United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, METROPOLITAN
DETENTION CENTER, Brooklyn, NY,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 21-1265
Issued: March 23, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 19, 2021 appellant, through counsel, filed a timely appeal from a July 2, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than eight
percent permanent impairment of his left small finger for which he previously received a schedule
award.
FACTUAL HISTORY
On March 7, 2017 appellant, then a 47-year-old material handler supervisor, filed a
traumatic injury claim (Form CA-1) alleging that on February 26, 2017 he injured the left side of
his body and broke his left small finger when attempting to move a loaded laundry cart which
tipped over causing him to fall while in the performance of duty. He stopped work on February 26,
2017 and returned to work on March 7, 2017. On October 15, 2018 OWCP accepted the claim for
nondisplaced closed fracture of the distal phalanx of the left little finger and mallet finger of the
left little finger.
On July 13, 2017 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In support of his claim, appellant provided an August 3, 2017 report from Dr. John C.
L’Insalata, a Board-certified orthopedic surgeon. Dr. L’Insalata described his history of injury on
February 26, 2017 and diagnosed fracture of the distal phalanx of the left small finger with a bony
mallet component. On physical examination he found prominence over the dorsal aspect of the
distal interphalangeal (DIP) joint of the left small finger, lacking about two degrees of full
extension of the DIP joint, and 75 degrees of flexion with full strength, and intact sensory and
motor examination.
Dr. L’Insalata referred to the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides)3 and utilized the diagnosis-based
impairment (DBI) rating method to find that, under Table 15-2 (Digit Regional Grid), page 392,
the class of diagnosis (CDX) for mallet injury including avulsion fracture was a class 1 impairment,
grade C, with a default value of six percent for the digit. He assigned a grade modifier for
functional history (GMFH) of 2 based on pain symptoms with daily activities per Table 15-7, page
406. Dr. L’Insalata assigned a grade modifier for physical examination (GMPE) of 1 due to mild
decreased range of motion (ROM) of the DIP joint, pursuant to Table 15-8, page 408. He assigned
a grade modifier for clinical studies (GMCS) of 2 for associated intra-articular fracture of the distal
phalanx, which healed with prominence and gapping at the articular surface pursuant to Table 159, page 410. Dr. L’Insalata utilized the net adjustment formula (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX) = (2-1) + (1-1) + (2-1) = +2, which resulted in a grade E or eight percent permanent
impairment of the left small finger, which he converted to one percent permanent impairment of
the left hand and one percent impairment of the left upper extremity, pursuant to Table 15-12, page
421.
On July 12, 2019 Dr. Nathan Hammel, a Board-certified orthopedic surgeon, serving as a
district medical adviser (DMA), reviewed a statement of accepted facts (SOAF) and the medical
3

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

2

record, including Dr. L’Insalata’s August 3, 2017 findings. He concurred with Dr. L’Insalata’s
findings. Dr. Hammel indicated that the ROM method result could not be applied due to the lack
of triplicate measurements provided by Dr. L’Insalata. He found that the date of MMI was
August 3, 2017, the evaluation date by Dr. L’Insalata.
On October 28, 2020 OWCP requested that the DMA clarify whether the impairment rating
should be for the digit itself or extend into the adjoining area of the member, the hand or upper
extremity. In a November 17, 2020 report, the DMA found that appellant was entitled to eight
percent permanent impairment of his left small finger. He noted that consistent with OWCP
procedures the general loss of less than one digit should be computed in terms of impairments to
the digit itself and that the loss of two or more digits should be computed in terms of impairment
to the whole hand. 4 The DMA found as only one finger was involved the impairment was best
expressed as eight percent impairment of the left small finger.
By decision dated December 11, 2020, OWCP granted appellant a schedule award for eight
percent permanent impairment of his left small finger. The award ran for 1.2 weeks during the
period August 3 to 11, 2017.
On January 4, 2021 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which took place on April 21, 2021.
By decision dated July 2, 2021, the hearing representative affirmed OWCP’s December 11,
2020 decision. She found that the weight of the medical evidence established that appellant had
no greater than eight percent permanent impairment of his left finger for which he previously
received a schedule award.
LEGAL PRECEDENT
The schedule award provisions of FECA 5 and its implementing regulations 6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses. 7 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).8 The Board has approved the use
4

Federal (FECA) Procedure Manual, Part 2--Claims, Schedule Award and Permanent Disability Claims, Chapter
2.808.5.e (March 2017); B.H., Docket No. 16-0252 (issued October 7, 2016); Charles B. Carey, 49 ECAB 528 (1998).
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. See also B.B., Docket No. 20-1187 (issued November 18, 2021); Ronald R. Kraynak, 53 ECAB 130 (2001).

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); id. at Chapter 2.808.5a. (March 2017).

3

by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 9
In addressing upper extremity impairments, the sixth edition requires that the evaluator
identify the impairment CDX, which is then adjusted by a GMFH, GMPE, and GMCS. 10 The net
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).11
The A.M.A., Guides also provide that ROM impairment methodology is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
DBI sections are applicable. 12 If ROM is used as a stand-alone approach, the total of motion
impairment for all units of function must be calculated. All values for the joint are measured and
added.13 Adjustments for functional history may be made if the evaluator determines that the
resulting impairment does not adequately reflect functional loss and functional reports are
determined to be reliable. 14
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments.15 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluatio n, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM); and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing th e higher
rating should be used.” (Emphasis in the original.)16

9

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10

A.M.A., Guides 383-492.

11

Id. at 411.

12

Id. at 461.

13

Id. at 473.

14

Id. at 474.

15

FECA Bulletin No. 17-06 (May 8, 2017).

16

A.M.A., Guides 477.

4

The Bulletin further advises: “If the rating physician provided an assessment using the
ROM method and the [A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the
DMA should independently calculate impairment using both the ROM and DBI methods and
identify the higher rating for the CE [clams examiner].”17
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing
rationale for the percentage of impairment specified.18
ANALYSIS
The Board finds that this case is not in posture for decision.
In his August 3, 2017 report, Dr. L’Insalata provided one set of passive ROM
measurements for the left small finger. OWCP referred Dr. L’Insalata’s report to Dr. Hammel, its
DMA, who found that appellant had eight percent permanent impairment of the left small finger
under the DBI methodology. Dr. Hammel advised that Dr. L’Insalata’s report did not contain three
complete ROM measurements for the left small finger.
Pursuant to FECA Bulletin No. 17-06, if the ROM method of rating permanent impairment
is allowed, after review of the DBI rating, and the ROM findings are incomplete, the DMA should
advise as to the medical evidence necessary to complete the ROM method of rating if the medical
evidence of record is insufficient to rate appellant’s impairment using ROM. 19
Herein, OWCP did not follow the procedures outlined in FECA Bulletin No. 17-06 after
the DMA advised that the measurements for the left finger were incomplete and there was no
documentation to rate appellant’s permanent impairment utilizing the ROM methodology. 20
On remand OWCP shall obtain the necessary evidence as required under FECA Bulletin
No. 17-06 from Dr. L’Insalata.21 After it obtains the evidence necessary to complete the rating as
described above, the case shall be referred to a DMA to independently calculate impairment to the
left small finger using both ROM and DBI methods and identify the higher rating. 22 If
Dr. L’Insalata does not fully comply with the A.M.A., Guides, OWCP shall refer appellant to a
17

FECA Bulletin No. 17-06 (issued May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018); A.G.,
Docket No. 18-0329 (issued July 26, 2018).
18

See supra note 8 at Chapter 2.808.6f. (March 2017); see D.J., Docket No. 19-0352 (issued July 24, 2020).

