United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bloomingdale, IL, Employer
__________________________________________

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Appearances:
Kevin L. Card, for the appellant1
No appearance, for the Director

Docket No. 16-1892
Issued: October 27, 2017

Oral Argument April 27, 2017

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On September 22, 2016 appellant, through his representative, filed a timely appeal from
an August 30, 2016 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.
ISSUE
The issue is whether appellant met his burden of proof to establish that the April 1, 2014
loss of wage-earning capacity decision should be modified.

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.

On appeal and at oral argument, appellant’s representative asserted that the modified
sales retention team (SRT) position offered to appellant was not a bona fide position and
therefore did not meet the necessary criteria for a wage-earning capacity decision. He argues
that the record supported that the SRT program was temporary in nature, that it was solely for
injured workers, and that it was not available in the open labor market.
FACTUAL HISTORY
Appellant, then a 48-year-old city carrier, injured his right shoulder on January 8, 2010
when he slipped on ice and fell while delivering mail. His normal duty station was in
Bloomington, Illinois. OWCP accepted sprain of shoulder and upper arm, supraspinatus, right.
Appellant received intermittent compensation until August 5, 2010, when he stopped work. He
underwent right shoulder surgeries on August 31 and October 12, 2010. OWCP paid appellant
wage-loss compensation benefits and returned to a part-time modified position on June 23, 2011.
OWCP accepted a recurrence of disability and on September 13, 2011, appellant was placed on
the periodic compensation rolls.
In July 2012 OWCP referred appellant to Dr. James Elmes, a Board-certified orthopedic
surgeon, for a second opinion examination to determine his work capacity. Based on Dr. Elmes’
reports dated July 26, September 13, and November 13, 2012, OWCP expanded the accepted
conditions to include rotator cuff tear, right shoulder, and disorder of bursae and tendons in the
right shoulder region, unspecified, right.
Appellant briefly returned to modified duty in February 2013. OWCP accepted a
March 26, 2013 recurrence of disability, and appellant was returned to the periodic rolls.
On June 27, 2013 OWCP expanded the accepted conditions to include sprain of neck,
cervical spondylosis without myelopathy, and spinal stenosis in cervical region.
On October 3, 2013 the employing establishment offered appellant a full-time modified
city carrier -- SRT position, effective January 6, 2014, at the Fox Valley, Illinois, site. The daily
job duties were described as customer service telesales, educate customers on new products and
services, research single package, look up issues through eService in customer service database,
and assist with small business service issues. The position was sedentary, seated at a computer
performing tasks involving use of fingers and hand while using mouse/keyboard to look up
customer information and research telephone inquiries for eight hours daily. It required no
lifting, carrying, pushing, or pulling. Appellant accepted the offer on December 11, 2013 and
began the modified position on January 6, 2014.
OWCP obtained pay rate information from the employing establishment following
appellant’s commencement of work on January 6, 2014.
By decision dated April 1, 2014, OWCP found that appellant’s actual earnings in the
modified city carrier position fairly and reasonably represented his wage-earning capacity with
zero loss.
On August 21, 2014 appellant, through then counsel, requested reconsideration. He
asserted that the position to which appellant returned on January 6, 2014 was temporary and not
a permanent position. Two employing establishment Assignment Orders (PS Form 1723),
2

signed by appellant on January 6 and July 7, 2014 were attached. The former indicated that the
job ran from January 6 to July 4, 2014, and that the latter indicated that it ran from June 28 to
November 7, 2014.
OWCP requested additional information from the employing establishment on
September 10, 2014. E-mail correspondence from an employing establishment’s manager of
health and resource management dated October 7, 2014 indicated that a PS Form 1723, an
employing establishment assignment order,3 was issued for all assignments that were not an
employee’s regular-duty assignment, and, in this case, it was also used for security clearance for
database systems needed for assignments that required headquarters approval. She continued
that these were done in six-month intervals, even though the assignment could be for an
indefinite period of time. The manager advised that appellant’s January 6, 2014 job assignment
remained in effect, but that a new PS Form 1723 assignment order was required every six
months.
In a merit decision dated November 21, 2014, OWCP denied modification of the April 1,
2014 wage-earning capacity determination. It noted that the PS 1723 forms were administrative
formalities and that appellant continued to perform the duties of the January 6, 2014 job offer.4
On November 10, 2015 appellant, through his representative,5 requested reconsideration
of the November 21, 2014 decision. In support he forwarded correspondence from the
employing establishment to NALC dated October 19, 2012 providing that, beginning in
January 2013, a pilot sales test team would be established and would be staffed with supervisory
personnel and employees on the periodic FECA compensation rolls. Correspondence dated
October 19, 2012 to May 29, 2014 noted that the pilot program had been named the SRT and
listed sites where the pilot program was ongoing. This listing included the Fox Valley site in
Aurora, Illinois. October 19, 2012 correspondence indicated that the team would be staffed with
supervisory personnel and employees on FECA’s periodic compensation rolls whose duty station
of record was within the local commuting area of a pilot program location. The program was
scheduled to begin in January 2013 and continue for approximately one year, with possible
expansion to other locations, noting that test results would be used to determine the viability and
effectiveness of the concept.6 Each letter indicated that it remained a pilot program. On
January 31 and May 29, 2014 the employing establishment indicated that the pilot test was
continuing. On May 29, 2014 it further explained that newly injured employee’s with an
accepted OWCP claim would also be eligible for the SRT positions.

3

As noted, a PS Form 1723 is used by the employing establishment for temporary assignments and is valid for
six months.
4

On April 7, 2015 appellant was granted a schedule award for 12 percent right upper extremity permanent
impairment. He filed a claim for an additional schedule award on June 15, 2016 which is not presently before the
Board.
5

Appellant was briefly represented by local union representative from Illinois. On August 1, 2015 he authorized
the representation of Kevin Card, of the National Association of Letter Carriers (NALC).
6

The correspondence explained that during the test, employees assigned to the SRT would perform a variety of
sales and marketing related duties including, but not limited to: contacting customers for follow-up outreach after a
sale, customer retention support, and telesales up-selling with previously identified customers.

3

The representative asserted that the modified position offered appellant in the Fox Valley
SRT site was not a bona fide position because it was a test program solely for injured workers,
and had always been considered a nonclassified, temporary employment which the employing
establishment could cancel at any time. He continued that, when a postal employee was formally
assigned to a classified position, the employing establishment would issue a PS Form 50,
Notification of Personnel Action, not a PS Form 1723, which was a notification for a temporary
six-month assignment. The representative maintained that this reflected the temporary nature of
the SRT assignment and did not meet the qualifications for which a loss of wage-earning
capacity decision could be applied. He noted that appellant’s PS Form 50’s reflected that he was
still employed at the Bloomingdale, Illinois post office, and provided copies of appellant’s PS
Form 50’s dated February 25, 2013 through November 15, 2014. As such, the representative
asserted that the April 1, 2014 decision was in error and should be modified.
In a merit decision dated August 30, 2016, OWCP denied modification of the April 1,
2014 determination. It found that the January 6, 2014 position was not makeshift, was not
designed to meet appellant’s specific needs, and that there was no evidence that it could or would
be arbitrarily eliminated.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his or her duty.7 Disability means the incapacity,
because of an employment injury, to earn the wages the employee was receiving at the time of
injury. It may be partial or total.8
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.9 OWCP procedures at section 2.1501 contain
provisions regarding the modification of a formal loss of wage-earning capacity.10 The relevant
part provides that a formal loss of wage-earning capacity will be modified when: (1) the original
rating was in error; (2) the claimant’s medical condition has materially changed; or (3) the
claimant has been vocationally rehabilitated.11
OWCP’s procedures provide that factors to be considered in determining whether the
claimant’s work fairly and reasonably represents his or her wage-earning capacity include the
kind of appointment, that is, whether the position is temporary, seasonal or permanent, and the

7

5 U.S.C. § 8102(a).

8

20 C.F.R. § 10.5(f).

9

Katherine T. Kreger, 55 ECAB 633 (2004).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity, Chapter
2.1501 (June 2013).
11

Id. at § 2.1501.3(a).

