United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE ARMY, TOBYHANNA )
ARMY DEPOT, Tobyhanna, PA, Employer
)
__________________________________________ )
E.F., Appellant

Appearances:
Aaron B. Aumiller, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-34
Issued: August 3, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 12, 2011 appellant, through his attorney, filed a timely appeal from the
June 2, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP), which
denied his claim for an employment-related left knee injury.1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant sustained a left knee injury in the performance of duty on
December 21, 2009, as alleged.

1

The Board concludes that OWCP’s October 12, 2011 decision, purporting to deny reconsideration of the merits,
actually conducted a merit review of appellant’s claim. See infra note 10.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 21, 2009 appellant, then a 46-year-old electronics mechanic, sustained a
traumatic injury in the performance of duty: “Was crossing in front of the K-lot parking lot,
when in the middle of the crosswalk, was hit in the knee by a yellow Jeep entering the lot.” He
described the nature of his injury as a torn right meniscus and bruised right hand.
In his sworn statement to the military police, appellant stated that the bumper of the
yellow Jeep hit his right hand, which was at his side and his right leg. The incident report
described the injury as minor. The history appellant provided to the health unit that same day
was that the yellow Jeep ran into him, hitting his right leg. “Then my right knee started to hurt
after walking on after about 5 minutes.” The medical officer described the nature of appellant’s
injury as right knee pain.
On or about December 28, 2009 the health unit noted bilateral knee pain, but the medical
officer diagnosed right knee contusion and pain. Appellant told his osteopath that he had pain in
his right knee more than his left. On examination Thomas G. Majernick, an osteopath, found,
among other things, “diffuse mild [tenderness] left knee” with no effusion. He diagnosed sprains
and strains of the knee and leg, unspecified.
X-rays of both knees on December 29, 2009 were negative. A magnetic resonance
imaging (MRI) scan of the right knee showed a suspected small peripheral tear of the anterior
horn of the medial meniscus. An x-ray of the right hand showed no fracture or dislocation.
Appellant was diagnosed with a torn right meniscus and right knee contusion and pain.
On January 4, 2010 appellant advised Dr. Majernick that the pain in his right knee had
decreased. He did not mention his left knee and Dr. Majernick made no left knee finding on
examination. On January 14, 2010 appellant noted some pain in his left knee, but his right knee
felt better. Findings include a tender medial left knee. On January 26, 2010 he complained of
left knee pain. Appellant used an analgesic without relief. In addition to a tender medial aspect,
there was mild edema of the lateral aspect of the left knee. An MRI scan was recommended.
OWCP accepted appellant’s claim for a torn right medial meniscus.
compensation for a period of wage loss.

He received

On January 29, 2010 an MRI scan of the left knee showed a focal osteochondral defect
anteriorly in the medial tibial plateau with a questionable small peripheral tear of the anterior
horn of the medial meniscus adjacent to the lesion.
On March 8, 2010 Dr. Edwin S. Malloy, the attending Board-certified orthopedic
surgeon, requested authorization to perform an arthroscopy and chondroplasty on the left knee.
He noted that appellant was in a lot of pain and needed the procedure as soon as possible.
Appellant claimed wage-loss compensation beginning March 1, 2010. Noting that he
was apparently claiming disability compensation for his left knee, OWCP advised that it had
accepted only a right knee injury arising on December 21, 2009. It further advised that if
appellant wished to claim a left knee injury on that date, he could submit supporting medical
evidence.
2

On March 5, 2010 Dr. Malloy reviewed the left knee MRI scan. He diagnosed pain in the
left knee secondary to an injury caused when appellant was struck by a motor vehicle on
December 21, 2009. Dr. Malloy recommended an arthroscopic evaluation of the left knee.
On April 29, 2010 Dr. Malloy related that appellant was hit on the right side “but his
right and left knee were pushed to the left and he ended up having significant problems with the
left knee.”
In a May 25, 2010 decision, OWCP denied appellant’s claim for wage-loss compensation
beginning in March 1, 2010. It found that the evidence was not sufficient to establish that his
current left knee condition and disability were due to the accepted work injury. OWCP found
that appellant failed to submit a rationalized medical opinion explaining how the left knee
condition was connected to the December 21, 2009 employment injury. It noted his initial
statement, which indicated that the vehicle impacted his right hand and right knee. OWCP noted
that the medical evidence supported trauma to the right knee and did not discuss any trauma to
the left knee. It found that the history Dr. Malloy later provided -- that appellant’s right and left
knee were pushed to the left -- conflicted with appellant’s version of how the injury occurred.
Further, OWCP noted that the initial medical evidence did not mention any trauma to the left
knee, any complaints of pain to the left knee or any treatment for a left knee condition. It noted
no diagnosed left knee condition until March 5, 2010.
Appellant requested reconsideration. He argued that OWCP overlooked very early
evidence of left knee problems and diagnoses. Thus, on December 28, 2009 a physician noted
pain in the right knee “more than left” and “tender dorsum right wrist, medial right knee and
diffuse mild left knee.” Further, on January 14, 2010 a physician noted “some pain left knee”
and “tender medial left knee” and on January 26, 2010 a nurse noted “left knee pain -- used
Motrin without relief.” The physician noted “tender medial aspect left knee.”
Appellant added that the December 29, 2009 x-ray of the left knee gave the history as
“injury.” Another imaging study was obtained on January 29, 2010. Appellant argued that one
does not order diagnostic tests unless there are significant complaints of pain and suspicion of
injury. He concluded that there clearly was evidence of injury and complaints about his left knee
from the inception of his claim, evidence that was certainly sufficient to accept the left knee
condition, especially after Dr. Malloy’s March 5, 2010 report.
On June 2, 2011 OWCP denied appellant’s reconsideration request. It found that a
review of the evidence of record failed to support a factual basis on which to establish
entitlement to benefits for a left knee condition due to the December 21, 2009 work injury. It
was important to note, OWCP explained, that appellant never reported an injury to his left knee
on this claim form or additional statement. Although various medical reports supported that he
had left knee pain, a diagnosis of pain did not constitute a basis for the payment of
compensation. Further, as the December 29, 2009 left knee x-ray was negative, there were no
objective findings on which to establish a diagnosis.
On appeal, appellant argues that his request advanced a new legal argument not
previously considered. Further, he argues that OWCP reviewed the merits of his claim in the
guise of a nonmerit review.

3

LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.3 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his claim. When an employee
claims that he sustained an injury in the performance of duty, he must submit sufficient evidence
to establish that he experienced a specific event, incident or exposure occurring at the time, place
and in the manner alleged. He must also establish that such event, incident or exposure caused
an injury.4
To establish that an injury occurred as alleged, the injury need not be confirmed by
eyewitnesses, but the employee’s statements must be consistent with the surrounding facts and
circumstances and his subsequent course of action. In determining whether a prima facie case has
been established, such circumstances as late notification of injury, lack of confirmation of injury,
and failure to obtain medical treatment may, if otherwise unexplained, cast sufficient doubt on a
claimant’s statements. The employee has not met this burden when there are such inconsistencies
in the evidence as to cast serious doubt on the validity of the claim.5
Causal relationship is a medical issue6 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,7 must be one of reasonable medical certainty8
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.9
ANALYSIS
Although OWCP’s June 2, 2011 decision purported not to review the merits of
appellant’s claim, the Board finds that this was a decision on the merits. OWCP did more than
provide a background summary of its May 25, 2010 denial; it augmented its previous findings. It
acknowledged for the first time that some initial medical evidence indicated left knee pain, but it
found that this evidence was insufficient to constitute a basis for the payment of compensation
3

5 U.S.C. § 8102(a).

4

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

5

Carmen Dickerson, 36 ECAB 409 (1985); Joseph A. Fournier, 35 ECAB 1175 (1984); see George W. Glavis, 5
ECAB 363 (1953).
6

Mary J. Briggs, 37 ECAB 578 (1986).

7

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

8

See Morris Scanlon, 11 ECAB 384, 385 (1960).

9

See William E. Enright, 31 ECAB 426, 430 (1980).

