United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.G., Appellant
and
DEFENSE AGENCIES, PENTAGON FORCE
PROTECTION AGENCY, Alexandria, VA,
Employer
__________________________________________

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

Docket No. 19-0071
Issued: May 28, 2019

Case Submitted on the Record

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

JURISDICTION
On October 11, 2018 appellant filed a timely appeal from a September 21, 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.
ISSUE
The issue is whether appellant has met his burden of proof to establish an emotional
condition in the performance of duty.
FACTUAL HISTORY
On April 17, 2018 appellant, then a 35-year-old police officer, filed an occupational disease
claim (Form CA-2) alleging that he sustained hypertension, stress, anxiety, depression, panic
1

5 U.S.C. § 8101 et seq.

attacks, and insomnia due to factors of his federal employment. He indicated that he first became
aware of his claimed conditions on January 29, 2018 and realized that they were related to his
federal employment on March 24, 2018. On the reverse side of the claim form the employing
establishment indicated that appellant first reported his conditions on March 25, 2018, and that he
was last exposed to the conditions alleged to have caused disease on March 26, 2018.
In an accompanying undated statement, appellant related that at approximately 11:00 p.m.
on March 24, 2018 he was dispatched to respond to the employing establishment’s overflow
parking lot. Immediately upon arriving on the scene, he observed Captain T.A. situated in the
middle of the parking lot among other officers. Appellant indicated that he perceived this to be a
training scenario. He then began to experience a series of panic attacks and fear due to his anxiety,
which seemed uncontrollable. Appellant called his immediate supervisor, Sergeant J.H., and
requested immediate leave due to his condition which was granted. He recalled a prior similar
training session held on January 29, 2018 during which he had been humiliated by his captain.
Appellant noted that he experienced nightmares and insomnia following the January 29, 2018
session, during which he was assigned the role of a “casualty” which he found confusing and
discriminatory and during which he was directed to retrieve his gas mask, rather than simulate
wearing a gas mask. He noted that he had constant fear of his captain humiliating him again, and
worried about the potential harm done to his professional reputation. Appellant alleged that he
experienced continuous hostile work environment due to retaliation for previous involvement in
the equal employment opportunity (EEO) process. He related that he had reported these events
through the chain of command, but no action was taken to correct the problem. Appellant further
indicated that from February 1, 2018 onward he had been subjected to the receiving end of
distasteful jokes from multiple sources in relation to the January 29, 2018 training incident. He
noted that the effects from such humiliation had been so severe that it had adversely altered the
conditions of his employment in creating an intimidatingly hostile work environment.
Appellant related that on November 14, 2017 he made shift management aware of an
agency email that had been circulated regarding mandatory training that was required of all
employees. He forwarded the email to all supervisors, but never received a response from his
captain or any other supervisors as to how officers could go about completing training. Appellant
alleged that the captain appeared physically angry that he had made the inquiry. He noted, like
most instances, she became verbally combative in her responses. Appellant further alleged that he
was retaliated against from making protected disclosures.
Appellant also described a November 15, 2017 incident in which he was riding a Segway
through the employing establishment parking lot and a civilian vehicle who appellant identified as
a police sergeant intentionally pulled his vehicle out of a parking space, causing appellant to
decelerate his vehicle to a near stop. He believed that this was done to intimidate and bully him
and indicated that he had a genuine fear for his safety.
OWCP received a January 18, 2018 decision from the Equal Employment Opportunity
Commission (EEOC), which reversed prior dismissals of complaints made by appellant and
remanded the claim for review.
In a fitness-for-duty evaluation request dated April 11, 2018, the employing establishment
related that appellant’s condition of panic attacks and uncontrollable anxiety impeded his ability

2

to safely and appropriately respond to actual incidents and service calls required of police officers
and thus, was not fit for duty.
By development letter dated April 19, 2018, OWCP informed appellant of the factual and
medical evidence needed to support his claim. By separate letter of even date, it asked the
employing establishment to comment regarding the accuracy of appellant’s allegations. OWCP
afforded 30 days for response.
In a duty status report (Form CA-17) dated April 20, 2018, Dr. Guido Rojas, a family
medicine specialist, diagnosed anxiety and depression, and noted that appellant was able to return
to work full time without restrictions.
In an attending physician’s report (Form CA-20) dated April 20, 2018, Dr. Rojas diagnosed
hypertension, anxiety, insomnia, panic attacks, and depression. He checked a box marked “yes”
when asked whether he believed appellant’s condition to be caused or aggravated by his
employment activities.
In a response to the questionnaire dated April 25, 2018, appellant indicated that a major
factor that caused his condition to be exacerbated was management’s failure to act appropriately,
and in a timely fashion, to his disclosures of alleged abuse. He noted that his mistreatment began
in the later months of 2015 and occurred sporadically over time. Appellant related that he filed a
number of complaints through the chain of command when he realized that he was disparately
treated. He indicated that he filed two complaints.
In a memorandum dated May 5, 2018, J.M., appellant’s second level supervisor at the
employing establishment, responded to OWCP’s April 19, 2018 request. He indicated that he
could not testify to the veracity or accuracy of appellant’s allegations because he had limited
knowledge and experience regarding allegations of employment-related emotional conditions.
J.M. noted that there were no aspects of appellant’s employment that he perceived as stressful, but
noted that appellant could have perceived an incident as stressful when two years ago he received
disciplinary action as a result of sleeping while on duty. He related that, after this incident,
appellant was moved to a different squad, with a different supervisor, and had different work
assignments in order to minimize any future conflicts between appellant and that supervisor. J.M.
further indicated that the work shortages experienced by the employing establishment had no direct
effect on appellant, that appellant usually met/exceeded work expectations, and that he had no
performance problems.
In a report dated May 31, 2018, Janice M. Shabe, a clinical psychologist, diagnosed chronic
post-traumatic stress disorder, generalized anxiety disorder, and moderate major depressive
disorder. She opined that appellant’s conditions were related to his employment-related stress.
By decision dated September 21, 2018, OWCP denied appellant’s claim for an emotional
condition, finding that the evidence was not sufficient to establish a compensable factor of
employment.

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LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,2 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.3 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.4
To establish an emotional condition in the performance of duty, appellant must submit the
following: (1) medical evidence establishing that he or she has an emotional or psychiatric
disorder; (2) factual evidence identifying employment factors or incidents alleged to have caused
or contributed to the condition; and (3) rationalized medical opinion evidence establishing that the
identified compensable employment factors are causally related to the emotional condition.5
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,6 the Board explained
that there are distinctions as to the type of employment situations giving rise to a compensable
emotional condition arising under FECA. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within coverage under FECA.7
When an employee experiences emotional stress in carrying out his or her employment duties, and
the medical evidence establishes that the disability resulted from an emotional reaction to such
situation, the disability is generally regarded as due to an injury arising out of and in the course of
employment. This is true when the employee’s disability results from his or her emotional reaction
to a special assignment or other requirement imposed by the employing establishment or by the
nature of the work. Allegations alone by a claimant are insufficient to establish a factual basis for
an emotional condition claim.8 Where the claimant alleges compensable factors of employment,
he or she must substantiate such allegations with probative and reliable evidence.9 Personal

2

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
3
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
4

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
5

See M.R., Docket No. 18-0305 (issued October 18, 2018); George H. Clark, 56 ECAB 162 (2004).

6

S.B., Docket No. 18-1113 (issued February 21, 2019); see also 28 ECAB 125 (1976).

7

S.K., Docket No. 18-1648 (issued March 14, 2019); see Robert W. Johns, 51 ECAB 137 (1999).

8

S.B., supra note 2; J.F., 59 ECAB 331 (2008).

9

G.G., Docket No. 18-0432 (issued February 12, 2019); M.D., 59 ECAB 211 (2007).

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perceptions alone are insufficient to establish an employment-related emotional condition.10 On
the other hand the disability is not covered where it results from such factors as an employee’s fear
of a reduction-in-force or his or her frustration from not being permitted to work in a particular
environment or to hold a particular position.11
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under FECA.12 However, the Board
has held that, where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.13
In determining whether the employing establishment erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.14
For harassment or discrimination to give rise to a compensable disability under FECA,
there must be probative and reliable evidence that harassment or discrimination did in fact occur.15
Mere perceptions of harassment, retaliation, or discrimination are not compensable under FECA.16
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an emotional
condition in the performance of duty.
Appellant alleged that he sustained hypertension, stress, anxiety, depression, panic attacks,
and insomnia as a result of several employment incidents and factors. The Board must initially
review whether these alleged incidents and conditions of employment are compensable
employment factors under the terms of FECA. The Board notes that appellant’s allegations do not
pertain to his regular or specially assigned duties under Cutler.17 Rather, appellant has alleged
abuse and harassment on the part of his supervisor.
Appellant has attributed his emotional conditions to actions of his supervisor, including
humiliation during a training exercise, and management’s failure to act upon receiving his
complaints. As a general rule, a claimant’s reaction to administrative or personnel matters falls
10

G.G., id.; Roger Williams, 52 ECAB 468 (2001).