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tour of duty, that is, whether it is part time or full time.12 Further, a makeshift or odd-lot position
designed for a claimant’s particular needs will not be considered suitable.13
ANALYSIS
The Board finds that the April 1, 2014 wage-earning capacity determination must be
reversed because, at the time the employing establishment offered appellant the SRT position on
October 3, 2013, he had no expectation that the position was permanent.14
As noted above, OWCP’s procedures provide that one of the factors to be considered in
determining whether a claimant’s work duties fairly and reasonably represents his or her wageearning capacity includes whether the position was temporary.15 With the present appeal and at
oral argument, appellant’s representative asserts that, as the SRT position was temporary, the
April 1, 2014 LWEC decision was erroneous. He did not assert that appellant’s medical
condition had materially changed or that he had been vocationally rehabilitated.
The evidence of record includes employing establishment correspondence explaining that
the SRT concept was a pilot program, including at the Fox Valley site. October 19, 2012
correspondence indicated that the team would be staffed with supervisory personnel and
employees on FECA’s periodic compensation rolls whose duty station of record was within the
local commuting area of a pilot program location. The program was scheduled to begin in
January 2013 and continue for approximately one year. This correspondence establishes that
when the employing establishment began the SRT program, it was temporary in nature. As late
as May 29, 2014, well after the position was offered appellant on October 3, 2013, the employing
establishment indicated that the SRT program continued as a pilot program. The record does not
establish that the SRT assignment was formally classified as permanent.16
Employing establishment PS 1723 forms (temporary assignment forms), signed by
appellant on January 6 and July 7, 2014, September 18, 2015, and February 28 and August 15,
2016, reflect that each of these forms was for a position that lasted six months. While the
employing establishment indicated that these forms were merely assignment orders that were
required every six months, even though the assignment could be for an indefinite period of time,
the record also includes employing establishment notices of personnel action dated March 8,
September 9, and November 15, 2014. Each of these indicated that appellant’s duty station was
the Bloomington, Illinois, post office and not the Fox Valley SRT site.
A basis for modifying an LWEC determination is to establish that the original decision
was in error.17 The Board finds that, under the facts of this case, as the modified assignment
12

Id. at Chapter 2.815.5.c(1).

13

Id. at Chapter 2.815.5.c(2)(a).

14

See D.M., Docket No. 16-0244 (issued April 5, 2016).

15

Id. at Chapter 2.815.5.c(1).

16

See M.I., Docket No. 14-1784 (issued August 21, 2015).

17

Id. at § 2.1501.3(a); see P.G., Docket No. 14-1797 (issued September 16, 2015).

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upon which the LWEC determination was made was temporary in nature, the April 1, 2014
LWEC decision was erroneous and did not fairly and reasonably represent appellant’s wageearning capacity. Thus, appellant met his burden of proof to establish that the April 1, 2014
LWEC decision should be modified.
The Board, however, notes that since appellant’s salary in the SRT position was greater
than his weekly pay rate when injured, he has no disability as defined under FECA.18
CONCLUSION
The Board finds that, as the position on which the April 1, 2014 LWEC was based was
erroneous, appellant met his burden of proof to establish that the LWEC decision should be
modified.19
ORDER
IT IS HEREBY ORDERED THAT the August 30, 2016 decision of the Office of
Workers’ Compensation Programs is reversed, as modified.
Issued: October 27, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Under FECA, the term “disability” means the incapacity, because of an employment injury, to earn the wages
that the employee was receiving at the time of injury. 20 C.F.R. § 10.5(f); see S.R., Docket No. 14-1154 (issued
December 15, 2014).
18

19

Appellant’s earnings in the erroneous position, however, preclude him from receiving disability compensation.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
DEPARTMENT OF THE ARMY,
INSTALLATION MANAGEMENT AGENCY,
Fort Carson, CO, Employer
__________________________________________

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

Docket No. 07-1264
Issued: September 21, 2007

Case Submitted on the Record

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

JURISDICTION
On April 11, 2007 appellant filed a timely appeal from the March 21, 2007 decision of
the Office of Workers’ Compensation Programs denying his traumatic injury claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained an injury in the
performance of duty on April 8, 2006 as alleged.
FACTUAL HISTORY
On January 30, 2007 appellant, a 50-year-old material maintenance management
specialist, filed a traumatic injury claim, Form CA-1, alleging that he injured his lower back
while lifting a table as part of a quarters move in Mosul, Iraq, on April 8, 2006.

On February 16, 2007 the Office notified appellant that he had not submitted adequate
medical information to establish his claim. It requested that he provide a report from a
physician.
Appellant submitted a record of medical care provided by Captain Minnie Dougherty, a
physician’s assistant, dated April 10, 2006. Captain Dougherty reported that appellant
experienced pain in his lower back after moving furniture. A medic, Adriene Jessee, stated that
appellant’s pain began two days earlier when he heard a pop in his back while moving furniture.
Captain Dougherty stated that appellant had a history of upper back pain related to an automobile
accident that occurred in the early 1990s but no history of lower back pain. On examination, she
found that appellant had a decreased range of motion secondary to pain and that he had a muscle
spasm on the left side that was very tender to palpitation. Captain Dougherty stated that the
examination was limited because of appellant’s pain and that she “consulted with Dr. Reed for
possible manipulation.” She diagnosed lower back sprain, provided medicine, recommended
stretches and released him to work without limitations. Appellant’s supervisor, Richard
Chumbley, confirmed that appellant hurt his back while moving a table, but reported that he lost
no time from work following the employment incident.
By decision dated March 21, 2007, the Office denied appellant’s claim on the grounds
that he had not established that he had sustained an injury in the performance of duty. The
Office found that the April 8, 2006 incident of moving furniture occurred as alleged, but that
appellant had not provided adequate medical evidence to establish a diagnosis connected to the
incident. The Office stated that it had received only a diagnosis from a physical therapist,1 which
was insufficient to establish the claim.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 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 the Act; that the claim was
filed within the applicable time limitation; that an injury was sustained while in the performance
of duty; and that any disability or specific condition for which compensation is claimed is
causally related to the employment injury.3
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office must first determine whether “fact of injury” has been
established. “Fact of injury” consists of two components that must be considered in conjunction
with one another. The first component is whether the employee actually experienced the
employment incident that is alleged to have occurred. The second component is whether the

1

It appears that the Office interpreted the designation of Captain Dougherty’s rank, CPT, as “Certified Physical
Therapists.”
2

5 U.S.C. §§ 8101-8193.

3

Caroline Thomas, 51 ECAB 451 (2000); Elaine Pendleton, 40 ECAB 1143 (1989).

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incident caused a personal injury and, generally, this can be established only by medical
evidence.4
When determining whether the implicated employment factors caused the claimant’s
diagnosed condition, the Office generally relies on the rationalized medical opinion of a
physician.5 To be rationalized, the opinion must be based on a complete factual and medical
background of the claimant,6 and must be one of reasonable medical certainty,7 explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.8
ANALYSIS
The Office has accepted that appellant was moving a table on April 8, 2006 in the
performance of his federal duties. Therefore, the issue is whether appellant has established that
he sustained an injury as a result of that incident.
The only medical evidence in the record is a treatment report prepared by a physician’s
assistant, Captain Dougherty, who stated that she consulted with a Dr. Reed about appellant’s
condition, but the record contains no diagnosis from Dr. Reed or any other physician. The Board
has held that the opinions of physicians’ assistants have no probative value on medical questions
because a physician’s assistant is not a “physician” as defined under the Act.9
Because appellant has submitted no probative medical evidence, the Board finds that he
has not met his burden of proof in establishing that he sustained an injury causally related to the
accepted employment incident of April 8, 2006.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty on April 8, 2006 as alleged.

4

Ellen L. Noble, 55 ECAB 530 (2004).

5

Conrad Hightower, 54 ECAB 796 (2003); Leslie C. Moore, 52 ECAB 132 (2000).

6

Tomas Martinez, 54 ECAB 623 (2003); Gary J. Watling, 52 ECAB 278 (2001).

7

John W. Montoya, 54 ECAB 306 (2003).

8

Judy C. Rogers, 54 ECAB 693 (2003).