19

J.L., Docket No. 19-1684 (issued November 20, 2020); R.L., Docket No. 19-1793 (issued August 7, 2020); E.P.,
Docket No. 19-1708 (issued April 15, 2020).
20

C.H., Docket No. 20-0529 (issued June 16, 2021); J.L., R.L., id.; C.T., Docket No. 18-1716 (issued
May 16, 2019).
21

J.L., id.; J.S., Docket No. 19-0483 (issued October 10, 2019).

22

See J.L., id.; J.V., Docket No. 18-1052 (issued November 8, 2018); M.C., Docket No. 18-0526 (issued
September 11, 2018).

5

specialist in the appropriate field of medicine for a second opinion evaluation. Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 2, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 18-1660
Issued: March 14, 2019

Case Submitted on the Record

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

JURISDICTION
On August 28, 2018 appellant filed a timely appeal from a May 16, 2018 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days have elapsed
from the last merit decision, dated January 26, 2018, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

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

FACTUAL HISTORY
On October 19, 2017 appellant, then a 59-year-old mail carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed right carpal tunnel and right cubital tunnel
syndrome as a result of constant lifting and carrying of packages weighing up to 10 pounds,
pushing and pulling tubs of mail, and sorting mail for 10 to 12 hours per day, six days per week,
while in the performance of duty. He noted that he first became aware of his claimed condition,
and its relationship to factors of his federal employment, on January 5, 2015. On the reverse side
of the claim form the employing establishment indicated that appellant was last exposed to the
conditions alleged to have caused his condition on August 14, 2017.
In a report dated March 20, 2017, Dr. Fallon Maylock, an orthopedic surgeon, examined
appellant and diagnosed carpal tunnel syndrome of the right wrist and right cubital tunnel
syndrome.
In a report dated March 10, 2017, received by OWCP on October 25, 2017, Dr. Siddharth
Kaul, a Board-certified neurologist, indicated that he administered a nerve conduction velocity
(NCV) study and an electromyogram (EMG). He advised that the NCV study showed moderateto-severe sensory demyelinating-type neuropathy of the median nerve at the wrist, the EMG
showed chronic denervation patterns in the abductor pollicis brevis consistent with median
neuropathy, and that the findings were significant for the presence of right-sided carpal tunnel
syndrome.
In a report dated June 22, 2017, Dr. Maylock opined that appellant’s employment duties
were responsible for his right carpal tunnel syndrome, and that his condition required surgery. He
noted that appellant had worked in a physical job for 40 years that required repetitive lifting,
pushing, pulling, and heavy physical activity.
By development letter dated October 30, 2017, OWCP informed appellant that the factual
and medical evidence of record was insufficient to establish his claim. It provided a factual
questionnaire for his completion and requested additional medical evidence in support of his claim.
OWCP afforded appellant 30 days to submit the necessary evidence.
By decision dated January 26, 2018, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that the events surrounding the claimed condition
occurred as he described. It noted that he neither submitted the requested response to the
questionnaire provided to him by OWCP in the October 30, 2017 development letter nor submitted
medical evidence to establish that the alleged condition was causally related to employment
activities.
On February 16, 2018 appellant requested reconsideration of the January 26, 2018 decision
and resubmitted a copy of Dr. Maylock’s June 22, 2017 report. In addition, he submitted his own
narrative statement dated February 2, 2018. In this statement, appellant related that he had
received medical care for his right hand condition from Dr. Maylock, who referred him to Dr. Kaul
for testing. He noted that he held on to the questionnaire because he believed it was to accompany
the doctor’s medical findings, but Dr. Maylock had yet to comply with the requirements in the
development letter. Appellant requested approval to obtain another doctor to address his medical
needs.
2

By decision dated May 16, 2018, OWCP denied appellant’s request for reconsideration,
finding that the evidence submitted was insufficient to warrant review of its January 26, 2018
decision.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.3
A request for reconsideration must be received by OWCP within one year of the date of its
decision for which review is sought.4 If it chooses to grant reconsideration, it reopens and reviews
the case on its merits.5 If the request is timely, but fails to meet at least one of the requirements
for reconsideration, OWCP will deny the request for reconsideration without reopening the case
for review on the merits.6
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
In his application for reconsideration, appellant did not show that OWCP erroneously
applied or interpreted a specific point of law, and he did not advance a new and relevant legal
argument not previously considered. Accordingly, appellant is not entitled to a review of the
merits of his claim based on the first and second above-noted requirements under section
10.606(b)(3).
With his reconsideration request, appellant resubmitted a copy of Dr. Maylock’s June 22,
2017 report. The Board has held that material which is duplicative of that already contained in the
case record does not constitute a basis for reopening a case.7
In addition, appellant submitted a supplemental statement in which he noted the doctors he
had visited, and explained why he had not submitted the requested questionnaire. He also
requested authorization for additional medical treatment. This evidence, while new, is not relevant
to the underlying factual and medical issues in this case as it does not address appellant’s
employment factors or whether such factors caused the diagnosed medical conditions. Evidence
which does not address the particular issue under consideration does not constitute a basis for
3

20 C.F.R. § 10.606(b)(3); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569
(issued December 9, 2008).
4

Id. at § 10.607(a).

5

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

6

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

7

A.M., Docket No. 18-1033 (issued January 8, 2019); see Kenneth R. Mroczkowski, 40 ECAB 855 (1989).

3

reopening a case.8 Thus, appellant is also not entitled to a review of the merits of his claim based
on the third above-noted requirement under section 10.606(b)(3).
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the May 16, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 14, 2019
Washington, DC

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

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

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

8

See F.B., Docket No. 18-1039 (issued December 6, 2018).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Shaker Heights, OH, Employer
__________________________________________

)
)
)
)
)
)
)

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

Docket No. 07-2251
Issued: March 6, 2008

Case Submitted on the Record

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

JURISDICTION

On September 4, 2007 appellant filed a timely appeal from a June 11, 2007 decision of
the Office of Workers’ Compensation Programs which denied his traumatic injury claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
appellant’s claim.
ISSUE
The issue is whether appellant sustained a traumatic injury in the performance of duty on
January 6, 2007.
FACTUAL HISTORY
On April 26, 2007 appellant, then a 38-year-old letter carrier, filed a traumatic injury
claim alleging that on January 6, 2007 at 1:00 p.m. “carrier was making a left hand turn” when
he sustained a back sprain.
On May 4, 2007 the Office informed appellant that the evidence was insufficient to
establish his claim. It advised him “[i]t is not known what ‘carrier was making a left hand turn’

means. Please state where you were and what you were doing at the time your injury occurred.
Provide a detailed description as to how your injury occurred.” The Office also requested that
appellant explain why the injury was not reported within 30 days.
Work status reports dated January 8, 11 and 31 and February 7, 2007 were submitted.
None of the reports included a diagnosis but listed “medical reason” or “medical visit” in the
space provided for the diagnosis. In a January 11, 2007 report, Dr. Joaquin F. Tinio diagnosed
strain of the lumbar region, shoulder and neck.
A January 6, 2007 statement from Floyd Gilbert, Sr., noted that he was traveling on north
Moreland/Ludlow when a postal truck turned or pulled into his path at the intersection.
On June 11, 2007 the Office denied appellant’s claim on the grounds that the evidence
did not describe how the injury occurred or establish that appellant sustained an injury.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his claim. When an employee claims that he
sustained an injury in the performance of duty, he must submit sufficient evidence to establish
that he experienced a specific event, incident or exposure occurring at the time, place and in the
manner alleged. He must also establish that such event, incident or exposure caused an injury.2
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident that is alleged to have occurred.3 The second
component is whether the employment incident caused a personal injury.4 Causal relationship is
a medical question that can generally be resolved only by rationalized medical opinion
evidence.5

1

5 U.S.C. §§ 8101-8193.

2

See generally John J. Carlone, 41 ECAB 354 (1989); 20 C.F.R. § 10.5 (ee).