11

See P.B., Docket No. 17-1912 (issued December 28, 2018).

12

S.K., supra note 7; see Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990),
reaff’d on recon., 42 ECAB 556 (1991).
13

S.K., id.; S.B., supra note 2; see William H. Fortner, 49 ECAB 324 (1998).

14

A.E., Docket No. 18-1587 (issued March 13, 2019); see Ruth S. Johnson, 46 ECAB 237 (1994).

15

S.B., supra note 2; Marlon Vera, 54 ECAB 834 (2003).

16

S.B., id.; Kim Nguyen, 53 ECAB 127 (2001).

17

Supra note 2.

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outside the scope of FECA.18 Absent evidence establishing error or abuse, a claimant’s
disagreement or dislike of such a managerial action is not a compensable factor of employment.19
With regard to the training exercise of January 29, 2018, appellant has not established that
his assignment as a “casualty” and his Captain’s directive that he retrieve his gas mask for the
exercise, rather than simulate wearing a gas mask were abusive. The Board has explained that a
dislike of the manner in which a supervisor carried out his or her duties is not compensable absent
error or abuse.20 Appellant’s own confusion regarding the circumstances of this training scenario
does not establish error or abuse by his supervisor. Similarly, his perception that the March 24,
2018 training exercise could be abusive is not compensable as appellant did not participate in this
event. The perception of mistreatment, let alone the perception of possible mistreatment, is not
sufficient to establish a compensable work factor.21
Appellant has also alleged that his complaints regarding inappropriate jokes were
improperly handled. However, handling of complaints is an administrative function of the
employer and not a duty of the employee.22 Appellant has not established a compensable factor
of employment as he has not submitted corroborating evidence of error or abuse in this
administrative matter.23
The Board also finds that appellant submitted no evidence corroborating his allegations of
harassment. Harassment can constitute a factor of employment if it is shown that the incidents
constituting the claimed harassment actually occurred, however, mere perceptions are not
compensable under FECA.24 The parking lot incident appellant described as occurring on
November 15, 2017 when he was riding his Segway through the employing establishment is
merely appellant’s unsubstantiated perception of harassment. In reviewing appellant’s statement,
the Board finds that appellant has not provided evidence substantiating a specific incident of
harassment. As he has not substantiated his allegations with probative evidence, appellant has not
established a compensable employment factor under FECA with respect to the claimed
harassment.
Appellant also submitted a copy of the January 18, 2018 EEOC decision, which remanded
his claim for further review. As the decision remanded appellant’s EEO claim for further action

18

S.B., supra note 2; see Carolyn S. Philpott, 51 ECAB 175 (1999).

19

M.C., Docket No. 18-0585 (issued February 13, 2019); see Donney T. Drennon-Gala, 56 ECAB 469 (2005).

20

See L.K., Docket No. 16-1311 (issued January 17, 2017).

21

See M.B., Docket No. 16-0917 (issued May 8, 2017).

22

M.C., supra note 19; see Janet I. Jones, 47 ECAB 345, 347 (1996); Jimmy Gilbreath, 44 ECAB 555, 558 (1993);
Apple Gate, 41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
23

Id.

24

B.L., Docket No. 18-0965 (issued November 19, 2018); Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

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and therefore it did not establish error and abuse by the employing establishment. Thus, this
decision does not establish a compensable employment factor under FECA.
Consequently, appellant has not established his claim for an emotional condition as he has
not attributed his claimed condition to any compensable employment factors. The Board therefore
does not need to consider the medical evidence of record.25
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 an emotional
condition in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the September 21, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 28, 2019
Washington, DC

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

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

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

25
See S.W., Docket No. 17-1016 (issued September 19, 2018); see G.S., Docket No. 09-0764 (issued
December 18, 2009).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.F., Appellant
and
U.S. POSTAL SERVICE, TEUTONIA
STATION, Milwaukee, WI, Employer
__________________________________________

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

Docket No. 16-0686
Issued: August 22, 2016

Case Submitted on the Record

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

JURISDICTION
On February 23, 2016 appellant, through counsel, filed a timely appeal from a
January 21, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish more than two percent
permanent impairment of the right lower extremity for which he received a schedule award.
1

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

5 U.S.C. § 8101 et seq.

On appeal counsel asserts that the January 21, 2016 decision is contrary to law and fact.
FACTUAL HISTORY
On September 26, 2006 appellant, then a 48-year-old window clerk, filed a traumatic
injury claim (Form CA-1) alleging that on September 13, 2006 he injured his right foot and ankle
by twisting it on a thick floor mat. OWCP accepted the claim for right foot sprain and stress
fracture of the right third metatarsal. At the time of the right foot injury, appellant was working a
rehabilitation position as a distribution/window clerk for an accepted 2001 right wrist injury.
The job description indicated that he could sit or stand as needed. Appellant stopped work on
October 26, 2007 and began receiving wage-loss compensation.
In August 2007, OWCP referred appellant to Dr. Paul Cederberg, a Board-certified
orthopedic surgeon, for a second opinion evaluation. In reports dated August 30 and
November 6, 2007, Dr. Cederberg diagnosed strain of the right foot and ankle superimposed on
degenerative arthrosis of the right third tarsometatarsal joint. He noted that appellant had
symptoms out of proportion to objective findings. Following Dr. Cederberg’s review of the
distribution/window clerk job description, he advised that appellant could perform the duties
required.
In a December 17, 2007 report, Dr. John R. Krueger, an attending Board-certified family
physician, advised that appellant could not stand for more than 15 minutes at a time and had
difficulty wearing a shoe on his right foot due to pain.
OWCP determined that a conflict had been created regarding whether appellant had
continued residuals, his ability to work, and the need for continued treatment. On April 16, 2008
it referred appellant to Dr. James H. Langenkamp, Board-certified in orthopedic surgery, for an
impartial evaluation. In a May 15, 2008 report, following his review of the record and physical
examination, he advised that there were no objective findings regarding appellant’s right foot,
and that he was medically capable of performing the physical requirements of the window clerk
position for eight hours daily. The only additional treatment recommended was pain
management.
Appellant retired on disability, effective May 15, 2008. He elected retirement benefits,
effective January 31, 2009.
On August 28, 2012 appellant filed a schedule award claim (Form CA-7). In support he
submitted an August 20, 2012 report in which Dr. Vance Masci, Board-certified in family and
occupational medicine, reported the history of injury and appellant’s current complaint of severe
right foot pain that interfered with his ability to walk, noting that he could not wear a regular
shoe. Dr. Masci diagnosed right foot stress fracture with multiple associated comorbidities,3 and
advised that appellant was probably at maximum medical improvement with regard to his right
foot. He advised that, in accordance with the sixth edition of the American Medical Association,

3

Dr. Masci also diagnosed left lower extremity degenerative joint disease to the ankle, knee, and hip and lumbar
degenerative joint disease.

2

Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),4 under Table
16-2, Foot and Ankle Regional Grid, for a diagnosis of metatarsal fracture, nondisplaced,
appellant had two percent impairment, but that after applying modifiers 2 for functional history,
3 for physical examination, and 2 for clinical studies, using Table 16-9, he had 40 percent
impairment.
Dr. Christopher Gross, an OWCP medical adviser, reviewed the record, including
Dr. Masci’s report. He advised that, based on Table 16-2, appellant had a class 1 impairment.
Dr. Gross found modifiers 2 for functional history and physical examination and a modifier 1 for
clinical studies. After applying the net adjustment formula, he concluded that appellant had two
percent right lower extremity impairment with August 20, 2012 as the date of maximum medical
improvement.
On February 19, 2013 OWCP granted appellant a schedule award for 12 percent right
lower extremity permanent impairment, for a total of 5.76 weeks, to run from August 20 to
September 29, 2012. Appellant requested a hearing before an OWCP hearing representative on
March 14, 2013. On May 13, 2013 OWCP issued an amended decision. It noted that line 1 of
the February 19, 2013 decision contained a typographical error. OWCP indicated that the award
was for two percent right lower extremity permanent impairment. The number of weeks, period
of the award, and payment were correctly reflected in the February 19, 2013 decision.
On March 14, 2013 appellant, through counsel, requested an oral hearing before OWCP’s
hearing representative.
In reports dated March 27 and April 1, 2013, Dr. Masci, the physician, reiterated that
appellant was entitled to 40 percent permanent impairment. He maintained that Dr. Gross
arbitrarily downgraded the award.
At the hearing, held on July 1, 2013, appellant’s representative argued that Dr. Masci’s
opinion represented the weight of the evidence regarding a schedule award. The hearing
representative questioned whether Dr. Masci assigned whole person impairment and indicated
that clarification from Dr. Masci was needed. Appellant testified regarding his right foot
condition, stating that he could not wear a shoe and could not drive.
In an August 5, 2013 report, Dr. Masci related that appellant had 40 percent right lower
extremity permanent impairment or 16 percent whole person impairment.
By decision dated September 9, 2013, OWCP’s hearing representative affirmed the
May 13, 2013 schedule award. He noted that Dr. Masci did not clarify how he calculated
appellant’s impairment. The hearing representative noted that Table 16-9, referenced by
Dr. Masci did not provide specific diagnoses or diseases and was to be used as an example to
assist physicians in applying the A.M.A., Guides. He related that, under Table 16-2, the
maximum impairment for a diagnosis of nondisplaced metatarsal fracture of the third metatarsal
was two percent, the award granted. The hearing representative concluded that OWCP’s medical
adviser’s opinion represented the weight of the medical evidence.
4

