United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
V.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
_________________________________________

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

Docket No. 11-211
Issued: September 26, 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 November 1, 2010 appellant filed a timely appeal from the September 17, 2010
Office of Workers’ Compensation Programs’ (OWCP) schedule award decision. Pursuant to the
Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the schedule award determination.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she is
entitled to a schedule award.
FACTUAL HISTORY
On May 21, 2007 appellant, then 42-year-old mail handler filed a claim for a recurrence
on May 16, 2007. She alleged that pulling and lifting in the performance of her duties

1

5 U.S.C. § 8101 et seq.

contributed to a neck condition.2 Appellant stopped work on May 18, 2007 and returned on
May 21, 2007 in a full-time limited-duty capacity. OWCP accepted her claim for cervical sprain.
Appellant received appropriate compensation benefits.
On May 7, 2009 appellant claimed a schedule award. By letter dated July 24, 2009,
OWCP requested that she obtain an opinion from her treating physician regarding her workrelated condition and permanent impairment pursuant to the American Medical Association,
Guides to the Evaluation of Permanent Impairment, (6th ed. 2009) (hereinafter, A.M.A., Guides).
In reports dated August 5 and 24, 2009, Dr. Nagaveni Rao, a Board-certified physiatrist,
noted that appellant’s history and advised that he examined her on August 5, 2009. His findings
included that she had pain in the scale of 9 out of 10, tingling down the left arm, numbness in the
thumb and index finger, pain in the neck on left rotation, pain on pushing and pulling and lifting
objects over five pounds. Dr. Rao diagnosed cervical radiculopathy and opined that appellant
reached maximum medical improvement. He advised continued symptomatic care for her
shoulder and neck. Dr. Rao opined that appellant had 50 percent permanent loss of use of the
left shoulder.
On January 26, 2010 OWCP denied appellant’s claim for a schedule award finding that
the medical evidence provided did not rate impairment under the A.M.A., Guides.
On February 16, 2010 appellant requested reconsideration and submitted additional
evidence. In a March 19, 2010 report, Dr. Noel Smith, a Board-certified surgeon, noted her
history and referenced the A.M.A., Guides. He opined that appellant reached maximum medical
improvement around June 2009 and had 30 percent whole person impairment. In a March 30,
2010 report, OWCP’s medical adviser noted that Dr. Smith’s report was brief and had limited
findings. He explained that whole person impairments could not be accepted and requested an
amended report from Dr. Smith.
In a letter dated April 12, 2010, OWCP requested that appellant obtain an impairment
rating from Dr. Smith for a scheduled body member. In reports dated April 22, 2010, Dr. Smith
noted her history and examined her. He opined that appellant reached maximum medical
improvement in June 2009. Dr. Smith referred to the left shoulder and provided findings for
range of motion they included: flexion of 100 degrees, extension of 15 degrees, abduction of 36
degrees and adduction of 20 degrees. For the cervical spine, he determined that she had flexion
of 40 degrees, extension of 10 to 15 degrees, left rotation of 40 degrees, right rotation of 50
degrees, left lateral bend of 15 to 20 degrees and right lateral bend of 30 degrees. Dr. Smith
indicated that there was no atrophy or ankylosis, and diagnosed radiculopathy on the left C5-6
and 8, with myopathy, a C4-5 small central disc herniation, C3-4 mild disc bulge. He also noted
that appellant had pain in the neck and left arm that was 9 out of 10 in severity at times.
Dr. Smith referred to the A.M.A., Guides and completed a QuickDash worksheet. He referred to
Table 15-53 and noted that appellant had class 2 shoulder pain, for 24 percent impairment for the
2

Appellant has a prior claim under File No. xxxxxx158, for a December 9, 2004 work injury which was accepted
for a left rhomboid sprain. OWCP doubled both cases under the present claim.
3

A.M.A., Guides 401.

2

left arm. Dr. Smith referred to Table 17-24 for a multilevel disc herniation and explained that
appellant would be in a class 4, for 30 percent impairment. He combined the values for an
impairment of 54 percent left arm impairment.
In a May 4, 2010 report, OWCP’s medical adviser explained that Dr. Smith had not used
the appropriate tables and charts from the A.M.A., Guides. He noted that Dr. Smith utilized
June 2009 as the date of maximum medical improvement; however, he did not explain how he
arrived at this date. The medical adviser noted that Dr. Smith did not explain why he used a
class 2 in Table 15-5, as the highest class for a left shoulder sprain was a class 1 and resulted in a
default value of one percent. Furthermore, he noted that, for the three grade modifiers, even if
they moved the default value from C to E, would only provide two percent left arm impairment.
The medical adviser explained that Dr. Smith should have used the range of motion method as
there was considerable loss of motion in appellant’s examination. He also noted that Dr. Smith
referred to Table 17-2, under the cervical spine regional grid for cervical radiculopathy.
However, the medical adviser explained that this grid only provided whole person impairments,
which as previously noted, were not applicable. He recommended a second opinion.
On May 18, 2010 OWCP referred appellant for a second opinion, along with a statement
of accepted facts, a set of questions and the medical record to Dr. Robert Orlandi, a Boardcertified orthopedic surgeon. In a June 7, 2010 report, Dr. Orlandi described her history and
utilized the A.M.A., Guides. He examined appellant and found no evidence of derangement of
the left shoulder, left elbow or left wrist. Dr. Orlandi explained that an examination of the three
areas of complaint revealed no abnormalities. He also determined that there was no measurable
atrophy of the left versus the right upper arm or forearm. Sensation and motor function were
intact and there was no epicondylitis. The left shoulder had a full and painless range of motion,
including abduction and forward flexion. Dr. Orlandi opined that appellant did not have a
musculoskeletal disability in the left arm. He explained that the rating provided by Dr. Smith
was excessive. Additionally, Dr. Orlandi noted that he would examine the cervical spine on a
separate date. He opined that appellant had no permanent impairment of her left shoulder, left
elbow and left wrist.
In a July 12, 2010 addendum, Dr. Orlandi examined appellant’s cervical spine on that
date. He noted appellant’s symptoms of paresthesias in the lateral arm and radial forearm and
digits one and two of the left hand. Examination revealed no abnormality in the resting posture.
Cervical lordosis was a normal 40 degrees and there was no fixed paraspinal spasm. Appellant
had excellent cervical range of motion, which included 65 degrees of cervical extension, 85
degrees of lateral rotation to the right and left, 60 degrees of forward flexion and lateral bending
to the right and 40 degrees on the left. There was no evidence of a myofascial sprain of
appellant’s right or left upper trapezius. Spurling’s test of timed extension and external rotation
produced no trapezial or upper extremity symptoms. There was no swelling or tenderness of the
anterior musculature, deep tendon reflexes were normal 2+ and symmetric in the biceps, triceps
and brachioradialis (C3, C6 and C7). Appellant had normal sensation in the upper extremities
and normal strength including the interossei, the wrist extensors, the finger extensors, elbow
flexors, elbow flexors and shoulder abductors on the right and left (C8 to C4). Dr. Orlandi
4

Id. at 564.

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diagnosed resolved cervical and shoulder strains. He explained that a cervical magnetic
resonance imaging (MRI) scan revealed only a small central disc herniation that did not contact
the thecal sac. Also, Dr. Orlandi advised that there was no nerve root or foraminal impingement
and there was a normal lumbar lordosis. He opined that his examination indicated that appellant
had a remarkably good and pain-free cervical range of motion, three upper extremity reflexes
were normal as was sensation and motor function. Dr. Orlandi opined that no further treatment
was warranted and there was no musculoskeletal disability.
On August 3, 2010 OWCP requested additional information from Dr. Orlandi regarding
whether appellant had permanent impairment attributable to the cervical spine. In an August 24,
2010 addendum, Dr. Orlandi opined that appellant had no disability and that she had no
permanent impairment of the cervical spine. He also noted that the cervical spine did not
contribute to the left shoulder and left elbow strains which had resolved.
By decision dated September 17, 2010, OWCP denied modification of the January 26,
2010 decision.
LEGAL PRECEDENT
The schedule award provision of FECA,5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions issued
after May 1, 2009, the sixth edition will be used.8
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.9 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

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

9

Pamela J. Darling, 49 ECAB 286 (1998).

