United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION, PORT
OF LAREDO, Laredo, TX, Employer
__________________________________________

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

Docket No. 11-405
Issued: September 7, 2011

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 December 15, 2010 appellant filed a timely appeal from a June 21, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his claim for a
schedule award and a November 24, 2010 decision which denied his request for reconsideration.
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.
ISSUES
The issues are: (1) whether appellant is entitled to a schedule award for permanent
impairment of his right knee; and (2) whether OWCP properly denied his October 23, 2010
request for reconsideration under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 8, 2007 appellant, then a 35-year-old Customs and Border Patrol officer, filed a
traumatic injury claim alleging that on that day he experienced pain in the interior of his right
knee when he wrestled a subject to the ground and fell. OWCP accepted his claim for right knee
contusion and lateral tear of right knee meniscus. On December 19, 2007 appellant underwent a
right knee arthroscopy and partial lateral meniscectomy.
On March 4, 2009 appellant filed a claim for a schedule award.
In an April 6, 2008 medical report, Dr. Michael S. Setliff, a chiropractor, noted that on
April 8, 2007 appellant sustained an injury to his right knee lateral meniscus at work and sought
treatment from Dr. Arie Salzman, a Board-certified orthopedic surgeon. Appellant underwent
surgery on December 19, 2007. Dr. Setliff reported examination findings and concluded that
based on Table 64, page 85 of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2008) (A.M.A., Guides), appellant had one percent whole person
impairment as a result of his partial lateral meniscectomy.
On April 21, 2008 appellant submitted a December 19, 2007 surgical report from
Dr. Salzman, who diagnosed appellant’s condition as right knee injury, lateral meniscus tear,
chondromalacia and medial femoral condyle. Dr. Salzman conducted a right knee arthroscopy,
partial lateral meniscectomy and chondroplasty on appellant’s right knee.
By letter dated March 16, 2009, OWCP requested that appellant submit an impairment
evaluation in accordance with the A.M.A., Guides, sixth edition. Appellant did not submit any
additional medical evidence.
By decision dated November 20, 2009, OWCP denied appellant’s claim for a schedule
award as the evidence did not establish that he sustained a ratable impairment causally related to
his accepted knee conditions.
On March 9, 2010 appellant submitted a request for reconsideration with additional
medical evidence. He explained that after receiving OWCP’s development letter he contacted
his physician, Dr. Arie Salzman, a Board-certified orthopedic surgeon and was referred to
Dr. Setliff’s office for an impairment rating. Appellant related that Dr. Salzman had conducted
surgery on his right knee and had informed him that he had reached maximum medical
improvement (MMI). He noted that, although his knee had improved, he still experienced
swelling if he walked too much or stood too long.
In a February 9, 2010 report, Dr. Setliff reiterated findings on examination.
In a February 25, 2010 report, Dr. Salzman conducted a follow-up examination for
appellant’s knee injury and lateral meniscal tear. He observed that appellant’s incisions were
well healed with some crepitus and positive apprehension sign and dorsalis pedis. Dr. Salzman
did not find any instability to the anterior drawer, posterior drawer, varus, valgus and Lachman’s
test. He noted that appellant’s calves were soft and nontender. Dr. Salzman confirmed that
appellant had reached MMI. He authorized appellant to return to work with no restrictions.

2

By decision dated June 21, 2010, OWCP denied modification of appellant’s claim finding
that the medical evidence failed to establish that he sustained a ratable impairment to his right
lower extremity as a result of the April 8, 2007 employment injury. It found that Dr. Setliff’s
February 9, 2010 medical report was insufficient to support his schedule award claim because he
was not a physician as defined under FECA.
On October 23, 2010 appellant submitted a request for reconsideration with additional
medical evidence. In an October 21, 2010 letter, Dr. Setliff stated that it was within his scope of
practice to evaluate patients for MMI and impairment rating in Texas. He noted that he was
certified by the Texas Department of Insurance Division of Workers’ Compensation to perform
these evaluations. Appellant also resubmitted the December 19, 2007 surgical report.
In a decision dated November 24, 2010, OWCP denied appellant’s October 23, 2010
request for reconsideration on the grounds that he failed to provide any new or relevant evidence
sufficient to warrant further review of the merits.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA,2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A.,
Guides as the uniform standard applicable to all claimants.4 As of May 1, 2009, the sixth edition
of the A.M.A., Guides is used to calculate schedule awards.5 The claimant has the burden of
proving that the condition for which a schedule award is sought is causally related to his or her
employment.6
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with its medical adviser
providing rationale for the percentage of impairment specified.7

2

Id.

3

20 C.F.R. § 10.404.

4

Id. at § 10.404(a).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6(a) (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
6

Veronica Williams, 56 ECAB 367, 370 (2005).

7

FECA, supra note 5, Chapter 2.808.6(d) (January 2010); Tommy R. Martin, 56 ECAB 273 (2005).

3

ANALYSIS -- ISSUE 1
OWCP accepted that on April 8, 2007 appellant sustained a right knee contusion and
lateral tear of right knee meniscus, which required surgery. On December 19, 2007 appellant
underwent a right knee arthroscopy and partial lateral meniscectomy, performed by Dr. Salzman.
On March 4, 2009 he filed a claim for a schedule award. By decisions dated November 20, 2009
and June 21, 2010, OWCP denied appellant’s claim because of insufficient medical evidence
establishing a permanent impairment causally related to his accepted conditions.
The Board finds that appellant has submitted sufficient evidence to require further
development of the schedule award claim.
While appellant submitted reports from his chiropractor, Dr. Setliff, which evaluated
appellant’s permanent impairment pursuant to the A.M.A., Guides, the Board has held that the
opinion of a chiropractor, regarding a permanent impairment of a scheduled extremity or other
member of the body is beyond the scope of the statutory limitation of a chiropractor’s services.8
Dr. Setliff’s reports are thus of no probative value with regards to the extent of any permanent
impairment.
Appellant however also submitted reports to the record from Dr. Salzman. The record
contains hospital records documenting appellant’s December 19, 2007 partial lateral
meniscectomy. The record also contains a February 25, 2010 report, in which Dr. Salzman
conducted a follow-up examination regarding appellant’s lateral meniscus tear and noted MMI
status. According to Table 16-3, page 509, of the A.M.A. Guides, a partial meniscectomy either
medial or lateral, is rated as at least a one percent impairment of the lower extremity. The Board
finds that the record should be routed to OWCP’s medical adviser for an opinion concerning the
nature and percentage of any permanent impairment.9
On remand, OWCP should refer the medical evidence to its medical adviser for review.
Following this and any further development necessary, it should issue a de novo decision. In
light of the Board’s resolution of the first issue, the second issue is moot.
CONCLUSION
The Board finds that the case is not in posture for decision.

8

Pamela K. Guesford 53 ECB 726 (2002); see also George E. Williams, 44 530 (1993) (a chiropractor may only
qualify as a physician in the diagnosis and treatment of spinal subluxation and his or her opinion is not considered
competent medical evidence in evaluation of other disorders, including those of the extremities, although these
disorders may originate in the spine); see also M.E., Docket No 10-2277 (issued June 13, 2011).
9

See Linda Beale, 57 ECAB 429 (2006); J.G., Docket No. 09-1714 (issued April 7, 2010).

4

ORDER
IT IS HEREBY ORDERED THAT the June 21, 2010 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: September 7, 2011
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.Y., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JESSE BROWN VETERANS
ADMINISTRATION MEDICAL CENTER,
Chicago, IL, Employer
__________________________________________