4

because pain was not a diagnosis. Further, OWCP acknowledged the initial left knee x-ray but
found that its negative results offered no objective finding to support a diagnosis. As it
addressed the merits of appellant’s claim, the Board has jurisdiction to review the merits.10
The Board has reviewed the contemporaneous accounts of what happened on
December 21, 2009 and can find no allegation or claim of a left knee injury. Appellant
explained that the bumper of the yellow Jeep struck his right hand and right knee. He did not
relate that the vehicle pushed both knees to the left. That history first appears in the April 29,
2010 report of Dr. Malloy, the attending orthopedic surgeon. This does not mean that the
incident as described by Dr. Malloy did not in fact occur as alleged, only that the four-month
delay in bringing this crucial bit of information to light raises some doubt about the validity of
the claim. This history of injury appears only after OWCP advised appellant that if he wanted to
pursue a left knee claim, he could submit supporting medical evidence. Appellant has not
reconciled the late history of injury with his contemporaneous accounts of what happened on
December 21, 2009.
The first medical reference to the left knee came about a week after the accident, when
the health unit noted bilateral knee pain. The medical officer, however, offered no left knee
diagnosis. Appellant indicated to Dr. Majernick that he had pain in his right knee more than his
left, and there was diffuse mild tenderness in the left knee without effusion, but Dr. Majernick
made no specific left knee diagnosis. A left knee x-ray was negative and on January 4, 2010
appellant reported no left knee complaints; Dr. Majernick reported no left knee findings or
diagnosis. Appellant no longer appeared to have left knee symptomatology.
Beginning January 14, 2010, however, the status of appellant’s left knee deteriorated
notably. He first reported some pain, and there was tenderness over the medial aspect. By
January 26, 2010, appellant’s complaints were not relieved by medication and tenderness was
now accompanied by edema in the lateral aspect. Three days later, an MRI scan would reveal a
focal osteochondral defect anteriorly in the medial tibial plateau with a questionable small
meniscal tear adjacent.
After reviewing this MRI scan, Dr. Malloy found that appellant’s left knee condition was
secondary to an injury caused when appellant was struck by a motor vehicle on
December 21, 2009. Although this supported appellant’s claim of a left knee injury on that date,
he did not support his opinion with sound medical reasoning. The mere temporal relationship
between the incident on December 21, 2009 and the MRI scan findings on January 29, 2010 is
insufficient, without supporting medical rationale, to establish causal relationship.11
Dr. Malloy later offered the history of both knees being pushed to the left, but as the Board
has discussed, that history finds no support in the contemporaneous record. Moreover, he did not
explain how pushing the left knee to the left would cause a focal osteochondral defect anteriorly in
10

See D.R., Docket No. 12-617 (issued May 9, 2012) (OWCP addressed the merits of the claimant’s reasons for
refusing a job offer); D.C., 58 ECAB (2007) (OWCP addressed the merits by finding for the first time that
specialists were available locally and that the claimant’s argument was therefore invalid).
11

Thomas D. Petrylak, 39 ECAB 276 (1987).

5

the medial tibial plateau, nor did he discuss the nature of a focal osteochondral defect or explain
how such an injury would cause only slight mention of the left knee beginning December 28, 2009,
an apparent lack of symptomatology by January 4, 2010, and a notable worsening of
symptomatology in the second half of that month.
Appellant’s left knee claim faces two basic challenges. The history Dr. Malloy provided
that the yellow Jeep pushed appellant’s left knee to the left cannot be found in the most
contemporaneous and therefore most reliable accounts of what happened that day. Appellant did
not make that allegation when he was describing the incident to the military police, to the health
unit and to his attending physicians and nurses. Further, he has not submitted a well-rationalized
medical opinion based on a complete and accurate factual and medical background explaining how
the December 21, 2009 injury caused the specific medical condition claimed.
The Board finds, therefore, that appellant has not met his burden of proof to establish that
he sustained a left knee injury in the performance of duty on December 21, 2009, as alleged.
The Board will affirm OWCP’s June 2, 2011 merit decision.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden to establish that he sustained a left
knee injury in the performance of duty on December 21, 2009, as alleged.

6

ORDER
IT IS HEREBY ORDERED THAT the June 2, 2011 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 3, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 11-1142
Issued: November 15, 2011

Case Submitted on the Record

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

Appellant filed an application for review of the Office of Workers’ Compensation
Programs’ (OWCP) December 6, 2010 merit decision denying her occupational disease claim
and the March 7, 2011 nonmerit decision denying her request for reconsideration. The appeal
was docketed as No. 11-1142. After considering the evidence of record, the Board finds this
case is not in posture for a decision.
The present appeal involves appellant’s October 11, 2010 occupational disease claim
(File No. xxxxxx026), in which she alleged that she developed carpal tunnel syndrome, arm pain
and bilateral wrist cysts due to repetitive job activities for 31 years, and that she first realized her
condition was employment related on April 5, 2005. The record indicates that on June 20, 2005
appellant filed a similar claim (File No. xxxxxx704),1 which was denied by OWCP in decisions
dated July 18, 2006 and May 4, 2007.2 By decision dated November 14, 2007, the Board
1
2

Appellant cited wrist injuries due to 27 years of repetitive duties as a clerk.

Appellant has filed several prior claims for neck and shoulder injuries. Her 1998 occupational disease claim
was accepted for cervical radiculopathy (File No. xxxxxx317); her January 3, 2000 claim was accepted for bilateral
rotator cuff sprain (File No. xxxxxx554); her January 5, 2001 traumatic injury claim was accepted for right shoulder
sprain (File No. xxxxxx437); and her July 21, 2002 claim was accepted for bilateral shoulder tendinitis (File No.
xxxxxx645). These files were combined, with File No. xxxxxx554 serving as the master file.

affirmed OWCP’s denial of the claim.3 The record in the instant case, however, does not contain
any evidence relating to the development of the prior claim.
The record contains a March 7, 2011 memorandum from an OWCP claims examiner
reflecting that appellant’s claim in File No. xxxxxx026 was substantially similar to her claim in
File No. xxxxxx704. Noting that he was not combining the two cases due to the fact that both
claims had been denied, the claims examiner stated that File No. xxxxxx704 should be consulted
in the event that further review was necessary in File No. xxxxxx026.
As the allegations contained in File No. xxxxxx026 are substantially the same as those
contained in File No. xxxxxx704, the medical evidence contained in File No. xxxxxx704 will
necessarily bear directly on appellant’s claim for compensation in File No. xxxxxx026. Because
it is essential for the Board to review the medical evidence contained in file number xxxxxx704
in order to render a full and fair adjudication of the present appeal, this case will be remanded for
OWCP to consolidate case file numbers xxxxxx704 and xxxxxxx026. Reconstruction of the
record will be followed by a de novo decision on the merits of the claim, in order to protect
appellant’s appeal rights.

3

Docket No. 07-1830 (issued November 14, 2007).

2

IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
December 6, 2010 decision be set aside and the case remanded for further development
consistent with this order.4
Issued: November 15, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4

In light of the Board’s ruling on the December 6, 2010 merit decision, it is not necessary to address the March 7,
2011 nonmerit decision.

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, METROPOLITAN
DETENTION CENTER, Brooklyn, NY,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 21-1265
Issued: March 23, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 19, 2021 appellant, through counsel, filed a timely appeal from a July 2, 2021
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than eight
percent permanent impairment of his left small finger for which he previously received a schedule
award.
FACTUAL HISTORY
On March 7, 2017 appellant, then a 47-year-old material handler supervisor, filed a
traumatic injury claim (Form CA-1) alleging that on February 26, 2017 he injured the left side of
his body and broke his left small finger when attempting to move a loaded laundry cart which
tipped over causing him to fall while in the performance of duty. He stopped work on February 26,
2017 and returned to work on March 7, 2017. On October 15, 2018 OWCP accepted the claim for
nondisplaced closed fracture of the distal phalanx of the left little finger and mallet finger of the
left little finger.
On July 13, 2017 appellant filed a claim for compensation (Form CA-7) for a schedule
award.
In support of his claim, appellant provided an August 3, 2017 report from Dr. John C.
L’Insalata, a Board-certified orthopedic surgeon. Dr. L’Insalata described his history of injury on
February 26, 2017 and diagnosed fracture of the distal phalanx of the left small finger with a bony
mallet component. On physical examination he found prominence over the dorsal aspect of the
distal interphalangeal (DIP) joint of the left small finger, lacking about two degrees of full
extension of the DIP joint, and 75 degrees of flexion with full strength, and intact sensory and
motor examination.
Dr. L’Insalata referred to the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides)3 and utilized the diagnosis-based
impairment (DBI) rating method to find that, under Table 15-2 (Digit Regional Grid), page 392,
the class of diagnosis (CDX) for mallet injury including avulsion fracture was a class 1 impairment,
grade C, with a default value of six percent for the digit. He assigned a grade modifier for
functional history (GMFH) of 2 based on pain symptoms with daily activities per Table 15-7, page
406. Dr. L’Insalata assigned a grade modifier for physical examination (GMPE) of 1 due to mild
decreased range of motion (ROM) of the DIP joint, pursuant to Table 15-8, page 408. He assigned
a grade modifier for clinical studies (GMCS) of 2 for associated intra-articular fracture of the distal
phalanx, which healed with prominence and gapping at the articular surface pursuant to Table 159, page 410. Dr. L’Insalata utilized the net adjustment formula (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX) = (2-1) + (1-1) + (2-1) = +2, which resulted in a grade E or eight percent permanent
impairment of the left small finger, which he converted to one percent permanent impairment of
the left hand and one percent impairment of the left upper extremity, pursuant to Table 15-12, page
421.
On July 12, 2019 Dr. Nathan Hammel, a Board-certified orthopedic surgeon, serving as a
district medical adviser (DMA), reviewed a statement of accepted facts (SOAF) and the medical
3