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

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Appellant submitted a claim for increased schedule award (Form CA-7) on
January 7, 2015. In a November 19, 2014 report, Dr. Neil Allen, Board-certified in internal
medicine and neurology, reviewed medical evidence and described physical examination
findings. He advised that, under Table 16-2, based on medical records and physical examination
findings, appellant had a class 1 impairment with a default value of five percent, with modifiers 2
for functional history and physical examination, and a modifier 1 for clinical studies. Dr. Allen
applied the net adjustment formula and concluded that appellant had seven percent right lower
extremity permanent impairment.
On February 5, 2014 Dr. Michael Hellman, an OWCP medical adviser, reviewed the
record including Dr. Allen’s report. He advised that under Table 16-2, for a diagnosis of other
metatarsal fracture, nondisplaced with abnormal examination findings, the default value for a
class 1 impairment is one percent. Dr. Hellman agreed with Dr. Allen that appellant had grade
modifiers 2 for functional history and physical examination, and a modifier 1 for clinical studies.
OWCP’s medical adviser applied the net adjustment formula and advised that maximum medical
improvement was reached on August 20, 2012. He concluded that appellant had two percent
impairment, the largest impairment allowed for his diagnosis.
By decision dated August 2, 2015, OWCP found that appellant was not entitled to a right
lower extremity schedule award greater than the two percent previously awarded.
Appellant, through counsel, timely requested a hearing. At the hearing, held on
November 13, 2015 he testified that he had retired on disability and had fallen the previous year
and fractured his right ankle. Counsel argued that the weight of the medical evidence should rest
with the attending physician, Dr. Allen or, at the least, that a conflict in medical evidence had
been created between Dr. Allen and the medical adviser.
On January 21, 2016 OWCP’s hearing representative affirmed the August 2, 2015
decision. The hearing representative noted that, under Table 16-2 of the A.M.A., Guides, the
largest award for appellant’s diagnosis is two percent, for which he previously received a
schedule award.
LEGAL PRECEDENT
It is the claimant’s burden to establish that he or she sustained a permanent impairment of
a scheduled member or function as a result of any employment injury.5
The schedule award provision of FECA6 and its implementing federal regulations7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. 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
5

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

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

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the A.M.A., Guides as the uniform standard applicable to all claimants.8 For decisions after
May 1, 2009, the sixth edition of the A.M.A., Guides will be used.9
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).10 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition Class of Diagnosis (CDX), which is
then adjusted by Grade Modifier Functional History (GMFH), Grade Modifier Physical
Examination (GMPE), and Grade Modifier Clinical Studies (GMCS).11 The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12 Under Chapter 2.3,
evaluators are directed to provide reasons for their impairment rating choices, including choices
of diagnoses from regional grids and calculations of modifier scores.13
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.14 The implementing regulations
states that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination, and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.15 When there exists 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.16
ANALYSIS
OWCP accepted right foot sprain and stress fracture of the right third metatarsal. On
May 13, 2013 it granted appellant a schedule award for two percent permanent impairment of his
8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
10

A.M.A., Guides, supra note 4 at 5, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
11

Id. at 494-531.

12

Id. at 521.

13

Id. at 23-28.

14

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

15

20 C.F.R. § 10.321.

16

V.G., 59 ECAB 635 (2008).

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right lower extremity. The award was based on an impairment rating by Dr. Gross, an OWCP
medical adviser. This decision was affirmed by an OWCP hearing representative on
September 9, 2013.
On January 7, 2015 appellant filed a claim for increased schedule award. He submitted a
November 19, 2014 report from Dr. Allen who advised that appellant had seven percent right
lower extremity permanent impairment. Dr. Hellman, an OWCP medical adviser, disagreed with
Dr. Allen’s impairment evaluation and advised on February 5, 2014 that appellant had two
percent permanent impairment of the right lower extremity.
In his November 19, 2014 report, Dr. Allen reviewed medical evidence and described
physical examination findings. He advised that, based on medical records and physical
examination findings, under Table 16-2 appellant had a class 1 impairment with a default value
of five percent, with modifiers 2 for functional history and physical examination, and a modifier
1 for clinical studies. Dr. Allen applied the net adjustment formula and concluded that appellant
had seven percent right lower extremity impairment.
In contrast, in a February 5, 2014 report, Dr. Hellman, an OWCP medical adviser,
advised that under Table 16-2, for a diagnosis of other metatarsal fracture, nondisplaced with
abnormal examination findings, the default value for a class 1 impairment is one percent. He
agreed with Dr. Allen that appellant had grade modifiers 2 for functional history and physical
examination, and a modifier 1 for clinical studies. The medical adviser applied the net
adjustment formula and advised that maximum medical improvement was reached on
August 20, 2012. He concluded that appellant was entitled to two percent impairment, the
largest impairment allowed for his diagnosis.
The Board finds that there is a conflict in the medical opinion evidence between
Dr. Allen and Dr. Hellman regarding the degree of appellant’s right lower extremity
impairment.17
Table 16-2, Foot and Ankle Regional Grid, includes two specific diagnoses for other
metatarsal fractures. The first “other metatarsal, nondisplaced with abnormal examination
findings,” has a default value of one percent with a range of impairment values from zero to two
percent.18 The second diagnosis listed is, “other metatarsal with angulation and metatarsalgia.”
It has a default value of five percent with a range of impairment values from three to seven
percent.19
Dr. Allen did not specifically identify the diagnosis on which his impairment rating was
based. However, he indicated that appellant had a class 1 impairment with a default value of five
percent. The only diagnosis in Table 16-2 that has a class 1 default value of five percent is
“other metatarsal with angulation and metatarsalgia.” Dr. Hellman, however, indicated that
appellant’s appropriate diagnosis was the first-identified or “other metatarsal fracture,
17

Melvina Jackson, 38 ECAB 443 (1987).

18

A.M.A., Guides, supra note 4 at 504.

19

Id.

6

nondisplaced with abnormal examination findings.” He correctly indicated that the largest
impairment value allowed for this diagnosis was two percent.20 The physicians agreed regarding
grade modifiers, finding a modifier 2 for functional history and physical examination, and a
modifier 1 for clinical studies.
In order to resolve the conflict in the medical opinion evidence regarding the appropriate
diagnosis to be used for rating appellant’s right lower extremity impairment, the case shall be
remanded to OWCP for referral to an impartial medical specialist for an examination and
impairment evaluation of appellant’s right lower extremity.21 After this and other development
deemed necessary, OWCP shall issue a de novo decision regarding his entitlement to schedule
award compensation.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 21, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
proceedings consistent with this decision of the Board.
Issued: August 22, 2016
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
20

Id.

