United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.G., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Philadelphia, PA, Employer
__________________________________________

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

Docket No. 18-0825
Issued: December 10, 2018

Case Submitted on the Record

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

JURISDICTION
On March 5, 2018 appellant, through counsel, filed a timely appeal from a February 22,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP).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 the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a recurrence of total
disability commencing November 4, 2014, causally related to her accepted September 14, 2005
employment injury.

1

While this appeal was filed by counsel, Jeffrey P. Zeelander Esq., he notified the Board on March 22, 2018 that
he no longer represented appellant.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as presented
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On September 20, 2005 appellant, then a 36-year-old customer service representative, filed
a notice of traumatic injury (Form CA-1) alleging that, on September 14, 2005, she injured her
right wrist, lower back, and left knee when she slipped and fell on a wet floor while in the
performance of duty. She stopped work on the date of injury.
OWCP accepted the claim for brachial neuritis/radiculitis and unspecified thoracic/lumbar
neuritis/radiculitis. It paid appellant wage-loss compensation and medical benefits on the
supplemental rolls as of October 31, 2005 and on the periodic compensation rolls as of
October 1, 2006.
On August 28, 2008 the employing establishment offered appellant a modified customer
service representative position four hours a day, working half an hour at a time with half hour
breaks. Appellant accepted the position on August 29, 2008.
By decision dated October 28, 2008, OWCP determined that appellant’s actual earnings in
the part-time modified customer service representative position fairly and reasonably represented
her wage-earning capacity and reduced her compensation accordingly.
In reports dated November 4 and 7, 2014, Dr. Leonard A. Bruno, a Board-certified
neurosurgeon, who had treated appellant since December 2005, noted appellant’s complaint of
neck pain radiating into her head with severe headaches, bilateral arm pain, and increasing vertigo.
He diagnosed worsening C5-6 and C6-7 herniated discs, recommended surgery, and advised that
appellant could not work from November 4, 2014 to March 1, 2015 due to the herniated discs from
C5 to C7.
Appellant stopped work on November 4, 2014 and filed Form CA-7 claims for
compensation beginning that day. She continued to receive compensation based on a loss of wageearning capacity (LWEC) determination dated October 28, 2008. Dr. Bruno continued to advise
that appellant could not work.
Dr. Stephen J. Dante, a Board-certified neurosurgeon, examined appellant on
February 10, 2015. He reviewed imaging studies and diagnosed cervical spondylosis with
radiculopathy. Dr. Dante concluded that a treatment option would be cervical decompression and
fusion surgery.
In February 2015, OWCP referred appellant to Dr. Robert Allen Smith, a Board-certified
orthopedic surgeon, for a second opinion evaluation. Dr. Smith was specifically asked to identify
all current diagnosed conditions and explain whether they were causally related to the accepted

3

Docket No. 16-0075 (issued September 25, 2017); Docket No. 17-0608 (issued March 19, 2018).

2

September 14, 2005 employment injury. An addendum to a statement of accepted facts (SOAF)
dated February 19, 2015 indicated that cervical sprain had also been accepted.
In a February 27, 2015 report, Dr. Smith opined that there were no objective examination
findings to support appellant’s complaints and nothing to suggest an ongoing soft tissue sprain of
the neck or any active neuritis/radiculitis in the extremities, and that, based on multiple magnetic
resonance imaging (MRI) scans, she had preexisting degenerative disease of both her neck and
back. He advised that she could return to work with regard to the accepted conditions. In
April 2015 OWCP specifically asked Dr. Smith to comment on whether a cervical herniated disc
was a result of the September 14, 2015 employment injury and whether cervical spine surgery was
appropriate. On April 8, 2015 Dr. Smith advised that, as the findings of an October 9, 2006
electrodiagnostic study were mild and more than eight years old, there was no indication for
surgery without updated studies showing a progressive neurological deficit.
In reports dated March 26 to April 3, 2015, Dr. James S. Harrop, a Board-certified
neurosurgeon, noted seeing appellant for a long history of chronic neck and arm pain. He described
physical examination and discussed MRI scan findings. Dr. Harrop diagnosed cervical
myelopathy and recommended anterior cervical fusion at C5-6 and C6-7. He requested surgical
authorization.
In April 2015, OWCP determined that a conflict in medical evidence had been created
between Dr. Bruno and Dr. Smith regarding whether appellant had continuing residuals of the
2005 employment injury. Accordingly, it referred appellant to Dr. William H. Simon, a Boardcertified orthopedic surgeon, for an impartial evaluation. OWCP provided a SOAF that identified
the accepted conditions. In a set of questions, Dr. Simon was asked, inter alia, to describe any
diagnoses due to the employment injury and whether appellant continued to suffer residuals of the
accepted conditions. OWCP also asked him whether the recommended cervical spine surgery was
medically necessary.
In a June 7, 2015 report, Dr. Simon noted his review of the SOAF and medical record. He
described appellant’s complaints of radiating neck and low back pain, migraine headaches,
dizziness, and upper extremity tingling and numbness. Examination findings included limited
cervical and left shoulder range of motion, bilateral negative straight-leg raising, and tenderness
to palpation of the trapezius muscles. Dr. Simon discussed the September 4, 2014 MRI scan which
was initially read as showing increased herniation at C5-6 and C6-7. He reviewed this MRI scan
and interpreted it as showing a large osteophyte in the foramen on the right side at C5-6. Dr. Simon
noted that no other physician, except the physician who initially read this MRI scan, had diagnosed
disc herniations at these levels. He diagnosed degenerative disc disease of the cervical spine,
particularly at C5-6, with mild degenerative changes at C4-5 and C6-7, which had worsened with
the passage of time and were not related to the September 14, 2005 work injury.4 Dr. Simon
4

Appellant had a number of cervical spine MRI scans. An October 13, 2005 scan demonstrated mild disc bulges
and spurring at C4-5, C5-6, and C6-7 with possible foraminal encroachment. A September 26, 2006 scan showed disc
bulging and spondylotic changes at C4-5, C5-6, and C6-7 with mild ventral impingement and mild multilevel
encroachment. A May 16, 2007 scan revealed no major change from the September 26, 2006 study. An April 12,
2011 scan showed multilevel spondylosis resulting in multilevel neural foraminal stenosis and no evidence of frank
disc herniation. An April 13, 2012 scan demonstrated no significant change compared to the April 2011 study. A
September 4, 2014 scan showed left foraminal stenosis at C6-7 due to an eccentric disc bulge, a prominent right disc

3

indicated that the requested surgery, which was scheduled for June 8, 2015, was not for an
employment-related condition. Rather, it was necessary for appellant’s underlying degenerative
disc disease. Dr. Simon concluded that the accepted conditions had resolved.
In a May 14, 2015 report, Dr. Bruno noted treating appellant since 2005 for neck and arm
pain from a cervical disc herniation that also caused cervical vertigo and migraine headaches, and
that, as of November 4, 2014, appellant’s disc herniations were worsening. He opined that, within
a reasonable degree of medical certainty, appellant had herniated cervical discs at C5-6 and C6-7,
which required surgery to prevent further deterioration in her condition, further nerve damage, and
increased symptoms of neck pain, arm pain, weakness, and numbness.
Dr. Harrop performed C5-6 and C6-7 anterior cervical discectomy and fusion on
June 8, 2015.
By decision dated July 1, 2015, OWCP denied modification of the October 28, 2008
LWEC determination. It found that the weight of the medical evidence rested with the opinion of
Dr. Simon, the impartial medical examiner, who determined that appellant’s employment injury
had resolved without residuals and that she could return to her modified part-time work, with
regard to the accepted conditions.
In a July 31, 2015 supplemental report, Dr. Simon advised that appellant could return to
modified-duty work and that any restrictions were due to the underlying cervical degenerative disc
disease and were not related to the employment injury.
Appellant, through counsel, appealed the July 1, 2015 decision to the Board on
October 19, 2015.
On October 27, 2015 OWCP proposed to terminate appellant’s wage-loss compensation
and medical benefits. It found that Dr. Simon’s opinion that appellant no longer had disability or
residuals due to the accepted conditions constituted the weight of the medical evidence.
Appellant, through counsel, disagreed with the proposed termination and submitted
additional medical evidence including a November 11, 2015 report in which Dr. Bruno
recommended a slow increase in activity.
In a November 20, 2015 report, Dr. Harry A. Doyle, a Board-certified psychiatrist,
concluded that, as a result of appellant’s chronic pain and ongoing symptoms of anxiety and
depression, appellant could not return to her former job as a customer service representative or any
other full- or part-time work.
In reports dated December 22, 2015, Dr. Harrop noted seeing appellant in follow-up visit
post-cervical spine surgery. He maintained that since appellant had no symptoms prior to the

herniation at C5-6, and right foraminal stenosis at C4-5. A cervical spine scan on April 14, 2015 demonstrated
degenerative changes including tiny right disc protrusions at C4-5 and C5-6. A cervical spine computerized
tomography (CT) scan that day revealed mild-to-moderate degenerative changes with no high-grade central or
foraminal narrowing.