9

5 U.S.C. § 8101(2); see also Ricky S. Storms, 52 ECAB 349 (2001).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 21, 2007 is affirmed.
Issued: September 21, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.O., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Union, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-383
Issued: November 8, 2011

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 December 7, 2010 appellant, through her attorney, filed a timely appeal of the
October 27, 2010 schedule award decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of this schedule award
case.
ISSUE
The issue is whether appellant has more than eight percent impairment of each upper
extremity, for which she received schedule awards.
On appeal, counsel contends that OWCP erred in applying the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) rather than the fifth edition. He stated that the fifth edition was in effect at the time

1

5 U.S.C. § 8101 et seq.

appellant filed her schedule award claim. Counsel claimed that appellant’s schedule award under
the sixth edition was less than what she would receive under the fifth edition.
FACTUAL HISTORY
On December 23, 2003 appellant, then a 55-year-old distribution clerk, filed an
occupational disease claim alleging that her bilateral carpal tunnel syndrome was caused by
repetitive work duties she performed for 22 years at the employing establishment.2 She
underwent right carpal tunnel release in February 2004, left carpal tunnel release in March 2004
and revision left carpal tunnel release and decompression of the distal ulnar nerve on
March 25, 2005. OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome. In a
September 15, 2006 decision and September 27, 2007 letter, it accepted that she sustained a
recurrence of disability on June 15, 2004 and January 31, 2005, respectively, due to her accepted
injury.
On December 5, 2007 appellant filed a claim for a schedule award. In a September 19,
2007 medical report, Dr. David Weiss, an attending osteopath, found that appellant had reached
maximum medical improvement. He determined that she had 45 percent impairment of each
upper extremity based on the fifth edition of the A.M.A., Guides.
On March 28, 2008 Dr. Arnold T. Berman, an OWCP medical adviser, reviewed
appellant’s medical records, including Dr. Weiss’ September 19, 2007 findings.
He
recommended that appellant’s claim be accepted for left ulnar nerve compression of the wrist
based on her left carpal tunnel revision with decompression. Dr. Berman found that she reached
maximum medical improvement on September 19, 2007. He determined that appellant had 23
percent impairment of the right upper extremity and 27 percent impairment of the left upper
extremity based on the fifth edition of the A.M.A., Guides.
On May 12, 2008 OWCP accepted appellant’s claim for a lesion of the left wrist ulnar
nerve.
On July 30, 2008 OWCP determined that there was a conflict in the medical opinion
evidence between Dr. Weiss and Dr. Berman regarding the extent of appellant’s permanent
impairment. By letter dated July 31, 2008, it referred appellant, together with the medical record
and a statement of accepted facts, to Dr. Marc W. Urquhart, a Board-certified orthopedic
surgeon, for an impartial medical examination.
In an August 25, 2008 report, Dr. Urquhart reviewed a history of the accepted
employment injuries and appellant’s medical treatment, family and social background. He listed
his findings on physical examination and diagnosed repetitive and cumulative traumatic right and
left carpal tunnel syndrome, recurrent left carpal tunnel syndrome and left ulnar nerve
compression neuropathy at the wrist. Dr. Urquhart advised that appellant was status post the
February 2004 right carpal tunnel release, March 2004 left carpal tunnel release and March 25,
2

In a prior claim filed under OWCP File No. xxxxxx456, the Board, in a March 23, 2009 decision, affirmed
OWCP decisions dated August 14, 2007 and April 24, 2008, finding that appellant did not sustain bilateral shoulder
and neck injuries while in the performance of duty. Docket No. 08-2003 (issued March 23, 2009).

2

2005 revision left carpal tunnel release and decompression of the distal ulnar nerve. He
concluded that she had reached maximum medical improvement and was permanently disabled
from performing repetitive activities with her bilateral upper extremities.
On November 7, 2008 OWCP requested that Dr. Urquhart provide whether appellant
sustained any permanent impairment. In a March 10, 2009 report, he stated that appellant had 23
percent impairment of the right upper extremity and 28 percent impairment of the left upper
extremity based on the fifth edition of the A.M.A., Guides.
On April 29, 2009 Dr. Henry J. Magliato, an OWCP medical adviser, reviewed
appellant’s medical record and agreed with Dr. Urquhart’s March 10, 2009 finding that appellant
had 23 percent impairment of the right upper extremity and 28 percent impairment of the left
upper extremity based on the fifth edition of the A.M.A., Guides.
On August 6 and December 30, 2009 and March 16, 2010 OWCP advised Dr. Urquhart
that effective May 1, 2009 all permanent impairment determinations must be made in accordance
with the sixth edition of the A.M.A., Guides.3 It requested that he submit a medical report that
included a finding that appellant had attained maximum medical improvement, and provide a
detailed description of the impairment and a schedule award rating according to this edition.
Dr. Urquhart did not respond.
In an April 21, 2010 letter, appellant contended that her schedule award claim should be
adjudicated under the fifth rather than the sixth edition of the A.M.A., Guides.
On June 24, 2010 OWCP referred appellant, together with the medical record, to
Dr. Jerome D. Rosman, a Board-certified orthopedic surgeon, for an impartial medical
examination. In a July 15, 2010 report, Dr. Rosman reviewed a history of the employment
injuries and appellant’s medical treatment and employment background. He also reviewed the
medical record. Appellant’s current complaints included pain in her hands and shoulders, and
numbness in her arms and hands. She had difficulty lifting and moving her arms, shoulders and
hands. Appellant did not experience any blurred or double vision. She denied nausea, vomiting,
dizziness, fainting and nervousness. Appellant’s condition was somewhat better when she was at
rest and unchanged when she was moving her arms, wrists, hands and fingers. On physical
examination, Dr. Rosman reported normal range of motion of the right and left shoulder, elbow,
wrist and fingers. He also reported normal motor strength and equal deep tendon reflexes in the
upper extremities. Dr. Rosman found decreased sensation to light touch of the thumb, index and
middle fingers on both hands. He diagnosed bilateral carpal tunnel syndrome for which
appellant was status post surgery. Dr. Rosman also diagnosed left ulnar nerve lesion at the wrist
level due to the accepted employment injuries. He advised that appellant reached maximum
medical improvement in 2005, six months after her third surgical procedure.
Dr. Rosman then applied the standards of the sixth edition of the A.M.A., Guides to his
findings, including Table 15-23 (Entrapment/Compression Neuropathy Impairment) on page
449. With respect to the right arm, he assessed a grade 4 modifier for test findings. Dr. Rosman
3

On March 15, 2009 the Director issued FECA Bulletin No. 09-03 advising that the sixth edition of the A.M.A.,
Guides would be made applicable to rating impairment effective May 1, 2009.

3

assessed a grade 3 modifier for history findings. For physical examination findings, he assessed
a grade 2 modifier. The values of the grade modifiers averaged three. With respect to the left
arm, Dr. Rosman stated that for test findings appellant had a grade 3 modifier; that for history
she had a grade 3 modifier; and that for physical findings she had a grade 2 modifier. The values
of the grade modifiers averaged 2.7 which rounded up to 3. Dr. Rosman found that the grade
modifiers for the left ulnar nerve lesion were zero. He stated that appellant had a QuickDASH
score of 77 for each arm which represented a grade modifier of three. Dr. Rosman concluded
that appellant had eight percent impairment of each upper extremity.
On September 2, 2010 Dr. Henry J. Magliato, an OWCP medical adviser, reviewed
appellant’s medical records, including Dr. Rosman’s July 15, 2010 findings. He advised that
appellant had reached maximum medical improvement on September 19, 2007. Dr. Magliato
stated that Dr. Rosman provided eight percent impairment for each upper extremity. He
concluded that these impairment ratings, derived under the sixth edition of the A.M.A., Guides,
were acceptable. Dr. Magliato explained that, using Table 15-23, p. 449, the average totals for
the left upper extremity was three, resulting in a final rating category of grade modifier three.
The default value was 8(c). The QuickDASH score was 77, resulting in a grade modifier
functional scale of 3. Dr. Magliato noted that since this was the same as grade modifier 3, the
default value remained at eight percent for the left upper extremity. Additionally, all modifiers
for the ulnar nerve lesion for the left upper extremity were zero, resulting in a class 0 and a
default value of 0. For the right upper extremity, Dr. Magliato stated that Dr. Rosman again used
Table 15-23, p. 449. The average of the grade modifiers was three resulting in a grade modifier
of three and a default value of eight percent. Since the functional scale was three, the default
value remained at eight percent for the right upper extremity.
In an October 27, 2010 decision, OWCP granted appellant a schedule award for eight
percent impairment of each upper extremity.
LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members, functions and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.6 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.7 Effective May 1, 2009,

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

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

7

Supra note 4.

