United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 20-0543
Issued: November 30, 2020

Case Submitted on the Record

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

JURISDICTION
On January 13, 2020 appellant filed a timely appeal from a January 3, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 3, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish greater than 58
percent permanent impairment of the left lower extremity, for which she previously received
schedule award compensation.
FACTUAL HISTORY
On December 5, 1987 appellant, then a 28-year-old carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date she sustained a left knee injury when she bumped her knee
on the corner of her desk while in the performance of duty. She stopped work on December 6,
1987 and returned on December 15, 1987. OWCP accepted the claim for left knee contusion on
January 5, 1988. It authorized left knee arthroscopy and open lateral retinacular release, which
occurred on February 17, 1988. On April 20, 1988 OWCP expanded acceptance of the claim to
include left knee internal derangement.
On April 13, 1988 appellant filed a claim for a schedule award (Form CA-7). In support
of her claim, she submitted a June 29, 1989 report from Dr. Curtis W. Smith, a Board-certified
orthopedic surgeon. Dr. Smith provided appellant’s physical examination findings, diagnosed left
knee joint with chronic evidence of lateral subluxation and chondromalacia, and related that she
had 25 percent permanent impairment of her left lower extremity.
On October 13, 1989 a district medical adviser (DMA) reviewed the medical evidence,
including Dr. Smith’s report, and concluded that appellant had 30 percent permanent impairment
of the left lower extremity pursuant to the third edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),3 then in effect, due to left
knee contusion, arthroscopic surgery, and left knee internal derangement.
By decision dated October 30, 1989, OWCP granted appellant a schedule award for 30
percent permanent impairment of the left lower extremity. The period of the award ran from
June 28, 1989 to February 22, 1991.
OWCP subsequently received a September 27, 1991 report from Dr. Smith, who related
that appellant had 40 percent permanent impairment of the left lower extremity. He explained that
she had decreased range of motion (ROM) of the left knee, and increased effusion, pain, and
symptomatology.
On November 14, 1991 OWCP referred Dr. Smith’s September 27, 1991 report to a DMA
for review. In a November 15, 1991 report, the DMA using the third edition of the A.M.A., Guides
determined that appellant had a total of 58 percent permanent impairment of the left lower
extremity and noted September 27, 1991 as the date of maximum medical improvement (MMI).

3

A.M.A., Guides (3rd ed. 1988).

2

By decision dated November 29, 1991, OWCP granted appellant a schedule award for an
additional 28 percent permanent impairment of the left lower extremity. The period of the award
ran from September 27, 1991 to April 13, 1993.
OWCP authorized left knee arthroscopic surgery with debridement of scar tissue and
adhesions, which occurred on February 6, 1995; left knee partial medial meniscectomy, partial
lateral meniscectomy, chondroplasty of the patella, and synovectomy, plica excision, which
occurred April 16, 2014; left knee arthroscopy with partial lateral meniscectomy, which occurred
on October 19, 2015; and left knee partial meniscectomy, partial medial meniscectomy,
tricompartmental synovectomy, osteophytectomy of the notch, which occurred on May 15, 2017.
Appellant received wage-loss compensation on the supplemental rolls as of May 15, 2017 and on
the periodic rolls as of June 25, 2017.
On September 12, 2017 OWCP expanded acceptance of the claim to include left lower leg
other synovitis and tenosynovitis, left knee complex lateral meniscus tear, and noted the previously
accepted the conditions of left old bucket handle medial meniscus tear, left lower leg contusion,
left closed orbital floor fracture, and left lower leg traumatic arthropathy.
OWCP authorized a total left knee arthroplasty, which occurred on November 3, 2017.
On February 10, 2019 appellant filed claims for an additional schedule award (Form
CA-7).
In support thereof, appellant submitted a March 18, 2019 report from Dr. Stephen D.
Helper, a Board-certified orthopedic surgeon, who noted appellant’s physical examination findings
and opined that appellant had reached MMI.
Appellant, through her then-counsel, subsequently submitted a May 7, 2019 report from
Dr. Sami E. Moufawad, a Board-certified physiatrist and pain medicine physician. Dr. Moufawad
diagnosed left lower leg other synovitis and tenosynovitis, left knee complex lateral meniscus tear,
left old bucket handle medial meniscus tear, left lower leg and knee contusion, left closed orbital
floor fracture, and left lower leg traumatic arthropathy. Utilizing the diagnosis-based impairment
(DBI) method, he found that appellant had 31 percent permanent impairment of the left lower
extremity pursuant to the sixth edition of the A.M.A., Guides.4 Under Table 16-3, Knee Regional
Grid, page 511 of the A.M.A., Guides, Dr. Moufawad identified the class of diagnosis (CDX) as a
class 3 impairment for the diagnosis of fair result of the total knee replacement. He assigned grade
modifier for functional history (GMFH) of 1 in accordance with Table 16-6, page 516 due to
appellant’s limp and occasional use of a cane. Dr. Moufawad found that a grade modifier for
physical examination (GMPE) was inapplicable as it was used for class determination. He
assigned grade modifier for clinical studies (GMCS) of one in accordance with Table 16-8, page
519 as the clinical studies confirmed showed knee osteoarthritic changes. Using the net adjustment
formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), he calculated that appellant had
a net adjustment of -2, resulting in movement from the default value of C to A and corresponding
to 31 percent left lower extremity permanent impairment.

4

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

3

On June 18, 2019 OWCP forwarded a copy of the medical record and an updated SOAF to
Dr. Arthur S. Harris, a Board-certified orthopedic surgeon, serving as a DMA. In a June 24, 2019
report, Dr. Harris noted his review of the record, including Dr. Moufawad’s May 7, 2019 report.
He noted that appellant’s diagnosed left knee conditions did not meet the criteria discussed in
section 16.7, page 543 of the A.M.A., Guides to allow that the impairment be calculated under the
ROM method. Dr. Harris concurred with Dr. Moufawad’s permanent impairment rating of 31
percent left lower extremity, based upon her fair result following knee replacement with mild
motions deficits under Table 16-3, page 511 of the A.M.A., Guides.
By decision dated July 16, 2019, OWCP denied appellant’s request for an additional
schedule award.
In a letter dated July 23, 2019, appellant, through her then-counsel, requested a telephonic
hearing before a representative of OWCP’s Branch of Hearings and Review. The hearing was
held on November 4, 2019.
By decision dated January 3, 2020, OWCP hearing representative affirmed the July 16,
2019 decision.
LEGAL PRECEDENT
The schedule award provisions of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, 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. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing the
World Health Organization’s International Classification of Functioning, Disability and Health
(ICF).9 Under the sixth edition, for lower extremity impairments the evaluator identifies the
impairment of the CDX, which is then adjusted by grade modifiers of GMFH, GMPE, and

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at 10.404(a); see also S.C., Docket No. 19-1177 (issued August 27, 2020); Bernard A. Babcock, Jr., 52 ECAB
143 (2009).
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Chapter 3.700.2 and Exhibit 1 (January 2010).
9
A.M.A., Guides, page 3, section 1.3, The International Classification of Functioning, Disability, and Health (ICF):
A Contemporary Model of Disablement.

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GMCS.10 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11
The standards for evaluation of permanent impairment of an extremity under the A.M.A., Guides
are based on all factors that prevent a limb from functioning normally, such as pain, sensory deficit,
and loss of strength.12
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the nature and percentage of permanent
impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the
percentage of impairment specified.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish greater than 58
percent permanent impairment of her left lower extremity, for which she previously received
schedule award compensation.
In a May 7, 2019 report, Dr. Moufawad, utilized the DBI methodology and found that
appellant had 31 percent impairment of the left lower extremity due to a fair result of her total knee
replacement. Under Table 16-3, Knee Regional Grid, page 511 of the A.M.A., Guides,
Dr. Moufawad identified the diagnosis of total knee replacement as a class 3 impairment. He
applied GMFH, GMPE, and GMCS to the net adjustment formula, which resulted in a net
adjustment of -2, which moved the default value of C to A equaling a 31 percent permanent
impairment of the left lower extremity.
OWCP properly referred the evidence of record to DMA Dr. Harris. On June 24, 2019
Dr. Harris noted appellant’s accepted conditions and reviewed the medical record, including the
clinical findings of Dr. Moufawad. He properly explained that her left knee diagnoses did not
allow for a ROM rating under the A.M.A., Guides. Dr. Harris agreed with Dr. Moufawad’s 31
percent left lower extremity impairment rating, based upon appellant’s fair result following knee
replacement with mild motions deficits under Table 16-3, page 511 of the A.M.A., Guides.
As there is no probative medical evidence of record, in conformance with the sixth edition
of the A.M.A., Guides, establishing that appellant has greater than the 58 percent permanent
impairment of her left lower extremity previously awarded, the Board finds that appellant has not
met her burden of proof.