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employment injury, and immediately after the fall had severe radicular pain, she may have had
some degree of a traction injury and neuropathic pain and symptoms.
By decision dated March 3, 2016, OWCP finalized the termination of wage-loss
compensation and medical benefits, effective March 6, 2016, finding that the weight of the medical
evidence rested with the impartial medical opinion of Dr. Simon.
On March 28, 2016 appellant, through counsel, timely requested a hearing and submitted
additional medical evidence including a March 14, 2016 report in which Dr. Bruno reported
appellant’s chief complaint of low back pain. He indicated that her condition was no better, noting
continued right arm radiculitis, radiculopathy, and persistent radiating low back pain, migraines,
and headaches. Appellant additionally submitted evidence previously of record and reports of
hospitalization for the June 8, 2015 cervical spine surgery, psychiatric treatment notes, and an
April 20, 2016 x-ray of the cervical spine that demonstrated surgical changes.
A hearing was held on October 27, 2016. By decision dated January 9, 2017, OWCP’s
hearing representative affirmed the March 3, 2016 decision. He found that the weight of the
medical opinion evidence rested with Dr. Simon, the impartial medical examiner, who opined that
appellant’s cervical symptoms were due to her degenerative cervical condition which had
worsened over time. The hearing representative further found that the evidence of record was
insufficient to establish an emotional condition causally related to the September 14, 2005
employment injury.5
On September 25, 2017 the Board reversed the July 1, 2015 OWCP decision, finding that
it was error for OWCP to determine on October 28, 2008 that a part-time modified position fairly
and reasonably represented appellant’s wage-earning capacity when she had been employed full
time at the time of her employment-related injury on September 14, 2005.6
Following the Board’s September 25, 2017 decision, OWCP determined that appellant’s
work stoppage on November 4, 2014 would be considered a recurrence of disability.
By decision dated February 22, 2018, OWCP denied appellant’s claim for total disability
beginning November 4, 2014. It found the weight of the medical evidence rested with the opinion
of Dr. Simon, the impartial medical examiner, who advised that the work-related conditions had
resolved.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a previous
injury or illness without an intervening injury or new exposure to the work environment that caused

5

Appellant, through counsel, appealed the January 9, 2017 decision to the Board on January 18, 2017. By decision
dated March 19, 2018, the Board affirmed the January 9, 2017 decision. Supra note 3.
6

Supra note 3.

5

the illness.7 This term also means an inability to work when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to the work-related injury or
illness is withdrawn (except when such withdrawal occurs for reasons of misconduct,
nonperformance of job duties or a reduction-in-force), or when the physical requirements of such
an assignment are altered so that they exceed his or her established physical limitations.8
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the weight
of reliable, probative and substantial evidence a recurrence of total disability. As part of this
burden of proof, the employee must show either a change in the nature and extent of the injuryrelated condition, or a change in the nature and extent of the light-duty requirements.9
An individual who claims a recurrence of disability resulting from an accepted employment
injury has the burden of proof to establish that the disability is related to the accepted injury. This
burden requires furnishing medical evidence from a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the disabling condition is causally related to
the employment injury and supports that conclusion with sound medical reasoning.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a recurrence of
total disability commencing November 4, 2014, causally related to the accepted conditions of
brachial neuritis/radiculitis and thoracic/lumbar neuritis/radiculitis, and cervical strain.11
Appellant submitted a number of reports from Dr. Bruno, an attending Board-certified
neurosurgeon, who began treating her in December 2005. In reports dated November 4 and 7,
2014, Dr. Bruno noted appellant’s complaint of neck pain radiating into her head with severe
headaches, bilateral arm pain, and increasing vertigo. He diagnosed worsening C5-6 and C6-7
herniated disc, recommended surgery, and advised that she could not work from November 4,
2014 to March 1, 2015 due to the herniated discs from C5 to C7. Herniated cervical discs,
however, have not been accepted as caused by the September 14, 2005 employment injury.
Dr. Bruno did not provide a rationalized explanation as to why the additional conditions should be

7

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

8

Id.

9

Shelly A. Paolinetti, 52 ECAB 391 (2001); Robert Kirby, 51 ECAB 474 (2000); Terry R. Hedman, 38 ECAB
222 (1986).
10

S.S., 59 ECAB 315 (2008).

11

The Board notes that from the time appellant stopped work on November 4, 2014 until her wage-loss
compensation and medical benefits were terminated on March 6, 2016, she continued to receive compensation based
on the October 28, 2008 LWEC determination.

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found to be employment related.12 His opinion is therefore of diminished probative value in
establishing a recurrence of the accepted employment injury.
On May 14, 2015 Dr. Bruno noted that appellant’s disc herniations were worsening, and
they required surgery to prevent further deterioration in her condition, further nerve damage, and
increased symptoms of neck pain, arm pain, weakness, and numbness. On March 14, 2016 he
reported appellant’s chief complaint of low back pain and indicated that her condition was no
better, noting continued right arm radiculitis, radiculopathy and persistent radiating low back pain,
migraines, and headaches. This is the last medical report from a physician found in the record.
Dr. Bruno did not explain in his reports dated November 4, 2014 to March 14, 2016 how the
September 14, 2005 employment injury rendered appellant unable to perform the sedentary duties
she was performing on November 4, 2014 when she stopped work. A mere conclusion without
the necessary rationale explaining how and why the physician believes that a claimant’s accepted
exposure could result in a diagnosed condition is not sufficient to meet a claimant’s burden of
proof.13
Dr. Harrop first saw appellant in March 2015, over nine years after the employment injury.
He diagnosed cervical myelopathy and performed anterior discectomy and fusion at C5-6 and C67 on June 8, 2015. On December 22, 2015 Dr. Harrop opined that since appellant had no
symptoms prior to the employment injury and immediately after the fall had severe radicular pain,
she may have had some degree of a traction injury and neuropathic pain and symptoms. While the
medical opinion of a physician supporting causal relationship does not have to reduce the cause or
etiology of a disease or condition to an absolute certainty, neither can such opinion be speculative
or equivocal. The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to federal
employment and such relationship must be supported with affirmative evidence, explained by
medical rationale and be based upon a complete and accurate medical and factual background of
the claimant.14 Dr. Harrop’s reports lack sufficient specificity to meet appellant’s burden of
proof.15
Dr. Dante reviewed imaging studies and diagnosed cervical spondylosis with
radiculopathy. He however offered no opinion regarding causal relationship or whether these
conditions disabled appellant during the time period in question. Dr. Dante’s report is therefore
of no probative value.16
In a February 27, 2015 report, Dr. Smith, an OWCP referral physician, found no objective
evidence to support appellant’s complaints and nothing to suggest an ongoing soft tissue sprain of
the neck or any active neuritis/radiculitis in the extremities. He opined that, based on multiple
12

See M.S., Docket No. 16-1907 (issued August 29, 2017).

13

Id.

14

Patricia J. Glenn, 53 ECAB 159 (2001).

15

See Y.R., Docket No. 17-1521 (issued December 28, 2017).

16

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

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MRI scans, she had preexisting degenerative disease of both her neck and back and advised that
she could return to work with regard to the accepted conditions. As such, Dr. Smith’s report
supports a finding that appellant was not disabled as of February 27, 2015.
In April 2015, OWCP found a conflict in medical evidence between Dr. Bruno and
Dr. Smith regarding whether appellant had continuing residuals of the 2005 employment injury
and referred her to Dr. Simon for an impartial medical evaluation on that issue. As Dr. Simon was
not asked for an opinion regarding total disability between November 4, 2014 and June 7, 2015,
the date of his evaluation, his opinion would not be considered that of a referee opinion entitled to
special weight,17 and he did not comment on whether the September 14, 2005 employment injury
caused total disability after November 4, 2014. After his review of MRI scans, he diagnosed
degenerative disc disease of the cervical spine which was not due to the September 2005
employment injury, and on July 31, 2015 advised that appellant could return to modified duty
work, and that any restrictions were due to her underlying cervical degenerative disc disease which
was not employment related.
When an employee returns to light-duty work, he or she has the burden of proof to establish
a recurrence of disability due to the employment-related conditions, and that he or she cannot
perform such light duty.18 The employee must show a change in the nature of the accepted
condition or a change in the light-duty job requirements.19 The Board finds that appellant
submitted no such evidence in this case. Thus, appellant has not met her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a recurrence of
total disability commencing November 4, 2014, causally related to the accepted September 14,
2005 employment injury.

17

Section 8123(a) of FECA provides that, if there is disagreement between the physician making the examination
for the United States and the physician of the employee, the Secretary shall appoint a third physician who shall make
an examination. 5 U.S.C. § 8123(a). The implementing regulation states that, if a conflict exists between the medical
opinion of the employee’s physician and the medical opinion of either a second opinion physician or an OWCP
medical adviser, OWCP shall appoint a third physician to make an examination. This is called a referee examination,
and OWCP will select a physician who is qualified in the appropriate specialty and who has no prior connection with
the case. 20 C.F.R. § 10.321. When there exist opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the opinion of such
specialist, if sufficiently well rationalized and based upon a proper factual background, must be given special weight.
V.G., 59 ECAB 635 (2008).
18

Supra note 8.