21

See S.C., Docket No. 15-1630 (issued October 23, 2015).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL AIR MARSHALL SERVICE,
NEWARK FIELD OFFICE, West Orange, NJ,
Employer
__________________________________________

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

Docket No. 10-1424
Issued: April 19, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 29, 2010 appellant, through his attorney, filed a timely appeal from the
April 19, 2010 merit decision of the Office of Workers’ Compensation Programs concerning
entitlement to schedule award compensation. 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 the case.
ISSUE
The issue is whether appellant met his burden of proof to establish more than a four
percent permanent impairment of his left upper extremity, for which he received a schedule
award.
On appeal, appellant’s attorney suggests that to the extent that the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2009)
1

5 U.S.C. § 8101 et seq.

directs a physician to disregard aspects of impairment to a rateable body part, the Board must
find that as a matter of law that this is improper in the determination of impairment ratings in
cases under the Act.2 He contends that the Office’s procedure manual requires that in evaluating
a claim for a schedule award, the medical examiner should state that all impairments (including
preexisting, nonemployment related and subsequently developed impairments) must be
considered in calculating the award.3
FACTUAL HISTORY
On February 28, 2008 appellant, then a 37-year-old federal air marshal, filed a traumatic
injury claim alleging that, on February 27, 2008 during a body sparing drill, he made contact
with his opponents arm causing appellant’s arm to move in an unintended way. He alleged that,
as a result, he suffered a blunt force impact to the inner elbow/upper forearm area causing
weakness in his arm, swelling, bruising and constant flexing of the bicep muscle. On March 26,
2008 the Office accepted appellant’s claim of sprain of elbow and forearm, other specified sites,
left. On April 1, 2008 appellant underwent an exploration and repair of biceps rupture using an
interference fit screw. On October 9, 2008 the Office expanded his claim to accept it for biceps
tendon rupture, left.
On February 2, 2009 appellant filed a claim for a schedule award. In a January 8, 2009
report, Dr. Emmanuel E. Jacob, appellant’s treating Board-certified physiatrist, evaluated
appellant’s impairment under the fifth edition of the A.M.A., Guides (2001) and determined that
he had 19 percent upper extremity impairment.
By letter dated May 11, 2009, the Office informed appellant that it was now applying the
sixth edition of the A.M.A., Guides and asked that he obtain an evaluation from his physician
that applied the new A.M.A., Guides. Accordingly, Dr. Jacob revised his January 8, 2009 report,
applied the sixth edition of the A.M.A., Guides and determined that appellant had seven percent
impairment to his upper extremity. He noted that appellant’s diagnoses were sprain of the left
elbow and forearm and biceps tendon rupture with surgical repair. Dr. Jacob assigned
appellant’s accepted injury of left elbow and forearm sprain was assigned a class 1 with
midrange default value of one percent Class of Diagnosis (CDX) upper extremity impairment
pursuant to Table 15-4.4 He found a grade modifier 1 based on Functional History (GMFH)
(Table 15-7, p. 406), a grade modifier 1 based on Physical Examination (GMPE) (Table 15-8, p.
408) and a grade modifier 0 based on Clinical Studies (GMCS) (Table 15-9, p. 410). Dr. Jacob
then applied the grade modifiers and determined that appellant had a net adjustment of minus
one5 which adjusted one to the left of mid range grade C resulting in a grade B impairment which
equaled one percent upper extremity impairment (Table 15-4, p. 398). He then noted that
2

5 U.S.C. §§ 8101-8193.

3

See Federal Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.809.4.b(1) (September 2009).
4

A.M.A., Guides 398, Table 15-4.

5

GMFH of one minus CDX of one equals zero. GMPE of one minus CDX of one equals zero. GMCS of zero
minus CDX of one equals minus one. Adding these figures yields a sum net adjustment of minus one.

2

appellant had an accepted injury of left biceps tendon rupture with surgical repair which he
assigned class 1 with midrange default value of five percent CDX upper extremity impairment
pursuant to Table 15-4, p. 399. Dr. Jacob applied the grade modifiers 1 for GMFH (Table 15-7,
p. 406), one for GMPE (Table 15-8, p. 408) and two for GMCS (Table 15-9, p. 410). He then
calculated that this resulted in a net adjustment of plus one.6 Dr. Jacob then calculated that this
would result in a grade D impairment which was equivalent to six percent upper extremity
impairment (Table 15-4, p. 399). He then added these figures together (one percent plus six
percent) and determined that appellant had seven percent impairment of the left upper extremity
pursuant to the sixth edition of the A.M.A., Guides.
On July 9, 2009 the Office asked the Office medical adviser to make a determination with
regard to appellant’s impairment for schedule award purposes. In a response of the same date,
the medical adviser utilized the findings in the report of Dr. Jacobs but determined that appellant
had four percent impairment of the left upper extremity. Dr. Jacobs noted that appellant’s claim
was accepted for sprain of the left elbow and rupture of the left biceps tendon, for which surgery
was performed. The Office medical adviser agreed with Dr. Jacob that the CDX of class 1 with a
mid default value (for tendon rupture) was five (Table 15-4, p. 399). He found that appellant
was entitled to a GMFH of 1 (Table 15-7, p. 406) for some weakness of the left arm, some
stiffness and pain on repeated use. The Office medical adviser found that appellant was entitled
to a GMPE of 1 for muscle strength in the left arm and left hand 4/5, ½ inch atrophy in left arm,
mild loss of pronation and supination and full flexion of elbow (Table 15-8, p. 408). He found
that appellant had a grade 0 for GMCS as no clinical studies were in the file (Table 15-9, p. 410).
Adding these figures together the Office medical adviser noted that appellant was entitled to a
net modifier adjustment of minus one, which would move the default value one space to the left,
thereby equaling a four percent impairment of the left upper extremity.7 The medical adviser
also noted that Dr. Jacobs graded separately for sprain of the left arm and the elbow for an
additional impairment of one percent. The Office medical adviser noted that this was not
correct, that the sixth edition of the A.M.A., Guides state that only the major diagnosis is to be
put into the diagnostic grid and then modified using the various grade modifiers. Accordingly,
the medical adviser found that appellant had four percent impairment of the left upper extremity
(5 - 1 = 4).
In an August 14, 2009 addendum, Dr. Jacobs stated that he reviewed the report of the
Office medical adviser and disagreed with his calculations. He stated that there were two
separate accepted work-related injuries on February 27, 2008, a sprain of the elbow and forearm,
which is a soft tissue injury and a left biceps tendon rupture, which is a muscle injury.
Dr. Jacobs stated that these diagnoses were for two separate parts of the body and constituted
two separate work injures and should be rated separately.
In a September 3, 2009 report, the Office medical adviser stated that the sixth edition of
the A.M.A., Guides, clearly state that the major clinical diagnosis in the injured region must be
6

GMFH of one minus CDX of one equals zero. GMPE of one minus CDX one equals zero. GMCS of two
minus CDX one equals one. Adding these figures yields a sum net adjustment of plus one.
7

A.M.A., Guides 399, Table 15-4 (GMFH – CDX = 1 – 1 = 0), (GMPE – CDX = 1 – 1 = 0), (GMCS – CDX = 0
– 1 = -1).

3

selected and placed in the proper diagnostic grid to a class CDX and that you get the default
value from this class. He believed that Dr. Jacob misinterpreted the instructions. The Office
medical adviser noted that the sprain of the elbow is a minor diagnosis and it occurred as part of
a major injury which caused the tendon rupture in the left elbow. He stated that the sprain, since
it is relatively minor, would fall into class 0 on Table 15-2, p. 391 even if one was to combine
two diagnoses from the injured extremity. The medical adviser concluded that this would add
nothing to the four percent he got using the main diagnosis. He concluded that he still believed
that his initial rating of four percent impairment to the left upper extremity was correct.
By decision dated April 19, 2010, the Office issued a schedule award for a four percent
impairment of the left upper extremity. In making this determination, it found that the weight of
the evidence was represented by the Office medical adviser as he is considered an expert in
interpreting the A.M.A., Guides and provided a clear explanation and rationale to support that he
use the A.M.A., Guides correctly.
LEGAL PRECEDENT
The schedule award provisions of the Act provide for compensation to employees
sustaining impairment from loss or loss of use of specified members of the body. The Act,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such determination is a mater which rests in the sound
discretion of the Office. For consistent results and to ensure equal justice, the Board has
authorized the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the Office as a standard for evaluation
of schedule losses and the Board has concurred in such adoption.8
For schedule awards after May 1, 2009, the impairment is evaluated under the sixth
edition of the A.M.A., Guides, published in 2009.9 Initial schedule award decisions issued on or
after May 1, 2009 will be based on the sixth edition of the A.M.A., Guides, even if the amount of
the award was calculated prior to that date. A claimant who has received a schedule award under
a previous edition may make a claim for an increased award, which should be calculated
according to the sixth edition.10
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).11 Under the sixth edition, the evaluator identifies the impairment class for the
8

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

9

FECA Bulletin No. 09-03 (issued March 15, 2009); see also Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
10

Id. See also T.B., Docket No. 09-1903 (issued April 15, 2010) (the Board held that, in a claim for an increased
schedule award due to worsening of an accepted impairment, the Office medical adviser must utilize the edition of
the A.M.A., Guides in effect at the time the Office issues a decision on the augmented schedule award).
11