4

OWCP adopted the sixth edition of the A.M.A., Guides8 as the appropriate edition for all awards
issued after that date.9
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.10 In
Table 15-23, grade modifier levels (ranging from 0 to 4) are described for the categories test
findings, history and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down by one percent based on functional scale, an assessment of
impact on daily living activities.11
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”12 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.13
ANALYSIS
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome and a lesion of the
left wrist ulnar nerve. She underwent right carpal tunnel release in February 2004, left carpal
tunnel release in March 2004 and revision left carpal tunnel release and decompression of the
distal ulnar nerve on March 25, 2005. Due to a conflict between appellant’s physician,
Dr. Weiss, who found that appellant had 45 percent impairment of each upper extremity, and
Dr. Berman, an OWCP medical adviser, who found that appellant had 23 percent impairment of
the right upper extremity and 27 percent impairment of the left upper extremity, OWCP referred
appellant to Dr. Urquhart, as the impartial medical specialist to resolve the conflict in medical
opinion.
In an August 25, 2008 report, Dr. Urquhart found that appellant had bilateral carpal
tunnel syndrome and left ulnar nerve compression for which she was status post several
surgeries. He further that she had reached maximum medical improvement and was permanently
disabled from performing repetitive activities with her bilateral upper extremities. In a
March 10, 2009 report, Dr. Urquhart advised that appellant had 23 percent impairment of the
right upper extremity and 28 percent impairment of the left upper extremity based on the fifth
8

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

9

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 9, 2010).
10

See A.M.A., Guides 449, Table 15-23.

11

Id. at 448-50.

12

5 U.S.C. § 8123(a).

13

William C. Bush, 40 ECAB 1064, 1975 (1989).

5

edition of the A.M.A., Guides.
Dr. Urquhart’s findings.

Dr. Magliato, an OWCP medical adviser, agreed with

OWCP correctly requested that Dr. Urquhart provide an impairment rating under the
standards of the sixth edition of the A.M.A., Guides.14 Dr. Urquhart did not respond. Board
precedent and OWCP’s procedure manual provides that, if the selected impartial medical
examiner failed to provide an adequate clear response after a specific request for clarification,
OWCP may then seek a second impartial medical examiners opinion.15
Accordingly, OWCP properly referred appellant to Dr. Rosman, as an impartial medical
specialist, to determine the extent of her permanent impairment for schedule award purposes.
Dr. Rosman based his report on a proper factual background and provided physical findings in
support of his determination that appellant had eight percent impairment of each upper extremity.
In his July 15, 2010 report, Dr. Rosman discussed appellant’s medical history, including
pain in her hands, shoulders, arms and hands and essentially normal findings on examination.
He reviewed her medical records, including diagnostic testing of the right and left shoulders.
Dr. Rosman found that the date of maximum medical improvement was in September 2005, six
months after her March 25, 2005 revision left carpal tunnel release and decompression of the
distal ulnar nerve.
He evaluated appellant’s arm impairment under Table 15-23
(Entrapment/Compression Neuropathy Impairment) on page 449. For the right arm appellant fell
under grade modifier 4 for test findings (almost dead nerve), grade modifier 3 for history
(constant symptoms) and grade modifier 2 for physical findings (decreased sensation).
Dr. Rosman averaged these grade modifier values to 3 which meant that appellant fell under
grade modifier 3. The default value under grade modifier 3 is eight percent. For the left arm,
Dr. Rosman stated that appellant fell under a grade modifier 3 for test findings (axon loss), grade
modifier 3 for history (constant symptoms) and grade modifier 2 for physical findings (decreased
sensation). These grade modifiers were averaged to 2.7 and rounded up to 3 which meant that
overall appellant fell under a grade modifier 3 with a default rating value of eight percent.
Dr. Rosman stated that the grade modifiers for the left ulnar nerve lesion were zero. He
indicated that appellant’s functional scale for both arms fell under grade modifier 3 (severe) and
therefore there was no change from the default value of eight percent in each arm. Dr. Rosman
properly concluded that she had eight percent permanent impairment of her right arm and eight
percent permanent impairment of her left arm. Dr. Magliato, an OWCP medical adviser, agreed
with Dr. Rosman’s findings and conclusions and the Board finds that these impairment ratings
comport with the A.M.A., Guides.
In situations where there are opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper

14

OWCP’s decision regarding impairment was not issued until after May 1, 2009 and, therefore, its use of the
sixth edition of the A.M.A., Guides was appropriate. See supra note 8.
15

James P. Roberts, 31 ECAB 1010 (1980); Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical
Examinations, Chapter 3.500.6.b (May 2003).

6

factual background, must be given special weight.16 The Board finds that Dr. Rosman, the
impartial medical examiner, properly applied the A.M.A., Guides to appellant’s findings on
physical examination and diagnostic testing. His report was sufficiently detailed and well
reasoned to resolve the conflict of medical opinion evidence and establish appellant’s permanent
impairment for schedule award purposes. The Board finds that Dr. Rosman’s report is entitled to
the special weight of the medical evidence, afforded an impartial medical examiner, with regard
to appellant’s employment-related permanent impairment.
The record does not contain any medical evidence that establishes greater impairment in
accordance with the sixth edition of the A.M.A., Guides. The Board finds that appellant has not
established more than eight percent impairment of each upper extremity.
On appeal, counsel contends that OWCP abused its discretion by issuing a decision under
the sixth edition of the A.M.A., Guides rather than the fifth edition. He stated that appellant
would have received a greater schedule award under the fifth edition.
As noted, OWCP issued FECA Bulletin No. 09-03 on March 15, 2009 directing claims
examiners and other reviewing personnel to apply the sixth edition of the A.M.A., Guides as of
May 1, 2009. The FECA Bulletin directed that correspondence with treating physicians,
consultants and second opinion specialists should reflect use of the new edition for decisions
issued on or after May 1, 2009. In this case, OWCP, on three occasions from August 6 through
March 16, 2010, properly advised Dr. Urquhart, the first impartial medical examiner, that
effective May 1, 2009 all permanent impairment determinations must be made in accordance
with the sixth edition and requested a new impairment rating corresponding to this edition.
The Board has recognized that the method used in rating impairment for purposes of a
schedule award is a matter, which rests in the sound discretion of the Director. In Harry D.
Butler,17 the Board addressed OWCP’s use of the A.M.A., Guides to evaluate impairment since
the first edition single volume published in 1971. The Director has since adopted subsequent
editions of the A.M.A., Guides and has stated the date specific when use of each edition should
be made applicable to claims under FECA. Counsel has not established that the Director abused
the discretion delegated to him under section 8107 and the implementing federal regulations to
make the sixth edition of the A.M.A., Guides applicable to all claimants as of May 1, 2009. The
fact that the sixth edition revises the evaluation methods used in previous editions does not
establish an abuse of discretion. As noted in FECA Bulletin No. 09-03, the American Medical
Association periodically revises the A.M.A., Guides to incorporate current scientific clinical
knowledge and judgment and to establish standardized methodologies for calculating permanent
impairment.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.

16

Nathan L. Harrell, 41 ECAB 401, 407 (1990).

