United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, Laredo, TX, Employer
__________________________________________

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

Docket No. 21-1110
Issued: March 3, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 8, 2021 appellant filed a timely appeal from a June 30, 2021 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 met his burden of proof to establish permanent impairment
of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On February 25, 2020 appellant, then a 40-year-old criminal investigator, filed a traumatic
injury claim (Form CA-1) alleging that on January 29, 2020, he injured his right wrist when
1

5 U.S.C. § 8101 et seq.

attempting to perform a bridge maneuver during survival training while in the performance of duty.
He asserted that he heard and felt something “pop” in his right wrist.
On May 14, 2020 OWCP accepted the claim for sprain of unspecified part of right wrist
and hand, and other instability of the right wrist.
In a May 21, 2020 report, Dr. Michael Jones, a Board-certified orthopedic surgeon
specializing in surgery of the hand, provided a history of injury and treatment. On examination of
the right upper extremity, he noted mild subluxation of the ulna with manipulation with the forearm
in full supination. Dr. Jones diagnosed a right wrist sprain. He recommended an MRI scan of the
right wrist to assess whether the TFCC remained detached at the insertion of the ulnar fovea.
A June 3, 2020 MRI scan of the right wrist demonstrated a TFCC tear at its ulnar
attachment with a small bony flake and fluid around the ulnar styloid, small central perforation of
the TFCC with fluid in the distal radioulnar joint, tears of the ulnar collateral and radial collateral
ligaments, thickening and mild intrasubstance increased thickening and mild intrasu bstance
increased signal in the extensor carpi ulnaris tendon compatible with tendinosis, and a small
amount of fluid in the carpometacarpal joint of the right thumb.
In a June 17, 2020 report, Dr. Jones noted that appellant experienced intermittent slight
soreness on the ulnar side of the right wrist, which appellant attributed to his return to full duty.
On examination, he found no abnormalities of the right wrist. Dr. Jones returned appellant to fullduty work with no restrictions.
In a June 17, 2020 Form OWCP-5c, Dr. Jones diagnosed a right wrist sprain with
instability. He returned appellant to full-duty work with no restrictions.
On June 17, 2020 Dr. Jones referred appellant for an impairment rating. On June 26, 2020
his office requested OWCP authorization for an impairment rating to be performed by Snowden
Orthopedic and Occupational Rehabilitation.
In a July 21, 2020 impairment rating, Thomas I. Washington, a physical therapist with
Snowden Orthopedic and Occupational Rehabilitation, reviewed a history of injury and treatment.
On examination of the right upper extremity, he observed right wrist flexion at 50 degrees, right
wrist extension at 40 degrees, radial deviation at 15 degrees, ulnar deviation at 25 degrees, forearm
supination at 75 degrees, and forearm pronation at 70 degrees. Appellant completed a QuickDASH
questionnaire, scored at 18. Mr. Washington provided an impairment rating referring to the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides),2 utilizing the diagnosis-based impairment (DBI) method, to find that, under
Table 15-3, page 396, the class of diagnosis (CDX) for TFCC injury with residual findings,
resulted in a class 1 impairment with a default value of eight. He assigned a grade modifier for
functional history (GMFH) of 1 according to Section 15.3a, page 406 of the A.M.A., Guides, based
on his clinical observations and functional history, a grade modifier for physical examination
(GMPE) of 1 according to Table 15-8, page 408, for minimal palpatory findings consistently
documents, and a grade modifier for clinical studies of (GMCS) of 1 for June 3, 2020 MRI findings
2

A.M.A., Guides (6 th ed. 2009). Table 15-3 is entitled “Wrist Regional Grid: Upper Extremity Impairments.”

2

according to Table 15-9, page 410. Applying the net adjustment formula, (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX), or (1-1) + (1-1) + (1-1) = 0, Mr. Washington calculated a net
adjustment of zero. He therefore found an eight percent permanent impairment of the right upper
extremity.
On September 9, 2020 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In a development letter dated September 16, 2020, OWCP advised appellant of the
additional evidence needed to establish his schedule award claim. It noted that the impairment
rating received was insufficient to support his claim as it had not been countersigned by a qualified
physician. OWCP requested that appellant submit his physician’s opinion as to whether appellant
had attained maximum medical improvement (MMI), the date MMI had been reached, the clinical
findings indicating that the employment condition had reached a fixed and stable state, a detailed
description of all pertinent findings, and a final rating of permanent impairment according to the
applicable criteria of the A.M.A., Guides. It afforded him 30 days to respond.
On October 14, 2020 Dr. Jones examined appellant, noted findings, and provided ROM
measurements of the hand and wrist. He opined that appellant had attained MMI. Dr. Jones
reviewed the impairment rating performed by Mr. Washington and concurred with the rating. He
maintained appellant on full duty with no physical restrictions.
On November 10, 2020 OWCP referred the case record, along with a statement of accepted
facts (SOAF) noting Mr. Washington’s July 21, 2020 impairment rating, to Dr. Arthur S. Harris,
a Board-certified orthopedic surgeon serving as a District Medical Adviser (DMA), for a
permanent impairment rating of the right upper extremity.
Dr. Harris submitted a May 11, 2021 report in which he found that appellant had attained
MMI as of the July 21, 2020 impairment evaluation. He reviewed Mr. Washington’s calculations
and references to the A.M.A., Guides, and concurred with the methodology and calculations as
presented. Dr. Harris found that appellant had eight percent permanent impairment of the right
upper extremity utilizing the DBI method, based on the diagnosed right wrist TFCC tear. He
commented that the range of motion (ROM) rating method would have also resulted in an eight
percent permanent impairment of the right upper extremity.
By decision dated June 30, 2021, OWCP denied appellant’s schedule award claim, finding
that the medical evidence of record did not support permanent impairment of a scheduled member
or function of the body.
LEGAL PRECEDENT
The schedule award provisions of FECA 3 and its implementing federal regulations, 4 set
forth the number of weeks of compensation payable to employees sustaining permanent
3

Supra note 1.

4

20 C.F.R. § 10.404.

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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 loss of a member shall be determined.
The method used in making such a determination is a matter which rests in the discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. OWCP
evaluates the degree of permanent impairment according to the standards set forth in the specified
edition of the A.M.A., Guides, published in 2009. 5 The Board has approved the use by OWCP of
the A.M.A., Guides for the purpose of determining the percentage loss of use of a member of the
body for schedule award purposes. 6
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury. 7 OWCP’s procedures provide
that, to support a schedule award, the file must contain competent medical evidence which shows
that the impairment has reached a permanent and fixed state and indicates the da te on which this
occurred, describes the impairment in sufficient detail so that it can be visualized on review, and
computes the percentage of impairment in accordance with the A.M.A., Guides.8
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment CDX, which is then adjusted by GMFH, GMPE, and GMCS. 9 The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10
The A.M.A., Guides also provide that ROM impairment methodology is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
DBI sections are applicable. 11 If ROM is used as a stand-alone approach, the total of motion
impairment for all units of function must be calculated. All values for the joint are measured and
added.12 Adjustments for functional history may be made if the evaluator determines that the

5

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides (6 th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (March 2017); see also id. at Chapter 3.700, Exhibit 1 (January 2010).
6

See K.J., Docket No. 19-1492 (issued February 26, 2020); P.R., Docket No. 19-0022 (issued April 9, 2018);
Isidoro Rivera, 12 ECAB 348 (1961).
7

See T.H., Docket No. 19-1066 (issued January 29, 2020); D.F., Docket No. 18-1337 (issued February 11, 2019);
Tammy L. Meehan, 53 ECAB 229 (2001).
8

See 5 U.S.C. § 8101(19); J.K., Docket Nos. 19-1420 and 19-1422 (issued August 12, 2020); Francesco C.
Veneziani, 48 ECAB 572 (1997).
9

Supra note 2 at 383-492.