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

4

diagnosed condition CDX, which is then adjusted by grade modifiers based on GMFH, GMPE
and GMCS.12 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX).
After obtaining all necessary medical evidence, the file should be routed to the Office
medical adviser for a rationalized opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides.13
ANALYSIS
The Office accepted appellant’s claim for sprain of the left elbow and forearm and also
for left biceps tendon rupture. Under the sixth edition of the A.M.A., Guides, if there are
multiple diagnoses within a specific region, then the most impairing diagnosis is rated, because it
is probably this will incorporate the functional losses of the less impairing diagnoses.14 In the
instant case, appellant’s physician, Dr. Jacob, rated appellant as evincing a 1 percent impairment
to his left upper extremity based on the sprain of this left elbow and forearm and 6 percent based
on biceps tendon rupture with surgical repair. The Office medical adviser indicated that this was
improper; he stated that these two diagnoses could not be combined. The Board finds that the
A.M.A., Guides require a physician to pick one diagnosis for the region.15 On appeal,
appellant’s attorney contends that this procedure is improper and that to the extent that the sixth
edition of the A.M.A., Guides indicates that different diagnoses cannot be combined, it is
inconsistent with the Office’s procedures. The Office has explicitly adopted the standards of the
sixth edition of the A.M.A., Guides effective May 1, 2009 for evaluating permanent
impairment.16 The Board has concurred in this adoption. Moreover, with regard to evaluating
impairment in the upper extremities, these conditions play a role in determining grade modifiers
with the various adjustment grids, including those for functional history, physical examination
and clinical studies, which in turn can alter the default impairment values found in Table 15-4.17
The Board finds that there is a conflict between the Office medical adviser and Dr. Jacobs
with regard to the extent of permanent impairment attributable to appellant’s biceps tendon
rupture with surgical repair. Both physicians agree that the default value is five pursuant to
Table 15-4. Both also agree that appellant has a grade modifier of 1 for GMFH and 1 for GMPE.
However, Dr. Jacob opined that appellant was entitled to a grade modifier of 2 for GMCS
whereas the Office medical adviser determined that appellant was entitled to a grade modifier of
zero. This difference is significant in that using Dr. Jacob’s conclusion of a grade modifier of 2,
the impairment rating would be one to the left of the default grade or an impairment rating of 4.
12

A.M.A., Guides (6th ed. 2009), page 494-531.

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (January 2010).
14

A.M.A., Guides 529, 16.3f.; see also H.P., Docket No. 10-962 (issued November 10, 2010).

15

See H.P., supra note 14.

16

See supra note 9.

17

See A.M.A., Guides 509-20.

5

Utilizing the Office medical adviser’s conclusion that appellant was entitled to a GMCS of 0, the
rating is one to the right of the default rating and would result in an impairment of 6. Therefore,
there is an unresolved conflict between appellant’s treating physician, Dr. Jacob, and the Office
medical adviser with regard to the proper impairment rating based on the rupture of appellant’s
biceps tendon. An Office medical adviser may create a conflict in medical opinion but generally
may not resolve the conflict.18 Section 8123(a) provides that 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.19 This case will be
remanded to the Office to refer appellant for an impartial medical examination regarding the
extent of the impairment to appellant’s left upper extremity.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 19, 2010 is set aside and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: April 19, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating the Medical Evidence,
Chapter 2.810.7(g) (April 1993).
19

5 U.S.C. § 8123(a); Alfred R. Anderson, 54 ECAB 179 (2002).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, OR, Employer
__________________________________________

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Appearances:
John B. King, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1934
Issued: September 19, 2018

Case Submitted on the Record

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

JURISDICTION
On September 13, 2017 appellant, through her representative, filed a timely appeal from
an April 28, 2017 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 record provided to the Board includes evidence received after OWCP issued its April 28, 2017 decision. The
Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision. Therefore, the
Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

ISSUE
The issue is whether appellant has met her burden of proof to establish a traumatic injury
in the performance of duty on April 19, 2016, as alleged.
FACTUAL HISTORY
On May 9, 2016 appellant, then a 53-year-old custodian, filed a traumatic injury claim
(Form CA-1) alleging that on April 19, 2016 she sustained an injury when she lifted heavy garbage
bags and threw away garbage in a new hamper. She claimed injury to her right arm, shoulder,
wrist, and back. Appellant did not stop work. On May 18, 2016 she formally accepted a modified
assignment, which had become effective May 10, 2016.
In her May 9, 2016 supplemental statement, appellant indicated that, on April 19, 2016,
she pushed a new hamper, which was full of garbage bags, to the North truck dock to throw out
the garbage. The last garbage bags were very heavy and, when she tried to lift one, the weight was
overwhelming, causing injury to her arm, shoulder, wrist, and back. Appellant indicated that
another employee helped her lift the heavy bag. She also noted that she requested Supervisor K.S.
to determine how heavy the bags were. Appellant stated that she did not report the incident at the
time because she thought it was a minor injury.
A May 9, 2016 accident report form indicated that, on April 19, 2016 appellant was
emptying a hamper of trash/garbage at the North truck dock. While lifting the bags from the
bottom of the hamper, she felt pain in her arm, shoulder, wrist, and back. The report noted that
the cause/circumstances of the accident were lifting heavy garbage bags from/to a higher level.
In a May 9, 2016 work status report, Dr. Samuel I. Wesmann, a Board-certified internist,
placed appellant on modified work activity from May 9 through June 20, 2016.4
In a May 9, 2016 statement, R.C., a coworker, indicated that conversations she had with
appellant between May 2 and 8, 2016 pertained to appellant’s back and shoulders hurting due to
wearing the vacuum for several hours at a time.
By development letter dated May 24, 2016, OWCP informed appellant that the evidence
of record was insufficient to establish her claim. It advised appellant of the medical and factual
evidence needed, including a physician’s reasoned opinion as to whether and how the claimed
injury event had caused or contributed to a diagnosed condition. OWCP also enclosed a
questionnaire and requested that she provide a more detailed description of the event as well as
any witness statements she had regarding the event. It afforded appellant 30 days to submit the
necessary evidence.
In a June 14, 2016 statement, appellant advised that on April 19, 2016 she was pushing one
of the new hampers, called an “Elephant,” to the North truck dock to empty trash. As she was
emptying the “Elephant,” she had to reach into it to get the final bags that were at the bottom,
4
Limitations were noted for walking, and lifting/carrying/pushing/pulling. Appellant was advised not to climb
stairs, climb ladders, or use scaffolds/work at height.

2

which were heavier. As appellant lifted the bag out of the hamper to turn to her left and throw it
onto the conveyor belt, the hamper tilted, and sprung back up to its upright position. She was
caught off guard and dropped the bag back down into the hamper injuring her right wrist, arm,
shoulder, and back. Appellant stated that Supervisor K.S., looked at the bags and saw how heavy
they were. She also stated that another employee, E.A., helped her lift the bag out of the hamper
and onto the conveyor belt to finish the job. Appellant stated that she used the affected areas every
day before she saw her physician. She indicated that she had used heating pads, ice gel, and Aleve
every day to reduce the pain. Appellant also denied any other injury between the claimed injury
and when she first reported it to her supervisor.
In a June 24, 2016 statement, E.A. indicated that, on April 19, 2016, he was working when
appellant injured her shoulder at the trash dump site while attempting to lift a garbage bag out of
the trash totes. He further indicated that the bag was so heavy, that it took “another coworker” to
help him to lift it. They then went to Supervisor K.S. to explain how appellant was injured.
In a June 15, 2016 work status report, Dr. Hannah E. Edwards, Board-certified in family
practice and occupational medicine, noted an April 19, 2016 date of injury. She diagnosed left
shoulder muscle strain, right shoulder muscle strain, and right wrist sprain. Dr. Edwards placed
appellant on modified activity from June 15 through July 7, 2016.5
By decision dated June 27, 2016, OWCP denied the claim. It found that the medical
evidence of record was insufficient to establish a medical condition causally related to the accepted
April 19, 2016 employment incident.
On July 10, 2016 appellant requested an oral hearing before an OWCP hearing
representative.
In a June 14, 2016 report, Dr. Wesmann diagnosed neck pain, right wrist joint pain, and
right knee joint pain. He indicated that the reason for the visit was bilateral shoulder and right
wrist from an April 19, 2016 work injury in which appellant related lifting heavy bags of garbage
and throwing them into the new hamper. Dr. Wesmann indicated that there were no acute findings.
Appellant had full neck and shoulder range of motion, symmetric brachial reflexes, and symmetric
grip strength. She had negative Tinel’s and Finklestein’s tests at the right wrist. Dr. Wesmann
also reported that appellant’s knee pain was better and that she could work full duty based on knee
examination and x-rays. He noted that because of her diffuse, often atypical pains, there may be
a psychosomatic component to her pain.
In a June 15, 2016 report, Dr. Edwards reported that appellant was injured at work on
April 19, 2016. Appellant described trying to lift a heavy bag out of a large deep hamper and was
twisting and pulling because the bag was stuck in the hamper. She felt pain in her left shoulder
during those efforts and needed a coworker to help complete the lift. At home, appellant also
started feeling pain in the right wrist and right shoulder. In the course of seeking care, she also
developed lower extremity pain, which was evaluated by her primary medical physician.
Dr. Edwards indicated that appellant worked light duty for half the day and full duty the other half
5
Appellant was to avoid lifting over 10 pounds, avoid work above chest height, and avoid forceful or repeated push
or pull motions for both the right and left arm.