10

Id. at 493-556.

11

Id. at 521.

12

P.W., Docket No. 19-1493 (issued August 12, 2020); C.H., Docket No. 17-1065 (issued December 14, 2017);
E.B., Docket No. 10-0670 (issued October 5, 2010); Robert V. Disalvatore, 54 ECAB 351 (2003); Tammy L. Meehan,
53 ECAB 229 (2001).
13

See supra note 6 at Chapter 2.808.6(f) (March 2017).

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Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish greater than 58
percent permanent impairment of her lower extremity, for which she previously received schedule
award compensation.
ORDER
IT IS HEREBY ORDERED THAT the January 3, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 30, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.E., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Tampa, FL, Employer
__________________________________________

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

Docket No. 13-729
Issued: August 13, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On February 7, 2013 appellant, through her attorney, filed a timely appeal from the
January 30, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a two percent permanent impairment of her
right leg.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 44-year-old nurse, injured her right knee on January 24, 2008 when she
slipped and fell to the floor. OWCP accepted her claim for sprain of the right lateral collateral
ligament, derangement of the anterior and posterior horns of the right medial meniscus.
On May 22, 2008 Dr. Anthony Infante, an osteopath, performed arthroscopic surgery to
repair appellant’s torn right medial meniscus. He had appellant undergo a second procedure on
August 22, 2008 to repair a right knee skin wound with irrigation and debridement.
In order to determine appellant’s current condition and any permanent impairment due to
her accepted right knee conditions, OWCP referred her to Dr. William Dinenberg, Boardcertified in orthopedic surgery, for a second opinion examination. In a report dated July 18,
2012, Dr. Dinenberg reviewed the medical history and the statement of accepted facts and listed
findings on examination. He advised that appellant’s current objective findings included
effusion on her right knee with a range of motion of 0 to 95 degrees, positive medial joint line
tenderness and positive patellafemoral compression pain on the right. Dr. Dinenberg stated that
appellant had arthroscopic surgical findings which revealed grade 4 chondromalacia of the
patella and of the medial femoral condyle, in addition to a partial anterior cruciate ligament tear
through the anterior cruciate ligament; he asserted that this was stable with at least 80 percent
remaining.
On examination Dr. Dinenberg stated that appellant had objective findings which
supported a diagnosis of right knee sprain with partial anterior cruciate ligament tear and
degenerative joint disease of the right knee. He noted that she had a sprain of the lateral
collateral ligament and derangement of the medial meniscus but advised that it did not appear
that she had any tears of the medial meniscus and no evidence of a lateral collateral ligament
sprain. Dr. Dinenberg opined that the conditions either did not exist initially or had resolved. He
found that appellant had no impairment from these conditions. Appellant currently had
symptoms from her degenerative joint disease at the patellofemoral joint space and the medical
joint space. Dr. Dinenberg did not believe that appellant was at maximum medical
improvement. He recommended a right total knee arthroplasty.
In an August 8, 2012 report, Dr. Martin Fritzhand, Board-certified in orthopedic surgery,
rated a two percent impairment of the right lower extremity pursuant to the American Medical
Associations, Guides to the Evaluation of Permanent Impairment (sixth edition) (A.M.A.,
Guides). Under Table 16-3, Knee Regional Grid, Lower Extremity Impairments, at page 509;2
the section pertaining to contusion or other soft tissue lesion impairments, appellant’s right knee
condition yielded a class 1 rating for consistent motion deficits.3 Using the Adjustment Grid,
Functional History, at Table 16-6, page 516 of the A.M.A., Guides,4 Dr. Fritzhand found that
2

A.M.A., Guides 509.

3

The Board notes that although appellant underwent two surgeries on her right knee, both of which were
authorized by OWCP, Dr. Fritzhand chose to rate his diagnosis-based impairment based on appellant’s accepted
right knee arthritis.
4

A.M.A., Guides 516.

2

appellant had a grade modifier of 1 for functional history based on a score of 21 for a daily
activities lower limb questionnaire. With regard to the physical examination, he assigned a grade
modifier of one, for a mild problem, for minimal palpatory findings, consistently documented,
without observed abnormalities, pursuant to Table 16-7, section 16.3b at page 517.
Dr. Fritzhand found a grade modifier of 1 for clinical studies, a mild problem pursuant to Table
16-8, page 519 of the A.M.A., Guides.5 The August 10, 2011 x-ray confirmed the diagnosis of
arthritis. Dr. Fritzhand compared the net adjustments from functional history, physical
examination and clinical studies, all with grade modifiers of 1, at the net adjustment formula at
page 521 of the A.M.A., Guides. This yielded a diagnosis of class 1, mild problem, for a grade C
remaining C, which totaled a two percent right lower extremity impairment.6
On September 10, 2012 appellant filed a claim for a schedule award based on a partial
loss of use of her right lower extremity.
In an October 4, 2012 report, an OWCP medical adviser reviewed Dr. Fritzhand’s
findings and concurred that appellant had a two percent right leg impairment. He noted that an
August 10, 2011 x-ray showed an articular cartilage thickness of four millimeters; however, this
loss did not qualify for a separate impairment for arthritis under Table 16-3, page 511, the knee
regional grid.7
By decision dated January 30, 2013, OWCP granted appellant a schedule award for a two
percent permanent impairment of the right lower extremity. It ran for the period January 1 to
February 10, 2010, a total of 5.76 weeks of compensation.
LEGAL PRECEDENT
The schedule award provision of FECA8 and its implementing regulations9 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. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.10 The claimant has the burden of proving

5

Id. at 519.

6

Id. at 511.

7

Id. at 521.

8

5 U.S.C. § 8107.

9

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

10

Id.

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that the condition for which a schedule award is sought is causally related to his or her
employment.11
ANALYSIS
OWCP accepted a sprain of the right cruciate ligament and a torn medial meniscus of the
right knee. It granted appellant a schedule award for two percent impairment of the right leg,
relying on the impairment rating from Dr. Fritzhand.
The Board notes that the A.M.A., Guides directs examiners to rate diagnosis-based
impairments for the lower extremities pursuant to Chapter 16, which states at page 497, section
16.2a that impairments are defined by class and grade.12 In accordance with this section the
examiner is instructed to utilize the net adjustment formula outlined at pages 521-22 of the
A.M.A., Guides,13 to obtain the proper impairment rating. Dr. Fritzhand related his findings to
the applicable tables and figures of the A.M.A., Guides. He found that appellant had a two
percent impairment of the right lower extremity based on the Knee Regional Grid, Lower
Extremity Impairments at Table 16-3, page 509 of the A.M.A., Guides. Dr. Fritzhand applied
the section pertaining to contusion or other soft tissue lesion impairments, appellant’s right knee
condition yielded a class 1 rating for consistent motion deficits.14
OWCP’s medical adviser noted that appellant was entitled to the rating method which
afforded her the greater degree of impairment. He found that a diagnosis-based impairment
methodology was the preferred means of rating appellant’s right knee impairment. The medical
adviser stated that appellant underwent surgical treatment for both the medial meniscus and
anterior cruciate ligament laxity. Pursuant to page 389 of the A.M.A., Guides, “if more than one
diagnosis can be used, the highest causally related impairment rating should be used; this will
generally be the more specific diagnosis.”15 Based on this principle, the medical adviser found
that because anterior cruciate ligament laxity provided a higher rating, he would rely on this
diagnosis; there was no additional impairment for the partial meniscectomy.
Using the Adjustment Grid, Functional History, at Table 16-6, page 516 of the A.M.A.,
Guides,16 Dr. Fritzhand found that appellant had a grade modifier of 1 for functional history
based on a score of 21 for a daily activities lower limb questionnaire. With regard to physical
examination, he assigned a grade modifier of 1, for a mild problem, for minimal palpatory
findings, consistently documented, without observed abnormalities, pursuant to Table 16-7,
11

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

12

A.M.A., Guides 497.

13

Id. at 521-22.

14

The Board notes that although appellant underwent two surgeries on her right knee, both of which were
authorized by OWCP, Dr. Fritzhand chose to rate his diagnosis-based impairment based on appellant’s accepted
right knee arthritis.
15

A.M.A., Guides 389.

16

Id. at 516.

