United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ALBANY VETERANS HOSPITAL, Albany, NY,
Employer
__________________________________________

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

Docket No. 18-1723
Issued: May 1, 2019

Case Submitted on the Record

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

JURISDICTION
On September 13, 2018 appellant, through counsel, filed a timely appeal from a July 26,
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.3

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.

3
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.

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
This case has previously been before the Board.4 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 12, 2013 appellant, then a 48-year-old nurse, filed a traumatic injury claim (Form
CA-1) alleging that, on June 11, 2013, she developed cervical neck pain with radiating arm
numbness while turning a patient over in bed. When the patient pushed against her, she felt a pop
in her neck. Appellant noted that she had previously undergone a cervical laminectomy. She
stopped work on the date of injury. On March 13, 2015 OWCP accepted the claim for herniated
nucleus pulposus (HNP) at C6-7.
On June 16, 2015 appellant filed a claim for a schedule award (Form CA-7).
In a January 14, 2016 treatment note, Dr. John Whalen, a Board-certified orthopedic
surgeon, noted that appellant had neck pain and right arm symptoms. He opined that she continued
with a permanent 75 percent disability causally related to the June 11, 2013 employment injury.
Dr. Whalen opined that appellant had reached maximum medical improvement.
By development letter dated February 1, 2016, OWCP advised appellant that additional
evidence was necessary to establish her schedule award claim. It requested that she submit an
impairment evaluation from her attending physician in accordance with the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).5 OWCP afforded appellant 30 days to submit the necessary evidence.
In a February 11, 2016 treatment note, Dr. Whalen reiterated his opinion that appellant
continued with a permanent 75 percent disability causally related to her June 11, 2013 employment
injury.
By decision dated March 18, 2016, OWCP denied the claim for a schedule award. It found
that the evidence of record was insufficient to establish that appellant sustained permanent
impairment of a scheduled member or function of the body due to her accepted work injury.
OWCP explained that the medical documentation on file did not include a final rating of permanent
impairment and a discussion of the rationale for calculation of the impairment, with reference to
the applicable criteria and tables of the A.M.A., Guides.

4

Docket No. 14-1776 (issued November 14, 2014). The Board remanded the case for further development as to
whether appellant had established that her diagnosed cervical condition was causally related to the accepted June 11,
2013 employment incident.
5

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

2

On March 29, 2016 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative, which was held on November 8, 2016.
Appellant submitted a November 4, 2016 report wherein Dr. Whalen noted that appellant
returned for follow-up of the fusion to C6-7/C5-7 performed on November 25, 2013. Dr. Whalen
explained that her symptoms were ongoing with pain in the anterior upper arm. He reiterated his
opinion that appellant had 75 percent disability.
By decision dated December 28, 2016, OWCP’s hearing representative affirmed the
March 18, 2016 decision. He found that Dr. Whalen failed to provide findings, citations, and
calculations regarding the degree of permanent impairment, utilizing the A.M.A., Guides to
support the opinion rendered. The hearing representative concluded that as the case file was devoid
of such medical evidence permanent impairment could not be determined.
On January 26, 2017 appellant, through counsel, requested reconsideration and submitted
new medical evidence from Dr. Stewart Kaufman, a Board-certified orthopedic surgeon.
In a December 19, 2016 report, Dr. Kaufman noted appellant’s history of injury and
treatment. He explained that, in January 2013, she had undergone a C5-6 cervical discectomy and
decompression, and on November 25, 2013 she had undergone a C6-7/C5-7 extension of the fusion
surgery. On January 28, 2016 a magnetic resonance imaging (MRI) scan revealed C4-5 disc
changes. Dr. Kaufman diagnosed cervical sprain with C5-6 herniated disc, C6-7 status post
revision surgery, with fusion C5-7, and now C4-5 disc changes, and moderate right carpal tunnel
syndrome. He utilized the A.M.A., Guides, Table 17-2, through Table 17-96 explaining that
appellant’s C5-6 and C5-7 fusion and discectomies resulted in 15 percent whole person
impairment. Dr. Kaufman referred to Table 15-11,7 and opined that appellant had 25 percent right
upper extremity impairment.
In a March 30, 2017 report, Dr. Michael M. Katz, a Board-certified orthopedic surgeon
serving as an OWCP district medical adviser (DMA), noted that the A.M.A., Guides do not allow
a schedule award for the spine, nor does it recognize a whole person impairment, except for the
lung. He explained that The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using
the Sixth Edition (July/August 2009) (The Guides Newsletter), must be utilized to assess
impairment with regard to spinal nerve impairments. Dr. Katz recommended that Dr. Kaufman be
afforded the opportunity to submit a supplemental report. He advised that, if Dr. Kaufman was
unable to comply, he recommended a second opinion impairment evaluation with a Board-certified
specialist in physical medicine and rehabilitation or orthopedic surgery who was familiar with the
A.M.A., Guides.
By development letter dated April 13, 2017, OWCP provided Dr. Kaufman with a copy of
the DMA’s March 31, 2017 report and requested that he provide an addendum report to address
the DMA’s concerns.
By letter dated May 23, 2017, counsel provided a May 10, 2017 addendum from
Dr. Kaufman. Dr. Kaufman recommended a repeat electromyography (EMG) study of the cervical
6

Id. at 575-81.

7

Id. at 420.

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spine and the upper extremities to provide objective findings, as this could seriously impact the
impairment rating. He also noted that an evaluation by a neurologist was appropriate.
In a June 20, 2017 report, the DMA agreed that a second opinion evaluation should be
scheduled and that a neurological consultation and electrodiagnostic testing was warranted.
By letter dated August 25, 2017, OWCP referred appellant for a second opinion
examination with Dr. Patrick Hughes, a Board-certified neurologist.
In a September 13, 2017 report, Dr. Hughes noted appellant’s history and related that he
utilized the July/August 2009 The Guides Newsletter. He noted that appellant’s EMG and nerve
conduction velocity (NCV) studies were normal, but found that she had six percent upper extremity
permanent impairment.
In a November 9, 2017 memorandum of telephone call, OWCP contacted appellant and
confirmed that she had not yet undergone an EMG study.
On November 21, 2017 OWCP referred appellant for an EMG study on December 4, 2017,
with Dr. Steven Weinstein, Board-certified in pain medicine and physical medicine and
rehabilitation. Dr. Weinstein opined that she had moderate right median neuropathy at the wrist,
mild left median neuropathy at the wrist, no evidence of right or left ulnar neuropathy, and no
evidence of right or left C5-T1 radiculopathy.
In a January 31, 2018 addendum, Dr. Hughes opined that appellant had 20 percent
scheduled loss of use for her carpal tunnel on the right hand due to numbness over the first three
fingers.
In a May 9, 2018 report, Dr. Hughes explained that he saw appellant for follow-up and
noted that he initially attributed her numbness in the second, third, and fourth fingers to C6 and
C7 radiculopathies. However, after reviewing the EMG studies, he found that her numbness was
due to carpal tunnel syndrome, as documented by the December 4, 2017 EMG and NCV studies,
and was not due to cervical radiculopathy. Dr. Hughes opined that since there was no evidence of
radiculopathy, appellant had no permanent impairment caused by her cervical condition.
In a July 23, 2018 report,8 Dr. Katz, the DMA, explained that the December 4, 2017
EMG/NCV study, demonstrated that appellant had no evidence of right or left C5-T1
radiculopathy. He noted that Dr. Hughes found an intact motor examination and sensory changes
compatible with median nerve entrapment, rather than dermatomal loss. Dr. Katz opined that
appellant had no permanent impairment pursuant to The Guides Newsletter.
By decision dated July 26, 2018, OWCP denied modification of its prior decision. It found
no permanent impairment associated with the accepted work-related condition.

8

The report is dated July 23, 2017; however, this is a typographical error.

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LEGAL PRECEDENT
The schedule award provisions of FECA9 and its implementing federal regulations,10 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use of specified members of the body. However, FECA does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides has
been adopted by OWCP as the standard for evaluation of schedule losses and the Board has
concurred in such adoption.11 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides.12
No schedule award is payable for a member, function, or organ of the body not specified
in FECA or in the regulations.13 Because neither FECA, nor the regulations provide for the
payment of a schedule award for the permanent loss of use of the spine,14 no claimant is entitled
to such an award.15 However, in 1966, amendments to FECA modified the schedule award
provision to provide for an award for permanent impairment to a member of the body covered by
the schedule regardless of whether the cause of the impairment originated in a scheduled or
nonscheduled member. As the schedule award provision of FECA includes the extremities, a
claimant may be entitled to a schedule award for permanent impairment to an extremity, even
though the cause of the impairment originated in the spine.16
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides has offered an alternative
approach to rating spinal nerve impairments.17 OWCP has adopted this approach for rating
permanent impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures, which memorializes proposed tables outlined in a

9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

11

Id. at § 10.404(a).

