appellant was totally disabled from working. He checked
“no” to the question of whether she was capable of working an eight-hour day and referred the
viewer to a narrative report for his supporting medical rationale. Dr. Ellis checked “no” to the
question of whether maximum medical improvement had been reached.

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In a June 29, 2012 decision, OWCP denied modification of its March 13, 2012 decision.3
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages.4 Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.5
Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.6 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.7
ANALYSIS
OWCP accepted appellant’s claim for neck strain, aggravation cervical degenerative disc
disease, thoracic neuropathy and cervical discectomy. On March 13, 2012 it determined that she
could perform the duties of a receptionist and reduced her compensation to reflect her wageearning capacity in this constructed position. The issue is whether appellant established that the
March 13, 2012 loss of wage-earning capacity decision should be modified.
As OWCP found that appellant could perform the duties of receptionist, the pertinent
issue is whether there had been a material change in her condition that would render her unable
to perform those duties.8 For a physician’s opinion to be relevant on this issue, the physician
must address the duties of the constructed position. The Board finds that the medical evidence
submitted by appellant after the loss of wage-earning capacity determination did not sufficiently
explain why the duties of the position of receptionist were unsuitable.
Appellant did not allege that she had been retrained or otherwise vocationally
rehabilitated. She has contended that reports from Drs. Moore, Fan and Ellis establish that she
was no longer able to work because of her physical conditions which were caused by the
September 13, 1996 work injury. The Board finds that the record does not contain medical
3

The Board notes that, following the June 29, 2012 decision, OWCP received additional evidence. However, the
Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R.
§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB
389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
4

See 5 U.S.C. § 8115 (determination of wage-earning capacity).

5

Sharon C. Clement, 55 ECAB 552 (2004).

6

Harley Sims, Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375 (2000).

7

Id.

8

T.M., Docket No. 08-975 (issued February 6, 2009); Phillip S. Deering, 47 ECAB 692 (1996).

5

evidence that establishes that appellant’s accepted work conditions of neck strain, aggravation
cervical degenerative disc disease, thoracic neuropathy and cervical discectomy had materially
changed in a way that would render her unable to perform the receptionist duties.
Appellant submitted a March 22, 2012 report from Dr. Moore which noted diagnoses of
cervical sprain/strain, C4-5 and C5-6 disc fusion, spinal cord injury affecting her right side,
depression, consequential left wrist fracture and consequential right knee strain with
degenerative joint disease. Dr. Moore noted that her cervical injury caused her to fall off a
ladder resulting in right-sided sensory loss. He also noted that appellant was unsteady and
showed instability in normal activities as a result of her lower extremity, lumbar, thoracic and
cervical sensory deficits. The Board finds that Dr. Moore did not provide sufficient medical
rationale to explain the reasons why appellant had a material change in the nature and extent of
the injury-related conditions. While he attributed appellant’s fall off a ladder to her cervical
condition, Dr. Moore provided no explanation as to how the cervical condition caused the fall or
when it occurred. The Board has found that vague and unrationalized medical opinions on
causal relationship have little probative value.9
Appellant also submitted a March 22, 2012 work capacity evaluation form from Dr. Ellis
indicating that she was totally disabled from working. When asked to provide supporting
medical rationale, Dr. Ellis referenced a narrative report. However, he did not specifically
attribute appellant’s inability to work to the conditions arising from her accepted employment
injury or provide any rationale for his finding and thus his opinion is of diminished probative
value.10
The Board finds that there is no medical evidence which establishes a change in
appellant’s employment-related condition such that a modification of OWCP’s loss of wageearning capacity determination would be warranted. The reports of Drs. Moore and Ellis do not
establish that the position of receptionist was improper. Appellant also did not otherwise
establish a basis for modification by submitting evidence establishing that she had been retrained
or otherwise vocationally rehabilitated.
The Board further finds that OWCP properly based the loss of wage-earning capacity
decision on appellant’s ability to earn weekly wages of $382.20 in the position of receptionist
based on January 24, 2012 status report by the vocational rehabilitation specialist. The labor
market analysis supported that the position of receptionist was reasonably available at a weekly
salary of $382.20. The record therefore supports that the position was reasonably available and
OWCP properly calculated appellant’s loss of wage-earning capacity based on her ability to earn
weekly wages of $382.20.