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

Docket No. 08-1982
Issued: July 23, 2009

Case Submitted on the Record

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

JURISDICTION
On July 10, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated April 2, 2008 regarding a schedule award. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a four percent permanent impairment to his
right upper extremity, for which he received a schedule award.
FACTUAL HISTORY
On November 30, 2005 appellant, then a 52-year-old addiction therapist, filed a traumatic
injury claim alleging that on that date he injured his left hand and shoulder due to continuous

typing. The Office accepted the claim for aggravation of right radiocarpal arthritis and right
wrist flexor carpi radialis tendinitis and authorized right carpal tunnel surgery, which was
performed on August 27, 2007.
On November 28, 2007 appellant filed a claim for a schedule award. In support of his
request, he submitted a November 20, 2007 report by Dr. Boonmee Chunprapaph, an attending
Board-certified orthopedic surgeon, who reported physical findings which included decreased
grip strength in the right hand and a mildly positive right Tinel’s sign over the cubital tunnel.
In a December 18, 2007 report, Dr. Simresh Shah, an examining physician, reported
negative Phalen’s and Tinel’s signs, full range of motion of the fingers and wrist and a 4/5 grip
and pinch strength compared to the contralateral side.
In a December 18, 2007 permanent impairment report, Dr. Shah noted normal right wrist
range of motion. He indicated there was right wrist loss of function due to pain and discomfort
and slight right wrist weakness.
The Office forwarded the reports by Drs. Chunprapaph and Shah, together with the
medical evidence of file and a statement of accepted facts, to an Office medical adviser for
review. In a March 18, 2008 report, the Office medical adviser stated that appellant had four
percent impairment of the right upper extremity. He advised that appellant reached maximum
medical improvement on December 18, 2007. The Office medical adviser rated two percent for
sensory loss of the median nerve based on Table 16-10 at page 482 and Table 16-15 at page 492
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides). He allowed 5 percent sensory deficit (Grade 4) from Table 16-10, page 482
which he multiplied by 39 percent maximum for the median nerve from Table 16-15, page 492
to equal a 2 percent impairment. The Office medical adviser found that appellant had two
percent impairment of the right upper extremity for motor deficit in the distribution of the
median nerve under Table 16-11, page 484 of the A.M.A., Guides. He noted that the distribution
of the median nerve under Table 16-15, page 492 provides a maximum 10 percent impairment of
the median nerve due to motor deficit. The Office medical adviser opined that appellant’s motor
deficit was consistent with Grade 4 under Table 16-11, page 492 or a motor deficit of 25 percent.
Pursuant to Table 16-11, page 484, he multiplied the 25 percent grade with the 10 percent
maximum allowed for the median nerve to arrive at 2 percent impairment for motor deficit in the
distribution of the median nerve for the right upper extremity. The Office medical adviser
utilized the Combined Values Chart to find four percent impairment of the right upper extremity.
By decision dated April 2, 2008, the Office granted appellant a schedule award for four
percent right upper extremity impairment. The period of the schedule award was 12.48 weeks,
from December 18, 2007 to March 14, 2008.
LEGAL PRECEDENT
Pursuant to section 8107 of the Federal Employees’ Compensation Act1 and section
10.404 of the implementing federal regulations,2 schedule awards are payable for permanent
1

5 U.S.C. § 8107(c).

2

impairment of specified body members, functions or organs. The Act, however, does not specify
the manner in which the percentage of impairment shall be determined. For consistent results
and to ensure equal justice under the law for 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. The A.M.A., Guides3 has been adopted by the Office, and the Board has concurred
in such adoption, as an appropriate standard for evaluating schedule losses.4
ANALYSIS
On appeal, appellant contends that he has greater impairment than that found by the
Office which accepted his claim for aggravation of right radiocarpal arthritis and right wrist
flexor carpi radialis tendinitis. It granted him a four percent impairment of the right upper
extremity on April 2, 2008.
Appellant’s attending Board-certified orthopedic surgeon, Dr. Chunprapaph, prepared a
report dated November 20, 2007. Dr. Chunprapaph reported appellant had decreased grip
strength in the right hand with a mildly positive right Tinel’s sign over the cubital tunnel. In a
December 18, 2007 permanent impairment report, Dr. Shah, an examining physician, reported
normal right wrist range of motion, loss of function due to pain and discomfort of the right wrist
and slight right wrist weakness. Neither physician utilized the A.M.A., Guides to offer an
impairment rating. The Board finds that the Office properly referred their clinical findings to its
Office medical adviser.5
On July 25, 2007 an Office medical adviser reviewed the reports of Drs. Chunprapaph
and Shah to find a four percent permanent impairment of the right upper extremity under the
A.M.A., Guides. He advised that appellant reached maximum medical improvement on
December 18, 2007, the date of Dr. Shah’s permanent impairment rating. The Office medical
adviser allowed five percent sensory deficit (Grade 4) to equal two percent impairment. He
found that appellant had two percent impairment of the right upper extremity for motor deficit in
the distribution of the median nerve under Table 16-116 of the A.M.A., Guides. The Office
medical adviser noted that the distribution of the median nerve under Table 16-157 provided a
maximum 10 percent impairment of the median nerve due to motor deficit. He opined that
appellant’s motor deficit was consistent with Grade 4 under Table 16-118 or a motor deficit of 25
percent. The Board notes that applying the 39 percent Grade 4 sensory deficit to the median
2

20 C.F.R. § 10.404.

3

A.M.A., Guides (5th ed. 2001).

4

James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287 (1989); Francis John Kilcoyne, 38
ECAB 168 (1986).
5

See, e.g., Bobby L. Jackson, 40 ECAB 593 (1989).

6

Id. at 484, Table 16-11.

7

Id. at 492, Table 16-15.

8

Id. at 484, Table 16-11.

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nerve of 5 percent results in 1.95 percent which was rounded up to 2 percent.9 However, a 25
percent Grade 4 motor deficit applied to the median nerve maximum of 10 percent results in 2.5
percent impairment, which would be rounded up to 3 percent. Therefore, the total sensory and
motor loss under Table 16-11 for median nerve impairment would equal five percent. The
medical evidence thus establishes that appellant has a total five percent impairment of the right
upper extremity after combining sensory and motor loss and not a four percent impairment as the
Office awarded appellant.10
CONCLUSION
The Board finds that appellant has a five percent permanent impairment of the right upper
extremity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 2, 2008 is affirmed as modified.
Issued: July 23, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

9

See J.P., 60 ECAB ___ (Docket No. 08-832, issued November 13, 2008); Marco A. Padilla, 51 ECAB 202
(1999); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3b (October 1990)
(the policy of the Office is to round the calculated percentage of impairment to the nearest whole point).
10

See Combined Values Chart, page 604.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Laredo, TX, Employer
__________________________________________

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

Docket No. 13-1259
Issued: November 4, 2013

Case Submitted on the Record

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

JURISDICTION
On April 28, 2013 appellant filed a timely appeal of the December 17, 2012 decision of
the Office of Workers’ Compensation Programs (OWCP) denying his claim. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
injury in the performance of duty on March 27, 2012.
FACTUAL HISTORY
On March 28, 2012 appellant, then a 24-year-old border patrol agent, filed a traumatic
injury claim alleging that on March 27, 2012, 15 minutes after walking along heavy brush in the
1

5 U.S.C. § 8101 et seq.

gravel pit area, he had an allergic reaction and had difficulty breathing. He noted that, as a result
of the allergic reaction, he had swelling of the tonsils and some pain and discomfort to the throat.
In support of his claim, appellant submitted a Form for Authorization for Examination or
Treatment, which included an attending physician’s report dated March 27, 2012 signed by
Dr. Eutimio Calixto-Lopez, a physician specializing in emergency medicine,2 indicating that
appellant had difficulty breathing at work, had pharyngitis/allergic reaction and that he may
resume regular work. Dr. Calixto-Lopez also checked a box indicating that he believed that
appellant’s condition was caused or aggravated by his employment but did not explain his
answer. In a report of the same date, he noted that appellant’s symptoms onset suddenly and
immediately prior to arrival in emergency department. Dr. Calixto-Lopez listed his clinical
impression as acute allergic reaction and acute pharyngitis. He discharged appellant to home.
By letter to appellant dated November 7, 2012, OWCP asked him to submit further
information, including medical evidence, in support of his claim. It received no response to this
letter.
In a December 17, 2012 decision, OWCP denied appellant’s claim for the reason that the
evidence was not sufficient to establish that the event occurred as described.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.3
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident or exposure, which is alleged to have occurred.4
An injury does not have to be confirmed by eyewitnesses in order to establish that an employee
sustained an injury in the performance of duty, but the employee’s statements must be consistent
with the surrounding facts and circumstances and his or her subsequent course of action.5 An
employee has not met his or her burden of proof to establish the occurrence of an injury when
2

The Board is unable to confirm whether Dr. Calixto-Lopez is Board-certified.

3

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

4

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

5

See Betty J. Smith, 54 ECAB 174 (2002).

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there are such inconsistencies in the evidence as to cast serious doubt upon the validity of the
claim.6 However, an employee’s statement regarding the occurrence of an employment incident
is of great probative force and will stand unless refuted by strong or persuasive evidence.7
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.8 The medical evidence required to
establish causal relationship is usually rationalized medical evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on the
issue of whether there is a causal relationship between the claimant’s diagnosed condition and
the implicated employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he
sustained an injury in the performance of duty on March 27, 2012 as the medical evidence is
insufficient to support his claim for compensation.
The Board finds that appellant has established that the incident occurred as alleged.
Appellant alleged that he sustained an injury in the performance of duty on March 27, 2012
when he had difficulty breathing after walking along heavy brush in a gravel pit in the
performance of his federal duties. As previously noted, an employee’s statement regarding the
occurrence of an employment incident is of great probative force and will stand unless refuted by
strong or persuasive evidence.10 The record reflects that appellant’s subsequent course of action
following the alleged employment incident is consistent with his statement describing the
March 27, 2012 incident. Appellant received medical attention on the same date as the alleged
incident. He filed his claim on March 28, 2012, the date after the alleged incident. Appellant’s
statement with regard to his working conditions is unchallenged by any other evidence. There is
no evidence in the record, such as inconsistent statements by appellant or others, to refute his
statements.11 Accordingly, the Board hereby modifies OWCP’s decision to indicate that
appellant established that the employment incident occurred at the time, place and in the manner
as alleged.