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impairment originated in the spine.10 A schedule award is not payable for an impairment of the
whole body.11
ANALYSIS
OWCP accepted appellant’s claim for a left rhomboid sprain and a cervical sprain.
However, the evidence of record is insufficient to establish that he is entitled to a schedule award
in accordance with the sixth edition of the A.M.A., Guides.
In support of her claim, appellant submitted several reports from her treating physicians,
Dr. Rao and Dr. Smith. In August 5 and 24, 2009 report, Dr. Rao noted findings and opined that
appellant had 50 percent impairment of the left shoulder. However, this report is insufficient to
establish any employment-related permanent impairment of the left arm as Dr. Rao did not rate
impairment under the A.M.A., Guides.12
In his March 19, 2010 report, Dr. Smith opined that appellant had 30 percent whole
person impairment. However, as noted above, a schedule award is not payable for impairment to
the body as a whole.13 In April 22, 2010 reports, Dr. Smith provided examination findings and
noted that appellant had significant pain in the neck and left arm at times. He referred to Table
15-5, page 401, and noted that appellant had class 2 shoulder pain, for 24 percent impairment for
the left arm. This finding does not comport with the A.M.A., Guides as no diagnosis on
page 401 provides for class 2 impairment ranges. Furthermore, the highest rating for shoulder
pain, on page 401 would be a class 1 with a maximum value of one percent. An attending
physician’s report is of diminished probative value where the A.M.A., Guides are not properly
followed.14 Additionally, Dr. Smith referred to Table 17-215 for a multilevel disc herniation and
explained that appellant would be in class 4, for 30 percent impairment. However, as noted,
whole person impairments are not provided under the A.M.A., Guides. The Board also notes
that OWCP did not accept cervical disc herniations as being employment related.16 Dr. Smith
did not otherwise provide findings that correlated with the sixth edition of the A.M.A., Guides
that showed a ratable permanent impairment due to the accepted conditions. Thus, his opinion is
of diminished probative value.

10

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

11

N.M., 58 ECAB 273 (2007).

12

Paul R. Evans, Jr., 44 ECAB 646 (1993) (a medical report not explaining how the A.M.A., Guides are utilized
is of little probative value).
13

Supra note 11.

14

Supra note 12.

15

A.M.A., Guides 564.

16

See Veronica Williams, 56 ECAB 367 (2005) (a schedule award can be paid only for a condition related to an
employment injury; the claimant has the burden of proving that the condition for which a schedule award is sought
is causally related to his or her employment).

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In a May 4, 2010 report, OWCP’s medical adviser reviewed Dr. Smith’s April 22, 2010
report and, upon noting the deficiencies in Dr. Smith’s impairment rating, recommended a
second opinion examination.
In a June 7, 2010 report, Dr. Orlandi, the second opinion physician, found no evidence of
derangement of the left shoulder, left elbow or left wrist. There were no abnormalities or
atrophy. Sensation and motor function were intact and range of motion was full and painless.
Dr. Orlandi opined that appellant had no permanent impairment of the left arm. In a July 12,
2010 addendum, Dr. Orlandi set forth detailed examination findings for appellant’s cervical
spine as well as additional findings for the left arm. He found no abnormalities to suggest any
permanent impairment of the left arm. Resting posture and cervical lordosis were normal and
there was no fixed paraspinal spasm. Cervical range of motion was normal as was sensation and
strength. Dr. Orlandi opined that the cervical and shoulder strains had resolved. Dr. Orlandi
explained that an MRI scan revealed only a small central disc herniation which did not contact
the thecal sac. There was no nerve root or foraminal impingement. Dr. Orlandi opined that
appellant had no musculoskeletal disability. In an August 24, 2010 addendum, he specifically
opined that appellant had no permanent impairment of the cervical spine. Dr. Orlandi found no
basis under the A.M.A., Guides, on which to attribute any permanent impairment of the left arm
to appellant’s accepted conditions.
The Board finds that the medical evidence does not establish that appellant has any
permanent impairment of the left arm causally related to either her accepted cervical sprain or
her left rhomboid sprain. Consequently, OWCP properly denied her claim for a schedule award.
CONCLUSION
The Board finds that OWCP properly denied appellant’s claim for a schedule award.

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ORDER
IT IS HEREBY ORDERED THAT the September 17, 2010 Office of Workers’
Compensation Programs’ decision is affirmed.
Issued: September 26, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.E., Appellant
and
U.S. POSTAL SERVICE, ARCH ANNEX
STATION, Stockton, CA, Employer
__________________________________________

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

Docket No. 13-1110
Issued: August 7, 2013

Case Submitted on the Record

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

JURISDICTION
On April 4, 2013 appellant, through her attorney, filed a timely appeal from a
February 13, 2013 decision of OWCP of Workers’ Compensation Programs (OWCP) denying
her request for reconsideration as untimely filed and failing to demonstrate clear evidence of
error. Because more than 180 days elapsed from the most recent merit decision of September 26,
2011 to the filing of this appeal, the Board lacks jurisdiction to review the merits of her claim
pursuant to 20 C.F.R. §§ 501.2 and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was untimely filed and failed to establish clear evidence of error.
FACTUAL HISTORY
On February 1, 2011 appellant, then a 41-year-old city carrier, filed an occupational
disease claim alleging that she developed back and right arm pain due to factors of her federal
employment. Dr. Jerry Crooks, an attending family practitioner, stated that she could return to

work with restrictions on February 22, 2011. On February 11, 2011 OWCP requested additional
factual and medical evidence in support of appellant’s claim.
By decision dated April 6, 2011, OWCP denied appellant’s claim finding that she failed
to submit factual evidence describing the employment duties which she felt caused or
contributed to her claimed condition.
Appellant requested an oral hearing before an OWCP hearing representative on
April 15, 2011. In a decision dated September 26, 2011, the hearing representative found that
appellant had adequately described her employment duties at the oral hearing. Appellant also
provided medical evidence of diagnosed neck and lumbar stains. The hearing representative
found that appellant did not submit sufficient medical evidence to establish a causal relationship
between her diagnosed conditions and her employment duties.
Following the oral hearing, appellant submitted a report dated April 5, 2012 from
Dr. Crooks diagnosing myalgia and myositis. On March 14, 2012 Dr. Michael Shi, a family
practitioner, stated that appellant developed back, elbow and multiple joint pains in
January 2011. She attributed her condition to work, but did not provide any documentation of a
work injury. Dr. Shi stated, “My opinion regarding the patient’s multiple joint problems is an
arthritis type of problem because there is no direct evidence to support her work injury-related
issue.” Dr. Crooks completed a form report on March 15, 2012 and diagnosed right rotator cuff
tendinitis and fibromyalgia. He stated that it was not his opinion that appellant’s conditions were
related to her employment.
In a letter dated February 5, 2013, counsel requested reconsideration of the September 26,
2011 merit decision and submitted new evidence. In a report dated December 13, 2012,
Dr. Michael Hebrard, Board-certified in physical medicine and rehabilitation, noted appellant’s
employment history and job duties of repetitive standing, squatting, bending, twisting, reaching
at and above the shoulder, lifting and carrying. He provided findings on physical examination
and diagnosed right bicipital tenosynovitis, right shoulder impingement tendinitis, shoulder strain
on the right and rotator cuff syndrome bursitis. Dr. Hebrard stated, “Based on my evaluation of
the patient, it is the opinion of the undersigned with a reasonable degree of medical certainty that
there is a causal relationship with the patient’s current condition of the right shoulder in terms of
the duties she was responsible for performing with repetitive reaching below, at and above the
level of the shoulder in the course of her employment which signifies causation to a reasonable
degree of medical certainty.”
By decision dated February 13, 2013, OWCP found that appellant’s request for
reconsideration was not timely filed and that she failed to establish clear evidence of error. It
noted the divergent opinions among her physicians and stated that Dr. Hebrard’s supportive
report was not sufficient to establish that OWCP made an error or to shift the weight of the
evidence in favor of her claim or to raise a fundamental question as to the correctness of
OWCP’s decision.

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LEGAL PRECEDENT
Under section 8128(a) of FECA,1 OWCP has the discretion to reopen a case for review on
the merits, on its own motion or on application by the claimant. It must exercise this discretion in
accordance with section 10.607 of the implementing federal regulations. Section 10.607 provides
that “An application for reconsideration must be sent within one year of the date of [OWCP]
decision for which review is sought.”2 In Leon D. Faidley, Jr.,3 the Board held that the imposition
of the one-year time limitation for filing an application for review was not an abuse of the
discretionary authority granted OWCP under section 8128(a) of FECA. The one-year time
limitation period set forth in 20 C.F.R. § 10.607 does not restrict OWCP from performing a limited
review of any evidence submitted by a claimant with an untimely application for reconsideration.
OWCP is required to perform a limited review of the evidence submitted with an untimely
application for review to determine whether a claimant has submitted clear evidence of error on the
part of OWCP thereby requiring merit review of the claimant’s case.
If the request for reconsideration is made after more than one year has elapsed from the
issuance of the decision, the claimant may only obtain a merit review if the application for review
demonstrates “clear evidence of error” on the part of OWCP.4
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.5 The evidence must be positive, precise and explicit and must be
manifest on its face that OWCP committed an error.6 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.7 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion.8 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.9 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create a
conflict in medical opinion or establish a clear procedural error, but must be of sufficient probative
value to prima facie shift the weight of the evidence in favor of the claimant and raise a
fundamental question as to the correctness of OWCP’s decision.10 The Board makes an
1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.607.

3

41 ECAB 104, 111 (1989).

4

Supra note 2; Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

5

See Dean D. Beets, 43 ECAB 1153 (1992).

6

See Leona N. Travis, 43 ECAB 227 (1991).

7

See Jesus D. Sanchez, supra note 4.

8

See supra note 6.

9

See Nelson T. Thompson, 43 ECAB 919 (1992).

10

Supra note 3 at 114.

