United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bethesda, MD, Employer
__________________________________________

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)
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)
)
)

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

Docket No. 16-1818
Issued: December 28, 2017

Case Submitted on the Record

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

JURISDICTION
On September 12, 2016 appellant filed a timely appeal from an August 10, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.2
ISSUE
The issue is whether appellant met his burden of proof to establish more than eight
percent permanent impairment of the right lower extremity, for which he previously received a
schedule award.

1
2

5 U.S.C. § 8101 et seq.

The record includes evidence received after OWCP issued its August 10, 2016 decision. The Board’s
jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final decision. 20 C.F.R.
§ 501.2(c)(1). Therefore, the Board lacks jurisdiction to review this additional evidence for the first time on appeal.

FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances outlined in
the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows. On August 17, 1995 appellant, then a 39-year-old letter carrier, injured his right knee in
the performance of duty.3 OWCP initially accepted appellant’s traumatic injury claim (Form
CA-1) for right knee strain. It subsequently expanded the claim to include right knee lateral
meniscus tear, which was surgically repaired on February 15, 1996. On September 30, 1996
appellant’s surgeon released him to resume his full-time, letter carrier duties.
On December 3, 2002 OWCP granted appellant a schedule award for two percent
permanent impairment of the right lower extremity. By decision dated September 29, 2003, the
Board set aside the award and remanded the case for further consideration.4 On December 23,
2003 OWCP granted a schedule award for a total of eight percent permanent impairment of the
right lower extremity.5 The award covered a period of 23.04 weeks beginning October 1, 2001.6
By decision dated May 14, 2008, OWCP denied appellant’s claim for an additional
schedule award. In a December 5, 2008 decision, the Board affirmed OWCP’s May 14, 2008
decision.7 OWCP again denied an additional schedule award on March 5, 2012, which the Board
affirmed by decision dated November 20, 2012.8
On August 9, 2013 appellant filed a claim for an additional schedule award (Form CA-7).
In an October 21, 2013 report, Dr. Irvin A. Guterman, a Board-certified orthopedic surgeon,
found 11 percent permanent impairment of the right lower extremity.9 He rated appellant under
the sixth edition of the A.M.A., Guides (2009). Dr. Guterman found three percent permanent
impairment based on appellant’s partial lateral meniscectomy, and an additional eight percent
permanent impairment for muscle atrophy.
In an October 4, 2014 report, OWCP’s district medical adviser (DMA) found three
percent permanent impairment of the right lower extremity based on appellant’s 1996 right knee
partial lateral meniscectomy. He disagreed with Dr. Guterman’s additional eight percent rating
for muscle atrophy, but noted the possibility of impairment due to right knee osteoarthritis.
However, the DMA noted that Dr. Guterman had not provided the requisite joint space
measurements for rating impairment due to arthritis.
3

Appellant was cutting across a yard and fingering mail when he tripped in a hole.

4

Docket No. 03-1006 (issued September 29, 2003).

5

The rating was based on a finding of two centimeter (cm) thigh atrophy under Table 17-6, American Medical
Association, Guides to the Evaluation of Permanent Impairment 503 (5th ed. 2001).
6

In an amended decision dated March 10, 2004, OWCP reduced the amount of the award based on compensation
previously paid pursuant to the December 3, 2002 schedule award.
7

Docket No. 08-1651 (issued December 5, 2008).

8

Docket No. 12-1191 (issued November 20, 2012).

9

Dr. Guterman performed appellant’s February 15, 1996 right knee arthroscopic surgery.

2

By decision dated November 10, 2014, OWCP found appellant had not established that
his right lower extremity permanent impairment exceeded the eight percent previously awarded.
Appellant timely requested a review of the written record by OWCP’s Branch of
Hearings and Review.
In a December 2, 2014 supplemental report, Dr. Guterman revised his previous rating.
He continued to find three percent right lower extremity impairment based on appellant’s 1996
partial lateral meniscectomy. However, Dr. Guterman also found an additional seven percent
impairment due to arthritis, noting that there was x-ray evidence of a three-millimeter cartilage
interval.10 According to Dr. Guterman, appellant’s total right lower extremity permanent
impairment was 10 percent.
By decision dated June 19, 2015, the hearing representative affirmed OWCP’s
November 10, 2014 decision.11 She noted that OWCP had not accepted right knee degenerative
changes (arthritis), and therefore, Dr. Guterman’s additional seven percent rating for arthritis did
not warrant further review. The hearing representative further noted that Dr. Guterman had not
provided the underlying x-ray (October 21, 2013) report with cartilage measurements, and had
not explained how the August 17, 1995 employment incident either caused or contributed to
appellant’s mild right knee arthritis.
Appellant appealed to the Board on July 6, 2016. By decision dated April 12, 2016, the
Board set aside the hearing representative’s June 19, 2015 decision, and remanded the case for
further medical development. The Board noted, inter alia, that OWCP failed to refer
Dr. Guterman’s December 2, 2014 supplement report to the DMA for review.12 Additionally,
the record included a November 14, 1995 right knee magnetic resonance imaging (MRI) scan,
the results of which were clearly suggestive of preexisting osteoarthritis. The Board explained
that preexisting impairment to the scheduled member should be included in the rating.
In a May 15, 2016 report, the DMA, Dr. Morley Slutsky, Board-certified in occupational
medicine, advised that, although Dr. Guterman reported a three-millimeter cartilage interval, he
did not specify the affected right knee compartment(s). He also noted that a copy of the
October 21, 2013 x-ray report had not been provided, and Dr. Guterman had not assigned grade
modifiers or performed net adjustment calculations with respect to the ratings for partial lateral
meniscectomy (three percent) and knee arthritis (seven percent). The DMA further explained
that only one diagnosis should be used to rate appellant’s knee impairment. He rated appellant
based on his lateral meniscal tear and found two percent permanent impairment of the right
lower extremity under Table 16-3, Knee Regional Grid, A.M.A., Guides 509 (6th ed. 2009).13
10

Dr. Guterman referenced an October 21, 2013 right knee x-ray.

OWCP did not refer Dr. Guterman’s December 2, 2014 supplemental report to its medical adviser prior to
issuing the June 19, 2015 decision.
11

12

Order Remanding Case, Docket No. 15-1502 (issued April 12, 2016).

13

Two percent was the default grade (C) for a meniscal tear under Table 16-3. Dr. Slutsky calculated a net
adjustment of zero, thereby warranting no adjustment from the default rating of two percent.

3

On May 18, 2016 OWCP sought clarification from the DMA as to whether the current
two percent rating was in addition to the previous award of eight percent right lower extremity
permanent impairment.14
In a May 23, 2016 report, Dr. Slutsky explained that the previous eight percent award
was for thigh atrophy (two centimeters) under the A.M.A., Guides (5th ed. 2001). He further
explained that under the current edition of the A.M.A., Guides (6th ed. 2009), muscle atrophy
was a grade modifier, not the sole basis for an impairment rating. Dr. Slutsky noted that
appellant’s muscle atrophy had already been incorporated in the current two percent right lower
extremity impairment rating.15 As such, the latest right lower extremity permanent impairment
rating represented a six percent decrease from the prior rating/award. Because of numerous
errors in the impairment ratings of record, Dr. Slutsky recommended that OWCP refer appellant
for a second opinion evaluation, to include tri-compartment right knee x-rays, as well as
appropriate measurements to determine if there was any ratable narrowing of the various knee
compartments due to arthritis.
In an August 10, 2016 decision, OWCP denied appellant’s claim for an additional
schedule award. It based its determination of the DMA’s May 23, 2016 report. It further noted
that Dr. Guterman’s impairment rating(s) contained various deficiencies as documented by the
DMA. As such, OWCP found that the medical evidence did not support an increase over the
previously awarded eight percent right lower extremity permanent impairment.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.16 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.17 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).18

14

OWCP also provided Dr. Slutsky a copy of an October 11, 2010 examination report that it previously neglected
to forward.
15