17

43 ECAB 859 (1992).

7

CONCLUSION
The Board finds that appellant has failed to establish that she has more than eight percent
impairment of each upper extremity, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the October 27, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 8, 2011
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
CENTRAL CALIFORNIA HEALTH SYSTEM,
Fresno, CA, Employer
__________________________________________

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

Docket No. 15-0613
Issued: August 7, 2015

Case Submitted on the Record

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

JURISDICTION
On January 26, 2015 appellant filed a timely appeal from a September 29, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
has elapsed from January 2, 2013, the date of the last merit decision at issue, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to present clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on or before February 10, 2008 appellant, then a 39-year-old
clinical psychologist, sustained right lateral epicondylitis, a right shoulder sprain, and a right
wrist sprain due to repetitive keyboarding, grasping, and reaching in the performance of duty.
Appellant worked light duty through April 2009, with intermittent work absences beginning on
February 11, 2009.
On May 1, 2009 appellant underwent a right lateral epicondylar release, approved by
OWCP. On May 5, 2009 OWCP noted that appellant’s pay rate as of May 1, 2009, the date that
disability began, was $1,803.92 a week. Appellant had no prior periods of total disability.
OWCP paid compensation on the supplemental rolls from May 1 to 29, 2009, based on the
$1,803.92 pay rate. Appellant returned to modified duty for four hours a day effective
June 17, 2009. She received compensation for the remaining four hours a day based on the
May 1, 2009 pay rate of $1,803.92 a week.
On December 16, 2009 appellant underwent a plasma graft into the right lateral
epicondylar area. She received total disability compensation through January 29, 2010 based on
the May 1, 2009 pay rate. Effective January 29, 2010, appellant returned to work for four hours
a day on Mondays, Wednesdays, and Fridays, and eight hours on Tuesdays and Thursdays. She
continued on this schedule through March 2010 and continuing.
In a March 8, 2010 memorandum, OWCP noted amending appellant’s pay rate as the
medical evidence indicated that she was temporarily totally disabled for work as of
February 11, 2009. It noted that the prior May 1, 2009 pay rate was for medical appointment
absences only. OWCP noted, however that appellant’s pay rate on both February 11 and May 1,
2009 was $1,803.92 a week.
On April 8, 2010 appellant underwent closed manipulation of the right shoulder under
anesthesia, approved by OWCP. She received compensation at the May 1, 2009 pay rate as of
March 23, 2010. Appellant remained off work pending additional surgery. On September 8,
2010 she underwent a plasma graft into the right lateral epicondylar area, and on September 16,
2010 underwent arthroscopic decompression of the right shoulder and rotator cuff repair.
Appellant remained off work through October 18, 2010 and received total disability
compensation. She returned to part-time modified duty for six hours a day on October 19, 2010.
Appellant continued to receive wage-loss compensation for the remaining hours at the
February 11, 2009 pay rate.
On December 3, 2010 OWCP expanded the claim to accept the newly diagnosed
conditions of adhesive capsulitis of both shoulders and left lateral epicondylitis. Appellant
stopped work on December 20, 2010. OWCP continued to issue total disability compensation at
the February 11, 2009 rate of $1,803.92 a week through January 28, 2011.
On February 4, 2011 appellant underwent a plasma graft injection to the left lateral
epicondylar area, approved by OWCP. She returned to part-time modified duty on February 9,
2011, working four hours a day on Mondays, Wednesdays, and Fridays, and eight hours a day on

2

Tuesdays and Thursdays. OWCP paid compensation for the remaining hours through March 25,
2011, using the February 11, 2009 pay rate.
On April 14, 2011 appellant underwent arthroscopic subacromial decompression of the
left shoulder, approved by OWCP.
In an April 20, 2011 payment log note, OWCP explained that appellant was “entitled to
pay rate of February 11, 2009 but was paid using May 1, 2009 which prevented her from getting
CPIs [consumer price index increases] for the first year.” It calculated that she was paid $733.80
but owed $758.85, a difference of $25.05.
Appellant remained off work through May 27, 2011. She received compensation at the
February 11, 2009 pay rate.2 On June 6, 2011 appellant returned to full-duty work for four hours
a day. As of September 1, 2011, she worked two hours a day, then four hours a day as of
December 5, 2011. OWCP continued to pay compensation based on the February 11, 2009 pay
rate through February 10, 2012.
On February 9, 2012 appellant underwent closed manipulation of the left shoulder under
anesthesia, approved by OWCP. She returned to work in mid-February 2012 for four hours a
day. OWCP continued to pay compensation at the February 11, 2009 rate for the remaining four
hours a day.
Appellant returned to full-time modified-duty work as of July 9, 2012. She again stopped
work on August 24, 2012. Appellant retired from the employing establishment on August 25,
2012, the date that the Office of Personnel Management (OPM) approved her application for
disability retirement benefits.3
On November 20, 2012 appellant claimed a schedule award. She provided an
October 25, 2012 impairment rating by Dr. Timothy L. Moore, an osteopathic physician Boardcertified in osteopathic manipulation, who opined that appellant had attained maximum medical
improvement as of that day. Dr. Moore found 14 percent impairment of the right upper
extremity and 12 percent impairment of the left upper extremity according to the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment. On
December 20, 2012 an OWCP medical adviser reviewed Dr. Moore’s report and concurred with
his impairment ratings and the determination of maximum medical improvement.
By decision dated January 2, 2013, OWCP granted appellant a schedule award for 14
percent permanent impairment of the right arm and 12 percent impairment of the left arm. The

2

In a June 9, 2011 note, OWCP stated that appellant was entitled to compensation at the February 11, 2009 rate
but that the payment system defaulted to the May 1, 2009 rate. This resulted in an underpayment of $83.50 for the
period April 30 to May 13, 2011.
3

In October 2012 appellant relocated from California to Nevada. She requested that OWCP approve a change of
physicians. By decision dated May 29, 2013, OWCP denied appellant’s request to change physicians. Following a
telephonic hearing, by decision dated and finalized January 31, 2014, it affirmed its May 29, 2013 decision denying
appellant’s request to change physicians.

3

period of the award ran from October 25, 2012 to May 15, 2014. OWCP based the schedule
award on appellant’s February 11, 2009 pay rate of $1,803.92 a week.4
In a June 7, 2014 letter received on July 16, 2014, appellant requested reconsideration of
the January 2, 2013 schedule award decision. She asserted that OWCP erred by basing the pay
rate on her February 9, 2009 salary of $1,803.92 a week instead of her wages closer to
October 25, 2012, the date that her physician and OWCP concurred that she reached maximum
medical improvement. Appellant submitted an August 31, 2014 earnings and leave statement
showing that as of her retirement on August 24, 2014, her pay rate was $1,882.00 a week.5
By decision dated September 29, 2014, OWCP denied appellant’s request for
reconsideration on the grounds that it was not timely filed and failed to present clear evidence of
error. It found that her request for reconsideration was received on July 16, 2014, more than one
year following the January 2, 2013 merit decision. OWCP also found that appellant’s letter and
the earnings and leave statement did not establish legal or factual error by OWCP.
LEGAL PRECEDENT
Section 8128(a) of FECA6 does not entitle a claimant to a review of an OWCP decision
as a matter of right.7 This section vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation.8 OWCP, through regulations, has imposed
limitations on the exercise of its discretionary authority. One such limitation is that OWCP will
not review a decision denying or terminating a benefit unless the application for review is
received within one year of the date of that decision.9 The Board has found that the imposition
of this one-year time limitation does not constitute an abuse of the discretionary authority
granted OWCP under 5 U.S.C. § 8128(a).10

4

On April 23, 2013 appellant requested that OWCP expand her claim to include bilateral medial epicondylitis,
cubital tunnel syndrome, left radial tunnel syndrome, bilateral carpal tunnel syndrome, and bilateral Guyon’s canal
syndrome sustained on or before August 24, 2012. She also contended that she sustained a recurrence of disability
on August 24, 2012. OWCP denied appellant’s recurrence claim and the additional upper extremity conditions by
decisions issued May 29, September 26, 2013, January 31, and July 9, 2014. These decisions are not before the
Board on the present appeal as they were issued more than 180 days prior to January 26, 2015, the date appellant
filed her appeal. 20 C.F.R. §§ 501.2(c) and 501.3.
5

On August 4, 2014 appellant filed an appeal from the January 2, 2013 OWCP decision. By order issued
March 12, 2015, the Board dismissed the appeal as it was not filed within 180 days of the January 2, 2013 decision.
Docket No. 14-1706 (issued March 12, 2015).
6

5 U.S.C. § 8128(a).

7

Thankamma Mathews, 44 ECAB 765, 768 (1993).

8

Id.; see also Jesus D. Sanchez, 41 ECAB 964, 966 (1990).

