United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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and
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DEPARTMENT OF THE NAVY, NAVAL BASE, )
Ventura, CA, Employer
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__________________________________________ )
H.K., Appellant

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

Docket No. 13-1925
Issued: April 9, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 19, 2013 appellant filed a timely appeal from a March 22, 2013 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant is entitled to greater than one percent impairment of the
left lower extremity, for which he received a schedule award.
FACTUAL HISTORY
OWCP accepted that on March 13, 2010 appellant, then a 52-year-old lead firefighter,
sustained injuries to his left knee as a result of landing hard on his left leg while playing
racquetball. He did not stop work. Appellant’s claim was accepted for left derangement of
1

5 U.S.C. § 8101 et seq.

medial meniscus, tear of median meniscus of the left knee and left knee sprain. On February 2,
2011 he underwent surgical arthroscopy of the left knee with anterior cruciate ligament (ACL)
reconstruction, partial medial meniscectomy and chondroplasty and debridement. Appellant
stopped work and received disability compensation.
In an August 16, 2011 report, Dr. Mark H. Getelman, a Board-certified orthopedic
surgeon, provided an accurate history of injury and noted that appellant underwent physical
therapy and ACL reconstruction surgery. Upon examination, he observed that appellant’s left
knee was not buckling or locking. Extension was full and flexion was to 140 degrees.
Dr. Getelman stated that appellant had reached maximum medical improvement. He reviewed
the various charts and tables of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) as they related to the knee and reported that appellant
had two percent impairment to the whole person due to a partial medial meniscectomy and seven
percent impairment for some mild residual laxity secondary to his cruciate ligament injury.
Dr. Getelman further determined that, according to Table 17-33, appellant had a total of nine
percent impairment, which converted to four percent impairment to the whole person.
In a December 6, 2011 report, Dr. Getelman noted that appellant was last seen on
August 16, 2011 and found to be at maximum medical improvement. Upon examination of
appellant’s left knee, he observed no effusion, no instability to varus or valgus testing and no
tenderness over the medial or lateral joint line. He was able to do active straight leg raise testing
without lag. Dr. Getelman noted trace Lachman with a negative pivot shift. He reported that
diagnostic testing revealed no asymmetric joint space narrowing and no fractures. Dr. Getelman
diagnosed status post left knee strain and post ACL reconstruction of the left knee.
On December 14, 2011 appellant filed a schedule award claim.
On December 21, 2011 OWCP referred appellant’s schedule award claim to the district
medical adviser. In a December 30, 2011 report, Dr. Leonard A. Simpson, a Board-certified
orthopedic surgeon and OWCP medical adviser, noted appellant’s accepted conditions of left
knee medial meniscal unspecified derangement and left medial meniscal tear. He reviewed
appellant’s history, including the statement of accepted facts and related that appellant
underwent left knee arthroscopy with ACL ligament reconstruction and partial medial
meniscectomy along with chondroplasty and debridement. Dr. Simpson stated that he reviewed
Dr. Getelman’s August 16, 2011 report and noted it as the date of maximum medical
improvement. He indicated that, according to the sixth edition of the A.M.A., Guides, Table
16-3 for Knee Regional Grid-Lower Extremity Impairment, appellant was class 1 or two percent
for post partial medial meniscectomy. Dr. Simpson indicated that appellant had grade
modifiers -1 for functional history and -1 for physical examination. He reported that clinical
studies were not applicable at the time of maximum medical improvement. Dr. Simpson
calculated that appellant had a total net adjustment of -2, which placed appellant into class 1,
Category A or a one percent lower extremity impairment. He stated that before any additional
impairment could be calculated for residual ACL tear, additional clarification was needed
regarding whether there was any clinical instability following the ACL reconstruction and if so,
the degree of laxity. Dr. Simpson opined that if there was some mild laxity present appellant
would qualify for a class 1 -- 10 percent default rating that would need to be modified according
to the various Adjustment Grids. He concluded that at the present time he would assess that

2

appellant had one percent impairment of the left lower extremity but recommended additional
clarification regarding appellant’s residual ACL laxity following reconstruction and
recommended that OWCP expand the work-related diagnosis to include a torn left ACL.
Appellant submitted April 5 and May 17, 2011 reports wherein Dr. Getelman noted that
appellant was doing well following surgical arthroscopy of the left knee with ACL
reconstruction, partial medial meniscectomy and debridement. Upon examination, Dr. Getelman
observed that appellant’s incisions were healing and that he had excellent stability. Extension of
the left knee was full and flexion was to 140 degrees. Dr. Getelman reported that appellant was
temporarily totally disabled until May 30, 2011 and would be able to return to full duty on
May 31, 2011 if he used a custom molded ACL brace.
Appellant also submitted various physical therapy reports dated from March 31 to
June 17, 2011.
By letter dated February 14, 2012, OWCP requested that Dr. Getelman review the
medical adviser’s report and clarify whether appellant had any residual ACL laxity following
reconstruction.
In a February 7, 2013 report, Dr. Getelman stated that appellant was last seen on
December 6, 2011 after experiencing increased pain in his right knee. He related that appellant
returned to his usual occupation and only experienced occasional discomfort if he golfed back to
back days. Upon examination of appellant’s left knee, Dr. Getelman did not observe any
effusion, instability to varus or valgus testing or tenderness over the medial or lateral joint line.
He noted that appellant had trace Lachman with a negative pivot shift and was able to do an
active straight leg raise without lag. Dr. Getelman reported that KT-100 testing revealed
10 millimeters (mm) on the left knee and 16 mm on the right knee, which was also reconstructed.
He diagnosed status post left knee strain-resolved and status post ACL reconstruction, left knee
with partial medial meniscectomy and debridement. Dr. Getelman stated that appellant was
previously found to be at maximum medical improvement and that he could continue to work his
usual and customary duties.
On March 19, 2013 OWCP expanded appellant’s claim to include left ACL tear.
By decision dated March 22, 2013, OWCP granted a schedule award for one percent
impairment of the left lower extremity based on Dr. Getelman’s August 16, 2011 report and the
medical adviser’s December 30, 2011 report. The period ran for 2.88 weeks from August 16 to
September 5, 2011.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of 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

3

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 appropriate standards for evaluating schedule
losses.2
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).3 In determining impairment for lower extremity impairments under the sixth
edition, an evaluator identifies the impairment class for the diagnosed condition (CDX), which is
then adjusted by grade modifiers based on Functional History (GMFH), Physical Examination
(GMPE) and Clinical Studies (GMCS).4 The net adjustment formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).5
It is well established that, proceedings under FECA are not adversarial in nature and
while the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.6 Once OWCP undertakes the development of
the record, it has the responsibility to do so in a proper manner to see that justice is done.7
ANALYSIS
OWCP accepted that appellant sustained left derangement of medial meniscus, tear of
medial meniscus of the left knee, left knee sprain and left ACL tear as a result of a March 13,
2010 employment incident. On February 2, 2011 appellant underwent surgical arthroscopy of
the left knee with ACL reconstruction, partial medial meniscectomy and chondroplasty and
debridement. He filed a claim for schedule award. By decision March 22, 2013, OWCP granted
a schedule award for one percent impairment of the left lower extremity.
The Board finds that this case is not in posture for decision regarding the degree of
appellant’s left lower extremity impairment due to his accepted left knee condition.
Along with his schedule award claim, appellant submitted various reports by
Dr. Getelman. In an August 16, 2011 report, Dr. Getelman provided an accurate history of
injury and noted that appellant underwent physical therapy and ACL reconstruction surgery. He
conducted an examination and reported that appellant reached maximum medical improvement.
Utilizing the A.M.A., Guides, Dr. Getelman determined that appellant had two percent
impairment to the whole person due to a partial medial meniscectomy and seven percent
impairment for some mild residual laxity secondary to his cruciate ligament injury. He further

2

20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

3

A.M.A., Guides 3, 6 (6th ed. 2008).

4

Id. at 494-531.

5

Id. at 521.

6

Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J. Cantrell, 34 ECAB 1233, 1237 (1983).

7

Henry G. Flores, Jr., 43 ECAB 901 (1992); John J. Carlone, 41 ECAB 354 (1989).