3

Elaine Pendleton, 40 ECAB 1143 (1989).

4

John J. Carlone, 41 ECAB 354 (1989).

5

See Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of causal relationship must be
based on a complete factual and medical background of the claimant. Victor J. Woodhams, 41 ECAB 345,
352 (1989). Additionally, in order to be considered rationalized, the opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale, explaining the nature of the
relationship between the diagnosed condition and claimant’s specific employment factors. Id.

2

ANALYSIS
The Board finds that appellant has failed to establish that he sustained a traumatic injury
in the performance of duty.
Appellant has not established a prima facie claim because he did not sufficiently describe
the place and manner in which the alleged incident occurred. On his claim form, appellant
simply stated that at 1:00 p.m. “carrier was making a left hand turn.” This statement is not
sufficiently detailed to allow the Office to determine whether an injury occurred in the manner
described. Appellant did not explain whether the left hand turn was abrupt, whether there was a
forcible stop or whether there was a motor vehicle collision involved. Therefore the nature of
the external stress has not been identified. Pursuant to the applicable regulation: “Traumatic
injury means a condition of the body caused by a specific event or incident or series of events or
incidents, with a single workday or shifts. Such condition must be caused by external force,
including stress or strain which is identifiable as to time and place of occurrence and member or
function of the body affected.”6 On May 4, 2007 the Office advised appellant that it required
additional information as to what happened on January 6, 2007 while he was making a left hand
turn. Appellant offered no further explanation. The only other evidence received was a
statement from Mr. Gilbert who noted that he was traveling on a street when a postal truck pulled
into his path at an intersection. This statement also lacks specifics and does not establish that an
incident occurred. It is still not clear what the incident was or that appellant was involved.
Appellant has not established a prima facie claim for compensation.7 The Board finds
that appellant has failed to meet his burden to demonstrate that he sustained an employmentrelated injury on January 6, 2007.
CONCLUSION
The Board finds that appellant has not met his burden to establish that he sustained a
traumatic injury in the performance of duty.

6

20 C.F.R. § 10.5(ee).

7

See Donald W. Wenzel, 56 ECAB 390 (2005); Richard A. Weiss, 47 ECAB 182 (1995).

3

ORDER
IT IS HEREBY ORDERED THAT the June 11, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 6, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Detroit, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-352
Issued: March 20, 2015

Case Submitted on the Record

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

JURISDICTION
On November 28, 2014 appellant filed a timely appeal from an October 3, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). Because more than 180
days elapsed from the last merit decision dated November 26, 2013 to the filing of this appeal,
the Board lacks jurisdiction to review the merits of her claim pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for
reconsideration of her claim under 5 U.S.C. § 8128.
FACTUAL HISTORY
Appellant, a 53-year-old mail clerk, filed a Form CA-2 claim for benefits based on an
occupational condition on September 18, 2013, alleging that she developed lumbar, left leg, and
1

5 U.S.C. § 8101 et seq.

bilateral shoulder conditions causally related to employment factors. She stated that on
October 29, 2012 she realized that she sustained an injury caused or aggravated by her
employment. Appellant explained that on April 10, 2013 her left leg gave out due to the earlier
injury and caused her to fall down stairs. The employing establishment controverted the claim.
It stated that appellant had previously filed claims when she fell down the stairs on October 29,
2012 and in April 2013 and that this claim was essentially duplicative of those claims.2
By letter dated October 2, 2013, OWCP informed appellant that it required additional
medical evidence in support of her claim. It requested that she submit the additional evidence
within 30 days.
Appellant submitted several progress reports dated June 28, August 9, September 19, and
October 17, 2013 from Dr. Marvin Bleiberg, a specialist in pain medicine. In these reports
Dr. Bleiberg listed appellant’s complaints of left foot pain, left leg pain, bilateral shoulder pain,
and lower back pain and diagnosed lumbar radiculopathy, left shoulder impingement, and noted
that she had been prescribed medications for her conditions. He advised that she had sustained
work injuries on October 29, 2012 and April 4, 2013. Dr. Bleiberg stated that he had a long
counseling and discussion session with appellant, in which he discussed the diagnosis, possible
treatment options, and the prognosis, as well as the risks and benefits of the potential treatment
options. He did not present an opinion as to whether appellant’s diagnosed conditions were
causally related to employment factors.
By decision dated November 26, 2013, OWCP denied the claim, finding that appellant
failed to submit sufficient medical evidence to establish that her claimed conditions were
causally related to employment factors.
In reports dated November 11 and December 9, 2013, Dr. Bleiberg essentially reiterated
his previous findings and conclusions. He diagnosed lumbar strain/sprain in addition to
appellant’s other conditions, but did not attribute this condition to work factors.
On June 5, 2014 appellant requested reconsideration of the November 26, 2013 decision.
By decision dated October 3, 2014, OWCP denied appellant’s application for review on
the grounds that it neither raised substantive legal questions nor included new and relevant
evidence sufficient to require OWCP to review its prior decision.
LEGAL PRECEDENT
Under 20 C.F.R. § 10.606(b), a claimant may obtain review of the merits of his or her
claim by showing that OWCP erroneously applied or interpreted a specific point of law; by
advancing a relevant legal argument not considered by OWCP; or by constituting relevant and
pertinent evidence not previously considered by OWCP.3 Evidence that repeats or duplicates
2

It is unclear from the record as to whether appellant had previously accepted claims pertaining to the alleged
dates of injury.
3

20 C.F.R. § 10.606(b)(1); see generally 5 U.S.C. § 8128(a).

2

evidence already in the case record has no evidentiary value and does not constitute a basis for
reopening a case.4
ANALYSIS
In the present case, appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; nor has she advanced a relevant legal argument not previously
considered by OWCP.
In the present appeal, appellant submitted the November 11 and December 9, 2013
reports from Dr. Bleiberg. The Board has held that the submission of evidence which does not
address the particular issue involved in the case does not constitute a basis for reopening the
claim.5 The evidence appellant submitted in connection with her June 5, 2014 reconsideration
request is not pertinent to the issue on appeal; i.e., whether she submitted sufficient medical
evidence to establish that her lumbar, left leg and bilateral shoulder conditions were sustained in
the performance of duty. The reports from Dr. Bleiberg merely reiterate findings and
conclusions he made in his previous reports; these are therefore cumulative and duplicative.6
Appellant’s reconsideration request failed to show that OWCP erroneously applied or interpreted
a point of law nor did it advance a point of law or fact not previously considered by OWCP. It is
therefore concluded that OWCP did not abuse its discretion in refusing to reopen appellant’s
claim for a review on the merits in its October 4, 2014 decision.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for
reconsideration on the merits of her claim under 5 U.S.C. § 8128(a).

4

Howard A. Williams, 45 ECAB 853 (1994).

5

See David J. McDonald, 50 ECAB 185 (1998).

6

See Patricia G. Aiken, 57 ECAB 441 (2006).