19

K.C., Docket No. 09-1666 (issued August 25, 2010).

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ORDER
IT IS HEREBY ORDERED THAT the February 22, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 10, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF THE ARMY, CORPUS
CHRISTI ARMY DEPOT, Corpus Christi, TX,
Employer
__________________________________________

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Appearances:
Randy Wilson, for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1308
Issued: January 10, 2019

Case Submitted on the Record

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

JURISDICTION
On June 19, 2018 appellant, through his representative, filed a timely appeal from a
February 2, 2018 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.

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 more than 13 percent
permanent impairment of his left upper extremity, for which he previously received schedule
award compensation.
FACTUAL HISTORY
On May 18, 2009 appellant, then a 62-year-old material expediter, filed a traumatic injury
claim (Form CA-1) alleging that, on May 12, 2009, he injured his left shoulder in the performance
of duty. OWCP accepted the claim, assigned File No. xxxxxx812, for a sprain of the left shoulder
and upper arm at the rotator cuff, a disorder of the bursae and tendons of the left shoulder, and a
left shoulder and upper arm sprain.
OWCP had previously accepted that appellant sustained a crush injury to the fingers of his
left hand under File No. xxxxxx259. By decision dated July 10, 2003, it granted him a schedule
award for six percent permanent impairment of the left upper extremity due to the crush injury to
his left fingers under File No. xxxxxx259.3
In a June 2, 2011 report, Dr. Charles W. Breckenridge, a Board-certified orthopedic
surgeon, diagnosed status post repeat left shoulder rotator cuff repairs. He opined that appellant
had five percent permanent impairment of the left upper extremity using Table 15-5 on page 403
of the sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).4
An OWCP district medical adviser (DMA) reviewed the evidence on July 1, 2011. He
identified the diagnosis as a class one full-thickness tear of the rotator cuff, which yielded a default
value of five percent according to Table 15-5 on page 403 of the A.M.A., Guides. OWCP’s
medical adviser applied grade modifiers and concluded that appellant had seven percent permanent
impairment of the left upper extremity.
By decision dated August 11, 2011, OWCP granted appellant a schedule award for seven
percent permanent impairment of the left upper extremity. The period of the award ran for 21.84
weeks from June 13 to November 12, 2011.
In a report dated July 28, 2016, Dr. T. Bradley Edwards, a Board-certified orthopedic
surgeon, opined that appellant had 22 percent permanent impairment of the left upper extremity
due to reduced shoulder motion.
Dr. Herbert White, Jr, an occupational medicine specialist serving as a DMA, reviewed the
evidence and submitted a report dated October 3, 2016. He found that Dr. Edwards failed to

3

The record also contains a September 24, 1998 decision granting appellant a schedule award for six percent
permanent impairment of the left arm under OWCP File No. xxxxxx443. That claim has been retired and is not
currently accessible.
4

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

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measure appellant’s range of motion of the shoulder three times as required under the A.M.A.,
Guides and that his report was thus insufficient to support a permanent impairment rating.
OWCP, on October 17, 2016, referred appellant to Dr. James E. Butler, III, a Boardcertified orthopedic surgeon, for a second opinion evaluation to determine the extent of any
permanent impairment of the left upper extremity.
In a November 30, 2016 impairment evaluation, Dr. Butler discussed appellant’s
complaints of pain, weakness, tingling, and numbness in his left arm. He measured range of
motion for his left shoulder three times and found 110 degrees flexion, 30 degrees extension, 100
degrees abduction, 40 degrees adduction, 60 degrees internal rotation, and 60 degrees external
rotation. Dr. Butler diagnosed a left shoulder sprain, rotator cuff tear, labral tear, impingement
syndrome, joint arthrosis of the acromioclavicular (AC) joint, and status post two rotator cuff tears
with distal clavicle resections. He indicated that he was rating appellant’s impairment using the
diagnosis-based impairment (DBI) methodology rather than range of motion (ROM) methodology
due to inconsistencies between his measurements and the measurements previously obtained by
Dr. Edwards. Dr. Butler identified the diagnosis as a class 1 left shoulder sprain, rotator cuff
tear/labral tear, impingement syndrome, AC joint arthrosis, and status post rotator cuff repair, and
distal clavicle resection using Table 15-5 on page 403, which yielded a default value of 10 percent.
He applied grade modifiers and concluded that appellant had 12 percent permanent impairment of
the left upper extremity.
Dr. White reviewed the evidence on December 27, 2016 and noted that the DBI method
was “the preferred method for calculating impairments of the upper extremity” under the A.M.A.,
Guides. He identified the diagnosis using Table 15-5, the shoulder regional grid, as a class 1 distal
clavicle resection, which yielded a default value of 10 percent. Dr. White adjusted the permanent
impairment rating to 12 percent after applying grade modifiers.
By decision dated March 8, 2017, OWCP found that appellant had not established that he
was entitled to an increased schedule award. It noted that the evidence demonstrated that he had
12 percent permanent impairment of the left upper extremity, which was less than the previous
awards that totaled 13 percent permanent impairment.
In an August 2, 2017 report, Dr. Edwards reviewed appellant’s history of injury treated
with multiple shoulder surgeries. He diagnosed a left rotator cuff tear. Dr. Edwards provided grip
strength measurements on the left and the results of bilateral manual muscle testing for the
shoulders, elbows, and wrists. He measured range of motion for the left shoulder. Dr. Edwards
opined that appellant had 11 percent permanent impairment of the left upper extremity due to loss
of range of motion of the shoulder utilizing the ROM methodology.
Appellant, on December 4, 2017, requested reconsideration.
By decision dated February 2, 2018, OWCP denied modification of its March 8, 2018
decision. It found that Dr. Edwards’ report was not probative as he did not indicate that he had
used the sixth edition of the A.M.A., Guides and did not provide three separate range of motion
measurements for the left shoulder. OWCP further noted that Dr. Edwards’ permanent impairment

3

rating was less than that previously awarded to appellant, and thus was insufficient to support a
greater schedule award.
On appeal appellant questions why OWCP combined a schedule award for a smashed
finger with his shoulder award. He notes that he had a prosthetic right arm and thus performs all
activities with his left upper extremity.
LEGAL PRECEDENT
The schedule award provisions of FECA,5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment class of diagnosis (CDX) condition, which is then adjusted by grade modifiers based
on functional history (GMFH), physical examination (GMPE), and clinical studies (GMCS). The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9 OWCP
procedures provide that, after obtaining all necessary medical evidence, the file should be routed
to a DMA for an opinion concerning the nature and percentage of impairment in accordance with
the A.M.A., Guides, with the DMA providing rationale for the percentage of permanent
impairment specified.10
The A.M.A., Guides also provide that the ROM impairment method is to be used as a
stand-alone rating for upper extremity impairments when other grids direct its use or when no other
diagnosis-based sections are applicable.11 If ROM is used as a stand-alone approach, the total of
motion impairment for all units of function must be calculated. All values for the joint are
measured and added.12 Adjustments for functional history may be made if the evaluator

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
9

A.M.A., Guides 411.

10

See P.R., Docket No. 18-0022 (issued April 9, 2018); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Schedule Awards and Permanent Disability Claims, Chapter 2.808.6f (March 2017).
11

A.M.A., Guides 461.

12

Id. at 473.

4

determines that the resulting impairment does not adequately reflect functional loss and functional
reports are determined to be reliable.13
Regarding the application of ROM or DBI methodologies in rating permanent impairment
of the upper extremities, FECA Bulletin No. 17-06 provides:
“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 evaluation, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.”14 (Emphasis in the original.)
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP accepted that appellant sustained a sprain of the left shoulder and upper arm at the
rotator cuff, a left shoulder and upper arm sprain, and a disorder of the bursae and tendons of the
left shoulder due to a May 12, 2009 employment injury under File No. xxxxxx812. It had
previously accepted a crush injury to the fingers of appellant’s left hand under File No. xxxxxx259,
and, on July 10, 2003, granted him a schedule award for six percent permanent impairment of the
left upper extremity as a result of the crush injury.
By decision dated August 11, 2011, OWCP granted appellant a schedule award for seven
percent permanent impairment of the left upper extremity due to his left rotator cuff tear. Appellant
subsequently requested an increased schedule award, which OWCP denied on March 8, 2017.
Appellant requested reconsideration and submitted an August 2, 2017 report from
Dr. Edwards. Dr. Edward provided findings on examination, including range of motion
measurements for the left shoulder. He determined that appellant had 11 percent permanent
impairment of the left upper extremity due to loss of range of motion of the shoulder. OWCP
denied the claim as Dr. Edward had not provided three range of motion measurements as required
by the A.M.A., Guides and as he did not reference the provisions of the A.M.A., Guides in reaching
his impairment determination. It further found that Dr. Edwards’ report did not demonstrate that

13

Id. at 474.