12
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.6 (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and
Exhibit 1 (January 2010).
13

B.W. Docket No. 18-1415 (issued March 8, 2019). J.M., Docket No. 18-0856 (issued November 27, 2018);
Pamela J. Darling, 49 ECAB 286 (1998).
14

FECA specifically excludes the back from the definition of organ. 5 U.S.C. § 8101(19).

15

Thomas Martinez, 54 ECAB 623 (2003).

16

J.M., supra note 13; see Thomas J. Engelhart, 50 ECAB 319 (1999).

17

R.B., Docket No. 17-1995 (issued August 13, 2018); Rozella L. Skinner, 37 ECAB 398 (1986).

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July/August 2009 The Guides Newsletter.18 Specifically, OWCP will address upper extremity
impairment originating in the spine through Table 15-14.19
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
In support of her claim for a schedule award, appellant submitted January 14, February 11,
and November 4, 2016 treatment notes from Dr. Whalen generally opining that she had 75 percent
disability causally related to her work injury. She also submitted a December 19, 2016 report from
Dr. Kaufman, who opined that she had 15 percent whole person impairment, or 25 percent right
upper extremity impairment. However, a schedule award is only payable for permanent
impairment originating in the spine if permanent impairment of an extremity is established
pursuant to The Guides Newsletter.20 A schedule award is not payable for whole person
impairment.21 Drs. Whalen and Kaufman did not indicate that appellant had sustained any
permanent impairment of the upper extremities due to the accepted cervical herniated disc at C6-7,
pursuant to The Guides Newsletter.22 As such, their reports are of limited probative value.
In a September 13, 2017 report, Dr. Hughes, the second opinion physician, related that he
had used the July/August 2009 The Guides Newsletter and determined that appellant had six
percent upper extremity impairment, however, he did not initially review an EMG report to
determine sensory or motor loss. As The Guides Newsletter rates permanent impairment based
upon sensory or motor loss, this initial report did not meet the standards of The Guides
Newsletter.23 Dr. Hughes provided a January 31, 2018 addendum and opined that appellant had a
20 percent permanent impairment due to carpal tunnel of the right hand due to numbness over the
first three fingers. In a May 9, 2018 report, he explained that while he initially attributed her
numbness in the second, third, and fourth fingers of the right hand to C6 and C7 radiculopathies,
after reviewing the December 4, 2017 EMG and NCV studies, he determined that appellant’s
numbness was due to carpal tunnel syndrome, and not cervical radiculopathy. With respect to a
schedule award, it is the claimant’s burden of proof to establish permanent impairment of the
scheduled member as a result of his or her employment injury. As carpal tunnel syndrome was
not an accepted condition and Dr. Hughes did not establish that this condition was causally related

18

Supra note 13 at Chapter 3.700, Exhibit 1, (January 2010); The Guides Newsletter is included as Exhibit 4.

19

Supra note 6 at 425.

20

R.H., Docket No. 17-1017 (issued December 4, 2018).

21

See S.D., Docket No. 18-0855 (issued November 28, 2018).

22

Id.

23

See B.W., Docket No. 18-1415 (issued March 8, 2019).

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to the accepted employment injury, appellant is not entitled to a schedule award for her carpal
tunnel syndrome condition.24
Regarding appellant’s accepted cervical condition, Dr. Hughes opined that based upon her
EMG and NCV studies, there was no evidence of radiculopathy, and she therefore had no
permanent impairment under The Guides Newsletter due to the accepted cervical condition. On
July 23, 2018 Dr. Katz, serving as the DMA, properly reviewed Dr. Hughes’ reports and agreed
that appellant did not have a ratable impairment as appellant had no evidence of right or left
cervical radiculopathy. A schedule award based upon a cervical condition is proper under The
Guides Newsletter only if there is objective evidence of cervical radiculopathy, which has caused
sensory loss or motor weakness.25 Dr. Hughes and Dr. Katz therefore properly found that, lacking
these findings, appellant was not entitled to a schedule award. Therefore their opinions carry the
weight of the medical evidence.
It is appellant’s burden of proof to establish a permanent impairment of a scheduled
member or function of the body as a result of an employment injury.26 She did not submit such
evidence and both the second opinion physician and the DMA found that she had no permanent
impairment. Thus, appellant has not met her burden of proof to establish her schedule award
claim.27
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

24

T.W., Docket No. 16-0176 (issued January 10, 2018); Edward Spohr, 54 ECAB 806, 810 (2003); Tammy L.
Meehan, 53 ECAB 229 (2001).
25

See D.A., Docket No. 18-0779 (issued December 12, 2018).

26

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

27

See R.H., Docket No. 17-1069 (issued June 6, 2018); D.M., Docket No. 17-1128 (issued November 22, 2017).

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ORDER
IT IS HEREBY ORDERED THAT the July 26, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 1, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
DEPARTMENT OF THE ARMY, ANNISTON
ARMY DEPOT, Anniston, AL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-771
Issued: June 25, 2013

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On February 13, 2013 appellant filed a timely appeal from a November 5, 2012 Office of
Workers’ Compensation Programs’ (OWCP) merit decision which denied his claim for a
schedule award due to hearing loss and a January 15, 2013 nonmerit decision; OWCP File No.
xxxxxx228. The Board docketed the appeal as Docket No. 13-771.
The Board has duly considered the matter and finds that the case is not in posture for
decision.
The record before the Board indicates that appellant has three separate claims for hearing
loss due to his federal employment. The record further indicates that appellant received a
schedule award for 12 percent binaural (both ears) hearing loss under File No. xxxxxx443.1
OWCP further evaluated his permanent impairment due to hearing loss under File No.
xxxxxx732 and denied an additional schedule award on July 31, 2009. Appellant filed a third
occupational disease claim for hearing loss on March 14, 2012, File No. xxxxxx228, and a
request for an additional schedule award on August 25, 2012.
1

By decision dated March 4, 2002 in File No. xxxxxx443, the Board affirmed OWCP’s refusal to reopen
appellant’s claim on the merits on the issue of whether appellant had greater than a 12 percent binaural loss of
hearing, for which he received a schedule award. Docket No. 01-1646 (issued March 4, 2002).

An OWCP medical adviser reviewed the claim on October 17, 2012 and stated that
appellant retired from federal employment on June 30, 2006.2 He stated, “It is known that noiseinduced hearing loss does not progress following removal from the noisy environment. Any
increase in hearing loss after the date of retirement is not due to noise exposure encountered
during [f]ederal employment.” The Board has long recognized that if a claimant’s employmentrelated hearing loss worsens in the future, he may apply for an additional schedule award for any
increased permanent impairment. The Board has also recognized that a claimant may be entitled
to a schedule award for increased hearing loss, even after exposure to hazardous noise has
ceased, if causal relationship is supported by the medical evidence of record.3 In Adelbert E.
Buzzell,4 the Board cautioned against an OWCP medical adviser providing a blanket
unrationalized statement that hearing loss does not progress following the cessation of hazardous
noise exposure.5
The Board finds that OWCP did not properly develop the factual and medical evidence in
this claim. OWCP improperly relied on the medical adviser’s blanket unrationalized statement
that appellant’s employment-related hearing loss did not progress and OWCP failed to combine
appellant’s hearing loss claims. Pursuant to its procedures, OWCP has determined that cases
should be combined when correct adjudication of the issues depends on frequent cross-reference
between files. Therefore, for a full and fair adjudication, appellant’s claims should be doubled.6
On remand OWCP shall combine File Nos. xxxxxx228, xxxxxx732 and xxxxxx228 and
following any further development deemed necessary, issue an appropriate decision.

2

The Board notes that the limited documentation available from File No. xxxxxx732 indicates that appellant
continued to be exposed to noise through June 11, 2009.
3

J.R., 59 ECAB 710, 713 (2008).

4

34 ECAB 96 (1982).

5

The Federal (FECA) Procedure manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.4(b)(3)
(January 2010) notes that if the progression of a noise-induced hearing loss is to be denied, the medical adviser must
provide a well-reasoned opinion.
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance & Management, Chapter 2.400.8(c)
(February 2000).

