United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Wenatohea, WA, Employer
__________________________________________

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

Docket No. 12-567
Issued: September 25, 2012

Case Submitted on the Record

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

JURISDICTION
On January 17, 2012 appellant filed a timely appeal of an August 17, 2011 decision of the
Office of Workers’ Compensation Programs (OWCP) denying her claim for an
employment-related injury and from an October 11, 2011 decision denying further merit review
of her claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant established that she sustained an injury to her neck
causally related to factors of her federal employment; and (2) whether OWCP properly denied
her request for merit review under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 23, 2011 appellant, then a 38-year-old postal distribution processing clerk, filed
an occupational disease claim. She initially injured her neck in a fall in June 2008 but was now
having chronic neck pain aggravated by sweeping and reaching duties. Appellant noted that her
pain worsened as her shift progressed.
By letter dated July 5, 2011, OWCP asked appellant to submit additional factual and
medical evidence in support of her claim.
Appellant submitted a June 24, 2011 statement documenting the history of her chronic
neck pain and describing the duties of her position. She also submitted a June 21, 2011 duty
status report from Dr. Dennis L. Baker, a chiropractor, who listed a history that she originally
hurt her neck in a fall and was now having chronic neck pain in the same area with repetitive
motion, such as sweeping and working the sorting machines. Dr. Baker diagnosed cervical
subluxation of the spine. He advised that appellant was limited to lifting 5 pounds continuously
and 40 pounds intermittently.
Appellant also submitted the results of a July 5, 2011 x-ray of the cervical spine that was
interpreted by Dr. David Levitsky, a Board-certified radiologist. The reasons for the study were
listed as cervical strain and sprain and cervical subluxation. The x-ray was interpreted as normal
and showed a stable cervical spine since July 16, 2008.
By decision dated August 17, 2011, OWCP denied appellant’s claim as the medical
evidence did not establish causal relationship.
On September 11, 2011 appellant requested reconsideration. She noted that Dr. Baker
was sending an additional report in support of her claim; however, no new evidence was
received.
By decision dated October 11, 2011, OWCP denied further review of the merits.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking compensation under FECA2 has the burden of establishing the
essential elements of her claim by the weight of the reliable, probative and substantial evidence,3
including that she is an “employee” within the meaning of FECA4 and that she filed her claim
within the applicable time limitation.5 The employee must also establish that she sustained an
injury in the performance of duty as alleged and that her disability for work, if any, was causally
2

Id. at §§ 8101-8193.

3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

4

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951);
See 5 U.S.C. § 8101(1).
5

R.C., 59 ECAB 427 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122.

2

related to the employment injury.6 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated on a traumatic injury or an
occupational disease.7
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.8
Causal relationship is a medical issue9 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,10 must be one of reasonable medical certainty,11
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.12
ANALYSIS -- ISSUE 1
The Board finds that appellant failed to establish that she sustained an injury in the
performance of duty causally related to factors of her federal employment. Appellant alleged
that an injury to her neck was aggravated by the duties of her federal employment. Her claim
was denied because she failed to establish a causal relationship between the accepted duties of
her federal employment and an aggravation of her cervical condition.
The medical evidence does not establish that appellant sustained an injury causally
related to the accepted duties of her federal employment. Section 8101(2) of FECA provides that
the term physician includes chiropractors only to the extent that their reimbursable services are
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as
demonstrated by x-ray to exist.13 The June 21, 2011 duty status form submitted by appellant’s
6

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

8

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

9

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

10

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

11

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

12

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

13

5 U.S.C. § 8101(2).

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chiropractor, Dr. Baker, noted a subluxation, but did not state that he was treating her with
manipulation of the spine or that the subluxation was diagnosed by x-ray. The only x-ray in the
record is the July 5, 2011 x-ray obtained after the June 21, 2011 duty status report from
Dr. Baker. As Dr. Baker has not diagnosed subluxation by x-ray, he is not a physician as defined
under FECA and his report is of no probative value.
The July 5, 2011 radiology report of Dr. Levitsky does not address causal relationship.
Appellant has not meet her burden of proof to establish that she sustained an injury
causally related to her federal employment.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,14
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.15 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.16 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.17
ANALYSIS -- ISSUE 2
In requesting reconsideration, appellant did not argue that OWCP erroneously interpreted
a specific point of law nor did she advance a relevant legal argument not previously considered.
Furthermore, she did not submit any new evidence with her reconsideration request. Although
appellant referenced a medical report in her reconsideration request, no such report was timely
received. Accordingly, the Board finds that OWCP properly declined to reopen her claim for
consideration of the merits.
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 and 10.607.18

14

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at anytime on her own motion or on application.” 5 U.S.C. § 8128(a).
15

20 C.F.R. § 10.606(b)(2).

16

Id. at § 10.607(a).

17

Id. at § 10.608(b).

18

On appeal, appellant contends that a September 6, 2011 medical report should be considered. This report was
received by OWCP after the issuance of its October 11, 2011 decision. The Board lacks jurisdiction to review
evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1).

4

CONCLUSION
The Board finds that appellant did not establish that she sustained an injury to her neck
causally related to factors of her federal employment. The Board further finds that OWCP
properly denied appellant’s request for merit review under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 11 and August 17, 2011 are affirmed.
Issued: September 25, 2012
Washington, DC

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

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

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

5


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

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Appearances:
Steven E. Brown, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-987
Issued: March 22, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On February 25, 2010 appellant’s attorney filed an appeal from a January 27, 2010
decision of the Office of Workers’ Compensation Programs regarding an attorney’s fee request.
Pursuant to the Federal Employees’ Compensation Act1 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 the Office abused its discretion in approving an attorney’s fee in the
amount of $115.50 for legal services rendered from May 13 to November 24, 2008.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This is the second appeal before the Board in this case. By decision and order issued
February 27, 2001,2 the Board affirmed the Office’s February 10, 1999 decision denying a
recurrence of disability from August 7 to 12, 1997 and set aside a December 30, 1998 decision
denying a period of disability beginning April 12, 1996.3 The law and the facts of the case as set
forth in the prior decision and order are incorporated by reference.
On October 4, 2007 appellant signed a representation agreement with Steven E. Brown,
Esquire, regarding her compensation claim. Pursuant to a schedule award claim, counsel
obtained a June 18, 2008 report from Dr. Jeffrey Gerry, a Board-certified physiatrist, offering a
whole person rating for lumbar spine impairment according to unspecified portions of the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides). On August 11, 2008 the Office advised Mr. Brown that
Dr. Gerry’s report was deficient. Counsel did not respond.
By decision dated October 8, 2008, the Office granted the claimant a schedule award for
a six percent impairment of the left lower extremity based on Dr. Gerry’s clinical findings of
sensory loss in the left leg. On November 5, 2008 counsel submitted a report from an orthopedic
surgeon calculating an eight percent impairment of the left lower extremity. Based on this
opinion, the Office issued a schedule award for an additional two percent impairment of the left
leg.
In a December 5, 2008 letter, counsel asked the claimant to review his fee request in the
amount of $2,594.00 for 11.60 hours of services rendered from May 10 to November 26, 2008.
He listed 71 tasks performed on the claimant’s behalf. Counsel submitted the fee request to the
Office on January 21, 2009 although the claimant had not yet approved the fee.
In a May 19, 2009 letter, appellant contested the fee. She asserted that Dr. Gerry’s report
was irrelevant as he rated lumbar spine impairment and not lower extremity impairment.
Appellant contended that a “good attorney never send that kind of report in because OWCP does
not pay for a back injury, he should have known better.”
Appellant requested a teleconference that was held June 18, 2009. She asserted that,
although counsel billed several telephone calls to her from May 13 to August 7, 2008, no firm
personnel spoke with her on those dates. The Office noted that there was no evidence
corroborating calls counsel claimed to have made to the Office from August 15 to
October 7, 2008. Counsel billed appellant for those calls.

2

Docket No. 99-1058 (issued February 27, 2001). The claimed recurrence of disability pertained to a March 23,
1992 lumbar strain and September 2, 1993 L4-5 laminectomy. The claimant was separated from the employing
establishment effective August 21, 1998. On March 14, 2003 the Office expanded the claim to accept aggravation
of L4-5 discogenic disease. The claimant underwent an L5-S1 laminectomy on August 28, 2006.
3

By decision dated April 9, 2001, the Office affirmed its February 10, 1999 decision denying an August 6, 1997
recurrence of disability and reimbursement for July 1, 1998 surgery. This decision is not before the Board on the
present appeal.