9

See D.U., Docket No. 10-144 (issued July 27, 2010) (medical reports not containing adequate rationale on
causal relationship are of diminished probative value and are insufficient to meet claimant’s burden of proof);
Richard A. Neidert, 57 ECAB 474 (2006); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value); Jimmie H. Duckett, 52 ECAB
332 (2001).
10

Conard Hightower, 54 ECAB 796 (2003).

6

On appeal, appellant asserted that the original loss of wage-earning capacity
determination was, in fact, erroneous. She asserts that the selected position was not within her
restrictions as it required frequent looking up and down, which was outside the work restrictions
set by Dr. Hutson. A review of the job classification for receptionist shows that it does not
require frequent looking up and down as prohibited by Dr. Hutson. Appellant also contended
that OWCP erred in relying on Dr. Hutson’s opinion as he failed to consider her preexisting
conditions when making her work restrictions. The record contains no evidence indicating any
disability due to her preexisting conditions. Dr. Moore attributed any disability to appellant’s
cervical strain and not to any preexisting condition. Consequently, appellant has failed to carry
her burden of proof to establish modification of the loss of wage-earning capacity determination.
Appellant also asserts that OWCP erred in having Daryl Martinez issue a decision on her
request for modification of the loss of wage-earning capacity decision. She argues that he was
inappropriate to review her request and issue a decision for two reasons. The reasons given were
that Mr. Martinez had been involved in the vocational rehabilitation portion of her file and he
listed his title as “iFECS site manager” and not claims examiner. The Board finds that
appellant’s assertions are insufficient to set aside the June 29, 2012 decision. Appellant has not
cited to any portion of the procedure manual or any case law showing that OWCP erred in its
selection of Mr. Martinez to issue a decision on her request for modification of her loss of wageearning capacity decision.
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 OWCP properly denied modification of the established March 13,
2012 loss of wage-earning capacity determination.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 29, 2012 is affirmed.
Issued: August 22, 2013
Washington, DC

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

Patricia Howard Fitzgerald, 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
__________________________________________
D.P., Appellant
and
DEPARTMENT OF THE AIR FORCE, 402ND
MAINTENANCE WING, ROBINS AIR FORCE
BASE, GA, Employer
__________________________________________

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

Docket No. 08-843
Issued: September 5, 2008

Case Submitted on the Record

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

JURISDICTION
On January 28, 2008 appellant filed a timely appeal from a December 3, 2007 decision of
the Office of Workers’ Compensation Programs regarding an overpayment of compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
claim.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment of $95,692.87 of compensation for the period May 23, 2006 to September 29,
2007; (2) whether the Office properly determined that appellant was at fault in creating the
overpayment and therefore it was not subject to waiver.
FACTUAL HISTORY
The Office accepted that on or before October 11, 2005 appellant, then a 62-year-old
industrial production manager, sustained a bilateral high frequency sensorineural hearing loss

due to hazardous noise exposure at work.1 He continued working at the employing
establishment through his retirement on January 2, 2007.
In an April 17, 2006 letter, the Office advised appellant that the medical evidence
demonstrated that he had a four percent bilateral hearing loss. It instructed appellant to claim a
schedule award and obtain his pay rate for March 27, 2006, the date of his maximum medical
improvement. Appellant claimed a schedule award on April 24, 2006, noting that he was
married. On April 27, 2006 he authorized the electronic direct deposit of compensation into his
bank account.
In a September 21, 2006 telephone memorandum, the Office noted that appellant called
as he was receiving electronic payments. It advised him that these were schedule award
payments. However, the Office had not yet issued a schedule award decision.
By decision dated September 21, 2006, the Office granted appellant a schedule award for
a four percent bilateral sensorineural hearing loss. The period of the award ran from March 28 to
May 22, 2006. The Office explained that appellant would be entitled to receive $14,498.92 in
compensation for that period, with a payment of $5,412.93 every four weeks. This amount was
calculated based on multiplying appellant’s weekly pay rate of $1,804.31 as of March 27, 2006
by the three-fourths augmented compensation rate, to equal $1,353.23 a week. The Office noted
that payment of the schedule award would end on May 22, 2006.
Compensation payment logs demonstrated that appellant received electronic funds
transfers in the amount of $5,412.93 on May 13, 2006 and every four weeks from July 8, 2006 to
September 29, 2007. Appellant also received an electronic funds transfer in the amount of
$14,498.92 on June 16, 2006. In October 3, 2007 worksheets, the Office calculated that
appellant was entitled to receive $10,825.86 for the period March 28 to May 22, 2006.
Subtracting this amount from the total $106,518.73 paid from March 28, 2006 to September 29,
2007 resulted in a $95,692.87 overpayment of compensation.
By notice dated October 5, 2007, the Office advised appellant of its preliminary
determination that an overpayment of $95,692.07 was created in his case as he erroneously
received schedule award payments from March 28, 2006 to September 29, 2007, after the
expiration of the schedule award on March 27, 2006. The Office made the preliminary
determination that appellant was at fault in creation of the overpayment as he knew or reasonably
should have known that he was not entitled to payments after March 27, 2006.
In an October 18, 2007 letter, appellant requested that the Office make a decision
regarding the overpayment based on the written record. He requested waiver, contending that he
was not at fault in creation of the overpayment. Appellant explained that, within 30 days of the
Office’s April 17, 2006 letter advising him to claim a schedule award, he “received an additional
direct deposit and a Benefit Statement” indicating a schedule award. He consulted Kim Barbee,
1