10

Id. at 411.

11

Id. at 461.

12

Id. at 473.

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resulting impairment does not adequately reflect functional loss and functional reports are
determined to be reliable.13
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments. 14 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“Upon initial review of a referral for upper extremity impairment evaluatio n, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM); and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)15
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”16
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of impairment in
accordance with the A.M.A., Guides, with the DMA providing rationale for the percentage of
impairment specified. 17
ANALYSIS
The Board finds that appellant has established that he sustained eight percent permanent
impairment of the right upper extremity, warranting a schedule award.
The record establishes that on June 26, 2020, Dr. Jones, a Board-certified orthopedic
surgeon specializing in surgery of the hand, referred appellant for an impairment rating by
Snowden Orthopedic and Occupational Rehabilitation which was performed by Mr. Washington,
a physical therapist, on July 21, 2020. On October 14, 2020 Dr. Jones examined appellant, noted
13

Id. at 474.

14

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

15

Id.

16

Id.; see also H.H., Docket No. 19-1530 (issued June 26, 2020); A.G., Docket No. 18-0329 (issued July 26, 2018).

17

Supra note 5 at Chapter 2.808.6(f); J.M., Docket No. 20-0602 (issued October 8, 2021); P.W., Docket No.
19-1493 (issued August 12, 2020).

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findings, and provided ROM measurements of the hand and wrist. He opined that appellant had
attained MMI. Dr. Jones reviewed the impairment rating performed by Mr. Washington and
concurred with the rating.18
Consistent with its procedures, OWCP properly referred the case record to Dr. Harris,
serving as DMA, for an opinion regarding appellant’s permanent impairment in accordance with
the sixth edition of the A.M.A., Guides.19 In his May 11, 2021 report, Dr. Harris agreed that
appellant had sustained an eight percent permanent impairment of the right upper extremity based
on the diagnosed TFCC tear.
The Board finds that the DMA, Dr. Harris, properly considered the findings contained in
the July 21, 2020 impairment evaluation, as reviewed and approved by Dr. Jones, and explained
that appellant’s current impairment was eight percent total permanent impairment of the right
upper extremity based on the diagnosed right wrist TFCC tear. In addition, the DMA properly
utilized the DBI method and considered the ROM method to rate appellant’s accepted upper
extremity condition pursuant to FECA Bulletin No. 17-06.
Therefore, the Board finds that appellant has established eight percent permanent
impairment of the right upper extremity, based upon the reports of Dr. Jones and DMA Dr. Harris.
Consequently, OWCP’s June 30, 2021 decision must be reversed, and the case returned to OWCP
for payment of the schedule award for an eight percent permanent impairment of the right upper
extremity.
CONCLUSION
The Board finds that appellant has established that he sustained eight percent permanent
impairment of the right upper extremity, warranting a schedule award.

18

The Board has held that a report may be considered as probative medical evidence when either signed or reviewed
by a qualified physician. Merton J. Sills, 39 ECAB 572, 575 (1988); see also D.J., Docket No. 21-0414 (issued
October 14, 2021); R.H., Docket No. 20-1684 (issued August 27, 2021); M.W., Docket No. 19-1667 (issued
June 29, 2020).
19

P.T., Docket No. 21-0138 (issued June 14, 2021); see S.C., Docket No. 20-0769 (issued January 12, 2021).

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ORDER
IT IS HEREBY ORDERED THAT the June 30, 2021 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: March 3, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


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

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

Docket No. 13-582
Issued: August 22, 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 January 16, 2013 appellant filed a timely appeal from the October 31, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied 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 merits of the case.
ISSUE
The issue is whether appellant has a ratable hearing loss warranting a schedule award.
FACTUAL HISTORY
On May 30, 2012 appellant, then a 52-year-old supervisory police officer, filed a claim
alleging permanent hearing loss at work. He became aware of his hearing loss on March 19,

1

5 U.S.C. § 8101 et seq.

2008 and realized that it was causally related to his employment on May 20, 2012. Appellant
resigned on June 16, 2012.
In a May 23, 2012 statement, appellant noted that he started work in 2003 and had normal
baseline hearing. He was assigned to patrol and work in the flight line area from two to four
hours a day for several years with training planes flying over the gate exposing him to hazardous
noise. Appellant worked at three different air shows in his nine years at the base and the only
hearing protection provided were “softies.” He was rarely offered ear protection and never
demonstrated how to wear earplugs until an examination in 2012. Appellant stated that twice a
year he was a member of the naval security forces that practiced shooting using a nine millimeter
Beretta, 12-gauge shotgun and an M-16 rifle. He experienced pain in his right ear and had to
adjust the volume to listen to the radio, television and normal conversations.
The employing establishment submitted audiograms from hearing tests dated May 18,
2004 to May 10, 2012, which found progressive hearing loss in both ears. In a May 10, 2012
audiogram, the audiologist noted that appellant was not enrolled in a hearing conservation
program but was required to receive an annual hearing test. It was noted that screening
tympanometry was within normal limits in both ears, appellant reported occasional difficulty
hearing in noisy situation but had no tinnitus, dizziness or facial numbness. The audiologist
noted that the audiogram results were consistent with mild high frequency sensorineural hearing
loss in the right hear and moderate high frequency sensorineural hearing loss in the left ear. An
initial hearing examination of May 5, 2003 showed normal thresholds in both ears. The
audiologist noted appellant’s hearing loss was consistent with a history of firearms use.
By letter dated June 1, 2012, OWCP advised appellant of the evidence needed to
establish his claim. In a letter of the same date, it requested that the employing establishment
address the sources of appellant’s noise exposure, decibel and frequency level, periods of
exposure and the hearing protection provided.
Appellant submitted a resume and several statements dated January 6 to June 7, 2012
addressing his noise exposure. He submitted was an audiogram dated May 5, 2003, which was
not interpreted and the March 1, 2011 audiogram previously of record.
In a September 7, 2012 statement of accepted facts, OWCP noted that appellant was
employed from June 2003 to June 2012 as a gate security guard and patrol officer at the air
station, which was used primarily for pilot training and he was exposed to aircraft noise.
Appellant was also exposed to handgun, rifle and shotgun noise during semi-annual firearm
training at the weapons range. He reported occasionally wearing hearing protection. From
September 1981 to April 2003, appellant was a police officer in nonfederal employment and was
exposed to noise during firearm training. He also previously served in the military. Appellant
reported having no noise exposure due to hobbies.
On September 12, 2012 OWCP referred appellant to Dr. Kimberly A. Donnellan, a
Board-certified otolaryngologist, for an otologic examination and an audiological evaluation. In
an October 2, 2012 report, Dr. Donnellan examined him and noted his history of exposure to
workplace noise. She diagnosed mild high frequency sensorineural hearing loss in the right ear
and moderate-to-severe mixed hearing loss in the left ear, which was due to the noise exposure