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

2

record, including Dr. L’Insalata’s August 3, 2017 findings. He concurred with Dr. L’Insalata’s
findings. Dr. Hammel indicated that the ROM method result could not be applied due to the lack
of triplicate measurements provided by Dr. L’Insalata. He found that the date of MMI was
August 3, 2017, the evaluation date by Dr. L’Insalata.
On October 28, 2020 OWCP requested that the DMA clarify whether the impairment rating
should be for the digit itself or extend into the adjoining area of the member, the hand or upper
extremity. In a November 17, 2020 report, the DMA found that appellant was entitled to eight
percent permanent impairment of his left small finger. He noted that consistent with OWCP
procedures the general loss of less than one digit should be computed in terms of impairments to
the digit itself and that the loss of two or more digits should be computed in terms of impairment
to the whole hand. 4 The DMA found as only one finger was involved the impairment was best
expressed as eight percent impairment of the left small finger.
By decision dated December 11, 2020, OWCP granted appellant a schedule award for eight
percent permanent impairment of his left small finger. The award ran for 1.2 weeks during the
period August 3 to 11, 2017.
On January 4, 2021 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review, which took place on April 21, 2021.
By decision dated July 2, 2021, the hearing representative affirmed OWCP’s December 11,
2020 decision. She found that the weight of the medical evidence established that appellant had
no greater than eight percent permanent impairment of his left finger for which he previously
received a schedule award.
LEGAL PRECEDENT
The schedule award provisions of FECA 5 and its implementing regulations 6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses. 7 As of May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides (2009).8 The Board has approved the use
4

Federal (FECA) Procedure Manual, Part 2--Claims, Schedule Award and Permanent Disability Claims, Chapter
2.808.5.e (March 2017); B.H., Docket No. 16-0252 (issued October 7, 2016); Charles B. Carey, 49 ECAB 528 (1998).
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. See also B.B., Docket No. 20-1187 (issued November 18, 2021); Ronald R. Kraynak, 53 ECAB 130 (2001).

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); id. at Chapter 2.808.5a. (March 2017).

3

by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes. 9
In addressing upper extremity impairments, the sixth edition requires that the evaluator
identify the impairment CDX, which is then adjusted by a GMFH, GMPE, and GMCS. 10 The net
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).11
The A.M.A., Guides also provide that ROM impairment methodology is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
DBI sections are applicable. 12 If ROM is used as a stand-alone approach, the total of motion
impairment for all units of function must be calculated. All values for the joint are measured and
added.13 Adjustments for functional history may be made if the evaluator determines that the
resulting impairment does not adequately reflect functional loss and functional reports are
determined to be reliable. 14
OWCP issued FECA Bulletin No. 17-06 to explain the use of the DBI methodology versus
the ROM methodology for rating of upper extremity impairments.15 Regarding the application of
ROM or DBI impairment methodologies in rating permanent impairment of the upper extremities,
FECA Bulletin No. 17-06 provides in pertinent part:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluatio n, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM); and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing th e higher
rating should be used.” (Emphasis in the original.)16

9

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

10

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

11

Id. at 411.

12

Id. at 461.

13

Id. at 473.

14

Id. at 474.

15

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

16

A.M.A., Guides 477.

4

The Bulletin further advises: “If the rating physician provided an assessment using the
ROM method and the [A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the
DMA should independently calculate impairment using both the ROM and DBI methods and
identify the higher rating for the CE [clams examiner].”17
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides, with the medical adviser providing
rationale for the percentage of impairment specified.18
ANALYSIS
The Board finds that this case is not in posture for decision.
In his August 3, 2017 report, Dr. L’Insalata provided one set of passive ROM
measurements for the left small finger. OWCP referred Dr. L’Insalata’s report to Dr. Hammel, its
DMA, who found that appellant had eight percent permanent impairment of the left small finger
under the DBI methodology. Dr. Hammel advised that Dr. L’Insalata’s report did not contain three
complete ROM measurements for the left small finger.
Pursuant to FECA Bulletin No. 17-06, if the ROM method of rating permanent impairment
is allowed, after review of the DBI rating, and the ROM findings are incomplete, the DMA should
advise as to the medical evidence necessary to complete the ROM method of rating if the medical
evidence of record is insufficient to rate appellant’s impairment using ROM. 19
Herein, OWCP did not follow the procedures outlined in FECA Bulletin No. 17-06 after
the DMA advised that the measurements for the left finger were incomplete and there was no
documentation to rate appellant’s permanent impairment utilizing the ROM methodology. 20
On remand OWCP shall obtain the necessary evidence as required under FECA Bulletin
No. 17-06 from Dr. L’Insalata.21 After it obtains the evidence necessary to complete the rating as
described above, the case shall be referred to a DMA to independently calculate impairment to the
left small finger using both ROM and DBI methods and identify the higher rating. 22 If
Dr. L’Insalata does not fully comply with the A.M.A., Guides, OWCP shall refer appellant to a
17

FECA Bulletin No. 17-06 (issued May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018); A.G.,
Docket No. 18-0329 (issued July 26, 2018).
18

See supra note 8 at Chapter 2.808.6f. (March 2017); see D.J., Docket No. 19-0352 (issued July 24, 2020).

19

J.L., Docket No. 19-1684 (issued November 20, 2020); R.L., Docket No. 19-1793 (issued August 7, 2020); E.P.,
Docket No. 19-1708 (issued April 15, 2020).
20

C.H., Docket No. 20-0529 (issued June 16, 2021); J.L., R.L., id.; C.T., Docket No. 18-1716 (issued
May 16, 2019).
21

J.L., id.; J.S., Docket No. 19-0483 (issued October 10, 2019).

22

See J.L., id.; J.V., Docket No. 18-1052 (issued November 8, 2018); M.C., Docket No. 18-0526 (issued
September 11, 2018).

5

specialist in the appropriate field of medicine for a second opinion evaluation. Following this and
other such further development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the July 2, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: March 23, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cambridge, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 09-469
Issued: August 24, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 8, 2008 appellant filed a timely appeal from the April 30, 2008 merit
decision of the Office of Workers’ Compensation Programs, which found her at fault in creating
an overpayment of compensation, thereby precluding waiver. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant was at fault in creating a $4,896.04 overpayment of
compensation from October 29 through December 29, 2001.
FACTUAL HISTORY
On February 16, 2001 appellant, then a 49-year-old clerk, sustained a right knee injury in
the performance of duty when she slipped on a manhole cover and tried to stop a fall. On
May 21, 2001 the Office notified her that it accepted her claim for right knee strain. Under the
heading “Return to Work,” the Office informed appellant: “When you return to work, or obtain
new employment, notify this office right away. If you receive a compensation check which

includes payment for a period you have worked, return it to us immediately to prevent an
overpayment of compensation.” It began paying compensation for temporary total disability on
the periodic rolls.
Appellant accepted a limited-duty assignment as a modified distribution clerk. She
returned to work with no wage loss beginning October 29, 2001, but she continued to receive
periodic compensation checks every four weeks. The record indicates that she returned
compensation checks to the Office for periods after December 29, 2001.
On September 6, 2002 the Office made a preliminary determination that appellant was at
fault in creating a $4,896.04 overpayment of compensation from October 29 through
December 29, 2001. It found that appellant knew or should have reasonably been aware that she
was not eligible to receive compensation for lost time from work for the same period in which
she had already returned to work. The Office noted its May 21, 2001 correspondence to
appellant explaining how to prevent an overpayment of compensation if she returned to work,
but appellant continued to receive compensation through December 29, 2001 while working full
time.
Appellant requested a decision based on the written evidence. On September 24, 2002
she completed an overpayment recovery questionnaire. She indicated that she did not have any
of the incorrectly paid checks or payments in her possession and she argued that the
overpayment was not her fault: “I thought the incorrect (which I thought was correct) payment
was due me (because) I was out of work from May ‘01 to Oct ‘01 but I didn’t receive a check till
June ‘01. I thought the two checks I cashed were for the time from May to June in which I didn’t
receive any checks.”
In a decision dated April 30, 2008, the Office finalized its preliminary determination and
found appellant at fault in creating a $4,896.04 overpayment of compensation from October 29
through December 29, 2001, thereby precluding waiver of the recovery of the overpayment.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act places limitations on the right to receive
compensation. While an employee is receiving compensation, she may not receive salary, pay or
remuneration of any type from the United States, with certain exceptions.1 It is therefore well
established that an employee is not entitled to compensation for temporary total disability after
returning to work.2 “Temporary total disability” is defined as the inability to return to the
position held at the time of injury or earn equivalent wages or perform other gainful
employment.3
1