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section 16.3b, page 517. Dr. Fritzhand found a grade modifier of 1 for clinical studies, a mild
problem pursuant to Table 16-8, page 519 of the A.M.A., Guides.17 He noted an August 10,
2011 x-ray confirmed the diagnosis of arthritis.
Dr. Fritzhand applied the net adjustments from functional history, physical examination
and clinical studies, all with grade modifiers of 1, to the net adjustment formula at page 521 of
the A.M.A., Guides. This yielded a diagnosis of class 1, mild problem, for a grade C remaining
C, for two percent lower extremity impairment. Based on Dr. Fritzhand’s report, OWCP found
that he calculated impairment based on the applicable protocols and tables of the sixth edition of
the A.M.A., Guides. As noted, Dr. Fritzhand chose to rate his diagnosis-based impairment based
on appellant’s accepted arthritis condition, rather than according an impairment rating based on
the two surgeries she underwent to repair her torn medial meniscus and damaged skin. Pursuant
to Table 16-3, based upon the diagnosis of meniscal tear, appellant’s meniscal repair, rated as a
class C, would also result in a default rating of two percent permanent impairment of the right
knee.
On appeal, appellant’s attorney noted that Dr. Dinenberg, the second opinion physician,
advised that appellant was a candidate for right knee replacement surgery. He contends that,
based on Dr. Dinenberg’s opinion, appellant’s patellafemoral arthritis and the severity of her
right knee condition are clearly consequential to the work injury. Counsel asserted that, although
appellant is very young to be considered for knee replacement surgery and is not presently ready
to undergo this procedure, she has discussed the possibility of having surgery with her treating
physician. He contended that appellant was at maximum medical improvement with regard to
her knee condition since she declined surgery. Counsel contends that OWCP should remand the
case to include the consequential conditions mentioned in the reports of Dr. Infante and
Dr. Dinenberg.
Dr. Dinenberg discussed the possibility of total knee replacement surgery being
beneficial to appellant but did not explicitly recommend that she undergo the procedure. While
he noted that appellant was symptomatic from degenerative joint disease and patellofemoral
arthritis, the medical adviser found that the August 10, 2011 x-ray showed an articular cartilage
thickness of four millimeters, which was not sufficient to qualify for a separate impairment based
on arthritis. While counsel contends that appellant was at maximum medical improvement from
these conditions, this contradicted the opinion of Dr. Dinenberg, who did not believe that
appellant was fixed or stable from these conditions. While Dr. Dinenberg noted that the
statement of accepted facts listed the diagnoses of sprain of lateral collateral ligament and
derangement of medial meniscus as accepted conditions, he opined that either the conditions did
not exist initially or had resolved and found that appellant had no impairment from these
conditions. Neither he nor Dr. Infante, appellant’s treating physician, submitted an impairment
rating which evaluated her accepted knee condition in conformance with the A.M.A., Guides.18
17

Id. at 519.

18

The Board notes that a description of appellant’s impairment must be obtained from appellant’s physician,
which must be in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly
visualize the impairment with its resulting restrictions and limitations. See Peter C. Belkind, 56 ECAB 580,
585 (2005).

5

The reports of Drs. Dinenberg and Infante are of diminished probative weight as the physicians
did not correlate their findings to the applicable protocols of the sixth edition of the A.M.A.,
Guides. The Board finds that Dr. Fritzhand provided the only report which included an
impairment rating in accordance with the sixth edition of the A.M.A., Guides. OWCP properly
granted a schedule award for a two percent impairment of the right leg based on his examination.
Appellant submitted no other medical evidence to establish greater than two percent
impairment to her right leg. The Board will affirm the January 30, 2013 decision.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has two percent impairment to her right leg.
ORDER
IT IS HEREBY ORDERED THAT the January 30, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 13, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 10-398
Issued: September 7, 2010

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 30, 2009 appellant filed a timely appeal of a November 3, 2009 decision of
the Office of Workers’ Compensation Programs denying her request for reconsideration on the
grounds that it was untimely filed and failed to establish clear evidence of error. Because more
than one year has elapsed from the last Office merit decision dated April 7, 2008 to the filing of
this appeal on November 30, 2009, the Board lacks jurisdiction over the merits of this case
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
On November 6, 2006 appellant, then a 55-year-old medical supply technician, filed a
traumatic injury claim alleging that on October 8, 2006 she injured her lower back while pushing

and pulling medical equipment on carts in the performance of duty. She stopped work on
October 18, 2006 and returned to modified duty on October 24, 2006. The Office accepted
appellant’s claim for aggravated right wrist arthritis, aggravated degenerative lumbar
intervertebral discs, aggravated bilateral carpal tunnel syndrome and aggravated trochanteric
bursitis.
Initial medical reports from Dr. William Swedler, a Board-certified internist, noted
appellant’s medical history included cervical spine stenosis at C3-4, C4-5 and C5-6 with disc
herniation, bilateral carpal tunnel syndrome, fibromyalgia and trochanteric bursitis. Dr. Swedler
advised indefinite light duty.
On October 19, 2007 appellant filed a claim for compensation beginning
September 30, 2007. She continued submitting claims for compensation thereafter. Appellant
stopped work on September 30, 2007 and did not return.
In an October 23, 2007 attending physician’s report, Dr. Swedler diagnosed degenerative
arthritis of the cervical and lumbar spine with stenosis, post-traumatic degenerative joint disease
of the wrist and trochanteric bursitis. He indicated that appellant had been totally disabled since
July 3, 2007. On November 2, 2007 Dr. Swedler indicated that since the October 8, 2006 work
incident appellant had been unable to perform either full or light duty. He noted that work
activities caused pain and undue stress and advised that appellant was disabled from work.
In a December 10, 2007 report, Dr. Stephen Chester, an osteopath specializing in
emergency medicine, diagnosed chronic low back pain, resolved abdominal pain and history of
post-traumatic stress disorder. He advised that appellant follow up with her primary care
physician in three days.
On November 13, 2007 the Office referred appellant to Dr. Julie Wehner, a Boardcertified orthopedic surgeon, for a second opinion. In a December 12, 2007 report, Dr. Wehner
noted appellant’s history including that she was discharged from the army with 50 percent
medical disability due to carpal tunnel syndrome, for which she underwent a release in 1986.
She noted examination findings and related that appellant reported she had been diagnosed with
rheumatoid arthritis. Dr. Wehner diagnosed lumbar strain and indicated it was unclear if
appellant had rheumatoid arthritis as there was no medical documentation. She noted that, if
appellant had rheumatoid arthritis, it might require specific work limitations. Dr. Wehner opined
that, based on the October 8, 2006 lumbar strain injury, there was no reason appellant could not
return to full duty without work limitations. In a work capacity evaluation dated December 12,
2007, she advised that appellant could perform her usual job for eight hours per day.
The Office referred appellant to Dr. Mukund Komanduri, a Board-certified orthopedic
surgeon, to resolve a conflict in medical opinion between Drs. Swedler and Wehner regarding
whether appellant was disabled. In an April 2, 2008 report, Dr. Komanduri provided appellant’s
detailed history and listed examination findings. He found evidence of bilateral carpal tunnel
syndrome, mild thenar atrophy, no range of motion deficits in the wrists and no gross sensory
deficits despite complaints of numbness. Dr. Komanduri opined that appellant’s complaint of
bilateral carpal tunnel syndrome, degenerative spinal stenosis, trochanteric bursitis and wrist
arthritis was not caused or aggravated by work trauma. He noted no physical findings supported

2

radiculopathy and there was evidence of symptom fabrication. Dr. Komanduri opined that
appellant’s preexisting degenerative disease, wrist arthritis, trochanteric bursitis and bilateral
carpal tunnel syndrome should not be considered work related. He explained that appellant did
not do repetitive wrist flexion at work and simply pushing a cart would not cause or aggravate
this condition beyond normal carpal tunnel syndrome and wrist arthritis. Dr. Komanduri noted
that it appeared appellant did sustain low back strain of some sort on October 8, 2006 but that he
did not believe this caused or aggravated lumbar intervertebral disc disease or trochanteric
bursitis. He further noted that a lumbar strain would have resolved with treatment within three
months from the date of injury. Dr. Komanduri opined that appellant’s injury had resolved
without permanent disability or need for further treatment or work restrictions. He further
opined that other preexisting conditions were unrelated to this claim.
In an April 7, 2008 decision, appellant denied appellant’s claim for compensation
beginning September 30, 2007 finding that the weight of the medical evidence supported that
appellant was not totally disabled from work due to her accepted work injury.1
On November 29, 2008 appellant’s attorney requested a telephone hearing for the
Office’s decision “dated November 25, 2008.”
In a December 17, 2008 decision, the Office denied appellant’s request for a telephone
hearing as untimely filed as the request was filed more than 30 days after the April 7, 2008
decision. It noted that the matter could be further addressed through reconsideration.
In an October 19, 2009 letter, appellant’s attorney requested reconsideration. He
acknowledged that the request was more than one year after the April 7, 2008 Office decision but
asserted that an accompanying April 15, 2009 medical report established clear evidence of error.
Appellant submitted an April 15, 2009 report with an illegible signature noting that she had
confirmed stenosis of the lumbar and cervical spine. The report also noted that appellant had
right wrist tendinitis, bursitis, right trochanteric bursitis and fibromyalgia. It further noted that
on October 8, 2006 appellant was pushing a cart at work that exaggerated her conditions and
resulted in severe cervical radiculopathy, lumbar radiculopathy, and wrist and elbow tendinitis.
The report listed work restrictions and advised that appellant was fully disabled from work.
In a November 3, 2009 decision, the Office denied appellant’s reconsideration request
finding it was untimely filed and did not establish clear evidence of error.
LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.2 It
will not review a decision denying or terminating a benefit unless the application for review is