The Office initially denied the claim by decision dated December 8, 2005. Following appellant’s request for
reconsideration, the Office referred appellant for a second opinion examination, conducted on April 3, 2006. Based
on this opinion, the Office accepted the claim on April 17, 2006.

2

an employing establishment compensation unit official, to verify his entitlement. Ms. Barbee
advised that she would contact the Office. She then called appellant and told him the Office
verified that the payment was correct. This resulted in the Office mailing appellant the formal
schedule award decision on September 21, 2006. Appellant realized he had “already received
additional payments beyond the dates specified in the award.” He again contacted Ms. Barbee,
who assured him that the payments were correct. Appellant enclosed a cashier’s check for
$10,000.00 as partial repayment. He asserted that repayment of the additional amount would
create extreme financial hardship. Appellant provided financial information showing a
household monthly income of $3,028.71, monthly expenses of $1,500.54 and $24,320.00 in bank
accounts and valuable property.
In a December 3, 2007 memorandum, the Office noted that it contacted the employing
establishment to investigate appellant’s account of Ms. Barbee’s statements. The results of this
inquiry are not of record.
By decision dated December 3, 2007, the Office finalized its preliminary determination
of a $95,692.87 overpayment of compensation. It found that appellant was at fault in creation of
the overpayment as he should have contacted the Office and not Ms. Barbee to verify his
entitlement to payments. The Office also noted that appellant did contact the Office to request
verification. It noted that there was no verification that appellant spoke to Ms. Barbee or that
Ms. Barbee contacted the Office. The Office found that, even if appellant were found without
fault, his asset base exceeded the eligibility for waiver. It directed recovery of the overpayment
through monthly payments.2
LEGAL PRECEDENT -- ISSUE 1
Section 8102(a) of the Federal Employees’ Compensation Act3 provides that the United
States shall pay compensation for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty.4 Section 8129(a) of the Act provides, in
pertinent part, that when “an overpayment has been made to an individual under this subchapter
because of an error of fact or law, adjustment shall be made under regulations prescribed by the
Secretary of Labor by decreasing later payments to which an individual is entitled.”5 The
Office’s procedure manual identifies various situations when overpayments of compensation
may occur, including when a schedule award expires but compensation continued to be paid.6

2

As the Office did not direct recovery of the overpayment from continuing compensation, the Board has no
jurisdiction to review the issue of recovery. See Albert Pineiro, 51 ECAB 310 (2000); Lorenzo Rodriguez, 51
ECAB 295 (2000).
3

5 U.S.C. §§ 8101-8193.

4

5 U.S.C. § 8102(a).

5

5 U.S.C. § 8129(a).

6

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter 6.200.2
(May 2004).