3

of the day with difficulty. She provided an assessment of left shoulder muscle strain, right shoulder
muscle strain, and right wrist sprain. Dr. Edwards indicated that appellant had bilateral shoulder
impingement signs with reduced right shoulder range of motion. She noted that appellant
described a mechanism of injury that would reasonably cause acute shoulder strain and wrist sprain
injuries. Dr. Edwards concluded that appellant could return to work on June 15, 2016 with
limitations. A duplicative copy of Dr. Edward’s June 15, 2016 work status report was provided.
June 15, 2016 x-rays of appellant’s bilateral shoulders and right wrist revealed no bony
abnormality or significant degenerative changes. Small osteophytes were seen along the medial
aspect of the humeral head of the left shoulder.
In follow-up reports dated June 15, July 7 and 20, and August 17, 2016, Dr. Edwards
continued to diagnose left shoulder muscle strain, right shoulder muscle strain, and right wrist
sprain and provide restrictions for modified duty. In the July 7, 2016 report, she noted that
“workers’ compensation” denied the claim because she did not provide medical rationale regarding
the diagnoses. Dr. Edwards reported:
“[Appellant’s] diagnoses are based on her symptoms, described mechanism of
injury, and initial exam[ination] findings. [Appellant] described repeatedly pulling
and twisting with her arms/shoulders to release a heavy bag. This strong pulling
mechanism could reasonably have caused strain at the myotendinous junction of
her rotator cuff tendons along with stretch/pull injury to the ligaments or her right
wrist that would manifest on exam[ination] as tenderness and limited range of
motion. The diagnoses I [ha]ve assigned are based on clinical impression. Further
imaging with magnetic resonance imaging [(MRI) scan] could refine [appellant’s]
diagnosis.”
In an August 27, 2016 report, Dr. Edwards noted that appellant had increased right
shoulder pain since she was asked to do heavier work. Increased right shoulder pain with limited
range of motion and impingement signs were noted on examination. Dr. Edwards requested a right
shoulder MRI scan to evaluate for a rotator cuff tear.
A September 3, 2016 right shoulder MRI scan indicated rotator cuff tendinopathy with no
tear observed.
In a September 28, 2016 report, Dr. Edwards diagnosed tendinosis of right shoulder, right
shoulder muscle strain, left shoulder muscle strain, and right wrist sprain. She indicated that the
right rotator cuff tendinopathy described on the MRI scan was not injury related, but may relate to
preexisting conditions that were asymptomatic prior to her work injury involving the right shoulder
strain. Dr. Edwards continued to place appellant on modified activity.
In a November 15, 2016 report, Dr. Edwards diagnosed appellant’s right shoulder
conditions as adhesive capsulitis and tendinitis. She continued to provide reports regarding
appellant’s right shoulder condition. Appellant’s ongoing physical examinations with regard to
the right wrist and left shoulder were reported as normal.
In a February 2, 2017 report, Amanda Smith, a certified physician assistant, reported that
appellant presented with swelling on the volar radial surface of the right wrist, which she
4

contributed to lifting heavy hampers at work. She indicated that the x-rays of the right wrist
revealed no acute or degenerative changes. An assessment of right wrist pain, possible volar
ganglion cyst was provided. Ms. Smith noted that, while appellant was offered a new MRI scan
and possible excision of the cyst, she opted for conservative care.
A telephonic hearing took place before an OWCP hearing representative on
February 13, 2017. Appellant’s representative stated that the new huge trash bins (a.k.a.
Elephants) tip very easily. He testified that, on the date of injury, one of the bags appellant was
trying to pull out was really heavy and, while she was trying to pull the bag out, the “Elephant”
flipped up, hit her arm, and caused her a strain. Appellant’s representative testified that she got
help from E.A. and that E.A. told him that, when he walked up to help appellant, the “Elephant”
looked like it had tipped up so that it could be dumped. Appellant testified that she did not stop
work after the injury. Appellant’s representative mentioned that she got hit by a door in a different
spot after the accident, but stated that it was not part of this claim.
Following the hearing, additional medical reports from Dr. Edwards dated February 15 and
March 29, 2017 were received pertaining to right shoulder joint pain and right wrist joint pain.
By decision dated April 28, 2017, an OWCP hearing representative affirmed the denial of
the claim, but found that the factual portion of fact of injury had not been established. The hearing
representative found that the evidence of record was contradictory and therefore insufficient to
establish that the claimed incident occurred as alleged.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation of FECA, that an injury was sustained in the performance of duty as alleged, and that
any disability or specific condition for which compensation is claimed is causally related to the
employment injury. 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.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second, the employee must submit medical evidence to
establish that the employment incident caused a personal injury.8
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, as alleged, but the employee’s
6

Supra note 2

7

Gary J. Watling, 52 ECAB 357 (2001).

8

T.H., 59 ECAB 388 (2008).

5

statements must be consistent with surrounding facts and circumstances and his or her subsequent
course of action.9 An employee has not met his or her burden of proof to establish the occurrence
of an injury when there are such inconsistencies in the evidence as to cast serious doubt upon the
validity of the claim.10 Such circumstances as late notification of injury, lack of confirmation of
injury, continuing to work without apparent difficulty following the alleged injury, and failure to
obtain medical treatment may, if otherwise unexplained, cast doubt on an employee’s statements
in determining whether a prima facie case has been established.11 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.12
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP denied appellant’s claim based on its finding that she had not established that the
April 19, 2016 employment incident occurred as alleged. Appellant claimed injury to her arm,
shoulder, wrist, and back when she lifted heavy garbage bags from a new hamper (a.k.a an
“Elephant”) at the North truck dock on April 19, 2016. She indicated that another employee
helped her lift the heavy garbage bag out of the hamper and that a supervisor had looked at the
garbage bags and saw how heavy they were. A coworker, E.A., indicated in his June 24, 2016
statement that on April 19, 2016 appellant injured her shoulder at the trash dump site while
attempting to lift a garbage bag out of the trash totes. He indicated that the bag was heavy and that
it took another coworker to help him lift it. E.A. also related that they (he and appellant) then went
to K.S., a supervisor, to explain how appellant was injured.
An OWCP hearing representative found that the factual portion of fact of injury had not
been established as the evidence of record was too contradictory to establish the occurrence of the
alleged employment incident. Specifically, she noted that, in her first statement, appellant reported
only lifting heavy bags, however, in her later statement, she indicated that the Elephant flipped up
while she was lifting bags and she was caught off guard and dropped the bag back down in the
hamper injuring her right wrist, arm, shoulder, and back. The hearing representative also noted
that there were inconsistencies in the history of injury provided to the medical providers. In the
first narrative report of record dated June 14, 2016, appellant had reported an April 2016 injury to
her left shoulder while lifting heavy bags. However, on June 15, 2016 she described the injury as
repeated pulling and twisting to lift a stuck garbage bag.
The Board finds that the evidence of record is sufficient to establish that on April 19, 2016
appellant lifted a heavy garbage bag out of a new hamper. Appellant provided a generally
consistent history of lifting a heavy garbage bag to the employing establishment and OWCP. An
9
See Joseph H. Surgener, 42 ECAB 541, 547 (1991); Gene A. McCracken, Docket No. 93-2227 (issued
March 9, 1995).
10

See K.B., Docket No. 15-1527 (issued March 15, 2016).

11

Linda S. Christian, 46 ECAB 598 (1995).

12

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

6

employee’s statement alleging that an injury occurred at a given time and in a given manner is of
great probative value and will stand unless refuted by strong and persuasive evidence.13 The
employing establishment does not dispute that appellant was lifting garbage bags while emptying
a hamper of trash/garbage on April 19, 2016. Furthermore, E.A related that he and another
coworker had helped lift the heavy garbage bag out of the hamper and that, subsequently, he and
appellant had reported the mechanism of injury to Supervisor K.S. on the date of the injury. Under
the circumstances of this case, the Board finds that her allegations have not been refuted by strong
or persuasive evidence and that there are no inconsistencies sufficient to cast serious doubt on her
version of the employment incident.14 The minor variances in appellant’s statements regarding
the mechanism of injury are not significant enough to deny her claim based on the factual portion
of fact of injury. Consequently, appellant has established the occurrence of the April 19, 2016
work incident involving lifting of heavy garbage bags.
As OWCP’s hearing representative found that appellant had not established that the
claimed incident occurred on April 19, 2016 as alleged, it did not consider the medical evidence.15
The case will be remanded to OWCP for evaluation of the medical evidence to determine whether
appellant sustained an injury or attendant disability due to the accepted April 19, 2016 work
incident. After such further development as it deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

13

See Allen C. Hundley, 53 ECAB 551 (2002).

14

See L.S., Docket No. 13-1742 (issued August 7, 2014); M.H., 59 ECAB 461 (2008).