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independent determination of whether a claimant has submitted clear evidence of error on the part
of OWCP such that OWCP abused its discretion in denying merit review in the face of such
evidence.11
ANALYSIS
The only decision before the Board is that dated February 13, 2013 which declined to
reopen appellant’s case on the merits because her request was not timely filed and did not show
clear evidence of error.
The Board finds that OWCP did not abuse its discretion by denying to reopen appellant’s
claim for further consideration of the merits of the claim under 5 U.S.C. § 8128(a). Appellant’s
request for reconsideration was not timely filed within the one-year time limitation period set forth
in 20 C.F.R. § 10.607 or show clear evidence of error.
OWCP’s hearing representative denied appellant’s claim for an occupational disease on the
grounds that she failed to submit adequate medical opinion evidence to establish a causal
relationship between her diagnosed back and shoulder conditions and her accepted employment
duties. Appellant submitted several medical reports in support of her request for reconsideration.
Dr. Crooks nor Dr. Shi supported a causal relationship between appellant’s employment duties and
the conditions diagnosed, indicating that her arthritis type” condition and fibromyalgia were not
due to her employment. These reports do not support appellant’s claim or establish error on the
part of OWCP in the denial of her claim.
Appellant also submitted a report dated December 13, 2012 from Dr. Hebrard, who opined
that her diagnosed conditions were causally related to her employment duties. While
Dr. Hebrard’s report is generally supportive of her occupational disease claim, his report is not
sufficient to establish clear evidence of error on the part of OWCP. His report is not of sufficient
probative value to shift the weight of the medical evidence in favor of appellant or to raise a
fundamental question as to the correctness of OWCP’s decision. While Dr. Hebrard offered an
opinion that the conditions that he diagnosed were due to her employment, he did provide an
explanation to overcome the contrary opinions of Dr. Crooks nor Dr. Shi or to shift the weight of
the medical evidence in appellant’s favor.
The Board finds that appellant did not submit sufficient evidence to establish clear
evidence of error on the part of OWCP, and thus it properly declined to reopen appellant’s claim
for consideration of the merits.
CONCLUSION
The Board finds that appellant has not established clear evidence of error such that
OWCP was required to reopen her untimely request for reconsideration for consideration of the
merits.

11

Gregory Griffin, 41 ECAB 458, 466 (1990).

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ORDER
IT IS HEREBY ORDERED THAT the February 13, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 7, 2013
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
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boise, ID, Employer
__________________________________________

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

Docket No. 07-2423
Issued: May 15, 2008

Case Submitted on the Record

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

JURISDICTION
On September 25, 2007 appellant filed a timely appeal from a March 9, 2007 merit
decision of the Office of Workers’ Compensation Programs terminating authorization for
medical benefits.1 Pursuant to 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 properly terminated authorization for medical benefits
effective March 14, 2006 on the grounds that he had no residuals of his August 22, 1999
employment injury.

1

In its March 9, 2007 decision, the Office indicated that it was denying appellant’s request for reconsideration of
the merits of his claim. As the Office considered the merits of the arguments he raised on reconsideration, however,
it constitutes a merit review of the claim. See Delphyne L. Glover, 51 ECAB 146, 147 (1999).

FACTUAL HISTORY
This case has previously been before the Board. On June 5, 2001 the Board set aside
November 1, 1999 and February 16, 2000 decisions, finding that the medical evidence was
sufficient to require further development to determine whether appellant sustained an injury on
August 22, 1999 in the performance of duty.2 The Board found that the Office should determine
whether he sustained a back injury or aggravation of a preexisting back condition due to
grabbing a tray of mail that slipped out of his hands on August 22, 1999.
On remand, the Office referred appellant to Dr. Joseph Verska, a Board-certified
orthopedic surgeon. The Office requested that the physician address whether the August 22,
1999 employment incident caused a low back injury or aggravated a preexisting low back
condition. On July 17, 2001 Dr. Verska opined that the August 22, 1999 low back incident “was
sufficient to cause the injury that required surgical intervention, namely the disc herniations at
L4-5 and L5-S1.”3 He noted that a May 1998 magnetic resonance imaging (MRI) study showed
“no significant disc herniations” but a September 1999 MRI scan study showed an increased disc
herniation at L4-5 and disc bulge at L5-S1. Dr. Verska found that appellant did not sustain an
aggravation of a preexisting low back condition. On August 28, 2001 the Office accepted that
appellant sustained herniated discs at L4-5 and L5-S1 causally related to the August 22, 1999
employment incident and also accepted the November 15, 1999 discectomy as resulting from the
employment injury.
Appellant resumed limited-duty employment on September 4, 2002 but stopped work on
September 9, 2002. On appeal for the second time, the Board reversed a December 24, 2003
decision finding that appellant abandoned suitable work on September 9, 2002 and that he did
not establish a recurrence of total disability beginning September 9, 2002.4 The Board instructed
the Office to pay compensation from September 9, 2002 until April 9, 2003, when appellant
returned to limited-duty employment.
Appellant stopped work again and filed a recurrence of disability claim on July 26, 2003.
By decision dated November 7, 2003, the Office found that the evidence was insufficient to
show that he sustained a recurrence of disability. In a progress report dated November 8, 2003,
Dr. Richard Radnovich, an attending osteopath, noted that appellant had a history of “several
work[-]related injuries and several exacerbations.” He asserted that “small motions on his job
(that do not require heavy lifting or extreme bending) do require very frequent, repetitive small
motions. Although any one of these motions [is] not significant enough to cause a problem the
accumulative risk is very high that one will tear some ligamentous fibers in an already damaged
area.” Dr. Radnovich found that appellant’s current job was “inadvisable because it is causing
reinjury to this weakened area.”
2

Docket No. 00-2072 (issued June 5, 2001). On August 25, 1999 appellant, then a 46-year-old mail processor,
filed a claim alleging that on August 22, 1999 he sustained severe radiating low back pain when he grabbed a
slipping tray of mail. In November 1999 he underwent a discectomy at L4-5 and L5-S1.
3

Appellant underwent a discectomy at L4-5 and L5-S1 in November 1999.

4

Docket No. 04-1283 (issued February 17, 2005).

2

On June 8, 2005 the Office noted that appellant had alleged that he sustained a recurrence
of disability on September 2, 2003. The Office referred him to Dr. Leslie Bornfleth, a Boardcertified orthopedic surgeon, for a second opinion examination. On June 29, 2005 Dr. Bornfleth
diagnosed degenerative disc disease at L3-4, L4-5 and L5-S1 preexisting the August 22, 1999
work injury, a herniated disc at L4-5 due to the employment injury and status post laminectomy
at L5. He discussed appellant’s current complaints of episodic back and buttock pain.
Dr. Bornfleth opined that the objective evidence did not show a recurrent disc herniation at L4-5.
He attributed appellant’s current symptoms to a degenerative condition and found that his
limited-duty position was within his restrictions. Dr. Bornfleth opined that lumbar tears seen on
a discogram in December 6, 2004 were consistent with degenerative disc disease. In a
supplemental report dated September 6, 2005, he concurred with appellant’s prior work
restrictions and found that they were necessary due to both his work injury and the degenerative
disc disease. Dr. Bornfleth found it was not possible to state whether his degenerative disc
disease was aggravated by his employment injury.
The Office determined that a conflict existed between Dr. Radnovich and Dr. Bornfleth.
The Office referred appellant to Dr. David Schenkar, a Board-certified orthopedic surgeon, for
an impartial medical examination. In the statement of accepted facts, the Office noted that
appellant previously sustained herniated discs at L3-4, L4-5 and L5-S1 in June 1991 while
working in nonfederal employment. The Office identified the accepted condition as an
aggravation of herniated discs at L4-5 and L5-S1.
In a report dated January 13, 2006, Dr. Schenkar found that appellant had no work
restrictions due to the aggravation of his herniated discs at L4-5 and L5-S1 as the 1999 disc
bulges “were properly treated and he recovered from that with only a loss of right ankle reflex
but no leg weakness and pain.” He attributed appellant’s back pain to preexisting degenerative
spondylosis. Dr. Schenkar found that appellant’s aggravation had ceased and that he had
“recovered from the radiculopathy of the herniated discs of 1999 after the surgery.” He opined
that the 1999 employment injury temporarily aggravated his degenerative disc disease (DDD)
but that his current restrictions were “due to his nonspecific low back pain due to generalized
spinal wear present before the 1999 disc herniation.”
Dr. Schenkar disagreed with
Dr. Radnovich’s finding that appellant sustained exacerbations due to repetitive tissue tearing
while performing his light-duty employment. He opined that he did not sustain recurrences of
disability on July 26 and September 2, 1993 such that he could no longer perform his modifiedduty employment.
On February 9, 2006 the Office notified appellant of its proposed termination of
compensation and medical benefits on the grounds that the medical evidence did not show that
he had any residuals of his August 22, 1999 employment injury. The Office further proposed
that it deny that he sustained a recurrence of disability beginning September 2, 2003. By
decision dated March 14, 2006, the Office finalized its termination of medical benefits effective
that date.5

5

The Office indicated that it was terminating wage-loss compensation and medical benefits; however, it does not
appear that appellant was in receipt of compensation.