6

D.G., Docket No. 13-870 (issued July 16, 2013).

7

Gregory J. Reser, 57 ECAB 277 (2005).

8

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

9

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

10

Gregory J. Reser, supra note 7.

11

See L.H., Docket No. 13-184 (issued April 15, 2013).

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However, the Board finds that the medical evidence is insufficient to establish that the
employment incident caused an injury. The medical evidence contains no reasoned explanation
of how the employment incident of March 27, 2012 caused or aggravated appellant’s acute
pharyngitis.12 Dr. Calixto-Lopez checked a box indicating that he believed that appellant’s
condition was caused or aggravated by his employment but did not explain his answer. The
Board has held that an opinion on causal relationship which consists only of a physician
checking yes to a medical form report question on whether the claimant’s condition was related
to the employment incident is of little probative value. Without any explanation or rationale for
the conclusion reached, such report is insufficient to establish causal relationship.13 Although
Dr. Calixto-Lopez did indicate that the onset of appellant’s symptoms was immediately prior to
his arrival in the emergency department, the Board has held that the mere fact that an injury
occurs during the workday is not sufficient, in and of itself, to bring an injury within the
performance of duty. For compensability, the concomitant requirement of an injury arising out
of the employment must be shown.14 Dr. Calixto-Lopez did not describe the employment
activities that appellant alleged caused the breathing issues, nor does he provide any explanation
as to how appellant’s employment on March 27, 2012 led to his breathing issues. Without
medical evidence establishing this causal relationship, appellant has not met his burden of proof
to establish that he sustained a diagnosed condition causally related to the accepted employment
factors and thus he did not meet 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 that he
sustained an injury in the performance of duty on March 27, 2012.

12

S.M., Docket No. 13-1140 (issued July 23, 2013).

13

Lucrecia M. Nielson, 41 ECAB 583, 594 (1991).

14

V.P., Docket No. 13-714 (issued July 1, 2013).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 17, 2012 is affirmed as modified.
Issued: November 4, 2013
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Beltsville, MD, Employer
__________________________________________

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

Docket No. 11-391
Issued: December 21, 2011

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 December 7, 2010 appellant, through his attorney, filed a timely appeal from a
November 9, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
that denied his claim for a consequential injury to his left hip. 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 sustained a consequential injury to his left hip causally
related to his accepted right hip injury, requiring surgical intervention.
On appeal appellant, through counsel, contends that OWCP’s decision is contrary to fact
and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 3, 1999 appellant, then a 39-year-old letter carrier, filed an occupational
disease claim alleging that as a result of constant standing, bending, twisting, lifting, pivoting,
walking and step climbing he developed progressive deterioration of his right hip. He walked
with a constant limp with his right leg and his right hip pain was unbearable at the end of the
workday. Appellant listed the nature of disease or illness as progressive degenerative joint
disease in the right hip. On October 20, 1999 OWCP accepted his claim for temporary
aggravation of degenerative joint disease of the right hip. It subsequently accepted joint disease
in appellant’s right hip and authorized right hip replacement. On November 2, 2001 appellant
returned to work with the employing establishment on part-time limited duty.
By decision dated April 23, 2002, OWCP determined that his actual earnings fairly and
reasonably represented his wage-earning capacity and reduced appellant’s wage-loss
compensation accordingly.
Medical reports from 2002 to 2006 advised that appellant continued to have complaints
of pain and weakness in his right hip, but was functioning well with light duty employment. In a
report dated June 28, 2007, Dr. Stephen T. Michaels, a treating Board-certified orthopedic
surgeon, noted that appellant continued to have weakness in the quadriceps mechanism in his
right lower extremity and was walking with a limp that was more pronounced than on the prior
visit. Appellant also reported pain in the left greater trochanteric region extending towards the
groin area. In a January 15, 2008 report, Dr. Michaels noted that appellant continued to
complain of bilateral hip pain. Appellant had significant tenderness in the right hip with
decreased internal and external rotation in the left hip. Dr. Michaels stated that x-rays showed
early signs of hip disease in the left side. He opined that these findings were related to his
continuing efforts at work, including standing for long periods of time and also the altered gait.
Dr. Michaels also noted that appellant was complaining of intermittent lower back pain. He did
not believe that appellant’s hip replacement was responsible for his symptoms and recommended
a magnetic resonance imaging (MRI) scan of the lumbosacral spine. In a June 10, 2008 report,
justifying the request for an MRI scan, Dr. Michaels stated that in April 2008 he grew concerned
that appellant may have developed a problem in his lumbar spine as a result of his continuous
right hip problems. He noted that appellant’s gait problems had been ongoing for many years
and the lumbar spine condition was related to the original right hip problem.
In a July 31, 2008 report, Dr. Michaels reiterated that appellant had persistent pain in his
hips and that his left side was now worse than his right. He noted that x-rays revealed
degenerative disease in appellant’s left hip. In a September 25, 2008 report, Dr. Michaels noted
that appellant had persistent pain in his left hip with decreased range of motion and that he would
need a total left hip replacement. In an October 30, 2008 report, he stated that appellant’s lumbar
spine MRI scan showed degenerative disc disease at L3-4, L5 and L-S1. Dr. Michaels opined
that appellant’s continuing work activities caused a degenerative process in his left hip much like
it did on the right side. In a March 31, 2009 report, he reiterated that appellant’s symptoms were
related to degenerative joint disease in his left hip, which was a work-related injury and that he
would need a total hip replacement. In a June 4, 2009 report, Dr. Michaels opined within a
reasonable degree of medical certainty that appellant’s left hip condition was directly related to
his work activities.

2

In an August 13, 2009 report, OWCP’s medical adviser reviewed the medical evidence
and stated that appellant’s work injury was limited to osteochondritis of the right hip.
Appellant’s degenerative joint disease of his left hip was not employment related and OWCP
should deny his request for a left total knee replacement.
In an August 20, 2009 report, Dr. Michaels stated that appellant reported severe
continuing complaints of pain in his left hip. He noted that appellant had been his patient since
1998, with no severe trauma to the right hip but his work involved constant walking, standing,
bending and squatting. Dr. Michaels noted that appellant developed premature osteoarthritis of
his right hip and underwent a right total hip replacement. He opined that within a reasonable
degree of medical certainty appellant’s premature osteoarthritis of his left hip was directly
related to his chronic work activities. Dr. Michaels noted that appellant was using a cane to help
with ambulation.
On November 6, 2009 OWCP referred appellant to Dr. Robert Smith, a Board-certified
orthopedic surgeon, for a second opinion. In a November 20, 2009 report, Dr. Smith found that
there was no evidence of an aggravation of appellant’s left hip in relation to his work activities.
He stated that, although appellant would benefit from a left total hip replacement, this procedure
was not related to his federal employment but related to a preexisting degeneration condition that
was neither caused, aggravated, accelerated or precipitated by work.
OWCP found a conflict of medical opinion between Dr. Michaels and Dr. Smith. On
February 4, 2010 it referred appellant to Dr. Olumuyiwa A. Paul, a Board-certified orthopedic
surgeon, for an impartial medical examination
In a March 2, 2010 report, Dr. Paul concluded that, although appellant would certainly
benefit from a left total hip arthroplasty, his left hip arthritis was idiopathic and not related to his
work environment or employment-related injury. He found it noteworthy that images of the left
hip performed in July 2000 revealed no significant degenerative changes of the left hip and that
subsequent imaging studies revealed progressive degeneration of the hip in the period of time
during which appellant worked in an essentially sedentary position for four hours a day. Dr. Paul
found that appellant’s work did not cause such progressive degeneration of his left hip. He
further noted that review of appellant’s medical records by his treating physician revealed that
his first documented complaints of left hip pain occurred on June 28, 2007, seven years after he
had been placed on a permanent light-work duty status.
In an April 7, 2010 report, Dr. Christopher Magee, a Board-certified orthopedic surgeon
and a colleague of Dr. Michaels, indicated that x-rays of appellant’s left hip showed severe
osteoarthritic changes with obliteration of the left hip joint. He diagnosed post-traumatic
osteoarthritis of the left hip. Dr. Michaels opined that a left total hip replacement was necessary
and reiterated that it was related to appellant’s work activities of over 20 years as a mail carrier.
By decision dated April 22, 2010, OWCP denied appellant’s request for a total left hip
replacement and claim for a consequential left hip condition.
On May 20, 2010 appellant, through counsel, requested a telephonic hearing before
OWCP’s hearing representative.