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IT IS HEREBY ORDERED THAT the January 15, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: June 25, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Tulsa, OK, Employer
__________________________________________

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

Docket No. 20-1528
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 20, 2020 appellant, through counsel, filed a timely appeal from a July 15, 2020
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 she sustained
an injury in the performance of duty on March 10, 2017, as alleged.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as presented
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On March 10, 2017 appellant, then a 60-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that, at approximately 12:00 p.m. on that date, her
knees and wrists were scratched, bloodied and swollen when she tripped on uneven pavement
when she was walking to work while in the performance of duty. A coworker, S.G., provided a
statement on the Form CA-1 noting that while walking to work on March 10, 2017 she saw
appellant lying on the ground under the covered sidewalk on B side parking. Appellant informed
S.G. that she tripped on the sidewalk. On the reverse side of the claim form, the employing
establishment controverted the claim contending that appellant was not in the performance of duty
when she was injured, as the incident occurred before the start of her work shift, she was off
premises and was not engaging in official duties. It noted that her work schedule was 12:00 p.m.
to 8:30 p.m., Tuesday through Saturday. Appellant did not stop work.
In a March 20, 2017 development letter, OWCP advised appellant of the deficiencies of
her claim. It informed her of the type of factual and medical evidence needed to establish her
claim and provided her with a factual questionnaire for her completion. In a separate development
letter of even date, OWCP requested that the employing establishment provide information
regarding the location and time of appellant’s injury. It afforded both parties 30 days to submit
the requested information.4
OWCP received medical evidence, including treatment notes dated March 13, 2017 from
Dr. Homer Hardy, an osteopath, diagnosing contusions of both knees.
On March 23, 2017 the employing establishment controverted appellant’s claim, asserting
that appellant’s injury occurred at 11:56 a.m. on March 10, 2017, but that her work shift did not
3

Docket No. 18-0617 (issued February 13, 2019).

4
Appellant submitted numerous reports to the record dating from March 10, 2017. On April 7 and 25, and June 26,
2017 Dr. Robert Coye, a Board-certified internist, diagnosed right medial knee pain. On May 9 and 30, June 1 and 6,
and July 18, 2017 Dr. James D. Cash, a Board-certified orthopedic surgeon, diagnosed bilateral knee contusions. On
June 2, 2017 Dr. Kelly Lindauer, a Board-certified diagnostic radiologist, reviewed appellant’s magnetic resonance
imaging (MRI) scan and found tear of the medial meniscus, chondromalacia, and effusion. Dr. Thomas Kern, a Boardcertified internist, examined appellant on July 31, 2017 and diagnosed derangement of medial meniscus of both knees.
Dr. Seth Migdalski, a psychiatrist, examined appellant on October 30, 2017 for emotional conditions. Appellant also
submitted numerous reports from Timothy Marlow, Chad Perkins, Dianne Briscoe, and Eve Fitzpatrick, physician
assistants, as well as notes from Whitney Ellsworth, a physical therapist. See M.M., Docket No. 17-1641 (issued
February 15, 2018); K.J., Docket No. 16-1805 (issued February 23, 2018).

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begin until 12:00 p.m. It noted that she had not clocked in for duty and was not in any work
location when the injury occurred. The employing establishment reported that it did not own,
lease, or maintain the area where appellant’s injury occurred. It further noted that it did not direct
her to park her car in any of the various public parking lots that surrounded her duty station. J.M.,
an AirServ supervisor, witnessed appellant’s fall and described the location as occurring on the
sidewalk coming up from B side parking.
By decision dated April 25, 2017, OWCP denied appellant’s traumatic injury claim finding
that the evidence submitted was insufficient to establish that she was injured in the performance
of duty. It found that she was not reasonably fulfilling the duties of her employment or doing
something incidental thereto at the time of her injury, that she had not begun her tour of duty, and
was walking on a public sidewalk toward the employing establishment. OWCP noted that under
FECA, an employee who is injured off premises while commuting to work is not in the course of
employment.
On May 4, 2017 counsel requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review.
In an e-mail to counsel dated July 16, 2017, appellant reported that she fell on the sidewalk
between the employee parking lot and the employing establishment office. She noted that she paid
for parking with the Green Option Commuter Card (For Federal Government Transit Subsidy Use
Only). Appellant’s card allotted $240.00 and she paid parking costs of $135.00 every six months.
She indicated that she would fax counsel a copy of the employer-paid parking receipt from
July 14, 2017.
In a letter dated July 31, 2017, counsel indicated that he was providing OWCP with medical
records, physical therapy notes, and a “copy of the receipt and the subsidized public transportation
pass paid for by the employing agency.”
Appellant testified during an oral hearing on October 6, 2017 before an OWCP hearing
representative. She alleged that she was required to wear a uniform for her position, but that the
employing establishment regulated the activities she could perform in uniform. Appellant testified
that the employing establishment rented a portion of the airport parking lot for its employees and
assigned them a place to park. The employing establishment required employees to go straight
from the parking lot to the employing establishment without diversion. Appellant asserted that her
parking was fully paid for by the employing establishment, and that she had to park in an assigned
area otherwise her car would be booted. She noted that the employing establishment provided her
with a commuter payment card and a placard for her car. Appellant testified that there was only
one sidewalk from the parking lot to her duty station and that no other route was available. She
noted that the parking area in question was encircled by a six-foot fence and that she had a badge
for that parking area. Appellant again alleged that she could not enter the employing establishment
from another parking location. She noted that other airport employees parked in the fenced lot
including pilots and stewardesses. Counsel contended that it was not plausible that the employing
establishment was not in control of the area as they paid for parking and that there was only one
entrance that appellant could utilize to get to her duty station.

3

On December 5, 2017 the employing establishment terminated appellant’s employment. It
noted that her appointment was subject to completion of a two-year trial period. The termination
was noted to promote the efficiency of the service and was primarily based on her extensive use
of leave.
By decision dated December 18, 2017, OWCP’s hearing representative found that
appellant was injured on the sidewalk between the off-premises parking lot and the worksite. She
noted that there was no evidence that the employing establishment controlled or maintained the
area where the fall occurred. OWCP’s hearing representative determined that the facts did not
establish an exception to the premises rule and that appellant’s injury did not arise out of and in
the course of her federal employment.
Appellant, through counsel, appealed to the Board. In its February 13, 2019 decision, 5 the
Board set aside the December 18, 2017 decision and found that the case was not in posture for
decision as OWCP had not properly developed the factual evidence to establish whether the
secured parking facility and the covered sidewalk were in control of the employing establishment
such that appellant was on the premises when injured. The Board remanded the case for further
development and a de novo decision.
In an April 2, 2019 development letter, OWCP requested that the employing establishment
provide a diagram demonstrating the boundaries of its premises and the location of appellant’s
injury site in relation to those premises.
On April 16, 2019 the employing establishment submitted several photographs with
notations identifying parking lot B, the sidewalk maintained by the Tulsa Airport Authority,
identified as the general area where appellant fell, and the employees’ entrance.
In an April 24, 2019 e-mail, OWCP requested that the employing establishment respond to
the remainder of the questions posed by the Board. In response, the employing establishment
reported that appellant was not required to park in parking lot B. It further noted that there were
various locations where she could have chosen to park, as parking lot A and B were open to all
employees that worked at the airport and maintained by American Parking. The employing
establishment further noted that there was an additional American Parking lot, and a lot maintained
by Fine Parking. It reported that parking lot B was opened to all employees of the airport, not just
its employees; however, it was not open to the general traveling public. The employing
establishment noted that it provided a parking subsidy to appellant, not a specific parking space,
and that she could have chosen not to accept it. It reported that she was not assigned to parking
lot B, that it did not assign or provide parking, but that it provided an optional subsidy to help to
pay for parking. The employing establishment denied responsibility for monitoring or inspecting
the parking lots for security purposes and added that it did not pay a third party for those services.
It reported that the covered sidewalk where appellant fell was the normal route that she would have
traveled after parking in lot B.
By decision dated May 16, 2019, OWCP denied appellant’s traumatic injury claim finding
that her injury did not occur in the performance of duty as she was not on the employing
5

Supra note 2.

4

establishment premises at the time her injury occurred. On May 21, 2019 appellant, through
counsel, requested an oral hearing before a representative of OWCP’s Branch of Hearings and
Review, which was held on August 27, 2019.
Appellant testified before an OWCP hearing representative and asserted that the general
public did not park in lot B. She further asserted that the general public did not use the sidewalk
where she fell, that it was the only way to get from parking lot B to the building, and that she paid
more to park in lot B as it was closer to her duty station than lot A. Appellant reported that there
was no mass public transit to the airport, only taxis or other automobile-based modes of transport.
By decision dated October 3, 2019, OWCP’s hearing representative vacated the May 16,
2019 decision. She remanded the case and directed OWCP to ascertain whether the employing
establishment was accessible to employees via public transportation and whether any employees,
in fact, traveled to work using public transportation.
On October 17, 2019 appellant provided a link to the Tulsa Transit System and noted that
it did not list the airport as a destination.
In a letter dated November 15, 2019, the employing establishment reported that the Tulsa
Transit System provided public transportation to and from the airport. It was located curbside
outside of baggage claim. The employing establishment noted that only one employee had utilized
this form of transportation. It also noted that taxi, other private vehicle transport, and airport
shuttle services were provided by the parking companies.
By decision dated December 31, 2019, OWCP denied appellant’s claim finding that she
was not injured in the performance of duty. On January 6, 2020 appellant, through counsel,
requested an oral hearing from a representative of OWCP’s Branch of Hearings and Review, which
was held on May 14, 2020.
Appellant testified before an OWCP hearing representative and asserted that at the time of
her injury on March 10, 2017 there was no public transportation available to the employing
establishment due to construction on the airport premises. Ap pellant alleged that she had no choice
but to park in a lot at the airport. She noted that Tulsa had instituted a new bus service in 2019,
the Aero bus. Appellant testified that she was not currently working due to her knee conditions
and had undergone surgery on one knee.
By decision dated July 15, 2020, OWCP’s hearing representative found that there were
public parking lots available to appellant, that she chose to park in lot B, even though it was more
expensive, and that the employing establishment did not contract for parking lot B, maintain it,
police it, or otherwise demonstrate any control over parking lot B or the walkway where appellant
fell. He noted that were other means of ingress to the work facility, particularly those routes from
lot A, such that the walkway were appellant fell was not the only access to work. OWCP’s hearing
representative found that appellant was not on the premises when her March 10, 2017 injury
occurred and was, therefore, not in the performance of duty.