3

In a letter dated March 10, 2006, received by the Office on March 17, 2006, appellant
asserted that the notice of proposed termination of compensation inaccurately indicated that his
claim was accepted for an aggravation of herniated discs at L4-5 and L5-S1. He also argued that
Dr. Schenkar’s license had been suspended in Washington. On January 22, 2007 appellant
requested reconsideration. He argued that the statement of accepted facts was inaccurate as his
claim was accepted for herniated discs rather than an aggravation of herniated discs.
By decision dated March 9, 2007, the Office denied appellant’s request for
reconsideration on the grounds that the evidence was insufficient to warrant review of the prior
decision. The Office, however, weighed the merits of his argument regarding Dr. Schenkar and
his contention that the statement of accepted facts was in error. The Office found that it used the
word “aggravation” because of his history of prior herniated discs and concluded that the
“wording does not change the fact that this Office accepts any residuals related to the August 22,
1999 incident, or November 15, 1999 surgery, and that the current medical evidence establishes
the claimant no longer has residuals or disability that is due to his work injury.”
LEGAL PRECEDENT
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.6 To terminate authorization for medical treatment, the
Office must establish that appellant no longer has residuals of an employment-related condition
which require further medical treatment.7
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.8 The implementing regulation states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.9 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.10

6

Pamela K. Guesford, 53 ECAB 727 (2002).

7

Id.

8

5 U.S.C. § 8123(a).

9

20 C.F.R. § 10.321.

10

David W. Pickett, 54 ECAB 272 (2002); Barry Neutuch, 54 ECAB 313 (2003).

4

The Office procedure manual provides as follows:
“When the DMA [district medical adviser], second opinion specialist or referee
physician renders a medical opinion based on a SOAF [statement of accepted
facts] which is incomplete or inaccurate or does not use the SOAF as the
framework in forming his or her opinion, the probative value of the opinion is
seriously diminished or negated altogether.”11
ANALYSIS
The Office accepted that appellant sustained herniated discs at L4-5 and L5-S1 due to an
August 22, 1999 employment injury. He underwent a discectomy at L4-5 and L5-S1 in
November 1999. Appellant returned to limited-duty employment on September 4, 2002. He
sustained a recurrence of disability from September 9, 2002 until April 9, 2003. On July 26,
2003 appellant again stopped work. The Office determined that a conflict existed between
Dr. Radnovich and Dr. Bornfleth regarding the nature and extent of his employment-related
condition and disability. The Office referred appellant to Dr. Schenkar for resolution of the
conflict. Based on Dr. Schenkar’s opinion, the Office, in its March 14, 2006 decision, indicated
that it was terminating appellant’s compensation and entitlement to medical treatment. As the
Office was not paying him compensation, however, it improperly characterized the issue as
termination of wage-loss compensation. The issue is whether appellant has residuals of his
employment injury entitling him to further medical treatment.12
Where there exists a conflict in medical opinion and the case is referred to an impartial
medical specialist for the purpose of resolving the conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, is entitled to special
weight.13 The Board finds, however, that Dr. Schenkar’s opinion is of diminished probative
value and thus does not represent the special weight of the medical evidence. The Office
provided Dr. Schenkar with a statement of accepted facts which indicated that it had accepted
that appellant sustained an aggravation of herniated discs at L4-5 and L5-S1 due to his
August 22, 1999 employment injury. The Office, however, accepted the claim for herniated
discs at L4-5 and L5-S1. To assure that the report of a medical specialist is based upon a proper
factual background, the Office provides information to the physician through the preparation of a
statement of accepted facts.14 As noted, when a physician renders a medical opinion based on an
incomplete or inaccurate statemet of accepted facts, the probative value of the opinion is
seriously diminished or negated altogether.15 Dr. Schenkar found that appellant had no further
11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirements for Medical Reports, Chapter 3.600.3
(October 1990).
12

In its notice of proposed termination of compensation and medical benefits, the Office also proposed finding
that appellant did not establish a recurrence of disability beginning September 2003. The Office, however, did not
address this further in its March 14, 2006 decision.
13

Glen E. Shriner, 53 ECAB 165 (2001).

14

Helen Casillas, 46 ECAB 1044 (1995).

15

See supra note 11.

5

work restrictions or residuals due to an aggravation of his herniated discs at L4-5 and L5-S1. His
opinion, however, is based on a statement of accepted facts that does not accurately reflect the
conditions the Office accepted as employment related. Consequently, Dr. Schenkar’s opinion is
of diminished probative value and insufficient to resolve the conflict in medical opinion.
CONCLUSION
The Board finds that the Office improperly terminated authorization for medical benefits
effective March 14, 2006 on the grounds that he had no residuals of his August 22, 1999
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 9, 2007 is reversed.
Issued: May 15, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


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

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

Docket No. 13-362
Issued: May 29, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 3, 2012 appellant filed a timely appeal of the November 21, 2012 decision
of the Office of Workers’ Compensation Programs (OWCP), which denied her occupational
disease 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.
ISSUE
The issue is whether appellant met her burden of proof to establish that she developed an
occupational disease in the performance of duty.
FACTUAL HISTORY
On August 14, 2012 appellant, then a 43-year-old collection representative, filed an
occupational disease claim alleging sciatia, a lumbar sprain and degeneration of a lumbosacral
1

5 U.S.C. §§ 8101-8193.

intervertebral disc after a fall from a broken chair in 2003. She became aware of her condition
and realized that it was causally related to her employment on April 1, 2003. Appellant did not
immediately stop work.
On September 6, 2012 OWCP advised appellant of the type of evidence needed to
establish her claim. It requested that she submit a physician’s reasoned opinion addressing the
relationship of her claimed back condition to specific work factors. OWCP advised that medical
evidence must be from a qualified physician and that nurse practitioners and physician’s
assistants did not qualify as physicians under FECA.
In a September 18, 2012 statement, appellant indicated that in 2000 she fell out of her
chair at work and injured her back.2 She reported using a broken chair without back support for
six months. Appellant advised that her job required her to sit continuously and take incoming
calls daily which caused damage to her back. She stated that sitting in her job occurred daily.
Over the years, appellant received treatment for her back condition and was recently
hospitalized.
Appellant submitted reports from Dr. Darien Behravan, an osteopath specializing in pain
management. On September 23, 2004 Dr. Behravan treated her for severe low back pain. A
lumbar discogram was positive for L3-4 severe degenerative disc disease and a magnetic
resonance imaging scan of the lumbar spine revealed L3-4 degenerative disc disease with a
bulge. Dr. Behravan noted appellant’s complaints of low back pain radiating into the right leg.
Appellant had pain on extension and flexion, motor strength was reduced on the right side with
tenderness to touch of the L4 area. Dr. Behravan diagnosed lumbar degeneration, a lumbosacral
intervertebral disc and sciatica. He recommended epidural steroid injections and returned
appellant to part-time work. In an October 21, 2004 report, Dr. Behravan treated appellant for
lumbar sprain, lumbar degenerative disc disease and sciatic pain. He opined that her symptoms
were clearly caused by the conditions and factors of her employment and was directly caused by
her work-related injury. Dr. Behravan noted that the lumbar sprain was a symptom or condition
related to a deeper underlying cause or pathology, in this case appellant’s degenerative disc
disease. He noted that the sciatica was a sequelae of her lumbar sprain and that her lumbar
sprain, lumbar degenerative disc disease and sciatica were interrelated.
Appellant was treated by Dr. Miriam E. Dunham, a Board-certified family practitioner,
who diagnosed back and leg pain and sciatica. Dr. Dunham provided discharge instructions for
managing chronic pain and obesity. She stated that appellant was unable to work since
August 21, 2012. In a September 4, 2012 work status report, Dr. Dunham noted that appellant
was disabled from September 4 to 9, 2012 and then could return to work with restrictions.
Appellant was also treated by Dr. Miya M. Shanahan, a Board-certified internist. In an
August 24, 2012 visit verification form, Dr. Shanahan noted that appellant was currently
hospitalized and disabled from August 21 to September 4, 2012 when she could return to work
without restrictions. Appellant also provided physical therapy records.

2

The employing establishment noted that appellant filed a separate claim for the 2000 injury. The other claim is
not presently before the Board.

2

In a decision dated November 21, 2012, OWCP denied appellant’s claim finding that the
medical evidence did not establish that her back condition was causally related to work activities.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim. When an employee claims that he or she sustained an
injury in the performance of duty, he or she must submit sufficient evidence to establish that he
or she experienced a specific event, incident or exposure occurring at the time, place and in the
manner alleged. Appellant must also establish that such event, incident or exposure caused an
injury.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by claimant. The
medical evidence required to establish causal relationship is generally rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4
ANALYSIS
It is not disputed that appellant’s duties as collection representative included prolonged
sitting and answering the telephone. She was diagnosed with a lumbar sprain, lumbar
degenerative disc disease and sciatica. The Board finds that appellant did not submit sufficient
medical evidence to establish that her claimed back conditions are causally related to specific
employment activities or conditions.
On September 23, 2004 Dr. Behravan noted her status but did not address the cause of
her condition. Dr. Behravan’s October 21, 2004 report diagnosed lumbar sprain, lumbar
degenerative disc disease and sciatica. He stated generally that appellant’s symptoms were
directly related and caused by the conditions and factors of her employment. Appellant’s
3

See Walter D. Morehead, 31 ECAB 188, 194 (1979) (occupational disease or illness); Max Haber, 19 ECAB
243, 247 (1967) (traumatic injury). See generally John J. Carlone, 41 ECAB 354 (1989); Elaine Pendleton, 40
ECAB 1143 (1989).
4

Solomon Polen, 51 ECAB 341 (2000).