14

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

5

appellant had more than 13 percent permanent left upper extremity impairment for which he had
previously received schedule awards.
The Board finds that OWCP did not follow the procedures outlined in FECA Bulletin
No. 17-06. As noted above, FECA Bulletin No. 17-06 provides detailed instructions for obtaining
sufficient evidence to conduct a complete impairment evaluation.15 It indicates that, if the rating
physician provides an assessment using the ROM method, the DMA should independently
calculate impairment using both the ROM and DBI methods and identify the higher rating. FECA
Bulletin No. 17-06 further provides that the evaluator should obtain three independent
measurements for range of motion and that the greatest measurement should be used to determine
the extent of impairment.16 FECA Bulletin No. 17-06 indicates that OWCP should instruct the
physician to obtain three independent measurements.17
As OWCP did not inform Dr. Edwards of the provisions of FECA Bulletin No. 17-06 and
attempt to obtain a supplemental report containing three independent measurements of range of
motion in accordance with the procedures set forth in the A.M.A., Guides and FECA Bulletin No.
17-06, the Board will remand the case for OWCP to obtain the evidence necessary to complete the
rating as described above.18 Following this and such further development as deemed necessary,
OWCP shall issue a de novo decision.
On appeal appellant contends that the schedule award he received for his smashed finger
should not be included in rating his shoulder impairment. OWCP regulations provide that benefits
payable under section 8107(c) shall be reduced by the period of compensation paid under the
schedule for an earlier injury if: “(1) compensation in both cases is for impairment of the same
member or function or different parts of the same member or function; and (2) OWCP finds that
the later impairment in whole or in part would duplicate the compensation payable for the
preexisting impairment.”19
OWCP determined that Dr. Edward’s finding of 11 percent permanent impairment of the
left upper extremity was insufficient to support an increased schedule award as it was less than the
previously awarded 13 percent left upper extremity impairment. Appellant previously received a
schedule award for six percent permanent impairment of the left upper extremity as a result of a
crush injury to the fingers of his left hand under File No. xxxxxx259. He also received a schedule
award in 2011 for seven percent permanent impairment of the left upper extremity due to his rotator
cuff injury. The Board finds that OWCP did not explain why appellant’s current impairment rating
for the shoulder duplicated his previous schedule award compensation, in particular the rating
issued for his crushed finger. The Board has explained that simply comparing the prior percentage
15

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

16

Id.

17

Id.

18

See J.V., Docket No. 18-1052 (issued November 8, 2018); M.C., Docket No. 18-0526 (issued
September 11, 2018).
19

20 C.F.R. § 10.404(d); see also A.T., Docket No. 17-1806 (issued January 12, 2018).

6

of impairment awarded to the current impairment for the same member is not always sufficient.20
The issue is not whether the current impairment rating is greater than the prior impairment ratings,
but whether it duplicates in whole or in part the prior impairment rating.21 On remand, after
properly calculating the extent of appellant’s current left upper extremity impairment, OWCP
should determine whether the impairment rating duplicates, in whole or in part, appellant’s prior
award.22
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 2, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: January 10, 2019
Washington, DC

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

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

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

20

See T.S., Docket No. 16-1406 (issued August 9, 2017).

21

Id.

22

See J.V., Docket No. 17-1766 (issued April 3, 2018).

7


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
VETERANS ADMINISTRATION MEDICAL
)
CENTER, Long Beach, CA, Employer
)
___________________________________________ )
Y.L., Appellant

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

Docket No. 08-1952
Issued: August 13, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 7, 2008 appellant filed a timely appeal of a May 6, 2008 decision of the Office of
Workers’ Compensation Programs that denied her request for reconsideration because it was
untimely and did not demonstrate clear evidence of error. She also appealed a November 29,
2007 decision that denied her request for reconsideration without further merit review. Because
more than one year has elapsed between the most recent merit a decision dated August 15, 2006
and the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).
ISSUES
The issues are: (1) whether the Office properly denied appellant’s request for
reconsideration pursuant to 5 U.S.C. § 8128(a); and (2) whether the Office properly refused to
reopen appellant’s claim for reconsideration on the grounds that her request was untimely filed
and failed to demonstrate clear evidence of error.

FACTUAL HISTORY
On March 13, 2000 appellant, then a 39-year-old program support assistant, filed an
occupational disease claim alleging that she sustained right shoulder pain, hand and finger
numbness and tingling in the performance of duty. The Office accepted her claim for right
shoulder impingement and authorized a subacromial decompression on October 19, 2000. It also
accepted fibromyalgia.1
On January 19, 2005 the Office granted appellant a schedule award for three percent
permanent impairment of the right arm. The award covered a period of 9.36 weeks for the
period September 27 to December 1, 2004. After appellant requested reconsideration, the Office
on February 1, 2006 denied modification of the January 19, 2005 decision. On March 15, 2006
appellant filed another claim for a schedule award.
On April 12, 2006 the Office advised appellant that she must exercise her appeal rights if
she disagreed with the Office’s schedule award decision. It also indicated that appellant would
be referred for a second opinion.
In a report dated May 4, 2006, Dr. Joseph P. Conaty, a Board-certified orthopedic
surgeon and an Office referral physician, reviewed appellant’s history of injury and treatment
and provided findings for range of motion. He noted that she reached maximum improvement
for the right shoulder on May 1, 2006 and on April 1, 2003 for the left shoulder. Dr. Conaty did
not report any permanent impairment.
On June 1, 2006 appellant requested reconsideration, contending that she was entitled to
a greater schedule award. In a February 8, 2006 report, Dr. Philip Hill, a Board-certified
orthopedic surgeon and treating physician, noted her work restrictions. In reports dated
February 13 to July 16, 2004, Dr. Rodney Bluestone, a treating physician Board-certified in
internal medicine, advised that appellant was permanent and stationary. In an April 11, 2006
report, Dr. Stuart Silverman, Board-certified in internal medicine and rheumatology, noted that
she had bilateral shoulder impingement and secondary fibromyalgia, with a history of low back
problems and piriformis syndrome, that were not accepted as industrial.
In an August 3, 2006 report, the Office medical adviser noted appellant’s history of injury
and treatment. He found that the medical evidence did not establish any increased impairment of
her right shoulder condition.
By decision dated August 15, 2006, the Office denied modification of its February 1,
2006 decision. It determined that the medical evidence did not support an increase in her
impairment.
1

Appellant also has several other claims. On August 24, 2000 she filed occupational disease claim, File No.
xxxxxx099, that was accepted for left shoulder impingement. The Office authorized arthroscopic decompression,
bursectomy and acromioplasty on December 24, 2002. An occupational disease claim for lower back pain was
denied under claim File No. xxxxxx482. Claim File No. xxxxxx450, filed on August 18, 2005, was accepted for
right shoulder subacromial bursitis, subdeltoid bursitis, temporary aggravation of her preexisting right shoulder
impingement syndrome and rotator cuff tendinitis.
Appellant had right shoulder revision surgery on
November 17, 2005 and returned to light duty on February 15, 2006.

2

On July 31, 2007 appellant requested reconsideration. She submitted additional
evidence, including reports from Dr. Silverman dated April 1, 2006 to June 6, 2007.
Dr. Silverman diagnosed bilateral shoulder impingement, secondary fibromyalgia and chest wall
syndrome with pectoralis tenderness. In reports dated January 30 to February 16, 2004,
Dr. Bluestone noted treatment of appellant but did not provide any impairment rating for the
right upper extremity.
Appellant also submitted several physical therapy reports, statements pertaining to the
use of her headphone and her job duties and an October 15, 2007 report from Dr. G.B. Ha Eri, a
Board-certified orthopedic surgeon, who did not provide an impairment rating for the right arm.
In a November 29, 2007 decision, the Office denied appellant’s reconsideration request
on the grounds that the evidence was insufficient to warrant further merit review. It found that
no relevant medical evidence pertaining to permanent impairment, was submitted.
On January 28, 2008 appellant requested reconsideration and submitted a July 23, 2007
report from Dr. H. Leon Brooks, a Board-certified orthopedic surgeon, who had treated her since
February 14, 2007 and determined that she would require surgery to her left shoulder.
Dr. Brooks advised that under the American Medical Association, Guides to the Evaluation of
Permanent Impairment, (A.M.A., Guides) appellant’s range of motion in the right shoulder
represented 28 percent impairment. He opined that this represent 17 percent whole person
impairment pursuant to Table 16-3.2
In a decision dated May 6, 2008, the Office denied appellant’s request for reconsideration
for the reason that it was not timely filed and failed to present clear evidence of error.
LEGAL PRECEDENT -- ISSUE 1
Under section 8128(a) of the Federal Employees’ Compensation Act,3 the Office may
reopen a case for review on the merits in accordance with the guidelines set forth in section
10.606(b)(2) of the implementing federal regulations, which provide that a claimant may obtain
review of the merits if the written application for reconsideration, including all supporting
documents, sets forth arguments and contains evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by [the
Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by the [the Office].”4
2

A.M.A., Guides 439 (5th ed. 2001).