3

At the hearing held on September 1, 2010, appellant testified that he was still working for
the employing establishment four hours a day with restrictions. He noted that his restrictions
were based on his right hip surgery which he underwent on November 12, 1999. Appellant
noted that at that time he was a mail carrier for approximately 18 years and described his duties.
He noted that, after his hip surgery, he was out of work for approximately three months and then
returned to work in a light-duty capacity. Appellant noted that when he came back to work he
edited sheets, worked on cases, put addresses in case for letter carriers and did boxed mail. He
noted that, at the time he started this work, it did not produce any stress on his left hip, but that
he began to notice increased symptoms in his left hip and that he had not had any trauma to the
hip. Appellant testified that he was only in Dr. Paul’s office for 10 minutes.
In a decision dated November 9, 2010, OWCP’s hearing representative affirmed the
April 22, 2010 OWCP decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing that the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, that an injury was sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.2 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.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant. The
medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4
2

J.M., Docket No. 10-2003 (issued June 1, 2011).

3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

The general rule respecting consequential injuries is that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that
flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause.5 The subsequent injury is compensable if it is the direct and
natural result of the compensable primary injury. With respect to consequential injuries, the
Board has noted that where an injury is sustained as a consequence of an impairment residual to
an employment injury, the new or second injury, even if nonemployment related, is deemed,
because of the chain of causation, to arise out of and in the course of employment and is
compensable.6
If there is a 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.7 When there exist opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.8
Section 8103 (a) of FECA provides that the United States shall furnish to an employee
who is injured while in the performance of duty the services, appliances and supplies prescribed
or recommended by a qualified physician that the Secretary of Labor considers likely to cure,
give relief, reduce the degree or the period of any disability or aid in lessening the amount of any
monthly compensation.9 While OWCP is obligated to pay for treatment of employment-related
conditions, the employee has the burden of establishing that the expenditure is incurred for
treatment of the effects of an employment-related injury or condition.10
ANALYSIS
OWCP accepted that appellant sustained joint disease in his right hip and accepted the
right hip replacement as related to his employment. It rejected his claim for a consequential
injury to his left hip and attendant surgery based on the report of Dr. Paul.
Appellant’s treating Board-certified orthopedic surgeons found that he had a
consequential injury to his left hip. Dr. Michaels treated appellant for his left and right hip
conditions which he related to his work duties as a letter carrier. He noted bilateral hip pain and
5

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

6

Kathy A. Kelley, 55 ECAB 206 (2004). A claimant bears the burden of proof to establish a claim for a
consequential injury. C.S., Docket No. 10-214 (issued October 5, 2010); J.J., Docket No. 09-27 (issued
February 10, 2009).
7

5 U.S.C. § 8123(a).

8

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002); M.C., Docket No. 10-2242
(issued July 7, 2011).
9

5 U.S.C. § 8103.

10

Kennett O. Collins, Jr., 55 ECAB 648 (2004); P.P., Docket No. 11-111 (issued August 18, 2011).

5

made numerous references to appellant’s altered gait. Dr. Michaels’s colleague, Dr. Magee,
agreed in his April 7, 2010 report. Both physicians also agreed that left hip replacement was
warranted. OWCP’s medical adviser and the second opinion physician, Dr. Smith, disagreed,
and found that appellant’s left hip condition was not related to his work activities but due to the
progression of underlying degenerative disease. The Board finds that OWCP properly referred
appellant’s case to Dr. Paul for an impartial medical examination to resolve the conflict. The
opinion of the impartial medical examiner, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.11
The Board finds that the special weight of the evidence rests with the well-rationalized
opinion of Dr. Paul, the impartial medical examiner, who agreed that appellant would benefit
from a left total hip arthroplasty, he found that appellant’s left hip condition and recommended
surgery were not causally related to his work environment or his employment-related injury.
Dr. Paul explained that images of appellant’s left hip performed in July 2000 revealed no
significant degenerative changes and that subsequent imaging studies revealed progressive
degeneration of the hip after a period of time during which he was working in an essentially
sedentary position for only four hours a day. He opined that exposure to this work environment
could not have resulted in such progressive degeneration of the left hip. Dr. Paul further opined
that appellant’s treating physician revealed that appellant’s first documented complaints of left
hip pain occurred on June 28, 2007, seven years after he had been placed on light-duty work
status.
Accordingly, the Board finds that appellant did not meet his burden of proof for
establishing that he sustained a consequential left hip injury due to his accepted right hip injury
and not due to a nonemployment-related condition.
CONCLUSION
The Board finds that appellant has not established that he sustained a consequential injury
to his left hip causally related to his accepted right hip injury, requiring surgical intervention.

11

M.C., supra note 8.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 9, 2010 is affirmed.
Issued: December 21, 2011
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.J., Appellant
and
ARCHITECT OF THE CAPITOL, CAPITOL
VISITOR CENTER, Washington, DC, Employer
__________________________________________

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

Docket No. 17-0825
Issued: June 13, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 27, 2017 counsel filed a timely appeal from a February 9, 2017 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 this issue.
ISSUE
The issue is whether OWCP abused its discretion by denying an attorney’s fee in the
amount of $2,969.00 for services rendered from May 20 to August 2, 2016.
FACTUAL HISTORY
On October 7, 2011 OWCP accepted that appellant, then a 34-year-old visitor’s guide,
sustained a sesmoid fracture of her great right toe due to the standing and walking required by

1

5 U.S.C. § 8101 et seq.

her job over time. Appellant intermittently stopped work and received disability compensation
on the daily rolls for intermittent periods beginning October 19, 2011.2
Appellant was terminated from the employing establishment effective March 4, 2015.
She filed a recurrence claim (Form CA-2a) alleging a recurrence of disability for the period
March 4, 2015 and continuing. In a June 8, 2016 decision, OWCP accepted appellant’s
recurrence claim for the period March 4 to September 10, 2015.3
On June 21, 2016 counsel submitted a fee application in the amount of $2,275.50 for
services rendered from December 3, 2015 to May 11, 2016. The fee application was
accompanied by a statement from appellant, signed on June 6, 2016, indicating her agreement
with the requested fee amount and acknowledging that the fee was her responsibility.
In a June 24, 2016 decision, OWCP approved the attorney’s fee application in the amount
of $2,275.50 for services rendered from December 3, 2015 to May 11, 2016.
In a July 29, 2016 letter to OWCP, counsel requested, on behalf of appellant, that the
accepted work-related conditions be expanded to include migraine headaches. He attached a
statement from appellant in which she discussed why she felt her migraine headaches were
related to her former employment. In an August 4, 2016 letter, OWCP requested that appellant
submit additional evidence in support of her claim to expand the accepted conditions.
By letter dated September 8, 2016, counsel submitted a fee application in the amount of
$2,969.00 for services rendered from May 20 to August 2, 2016. He attached a statement of
services containing language asking appellant whether she approved of the fee application in the
amount of $2,969.00. Appellant had not signed the document.
In a September 21, 2016 letter, OWCP forwarded to appellant a copy of counsel’s fee
application in the amount of $2,969.00 for services rendered from May 20 to August 2, 2016. It
provided her 30 days to comment on the fee application request and to denote whether the fee
charged was reasonable and appropriate.
On September 23, 2016 OWCP received a September 19, 2016 letter from appellant to
counsel in which appellant indicated that she would not be approving the fee application in the
amount of $2,969.00 because she felt that counsel’s services were not useful with respect to her
claim to expand the accepted conditions. In an October 14, 2016 letter to OWCP, appellant
advised that she was rejecting the fee application in the amount of $2,969.00, noting that the fee
was not reasonable because counsel’s services were not useful to her as a claimant.4 She also
submitted a copy of a December 4, 2015 e-mail she had sent to counsel noting that she was

2

Appellant received disability compensation on the periodic rolls for the period May 5, 2013 to
October 18, 2014.
3

Appellant received disability compensation on the daily rolls for the period March 4 to September 10, 2015.

4

Appellant asserted that a majority of counsel’s time was spent on updates and meetings to discuss the case, and
that no legal action had been taken to move the case forward.