3

ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a four percent bilateral hearing loss in the
performance of duty. It granted appellant a schedule award on September 21, 2006. The Office
stated that appellant was entitled to $14,498.92 in schedule award compensation for the period
March 28 to May 22, 2006. This was based on multiplying appellant’s weekly pay rate of
$1,804,31 by the 75 percent augmented compensation rate, resulting in a payment of $5,412.93
every four weeks.
Instead of ending appellant’s compensation at the expiration of the schedule award, the
Office erroneously issued schedule award payments through September 29, 2007. On October 3,
2007 the Office calculated that appellant had received a total of $106,518.73 from March 28,
2006 to September 29, 2007, whereas he was only entitled to receive $10,825.86 for the period
March 28, 2006 to May 22, 2006. This resulted in a $95,692.87 overpayment of compensation.
The Board finds that the Office correctly found an overpayment of compensation for the
period May 23, 2006 to September 29, 2007 as he received schedule award payments for that
period after the expiration of his award. However, there is a discrepancy as to the amount of the
overpayment. The September 21, 2006 schedule award found appellant entitled to $14,498.92.
The October 3, 2007 overpayment calculation found appellant entitled to $10,835.26 for that
period. The case will be remanded to clarify the amount of the overpayment.
LEGAL PRECEDENT -- ISSUE 2
Under section 8129 of the Act and the implementing regulation, an overpayment must be
recovered unless incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of the Act or would be against equity and
good conscience.7 Section 10.433 of the implementing regulation specifically provides that the
Office may consider waving an overpayment if the individual to whom it was made was not at
fault in accepting or creating the overpayment.8 The regulation further provides that each
recipient of compensation benefits is responsible for taking all reasonable measures to ensure
that payments he or she receives from the Office are proper.9 Under the regulation, a recipient
will be found to be at fault with respect to creating an overpayment if the recipient on the issue
of fault, section 10.433 of the Office’s regulation, provides that an individual will be found at
fault if he or she has done any of the following: (1) made an incorrect statement as to a material
fact which he or she knew or should have known to be incorrect; (2) failed to provide
information which he or she knew or should have known to be material; or (3) accepted a
payment which he or she knew or should have known was incorrect.10

7

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

8

20 C.F.R. § 10.433(a).

9

Id.

10

20 C.F.R. § 10.433(a)(3).

4

In determining fault under section 10.433(a)(3), where the claimant receives
compensation through direct deposit, the payment goes directly from the U.S. Treasury to the
claimant’s account. The Office may not deposit compensation into a claimant’s account without
authorization. The claimant must first complete a form authorizing the electronic transfer of
payment to a named financial institution to be deposited to a designated account. It is only with
the claimant’s intent that these payments are deposited to his or her account which is something
more than receipt; it is acceptance. When control of the funds passes to the claimant upon
deposit, the acceptance necessary under section 10.433(a)(3) is established.11
ANALYSIS -- ISSUE 2
The Office found that appellant was at fault in creating the overpayment under the third
standard noted above, because he accepted payments after May 23, 2006 that he knew or should
have known were incorrect. It asserted that appellant wrongfully relied on an employing
establishment injury compensation official to determine his entitlement to benefits. However,
under the circumstances of this case, the Board finds that appellant was not at fault in creation of
the overpayment for the period May 23 to September 21, 2006.
Appellant claimed a schedule award on April 24, 2006. Within one month of April 17,
2006, appellant noted that he received an electronic transfer benefits’ statement indicating that he
received a schedule award payment. It was therefore reasonable for appellant to believe he was
entitled to a benefit he had so recently claimed. Appellant continued to receive payments until
September 29, 2007, after the schedule award ended on May 22, 2006. However, the Office did
not advise appellant until September 21, 2006 of the period or amount of the schedule award. It
did not realize this omission until appellant called the Office on September 21, 2006.
Appellant’s inquiry refutes the Office’s assertion that he relied only on the injury compensation
official to determine his entitlement to benefits.
The Board finds that appellant had no reason to believe he was not entitled to payments
made after May 23, 2006 until he received the September 21, 2006 schedule award decision.12
Therefore, he was not at fault in creating the overpayment from May 23 to September 21, 2006.
As appellant was not at fault for this period, the case will be remanded to determine if the
compensation paid for this period is subject to waiver. Following this development, the Office
will issue an appropriate decision.
The Board finds that appellant was at fault in creation of the overpayment from
September 22, 2006 to September 29, 2007. The September 21, 2006 schedule award clearly set
forth the period of the overpayment, noting that the schedule award ended on May 22, 2006. In
appellant’s October 18, 2007 letter, he stated that, when he reviewed the September 21, 2006
11

Tammy Craven, 57 ECAB 689 (2006).

12

The Board has found claimants to be at fault in cases where he or she received compensation payments through
direct deposit which involve a series of payments over several months with clear knowledge that the payments were
incorrect. See Karen Dixon, 56 ECAB 145 (2004). In this case, however, there is no indication of record that the
benefits statement appellant received contained the May 22, 2006 schedule award end date or otherwise indicated
that he would not be entitled to compensation after May 22, 2006.