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encountered in appellant’s job. In 2004, appellant had a mild high frequency hearing loss in the
left ear greater than the right ear. In 2012, his hearing worsened in both ears with probable mild
noise-induced hearing loss in the right ear and mixed hearing loss in the left ear with possible
ossicular chain dysfunction. Dr. Donnellan opined that ossicular chain dysfunction could be
noise induced and related to a specific noise event. She performed an otologic evaluation of
appellant on February 27, 2012 and audiometric testing was conducted the same date. Testing at
the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second revealed the following:
right ear 10, 15, 20 and 30 decibels; left ear 10, 10, 30 and 50 decibels. Dr. Donnellan opined
that appellant had zero percent monaural hearing loss and zero percent binaural hearing loss.
On October 16, 2012 an OWCP medical adviser reviewed Dr. Donnellan’s report and the
audiometric test of October 2, 2012. The medical adviser determined that appellant’s hearing
loss was not severe enough to be ratable for a schedule award after applying OWCP’s current
standards for evaluating hearing loss to the results of the October 2, 2012 audiogram.
On October 17, 2012 OWCP accepted appellant’s claim for bilateral hearing loss due to
noise exposure. On October 22, 2012 appellant filed a claim for a schedule award.
In a decision dated October 31, 2012, OWCP denied appellant’s schedule award claim as
his hearing loss was employment related, it was not severe enough to be considered ratable.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, it 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 American Medical Association, Guides to the Evaluation of Permanent Impairment,4
(A.M.A., Guides), has been adopted by the implementing regulations as the appropriate standard
for evaluating schedule losses.5
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides.6 Using the frequencies of 500, 1,000, 2,000 and 3,000 cycles per second, the
losses at each frequency are added up and averaged.7 Then, a “fence” of 25 decibels is deducted
because, as the A.M.A., Guides points out, losses below 25 decibels result in no impairment in
2

Id. at § 8107.

3

20 C.F.R. § 10.404 (1999).

4

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

5

Id. See also Jacqueline S. Harris, 54 ECAB 139 (2002).

6

A.M.A., Guides at 250 (6th ed. 2008).

7

Id.

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the ability to hear everyday speech under everyday conditions.8 The remaining amount is
multiplied by a factor of 1.5 to arrive at the percentage of monaural hearing loss.9 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.10 The Board has concurred in OWCP’s
adoption of this standard for evaluating hearing loss.11
ANALYSIS
OWCP accepted that appellant sustained bilateral hearing loss due to noise exposure from
his federal employment. The issue is whether he sustained a ratable impairment in accordance
with the A.M.A., Guides, warranting a schedule award.
OWCP properly referred appellant to Dr. Donnellan to assess his hearing loss and any
permanent impairment. In an October 2, 2012 report, Dr. Donnellan report found that his mild
high frequency sensorineural hearing loss was due in part to his workplace noise exposure. She
provided findings from audiometric testing that was performed. In an October 16, 2012 report,
an OWCP medical adviser reviewed Dr. Donnellan’s findings and concurred that appellant’s
hearing loss was caused by his federal employment. The medical adviser applied OWCP’s
standardized procedures to the October 2, 2012 audiogram to determine if his hearing loss was
ratable for schedule award purposes. Testing for the right ear at the frequency levels of 500,
1,000, 2,000 and 3,000 cycles per second revealed decibels losses of 10, 15, 20 and 30. The
decibels were totaled at 75 and divided by 4 to obtain an average hearing loss at those cycles of
18.75 decibels. The average of 18.75 decibels was then reduced by 25 decibels (the first 25
decibels were discounted as discussed above) to equal zero percent hearing loss for the right ear.
Testing for the left ear at the frequency levels of 500, 1,000, 2,000 and 3,000 cycles per second
revealed decibels losses of 10, 10, 30 and 50. The decibels were totaled at 100 and divided by 4
to obtain the average hearing loss at those cycles of 25 decibels. The average of 25 decibels was
then reduced by 25 decibels (the first 25 decibels were discounted as discussed above) to zero
which was multiplied by the established factor of 1.5 to compute a zero percent hearing loss for
the left ear. The medical adviser noted that appellant did not have any ratable binaural hearing
impairment under the A.M.A., Guides that warranted a schedule award.
The Board finds that the medical adviser applied the proper standards to Dr. Donnellan’s
report and the October 2, 2012 audiogram. The result is a zero percent monaural hearing loss
and a zero percent binaural hearing loss. There is no medical evidence of record that supports a
ratable hearing loss.

8

Id.

9

Id.

10

Id.

11

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

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On appeal, appellant asserts that he should have been granted a schedule award since his
hearing loss was accepted as work related and due to constant frequency-type noise in his ears.
The Board notes that Dr. Donnellan did not find evidence of tinnitus or address its impact on his
ability to perform activities of daily living.12
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that OWCP properly denied appellant’s claim for a schedule award for
hearing loss.
ORDER
IT IS HEREBY ORDERED THAT the October 31, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 22, 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

See David W. Ferrall, 56 ECAB 362 (2005).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 11-1583
Issued: April 12, 2012

Case Submitted on the Record

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

On June 22, 2011 appellant, through her attorney, sought appeal from a February 28,
2011 decision of the Office of Workers’ Compensation Programs (OWCP). The Board assigned
docketed No. 11-1583.
On May 25, 2010 appellant, through her attorney, filed a claim for a schedule award.1 In
a January 21, 2010 report, Dr. Nicholas Diamond, an osteopath specializing in pain and
neuromusculoskeletal medicine, noted appellant’s history of injury and treatment under the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment2 and determined that she had 10 percent right upper extremity impairment, 10
percent left upper extremity impairment and 14 percent left lower extremity impairment. He
opined that appellant reached maximum medical improvement on January 21, 2010.
By letter dated July 6, 2010, OWCP referred appellant, together with the medical record
and a statement of accepted facts, to Dr. Robert Franklin Draper, a Board-certified orthopedic
surgeon, for a second opinion. In a July 26, 2010 report, Dr. Draper reviewed a history of the
1

OWCP accepted that on January 7, 2009 appellant, then a 50-year-old distribution and window clerk, sustained
a lumbar strain/sprain and temporary aggravation of bilateral carpometacarpal (CMC) joint (thumbs).
2

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

employment injury and appellant’s medical treatment and found no permanent impairment of the
right and left upper extremities and left lower extremity based on the sixth edition of the A.M.A.,
Guides. On August 8, 2010 Dr. Arnold T. Berman, OWCP’s medical adviser, reviewed
Dr. Draper’s July 26, 2010 report and concurred with his findings.
In a February 28, 2011 decision, an OWCP hearing representative denied appellant’s
claim for a schedule award. The hearing representative based the decision on an April 8, 2008
attending physician report by Dr. Joshua M. Ammerman, a Board-certified neurosurgeon, a
March 18, 2010 second opinion report by Dr. Stuart J. Gordon, a Board-certified orthopedic
surgeon, and a July 29, 2010 report by an OWCP medical adviser.
The Board has duly considered the matter and finds that the case is not in posture for a
decision and must be remanded to OWCP. Section 10.126 of OWCP’s regulations requires
OWCP to issue a decision containing findings of fact and a statement of reasons.3 The Board
finds that OWCP erred in its February 28, 2011 decision by failing to discuss or analyze the
reports from Drs. Diamond, Draper and Berman. OWCP denied appellant’s schedule award
claim based on reports prepared by Drs. Ammerman and Gordon. However, the Board notes that
these reports are not in the case record and there is no evidence of record that appellant was
treated by either of these physicians or that these physicians were somehow involved in the
development of appellant’s claim. Thus, the Board concludes that the February 28, 2011 OWCP
decision was defective in nature. For this reason, the case will be remanded to OWCP for
reconstruction and proper assemblage of the record. Following this and any necessary further
development, OWCP shall issue a de novo decision on the merits of the claim to preserve
appellant’s appeal rights.