5

LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 6 that an injury was sustained in the performance of duty as alleged and
that any disability or specific condition for which compensation is claimed is causally related to
the employment injury. 7 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease. 8
The phrase “sustained while in the performance of duty”9 Has been interpreted by the
Board to be the equivalent of the commonly found prerequisite in workers’ compensation law of
“arising out of and in the course of employment.”10 To arise in the course of employment,11 in
general, an injury must occur: (1) at a time when the employee may reasonably be said to be
engaged in the master’s business; (2) at a place where he or she may reasonably be expected to be
in connection with the employment; and (3) while he or she was reasonably fulfilling the duties of
her employment or engaged in doing something incidental thereto.12
It is well established as a general rule of workers’ compensation law that, as to employees
having fixed hours and places of work, injuries occurring on the premises of the employing
establishment, while the employees are going to or from work, before or after working hours or at
lunch time, are compensable13 but if the injury occurs off the premises, it is not compensable,
subject to certain exceptions. The Board has previously found that the term “premises” as it is
generally used in workers’ compensation law, is not synonymous with “property” because it does
not depend solely on ownership. The term “premises” may include all the property owned by the
employing establishment. In other instances, even if the employing establishment does not have

6

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
7

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); Kathryn Haggerty, 45 ECAB
383, 388 (1994); James E. Chadden, Sr., 40 ECAB 312 (1988).
8

See S.B., supra note 6; Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

9

5 U.S.C. § 8102(a); S.S., Docket No. 20-1349 (issued February 16, 2021); J.K., Docket No. 17-0756 (issued
July 11, 2018).
10

This construction makes the statute actively effective in those situations generally recognized as properly
within the scope of workers’ compensation law. J.K., id.; Bernard D. Blum, 1 ECAB 1 (1947).
11

See L.P., Docket No. 17-1031 (issued January 5, 2018).

12

T.F., Docket No. 08-1256 (issued November 12, 2008); Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

13

L.P., supra note 11; Narbik A. Karamian, 40 ECAB 617, 618 (1989). The Board has also applied this general
rule of workers’ compensation law in circumstances where the employee was on an authorized break. See Eileen R.
Gibbons, 52 ECAB 209 (2001).

6

ownership and control of the place of injury, the place may nevertheless still be considered part of
the premises. 14
The Board has also held that the factors, which determine whether a parking area used by
employees may be considered part of the employing establishment’s premises include whether the
employing establishment contracted for the exclusive use by its employees of the parking area,
whether parking spaces in the area were assigned by the employing establishment to its employees,
whether the parking areas were checked to see that no authorized cars were parked in the area,
whether parking was provided without cost to the employees, whether the public wa s permitted to
use the area, and whether other parking was available to the employees. Mere use of a parking
facility alone is insufficient to bring the parking area within the premises of the employing
establishment. The premises doctrine is applied to those cases where it is affirmatively
demonstrated that the employing establishment owned, maintained, or controlled the parking
facility, used the facility with the owner’s special permission, or provided parking for its
employees. 15
As noted above, there are exceptions to the premises rule, and one is the proximity
exception, which allows constructive extension of the premises to those hazardous conditions,
which are proximate to the premises and may, therefore, be considered as hazards of the
employment.16 Underlying the proximity exception is the principle that course of employment
should extend to an injury that occurred at a point where the employee was within the range of
dangers associated with the employment. 17 The most common ground of extension is that the offpremises point at which the injury occurred lies on the only route, or at least on the normal route,
which employees must traverse to reach the premises, and that, therefore, the special hazards of
that route become the hazards of the employment. 18 This exception contains two components.
The first is the presence of a special hazard at the particular off-premises point. The second is the
close association of the access route with the premises, so far as going and coming are concerned.19

14

S.S., supra note 9; C.L., Docket No. 19-1985 (issued May 12, 2020); Wilmar Lewis Prescott, 22 ECAB 318,
321 (1971).
15

Federal (FECA) Procedure Manual, Part 2 - Claims, Performance of Duty, Chapter 2.804.(4)(f) (August 1992);
C.L., id.; R.K., Docket No. 18-1269 (issued February 15, 2019); Diane Bensmiller, 48 ECAB 675 (1997); Rosa M.
Thomas-Hunter, 2 ECAB 500 (1991); see also Edythe Erdman, 36 ECAB 597 (1985); Karen A. Patton, 33 ECAB
487 (1982); R.M., Docket No. 07-1066 (issued February 6, 2009).
16

D.K., Docket No. 11-1029 (issued February 1, 2012).

17

See J.K., supra note 9; Jimmie Brooks, 54 ECAB 248 (2002); Syed M. Jawaid, 49 ECAB 627 (1998).

18

Arthur & Lex Larson, The Law of Workers’ Compensation § 13.01(3). See also J.K, supra note 9; R.O., Docket
No. 08-2088 (issued May 18, 2009).
19

Id. at § 13.01(3)(b); L.P., supra note 11; Wilmar Lewis Prescott, supra note 14. Another exception to the rule is
the proximity rule, which the Board has defined by as where, under special circumstances, the industrial premises are
constructively extended to hazardous conditions, which are proximately located to the premises and may, therefore,
be considered as hazards of the employing establishment. The main consideration in applying the rule is whether the
conditions giving rise to the injury are causally connected to the employment. See William L. McKenney, 31 ECAB
861 (1980).

7

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty on March 10, 2017, as alleged.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s December 18, 2017 merit decision because
the Board considered that evidence in its February 13, 2019 decision. Findings made in prior
Board decisions are res judicata absent any further review by OWCP under section 8128 of
FECA.20
The Board has held that the premises of the employer are generally extended when an
employee must travel a public thoroughfare to traverse between two premises of the employer. 21
In order to determine whether the covered sidewalk between the employing establishment and
parking lot B, where appellant’s March 10, 2017 fall occurred, should be considered part of the
employing establishment’s premises, the Board must first consider the factors necessary to
determine whether parking lot B was under sufficient control of the employing establishment to
constitute its premises.22 As noted above, in determining whether a parking lot or garage should
be considered part of the employing establishment’s premises, the Board must consider such
factors as whether the employing establishment contracted for its exclusive use by its employees,
whether the employing establishment assigned parking spaces, whether the parking area was
checked to see that no unauthorized cars were parked in the parking area, whether the public was
permitted to use the parking area, whether parking was provided without cost to the employees,
and whether other parking was available to the employees. 23
The Board finds that appellant has not established that parking lot B, was exclusively or
principally used by employees of the employing establishment. Appellant and the employing
establishment have agreed that parking lot B was open to airport employees as well as those of the
employing establishment. The parties agree that the employing establishment did not assign the
space or the lot in which appellant parked. Both parties also agree that appellant could have parked
in lot A or B or in other public parking locations at the airport. Appellant chose to park in lot B as
it was closest to the employing establishment entrance and paid a premium above the parking
subsidy allotment provided to her to park in that lot.24 While she noted that parking lot B was the

20

See B.R., Docket No. 17-0294 (issued May 11, 2018); Clinton E. Anthony, Jr., 49 ECAB 476, 479 (1998); see
also 20 C.F.R. § 501.6(d).
21

R.B., Docket No. 11-1320 (issued September 5, 2012).

22

R.E., Docket No. 18-0515 (issued February 18, 2020).

23

C.L., supra note 14.

24

C.B., Docket No. 12-1849 (issued January 13, 2014).