2

In a June 18, 2009 letter, appellant noted paying Dr. Gerry $300.00 for his report. She
submitted a March 5, 2008 letter from a paralegal employed by counsel, emphasizing the need
for the specialized schedule award evaluation that Dr. Gerry agreed to provide. The paralegal
asked appellant to “forward a check to our office in the sum of $300.00 so we can pay Dr. Gerry,
or pay Dr. Gerry directly and call us to advise that it has been done.”
In a June 30, 2009 letter, the Office directed counsel to expedite the process of a refund
of the $300.00 to appellant from Dr. Gerry’s office. Counsel and his associate Brett Blumstein,
Esq., submitted July 6, 2009 letters refusing to obtain a refund as the firm did not direct her to
pay Dr. Gerry. In a July 22, 2009 letter, the Office advised counsel that his bill listed a March 5,
2008 telephone call and letter to appellant regarding Dr. Gerry’s fee, demonstrating that he did
direct the claimant to pay Dr. Gerry.
In a July 22, 2009 letter, the Office advised counsel of the additional information needed
to substantiate his fee request. Due to the inconsistencies in his account of events, it requested a
detailed explanation of the necessity of the 71 listed services, including uncorroborated
telephone calls and case status meetings. Mr. Blumstein submitted an annotated bill on July 27,
2009, noting that each service was “important to the status of the case.” This included frequent
meetings of firm personnel to assure that all employees knew whether or not there were any
developments in the case. Counsel added in an August 5, 2009 letter that he billed appellant for
telephone calls even if a conversation did not occur, as it took time to prepare for and annotate
the call.
By decision dated January 27, 2010, the Office approved an attorney’s fee in the amount
of $115.50 for legal services performed by Mr. Brown from May 13 to November 24, 2008. It
allowed $46.50 for telephone calls to the Office on June 23 and July 16, 2008 and $66.00 for
reviewing the orthopedic surgeon’s report on October 27, 2008. The Office disallowed the
remaining $2,478.50 as counsel did not adequately explain the charges as requested.
LEGAL PRECEDENT
It is not the Board’s function to determine the fee for representative services performed
before the Office. That is a function within the discretion of the Office based on the criteria set
forth in Title 20 of the Code of Federal Regulations and mandated by Board decisions. The
Board’s sole function is to determine whether the action by the Office constituted an abuse of
discretion.4 Generally, an abuse of discretion is shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts.5
Section 10.703 of the Code of Federal Regulations provides in pertinent part that a
representative must submit a fee application, which includes an “itemized statement showing the
representative’s hourly rate, the number of hours worked and specifically identifying the work

4

V.T., 58 ECAB 133 (2006).

5

Daniel J. Perea, 42 ECAB 214 (1990).

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performed and a total amount charged for the representation (excluding administrative costs).”6
The fee application shall also contain the claimant’s statement of agreement or disagreement
with the amount charged, signed by the claimant.7 When a fee application has been disputed, the
Office is required to provide the claimant with a copy of the fee application and request the
submission of further information in support of any objection.8 After the claimant has been
afforded 15 days to respond, the Office will then proceed to review the fee application to
determine whether the amount of the fee is substantially in excess of the value of services
received by looking at the following factors: (i) usefulness of the representative’s services;
(ii) the nature and complexity of the claim; (iii) the actual time spent on development and
presentation of the claim; and (iv) customary local charges for similar services.9
ANALYSIS
Counsel requested that the Office approve his December 5, 2008 fee request for
$2,594.00, listing 71 tasks performed from May 10 to November 26, 2008. The Office denied
reimbursement of $2,478.50 out of the $2,594.00 proposed fee, finding that counsel did not
adequately explain the charges as requested. On appeal, counsel asserted that his word regarding
services rendered was controlling. He cited the Board’s decision in V.T.,10 holding that a
“representative’s word regarding the time spent on each task is entitled to considerable weight”
unless the Office demonstrated by clear and convincing evidence that the representative did not
spend the time alleged.11 Counsel noted that the Office routinely approved his bills in other
compensation cases. While the Office accords an attorney’s word substantial weight, this is not
the only criterion for approving a requested legal fee.
The weight given to a claimant’s opinion of a proposed attorney’s fee is codified in the
Office’s implementing regulations at 20 C.F.R. § 10.703. In pertinent part, these regulations
provide that the Office may not approve an attorney’s fee until the claimant has an opportunity to
review and comment on it.12 Additionally, a claimant’s dispute of the proposed fee must be
adjudicated by a formal decision of the Office with full appeal rights.13 As the Board held in
Lucia Reynolds,14 it is an abuse of discretion for the Office to approve an attorney fee request
without first following the regulatory procedures to address the claimant’s disagreement. The
6

20 C.F.R. § 10.703(a)(i).

7

Id. at § 10.703(a)(ii).

8

Id. at § 10.703(c).

9

Id.

10

58 ECAB 133 (2006).

11

Counsel also cited to the Board’s decisions in Edgar Aikman, 32 ECAB 1570 (1981) and Mein Horn, 32 ECAB
1762 (1981) in support of the clear and convincing evidence standard.
12

20 C.F.R. § 10.703(a)(ii).

13

Id. at § 10.703(c)(iv)(2).

14

55 ECAB 327 (2004).

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Office was within its discretion when it considered appellant’s arguments, weighed them against
counsel’s arguments and found counsel’s services to be not useful or effective.
Counsel asserts that the Office improperly denied reimbursement for telephone calls and
status meetings, citing to the Board’s holding in Anna Palestro15 that the Office should not
second guess each action taken by the attorney. He argued that it was unnecessary and excessive
for the Office to have evaluated each of the 71 items for which he sought to bill the claimant.
However, in Frank M. Salzano,16 the Board emphasized the importance of the Office examining
the necessity and propriety of each service billed. The Board finds that the Office properly
considered each of the billed items individually.
In the present case, the claimant contended that counsel billed her for services he did not
provide, including telephone calls to the Office from August 15 to October 7, 2008 and calls to
her from May 13 to August 7, 2008. Counsel confirmed in an August 5, 2009 letter that he billed
the claimant for telephone calls even if he did not reach the party in question. He also billed her
for status update meetings but did not specify their purpose. Although the Office asked counsel
to explain the necessity of each service billed, he did not do so. Instead, Mr. Blumstein,
counsel’s associate, offered generally that all billed services were important to the status of the
case. The Office carefully evaluated the claimant’s contentions, finding that counsel provided
insufficient explanation as to how numerous unconfirmed telephone calls or status update
meetings without clear evidence of relevant action advanced her case. It considered appellant’s
disagreement with the proposed fee under no criteria of the implementing regulations. The
Board finds that the Office did not abuse its discretion by denying these charges.17
Counsel also argues that the Office’s approval of his fee should not depend on the
effectiveness of the services provided. However, one of the regulatory criteria for evaluating an
attorney’s fee requests is the “[u]sefulness of the representative’s services to the claimant.”18
The Office advised counsel on August 12, 2008 that Dr. Gerry’s report was deficient.
However, counsel did not submit additional evidence until November 5, 2008, nearly three
months later, despite case status meetings for which he billed the claimant. The Office found
that counsel erred by asking appellant to pay for Dr. Gerry’s report, as this was a reimbursable
medical expense. The Board finds that the Office did not abuse its discretion by denying that
portion of the fee request pertaining to Dr. Gerry’s report.
Counsel also contends that the claimant contested his fee because she was dissatisfied
with the amount of the schedule award. He notes that in Robert D. Shaw,19 the Board rejected
the idea that a representative’s fee was contingent on the successful outcome of a claim. The
15

15 ECAB 241 (1962).

16

51 ECAB 119 (1999).

17

V.T., supra note 4.

18

20 C.F.R. § 10.703(c)(i).

19

30 ECAB 357 (1978).

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Office did not deny counsel’s fee based solely on the outcome of the claim. It disapproved
$2,478.50 out of the $2,594.00 proposed fee because counsel did not explain the necessity of
services rendered or establish that he provided them. Counsel’s failure to provide the requested
explanation is unrelated to any dissatisfaction the claimant may have had regarding the outcome
of her case.
The Boards finds that the Office considered the relevant criteria in its January 27, 2010
decision. The Office carefully weighed the claimant’s arguments contesting the fee and
thoroughly reviewed counsel’s statements supporting his fee request. Based on this evaluation,
the Office approved an attorney’s fee of $115.50 out of the $2,594.00 requested. The Board
finds that the Office properly exercised its discretion with regard to this matter.
CONCLUSION
The Board finds that the Office properly approved an attorney’s fee in the amount of
$115.50 for legal services rendered from May 13 to November 24, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 27, 2010 is affirmed.
Issued: March 22, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, GATEWAY
NATIONAL RECREATION AREA,
Brooklyn, NY, Employer
__________________________________________