In his May 15, 2016 impairment rating, Dr. Slutsky included 1.8 centimeter atrophy as part of the physical
examination grade modifier.
16

5 U.S.C. § 8107(c). For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks’
compensation. 5 U.S.C. § 8107(c)(2).
17

20 C.F.R. § 10.404.

18

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

4

After obtaining all necessary medical evidence, the case file should be routed to the
DMA for an opinion concerning the nature and percentage of impairment in accordance with the
A.M.A., Guides.19 The DMA should provide his or her rationale for the percentage of
impairment specified.20
When determining entitlement to a schedule award, pre-existing impairment to the
scheduled member should be included.21 Impairment ratings for schedule awards include those
conditions accepted by OWCP as job related, and any preexisting permanent impairment of the
same member or function.22 If the work-related injury has affected any residual usefulness in
whole or in part, a schedule award may be appropriate.23 There are no provisions for
apportionment under FECA.24 When the prior impairment is due to a previous work-related
injury and a schedule award has been granted for such prior impairment, the percentage already
paid is subtracted from the total percentage of impairment.25
ANALYSIS
The Board finds that the case is not in posture for decision.
By decision dated April 12, 2016, the Board remanded the case to OWCP with an
instruction to have a DMA review the updated reports of Dr. Guterman.
In his May 15, 2016 report, Dr. Slutsky, OWCP’s medical adviser, reviewed
Dr. Guterman’s December 2, 2014 report and rated two percent permanent impairment of the
right leg under the A.M.A., Guides. He recommended, however, that appellant be referred for a
second opinion examination with an orthopedic surgeon due to numerous errors in impairment
ratings. Dr. Slutsky advised that the examiner should be directed to perform right knee x-rays in
all three compartments and perform measurements for each compartment to determine whether
there was ratable narrowing in any of the compartments. He reiterated this recommendation in
his May 23, 2016 report. OWCP, however, did not follow through with this recommendation in
its August 10, 2016 decision and found that, as Dr. Slutsky rated two percent permanent
impairment of the right leg, appellant was not entitled to an additional schedule award. The
Board finds that, as OWCP failed to fully develop the medical evidence following referral to a

19

Id. at Chapter 2.808.6f.

20

Id.

21

Carol A. Smart, 57 ECAB 340, 343 (2006); Michael C. Milner, 53 ECAB 446, 450 (2002).

22

Supra note 18 at Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent
Disability Claims, Chapter 2.808.5d.
23

Id.

24

Id.

25

Id. at Chapter 2.808.7a(1); 20 C.F.R. § 10.404(c).

5

DMA, its August 10, 2016 decision must be set aside and remanded for further development
consistent with the May 15, 2016 recommendations of the DMA.
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. The claimant has the burden of proof to establish entitlement to compensation.
However, OWCP shares responsibility in the development of the evidence to see that justice is
done.26 Once OWCP undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.27
On remand, OWCP should refer the matter to a second opinion orthopedic specialist for a
new impairment rating.28 In accordance with Dr. Slutsky’s recommendation on May 15, 2016,
the examiner should be directed to perform right knee x-rays in all three compartments and
perform measurements for each compartment to determine whether there is a ratable narrowing
in any of the compartments. Following this and any other further development as deemed
necessary, OWCP shall issue an appropriate merit decision on appellant’s schedule award claim.
CONCLUSION
The case is not in posture for decision.

26

William J. Cantrell, 34 ECAB 1223 (1983).

27

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

28

See supra note 18 at Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter 2.810.9(a)
(September 2010).

6

ORDER
IT IS HEREBY ORDERED THAT the August 10, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: December 28, 2017
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
)
C.R., Appellant
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Media, PA, Employer
)
___________________________________________ )
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 16-0126
Issued: May 18, 2016

Case Submitted on the Record

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

JURISDICTION
On October 29, 2015 appellant, through counsel, filed a timely appeal of a May 21, 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 this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a traumatic injury in
the performance of duty on December 11, 2013.
FACTUAL HISTORY
On December 11, 2013 appellant, then a 31-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on that date she fell while getting out of her truck in the

1

5 U.S.C. § 8101 et seq.

performance of duty. She indicated that she injured her lower back and had pain shooting down
the right leg. Appellant stopped work on that date.
In a December 11, 2013 statement, appellant stated that she was wearing ice and snow
cleats, and properly exited the truck. She explained that as soon as she had both feet placed on
the ground, she slipped as she turned around to walk to the mailbox. Appellant noted that she
tried to catch herself, but her feet flew up from under her and she fell on her buttocks and back.
She did not feel any pain while she finished her collections. However, two hours later, appellant
was unable to bend over without being in pain.
OWCP received a December 11, 2013 emergency department note from Riddle Hospital
excusing appellant from work and a (Form CA-17) duty status report also dated December 11,
2013 from a nurse practitioner.
In a letter dated January 9, 2014, OWCP noted that appellant’s claim initially appeared to
be a minor injury that resulted in minimal or no lost time from work and her claim had been
administratively handled to allow a limited amount of medical payments, but that it was now
developing the claim. It note that medical evidence from a nurse practitioner was insufficient
and requested a physician’s opinion explaining how the reported work incident caused or
contributed to her condition. OWCP informed appellant of the type of evidence needed to
support her claim and afforded her 30 days to submit such evidence. Appellant did not respond
to the request.
OWCP received January 16, and 23, 2014 work status reports from appellant’s health
care provider which diagnosed lower back sprain. These reports either had no signature or an
illegible signature of the health care provider.
By decision dated February 10, 2014, OWCP denied appellant’s claim as she had not
established an injury as alleged. It found that the medical evidence failed to demonstrate a
diagnosed medical condition causally related to the accepted work-related incident.
On March 5, 2014 counsel requested a hearing, which was held on June 9, 2014.
Appellant submitted an employee rights and responsibility traumatic injury form and physical
therapy reports.
In a letter dated July 1, 2014, counsel provided additional medical evidence. In a
June 25, 2014 report, Dr. Menachem M. Meller, a Board-certified orthopedic surgeon, noted that
he had seen appellant on February 11 and 25, March 13, and April 1, 2014. He advised that
during her treatment she presented primarily with axial back pain at the belt line and at the
posterior superior iliac spine. Dr. Meller explained that there was no bladder or bowel
dysfunction, no verifiable neurologic deficits, and a presence of behavioral confounders. He
read the results of a magnetic resonance imaging (MRI) scan which was taken on
February 19, 2014. It revealed severe degenerative disc disease at L5-S1 with disc extrusion,
herniated disc material contacting the traversing S1 nerve roots, and moderate right foraminal
narrowing with displacement of the exiting L5 nerve root.
Dr. Meller noted that appellant had physical therapy on January 6, 2014 and was being
released for full-time work with permanent restrictions. He summarized that she had a slip and
2

fall on ice landing on her back and was found to have a significant amount of preexisting
degeneration as well as a herniated disc at L5-S1 that was contacting or abutting on the
traversing S1 nerve root and displacing the exiting L5 nerve root. Dr. Meller found that
appellant had not reached maximum medical improvement and was referred to neurology as he
believed that she might benefit from surgical decompression and possibly a fusion.
By decision dated July 28, 2014, an OWCP hearing representative affirmed the
February 10, 2014 decision. She found that there was no medical evidence discussing how any
specific diagnosis related to a fall on ice at work.
On February 24, 2015 counsel requested reconsideration. He provided new medical
evidence and argued that appellant had submitted sufficient medical evidence to establish causal
relationship between the diagnosed conditions and her accepted work incident.
In a February 17, 2105 report, Dr. Steven Valentino, an osteopath and a Board-certified
orthopedic surgeon, noted that appellant presented with low back pain localized from L3 through
S1 with radiation into both legs with numbness. He advised that her symptoms were apportioned
to the work injury which occurred on December 11, 2013. Dr. Valentino noted that appellant
slipped on ice while at work as letter carrier. He advised that lumbar decompression surgery was
recommended but denied. Dr. Valentino explained that appellant had a prior work injury in
2001, while working as a ramp agent for an airline where she had sustained an L5-S1 disc
herniation. He indicated that the injury was treated with chiropractic care with improvement
such that she had returned to a full-time position. Dr. Valentino advised that the MRI scan
performed on February 19, 2014 revealed severe degenerative disc disease at L5-S1 with disc
extrusion, with herniated disc material contacting the traversing S1 nerve roots. He opined that
“[c]learly this accident caused an aggravation of her prior L5-S1 disc herniation along with
aggravation of underlying degenerative disc disease and sciatica.” Dr. Valentino stated that his
opinion was made within a reasonable degree of medical certainty. He noted that his opinion
was based on positive objective findings on physical examination, positive MRI scan, and the
fact that appellant had recovered from her prior 2001 injury and had returned to work full time
without any symptoms or impairment until the December 11, 2013 incident.
OWCP also received physical therapy reports which were submitted by counsel in
support of the claim.
In a May 21, 2015 decision, OWCP denied modification of the prior decision. It noted
that Dr. Valentino’s opinion was based on appellant’s reported history and was summarized in
general terms. OWCP also noted that appellant had not provided a history as requested in the
initial development letter of January 9, 2014. It found that Dr. Valentino failed to provide an
objective basis for his diagnosis apart from the findings from the MRI scan, but those noted
findings were consistent with the preexisting injury.
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