3

ORDER
IT IS HEREBY ORDERED THAT the October 3, 2014 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: March 20, 2015
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, ME, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket Nos. 10-833 & 10-1429
Issued: April 12, 2011

Case Submitted on the Record

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

JURISDICTION
On January 27, 2010 appellant, through counsel, filed a timely appeal from an August 5,
2009 decision of the Office of Workers’ Compensation Programs affirming the denial of his
claim.1 The Board assigned Docket No. 10-833. On April 20, 2010 appellant, through counsel,
filed a timely appeal from an April 5, 2010 decision of the Office affirming the termination of his
compensation benefits. The Board assigned Docket No. 10-1429. Pursuant to the Federal
Employees’ Compensation Act2 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case.

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computed
beginning on the day following the date of the Office’s decision. See 20 C.F.R. § 501.3(f)(2). As the Office’s
decision was issued August 5, 2009, the 180-day computation begins August 6, 2009. One hundred and eighty days
from August 6, 2009 was February 1, 2010. Since using February 3, 2010, the date the appeal was received by the
Clerk of the Board, would result in the loss of appeal rights, the date of the postmark is considered the date of filing.
The date of the U.S. Postal Service postmark is January 27, 2010 which renders the appeal timely filed. See 20
C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant met his burden of proof to establish left knee
conditions due to the accepted March 14, 2001 employment injury; and (2) whether the Office
properly terminated appellant’s compensation for wage-loss and medical benefits effective
July 5, 2009 on the grounds that he no longer had any residuals or disability causally related to
his accepted employment-related injuries.
On appeal, counsel contends that the Office erred in terminating appellant’s benefits. He
also contends that the medical evidence established that appellant sustained more than a left knee
sprain, as accepted by the Office.
FACTUAL HISTORY
On March 14, 2001 appellant, then a 46-year-old maintenance mechanic, filed a
traumatic injury claim alleging that on that day he twisted his left knee when he slipped on a
safety chain and fell. The Office accepted the claim for a left knee strain. Appellant was placed
on limited-duty work following the injury and stopped work on August 7, 2002 as the employing
establishment could no longer accommodate his restrictions.3 It placed him on the periodic rolls
for temporary total disability.4
A May 10, 2001 magnetic resonance imaging (MRI) scan noted findings suspicious for a
left knee partial anterior cruciate ligament tear.
In a progress note dated May 11, 2001, Dr. George W. Stockwell, an examining
osteopathic physician, opined that appellant might have a medial meniscus tear as he did not
believe he had an anterior cruciate ligament tear.
Dr. Dennis J. Sullivan, a treating Board-certified orthopedic surgeon, reviewed the MRI
scan and provided physical examination findings. On June 4, 2001 he stated that appellant had a
partial anterior cruciate ligament tear. In a June 4, 2001 report form, Dr. Sullivan diagnosed a
left anterior cruciate ligament tear, noted the injury date of March 14, 2001 and checked that the
condition was employment related.
In an April 12, 2002 report, Dr. Steven G. Johnson, a treating physician, diagnosed left
knee contusion and left leg sciatica in 2002. He noted an employment injury date of March 14,
2001 and checked that the conditions were employment related.
In progress notes dated May 8, 2002, Dr. Sullivan diagnosed left knee patellofemoral
syndrome.
On September 16, 2002 appellant requested his claim be accepted for the diagnosed
conditions of left leg and sciatic nerve pain.
3

The Office referred appellant for rehabilitation services in August 2002.
unsuccessful.
4

Appellant relocated to North Carolina effective February 9, 2007.

2

It closed the file in 2006 as

On February 14, 2003 Dr. Johnson diagnosed left knee patellofemoral syndrome. A
January 12, 2004 MRI scan showed chondromalacia patella of the medial patellar cartilage and
no definite meniscal tear or cruciate ligament injury. On March 24, 2004 Dr. Johnson diagnosed
left knee patellofemoral syndrome with developing arthritis. He reported the history of injury
and that an MRI scan showed a partial anterior cruciate ligament tear and fraying medial
meniscus. Dr. Johnson stated that appellant continued to have left knee instability with clicking
but no giveaway or locking. A physical examination revealed an antalgic gait, medial jointline
tenderness, a negative drawer sign and positive patellofemoral grind.
In a March 17, 2005 report, Dr. Johnson concluded that appellant sustained left knee
extreme valgus injury and prepatella subluxation as a result of his March 14, 2001 employment
injury. He related that an MRI scan showed a partial anterior cruciate ligament tear and fraying
medial meniscus. Physical findings had not changed from the prior March 24, 2004 report.
Dr. Johnson, in a January 26, 2006 report, related that appellant’s symptoms are unchanged
although appellant believes his left knee has gotten worse.
On April 5, 2007 Dr. H.L. Clinton, Jr., a treating physician, noted that appellant sustained
a knee injury on March 14, 2001 while at work and that objective testing was necessary to
determine the extent of his knee injury. A physical examination revealed no localized tenderness
or swelling of the left knee, no ligamentous instablility normal range of motion and moderate
patellofemoral crepitus.
In a February 5, 2008 report, Dr. Surendrapal S. Mac, a second opinion Board-certified
orthopedic surgeon, diagnosed a left knee strain. On physical examination of the left knee, there
was full range of motion, tenderness over the medial and anterior aspect of the knee and no
instability. Dr. Mac related that x-rays taken at the time of his examination showed mild
degenerative knee changes with a mild medial space diminution and no bony injury. He stated
that a review of the prior MRI scans showed no evidence of any significant meniscus or ligament
tear which supported the diagnosis of left knee sprain. Dr. Mac reported that a January 12, 2004
MRI scan showed chondromalacia patella of the medial patellar cartilage. He advised that the
left knee sprain would normally resolve in a few months and that appellant was capable of
performing his date-of-injury job. Dr. Mac concluded that appellant had no permanent
impairment of his left knee as a result of the accepted employment injury.
In a March 13, 2008 supplemental report, Dr. Mac concluded that appellant’s left knee
sprain had resolved. He was unable to determine the exact date the condition had resolved due to
seeing appellant seven years after the injury. Dr. Mac related that the left knee sprain would
have healed and resolved within a few months of the injury. With respect to the diagnosis of
chondromalacia patella, he was unable to determine whether the condition was preexisting or
caused by the injury because his examination of appellant was seven years after the injury.
On April 14, 2008 the Office issued a notice proposing to terminate appellant’s
compensation based upon Dr. Mac’s opinion that his accepted left knee strain had resolved
without continuing disability or residuals.
An April 22, 2008 report from Dr. Brian Rosenberg, a treating physician, was received.
Dr. Rosenberg diagnosed possible internal derangement of the knee. He recommended further