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

Docket No. 18-0792
Issued: March 11, 2020

Case Submitted on the Record

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

JURISDICTION
On March 5, 2018 appellant filed a timely appeal from an October 20, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the October 20, 2017 decision, appellant submitted additional evidence on appeal.
However, the Boards Rules of Procedure provides: “the Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish a right shoulder
condition causally related to the accepted August 1, 2017 employment incident.
FACTUAL HISTORY
On August 1, 2017 appellant, then a 63-year-old supervisory surf guard, filed a traumatic
injury claim (Form CA-1) alleging that he injured his right shoulder on August 1, 2017 when he
was hit by a wave while swimming. An employing establishment supervisor, W.M., indicated that
appellant was in the performance of duty when injured, and that he stopped work on
August 2, 2017.
The employing establishment executed an authorization for examination and/or treatment
(Form CA-16), on August 1, 2007. In the attending physician’s report portion of the form,
Dr. Aruna M. Seneviratne, Board-certified in orthopedic surgery and sports medicine, noted a
history of increased right shoulder pain after lifeguarding. He reported that appellant had a
preexisting right shoulder implant and that an x-ray demonstrated that the implant was in position
and no fracture was seen. Dr. Seneviratne diagnosed biceps pain and inflammation. He checked
a form box marked “yes,” indicating that the condition was caused or aggravated by employment
activity, explaining that it was due to overuse/swimming. Dr. Seneviratne held appellant off work
for six to nine weeks.
In a state workers’ compensation form report dated August 7, 2017, Dr. Seneviratne again
noted appellant’s complaint of right shoulder pain. He reported a history that appellant injured
himself at work on August 1, 2017 while swimming and lifeguarding. Dr. Seneviratne indicated
that he had previously treated appellant for a similar work-related injury.3 He advised that a right
shoulder x-ray demonstrated good position of right shoulder hemiarthroplasty from prior shoulder
surgery. Dr. Seneviratne diagnosed right shoulder pain and checked form boxes marked “yes,”
indicating that the incident appellant described was the competent medical cause of his injury, and
that his complaints were consistent with the history of injury and objective findings. He
recommended rest, ice, and medication, and advised that appellant not return to work at that time.
In a report dated August 22, 2017, Dr. Stephen J. Nicholas, a Board-certified orthopedic
surgeon, noted appellant’s complaint of right shoulder pain that began on August 1, 2017. He
described a history that appellant had been swimming that day while working as a lifeguard on a
beach and felt strain in his shoulder, stopped immediately, and reported it to medical staff.
Dr. Nicholas reported that appellant had a past history of right shoulder hemiarthroplasty in 2010,
followed by a debridement on February 10, 2017. He reviewed a right shoulder x-ray taken that
day which revealed a slipped ball and stem and wearing of the glenoid cup. Physical examination
demonstrated full range of motion with 4/5 strength and atrophy of the musculature of the shoulder.

3

The record does not indicate that appellant had a prior workers’ compensation injury.

2

Dr. Nicholas diagnosed right shoulder pain and degenerative joint disease with primary
osteoarthritis, status post right hemiarthroplasty.4
By development letter dated September 8, 2017, OWCP informed appellant that the
evidence submitted was insufficient to support his claim. It informed him of the type of factual
and medical evidence needed and afforded him 30 days to submit the necessary evidence.
In a letter dated September 14, 2017, received by OWCP on September 26, 2017, appellant
described the August 1, 2017 employment incident, noting that he was swimming in very rough
surf during a training drill, and without warning, he experienced a sudden and extremely sharp
pain in his right shoulder. He immediately exited the water, and sought assistance from first aid
personnel. Appellant saw his treating physician on August 7, 2017 who prescribed physical
therapy and three to four weeks of rest. He returned to light-duty work on September 1, 2017.
Appellant related that, although he did have a prior right shoulder condition, he worked for five
full seasons as a supervisory lifeguard without incident following shoulder surgery. He maintained
that he sustained an acute injury on August 1, 2017 which temporarily incapacitated him from
continuing his duties as a lifeguard. Appellant also submitted reports from Dr. Seneviratne dated
August 29, 2017 who advised that appellant could return to work on September 1, 2017 with a
restriction of no long distance swimming. On a state workers’ compensation form report, he
indicated that appellant’s right shoulder was better. Dr. Seneviratne checked a box marked “yes”
indicating that appellant’s complaints were consistent with the history of injury and his objective
findings. He diagnosed right shoulder hemiarthroplasty pain radiating to the biceps.
In correspondence dated September 20, 2017, Dr. Seneviratne indicated that appellant had
been his patient for over eight years, and he had performed multiple operations on both shoulders,
after which appellant had successfully returned to lifeguarding. He reported seeing appellant on
August 7, 2017 for right shoulder pain and reiterated the history of injury. Dr. Seneviratne
described his diagnoses and treatment recommendations, after which he cleared appellant to return
to work. He opined that, although he had treated appellant for a right shoulder problem that was
not related to his work injury, the acute shoulder pain he experienced on August 1, 2017 was
causally related to his federal employment.
By decision dated October 20, 2017, OWCP denied appellant’s claim. It found that the
medical evidence of record was insufficient to establish a right shoulder condition causally related
to the accepted August 1, 2017 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of the
United States” within the meaning of FECA, that the claim was timely filed within the applicable
4

Appellant also submitted an October 31, 2016 right shoulder computerized tomography (CT) scan that revealed
status post shoulder replacement, degenerative changes, and superior migration of the humeral head. He also
submitted physical therapy notes dated August 15 to 29, 2017.
5

Supra note 1.

3

time limitation period of FECA, that an injury6 was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.7 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established. First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged. Second, the employee must
submit sufficient evidence to establish that the employment incident caused a personal injury.9
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical opinion evidence.10 Rationalized medical opinion evidence is
medical evidence that includes a physician’s rationalized opinion on whether there is a causal
relationship between the employee’s diagnosed condition and compensable employment factors.11
The opinion of the physician must be based on a complete factual and medical background of the
employee, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the employee.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right shoulder
condition causally related to the accepted August 1, 2017 employment incident.
The October 31, 2016 CT scan of appellant’s right shoulder predated the employment
injury and is, therefore, not relevant to the instant claim.
Appellant also submitted several reports from Dr. Seneviratne. He described the August 1,
2017 incident, noted complaints of right shoulder and biceps pain, and reviewed x-ray findings.
Dr. Seneviratne checked a form box on the attending physician’s report portion of the Form CA16 indicating that he believed the condition was caused or aggravated by employment due to
overuse or swimming. He also checked boxes on state workers’ compensation forms indicating
that the August 1, 2017 incident was the competent medical cause of appellant’s injury, and that
6
OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events of incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the body
affected. 20 C.F.R. § 10.5(ee).
7

D.J., Docket No. 19-1301 (issued January 29, 2020); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

8

Id.

9

F.H., Docket No. 18-0869 (issued January 29, 2020).

10

T.H., Docket No. 19-0599 (issued January 28, 2020).

11

K.C., Docket No. 18-0529 (issued January 21, 2020).

12

D.J., supra note 7.

4

appellant’s complaints and Dr. Seneviratne’s objective findings were consistent with the history
of injury. Dr. Seneviratne opined on September 20, 2017 that appellant’s acute right shoulder pain
on August 1, 2017 was causally related to work. In an August 29, 2017, he advised that appellant
could return to work on September 1, 2017 with a restriction of no long distance swimming. On
a state workers’ compensation form report, Dr. Seneviratne indicated that appellant’s right
shoulder was better. He checked a box marked “yes” indicating that appellant’s complaints were
consistent with the history of injury and with his objective findings. Dr. Seneviratne diagnosed
right shoulder hemiarthroplasty pain radiating to the biceps. The Board has consistently held that
pain is a description of a symptom and not, in itself, considered a firm medical diagnosis,13 and
Dr. Seneviratne did not provide medical rationale explaining the basis of his conclusion opinion
regarding causal relationship.14 Moreover, Dr. Seneviratne did not describe specific examination
findings and included no explanation of the mechanics of how the August 1, 2017 employment
incident caused or aggravated appellant’s right shoulder condition. As noted, to establish causal
relationship, the opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.15 Dr. Seneviratne’s reports are,
therefore, insufficient to meet appellant’s burden of proof.
Dr. Nicholas examined appellant on August 22, 2017. He described the August 1, 2017
incident, appellant’s previous right shoulder surgery, and x-ray findings. Physical examination
demonstrated full range of motion with 4/5 strength and atrophy of the musculature of the shoulder.
Dr. Nicholas diagnosed pain and degenerative joint disease with osteoarthritis of the right
shoulder, status post right hemiarthroplasty. He did not offer an opinion as to the cause of
appellant’s diagnosed condition, rather he merely communicated the history of injury as reported
to him by appellant. Medical evidence offering no opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.16 As such, Dr. Nicholas’
report, which lacks an opinion on the cause of appellant’s right shoulder condition, is not sufficient
to establish his claim.
Medical rationale is especially important in a case such as this wherein, as reported by both
Dr. Seneviratne and Dr. Nicholas, that appellant had a previous right shoulder injury that required
surgery. The Board has explained that, if a preexisting condition involving the same part of the
body is present and the issue of causal relationship involves aggravation, acceleration, or
precipitation, the physician must provide a rationalized medical opinion that differentiates between

13

See I.M., Docket No. 19-1038 (issued January 23, 2020); B.P., Docket No. 12-1345 (issued November 13, 2012);
C.F., Docket No. 08-1102 (issued October 10, 2008). Findings of pain or discomfort alone do not satisfy the medical
aspect of the fact of injury medical determination. Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury,
Chapter 2.803.4.a(6) (August 2012).
14

See D.G., Docket No. 19-1259 (issued January 29, 2020).

15

D.J., supra note 7.