3

symptoms were related to a deeper underlying pathology, degenerative disc disease.
Dr. Behravan stated that the lumbar sprain, lumbar degenerative disc disease and a sciatic were
interrelated. Although he provided some support for causal relationship, he did not adequately
explain how appellant’s work activities as a collection representative were sufficient to cause or
contribute to the diagnosed degenerative lumbar disease. At best, Dr. Behravan provided a
conclusory opinion regarding causal relationship.5 He did not explain the process by which
prolonged sitting and answering the telephone would cause degeneration of the lumbar spine and
why such condition would not be due to any nonwork factors such as obesity. Dr. Behravan’s
2004 reports offer no information regarding appellant’s current medical condition and, thus, lack
probative value.6 His reports are insufficient to meet her burden of proof.
Dr. Dunham diagnosed back and leg pain, sciatica and obesity. In a September 4, 2012
work status report, she noted that appellant was disabled from September 4 to 9, 2012 when she
could return to work with restrictions. Similarly, appellant submitted a visit verification form
from Dr. Shanahan, who noted that appellant was hospitalized and would be disabled from
August 21 to September 4, 2012. Neither physician, however provided an opinion on causal
relationship. The reports are insufficient to establish the claim. Dr. Dunham and Dr. Shanahan
addressed treatment not the issue of whether appellant’s employment activities had caused or
aggravated the diagnosed medical conditions.7
Appellant also submitted physical therapy records. However, this evidence is of no
probative medical value. The Board has noted that a physical therapist is not a physician as
defined under FECA and is not competent to render a medical opinion under FECA.8 Therefore,
this report is insufficient to meet appellant’s burden of proof.
The Board finds that the medical evidence is not sufficient to establish that appellant’s
lumbar conditions are causally related to her employment. An award of compensation may not
be based on surmise, conjecture or speculation. Neither the fact that her condition became
apparent during a period of employment nor the belief that her condition was caused,
precipitated or aggravated by her employment is sufficient to establish causal relationship.9
Causal relationships must be established by rationalized medical opinion evidence. OWCP
properly found that she did not meet her burden of proof to establish her claim.
5

See T.M., Docket No. 08-975 (issued February 6, 2009) (a medical report is of limited probative value on the
issue of causal relationship if it contains a conclusion regarding causal relationship which is unsupported by medical
rationale).
6

See Michelle Baker, Docket No. 05-798 (issued October 3, 2005).

7

A.D., 58 ECAB 149 (2006) (medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship).
8

See 5 U.S.C. § 8101(2) (this subsection defines a “physician” as surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law); David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physician’s assistants, nurses and
physical therapists are not competent to render a medical opinion under FECA); Charley V.B. Harley, 2 ECAB 208,
211 (1949) (where the Board has held that a medical opinion, in general, can only be given by a qualified physician).
9

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

4

On appeal, appellant asserts that her a lumbar sprain, lumbar degenerative disc disease
and sciatica were caused by her repetitive work duties. She contends that she submitted
sufficient medical evidence to support her claim. As noted, the medical evidence does not
establish that her diagnosed back conditions are causally related to her employment. Appellant
has not submitted a medical opinion from a physician which explains the reasons how sitting at
work or other work activities caused or contributed to her degenerative lumbar disease.
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 did not meet her burden of proof to establish that her
claimed conditions were causally related to her employment.10
ORDER
IT IS HEREBY ORDERED THAT the November 21, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 29, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

10

With her request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence on appeal; see 20 C.F.R. § 501.2(c).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, EKHCS-TOPEKA, Leavenworth, KS,
Employer
__________________________________________

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

Docket No. 09-1850
Issued: March 5, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 8, 2009 appellant filed a timely appeal from a May 14, 2009 nonmerit decision of
the Office of Workers’ Compensation Programs denying reconsideration the Office’s
December 18, 2008 merit decision that denied her claim. As over 180 days has passed since the
last merit decision in this case dated December 18, 2008, and the filing of this appeal, on July 8,
2009, the Board lacks jurisdiction over the merits of this case.1 Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the nonmerit May 14, 2009 decision.
ISSUE
The issue is whether the Office properly denied appellant’s request for merit review
under 5 U.S.C. § 8128(a).

1

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

FACTUAL HISTORY
On August 13, 2008 appellant, a 53-year-old supervisory medical administrator, filed a
traumatic injury claim (Form CA-1) for a strained back she allegedly sustained on July 22, 2008
while reaching for some files. She relates that, while sitting in a chair, she reached for a file, at
which time she experienced pain and a burning sensation in her middle back.
Appellant submitted evidence and her claim was developed.
By decision dated December 18, 2008, the Office denied the claim. It accepted that the
incident of July 22, 2008 occurred as alleged but found that the evidence of record did not
establish any medical condition caused by the established work incident.
On April 23, 2009 appellant requested reconsideration. In an April 20, 2009 note, she
reported that her injury occurred at work as she was reaching for some files. Appellant noted
that she experienced thoracic back pain months earlier when she fell while at work. She reported
falling twice in December 2006 and once in October 2007. The back pain appellant experienced
in July 2008 was acute and accompanied by a burning sensation. She did not submit any new
medical evidence with her request for reconsideration.
By decision dated May 14, 2009, the Office denied appellant’s request because she had
not satisfied any of the enumerated grounds for reconsideration.2
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,3 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.4 To be entitled to a merit review of an Office 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.5 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.6
2

Appellant submitted additional evidence on appeal. The Board may not consider evidence for the first time on
appeal, which was not before the Office at the time, it issued the final decision in the case. 20 C.F.R. § 501.2(c).
See J.T., 59 ECAB ___ (Docket No. 07-1898, issued January 7, 2008) (holding the Board’s jurisdiction is limited to
reviewing the evidence that was before the Office at the time of its final decision).
3

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.606(b)(2).

5

Id. at § 10.607(a).

6

Id. at § 10.608(b).

2

ANALYSIS
The Office has accepted that on July 22, 2008 appellant reached for files and sustained
back pain in the performance of her employment duties. It however denied her claim as she did
not submit medical evidence to establish that she sustained a diagnosed condition causally
related to this accepted incident. To obtain merit review of her claim, appellant was required to
submit new and relevant evidence that she did sustain an injury causally related to the accepted
incident.
In her April 23, 2009 reconsideration request, appellant provided her own history of back
pain, both preceding and after July 22, 2008. Her recitation of her back symptoms neither
alleged nor demonstrated the Office erroneously applied or interpreted a specific point of law in
denying her claim. Additionally, it did not advance a relevant legal argument not previously
considered by the Office. Therefore, appellant was not entitled to a review of the merits of her
claim based upon the first and second above-noted requirements under section 10.606(b)(2).7
Appellant also did not submit new relevant and pertinent evidence not previously
considered by the Office and, consequently, has not satisfied the third enumerated ground. She
did not submit any new medical evidence in support of her reconsideration request. With her
August 23, 2009 reconsideration request, appellant submitted an April 20, 2009 note describing
her employment injury and history of injury. The relevant issue underlying appellant’s case is
medical in nature, which can only be proven by rationalized medical opinion evidence, and,
accordingly, appellant’s lay opinion is not relevant.8
Appellant’s reconsideration request failed to show that the Office erroneously applied or
interpreted a point of law nor did it advance a point of law or fact not previously considered by
the Office. Her reconsideration request did not present new relevant and pertinent evidence not
previously considered by the Office.9 Therefore, the Office did not abuse its discretion in
refusing to reopen appellant’s claim for a review on the merits.
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s case for
reconsideration on the merits of her claim under 5 U.S.C. § 8128(a).

7

Id. at § 10.606(b)(2)(i) and (ii).

8

Gloria J. McPherson, 51 ECAB 441 (2000).

9

Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving declarations
do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).