5 U.S.C. § 8116(a).

2

E.g., Tammi L. Wright, 51 ECAB 463, 465 (2000) (where the record established that the employee returned to
work at the employing establishment for four hours per day from August 7, 1996 to January 8, 1997 but received
compensation for total disability for that same period, the Board found that the employee received an overpayment
of compensation).
3

20 C.F.R. § 10.400(b).

2

When an overpayment of compensation has been made because of an error of fact or law,
adjustment shall be made under regulations prescribed by the Secretary of Labor by decreasing
later payments to which an individual is entitled. There is one exception:
“Adjustment or recovery by the United States may not be made when incorrect
payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of [the Act] or would be against
equity and good conscience.”4
Thus, the Office may consider waiving recovery only if the recipient was not at fault in
accepting or creating the overpayment. Each recipient of compensation benefits is responsible
for taking all reasonable measures to ensure that payments she receives from the Office are
proper. The recipient must show good faith and exercise a high degree of care in reporting
events which may affect entitlement to or the amount of benefits. A recipient who has done any
of the following will be found to be at fault with respect to creating an overpayment: (1) Made
an incorrect statement as to a material fact which she knew or should have known to be
incorrect; or (2) Failed to provide information which she knew or should have known to be
material; or (3) Accepted a payment which she knew or should have known to be incorrect.5
Whether or not the Office determines that an individual was at fault with respect to the
creation of an overpayment depends on the circumstances surrounding the overpayment. The
degree of care expected may vary with the complexity of those circumstances and the
individual’s capacity to realize that she is being overpaid.6
The fact that the Office may have erred in making the overpayment does not by itself
relieve the individual who received the overpayment from liability for repayment if the
individual was also at fault in accepting the overpayment.7
In addition to providing narrative descriptions to recipients of benefits paid or payable,
the Office includes on each periodic check a clear indication of the period for which payment is
being made.8
ANALYSIS
An overpayment of compensation occurred when appellant returned to limited duty at no
wage loss on October 29, 2001 but continued to receive compensation for total disability through
December 29, 2001. No employee is entitled to compensation for total disability after returning
to work. The Office ran a computation worksheet showing that at appellant’s pay rate and
4

5 U.S.C. § 8129(b).

5

20 C.F.R. § 10.433(a).

6

Id. at § 10.433(b).

7

Id. at § 10.433(a).

8

Id. at § 10.430(a).

3

compensation rate, compensation for the period in question, less health and life insurance
premiums, totaled $4,896.04. Fact and amount of the overpayment are established.
The question that remains is whether appellant was at fault in creating this overpayment
of compensation. She argues that she would not knowingly accept money that was not due her.
But if she did, in error, she feels it was the Office’s mistake because it received the same
paperwork she did about her return to work and still sent the checks. It may be that the Office
was at fault in continuing to send compensation checks when it knew that appellant had accepted
an offer of modified duty. But that does not relieve appellant from liability for repayment of the
debt if she was also at fault in accepting the overpayment.
Appellant knew she was receiving compensation for wage loss. The Office explained the
basis of compensation payments in its May 21, 2001 acceptance letter. It also made clear that to
prevent an overpayment of compensation once she returned to work, she was to immediately
return any compensation check which included payment for a period she had worked. She
returned to work with no wage loss on Monday, October 29, 2001, but she continued to receive
compensation checks every four weeks. These checks provided a clear indication of the period
for which payment was being made. So when she received a check covering the period through
Saturday, November 3, 2001, she should have immediately returned it to the Office and she
should have immediately returned the checks covering the period December 1 through
December 29, 2001. The Board finds that she knew or should have known these payments were
incorrect, so when she accepted them, she was at fault under the third standard noted above.
Prior to depositing or negotiating a paper compensation check, a recipient knows or should know
whether she is accepting payment for wage loss for a period during which she was employed and
had no wage loss.
Appellant contends that she would not knowingly accept money that was not due her.
The Board has no reason to doubt her. But under the circumstances, given the Office’s May 21,
2001 instructions in the event she returned to work, and given the clear indication on each
compensation check of the period covered by the check, she should have known. Appellant
should have known the checks she received after October 29, 2001 were not for the period May
to June 2001, as she argued on her overpayment recovery questionnaire, because the checks
clearly indicated otherwise. She should have returned those checks instead of cashing them.
The Board will affirm the Office’s April 30, 2008 final decision finding that appellant
was at fault in creating a $4,896.04 overpayment of compensation from October 29 through
December 29, 2001. Because appellant is at fault, she is not eligible for waiver of the recovery
of the overpayment. The Office must recover the debt. The Board’s jurisdiction to review the
collection of an overpayment, however, is limited to cases of adjustment, where the Office
decreases later payments of compensation to which the individual in entitled.9 Because the
Office cannot collect the overpayment in this case by adjusting later payments of compensation - appellant is no longer receiving compensation for wage loss -- but must recover it by other
means, the Board lacks jurisdiction to review the Office’s collection of the debt.

9

5 U.S.C. § 8129; Levon H. Knight, 40 ECAB 658 (1989).

4

CONCLUSION
The Board finds that appellant was at fault in creating a $4,896.04 overpayment of
compensation from October 29 through December 29, 2001, thereby precluding waiver of the
recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the April 30, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 24, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Alexandria, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-621
Issued: August 2, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On January 20, 2012 appellant filed a timely appeal of an August 24, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying her request for
reconsideration of the merits of an August 4, 2010 OWCP decision that denied her claim for
monetary compensation. As more than 180 days has elapsed between the issuance of OWCP’s
last merit decision of August 4, 2010 and the filing of this appeal on January 20, 2012, the Board
has no jurisdiction over the merits of the case.1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
only the August 24, 2011 nonmerit decision.

1

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant has up to one year to appeal
to the Board. See 20 C.F.R. § 501.3(d)(2) (2007). For final adverse decisions issued on or after November 19,
2008, a claimant has 180 days to file an appeal with the Board. See C.F.R. § 501.3(e) (2008); R.C., Docket No. 102371 (issued July 14, 2011).
2

5 U.S.C. §§ 8101-8193.

ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for merit
review pursuant to 5 U.S.C. § 8128(a).
On appeal appellant generally asserts that she is entitled to wage-loss compensation for
the accepted injury.3
FACTUAL HISTORY
On July 13, 2005 appellant, then a 38-year-old window clerk, injured her left leg that day
when a package fell on it. She did not stop work. A medical report dated July 13, 2005 noted a
diagnosis of contusion to the back of the left knee. On August 25, 2006 appellant filed a
recurrence claim. She stated that she had continued left leg pain and when standing at home on
July 5, 2006 she had severe pain in her left leg. The employing establishment contested the
recurrence claim. A September 30, 2006 magnetic resonance imaging (MRI) scan of the left
knee demonstrated a complex Baker’s cyst in the popliteal fossa. Appellant stopped work on
October 10, 2006.
On October 31, 2006 OWCP accepted that appellant sustained a contusion of the left leg
on July 13, 2005. She filed a Form CA-7, claim for compensation, beginning December 5, 2006
and returned to modified duty for four hours a day in April 2007. In a June 4, 2007 decision,
OWCP denied appellant’s claim for wage-loss compensation beginning December 5, 2006. On
July 3, 2007 appellant, through her attorney, requested a hearing and submitted additional
medical evidence. By decision dated February 13, 2008, an OWCP hearing representative found
that a conflict in medical evidence had been created between the opinion of Dr. Robert A. Smith,
a Board-certified orthopedic surgeon, who provided a second opinion evaluation for OWCP and
Dr. Peter Trent, an attending Board-certified orthopedic surgeon, regarding whether appellant’s
current condition was employment related. The case was remanded to OWCP to obtain an
impartial evaluation. On July 31, 2008 OWCP authorized surgical removal of a left knee cyst.
On September 24, 2008 Dr. Trent removed the cyst.
In a January 5, 2009 decision, OWCP denied appellant’s claim for wage-loss
compensation. It found the weight of the medical evidence rested with the opinion of
Dr. Robert E. Collins, Board-certified in orthopedic surgery, who performed an impartial
examination for OWCP and advised that the contusion to appellant’s left leg resolved very
quickly and that her continued left lower extremity condition was not related to the July 13, 2005
employment injury. In a March 23, 2009 decision, OWCP denied appellant’s claim for wageloss compensation beginning January 1, 2009. In merit decisions dated July 1 and September 15,
2009 and August 4, 2010, it denied modifications of its previous decisions on the grounds

3

The Board notes that on April 9, 2012 appellant filed an application for review by the Board of a March 9, 2012
OWCP decision on the merits of her claim. It was assigned Docket No. 12-1054 and will be adjudicated separately.