16

See L.C., Docket No. 19-1301 (issued January 29, 2020).

5

the effects of the preexisting condition and the current employment incident.17 Neither physician
did so in this case.
As none of the medical evidence appellant submitted constitutes rationalized medical
evidence sufficient to establish causal relationship between the August 1, 2017 work incident and
his diagnosed right shoulder conditions, the Board finds that appellant has not met his burden of
proof.18
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a right shoulder
condition causally related to the accepted August 1, 2017 employment incident.

17

M.V., Docket No. 18-1132 (issued September 16, 2019).

18

The Board notes that when the employing establishment properly executes a Form CA-16 which authorizes
medical treatment as a result of an employee’s claim for an employment-related injury, the Form CA-16 creates a
contractual obligation, which does not involve the employee directly, to pay for the cost of the examination or
treatment regardless of the action taken on the claim. The period for which treatment is authorized by a Form CA-16
is limited to 60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c); C.C.,
Docket No. 18-1453 (issued January 28, 2020).

6

ORDER
IT IS HEREBY ORDERED THAT the October 20, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 11, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fayetteville, GA, Employer
__________________________________________

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

Docket No. 16-0843
Issued: October 20, 2016

Case Submitted on the Record

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

JURISDICTION
On March 16, 2016 appellant filed a timely appeal from a November 2, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
has elapsed from the last merit decision, dated June 1, 2015, to the filing of this appeal, pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The facts relevant to the
present appeal are set forth below.
OWCP accepted that on August 23, 2006 appellant, then a 59-year-old rural mail carrier,
sustained a left hip contusion, right shoulder sprain, lumbar strain, and right knee strain in an
employment-related motor vehicle accident. It later expanded the claim to accept secondary
moderate arthritis of the right knee and a torn right medial meniscus. Appellant received
compensation for temporary total disability on the periodic rolls.2
On November 16, 2006 Dr. William M. Craven, an attending Board-certified orthopedic
surgeon, performed arthroscopic medical and lateral meniscectomies of the right knee with
anterior cruciate ligament reconstruction and tricompartmental chondroplasty.3 He submitted
periodic progress notes holding appellant off work. Appellant returned to full-time modified
duty as a rural carrier associate on May 30, 2007. He continued working in the job with
intermittent absences.4
Dr. W. Joseph Absi, an attending Board-certified orthopedic surgeon, performed a total
right knee arthroplasty on March 29, 2011 authorized by OWCP. On June 24, 2011 he
performed closed manipulation of the right knee under anesthesia. In an October 4, 2011 report,
Dr. Absi noted that appellant did “not appear to be in pain.” On examination, he observed a
well-healed anterior scar, nearly full extension, 85 degrees of flexion, and no gross ligamentous
instability. X-rays showed good alignment of the right knee prosthesis with no sign of
loosening. Dr. Absi released appellant to light duty.
Appellant returned to full-time work as a modified rural carrier on October 7, 2011. His
duties required lifting, pulling, and pushing up to 20 pounds, limited standing, no kneeling,
squatting, or climbing, and the ability to alternate standing and sitting.
In a November 7, 2011 report, Dr. Absi related appellant’s complaints of increased right
knee pain while at work. He opined that appellant could continue to perform light duty.
Dr. Absi found that appellant had reached maximum medical improvement as of
March 2, 2012. He noted permanent work restrictions limiting standing to one hour a day.
2

On November 13, 2007 OWCP issued a schedule award for 24 percent permanent impairment of the right leg.
Following a hearing, OWCP’s hearing representative affirmed the schedule award by decision dated July 10, 2008.
On March 28, 2012 OWCP issued a schedule award for an additional 13 percent permanent impairment of the right
leg. On February 3, 2014 an OWCP medical adviser opined that appellant’s right knee condition was stable, with no
worsening of the accepted injury.
3

Appellant participated in postoperative physical therapy through April 2007. Dr. Craven released appellant to
full duty as of April 18, 2007.
4

By decision dated June 2, 2008, OWCP issued a formal loss of wage-earning capacity determination finding that
appellant’s actual earnings as a modified rural carrier associate effective June 22, 2008 properly represented his
wage-earning capacity.

2

Dr. Absi restricted walking, noting that appellant needed to alternate sitting and standing, and
was permitted to drive only a van. In periodic reports through April 19, 2013, he noted that
appellant complained of right knee pain while at work. Dr. Absi opined that appellant could
continue working within his prior restrictions.
Appellant stopped work on August 20, 2013. He claimed wage-loss compensation (Form
CA-7) for the period August 20, 2013 and continuing. OWCP treated this as a claim for
recurrence of disability.
Dr. Harvey B. Leslie, an attending physician Board-certified in pain management,
submitted slips holding appellant off work as of August 20, 2013 and from September 13 to
October 21, 2013. On September 30, 2013 he opined that appellant was permanently disabled
due to right knee arthroplasty with pain, swelling, and weakness. Dr. Leslie performed closed
manipulation of the right knee under anesthesia.
By decision dated October 31, 2013, OWCP denied appellant’s claim for recurrence of
disability for the period August 20 to September 13, 2013. By decision dated November 12,
2013, it denied his claim for compensation beginning September 14, 2013. OWCP found that
Dr. Leslie had failed to provide objective findings establishing that appellant was no longer able
to perform his light-duty position as of August 20, 2013.
In a November 12, 2013 letter, received November 19, 2013, appellant requested
reconsideration of OWCP’s October 31 and November 12, 2013 decisions. He submitted
additional evidence.
An October 25, 2013 right knee arthrogram showed the right knee prosthesis was grossly
intact, without significant mass or fluid collection.
In reports from November 4, 2013 to January 6, 2014, Dr. Leslie found tenderness and
restricted motion of the right knee. He prescribed medication and physical therapy.
By decision dated February 6, 2014, OWCP denied modification of the October 31 and
November 12, 2013 decisions, finding that the additional evidence submitted failed to establish a
causal relationship between the accepted August 23, 2006 employment injury and the claimed
periods of disability. It noted that appellant filed a new occupational disease claim (Form CA-2)
for a right knee injury under File No. xxxxxx776, asserting that walking on concrete floors at
work following total knee arthroplasty worsened his condition. OWCP denied his claim under
File No. xxxxxx776.
In a May 12, 2014 letter, appellant requested reconsideration. He submitted a March 3,
2014 report from Dr. Leslie opining that appellant permanently disabled from work as of
August 20, 2013. Dr. Leslie asserted that appellant was unable to sit for more than 10 minutes,
drive, or walk due to involuntary muscle spasms and chronic pain. He explained that prescribed
narcotic medication impaired his cognitive and motor skills such that he could not drive.
Dr. Leslie provided progress notes from March 6 to August 15, 2014 finding continued swelling
and pain in the right knee.

3

By decision dated October 2, 2014, OWCP denied modification, finding that Dr. Leslie’s
report was not sufficiently rationalized to establish that the August 23, 2006 right knee injury
disabled appellant from work as of August 20, 2013.
In an October 20, 2014 letter, received October 27, 2014, appellant again requested
reconsideration. He submitted September 16 and October 10, 2014 chart notes and prescription
slips from Dr. Leslie, noting continued right knee pain. In an October 13, 2014 letter, Dr. Leslie
opined that the right knee arthroplasty rendered appellant “permanently disabled due to [r]ight
[k]nee instability, popping on range of motion, swelling, chronic intractable knee pain,” and
narcotic medication impairing his cognitive and motor skills.
By decision dated December 5, 2014, OWCP denied modification, finding that the
additional evidence submitted remained insufficient to establish the claimed recurrence of
disability. It found that Dr. Leslie’s October 13, 2014 report was not based on a complete,
accurate history, and did not contain sufficient rationale supporting a spontaneous worsening of
the accepted condition as of August 20, 2013. OWCP noted that appellant implicated new work
factors as the cause of the claimed period of disability. Appellant then appealed to the Board.
By decision and order dated June 1, 2015,5 the Board found that appellant had not
established a recurrence of disability, effective August 20, 2013, as Dr. Leslie had not observed a
worsening of appellant’s right knee as of that date. Also, appellant implicated new work factors,
breaking the chain of causation from the accepted right knee injury.
During the pendency of the prior appeal, appellant submitted periodic progress notes
from Dr. Leslie dated from December 19, 2014 to May 12, 2015, diagnosing chronic
postoperative right knee pain.
In a letter dated October 12, 2015, received October 26, 2015, appellant again requested
reconsideration. He asserted that he remained totally disabled for work due to chronic, severe
right knee pain, weakness, and restricted motion. Appellant also described severe financial
hardships and personal difficulties caused by the accepted injuries. He submitted medical
evidence.
Dr. Leslie provided progress notes dated from June 11 to September 11, 2015, diagnosing
chronic right knee pain.
In an August 31, 2015 report, Dr. Christopher Haraszti, an attending Board-certified
orthopedic surgeon, provided a history of injury and treatment. He obtained x-rays showing a
“posterior stabilized total knee replacement in good position,” with significant shortening of the
patellar tendon causing an extremely low-lying patella, called a “patellar baja.” On examination
of the right knee, Dr. Haraszti found “significant and crippling quadriceps extension weakness,”
directly caused by the shortened patellar tendon and patellar baja. He explained that he did not
know the etiology of the patellar baja as he did not have access to appellant’s complete medical
record. Dr. Haraszti emphasized that he could not address causal relationship as he did “not have
any records relating the original injury to the knee replacement.” He opined that surgery was
5

Docket No. 15-0473 (issued June 1, 2015).