1

On May 7, 2008 appellant authorized her attorney to represent her. On November 25, 2008 the Office provided
counsel with a copy of the April 7, 2008 decision.
2

5 U.S.C. § 8128(a).

3

filed within one year of the date of that decision.3 In implementing the one-year time limitation,
the Office’s procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision. However, a right to
reconsideration within one year accompanies any subsequent merit decision on the issues.4
When an application for review is untimely, the Office undertakes a limited review to
determine whether the application presents clear evidence that the Office’s final merit decision
was in error.5 Its procedures state that the Office will reopen a claimant’s case for merit review,
notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607(a), if the claimant’s
application for review shows clear evidence of error on the part of the Office.6 In this regard, the
Office will limit its focus to a review of how the newly submitted evidence bears on the prior
evidence of record.7
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record,
and whether the new evidence demonstrates clear error on the part of the Office. To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to raise a substantial question as to the correctness of the Office’s decision. The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of the Office, such that the Office abused its discretion in denying merit
review in the face of such evidence.8
ANALYSIS
The Board finds that the Office properly found that appellant filed an untimely request
for reconsideration. The one-year period for requesting reconsideration begins on the date of the
original decision. A right to reconsideration within one year accompanies any subsequent merit
decision on the issues. This includes any hearing or review of the written record decision, any
denial of modification following reconsideration, any merit decision by the Board, and any merit

3

20 C.F.R. § 10.607; see also D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007).

4

Veletta C. Coleman, 48 ECAB 367 (1997).

5

A.F., 59 ECAB ___ (Docket No. 08-977, issued September 12, 2008).

6

E.R., 60 ECAB ___ (Docket No. 09-599, issued June 3, 2009).

7

D.G., 59 ECAB ___ (Docket No. 08-137, issued April 14, 2008).

8

Id.

4

decision following action by the Board, but does not include prerecoupment hearing decisions.9
Therefore, appellant had one year from April 7, 2008 to submit a timely request for
reconsideration. As her October 19, 2009 reconsideration request was made more than one year
after the April 7, 2008 merit decision, the request was untimely.
As noted, when an application for review is untimely, the Office undertakes a limited
review to determine whether the application presents clear evidence that the Office’s final merit
decision was in error.10 The Board finds that appellant did not submit any evidence with her
reconsideration request that raises a substantial question concerning the correctness of the
Office’s April 7, 2008 decision and establishes clear evidence of error. In an October 19, 2009
letter, appellant’s attorney indicated he was submitting a medical report that met the criteria to
establish clear evidence of error. However, this broad and general statement did not specifically
address the relevant issue, which is medical in nature, regarding whether appellant was totally
disabled for work beginning September 30, 2007 due to her accepted injury. Therefore, the
attorney’s letter did not raise a substantial question as to the correctness of the Office’s decision.
The April 15, 2009 report appellant submitted with her reconsideration request lacks
probative value as it contains an illegible signature with an unidentifiable author.11 Neither the
reconsideration request nor any other evidence of record identifies the person that signed the
April 15, 2009 report. Following the April 7, 2008 decision, appellant did not otherwise submit
medical evidence addressing the underlying medical issue regarding the cause of her claimed
disability. In any event, the Board notes that the term clear evidence of error is intended to
represent a difficult standard. The submission of a detailed well-rationalized medical report
which, if submitted before the denial was issued, would have created a conflict in medical
opinion requiring further development, is not clear evidence of error.12
Therefore, appellant has not submitted sufficient evidence to raise a substantial question
as to the correctness of the Office’s decision and has not established clear evidence of error.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and failed to establish clear evidence of error.

9

Leon D. Faidley, 41 ECAB 104, 111 (1989). See Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.3.b(1) (June 2002).
10

See A.F., supra note 5.

11

See D.D., 57 ECAB 734 (2006) (medical reports lacking proper identification do not constitute probative
medical evidence).
12

See A.F., supra note 5.

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated November 3, 2009 is affirmed.
Issued: September 7, 2010
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oklahoma City, OK, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 18-0935
Issued: February 25, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On April 3, 2018 appellant filed a timely appeal from a March 1, 2018 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards
docketed the appeal as No. 18-0935.
On June 6, 2012 appellant, then a 52-year-old mail handler, filed an occupational disease
claim (Form CA 2) alleging that he sustained a back injury due to standing and leaning against a
rest bar in the performance of duty. This claim was assigned OWCP File No. xxxxxx830. On
June 18, 2012 OWCP accepted the claim for lumbar strain. On April 9, 2015 it expanded
acceptance of this claim to include depressive disorder, anxiety state and bipolar disorder. On
May 28, 2015 OWCP issued a notice of proposed rescission relating that acceptance of the claim
should not have been expanded, but rather appellant should have been advised to file a claim for a
new injury.
On May 12, 2015 appellant filed an occupational disease claim (Form CA-2) alleging that
he sustained stress and anxiety in the performance of duty. He related that he continued to work
1

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

while in pain and it was very stressful deciding whether to take time off work and not be paid, or
work in pain. Appellant also noted that his workdays and schedule was changed following his
accepted injury, which caused stress.2 He stopped work on February 15, 2015. This claim was
assigned OWCP File No. xxxxxx822. The employing establishment noted that appellant had prior
claims.3
On June 24, 2015 OWCP received a supplemental statement from appellant. Appellant
related that he had an accepted claim for a back condition under OWCP File No. xxxxxx830 and
had originally claimed that his stress condition was consequential to that claim.
By decision dated November 5, 2015, OWCP denied appellant’s claim on the factual
component of the third basic element, fact of injury, because the evidence did not support that the
injury and/or event(s) occurred.
On October 17 and November 8, 2016 appellant requested reconsideration. He referred to
his prior claim OWCP File No. xxxxxx830.
By decision dated January 13, 2017, OWCP denied modification of the prior decision.
On January 11, 2018 appellant requested reconsideration. In a separate letter, he indicated
that he had not received any response to his medical documentation as to why he developed his
emotional condition. Appellant referred to prior injuries and indicated that they greatly affected
him physically. He also submitted additional medical evidence.
By decision dated March 1, 2018, OWCP denied appellant’s request for reconsideration,
finding that the evidence submitted was insufficient to warrant review of its prior decision. It also
explained that it appeared that he was claiming a consequential injury due to accepted work injuries
and that he should file a consequential injury under one or all of his accepted claims.
The Board, having duly considered the matter, finds that the case is not in posture for
decision.
In the March 1, 2018 decision denying appellant’s request for reconsideration of the merits
of his claim, OWCP related that, based on appellant’s request for reconsideration, it appeared that
he was claiming a consequential injury due to his accepted employment injuries. It indicated that
appellant should file a consequential injury claim under one or all of his accepted injury claims.
OWCP’s procedures provide that cases should be administratively combined when correct
adjudication of the issues depends on frequent cross-referencing between files.4 In the instant
2
In an April 2, 2015 statement, P.A., appellant’s manager, indicated that she worked with appellant for over 10
years as his manager. She explained that, as his manager, she had to change his tours and work hours to accommodate
his work restrictions. P.A. indicated that this caused stress for appellant.
3

The record reflects that appellant has six prior claims dating from August 15, 2008 to April 9, 2012. OWCP File
No. xxxxxx830 has been combined with OWCP File No. xxxxxx823, with the former serving as the master file.
4
D.M., Docket No. 19-0340 (issued October 22, 2019); Federal (FECA) Procedure Manual, Part 2 -- Claims, File
Maintenance and Management, Chapter 2.400.8(c) (February 2000).