3

ORDER
IT IS HEREBY ORDERED THAT the May 14, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 5, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
DEPARTMENT OF JUSTICE, EXECUTIVE
OFFICE FOR IMMIGRATION REVIEW,
Los Angeles, CA, Employer
__________________________________________

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

Docket No. 21-1084
Issued: December 29, 2021

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 July 12, 2021 appellant filed a timely appeal from a May 7, 2021 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 appellant submitted additional evidence following the May 7, 2021 decision and on appeal.
However, the Board’s Rules of Procedures provides: The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered
by the Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish that she has reached
maximum medical improvement (MMI) for the purpose of receiving an increased schedule award.
FACTUAL HISTORY
On April 6, 2010 appellant, then a 43-year-old legal clerk and technician, filed an
occupational disease claim (Form CA-2) alleging that she sustained a bilateral hand condition
causally related to repetitive duties of her federal employment. OWCP accepted the claim,
assigned OWCP File No. xxxxxx409, for bilateral tenosynovitis of the hand and wrist. 3
On June 30, 2017 appellant requested that OWCP refer her for an impairment evaluation.
OWCP, on August 14, 2017, referred appellant to Dr. Mark Bernhard, an osteopath, for a
second opinion evaluation regarding the extent of any permanent impairment.
In a report dated August 30, 2017, Dr. Bernhard found that appellant had no more than the
previously awarded 14 percent permanent impairment of the right upper extremity due to shoulder
bursitis. Referencing the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides),4 he found two percent permanent
impairment of the each upper extremity due to tenosynovitis of the wrists according to Table 15 3 on page 395.
On October 23, 2017 Dr. Nelson S. Haas, Board-certified in occupational medicine and
serving as a district medical adviser (DMA), opined that appellant had no impairment due to
bilateral wrist tenosynovitis due to inconsistencies in presentation and the lack of objective
findings on examination.
On September 12, 2018 OWCP referred appellant to Dr. Frederick Nicola, a Boardcertified orthopedic surgeon, for a second opinion examination regarding the extent of her
employment-related permanent impairment of the upper extremities.
In a report dated October 4, 2018, Dr. Nicola diagnosed status post right shoulder
impingement, status post right dorsal wrist ganglion excision, and bilateral wrist forearm
intersection syndrome. He found that appellant had two percent permanent impairment of the
wrists due to sprain/strain that included intersection syndrome and nonspecific te ndinitis,
according to Table 15-3 of the A.M.A., Guides.

3
OWCP previously accepted that appellant sustained right shoulder bursitis on April 10, 2008, assigned OWCP
File No. xxxxxx442. Under OWCP File No. xxxxxx442, by decision dated October 30, 2013, it granted appellant a
schedule award for 14 percent permanent impairment of the right upper extremity. OWCP additionally accepted that
appellant sustained left shoulder strain on July 29, 2008, assigned OWCP File No. xxxxxx468. It combined File Nos.
xxxxxx442, xxxxxx468, and xxxxxx409, with the latter serving as the master f ile.
4

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

2

On February 26, 2019 OWCP expanded its acceptance of the claim to include bilateral
wrist forearm intersection syndrome.
On May 19, 2019 Dr. Haas found that appellant had no impairment due to loss of ROM of
the elbow, forearm, or wrists and that she had already received an award for an impairment of the
right shoulder due to loss of ROM. He further found no impairment using the DBI rating method
due to inconsistencies on examination.
In a state workers’ compensation progress report form dated November 21, 2019,
Dr. Pamela Wei-Yung Law, a Board-certified physiatrist, diagnosed tendinitis of the bilateral
wrists and of the extensor tendon of the right hand. She indicated that appellant had reached
maximum medical improvement (MMI) on July 13, 2012 and required restrictions and future
medical care.
On December 23, 2019 OWCP referred appellant to Dr. Richard A. Rogachefsky, a Boardcertified orthopedic surgeon, for a second opinion examination to determine the extent of any
employment-related permanent impairment.
In a report dated January 13, 2020, Dr. Rogachefsky reviewed appellant’s history of injury
and provided ROM measurements for the wrists. He diagnosed bilateral carpal tunnel syndrome
due to cumulative work trauma in 2009 caused by lifting heavy files repetitively. Dr. Rogachefsky
advised that appellant had a positive Tinel’s sign of the right wrist and reviewed her complaints of
bilateral hand numbness and tenderness. He related, “I am recommending the claimant have an
updated electromyogram (EMG) and nerve conduction velocity (NCV) study to rule out right and
left carpal tunnel syndrome recurrence. The claimant should have a course of occupational therapy
and acupuncture of the right and left hands and wrist [two] times a week for [six] weeks.”
Dr. Rogachefsky advised that he would submit a supplemental report after the diagnostic testing.
An EMG/NCV study performed on June 29, 2020 revealed evidence of mild bilateral
median mononeuropathies at the wrist.
On August 13, 2020 OWCP requested that Dr. Law review Dr. Rogachefsky’s January 13,
2020 report, address any areas of disagreement, and provide an opinion on whether appellant’s
condition was permanent and stationary. It afforded her 30 days to submit the requested
information.
By decision dated October 22, 2020, OWCP denied appellant’s claim for an increased
schedule award. It found that Dr. Rogachefsky’s report represented the weight of the evidence
and established that she had not yet reached MMI.
In a state workers’ compensation progress report form dated October 23, 2020, Dr. Law
diagnosed bilateral wrist tendinitis and tendinitis of the right hand extensor tendon. In accompany
treatment notes dated October 22, 2020, she found a positive Finklestein’s test bilaterally and
noted that a June 29, 2020 NCV study had shown bilateral carpal tunnel syndrome. Dr. Law
recommended occupational therapy, which she noted that appellant had declined due to the
COVID-19 pandemic. She indicated that appellant’s work status before this visit was “MMI,
working permanent modified duty.”

3

On November 23, 2020 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review.
By decision dated January 5, 2021, OWCP denied appellant’s request for an oral hearing
finding that it was untimely under 5 U.S.C. § 8124(b).
On February 8, 2021 appellant requested reconsideration.
By decision dated May 7, 2021, OWCP denied modification of its October 22, 2020
decision.
LEGAL PRECEDENT
FECA authorizes the payment of schedule awards for the loss or loss of use of specified
members, organs, or functions of the body. 5 Such loss or loss of use is known as permanent
impairment. OWCP evaluates the degree of permanent impairment according to the standards set
forth in the sixth edition of the A.M.A., Guides.6
The Board has explained that permanent impairment may only be rated according to the
A.M.A., Guides after MMI has been achieved. 7 An impairment should not be considered
permanent until a reasonable time has passed for the healing or recovery to occur.
The period covered by a schedule award commences on the date that the employee reaches
MMI from the residuals of the injury. The question of when MMI has been reached is a factual
one that depends upon the medical findings in the record. The determination of such date is to be
made in each case upon the basis of the medical evidence in that case. 8 The date of MMI is usually
considered to be the date of the medical examination that determined the extent of the permanent
impairment.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that she has
reached MMI for the purpose of receiving an increased schedule award.

5

Supra note 1 at § 8107.

6
20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5(a) (March 2017).
7

See M.J., Docket No. 18-0425 (issued September 7, 2018); A.D., Docket No. 17-1996 (issued March 5, 2018).

8

S.M., Docket No. 18-0837 (issued January 11, 2019); see D.S., Docket No. 15-1244 (issued August 24, 2015).

9

See A.D., supra note 7; W.S., Docket No. 16-0344 (issued April 4, 2016).

4

As noted, a schedule award cannot be determined and paid until a claimant reaches MMI.
MMI refers to a date that the medical condition has become static and well-stabilized.10 Once
impairment has reached MMI, a permanent impairment rating may be performed. 11
OWCP referred appellant to Dr. Rogachefsky for a second opinion examination regarding
the extent of her employment-related permanent impairment.
On January 13, 2020
Dr. Rogachefsky discussed her complaints of bilateral hand numbness and tenderness. He
diagnosed bilateral carpal tunnel syndrome due to lifting heavy files repetitively. Dr. Rogachefsky
found a positive Tinel’s sign of the right wrist. He referred appellant for diagnostic testing to rule
out a recurrence of bilateral carpal tunnel syndrome. Dr. Rogachefsky opined that she required a
six-week course of occupational therapy and acupuncture of the bilateral hands and wrists. As he
found that appellant needed further therapy to treat her current symptoms, his opinion fails to
support that she has reached MMI. 12
OWCP requested that Dr. Law review and comment on Dr. Rogachefsky’s report. In a
progress report dated October 22, 2020, Dr. Law found a positive Finklestein’s test bilaterally and
noted that a June 29, 2020 NCV study had shown bilateral carpal tunnel syndrome. She suggested
occupational therapy, which appellant declined because of the COVID-19 pandemic. 13 Dr. Law
indicated that appellant’s work status was MMI and she was performing modified duty. She did
not, however, directly address whether appellant was at MMI for the purpose of a schedule award,
rather than for the designation of work limitations. Dr. Law further concurred with
Dr. Rogachefsky’s opinion that she required occupational therapy. As both Dr. Law and
Dr. Rogachefsky recommended further medical treatment to improve appellant’s condition,
OWCP properly determined that entitlement to schedule award was not established as MMI had
not been reached.14
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased permanent impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she has
reached MMI for the purpose of receiving an increased schedule award.

10

A.M.A., Guides 24.

11

Id.; see A.D., supra note 7.

12

A.D., id.

13

If a claimant declines therapy, that decision does not preclude an impairment evaluation; however, the physician
should provide written comments regarding the suitability of the therapy, the basis of the refusal, and provide a finding
that the claimant is at MMI without treatment as a result of noncompliance. A.M.A., Guides 24.
14

A.D., supra note 7; see also B.C., Docket No. 16-1061 (issued November 18, 2016).