2

that the medical evidence was insufficient to establish that any disability commencing on
December 5, 2006 was causally related to the July 13, 2005 employment injury.4
On August 2, 2011 appellant requested reconsideration. She submitted duplicates of
medical evidence previously of record dated September 19, 2008 to July 15, 2010. Appellant
also submitted a number of treatment notes, attending physician’s reports and duty status reports
dated August 12, 2010 to July 1, 2011, not previously reviewed by OWCP. In these reports,
Dr. Daniel Ignacio, a Board-certified physiatrist, noted clinical findings of a swollen, tender left
knee that would give way. He initially provided restrictions to appellant’s physical activity and
beginning October 7, 2010, advised that she could not work due to painful, limited movements,
painful patellofemoral crepitation, infrapatellar, diffuse tenderness, and hypoesthesia and
weakness along the left leg, due to a crush injury that occurred on July 13, 2005. Dr. Ignacio
continued to submit reports advising that appellant could not work, and needed continued
medical care and treatment. A May 26, 2011 left knee x-ray was interpreted as normal.
In a nonmerit decision dated August 24, 2011, OWCP denied appellant’s request for
reconsideration.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation, either under its own authority or on
application by a claimant.5 Section 10.608(a) of the Code of Federal Regulations provide that a
timely request for reconsideration may be granted if OWCP determines that the employee has
presented evidence and/or argument that meet at least one of the standards described in section
10.606(b)(3).6 This section provides that the application for reconsideration must be submitted
in writing and set forth arguments and contain evidence that either: (i) shows that OWCP
erroneously applied or interpreted a specific point of law; or (ii) advances a relevant legal
argument not previously considered by OWCP; or (iii) constitutes relevant and pertinent new
evidence not previously considered by OWCP.7 Section 10.608(b) provides that when a request
for reconsideration is timely but fails to meet at least one of these three requirements, OWCP
will deny the application for reconsideration without reopening the case for a review on the
merits.8

4

In the September 15, 2009 decision, OWCP noted that appellant underwent authorized surgery on
September 24, 2008 and advised her to file a recurrence claim and submit medical evidence to support any period of
disability claimed. Appellant submitted a recurrence claim, stating that the recurrence occurred on September 24,
2008, the date of authorized surgery.
5

5 U.S.C. § 8128(a).

6

20 C.F.R. § 10.608(a) (2011).

7

Id. at § 10.606(b)(3) (2011).

8

Id. at § 10.608(b) (2011).

3

ANALYSIS
The only decision before the Board in this appeal is the nonmerit decision of OWCP
dated August 24, 2011 denying appellant’s request for reconsideration. Because there is no
OWCP merit decision within the Board’s jurisdiction, the Board lacks jurisdiction to review the
merits of appellant’s claim.
In her August 2, 2011 reconsideration request, appellant merely asserted that the medical
evidence established entitlement to wage-loss compensation. She therefore did not allege or
demonstrate that OWCP erroneously applied or interpreted a specific point of law, or advance a
relevant legal argument not previously considered by OWCP. Consequently, appellant was not
entitled to a review of the merits of her claim based on the first and second above-noted
requirements under section 10.606(b)(3).9
With her reconsideration request, appellant submitted evidence previously of record. The
Board has long held that the submission of evidence which repeats of duplicates evidence
already in the record does not constitute a basis for reopening a case.10 Nonetheless, the Board
finds that OWCP improperly denied her request for merit review pursuant to section 8128(a) of
FECA. Appellant, however, also submitted a number of reports dated August 12, 2010 to July 1,
2011 in which Dr. Ignacio noted clinical findings of knee swelling and tenderness and
acknowledged appellant’s report that her knee would give way. On October 7, 2010 Dr. Ignacio
advised that she could not work due to painful, limited movements, painful patellofemoral
crepitation, infrapatellar, diffuse tenderness, and hypoesthesia and weakness along the left leg,
due to a crush injury that occurred on July 13, 2005. He continued to submit reports advising
that appellant could not work, and needed continued medical care and treatment. A May 26,
2011 left knee x-ray was interpreted as normal.
The merit issue in this case is whether appellant is entitled to wage-loss compensation
beginning on December 5, 2006 and continuing. The Board finds that, as Dr. Ignacio reported
positive examination findings which he advised were due to the July 13, 2005 employment
injury and indicated that appellant could not work, these reports constitute new and relevant
evidence not previously considered by OWCP. Appellant therefore met the requirements of
section 10.606(b)(3).11
As appellant submitted new and relevant evidence not previously considered by OWCP,
the case must be remanded to OWCP for a decision on the merits of whether she met her burden
of proof to establish that she is entitled to wage-loss compensation.12 On remand, OWCP should
consider the evidence submitted with appellant’s August 2, 2011 reconsideration request together
with the evidence of record to determine if appellant has established that she is entitled to
monetary compensation for any period beginning on December 5, 2006.
9

20 C.F.R. § 10.606(b)(3) (2011).

10

D.K., 59 ECAB 141 (2007).

11

20 C.F.R. § 10.606(b)(3) (2011); see R.M., 59 ECAB 690 (2008).

12

Annette Louise, 54 ECAB 783 (2003).

4

CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for a merit review
pursuant to section 8128(a) of FECA.
ORDER
IT IS HEREBY ORDERED THAT the August 24, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to OWCP for
proceedings consistent with this decision of the Board.
Issued: August 2, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

5


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

)
)
)
)
)
)
)
)

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

Docket No. 16-0409
Issued: April 7, 2017

Case Submitted on the Record

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

JURISDICTION
On December 29, 2015 appellant, through counsel, filed a timely appeal from a July 30,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.3

1

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

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the July 30, 2015 decision. Since the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board
may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB
126 (2005).

ISSUE
The issue is whether appellant established a permanent impairment of his left upper
extremity causally related to his July 14, 2007 employment injury for schedule award purposes.
FACTUAL HISTORY
On July 15, 2007 appellant, then a 41-year-old flat sorter machine (FSM) clerk, filed a
traumatic injury claim (Form CA-1) alleging that on July 14, 2007 he experienced pain in his
lower back and shoulders when he moved an automated postal center cage that was full of mail.
He did not stop work. OWCP accepted appellant’s claim for lumbar sprain, lumbosacral sprain,
left shoulder and upper arm sprain, and acromioclavicular (AC) joint sprain. Appellant worked
limited-duty following this injury.
This case was previously before the Board.4 In a decision dated June 7, 2010, the Board
affirmed the October 24, 2008 and May 7, 2009 OWCP decisions which found that appellant
failed to establish that he sustained a recurrence of disability beginning November 10, 2007
causally related to his July 14, 2007 employment injury. The record reflects that he retired in
June 2008. The facts and circumstances of the case as set forth in the Board’s prior decision are
incorporated herein by reference.
On July 3, 2012 appellant, through counsel, submitted a claim for a schedule award
(Form CA-7).
Appellant submitted an August 24, 2012 impairment evaluation report by Dr. Karen
Garvey, a Board-certified internist, who noted accepted conditions of lumbar sprain, lumbosacral
joint sprain, left shoulder and upper arm sprain, and left AC joint sprain. Dr. Garvey reviewed
his history and recounted that he had a history of arthritis flare and pain in his joints since late
2000s. She related that appellant worked as a mail distribution clerk and that in July 2007 he
injured his back and left shoulder when he was putting mail on top of the mail cage at work.
Dr. Garvey described the medical treatment he received and indicated that despite his treatment
his pain persisted which led to him retiring due to disability on June 17, 2008. She opined that
based on her review of appellant’s medical history and the information provided by him, he
reached maximum medical improvement (MMI) for his left shoulder on March 26, 2009 and for
his lumbar spine on June 6, 2010.
Upon examination of appellant’s lumbar spine, Dr. Garvey observed tenderness to
palpation in the cervical region and mild tenderness to palpation in the lumbar region. She noted
no tenderness to palpation in the thoracic spine. Dr. Garvey reported that appellant was able to
flex the lumbar spine forward to 90 degrees and extend to 30 degrees. Examination of the left
shoulder revealed no swelling or erythema and no tenderness to palpation. Dr. Garvey also
revealed a well-healed small incision on the shoulder. She also indicated that range of motion

4

Docket No. 09-1752 (issued June 7, 2010).