2

claim, OWCP File No. xxxxxx822, appellant has alleged stress and anxiety while continuing to
work in pain following his accepted June 6, 2012 occupational disease claim in OWCP File No.
xxxxxx830. In denying appellant’s request for reconsideration on March 1, 2018 in the instant
claim, and advising appellant to file a consequential injury claim in his accepted claim, OWCP did
not acknowledge that it has accepted depressive disorder, anxiety state and bipolar disorder in
OWCP File No. xxxxxx830.
As these files have not been administratively combined, the Board is unable to determine
whether all pertinent evidence had been reviewed by OWCP in the instant claim.
The record before the Board does not contain the evidence from the June 6, 2012
occupational disease claim, OWCP File No. xxxxxx830, thus precluding a full and proper
adjudication of the issues presented in OWCP File No. xxxxxx822. The Board thus finds that the
case is not in posture for decision as the record as provided by OWCP is incomplete and would
not permit an informed adjudication of the case. The case must therefore be remanded to OWCP
to administratively combine the File Nos. xxxxxx830 and xxxxxx822 and for further
reconstruction and development as it may deem necessary, to be followed by an appropriate
decision.5
IT IS HEREBY ORDERED THAT the March 1, 2018 decision of the Office of Workers’
Compensation Programs is set aside and this case is remanded for further proceedings consistent
with this order of the Board.
Issued: February 25, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5

See T.M., Docket No. 18-0887 (issued February 21, 2019).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
FINANCE & ACCOUNTING SERVICE,
Columbus, OH, Employer
__________________________________________

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

Docket No. 12-999
Issued: October 10, 2012

Case Submitted on the Record

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

JURISDICTION
On April 5, 2012 appellant filed a timely appeal from the October 25, 2011 and
March 19, 2012 decisions 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 that she sustained an
emotional condition in the performance of duty.
FACTUAL HISTORY
This case has previously been before the Board. On November 2, 2004 appellant, then a
53-year-old accountant, claimed a stress-related condition pertaining to her transition to a new
1

5 U.S.C. § 8101 et seq.

computer system. Reports from Dr. Sarah Jonaus, Board-certified in internal medicine,
Dr. Michael Chan, Board-certified in family practice, and Janet Clark, Ph.D, in psychology,
noted that appellant was experiencing increasing anxiety, professional self-doubt, feelings of
hopelessness and crying spells related to stress at work since being transferred to new position in
January 2004. Dr. Jonaus diagnosed depression and anxiety and placed appellant on disability
from work. Dr. Clark opined that appellant’s disability was directly related to her employment
as accountant; she stated that her inability to adequately perform her job placed a great deal of
stress on her, which led to her emotional breakdown and her inability to function at work. By
decisions dated February 4, 2005, September 15 and December 14, 2006 and February 28, 2007,
OWCP denied appellant’s claim.
In a March 21, 2008 decision,2 the Board found that appellant attributed her emotional
condition to the requirements of her work as an accountant and that the evidence established a
compensable factor of employment. The Board also found that the medical evidence was
sufficient to require further development of the claim. The case was remanded to OWCP for
further development. On remand, OWCP referred appellant, together with a statement of
accepted facts and list of questions, to Lee Howard Ph.D., a clinical psychologist, for a second
opinion examination. In a May 15, 2008 report, Dr. Howard found that her major depression and
panic disorder conditions were produced by life stressors and not appellant’s work. He stated
that there was no evidence to support that the 2004 work factor caused a specific psychological
or psychiatric disorder. By decision dated June 25, 2008, OWCP denied the claim. The medical
condition was not caused by the identified employment factor. By decisions dated January 9 and
February 27, 2009, OWCP denied modification after merit review.
In a February 19, 2010 decision,3 the Board found a conflict in the medical opinion
between appellant’s attending physicians and Dr. Howard regarding whether she sustained an
emotional condition caused by the accepted employment factor. On remand, OWCP referred
appellant to Dr. Alan B. Levy, a Board-certified psychiatrist, for an impartial medical
examination. In a March 8, 2010 referral letter, it presented the statement of accepted facts and a
list of questions, including “Did any episode which began in 2004 bear any relationship to the
single compensable employment factor described in the statement of accepted facts?” OWCP
advised Dr. Levy to address contemporaneous nonwork-related stressors, which may have
precipitated any episode appellant experienced beginning in 2004.
In an April 29, 2010 report, Dr. Levy noted that while he believed appellant felt stressed
at work and overwhelmed by her work responsibilities, they were not sufficient to contribute to
the exacerbation of her depression in any meaningful way above and beyond other circumstances
in her life. He advised that a significant improvement in her condition could have been expected
if the work-related stressors had been the major component responsible for her symptoms once
she left the work environment and was aware that she would not be returning to work. Dr. Levy
did not find that her major depression was aggravated by her job responsibilities and or that her
disability was directly due to or aggravated by her job in 2004 or in 2005. He noted that she was
clearly disabled due to the persistence of her depression.
2

Docket No. 07-1074 (issued March 21, 2008).

3

Docket No. 09-1150 (issued February 19, 2010).

2

By decision dated May 25, 2010, OWCP denied appellant’s claim, finding that
Dr. Levy’s opinion represented the special weight of medical opinion. By nonmerit decision
dated August 9, 2010, it denied her request for reconsideration. In a September 12, 2011
decision,4 the Board found that Dr. Levy’s opinion was not sufficiently rationalized to resolve
the conflict in medical evidence. The case was remanded for OWCP to ask Dr. Levy to
supplement his opinion on causal relation. The facts of the case as set forth in the Board’s prior
decisions are incorporated by reference.
In a September 27, 2011 supplemental report, Dr. Levy stated:
“[Appellant] was seen by me for an independent psychiatric evaluation on
April 29, 2010. I found her to be experiencing symptoms of major depression but
did not feel that the major depression was directly due to nor aggravated by her
job….
“Because I indicated in my report that [appellant’s] work responsibilities did not
contribute to the exacerbation of the depression in any meaningful way above and
beyond the other circumstances in her life, there was some concern that I believed
that work responsibilities did contribute in a lesser way but that I simply did not
believe that the work responsibilities were the significant contribution to her
depression. I was asked to clarify whether, in fact, I [ha]ve concluded that her
work responsibilities did contribute in some way, even if it was not a significant
way, in the persistence of her [m]ajor [d]epression.”
***
“I am pleased to have the opportunity to clarify my original conclusions.
[Appellant] suffered from significant symptoms of depression related to nonwork
responsibility circumstances. When she attempted to work with this depression, it
became evident that she felt stressed in the workplace. I am aware from the
statement of accepted facts that the responsibilities [appellant] was given were not
excessive or unreasonable. It is my opinion that these stresses at work did not
contribute in any way to her depression but rather her depression caused her to
feel stressed at work. It has been clearly demonstrated in individuals with major
depression that they cope less well with difficult circumstances. It is not that
those circumstances cause them to be depressed but rather their depression causes
them to feel more stressed than the circumstance warrants. This was [appellant’s]
situation, I believe. While she left stressed at work, it was not the workplace
environment nor the responsibilities she was expected to complete that
contributed to depression, but rather the fact that her depression caused her to feel
stressed and overwhelmed under any circumstance. The fact that [appellant]
continues to feel stressed and overwhelmed and remains depressed to a similar
degree since leaving work substantiates the notion that it is the depression that
caused her to feel stressed rather than workplace circumstances that contributed to
or aggravated the depression.
4

Docket No. 11-70 (issued September 12, 2011).

3

“As I concluded in April 2010, I continue to believe that the workplace
circumstances played no role in [appellant’s] depression. It neither caused nor
aggravated her major depression.”
By decision dated October 25, 2011, OWCP found that Dr. Levy’s impartial opinion
represented the special weight of the medical evidence. It denied modification of its previous
decisions, which denied her emotional condition claim.
By letter dated December 7, 2011, appellant requested reconsideration. She submitted a
December 5, 2011 report from Dr. Clark, who stated:
“I do not agree that [appellant’s] responsibilities at work, at the time of her
decompensation, were ‘not excessive or unreasonable.’ As [she] noted, she was
processing nonretail interfund transactions; in processing these transactions, an
unusual event was occurring, in that her workload was being transferred from
Germany to the United States. [Appellant] had been trained in another
department and only recently transferred; she had not been trained for this new
situation. Moreover, no one in her new department, including her supervisor, was
able to help her resolve problems that she faced, in spite of repeated requests from
her. In my opinion, this situation is not a usual and customary workplace
situation and is beyond what would be typically expected.
“I do not agree that [appellant’s] work responsibilities did not contribute to her
preexisting depression ‘in any meaningful way.’ [Her] work responsibilities were
the precipitating event which led to her failure to perform her work duties and her
emotional breakdown at work, which led to her need to take time off work.
“I do not agree that the stresses at her workplace were simply a matter of her
perceptions: i.e., that the fact that [appellant] was depressed led to an erroneous
overestimation of workplace stresses. As documented in my report of January 17,
2006, [she] had been working for DFAS for 13 years and had never experienced
problems which took her to a physician. Also as documented in that report,
[appellant] had never received training that covered her new task demands and
repeated questions to her supervisor were not answered. Furthermore, she had
never received any acknowledgement of her good work by her employers at the
new division. Although it is true that depression worsens an individual’s negative
perceptions of their surroundings, there was sufficient negativity in [appellant’s]
surroundings without the added feature of a negative outlook.
“Finally, I do not agree with the conclusion that the fact that [appellant] continues
to feel stressed and overwhelmed and remains depressed to a similar degree since
leaving work substantiates the notion that it is the depression that caused her to
feel stressed. It is certainly true that when she was seen in 2006, [she] was
significantly depressed. As I reported, [appellant’s] mental content “includes
preoccupations about the situation described here, within.” As she struggled with
attempts to gain compensation from workers’ compensation, she continued to
struggle with the events which had led to her decompensation. As [appellant] was
4