3

applicable time limitation period of FECA,2 and that an injury was sustained in the performance
of duty.3 These are the essential elements of each compensation claim regardless of whether the
claim is predicated upon a traumatic injury or an occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place, and in the manner alleged.5 Second, the employee must submit
sufficient evidence, generally only in the form of medical evidence, to establish that the
employment incident caused a personal injury.6
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
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.7
ANALYSIS
Appellant alleged that on December 11, 2013 she sustained an injury to her lower back
with pain shooting down her right leg after she fell while exiting her delivery truck in the
performance of duty. OWCP accepted that the claimed event occurred as alleged.
However, the medical evidence is insufficiently rationalized to establish that the accepted
employment incident caused an injury. The medical evidence does not contain a sufficiently
reasoned explanation of how the specific employment incident, which occurred on December 11,
2013, caused or aggravated an injury.8 The Board notes that this is particularly important in light
of the prior injury in 2001 in which appellant sustained an L5-S1 disc herniation. The record
also reflects that appellant had preexisting degenerative low back conditions.
Appellant submitted a June 25, 2014 report from Dr. Meller who noted axial back pain at
the belt line and posterior superior iliac spine. He indicated that the MRI scan of February 19,
2014 revealed severe degenerative disc disease at L5-S1 with disc extrusion, herniated disc
2

Joe D. Cameron, 41 ECAB 153 (1989).

3

James E. Chadden, Sr., 40 ECAB 312 (1988).

4

Delores C. Ellyett, 41 ECAB 992 (1990).

5

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (June 1995).
6

Id. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee).

7

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

8

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (where the Board found that a medical opinion not
fortified by medical rationale is of little probative value).

4

material contacting the traversing S1 nerve roots, and moderate right foraminal narrowing with
displacement of the exiting L5 nerve root. Dr. Meller explained that appellant had a slip and fall
on ice, landed on her back, and also had a significant amount of preexisting degeneration as well
as a herniated disc at L5-S1 contacting or abutting on the traversing S1 nerve root and displacing
the exiting L5 nerve root. He determined that her restrictions were permanent and that she had
not reached maximum medical improvement. This report is of limited probative value as
Dr. Meller did not provide a clear opinion on causal relationship.9 To the extent that his
statement of the history of appellant having a slip and fall on ice may be construed as supporting
causal relationship, he did not provide medical rationale explaining how this incident caused or
contributed to the diagnosed condition.
In a February 17, 2015 report, Dr. Valentino noted that appellant presented with low back
pain localized from L3 through S1 with radiation into the bilateral legs with numbness. He noted
that on December 11, 2013 she slipped on ice while at work and opined that her symptoms were
due to the work injury. Dr. Valentino explained that appellant had a prior work injury in 2001 in
which she had sustained an L5-S1 disc herniation. He advised that she was treated with
chiropractic care at that time with improvement such that she returned to full-time employment.
Dr. Valentino reviewed the MRI scan from February 19, 2014. He opined, within a reasonable
degree of medical certainty, that “[c]learly this accident caused an aggravation of her prior L5-S1
disc herniation along with aggravation of underlying degenerative disc disease and sciatica.”
Dr. Valentino explained that his opinion was based upon positive objective findings on physical
examination, the positive MRI scan, and the fact that appellant had recovered from her prior
2001 injury and had returned to work full time without any symptomatology or impairment until
the December 11, 2013 incident. However, a medical opinion that states that a condition is
causally related to an employment injury because the employee was asymptomatic before the
injury but symptomatic after the injury is insufficient, without supporting rationale, to establish
causal relationship.10 Furthermore, other than to review the MRI scan, Dr. Valentino did not
provide objective findings to explain how he arrived at his conclusion.11 He did not explain how
the MRI scan findings were supportive of a new injury. The need for detailed rationale is
particularly important in view of appellant’s 2001 history of an L5-S1 disc herniation. Thus,
Dr. Valentino’s report is of limited probative value.
Diagnostic and other medical reports are insufficient to establish the claim as these
reports do not address how employment factors contributed to a diagnosed medical condition.12
9

See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (finding that 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).
10

T.M., Docket No. 08-975 (issued February 6, 2009).

11

Rationalized medical opinion evidence is medical evidence, which includes a physician’s opinion on the issue
of whether there is a causal relationship between the claimant’s diagnosed condition and the implicated employment
factor(s). The opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors identified by the
claimant. Gloria J. McPherson, 51 ECAB 441 (2000).
12

See supra note 9.

5

OWCP received nurses’ notes and physical therapy reports in support of appellant’s
claim. However, section 8101(2) of FECA provides that the term physician includes surgeons,
podiatrist, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic
practitioners within the scope of their practice as defined by State law.13 Nurses are not
considered physicians under FECA and are not competent to render a medical opinion.14
Likewise, physical therapists are not considered physicians under FECA and thus their reports
also do not constitute competent medical evidence.15 The record also contains unsigned reports
or reports with an illegible signature. However, reports lacking proper identification do not
constitute probative medical evidence.16 Consequently, these reports are insufficient to establish
clear error by OWCP.
Because the medical evidences submitted by appellant do not sufficiently address how
the December 11, 2013 activities at work caused or aggravated a low back condition, these
reports are of limited probative value17 and are insufficient to establish that the December 11,
2013 employment incident caused or aggravated a specific injury.
On appeal, counsel for appellant argues that the report of Dr. Valentino warranted further
development by OWCP. However, as previously explained above, the evidence was insufficient
to establish causal relationship.
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 failed to meet her burden of proof to establish traumatic
injury in the performance of duty on December 11, 2013.

13

5 U.S.C. § 8101(2).

14

G.G., 58 ECAB 389 (2007).

15

J.M., 58 ECAB 448 (2007); id.; David P. Sawchuck, 57 ECAB 316 (2006); Allen C. Hundley, 53 ECAB
551 (2002).
16

See C.B., Docket No. 09-2027 (issued May 12, 2010) (a medical report may not be considered as probative
medical evidence if there is no indication that the person completing the report qualifies as a physician as defined in
5 U.S.C. § 8101(2).
17

See Linda I Sprague, 48 ECAB 386, 389-90 (1997).

6

ORDER
IT IS HEREBY ORDERED THAT the May 21, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 18, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-477
Issued: May 7, 1007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 11, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ November 21, 2006 decision denying her claim for compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
appeal.
ISSUE
The issue is whether appellant established entitlement for wage-loss compensation on
September 7, 2006 while attending a medical appointment.
FACTUAL HISTORY
On April 22, 2004 appellant, then a 50-year-old custodian, filed an occupational disease
claim alleging that she injured her right knee as a result of employment activities. The Office
accepted her claim for a right lateral meniscus tear.
On September 14, 2006 appellant filed a claim for compensation for September 7, 2006.
In the portion of the CA-7 form completed by the employing establishment, B. Freeman, I.C.