4

determined that, according to Table 17-3, appellant had a total of four percent impairment to the
whole person.
In the December 30, 2011 report, Dr. Simpson, the medical adviser, reviewed appellant’s
history, including the statement of accepted facts and related his accepted conditions of left knee
medial meniscal unspecified derangement and left medial meniscal tear.
He noted
Dr. Getelman’s August 16, 2011 report as the date of maximum medical improvement.
Dr. Simpson reported that, according to the sixth edition of the A.M.A., Guides, appellant had
one percent lower extremity permanent impairment. He stated that before any additional
impairment could be calculated for the residual ACL tear, additional clarification was needed
regarding whether there was any clinical instability following the ACL reconstruction and if so,
the degree of laxity. Dr. Simpson concluded that at the present time he would assess that
appellant had one percent impairment of the left lower extremity, but recommended additional
clarification regarding appellant’s residual ACL laxity following reconstruction and
recommended that OWCP expand the work-related diagnosis to include a torn left ACL.
OWCP referred the medical adviser’s report to Dr. Getelman to review the report and
clarify whether appellant had any residual ACL laxity following reconstruction. In a February 7,
2013 report, Dr. Getelman conducted an examination and reported no instability to varus or
valgus testing.
OWCP accepted appellant’s claim to include left ACL tear and granted a schedule award
for one percent impairment of the left lower extremity based on Dr. Getelman’s August 16, 2011
report and the medical adviser’s December 30, 2011 report.
The medical adviser had requested further clarification from the treating physician and
for OWCP to accept the additional condition of ACL tear. By letter dated February 14, 2012,
OWCP requested that Dr. Getelman clarify whether appellant had any residual ACL laxity
following reconstruction. Following that report and the acceptance of the additional condition of
ACL tear, it did not allow the medical adviser an opportunity to review Dr. Getelman’s report or
to consider the consequence of the accepted ACL tear.
Once OWCP undertakes development of the record, it must do so in a proper manner.8
This case must be remanded for further development.
On remand, OWCP should update the statement of accepted facts to reflect the newly
accepted conditions of ACL tear and refer Dr. Getelman’s February 7, 2013 report to OWCP’s
medical adviser for determination as to whether there were adequate findings for an increased
impairment rating. After this and such other development as OWCP deems necessary, OWCP
should issue a de novo decision on her entitlement to a schedule award.
CONCLUSION
The Board finds that the case is not in posture for decision.

8

Id.

5

ORDER
IT IS HEREBY ORDERED THAT the March 22, 2013 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
consistent with the decision of the Board.
Issued: April 9, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF THE ARMY, HUNTER
ARMY AIRFIELD, Savannah, GA, Employer
__________________________________________

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

Docket No. 11-1211
Issued: December 5, 2011

Case Submitted on the Record

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

JURISDICTION
On April 21, 2011 appellant filed a timely appeal from a February 23, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) terminating his
compensation benefits. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation
effective February 24, 2011 on the grounds that he had no further disability causally related to

1

5 U.S.C. § 8101 et seq.

his accepted employment injury; and (2) whether it properly terminated authorization for medical
benefits.
FACTUAL HISTORY
On December 29, 1970 appellant, then a 36-year-old equipment mechanic, filed a claim
alleging that on that date he injured his back lifting batteries. OWCP accepted his claim for back
strain and an aggravation of degenerative arthritis of the back. After sustaining intermittent
periods of disability, appellant stopped work on June 1, 1972 and did not return. OWCP paid
him compensation for total disability.
By letter dated June 15, 2010, OWCP referred appellant to Dr. Douglas Hein, a Boardcertified orthopedic surgeon, for a second opinion examination.2 On July 21, 2010 Dr. Hein
discussed appellant’s history of a December 1970 work injury and noted that he had other
nonemployment-related medical conditions. On examination he found no tenderness, spasm,
loss of sensation or strength and a negative straight leg test. Dr Hein diagnosed mild
degenerative disc disease “frequently found in people of his age.” He found no significant disc
problems, neurological deficits or spinal stenosis. Dr. Hein opined that the subjective complaints
outweighed the objective findings on examination and by history. He determined that
appellant’s current condition was not due to the December 29, 1970 employment injury.
Dr. Hein explained that the work injury “should have been a self-limited process, particularly
since there was no evidence of herniated nucleus pulposa or complaints to suggest that at that
time.” He opined that appellant’s condition resolved within 6 to 12 months of the injury and that
after that date he had no further work restrictions due to his employment injury. In an
accompanying work restriction evaluation, Dr. Hein found that he could perform his usual
employment.
On January 20, 2011 OWCP notified appellant of its proposed termination of
compensation and authorization for medical benefits. In response to the proposed termination,
he submitted an April 15, 2010 medical report from Dr. Andrew T. Sheils, Jr., a Board-certified
orthopedic surgeon, who related that a 2006 magnetic resonance imaging (MRI) scan study
showed lumbar spinal stenosis. Dr. Sheils diagnosed “lumbar spine pathology manifesting as
lumbar spinal stenosis.”
In a medical report dated January 27, 2011, Dr. Sheils noted that OWCP was attempting
to terminate appellant’s compensation. He stated, “What is in his back at this point is chronic
degenerative conditions. Any work injury that he had back years ago is very unlikely to be in
play at this point.”
By decision dated February 23, 2011, OWCP terminated appellant’s compensation and
authorization for medical treatment effective February 24, 2011. It found that the weight of the
evidence established that he had no further employment-related disability or need for further
medical treatment.

2

The most recent medical report at the time of OWCP’s referral of appellant to Dr. Hein was dated
September 19, 2006.

2

On appeal appellant argues that Dr. Hein only watched him walk across the room and
checked his reflexes during his examination. He further questions why Dr. Sheils found that he
could go to work given that he had treated him with an injection.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.3
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained back strain and an aggravation of degenerative
arthritis of the back. It paid him compensation for disability from 1972 onward.
As the record contained no current medical evidence, on June 15, 2010 OWCP referred
appellant to Dr. Hein for a second opinion examination. It terminated his compensation benefits
based on its finding that Dr. Hein’s report constituted the weight of the medical evidence and
established that he had no further employment-related disability. The Board has reviewed the
opinion of Dr. Hein and finds that it has reliability, probative value and convincing quality with
respect to the conclusions reached. He found that appellant had no further disability due to his
accepted work injury after a thorough review of the factual and medical history and detailed
findings on physical examination. Dr. Hein advised that appellant’s work injury to his back
resolved within one year of the injury. He provided medical rationale for his opinion by
explaining that he found no evidence on examination of neurologic deficits or disc problems and
that appellant’s current diagnosis was mild degenerative disc disease consistent with age.
Considering only his employment-related back condition, Dr. Hein found that he could resume
his regular employment duties.
The remaining evidence submitted prior to OWCP’s termination of benefits is
insufficient to support that appellant remains disabled due to his employment injury. In a report
dated April 15, 2010, Dr. Sheils diagnosed lumbar spinal stenosis. He did not, however, address
the cause of the diagnosed condition and thus his opinion is of little probative value.5
On January 27, 2011 Dr. Sheils diagnosed a chronic, degenerative condition and opined
that it was “very unlikely” that appellant’s work injury was “in play at this point.” His opinion
thus does not support that appellant has further disability due to his December 29, 1970
employment injury.
3

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

4

Gewin C. Hawkins, 52 ECAB 242 (2001).

5

The Board has held that medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of diminished probative value on the issue of causal relationship. See Conard Hightower, 54 ECAB
796 (2003).

3

The Board finds that Dr. Hein’s second opinion report is sufficiently rationalized to
establish that appellant’s employment-related back strain and aggravation of degenerative back
arthritis have resolved.6 Dr. Hein’s reasoned opinion is based on a proper factual and medical
history and statement of accepted facts. There is no medical evidence showing any continuing
disability due to his accepted conditions.
On appeal appellant maintains that Dr. Hein did not conduct a thorough examination. He
did not, however, submit any evidence supporting his allegation. Appellant also questions why
Dr. Sheils found that he could work while also offering medical treatment. Dr. Sheils, however,
addressed whether appellant’s condition was related to his employment injury rather than his
ability to return to work.
LEGAL PRECEDENT -- ISSUE 2
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.7 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.8
ANALYSIS -- ISSUE 2
OWCP met its burden of proof to terminate authorization for medical benefits through
the opinion of Dr. Hein, who provided a second opinion examination and found that appellant
had no residuals of his accepted condition. He determined that appellant’s condition had
resolved within a year of the work injury. As Dr. Hein’s opinion is detailed and well
rationalized, it constitutes the weight of the evidence and establishes that he has no further
residuals of his accepted employment injury.9
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s compensation and
authorization for medical treatment effective February 24, 2011 on the grounds that he had no
further disability or condition causally related to his accepted employment injury
6

See Michael S. Mina, 57 ECAB 379 (2006) (in assessing medical evidence, the weight of such evidence is
determined by its reliability, its probative value and its convincing quality; the opportunity for and thoroughness of
examination, the accuracy and completeness of the physician’s knowledge of the facts and medical history, the care
of analysis manifested and the medical rationale expressed in support of the physician’s opinion are facts which
determine the weight to be given to each individual report).
7

See T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

8

Id.