revisiting these events, she was significantly depressed and suicidal. At the
present time, [appellant’s] psychological condition has improved…. [Her]
depression, anxiety and mental confusion are all remarkably better at this time
than on first presentation.... Most importantly, [appellant] reports that she is no
longer suicidal, as she was in 2006.
“In conclusion, I believe that [appellant’s] prior major depression was
exacerbated as a direct result of her workplace experiences and that this
exacerbation was a direct cause of her inability to continue her workplace
responsibilities.”
By decision dated March 19, 2012, OWCP denied modification of the October 25, 2011
decision.
LEGAL PRECEDENT
To establish that an emotional condition was sustained in the performance of duty there
must be factual evidence identifying and corroborating employment factors or incidents alleged
to have caused or contributed to the condition, medical evidence establishing that the employee
has an emotional condition and rationalized medical opinion establishing that compensable
employment factors are causally related to the claimed emotional condition.5 There must be
evidence that implicated acts of harassment or discrimination did, in fact, occur supported by
specific, substantive, reliable and probative evidence.6
Where the disability results from an emotional reaction to regular or specially assigned
work duties or a requirement imposed by the employment, the disability comes within the
coverage of FECA.7 On the other hand, disability is not covered where it results from an
employee’s fear of a reduction-in-force, frustration from not being permitted to work in a
particular environment or to hold a particular position, or to secure a promotion. Disabling
conditions resulting from an employee’s feeling of job insecurity or the desire for a different job
do not constitute a personal injury sustained while in the performance of duty within the meaning
of FECA.8
A claimant’s burden of proof is not discharged by the fact that she has identified an
employment factor which may give rise to a compensable disability under FECA. She also has
the burden of submitting sufficient medical evidence to support her claim that the employing
establishment’s harassment resulted in an employment-related emotional condition.9 The Board

5

See Debbie J. Hobbs, 43 ECAB 135 (1991).

6

See Ruth C. Borden, 43 ECAB 146 (1991).

7

Lillian Cutler, 28 ECAB 125 (1976).

8

Id.

9

Chester R. Henderson, 42 ECAB 352 (1991).

5

notes that any contribution of employment factors is sufficient to establish the element of causal
relation.10
When the medical evidence of record gives rise to a conflict in opinion between the
physician for the employee and the physician making the examination for the United States, a
third physician shall be appointed to make an examination as an impartial medical specialist.11
When a case is referred to an impartial medical specialist for the purpose of resolving a conflict,
the opinion of such specialist will be given special weight when based on a proper factual and
medical history and if sufficiently well rationalized.12
ANALYSIS
In the October 25, 2011 decision, OWCP relied on the September 27, 2011 report of
Dr. Levy, the impartial medical examiner, to find that appellant’s diagnosed major depression
condition was not causally related to the accepted employment factor. Dr. Levy addressed the
concern raised in his April 29, 2010 report that work responsibilities partially contributed to her
major depression. He clarified, that the depression symptoms appellant exhibited at the
workplace were not related to her employment activities. Dr. Levy stated that individuals with
major depression, experienced symptoms which caused them to feel more stressed than the
circumstance warranted. He opined that the work responsibilities set forth in the statement of
accepted facts were not unreasonable or excessive. The stresses at work did not contribute in
any way to appellant’s depression; rather, her depression caused her to feel stressed and
overwhelmed under any circumstance. Dr. Levy stated that the workplace circumstances played
no role in her depression and neither caused nor aggravated her emotional condition.
The Board finds that Dr. Levy’s impartial opinion negated a causal relationship between
the accepted employment factor and appellant’s major depression condition. Dr. Levy’s medical
report was thorough, well rationalized and based on an accurate factual and medical background.
His report is entitled to the special weight accorded an impartial medical specialist.13 OWCP
therefore properly found that it represented the weight of the medical evidence in its October 25,
2011 decision.
Following the October 25, 2011 decision appellant requested reconsideration and
submitted Dr. Clark’s December 5, 2011 report. This report, however, does not outweigh
Dr. Levy’s impartial opinion as the medical referee or negate OWCP’s finding that Dr. Levy’s
report represented the weight of the medical evidence. Dr. Clark’s report restated one side of the
conflict which was resolved by Dr. Levy’s referee medical opinion. Accordingly, the Board
finds that Dr. Levy’s opinion constituted the weight of medical opinion.

10

See L.R., (E.R.), 58 ECAB 369 (2007).

11

See Guiseppe Aversa, 55 ECAB 164 (2003).

12

See Richard R. LeMay, 56 ECAB 341 (2005).

13

See B.T., Docket No. 08-1885 (issued June 3, 2009).

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Appellant may submit new evidence or argument with a written request for
reconsideration, to OWCP within one year of the Board’s merit decision, pursuant to 5 U.S.C.
§ 8128(a) and 20 C.F.R. §§ 10.605 and 10.607.
CONCLUSION
The Board finds that appellant has not sustained an emotional condition in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the March 19, 2012 and October 25, 2011
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: October 10, 2012
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 17-0703
Issued: May 23, 2017

Case Submitted on the Record

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

JURISDICTION
On February 7, 2017 appellant filed a timely appeal from an October 20, 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 over the merits of this case.
ISSUE
The issue is whether appellant has established that she has more than three percent
permanent impairment of the right leg for which she previously received a schedule award.
FACTUAL HISTORY
On January 27, 2016 appellant, then a 49-year-old tax examination technician, filed a
traumatic injury claim (Form CA-1) alleging that on January 25, 2016 she fractured her right

1

5 U.S.C. § 8101 et seq.

knee in the performance of duty.2 She stopped work on January 25, 2016. OWCP accepted the
claim for a tear of the right lateral meniscus.
On March 9, 2016 Dr. Kevin E. Coates, a Board-certified orthopedic surgeon, performed
a right knee arthroscopy with loose body excision. He found an intact posterior and anterior
cruciate ligament and medial meniscus, no “articular lesions of the lateral compartment or the
lateral meniscus,” and grade 3 chondromalacia of the medial femoral condyle.
Appellant returned to modified full-time employment on April 4, 2016 and to regular
full-duty employment on June 3, 2016. On July 26, 2016 she filed a claim for a schedule award
(Form CA-7).
In a July 11, 2016 impairment evaluation, Dr. Coates opined that appellant reached
maximum medical improvement (MMI) on July 1, 2016 following surgery to remove a loose
body in the patellofemoral joint. On examination he found a trace of effusion in the right knee,
but with full strength. Dr. Coates measured 120 degrees flexion and zero degrees extension of
the right knee. Citing the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides),3 he identified the diagnosis as
patellofemoral arthritis using Table 16-3 on page 511, noting that there was no diagnosis
provided for a loose body. Dr. Coates applied a grade modifier of one for functional history,
physical examination, and clinical studies, which yielded a net adjustment of zero from the
default value of three percent.
An OWCP medical adviser reviewed the record on September 15, 2016 and concurred
with the impairment rating of Dr. Coates.
By decision dated October 20, 2016, OWCP granted appellant a schedule award for three
percent permanent impairment of the right leg. The period of the award ran for 8.64 weeks from
July 11 to September 9, 2016.
On appeal appellant contends that due to multiple incisions from her right knee surgery
she can no longer get down on that knee. She requests a greater award due to her pain and
limitations on daily activities.
LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulations,5 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
2

At the time of her injury, appellant was walking through a module to the cafeteria to get breakfast. Her injury
occurred at 7:30 a.m. and her duty hours were from 6:00 a.m. to 2:30 p.m.
3

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

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

2

consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.7
The sixth edition requires identifying the impairment Class of Diagnosis (CDX)
condition, which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE), and Clinical Studies (GMCS).8 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).
ANALYSIS
OWCP accepted that appellant sustained a tear of the right lateral meniscus due to a
January 25, 2016 employment injury. Dr. Coates performed a loose body excision on
March 9, 2016. He indicated that the anterior and posterior cruciate ligament and medial
meniscus were intact and that there were no articular lesions of the lateral meniscus or lateral
compartment. Dr. Coates found grade 3 chondromalacia.
In an impairment evaluation dated July 11, 2016, Dr. Coates opined that appellant had
reached MMI after her surgery to remove a loose body in the patellofemoral joint. He measured
range of motion and found no loss of strength and minimal effusion of the right knee.
Dr. Coates, using the knee regional grid set forth at Table 16-3 on page 511 of the A.M.A.,
Guides, identified the diagnosis as class 1 patellofemoral arthritis as there was no provision in
the grid for the diagnosis of a loose body. The A.M.A., Guides provides that, if “a specific
diagnosis is not listed in the diagnosis-based impairment grid, the examiner should identify a
similar listed condition to be used as a guide to the impairment calculation.”9 Dr. Coates applied
grade modifiers of one for functional history, physical examination, and clinical studies, to find
no adjustment from the default value of three percent.10 An OWCP medical adviser reviewed
Dr. Coates’ opinion and concurred with his impairment rating. There is no medical evidence
showing greater impairment.
On appeal appellant argues that the schedule award is inadequate as she can no longer get
down on her knee due to her pain and limitations. Under the schedule, Congress has defined the
number of weeks of compensation payable for loss of use of a member.11 For 100 percent
impairment, or total loss of use, of a leg, FECA provides 288 weeks of compensation.12 As
6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
8

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

9

Id. at 499.