5

schedule award decision, he realized he had “already received additional payments beyond the
dates specified in the award.” Therefore, the Office correctly found appellant at fault in creation
of the overpayment from September 22, 2006 to September 29, 2007. The case will be
remanded to the Office to calculate the amount of compensation paid during this period and for
issuance of an appropriate decision.
CONCLUSION
The Board finds that the Office properly found an overpayment of compensation. The
Board further finds that the case is not in posture regarding the amount and period of the
overpayment. The Board further finds that appellant was not at fault in creation of the
overpayment for the period May 23 to September 21, 2006. The case will be remanded to the
Office for appropriate development on the issues of period, amount and fault. The Board further
finds that the Office correctly found appellant at fault in creation of the overpayment for the
period September 22, 2006 to September 29, 2007.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 3, 2007 is affirmed in part and denied in part. The
case is remanded for further action consistent with this opinion.
Issued: September 5, 2008
Washington, DC

Alec J. Koromilas, Chief 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
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE INTERIOR, ELKO
)
BUREAU OF LAND MANAGEMENT, Elko, NV, )
Employer
)
__________________________________________ )
C.M., Appellant

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

Docket No. 10-209
Issued: August 18, 2010

Case Submitted on the Record

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

JURISDICTION
On October 26, 2009 appellant filed a timely appeal from an April 29, 2009 merit
decision of the Office of Workers’ Compensation Programs regarding his schedule award claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
claim.
ISSUE
The issue is whether appellant has more than three percent impairment of his right leg,
for which he received a schedule award.
FACTUAL HISTORY
On May 6, 2005 appellant, then a 28-year-old supervisory range technician (wildland
firefighter), injured his right knee while performing physical training exercises required for his
job. The Office accepted the claim for aggravation of right knee osteochondritis dissecans and
right chondromalacia, except patella, as being work related. On May 17, 2005 appellant

underwent right knee arthroscopy with abrasion chondroplasty of the medial femoral condyle.
On June 9, 2005 he underwent right knee arthroscopy with osteochondral autograft transplant.
The Office paid compensation for periods of wage loss. Appellant eventually returned to fulltime light duty with restrictions. He was unable to return to firefighting duties due to knee pain
and intermittent effusions with any aggressive physical activity, including running, hiking or
walking downhill.
On October 1, 2007 appellant filed a Form CA-7 schedule award claim for his accepted
right knee conditions1.
On October 29, 2007 the Office referred appellant Dr. Michael E. Callahan, a Boardcertified orthopedic surgeon, for an opinion on the extent of any permanent impairment. In a
December 13, 2007 report, Dr. Callahan reviewed the history of appellant’s injury statement of
accepted facts and set forth findings on examination. The right knee demonstrated range of
motion from -5 degrees to 135 degrees, without muscle weakness, atrophy or instability. X-rays
showed four-millimeter joint clear space in the right knee medial compartment with very small
areas in the subchondral area where the bone plugs were placed with early post-traumatic
degenerative arthritis.
Dr. Callahan opined that appellant reached maximum medical
improvement on June 1, 2006, approximately one year following the osteochondral transplant
procedure.
In a February 7, 2008 report, an Office medical adviser reviewed the medical evidence of
record. He noted that Dr. Callahan provided findings on physical examination but did not
provide an impairment rating. The Office medical adviser indicated that appellant had residual
problems in his knee as a result of his osteochondritis dissecans which resulted from his
work-related injury and necessitated treatment including two surgical procedures with an
osteochondral autograft transplant, but advised the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) did not provide a specific impairment for
that condition. He indicated in situations where impairment ratings are not provided, the
A.M.A., Guides at section 1.5, page 11 suggest that physicians use clinical judgment, comparing
measurable impairment resulting from the unlisted condition to measurable impairment resulting
from similar conditions with similar impairment or function in performing activities of daily
living. The physician’s judgment, based upon experience, training, skills, thoroughness in
clinical evaluation and ability to apply the A.M.A., Guides criteria as intended, would enable an
appropriate and reproducible assessment to be made of clinical impairment. The Office medical
adviser opined, based on the above, that appellant would have approximately three percent
impairment of his right leg as he had radiographic evidence of early degenerative joint disease
with no joint space narrowing. He further opined that the date of maximum medical
improvement was June 1, 2006, as recommended by Dr. Callahan.

1

Appellant is treated by Dr. Steven F. Gunnell, an osteopath, for continued problems with his right knee. He
received several corticosteroid anti-inflammatory injections in his right knee, the most recent on
September 19, 2007.