Specialist stated, “Agency verifies [four hours leave without pay (LWOP)].” In support of her
claim, appellant submitted a time analysis form, dated September 14, 2006, indicating that she
took four hours of LWOP on September 7, 2006 for the purpose of attending a doctor’s
appointment. Appellant also submitted a billing statement from Orthopedic Associates of
Central Maryland, reflecting that she attended an appointment on September 7, 2006 with
Dr. Nicholas Grosso, a Board-certified orthopedic surgeon, for treatment of a bilateral knee
condition.1 A note dated September 7, 2006 from Dr. Grosso’s office reflected that appellant
received bilateral Supartz injections in her knees on that date. Appellant submitted physician’s
notes from Dr. Grosso’s office for the period February 6 through August 31, 2006.
On October 17, 2006 the Office informed appellant that the information submitted was
insufficient to establish her claim as she had submitted no medical evidence. The Office
afforded her 30 days to submit additional evidence. Appellant submitted a letter from
Dr. Grosso certifying that she was seen in his office on September 7, 2006 and was able to return
to work on September 8, 2006.
By decision dated November 17, 2006, the Office denied appellant’s claim for leave buy
back on the grounds that the evidence did not establish that she was disabled on September 7,
2006 due to her accepted employment injury. On November 21, 2006 the Office reissued its
November 17, 2006 decision, denying appellant’s claim for compensation for September 7, 2006
on the same grounds.
LEGAL PRECEDENT
With respect to claimed disability for medical treatment, section 8103 of the Federal
Employees’ Compensation Act provides for medical expenses, along with transportation and
other expenses incidental to securing medical care for injuries.2 Appellant would be entitled to
compensation for any time missed from work due to medical treatment for an employmentrelated condition.3 However, the Office’s obligation to pay for medical expenses and expenses
incidental to obtaining medical care, such as loss of wages, extends only to expenses incurred for

1

The record reflects that on September 6, 2006 appellant submitted a claim for compensation and supporting
documentation for time lost on August 31, 2006. By decision dated January 16, 2007, the Office denied her claim.
As the appeal in this case was filed on December 11, 2006 prior to the issuance of the Office’s final decision, the
Board does not have jurisdiction to consider the merits of appellant’s claim for compensation for August 31, 2006.
The Board has jurisdiction to consider and decide appeals from the final decisions of the Office in any case arising
under the Act. There shall be no appeal with respect to any interlocutory matter disposed of by the Office during the
pendency of a case. At the time appellant filed her appeal with the Board on December 11, 2006, her claim for
compensation for August 31, 2006 was in an interlocutory posture. See 20 C.F.R. § 501.2(c).
The Board also notes that on October 30, 2006 appellant submitted a claim for compensation and supporting
documentation for time lost on October 23, 2006. As of the date of the filing of this appeal, the Office had not
issued a final decision on appellant’s claim. As the matter is in an interlocutory posture, the Board does not have
jurisdiction to consider the merits of the claim. Id.
2

5 U.S.C. § 8103(a).

3

Vincent E. Washington, 40 ECAB 1242 (1989).

2

treatment of effects of any employment-related condition.4 The Board will not require the Office
to pay compensation for disability in the absence of medical evidence directly addressing the
particular period of disability for which compensation is claimed. To do so would essentially
allow employees to self-certify their disability and entitlement to compensation.5
As a rule, no more than four hours of compensation or continuation of pay should be
allowed for routine medical appointments. 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.6
ANALYSIS
Appellant filed a claim for compensation for time lost on September 7, 2006 while she
attended a medical appointment. Medical evidence submitted in support of appellant’s claim
consists of a billing statement from Orthopedic Associates of Central Maryland, reflecting that
she attended an appointment on September 7, 2006 with Dr. Grosso for treatment of a bilateral
knee condition; a note dated September 7, 2006 from Dr. Grosso’s office reflecting that appellant
received bilateral Supartz injections in her knees on that date; and a letter from Dr. Grosso
certifying that appellant was seen in his office on September 7, 2006 and was able to return to
work on September 8, 2006.
Appellant is entitled to compensation for any time missed from work due to medical
treatment for an employment-related condition.7 The Office’s obligation to pay for medical
expenses and expenses incidental to obtaining medical care such as loss of wages, extends only
to expenses incurred for treatment of the effects of an employment-related condition.8 As a rule,
no more than four hours of compensation should be allowed for routine medical appointments.
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.9 In order for a
determination to be made as to the proper amount of time to be allowed, appellant must submit
evidence documenting the time spent for the required treatment. She submitted a time analysis
form indicating that she took four hours of LWOP on September 7, 2006 for the purpose of
attending a doctor’s appointment; a billing statement reflecting that she attended an appointment
on September 7, 2006 with Dr. Grosso for treatment of her knee condition; a September 7, 2006
note from Dr. Grosso’s office reflecting that she received Supartz injections in her knees on that
date; and a letter certifying that she was seen by Dr. Grosso on September 7, 2006. The Board
finds that the evidence of record establishes that appellant is entitled to compensation for time
4

Dorothy J. Bell, 47 ECAB 624 (1996).

5

See Fereidoon Kharabi, 52 ECAB 29 (2001).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8 (June 1999).

7

See Dorothy J. Bell, supra note 4; Vincent E. Washington, supra note 3; see also Federal (FECA) Procedure
Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8 (June 1999).
8

Zane H. Cassell, 32 ECAB 1537 (1981).

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8 (June 1999).

3

missed from work due to medical treatment for an employment-related condition on
September 7, 2006. However, the Board further finds that this case is not in posture for a
decision as to the hours of compensation that should be allowed for such treatment. The record
does not reflect the length of time appellant spent with Dr. Grosso on the date in question or the
time required for traveling to and from the appointment. The case must be remanded to the
Office for further development of the evidence, in order to determine the proper amount of time
to be allowed for appellant’s September 7, 2006 appointment with Dr. Grosso.
CONCLUSION
The Board finds that appellant is entitled to compensation for time missed from work due
to medical treatment for her employment-related condition. The Board further finds that this
case is not in posture for a decision as to a determination of the appropriate amount of time that
should be allowed for appellant’s September 7, 2006 medical appointment and shall be remanded
to the Office for further development.
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
November 21, 2006 decision is set aside and remanded for action consistent with this decision.
Issued: May 7, 1007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Cleveland, OH, Employer
)
___________________________________________ )
A.B., Appellant

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

Docket No. 09-204
Issued: September 11, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 27, 2008 appellant filed a timely appeal from an August 28, 2008 decision of
the Office of Workers’ Compensation Programs which denied his traumatic injury claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merit issue of
the case.
ISSUE
The issue is whether appellant has met his burden of proof to establish that he sustained a
left shoulder, left arm or cervical injury on July 5, 2008, as alleged.
FACTUAL HISTORY
On July 16, 2008 appellant, then a 51-year-old automation clerk, filed a claim alleging,
that on July 5, 2008 he injured his left arm and shoulder when he lifted full trays of mail. He
also alleged a pinched nerve in the left arm and shoulder region. Appellant stopped work on