10

Utilizing the net adjustment formula discussed above, (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), or
(1-1) + (1-1) + (1-1) = 0, yielded a zero adjustment.
11

5 U.S.C. § 8107.

12

Id. at § 8107(c)(2).

3

explained, appellant has three percent impairment of the right leg which would equate to 8.64
weeks of compensation. Factors such as limitations on daily activities or recreational activities
do not go into the determination of impairment under a schedule award.13 The record does not
contain any medical evidence to establish greater impairment in accordance with the sixth
edition of the A.M.A., Guides. Appellant thus has not established that she sustained more than
three percent impairment of the right lower extremity.14
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that she has more than three percent
permanent impairment of the right leg for which she previously received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the October 20, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 23, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13

See E.L., 59 ECAB 405 (2008); Dennis R. Stark, 57 ECAB 306 (2006).

14

See generally C.I., Docket No. 15-1320 (issued December 15, 2015).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Jacksonville, FL, Employer
__________________________________________

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

Docket No. 09-616
Issued: September 22, 2009

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 January 2, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs merit decisions dated August 26, October 7 and November 5, 2008.
Under 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained a left shoulder injury in
the performance of duty on June 30, 2008.
FACTUAL HISTORY
Appellant, a 53-year-old equipment operator, filed a Form CA-1 claim for benefits on
June 30, 2008, alleging that on that day he injured his left shoulder when his vehicle ran over a
bump in the road. He submitted a June 30, 2008 Form CA-17 duty status report, a June 30, 2008
Form CA-16 authorization for treatment report and a June 30, 2008 accident report from
Dr. Joseph J. Czerkawski, Board-certified in internal medicine, which indicated that he injured

his left shoulder/left rotator cuff on June 30, 2008. The June 30, 2008 accident report indicated
with a checkmark that appellant’s left shoulder injury was work related.
On July 18, 2008 the Office advised appellant that it required additional factual and
medical evidence to determine whether he was eligible for compensation benefits. It asked him
to submit a comprehensive medical report from his treating physician describing his symptoms
and the medical reasons for his condition and an opinion as to whether his claimed condition was
causally related to his federal employment. The Office requested that appellant submit the
additional evidence within 30 days.
In a June 30, 2008 report, received by the Office on August 7, 2008, Dr. Czerkawski
stated that appellant’s left shoulder was tender and painful and had been bothering him because
he hit a bump while driving. He advised that appellant had surgery to repair his left rotator cuff
approximately one year prior to his examination. Dr. Czerkawski noted some crepitus with
abduction and external rotation of the shoulder, but no instability. He advised that appellant’s
labrum was normal based on testing and opined that his rotator cuff seemed intact.
In a report dated August 6, 2008, Dr. H. Lynn Norman, Board-certified in orthopedic
surgery, stated that appellant continued to experience pain in his left shoulder with reaching up
and lifting. He noted that appellant believed he sustained a reinjury of his left shoulder in
June 2008; appellant also considered that he never fully recovered from his October 2007 left
rotator cuff surgery. On examination, Dr. Norman noted weakness with resistance in abduction
and forward flexion. He recommended that appellant continue on light-duty work with no lifting
or pushing overhead, with a limit of five pounds.
By decision dated August 26, 2008, the Office denied appellant’s claim, finding that she
failed to submit sufficient medical evidence in support of her claim that he sustained a left
shoulder injury in the performance of duty on June 30, 2008.
On September 23, 2008 appellant requested reconsideration.
In a September 10, 2008 report, Dr. Norman stated:
“I first examined [appellant] on July 18, 2008, for evaluation of ongoing
symptoms regarding the left shoulder. [Appellant] had previously had surgical
repair in October 2007 but never fully recovered from his symptoms and
continued with persistent pain. He had since returned to work with an activity
limitation of no overhead lifting with the left arm and no lifting over five pounds.
A magnetic resonance imaging [MRI] scan that was done in July [2008] was
nondiagnostic, due to the artifact from the metallic implants. I did get a shoulder
arthrogram at St. Vincent’s on September 2, 2008, which confirmed a full
thickness tear of the supraspinatus tendon of the left shoulder.
“After reviewing the clinical notes from [appellant’s] prior treating [physician,] it
is evident that his symptoms never fully recovered following the initial injury or
following the surgery. He continues with a torn rotator cuff tendon that, based on
his history and current condition, extends back to the initial work-related injury in
2007. The physical exam[ination] along with the history and review of medical
2

records establishes the fact that his rotator cuff is still torn, requires further
treatment and is directly related to the work injury that he sustained in April 2007.
“I recommend that [appellant] undergo a shoulder arthroscopy, repair of rotator
cuff tendon as indicated and will probably be an open repair due to this delayed
treatment, which has probably resulted in a retracted tendon. He could continue a
light[-]duty job status at this time with limitation of overhead lifting with the left
arm above chest height not to exceed five pounds.”
By decision dated October 7, 2008, the Office denied modification of its prior decision.
On October 28, 2008 appellant requested reconsideration.
In a July 18, 2008 report, received by the Office on October 28, 2008, Dr. Norman stated
the history of injury and noted complaints of left shoulder pain stemming from his preexisting
left shoulder condition. He related that appellant had difficulty reaching up and overhead with
the left arm and continued to experience weakness. Dr. Norman diagnosed left rotator cuff
tendinitis with possible retear.
By decision dated November 5, 2008, the Office denied modification of its prior decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period 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.2 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated upon
a traumatic injury or an occupational disease.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
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.4 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.5 The medical evidence required
to establish causal relationship is usually rationalized medical evidence. Rationalized medical
1

5 U.S.C. §§ 8101-8193.

2

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

3

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

4

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

5

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(a)(14).

3

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.6
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference that there is a causal relationship between the two.7
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
the belief that her condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.8 Causal relationship must be established by
rationalized medical opinion evidence and he failed to submit such evidence.
ANALYSIS
The Office accepted that appellant experienced left shoulder pain while driving over a
bump on June 30, 2008. The question of whether an employment incident caused a personal
injury can only be established by probative medical evidence.9 Appellant has not submitted
rationalized, probative medical evidence to establish that the June 30, 2008 employment incident
caused a personal injury that would have been competent to cause the claimed injury.
Drs. Czerkawski and Norman stated findings on examination and indicated that appellant
had left shoulder pain; however, these physicians related his left shoulder symptoms to a
previous injury and to his October 2007 surgery for left rotator cuff repair. Dr. Czerkawski
noted tenderness and pain in appellant’s left shoulder, which he attributed to hitting a bump
while driving on June 30, 2008. He noted that appellant had surgery to repair his left rotator cuff
approximately one year prior to his examination. Dr. Czerkawski noted some crepitus on range
of motion tests but found that appellant’s left shoulder was stable, that he had a normal labrum
and that his rotator cuff seemed intact. Dr. Norman stated that appellant had a torn left rotator
cuff tendon which, based on his history and current condition, was directly related to a work
injury he sustained in April 2007.10 He noted that appellant previously had surgical repair in
October 2007; however, he never fully recovered from his symptoms and experienced
6

Id.

7

See Joe T. Williams, 44 ECAB 518, 521 (1993).

8

Id.

9

See John J. Carlone, supra note 4.

10

While both Dr. Norman and Dr. Czerkawski noted that appellant had a preexisting shoulder condition and
Dr. Norman asserted that he sustained a “work injury” in April 2007, there is no indication in the record that his
preexisting left shoulder condition and October 2007 surgery for rotator cuff repair was work related. In addition,
there is no documentation in the record showing that appellant previously filed a claim or that the Office accepted a
claim based on a left shoulder injury.