2

(ROM) of appellant’s left shoulder showed mild decreased ROM and provided ROM findings.5
Sensation to pinprick and light touch was equal bilaterally in the upper and lower extremities.
Dr. Garvey reported that appellant sustained a work-related injury to his back and left shoulder
on July 17, 2007 and also had preexisting psoriatic arthritis since 2000. She explained that, due
to the multiple areas of pain symptoms and the progressive nature of his arthritis unrelated to his
work injury, she determined that his responses to both the Pain Disability Questionnaire (PDQ)
and QuickDASH6 questionnaires were unreliable. Dr. Garvey opined that appellant’s responses
to the questionnaires related to his current pain, which she attributed to his underlying disease,
and not his work-related injury. She noted that her objective assessment revealed that he had
minimal to no symptoms. Dr. Garvey concluded that appellant’s current pain was related to his
“underlying arthritic condition involving the cervical spine, right shoulder, right hip, and left
ankle.”
Utilizing the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides), Dr. Garvey determined that appellant had zero
percent permanent impairment related to the accepted lumbar and lumbosacral sprains. She
explained that he was able to flex forward to 90 degrees and extend his back to 30 degrees
without difficulty. Dr. Garvey also noted that there were no peripheral nerve impairments
identified for either the right or left lower extremities related to appellant’s spinal nerve.
Accordingly, she concluded that he did not have any permanent impairment for his accepted
lumbar condition. Regarding appellant’s left shoulder sprain, Dr. Garvey explained that
according to sections 15.2 and 15.3b in Chapter 15 ROM deficits may be used when the
diagnosis-based impairment (DBI) grids referred to ROM as the most appropriate mechanism.
She referenced Table 15.34 for rating appellant’s impairment due to ROM deficits and applied
his ROM findings on examination.7 Dr. Garvey determined that he had 11 percent impairment
of the left upper extremity due to the accepted left shoulder sprain. Regarding appellant’s left
shoulder AC joint strain, she referenced Table 15-5 and noted a default value of C. Applying
grade modifiers and the net adjustment formula, Dr. Garvey calculated that he had two percent
impairment.8 She combined appellant’s impairment for left shoulder sprain and AC joint sprain
for a total of 13 percent permanent impairment to his left shoulder.

5

Dr. Garvey reported ROM of abduction to 160 degrees, adduction to 30 degrees, flexion to 155 degrees,
extension to 55 degrees, internal rotation at 90 degrees to 45 degrees, and external rotation at 90 degrees to 80
degrees.
6

Dr. Garvey provided appellant’s completed PDQ questionnaire, which demonstrated a score of 115, and a
completed QuickDASH questionnaire, which demonstrated a score of 85.
7

Dr. Garvey calculated that: abduction of 160 degrees, with grade modifier of 1, resulted in three percent
impairment; adduction of 30 degrees, with grade modifier of 1, resulted in one percent impairment; flexion of 155
degrees, with grade modifier of 1 resulted in 3 percent impairment; extension of 55 degrees, with grade modifier of
0, resulted in 0 percent impairment; internal rotation at 90 degrees of 45 degrees, with grade modifier of 2, resulted
in four percent impairment; external rotation at 90 degrees of 80 degrees, with grade modifier of 0, resulted in
0 percent impairment. She combined all the impairment percentages for a total of 11 percent permanent impairment.
8

Dr. Garvey reported grade modifiers of 0 for functional history, 1 for diagnosis, and 1 for clinical studies for a
total net adjustment of -1.

3

OWCP referred appellant, along with the statement of accepted facts (SOAF) and
Dr. Garvey’s August 24, 2012 impairment rating, to Dr. Henry J. Magliato, a Board-certified
orthopedic surgeon and OWCP medical adviser, in order to determine whether appellant
sustained a permanent impairment to the left upper extremity. In an August 18, 2013 report,
Dr. Magliato recounted that OWCP accepted appellant’s claim for sprain of the lumbar spine and
lumbosacral joint and sprain of the left shoulder, upper arm, and AC joint. He noted that he
reviewed appellant’s records, including Dr. Garvey’s August 24, 2012 impairment rating, and
agreed with her findings that appellant had 11 percent permanent impairment of the left upper
extremity based on ROM deficits due to his accepted left shoulder sprain. Dr. Magliato
disagreed, however, with her additional two percent permanent impairment rating due to
appellant’s left shoulder AC joint sprain. He explained that the ROM method was a stand-alone
method and was not to be combined with any DBI methods using the shoulder grid.
Dr. Magliato reported that appellant reached MMI for his left shoulder on August 24, 2012.
By letter dated October 16, 2013, OWCP requested that Dr. Garvey review
Dr. Magliato’s August 18, 2013 report and submit an addendum addressing why she combined
the ROM stand-alone method with any DBI related method when determining impairment for
appellant’s left shoulder. No response was received.
In a decision dated December 6, 2013, OWCP denied appellant’s claim for a schedule
award. It pointed out that Dr. Garvey did not respond to OWCP’s October 16, 2013 letter and
determined that the medical evidence on the record failed to establish that he sustained a
permanent impairment to his left upper extremity as a result of his July 17, 2007 employment
injury.
On December 24, 2013 OWCP received appellant’s request, through counsel, for a
telephone hearing before an OWCP hearing representative. On June 10, 2014 a telephone
hearing was held before the Branch of Hearings and Review hearing representative. Appellant
stated that he did not have any injuries to his shoulder after the July 14, 2007 employment injury,
but he did experience a prior nonwork-related left shoulder injury and surgery for a partial
rotator cuff tear in 2002. He reported that in May 2008 he returned to full duty, but only worked
for one week because he still experienced symptoms such as shoulder and neck pain. Appellant
indicated that he retired due to disability in June 2008. Counsel referred to Dr. Garvey’s
impairment rating and pointed out that she provided detailed objective findings and explanation
for why appellant had 13 percent impairment of the left shoulder extremity according to the sixth
edition of the A.M.A., Guides. He alleged that the law gave the physician, not the hearing
representative, the authority to determine impairment rating according to the sixth edition of the
A.M.A., Guides. Counsel further asserted that OWCP failed to follow proper procedure when it
did not give a copy of the medical adviser’s report to appellant or himself and when it denied
appellant’s schedule award claim based on the fact that Dr. Garvey did not reply to OWCP’s
October 16, 2013 letter. He requested that OWCP vacate the December 6, 2013 denial decision
and refer appellant’s case for a second opinion examination.
In a letter dated June 21, 2014, appellant informed OWCP that he found only one legible
report regarding his left shoulder surgery in 2002. He stated that he also found some old reports
regarding a work injury in 1999. Appellant submitted a traumatic injury claim form (Form

4

CA-1) dated September 15, 1999 regarding a right foot and arm injury and various reports from
1999 regarding treatment for an injury to his right big toe and right arm.
Appellant provided a medical report regarding treatment for his left shoulder in 2002. In
a January 16, 2002 magnetic resonance imaging scan of the left shoulder, Dr. Ravindra V. Ginde,
a Board-certified diagnostic radiologist, reported intermediate increased signal with thickening
supraspinatus tendon consistent with partial tear.
By decision dated July 29, 2014, an OWCP hearing representative set aside the
December 6, 2013 denial decision. She determined that neither Dr. Garvey nor Dr. Magliato
explained how appellant’s July 14, 2007 work injury continued to cause residuals of the accepted
condition, or lead to any permanent impairment. The hearing representative remanded the case
for OWCP to refer appellant, along with a more comprehensive SOAF,9 to a second opinion
examiner, to determine whether appellant continued to suffer residuals of his left shoulder injury
and if so, whether he had permanent impairment of the left upper extremity in accordance with
the sixth edition of the A.M.A., Guides.
OWCP referred appellant’s claim, along with an updated SOAF and a position
description for a FSM operator, to Dr. Jeffrey Lakin, a Board-certified orthopedic surgeon, for a
second opinion examination. The updated SOAF included a description of the July 14, 2007
employment injury and his duties as a FSM clerk. It also indicated that along with appellant’s
accepted conditions he also suffered from preexisting hypertension, psoriatic arthritis, and a
nonwork-related left shoulder rotator cuff injury. Dr. Lakin was asked to examine appellant in
order to determine whether he continued to suffer residuals of his July 14, 2007 employment
injury and if so, whether he had any permanent impairment of the left upper extremity pursuant
to the sixth edition of the A.M.A., Guides.
In an August 26, 2014 report, Dr. Lakin accurately described the July 14, 2007
employment injury and the medical treatment he received. He reviewed appellant’s records and
noted a history of psoriatic arthritis and left and right shoulder surgeries. Upon examination of
appellant’s cervical spine, Dr. Lakin observed no tenderness and full active ROM. He also
reported no tenderness of the thoracic and lumbosacral spine and provided ROM findings.
Examination of appellant’s left shoulder further revealed full and symmetric ROM with no
tenderness in the glenohumeral joint, anterior subacromial space, the AC joint, and the
sternoclavicular joint. Impingement and drop arm tests were negative. Spurling’s and
Hoffman’s signs were also negative.
Dr. Lakin opined that appellant did not suffer any residuals of the left shoulder or upper
arm or AC joint sprains from the July 14, 2007 work injury. Utilizing the sixth edition of the
A.M.A., Guides, he indicated that, because appellant had no objective findings of his workrelated injury, there was no permanent impairment of the left upper extremity or lumbar spine
because all classes were zero. Dr. Lakin explained that appellant had excellent strength, ROM,
and no objective findings on examination, including tenderness. He specifically referenced
Table 16-2 for peripheral nerve impairment to the extremities and noted no objective findings,
9

The hearing representative specifically noted that the SOAF should include a description of the mechanism of
injury regarding the July 14, 2007 employment injury and a list of appellant’s concurrent and preexisting conditions.