9

20 C.F.R. §§ 10.607; 10.608(b). The Board has concurred in OWCP’s limitation of its discretionary authority;
see Gregory Griffin, 41 ECAB 186 (1989), petition for recon. denied, 41 ECAB 458 (1990).
10

5 U.S.C. § 10.607(b); supra note 7; supra note 8.

4

In those cases where requests for reconsideration are untimely filed, OWCP must
nevertheless undertake a limited review of the case to determine whether there is clear evidence
of error pursuant to the untimely request in accordance with section 10.607(b) of its
regulations.11 Its regulations state that OWCP will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in its regulations, if the claimant’s request
for reconsideration shows “clear evidence of error” on the part of OWCP.12
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.13 The evidence must be positive, precise, and explicit and must
be manifest on its face that OWCP committed an error.14 Evidence which does not raise a
substantial question concerning the correctness of its decision is insufficient to establish clear
evidence of error.15 It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion.16 This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error by OWCP.17 The Board must make an
independent determination of whether a claimant has submitted clear evidence of error on the
part of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.18
Section 8107 of FECA provides that schedule award compensation for permanent
impairment of a scheduled member shall be based on the employee’s “monthly pay.”19 Such
compensation is to be based on the pay rate as determined under section 8101(4) which defines
“monthly pay” as “[t]he monthly pay at the time of injury, or the monthly pay at the time
disability begins, or the monthly pay at the time compensable disability recurs, if the recurrence
begins more than six months after the injured employee resumes regular full-time employment
with the United States, whichever is greater....”20

11

Supra note 7.

12

20 C.F.R. § 10.607(b).

13

Supra note 7.

14

Leona N. Travis, 43 ECAB 227 (1991).

15

Jesus D. Sanchez, supra note 8.

16

Supra note 14.

17

Nelson T. Thompson, 43 ECAB 919, 922 (1992).

18

Gregory Griffin, supra note 9; G.G., Docket No. 13-1886 (issued February 12, 2014). Cf. B.K., 59 ECAB 228
(2007) (where the claimant submitted a request for a schedule award based on new and current medical evidence,
OWCP would be required to issue a decision on the schedule award claim rather than adjudicate an application for
reconsideration).
19

5 U.S.C. § 8107(a).

20

Id. at § 8101(4).

5

The Board has held that where an injury is sustained over a period of time, as in the
present case, the date of injury is the date of last exposure to those work factors causing injury.21
Applying this principle to schedule award claims, the Board has held that the date of injury is the
date of the last exposure which adversely affects the impairment because every exposure which
has an adverse effect (an aggravation) constitutes an injury.22 OWCP must determine both the
date of last exposure to employment factors and the date of the supporting medical evaluation
upon which the degree of permanent impairment is determined.23 In a case where a claimant
continues to be exposed to injurious work factors and the medical evidence documents continued
worsening of the claimed condition, OWCP selects the date of last exposure to injurious work
factors as the date of injury.24
ANALYSIS
In its September 29, 2014 decision, OWCP properly determined that appellant failed to
file a timely application for review of the January 2, 2013 merit decision. Appellant requested
reconsideration by July 7, 2014 letter, received by OWCP on July 16, 2014, more than one year
from the issuance of the January 2, 2013 merit decision. OWCP denied the request by
September 29, 2014 decision as it was untimely filed and failed to present clear evidence of
error. As the July 16, 2014 reconsideration request was untimely filed, it must next be
determined whether appellant’s request demonstrated clear evidence of error in OWCP’s
January 2, 2013 merit decision.
The Board finds that appellant has not demonstrated clear evidence of error on the part of
OWCP in issuing its January 2, 2013 schedule award decision. Appellant did not submit the type
of positive, precise, and explicit evidence which manifests on its face that OWCP committed an
error.25
In her June 7, 2014 letter received on July 16, 2014, appellant requested reconsideration
of the June 2, 2013 schedule award determination and challenged the pay rate used for
compensation purposes in that decision. She noted that OWCP based the award on her pay rate
as of February 11, 2009, the date that disability began, but argued that her compensation should
have been based on her pay as of August 24, 2012, as this was closest to her attainment of
maximum medical improvement on October 25, 2012.
Appellant’s argument does not show clear evidence of error in the pay rate upon which
OWCP relied in the January 2, 2013 schedule award. She alluded to principles of law regarding
schedule award pay rates without explaining how they would apply to the particular facts of her
case. Appellant did not explain why her August 24, 2012 pay rate should be controlling. She
21

Sherron A. Roberts, 47 ECAB 617 (1996).

22

Barbara A. Dunnavant, 48 ECAB 517 (1997).

23

Id.

24

G.L., Docket No. 12-1795 (issued September 24, 2013).

25

J.C., Docket No. 14-905 (issued April 23, 2015).

6

did not discuss the medical evidence or explain that it demonstrated continued injurious
exposures through August 24, 2012, such that she would be entitled to the later pay rate in
calculating the schedule award.
For these reasons, appellant’s argument does not raise a substantial question concerning
the correctness of OWCP’s January 2, 2013 decision. OWCP properly determined that appellant
did not show clear evidence of error in that decision.26
On appeal, appellant contends that OWCP erred by calculating the amount of the
schedule award using her pay rate as of February 11, 2009. As set forth above, this argument
does not establishment clear evidence of error in OWCP’s January 2, 2013 schedule award.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of the claim as her request was untimely filed and failed to present clear
evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 29, 2014 is affirmed.
Issued: August 7, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
26

Id.

7


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
M.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Grand Island, NE, Employer
_________________________________________

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

Docket No. 13-928
Issued: August 15, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 11, 2013 appellant filed a timely appeal from the October 19, 2012 schedule
award decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the appeal.
ISSUE
The issue is whether appellant has more than 15 percent permanent impairment of her left
leg, for which she received a schedule award.
FACTUAL HISTORY
On February 9, 2011 appellant, then a 49-year-old nurse, sustained injury to her low back
with sharp pains in her hip and left leg in the performance of duty. She did not stop work.
1

5 U.S.C. § 8101 et seq.

OWCP accepted the claim for L3-4 disc herniation and lumbar radiculopathy. It also authorized
a June 9, 2011 left L3-4 hemilaminectomy. Appellant received compensation benefits.
In a December 6, 2011 report, Dr. Daniel J. Tomes, a Board-certified neurological
surgeon, examined appellant and noted that she ambulated while favoring the left leg. He
advised that the right leg was neurologically intact. Regarding the left leg, Dr. Tomes found
weakness of dorsiflexion with strength rated at 4/5. He determined that left plantar flexion
appeared quite strong; appellant had reduced sensation in the anterior tibial area of the left lower
leg, but that it was intact on the right side in the same distribution. There did not appear to be
any significant pain upon straight leg raise testing. Dr. Tomes diagnosed left leg radiculopathy,
left foot drop and prior left L3-4 discectomy on June 9, 2011.
On April 16, 2012 appellant filed a claim for a schedule award.
In a report dated August 17, 2012, OWCP’s medical adviser recommended that appellant
be evaluated by a second opinion physician for an impairment rating. He noted that Dr. Tomes
did not state that appellant had reached maximum medical improvement and the impairment
appeared due to radicular pain, sensory deficit or weakness affecting the left lower extremity.
On September 4, 2012 OWCP referred appellant to Dr. Anil K. Agarwal, a Boardcertified orthopedic surgeon. In a September 21, 2012 report, Dr. Agarwal noted appellant’s
history of injury and treatment. He utilized the American Medical Association, Guides to the
Evaluation of Permanent Impairment, (6th ed. 2008) (A.M.A., Guides). Dr. Agarwal’s findings
on examination included: reduced sensation in the anterior tibial area of the left leg and no
abnormal sensation; decreased muscle tone in the left leg, left leg weakness of dorsiflexion and
strength of four out five; no appreciable atrophy in the muscles of the lower extremities and
superficial touch pain and vibratory sensation decreased on the left side. He diagnosed left leg
radiculopathy, left foot drop, status post left L3-4 hemilaminectomy with mesial facetectomy and
forminotomy for nerve root decompression with discectomy on June 9, 2011. Dr. Agarwal
referred to Table 16-12, Peripheral Nerve Impairment.2 He noted that appellant fell into a
moderate category with moderate motor deficit and mild sensory deficits for a class 2 diagnosis.
Dr. Agarwal applied the net adjustment formula and grade modifiers. He referred to Table 16-11
of the A.M.A., Guides3 and determined the grade modifier for Physical Examination (GMPE)
findings correlated to a 1. Dr. Agarwal advised that grade modifiers for Functional History
(GMFH) and Clinical Studies (GMCS) were not applicable. He utilized the net adjustment
formula and explained that the net adjustment was minus one moved from the default score C to
B equaling 15 percent permanent impairment of the left leg. Dr. Agarwal noted that appellant
reached maximum medical improvement on December 6, 2011.
In an October 10, 2012 report, Dr. David D. Zimmermann, an OWCP medical adviser
noted appellant’s history of injury and treatment. He concurred with Dr. Agarwal that appellant
had a 15 percent impairment of the left leg and that maximum medical improvement was reached
on December 6, 2011. The medical adviser noted that appellant had radicular residuals of her
2

A.M.A., Guides 534.