3

testing as appellant might have a new injury or a subtle injury which did not show on his prior
MRI scan.
In a letter dated May 13, 2008, appellant’s counsel contended that Dr. Mac’s report was
insufficient to support the termination of benefits. In addition, he contended that the Office
failed to properly code the accepted conditions as appellant sustained more than a left knee
strain. Also the statement of accepted facts the Office provided Dr. Mac was inaccurate.
On May 21, 2008 Dr. Rosenberg diagnosed a possible subluxation of the patella based on
a review of an MRI scan. He reported the scan showed no acute knee or meniscus injuries.
Dr. Rosenberg attributed appellant’s knee going out to either patella subluxation or “ACL”
laxity.
By decision dated August 1, 2008, the Office finalized the termination of appellant’s
compensation benefits effective August 2, 2008.
On August 12, 2008 appellant’s counsel requested a review of the written record by an
Office hearing representative.
By decision dated January 9, 2009, an Office hearing representative vacated the
August 1, 2008 decision as Dr. Mac’s opinion was insufficiently reasoned. The Office hearing
representative found that further development of the medical record was required on the issue of
whether appellant’s chondromalacia was employment related.
On January 21, 2009 an Office medical adviser reviewed the medical record and
concluded that the continued care by appellant’s treating physician was insufficient to establish
that he sustained a structural defect as a result of the accepted employment injury. He noted that
the complaints of intermittent pain on a 10 out 10 pain scale were inconsistent with the generally
negative imaging studies and physical findings. The Office medical adviser found the medical
evidence insufficient to warrant accepting any additional left leg conditions.
In an April 7, 2009 report, Dr. Robert Miller, a second opinion Board-certified orthopedic
surgeon, reviewed the statement of accepted facts, employment injury history and medical
records and performed a physical examination. The examination revealed normal ambulation, no
noticeable limp, full bilateral knee range of motion, mild bilateral knee patellofemoral crepitus
and no tenderness on medial or lateral patellar facets palpitation. Dr. Miller related that
appellant’s knee examination was essentially normal other than the Grade 1 patellofemoral
crepitus and subjective tenderness on medial palpation. He found no objective evidence of any
current employment-related disability or of the accepted left knee strain. Dr. Miller concluded
that no ligament injury occurred, as there was an absence of any findings on the MRI scans of a
high-grade ligament injury. Repeated findings of a stable knee ligament were documented in the
medical record. With respect to the diagnosis of chondromalacia patella, he stated that this was
dependent on direct surgical or arthroscopic observation of the cartilage, which was not done in
the current case. Dr. Miller noted that it could be inferred by an MRI scan or findings of crepitus
during a physical examination. While a January 12, 2005 MRI scan revealed some medial
patellar facet cartilage intrinsic abnormality and crepitus on examination, he concluded the
“finding is of questionable significance at best.” Dr. Miller explained that the finding of crepitus

4

was present in both appellant’s knees and could be found in a random examination of half the
population. As to the diagnosis of patellofemoral syndrome, he related that, while appellant’s
complaints of mild crepitus, pain and instability were consistent with this diagnosis, his other
complaints of pain on passive knee extension and tenderness at the medial joint line were not
characteristic of chronic retropatellar pain syndrome. Dr. Miller noted that appellant tolerated
long automobile rides with his knee flexed with no difficulty, which patients with retropatellar
pain syndrome were unable to do. He opined that appellant’s accepted left knee strain had
completely resolved without residuals or disability. Dr. Miller noted the diagnosis of mild
chondromalacia patella was possible bilaterally, but there was no medical evidence to support
that it was due to the accepted employment injury.
By decision dated May 11, 2009, the Office denied appellant’s request to expand his
claim to include left chondromalacia patella. It found the report of Dr. Miller to be well
rationalized and constituted the weight of the evidence establishing that his claim should not be
expanded.
On May 11, 2009 the Office issued a notice proposing to terminate appellant’s
compensation benefits. It found the weight of the evidence rested with Dr. Miller’s April 7,
2009 report that his accepted employment injury had resolved with no residuals or disability.
In a letter dated May 18, 2009, appellant’s counsel requested a written review of the
record by an Office hearing representative.
By decision dated July 1, 2009, the Office finalized the termination of appellant’s
compensation effective July 5, 2009.
In a July 8, 2009 letter, appellant’s counsel requested a review of the written record by an
Office hearing representative on the July 1, 2009 termination of his compensation.
By decision dated August 5, 2009, an Office hearing representative affirmed the May 11,
2009 decision denying appellant’s request to accept left chondromalacia patella.
By decision dated April 5, 2010, the Office hearing representative affirmed the
termination of appellant’s compensation benefits.
LEGAL PRECEDENT -- ISSUE 1
Where an employee claims that a condition not accepted or approved by the Office was
due to an employment injury, she bears the burden of proof to establish that the condition is
causally related to the employment injury.5 To establish a causal relationship between the
condition was well as any attendant disability claimed and the employment injury, an employee
must submit rationalized medical evidence based on a complete medical and factual background
supporting such a casual relationship.6 Causal relationship is a medical issue and the medical
5

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

6

M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

5

evidence required to establish a causal relationship is rationalized medical evidence.7
Rationalized medical evidence is evidence which includes a physician’s rationalized medical
opinion on the issue of whether there is a causal relationship between the diagnosed condition
and the specific employment factors identified by the claimant.8 Neither the mere fact that a
disease or condition manifests itself during a period of employment, nor the belief that the
disease or condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.9
ANALYSIS -- ISSUE 1
The Office accepted that on March 14, 2001 appellant sustained a left knee strain in the
performance of duty. On appeal, appellant’s attorney contends that the Office accept left
chondromalacia patella as a result of the March 14, 2001 employment injury. The Board finds
that appellant did not submit sufficient reasoned medical opinion on causal relationship
establishing additional employment-related conditions.
In a May 11, 2001 progress note, Dr. Stockwell opined that appellant might have a
medical meniscus tear while on July 4, 2001 and May 8, 2002 Dr. Sullivan diagnosed anterior
cruciate ligament and left knee patellofemoral syndrome. Dr. Johnson diagnosed left leg sciatica
in a series of progress notes from 2002 to 2006. On April 5, 2007 Dr. Clinton reported that
additional testing was required to determine the extent of appellant’s left knee injury. On
April 22, 2008 Dr. Rosenberg diagnosed possible left knee derangement. None of the physicians
provided sufficient explanation for how the listed diagnoses of the left knee were due to the
March 14, 2001 left knee sprain. They did not offer any explanation as to how the mechanism of
the March 14, 2001 employment injury, i.e., slipping on a safety chain and falling, was
competent to result in the various diagnoses or resultant disability. The Board has held that
medical opinions not containing rationale on causal relation are of diminished probative value
and are insufficient to meet appellant’s burden of proof.10
The Office referred appellant to Dr. Miller, a second opinion Board-certified orthopedic
surgeon. On April 7, 2010 Dr. Miller concluded that the diagnosis chondromalacia patella was
not appropriate. He noted that no surgery was performed and the objective evidence of record
was not supportive of this diagnosis. While a January 12, 2005 MRI scan implicitly diagnosed
some medial patellar facet cartilage intrinsic abnormality and crepitus on examination, there was
no evidence that a high-grade ligament injury occurred and there were repeated findings of a
stable knee ligament test, as reported by various physicians. Additionally, Dr. Miller pointed out
that chondromalacia of the patella was directly dependent on surgery or arthroscopic
intervention, which had not occurred. He noted that crepitus, which was found in both knees,
was present in approximately half the general population. Dr. Miller concluded that the
condition was not employment related.
While appellant had possible bilateral mild
7

D.E., 58 ECAB 448 (2007); Mary J. Summers, 55 ECAB 730 (2004).

8

Phillip L. Barnes, 55 ECAB 426 (2004); Leslie C. Moore, 52 ECAB 132 (2000).

9

V.W., 58 ECAB 428 (2007); Ernest St. Pierre, 51 ECAB 623 (2000).

10

Richard A. Neidert, 57 ECAB 474 (2006); D.U., Docket No. 10-144 (issued July 27, 2010).