4

very likely to cause additional difficulties and so found that appellant had attained maximum
medical improvement.
On September 14, 2015 Dr. Haraszti opined that appellant had a poor result from total
knee replacement and could no longer work as a letter carrier.
Appellant also submitted duplicates of an employing establishment accident report,
Dr. Craven’s November 21, 2006 report, June 12, 2007 imaging studies, Dr. Absi’s March 8,
2011 report, March 29, 2011 operative note, and Dr. Leslie’s March 3, 2014 letter.
By decision dated November 2, 2015, OWCP denied reconsideration, finding that
appellant’s letter and accompanying documents did not constitute new, relevant evidence. It
further found that Dr. Haraszti’s reports, although new, were irrelevant to the recurrence claim as
he did not address the cause of appellant’s August 20, 2013 work stoppage. OWCP further
found that the copies of evidence previously of record were repetitious and therefore insufficient
to warrant a review of the claim on the merits. It also found that appellant’s October 12, 2012
letter was irrelevant as it did not present new, relevant legal argument, or establish legal error by
OWCP.
LEGAL PRECEDENT
To require the office to reopen a case for merit review under section 8128(a) of FECA,6
section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provides that a claimant
must: (1) show OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.7 Section 10.608(b) provides that
when an application for review of the merits of a claim does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.8
In support of a request for reconsideration, appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.9 Appellant need only
submit relevant, pertinent evidence not previously considered by OWCP.10 When reviewing an
OWCP decision denying a merit review, the function of the Board is to determine whether
OWCP properly applied the standards set forth at section 10.606(b)(3) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.11

6

5 U.S.C. § 8128(a).

7

20 C.F.R. § 10.606(b)(3).

8

Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008).

9

Helen E. Tschantz, 39 ECAB 1382 (1988).

10

See supra note 7. See also Mark H. Dever, 53 ECAB 710 (2002).

11

Annette Louise, 54 ECAB 783 (2003).

5

ANALYSIS
OWCP accepted that appellant sustained a left hip contusion, right shoulder sprain,
lumbar strain, right knee strain, secondary moderate arthritis of the right knee, and a torn right
medial meniscus. It authorized a total right knee arthroplasty, performed on March 29, 2011 by
Dr. Absi, an attending Board-certified orthopedic surgeon. Appellant returned to full-time
modified duty on October 7, 2011 and stopped work on August 20, 2013. He claimed
compensation for total disability beginning August 20, 2013.
OWCP issued an October 31, 2013 decision denying appellant’s claim for compensation,
finding that the medical evidence did not establish an objective worsening of the accepted
condition that would disable him from his modified-duty job. By decision dated November 12,
2013, it denied his claim for compensation beginning September 14, 2013, as the medical
evidence of record was insufficient to establish the claimed period of disability. OWCP affirmed
its October 31 and November 12, 2013 decisions on February 6, October 2, and December 5,
2014, finding that additional medical evidence did not establish the claimed recurrence of
disability or a period of disability on and after August 20, 2013. The Board affirmed the denial
of recurrence of disability in its June 1, 2015 decision and order.
Appellant requested reconsideration in an October 12, 2015 letter, received October 26,
2015, asserting that his chronic right knee pain and weakness rendered him totally disabled for
work. He submitted August 31 and September 14, 2015 reports from Dr. Haraszti, an attending
Board-certified orthopedic surgeon, who diagnosed a patellar baja of unknown etiology,
Appellant also provided copies of evidence previously of record. OWCP denied reconsideration
by decision dated November 2, 2015, finding that his letter and accompanying documents were
either repetitious or irrelevant.
The Board finds that OWCP appropriately denied reconsideration as appellant’s
argument was not relevant to the claim. The critical issue was whether residuals of the accepted
right knee conditions disabled him for work on and after August 20, 2013. Appellant’s letter is
not medical evidence and is thus irrelevant to that issue. Therefore, it does not comprise a basis
for reopening the case.12 The copies of medical evidence previously of record are duplicative.
Evidence which is duplicative, cumulative, or repetitive in nature is insufficient to warrant
reopening a claim for merit review.13 The duplicate copies of medical evidence are therefore
insufficient to warrant consideration on the merits.
Dr. Haraszti’s reports are new medical evidence not previously considered by OWCP.
However, they are not relevant to the claim as they do not address whether appellant’s right knee

12

Joseph A. Brown, Jr., 55 ECAB 542 (2004).

13

Denis M. Dupor, 51 ECAB 482 (2000).

6

worsened beginning August 30, 2013. Therefore, these reports do not warrant a review of the
merits of the claim.14
On appeal, appellant asserts that his physicians supported that his patellar pain remained
related to his original injury. This argument pertains to the merits of the claim, which are not
before the Board on the present appeal.
Appellant has not met any of the criteria for a merit review. Therefore, pursuant to 20
C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 2, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 20, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

The submission of evidence or argument which does not address the particular issue involved does constitute a
basic for reopening a case. See S.O., Docket No. 16-0973 (issued August 4, 2016); Edward Matthew Diekemper, 31
ECAB 224-25 (1979).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, PARKGROVE
STATION, Detroit, MI, Employer
__________________________________________

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

Docket No. 11-72
Issued: August 17, 2011

Case Submitted on the Record

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

JURISDICTION
On October 12, 2010 appellant filed a timely appeal of a September 17, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he is entitled to a
schedule award for a right lower extremity impairment greater than the two percent previously
awarded.
On appeal appellant’s attorney asserts that the schedule award decision is contrary to fact
and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On January 20, 2006 appellant, then a 55-year-old letter carrier, injured both knees when
he tripped and fell off a porch while delivering mail. He stopped work that day. The claim was
initially accepted for left knee sprain, and expanded to include complete tear of the anterior
cruciate ligament (ACL) and flap tear of the meniscus of the right knee. Appellant was placed
on the periodic compensation rolls, and on April 28, 2006 Dr. Kenneth R. Cervone, a Boardcertified orthopedic surgeon, performed a right ACL reconstruction, lateral meniscectomy and
chondroplasty of the medial femoral condyle. On November 10, 2006 Dr. Cervone performed a
second medial meniscectomy and chondroplasty.
Appellant returned to modified duty for four hours daily on April 17, 2007 and continued
in that position until October 27, 2007 when he was placed in a permanent rehabilitation position
at the employing establishment’s call center. On November 15, 2007 he filed a schedule award
claim.
By decision dated January 10, 2008, OWCP found that appellant’s actual earnings at the
call center fairly and reasonably represented his wage-earning capacity with zero loss. In a
February 11, 2008 report, Dr. Cervone advised that appellant had reached maximum medical
improvement.
OWCP referred appellant to Dr. B.S. Bohra, an orthopedic surgeon, for a second opinion
evaluation and impairment rating. In an April 8, 2008 report, Dr. Bohra reported the history of
injury, provided physical examination and x-ray findings and diagnosed chondromalacia of the
right knee with weakness of the quadriceps and hamstrings of the knee. He advised that
appellant had not reached maximum medical improvement. In an April 17, 2008 report,
Dr. Jeffrey F. Wirebaugh, an attending Board-certified family physician, described the
employment injury and provided physical examination findings. He advised that in accordance
with Table 17-33 of the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),2 appellant had a 2 percent
right lower extremity impairment for medial meniscectomy, a 7 percent impairment for mild
cruciate ligament laxity, and a 7 percent impairment for mild medial collateral ligament (MCL)
laxity, for a total 16 percent right lower extremity impairment. In a May 31, 2008 report,
Dr. Bohra advised that, after review of additional information, appellant had a two percent right
lower extremity impairment. In reports dated July 2 and 11, 2008, Dr. Anthony F. Skalak, an
orthopedic surgeon and OWCP medical adviser, stated that he had reviewed the medical record
and advised that clarification was needed regarding appellant’s impairment rating. He
recommended an impartial evaluation.
OWCP determined that a conflict in medical evidence had been created regarding
whether maximum medical improvement had been reached and the percentage of permanent
impairment and referred appellant to Dr. Zachary J. Endress, a Board-certified orthopedic
surgeon, for an impartial evaluation. In a December 10, 2008 report, Dr. Endress noted the
history of injury and his review of the medical record. He stated that on examination appellant’s
2