3

Id. at 533.

2

lumbar condition and referred to the lower extremity peripheral nerve and the grade modifier
tables.
On October 19, 2012 OWCP granted appellant a schedule award for 15 percent
permanent impairment of the left leg. The award covered a period of 43.2 weeks from
September 22, 2012 to July 21, 2013. OWCP noted that it moved the date of maximum medical
improvement to September 21, 2012 as this was more advantageous to appellant.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing federal regulations5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.7
For decisions issued after May 1, 2009, the sixth edition will be used.8
In addressing lower extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on GMFH, GMPE and GMCS.9 The net adjustment formula is (GMFH-CDX) + (GMPECDX) + (GMCS-CDX).10
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as impairments of the extremities. Recognizing that FECA allows ratings
for extremities and precludes ratings for the spine, the A.M.A., Guides offers an approach to
rating spinal nerve impairments consistent with sixth edition methodology.11 OWCP has
adopted this approach for rating impairment to the upper or lower extremities caused by a spinal
injury.12

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

8

FECA Bulletin No. 09-03 (issued March 15, 2009).

9

A.M.A., Guides 494-531; see J.B., Docket No. 09-2191 (issued May 14, 2010).

10

Id. at 521.

11

L.J., Docket No. 10-1263 (issued March 3, 2011).

12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).

3

ANALYSIS
The Board finds that this case is not in posture for decision. Proceedings under FECA
are not adversarial in nature and OWCP is not a disinterested arbiter. While the claimant has the
burden to establish entitlement to compensation, OWCP shares responsibility in the development
of the evidence to see that justice is done.13
OWCP accepted appellant’s traumatic injury claim for L3-4 disc herniation and lumbar
radiculopathy and granted a schedule award for 15 percent permanent impairment of the left
lower extremity.
The Board notes that both the second opinion physician and OWCP’s medical adviser
citied various tables in the A.M.A., Guides and calculated an impairment rating of 15 percent for
the left lower extremity. While FECA does not authorize schedule awards for loss of use of the
spine, a claimant may still be entitled to an award for loss of use of a limb where the cause of the
impairment originated in the spine. Because the A.M.A., Guides does not provide a separate
mechanism for rating spinal nerve injuries as impairments of the extremities, OWCP has adopted
the standard set forth in The Guides Newsletter.14
In this case, neither Dr. Agarwal nor OWCP’s medical adviser utilized the standard set
forth in The Guides Newsletter or explained why it was not applicable.15 Their opinions on the
extent of appellant’s permanent impairment are of reduced probative value.16
The Board finds that the case is not in posture for decision as none of the physicians
properly explained how they arrived at their impairment ratings. For nerve impairments to the
upper or lower extremities resulting from spinal injuries, OWCP procedures contemplate that the
examiner should apply the July to August 2009 The Guides Newsletter.17 The Board will thus
remand the case for proper application of the A.M.A., Guides regarding the extent of appellant’s
permanent impairment of the left lower extremity. After such development as it deems
necessary, OWCP shall issue an appropriate decision on the extent of the permanent impairment
of appellant’s left lower extremity.
CONCLUSION
The Board finds that this case is not in posture for decision.

13

Horace L. Fuller, 53 ECAB 775, 777 (2002).

14

See supra note 11.

15

Furthermore, in rating impairment under Table 16-12, Dr. Agarwal stated that grade modifiers for functional
history and clinical studies did not apply but he offered no explanation regarding this.
16

James Kennedy, Jr., 40 ECAB 620, 627 (1989).

17

See supra note 11.

4

ORDER
IT IS HEREBY ORDERED THAT the October 19, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and remanded.
Issued: August 15, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 08-315
Issued: August 22, 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 November 13, 2007 appellant, through counsel, filed a timely appeal from an
October 18, 2007 decision of an Office of Workers’ Compensation Programs’ hearing
representative who affirmed the denial of her emotional condition claim. Pursuant to 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 established that she sustained an emotional condition in
the performance of duty.
FACTUAL HISTORY
On November 13, 2006 appellant, then a 50-year-old rural route carrier, filed an
occupational disease claim alleging that on October 24, 2006 she first realized her stress was
employment related. She attributed her stress to pain from injuries sustained in an employmentrelated automobile accident on July 25, 2003, which was aggravated by walking on concrete

floors and “answering the [tele]phone constantly, other employees asking me to do jobs for
them.”
In support of her claim, appellant submitted an October 24, 2006 progress note and
October 30, 2006 report by Dr. Bipin M. Desai, a treating Board-certified psychiatrist, who noted
that appellant appeared angry, anxious and depressed. She related that she had difficulty with
her employment. Appellant informed Dr. Desai that “she’s been hanging up on customers, she’s
been rude to them” and was afraid of losing her job. Dr. Desai opined that appellant was
“[s]truggling with chronic pain.” He diagnosed depression, chronic pain, irritability and poor
attention span and was disabled for the period October 24 to November 14, 2006. On
November 7, 2006 Dr. Desai again diagnosed depression and noted that appellant was to be off
work from November 7 to 30, 2006.
On December 5, 2005 the Office received appellant’s statement. She reiterated that she
had been in constant pain since an employment-related automobile accident on July 25, 2003.
As a result of this accident, appellant worked at a limited-duty job and began to see Dr. Desai on
September 28, 2004 to assist her in coping with her pain and stress.
By letter dated December 12, 2006, the Office informed appellant that the evidence of
record was insufficient to support her claim. It advised her to submit additional medical and
factual evidence.
Appellant submitted additional medical reports pertaining to her prior treatment.
In a September 28, 2004 report, Dr. Desai diagnosed recurrent moderate to severe major
depressive disorder and pain disorder due to psychological and pain factors. He reported that
appellant had been involved in an automobile accident on July 25, 2003 while delivering mail.
Appellant informed Dr. Desai that she had returned to a limited-duty job and “[w]orkers’
[c]omp[ensation] is fighting her every step of the way.” On October 22, 2004 Dr. Desai reported
improvement in her affect and mood and that her flashbacks and nightmares “have pretty much
resolved.” In a December 24, 2004 progress note, he stated that appellant related being
frustrated due to the employing establishment making increasing demands on her. Dr. Desai
diagnosed depression and anxiety and noted that appellant felt overwhelmed. On November 9,
2004 he reported that appellant was anxious and depressed and “[s]truggling with chronic pain
and work-related stressors.”
On November 30, 2004 Dr. Desai reported that appellant was coping better with her
chronic pain and her affect and mood were improved.
In a progress note dated January 11, 2005, Dr. Desai stated that appellant was anxious
and depressed. He reported that appellant was “having difficulties with anxiety and nightmares”
and that she was afraid the employing establishment was going to transfer her. On February 1,
2005 Dr. Desai reported improvement in mood and effect and that her flashbacks and nightmares
had decreased. On March 1, 2005 he noted that appellant was anxious and mildly depressed and
working light duty.
In progress notes dated May 25, 2005, Dr. Desai reported that appellant was working
light duty and was “[c]oping with work-related stressors.” He reported her mood as mildly
2