6

chondromalacia patella, there was no medical evidence to support causal relationship to the
accepted March 14, 2001 employment injury. Dr. Miller found that the accepted left knee sprain
had completely resolved without residuals or disability.
As noted, it is appellant’s burden to establish a causal relationship between a condition
not accepted by the Office and the accepted employment injury. Appellant failed to provide the
necessary evidence to support his claim.
On appeal, counsel contends that the evidence is sufficient to support the diagnosis of
chondromalacia patella. While Dr. Mac made this diagnosis, he reported that he was unable to
determine whether it was a preexisting condition or resulted from the March 14, 2010
employment injury. The case ultimately resulted in referral to Dr. Miller. Dr. Mac’s report was
insufficient to support appellant’s request for an expansion of his claim.
LEGAL PRECEDENT -- ISSUE 2
Once the Office accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.11 After it has determined that an
employee has disability causally related to her federal employment, the Office may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.12 The Office’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.13
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.14 To terminate authorization for medical treatment, the Office must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.15
ANALYSIS -- ISSUE 2
The Office terminated appellant’s compensation benefits effective July 5, 2009 based on
the report from Dr. Miller.
In an April 7, 2009 report, Dr. Miller, a second opinion Board-certified orthopedic
surgeon, provided a detailed summary of appellant’s history and advised that his left knee strain
from the March 14, 2001 injury at work had resolved. He explained that appellant’s knee
11

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

12

I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

13

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988); I.R., Docket No. 09-1229 (issued
February 24, 2010).
14

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued
August 5, 2009).
15

Kathryn E. Demarsh, supra note 14; James F. Weikel, 54 ECAB 660 (2003); B.K., Docket No. 08-2002 (issued
June 16, 2009).

7

examination was essentially normal except for the subjective finding of tenderness on palpitation
and patellofemoral crepitus was caused by a low impact event and that the knees were stable and
there were no fractures. Dr. Miller opined that there was no ligament injury due to the March 14,
2001 injury based on the absence of any high-grade ligament injury from a review of medical
record. After reviewing appellant’s records and conducting his own examination, Dr. Miller
determined that his accepted left knee strain had resolved without residuals and without
continued disability due to the work injury. He also advised that there was a possibility of a
diagnosis of chondromalacia patella, which was bilateral. As the condition was bilateral
Dr. Miller concluded that there was no evidence of any causal connection between this condition
and the accepted employment injury.
The Board finds that Dr. Miller’s report represents the weight of the medical evidence
and that the Office properly relied on his report in terminating appellant’s benefits. Dr. Miller’s
opinion is based on proper factual and medical history and his report contained a detailed
summary of this history. He addressed the medical records to make his own examination
findings to reach a reasoned conclusion regarding appellant’s condition.16 Dr. Miller found no
basis on which to attribute any residuals or continued disability to appellant’s accepted injury.
He also found no basis on which to attribute appellant’s nonaccepted condition of
chondromalacia patella to the March 14, 2001 employment injury.17
There is no other medical evidence contemporaneous with the termination of appellant’s
compensation benefits which supports that he had any continuing employment-related condition.
Consequently, the weight of the medical evidence rests with Dr. Miller and establishes that
appellant had no residuals due to his accepted left knee strain.
On appeal, appellant’s counsel asserts that Dr. Miller’s report is unrationalized and based
on an inaccurate statement of accepted facts. Contrary to appellant’s contentions, Dr. Miller
provided a rationalized medical report and explained his conclusion. He found there was no
evidence that the chondromalacia patella condition had been caused or aggravated by the
March 14, 2001 employment injury. Dr. Miller represents the weight of the medical evidence as
he provided a rationalized medical opinion explaining the reasons for his findings.
CONCLUSION
The Board finds appellant did not meet his burden of proof to establish the expansion of
his claim. The Board further finds that the Office met its burden of proof to terminate
appellant’s wage-loss compensation benefits and medical benefits effective July 5, 2009.

16

See Michael S. Mina, 57 ECAB 379 (2006) (the opportunity for and thoroughness of examination, the accuracy
and completeness of the physician’s knowledge of the facts and medical history, the care of analysis manifested and
the medical rationale expressed in support of the physician’s opinion are facts, which determine the weight to be
given to each individual report).
17

See Jaja K. Asaramo, 55 ECAB 200 (2004) (for conditions not accepted by the Office, the claimant bears the
burden of proof to establish that the condition is causally related to the employment injury through the submission of
rationalized medical evidence); T.M., Docket No. 08-975 (issued February 6, 2009).

8

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 5, 2009, in Docket No. 10-833, and April 5, 2010, in
Docket No. 10-1429, are affirmed.
Issued: April 12, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Diego, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-0556
Issued: September 6, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 16, 2019 appellant, through counsel, filed a timely appeal from a July 31, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish that her diagnosed
conditions were causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On August 10, 2015 appellant, then a 48-year-old mail carrier, filed an occupational
disease claim (Form CA-2) alleging that she injured her left leg and groin due to standing and
walking approximately seven hours per day while in the performance of duty. She explained that
she had to carry a heavy satchel which placed pressure on her lower extremity and that her
employment duties required her to get in and out of her vehicle from 60 to 80 times per day.
Appellant noted that she became aware of her condition on July 15, 2015 and that it was causally
related to her federal employment on August 10, 2015. She did not stop work.
By development letter dated August 27, 2015, OWCP advised appellant that medical
evidence was necessary to establish her claim. It requested that she submit a comprehensive
narrative medical report from her attending physician, which included a diagnosis of a medical
condition and a rationalized medical opinion supporting causal relationship between the diagnosed
condition and the factors of her federal employment. OWCP afforded appellant 30 days to submit
the requested medical evidence.
OWCP subsequently received an August 21, 2015 progress/treatment note from
Dr. Jose A. Pelayo, a Board-certified internist, who diagnosed chest wall strain and hip/thigh
strain. Dr. Pelayo noted that appellant complained of left chest pain and leg pain, which dated
back at least four weeks. Appellant’s symptoms reportedly worsened during the course of her
workday, which included delivering mail and carrying a more than 30-pound bag, usually on her
left shoulder. She did not recall any particular injury, but reported that her symptoms quickly
worsened when performing her described employment duties. Dr. Pelayo indicated that
appellant’s symptoms were “highly likely due to/worsened by work activities.” He excused
appellant from work until August 30, 2015, which he later extended through September 13, 2015.
On September 18, 2015 Dr. Mary W. DuQuette, a Board-certified physiatrist, examined
appellant and diagnosed chest wall strain, limb pain, and left groin pain. She indicated that it was
not clear whether appellant’s complaints were employment related. Dr. DuQuette noted that she
did not feel she could comment regarding appellant’s left chest discomfort, which appellant
described as being associated with the positioning of her mailbag.
OWCP also received October 1, 2015 magnetic resonance imaging (MRI) scans of
appellant’s left hip and lumbar spine. Appellant’s left hip MRI scan was negative for greater
trochanteric bursitis, and there was no evidence of stress fracture or osteonecrosis. However, there
3

Docket No. 17-0474 (issued March 23, 2018).