3

5 U.S.C. § 8128(a).

4

20 C.F.R. § 10.606(b).

3

Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.5
ANALYSIS -- ISSUE 1
On July 31, 2007 appellant filed a timely request for reconsideration of the Office’s
decision dated August 15, 2006, denying her claim for an increased schedule award.
The Board initially notes that appellant’s statements dated April 10 and July 10, 2007,
pertaining to the use of her headphone and her job duties are not relevant to her claim for an
increased schedule award, as this issue is medical in nature.
The medical evidence in support of appellant’s request for reconsideration was comprised
of several reports from Dr. Silverman, Dr. Bluestone, Dr. Hill and Dr. Ha Eri. However, these
reports are not relevant to the issue of her entitlement to an increased schedule award. None of
the physicians made any findings or addressed the issue of permanent impairment of her right
shoulder. These reports are not relevant to that issue. The submission of evidence that does not
address the particular issue involved does not constitute a basis for reopening a case.6
The Office also received several physical therapy reports. Section 8101(2) of the Act
provides that the term “physician” includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by the applicable state law. Health care providers such as nurses, acupuncturists,
physician’s assistants and physical therapists are not physicians under the Act.7 Appellant did
not provide any new medical evidence relevant and pertinent to the issue of impairment.
The evidence submitted by appellant on reconsideration does not satisfy the third
criterion for reopening a claim for merit review. She has not shown that the Office erroneously
applied or interpreted a specific point of law or advanced a relevant new argument not previously
submitted. Therefore, the Office properly denied her request for reconsideration.

5

Id. at § 10.608(b).

6

Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000); Robert P.
Mitchell, 52 ECAB 116 (2000).
7

See Jane A. White, 34 ECAB 515, 518 (1983). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where
the Board held that medical opinion, in general, can only be given by a qualified physician).

4

LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act8 vests the Office with discretionary authority to determine
whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at anytime on his own motion or on application. The Secretary, in
accordance with the facts found on review may-(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”9
The Office’s imposition of a one-year time limitation within which to file an application
for review as part of the requirements for obtaining a merit review does not constitute an abuse
of discretionary authority granted the Office under section 8128(a).10 This section does not
mandate that it review a final decision simply upon request by a claimant.
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a). Thus, section 10.607(a) of the implementing
regulations provide that an application for reconsideration must be sent within one year of the
date of the Office decision for which review is sought.11
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.12
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
that was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence that does not raise a substantial
question concerning the correctness of the Office’s decision is insufficient to establish clear
evidence of error. It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by the Office of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of the Office.13 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
8

5 U.S.C. §§ 8101-93.

9

Id. at § 8128(a).

10

Diane Matchem, 48 ECAB 532, 533 (1997); citing Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

11

20 C.F.R. § 10.607(a).

12

Id. at § 10.607(b).

13

Steven J. Gundersen, 53 ECAB 252, 254-55 (2001).

5

a conflict in the medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision. The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.14
ANALYSIS -- ISSUE 2
In its May 6, 2008 decision, the Office properly determined that appellant failed to file a
timely application for review. It rendered its last merit decision on August 15, 2006.
Appellant’s January 28, 2008 letter requesting reconsideration was submitted more than one year
after the August 15, 2006 merit decision and was, therefore, untimely.
In accordance with internal guidelines and with Board precedent, the Office properly
proceeded to perform a limited review to determine whether appellant’s application for review
showed clear evidence of error, which would warrant reopening appellant’s case for merit review
under section 8128(a) of the Act, notwithstanding the untimeliness of his application. It
reviewed the evidence submitted by appellant in support of his application for review, but found
that it did not clearly show that the Office’s prior decision was in error.
The Board finds that appellant’s January 28, 2008 request for reconsideration failed to
show clear evidence of error. In support of her untimely request for reconsideration, she
submitted Dr. Brooks’ July 23, 2007 report in which he recommended 28 percent right arm or
17 percent whole person impairment. This report is insufficient, however, as Dr. Brooks
provides no findings or measurements to support his impairment rating and he does not correlate
any such findings to the Office’s standard for evaluating schedule impairment, the A.M.A.,
Guides.15 Additionally, the Act does not provide a schedule award based on whole person
impairments.16 This report does not raise a substantial question as to the correctness of the
Office’s decision and is insufficient to demonstrate clear evidence of error.
Office procedures provide that the term “clear evidence of error” is intended to represent
a difficult standard. The claimant must present evidence which on its face shows that the Office
made an error (for example, proof of a miscalculation in a schedule award). Evidence such as a
detailed, well-rationalized report, which if submitted prior to the Office’s denial, would have
created a conflict in medical opinion requiring further development, is not clear evidence of error
and would not require a review of a case.17

14

Id.

15

See 20 C.F.R. § 10.404.

16

See Tania R. Keka, 55 ECAB 354 (2004); James E. Mills, 43 ECAB 215 (1991) (neither the Act, nor its
implementing regulations provide for a schedule award for impairment to the body as a whole).
17

Annie L. Billingsley, 50 ECAB 210 (1998).

6

Consequently, the evidence submitted by appellant on reconsideration is insufficient to
establish clear evidence of error on the part of the Office such that the Office abused its
discretion in denying merit review. On appeal, she disputed that her reconsideration request was
untimely. However, as noted above, the request dated January 28, 2008, was received more than
one year from the last merit decision dated August 15, 2006 and was untimely. Appellant also
contends that she should receive a greater award. However, she has not submitted evidence that
raises a substantial question as to the correctness of the Office’s August 15, 2006 decision.
Appellant has not established clear evidence of error.18
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration
pursuant to 5 U.S.C. § 8128(a). The Board further finds that the Office properly refused to
reopen her claim for reconsideration of the merits on the grounds that it was untimely filed and
failed to show clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the May 6, 2008 and November 29, 2007 decisions
of the Office of Workers’ Compensation Programs are affirmed.

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

18

The Board notes that appellant retains the right to file a claim for an increased schedule award based on new
exposure or on medical evidence indicating that the progression of an employment-related condition, without new
exposure to employment factors, has resulted in a greater permanent impairment than previously calculated.
Linda T. Brown, 51 ECAB 115 (1999).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.P., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS, Barstow, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 10-1174
Issued: January 19, 2011

Case Submitted on the Record

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

JURISDICTION
On March 24, 2010 appellant filed a timely appeal from the November 2, 2009 merit
decision of the Office of Workers’ Compensation Programs denying injury on June 1, 2009 and
the March 8, 2010 nonmerit decision of the Office denying his request for reconsideration.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over these decisions.1
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained an injury in the performance of duty on June 1, 2009; and (2) whether the Office
properly denied appellant’s request for further review of the merits pursuant to 5 U.S.C.
§ 8128(a).

1

For Office decisions issued prior to November 19, 2008, a claimant had one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. See 20 C.F.R.
§ 501.3.

FACTUAL HISTORY
On June 5, 2009 appellant, then a 39-year-old sandblaster, filed a traumatic injury claim
(Form CA-1) alleging that he injured his right leg at work at 2:00 p.m. on June 1, 2009. While
on a run behind 744 Yermo Base with a coworker, Christopher Ware, he tripped and fell and
heard his right hamstring muscle pop. On the form, Mr. Ware indicated that, after starting the
run on break time, appellant grabbed his right leg and fell to the ground. Roger Hyndman,
appellant’s immediate supervisor, stated that the claimed running injury did not occur in the
performance of duty as it happened during a 10-minute break, did not occur during a sanctioned
employer event and did not occur while performing work duties.
On June 12, 2009 the Office requested that appellant submit additional evidence and
answer questions regarding his claim. It asked that he address his employer involvement in his
running activity on June 1, 2009. On June 12, 2009 the Office also requested that the employing
establishment answer questions regarding the incident. It provided both 30 days to respond.
Appellant submitted medical evidence in support of his claim, including reports of
Dr. Rama T. Pathi, an attending Board-certified orthopedic surgeon.
In an undated statement received on June 26, 2009, appellant advised that he was not
required to participate in the running activity on June 1, 2009, but noted that employees were
encouraged to participate in the employer’s Wellness Program that included exercise during
work breaks. He stated that the specific benefit his employer derived from the activity was
having a fitter employee who would have a reduced chance of using sick days or sustaining a
work-related injury. Appellant ran with Mr. Ware, who suggested that he take the run with him.
He stated that the injury on June 1, 2009 occurred during regular working hours and on the
employer’s premises. Appellant fell when his right feet got caught on an uneven portion of
pavement.
In a July 20, 2009 decision, the Office denied appellant’s claim on the grounds that he
did not establish that he sustained an injury in the performance of duty on June 1, 2009. The
Office found that, while it was reasonable for appellant to be on the premises, there was no
evidence to establish that the activity was required, or part of his services as an employee.
Further, his employer did not derive a substantial direct benefit from the activity beyond the
general improvement of employee health and morale.
In a July 1, 2009 letter, Mr. Hyndman stated that appellant was not required to participate
in the running activity on June 1, 2009, that the employer gained no benefit from the activity,
that no other employees were required to participate, that appellant’s activity did not violate any
rules, that the injury occurred during the last scheduled break of the day on base property and
that the employer did not provide leadership, equipment or facilities for the activity.
In an undated statement, appellant asserted that the Office improperly characterized his
break time as lasting 10 minutes rather than the actual time of 15 minutes. He stated that many
agency employees used their 15-minute break times to engage in weight lifting, basketball and
light jogging. Appellant asserted that the recreation section of the CA-810 publication provided
that employees engaged in informal recreation, such as jogging, while on the agency premises