5

ORDER
IT IS HEREBY ORDERED THAT the May 7, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 29, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.L., Appellant
and
U.S. POSTAL SERVICE, FRANKFORD
STATION, Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-30
Issued: October 13, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 4, 2010 appellant, through her attorney, filed a timely appeal of the June 15,
2010 schedule award decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than three percent impairment of each upper
extremity, for which she received schedule awards.
On appeal, appellant’s attorney contends that there is a conflict in medical opinion
between appellant’s attending physician and an OWCP medical adviser regarding the percentage
of impairment to appellant’s right and left upper extremity. He further contends that OWCP
improperly relied on the medical opinion of OWCP’s medical adviser to resolve a conflict of

1

5 U.S.C. § 8101 et seq.

medical opinion. Lastly, counsel contends that the medical evidence establishes that appellant
sustained a bilateral thumb condition causally related to her accepted employment injury.
FACTUAL HISTORY
The case was before the Board on a prior appeal with respect to the termination of
appellant’s compensation benefits.2 In a September 5, 2008 decision, the Board affirmed an
August 17, 2007 OWCP decision which terminated appellant’s compensation benefits effective
March 19, 2006.3 The Board accorded weight to the medical opinion of Dr. Kevin F. Hanley, an
OWCP referral physician, who found that appellant no longer had any residuals of her accepted
condition and could return to her light-duty position. The Board accorded special weight to the
medical opinion of Dr. Joseph A. Jelen, Jr., an impartial medical specialist, in resolving a
conflict and establishing that appellant had no work-related residuals or disability after
March 19, 2006. The facts and history relevant to the present appeal are hereafter set forth.
On April 9, 2009 appellant filed a claim for a schedule award. In a January 27, 2009
medical report, Dr. Arthur Becan, an orthopedic surgeon, obtained a history of the employment
injury and appellant’s medical treatment, family and social background. He reviewed the
medical record which included a January 3, 2007 electromyogram/nerve conduction study
(EMG/NCS) study which revealed mild bilateral wrist median nerve neuropathies. Dr. Becan
noted appellant’s complaints of daily constant pain and stiffness in her right and left wrist and
hand. Appellant awakened at night with a pins and needles sensation in both hands. Changes in
the weather exacerbated her pain. Appellant had difficulty with sleeping, grasping objects
bilaterally, pulling, pushing and prolonged driving. She experienced clumsiness with both
hands. Appellant could no longer ride her bicycle or make ceramic items. She rated her left
hand pain as 5 out of 10 and her right hand pain as 6 out of 10. Dr. Becan stated that appellant
had a QuickDASH score of 73. On physical examination of the right wrist, he reported a wellhealed surgical incision measuring two centimeters in length along the palmar aspect. There was
palmar wrist tenderness. No dorsal or extensor carpi ulnaris tenderness was noted. Tinel’s,
Phalen’s ulnar abutment, carpal compression, triangular fibrocartilage complex load and
Finkelstein tests were negative. Range of motion measurements included 0 to 70/75 degrees of
dorsiflexion, 0 to 70/75 degrees of palmar flexion, 0 to 20/20 degrees of radial deviation and 0 to
30/35 degrees of ulnar deviation. On examination of the right hand, Dr. Becan found tenderness
at the palmar aspect of the metacarpophalangeal joint of the right thumb. There was locking of
the right thumb on active flexion and extension. On examination of the left wrist, hand and
thumb, Dr. Becan reported the same findings related to tenderness, size of the surgical incision,
test results, range of motion measurements and locking as the right wrist, hand and thumb. Grip
strength testing with the Jamar Hand Dynamometer at Level III revealed four kilograms of force
strength on the right versus three kilograms of force strength on the left. Pinch key testing
2

Docket No. 08-742 (issued September 5, 2008).

3

On October 10, 2003 appellant, then a 49-year-old letter carrier, filed an occupational disease claim alleging that
the pins and needles sensation and numbness in her right and left hand were caused by her repetitive work duties.
On July 26, 2004 OWCP accepted her claim for bilateral carpal tunnel syndrome and authorized right carpal tunnel
release which was performed on December 8, 2003 and left carpal tunnel release which was performed on
February 9, 2004.

2

revealed two kilograms in both the right and left hand. Lower arm circumference measurements
included 21 centimeters on each hand. Semmes Weinstein monofilament testing revealed
decreased sensation in the median nerve root distribution of the right and left hands with a limit
of six milliseconds bilaterally. Dr. Beacon diagnosed cumulative and repetitive trauma disorder
of the bilateral wrists and bilateral carpal tunnel syndrome and trigger thumbs. He stated that
appellant was status post bilateral carpal tunnel release. Dr. Becan advised that the diagnosed
conditions were due to the accepted employment injury.
Dr. Becan found that under Table 15-23 (Entrapment/Compression Neuropathy
Impairment) on page 449 of the sixth edition of the A.M.A., Guides, appellant’s condition for
each arm fell under grade modifier one for EMG test findings that confirmed carpal tunnel
syndrome, grade modifier three for a severe functional history and grade modifier two for
physical examination findings due to decreased sensation. The grade modifier total was six and
averaged two which represented a default value of five percent impairment in each arm. Because
appellant had a QuickDASH score of 73 in the right and left arms, Dr. Becan stated that it was
appropriate to move one place to the right from the five percent default value which represented
six percent impairment in each arm. He determined that under Table 15-2 on page 392 of the
sixth edition of the A.M.A., Guides, which was the digit regional grid, appellant had a class 1
impairment that represented six percent impairment secondary to stenosing tenosynovitis of the
right and left thumb. Under Table 15-7 on page 406, Dr. Becan selected a grade modifier of
three for her functional history based on the QuickDASH score of 73. He selected a physical
examination grade modifier of two based on Table 15-8 on page 408. A Clinical Studies
(GMCS) grade modifier was not relevant. The class diagnosis (CDX) applied was one and the
grade modifier applied was three for Functional History (GMFH) and two for Physical
Examination (GMPE). The net adjustment formula was (GMFH-CDX) + (GMPE-CDX) +
(GMCS-CDX). Since the GMFH was three and the GMPE was two, the formula resulted in 3-1
+ 2-1 + 0-1 = 2 which moving two to the right of the default six percent class 1 impairment
represented eight percent impairment in each thumb. Dr. Becan added this value and the 6
percent impairment for carpal tunnel syndrome to calculate 14 percent impairment in each arm.
He concluded that appellant reached maximum medical improvement on January 27, 2009.
On December 15, 2009 Dr. Morley Slutsky, an OWCP medical adviser, reviewed the
medical record, including Dr. Becan’s January 27, 2009 findings. He determined that appellant
had three percent impairment to each arm based on the sixth edition of the A.M.A., Guides as a
result of her accepted bilateral carpal tunnel syndrome. Appellant reached maximum medical
improvement on January 27, 2009. Dr. Slutsky stated that Dr. Becan failed to properly utilize
the A.M.A., Guides in rating appellant’s permanent impairment due to her accepted condition.
The history grade modifier for each upper extremity was one and not three based on appellant’s
functional symptoms (A.M.A., Guides 449, Table 15-23). Citing page 433 of the A.M.A.,
Guides which addressed the selection of a grade modifier for history, Dr. Slutsky stated that
there was no mention that she was unable to perform at least one of the activities of daily living
(ADL). He related that Dr. Becan may have used the QuickDASH questionnaire results for the
history grade modifier for each upper extremity which was incorrect. Dr. Slutsky noted that the
QuickDASH score is used to adjust the final rating for the grade modifier under Table 15-23. It
is not used in the assignment of a history grade modifier for carpal tunnel syndrome according to
page 433 of the sixth edition of the A.M.A., Guides. Dr. Slutsky stated that use of the

3

QuickDASH score would be duplicative as it was used by Dr. Becan to adjust the final
impairment for appellant.
Dr. Slutsky determined that the average of the grade modifier one for test findings, grade
modifier one for functional history and grade modifier two for physical findings, was 1.33
rounded to the nearest integer equaled one. He stated that the default rating was two percent
impairment for each upper extremity. The functional scale was severe. Dr. Slutsky stated that it
was appropriate to adjust the two percent impairment rating to the right by one value for a final
three percent impairment for each upper extremity. He noted that OWCP had not accepted
appellant’s claim for stenosing tenosynovitis and stated that this condition was not included in
his upper extremity impairment ratings.
In a December 17, 2009 decision, OWCP granted appellant a schedule award for three
percent impairment of each upper extremity for 18.72 weeks for the period January 27 through
June 7, 2009.
By letter dated December 23, 2009, appellant, through counsel, requested an oral hearing
before an OWCP hearing representative.
At the March 30, 2010 hearing, appellant’s attorney argued that appellant’s bilateral
trigger thumb condition which was diagnosed by Dr. Hadley and Dr. Jelen should be accepted by
OWCP.4 Counsel contended that she sustained the diagnosed condition as a consequence of her
accepted bilateral carpal tunnel syndrome. He further contended that appellant’s impairment
rating should be determined under the fifth edition rather than the sixth edition of the A.M.A.,
Guides as OWCP delayed the development of her schedule award claim. Counsel asserted that a
conflict existed in the medical opinion evidence between Dr. Becan and Dr. Slutsky which
required resolution by an impartial medical specialist.
In a June 15, 2010 decision, an OWCP hearing representative affirmed the December 17,
2009 schedule award decision.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation to be paid for permanent loss, or loss of use of the members
of the body listed in the schedule. Where the loss of use is less than 100 percent, the amount of
compensation is paid in proportion to the percentage of loss of use.7 However, neither FECA nor
4