9

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

4

ORDER
IT IS HEREBY ORDERED THAT the February 23, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 5, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.D., Appellant
and
DEPARTMENT OF THE NAVY,
WASHINGTON NAVAL YARD,
Washington, DC, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-1165
Issued: November 25, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On April 12, 2011 appellant filed a timely appeal from the March 24, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP), Branch of Hearings and
Review, which denied her request for an oral hearing. 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 this decision.2
On April 21, 2009 appellant, then a 53-year-old program analyst, filed a traumatic injury
claim alleging that on April 8, 2009 she sustained an injury when an elevator door closed on her
shoulder. She submitted an attending physician’s report, dated May 22, 2009, in support of her
claim.3 OWCP denied appellant’s claim, by decision dated June 11, 2009, on the grounds that
she failed to establish fact of injury.

1

5 U.S.C. § 8101 et seq.

2

As more than 180 days elapsed following the last merit decision in this case, dated June 11, 2009 and the filing
of this appeal on April 12, 2011, the Board lacks jurisdiction to review the merits of the claim. 20 C.F.R. § 501.3(e).
3

The physician’s signature is illegible.

On March 1, 2011 appellant requested an oral hearing before an OWCP hearing
representative. She submitted another medical report dated May 28, 2009.4
In a decision dated March 24, 2011, OWCP denied appellant’s request for a hearing.
After noting that FECA was unequivocal in setting a 30-day time limitation on requesting a
hearing, OWCP denied her request as follows:
“The record shows that the decision of the district [OWCP] was rendered on
June 11, 2009, and your request for a review to the Branch of Hearings and
Review was postmarked March 1, 2011. Since your request for a review was not
made within 30 days, you are not, as a matter of right, entitled to an oral hearing
or a review of the written record on your case.”
The Board notes that a request for hearing before the Branch of Hearings and Review
must be sent within 30 days (as determined by postmark or other carrier’s date marking) of the
date of the decision for which a hearing is sought.5 OWCP has discretion, however, to grant or
deny a request that is made after this 30-day period.6 In such a case it must determine whether a
discretionary hearing should be granted or, if not, will so advise the claimant with reasons.7
Here, appellant had 30 days from the date of that decision to make a timely request for a
hearing. Because her March 1, 2011 request was untimely filed, OWCP properly found that she
was not entitled to a hearing as a matter of statutory right.
OWCP had discretion, nonetheless, to grant appellant’s request. It did not exercise that
discretion, and did not advise her of the reasons for doing so in the March 24, 2011 decision.
Instead, OWCP denied appellant’s request solely on the grounds that it was untimely.
The Board has carefully reviewed the March 24, 2011 decision and can find no indication
that OWCP considered whether to grant a discretionary hearing.
The Board will therefore set aside the March 24, 2011 decision and remand the case for a
proper exercise of OWCP’s discretion and an appropriate decision on appellant’s untimely request
for hearing. Should OWCP exercise its discretion to deny a hearing, it must so advise appellant
with reasons.

4

The physician’s signature was also illegible on this report.

5

20 C.F.R. § 10.616(a).

6

Herbert C. Holley, 33 ECAB 140 (1981).

7

Rudolph Bermann, 26 ECAB 354 (1975).

2

IT IS HEREBY ORDERED THAT the March 24, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: November 25, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.Y., Appellant
and
U.S. POSTAL SERVICE, NORTH TEXAS
PROCESSING & DISTRIBUTION CENTER,
Coppell, TX, Employer
__________________________________________

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

Docket No. 14-957
Issued: August 14, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 20, 2014 appellant filed a timely appeal from the December 12, 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 to review the merits of this case.
ISSUES
The issues are: (1) whether appellant has more than a 1 percent impairment of her left
leg or more than a 15 percent impairment of her right leg, for which she received schedule
award; and (2) whether OWCP properly recovered an outstanding debt from her schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 2, 2011 appellant, a 59-year-old clerk, sustained a traumatic injury in the
performance of duty. While casing mail and twisting her body to the right, she heard a sound in
her low back. Appellant’s right side was a little painful and 20 minutes later she found it hard to
walk. OWCP accepted her claim for thoracic/lumbosacral neuritis or radiculitis, not otherwise
specified and for sprain of the right hip and thigh. Appellant received compensation for
temporary total disability on the periodic rolls.
Appellant filed a claim for a schedule award. Dr. Jeffrey M. Fritz, a Board-certified
anesthesiologist, rated her impairment on October 7, 2013 when found that she reached
maximum medical improvement. Rating the spinal nerve impairment of the left lower extremity,
Dr. Fritz identified L5 as the affected nerve root. He judged the severity of the sensory deficit as
mild, with subjectively altered sensory perception but retained light touch and sharp/dull
recognition. Using Proposed Table 2, spinal nerve impairment: lower extremity impairments,2
Dr. Fritz found that a mild sensory deficit of the L5 nerve root represented a one percent
impairment of the lower extremity. He made no adjustment: appellant’s clinical studies and
functional inventory were consistent with a mild problem. Appellant therefore had a one percent
impairment of the left lower extremity due to L5 spinal nerve root deficit.
Rating the spinal nerve impairment of the right lower extremity, Dr. Fritz again identified
L5 as the affected nerve root. As with the left, he judged the severity of the sensory deficit as
mild. Dr. Fritz noted that appellant also had a mild motor deficit, with grade 4/5 strength against
gravity with some resistance. Using proposed Table 2, he found that a mild sensory deficit of the
L5 nerve root represented a one percent impairment of the lower extremity. Dr. Fritz also found
that a mild motor deficit of the L5 nerve root represented a five percent impairment. Although
clinical studies were consistent with a mild problem, appellant’s functional inventory indicated a
moderate problem. Dr. Fritz adjusted the default ratings to two and seven percent respectively,
for a combined impairment rating of nine percent of the right lower extremity due to L5 spinal
nerve root deficit.
Dr. Fritz also rated appellant’s right lower extremity for the diagnosis of bursitis.
Referring to the hip regional grid, page 512 of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment,3 (A.M.A., Guides) he noted
that hip bursitis with documented, chronically abnormal gait had a default impairment value of
seven percent of the lower extremity. Dr. Fritz made no adjustment for grade modifiers, as all of
them were consistent with a mild problem. Using the Combined Values Chart,4 he determined
that appellant had a 15 percent total impairment of the right lower extremity due to L5 spinal
nerve root deficit and bursitis.

2

Rating spinal nerve extremity impairment using the sixth edition, The Guides Newsletter (A.M.A., Chicago,
Ill.), July/August 2009.
3

A.M.A., Guides 512 (6th ed. 2009) (hip regional grid).

4

Id. at 604.

2

An OWCP medical adviser reviewed Dr. Fritz’ impairment evaluation and agreed with
his findings.
On December 12, 2013 OWCP granted schedule awards for a 1 percent impairment of
appellant’s left lower extremity and a 15 percent impairment of her right. From this award it
deducted $7,425.40 to recover an overpayment that had arisen earlier when appellant received a
prohibited dual benefit of retirement and compensation benefits during a period of time.5
On appeal, appellant argued that she owes money to the Office of Personnel Management
(OPM), not to OWCP and that she should repay only one, not both. She explained that she
changed her election of benefits date several times and OWCP used an incorrect date to
determine the overpayment. Appellant argues that OWCP needs to inform OPM of the correct
election date and return to her the money it took out of her schedule award.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA6 and the implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.8
For consistent results and to ensure equal justice under the law to all claimants, good
administrative practice necessitates the use of a single set of tables so that there may be uniform
standards applicable to all claimants. OWCP has adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.9 As of May 1, 2009, the sixth edition of the A.M.A.,
Guides is used to calculate schedule awards.10
ANALYSIS -- ISSUE 1
No schedule award is payable for a member, function or organ of the body not specified
in FECA or the implementing regulations.11 Neither FECA nor the implementing federal

5

OWCP issued its final overpayment decision on June 4, 2013. As it issued this decision more than 180 days
prior to the filing of this appeal on March 20, 2014 the Board has no jurisdiction to review it. See 20 C.F.R.
§ 501.3(e).
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

9

See supra note 7; Ronald R. Kraynak, 53 ECAB 130 (2001).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010).
11

William Edwin Muir, 27 ECAB 579 (1976).