8

nearest option for all employees, she has not provided any relevant evidence to establish that she
was required to park in that parking lot or assigned specific parking space. 25
As parking lot B was not a part of the employing establishment premises, and as app ellant
was not required to park there, the off-premises point at which the injury occurred, the covered
sidewalk, does not lie on the only route or on the normal route, which employees must traverse to
reach the premises, such that the special hazards of that route become the hazards of the
employment. 26 The record reveals that there were multiple places that appellant could park on the
airport premises and, therefore, multiple ways that she could have accessed her workplace. She
did not establish within the meaning of FECA, that there were hazardous conditions proximately
located to the premises, which would establish a constructive extension.27 Rather appellant’s act
of tripping on uneven pavement was a hazard common to all travelers on the sidewalk and was not
causally related to her employment. 28 Thus, her injury constitutes an ordinary nonemployment
hazard of the journey itself, shared by all travelers. 29
As the record fails to support the application of an exception to the off -premises rule, the
Board finds that appellant did not meet her burden of proof to establish that she sustained an injury
in the performance of duty on March 10, 2017.30
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 she
sustained an injury in the performance of duty on March 10, 2017, as alleged.

25

J.B., Docket No. 17-0378 (issued December 22, 2017).

26

See F.S., Docket No. 09-1573(issued April 6, 2010) (finding that although the crosswalk where the claimant was
injured may have been the normal route to reach the employing establishment from the short-term lot, the claimant
was not required to park in the short-term lot and, by extension, was not required to use the crosswalk).
27

D.B., Docket No. 13-0510 (issued June 10, 2013).

28

F.S., supra note 26.

29

Id.

30

See Jon Louis Van Alstine, 56 ECAB 136 (2004). See also Linda S. Jackson, 49 ECAB 486 (1998).

9

ORDER
IT IS HEREBY ORDERED THAT the July 15, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.R., Appellant
and
DEPARTMENT OF THE ARMY,
ENGINEERING & MAINTENANCE
OPERATIONS, Fort Sam Houston, TX,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 07-1973
Issued: January 14, 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 July 23, 2007 appellant filed a timely appeal from the June 28, 2007 merit decision of
the Office of Workers’ Compensation Programs which awarded schedule compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
the schedule award.
ISSUE
The issue is whether appellant has more than a 5 percent impairment of his left lower
extremity or more than an 11 percent impairment of his left upper extremity.
FACTUAL HISTORY
On February 15, 2005 appellant, then a 51-year-old sheet metal mechanic, sustained an
injury in the performance of duty: “While cutting twisted metal beams, one of the steel beams
sprung up. I jumped to avoid the beam. I fell backwards on asphalt ground.” The Office

accepted appellant’s claim for neck sprain/strain; lumbar sprain/strain; bilateral sprain/strain of
shoulder/upper arm, not otherwise specified; left elbow/forearm sprain/strain, not otherwise
specified. The Office also accepted degeneration of the C4 disc; C4 disc disorder with
myelopathy; cervical spinal stenosis; cervical spinal stenosis with myelopathy; and lumbar spinal
stenosis. On October 14, 2005 appellant underwent an anterior cervical discectomy and Rabea
spacer fusion at C3-6 and anterior tether plating from C3-6.
On November 8, 2006 Dr. Arnulfo R. Garza-Vale, appellant’s neurosurgeon, offered an
impairment rating:
“Based on [appellant’s] myelopathy that he has in his cervical spine with two
areas of hyperintensity documented and clinically positive spasticity, ataxia,
weakness and burning in both upper extremities, as well as his spinal stenosis in
his lower back, according to the [f]ifth [e]dition [of the] A[merican] M[edical]
A[ssociation,] Guides to the Evaluation of Permanent Impairment page 336,
section 13.5, he has essentially a Class III spinal cord injury and, therefore, in my
opinion, rates at least 25 percent disability, whole body. Based on his lower back
condition of a foot drop with numbness in the leg, page 424, section 15.18 for
sensory and 15.16 for motor, [appellant] has a Grade 3 sensory deficit for about a
two percent impairment rating, Grade 4 for the foot drop he has on the left leg for
a three percent motor deficit, for a total of five percent. [Appellant’s] range of
motion is normal; hence, no impairment for that.
“My impression is that [appellant] has a 30 percent total body impairment rating,
permanent disability, based on the A.M.A., Guides, 5th ed. for his neck and back.”
On January 9, 2007 an Office medical adviser reported that Dr. Garza-Vale did not
describe appellant’s condition adequately to allow an impairment rating. The Office referred
appellant to Dr. Patrick W. Mulroy, a physiatrist, for a second opinion. On February 7, 2007
Dr. Mulroy described appellant’s complaints and his findings on physical examination. He
offered the following assessment:
“Impairment rating in this case is quite difficult to quantify. [Appellant’s]
treating surgeon documents a left foot drop and increased spasticity involving the
lower extremities bilaterally. I found no evidence of increased deep tendon
reflexes involving the lower extremities bilaterally pointing to a significant
cervical myelopathy. I also saw no significant objective evidence of atrophy
involving the upper or lower extremities bilaterally. [Appellant] does not
ambulate with a foot slap or any significant other gait abnormalities indicating
gross unilateral motor deficits. [Dr. Garza-Vale,] in this case, gave [appellant] 25
percent whole person disability based on gait disorders on p[age] 336 of the
[A.M.A.,] Guides. Unfortunately, this type of impairment rating is not accepted
by the [Office]. [Dr. Garza-Vale] goes on to document objective evidence of
motor and sensory deficits involving the left leg yielding two percent impairment
for sensory deficits and three percent impairment of the lower extremity for motor
deficits that mirror my physical findings on today’s visit. Therefore, [appellant]
will receive five percent impairment of the lower extremity secondary to sensory

2

and motor deficits either from the cervical or the lumbar pathology. In addition,
[he] has significant weakness involving the left C6 myotome associated with
deficits in the C6 dermatome. Impairment for the left C6 motor weakness was
calculated using [T]able 15-16/17 on page 424. Twenty five percent motor deficit
was multiplied by 35 percent maximum percent loss of function yielding 8.75
percent upper extremity impairment. This impairment was rounded up so that
appellant] will receive nine percent upper extremity impairment. [He] also has a
C6 dermatome deficit of 25 percent. Twenty-five percent of eight percent yields
two percent impairment secondary [to] sensory deficit. Combining 9 percent
impairment secondary to motor deficit with 2 percent impairment secondary to
sensory deficit yields a 10 percent impairment of the upper extremity secondary to
C6 dermatomal and myotomal dysfunction.
“In summary, [appellant] will receive 5 percent impairment of the left lower
extremity and 10 percent impairment for the left upper extremity secondary to his
on the job injuries.
“No impairment will be given for the other [accepted] conditions, including
bilateral shoulder sprains and left elbow pain.”
On April 11, 2007 an Office medical adviser reviewed Dr. Mulroy’s evaluation. As to
the left upper extremity, he noted that a 9 percent motor impairment combined with a 2 percent
sensory impairment of 11 percent impairment not 10 percent as Dr. Mulroy reported.
On June 28, 2007 the Office issued a schedule award for a five percent impairment of the
left lower extremity and an 11 percent impairment of the left upper extremity. On appeal,
appellant states that Dr. Garza-Vale determined his impairment to be 30 percent using the
A.M.A., Guides. Dr. Garza-Vale notes that [appellant] has permanent spinal cord damage and
has chronic pain 24 hours a day. He also notes that he has spinal stenosis L4-L5 with a left-sided
disc protrusion that will require surgery.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act1 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.2
To support a schedule award, the file must contain competent medical evidence that
describes the impairment in sufficient detail for the adjudicator to visualize the character and

1
2

5 U.S.C. § 8107.

20 C.F.R. § 10.404 (1999).
(5 ed. 2001).

Effective February 1, 2001 the Office began using the A.M.A., Guides

th

3

degree of disability.3 The report of the examination must always include a detailed description
of the impairment which includes, 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.4 The
Office should advise any physician evaluating permanent impairment to use the fifth edition of
the A.M.A., Guides and to report findings in accordance with those guidelines.5
The Act does not authorize the payment of schedule awards for the permanent
impairment of the “whole person.”6 Payment is authorized only for the permanent impairment of
specified members, organs or functions of the body.
No schedule award is payable for a member, organ or function of the body not specified
in the Act or in the regulations.7 Because neither the Act nor the regulations authorize a schedule
award for impairment to the back, no claimant is entitled to such an award.8 Indeed, the Act
specifically excludes the back from the definition of “organ.”9
Amendments to the Act modified the schedule award provisions to provide for an award
for permanent impairment to a member of the body covered by the schedule regardless of
whether the cause of the impairment originated in a scheduled or nonscheduled member. As the
schedule award provisions of the Act include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.10
ANALYSIS
The 30 percent impairment rating given by Dr. Garza-Vale, the attending neurosurgeon,
is not dispositive of appellant’s entitlement to compensation. The Office may not issue schedule
awards for “whole body” or “total body” impairments. The statute authorizes schedule awards
only for impairments to specified members, organs or functions of the body, such as the lower
and upper extremities.
Dr. Garza-Vale noted that the spinal cord injury was affecting appellant’s station and gait
(ambulation). Appellant may not receive an award for impairment to his spine or back per se,
3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.b(2) (August 2002).
4

Id., Chapter 2.808.6.c(1).