July 5, 2008. The employing establishment controverted his claim noting that he did not provide
adequate medical evidence and based on a preexisting condition in his shoulder and neck.
By letter dated July 25, 2008, the Office advised appellant of the factual and medical
evidence needed to establish his claim. It requested that he submit a physician’s reasoned
opinion addressing the relationship of his left upper extremity condition and the July 5, 2008
incident.
Appellant submitted a July 16, 2008 statement. On July 5, 2008 he was preparing to
dispatch mail and placing full trays into a cage when he experienced pain in his left shoulder.
Appellant was not scheduled to work the next two days. Thereafter, he sought medical
treatment. In an undated statement, Cynthia Robinson, a coworker, noted appellant’s complaint
of shoulder pain after working on a mail machine. On July 16, 2008 Michelle A. Dozier,
appellant’s supervisor, noted that appellant reported sustaining a left shoulder injury on July 4,
2008 while pulling mail. She advised that appellant was off work for two days but experienced
persistent left shoulder pain and sought medical treatment.
Appellant submitted a July 11, 2008 disability certificate from Dr. Harold Mars, a Boardcertified family practitioner, who advised that appellant was totally disabled due to an
exacerbation of his symptoms. Dr. Mars recommended that appellant remain off work until
July 25, 2008. He did not provide a specific medical diagnosis. In a July 23, 2008 note,
Dr. Mars diagnosed cervical spondylosis and referred appellant to a pain management clinic. In
a disability certificate dated July 23, 2008, he estimated that appellant would be totally disabled
from July 5 to August 11, 2008 pending a pain management consult and treatment.
In a decision dated August 28, 2008, the Office denied appellant’s claim on that grounds
that the medical evidence was not sufficient to establish that he sustained an injury caused by the
July 5, 2008 work incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
filed within the applicable time limitation of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or occupational disease.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
1

5 U.S.C. §§ 8101-8193.

2

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

2

conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.3 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability, claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.4
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5 The weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.6
ANALYSIS
Appellant alleged that he sustained a left arm, shoulder and cervical injury when he lifted
full trays of mail on July 5, 2008 while performing his clerk duties. The evidence supports that
the incident on July 5, 2008 occurred as alleged. The Board finds, however, that the medical
evidence is insufficient to establish that appellant sustained an injury causally related to the
July 5, 2008 work incident.
On July 25, 2008 the Office advised appellant of the medical evidence needed to
establish his claim. Appellant did not submit a rationalized medical report from an attending
physician addressing how the July 5, 2008 work incident caused or aggravated his claimed left
upper extremity or neck condition.
In a July 11, 2008 disability certificate, Dr. Mars noted only that appellant was totally
disabled until July 25, 2008 due to an exacerbation of his symptoms. In a July 23, 2008
disability certificate, he estimated that appellant would be totally disabled from July 5 to
August 11, 2008 pending a pain management consultation and treatment. However, these notes

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Id.

5

Leslie C. Moore, 52 ECAB 132 (2000).

6

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).

3

did not provide a diagnosis of a medical condition,7 note a history of the July 5, 2008 incident,8
or offer any opinion on how the incident at work caused or aggravated appellant’s condition.9
Consequently, these reports are of diminished value and do not establish appellant’s traumatic
injury claim. On July 23, 2008 Dr. Mars diagnosed cervical spondylosis and referred appellant
to a pain management clinic. However, as above, this brief report is insufficient to establish the
claim. Dr. Mars did not provide any history of injury or address how the employment incident
caused or aggravated the diagnosed medical condition. He did not describe how the July 5, 2008
incident involving lifting mail trays cause or contributed to the diagnosed cervical spondylosis.
Appellant’s burden of proof includes the submission of rationalized medical opinion
evidence, based on a complete factual and medical background, supporting such a causal
relationship between the employment and any diagnosed condition. The evidence from Dr. Mars
is insufficient to meet appellant’s burden of proof. The record contains no other medical
evidence.10 Because appellant has not submitted reasoned medical evidence explaining how and
why his left arm, shoulder and cervical condition is employment related, he has not established
an injury resulting from the accepted incident.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor is
the belief that his condition was caused, precipitated or aggravated by his employment sufficient
to establish causal relationship.11 Causal relationships must be established by rationalized
medical opinion evidence. The Office properly denied appellant’s claim for compensation.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a left arm, shoulder or cervical injury causally related to the July 5, 2008 employment
incident.

7

See Deborah L. Beatty, 54 ECAB 340 (2003) (where the Board found that in the absence of a medical report
providing a diagnosed condition and a reasoned opinion on causal relationship with the employment incident,
appellant did not meet her burden of proof).
8

Frank Luis Rembisz, 52 ECAB 147 (2000) (medical opinions based on an incomplete history have little
probative value).
9

A.D., 58 ECAB ___ (Docket No. 06-1183, issued November 14, 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).
10

After the August 28, 2008 decision appellant submitted additional evidence. However, the Board may not
consider new evidence on appeal; see 20 C.F.R. § 501.2(c). This decision does not preclude appellant from filing
for reconsideration with the Office and submitting additional medical evidence in support of his claim.
11

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

4

ORDER
IT IS HEREBY ORDERED THAT the August 28, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 11, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-1032
Issued: October 25, 2019

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 April 10, 2019 appellant, through counsel, filed a timely appeal from a March 18, 2019
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 has met her burden of proof to establish continuing
employment-related disability or residuals after March 5, 2015 causally related to her accepted
June 18, 1990 employment injury.
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.

FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On June 21, 1990 appellant, then a 24-year-old letter carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 18, 1990 she sprained her left ankle as she descended stairs
while delivering mail in the performance of duty. OWCP accepted the claim for right posterior
tibial tendinitis.
In 1995 Dr. Samuel J. Chmell, a Board-certified orthopedic surgeon, began treating
appellant. He submitted progress notes through July 12, 2012 describing appellant’s condition and
treatment.
Appellant stopped work on July 26, 2012 and filed claims for compensation (Form CA-7).
On July 26, 2012 Dr. Chmell opined that aggravation of venous varicosities in appellant’s right
leg were secondary to her previous diagnoses. He concluded that appellant’s condition had
deteriorated considerably and she was “fully incapacitated for duty.”
In an August 11, 2012 report, Dr. Christopher Gross, a Board-certified psychiatrist serving
as a district medical adviser (DMA), recommended that OWCP not accept right venous varicosities
as employment related.
OWCP found that a conflict in medical evidence had been created between Dr. Chmell and
the DMA regarding whether the conditions of left tibialis tendinitis and right venous varicosities
were employment related, and referred appellant to Dr. Mukund Komanduri, a Board-certified
orthopedic surgeon, for an impartial medical examination. In a November 26, 2012 report,
Dr. Komanduri related that the diagnosis of left posterior tibial tendinitis was barely supported on
the most recent magnetic resonance imaging (MRI) scan and was not clinically supported, and that
appellant’s right venous varicosities were not employment related. He concluded that appellant
had no residuals or physical limitations resulting from the 1990 employment injury.
Appellant retired
September 6, 2013.

from

the

employing

establishment

on

disability,

effective

By decision dated December 4, 2013, OWCP terminated appellant’s wage-loss and
medical benefits, effective November 25, 2013, finding that the special weight of the medical
evidence rested with the opinion of Dr. Komanduri, the impartial medical examiner (IME).
Appellant subsequently requested a hearing. By decision dated June 6, 2014, an OWCP
hearing representative found that no conflict had existed between the opinions of Dr. Chmell and
the DMA because the opinion of the DMA was not of equal weight to that of Dr. Chmell. She
instead found that a conflict existed between the opinions of Dr. Chmell and Dr. Komanduri. The

3

Docket No. 16-0010 (issued April 1, 2016); Order Dismissing Appeal, Docket No. 18-0955 (issued
October 19, 2018).