3

regulations provide for the payment of a schedule award for the permanent loss of use of the
back or spine.12 A claimant is not entitled to such an award.13
Amendments to FECA provide 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
schedule or nonscheduled member. As the schedule award provisions of FECA 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.14
The sixth edition of the A.M.A., Guides, however, did not provide a separate mechanism
for rating extremity impairment due to spinal nerve injuries. Dr. Fritz, the evaluating
anesthesiologist, properly followed the A.M.A., Guides approach to rating spinal nerve
impairments consistent with sixth edition.
For both the left and right legs, he identified L5 as the affected nerve root. The severity
of the sensory deficit was mild bilaterally, with a mild motor deficit on the right. Dr. Fritz
properly applied Proposed Table 2 to find one percent impairment bilaterally due to a mild
sensory deficit and an additional five percent impairment on the right due to a mild motor deficit.
Given appellant’s moderate functional history on the right, he correctly adjusted the default
impairments on the right to two and seven percent respectively, for a total of nine percent.15
Diagnosis-based impairment is the primary method of evaluating the lower limb.
Impairment is determined first by identifying the relevant diagnosis, then by selecting the class
of the impairment (no objective problem, mild problem, moderate problem, severe problem, very
severe problem approaching total function loss), which will provide a default impairment rating.
The default rating can then be adjusted slightly up or down for grade, which is calculated using
grade modifiers or nonkey factors (functional history, physical examination, clinical studies).16
Dr. Fritz properly applied Table 16-4, page 512 of the A.M.A., Guides to determine
impairment due to bursitis. According to the table, chronic trochanteric bursitis with a
documented, chronically abnormal gate has a default impairment value of seven percent of the
lower extremity. Because all applicable grade modifiers or nonkey factors were mild, there is no
adjustment.
As the A.M.A., Guides applied the peripheral nerve rating process to develop its spinal
nerve rating tables and as peripheral nerve impairment may be combined with diagnosis-based
impairment at the lower extremity level,17 Dr. Fritz properly combined appellant’s 9 percent
12

FECA itself explicitly excludes the back from the definition of “organ.” 5 U.S.C. § 8101(19).

13

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

14

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

15

According to the A.M.A., Guides approach, sensory and motor impairments are combined. The Guides
Newsletter, page 3.
16

Id. at 497.

17

Id. at 531.

4

impairment of the right lower extremity due to L5 spinal nerve root impairment with her 7
percent diagnosis-based impairment due to bursitis, for a total right lower extremity impairment
of 15 percent under the Combined Values Chart.
Accordingly, the Board finds that appellant has no more than a 1 percent impairment of
her left leg or 15 percent impairment of her right leg. The Board will therefore affirm OWCP’s
December 12, 2013 schedule award decision.
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.
LEGAL PRECEDENT -- ISSUE 2
When an overpayment has been made to an individual who is entitled to further payments,
the individual shall refund to OWCP the amount of the overpayment as soon as the error is
discovered his or her attention is called to same. If no refund is made, OWCP shall decrease later
payments of compensation, taking into account relevant factor so as to minimize any hardship.18
If compensation is owed to the debtor, the debt should be recovered from compensation
due.19
ANALYSIS -- ISSUE 2
The Board has no jurisdiction to review OWCP’s June 4, 2013 final overpayment
decision, which found that appellant received an overpayment of $7,425.40. Any notice of
appeal must be filed within 180 days from the date of issuance of an OWCP decision.20 As more
than 180 days elapsed from the date of OWCP’s final overpayment decision to filing of this
appeal on March 20, 2014, the Board may not review that decision. Accordingly, the Board has
no authority to review the correctness of the debt. The Board also has no authority to review any
administrative matters regarding her election of benefits.21
The Board does have jurisdiction to review OWCP’s December 12, 2013 schedule award
decision. The Board may decide whether OWCP properly collected appellant’s debt from the
award. The rule is clear: If compensation is owed to the debtor, the debt should be recovered
from compensation due. Indeed, the implementing regulations required OWCP to recover the
debt by decreasing compensation due under the schedule award.

18

20 C.F.R. § 10.441(a).

19

Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Debt Liquidation, Chapter 6.300.8 (May 2004)
(recovery from continuing entitlement).
20

20 C.F.R. § 501.3(e).

21

The Board’s jurisdiction is limited to reviewing final decisions of OWCP in cases arising under FECA.
20 C.F.R. § 501.2(c).

5

The circumstances of this case are similar to those in the case of C.C.22 OWCP found
that the claimant received an overpayment of $3,023.61 because he had returned to work and
continued to receive wage-loss compensation. The Board explained that it did not have
jurisdiction over OWCP’s overpayment decision. Rather, the issue was whether OWCP properly
recovered the debt owed from the claimant’s schedule award. Because OWCP may deduct an
overpayment in full if the claimant is owed a sufficient large lump-sum payment, the Board
found that OWCP properly deducted the $3,023.61 from the claimant’s $45,331.08 schedule
award.
As there was no evidence that deducting $7,425.40 from a $39,375.36 schedule award
would cause any hardship, it left appellant with a net award of over $30,000.00, the Board finds
that OWCP properly recovered the debt from her schedule award.23
CONCLUSION
The Board finds that appellant has no more than a 1 percent impairment of her left lower
extremity and no more than a 15 percent impairment of her right. The Board also finds that
OWCP properly recovered an outstanding debt from her schedule award.

22

Docket No. 12-1861 (issued April 24, 2013).

23

See 20 C.F.R. § 10.441 (OWCP should attempt to minimize financial hardship when recovering an
overpayment from future compensation).

6

ORDER
IT IS HEREBY ORDERED THAT the December 12, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 14, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


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

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

Docket No. 07-70
Issued: June 15, 2007

Case Submitted on the Record

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

JURISDICTION
On October 10, 2006 appellant, through his attorney, filed a timely appeal of the Office
of Workers’ Compensation Programs’ September 27, 2006 decision, denying appellant an
additional schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this schedule award case.
ISSUE
The issue is whether appellant sustained a permanent impairment to his left lower
extremity greater than the 13 percent previously awarded.
FACTUAL HISTORY
On October 28, 1995 appellant, then a 41-year-old letter carrier, filed a claim for a
traumatic injury alleging that on that date he injured his back and right leg while he was lifting
trays of mail out of a hamper. His claim was accepted for lumbar strain and herniated nucleus
pulposus L5-S1. On November 28, 1995 appellant underwent approved surgery consisting of a

lumbar laminectomy and discectomy. Appropriate medical and compensation benefits were
paid.
On August 21, 2001 appellant filed a claim for a schedule award. In a medical report
dated August 15, 2001, Dr. Paul M. Hoover, his treating Board-certified physiatrist, stated:
“To summarize what the problems present is that the discs are out of place with
narrowing and press around nerve roots as they exit the spine on the left more
than right[-]sided low back with nerve damage into the left leg as revealed via the
[electromyogram/nerve conduction velocity] EMG/NCV of January 18, 2001
showing subacute to chronic L5 left[-]sided radiculopathy. The discogenic
syndrome is disc mediated pain that occurs predominately in the low back.
According to the [American Medical Association, Guides to the Evaluation of
Permanent Impairment, (5th ed. 2001)] he would have a categorical lumbar spine
disorder according to page 384 -- Table 15-3 that is a [three] percent whole person
impairment, which is DRE [diagnosis related estimate] [l]umbar [C]ategory three
impairment. According to [appellant’s] lumbar range of motion disorder, he has a
2 percent whole person impairment due to his extension loss and due to flexion
loss, [appellant] has a 0 percent impairment, combining the 2 values via the
Combined Values Chart page 604, yields a whole person impairment of 15
percent.
In a supplemental medical report dated September 6, 2001, Dr. Hoover stated:
“I used lumbar DRE [C]ategory III impairment which is a lower extremity
impairment due to a back abnormality. The impairment rating was obtained from
the A.M.A., Guides (5th ed.). Appellant does indeed have a lower extremity
impairment that is discussed according to the above text in a DRE [C]ategory III
lumbar spine impairment which includes a lower extremity impairment. The
percent disability I assigned in his case is based upon the lower extremity
impairment.”
On September 19, 2001 the Office referred appellant’s case to an Office medical adviser.
On September 21, 2001 he noted that the back was specifically excluded from a schedule award
consideration. The Office medical adviser noted that there was no report of any muscle atrophy
or weakness to the lower extremities in the medical records. Therefore, appellant had no
impairment for muscle atrophy or weakness. The Office medical adviser indicated that appellant
did have pain and numbness which prevented some activity. According to the A.M.A., Guides
this represented a Grade 2 deficit which equals 80 percent. The Office medical adviser noted
that the maximum sensory loss for L5 was 5 percent and that 80 percent of 5 percent was 4
percent.1 He noted that there was no loss of range of motion in the left leg. Therefore, the
Office medical adviser concluded that appellant had a four percent impairment of the left leg.
By letter dated September 21, 2001, the Office advised appellant that a schedule award
could be paid while he is receiving compensation for wage loss and that he could postpone
1

A.M.A., Guides 424, Tables 15-15 and 15-18.