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

2

right knee was stable to both varus and valgus with full extension and flexion to about 130
degrees. There was no palpable effusion and mild thickening of the synovium in the
suprapatellar pouch. Lachman’s, anterior drawer and pivot rests were normal. Dr. Endress
advised that, due to the history, persistent knee synovitis, and chondromalacia, appellant could
not return to his previous employment as a letter carrier but could continue sedentary work.
OWCP requested that Dr. Endress provide a date of maximum medical improvement and an
impairment rating in accordance with the fifth edition of the A.M.A., Guides. In a January 21,
2009 report, Dr. Endress stated that appellant had reached maximum medical improvement but
that he could not identify a date since he saw him on only one occasion. He advised that he did
not find any laxity in the ACL or MCL but that appellant continued to have persistent synovitis
of the knee. Dr. Endress further stated, “I am not familiar with the percent of impairment rating
scale that you requested that I place him into.” In a February 10, 2009 report, Dr. Skalak advised
that maximum medical improvement was reached on May 10, 2007 and that, in accordance with
Figure 17-33 of the fifth edition of the A.M.A., Guides, appellant had a two percent impairment
due to partial medial meniscectomy.
On March 9, 2009 OWCP found the weight of the medical evidence rested with the
opinion of Dr. Endress and granted appellant a schedule award for a two percent impairment of
the right lower extremity, for a period of 5.76 weeks. It found the date of maximum medical
improvement was December 10, 2008, the date of Dr. Endress’ examination. On March 21,
2009 appellant, through his attorney, requested a hearing, that was held telephonically on
June 8, 2009. Appellant testified that he was in constant pain and walked with a cane. His
attorney argued that the opinion of Dr. Wirebaugh should be credited. By decision dated
August 28, 2009, OWCP’s hearing representative found the weight of the medical evidence
rested with Dr. Endress’ opinion and affirmed the March 9, 2009 decision.
Appellant retired on February 1, 2010. On April 13, 2010 he submitted an additional
schedule award claim and an April 4, 2010 report in which Dr. William N. Grant, Board-certified
in internal medicine, reported the history of injury and appellant’s complaint of constant pain,
stiffness and weakness of the right knee. Dr. Grant provided physical examination findings and
diagnosed sprain of the right knee and leg, a tear of medial meniscus and an old disruption of the
ACL. He provided an impairment worksheet and advised that in accordance with Table 16-23 of
the sixth edition of the A.M.A., Guides,3 appellant’s flexion contracture of 15 degrees yielded a
right lower extremity impairment of 20 percent, and flexion of 60 degrees yielded a 20 percent
right lower extremity impairment, for a total combined impairment of 36 percent.
On August 11, 2010 Dr. Brian M. Tonne, an orthopedic surgeon and OWCP medical
adviser, reviewed Dr. Grant’s report and advised that his range of motion findings were
inconsistent with the reports previously of record and did not provide a reasonable measure of
impairment. He recommended that a new impartial evaluation be obtained regarding the degree
of appellant’s right lower extremity impairment. On August 23, 2010 OWCP provided Dr. Grant
with reports from Dr. Cervone and Dr. Endress and asked that he explain the discrepancies in his
range of motion findings.

3

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

3

By decision dated September 17, 2010, OWCP noted that Dr. Grant had not responded to
the August 23, 2010 inquiry and denied appellant’s claim for an additional schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.7
For decisions issued after May 1, 2009, the sixth edition will be used.8
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).9 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on Functional History (GMFH), Physical Examination (GMPE) and
Clinical Studies (GMCS).10 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX).11 Under section 2.3, evaluators are directed to provide reasons for their
impairment rating choices, including choices of diagnoses from regional grids and calculations
of modifier scores.12
OWCP procedures provide that in cases involving a conflict in medical evidence,
OWCP’s medical adviser should not attempt to clarify or expand the opinion of the medical
referee.13 To properly resolve a medical conflict, it is the impartial medical specialist who
should provide a reasoned opinion as to the extent of permanent impairment in accordance with
the A.M.A., Guides. OWCP’s medical adviser may review the opinion, but the resolution of the
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

8

FECA Bulletin No. 09-03 (issued March 15, 2009).

9

A.M.A., Guides, supra note 3 at 3, section 1.3, “The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.”
10

Id. at 494-531.

11

Id. at 521.

12

Id. at 23-28.

13

Federal (FECA) Procedure Manual, Chapter 3 -- Medical, Medical Examinations, Chapter 3.500.5c(1)(a)
(March 1994).

4

conflict is the responsibility of the impartial medical specialist. Should the impartial specialist’s
opinion require clarification, OWCP should request a supplemental opinion consistent with
Board precedent.14 When the impartial medical specialist’s statement of clarification or
elaboration is not forthcoming, or if the specialist is unable to clarify or elaborate on the original
report or if the specialist’s supplemental report is also vague, speculative or lacks rationale,
OWCP must submit the case record together with a detailed statement of accepted facts to a
second impartial specialist for a rationalized medical opinion on the issue in question.15 Unless
this procedure is carried out by OWCP, the intent of section 8123(a) of FECA will be
circumvented when the impartial specialist’s medical report is insufficient to resolve the conflict
of medical evidence.16
ANALYSIS
The Board finds that a conflict remains regarding the degree of impairment of appellant’s
right lower extremity. In its March 9, 2009 schedule award decision, OWCP found that the
weight of the medical evidence rested with the opinion of Dr. Endress, who provided an
impartial evaluation for OWCP. OWCP granted appellant a schedule award for a two percent
impairment of the right lower extremity. Appellant thereafter requested an additional schedule
award and submitted an April 10, 2010 report from Dr. Grant who advised that, in accordance
with the sixth edition of the A.M.A., Guides, appellant had a 36 percent right lower extremity
impairment.
The Board finds that OWCP improperly relied on Dr. Endress’ opinion because he did
not provide an impairment rating. Dr. Endress clearly stated that he was not familiar with the
impairment rating scale. His opinion was therefore insufficient to resolve the medical conflict
regarding the percentage of impairment of appellant’s right lower extremity. Nonetheless, it was
also improper for OWCP to rely on Dr. Skalak’s February 10, 2009 report, as OWCP’s medical
adviser is not to attempt clarification or expansion of an impartial specialist’s opinion.17 As
noted above, to properly resolve a medical conflict, the impartial specialist should provide the
opinion regarding the degree of impairment and not OWCP’s medical adviser.
OWCP referred Dr. Grant’s report to Dr. Tonne, OWCP’s medical adviser, who advised
that the physician’s range of motion findings were inconsistent with the reports previously of
record and did not provide a reasonable measure of impairment. Dr. Tonne recommended that a
new impartial evaluation be obtained regarding the degree of appellant’s right lower extremity
impairment. Instead of following this recommendation, OWCP asked that Dr. Grant provide a
supplemental report, and when he did not respond, issued a decision finding that appellant was
not entitled to an increased schedule award.

14

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

15

W.D., Docket No. 09-199 (issued August 21, 2009).

16

I.H., Docket No. 08-1352 (issued December 24, 2008); Harold Travis, 30 ECAB 1071 (1979).

17

Richard R. LeMay, supra note 14.

5

A claimant may seek an increased schedule award if the evidence establishes that he or
she sustained an increased impairment at a later date based on new exposure or medical evidence
showing progression of an employment-related condition resulting in an increased impairment.18
As appellant submitted a new medical report advising that appellant’s condition has
worsened and that he has increased impairment, the Board finds that a conflict in medical
opinion remains. The Board will set aside OWCP’s September 17, 2010 decision and remand
the case to OWCP to refer appellant, along with a statement of accepted facts and the case
record, to a second impartial specialist to determine the extent and degree of any employmentrelated impairment of the right lower extremity. After such further development as OWCP
deems necessary, it shall issue an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision due to an unresolved conflict
in medical opinion as to the extent of permanent impairment to appellant’s right lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the September 17, 2010 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further proceedings
consistent with this opinion of the Board.
Issued: August 17, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

18

See A.A., 59 ECAB 726 (2008).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Southeastern, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1908
Issued: May 22, 2017

Case Submitted on the Record

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

JURISDICTION
On September 29, 2016 appellant, through counsel, filed a timely appeal from a June 30,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant has established more than nine percent permanent
impairment of the right upper extremity, for which she previously received a schedule award.
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.