2

were considered to be in the performance of duty and there was no requirement to show how the
activity benefited the employer. He stated that his workplace had an active Wellness Program
that encouraged employees to engage in physical and recreational activities which promoted
physical fitness. The employer provided designated exercise areas to run and jog. Appellant
asserted that he had met all the guidelines to establish his case for a traumatic work-related
injury as it happened within an eight-hour shift, on his employer’s property, and he was engaged
in an “accepted performance of duty activity.” He notified his supervisor within 24 hours of the
injury by completing a Form CA-1 and requested medical treatment within 24 hours of the
injury. Appellant submitted additional medical evidence.
Appellant submitted documents from June 2005 concerning the employer’s Wellness
Program which noted that the program was strictly voluntary and was designed “to improve the
health, fitness and the quality of life for our civilian work force.” The time that the employee
contributed to the program could be in the form of annual leave, leave without pay, lunch time or
periods before or after the start of a shift. Appellant also submitted documents outlining general
health and safety standards.2
In a November 2, 2009 decision, the Office affirmed the July 20, 2009 denial of
appellant’s claim for a June 1, 2009 injury. It considered his statement, as well as the submitted
documents regarding the Wellness Program and safety and health guidelines, but found that he
was not required to participate in the running activity on June 1, 2009. The Office stated, “In
summary, none of the claimant’s arguments are sufficient to alter the findings of this Office.
The claimant did not show that the employing establishment received a substantial benefit
beyond the … fitness and well being of the employees.”
In a February 24, 2010 letter, appellant requested reconsideration of his claim. He
indicated that he had never signed nor been accepted for his employers Wellness Program and
that he was not “obligated to any special … requirements of this formal program.” Appellant
stated:
“I am however a federal employee as described in CA 810. I was at the time of
my injury in a paid status as described in CA 810. I was involved in an accepted
informal activity on the property of my employer at the time of this injury as
described in CA 810. I notified my employer with a CA-1 at the time of this
injury as described in CA 810. I requested within 24 hours for medical
treatments for this injury as described in CA 810. I provided proper medical
evidence as described in CA 810. I have met all requirements concerning this
injury as specified in the CA 810; please reconsider this decision in my favor.”
Appellant submitted additional medical reports including those of Dr. Pathi.
In a March 8, 2010 decision, the Office denied appellant’s request for further review of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

2

Appellant submitted photographs which he indicated depicted various recreational facilities on the employer’s
premises, including a jogging track.

3

LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act3 provides for payment of compensation for
disability or death of an employee resulting from personal injury sustained while in the
performance of duty.4 The phrase “sustained while in the performance of duty” is regarded as
the equivalent of the coverage formula commonly found in workers’ compensation laws,
namely, “arising out of and in the course of employment.”5 “Arising out of the employment”
tests the causal connection between the employment and the injury; “arising in the course of
employment” relates to the time, place and work activity involved.6 For the purposes of
determining entitlement to compensation under the Act, “arising in the course of employment,”
i.e., performance of duty must be established before “arising out of the employment,” i.e., causal
relation, can be addressed.7
With regard to recreational or social activities, the Board has held that such activities
arise in the course of employment when: (1) they occur on the premises during a lunch or
recreational period as a regular incident of the employment; or (2) the employer, by expressly or
impliedly requiring participation, or by making the activity part of the service of the employee,
brings the activity within the orbit of employment; or (3) the employer derives substantial direct
benefit from the activity beyond the intangible value of improvement in employee health and
morale that is common to all kinds of recreation and social life.”8
ANALYSIS -- ISSUE 1
Appellant alleged that he sustained a right leg injury in the performance of duty on
June 1, 2009 when he fell while jogging during a work break. The Office denied his claim
finding an insufficient nexus between his work and his activities when he was injured on
June 1, 2009.
Applying the above criteria to the facts in the present case, the Board finds that appellant
was not in the performance of duty when he injured his right leg on June 1, 2009. Appellant’s
injury occurred on the premises of the military base but it did not occur during a lunch or
recreational period as a regular incident of his employment. With respect to an express or implied
requirement to participate in the running activity, the evidence of record reveals that participation in
the activity was purely voluntary on the part of appellant. There is no evidence to show that
participation in the activity was made part of the services of appellant. Appellant made note of the
employer’s Wellness Program but there is no evidence that he ever participated in such a program.
3

5 U.S.C. §§ 8101-8193.

4

Id.. at § 8102(a).

5

See Bernard D. Blum, 1 ECAB 1 (1947).

6

See Eugene G. Chin, 39 ECAB 598, 601-02 (1988); Clayton Varner, 37 ECAB 248, 250 (1985).

7

Kenneth B. Wright, 44 ECAB 176, 181 (1992).

8

See Lawrence J. Kolodzi, 44 ECAB 818, 822 (1993); Kenneth B. Wright, supra note 7. See also A. Larson, The
Law of Workers’ Compensation § 22.00 (2010).

4

Even if he had participated in such a program, such participation would not bring his activities
within the performance of duty as the materials submitted by him show that the Wellness Program
was “strictly voluntary” and had the general goal of promoting employee health and well being.9
Appellant’s immediate supervisor explicitly indicated that appellant was not required to
participate in the running activity on June 1, 2009, that the employing establishment gained no
benefit from the activity, that no other employees were required to participate, and that the
employer did not provide leadership, equipment or facilities for the activity. The employing
establishment acknowledged that the injury occurred during a 10-minute break, but there is no
indication that the employing establishment required or sponsored recreational activities during
break periods.10
Both appellant and the employing establishment essentially indicated that the only benefit to
the employing establishment was related to employee morale and well being. No evidence in the
record suggests that the activity was related in any notable way to the employing establishment’s
business.11 Consequently, there is no evidence that the employing establishment derived substantial
direct benefit from the activity beyond that intangible value of improvement in employee health and
morale that is common to all kinds of recreational activity. For these reasons, appellant did not
show that his claimed injury on June 1, 2009 occurred in the performance of duty.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the
Act,12 the Office’s regulations provide that the evidence or argument submitted by a claimant
must: (1) show that the Office erroneously applied or interpreted a specific point of law;
(2) advance a relevant legal argument not previously considered by the Office; or (3) constitute
relevant and pertinent new evidence not previously considered by the Office.13 To be entitled to
a merit review of an Office decision denying or terminating a benefit, a claimant also must file
his application for review within one year of the date of that decision.14 When a claimant fails to
9

Appellant asserted that the recreation section of a “CA 810 publication” stated that employees engaged in
informal recreation, such as jogging, while on the agency premises are considered to be in the performance of duty
and there is no requirement to show how the activity benefits the employer. The record does not contain a copy of a
document containing such language. Appellant submitted photographs which he indicated depicted various
recreational facilities on the employer’s premises, including a jogging track. It is unclear whether appellant was
using this jogging track when he was injured, but the mere existence of such a track on the employer’s premises
would not raise appellant’s running activity on June 1, 2009 to the level of a work activity.
10

Appellant claimed that his break was actually 15 minutes long, but he did not explain the significance of this
assertion to the main issue of the present case.
11

Appellant asserted that his claim was supported by the fact that he notified his supervisor within 24 hours by
completing a Form CA-1 and he requested medical treatment within 24 hours of the injury. He did not explain how
these facts helped bring his June 1, 2009 activities within the performance of duty.
12

Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
13

20 C.F.R. § 10.606(b)(2).

14

Id. at § 10.607(a).

5

meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.15 The Board has held that the submission of
evidence or argument which repeats or duplicates evidence or argument already in the case
record16 and the submission of evidence or argument which does not address the particular issue
involved does not constitute a basis for reopening a case.17
ANALYSIS -- ISSUE 2
In a February 24, 2010 letter, appellant requested reconsideration of his claim and argued
that he had established a work injury on June 1, 2009 because he was injured while on pay status
as a federal employee, he was injured while performing “an accepted informal activity” on the
employer’s premises, he filed a Form CA-1 within 24 hours of the injury and he sought medical
care within 24 hours.18 The submission of this argument would not require reopening of
appellant’s claim for merit review because he had previously made similar arguments to the
Office.19 Appellant submitted additional medical evidence, but the submission of this evidence
would not require reopening of his claim for merit review because the evidence is not relevant to
the main issue of the present case.20 The question of whether appellant’s activities on June 1,
2009 were sufficiently related to his work to have occurred within the performance of duty is a
factual question.
Appellant has not established that the Office improperly denied his request for further
review of the merits of its November 2, 2009 decision under section 8128(a) of the Act, because
the evidence and argument he submitted did not to show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office, or constitute relevant and pertinent new evidence not previously considered by the
Office.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained an injury in the performance of duty on June 1, 2009. The Board further finds that the
Office properly denied appellant’s request for further review of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).

15

Id. at § 10.608(b).