2

By decision dated April 29, 2009, the Office granted appellant a schedule award for three
percent permanent impairment of the right leg.2 The award covered the period June 1 through
July 31, 2006.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation to be paid for
permanent loss, or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.5 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.6
It is the claimant’s burden to establish that he or she sustained permanent impairment to a
scheduled member or function as a result of an employment injury.7 Office procedures provide
that, to support a schedule award, the file must contain medical evidence which shows that the
impairment has reached a permanent and fixed state and indicates the date on which this
occurred (date of maximum medical improvement) describes the impairment in sufficient detail
to include, where applicable, the loss in degrees of active and passive motion of the affected
member or function, the amount of any atrophy or deformity, decreases in strength or
disturbance of sensation or other pertinent description of the impairment and the percentage of
impairment should be computed in accordance with the fifth edition of the A.M.A., Guides. The
procedures further provide that, after obtaining all necessary medical evidence, the file should be
routed to the Office medical adviser for an opinion concerning the nature and percentage of
impairment and the Office medical adviser should provide rationale for the percentage of
impairment specified.8
ANALYSIS
The Board finds that this case is not in posture for decision.

2

The Office inadvertently stated that the award was to the right upper extremity impairment.

3

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

4

20 C.F.R. § 10.404.

5

5 U.S.C. § 8107(c)(19).

6

Supra note 3.

7

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

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Evaluation of Schedule Awards, Chapter 2.808.6(d)
(August 2002). See Thomas J. Fragale, 55 ECAB 619 (2004).

3

Appellant’s treating physician, Dr. Gunnell did not provide an impairment rating.
Dr. Callahan, the second opinion physician to whom appellant was referred for an impairment
evaluation, did not provide an impairment rating. The Office granted appellant three percent
permanent impairment of the right leg based on the rating by the Office medical adviser on
February 7, 2008. In his report, the Office medical adviser reviewed Dr. Callahan’s report and
stated that the A.M.A., Guides did not provide for a specific impairment for appellant’s
condition. He opined that appellant had three percent permanent impairment of the right lower
extremity under section 1.5 at page 11 of the A.M.A., Guides, which encourages a physician to
use his clinical judgment in making an impairment rating. The section referenced by the Office
medical adviser reads as follows:
“The physician’s judgment, based upon experience, training, skill, thoroughness
in clinical evaluation and ability to apply the [A.M.A.,] Guides criteria as
intended, will enable an appropriate and reproducible assessment to be made of
clinical impairment. Clinical judgment, combining both the ‘art’ and ‘science’ of
medicine, constitutes the essence of medical practice.”
In this case, the Office medical adviser did not conduct a clinical evaluation of appellant.
He based his rating on a review of the medical evidence. Appellant’s most recent physical
examination was performed by Dr. Callahan, a second opinion physician, on December 13, 2007.
Therefore, this general portion of the A.M.A., Guides does not support the Office medical
adviser’s determination as he did not examine appellant. The Office medical adviser did not cite
any other specific sections of the A.M.A., Guides to support his impairment rating for appellant’s
right leg. The Office requested that Dr. Callahan examine appellant.9 The Office medical
adviser did not provide an impairment rating and the Office did not seek a supplemental report
from Dr. Callahan to secure a probative opinion on the extent of appellant’s permanent
impairment.
Proceedings under the Act are not adversarial in nature. The Office shares in the
responsibility to develop the evidence and has an obligation to see that justice is done. The
Board has held that, once the Office undertakes development of the claim, it has the
responsibility to do so in a proper manner.10 The case will be remanded for the Office to further
develop the medical evidence as to the nature and extent of permanent impairment based on
appellant’s accepted right knee condition. After such further development as deemed necessary,
the Office should issue a decision regarding the extent of impairment to his right leg.
On appeal, appellant questioned how his impairment was determined. As noted, the
Board finds that the Office must further develop the medical evidence regarding the extent of his
permanent impairment. While appellant contends that his impairment evaluation should be
based on an unsuccessful micro-fracture surgery, this is a medical question which must be based
upon a physician’s clinical evaluation.

9

The record does not contain a copy of the referral letter to Dr. Callahan.

10

P.K., 60 ECAB ___ (Docket No. 08-2551, issued June 2, 2009).

4

CONCLUSION
The Board finds that the case is not in posture for decision on whether appellant has more
than three percent permanent impairment of the right leg.
ORDER
IT IS HEREBY ORDERED THAT the April 29, 2009 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded to the Office for
proceedings consistent with this decision of the Board.
Issued: August 18, 2010
Washington, DC

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

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

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

5