On appeal counsel argues there is an unresolved conflict in the medical opinion evidence.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as presented in the
prior decisions are incorporated herein by reference. The relevant facts are as follows.
On March 16, 2003 appellant, then a 51-year-old clerk, filed an occupational disease
claim (Form CA-2) alleging that on February 3, 2003 she first realized her carpal tunnel
syndrome was due to continuous typing. OWCP accepted the claim for right carpal tunnel
syndrome. Appellant received compensation on the supplemental rolls from February 4 to
27, 2003. OWCP subsequently expanded the acceptance of the claim to include right ulnar nerve
compression. Appellant underwent neurolysis of the right wrist medial and ulnar nerves on
July 15, 2005.4
Appellant filed a claim for a schedule award (Form CA-7) and submitted an impairment
evaluation dated September 13, 2011 from Dr. Arthur Becan, an orthopedic surgeon, who noted
appellant’s employment and medical history. He noted that electromyogram (EMG) testing
dated February 22, 2003 and October 14, 2004 showed abnormalities in the carpal tunnel.
Dr. Becan diagnosed right carpal tunnel syndrome, status post right carpal tunnel release, right
elbow ulnar neuropathy, and status post right wrist ulnar nerve neurolysis. On physical
examination he noted a positive Tinel’s sign along the right elbow ulnar nerve, restricted right
elbow range of motion, pain on flexion and extension, right wrist palmar tenderness, positive
right wrist Tinel’s and Phalen’s signs, restricted right wrist range of motion, and pain on palmar
flexion, ulnar deviation, and dorsiflexion. Dr. Becan determined that appellant had a
QuickDASH disability/symptom score of 79 percent. Using the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides), he concluded that
appellant had 11 percent right upper extremity permanent impairment. Using Table 15-23,5
3

Docket No. 10-2399 (issued September 28, 2011), denying petition for reconsideration (issued May 25, 2012).
The Board also issued an order denying appellant’s request for an oral argument under Docket No. 10-2399 on
May 25, 2012. Docket No. 15-0318 (issued September 8, 2015).
4

On July 27, 2006 appellant alleged a recurrence of disability (Form CA-2a) commencing July 5, 2006. OWCP
accepted this notice of recurrence of disability by decision dated October 16, 2006. Appellant received
compensation on the supplemental rolls from July 5, 2006 until May 12, 2007. She thereafter received
compensation on the periodic rolls from May 13, 2007 until September 27, 2008. Appellant returned to work in a
full-time limited-duty position on October 3, 2008. She again alleged a recurrence of disability commencing
October 23, 2008. OWCP denied this recurrence claim on April 9, 2009. Following further development, including
referral to an impartial medical examiner, OWCP again denied this recurrence claim on December 2, 2009. On
September 27, 2010 appellant filed an appeal to the Board. On September 28, 2011 the Board remanded this case
for OWCP to clarify the selection of the impartial medical examiner. Docket No. 10-2399, (issued
September 28, 2011). OWCP thereafter terminated appellant’s compensation benefits effective February 6, 2013.
On November 25, 2014 appellant filed an appeal to the Board. On September 8, 2015 the Board affirmed the
termination of appellant’s compensation benefits, however the Board found that the case was not in posture for
decision as to whether appellant had continuing residuals or disability causally related to the accepted injury. Docket
No. 15-0318 (issued September 8, 2015). On January 30, 2017 OWCP found that appellant had not established
continuing residuals or disability. This decision is not the subject of the current appeal.
5

A.M.A., Guides 449, Table 15-23

2

Dr. Becan assigned a grade modifier of 3 for test findings, a grade modifier of 3 for history, a
grade modifier of 3 for physical examination findings based on decreased pinch, which totaled 9,
averaged 3 and resulted in an eight percent right upper extremity permanent impairment. He
noted using Table 15-7.6 Her QuickDASH score was 79 for functional history which resulted in
eight percent right upper extremity permanent impairment. Next, Dr. Becan used Table 15-237
to determine the impairment rating for appellant’s right elbow ulnar nerve entrapment
neuropathy. He assigned a grade modifier of 1 for test findings, a grade modifier of 3 for
history, and a grade modifier of 2 for physical examination findings of decreased sensory. Using
the QuickDASH score of 79 percent in functional history increased the impairment to 6 percent,
which was decreased by 50 percent due to the second compression neuropathy, resulting in a
total of 3 percent permanent impairment. Combining the impairment for the right wrist median
nerve entrapment neuropathy and right elbow ulnar nerve entrapment neuropathy resulted in a
total of 11 percent right upper extremity impairment.
By letter dated August 9, 2012, OWCP requested that Dr. John R. Donahue, a Boardcertified orthopedic surgeon and independent medical examiner, to assess appellant’s right upper
extremity permanent impairment using the sixth edition of the A.M.A., Guides.
In a September 17, 2012 report, Dr. Donahue detailed the reports and objective tests he
reviewed. Appellant’s physical examination revealed negative elbow Tinel’s sign; negative
bilateral Spurling’s test; normal pinch strength; normal wrist and elbow extension, abduction,
adduction, and flexion; no evidence of thenar eminence weakness; full bilateral shoulders, wrist,
elbows, and hand range of motion without pain; normal strength and stability; and unremarkable
reflex, motor, and sensory examination although appellant complained of variable right arm
tingling. He further observed that the physical examination revealed no evidence supporting any
ongoing ulnar nerve compression or carpal tunnel syndrome and that she could return to her
regular duty without restrictions.
By decision dated October 1, 2012, based on Dr. Donahue’s report, OWCP denied
appellant’s claim for a schedule award as there was no evidence of any permanent impairment
due to the accepted conditions.
By letter dated October 4, 2012, counsel requested an oral hearing before an OWCP
hearing representative, which was held on January 30, 2013.
Subsequent to the hearing appellant submitted a December 11, 2012 report from
Dr. Stanton A. Bree, an examining osteopath and Board-certified physiatrist, and a February 11,
2013 report from Dr. Scott Fried, a treating Board-certified osteopathic orthopedic surgeon.
In a December 11, 2012 report, Dr. Bree noted that he had examined appellant on that
day and had conducted motor and sensory conduction studies, as well as an EMG examination.
Based on these studies, he diagnosed mild right wrist median neuropathy, moderate left wrist
neuropathy, and mild right C5 radiculopathy. A motor conduction study revealed right median
6

Id. at 406, Table 15-7.

7

Supra note 5.

3

nerve prolonged distal latency, normal conduction velocity and normal amplitude, and right ulnar
nerve above and below the elbow normal amplitude, distal latency, and conduction velocity. A
sensory examination revealed normal right ulnar nerve latency and amplitude.
In a February 11, 2013 report, Dr. Fried noted the history of appellant’s employment
injury, her work history, and the medical care she had received. He disagreed with
Dr. Donahue’s opinion as his report did not contain any documentation that “standard neurologic
testing for carpal tunnel or brachial plexus involvement in either upper extremity” was
performed. Dr. Fried diagnosed bilateral flexor tenosynovitits, bilateral radial neuropathy at the
radial tunnel, brachial plexitis, carpal tunnel median neuropathy due to work activities, and right
Raynaud’s versus White hand syndrome. He related that objective testing in the form of EMG
examination and nerve conduction studies showed that appellant continued to have residuals of
right carpal tunnel syndrome as well as “[p]roximal involvement at the brachial plexus” and
radial and ulnar nerve involvement.
By decision dated May 30, 2013, an OWCP hearing representative set aside the
October 1, 2012 decision denying appellant’s claim for a schedule award. He found further
development of the medical evidence was required.
By letter dated September 13, 2013, OWCP requested Dr. Donahue provide a
supplemental report following review of the new evidence of record.
In a supplemental report dated October 3, 2013, Dr. Donahue, based on a review of a
December 11, 2012 EMG report by Dr. Bree, and a February 11, 2013 report from Dr. Fried,
reiterated his conclusion that appellant had no residuals or disability due to her accepted
conditions. He noted that he had “inadvertently left out the negative Tinel’s and Phalen’s sign”
on the examination of appellant’s right wrist. Dr. Donahue related that he found no evidence of
carpal tunnel syndrome either clinically or objectively and that the condition had been surgically
corrected. He found no permanent impairment using the A.M.A., Guides.
In a November 12, 2013 report, OWCP’s medical adviser reviewed the evidence relevant
to appellant’s schedule award claim. He noted that “[m]ultiple EMG studies have demonstrated
significant distal latencies in the carpal tunnel” including the most recent study of
December 11, 2012.” Based on review of this objective evidence, the medical adviser opined
that there was “definite abnormality in regard to the EMG study.” He disagreed with
Dr. Donahue’s finding that there was no permanent impairment. Using Dr. Becan’s examination
findings and the A.M.A, Guides, he determined that appellant had nine percent right upper
extremity permanent impairment. The medical adviser determined the date of maximum medical
improvement (MMI) was September 11, 2011, the date of Dr. Becan’s report.
By decision dated November 26, 2013, OWCP granted appellant a schedule award for
nine percent permanent impairment of the right upper extremity.
By letter dated December 3, 2013, counsel requested an oral hearing before an OWCP
hearing representative. A hearing was held on May 22, 2014.
By decision dated August 21, 2014, OWCP’s hearing representative set aside the
November 26, 2013 schedule award determination. She found that Dr. Donahue’s report was
4