15
While OWCP reviewed the medical evidence in terms of appellant’s reported history of injury, it did not evaluate
the evidence for its probative value in terms of causal relationship.

7

ORDER
IT IS HEREBY ORDERED THAT the April 28, 2017 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: September 19, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
East Austin, TX, Employer
__________________________________________

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

Docket No. 12-1150
Issued: February 1, 2013

Case Submitted on the Record

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

JURISDICTION
On May 2, 2012 appellant filed a timely appeal from a December 13, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) granting him a schedule award.
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 schedule award decision.
ISSUE
The issue is whether appellant has more than a 13 percent permanent impairment of the
left lower extremity.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated November 4, 1997,
the Board affirmed OWCP’s February 15, 1995 decision denying appellant’s request for
reconsideration of its termination of his compensation on the grounds that it was untimely filed
1

5 U.S.C. § 8101 et seq.

and did not establish clear evidence of error.2 In a decision dated August 1, 2007, the Board set
aside a January 25, 2007 decision granting him a schedule award for a three percent permanent
impairment of the left leg.3 The Board found that the opinion of the second opinion examiner
was insufficient to establish the extent of any permanent impairment and remanded the case for
OWCP to obtain an opinion resolving the issue. By decision dated July 18, 2011, the Board set
aside an April 19, 2010 decision finding that appellant had not established a permanent
impairment to a scheduled member or function.4 The Board noted that Dr. William W. Janes, a
Board-certified physiatrist and OWCP referral physician, found that appellant had a 10 percent
whole person impairment due to his hernia. Dr. Janes further found an impairment of the
ilioinguinal nerve but determined that this impairment was included in the hernia impairment
under Table 6-10 of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (6th ed. 2009). An OWCP medical adviser reviewed Dr. Janes’
report and determined that FECA did not provide an award for a hernia and that the A.M.A.,
Guides did not provide a lower extremity rating for an ilioinguinal nerve impairment. The
Board, however, concluded that it was unclear whether Dr. Janes found either a lower extremity
impairment or an impairment of the testicles due to the accepted work injury. The Board
remanded the case for OWCP to obtain an opinion resolving the issue of whether appellant had a
permanent impairment of the lower extremity or other scheduled member. The facts and
circumstances as set forth in the prior decisions are hereby incorporated by reference.
On October 21, 2011 OWCP referred appellant back to Dr. Janes for a second opinion
examination. It requested that the physician address whether he had an abdominal or lower
extremity impairment.
In a report dated November 7, 2011, Dr. Janes discussed appellant’s history of two hernia
surgeries. He noted that appellant “continues to have pain in the inguinal area that radiates into
the testicular area and significantly affects his activities of daily living.” Dr. Janes stated:
“On examination of his left inguinal area, [appellant] does have a scar that is well
healed. He does have decreased sensation to fine touch in the area of the scar into
the groin area and has tenderness in the left testicular area. Pain in his groin is
increased with certain movement. In his lower extremities, [appellant] has no
edema. He had normal motor strength. [Appellant] is able to ambulate without
difficulty.”

2

Docket No. 95-2200 (issued November 4, 1997). OWCP accepted that appellant, then a 34-year-old janitor,
sustained abdominal strain, an inguinal hernia, left ilioninguinal nerve entrapment and left scrotal varices due to an
October 21, 1985 work injury. By decision dated September 14, 1992, it terminated his compensation after finding
that he had no further disability causally related to his accepted work injury.
3

Docket No. 07-817 (issued August 1, 2007).

4

Docket No. 10-2168 (issued July 18, 2011).

2

Dr. Janes diagnosed an inguinal hernia and ilioinguinal nerve entrapment with chronic
neurogenic pain. Referencing the sixth edition of the A.M.A., Guides, he stated:
“Using Chapter 13 on page 344 an example patient is very similar to [appellant].
The example patient has undergone an inguinal hernia repair with severe burning
pain in the ilioinguinal nerve. It says to use Table 13-20 to rate this type of case.
Therefore, using Table 13-20, [appellant] is a Class 3 impairment which gives
him a [five percent] whole person impairment.”
On December 6, 2011 an OWCP medical adviser reviewed Dr. Janes’ report and
concurred with his finding that appellant had a Class 3, or five percent impairment of the
ilioinguinal nerve according to Table 13-20 on page 344 of the sixth edition of the A.M.A.,
Guides. He converted the 5 percent whole person impairment to a 13 percent impairment of the
left lower extremity using Table 16-10 on pages 530-31. The medical adviser found that the
prior award of 3 percent of the left lower extremity for pain was included in the 13 percent left
lower extremity impairment and thus determined that appellant was entitled to an additional
award for a 10 percent impairment of the left lower extremity.
By decision dated December 9, 2011, OWCP modified its April 19, 2010 decision and
found that appellant was entitled to an increased schedule award. In a decision dated
December 13, 2011, it granted him a schedule award for an additional 10 percent impairment of
the left lower extremity. The period of the award ran for 28.8 weeks from November 7, 2011 to
May 26, 2012.
On appeal, appellant contends that he is entitled to compensation for lost wages,
beginning September 20, 1992 and continuing to the present, and is also entitled to an additional
schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. 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.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.8

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

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

3

The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).9 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
ANALYSIS
OWCP accepted that appellant sustained abdominal strain, an inguinal hernia, left
ilioinguinal nerve entrapment and left scrotal varices due to an October 21, 1985 work injury. In
an April 19, 2010 decision, it denied his schedule award claim after finding that FECA did not
provide a schedule award for a hernia. On July 18, 2011 the Board set aside the April 19, 2010
decision. The Board noted that Dr. Janes determined that appellant had an impairment of the
ilioinguinal nerve and loss of sensation in the testicles in addition to finding an impairment due
to his hernia. The Board remanded the case for OWCP to obtain an opinion resolving the issue
of whether he had a lower extremity or testicular impairment due to the accepted work injury.
On remand, OWCP requested that Dr. Janes reevaluate appellant and provide an opinion
regarding whether he had an impairment of the lower extremity. On November 7, 2011
Dr. Janes discussed appellant’s current complaints of inguinal area pain radiating into the
testicles. On examination he found loss of sensation around the left inguinal area and tenderness
in the area of the left testicle. Dr. Janes further measured full motor strength of the lower
extremity with no edema or loss of movement. He applied Table 13-20 in Chapter 13 of the
A.M.A., Guides, relevant to determining impairments of the central and peripheral nervous
system and determined that appellant had a Class 3 impairment of the ilioinguinal nerve, which
yielded a five percent whole person impairment. An OWCP medical adviser reviewed Dr. Janes’
report and concurred with his finding of a five percent whole person impairment of the
ilioinguinal nerve. He used Table 16-10 to convert the 5 percent whole person impairment to a
13 percent impairment of the left lower extremity. The medical adviser found that the prior
award of 3 percent of the left lower extremity for pain was included in the 13 percent left lower
extremity impairment. He concluded that appellant had an additional 10 percent impairment of
the left lower extremity.
Neither Dr. Janes nor the medical adviser, however, explained how appellant’s
impairment of the ilioinguinal nerve affected his lower extremity. Figure 16-3 of the A.M.A.,
Guides provides the sensory nerves of the lower extremity.10 It does not indicate that the
ilioinguinal nerve extends into the lower extremity. Dr. Janes found normal clinical findings on
examination of the lower extremity with no loss of sensation. He determined, however, that
appellant had a loss of sensation in the testicular area.
In T.T., a claimant experienced right inguinal and scrotal pain following hernia repair.11
The Board noted that the claimant could receive an award for a testicular impairment and that
9

A.M.A., Guides 494-531.

10

Id. at 537.

11

T.T., Docket No. 10-1841 (issued April 19, 2011).

4

Chapter 7 of the sixth edition of the A.M.A., Guides contained provisions for rating an
impairment of the testicles.12 The Board further found that Chapter 3 provided a method for
rating pain-related impairments that could not be rated under the other chapters.13 As in T.T., the
current medical record is insufficient to establish whether appellant has a ratable impairment
under the sixth edition of the A.M.A., Guides. On remand, OWCP should obtain a medical
opinion regarding whether appellant has an impairment of the testicles or of the left lower
extremity under the sixth edition of the A.M.A., Guides. After such further development as
OWCP deems necessary, it shall issue an appropriate decision on appellant’s claim.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the December 13, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: February 1, 2013
Washington, DC

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

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

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

12

20 C.F.R. § 10.404; see e.g., A.M.A., Guides 146-49.

13

A.M.A., Guides 39.