2

financially unable to invest any more money into the case, and that she no longer wished to
employ his services.
In a February 9, 2017 decision, OWCP denied the attorney’s fee application in the
amount of $2,969.00 for services rendered from May 20 to August 2, 2016 noting that appellant
had not signed a fee approval for these services. It advised that appellant had contested the fees
indicating that she did not find the services of counsel’s office useful, that a majority of the time
was spent on updates and meetings to discuss the case, and that no legal action had been taken to
move the case forward. OWCP noted that she provided a December 4, 2015 e-mail to counsel
noting that she was financially unable to invest any more money into the case, and that she no
longer wished to employ his services.
LEGAL PRECEDENT
It is not the function of the Board to determine the fee for services performed by a
representative of a claimant before OWCP. That function is within the discretion of OWCP
based on the criteria set forth in Title 20 of the Code of Federal Regulations and mandated by
Board decisions. The sole function of the Board on appeal is to determine whether the action of
OWCP constituted an abuse of discretion.5 Generally, an abuse of discretion is shown through
proof of manifest error, clearly unreasonable exercise of judgment, or actions taken which are
contrary to both logic and probable deductions from established facts.6
Section 10.703(a)(2) of the Code of Federal Regulations provides in pertinent part that a
representative must submit a fee application which includes a statement of agreement or
disagreement with the amount charged, signed by the claimant.7 While the regulations provide
that a fee application is deemed approved when it is accompanied by a signed statement
indicating the claimant’s agreement with the fee,8 the regulations do not specifically provide for
approval when a claimant fails to contest a fee application.9 When a fee application has been
disputed, OWCP is required to provide the claimant with a copy of the fee application and
request the submission of further information in support of any objection.10 After the claimant
has been afforded a reasonable time to respond to the request, OWCP will then proceed to
review the fee application. Pursuant to section 10.703(c), when a fee is in dispute OWCP will
determine whether the amount of the fee is substantially in excess of the value of services
received by looking at the following factors: (i) Usefulness of the representative’s services;

5

Alvin T. Groner, Jr., 47 ECAB 588 (1996); Edward Snider, 39 ECAB 1268 (1988).

6

Daniel J. Perea, 42 ECAB 214, 221 (1990).

7

20 C.F.R. § 10.703(a)(2).

8

Id. at § 10.703(b).

9

See Helen J. Cavorley, Docket No. 02-2325 (issued February 7, 2003).

10

20 C.F.R. § 10.703(c).

3

(ii) The nature and complexity of the claim; (iii) The actual time spent on development and
presentation of the claim; and (iv) Customary local charges for similar services.11
ANALYSIS
On September 19, 2016 counsel submitted a fee application in the amount of $2,969.00
for services rendered from May 20 to August 2, 2016. In a September 21, 2016 letter, OWCP
provided appellant 30 days to comment on the fee application request and to denote whether the
fee charged was reasonable and appropriate. It received communications from appellant
indicating that she would not approve the fee application in the amount of $2,969.00 because she
felt that counsel’s services were not useful. In a February 9, 2017 decision, OWCP denied the
requested fee of $2,969.00 without considering any of the factors enumerated in section
10.703(c) of OWCP’s regulations. Rather, it based its determination on appellant’s responses to
its June 21, 2016 letter in which she indicated that she would not sign a statement approving the
fee application.12
OWCP’s regulations provide that, when a fee is in dispute, OWCP will determine
whether the amount of the fee is substantially in excess of the value of services received by
looking at the following factors: (i) Usefulness of the representative’s services; (ii) The nature
and complexity of the claim; (iii) The actual time spent on development and presentation of the
claim; and (iv) Customary local charges for similar services.13 Consequently, the Board finds
that the case is not in posture for decision regarding whether OWCP abused its discretion by
denying an attorney’s fee in the amount of $2,969.00 and the case must be remanded to OWCP
to consider the attorney’s fee application according to the applicable regulatory procedures.14
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether OWCP
abused its discretion by denying an attorney’s fee in the amount of $2,969.00 for services
rendered from May 20 to August 2, 2016.

11

Id.

12

OWCP also mentioned a December 4, 2015 e-mail in which appellant indicated that she wished to terminate
counsel’s services. The Board notes, however, that appellant continued to enlist counsel’s services after that date
and she agreed to a fee application in the amount of $2,275.50 for services rendered from December 3, 2015 to
May 11, 2016. In a June 24, 2016 decision, OWCP approved the fee application in the amount of $2,275.50.
13

See supra note 11.

14

See K.C., Docket No. 06-2130 (issued July 24, 2007). In K.C., the Board found that the case was not in posture
for decision regarding whether OWCP abused its discretion with respect to its determination regarding a fee
application because OWCP had not adequately considered the factors denoted in 20 C.F.R. § 10.703(c).

4

ORDER
IT IS HEREBY ORDERED THAT the February 9, 2017 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for further
action consistent with this decision.
Issued: June 13, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
DEPARTMENT OF AGRICULTURE
INSPECTION OPERATIONS PROGRAM,
Denison, IA, Employer
__________________________________________

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

Docket No. 19-0114
Issued: June 12, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On October 19, 2018 appellant filed a timely appeal from a September 20, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the September 20, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish more than 10 percent
permanent impairment of his left upper extremity, for which he previously received a schedule
award.
FACTUAL HISTORY
On January 14, 2015 appellant, then a 54-year-old food safety inspector, filed a traumatic
injury claim (Form CA-1) alleging that he sustained a left arm injury when a hog shed fell and hit
him on the hook of his left arm. He did not initially stop work. By decision dated February 26,
2015, OWCP accepted the claim for left shoulder sprain, left hand sprain, left elbow sprain, and
left ulnar neuropathy. It subsequently expanded acceptance of the claim to include left lateral
epicondylitis, superior glenoid labrum lesion of the left shoulder, and impingement syndrome of
the left shoulder. Appellant received intermittent wage-loss compensation on the supplemental
rolls as of March 1, 2015 and on the periodic rolls as of June 26, 2016.
Appellant underwent OWCP approved surgery on September 2, 2015 for left tennis elbow
release and on April 13, 2016 for left shoulder arthroscopy with repair of anterior labral
detachment and subacromial decompression arthroscopically with acromioplasty and left elbow
revision tennis elbow release with lateral epicondylectomy, performed by Dr. Steven J.
Stokesbary, a Board-certified orthopedic surgeon.
On February 22, 2017 appellant filed a claim for a schedule award (Form CA-7).
In a development letter dated February 28, 2017, OWCP requested that appellant submit a
permanent impairment evaluation from his attending physician in accordance with the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides).3 It afforded him 30 days to submit the requested impairment evaluation.
In support of his claim, appellant submitted Dr. Stokesbary’s April 13, 2016 operative
report and January 31, 2017 postoperative evaluation. Dr. Stokesbary determined that appellant
had reached maximum medical improvement (MMI) following his April 13, 2016 left lateral
epicondylectomy revision with left shoulder arthroscopy with superior labral anterior to posterior
(SLAP) repair and subacromial decompression.
On October 13, 2017 OWCP referred appellant to Dr. Adam T. Kafka, Board-certified in
physical medicine and rehabilitation, for a second opinion evaluation regarding permanent
impairment of his left elbow and shoulder.
In a November 1, 2017 report, Dr. Kafka discussed appellant’s medical history, provided
physical examination findings, and determined that MMI was reached on January 31, 2017. On
physical examination, he utilized the diagnosis-based impairment (DBI) methodology to
determine the degree of permanent impairment. Dr. Kafka indicated that, in accordance with Table

3

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

2

15-5, Shoulder Regional Grid, of the sixth edition of the A.M.A., Guides,4 the impairment
diagnosis was class 1 acromioclavicular (AC) joint disease with a default impairment value of 10
percent due to distal clavicle resection. He assigned a grade modifier for functional history
(GMFH) of two based on appellant’s QuickDASH score, a grade modifier of 1 for physical
examination (GMPE) based on minimal palpatory findings and mild decrease in range of motion
(ROM) from opposite sides, and a grade modifier of 4 for clinical studies (GMCS) as the magnetic
resonance imaging showed a rotator cuff tear along with a labral lesion. Applying the net
adjustment formula, Dr. Kafka subtracted 1, the numerical value of the class, from the numerical
value of the grade modifiers resulting in a net adjustment of 4 ((2-1) + (1-1) + (4-1).5 Application
of the net adjustment formula meant that movement was warranted from the class 1 default value
grade C to grade E, for a combined rating of 12 percent permanent impairment of the left shoulder.6
Dr. Kafka also provided ROM findings based on three measurements and calculated five percent
permanent impairment using the ROM methodology. He determined that the DBI methodology
should be used as it provided the higher rating.
Dr. Kafka further provided an impairment rating pertaining to the left elbow. Utilizing the
DBI methodology found at Table 15-4, Elbow Regional Grid, of the A.M.A., Guides, he assigned
class 1 impairment for lateral epicondylitis status postsurgical release of extensor origins,
amounting to a default impairment value of five percent.7 Dr. Kafka discussed the net adjustment
formula and assignment of grade modifiers, determining that no adjustment was for a default value
of five percent permanent impairment of the left elbow. He did not utilize the ROM methodology
for the left elbow as physical examination revealed full ROM. Dr. Kafka reported that the A.M.A.,
Guides allowed for combination of two impairments of the same limb. He referenced Appendix
A on page 604, explaining that 12 percent impairment was combined with 5 percent for a final 16
percent permanent impairment of the left upper extremity.8
OWCP routed Dr. Kafka’s report and the case file to Dr. Arthur S. Harris, a Board-certified
orthopedic surgeon serving as an OWCP district medical adviser (DMA), for review and a
determination as to whether appellant sustained a permanent impairment of the left shoulder and
elbow.
In a May 24, 2018 report, Dr. Harris determined that appellant had four percent permanent
impairment of the left upper extremity for loss of shoulder internal rotation under the ROM
methodology.9 He opined that the DBI methodology should be used since it provided the higher
left shoulder rating, amounting to five percent permanent impairment for arthroscopic surgery

4

Id. at 403.