In a December 16, 2005 report, Dr. Hanley listed his findings on physical examination and advised that
appellant had bilateral carpal tunnel syndrome and nonwork-related bilateral trigger finger. In a July 31, 2007
report, Dr. Jelen also listed his findings on physical examination and diagnosed resolved carpal tunnel syndrome and
minimal flexor tendinitis in both hands. He stated that there was no clicking or triggering of the flexor tendons of
either hand and the amount of discomfort in the hands and strength identified on physical examination would not
limit appellant’s performance of activities.
5

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

6

20 C.F.R. § 10.404.

7

5 U.S.C. § 8107(c)(19).

4

the regulations specify the manner in which the percentage of impairment shall be determined.
For consistent results and to ensure equal justice for all claimants, OWCP adopted the A.M.A.,
Guides as a standard for determining the percentage of impairment and the Board has concurred
in such adoption.8 For OWCP decisions issued on or after May 1, 2009, the sixth edition of the
A.M.A., Guides (6th ed. 2009) is used for evaluating permanent impairment.9
Under the sixth edition of the A.M.A., Guides, impairment due to carpal tunnel syndrome
is evaluated under the scheme found in Table 15-23 (Entrapment/Compression Neuropathy
Impairment) and accompanying relevant text.10 In Table 15-23, grade modifiers are described
for test findings, history and physical findings. A survey completed by a given claimant, known
by the name QuickDASH, is used to further modify the grade and to choose the appropriate
numerical impairment rating.11
In some instances, OWCP’s medical adviser’s opinion can constitute the weight of the
medical evidence. This occurs in schedule award cases where an opinion on the percentage of
permanent impairment and a description of physical findings is on file from an examining
physician, but the percentage estimate by this physician is not based on the A.M.A., Guides. In
this instance, a detailed opinion by OWCP’s medical adviser which gives a percentage based on
reported findings and the A.M.A., Guides may constitute the weight of the medical evidence.12
ANALYSIS
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome and authorized
her right and left carpal tunnel release surgeries performed on December 8, 2003 and February 9,
2004, respectively. Appellant later claimed entitlement to a schedule award due to her accepted
condition. In a December 17, 2009 decision, OWCP granted her a schedule award for three
percent permanent impairment of each arm. The Board finds that appellant has not met her
burden of proof to establish that she has impairment greater than the three percent already
awarded for each upper extremity.
In a January 27, 2009 report, Dr. Becan, found, based on the sixth edition of the A.M.A.,
Guides, that appellant had 14 percent impairment of each upper extremity secondary to the
accepted bilateral carpal tunnel syndrome and bilateral thumb stenosing tenosynovitis.
Regarding the right arm, Dr. Becan applied the standards of Table 15-23 (Entrapment/
Compression Neuropathy Impairment) on page 449 of the sixth edition of the A.M.A., Guides.
He determined that for test findings appellant had a grade modifier one based on
electrodiagnostic studies that confirmed carpal tunnel syndrome; that for functional history she
8

Supra note 6.

9

Id.

10

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

11

Id. at 448.

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.7(h) (April 1993).

5

had a grade modifier three for severe symptoms; and that for physical findings she had a grade
modifier two for decreased sensation. The grade modifier values were added resulting in a total
of six. Dividing this value of six by the three modifier categories provided an average of two
which represented a default impairment rating of five percent. Dr. Becan stated that appellant’s
functional score for the right arm (dictated by the QuickDASH score of 73) required a move one
place to the right of the default impairment rating which resulted in six percent impairment. He
calculated an impairment rating for appellant’s stenosing tenosynovitis of the right thumb.
Dr. Becan determined that she had a class 1 impairment that represented six percent impairment
(A.M.A., Guides 392, Table 15-2). He determined that for test findings appellant had a grade
modifier three for functional history based on the QuickDash score of 73 (A.M.A., Guides 406,
Table 15-7) and for physical findings she had a grade modifier two (A.M.A., Guides 408, Table
15-8). The grade modifier values were added resulting in a total of two. Dr. Becan determined
that moving two spaces to the right of the six percent class 1 impairment rating resulted in eight
percent impairment due to stenosing tenosynovitis. He added this value to the 6 percent
impairment rating for carpal tunnel syndrome to calculate 14 percent impairment of the right
upper extremity. Dr. Becan provided the same calculations for the left arm which yielded 14
percent impairment rating for the left arm.
OWCP’s procedures state that an OWCP medical adviser must review the report to verify
correct application of the A.M.A., Guides and confirm the percentage of permanent impairment
as well as specify his reasons for assigning a certain percentage of loss of use to the
measurements or factors provided by an examining physician.13 In this case, the Board finds that
Dr. Slutsky properly determined that appellant had no more than three percent impairment of
each upper extremity. Dr. Slutsky also properly noted that Dr. Becan incorrectly determined the
functional history grade modifier for each upper extremity due to the accepted employment
injury. Regarding the right upper extremity, he found that appellant had a grade modifier of one
rather than three for functional history as there was no evidence that she could not perform at
least one of the ADLs (A.M.A., Guides 433).14 Dr. Slutsky correctly noted that it appeared that
Dr. Becan included the QuickDASH score in his grade modifier assessment for functional history
and again when he adjusted appellant’s final impairment. He explained that a QuickDASH score
was not used in the assignment of a history grade modifier, but was used to adjust the final rating
(A.M.A., Guides 433). Dr. Slutsky agreed with Dr. Becan’s assessments of the grade modifier
for test and physical findings. He calculated a net adjustment of 1.33 which he rounded to one
13

R.S., Docket No. 09-1331 (issued April 5, 2010); Federal (FECA) Procedure Manual, supra note 12 at Chapter
2.810.7(c) (April 1993).
14

Page 433 of the A.M.A., Guides provides: Diagnosis, History, Physical Findings and Functional Scale -“Significant, intermittent symptoms means that pain or numbness is not constant, but the individual is unable to
perform at least one of the ADLs. Someone else consistently does the activity for the individual, and the
individual’s failure to function in this role makes sense to the examiner (the entrapment is severe enough to make
the failure to function in the specific ADL “believable”). This criterion may be met by inability to perform any
single ADL; however, the examiner should verify the stated inability by direct observation of the activity or a
similar activity. The activity the individual is unable to do must be stated in the report, along with the examiner’s
validation of this history.
Constant symptoms means that pain or numbness is constantly present and at least conduction block if not axon
loss must be present on electrodiagnostic testing to substantiate the symptom severity.

6

resulting in a default impairment rating of two percent. As the functional scale was severe,
Dr. Slutsky adjusted this value by one to the right for a final three percent impairment rating for
the right upper extremity. He provided the same calculations for the left arm which resulted in
three percent impairment. Dr. Slutsky properly concluded that appellant was not entitled to an
additional schedule award for bilateral stenosing tenosynovitis as this condition had not been
accepted by OWCP.
Further, there is no medical evidence establishing that the diagnosed condition was
employment related; the burden of proof is on appellant to prove such. Dr. Hanley found that
appellant’s bilateral trigger finger condition was not work related based on his examination
findings. Additionally, Dr. Jelen did not find that appellant had bilateral trigger finger. He
diagnosed resolved carpal tunnel syndrome and minimal flexor tendinitis in both hands.
Dr. Jelen advised that there was no clicking or triggering of the flexor tendons of either hand and
the amount of discomfort in the hands and strength identified on physical examination would not
limit appellant’s performance of activities. Appellant had the burden of proof to establish that
her bilateral trigger finger condition resulted from the accepted employment-related injury.15 As
she failed to submit any rationalized medical evidence establishing her claimed condition, the
Board finds that she did not meet her burden of proof.
As Dr. Slutsky utilized Dr. Becan’s objective clinical findings to compare them with
impairment criteria listed in the sixth edition of the A.M.A., Guides, the Board finds that
appellant has no more than three percent impairment of each upper extremity, for which he
received schedule awards.
On appeal, appellant’s attorney alleged that there was an unresolved conflict of medical
opinion evidence. The Board finds that Dr. Becan’s report does not fully comport with the
protocols of the A.M.A., Guides. Dr. Slutsky’s opinion is entitled to the weight of the medical
evidence.16
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has failed to establish that she has more than three percent
impairment of each upper extremity for which she received schedule awards.

15

See Charlene R. Herrera, 44 ECAB 361 (1993).

16

See supra note 13.

7

ORDER
IT IS HEREBY ORDERED THAT the June 15, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 13, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

8