3

20 C.F.R. § 10.126.

2

IT IS HEREBY ORDERED THAT the February 28, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for further
action consistent with this order of the Board.
Issued: April 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF VETERAN AFFAIRS,
CENTRAL TEXAS HEALTH CARE SYSTEM,
Waco, TX, Employer
__________________________________________

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

Docket No. 16-0801
Issued: November 15, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 10, 2016 appellant filed a timely appeal of a January 27, 2016 merit decision
of Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of the case.
ISSUE
The issue is whether OWCP properly denied wage-loss compensation on March 2, 9, 16,
19, 23, 26 and 30, 2015 which appellant claimed as incidental to procuring authorized medical
services.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 19, 2014 appellant, then a 55-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging on that date she was hit in the back of her thighs with a stretcher while
attempting to lift a patient from the ground. She tilted backward and strained her low back.
Appellant experienced lower back pain radiating to both legs. OWCP accepted appellant’s claim
for lumbar intervertebral disc disease and radiculopathy on October 28, 2014.
Appellant filed claims for compensation (Form CA-7) on November 19, 2014 requesting
compensation for leave without pay (LWOP) intermittently for the period November 3 through
14, 2014 for 9.5 hours. She submitted a second Form CA-7 on December 4, 2014 for the period
November 16 through 29, 2014 for 14 hours of LWOP compensation. Appellant submitted a
third Form CA-7 on February 9, 2015 for the period December 8, 2014 through February 6, 2015
and 16.5 hours of LWOP compensation. OWCP authorized compensation benefits on March 12,
2015 for the period November 3 through 29, 2014 for a total of 21.5 hours. On April 23, 2015
OWCP authorized 16.5 hours of compensation for the period December 8, 2014 through
February 6, 2015.
Dr. Les Benson, appellant’s attending physician and a Board-certified neurologist,
requested physical therapy three times a week for four weeks for appellant on February 9
and 12, 2015. He requested authorization for physical and occupational therapy for the period
from February 23 through March 20, 2015. OWCP authorized therapeutic exercises 60 units,
therapeutic activities 60 units, and manual therapy 48 units on February 23, 2015.
Appellant filed a Form CA-7 on May 6, 2015 and requested compensation for LWOP
intermittently from March 2 through April 3, 2015 for a total of 15 hours. She used 2.5 hours of
LWOP on March 2, 9, 16, 19, 23, 26 and 30, 2015 according to the employing establishment
accounting for 15 hours total. In support of this claim, appellant submitted physical therapy
notes dated March 2, 9, and 12, 2015 signed by a physical therapist, Melissa L. Ross.
In a letter dated May 19, 2015, OWCP requested that appellant provide medical
documentation supporting her medical appointment or therapy session on the dates claimed on
her Form CA-7. It allowed 30 days for a response.
By decision dated July 22, 2015, OWCP denied appellant’s claim for compensation for
the period March 2 through April 3, 2015. It reported receiving no evidence in support of
appellant’s claimed intermittent period of disability.
Appellant requested reconsideration on September 3, 2015. She submitted a note dated
June 1, 2015 signed by Melissa D. Petitt, a member of staff of her attending physician,
Dr. Benson. Ms. Petitt indicated that appellant attended physical therapy two days a week for six
weeks during the period February 23 through March 31, 2015. Appellant also submitted a
billing record indicating that she underwent 13 hours of physical therapy from February 23
through March 31, 2015 and 13 hours of separately coded physical therapy from February 25
through March 31, 2015. She submitted physical therapy notes dated March 2, 9, 12, 16, 19, 23,
26, and 30, 2015 from Ms. Ross.

2

Appellant returned to limited-duty work on August 25, 2014. On November 19, 2015 the
employing establishment provided her with a limited-duty assignment working eight hours a day
with restrictions.
By decision dated January 27, 2016, OWCP denied modification of the July 22, 2015
decision denying appellant’s claim for compensation. It found that appellant had not submitted
the necessary medical opinion evidence to establish her claimed period of disability.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.3 The term
disability is defined as the incapacity because of an employment injury to earn the wages the
employee was receiving at the time of the injury, i.e., a physical impairment resulting in loss of
wage-earning capacity.4
The Board will not require OWCP to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.5
An injured employee may be entitled to compensation for lost wages incurred while
obtaining authorized medical services.6 This includes the actual time spent obtaining the medical
services and a reasonable time spent traveling to and from the medical provider’s location.7 As a
matter of practice, OWCP generally limits the amount of compensation to four hours with
respect to routine medical appointments. However, longer periods of time may be allowed when
required by the nature of the medical procedure and/or the need to travel a substantial distance to
obtain the medical care.8

2

5 U.S.C. §§ 8101-8193.

3

G.T., 59 ECAB 447 (2008); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

4

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
5

Id.

6

See 5 U.S.C. § 8103(a); Gayle L. Jackson, 57 ECAB 546 (2006).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Compensation Claims, Chapter 2.901.19(a)(1); Chapter
2.901.19a(3)(c) (February 2013).
8

Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8
(November 1998).

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ANALYSIS
The Board finds that OWCP improperly denied appellant’s claim for compensation for
March 2, 9, 16, 19, 23, and 30, 2015 as the evidence supports that she was procuring authorized
medical services on those dates.
The record establishes that appellant returned to a limited-duty position on August 25,
2015 following her August 19, 2014 employment injury which had been accepted for lumbar
intervertebral disc disease and radiculopathy. Appellant continued to work in limited-duty
positions. She filed Form CA-7s for periods of intermittent disability beginning on November 3,
2014 for medical appointments and physical therapy visits. OWCP authorized compensation
benefits for these intermittent periods of disability through February 6, 2015.
On May 6, 2015 appellant filed a Form CA-7 and requested compensation for LWOP
intermittently from March 2 through April 3, 2015 for a total of 15 hours. She alleged that she
used 2.5 hours of LWOP on March 2, 9, 16, 19, 23, 26 and 30, 2015 for physical therapy. In
support of this request, appellant submitted notes signed by a physical therapist, Ms. Ross, dated
March 2, 9, 12, 16, 19, 23, 26 and 30, 2015. She also submitted a note dated June 1, 2015 signed
by Ms. Petitt, a member of the office staff of Dr. Benson, indicating that appellant attended
physical therapy two days a week for six weeks during the period February 23 through
March 31, 2015.
The Board finds that appellant has provided evidence that she attended approved physical
therapy on March 2, 9, 12, 16, 19, 23, 26, and 30, 2015 as confirmed by Ms. Ross. Appellant
requested 2.5 hours of compensation on six of these eight occasions, March 2, 9, 16, 19, 23, 26
and 30, 2015 for LWOP as noted by the employing establishment. Appellant is therefore entitled
to compensation for LWOP on the dates substantiated as approved physical therapy for a total of
15 hours.
CONCLUSION
The Board finds that appellant is entitled to compensation for 15 hours of LWOP for
attending authorized medical treatment on March 2, 9, 16, 19, 23, 26 and 30, 2015. On remand
OWCP will pay appropriate compensation benefits in accordance with this opinion of the Board.