5

Id., Chapter 2.808.6.a (noting exceptions).

6

Ernest P. Govednick, 27 ECAB 77 (1975).

7

William Edwin Muir, 27 ECAB 579 (1976).

8

E.g., Timothy J. McGuire, 34 ECAB 189 (1982).

9

5 U.S.C. § 8101(19).

10

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

4

but may receive an award for lower limb impairment due to gait derangement,11 even though the
cause of the impairment originates in the spine. However, the A.M.A., Guides cautions against
such ratings: “Whenever possible, the evaluator should use a more specific method.”12
Dr. Garza-Vale effectively did both. He found a 25 percent “whole body” impairment due to the
effect of the spinal cord injury on appellant’s station and gait and added that to the unilateral
spinal nerve root impairments (sensory and motor) affecting the lower extremity. The A.M.A.,
Guides notes that such combinations are not allowed: “Lower limb impairment percents [due to
gait derangement] stand alone and are not combined with any other impairment evaluation
method.”13
Dr. Mulroy, the second opinion physiatrist, agreed with Dr. Garza-Vale’s more specific
rating for sensory and motor deficits affecting the lower extremities. Dr. Garza-Vale reported a
Grade 3 sensory deficit, “for about a two percent impairment rating” of the left lower extremity.
This is supported by grading scheme and procedure set forth in Table 15-15, page 424 of the
A.M.A., Guides. Dr. Garza-Vale also reported a Grade 4 motor deficit, for a three percent
impairment of the left lower extremity. The grading scheme and procedure set forth in Table 1516 supports such a rating from an impaired S1 nerve root. Dr. Mulroy and Dr. Garza-Vale both
agreed, therefore, that appellant has a five percent total impairment of the left lower extremity
due to unilateral spinal nerve root impairments which is what the Office awarded.
Dr. Mulroy also found that appellant had a unilateral spinal nerve root impairment
affecting the left upper extremity. Using the grading scheme and procedure set forth in Table
15-16, page 424 of the A.M.A., Guides, he multiplied appellant’s 25 percent motor deficit
(Grade 4) by the 35 percent maximum loss of motor function due to an impaired C6 to find a left
upper extremity impairment of 9 percent. Using the grading scheme and procedure set forth in
Table 15-15, Dr. Mulroy multiplied appellant’s 25 percent sensory deficit (also Grade 4) by the 8
percent maximum loss of sensory deficit or pain due to an impaired C6 nerve root to find a left
upper extremity impairment of 2 percent. If there is both sensory and motor impairment of a
nerve root, the impairment percents are combined.14 Using the Combined Values Chart on page
604 of the A.M.A., Guides, a 9 percent impairment combines with a 2 percent impairment for a
total impairment of 11 percent, which is what the Office awarded for the left upper extremity.
CONCLUSION
The Board finds that appellant has no more than a 5 percent impairment of his left lower
extremity or more than an 11 percent impairment of his left upper extremity. The Office could
not use Dr. Garza-Vale’s “whole body” or “total body” impairment ratings but did properly
apply the A.M.A., Guides to the more specific impairment methods used by both Dr. Garza-Vale
and Dr. Mulroy. The Board will therefore affirm the June 28, 2007 schedule award.
11

A.M.A., Guides 529.

12

Id.

13

Id.; see also id. at 526 (Table 17-2).

14

Id. at 423.

5

ORDER
IT IS HEREBY ORDERED THAT the June 28, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 14, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL MEDICAL CENTER,
Butner, NC, Employer
__________________________________________

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

Docket No. 16-0546
Issued: June 16, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 2, 2016 appellant, through counsel, filed a timely appeal from a
December 7, 2015 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days has elapsed since the last merit decision of OWCP, dated
September 3, 2014, 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 to
review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on November 22, 2010 appellant, then a 40-year-old plumber
supervisor, sustained a closed right ankle fracture and dislocation when he twisted his right leg
and ankle while throwing a valve into a dumpster.
On December 6, 2010 appellant underwent open reduction and internal fixation of a right
medial malleolar fracture, trans-syndesmotic fixation of the right tibiofibular joint, and
reconstruction of the right superficial deltoid ligament, approved by OWCP. Dr. Robert Zura, an
attending Board-certified orthopedic surgeon, held appellant off work. He received continuation
of pay through January 6, 2011, followed by compensation on the periodic rolls. Appellant
returned to sedentary duty on March 7, 2011. Imaging studies revealed that the fixation screws
had broken. Dr. Zura operated to remove them on June 16, 2011.
On October 17, 2011 appellant claimed a schedule award (Form CA-7). He returned to
full duty on December 17, 2011.
In a December 27, 2011 report, Dr. Zura diagnosed residual stiffness and early arthritis of
the right ankle. He opined that appellant had attained maximum medical improvement.
By decision dated August 22, 2012, OWCP granted appellant a schedule award for 19
percent permanent impairment of the right lower extremity.2 The period of the award ran from
January 10, 2012 to January 27, 2013 for a total of 54.72 weeks.
On October 9, 2013 appellant filed a notice of recurrence of disability (Form CA-2a)
commencing September 25, 2013. He asserted that post-traumatic arthritis of the right ankle
caused difficulties walking, crouching, and crawling. Appellant described chronic pain and a
popping sensation with prolonged standing. Appellant’s supervisor confirmed that appellant had
returned to full duty.
In a letter dated November 26, 2013, OWCP advised appellant of the additional evidence
needed to establish his claim for recurrence of disability. It afforded him 30 days to submit such
evidence. Appellant did not submit additional evidence prior to January 9, 2014.
By decision dated January 9, 2014, OWCP denied appellant’s claim for recurrence of
disability, finding that he had not established total disability for work due to a material change or
worsening of the accepted right ankle injury.
In a January 16, 2014 letter, counsel requested a telephonic hearing, held before an
OWCP hearing representative on July 16, 2014. At the hearing, appellant explained that he had
not stopped work, but requested authorization for ongoing medical treatment of his right foot and
ankle. He submitted additional medical evidence.
2

OWCP initially denied appellant’s schedule award claim by decision dated February 16, 2012. Pursuant to an
oral hearing, counsel submitted a June 14, 2012 impairment rating by Dr. William C. Daniels, a Board-certified
orthopedic surgeon, who assessed 19 percent impairment of the right lower extremity due to the accepted right ankle
injury. Following additional development, an OWCP hearing representative vacated the February 16, 2012 decision
on August 20, 2012, and approved the claim for a schedule award, which was issued on August 22, 2012.

2

In a January 20, 2014 report, Dr. John D. Hewitt, an attending Board-certified orthopedic
surgeon, obtained x-rays showing anterior osteophyte formation and mild joint space narrowing
in the right ankle. He diagnosed post-traumatic arthritis of the right ankle related to the accepted
injury and surgeries. Dr. Hewitt released appellant to full duty, but noted that he should
participate in self-defense training only as tolerated.
In a March 3, 2014 report, Dr. David W. Boone, an attending Board-certified orthopedic
surgeon, provided a history of injury and treatment. He diagnosed post-traumatic arthritis of the
right ankle causally related to the accepted injury and surgeries.
By decision dated September 3, 2014, the OWCP hearing representative affirmed the
January 9, 2014 decision, finding that the medical evidence submitted was insufficient to
establish causal relationship.
On August 14, 2015 counsel requested reconsideration. He submitted June 18 and
July 13, 2015 work restriction forms from Dr. Viens Nicholas, an attending Board-certified
orthopedic surgeon. Counsel also provided a July 8, 2015 magnetic resonance imaging scan of
the right ankle showing degenerative arthritis.
By decision dated December 7, 2015, OWCP denied reconsideration. It found that the
work restriction forms and imaging study did not contain medical rationale addressing the
critical issue of causal relationship.
LEGAL PRECEDENT
To require the office to reopen a case for merit review under section 8128(a) of FECA,3
section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provides that a claimant
must: (1) show OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) submit relevant and
pertinent new evidence not previously considered by OWCP.4 Section 10.608(b) provides that
when an application for review of the merits of a claim does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.5
In support of a request for reconsideration, appellant is not required to submit all
evidence which may be necessary to discharge his burden of proof.6 He need only submit
relevant, pertinent new evidence not previously considered by OWCP.7 When reviewing an
OWCP decision denying a merit review, the function of the Board is to determine whether

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b)(3).

5

Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008).

6

Helen E. Tschantz, 39 ECAB 1382 (1988).

7

See supra note 4. See also Mark H. Dever, 53 ECAB 710 (2002).