2

hearing representative therefore vacated the December 4, 2013 decision and ordered OWCP to
arrange an appropriate referee examination.
In November 2014, OWCP referred appellant to Dr. Ira B. Kornblatt, a Board-certified
orthopedic surgeon, for an impartial medical examination. In a December 3, 2014 report,
Dr. Kornblatt reviewed the medical record, the statement of accepted facts (SOAF), noted
appellant’s history of injury, and described physical examination findings. He advised that she
had pes planovalgus bilaterally and well-maintained ankle, hindfoot, midfoot, and forefoot range
of motion. Dr. Kornblatt opined that appellant’s right venous varicosity was a presumed diagnosis,
based on localized swelling and palpation of an area in the right lower extremity, but he found no
evidence that the 1990 employment injury caused this condition or ongoing posterior tibial
tendinitis. He indicated that she had no work-related disability as a result of the 1990 left ankle
sprain, and her disability at that time was caused by the degenerative process due to the anatomy
of her foot and ankle as well as her obesity. Dr. Kornblatt concluded that there were no objective
findings to substantiate ongoing subjective complaints and, as such, there was no evidence of
residuals of the 1990 employment injury. He therefore concluded that further treatment for the
employment injury was not needed.
By decision dated March 5, 2015, OWCP terminated appellant’s wage-loss compensation
and medical benefits, effective that date, finding that the weight of the medical evidence rested
with the opinion of Dr. Kornblatt, the IME.
Appellant subsequently requested reconsideration. By decision dated June 16, 2015,
OWCP denied modification of the March 5, 2015 decision.
Appellant continued to request reconsideration. By decisions dated June 16 and August 20,
2015, OWCP denied merit review.
Appellant thereafter appealed to the Board. By decision dated April 1, 2016, the Board
affirmed the August 20 and June 16, 2015 decisions, finding that the special weight of the medical
evidence rested with the opinion of Dr. Kornblatt and that OWCP had therefore met its burden of
proof to terminate appellant’s compensation benefits on March 5, 2015. The Board further found
that appellant had not met her burden of proof to establish that she had continuing employmentrelated disability or conditions after that date causally related to the June 18, 1990 employment
injury. Finally, the Board found that OWCP had properly denied appellant’s request for
reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).4
On October 21, 2016 appellant, through counsel, requested reconsideration and submitted
a May 9, 2016 report in which Dr. Chmell indicated that appellant continued to require monthly
medical treatment for the residuals of her accepted work-related conditions.
By decision dated February 24, 2017, OWCP denied modification of its March 5, 2015
decision. It noted that Dr. Chmell had been on one side of the conflict which was resolved by
Dr. Kornblatt, the IME, and found that the evidence submitted on reconsideration was of little
probative value and was therefore insufficient to meet appellant’s burden of proof to establish
continued work-related disability.
4

Id.

3

On April 12, 2017 appellant, through counsel, requested reconsideration and submitted a
March 23, 2017 report in which Dr. Chmell again disagreed with the findings and conclusions of
Dr. Kornblatt, the IME. Dr. Chmell referenced a medical article which he maintained supported
that Dr. Kornblatt’s diagnosis of flat foot developed with chronic permanent posterior tibial
tendinitis/dysfunction.
By decision dated June 26, 2017, OWCP denied modification is its prior decisions. It noted
that, although Dr. Chmell referenced a medical publication, it was not found in the record. OWCP
again found that the evidence submitted was of insufficient probative value to establish continuing
employment-related disability.
On August 30, 2017 appellant, through counsel, requested reconsideration and submitted
an August 3, 2017 report in which Dr. Chmell opined that appellant’s initial left ankle injury,
accepted for a sprain, should be expanded to include the additional condition of left posterior tibial
tendinitis.
In a September 1, 2017 report, Dr. Chmell opined that medical records
contemporaneous with the employment injury clearly indicated that appellant’s left posterior tibial
tendinitis was a direct result of the June 18, 1990 employment injury when she fell on porch steps
while delivering mail. These included a July 29, 2991 report from Dr. Michele Carlon, a Boardcertified internist, and a February 21, 1991 report from Dr. J. Galante, a Board-certified orthopedic
surgeon. Dr. Chmell indicated that he had forwarded the aforementioned medical publication. On
October 26, 2017 and February 1, 2018 Dr. Chmell noted that he had examined appellant on those
dates and advised that she continued to have complaints and objective abnormalities due to workrelated conditions affecting her ankles and feet that required ongoing treatment.
By decision dated March 16, 2018, OWCP denied modification of its prior decisions. It
found that Dr. Chmell had been on one side of the conflict in medical evidence and concluded that
he neither provided new evidence or discussed other causes of appellant’s condition, nor did he
explain why her condition had remained active after she left employment. OWCP therefore
concluded that the special weight of the medical evidence remained with the opinion of
Dr. Kornblatt, the IME.
Appellant, through counsel, filed an appeal with the Board. By order dated October 19,
2018, the Board dismissed the appeal at counsel’s request.5
On October 22, 2018 appellant, through counsel, requested reconsideration and in support
resubmitted evidence already of record. In a July 29, 1991 report, Dr. Carlon indicated that
appellant could have a posterior tibial injury. On August 22, 1991 Dr. Carlon had noted that a left
ankle MRI scan of the left ankle revealed a small amount of fluid within the ankle and that
appellant had developed left leg pain and numbness which was shown to be bilateral L5-S1
radiculopathy on electrodiagnostic studies, probably brought on by her poor posture from limping.
In a November 15, 1990 report, Dr. Prieto advised that appellant appeared to have some mild
residual posterior tibial tendinitis.
In a July 16, 2018 report, Dr. Chmell advised that the medical records from the time
appellant was injured indicated that she had an injury to her posterior tibial tendon of her left ankle.
He noted that since that time, despite continuous complaints, objective findings, and treatment, the
5

Id.

4

condition had not resolved. Dr. Chmell concluded that it was a permanent injury which caused
incapacity and disability.
By decision dated March 18, 2019, OWCP again denied modification of its prior decisions.
It noted that the reports of Dr. Prieto, Dr. Galante, and Dr. Carlon, referenced by Dr. Chmell had
been reviewed by Dr. Kornblatt, who resolved the conflict between Dr. Chmell and
Dr. Komanduri. OWCP concluded that appellant had not submitted medical evidence of sufficient
probative value to refute Dr. Kornblatt’s opinion.
LEGAL PRECEDENT
Once OWCP meets its burden of proof to terminate a claimant’s compensation benefits,
the burden shifts to the claimant to establish that he or she has continuing residuals or disability
causally related to the accepted employment injury. 6 To establish causal relationship between the
condition as well as any attendant disability claimed and the employment injury, an employee must
submit rationalized medical evidence based on a complete medical and factual background,
supporting such a causal relationship. 7 A claimant must establish by the weight of the reliable,
probative, and substantial evidence that he or she had an employment-related disability which
continued after termination of compensation benefits. 8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish continuing
employment-related residuals or disability after March 5, 2015 causally related to her accepted
June 18, 1990 employment injury.
As the Board previously affirmed the termination of appellant’s wage-loss compensation
and medical benefits on March 5, 2015, absent further merit review of this issue by OWCP
pursuant to section 8128 of FECA, this issue is res judicata.9 Therefore the only issue for
consideration on appeal is continuing disability following the termination.
Following the Board’s April 1, 2016 decision, appellant requested reconsideration. On
reconsideration appellant submitted reports from Dr. Chmell who continued to note his
disagreement with Dr. Kornblatt’s IME opinion. The Board, however, notes that Dr. Chmell had
been on one side of the conflict in medical evidence which Dr. Kornblatt resolved. Reports from
a physician who was on one side of a medical conflict are insufficient to overcome the special
weight accorded the IME, or to create a new conflict. 10 Therefore this report is insufficient to
establish appellant’s claim for continuing disability.

6

T.W., Docket No. 18-1573 (issued July 19, 2019).

7

Id.

8

O.W., Docket No. 19-0316 (issued June 25, 2019).

9

O.W., id.

10

L.C., Docket No. 18-1759 (issued June 26, 2019); I.J., 59 ECAB 408 (2008).

5

Appellant also submitted evidence previously of record, including reports from
Drs. Carlon, Galante, and Prieto, all of which predated the termination of her compensation
benefits and are therefore irrelevant to the issue of continuing disability.11 As such, the Board
finds that appellant has not met her burden of proof to establish her claim.
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 her burden of proof to establish that she had
continuing employment-related disability or residuals after March 5, 2015 due to a June 18, 1990
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 18, 2019 decision of the Office of
Workers’ Compensation Program is affirmed.
Issued: October 25, 2019
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

11

Supra note 8.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Chicago, IL, Employer
__________________________________________

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

Docket No. 19-0251
Issued: May 16, 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 31, 2018 appellant filed a timely appeal from an August 23, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of total
disability commencing February 4, 2016 causally related to his accepted left knee condition.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following OWCP’s August 23, 2018 decision on
appeal. 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.