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ORDER
IT IS HEREBY ORDERED THAT January 27, 2016 decision of Office of Workers’
Compensation Programs is reversed and remanded for payment of compensation in keeping with
this decision of the Board.
Issued: November 15, 2016
Washington, DC

Christopher J. Godfrey, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

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

Docket No. 16-0602
Issued: June 2, 2016

Case Submitted on the Record

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

JURISDICTION
On February 9, 2016 appellant, through counsel, filed a timely appeal from a
September 30, 2015 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 the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she sustained
a diagnosed medical condition, herniated disc, causally related to the March 10, 2013
employment incident.
FACTUAL HISTORY
On May 20, 2013 appellant, then a 46-year-old clerk, filed a traumatic injury claim (Form
CA-1), alleging that she injured her back on March 10, 2013 while lifting heavy trays of mail
1

5 U.S.C. § 8101 et seq.

from a high speed tray sorter (HSTS) to a workstation, as well as by pushing an all-purpose
container (APC). She asserted that this caused a herniated disc. Appellant stopped work on
March 10, 2013.
The employing establishment submitted statements dated September 4 and 9, 2013 from
Blane Amerman, appellant’s supervisor. Dr. Amerman noted that on April 16, 2013 appellant
had informed him that she had not been injured at work, but rather that she had fallen down stairs
at home and had gone to an emergency room.
In a statement dated May 20, 2013, appellant related that on March 10, 2013 she was
processing mail which included retrieving mail from an HSTS, lifting and placing the trays into
an APC, and pushing the container to her workstation for further processing. This process was
performed repeatedly. The next day appellant experienced pain and spasms in her back and did
not return to work until March 13, 2013. She sought emergency room treatment on March 14,
2013 and realized her sciatic spasms in her low back and buttocks were related to her work
duties.
Appellant submitted March 14, 2013 emergency room discharge instructions from
Dr. Daniel J. Weeks, Board-certified in emergency medicine, which reflected a diagnosis of back
sprain and strain. In a duty status report (Form CA-17) dated March 14, 2013, prepared by a
physician assistant, appellant was diagnosed with lumbar strain and sciatica and released to
regular duty on March 23, 2013.
Appellant was treated by Dr. William Knowles, a Board-certified internist, on
March 25, 2013. Dr. Knowles noted that appellant was excused from work from March 24 to
April 19, 2013. Dr. Jimmie Young, a Board-certified internist and an associate of Dr. Knowles,
saw appellant on April 18 and May 20, 2013. He opined that her condition was work related “as
noted in the work requirements of the employee.” Dr. Young advised that a lumbar spine
magnetic resonance imaging (MRI) scan showed a herniated disc and several bulging discs. He
noted that appellant was totally disabled from April 20 to May 20, 2013. In a May 24, 2013
report, Dr. Young noted treating appellant on March 25, 2013 for low back pain and spasms. He
noted that she was seen in the emergency room on March 14, 2013 and x-rays revealed mild
degenerative joint disease. Dr. Young advised that a lumbar spine MRI scan showed a herniated
disc and a bulging disc. He opined that, after discussing appellant’s work duties, he concluded
her conditions were work related. Dr. Young advised that her mobility was severely restricted.
On August 30, 2013 he noted that appellant was injured on the job and was disabled from
September 3 to October 3, 2013.
By letter dated October 2, 2013, OWCP advised appellant of the type of evidence needed
to establish her claim, particularly requesting that she submit a physician’s reasoned opinion
addressing the relationship of her claimed condition and specific employment factors.
Appellant submitted an October 7, 2013 report from Dr. Young who advised that
appellant was disabled from October 4 to November 18, 2013.
In a November 1, 2013 decision, OWCP denied appellant’s claim, finding that the
evidence of record did not support that the injury or events occurred as alleged.

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On November 15, 2013 appellant requested reconsideration. She submitted emergency
room records dated March 14, 2013, a March 25, 2013 report from Dr. Knowles, a Form CA-1,
and reports from Dr. Young dated April 18 to October 7, 2013, all previously of record.
Appellant submitted a duty status report dated March 14, 2013 from a physician assistant who
diagnosed lumbar strain/sciatic and noted appellant was totally disabled.
In reports dated May 30, July 1 and 23, 2013, Dr. Young opined that appellant was
disabled from May 31 to September 2, 2013 for medical reasons. In an attending physician’s
report dated October 31, 2013, he noted that appellant had reported that her injury occurred
while at work lifting heavy trays, and bending, lifting, and pushing mail containers. Dr. Young
diagnosed herniated disc at L2-3, bulging disc disease, facet arthritis and lumbar disc disease
with radiculopathy. He noted with a checkmark in a box marked “yes” that appellant’s condition
was caused or aggravated by a work activity and noted that lifting and pushing heavy objects
could cause this condition. Dr. Young again found appellant was totally disabled.
In a work capacity evaluation dated October 31, 2013, Dr. Young opined that appellant
was not capable of performing her usual job noting that her symptoms, including low back pain,
decreased mobility and herniated and bulging discs, limited her ability to work. He found
appellant unable to work.
An April 10, 2013 MRI scan of the lumbar spine revealed a small lateral herniation of
L2-3 intervertebral disc, facet arthritis at L4-5 and L5-S1.
In an October 10, 2013 response to OWCP’s questions regarding her claim, appellant
stated that she reported her back injury to her superiors on March 13, 2013. She contended that
she had never stated that she had fallen down stairs at home or anywhere else. Appellant
reiterated that the cause of her back condition was pushing heavy carts and carrying trays from
station to station. There were no witnesses to the injury.
In a decision dated February 19, 2014, OWCP modified the November 1, 2013 decision,
finding that the evidence of record established the claimed work incidents of March 10, 2013.
However, it further found that the medical evidence submitted was insufficient to establish
causal relationship between the employment incidents of March 10, 2013 and a diagnosed
medical condition.
On July 24, 2014 appellant requested reconsideration. She submitted an October 31,
2013 report from Dr. Young, previously of record. Also submitted was a June 4, 2014 report
from Dr. Young who opined that appellant was injured on March 10, 2013 as a result of her
employment as a clerk. He noted that the injury occurred as a result of lifting heavy trays of mail
daily, coupled with constant bending, lifting and pushing heavy items. Dr. Young first treated
appellant on March 25, 2013 for back pain caused by work-related activities. He found her
unable to return to work on March 23, 2013 due to persistent low back pain. An MRI scan
revealed a herniated disc at L2-3, bulging disc disease, facet arthritis and lumbar disc disease
with radiculopathy. Dr. Young noted objective findings of limited range of motion, tenderness
in the lumbar region with palpation, pain with straight-leg raising, and muscle spasms. He found
that repetitive lifting, pushing and bending could lead to diagnoses of herniated disc disease,
radiculopathy and weakness in the lumbar area.