5

Id. at 411.

6

Id. at 403, Table 15-5.

7

Id. at 399, Table 15-4.

8

Id. at 604.

9

Id. at 475, Table 15-34.

3

including labral repair.10 The DMA further found five percent permanent impairment of the left
elbow for residual problems with lateral epicondylitis. He noted full ROM for the left elbow which
amounted to zero percent impairment using the ROM methodology. The DMA concluded that
appellant had a combined value of 10 percent permanent impairment of the left upper extremity
and had reached MMI on November 1, 2017. He disagreed with Dr. Kafka’s 16 percent
impairment rating of the left upper extremity, explaining that the physician had provided
impairment for having undergone excision of the distal clavicle which was not documented on the
April 13, 2016 operative report.
By decision dated September 20, 2018, OWCP granted appellant a schedule award for 10
percent permanent impairment of the left arm (left shoulder and left elbow). The date of MMI was
November 1, 2017 and the period of award ran from November 1, 2017 to June 7, 2018. OWCP
found that in reviewing the evidence, the DMA determined that Dr. Kafka had incorrectly applied
the A.M.A., Guides to the examination findings. It found, therefore, that the weight of the medical
evidence regarding the percentage of permanent impairment rested with the DMA, as he had
correctly applied the A.M.A., Guides to the examination findings to calculate 10 percent
permanent impairment of the left elbow and shoulder.
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.11 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.12 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).13
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment class of diagnosis (CDX) condition, which is then adjusted by grade modifiers based

10

Id. at 405, Table 15-5.

11

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

12
20 C.F.R. § 10.404; L.T., Docket No. 18-1031 (issued March 5, 2019); see also Ronald R. Kraynak, 53 ECAB
130 (2001).
13

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5 (March 2017).

4

on functional history (GMFH), physical examination (GMPE), and clinical studies (GMCS).14 The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).15
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments.16 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM); and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)17
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”18
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser providing
rationale for the percentage of impairment specified.19
ANALYSIS
The Board finds that the case is not in posture for decision.
On November 1, 2017 OWCP referred appellant to Dr. Kafka for a second opinion
evaluation and opinion regarding the extent of his permanent impairment of the left elbow and
shoulder. Dr. Kafka provided an impairment rating using both the ROM and DBI methodologies.
He discussed his calculations, provided reasoning for his ratings, and provided proper citations to
14

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

15

Id. at 411.

16

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

17

A.M.A., Guides 477.

18

Supra note 16; V.L., Docket No. 18-0760 (issued November 13, 2018); A.G., Docket No. 18-0329 (issued
July 26, 2018).
19

See supra note 13 at Chapter 2.808.6(f) (March 2017).

5

the A.M.A., Guides. Dr. Kafka determined that the DBI methodology produced the higher
impairment rating for the left shoulder, warranting 12 percent permanent impairment for class 1
AC joint disease due to distal clavicle resection.20 He further discussed his findings and calculated
five percent permanent impairment of the left elbow for class 1 lateral epicondylitis status
postsurgical release of extensor origins.21 Dr. Kafka explained his calculations and concluded that
appellant was entitled to a combined 16 percent permanent impairment of the left upper extremity.
In accordance with its procedures, OWCP referred the evidence of record to Dr. Harris,
serving as OWCP’s DMA who provided an impairment rating on May 24, 2018. The DMA
disagreed with Dr. Kafka regarding his left shoulder permanent impairment rating for AC joint
disease due to distal clavicle resection.
While the DMA, performed both a DBI and a ROM rating, the Board finds that his
impairment rating report is conclusory in nature as he merely provided a numerical rating without
providing specific detail or rationale as to how he had utilized the A.M.A., Guides in reaching his
conclusions.22 For example, in performing the DBI rating he did not discuss grade modifiers or
other physical findings in calculating five percent impairment of the left shoulder and five percent
impairment of the left elbow. In providing an ROM rating, the DMA did not explain the loss of
ROM measurements which he relied upon, only concluding that appellant had four percent left
upper extremity impairment for loss of shoulder internal rotation. The report of the DMA is
therefore insufficient as a basis for a schedule award because, as the DMA, he did not appropriately
determine appellant’s permanent impairment based on the appropriate standards.23 Upon receipt
of the DMA report, it was incumbent upon OWCP to request clarification or obtain a supplemental
report from the DMA.24 As that was not done, the Board finds the DMA’s report is an insufficient
basis for a schedule award.
The Board notes that proceedings under FECA are not adversarial in nature, and OWCP is
not a disinterested arbiter. The claimant has the burden of proof to establish entitlement to
compensation. However, OWCP shares responsibility in the development of the evidence to see
that justice is done.25 Once it undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.26
Consequently, the Board finds that further development of the medical evidence is required
to determine the extent of appellant’s permanent impairment for schedule award purposes. On
remand, OWCP should request clarification from Dr. Kafka pertaining to his use of the AC joint
20

Supra note 5.

21

Supra note 6.

22

V.H., Docket No. 18-0848 (issued February 25, 2019).

23

Supra note 13 at Chapter 2.808.6.f(2)(a) (March 2017).

24

Id.; see W.G., Docket No. 17-1090 (issued March 12, 2018).

25

T.R., Docket No. 17-1961 (issued December 20, 2018); William J. Cantrell, 34 ECAB 1223 (1983).

26

Id.; Richard F. Williams, 55 ECAB 343, 346 (2004).

6

disease with distal clavicle resection diagnosis for the left shoulder.27 Following this additional
development, the case should be routed back to a DMA for evaluation of appellant’s permanent
impairment in accordance with the A.M.A., Guides. After such further development as deemed
necessary, OWCP shall issue an appropriate merit decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 20, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: June 12, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

27

R.R., Docket No. 16-0589 (issued February 3, 2017).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Tustin, CA, Employer
__________________________________________

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

Docket No. 15-1922
Issued: August 23, 2016

Case Submitted on the Record

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

JURISDICTION
On September 22, 2015 appellant filed a timely appeal from a May 7, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.3
1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, during the pendency of this appeal, OWCP issued a September 30, 2015 decision denying
modification of the May 7, 2015 decision. The September 30, 2015 decision, however, is null and void as the Board
and OWCP may not simultaneously have jurisdiction over the same issue. See Terry L. Smith, 51 ECAB 182
(1999); Arlonia B. Taylor, 44 ECAB 591 (1993); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41
ECAB 880 (1990).

ISSUE
The issue is whether appellant has established a back injury in the performance of duty
on March 22, 2014.
FACTUAL HISTORY
On March 27, 2014 appellant, then a 50-year-old carrier technician, filed a traumatic
injury claim (Form CA-1) alleging that on March 22, 2014 he sustained a back injury while
delivering mail on a route. He alleged that he felt back pain radiating to both legs, and he could
not walk. The reverse of the claim form indicated that appellant stopped work on March 22,
2014 and returned to work March 27, 2014. Appellant submitted a duty status report (Form CA17) dated March 25, 2014 from Dr. Hosea Brown, III, a Board-certified internist, indicating that
appellant was disabled for work. The record also contains a note dated March 22, 2014 from a
physician indicating that appellant should be off work until March 27, 2014.4
The record indicates that on August 27, 2013 appellant had previously filed an
occupational disease claim (Form CA-2) for compensation alleging a low back injury from job
duties, including bending, lifting, and carrying mail.5 On October 29, 2013 OWCP accepted that
claim for permanent aggravation of lumbosacral degenerative disc disease at multiple levels, and
L4-5 and L5-S1 disc bulge with right radiculopathy. According to that case file, appellant
accepted a modified job at two hours per day on November 8, 2013. On January 6, 2014 he
accepted a full-time modified carrier job offer “under protest,” with two hours casing mail, four
hours on a walking route, and two hours answering telephones. Appellant filed CA-7 claims for
intermittent hours of compensation. For the period March 8 to 21, 2014, he indicated that he
worked four hours per day. The occupational claim remains under continuing development.
An employing establishment supervisor submitted an April 3, 2014 letter indicating that
the employing establishment was controverting the traumatic injury claim. The supervisor
reported that on March 21, 2014 appellant had been given a new job offer, which he had
accepted under protest.6 Appellant inquired as to what would happen if he were to have an
accident, and as such the supervisor felt appellant was already planning to have an accident on
March 22, 2014.
By letter dated April 4, 2014, OWCP discussed evidence from the occupational claim and
advised appellant to submit additional evidence with respect to the traumatic injury claim.
Appellant submitted an April 24, 2014 statement that he was delivering his route when he felt a
pop and severe pain in his back and legs. He indicated that he called 911 and was transported to
the emergency room.