2

receiving a schedule award until he returned to work full time or retired. On December 18, 2001
the Social Security Administration approved appellant’s application for disability retirement
effective January 2, 2002. On March 4, 2002 the Office issued a schedule award for a four
percent impairment of the left lower extremity.
On June 14, 2002 appellant requested review of the written record. In an April 3, 2002
report, Dr. Hoover stated:
“[Appellant’s] extremity impairment rating in his left leg is based upon the L5
radiculopathy noted via EMG/NCV studies and by neurologic survey. Referring
to the spinal nerve impairment rating system Table 15-18, [the A.M.A., Guides]
was utilized; looking at Table 15-18 of the L5 nerve root gets maximum sensory
impairments of 5 percent and 37 percent maximum motor impairments. There are
several ways to assess this impairment, therefore, I will present three schemas that
lead to three (3) different rating[s] which are all based upon the medically
relevant test conducted in his case. In all of these scenarios based on the loss of
sensation in the left foot, L5 area, he gets the total sensory impairment of [five]
percent.
“In looking at the motor impairment following a manual muscle testing guideline
which is stipulated in the text book, [appellant] was a [four] out of [five] strength
test of the extensor digitorum brevis muscle which would be applying a 25
percent of the 37 percent motor impairment which is a total of 9 percent motor
impairment adding to a 5 percent….
“Another way of calculating the degree of motor impairment is by the EMG/NCV
test I conducted whereas the extensor digitorum brevis muscle had about 50
percent drop out of muscle fibers, thus, applying 50 percent to the 37 percent I
would get a total of 19 percent and combining the 5 percent sensory impairment
gives a 23 percent total extremity impairment gives a 23 percent total extremity
impairment.
“Finally by muscle bulk assessed during physical examination [by] his extensor
digitorum brevis muscle on the left side is one-third (1/3) [of] the size of the
right[-]sided extensor digitorum brevis muscle thus, I would apply a .66 percent
times the 37 percent to reach a 24 percent motor impairment by the muscle bulk
assessment and then combining the 24 percent to the 5 percent sensory
impairment giving a total 28 percent extremity impairment.
“In these three different schemas [appellant] runs a gamut between 14 percent and
28 percent extremity impairment based upon the spinal nerve dysfunction….”
In a decision dated October 17, 2002, the hearing representative remanded the case for
further development of the medical evidence.
On November 7, 2002 the Office referred the record to the Office medical adviser who
recommended referring appellant to a neurologist for examination.

3

On November 22, 2002 the Office referred appellant to Dr. Edward Williamson, a Boardcertified neurologist. In a medical report dated December 10, 2002, Dr. Williamson stated that
he saw no evidence of disability in appellant as a result of his back injuries. He noted that there
were no objective findings and evidence of exaggeration. The report of Dr. Williamson was
forwarded for review by Dr. Hoover.
In a February 6, 2003 report, Dr. Hoover stated:
“Impairment Rating of Right Lower Extremity:
“In evaluating the neurological loss in the right leg, I am using page 424, Table
15-16 and Table 15-18, the motor deficient would be Classification Grade IV for
the right leg with a 25 percent maximum motor deficient multiplying factor times
the L5 maximum percent loss of function due to strength at 37 and the 25 percent
times 37 equals a 9.25 percent impairment and adding that percentage to the
sensory deficient or pain for L5 of 5 percent, multiplying times the 25 percent
maximum yields 1.25 percent; combining the two values, 1.25 percent and 9.25
percent, a 10.5 percent, rounded up to an 11 percent whole person impairment
based upon neurological dysfunction of the right leg only. This methodology was
produced by utilizing examples 15-22, page 425 as per the reference source of the
[A.M.A., Guides]. The right leg impairment is based upon the objective
EMG/NCV date with examination findings.”
Dr. Hoover indicated that Dr. Williamson’s report was based on inaccurate data.
The Office found a conflict in the medical opinion between Dr. Hoover and
Dr. Williamson on the extent of permanent impairment to appellant’s lower extremities as a
result of the accepted work injury and surgery. He was referred to Dr. Jimmy J. Ong, a Boardcertified neurologist, for an impartial medical examination. In a medical report dated April 15,
2003, Dr. Ong stated:
“[Appellant] is suffering from chronic low back and leg pain which has been
ongoing for several years. [He] has achieved maximum medical improvement
and the prognosis for any significant change in his symptoms is unlikely. On the
basis of [appellant’s] clinical history and his neurological examination and review
of his records, it indicates that he has some asymmetry of the reflexes particularly
at the knee jerk on the left with some patchy decreased pinprick which might
indicate the L5-S1 dermatome on the left, but he also has nonphysiological and
nonanatomic changes in the thigh area with sharp cut off. His workup shows no
definite herniated disc at this time.
Although [appellant’s] EMG/nerve
conduction studies seem to have variable results with normal findings on one and
chronic L5 radiculopathy on the other, his clinical symptomatology does indicate
that he has some degree of lumbar radiculopathy on the left. On the basis of his
clinical history and examination with changes suggestive of left lumbar
radiculopathy and on the basis of his electrodiagnostic findings, [appellant’s]
DRE lumbosacral [C]ategory III shows impairment of the whole person of about
10 percent according to the A.M.A., Guides.

4

On November 21, 2003 the Office referred appellant’s case to the Office medical adviser
to determine whether there was any impairment to the lower extremities.
In a report dated December 1, 2003, the Office medical adviser stated:
“Dr. Ong found evidence of some sensory loss along the left L5 nerve root. The
‘giveaway’ motor weakness is not due to nerve impairment but is under
psychologic or voluntary control and is not ratable. [Federal] FECA [Procedure
Manual, Chapter] 3.0700-2.
“The sensory loss prevents some activity so it can be rated Grade 2 (80 percent).
Table 15-18, page 424, gives maximum L5 as [five] percent. Five percent [times]
80 percent [equals] 4 percent.
“Four percent impairment [of the] left leg. [Date of Maximum Medical
Improvement]: April 15, 2003. This is the amount previously awarded for left
leg radiculopathy so there is NO additional impairment.
In a January 7, 2004 decision, the Office denied appellant’s claim for additional
impairment to his left lower extremity.
On January 9, 2004 appellant requested review of the written record.
In a June 7 2004 decision, the hearing representative remanded the case for further
development of the medical evidence. The hearing representative directed the Office to ask
Dr. Ong to clarify the issue of impairment to the lower extremities.
In a medical report dated August 27, 2004, Dr. Steven E. Tooze, a Board-certified
orthopedic surgeon, opined that pursuant to the A.M.A., Guides, appellant had a 20 percent
impairment of his left lower extremity as a result of his work-related injury.
In a letter dated September 22, 2004, Dr. Ong’s office informed the Office that he was
not trained in the fifth edition of the A.M.A., Guides.
On September 22, 2004 the Office referred appellant’s claim to the Office medical
adviser for evaluation of whether appellant was entitled to an additional schedule award. The
Office medical adviser replied that he recommended an increase in appellant’s schedule award of
3 percent based on 0 millimeter cartilage interval of the knee which he found that the A.M.A.,
Guides indicate equals of 20 percent impairment of the left lower extremity or an increase of 3
percent.2
On October 12, 2004 the Office issued a schedule award for an additional nine percent
impairment of the left leg. Appellant requested review of the written record. In a decision dated
May 31, 2005, the hearing representative remanded the case for referral of appellant to an
impartial medical examiner with regard to the issue of lower extremity impairment.
2

Id. at 544, Table 17-21.