5

which correlated with class zero impairment. Dr. Lakin also relied on Table 15-5 for appellant’s
left shoulder AC joint and shoulder sprain and indicated a class zero impairment. He reported a
date of MMI of August 26, 2014.
OWCP referred appellant’s claim back to Dr. Magliato, OWCP’s medical adviser, in
order to address whether appellant sustained any permanent impairment to the left upper
extremity as a result of his July 14, 2007 work injury. In a September 9, 2014 report,
Dr. Magliato noted that appellant’s accepted conditions of sprain of the upper back, sprain of the
lumbosacral joint, sprain of the left upper arm, and sprain of the left shoulder and left AC joint.
He related that he reviewed Dr. Garvey’s August 24, 2012 report, which indicated that appellant
had 13 percent permanent impairment, and Dr. Lakin’s August 26, 2014 report, which noted no
permanent impairment. Dr. Magliato indicated that Dr. Lakin found a normal examination in the
left upper extremity and opined that appellant was a class 0 in all the impairment tables. He
agreed with Dr. Lakin’s finding that appellant had zero percent permanent impairment of the left
upper extremity according to the sixth edition of the A.M.A., Guides.
By decision dated November 21, 2014, OWCP denied appellant’s schedule award claim
finding that he had not sustained a measurable permanent impairment of the left upper extremity
due to his July 24, 2007 employment injury. It determined that the weight of medical evidence
rested with Dr. Lakin’s August 26, 2014 report, which found that appellant did not suffer any
residuals of his employment injury and therefore he had no permanent impairment of the left
upper extremity.
On December 9, 2014 OWCP received appellant’s request, through counsel, for a
telephone hearing before an OWCP Branch of Hearings and Review hearing representative. On
May 20, 2015 a telephone hearing was held. Counsel alleged that Dr. Garvey’s report was the
report most compatible with the A.M.A., Guides. He also noted that the A.M.A., Guides
required that the method yielding the highest impairment be utilized for calculation of
impairment. Counsel further asserted that a conflict in medical evidence existed between
Dr. Garvey and Dr. Lakin regarding appellant’s impairment and appellant’s claim should be
referred for an impartial medical examination.
In a decision dated July 30, 2015, OWCP’s hearing representative affirmed the
November 21, 2014 decision denying appellant’s schedule award claim. The hearing
representative concluded that Dr. Lakin’s report constituted the weight of the medical evidence.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.10 Section
8107 of FECA sets forth the number of weeks of compensation to be paid for the permanent loss
of use of specified members, functions, and organs of the body.11 FECA, however, does not
10

See 20 C.F.R. §§ 1.1-1.4.

11

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).

6

specify the manner by which the percentage loss of a member, function, or organ shall be
determined. To ensure consistent results and equal justice under the law, good administrative
practice requires the use of uniform standards applicable to all claimants. Through its
implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.12
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).13 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.14
ANALYSIS
The issue on appeal is whether appellant established a permanent impairment of his left
upper extremity causally related to his July 14, 2007 employment injury, for schedule award
purposes.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.15
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.16 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
12

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

13

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
14

Isidoro Rivera, 12 ECAB 348 (1961).

15

T.H., Docket No. 14-0943 (issued November 25, 2016).

16

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

7

either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.17
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the July 30, 2015 decision.
Following OWCP’s development of a consistent method for calculating permanent impairment
for upper extremities to be applied uniformly, and such other development as may be deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper extremity
schedule award.
CONCLUSION
The Board finds this case not in posture for decision.

17

Supra note 15.

8

ORDER
IT IS HEREBY ORDERED THAT the July 30, 2015 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: April 7, 2017
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Allen Park, MI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-2114
Issued: March 7, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On September 16, 2013 appellant filed a timely appeal from an August 21, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying a period of
disability. 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 established that she was disabled for work for intermittent
dates from September 5, 2012 to January 25, 2013 due to an accepted left elbow injury.
FACTUAL HISTORY
OWCP accepted that on June 27, 2012 appellant, then a 31-year-old city letter carrier,
sustained left elbow tendinitis and tenosynovitis when she tripped and fell on a sidewalk.

1

5 U.S.C. § 8101 et seq.

Dr. Kirti Jain, an attending Board-certified family practitioner, diagnosed left elbow
tendinitis due to the June 27, 2012 fall. She held appellant off work from June 28 to
July 10, 2012. Dr. Jain restricted appellant to carrying mail for three hours per day, with limited
duty such as casing mail for the remainder of her tour. She renewed these restrictions through
November 16, 2012.
In a November 16, 2012 report, Dr. Jain noted examining appellant on November 1, 2012
for ongoing left elbow tendinitis. In a December 6, 2012 report, she held appellant off work
from November 29 to December 4, 2012. Dr. Jain released appellant to light duty as of
December 7, 2012 under the previous work restrictions.
On December 10, 2012 appellant claimed compensation for intermittent dates from
June 29, 2012 to January 9, 2013, as follows: September 1, 5, 6, 7, 8, 19, 21, 24, 25, 26 and 27;
October 3, 4, 5, 9, 10, 12, 13, 15, 17, 18, 19, 23, 25, 26 and 31; November 8, 26 and 30; and
December 1, 3, 4, 6, 7, 11, 14, 17, 18, 19, 20, 24, 26 and 29, 2012; and January 4, 5, 7, 9, 11, 15,
19 and 25, 2013. On the reverse of the claim forms and in a December 14, 2012 memorandum,
the employing establishment noted that no work was available within her restrictions for the
dates claimed but that she had provided no medical documentation.
In a January 3, 2013 report, Dr. Jain limited appellant to part-time light duty with lifting,
pulling and pushing limited to five pounds. She noted that appellant “should be able to take time
off when needed.”
In a March 15, 2013 letter, Dr. Jain opined that appellant’s condition had worsened.
“With work affecting [appellant’s] condition she is allowed to take days off intermittently as
needed due to pain in her left elbow and arm (June 28, 2012 to April 4, 2013).”
In an April 16, 2013 letter, Dr. Jain noted that appellant’s job duties required repetitive
motion of both upper extremities, which did not allow the accepted tendon inflammation to heal.
She stated that she did “not want [appellant] to use her left arm at all.”
In an April 23, 2013 letter, OWCP advised appellant of the additional evidence needed to
establish her claim, including a statement from her attending physician explaining the objective
findings related to the accepted injury, which supported the claimed period of disability. It
afforded her 30 days to submit such evidence.
In an April 29, 2013 letter, Dr. Jain opined that appellant was totally disabled for lightduty work “due to not being able to use her left arm from severe pain and inflammation of the
tendons in her arm” on the following dates: September 5 and 6, October 3, 10, 23 and 31,
November 26 and 30 and December 1, 3, 4, 6, 17, 18, 19, 20, 24 and 29, 2012, and January 4, 5,
7, 9, 11, 15 and 25, 2013.2
By decision dated June 11, 2013, OWCP accepted appellant’s claim for intermittent
periods of disability from September 1, 2012 to January 19, 2013 as the employing establishment
2

On its face, Dr. Jain’s April 29, 2013 letter dated the January dates as occurring in 2012. However, the
remainder of the letter demonstrates that the January dates were in 2013.