insufficient to determine appellant’s impairment rating as it failed to correctly apply the A.M.A.,
Guides. The hearing representative found that as OWCP had undertaken development of the
evidence by referral to a second opinion physician that it had an obligation to secure a report
resolving the issue in question. As Dr. Donohue’s reports were insufficient to resolve the issue
of appellant’s impairment, OWCP should have referred appellant for another second opinion
evaluation. The hearing representative then remanded the case to OWCP for referral to a proper
specialist to make an impairment determination using the sixth edition of the A.M.A., Guides.
On July 28, 2015 OWCP referred appellant for a second opinion evaluation with Dr. F.
Draper, Jr., a Board-certified orthopedic surgeon, for a determination of appellant’s right upper
extremity impairment.
In an August 13, 2015 report, Dr. Draper noted appellant’s medical history. He related
that examination of her right elbow revealed flexion of 150 degrees, elbow extension lag of 0
degrees, forearm supination of 85 degrees, and forearm pronation was 80 degrees. Physical
examination findings for right wrist revealed extension of 60 degrees, flexion of 60 degrees,
ulnar deviation of 40 degrees, and radial deviation of 30 degrees. The fingers of the right hand
showed range of motion for the distal interphalangeal joint for the index, middle, ring, and little
finger of 70 degrees, range of motion for the proximal interphalangeal joint for the index,
middle, ring, and little finger of 100 degrees, and the range of motion for the
metacarpophalangeal joint for the index, middle, ring, and little finger of 90 degrees. Dr. Draper
noted a slight positive Tinel’s sign over the right elbow ulnar nerve and a negative Tinel’s sign
over the right wrist ulnar nerve and right elbow median nerve, and grip strength was +5.5 for the
right hand. He related that appellant had normal light touch at the tip of the right index and little
finger. Dr. Draper explained that her diagnoses included right carpal tunnel syndrome, status
post 2005 right carpal tunnel release, and mild right elbow ulnar nerve entrapment syndrome.
He calculated appellant’s impairment rating for right bilateral carpal tunnel syndrome and right
ulnar nerve entrapment syndrome under Table 15-2,8 of the A.M.A., Guides for peripheral nerve
impairment. Using the table for right median nerve, he noted a grade modifier for test findings
of 1, a grade modifier for physical examination of 2 and a grade modifier for history of 2 for a
total of 5 which he divided by 3 to arrive at 1.66 or four percent impairment for grade 1.
Dr. Draper then calculated appellant’s impairment for right ulnar nerve and noted a grade
modifier for test findings of 0, a grade modifier for physical examination of 0 and a grade
modifier for history of 1 for a total of 1 which he divided by 3 to arrive at 0.33 or 0 percent for a
grade 0. Lastly, Dr. Draper combined the impairment ratings for the right median nerve and
right ulnar nerve to arrive at a total four percent right upper extremity permanent impairment.
Dr. Draper, in a supplemental report dated November 9, 2015, determined the date of
MMI to be July 15, 2006, which he noted was one year following right carpal tunnel release
surgery on July 15, 2005.
By decision dated December 17, 2015, OWCP denied appellant’s request for an
additional schedule award.

8

Supra note 5 at Table 15-2.

5

By letter dated December 29, 2015, counsel requested an oral hearing before an OWCP
hearing representative. This hearing was held on April 11/2016.
By decision dated June 30, 2016, an OWCP hearing representative affirmed the
December 17, 2015 decision denying appellant’s claim for an additional schedule award. The
hearing representative found the weight of the medical opinion evidence rested with Dr. Draper’s
August 13, 2015 report.
LEGAL PRECEDENT
Under section 8107 of FECA9 and section 10.404 of the implementing federal
regulations,10 schedule awards are payable for permanent impairment of specified body
members, functions, or organs. FECA, however, does not specify the manner in which the
percentage of impairment shall be determined. For consistent results and to ensure equal justice
under the law for all claimants, good administrative practice necessitates the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides
has been adopted by the implementing regulations as the appropriate standard for evaluating
schedule losses.11
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).12 Under the sixth edition, the evaluator identifies the impairment class for the
Class of Diagnosis (CDX) condition, which is then adjusted by grade modifiers based on
Functional History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).13
The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).14
The A.M.A., Guides notes that, when impairment results strictly from a peripheral nerve
lesion, no other rating method is applied to this section (15.4 Peripheral Nerve Impairments) to
avoid duplication or unwarranted increases in the impairment estimation.15
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and

9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

11

D.J., 59 ECAB 620 2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

12

A.M.A., Guides 3 (6th ed., 2009), section 1.3, The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.
13

Id. at 383-419.

14

Id. at 411.

15

A.M.A., Guides 423 (note that peripheral nerve impairment may be combined with diagnosis-based
impairments (DBI) at the upper extremity as long as the DBI does not encompass the nerve impairment. Id. at 419.

6

percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical
adviser providing rationale for the percentage of impairment specified.16
ANALYSIS
OWCP accepted that appellant sustained right carpal tunnel syndrome and right ulnar
nerve compression. On December 15, 2011 appellant filed a claim for a schedule award. By
decision dated November 26, 2013, OWCP granted appellant a schedule award for nine percent
right upper extremity permanent impairment with September 13, 2011 as the date of MMI. By
decision dated August 21, 2014, the hearing representative set aside the November 26, 2013
schedule award determination and remanded the case for referral to a proper specialist to make
an impairment determination using the sixth edition of the A.M.A., Guides. On remand, OWCP
referred appellant to Dr. Draper for a second opinion evaluation. Dr. Draper diagnosed right
carpal tunnel syndrome, status post 2005 right carpal tunnel release, and mild right elbow ulnar
nerve entrapment syndrome. He reviewed the medical and evidence and provided examination
findings. Dr. Draper applied the A.M.A., Guides and concluded that appellant had four percent
right upper extremity impairment due to her accepted right carpal tunnel and right elbow ulnar
nerve entrapment syndrome and that the date of MMI was July 15, 2006. By decision dated
December 17, 2015, OWCP denied appellant’s request for an additional schedule award based
on Dr. Draper’s report, which was affirmed by a hearing representative on June 30, 2016.
After OWCP received the report from Dr. Draper, if the claims examiner determined that
the case was in posture for a schedule award determination, the case should have been referred to
a DMA for review. OWCP’s procedures specifically provide: “The [c]laims [e]xaminer (CE)
will ask the [d]istrict [m]edical [a]dviser (DMA) to evaluate a case when it appears to be in
posture for schedule award determination. The DMA is responsible for reviewing the file,
particularly the medical report on which the award is to be based, and then calculating the
award.”17
On appeal counsel contends there is a discrepancy in the medical opinion evidence
regarding appellant’s impairment rating between Dr. Becan, appellant’s examining physician,
and Dr. Draper, a second opinion physician. The Board notes that Dr. Becan in his
September 13, 2011 report found that appellant had 11 percent permanent impairment of the
right upper extremity. In assessing appellant’s impairment for right carpal tunnel syndrome,
Dr. Becan assigned grade modifiers of 3, for test findings, history, and physical examination
findings. While assessing appellant’s ulnar nerve entrapment neuropathy he assigned a grade
modifier of 1 for test results, a grade modifier of 3 for history, and a grade modifier of 2 for
physical examination findings. Based upon Dr. Becan’s findings OWCP’s medical adviser
found in his November 12, 2013 report that appellant had nine percent permanent impairment of
the right upper extremity. OWCP thereafter granted appellant a schedule award for nine percent
permanent impairment of the right upper extremity. Dr. Draper, however, concluded in his
16

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013). See C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57
ECAB 349 (2006).
17

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3 (January 2010).

7

August 13, 2015 report that appellant only had four percent permanent impairment of the right
upper extremity. He evaluated appellant’s impairment under the Tables for right median and
right ulnar nerve. Dr. Draper assigned grade modifiers lower than those of Dr. Becan. For
example, in rating appellant’s right ulnar nerve impairment he assigned a grade modifier of 0 for
test findings, a grade modifier of 0 for physical examination and a grade modifier of 1 for
history. Dr. Draper, however, related that appellant had reached MMI in 2006, years prior to
Dr. Becan’s evaluation.
Reinforcing the requirement for DMA review of a schedule award claim, OWCP
procedures also provide that, after obtaining all necessary medical evidence, the file should be
routed to an OWCP medical adviser for an opinion concerning the percentage of impairment
using the A.M.A., Guides.18 OWCP accepted Dr. Draper’s examination findings in denying
appellant’s request for an additional schedule award. Dr. Draper’s examination findings suggest
that appellant’s condition may have improved since Dr. Becan’s evaluation, if OWCP believed
that all necessary medical evidence was now of record, it was incumbent on the claims examiner
to request that OWCP’s medical adviser review the record. The facts of this case remain unclear
as to whether appellant’s condition improved after 2011, or if MMI occurred in 2006.
Dr. Draper’s report was not forwarded to an OWCP medical adviser for review and thus
it did not comply with its procedures. For this reason, the Board will set aside the June 30, 2016
decision and remand the case to OWCP. On remand, OWCP should have a medical adviser
evaluate Dr. Draper’s August 13 and November 9, 2015 reports and provide an opinion
concerning the extent of appellant’s impairment in accordance with the A.M.A., Guides. After
such further development as may be necessary, it shall render a de novo decision.
CONCLUSION
The Board finds this case not in posture for decision.

18

See Federal (FECA) Procedure Manual, supra note 16 at Chapter 2.808.6(f) (February 2013); C.K., Docket No.
09-2371 (issued August 18, 2010); M.R., Docket No. 13-1279 (issued December 5, 2013); C.K., Docket No. 092371 (issued August 18, 2010); Frantz Ghassan, 57 ECAB 349 (2006).

8

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 30, 2016 is set aside and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: May 22, 2017
Washington, DC

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

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

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

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