5

On November 8, 2005 the Office referred appellant to Dr. Kornel Lukacs, a Boardcertified psychiatrist and neurologist, to resolve the conflict with regard to the extent of
impairment residuals due to the work-related injury. In a report dated November 25, 2005,
Dr. Lukacs noted that appellant had residual lower back pain, ambulatory dysfunction, difficulty
putting weight on the left leg and some sciatic symptoms. He also noted some cramping and
dysesthesia of the left leg but no atrophy. Dr. Lukacs stated:
“As far as the permanent impairment of the left lower extremity is concerned,
[appellant] does have absent ankle jerks, decreased knee jerks, now bilaterally.
There is no significant sensory loss, there has been previously patch of sensory
loss in the outside of the left foot, now somewhat increased sensation or
dysesthesia of the lateral aspect of the leg which is compatible with S1
radiculopathy. There is some ‘giving away weakness’ which improves a little bit
if the left foot is flexed. It may be improved perhaps if a brace is made for
[appellant]. Most of [appellant’s] problem may be coming from his lower back
pain, perhaps the residual dis[c], the neurosurgeon is talking about. Although
since he does not want anymore procedures, he did reach his maximum
improvement. I cannot see in the left lower extremity (left leg) an impairment
exceeding greater than 13 percent based on [the Office medical adviser’s]
examination and findings….”
Dr. Lukacs noted that, in regard to Dr. Ong’s impairment rating, the giveaway motor
weakness was not due to nerve impairment but due to psychological or voluntary control and,
therefore, not ratable. He also noted that he did not see any evidence that the sensory loss had
progressed to where it would require an increase in sensory rating.
By decision dated September 27, 2006, the Office denied appellant’s claim for an
additional schedule award.3
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act4 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions
and organs of the body.5 The Act, 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

3

The Office further denied expansion of appellant’s claim to accept penile dysfunction as being causally related
to the work injury. Appellant did not appeal this finding.
4

5 U.S.C. §§ 8101-8193.

5

5 U.S.C. § 8107.

6

uniform standards applicable to all claimants.6 The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.7
Section 8123(a) of the Act 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.8 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 the Act, to resolve the conflict in the medical
evidence.9
ANALYSIS
In the instant case, the Office awarded appellant a schedule award for 13 percent
impairment to his left lower extremity. Pursuant to the instructions of the hearing representative,
on November 8, 2005 the Office referred appellant to Dr. Lukacs to resolve the conflict between
appellant’s treating physician, Dr. Hoover and Dr. Williamson, a second opinion physician,
regarding the extent of impairment to his left lower extremity. The Board finds that the Office
properly referred appellant to Dr. Lukacs to serve as the second impartial medical specialist since
the first impartial medical specialist, Dr. Ong, stated that he was not trained in the application of
the fifth edition of the A.M.A., Guides.10
In a November 25, 2005 report, Dr. Lukacs stated that he could not see the impairment of
the left lower extremity exceeding 13 percent based on his examination and findings. However,
he did not explain this conclusion or provide a rationalized medical opinion. Dr. Lukacs did not
apply the A.M.A., Guides nor provide an explanation for adopting such rating. The Board finds
that his brief conclusory statement is insufficient to resolve the conflict in medical opinion.
The case will be remanded to the Office to obtain a further explanation from the impartial
medical examiner. If Dr. Lukacs is unable to provide a rationalized explanation as to appellant’s
permanent impairment the Office should refer appellant to a new impartial medical examiner.11
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of the
medical evidence is required.

6

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

7

20 C.F.R. § 10.404.

8

5 U.S.C. § 8123(a).

9

See Ronald J. Pavlik, 33 ECAB 1596 (1982); Robert R. Snow, 33 ECAB 656 (1982); Quincy E. Malone,
31 ECAB 846 (1980).
10

See James P. Roberts, 31 ECAB 1010 (1980).

11

Charles Feldman, 28 ECAB 314 (1977).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 27, 2006 is set aside and the case is remanded for
further consideration consistent with this opinion.
Issued: June 15, 2007
Washington, DC

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

Michael E Groom, Alternate Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS AFFAIRS MEDICAL CENTER,
Milwaukee, WI, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-570
Issued: October 25, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On January 6, 2011 appellant filed a timely appeal from a September 17, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) granting him a schedule
award. The Board docketed the appeal as No. 11-570.
In a decision dated May 10, 2010, OWCP found that appellant had a three percent
permanent impairment of the right lower extremity and a six percent permanent impairment of
the left lower extremity. It noted that it had previously paid him a schedule award for a three
percent impairment of each lower extremity under file number xxxxxx676. OWCP thus found
that appellant was only entitled to an additional award for a three percent impairment of the left
lower extremity. In a decision dated September 17, 2010, it denied modification of its May 10,
2010 decision. The Board has duly considered the matter and notes, however, that it does not
have the case record for file number xxxxxx676. The absence of this record precludes the Board
from properly reviewing OWCP’s schedule award determination as it relied upon evidence from
file number xxxxxx676 in reaching its conclusions.
As the case record submitted to the Board would not permit an informed adjudication of
the case, the Board finds that the case is not in posture for decision on appeal and must be
remanded to OWCP. On remand, OWCP should combine the present case record, file number

xxxxxx089, with the case record for file number xxxxxx676.1 Following this and any further
necessary development, OWCP shall issue a de novo decision.
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated September 17, 2010 is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: October 25, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

1

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Fayetteville, NC, Employer
__________________________________________

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

Docket No. 07-1522
Issued: November 6, 2007

Case Submitted on the Record

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

JURISDICTION
On May 14, 2007 appellant filed a timely appeal of a March 26, 2007 decision of the
Office of Workers’ Compensation Programs denying her emotional condition claim and an
April 17, 2007 decision denying her request for reconsideration. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this appeal.
ISSUES
The issues are: (1) whether appellant sustained an emotional condition as a result of a
February 9, 2007 employment incident; and (2) whether the Office properly denied her request
for reconsideration pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On February 10, 2007 appellant, then a 52-year-old supervisor, filed a traumatic injury
claim alleging stress as a result of being taken out of her job. She noted that on February 9, 2007
she began to shake, her head began hurting and she became dizzy.

By letters dated February 15 and 28, 2007, the employing establishment controverted
appellant’s claim contending that she failed to establish fact of injury as she attributed injury to a
personnel matter and that she did not submit medical evidence showing a causal relationship
between her condition to the alleged factors of federal employment.
In a March 5, 2003 letter, the employing establishment noted that in October 2006
numerous employees at the Fayetteville North Carolina Processing and Distribution Center had
reported to management that appellant constantly yelled and did not treat her employees with
respect and dignity. The employing establishment conducted an investigation based on
allegations that appellant stole money from the employing establishment and from some of its
employees. The employing establishment noted that appellant was made aware of these
investigations and placed on a special assignment pending the outcome. The employing
establishment contended that appellant’s claim related to a personnel action and was not
compensable.
In a March 2, 2007 statement, the plant manager noted that, prior to the beginning of the
new fiscal year, the priority scores were not what he thought they should be so he began looking
for someone to detail into a priority improvement coordinator to identify ways to improve the
scores on surface and air priority. When asked if she would work on that project, appellant
answered yes. The plant manager noted that, at the same time, he met with members of various
unions who raised incidents of appellant yelling at employees as well as other improprieties. He
noted that appellant began the detail and stayed on through November, at which point she asked
how much longer she would be needed on the detail. The plant manager advised her that he
would like her to stay with the detail until some progress had been shown with her new
assignment and the scores improved. He noted that on February 9, 2007 he was informed that
appellant was not feeling well and was taken to a doctor’s office.
By letter dated February 20, 2007, the Office requested that appellant submit further
information. On March 5, 2007 appellant indicated that when she reported to work on
February 9, 2007 she felt fit and in perfect condition. However, she began to tremble and shake,
felt the walls start to close in around her, and experienced head pounding, loss of appetite and
started having homicidal thoughts. Appellant called her niece to come and get her and she went
to the emergency room. She also submitted an undated memorandum which addressed problems
with a certain employee. Appellant indicated that this employee acted in an irate, racist,
disorderly and disrespectful manner to management and other employees. She contended that
the employing establishment did not treat her fairly or with dignity and respect. Appellant also
submitted medical documents in support of her claim.
By decision dated March 26, 2007, the Office denied appellant’s claim because the
evidence was insufficient to establish that she sustained an injury in the performance of duty.
On April 4, 2007 appellant requested reconsideration and submitted an April 9, 2007
report by her psychiatrist.
By decision dated April 17, 2007, the Office denied appellant’s request for
reconsideration without further merit review. The Office noted that as appellant’s claim was

2

denied because she did not establish a compensable employment factor and the medical evidence
submitted on reconsideration was immaterial to this issue.
LEGAL PRECEDENT -- ISSUE 1
To establish her claim that she sustained an emotional condition in the performance of
duty, a claimant must submit the following: (1) medical evidence establishing that she has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable factors are causally related to her
emotional condition.1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,2 the Board
explained that there are distinctions as to the types of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.3
There are situations where an injury or an illness has some connection with employment but
nevertheless does not come within the concept or coverage under the Act.4 When an employee
experiences emotional stress in carrying out her employment duties and the medical evidence
establishes that the disability resulted from her reaction to such situation, the disability is
generally regarded as due to an injury arising out of and in the course of employment. This is
true when the employee’s disability results from her emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of her work.5
Noncompensable factors of employment include administrative and personnel actions
which are matters not considered as arising in the performance of duty.6 Although the handling
of such matters are generally related to the employment, they are administrative functions of the
employer and not duties of the employee. However, to the extent that the evidence demonstrates
that the employing establishment erred or acted abusively in discharging its administrative or
personnel responsibilities, such action will be considered a compensable factor.7
In cases involving emotional conditions, the Board has held that when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
1

Donna Faye Cardwell, 41 ECAB 730 (1990).