3

In a decision dated October 23, 2014, OWCP denied modification of the February 19,
2014 decision.
On June 30, 2015 appellant again requested reconsideration. She submitted evidence
previously of record. Also provided was a December 15, 2014 report from Dr. Steven J.
Valentino, a Board-certified orthopedist, who saw appellant for localized pain at L3 thru S1,
radiation into the bilateral posterior thighs, occasional numbness. Appellant reported that the
symptoms were present since a work injury on March 10, 2013 which occurred after bending,
lifting and pushing. A review of an MRI scan from April 10, 2013 revealed left lateral
herniation at L2-3 with multilevel facet arthritis. Dr. Valentino noted range of motion
significantly limited in all planes. Palpation of the spine revealed significant spasm and facet
synovitis. Appellant had a positive straight leg raising test, intact deep tendon reflexes, normal
motor and sensory examinations, and normal gait and station. Dr. Valentino diagnosed lumbago,
lumbar sprain and strain, facet arthropathy, sciatica and displacement of lumbar intervertebral
disc without myelopathy. He opined that her diagnoses were related to her work injury, by direct
cause or aggravation, as was her disability and need for ongoing treatment.
In a decision dated September 30, 2015, OWCP denied modification of the decision
dated October 23, 2014.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
of FECA, that an injury was sustained in the performance of duty as alleged and that any
disability and/or specific condition for which compensation is claimed 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 occupational disease.2
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 actually experienced the employment incident at
the time and place and in the manner alleged. Second, the employee must submit medical
evidence to establish that the employment incident caused a personal injury.3
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty, and must be supported by medical

2

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

3

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

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rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.4
ANALYSIS
It is not disputed that on March 10, 2013 appellant was lifting trays of mail from an
HSTS and pushing an APC. However, she has not submitted sufficient medical evidence to
establish that these work activities caused or aggravated her diagnosed low back conditions.
Appellant submitted a December 15, 2014 report from Dr. Valentino who noted her
complaints of localized pain at L3 thru S1 with radiation into the bilateral posterior thighs since a
March 10, 2013 work injury that occurred after bending, lifting and pushing. Dr. Valentino
diagnosed lumbago, lumbar sprain and strain, facet arthropathy, sciatica and displacement of
lumbar intervertebral disc without myelopathy. He opined that these diagnoses were caused or
aggravated by work duties as was her need for ongoing treatment. The Board finds that,
although Dr. Valentino noted the diagnoses were related to appellant’s work, he did not provide
medical rationale explaining the basis of his conclusory opinion regarding the causal relationship
between appellant’s herniated disc and bulging discs and the March 10, 2013 employment
incident.5 Therefore, this report is insufficient to meet appellant’s burden of proof.
In a June 4, 2014 report, Dr. Young noted appellant was injured on March 10, 2013 as a
result of her employment. He noted the injury occurred as a result of lifting heavy trays of mail
daily coupled with constant bending, lifting and pushing heavy items. Dr. Young first treated
appellant on March 25, for back pain caused by work-related activities. He advised that
appellant was unable to work on March 23, 2013 due to persistent low back pain. Dr. Young
noted an MRI scan showed a herniated disc at L2-L3, bulging disc disease, facet arthritis, and
lumbar disc disease with radiculopathy. He stated that repetitive activity of lifting, pushing and
bending could lead to diagnoses of herniated disc disease with radiculopathy. Similarly,
Dr. Young provided other reports from April 18 to October 31, 2013, in which he advised that
appellant had a herniated disc and opined that appellant’s condition was work related. The
Board finds that, although Dr. Young supported causal relationship, he did not provide medical
rationale explaining the basis of his conclusory opinion regarding the causal relationship between
appellant’s herniated disc and the factors of employment.6 Dr. Young did not explain the
process by which lifting trays of mail, bending, lifting and pushing heavy items would cause the
diagnosed condition or why such condition would not be due to any nonwork factors such as
age-related degenerative changes. Thus, these reports are insufficient to meet appellant’s burden
of proof.

4

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

5

See T.M., Docket No. 08-975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).
6

Id.

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Dr. Young provided other reports that did not specifically address whether appellant’s
employment activities caused or aggravated a diagnosed medical condition. These reports are of
limited probative value.7
Appellant submitted emergency room discharge instructions dated March 14, 2013 from
Dr. Weeks who diagnosed back sprain and strain. Similarly, in a report dated March 25, 2013,
Dr. Knowles noted that appellant was excused from work from March 24 to April 19, 2013.
These reports are insufficient to establish the claim as these physicians did not provide a history
of injury8 or specifically address whether appellant’s employment activities had caused or
aggravated a diagnosed medical condition.9
The remainder of the medical evidence, which includes diagnostic test reports, is of
limited probative value as it does not provide an opinion on the causal relationship between the
March 10, 2013 work incident and appellant’s diagnosed medical conditions.10
Appellant submitted a duty status report from a physician assistant. However, this
evidence is of no probative medical value as the Board has held that physician assistants are not
competent to render medical opinions under FECA.11
Consequently, appellant has not submitted sufficient medical evidence to establish that
that her work incident of March 10, 2013 caused or aggravated a diagnosed medical condition.
On appeal appellant’s counsel asserts that OWCP improperly denied the claim and that
she submitted sufficient medical evidence to establish that on March 10, 2013 she injured her
lumbar spine while repeatedly lifting heavy trays of mail from an HSTS to a workstation and
pushing an APC. As noted above, the medical evidence of record does not establish that
appellant’s diagnosed conditions are causally related to her employment. Appellant has not
submitted a physician’s report, based on an accurate history, which explains how work activities
on March 10, 2013 caused or aggravated a lumbar condition.
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.

7

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
8

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history or which are
speculative or equivocal in character have little probative value).
9

See supra note 7.

10

See id.

11

See S.E., Docket No. 08-2214 (issued May 6, 2009); 5 U.S.C. § 8101(2).

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CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a diagnosed medical condition causally related to the March 10, 2013 employment
incident.
ORDER
IT IS HEREBY ORDERED THAT the September 30, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 2, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 19-0136
Issued: May 23, 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 24, 2018 appellant, through counsel, filed a timely appeal from an August 29,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

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

The Board notes that following the August 29, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s wage-loss compensation,
effective February 4, 2018, based on her capacity to earn wages as a customer complaint clerk.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as presented
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On January 17, 2002 appellant, then a 46-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 13, 2001 she sustained low back pain radiating into
her left leg while in the performance of duty. She stopped work on October 25, 2001 and did not
return. OWCP accepted the claim for lumbosacral sprain with radiculopathy. It authorized an L34 and L5-S1 anterior discectomy and fusion, which was performed on September 13, 2005.
Subsequently, OWCP expanded acceptance of appellant’s claim to include an aggravation of
degeneration of a lumbar/lumbosacral intervertebral disc and postlaminectomy syndrome. It
assigned OWCP File No. xxxxxx928.
OWCP previously accepted under OWCP File No. xxxxxx754 that appellant sustained
lumbar strain, an aggravation of a disc bulge at L4-5, and status post laminectomy due to a June 17,
1995 employment injury. It administratively combined OWCP File Nos. xxxxxx928 and
xxxxxx754, with OWCP File No. xxxxxx928 designated as the master file.
By decision dated May 18, 2006, the Board reversed the September 10 and November 5,
2004 and January 6 and April 19, 2005 OWCP decisions terminating appellant’s wage-loss
compensation and entitlement to schedule award compensation due to her refusal of suitable work
under 5 U.S.C. § 8106(c)(2).
Subsequently, OWCP reinstated appellant’s wage-loss compensation.
Appellant received treatment from Dr. A. Michael Moheimani, an attending Boardcertified orthopedic surgeon. In a January 21, 2011 report, Dr. Moheimani diagnosed status post
fusion at L3-4 and L5-S1 and opined that she was permanently partially disabled. He continued
to submit periodic progress reports finding that appellant’s work status was permanent and
stationary.