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OWCP properly applied the standards set forth at section 10.606(b)(3) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.8
ANALYSIS
Appellant, through counsel, requested reconsideration on August 14, 2015. Counsel
provided June 18 and July 13, 2015 work restriction forms from Dr. Nicholas, an attending
Board-certified orthopedic surgeon, and the July 8, 2015 imaging study. OWCP denied
reconsideration by December 7, 2015 decision, finding that the evidence submitted on
reconsideration was irrelevant to the critical issue of causal relationship.
The Board finds that OWCP appropriately denied reconsideration as the submitted work
restriction forms are not relevant to the claim. The critical issue was the medical question of
whether the accepted right ankle injury had worsened such that appellant was disabled from
work. Because the work restriction forms and imaging study did not address the cause of his
condition, they are irrelevant to the recurrence claim. Therefore, they do not comprise a basis for
reopening the case.9
A claimant may be entitled to a merit review by showing that OWCP erroneously applied
or interpreted a specific point of law, by advancing a relevant legal argument not previously
considered, or by submitting pertinent new and relevant evidence not previously considered.
Appellant did not do so in this case. Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly
denied merit review.
On appeal, counsel asserts that OWCP’s December 7, 2015 decision was illogical. As set
forth above, appellant did not submit evidence warranting a review of his claim on the merits.
CONCLUSION
The Board finds that OWCP properly denied appellant’s requests for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).

8

Annette Louise, 54 ECAB 783 (2003).

9

Joseph A. Brown, Jr., 55 ECAB 542 (2004) (the submission of evidence which does not address the particular
issue involved does not constitute a basis for reopening a case).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 7, 2015 is affirmed.
Issued: June 16, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 11-1843
Issued: March 6, 2012

Case Submitted on the Record

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

JURISDICTION
On August 9, 2011 appellant filed a timely appeal from a July 20, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying her occupational disease
claim. 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 she developed
osteophytes lining the spine in the performance of duty as letter carrier.
FACTUAL HISTORY
On April 15, 2011 appellant, then a 45-year-old limited duty letter carrier, filed an
occupational exposure claim, Form CA-2, alleging that she developed osteophytes lining her
spine from constantly raising her arms to case mail and lifting heavy bundles which aggravated

1

5 U.S.C. § 8101 et seq.

her back.2 She stated that she had previously been injured on January 20, 2000 and
March 16, 2004.3 Appellant initially thought her back pain was from the March 16, 2004
employment incident but her physician informed her that her pain stemmed from the January 20,
2000 injury. She notified her supervisor of her injury on April 15, 2011. Appellant’s supervisor
noted that appellant occasionally left work early due to complaints of back pain.
By letter dated May 2, 2011, OWCP informed appellant that the evidence of record was
insufficient to support her claim. Appellant was advised of the medical and factual evidence
needed and asked that she respond to the provided questions within 30 days. In a different letter
dated May 2, 2011, OWCP requested additional information from the employing establishment
regarding appellant’s duties as a letter carrier.
By letter dated May 7, 2011, the employing establishment reported that appellant
complained of backaches and left early on some days but did not specify what caused her pain.
It reported that her main assignments were to case and pull down routes and occasionally deliver
letters. The employing establishment further noted that appellant did not perform any lifting,
pushing, pulling, stooping or bending when breaking up the routes.
By decision dated July 20, 2011, OWCP denied appellant’s claim finding that the
evidence did not establish that the occupational exposure occurred as alleged. It also noted that
she failed to establish that she sustained an injury because no medical evidence was submitted.4
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of establishing the essential
elements of his or her claim, including employment status within the meaning of FECA, that the
claim was filed within the applicable time limitation period of FECA6 and that an injury was
sustained in the performance of duty.7 These are the essential elements of each compensation
2

Appellant stated that she initially thought her back pain was from a March 16, 2004 accident but that her
physician stated that her pain stemmed from a traumatic injury that occurred on January 20, 2000. She stated that
her March 16, 2004 injury aggravated her January 20, 2000 injury. Appellant referenced claim File No. xxxxxx079
for the March 16, 2004 injury. The January 20, 2000 injury is unidentified and the record before the Board contains
no further information.
3

On March 16, 2004 appellant filed a traumatic injury claim when she was hit by a car while unloading mail,
claim File No. xxxxxx079. By decision dated April 29, 2004, OWCP accepted the claim for herniated disc of the
lumbar spine and contusion of both knees. By decision dated September 23, 2010, it terminated appellant’s benefits
for the previously covered herniated lumbar disc condition in claim No. xxxxxx079. The record before the Board
provides no details concerning an injury on January 20, 2000.
4

The Board notes that appellant submitted additional evidence after OWCP rendered its July 20, 2011 decision.
The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision.
Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1); Dennis E. Maddy,
47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence to
OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).
5

5 U.S.C. §§ 8101-8193.

6

Joe D. Cameron, 41 ECAB 153 (1989).

7

James E. Chadden Sr., 40 ECAB 312 (1988).

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claim, regardless of whether the claim is predicated upon a traumatic injury or an occupational
disease.8
When an employee claims that she sustained an injury in the performance of duty she
must submit sufficient evidence to establish a specific event, incident or exposure occurring at
the time, place and in the manner alleged. She must also establish that the event, incident or
exposure caused an injury.9 Once an employee establishes that she sustained an injury in the
performance of duty, she has the burden of proof to establish that any subsequent medical
condition or disability for work, for which she claims compensation, is causally related to the
accepted injury.10
ANALYSIS
The Board finds that appellant failed to establish that she developed osteophytes lining
her spine in the performance of duty as a letter carrier.
Appellant must establish all of the elements of her claim in order to prevail. She must
prove her employment, time, place and manner of injury, a resulting personal injury and that her
injury arose in the performance of duty. Appellant alleged that she developed osteophytes lining
the spine from her duties as a letter carrier.
Appellant has not provided sufficient detail to establish that an occupational exposure
occurred as alleged.11 She states that she constantly raised her arms to case mail and lifted heavy
bundles. Appellant has failed to describe the circumstances of her alleged injury, how she
injured her back and the duties she was performing which caused her injury. She did not state
the number of hours she worked in a day, did not describe her limited-duty restrictions and failed
to identify the periods and the frequency of the physical movements and tasks she performed at
work. Appellant did not respond to the questionnaire in OWCP’s May 2, 2011 development
letter and did not provide OWCP with the additional factual evidence requested. She also noted
that she had prior back injuries from an unidentified January 20, 2000 incident and a March 16,
2004 employment incident. These earlier injuries make it unclear whether appellant’s current
alleged injury is a result of occupational exposure from her duties as a letter carrier or otherwise.
It is her burden to specify the nature of her claim but she has never connected her present
condition to any previous injury or claim. Appellant alleges a new injury based upon cumulative
trauma. Moreover, the employing establishment has stated that she did not perform any lifting,
pushing, pulling, stooping or bending when performing her duties.

8

Delores C. Ellyet, 41 ECAB 992 (1990).

9

See generally John J. Carlone, 41 ECAB 354 (1989); see also 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R.
§ 10.5(q) and (ee) (1999) (occupational disease or illness and traumatic injury defined). See Victor J. Woodhams, 41
ECAB 345 (1989) regarding a claimant’s burden of proof in an occupational disease claim.
10

Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

11

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

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Appellant did not submit medical evidence with her occupational exposure claim.
Because no medical evidence containing a physician’s opinion was ever received, she failed to
establish a firm medical diagnosis of her injury.12
In the instant case, the record lacks evidence establishing the factual element of
appellant’s claim, namely, that any specific occupational exposure might have caused her injury
or disease. The record also lacks medical evidence to establish an injury. An award of
compensation may not be based on surmise, conjecture or speculation. Because appellant did not
submit sufficient evidence demonstrating the alleged occupational exposure actually occurred as
alleged, OWCP properly denied her claim. Appellant may submit additional evidence, together
with a written request for reconsideration, to OWCP within one year of the Board’s merit
decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.606 and 10.607.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
developed osteophytes lining the spine in the performance of duty as a letter carrier.
ORDER
IT IS HEREBY ORDERED THAT the July 20, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 6, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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Victor J. Woodhams, 41 ECAB 345 (1989).