2

28 ECAB 125 (1976).

3

5 U.S.C. §§ 8101-8193.

4

See Anthony A. Zarcone¸ 44 ECAB 751, 754-755 (1993).

5

Lillian Cutler, supra note 2.

6

Joseph DeDonato, 39 ECAB 1260 (1988).

7

James P. Guinan, 51 ECAB 604 (2000).

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providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.8 If a claimant does implicate a factor of
employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.9
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established a compensable factor of employment
under the Act.
Appellant alleged that she experienced stress when taken out of her job. She was placed
on a detail pending an investigation with regard to certain alleged improprieties. Appellant’s
frustration from not being allowed to work in a particular position or to hold a particular job is
not a compensable factor. An emotional condition arising therefrom is considered selfgenerated.10 The Board finds that appellant remained on the detail pending an investigation by
the Office of the Inspector General at the employing establishment. The investigation was also
an administrative matter. Although the investigation was generally related to appellant’s
employment, it is with regard to an administrative function of the employer and not a duty of the
employee.11 Appellant has not established error or abuse in assigning her to the detail work
pending the investigation.
The Board has found that an administrative or personnel matter will be considered to be a
compensable employment factor only where the evidence discloses error or abuse on the part of
the employing establishment.12 In determining whether the employing establishment acted in
error or abusively, the Board has examined whether the employing establishment acted
reasonably.13 The employing establishment has stated that it received numerous complaints with
regard to how appellant performed her supervisory duties. It acted in a perfectly reasonable
manner when it detailed appellant pending investigation of the allegations. Appellant has not
submitted any evidence that the employing establishment acted in an unreasonable manner with
regard to this matter. Thus, appellant has not established a compensable employment factor
under the Act with respect to these administrative matters.

8

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

9

Id.

10

Garry M. Carlo, 47 ECAB 299 (1996).

11

Id.

12

Charles D. Edwards, 55 ECAB 259 (2004).

13

Janie I. Moore, 53 ECAB 777 (2002).

4

For the foregoing reasons, appellant has not established any compensable employment
factor under the Act. Therefore, she has not met her burden of proof in establishing that she
sustained an emotional condition in the performance of duty.14
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under 5 U.S.C. § 8128(a), the
Office’s regulations provide that the application for reconsideration must set forth arguments and
contain evidence that either: (1) shows that the Office erroneously applied or interpreted a
specific point of law; (2) advances a legal argument not previously considered by the Office; or
(3) constitutes relevant and pertinent new evidence not previously considered by the Office.15
A timely request for reconsideration may be granted if the Office determines that the
employee has represented evidence and/or argument that meets at least one of these standards. If
reconsideration is granted, the case is reopened and is reviewed on the merits.16
ANALYSIS -- ISSUE 2
In the instant case, appellant did not meet any of the criteria for requiring the Office to
reopen her case for merit review. She did not argue that the Office erroneously applied or
interpreted a specific point of law, nor did she raise legal arguments not previously considered.
Furthermore, appellant did not submit any relevant and pertinent new evidence. The evidence
that she submitted in support of her request for reconsideration were medical reports by her
psychiatrist. However, appellant’s claim was denied because she did not establish a
compensable factor of employment. As medical evidence is not relevant to the pertinent issue,
i.e., whether she established a compensable factor of employment, it is not sufficient to require
the Office to reconsider appellant’s claim on the merits.
Accordingly, the Board finds that the Office properly determined that appellant was not
entitled to a review on the merits of her claim pursuant to any of the three requirements under
section 10.606(b)(2) and properly denied her request for reconsideration.
CONCLUSION
The Board finds that the Office properly found that appellant did not establish that she
sustained an emotional condition as a result of a February 9, 2007 incident. The Board further
finds that the Office properly denied her request for reconsideration.

14

Unless appellant establishes a compensable factor of employment substantiated by the record, it is unnecessary
to address the medical evidence. See Barbara J. Latham, 53 ECAB 316 (2002).
15

20 C.F.R. § 10.606.

16

5 U.S.C. §§ 8101-8193, § 8128(a). The Board has found that the imposition of the one-year time limitation
does not constitute an abuse of discretionary authority granted the Office under section 8128(a) of the Act. See
Adell Allen (Melvin L. Allen), 55 ECAB 390 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 17 and March 26, 2007 are affirmed.
Issued: November 6, 2007
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.G., Appellant
and
DEPARTMENT OF THE NAVY, MERIDIAN
NAVAL AIR STATION, Meridan, MS, Employer
__________________________________________

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

Docket No. 20-0439
Issued: July 13, 2020

Case Submitted on the Record

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

JURISDICTION
On December 19, 2019 appellant filed a timely appeal from a December 5, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a diagnosed medical
condition causally related to the accepted October 15, 2019 employment incident.
FACTUAL HISTORY
On October 24, 2019 appellant, then a 58-year-old airfield manager, filed a traumatic injury
claim (Form CA-1) alleging that on October 15, 2019 he injured his neck and back when is truck
hit a deer while in the performance of duty. He stopped work that same day and returned to work
1

5 U.S.C. § 8101 et seq.

on October 17, 2019. On the reverse side of the claim form, the employing establishment
confirmed that appellant had hit a deer with his government vehicle.
Appellant submitted October 15, 2019 discharge instructions with an illegible signature,
which provided treatment instructions related to musculoskeletal pain.
Appellant also submitted a position description and summary of his duties as an airfield
manager.
In a development letter dated October 31, 2019, OWCP advised appellant that it required
additional factual and medical evidence to establish his claim. It attached a questionnaire,
requesting that he provide a detailed description of the employment incident believed to have
contributed to his alleged injury, including a description of the exact medical condition he was
claiming. OWCP also requested that he submit a narrative medical report from his physician,
which contained a detailed description of findings and diagnoses, explaining how the reported
incident caused or aggravated his medical condition. It afforded appellant 30 days to respond.
In an October 15, 2019 medical report, Dr. Matthew Capalbo, Board-certified in
emergency medicine, evaluated appellant after his vehicle reportedly struck a deer. On
examination he noted tenderness and spasms in appellant’s cervical spine and neck. Dr. Capalbo
diagnosed muscle spasms of the head and neck, neck pain and a backache.
Appellant submitted three October 15, 2019 diagnostic reports from Dr. Neville Wichman,
a Board-certified diagnostic radiologist. In x-rays of appellant’s lumbar, lateral, and thoracic
spine, Dr. Wichman found no evidence of an acute injury. In a computerized tomography (CT)
scan of his cervical spine, he also found no evidence of an acute injury.
Appellant provided an October 15, 2019 motor vehicle accident report in which described
the employment incident caused by a deer running in front of his vehicle, and colliding with it.
By decision dated December 5, 2019, OWCP denied appellant’s traumatic injury claim,
finding that he had failed to submit medical evidence containing a diagnosis in connection with
his injury. It concluded, therefore, that the requirements had not been met to establish an injury
as defined under FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish 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 of FECA,3 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
2

Supra note 1.

3
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).

2

the employment injury.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment incident
at the time, place, and in the manner alleged. Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.6
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a diagnosed
medical condition causally related to the accepted October 15, 2019 employment incident.
In Dr. Capalbo’s October 15, 2019 medical report, he evaluated appellant after his vehicle
struck a deer and diagnosed muscle spasms of the head and neck, neck pain and a backache as a
result. The Board has found that pain and spasm are symptoms and not a specific medical
diagnosis.7 The Board has held that a medical report lacking a firm diagnosis and a rationalized
medical opinion regarding causal relationship is of no probative value.8 For these reasons,
Dr. Capalbo’s medical report is insufficient to establish appellant’s burden of proof.
Appellant also submitted October 15, 2019 diagnostic reports in which Dr. Wichman
performed x-rays and a CT scan of appellant’s spine and found no evidence of an acute injury. As
stated above, medical evidence lacking a firm diagnosis is of no probative value.9 For this reason,
Dr. Wichman’s medical evidence is insufficient to meet appellant’s burden of proof.
The remaining medical evidence consisted of October 15, 2019 discharge instructions with
an illegible signature. The Board has consistently held that a report that is unsigned or bears an
illegible signature lacks proper identification and cannot be considered probative medical evidence
as the author cannot be identified as a physician.10

4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

K.L., Docket No. 18-1029 (issued January 9, 2019); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee),
10.5(q)
7
M.H., Docket No. 18-0873 (issued December 18, 2019); J.S., Docket No. 19-0863 (issued November 4,
2019); V.B., Docket No. 19-0643 (issued September 6, 2019).
8

P.C., Docket No. 18-0167 (issued May 7, 2019).