FACTUAL HISTORY
On February 4, 2016 appellant, then a 49-year-old federal air marshal, filed a traumatic
injury claim (Form CA-1) alleging that, on that date, he struck his left knee on a plyometric box
while exercising pursuant to the employing establishment’s physical fitness plan. He did not stop
work. By decision dated May 25, 2016, OWCP accepted the claim for prepatellar bursitis of the
left knee.
In a February 2, 2018 report, Dr. Anupam Basu, a Board-certified diagnostic radiologist,
reported findings of a magnetic resonance imaging (MRI) scan of appellant’s right knee. He noted
moderate tricompartmental osteoarthritis, intact cruciates and collaterals, questionable
degenerative tear of the posterior horn of the lateral meniscus, and large joint effusion.
In a February 9, 2018 report, Dr. Joshua M. Alpert, Board-certified in sports medicine,
provided a follow-up to the MRI scan of appellant’s right knee. He assessed right knee lateral
meniscus tear and mild-to-moderate arthritic changes in the right knee. Dr. Alpert noted the date
of injury was January 20, 2016.
In a February 15, 2018 operative report, Dr. Alpert discussed surgical procedures he
performed to treat appellant’s right knee lateral meniscus tear. He noted the operation was
performed to treat right lateral knee pain that did not respond to conservative measures, although
it would not improve any pain appellant experienced from arthritic changes.
On June 26, 2018 appellant filed a notice of recurrence (Form CA-2a) alleging that his left
knee condition had worsened. He indicated that his condition had been a continuous problem since
the February 4, 2016 injury and the symptoms he experienced included swelling of his left knee
when he added continuous pressure. Appellant noted permanent limitations including no running,
jogging, or jumping rope, which began following the original injury.
By development letter dated July 23, 2018, OWCP advised appellant of the deficiencies of
his claim. It requested additional medical evidence from him and provided a questionnaire for his
completion. OWCP afforded appellant 30 days to respond. No further evidence was received.
By decision dated August 23, 2018, OWCP denied appellant’s claim, finding that the
evidence of record was insufficient to establish that he was totally disabled from work due to an
objective worsening of his accepted work-related left knee condition.3
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.4 This term also means an inability to work because a light-duty assignment made
3

It noted the case had been accepted for a left knee injury, but the medical evidence referred to a right knee injury.
OWCP further noted that appellant returned to work in a full-duty capacity on February 5, 2016 and was not losing
did not lose any time from work due to this injury.
4

20 C.F.R. § 10.5(x); see S.F., 59 ECAB 525 (2008).

2

specifically to accommodate an employee’s physical limitations, and which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations.
OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. That change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.5
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning.6 Where no such rationale is present,
the medical evidence is of diminished probative value.7
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish recurrence of
total disability commencing February 4, 2016, causally related to his accepted left knee condition.
None of the physicians of record mentioned appellant’s accepted left knee condition. As
well, Dr. Alpert’s February 9, 2018 report indicated a date of injury of January 20, 2016, which
predates the February 4, 2016 accepted injury.
Further, Drs. Basu and Alpert did not document a spontaneous worsening of appellant’s
left knee condition resulting in total disability on or after February 4, 2016.8 Rather, they discussed
examinations and surgery related to a right knee condition. As Drs. Basu and Alpert did not relate
appellant’s disability to the accepted left knee injury, their reports fail to establish a work-related
recurrence of disability.9
For these reasons, the Board finds that appellant has not met his burden of proof.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); J.D., Docket
No. 18-1533 (issued February 27, 2019); Kenneth R. Love, 50 ECAB 193, 199 (1998).
6

J.D., Docket No. 18-0616 (issued January 11, 2019); see C.C., Docket No. 18-0719 (issued November 9, 2018);
see also Ronald A. Eldridge, 53 ECAB 218 (2001).
7

Mary A. Ceglia, Docket No. 04-0113 (issued July 22, 2004).

8

J.D., supra note 6; J.H., Docket No. 12-1848 (issued May 15, 2013).

9

Id.

3

On appeal appellant argues that he suffered a recurrence of disability because his
discomfort worsened since the original February 4, 2016 employment injury. However, the
medical evidence of record does not include bridging evidence to show a spontaneous worsening
of the accepted conditions, or that the newly diagnosed condition occurred over time as a result of
the accepted prepatellar bursitis, left knee.10 The Board, therefore, finds that appellant has not met
his burden of proof.11
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
total disability commencing February 4, 2016 causally related to his accepted left knee condition.
ORDER
IT IS HEREBY ORDERED THAT the August 23, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 16, 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

10

L.C., Docket No. 17-1788 (issued September 19, 2018).
January 19, 2018).
11

Id.; H.T., Docket No. 17-0209 (issued February 8, 2018).

4

See M.M., Docket No. 16-1851 (issued


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.K., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Portland, OR, Employer
__________________________________________

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

Docket No. 08-346
Issued: May 8, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 14, 2007 appellant filed a timely appeal of an August 17, 2007 decision of
the Office of Workers’ Compensation Programs, denying merit review of his claim. Since more
than one year has elapsed between the last merit decision on June 6, 2006 and the filing of this
appeal, the Board lacks jurisdiction to review the merits of the claim pursuant to 20 C.F.R.
§§ 501.2(c), 501.3(d)(2) and 501.6(c) and (d).
ISSUE
The issue is whether the Office properly determined that appellant’s application for
reconsideration was insufficient to warrant merit review of the claim pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. § 10.606.
FACTUAL HISTORY
On February 7, 2005 appellant filed a traumatic injury claim (Form CA-1) alleging that
on January 8, 2005 she sustained injury to her wrists when she was pushing and pulling a patient
in a geriatric chair. By decision dated April 22, 2005, the Office denied the claim for

compensation. The Office stated that the evidence was insufficient to establish an employment
incident as alleged, and the medical evidence did not establish an injury on January 8, 2005.
Appellant requested reconsideration and submitted additional factual and medical
evidence. In a decision dated June 6, 2006, the Office reviewed the case on its merits and denied
modification. The Office found that the medical evidence was insufficient to establish an injury
causally related to the January 8, 2005 employment incident.
By letter dated June 5, 2007, appellant requested reconsideration of her claim. She
submitted a September 27, 2006 report from Dr. Kyle Fuchs, an internist, indicating that she was
treated for respiratory symptoms. Dr. Fuchs stated that appellant had multiple painful areas and
he referred to left chest pain after an accident in 2005. Appellant also submitted an October 3,
2006 report from attending physician, Dr. Jason Fleiss, an occupational medicine specialist. The
diagnoses included carpal tunnel syndrome, hemoptysis, chronic pain, somatization disorder,
acute reaction to stress, hip and thigh sprain/strain and cervical sprain/strain. Dr. Fleiss noted
that appellant was not working and had retired from her nursing assistant position. He opined
that appellant was disabled.
The evidence submitted on reconsideration included Office of Personnel Management
documents relating to application for disability retirement and a May 4, 2005 statement regarding
Family Medical Leave Act (FMLA) that was previously of record. Appellant also submitted a
June 8, 2006 report from a physician’s assistant and a narrative statement regarding her disability
for work.
In a decision dated August 17, 2007, the Office found the request for reconsideration was
insufficient to warrant merit review of the claim.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,1 the Office’s regulations provides that a claimant may
obtain review of the merits of the claim by submitting a written application for reconsideration
that sets forth arguments and contains evidence that either: “(i) shows that [the Office]
erroneously applied or interpreted a specific point of law; (ii) advances a relevant legal argument
not previously considered by [the Office]; or (iii) constitutes relevant and pertinent evidence not
previously considered by [the Office].”2 Section 10.608(b) states that any application for
reconsideration that does not meet at least one of the requirements listed in section
10.606(b)(2) will be denied by the Office without review of the merits of the claim.3