4

The signature of the physician is illegible.

5

To date, this claim has not been administratively combined with the current claim.

6

The record does not contain a March 21, 2014 job offer. The occupational claim did contain a job offer
accepted by appellant on January 6, 2014, as discussed above.

2

Appellant submitted a narrative report from Dr. Brown, dated March 25, 2014, who
reported that appellant sustained an acute injury on March 22, 2014 at approximately 12:30 p.m.
while performing business mail delivery. Dr. Brown reported that appellant had a previously
accepted an occupational disease claim. He indicated that on March 22, 2014 appellant was
bending down to place mail in a slot when he developed an acute onset of low back pain with
radiation into both legs. According to Dr. Brown, appellant was treated on that date at a medical
center and released with pain medication. Dr. Brown provided results on examination and
reported x-rays showed multilevel lumbar vertebral lipping and joint space loss consistent with
degenerative joint disease. The diagnoses were permanent aggravation of lumbosacral
radiculopathy, permanent aggravation of lumbosacral degenerative disc disease, and lumbar
intervertebral disc syndrome with myelopathy. Dr. Brown opined:
“[Appellant’s] medical injuries to his low back occurred as a direct result of the
incident, which occurred on [March 22, 2014]. Clearly, on the aforementioned
date in question, [he] was engaged in performing business mail delivery when,
while bending down to place mail into the appropriate slot, he noted the acute
onset of severe paroxysmal low back pain with radiation of his pain into the
posterior aspects of both legs and associated with sudden bilateral lower extremity
weakness. The biomechanical maneuver associated with bending over and
placing the mail into the slot clearly precipitated an acute lumbosacral
radiculopathy and permanently aggravated the patient’s lumbosacral spine
degenerative disc disease as well as the intervertebral lumbar disc herniations that
had previously been noted at L4-L5 and L5-S1 by prior MRI [magnetic resonance
imaging] [scan] studies.”
Dr. Brown reported the fact that appellant experienced acute exacerbation of bilateral lower
extremity weakness indicated he was experiencing acute neurological compromise due to the
decompression and irritation of the spinal nerves as an exit from the lumbar spine at these levels.
He concluded, “Therefore, in view of the aforementioned medical rationale, it is medically
reasonable to infer a relationship of reasonable medical probability between Mr. Thompson’s
extensive medical injuries to his low back and the performance of the duties of his occupation as
city letter carrier on [March 22, 2014].”
In a report dated April 22, 2014, Dr. Brown provided a history that noted appellant’s job
duties in detail, and provided a history of the March 22, 2014 employment incident. He reported
results on examination and provided the diagnoses noted in his March 25, 2014 report.
Dr. Brown reiterated his opinion that appellant sustained back injuries on March 22, 2014.
By decision dated July 2, 2014, OWCP denied appellant’s claim for compensation. It
found that given the severity of the preexisting conditions, and the “personnel issues” that arose
under the prior claim, the evidence was insufficient to establish a new injury on March 22, 2014.
OWCP found appellant had not established causal relationship between a diagnosed condition
and the employment incident.
Appellant, through counsel, requested a hearing before an OWCP hearing representative
on July 8, 2014. A telephonic hearing was held on February 27, 2015. During the hearing,
appellant stated that the day before his injury he was given a job offer with no work limitations,

3

and he agreed to attempt to perform the job duties. He reported that his pain had been increasing
while at work on March 22, 2014, and he had bent over to put mail in slots and latch the box,
when the pain became severe and he was unable to continue working.
The record indicates that on November 10, 2014 appellant underwent back surgery. In a
report of that date Dr. Terence Mayers, a Board-certified surgeon, described the surgery as
“anterior spinal exposure.”
In a decision dated May 7, 2015, the hearing representative affirmed the July 2, 2014
OWCP decision. The hearing representative found Dr. Brown’s opinion was not sufficiently
rationalized.
LEGAL PRECEDENT
FECA provides for the payment of compensation for “the disability or death of an
employee resulting from personal injury sustained while in the performance of duty.”7 The
phrase “sustained while in the performance of duty” in FECA is regarded as the equivalent of the
commonly found requisite in workers’ compensation law of “arising out of an in the course of
employment.”8 An employee seeking benefits under FECA has the burden of establishing that
he or she sustained an injury while in the performance of duty.9 In order to determine whether
an employee actually sustained an injury in the performance of duty, OWCP begins with an
analysis of whether “fact of injury” has been established. Generally “fact of injury” consists of
two components which must be considered in conjunction with one another. The first
component to be established is that the employee actually experienced the employment incident
which is alleged to have occurred. The second component is whether the employment incident
caused a personal injury, and generally this can be established only by medical evidence.10
OWCP’s procedures recognize that a claim may be accepted without a medical report
when the condition is a minor one which can be identified on visual inspection.11 In clear-cut
traumatic injury claims, such as a fall resulting in a broken arm, a physician’s affirmative
statement is sufficient and no rationalized opinion on causal relationship is needed. In all other
traumatic injury claims, a rationalized medical opinion supporting causal relationship is
required.12
Rationalized medical opinion evidence is medical evidence that is based on a complete
factual and medical background, of reasonable medical certainty, and supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
7

5 U.S.C. § 8102(a).

8

Valerie C. Boward, 50 ECAB 126 (1998).

9

Melinda C. Epperly, 45 ECAB 196, 198 (1993); see also 20 C.F.R. § 10.115.

10

See John J. Carlone, 41 ECAB 354, 357 (1989).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(c) (January 2013).

12

Id at Chapter 2.805.3(d) (January 2013).

4

specific employment factors identified by the claimant. The weight of medical evidence is
determined by its reliability, its probative value, its convincing quality, the care of the analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.13
OWCP’s definition of a recurrence of disability means an inability to work after an
employee has returned to work, cause by a spontaneous change in a medical condition, which
had resulted from a previous injury or illness without an intervening injury or new exposure.
The term also means the inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.14
OWCP’s procedures require that in cases where recurrent disability for work is claimed
within 90 days or less from the first return to duty, the attending physician should describe the
duties which the employee cannot perform and the demonstrated objective medical findings that
form the basis for the renewed disability.15
ANALYSIS
In the present case, appellant filed a traumatic injury claim for a back injury on
March 22, 2014, his first route under a new job offer he had accepted under protest. The Board
notes that appellant had an existing occupational claim for a back injury that had been accepted
by OWCP. That claim was assigned OWCP File No. xxxxxx582. OWCP accepted his
occupational disease claim for permanent aggravation of a lumbosacral degenerative disc disease
at multiple levels and L4-5 and L5-S1 disc bulge with right radiculopathy. Both claims involve
the back, the treating physician has referenced the prior occupational disease claim, and both
claims involve diagnoses that include permanent aggravation of lumbar degenerative disc
disease. Combining the claims will aid in review and adjudication of the medical issues.16
The Board finds that before a proper adjudication can be made as to the March 22, 2014
claim of injury, the occupational and traumatic injury case files must be combined.17 After such
further development as OWCP finds necessary, it should issue a de novo merit decision.
CONCLUSION
The Board finds that the case is not in posture for decision and is remanded to OWCP for
consideration of the case records and any further development as OWCP deems appropriate.
13

Jennifer Atkerson, 55 ECAB 317, 319 (2004).

14

See John I. Echols, 53 ECAB 481 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

15

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6(a) (September 2003).