3

5 U.S.C. § 8101 et seq.

4

Docket No. 05-1535 (issued May 18, 2006).

2

On December 8, 2016 OWCP referred appellant to Dr. Michael J. Einbund, a Boardcertified orthopedic surgeon, for a second opinion examination regarding the status of appellant’s
accepted conditions.
In a report dated December 21, 2016, Dr. Einbund reviewed appellant’s history of injury
and the medical evidence of record, including the results of diagnostic testing. On examination he
found a positive straight leg raise bilaterally, decreased sensation of the proximal lower leg, and
normal strength of the lower extremities. Dr. Einbund opined that appellant had continued
objective residuals of her October 13, 2001 employment injury and resulting September 13, 2005
surgery. He found retrolisthesis at L2 in relation to L3 and hypertrophic changes at L4-5 causing
stenosis of the central canal “directly related to the accepted industrial conditions and subsequent
surgery of September 13, 2005.” Dr. Einbund further found that appellant had sustained an
employment-related permanent aggravation of lumbar disc degeneration and postlaminectomy
syndrome. He opined that she could perform sedentary employment lifting, pushing, and pulling
no more than 10 pounds for 2.66 hours per day, standing and walking combined for three hours
per day, and bending and stooping for one hour per day. Dr. Einbund further found that appellant
was “limited to sitting in excess of five hours a day” with the ability to sit or stand as desired. In
a December 29, 2016 work capacity evaluation (OWCP-5c), he provided limitations on lifting,
pushing, and pulling up to 10 pounds for 2.66 hours per day and bending and stooping for one hour
per day.
On January 5, 2017 OWCP referred appellant for vocational rehabilitation.
The vocational rehabilitation counselor, on March 3, 2017, completed a job classification
(Form CA-66) for the position of customer complaint clerk. The duties included investigating
customer complaints about bills or service, examining documents, notifying customers of findings,
examining merchandise, and keying information into computers. The position was sedentary and
required occasional lifting up to 10 pounds. The vocational rehabilitation counselor found that the
physical requirements “fell within the limitations by Dr. Einbund as the duties could be varied not
to exceed the restrictions. Furthermore, this type of work involves mostly independent work that
allows for alternating the duties and physical demands as needed.” The vocational rehabilitation
counselor advised that appellant could meet the specific vocational preparation of six months to a
year required for the position through her participation in a 20-week training program and through
her prior work experience as a letter carrier, mail supervisor, and fast food manager. She opined
that the position was reasonably available within her commuting area at a weekly wage of $611.20.
In a March 15, 2017 rehabilitation action report (OWCP-44), OWCP approved a training
program for appellant from March 13 to July 31, 2017 at HealthStaff Training Institute with the
objective for her to obtain a position as a customer complaint clerk or receptionist. It also approved
vocational placement services from August 1 to November 1, 2017.
In progress reports dated April 19 and May 31, 2017, Dr. Moheimani discussed appellant’s
complaints of back pain radiating into the right upper extremity from extended sitting taking
computer classes. He diagnosed disc herniations and ruptures at C5-6, L2-3, and L4-5 with neural
foraminal stenosis, right sacroiliac joint dysfunction, and status post lumbar fusion at L3-4 and
L5-S1. Dr. Moheimani found that appellant’s work status was permanent and stationary.

3

On June 28, 2017 Dr. Moheimani reviewed the results of a June 13, 2017 magnetic
resonance imaging (MRI) study and noted that it demonstrated L2-3 retrolisthesis and L4-5
spondylolisthesis. He requested authorization to perform a right sacroiliac joint injection.
In a vocational rehabilitation report dated August 14, 2017, the vocational rehabilitation
counselor advised that appellant was behind in her courses due to vision problems, noting that she
had recently been diagnosed with glaucoma and cataracts. She requested a training extension and
noted that her curriculum would be modified.
On August 31, 2017 HealthStaff Training Institute issued appellant a certificate of
completion in Computerized Office Specialist work.
The vocational rehabilitation counselor, in a September 15, 2017 vocational rehabilitation
report, noted that she had met with appellant as part of her transition to the job placement phase of
vocational rehabilitation. She indicated that she was considering retirement. On October 16, 2017
the vocational rehabilitation counselor asserted that appellant had the skills necessary to work as
a customer complaint clerk.
In a November 27, 2017 rehabilitation action report (Form OWCP-44), the vocational
rehabilitation counselor notified OWCP that she had provided appellant with 90 days of placement
services.5 She indicated that she had not fully participated with the services, providing as a reason
back pain.
On November 30, 2017 an OWCP vocational rehabilitation specialist noted that appellant
minimally participated in job placement services. She found that the position of customer
complaint clerk was reasonably available within her commuting area at entry-level wages of
$611.20 per week.
OWCP, on December 5, 2017, advised appellant of its proposed reduction of her wageloss compensation as the evidence established that she was able to earn wages in the selected
position of customer complaint clerk. It afforded her 30 days to submit evidence or argument
regarding the proposed reduction of her compensation.
Thereafter, appellant resubmitted December 30, 2015 and May 31 and June 28, 2017
progress reports from Dr. Moheimani finding that her work status was permanent and stationary.
By decision dated January 30, 2018, OWCP reduced appellant’s wage-loss compensation,
effective February 4, 2018, finding that she had the capacity to earn wages of $611.20 per week as
a customer complaint clerk. It determined that the opinion of Dr. Einbund represented the weight
of the evidence and established that she could perform the duties of the selected position.
In progress reports dated January 31, February 28, and April 26, 2018, Dr. Moheimani
diagnosed disc herniations and ruptures at C5-6, L2-3, and L4-5 with neural foraminal stenosis,
5

In a progress reports dated November 8 and 22, 2017, Dr. Moheimani diagnosed disc herniations and ruptures at
C5-6, L2-3, and L4-5 with neural foraminal stenosis, right sacroiliac joint dysfunction, and status post lumbar fusion
at L3-4 and L5-S1 and requested authorization for a bilateral sacroiliac joint injection. He advised that appellant’s
work status was permanent and stationary.