1

5 U.S.C. § 8128(a) (providing that “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application”).
2

20 C.F.R. § 10.606(b)(2).

3

20 C.F.R. § 10.608(b); see also Norman W. Hanson, 45 ECAB 430 (1994).

2

ANALYSIS
Appellant submitted an application for reconsideration dated June 5, 2007. She referred
to “legal arguments” with respect to a memorandum dated May 4, 2005 regarding the FMLA that
was previously of record. The memorandum is not new evidence and does not advance a new
and relevant legal argument. The Board finds that appellant did not show that the Office
erroneously applied or interpreted a specific point of law, or advance a relevant legal argument
not previously considered by the Office.
With respect to the evidence submitted with the application for reconsideration, the
Board notes that to require the Office to reopen the case for review of the merits, the evidence
must be both new and relevant to the underlying merit issue. In this case, the June 6, 2006
Office decision had denied the claim on the grounds the medical evidence did not establish
causal relationship between a diagnosed condition and a January 8, 2005 employment incident.
Appellant must submit new and relevant medical evidence on causal relationship to warrant
reopening her claim for merit review. The medical reports from Dr. Fuchs and Dr. Fleiss are
new, but they are not relevant to the issue presented. Neither physician discussed the January 8,
2005 employment incident or provided an opinion on causal relationship between a diagnosed
condition and the employment incident. None of the evidence submitted is new and relevant
evidence sufficient to warrant merit review.4
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(2). Pursuant to 20 C.F.R. § 10.608, the Office properly denied the application for
reconsideration without reviewing the merits of the claim.
CONCLUSION
The Office properly denied the application for reconsideration without merit review of
the claim.

4

As to medical evidence from a physician’s assistant, this does not constitute competent medical evidence as a
physician’s assistant is not a physician under 5 U.S.C. § 8101(2). George H. Clark, 56 ECAB 162 (2004).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 17, 2007 is affirmed.
Issued: May 8, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.W., Appellant
and
DEPARTMENT OF THE ARMY, WHITE
SANDS MISSILE RANGE, NM, Employer
__________________________________________

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

Docket No. 11-191
Issued: October 17, 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 November 2, 2010 appellant filed a timely appeal from the May 14 and October 22,
2010 decisions of the Office of Workers’ Compensation Programs (OWCP) denying a schedule
award. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the schedule award
decisions.2
ISSUE
The issue is whether appellant sustained employment-related permanent impairment,
thereby entitling him to a schedule award.

1
2

5 U.S.C. §§ 8101-8193.

By decision dated April 28, 2010, OWCP found that appellant returned to work for the employing establishment
on June 1, 2009, that the position fairly and reasonably represented his wage-earning capacity. Because more than
180 days elapsed from this decision to the filing of the appeal, the Board lacks jurisdiction to review this decision
pursuant to 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On April 20, 2007 appellant, then a 52-year-old toxic materials handler, filed a traumatic
injury claim alleging that, on that date, while moving a scrap metal basket inside a metal hopper,
he felt a sharp pain in his lower back. On June 12, 2007 OWCP accepted his claim for sprain of
back, lumbar region. It also accepted the claim for lumbosacral radiculopathy, aggravation of
degeneration lumbar/lumbosacral spine and lumbar spondylolisthesis.
OWCP paid
compensation and medical benefits. On September 22, 2008 appellant underwent an L4-S1
laminectomy, facetectomy, transforaminal lumbar interbody arthrodesis with instrumentation L45, L5-S1; and posteriolateral fusion with pedicle screw instrumentation at L4-S1.
On February 24, 2010 appellant filed a claim for a schedule award. He submitted a
Maximum Medical Improvement and Impairment Rating Report by Dr. Kevin J. Sandberg, a
Board-certified physiatrist, dated January 28, 2010. Dr. Sandberg found that appellant had some
residual intermittent lumbar pain that was exacerbated by certain movements such as bending
and twisting at the waist. There were no significant residual radicular symptoms to the lower
extremities and appellant had been in a static and stable state for one year. Dr. Sandberg opined
that appellant’s impairment rating under the American Medical Association, Guides to the
Evaluation of Permanent Impairment (6th ed. 2009) was 21 percent of the whole person. This
was derived using class 3 impairment using the Regional Grid for Intervertebral Disc Herniation
and Alteration of Motion Segment Integrity at multiple levels with mild residual problems (grade
modifier of one).3
On March 17, 2010 OWCP referred the case to an OWCP medical adviser for his
determination as to percentage of impairment. In an April 28, 2010 report, OWCP’s medical
adviser determined that, although Dr. Sandberg appeared to have performed a correct evaluation,
the regulations only allow for impairment to scheduled members, and the spine and whole person
are not scheduled members. Accordingly, he was unable to recommend impairment for
appellant based on impairment of the spine or whole person. The medical adviser noted that
Dr. Sandberg indicated there were normal motor function and no sensory loss in the lower
extremities. He concluded that appellant had zero percent impairment of each lower extremity.
By decision dated May 14, 2010, OWCP denied appellant’s claim for a schedule award
on the grounds that there was no employment-related impairment due to a scheduled member or
function of the body as provided in section 8107 of FECA (5 U.S.C. § 8107).
On May 19, 2010 appellant requested review of the written record by an OWCP hearing
representative.
In a letter dated May 27, 2010, Dr. Sandberg stated that he was not familiar with OWCP
regulations stating that the spine and whole person are not scheduled members. He
recommended that appellant request a hearing so that someone could explain OWCP’s position
with regard to the impairment rating.

3

Dr. Sandberg also found that appellant’s impairment rating under the fifth edition of the A.M.A., Guides was 23
percent of the whole person.

2

By decision dated October 22, 2010, the hearing representative affirmed OWCP’s
May 14, 2010 decision.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. OWCP evaluates the degree of permanent impairment according to the standards
set forth in the specified edition of the A.M.A., Guides.6 The A.M.A., Guides has been adopted
by the implementing regulations as the appropriate standard for evaluating schedule losses.7
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the implementing regulations.8 Neither FECA nor the implementing federal
regulations provide for payment of a schedule award for the permanent loss of use of the back,
the spine or the body as a whole; a claimant is not entitled to such a schedule award.9 The Board
notes that section 8101(19) specifically excludes the back from the definition of organ.10 A
claimant may receive a schedule award for any permanent impairment to the upper or lower
extremities even though the cause of the impairment originated in the spine.11
ANALYSIS
OWCP accepted appellant’s claim for sprain of the lumbar region of back, lumbosacral
radiculopathy, aggravation of degeneration lumbar/lumbosacral spine and lumbar
spondylolisthesis. Appellant filed a claim for a schedule award.
In a March 17, 2010 evaluation, Dr. Sandberg opined that appellant had 21 percent
impairment of the whole person under the sixth edition of the A.M.A., Guides. FECA, however,
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any physician evaluating
permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule
Awards and Permanent Disability Claims, Chapter 2.808.6.a (January 2010).
7

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

8

Thomas J. Engelhart, 50 ECAB 319 (1999).

9

See Jay K. Tomokiyo, 51 ECAB 361 (2000).

10

5 U.S.C. § 8101(19).

11

Thomas J. Engelhart, supra note 8.

3

does not provide for impairment of the whole person.12 Furthermore, it does not provide for a
schedule award based on impairment to the back or spine.13 Appellant may only receive a
schedule award for impairment to the upper or lower extremities if such impairment is
established as being due to his accepted condition.14
The Board finds that the medical evidence does not support that appellant had any
impairment to his extremities related to his accepted employment injury. Dr. Sandberg indicated
that there was normal motor function and no sensory loss in the lower extremities. Based on
Dr. Sandberg’s evaluation OWCP’s medical adviser found that appellant had zero percent
impairment of each lower extremity resulting from the employment-related injury.
The Board finds that OWCP properly found that, pursuant to the A.M.A, Guides,
appellant had no permanent impairment to a scheduled member or function of the body as
defined in FECA.
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 established that he sustained an employmentrelated permanent impairment thereby entitling him to a schedule award.

12

N.D., 59 ECAB 344 (2008); R.P., Docket No. 10-2107 (issued May 19 2001).

13

A.S., Docket No. 10-1903 (issued May 20, 2011).

14

Id.

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 22 and May 14, 2010 are affirmed.
Issued: October 17, 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