16

Id. at File Maintenance and Management, Chapter 2.400.8(c)(1) (February 2000); see also J.M., Docket No.
13-1111 (issued July 15, 2013).
17

A review of the occupational claim indicates that OWCP has undertaken ongoing development of the medical
evidence.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 7, 2015 is set aside and the case remanded for further
proceedings consistent with this decision of the Board.
Issued: August 23, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Jersey City, NJ, Employer
__________________________________________

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

Docket No. 10-1865
Issued: June 17, 2011

Case Submitted on the Record

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

JURISDICTION
On July 7, 2010 appellant, through counsel, filed a timely appeal from a March 15, 2010
decision of the Office of Workers’ Compensation Programs’ hearing representative affirming a
schedule award determination. Pursuant to the Federal Employees’ Compensation Act1 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 established that she is entitled to greater than six
percent impairment of the left upper extremity, for which she received a schedule award.
On appeal appellant’s counsel contends that the Office’s delay in adjudicating appellant’s
schedule award claim violated her due process rights and that the schedule award is a property
right protected by the United States Constitution.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. On June 5, 1998 appellant, then a 41year-old mail handler, filed a traumatic injury claim alleging that she sustained a left shoulder
strain due to lifting a heavy mailbag.2 The Office accepted the claim for left shoulder and neck
sprains. On August 14, 1999 appellant filed a traumatic injury claim alleging that on that day
she strained her left shoulder and neck when she was hit by a plastic squirt bottling falling on
her.3 The Office accepted the claim for aggravation of neck sprain and left shoulder sprain.
On February 6, 2001 the Office terminated appellant’s compensation benefits effective
February 25, 2001 on the grounds that she no longer had any disability or residuals due to her
accepted employment injuries. It denied modification on November 27, 2001.
By decision dated August 16, 2002, the Board affirmed the November 27, 2001 decision
denying modification of the termination of her compensation.4
On February 14, 2005 appellant filed a claim for a schedule award.
In a July 22, 2003 report, Dr. David Weiss, a Board-certified orthopedist, concluded that
appellant had a 38 percent left upper extremity impairment using the fifth edition of the
American Medical Association¸ Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides). A physical examination revealed tenderness of the left shoulder acromion tip, restricted
left shoulder range of motion and sensory deficit in the C5 and C6 dermatomes.
In a September 2, 2009 report, Dr. Craig Uejo, a Board-certified occupational medicine
physician, reviewed Dr. Weiss’ July 22, 2003 report. He found that appellant had a six percent
permanent impairment of the left upper extremity under the sixth edition of the A.M.A., Guides.
Dr. Uejo noted that, based on the diagnosis, an impairment rating could be considered under
either loss of range of motion or an evaluation based on impingement syndrome. Using Table
15-34, page 475 and section 15.7g, page 472, he determined that appellant had a three percent
impairment for loss of flexion and three percent impairment for loss of abduction resulting in a
total six percent left shoulder impairment. Dr. Uejo noted an impairment determination for an
impingement syndrome using Table 15-5, page 403, Table 15-7, page 406, Table 15-8, page 408
and Table 15-9, pages 410-11 and sections 15.3a, b and c on pages 406-07, resulted in five
percent impairment. He concluded that appellant had six percent left upper extremity
impairment based on loss of range of motion, which resulted from the method yielding the higher
impairment rating. Next, Dr. Uejo determined that appellant had a zero percent impairment due
to sensory loss in the left upper extremity. According to Table 15-18, page 429, the section on
Impairment for Sensory Only Nerve Injury, the sensory deficits for the C5 and C6 sensory
deficits would be characterized as mild based on some pain and retained protective sensation.
Dr. Uejo noted that, based on the diagnosis, an impairment rating could be considered under loss
2

This was assigned claim number xxxxxx423

3

This was assigned claim number xxxxxx176.

4

Docket No. 02-946 (issued August 16, 2002).

2

of range of motion. Using Table 15-34, page 475 and section 15.7g, page 472, he determined
that appellant had a three percent impairment for loss of flexion and three percent impairment for
loss of abduction resulting in a total six percent left shoulder impairment. Using Table 15-21,
page 436-44, Peripheral Nerve Impairment: Upper Extremity Impairments, appellant’s condition
was a class 1 rating. This resulted in one percent upper extremity impairment. Dr. Uejo then
referred to the grade modifiers for functional history adjustment under Table 15-7 and section
15.3a on page 406, he assigned a grade one modifier for pain and symptoms with
strenuous/vigorous activity +/- medication for symptom control. For the physical examination
adjustment, he found that, under Table 15-8, page 408 and section 15-3b, page 407, appellant
was not assigned a grade modifier as examination findings are used to select the impairment
class. Under clinical studies adjustment, Dr. Uejo found under Table 15-9, pages 410-11 and
section 15-3c, page 407 that appellant had a grade zero modifier as there are no electrodiagnostic
studies showing any pathology. He noted that the net adjustment of -1 resulting in a grade B or
zero percent impairment for sensory loss. Dr. Uejo combined the zero percent impairment for
sensory loss and the six percent for left shoulder impairment, resulting in a six percent left upper
extremity impairment.
In a September 4, 2009 addendum, Dr. Weiss reviewed and noted his concurrence with
Dr. Uejo’s impairment.
On October 14 and November 14, 2009 Dr. Henry J. Magliato, an Office medical adviser,
reviewed Dr. Uejo’s September 2, 2009 report and Dr. Weiss’ July 22, 2003 and September 4,
2009 reports. He concurred with Dr. Uejo’s finding of a six percent left upper extremity
impairment. Dr. Magliato noted July 22, 2003 as the correct date of medical maximum
improvement in his November 14, 2009 report.
By decision dated December 8, 2009, the Office granted appellant a schedule award for
six percent impairment of the left upper extremity. The award ran for 18.72 weeks from July 22
to November 30, 2003.
On December 15, 2009 appellant’s counsel requested a review of the written record by an
Office hearing representative.
By decision dated March 15, 2010, the Office hearing representative affirmed the
December 8, 2009 schedule award decision.
LEGAL PRECEDENT
The schedule award provision of the Act5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, the Act does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

3

necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7 Effective May 1, 2009, the Office adopted
the sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that
date.8
ANALYSIS
The Office accepted that appellant sustained left shoulder and neck sprains, aggravation
of neck sprain and left shoulder sprain.
In a January 15, 2010 report, Dr. Uejo, a Board-certified occupational medicine
physician, reviewed Dr. Weiss’ July 22, 2003 report. He found that appellant had a six percent
permanent impairment of the left upper extremity under the sixth edition of the A.M.A., Guides.
Dr. Uejo used range of motion instead of diagnosis based as the range of motion method resulted
in a higher impairment rating. Using Table 15-35 and section 15.7g, page 472, he concluded that
appellant had a three percent impairment for loss of flexion and three percent impairment for loss
of abduction resulting in a total six percent left shoulder impairment. Next, Dr. Uejo referred to
grade modifiers for a final determination of appellant’s impairment rating. Under functional
history adjustment using Table 15-7 and section 15.3a on page 406, he assigned a grade one
modifier for pain and symptoms with strenuous/vigorous activity +/- medication for symptom
control. For the physical examination adjustment grade modifier, Dr. Uejo found that under
Table 15-8, page 408 and section 15-3b, page 407 appellant was not assigned a grade modifier as
examination findings are used to select the impairment class. Under clinical studies adjustment,
he found under Table 15-9, pages 410-11 and section 15-3c, page 407 that appellant had a grade
0 modifier as there are no electrodiagnostic studies showing any pathology. Dr. Uejo noted that
the net adjustment of -1 resulting in a grade B or zero percent impairment for sensory loss. He
combined the zero percent impairment for sensory loss and the six percent for left shoulder
impairment, resulting in a six percent left upper extremity impairment.
Both Dr. Weiss and Dr. Magliato, an Office medical adviser, reviewed Dr. Uejo’s report
and concurred with his finding of a six percent left upper extremity impairment. There is no
evidence supporting that appellant has a greater left upper extremity impairment. Thus, he has
not established entitlement to greater than six percent left upper extremity impairment.
On appeal, appellant asserts that he has property rights in a schedule award benefit under
the fifth edition and a protected property interest cannot be deprived without due process, citing
Goldberg v. Kelly, 397 U.S. 254 (1970) and Mathews v. Eldridge, 424 U.S. 319 (1976). These
cases held only that a claimant who was in receipt of benefits (in Goldberg public assistance, and
in Mathews social security benefits) could not have those benefits terminated without procedural

7

Id.

8

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

4

due process.9 In this case, appellant is simply making a claim for a schedule award. He is not in
receipt of schedule award benefits nor is the Office attempting to terminate any benefits.
Appellant has not established a vested right to a schedule award decision under the fifth edition
of the A.M.A., Guides, nor has he identified any procedural due process which he has been
denied. The cases cited by appellant are not applicable to the present case.
CONCLUSION
The Board finds that appellant has no greater than six percent left upper extremity
impairment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 15, 2010 is affirmed.
Issued: June 17, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

9

In Mathews the court noted that the private interest that would be adversely affected by the erroneous
termination of benefits was likely to be less in a disabled worker than a welfare recipient, and due process would not
require an evidentiary hearing.

5