2

was evidence of a nondisplaced split through the base of the anterior acetabular labrum, without
focally-advanced cartilage loss, synovitis, or features of femoroacetabular impingement.
Appellant’s lumbar MRI scan revealed multi-segmental disc degeneration and spondylosis, at L3-4
there was a small left foraminal disc protrusion, without nerve root impingement or spinal stenosis.
At L4-5, there was a small right paramedian disc protrusion, without nerve root impingement.
By decision dated October 22, 2015, OWCP denied appellant’s occupational disease claim,
as the medical evidence of record failed to establish causal relationship between the diagnosed
conditions and her accepted employment factors.
OWCP subsequently received a September 18, 2015 note from Dr. DuQuette excusing
appellant from work through November 19, 2015. Additionally, it received October 21, 2015
progress notes from Dr. DuQuette who reviewed appellant’s recent MRI scans and diagnosed limb
pain, left groin pain, left-side L3-4 herniated nucleus pulposus, and left hip labral tear,
degenerative.
OWCP received a January 6, 2016 duty status report (Form CA-17) which contained an
illegible diagnosis.
On October 24, 2016 appellant requested reconsideration. She indicated that she had
attached additional medical evidence for OWCP to review in connection with its October 22, 2015
decision. However, no additional medical evidence was received.
By decision dated November 7, 2016, OWCP denied appellant’s request for
reconsideration, as it was untimely filed and failed to demonstrate clear evidence of error.
On January 3, 2017 appellant, through counsel, appealed the November 7, 2016 decision
to the Board. In its March 23, 2018 decision, the Board found that OWCP improperly denied
appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
The Board found that her October 24, 2016 request for reconsideration was timely filed as one
year from October 22, 2015 elapsed on Saturday, October 22, 2016 and therefore she had until the
next business day, Monday, October 24, 2016 to file a timely request for reconsideration. The
Board found that appellant’s request for reconsideration should have been reviewed under the
standard for reviewing timely requests for reconsideration pursuant to 20 C.F.R. § 10.606(b)(3).
The Board set aside the November 7, 2016 decision and remanded the case to OWCP for an
appropriate final decision on her timely request for reconsideration.
By decision dated April 23, 2018, OWCP denied modification of the October 22, 2015
decision.
On May 7, 2018 OWCP appellant requested reconsideration. In a May 2, 2018 statement,
she indicated that she was submitting additional medical evidence.
In an October 5, 2016 report, Dr. Michael Muldoon, a Board-certified orthopedic surgeon,
noted that he first evaluated appellant in January 2006 for left hip symptoms that developed
abruptly while she was walking her route and getting in and out of her vehicle. He indicated that
she initially was unable to work, eventually was able to return to work, but continued to have
moderate pain and a slight limp. Dr. Muldoon related that appellant walked for prolonged periods
3

of time, which was necessitated by her employment duties. He advised that she had moderate pain
and a slight limp, as well as catching and locking in the hip, and pain when walking for prolonged
periods. Dr. Muldoon examined appellant and diagnosed chondrolabral pathology and
radiographic evidence of impingement. He advised: “It is my opinion that this otherwise very
active, 49-year-old woman without any arthritis, developed a breakdown at the chondrolabral
junction of the left hip as a result of her exposures in the workplace as a mail carrier. The exact
onset of symptoms coincided with an episode at work and, although this may have been an
attritional process initially, the relatively acute presentation also makes it more medically probable
that this is an employment-related injury. I strongly support that this be a compensable workplace
injury.” Dr. Muldoon recommended arthroscopic surgery.
By decision dated July 31, 2018, OWCP denied modification of the April 23, 2018
decision. It found that the medical evidence of record was speculative and not well rationalized.
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 FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged, and
that any disability and/or specific condition for which compensation is claimed are causally related
to the employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the presence
or existence of the disease or condition for which compensation is claimed; (2) a factual statement
identifying employment factors alleged to have caused or contributed to the presence or occurrence
of the disease or condition; and (3) medical evidence establishing that the employment factors
identified by the claimant were the proximate cause of the condition for which compensation is
claimed or, stated differently, medical evidence establishing that the diagnosed condition is causally
related to the employment factors identified by the claimant.6
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between 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

4

S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40
ECAB 1143, 1145 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); Victor J. Woodhams, 41 ECAB 345 (1989).

6

C.D., Docket No. 17-2011 (issued November 6, 2018); Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

4

the relationship between the diagnosed condition and the specific employment factors identified by
the claimant.7
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed conditions were causally related to the accepted factors of her federal employment.
Dr. Pelayo’s opinion, in an August 21, 2015 progress/treatment note, that appellant’s
diagnosed conditions were “highly likely due to/worsened by work activities,” is speculative in
nature.8 To be of probative value, a physician’s opinion on causal relationship should be one of
reasonable medical certainty.9 Thus, this evidence is insufficient to meet appellant’s burden of
proof.10
Dr. DuQuette, in her September 18, 2015 report, diagnosed chest wall strain, limb pain,
and left groin pain, and advised that it was not clear whether appellant’s complaints were
employment related. She further advised that she could not comment regarding appellant’s left
chest discomfort. The Board finds that this report does not support that appellant’s employment
factors as a rural mail carrier caused or aggravated the diagnosed conditions. Medical evidence
that does not offer any opinion regarding the cause of an employee’s condition is of no probative
value on the issue of causal relationship.11
Similarly, OWCP received a September 18, 2015 work excuse, an October 21, 2015
progress report, and a January 6, 2016 Form CA-17 from Dr. DuQuette. Dr. DuQuette again did
not offer any opinion regarding causal relationship in these reports.12 As such her reports are
insufficient to establish appellant’s claim.
In an October 5, 2016 report, Dr. Muldoon, noted that he first evaluated appellant in
January 2006 for left hip complaints that developed abruptly while she was walking her route and
getting in and out of her vehicle. The Board notes that appellant has not indicated that she
sustained an injury in 2006. Dr. Muldoon did not provide any medical records from that time.
While he noted appellant’s activities at work involved walking for prolonged periods of time, and
opined that she developed a breakdown at the chondrolabral junction of the left hip as a result of
her activities as a mail carrier, Dr. Muldoon did not provide medical rationale to explain his
conclusion. He did not explain how the mechanism of injury would have physiologically caused

7

Id.

8

See J.B. Docket No. 18-1751 (issued May 6, 2019); B.M., Docket No. 17-1079 (issued June 4, 2018).

9

D.P., Docket No. 18-1647 (issued March 21, 2019).

10

See Y.C., Docket No. 17-1938 (issued January 7, 2019).

11

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

12

Id.

5

the diagnosed conditions.13 This is especially important as there are no records of any incident at
work in 2006 to which Dr. Muldoon attributes the onset of appellant’s symptoms. Dr. Muldoon
did not provide a rationalized medical explanation as to how her employment factors caused her
diagnosed conditions. His report is therefore of limited probative value.14
OWCP also received an October 1, 2015 diagnostic test report, however, the Board has
held that reports of diagnostic tests lack probative value as they do not provide an opinion on
causal relationship between appellant’s employment factors and a diagnosed condition.15
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.16
Neither the fact that the condition became apparent during a period of employment nor the belief
that the condition was caused or aggravated by employment factors or incidents is sufficient to
establish causal relationship.17 As there is no reasoned medical evidence explaining how
appellant’s employment duties caused or aggravated her diagnosed conditions, appellant has not
met her burden of proof to establish that her diagnosed conditions were causally related to the
accepted factors of her federal employment.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that her
diagnosed conditions were causally related to the accepted factors of her federal employment.

13

N.B., Docket No. 19-0079 (issued June 14, 2019).

14

Id.

15

T.H., Docket No. 18-1736 (issued March 13, 2019); S.G., Docket No. 17-1054 (issued September 14, 2017).

16

N.B., Docket No. 19-0221 (issued July 15, 2019); see Joe T. Williams, 44 ECAB 518, 521 (1993).