4

right sacroiliac joint dysfunction, and status post lumbar fusion at L3-4 and L5-S1. He found that
appellant’s work status was permanent and stationary.
On February 6, 2018 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative. During the telephonic hearing, held on July 6, 2018, appellant
asserted that her physical condition prevented her from performing the duties of a customer
complaint clerk. She advised that she had high blood pressure, anxiety, panic attacks, and
limitations due to her postlaminectomy syndrome. Counsel questioned whether the position of
customer complaint clerk was reasonably available within appellant’s geographical area.
By decision dated August 29, 2018, OWCP’s hearing representative affirmed the
January 30, 2018 decision. She found that OWCP properly reduced appellant’s wage-loss
compensation as the position of customer complaint clerk was medically and vocationally suitable.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proving that the disability has ceased or
lessened in order to justify termination or modification of compensation benefits.6 Its burden of
proof includes the necessity of furnishing rationalized medical opinion evidence based on a proper
factual and medical background.7
Under section 8115(a) of FECA wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his or her wage-earning
capacity.8 If the actual earnings do not fairly and reasonably represent wage-earning capacity, or
if the employee has no actual earnings, the wage-earning capacity is determined with due regard
to the nature of the injury, the degree of physical impairment, the usual employment, age,
qualifications for other employment, the availability of suitable employment, and other factors and
circumstances which may affect the wage-earning capacity in his or her disabled condition.9
Wage-earning capacity is a measure of the employee’s ability to earn wages in the open labor
market under normal employment conditions.10 The job selected for determining wage-earning
capacity must be a job reasonably available in the general labor market in the commuting area in
which the employee lives.11 The fact that an employee has been unsuccessful in obtaining work

6

See E.D., Docket No. 17-1064 (issued March 22, 2018).

7

See S.N., Docket No. 17-1589 (issued January 3, 2018).

8

5 U.S.C. § 8115(a).

9

Id.; see also J.M., Docket No. 17-0397 (issued April 3, 2018).

10

See M.P., Docket No. 18-0094 (issued June 26, 2018); see also Federal (FECA) Procedure Manual, Part 2 -Claims, Determining Wage-Earning Capacity Based on a Constructed Position, Chapter 2.816.3 (June 2013).
11

See M.K., Docket No. 17-0208 (issued April 17, 2018).

5

in the selected position does not establish that the work is not reasonably available in his
commuting area.12
When OWCP makes a determination of partial disability and of specific work restrictions,
it may refer the employee’s case to a vocational rehabilitation counselor authorized by OWCP for
selection of a position listed in the Department of Labor, Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his
physical limitations, education, age, and prior experience. Once this selection is made, a
determination of wage rate and availability in the open labor market should be made through
contact with the state employment service, local Chamber of Commerce, employer contacts, and
actual job postings.13 Lastly, OWCP applies the principles set forth in Albert C. Shadrick14 as
codified in section 10.403 of OWCP’s regulations,15 to determine the percentage of the employee’s
loss of wage-earning capacity (LWEC).16
ANALYSIS
The Board finds that OWCP properly reduced appellant’s wage-loss compensation,
effective February 4, 2018, based on her capacity to earn wages as a customer complaint clerk.
On December 8, 2016 Dr. Einbund, an OWCP referral physician, diagnosed retrolisthesis at L2 in
relation to L3, hypertrophic changes at L4-5 causing central canal stenosis, a permanent
aggravation of lumbar disc degeneration, and postlaminectomy syndrome causally related to her
accepted employment injury and resultant surgery. He opined that appellant could perform
sedentary employment lifting, pushing, and pulling not more than 10 pounds for 2.66 hours per
day, standing and walking combined no more than 3 hours per day, and bending and stooping not
more than 1 hour per day. The Board finds that OWCP properly referred appellant for vocational
rehabilitation as the medical evidence established that she was no longer totally disabled due to
residuals of her employment injury.17
OWCP further properly determined that appellant had the physical capacity to perform the
duties of a customer complaint clerk. The position is classified as sedentary employment requiring
occasional lifting up to 10 pounds. Dr. Einbund opined that appellant could sit five hours per day
with the ability to switch positions and stand and walk and combined three hours per day. The
vocational rehabilitation counselor noted that position of customer complaint clerk allowed for
independent work with a variety of duties that did not exceed Dr. Einbund’s restrictions. The
Board finds that Dr. Einbund’s opinion is well reasoned and based on a complete and accurate

12

C.M., Docket No. 18-0688 (issued November 15, 2018).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.6.a (June 2013).
14

5 ECAB 376 (1953).

15

20 C.F.R. § 10.403.

16

See J.M., Docket No. 17-0397 (issued April 3, 2018).

17

C.M., Docket No. 18-1326 (issued January 4, 2019).

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history and thus constitutes the weight of the evidence and establishes that appellant has the
requisite physical ability to earn wages as a customer complaint clerk.18
In progress reports dated 2017 through 2018, Dr. Moheimani diagnosed disc herniations
and ruptures at C5-6, L2-3, and L4-5, right sacroiliac joint dysfunction, and status post lumbar
fusion at L3-4 and L5-S1. He opined that appellant’s work status was permanent and stationary.
Dr. Moheimani did not address the relevant issue of whether she could perform the position of
customer complaint clerk and thus his opinion is of no probative value.19
The Board, therefore, finds that the weight of the evidence establishes that appellant had
the physical capacity to perform the duties of the selected position.20
In assessing the claimant’s ability to perform the selected position, OWCP must consider
not only physical limitations, but also take into account work experience, age, mental capacity and
educational background.21 The rehabilitation counselor determined that appellant had the skills
necessary to perform the position of customer complaint clerk based on her prior work experience
and her 20-week training program at HealthStaff Training Institute. She further found that the
position was reasonably available within her commuting area at a weekly wage of $611.20. As
the rehabilitation counselor is an expert in the field of vocational rehabilitation, OWCP may rely
on his or her opinion in determining whether the job is vocationally suitable and reasonably
available.22 The Board finds that OWCP considered the proper factors, including the availability
of suitable employment, appellant’s physical limitations and employment qualifications in
determining that appellant had the capacity to perform the position of customer complaint clerk.23
OWCP further properly determined that she had no LWEC in accordance with the formula
developed in Shadrick and codified at 20 C.F.R. § 10.403.24 OWCP, therefore, properly found
that the position of customer complaint clerk reflected her wage-earning capacity effective
February 4, 2018.

18

Id.

19

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

20

See T.J., Docket No. 16-1473 (issued January 26, 2017).

21

Id.

22
See J.B., Docket No. 17-0817 (issued April 26, 2018); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reemployment: Determining Wage-Earning Capacity, Chapter 2.814.6(b) (June 2013).
23

T.B., Docket No. 17-1777 (issued January 16, 2019).

24

Supra notes 15, 16. OWCP divided appellant’s employment capacity to earn wages of $611.20 a week by the
current pay rate of the position held when injured of $1,174.94 per week to find 52 percent wage-earning capacity. It
multiplied the pay rate at the time of injury of $839.62 by the 52 percent wage-earning capacity percentage. The
resulting amount of $436.60 was subtracted from appellant’s date-of-injury pay rate of 839.62 which provided a loss
of wage-earning capacity of $403.02 per week. OWCP then multiplied this amount by the appropriate compensation
rate of three-fourths and applied adjustments, which yielded $1,456.20 every four weeks.

7

Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP properly reduced appellant’s wage-loss compensation,
effective February 4, 2018, based on her capacity to earn wages as a customer complaint clerk.
ORDER
IT IS HEREBY ORDERED THAT the August 29, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 23, 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

8