16

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

17

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

18

Appellant again asserted that a “CA 810” publication supported his claim.

19

See supra note 16.

20

See supra note 17.

6

ORDER
IT IS HEREBY ORDERED THAT the March 8, 2010 and November 2, 2009
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 19, 2011
Washington, DC

Alec J. Koromilas, 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
__________________________________________
G.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION HEALTH
ADMINISTRATION, Gainesville, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Capp P. Taylor, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0957
Issued: June 19, 2017

Case Submitted on the Record

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

JURISDICTION
On July 18, 2014 appellant, through counsel, filed a timely appeal from February 28 and
May 28, 2014 merit decisions 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.

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 established permanent impairment of her bilateral
lower extremities as a result of her December 17, 2009 employment injury.
FACTUAL HISTORY
On December 29, 2009 appellant, then a 57-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that on December 17, 2009 she sprained her lower back and
left buttocks while transferring a patient. She stopped work and returned to limited duty on
January 12, 2010.
OWCP accepted appellant’s claim for sprain of the lumbar spine.3
Appellant’s treating physician, Dr. John C. Charnas, Board-certified in occupational and
preventive medicine, continued to provide work restrictions for appellant.
On October 26, 2010 OWCP referred appellant’s claim to Dr. David Lotman, Boardcertified in physical medicine and rehabilitation, for a second opinion examination to determine
whether appellant continued to suffer residuals of her December 17, 2009 employment injury. In
a November 18, 2010 report, Dr. Lotman accurately described the December 17, 2009
employment incident and reviewed the medical treatment that appellant had received. Upon
examination of appellant’s lumbar spine, he observed general midline tenderness from about L3
to the sacrum and tenderness of both sacroiliac (SI) joints and both sciatic notches. Straight leg
raise testing was limited by low back pain. Dr. Lotman reported decreased sensation of the left
foot in the L5 distribution and of the right foot in both L5 and S1 distributions. Motor weakness
was also marked bilaterally. Dr. Lotman diagnosed degenerative disc disease of the lumbosacral
spine, lumbosacral strain resolved, and symptom magnification. He opined that appellant’s
accepted lumbosacral sprain had resolved and that she had no work restrictions causally related
to her December 17, 2009 employment injury.
OWCP thereafter determined that a conflict existed in the medical evidence as to whether
appellant still had residuals of the accepted condition. Appellant was referred to Dr. Raul B.
Zelaya, Board-certified in orthopedic surgery for an impartial medical evaluation. In reports
dated July 14 and August 16, 2011, Dr. Zelaya related that a repeat magnetic resonance imaging
(MRI) scan dated July 1, 2010 showed significant pathology that was not mentioned in the initial
MRI scan report. Dr. Zelaya concluded that appellant’s lumbosacral strain had not resolved and
that appellant also had a chronic right sacroiliitis which was caused by the work-related event.
On October 4, 2011 OWCP expanded the acceptance of appellant’s claim to include right
sacroiliitis.

3

OWCP paid leave buy back compensation for medical treatment that appellant received from February 18 to
November 16, 2010.

2

On December 14, 2012 appellant filed a claim for compensation (Form CA-7) requesting
a schedule award. In an October 4, 2012 letter, Dr. George G. Feussner, a Board-certified
psychiatrist and neurologist, reported that appellant had 20 percent permanent impairment. He
explained that this rating was based upon Table 17-4, class 3, page 571, of the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment,
(hereinafter A.M.A., Guides) (6th ed. 2009), which related directly to the abnormalities found on
appellant’s MRI scan and electromyography (EMG) tests and her symptoms.
OWCP also received an additional undated report by Dr. Feussner. In this report,
Dr. Feussner noted a date of injury of December 17, 2009 and related appellant’s accepted
conditions of lumbar sprain and right sacroiliitis. He indicated that at the time of injury appellant
complained of right SI joint pain radiating to her right leg. Dr. Feussner noted that records were
consistent with complaints of low back pain, radiating bilateral leg pain, and bilateral lower
extremity weakness. He reported that a December 28, 2009 lumbar spine MRI scan report
showed L4-5 broad-based disc bulge, bilateral foraminal narrowing, and broad-based disc bulge
at L5-S1 with mild right and mild-to-moderate left foraminal narrowing. Dr. Feussner also
indicated that a February 15, 2011 EMG and nerve conduction velocity (NCV) study of the
bilateral lower extremities was consistent with bilateral L5 radiculopathy, right greater than left.4
By letter dated January 8, 2013, OWCP requested that appellant’s treating physician
provide a medical report with an opinion on whether she had reached maximum medical
improvement (MMI) and whether she had a permanent impairment rating utilizing the A.M.A.,
Guides. Appellant was afforded 30 days to submit the additional evidence.
On January 18, 2013 Dr. James Dyer, a Board-certified orthopedic surgeon and OWCP
medical adviser, reviewed the medical evidence of record and noted that appellant had reached
MMI on November 16, 2010. He indicated that he disagreed with Dr. Feussner’s impairment
rating because it was improperly based on Table 17-4 of the A.M.A., Guides and failed to
properly utilize the July/August 2009, The Guides Newsletter for spinal injuries. Dr. Dyer
concluded that appellant had zero percent permanent impairment of appellant’s right and left
lower extremities.
In a letter dated January 24, 2013, Dr. Charnas related that he last treated appellant on
November 28, 2011. He noted that appellant was presently under the care of Dr. Feussner.
Dr. Charnas explained that since he was no longer appellant’s treating physician he was unable
to determine an impairment rating and would defer to Dr. Feussner.
OWCP received examination notes dated January 29 and February 18, 2013 from
Dr. Feussner who related that appellant continued to have some difficulty with her back and had
symptoms of radiculopathy. Dr. Feussner recommended that appellant continue with physical
therapy. He provided results from an EMG/NCV study of appellant’s bilateral lower extremities
dated February 15, 2011.

4

The report had a section entitled “Evaluation of Impairment,” which was crossed out and included a handwritten
notation to “see attached.”

3

By letter dated February 12, 2013, OWCP advised Dr. Feussner that FECA did not
provide for schedule awards for permanent impairment for the spine, but awards could be paid
for permanent impairment of the upper or lower extremities caused by injury to a spinal nerve. It
requested that Dr. Feussner provide an impairment rating of the affected extremities according to
the July/August 2009 The Guides Newsletter.
In a February 22, 2013 letter, Dr. Feussner noted that appellant had reached MMI. He
related that most of the information that OWCP had requested was already contained within his
records, including objective findings, subjective complaints, and diagnosis. Dr. Feussner
reported that appellant had 20 percent permanent impairment based upon the A.M.A., Guides,
sixth edition, Table 17-4, class 3, page 571. He explained that the diagnoses were confirmed by
abnormalities found on MRI scan and EMG tests. Dr. Feussner noted that appellant would be on
permanent restrictions for her back.
Appellant also provided several reports from Dr. Feussner, which were previously of
record, including a February 15, 2011 initial evaluation report. Dr. Feussner related that
appellant complained of lumbar pain radiating down both legs, right greater than left, numbness
and tingling of her right calf, anterior foot, left buttock, and thigh, and spasms of the right thigh.
He reviewed appellant’s history and conducted an examination. Dr. Feussner reported focal
tenderness and stiffness due to spasm and a mild degree of limitation of range of motion of
appellant’s lumbar spine. Straight leg raise testing was severely positive bilaterally. He
indicated that an EMG/NCV study performed that day was consistent with bilateral L5
radiculopathy, right greater than left. Dr. Feussner diagnosed severe lumbar radiculopathy
secondary to lumbar degenerative joint and disc disease. He provided the February 15, 2011
EMG/NCV study of the bilateral lower extremities.
OWCP received examination notes dated February 22, 2011 to February 18, 2013 by
Dr. Feussner who summarized the medical treatment appellant received for her continued
complaints of her back and bilateral lower extremities. Dr. Feussner provided examination
findings and indicated that appellant would have permanent restrictions for her back. He also
provided epidural injection reports. Dr. Feussner opined in an October 4, 2012 letter that
appellant had 20 percent permanent impairment.
In a March 13, 2013 report, Dr. H.P. Hogshead, a Board-certified orthopedic surgeon and
an OWCP medical adviser, reviewed the medical evidence of record, including Dr. Dyer’s
January 18, 2013 report and Dr. Feussner’s February 22, 2013 letter. He noted his disagreement
with Dr. Feussner’s impairment rating because it was based on Table 17-5 of the A.M.A., Guides
and OWCP did not recognize impairment of the spine nor whole person. Dr. Hogshead opined
that based on the record appellant had no impairment rating of the bilateral lower extremities.
OWCP denied appellant’s schedule award claim in a decision dated March 19, 2013. It
found that the medical evidence of record failed to establish ratable permanent impairment of a
scheduled member or function of the body causally related to the December 17, 2009
employment injury.
On April 10, 2013 appellant requested a telephone hearing before an OWCP hearing
representative, which was held on August 13, 2013. Counsel participated. He alleged that