5


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

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

Docket No. 11-71
Issued: July 20, 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 October 12, 2010 appellant, through his representative, filed a timely appeal from an
Office of Workers’ Compensation Programs’ (OWCP) schedule award decision dated
June 15, 2010. 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 more than a 12 percent binaural hearing loss, for
which he received a schedule award.
FACTUAL HISTORY
Appellant, then a 61-year-old postal transportation supervisor, filed an occupational
disease claim (Form CA-2) on March 19, 2008, alleging that he sustained a hearing loss caused
by factors of his federal employment. He was exposed to loud noise caused by heavy machinery
1

5 U.S.C. § 8101 et seq.

and trucks while working as a mail carrier, distribution clerk and transportation supervisor
beginning 1966 to the present time. Appellant submitted a September 26, 2007 report from
Dr. Lawrence V. Cramer, an osteopathic otolaryngologist, who found that appellant had
sustained a severe bilateral sensorineural hearing loss. An audiogram which accompanied the
report purportedly indicated that appellant had sustained a 17 percent bilateral hearing loss.
OWCP referred appellant to Dr. Emil Liebman, a Board-certified otolaryngologist, for a
second opinion evaluation. In a November 21, 2008 report, Dr. Liebman discussed the results of
a September 26, 2008 audiogram, which revealed sensorineural hearing loss. An audiogram
dated September 26, 2008, with an attached calibration certificate, showed hearing levels of 20,
20, 30 and 65 decibels on the right and 20, 20, 30 and 65 decibels on the left at 500, 1000, 2000
and 3000 hertz, respectively. Dr. Liebman opined that the results of the audiogram suggested a
noise-induced hearing loss.
In a November 28, 2008 report, OWCP’s medical adviser reviewed the results of the
September 26, 2008 audiogram. He determined that appellant had a 12 percent bilateral hearing
loss pursuant to the American Medical Association, Guides to the Evaluation of Permanent
Impairment (fifth edition) (A.M.A., Guides).
By decision dated December 8, 2008, OWCP accepted appellant’s claim for bilateral
sensorineural hearing loss.
On July 15, 2009 OWCP’s medical adviser stated that appellant’s hearing loss needed to
be recalculated under the sixth edition of the A.M.A., Guides.
In a September 25, 2009 report, OWCP’s medical adviser, again reviewed the
September 26, 2008 audiogram, to rate a 12 percent bilateral hearing loss pursuant to the sixth
edition of the A.M.A., Guides.
By decision dated December 17, 2009, OWCP granted appellant a schedule award for a
12 percent bilateral hearing loss. The period of the award ran from September 26, 2008 to
March 12, 2009, for a total of 24 weeks of compensation.
By letter dated March 30, 2010, appellant’s attorney requested a review of the written
record. He contended that there was a conflict in the medical evidence between Drs. Liebman
and Cramer regarding the extent of appellant’s work-related hearing loss.
By decision dated June 15, 2010, OWCP’s hearing representative affirmed the
December 17, 2009 decision.
LEGAL PRECEDENT
The schedule award provision of the Act2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404. Effective May 1, 2009, OWCP began using the A.M.A., Guides (6th ed. 2009).

2

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
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.4
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.5 Using the frequencies of 500, 1,000, 2,000 and 3,000 hertz, the losses at each
frequency are added up and averaged.6 Then, the fence of 25 decibels is deducted. The
remaining amount is multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing
loss.7 The binaural loss is determined by calculating the loss in each ear using the formula for
monaural loss; the lesser loss is multiplied by five, then added to the greater loss, and the total is
divided by six to arrive at the amount of the binaural hearing loss.8 The Board has concurred in
OWCP’s adoption of this standard for evaluating hearing loss.9
Office procedures require that all audiological equipment authorized for testing meet the
calibration protocol contained in the accreditation manual of the American Speech and Hearing
Association and that audiometric test results include both bone conduction and pure tone air
conduction thresholds, speech reception thresholds and monaural discrimination scores.10
ANALYSIS
The Board finds that appellant has no more than a 12 percent bilateral hearing loss, for
which he received a schedule award. Dr. Liebman’s September 26, 2008 audiogram indicated
that, at the frequencies of 500, 1,000, 2,000 and 3,000 hertz, the following thresholds were
reported for the right ear 20, 20, 30 and 65 decibels. These decibels, totaled to 135 and divided
by 4, obtained an average hearing loss at those cycles of 33.75 decibels. The average of 33.75
decibels, when reduced by 25 decibels (the first 25 decibels were discounted as discussed above),
equals 8.75, which when multiplied by the established factor of 1.5 amounts to a 13.3 percent
loss in the right ear.

4

Id.

5

Federal (FECA) Procedure Manual, Part 3 – Medical, Schedule Awards, Chapter 2.700.4.b (January 2010).

6

Id.

7

Id.

8

Id.

9

See Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying prior decision), Docket No.
01-1570 (issued August 13, 2002).
10

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter
3.600.8(a) (4) (March 2010); see also J.H., 59 ECAB 377 (2008).

3

Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 hertz
revealed decibel losses of 20, 20, 30 and 60 respectively. These decibels amounted to 130,
which when divided by 4, obtained an average hearing loss at those cycles of 32.50 decibels.
The average of 32.50 decibels, reduced by 25 decibels (the first 25 decibels were discounted as
discussed above), equals 7.50 decibels, which when multiplied by the established factor of 1.5
computes a 11.56 percent hearing loss in the left ear. To calculate the binaural loss, the lesser
loss of 11.56 is multiplied by 5 to equal 57.80 decibels and is then added to the greater loss of
13.3 decibels to equal 71.10 decibels. This sum is then divided by 6 to obtain the binaural
hearing loss of 12 percent. The Board also notes that 12 percent of the maximum allowable
weeks of compensation for binaural loss, 200, results in 24 weeks of compensation. The binaural
award yields greater compensation as the maximum monaural loss is 52 weeks of compensation,
which when multiplied by the monaural loss values only equals 13 weeks of compensation.
OWCP’s medical adviser correctly determined that appellant had a 12 percent bilateral hearing
loss, for which OWCP awarded him a schedule award on December 17, 2009.
Following the December 17, 2009 decision appellant requested a review of the written
record. While appellant’s attorney contends that Dr. Cramer’s September 26, 2007 report and
audiogram created a conflict in the medical evidence, this audiogram did not contain the
information necessary to establish that it met the calibration protocol contained in the
accreditation manual of the American Speech and Hearing Association.11 The Board therefore
affirms the June 15, 2010 decision, as there was no other probative evidence in the record
establishing that appellant sustained any greater impairment.12
CONCLUSION
The Board finds that OWCP properly applied the applicable standards of the A.M.A.,
Guides to determine that appellant was entitled to a 12 percent bilateral award for his workrelated hearing loss.

11

See supra note 10.

12

Joshua A. Holmes, 42 ECAB 231, 236 (1990).

4

ORDER
IT IS HEREBY ORDERED THAT the June 15, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 20, 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
__________________________________________
R.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Alliance, OH, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 10-1622
Issued: April 8, 2011

Case Submitted on the Record

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

On June 3, 2010 appellant, through his attorney, filed a timely appeal of a May 13, 2010
Office of Workers’ Compensation Programs’ schedule award decision. The Board docketed the
appeal as No.10-1622. By its May 13, 2010 decision, the Office hearing representative affirmed
the Office’s October 15, 2009 decision, finding that appellant had no more than one percent
impairment of his left lower extremity for which he received a schedule award. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to consider the merits of the case.
The Board has duly considered the matter and notes that in the case of William A. Couch,1
the Board held that, when adjudicating a claim, the Office is obligated to consider all evidence
properly submitted by a claimant and received by the Office before the final decision is issued. In
the present case, the Office hearing representative, during the February 19, 2010 telephonic
hearing, agreed to leave the record open for an unspecified time to allow appellant to submit
additional medical evidence. The Office received the additional medical evidence on
May 11, 2010. By decision dated May 13, 2010, the hearing representative affirmed the Office’s
October 15, 2009 decision, finding that appellant had no more than one percent impairment of his
left lower extremity. He noted that appellant’s attorney indicated at the telephonic hearing that
he was attempting to obtain a new impairment rating from a physician and that the case record
was held open for an additional period following the hearing to allow appellant to submit
1

41 ECAB 548 (1990).

medical evidence in support of his claim. The hearing representative specifically stated, “To
date no additional medical evidence or impairment rating has been received.”
It appears that the hearing representative in his May 13, 2010 decision did not review the
additional evidence properly submitted by appellant and received by the Office on May 11, 2010,
as no reference is made to the evidence in the decision. For this reason, the case will be remanded
to the Branch of Hearings and Review to enable the Office to properly consider all the evidence
submitted prior to the issuance of its May 13, 2010 decision. Following such further development
as the Office deems necessary, it shall issue an appropriate decision on the merits.
IT IS HEREBY ORDERED THAT the May 13, 2010 decision of the Office of
Workers’ Compensation Programs is set aside; the case record is remanded to the Office for
further proceedings consistent with this order of the Board.
Issued: April 8, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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