2

was unable to accommodate her medical restrictions on September 1, 7, 8, 19, 21, 24, 25, 26 and
27, October 4, 5, 9, 13, 15, 17, 18, 19, 25 and 26, November 8 and December 7, 11, 14, 26, 2012
and January 19, 2013. It denied appellant’s claim for wage-loss compensation on the following
dates on the grounds that the medical evidence did not support total disability for work:
September 5 and 6; October 3, 10, 23 and 31; November 26 and 30; December 1, 3, 4, 6, 17, 18,
19, 20 24 and 29, 2012; and January 4, 5, 7, 9, 11, 15 and 25, 2013.3 OWCP found that Dr. Jain
did not provide sufficient medical rationale explaining why the accepted left elbow injury would
disable appellant from light duty on those dates.
In a July 10, 2013 letter, appellant requested reconsideration. She contended that
OWCP’s delay in approving her claim effectively barred her from seeking treatment, causing her
condition to worsen. Appellant submitted June 2013 reports from an attending Board-certified
orthopedic surgeon that did not address the dates at issue. She also submitted physical therapy
notes from May and June 2013.
By decision dated August 21, 2013, OWCP denied modification of the prior decision on
the grounds that the evidence submitted was insufficient to establish disability for work on the
dates claimed. It found that Dr. Jain did not adequately explain why the accepted left elbow
injury would disable her for light-duty work on those dates.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.4 Under FECA, the term
“disability” is defined as an inability, due to an employment injury, to earn the wages the
employee was receiving at the time of the injury, i.e., an impairment resulting in loss of wageearning capacity.5 For each period of disability claimed, the employee has the burden of
establishing that he or she was disabled for work as a result of the accepted employment injury.6
Whether a particular injury causes an employee to become disabled for work and the duration of
that disability are medical issues that must be proved by a preponderance of probative and
reliable medical opinion evidence.7 The 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.8 The
Board will not require OWCP to pay compensation for disability in the absence of medical
3

The specific hours of compensation denied are as follows: 4 hours on September 5, 2012, 8 hours on
September 6, 3.42 hours on October 3, 8 hours on October 10, 4 hours on October 23, 8 hours on October 31,
November 26 and 30; 4 hours on December 1; 8 hours on December 3 and 4; 4 hours on December 6; 8 hours on
December 17, 18, 19, 20 and 24; 4 hours on December 29, 2012; and 8 hours on January 4, 5, 7, 9, 11, 15
and 25, 2013.
4

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

5

See Prince E. Wallace, 52 ECAB 357 (2001).

6

Dennis J. Balogh, 52 ECAB 232 (2001).

7

Gary J. Watling, 52 ECAB 278 (2001).

8

Manuel Garcia, 37 ECAB 767 (1986).

3

evidence directly addressing the specific dates of disability for which compensation is claimed.
To do so would essentially allow an employee to self-certify his or her disability and entitlement
to compensation.9
ANALYSIS
OWCP accepted that appellant sustained left elbow tendinitis and tenosynovitis when she
fell on a sidewalk on June 27, 2012. Appellant claimed that she was totally disabled for
intermittent dates from September 5, 2012 to January 25, 2013 due to the accepted left elbow
injury. She has the burden of establishing by the weight of the substantial, reliable and probative
evidence that she was totally disabled for work for the claimed period due to the accepted
injuries.10
Dr. Jain, an attending Board-certified family practitioner, retroactively allowed appellant
to take time off “as needed at any time from June 28, 2012 to April 4, 2013.” She held appellant
off work from November 29 to December 4, 2012. On April 29, 2013 Dr. Jain found that
appellant had been totally disabled for light-duty work due to inflammation of the tendons in her
left arm and severe pain on September 5 and 6, October 3, 10, 23 and 31, November 26 and 30,
December 1, 3, 4, 6, 17, 18, 19, 20, 24 and 29, 2012 and January 4, 5, 7, 9, 11, 15 and 25, 2013.
She stated that the repetitive upper extremity motion required by appellant’s light-duty work did
not allow the accepted tendon inflammation to heal. The Board notes that Dr. Jain did not
specify which job tasks required left upper extremity motion in excess of appellant’s limitations
of carrying mail for no more than three hours a day with light duty for the remainder of her tour.
Also, Dr. Jain did not clearly explain how or why the accepted injury disabled appellant for work
for certain of the dates claimed. This lack of medical rationale diminishes the probative value of
Dr. Jain’s reports.11
OWCP advised appellant by April 23, 2013 letter of the evidence needed to establish her
claim, including a physician’s opinion as to why the accepted injuries would disable her for work
for the claimed intermittent dates from September 5, 2012 to January 25, 2013. Appellant did
not submit such evidence. Dr. Jain did not provide sufficient medical rationale supporting that
the accepted left elbow injury totally disabled appellant for work for the claimed period.
Therefore, OWCP’s August 21, 2013 decision denying appellant’s claim for total disability
compensation for intermittent dates from September 5, 2012 to January 25, 2013 is proper under
the law and facts of the case.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.

9

Fereidoon Kharabi, 52 ECAB 291 (2001).

10

Alfredo Rodriguez, 47 ECAB 437 (1996).

11

Deborah L. Beatty, 54 ECAB 340 (2003).

4

CONCLUSION
The Board finds that appellant has not established that she was totally disabled for work
on September 5 and 6; October 3, 10, 23 and 31; November 26 and 30; December 1, 3, 4, 6, 17,
18, 19, 20 24 and 29, 2012; and January 4, 5, 7, 9, 11, 15 and 25, 2013 causally related to
accepted left elbow tendinitis and tenosynovitis.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 21, 2013 is affirmed.
Issued: March 7, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


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

)
)
)
)
)
)
)
)

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

Docket No. 12-1074
Issued: November 7, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 10, 2012 appellant filed a timely appeal from a March 9, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation benefits
effective March 11, 2012 for failure to submit a Form CA-1032 as requested.

1
2

5 U.S.C. § 8101 et seq.

The Board is limited to review of evidence that was before OWCP at the time of the March 9, 2012 decision.
20 C.F.R. § 501.2(c)(1). Evidence submitted by appellant after OWCP’s March 9, 2012 decision cannot be
considered by the Board.

FACTUAL HISTORY
On March 14, 1972 appellant, then a 45-year-old automobile mechanic, filed a traumatic
injury claim (Form CA-1) alleging that on March 11, 1972 he sustained a back injury when he
stepped off the curb and twisted his ankle. OWCP accepted the claim for low back strain and
paid medical and wage-loss benefits.
On August 1, 2011 OWCP informed appellant that federal regulations required him to
make an affidavit of any earnings and employment during the previous year and that a Form
CA-1032 was enclosed for that purpose. It notified him that he had to completely answer all
questions on the CA-1032 form and return the statement within 30 days or his benefits would be
suspended. The letter was sent to appellant’s address of record. Appellant did not respond.
By decision dated March 9, 2012, OWCP suspended appellant’s compensation benefits,
effective March 11, 2012, for failing to submit the CA-1032 form as requested. It noted that, if
appellant completed and returned an enclosed copy of the CA-1032 form, his compensation
benefits would be restored retroactively to the date they were suspended.
LEGAL PRECEDENT
FECA authorizes the Secretary of Labor to require a partially disabled employee to report
his or her earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies.3
Under section 10.528 of OWCP’s implementing federal regulations, an employee in
receipt of compensation benefits must complete an affidavit as to any work or activity indicating
an ability to work which the employee has performed for the prior 15 months.4 If an employee
who is required to file such a report fails to do so within 30 days of the date of the request, his or
her right to compensation for wage loss is suspended until OWCP receives the requested report.
At that time, OWCP will reinstate compensation retroactive to the date of suspension if the
employee remains entitled to compensation.5
ANALYSIS
On August 1, 2011 OWCP provided appellant with a Form CA-1032 and explained that
federal regulations required him to complete it and answer all questions concerning his
employment and earnings. It properly notified him that, if he did not completely answer all
questions and return the statement within 30 days, his benefits would be suspended. Appellant
did not respond prior to the March 9, 2012 OWCP decision.
On appeal, appellant argues that he did not receive OWCP’s August 1, 2011 letter and
CA-1032 form. Under the mailbox rule, it is presumed, absent evidence to the contrary, that
3

5 U.S.C. § 8106(b).

4

20 C.F.R. § 10.528.

5

Id.; see also 20 C.F.R. § 10.525.

2

notice mailed to an individual in the ordinary course of business was received by that individual.
The presumption arises when the record shows that the notice was properly addressed and
mailed.6 As the letter was sent to appellant’s address of record and not returned, the Board finds
that notice was received.
Based on the evidence of record,7 OWCP properly suspended appellant’s compensation
benefits pursuant to 20 C.F.R. § 10.528.8
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits for
failing to submit information on a Form CA-1032, as required.

6

See D.B., Docket No. 09-1434 (issued February 22, 2010); Levi Drew, Jr., 52 ECAB 442 (2001); Kimberly A.
Raffle, 56 ECAB 243 (1999).
7

The Board is limited to review of evidence that was before OWCP at the time of the March 9, 2012 decision.
20 C.F.R. § 501.2(c)(1). Evidence submitted by appellant after OWCP’s March 9, 2012 decision cannot be
considered by the Board.
8

J.J., Docket No. 09-1724 (issued March 1, 2010). See also James A. Igo, 49 ECAB 189 (1997).

3

ORDER
IT IS HEREBY ORDERED THAT the March 9, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 7, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4