4

instead of sending appellant’s schedule award claim to an OWCP medical adviser, OWCP
should have sent appellant’s schedule award claim to a second opinion examiner who was well
versed in applying the guidelines for rating an impairment to appellant’s lumbar spine,
particularly the July/August 2009, The Guides Newsletter. Counsel noted that OWCP’s medical
adviser should have done the same instead of only concluding that Dr. Feussner did not properly
utilize the A.M.A., Guides. He contended that appellant had 39 percent permanent impairment
of the right lower extremity and 29 percent permanent impairment of the left lower extremity.
By decision dated December 5, 2013, an OWCP hearing representative affirmed
OWCP’s March 19, 2013 schedule award decision. He found that the medical evidence of
record failed to establish ratable permanent impairment of a scheduled member or function of the
body causally related to the December 17, 2009 employment injury.
In letters dated December 14 and 17, 2013, counsel indicated that he was submitting an
impairment rating utilizing the July/August 2009 The Guides Newsletter. OWCP received a
December 9, 2013 report by Dr. Feussner who related that at the time of injury appellant
complained of right SI joint pain radiating down the right leg. Dr. Feussner noted that a
December 28, 2009 lumbar spine MRI scan showed L4-5 broad-based disc bulge, bilateral
foraminal narrowing, and broad-based disc bulge at L5-S1 with mild right and mild-to-moderate
left foraminal narrowing. He further related that a February 15, 2011 EMG/NCV study of the
bilateral lower extremities was consistent with bilateral L5 radiculopathy. Dr. Feussner opined
that according to Table 2 for spinal nerve impairment lower extremity, appellant has a default
class 1 impairment for L5 radiculopathy. He noted that a moderate rating was 13 percent and
mild sensory was 1 percent for a total of 14 percent lower extremity permanent impairment on
the right and 14 percent lower extremity permanent impairment on the left. Dr. Feussner
reported that findings were based on the July/August 2009 The Guides Newsletter.
On December 16, 2013 Dr. Hogshead, an OWCP medical adviser, again reviewed the
medical evidence of record, including Dr. Feussner’s December 9, 2013 report. He noted that
Dr. Feussner’s impairment rating relied on a February 15, 2011 electrodiagnostic study, but the
record provided by OWCP only contained the electrodiagnostic study without any analysis or
interpretation. Dr. Hogshead related that although Dr. Feussner noted bilateral L5 motor and
sensory radiculopathy of the bilateral lower extremities, Dr. Lotman, an OWCP second opinion
examiner, had found in his November 18, 2010 report that appellant had no evidence of
radiculopathy. He concluded that appellant had no permanent impairment of the bilateral lower
extremities causally related to the December 17, 2009 employment injury.
On January 7, 2014 appellant, through counsel, requested reconsideration. He indicated
that he was enclosing a December 9, 2013 report from Dr. Feussner, which was new evidence
that was not previously considered. Appellant submitted Dr. Feussner’s December 9, 2013
report. He also resubmitted the February 15, 2011 EMG/NCV study and initial evaluation report
by Dr. Feussner.

5

In a decision dated February 28, 2014, OWCP denied modification of the
December 5, 2013 decision. It found that the medical evidence of record failed to establish
ratable permanent impairment of a scheduled member or function of the body causally related to
the December 17, 2009 employment injury.
On April 28, 2014 appellant, through counsel, requested reconsideration. He alleged that
Dr. Feussner’s December 9, 2013 report clearly comported with the July/August 2009 The
Guides Newsletter. Counsel also noted that the February 15, 2011 EMG/NCV study should be in
appellant’s case file. He asserted that the December 16, 2013 report of OWCP’s medical adviser
was extremely tainted as he indicated that he did not review the February 15, 2011 EMG/NCV
study. Counsel contended that OWCP committed extreme error in not providing OWCP’s
medical adviser with the February 15, 2011 EMG/NCV study. He resubmitted Dr. Feussner’s
December 9, 2013 impairment rating report, Dr. Feussner’s February 15, 2011 EMG/NCV study,
and Dr. Feussner’s February 15, 2011 initial evaluation report.
By decision dated May 28, 2014, OWCP denied modification of the February 28, 2014
decision. It found that the medical evidence of record continued to lack probative evidence to
establish that appellant sustained a partial permanent impairment of a scheduled member covered
under FECA. OWCP also considered counsel’s new legal arguments and determined that the
arguments were insufficient to establish appellant’s schedule award claim.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations 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. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by OWCP as a standard for evaluation of schedule losses and
the Board has concurred in such adoption.6 For schedule awards after May 1, 2009, the
impairment is evaluated under the sixth edition of the A.M.A., Guides, published in 2009.7
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to her employment.8

5

Supra note 2.

6

20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

7

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

See Veronica Williams, 56 ECAB 367 (2005).

6

Neither FECA nor its regulations provide for a schedule award for impairment to the
back or to the body as a whole.9 Furthermore, the back is specifically excluded from the
definition of organ under FECA.10 The sixth edition of the A.M.A., Guides does not provide a
separate mechanism for rating spinal nerve injuries as impairments of the extremities.
Recognizing that FECA allows ratings for extremities and precludes ratings for the spine, the
July/August 2009, The Guides Newsletter offers an approach to rating spinal nerve impairments
consistent with sixth edition methodology. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP procedures indicate that The Guides
Newsletter is to be applied.11
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary
shall appoint a third physician (known as a referee physician or impartial medical specialist) who
shall make an examination.12 This is called a referee examination and OWCP will select a
physician who is qualified in the appropriate specialty and who has no prior connection with the
case.13
ANALYSIS
OWCP accepted that appellant sustained lumbar sprain and right side sacroiliitis as a
result of a December 17, 2009 employment injury. On December 14, 2012 appellant filed a
claim for a schedule award. She submitted various reports by Dr. Feussner who opined in a
December 9, 2013 report that appellant had 14 percent permanent impairment of each lower
extremity according to the A.M.A., Guides, July/August 2009 The Guides Newsletter.
Dr. Hogshead, an OWCP medical adviser, disagreed with Dr. Feussner’s impairment rating and
opined that appellant had no ratable impairment of her bilateral lower extremities causally
related to the December 17, 2009 employment injury. Based on Dr. Hogshead’s December 16,
2013 report, OWCP denied appellant’s schedule award claim.
The Board finds that this case is not in posture for decision as there is an unresolved
conflict in medical opinion regarding whether appellant has sustained a permanent impairment
for purposes of a schedule award.
In his December 9, 2013 impairment rating report, Dr. Feussner related that a
February 15, 2011 EMG/NCV study of appellant’s bilateral lower extremities was consistent
with bilateral L5 radiculopathy. He opined that based on the July/August 2009 The Guides
Newsletter, Table 2, for spinal nerve impairment of the lower extremity, appellant had a default
9

See N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).

10

See 5 U.S.C. § 8101(19); Francesco C. Veneziani, 48 ECAB 572 (1997).

11

Supra note 6 at Chapter 3.700 (January 2010). The Guides Newsletter is included as Exhibit 4.

12

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
13

20 C.F.R. § 10.321.

7

class 1 impairment for L5 radiculopathy. Dr. Feussner noted that a moderate rating was 13
percent and mild sensory rating was 1 percent for a total impairment of 14 percent lower
extremity impairment on the right and 14 percent lower extremity impairment on the left.
OWCP referred Dr. Feussner’s December 9, 2013 report to Dr. Hogshead, an OWCP
medical adviser, who disagreed with Dr. Feussner’s impairment rating. Dr. Hogshead explained
that although Dr. Feussner observed bilateral L5 radiculopathy of the lower extremities,
Dr. Lotman, an OWCP second opinion examiner, had found no evidence of radiculopathy in his
November 18, 2010 report. Accordingly, Dr. Hogshead concluded that appellant had no
permanent impairment of the bilateral lower extremities.
The Board finds that there remains an unresolved conflict in the medical evidence
between Dr. Feussner, appellant’s treating physician, and Dr. Hogshead, OWCP’s medical
adviser, regarding whether appellant has established permanent impairment of her bilateral lower
extremities as a result of her December 17, 2009 employment injury. In a December 9, 2013
report, Dr. Feussner opined that appellant had 14 percent permanent impairment of her bilateral
lower extremities. OWCP’s medical adviser, Dr. Hogshead, however, determined that appellant
did not have any ratable impairment of her bilateral lower extremities.
As noted above, if there is disagreement between an employee’s physician and OWCP’s
referral physician, OWCP will appoint a referee physician or impartial medical specialist who
shall make an examination.14 As there is an unresolved conflict in the medical evidence
regarding whether appellant has established permanent impairment of her bilateral lower
extremities as a result of her December 17, 2009 employment injury, the case must be remanded
to OWCP for referral to an impartial medical specialist for resolution of the conflict in the
medical opinion evidence in accordance with 5 U.S.C. § 8123(a). After such further
development as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

14

Supra note 12.

8

ORDER
IT IS HEREBY ORDERED THAT the May 28 and February 28, 2014 decisions of the
Office of Workers’ Compensation Programs are set aside and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: June 19, 2017
Washington, DC

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

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

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

9