9

Id.

10

K.C., Docket No. 18-1330 (issued March 11, 2019).

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The Board finds that appellant has not submitted rationalized, probative medical evidence
sufficient to establish a diagnosed medical condition causally related to his October 15, 2019
employment incident.11 Appellant, therefore, has not met his burden of proof.
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 his burden of proof to establish a diagnosed
medical condition causally related to the accepted October 15, 2019 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the December 5, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 13, 2020
Washington, DC

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

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

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

11

See T.J., Docket No. 18-1500 (issued May 1, 2019); see D.S., Docket No. 18-0061 (issued May 29, 2018).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
River Grove, IL, Employer
__________________________________________
Appearances:
Stephanie Leet, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 20-0645
Issued: April 29, 2021

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On January 30, 2020 appellant, through counsel, filed a timely appeal from an August 14,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of
the Appellate Boards assigned Docket No. 20-0645.
On April 16, 1992 appellant, then a 30-year-old manual distribution clerk, filed a traumatic
injury claim (Form CA-1) alleging that on April 14, 1992 she experienced sharp, stabbing pain
down her back and right leg when lifting a heavy tub from a high belt and bent down to place it on
a hand truck while in the performance of duty. She stopped work on April 15, 1992. OWCP
accepted appellant’s claim for lumbar strain and displacement of lumbar intervertebral disc
without myelopathy. Appellant received wage-loss compensation for intermittent periods of total
disability.

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.

On June 4, 2000 appellant returned to part-time, modified-duty work as a modified
distribution clerk, working four hours per day.2 She stopped work on July 19, 2000 and
subsequently filed claims for wage-loss compensation (Form CA-7) due to total disability for the
period July 19 through 27, 2000 and commencing October 10, 2000.
By decision dated December 14, 2000, OWCP denied appellant’s wage-loss compensation
claims for total disability for the period July 19 through 27, 2000 and commencing
October 10, 2000.
By decision dated December 15, 2000, OWCP issued a loss of wage-earning capacity
(LWEC) determination based on appellant’s actual earnings as a part-time modified distribution
clerk. It found that she had worked in the position for over 60 days, commencing June 4, 2000,
and that the employment fairly and reasonably represented her wage-earning capacity.3 OWCP
found that appellant had 51 percent LWEC and would be paid at the new gross compensation rate
of $1,212.00.
Appellant remained off work and continued to receive wage-loss compensation on the
periodic rolls based on the December 15, 2000 LWEC decision.
On January 6, 2003 OWCP referred appellant for vocational rehabilitation services. After
completing the vocational rehabilitation program, which included a driver training course and
certification and vehicle modification for hand controls, appellant accepted a modified job offer
on July 6, 2004 as a part-time modified mail processor, effective July 10, 2004.
On July 20, 2004 appellant returned to part-time, modified-duty, working two hours per
day as a modified mail processor. She stopped work again on July 29, 2004 and subsequently filed
notice of recurrence (Form CA-2a) claiming disability from work for the period July 29 through
August 12, 2004.
By decision dated February 3, 2005, OWCP denied appellant’s recurrence of disability
claim for the period July 29 through August 12, 2004.
On June 7, 2006 appellant filed another Form CA-2a claiming a recurrence of disability
beginning December 16, 2004.4
By decision dated September 7, 2006, OWCP denied modification of the December 15,
2000 LWEC determination. It found that the medical evidence of record was insufficient to
establish that appellant’s April 14, 1992 employment injury had materially changed or worsened
to the extent that she was totally disabled from work beginning December 16, 2004.

2

On May 9, 2000 appellant accepted a part-time, modified-duty job offer as a modified distribution clerk. She
began working two hours per day and gradually increased to working four hours per day.
3

OWCP also noted that appellant stopped work from July 19 through 27, 2000 and beginning on October 10, 2000
and that it had denied appellant’s wage-loss compensation claim for total disability.
4

Appellant subsequently filed a Form CA-7 claiming wage-loss compensation for the period December 16, 2004
through June 3, 2006.

2

Appellant disagreed with the decision and filed multiple requests for reconsideration. By
decisions dated September 17, 2007, November 21, 2008, February 22, 2010, May 23, 2011,
August 21, 2012, November 15, 2013, April 9, 2015, June 30, 2016, and September 26, 2017,
OWCP denied modification of its prior decisions.
On September 18, 2018 appellant, through counsel, requested reconsideration and
submitted additional medical evidence. She argued that the December 15, 2000 LWEC
determination was erroneously issued retroactively and that the medical evidence was sufficient
to establish modification of the original LWEC determination.
By decision dated August 14, 2019, OWCP denied modification of its prior decision
finding that the original decision was not issued in error and that the medical evidence submitted
was insufficient to establish that appellant’s April 14, 1992 lumbar injury had materially changed.
The Board, having duly considered the matter, finds that this case is not in posture for
decision.
OWCP’s procedures provide that a formal LWEC should be left in place unless the
claimant requests resumption of compensation for total wage loss. In this case, the claims
examiner will need to evaluate the request according to the customary criteria for modifying a
formal LWEC.5 Once the wage-earning capacity of an injured employee is determined, a
modification of such determination is not warranted unless it meets the requirements regarding the
modification of a formal LWEC.6 OWCP procedures provide, in pertinent part, that a formal
LWEC determination 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 retrained or
otherwise vocationally rehabilitated.7 The procedure manual further indicates that it may be
appropriate to modify a rating on the grounds that the claimant has been vocationally rehabilitated
if the claimant is employed in a new job (a job different from the job for which he or she was rated)
obtained with additional training, which pays at least 25 percent more than the current pay of the
job for which the claimant was rated.8
In its August 14, 2019 decision, OWCP denied modification of its December 15, 2000
LWEC determination finding that the original decision was not issued in error and that the medical
evidence submitted was insufficient to establish that appellant’s April 14, 1992 lumbar injury had
materially changed. OWCP did not, however, discuss whether modification of the December 15,
2000 LWEC determination was warranted because appellant had been vocationally rehabilitated.9
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.812.9(a)
(June 2013); D.T., Docket No. 18-0174 (issued August 23, 2019); Harley Sims, Jr., 56 ECAB 320 (2005).
6
C.S., Docket No. 19-0660 (issued August 13, 2020); J.A., Docket No. 17-0236 (issued July 17, 2018);
Katherine T. Kreger, 55 ECAB 633 (2004); Sue A. Sedgwick, 45 ECAB 211 (1993).
7

FECA Procedure Manual, supra note 5 at Chapter 2.1501 (June 2013); see J.M., Docket No. 18-0196 (issued
July 12, 2018).
8

Id. at Chapter 2.1501.5(c) (June 2013).

9

See J.C., Docket No. 16-1217 (issued October 11, 2017) (the Board found that OWCP had properly modified an
October 21, 2011 wage-earning capacity determination on the basis that appellant had been retrained and obtained a
new job position).

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As noted above, modification of a formal LWEC may be warranted when the claimant has been
retrained or otherwise vocationally rehabilitated.10 In this case, the evidence of record indicates
that appellant underwent vocational rehabilitation in 2003 and started a new position as a modified
mail processor in July 2004. The Board therefore finds that OWCP should have developed the
evidence in accordance with its procedures in order to determine whether modification of the
December 15, 2000 LWEC determination was warranted based on the third criteria.11 The Board
will therefore remand the case to OWCP for proper adjudication, to be followed by issuance of a
de novo decision.
IT IS HEREBY ORDERED THAT the August 14, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: April 29, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

10

Supra notes 7 & 8.

11

See W.S., Docket No. 08-1797 (issued December 23, 2008) (the Board reversed OWCP’s decision modifying its
prior wage-earning capacity determination finding that although OWCP had properly determined that appellant had
been vocationally retrained, it improperly compared appellant’s new earnings with those of his date-of-injury position
rather than the wage-earning capacity position); see also Lee Z. Watson, Docket No. 04-2176 (issued March 1, 2005)
(the Board found that OWCP had improperly modified its March 5, 1996 LWEC determination because it did not
properly investigate whether appellant had been successfully retrained).

4