4

continuous, persistent pain. Dr. Norman stated that a September 2, 2008 arthrogram indicated a
full thickness tear of the supraspinatus tendon of the left shoulder. He diagnosed left shoulder
tendinitis with probable retear of the left rotator cuff.
The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.11 Although Dr. Norman did present diagnoses of appellant’s
condition, tendinitis and probable retear of the left rotator cuff, he did not sufficiently explain
how these conditions were causally related to the June 30, 2008 employment injury. The
medical reports of record did not explain how medically appellant would have sustained a left
shoulder injury because he hit a bump in the road while driving on June 30, 2008.12 There is no
indication in the record, therefore, that the diagnosed conditions were work related. Appellant
failed to provide a rationalized, probative medical opinion relating his current condition to any
factors of his employment.
The Office advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. Appellant, therefore, did not provide a medical opinion from a
physician to sufficiently describe or explain the medical process through which the June 30,
2008 work accident would have caused or contributed to the claimed left shoulder injury. The
Office properly denied his claim for compensation in its August 26, October 7 and November 5,
2008 decisions.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a left shoulder injury in the performance of duty on June 30, 2008.

11

See Anna C. Leanza, 48 ECAB 115 (1996).

12

The June 30, 2008 form reports from Dr. Czerkawski that supported causal relationship with a checkmark are
insufficient to establish the claim. The Board has held that without further explanation or rationale, a checked box is
not sufficient to establish causation.

5

ORDER
IT IS HEREBY ORDERED THAT the November 5, October 7 and August 26, 2008
decisions of the Office of Workers’ Compensation Programs be affirmed.
Issued: September 22, 2009
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF THE AIR FORCE, BIEN
HOA AIR BASE, Vietnam, Employer
__________________________________________

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

Docket No. 18-0315
Issued: October 5, 2018

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 November 27, 2017 appellant filed a timely appeal from an August 29, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant filed a timely claim for compensation under section 8122 of
FECA.
FACTUAL HISTORY
On April 27, 2016 appellant, then an 83-year-old former distribution facilities manager,
filed an occupational disease claim (Form CA-2) alleging that he sustained Type 2 diabetes
mellitus, peripheral neuropathy, ischemic heart disease, a thyroid condition, dizziness/vertigo, and
1

5 U.S.C. § 8101 et seq.

cholesterol problems causally related to exposure to herbicides and Agent Orange while in
Vietnam in 1967. He related that he first became aware of his claimed condition on June 15, 2011
and attributed it to his federal employment on October 1, 2011. Appellant had retired from the
employing establishment on December 3, 1987.
Appellant submitted a letter of appreciation that he received from the employing
establishment for his service in Vietnam from September 13 to December 16, 1967. He also
submitted a December 2, 2011 letter from coworkers confirming that he volunteered to go to
Vietnam in 1967 to support the Rapid Area Supply Support (RASS) team while working in
distribution at the employing establishment.
By development letter dated May 2, 2016, OWCP requested that appellant submit
additional factual and medical information in support of his claim, including evidence that his
claim was filed within three years of the date he first became aware of the relationship between
his claimed condition and his federal employment. It also advised appellant to provide a detailed
description of his exposure to herbicides and Agent Orange while in Vietnam and reasoned
medical evidence supporting that he sustained a diagnosed condition causally related to the
identified employment factors.
In a May 31, 2016 statement, appellant related that he went to Vietnam on a temporaryduty assignment from September 13 until December 17, 1967. The area where he worked had
been sprayed with Agent Orange and other herbicides. In June 2011, appellant communicated
with veterans who had been exposed to Agent Orange and they recommended that he speak with
the Department of Veterans Affairs (DVA).
On October 19, 2011 appellant filed a DVA claim asserting that his Agent Orange exposure
in Vietnam caused vertigo, ischemic heart disease, prostate cancer, diabetes mellitus, Type 2, and
post-traumatic stress disorder. By decision dated January 10, 2013, the DVA denied his claim
finding that the claimed conditions were unrelated to military service.
By decision dated October 25, 2016, OWCP denied appellant’s claim, finding that it was
untimely filed pursuant to 5 U.S.C. § 8122, as he failed to file his claim within three years of
October 19, 2011. It noted that appellant’s filing of a claim for Agent Orange exposure with the
DVA indicated that he was aware of the relationship between his claimed conditions and the work
exposure no later than October 19, 2011.
Appellant, on November 19, 2016, requested a telephone hearing before an OWCP hearing
representative. During the telephone hearing, held on June 15, 2017, he testified that he first
became aware of his claimed conditions on June 15, 2011 and attributed them to his federal
employment on October 1, 2011. Appellant noted that he filed a claim with the DVA on
October 19, 2011, but the DVA denied his claim in January 2013 after finding that his diagnosed
conditions were not service related since he was a civilian employee in Vietnam, not a military
service member. He noted that the DVA provided a presumption of exposure to Agent Orange
only for military service members in Vietnam.
In a July 1, 2017 letter, appellant asserted that the military kept its use of Agent Orange
secret. He submitted provisions related to the Defense Base Act.

2

By decision dated August 29, 2017, OWCP’s hearing representative affirmed the
October 25, 2016 decision. She found that appellant’s claim was untimely as it was not filed within
three years of the date that he was first aware that his condition was related to his federal
employment. The hearing representative further determined that there were no exceptional
circumstances under section 8122(d) that would excuse his failure to comply with the time
limitation provisions.
LEGAL PRECEDENT
For injuries occurring between December 7, 1940 and September 6, 1974, the time
limitation provisions of FECA require that an injured employee file a claim for compensation
within one year after the injury.2 The one-year requirement may be waived provided the claim is
filed within five years after the injury or death and: (1) the failure to timely file was due to
circumstances beyond the control of the employee; or (2) the employee has shown sufficient cause
or reason in explanation of the failure to file within one year and material prejudice to the interest
of the United States has not resulted.3
In 1974, section 8122(a) of FECA was amended to provide that, for injuries and deaths on
or after September 7, 1974, an original claim for compensation for disability or death must be filed
within three years after the injury or death.4 If the claim is not filed within three years,
compensation may still be allowed if: (1) written notice of injury or death was given within 30
days as specified in 5 U.S.C. § 8119; or (2) the immediate supervisor had actual knowledge
(including verbal notification) of the injury or death within 30 days after occurrence. The
knowledge or notification must be such as to put the immediate supervisor reasonably on notice
of an on-the-job injury or death.5
In a case involving a claim for an occupational disease or illness, the time does not begin
to run until the claimant is aware, or reasonably should have been aware, of causal relationship
between his or her claimed condition and their federal employment.6 In situations where the
exposure to an injurious employment factor continues after the employee gains such awareness,
the time for filing a claim begins to run on the date of the employee’s last exposure to those

2

5 U.S.C. § 8122 (1968); Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3b
(March 1993).
3

Id.; see also Allen E. Grether, 24 ECAB 76 (1972).

4

5 U.S.C. § 8122 (1974); Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.3a
(March 1993).
5

Id.

6
Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.801.6 (March 1993). See Charles Walker,
55 ECAB 238 (2002); William L. Gillard, 33 ECAB 265, 268 (1981).

3

factors.7 The time limitations do not run against an incompetent individual while he or she is
incompetent and has no duly appointed legal representative.8
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant filed an occupational disease claim on April 27, 2016 alleging that he sustained
multiple conditions causally related to exposure to herbicides and Agent Orange during the time
that he worked in Vietnam from September 13 to December 16, 1967. He reported that he first
became aware of the relationship between his claimed conditions and factors of his federal
employment on October 1, 2011. Appellant submitted a letter from the employing establishment
confirming his work in Vietnam from September 13 to December 16, 1967.
Under FECA, the date of injury governs which time limitation provision applies.9 Where
an injury is sustained over a period of time, the date of injury is the date of last exposure to the
work factors causing an injury.10 In this case, the date of injury is December 16, 1967, the date of
appellant’s last exposure to the implicated work factors.
OWCP’s hearing representative denied appellant’s claim, finding that it was not filed
within three years of October 19, 2011, the date that appellant filed his DVA claim. OWCP’s
procedures provide, however, that for injuries occurring between December 7, 1940 and
September 6, 1974, a claim for compensation must be filed within one year after the injury or
death, and as noted, the one-year requirement may be waived under certain circumstances if the
claim is filed within five years and certain criteria are met.11
The Board thus finds that OWCP’s hearing representative incorrectly applied the threeyear time limitation standard applicable to injuries or deaths after September 7, 1974. The case
shall, therefore, be remanded for OWCP to apply the appropriate time limitation standard for
injuries occurring between December 7, 1940 and September 6, 1974 and make a proper
determination on the issue of whether appellant’s claim was timely filed.12 After such further
development as deemed necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

7

Id.; see also Patricia K. Cummings, 53 ECAB 623 (2002); Jaried M. Bailey, 26 ECAB 9 (1974).

8

Allen E. Grether, supra note 3.

9

See J.R., Docket No. 07-2278 (issued May 19, 2008); J.B., 58 ECAB 468 (2007).

10

See Patricia K. Cummings, supra note 7.

11

See supra note 3.

12

See J.B., supra note 9.

4

ORDER
IT IS HEREBY ORDERED THAT the August 29, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: October 5, 2018
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

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