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

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

Docket No. 13-1985
Issued: March 27, 2014

Case Submitted on the Record

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

JURISDICTION
On August 28, 2013 appellant, through his attorney, filed a timely appeal from an
April 3, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation effective
November 18, 2012 to the selected position of sorter, as representative of his wage-earning
capacity.
FACTUAL HISTORY
On June 7, 2006 appellant, then a 49-yer-old carrier, filed a traumatic injury claim (Form
CA-1) alleging that he sustained shoulder, neck and left arm injuries in the performance of duty
1

5 U.S.C. § 8101 et seq.

on April 17, 2006. He stated that on April 17, 2006 he was trying to open a door of an
“outbound” box and felt a pop in his left shoulder, arm and neck area. On March 5, 2007 OWCP
accepted the claim for a C5-6 herniated disc. Appellant stopped working and began receiving
wage-loss compensation.
OWCP referred appellant for a second opinion examination by Dr. Robert Draper, a
Board-certified orthopedic surgeon. In a report dated March 25, 2011, Dr. Draper provided a
history and results on examination. He diagnosed degenerative cervical disc disease from C3-7,
with disc osteophyte complex and bulging cervical discs at all levels. Dr. Draper stated:
“The above-stated medical condition is a preexisting condition associated with the
aging process and degenerative cervical disc disease. These changes on the
[magnetic resonance imaging scan] are not the result of trauma. However,
[appellant] had an aggravation of some of the preexisting degenerative disc
disease with a confirmed disc herniation at C5-6 that has been accepted and he
will need permanent restrictions. [He] is capable of performing modified[-]duty
work, [he] can perform a job that does not require him to lift more than
50 [pounds] occasionally and 25 [pounds] frequently. [Appellant] can work an
[eight-]hour day. These are permanent restrictions.”
Appellant was referred for vocational rehabilitation services. In a job classification form
(OWCP-66), a rehabilitation counselor (RC) identified the position of sorter Department of
Labor’s Dictionary of Occupational Titles (No. 521.687-086). The job description indicated that
the position was sedentary with occasional lifting of 10 pounds. According to the RC, the
position was reasonably available in appellant’s area with wages of $8.25 per hour.
In a form report dated July 10, 2012, Dr. Richard Strulson, an osteopath, indicated that
appellant was disabled for work. He diagnosed a C5-6 disc condition.
In a letter dated September 23, 2012, OWCP advised appellant that it proposed to reduce
his compensation pursuant to 5 U.S.C. § 8115. It found that the selected position of sorter, with
wages of $330.00 per week, represented his wage-earning capacity based on the evidence of
record.
By decision dated November 16, 2012, OWCP finalized the decision effective
November 18, 2012. It found that the weight of the medical evidence was represented by
Dr. Draper with respect to work restrictions.
Appellant requested a hearing before an OWCP hearing representative, which was held
on February 5, 2013. He submitted reports from Dr. Steven Valentino, an osteopath. In a report
dated December 4, 2012, Dr. Valentino provided a history and results on examination. He
diagnosed facet pain, lumbar and cervical degenerative joint disease, cervical radiculitis and
cervical spinal stenosis. By report dated January 30, 2013, Dr. Valentino provided results on
examination. He stated that appellant’s “main interest is determining that he continues to be
disabled from gainful employment given his constellation of symptoms as well as is reasonable.”
By report dated February 21, 2013, Dr. Valentino stated that he first examined appellant
on December 4, 2012 with neck pain and radiation of numbness and weakness in both arms. He
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stated that he agreed with Dr. Draper that appellant had an aggravation of preexisting
degenerative disc disease. Dr. Valentino further stated that he disagreed with Dr. Draper as “I
find [appellant] to continue to meet requirements for disability. I would certainly disagree that
[appellant] could return to work in a medium capacity that Dr. Draper has opined.”
By decision dated April 3, 2013, the hearing representative affirmed the November 16,
2012 decision, finding that the evidence at that time was sufficient to support OWCP’s
determination. The hearing representative further found that evidence from Dr. Valentino was
sufficient to create a conflict in the medical evidence as to appellant’s work capacity and the case
was remanded for resolution of the conflict.
LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction in such benefits.2
Under 5 U.S.C. § 8115(a), wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his or her wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity or if
the employee has no actual earnings, his wage-earning capacity is determined with due regard to
the nature of his injury, his degree of physical impairment, his usual employment, his age, his
qualifications for other employment, the availability of suitable employment and other factors and
circumstances which may affect his wage-earning capacity in his disabled condition.3
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position, listed in the Department of Labor’s Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his
physical limitations, education, age and prior experience. Once this selection is made, a
determination of wage rate and availability in the labor market should be made through contact
with the state employment service or other applicable service.4 Finally, application of the
principles set forth in Albert C. Shadrick will result in the percentage of the employee’s loss of
wage-earning capacity.5
ANALYSIS
In the present case, the Board notes that, although the hearing representative found a
conflict in the medical evidence, the April 3, 2013 decision is an adverse decision in that it
affirms the November 16, 2012 wage-earning capacity decision. In this regard, the issue is
2

Carla Letcher, 46 ECAB (1995).

3

See Wilson L. Clow, Jr., 44 ECAB 157 (1992); see also 5 U.S.C. § 8115(a).

4

See Dennis D. Owen, 44 ECAB 475 (1993).

5

5 ECAB 376 (1953); see also 20 C.F.R. § 10.403.

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whether the evidence in the record as of April 3, 2013 supports the reduction of compensation as
of November 18, 2012 based on the selected position of sorter.
An initial question presented is whether the medical evidence is sufficient to establish
that appellant was capable of performing the selected position as of sorter as of
November 16, 2012. The Board finds that Dr. Draper represents the weight of the medical
evidence on this issue. Dr. Draper provided a March 25, 2011 report providing an opinion that
appellant could work full time with lifting restrictions of 50 pounds occasionally and 25 pounds
frequently.6 His report was based on a complete examination and an accurate factual and
medical background. The selected position of sorter is within Dr. Draper’s work restrictions, as
it is a sedentary, light position with lifting of up to 10 pounds occasionally.
The attending physicians of record provided little evidence as to appellant’s work
restrictions as of November 16, 2012. Dr. Strulson submitted a July 10, 2012 form report that
reported that appellant could not work but provided no history, results on examination or other
relevant information.
Dr. Valentino did not begin treating appellant until December 4, 2012. He does not
discuss the sorter position or provide specific work restrictions as of November 16, 2012.
Dr. Valentino stated that he disagreed with Dr. Draper as to the ability to perform a “medium
capacity” position, but that is of little probative value to the issue presented. The issue is
whether appellant was capable of performing the sorter position at the time of the wage-earning
capacity determination and the sorter position was, as noted above, a sedentary position with
lifting of 10 pounds occasionally. There were no medical reports with a rationalized medical
opinion that he could not perform the selected position as of November 16, 2012.7
Based on the medical evidence of record, the Board finds that OWCP properly found that
the selected position was within appellant’s physical restrictions. The next issue is whether the
record supports the finding that the selected position was vocationally suitable, available in
appellant’s area and with wages of $330.00 per week. The RC made finding that the position
was appropriate and available in appellant’s commuting area based on state employment
information. In addition, the RC determined the wages of the position were $8.25 per hour.
There was no contrary evidence of record.
The Board finds that OWCP properly determined that the selected position of sorter
represented appellant’s wage-earning capacity as of November 16, 2012. The position was
medically and vocationally suitable based on the probative evidence of record. OWCP reduced
6

The Board notes that appellant’s representative argued at the February 5, 2013 hearing that Dr. Draper’s report
was not a current medical report. It is well established that a physician’s report must be reasonably current to
support a wage-earning capacity determination. See John D. Jackson, 55 ECAB 465 (2004). But in this case it is
not established that the March 25, 2012 report was beyond a reasonable time period prior to the November 16, 2012
decision. See, e.g., R.F. Docket No. 13-1345 (issued September 19, 2013) (the second opinion examination was
January 19, 2011, the wage-earning capacity determination was June 3, 2012).
7

Rationalized medical opinion evidence is medical evidence that is based on a complete factual and medical
background of reasonable medical certainty and supported by medical rationale explaining the opinion.
Jennifer Atkerson, 55 ECAB 317, 319 (2004).

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appellant’s compensation in accord with the Shadrick decision and OWCP’s regulations. The
wage-earning capacity in terms of percentage is computed by dividing the earnings ($330.00) by
the current earnings for the date-of-injury position ($1,067.87) and then the percentage is applied
to the date-of-injury pay rate ($946.52).8 The Board finds that OWCP properly reduced
appellant’s compensation based on the probative evidence of record.
On appeal, appellant identified the April 3, 2013 as the decision on appeal and then
provided arguments regarding development of the case after April 3, 2013. The only final
decision on appeal is the April 3, 2013 hearing representative decision. The Board notes that
OWCP issued a July 22, 2013 letter that refers to the findings of a referee physician. This letter
is not accompanied by appeal rights, does not make adequate findings or otherwise constitute a
final adverse decision.9 On this appeal the Board can review only the evidence of record as of
April 3, 2013. The remand by the hearing representative for further development concerned the
issue of whether the wage-earning capacity determination should be modified and appellant is
entitled to a decision on that issue. On return of the case record OWCP should properly issue a
final decision with respect to the issues in the case.
CONCLUSION
The Board finds that OWCP properly reduced appellant’s compensation as of
November 18, 2012 on the grounds that the selected position of sorter represented appellant’s
wage-earning capacity.

8

20 C.F.R. § 10.403.

9

See id. at § 10.126 for the requirements of an OWCP decision.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 3, 2013 is affirmed.
Issued: March 27, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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