anxious with an appropriate affect. On August 24, 2005 Dr. Desai related that appellant was
performing light-duty work and “doing adequately at this time” with a mildly anxious mood.
In progress notes dated November 8, 2005 and January 31, 2006, Dr. Desai reported
appellant as mildly anxious with a fairly bright affect. He again stated that she was “doing
adequately at this time” and was “[c]oping with her disabilities and work-related stressors.”
On July 18, 2006 Dr. Desai related that appellant was coping at work. He noted that her
mood was slightly anxious while her affect was fairly bright and she was working 40 hours per
week. On October 10, 2006 Dr. Desai noted that appellant was anxious, depressed and irritable.
Appellant related that she had “been short with customers” as well as hanging up on them. She
“[s]poke at lengths the work-related stressors” and related that “she’s afraid she’s going to lose
her job.”
Dr. Desai subsequently reported appellant’s affect and mood became improved and she
was “less irritable” He reported that appellant was “coping better with stressors including her
chronic pain.” On November 22, 2006 Dr. Desai treated appellant for recurrent moderate to
severe major depression, pain disorder and post-traumatic stress disorder which he attributed “to
both physical and psychological factors.” He opined that she was currently totally and
permanently disabled.
By decision dated February 26, 2007, the Office denied appellant’s claim on the grounds
that she failed to establish that her depression was causally related to her federal employment. It
found the medical evidence of record insufficient to establish a causal relationship between
appellant’s emotional condition and disability as of October 24, 2006 and her duties as a rural
carrier.
In a letter dated March 10, 2007, appellant’s counsel requested an oral hearing before an
Office hearing representative, which was held on July 24, 2007. At the oral hearing, appellant
testified that she performed limited-duty work in 2004. Her duties, beginning in 2005, initially
included answering the telephone but were expanded to include verifying certified mail, lifting
trays of mail and data entry. Verifying certified mail consisted of people calling her on the
telephone to locate the certified mail. Appellant had to determine whether the mail had been
returned to sender or sent back for some other reason. She then “had to take mail out to the
carriers that had forgotten their mail.” In October 2006, appellant started making inputs in the
computer for the postal customers, checking off the carriers’ accountable mail. She testified that
she took pain pills and her light-duty job involved more walking, as the bathroom was located on
the other side of the building. Appellant stated that “it was just a lot of work” and she
experienced flashbacks and nightmares of her automobile accident. She related that on or about
October 24, 2006 she became frustrated with her job and “just cracked.”
In a report dated March 14, 2007, Dr. Desai stated that appellant had experienced
significant neck and back pain since the July 25, 2003 employment injury. Since that time, while
delivering mail, appellant became depressed, anxious, irritable, labile and had difficulties getting
along with her peers. Dr. Desai diagnosed major depressive disorder due to chronic pain which
he attributed to the July 25, 2003 employment injury. He also reported appellant as having post-

3

traumatic stress disorder with flashbacks and nightmares. Dr. Desai opined that appellant was
totally disabled.
Subsequent to the hearing, appellant submitted progress notes for the period April 25,
2006 through May 7, 2007 from Dr. Desai.
By decision dated October 18, 2007, the Office hearing representative affirmed the denial
of appellant’s claim. The Office hearing representative found that appellant established an
increased workload since early 2006 based on her testimony that she was performing multiple
limited-duty assignments and the employing establishment did not controvert her description.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with employment but nevertheless does not come within the
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to her regular or specially assigned work duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.1 On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.2
When working conditions are alleged as factors in causing disability, the Office, as part
of its adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable work factors of employment, which may be considered by a physician
when providing an opinion on causal relationship and which are not deemed compensable factors
of employment and may not be considered.3 When a claimant fails to implicate a compensable
factor of employment, the Office should make a specific finding in that regard. If a claimant
does implicate a factor of employment, the Office should then determine whether the evidence of
record substantiates that factor.4 As a rule, allegations alone by a claimant are insufficient to
establish a factual basis for an emotional condition claim but rather must be corroborated by the
evidence.5 Where the claimant alleges compensable factors of employment, she must
substantiate such allegations with probative and reliable evidence.6 When the matter asserted is

1

5 U.S.C. §§ 8101-8193.

2

J.C., 58 ECAB ___ (Docket No. 07-530, issued July 9, 2007); Lillian Cutler, 28 ECAB 125 (1976).

3

M.D., 59 ECAB ___ (Docket No. 07-908, issued November 19, 2007); Dennis J. Balogh, 52 ECAB 232 (2001).

4

Margaret S. Krzycki, 43 ECAB 496 (1992).

5

See Charles E. McAndrews, 55 ECAB 711 (2004).

6

Joel Parker, Sr., 43 ECAB 220 (1991).

4

a compensable factor of employment and the evidence of record establishes the truth of the
matter asserted, then the Office must base its decision on an analysis of the medical evidence.7
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.8 Rationalized medical
opinion evidence is medical evidence which includes a physician’s opinion on the issue of
whether there is a causal relationship between the claimant’s diagnosed condition and the
implicated employment factors.9 The opinion of the physician must be based on a complete
factual and medical background, must be one of reasonable medical certainty and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific compensable employment factors identified by the claimant.10
ANALYSIS
After appellant returned to limited duty following the 2003 employment injury, she
alleged that her work duties increased. The hearing representative noted that, as of 2006, she
answered telephones to verify certified mail inquires and made data inputs into the computer.
The Board has held that conditions related to stress from situations in which an employee is
performing her regular specially assigned duties are compensable.11 The evidence in this case is
sufficient to establish that appellant’s work duties increased. The employing establishment did
not dispute appellant’s description regarding the work she was performing and there is no
contrary evidence of record. Under Cutler,12 appellant has established a compensable work
factor. This is not enough, however, to establish entitlement to benefits. Appellant must
establish a causal connection between this compensable factor of employment and her diagnosed
medical conditions.13
Appellant also attributed her stress to pain from injuries sustained in her July 25, 2003
employment-related automobile accident. Dr. Desai’s initial medical report noted that appellant
was “[s]truggling with chronic pain.” In a September 28, 2004 report, he diagnosed recurrent
moderate to severe major depressive disorder and pain disorder due to psychological and pain
factors. Dr. Desai reported an accurate history that appellant had been involved in an automobile
accident on July 25, 2003 while delivering mail. He diagnosed depression and anxiety on
November 9, 2004, which he attributed to appellant’s chronic pain and to other work-related
stressors. On March 14, 2007 Dr. Desai stated that appellant has experienced “significant neck
and back pain” since her July 25, 2003 employment injury and that since the injury she has “been
7

See Charles D. Edwards, 55 ECAB 258 (2004).

8

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007).

9

D.D., 57 ECAB 734 (2006).

10

Gary J. Watling, 52 ECAB 278 (2001); Donna Faye Cardwell, 41 ECAB 730 (1990).

11

Beverly R. Jones, 55 ECAB 411 (2004).

12

Lillian Cutler, supra note 2.

13

Doretha M. Belnavis, 57 ECAB 311 (2006); Beverly R. Jones, supra note 11.

5

depressed, anxious, irritable, labile and has had difficulties getting along with her peers.” He
diagnosed major depressive disorder due to chronic pain which he attributed to the July 25, 2003
employment injury.
It is well established that proceedings under the Act14 are not adversarial in nature.15
While appellant has the burden to establish entitlement to compensation, the Office shares
responsibility in the development of the evidence.16 The Office has an obligation to see that
justice is done.17 While the reports of Dr. Desai are not completely rationalized on the issue of
causal relationship, they are sufficient to raise an uncontroverted inference between appellant’s
depression and chronic pain arising from the accepted July 25, 2003 employment injury and to
the Cutler factors in this case.18 The Board will remand the case for further development of the
medical evidence and for an appropriate final decision on this issue.
CONCLUSION
The Board finds that this case is not in posture for decision on whether appellant
sustained an emotional condition consequential to the accepted July 25, 2003 employment injury
or to the accepted factor of her limited-duty work.

14

5 U.S.C. §§ 8101-8193.

15

William B. Webb, 56 ECAB 156 (2004); John J. Carlone, 41 ECAB 354 (1989).

16

Peter C. Belkind, 56 ECAB 580 (2005); Dorothy L. Sidwell, 36 ECAB 699 (1985).

17

R.E., 59 ECAB ___ (Docket No. 07-1604, issued January 17, 2008); Rebecca O. Bolte, 57 ECAB 687 (2006).

18

See John J. Carlone, see supra note 15.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 18, 2007 is set aside and the case remanded for further
proceeings consistent with the above opinion.
Issued: August 22, 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

7