17

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the July 31, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 6, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Pollock, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 20-0285
Issued: December 2, 2020

Case Submitted on the Record

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

JURISDICTION
On November 18, 2019 appellant filed a timely appeal from an August 27, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 27, 2019 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than one
percent permanent impairment of his right lower extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On June 19, 2015 appellant, then a 32-year-old materials handler supervisor, filed a
traumatic injury claim (Form CA-1) alleging that on that date he twisted his right ankle and injured
his right Achilles tendon and right big toe while in the performance of duty. He stopped work on
June 19, 2015 and returned to modified employment on July 31, 2015. OWCP accepted the claim
for tenosynovitis of the right foot and ankle.
A magnetic resonance imaging (MRI) scan of appellant’s right foot obtained on August 26,
2015 revealed a fragmented sesamoid bone.
Appellant, on September 14, 2016, filed a claim for a schedule award (Form CA-7).
Appellant submitted a December 1, 2016 impairment evaluation, performed by an
occupational therapist and cosigned by Dr. Angela Mayeux-Herbert, a Board-certified orthopedic
surgeon. Dr. Mayeux-Herbert discussed his complaints of mild right great toe discomfort and pain
in his right foot with extensive standing. She measured normal range of motion of the right ankle.
Dr. Mayeux-Herbert advised that appellant had hyperextension of the right great toe at the MTP
joint and with flexion at the interphalangeal joint. She identified the class of diagnosis (CDX) as
1 for a fragmented sesamoid bone with right great toe pain and a mild motion deficit, which she
found yielded two percent impairment of the right lower extremity. Dr. Mayeux-Herbert applied
a grade modifier for functional history (GMFH) of one, a grade modifier for physical examination
(GMPE) of one, and a grade modifier for clinical studies (GMCS) of one, noting that an MRI scan
study had verified the sesamoid bone fragmentation. She found no adjustment from the default
value and opined that appellant had two percent right lower extremity permanent impairment.
On July 28, 2017 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as a
district medical adviser (DMA), reviewed the findings of Dr. Mayeux-Herbert. He identified CDX
of 1 for a sesamoid fracture using the foot/ankle regional grid set forth at Table 16-2 on page 505
of the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides),4 which yielded a default value of one percent. The DMA found
that Dr. Mayeux-Herbert had applied a GMFH and GMPE of one, and a GMCS of two. He applied
the net adjustment formula, (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), or (1-1) + (1-1)
3

Docket No. 19-0369 (issued June 11, 2019).

4

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

2

+ (2-1) to find a net adjustment of one, which he found moved the default adjustment over one for
two percent impairment. The DMA recommended, however, a permanent impairment rating of
one percent for the right lower extremity and opined that appellant had reached maximum medical
improvement on December 1, 2016.
In a letter dated October 24, 2017, OWCP requested that appellant’s attending physician
review and comment on the DMA’s findings.
In a November 15, 2017 response, Dr. Mayeux-Herbert advised that her prior
determination had not altered. She enclosed a February 8, 2017 report in which she reviewed
appellant’s impairment rating and noted that he had two percent permanent impairment of the right
lower extremity.
By decision dated November 13, 2018, OWCP granted appellant a schedule award for one
percent permanent impairment of the right lower extremity. The period of the award ran for 2.88
weeks from December 1 to 21, 2016.
Appellant appealed to the Board. By decision dated June 11, 2019, the Board set aside the
November 13, 2018 decision. The Board noted that both Dr. Mayeux-Herbert and the DMA had
applied a GMCS even though the diagnostic testing results had been used to identify the diagnosis.
The Board further found that the DMA had failed to explain his finding of a GMFH of one in
concluding that appellant had one percent permanent impairment of the right lower extremity. The
Board remanded the case for OWCP to obtain a supplemental report from the DMA.
On July 27, 2019 the DMA again identified a CDX of 1 for a sesamoid fracture under Table
16-2 on page 501, which yielded a default value of one percent. He applied GMFH and GMPE of
one, noting that a GMCS was not applicable. The DMA advised that Dr. Mayeux-Herbert had
erred in applying the net adjustment formula and finding an adjustment of one when the value after
the net adjustment was zero. He advised that appellant had no adjustment from the default value
of one percent. The DMA indicated that Dr. Mayeux-Herbert had also found a GMFH of one.
By decision dated August 27, 2019, OWCP granted appellant a schedule award for one
percent permanent impairment of the right lower extremity. The period of the award ran for 2.88
weeks from December 1 to 21, 2016.
LEGAL PRECEDENT
The schedule award provisions of FECA,5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
5

Supra note 1.

6

20 C.F.R. § 10.404.

3

the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009.7 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability
and Health (ICF).9 Under the sixth edition, the evaluator identifies the impairment CDX, which
is then adjusted by grade modifiers based on GMFH, GMPE, and GMCS.10 The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11 Evaluators are directed to
provide reasons for their impairment choices, including the choices of diagnoses from regional
grids and calculations of modifier scores.12
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified.13
ANALYSIS
The Board finds that this case is not in posture for decision.
In support of his claim, appellant submitted a December 1, 2016 impairment evaluation
report from Dr. Mayeux-Herbert. Dr. Mayeux-Herbert identified the CDX as 1 for a fragmented
sesamoid bone with right great toe pain and a mild motion deficit, which she found yielded two
percent impairment of the right lower extremity. She applied grade modifiers of one for each
category, which she found yielded no adjustment from the default category. Dr. Mayeux-Herbert
noted that a right foot MRI scan had verified the sesamoid bone fragmentation. A DMA reviewed
her findings and found one percent permanent impairment of the right lower extremity.
On prior appeal, the Board remanded the case for the DMA to clarify his opinion. In a
report dated July 27, 2019, the DMA noted that both he and Dr. Mayeux-Herbert had applied grade
7
For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also id. at Chapter 3.700, Exhibit 1 (January 2010).
8

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

9

A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
10

Id. at 494-531.

11

Id. at 411.

12

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

13

See supra note 7 at Chapter 2.808.6(f) (March 2017).

4

modifiers of one for GMFH and GMPE. He advised that she had erred in applying the net
adjustment formula and finding an adjustment of one when the value after the net adjustment was
zero. The DMA concluded that appellant had one percent permanent impairment of the right lower
extremity.
OWCP accepted tenosynovitis of the right foot and ankle. Both Dr. Mayeux-Herbert and
the DMA rated the extent of appellant’s permanent impairment using the diagnosis of a
nondisplaced sesamoid bone, which yields a default value of one under Table 15-5 on page 505.
The August 26, 2015 MRI scan of appellant’s right foot, however, showed a fragmented sesamoid
bone, which yields a default value of five percent rather than one percent according to Table 155. Neither Dr. Mayeux-Herbert nor the DMA explained their use of a nondisplaced sesamoid bone
rather than fragmented sesamoid bone as the CDX for impairment rating purposes.
Proceedings under FECA are not adversarial in nature and, while the claimant has the
burden of proof to establish entitlement to compensation, OWCP shares responsibility in the
development of the evidence to see that justice is done.14 The case will be remanded for OWCP
to prepare an updated statement of accepted facts, including the results of the MRI scan, and to
refer appellant to an appropriate specialist for an impairment evaluation to determine the extent of
his right lower extremity permanent impairment. After this and any further development deemed
necessary, it should issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

14

J.O., Docket No. 17-1156 (issued September 13, 2017).

5

ORDER
IT IS HEREBY ORDERED THAT the August 27, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: December 2, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6