United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Springfield, MA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-761
Issued: October 11, 2011

Case Submitted on the Record

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

JURISDICTION
On February 2, 2011 appellant filed a timely appeal of the August 6, 2010 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying his request for
reconsideration on the grounds that it was not timely filed and failed to establish clear evidence
of error. Because more than one year elapsed between the most recent merit decision dated
April 3, 2006 to the filing of this appeal, the Board lacks jurisdiction to review the merits of this
case pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c)
and 501.3 but has jurisdiction over the nonmerit decision.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
1
2

5 U.S.C. § 8101 et seq.

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file a
Board appeal. See 20 C.F.R. § 501.3(d)(2). For final adverse OWCP decisions issued on or after November 19,
2008, a claimant has 180 days to file a Board appeal. See 20 C.F.R. § 501.3(e).

FACTUAL HISTORY
On December 7, 2003 appellant, then a 41-year-old custodian, filed a traumatic injury
claim alleging that on January 22, 2001 he sustained herniated discs, degenerative disc disease,
intense neck and back pain, dizziness and blackouts as a result of lifting a mop bucket at work.3
He submitted medical evidence which addressed his neck condition.
In a March 5, 2004 decision, OWCP denied appellant’s claim, finding that the medical
evidence was insufficient to establish that the claimed condition was causally related to the
accepted January 22, 2001 employment incident.
On March 8, 2004 appellant requested an oral hearing. He submitted medical reports and
diagnostic test results which addressed his right shoulder, foot and hand, neck and bilateral knee
and arm conditions and disability for work.
In an April 3, 2006 decision, an OWCP hearing representative affirmed the March 5,
2004 decision, finding that the medical evidence was insufficient to establish that appellant
sustained a neck condition due to the January 22, 2001 employment incident.
By letter dated April 20, 2006, appellant requested reconsideration.
In a June 14, 2006 decision, OWCP denied appellant’s request for reconsideration. It
found that he failed to raise a substantive legal question or submit new and relevant evidence.
By letter dated July 30, 2010, appellant requested reconsideration. He contended that
OWCP denied his claim based on an erroneous medical report from Dr. Thomas S. Kaye, a
Board-certified neurosurgeon. Appellant asserted that Dr. Kaye reached his conclusion about his
condition based on magnetic resonance imaging (MRI) scans that were performed in July 1999
and November 20, 2000 and predated his claimed injury.
In a February 2, 2001 report, Dr. Kaye stated that appellant could return to work on
February 26, 2001 without restrictions. In a February 21, 2001 report, he reviewed the results of
cervical MRI scans performed on July 8, 1999 and November 20, 2000 which demonstrated
degenerative changes and bulging and herniated discs at various levels. Dr. Kaye listed his
findings on physical examination which included normal motor strength testing, sensation and
deep tendon reflexes, a questionable Tinel’s sign on the left side, a negative Phalen’s sign and no
evidence of atrophy or fasciculations. He stated that his findings confirmed restricted range of
motion of appellant’s neck. Dr. Kaye diagnosed degenerative cervical spondylosis. He
recommended conservative management since appellant’s symptoms appeared to be discordant
with the MRI scan findings. In a February 21, 2001 prescription, Dr. Kaye stated that appellant
had cervical radiculopathy.

3

By letter dated March 16, 2001, the employing establishment stated that appellant was being removed from
employment effective March 30, 2001 as he failed to submit evidence to support his inability to report to work since
January 23, 2001. Appellant’s termination was rescinded in a November 30, 2001 settlement agreement. Instead,
the employing establishment issued a letter of warning to him regarding his absence from work.

2

Treatment notes dated January 10, 1997 to December 1, 2000 from the employing
establishment health unit addressed, among other things, appellant’s cervical and carpal tunnel
syndrome conditions and ability to work.
In reports dated June 30, 1997 and November 15, 2000, Dr. Munir H. Abbasy, a Boardcertified neurologist, listed findings on physical, neurologic and diagnostic examination of
appellant’s cervical spine. He advised that appellant had neck pain. There was no evidence of
cervical radiculopathy. Dr. Abbasy suspected that appellant’s pain was musculoskeletal in
origin. He further suspected that appellant had bilateral carpal tunnel syndrome based on his
hand numbness and ordered an electromyogram/nerve conduction study to further evaluate the
problem. Dr. Abbasy concluded that appellant could return to work that week.
In a July 8, 1999 cervical MRI scan report, Dr. Paul M. Gagnon, a radiologist, stated that
the cervical spinal cord was normal in caliber and signal characteristics. No spinal masses were
identified and there was no evidence of significant spinal stenosis. Cervical vertebral bodies
maintained normal height and alignment. Hypertrophic changes of vertebral body end-plates
were noted at C4-5 and C6-7 along with signal changes of the C6-7 end-plates consistent with
discogenic degenerative changes. There was disc space narrowing and loss of characteristic disc
signal at those levels as well. The C2-3 disc space level was unremarkable. At C3-4, there was
mild centralized bulging of the intervertebral disc that was minimally effacing the thecal sac
ventrally. The neural foramina were patent despite hypertrophic degenerative changes of
uncovertebral joints of a mild degree. At C4-5, mild generalized disc bulging and central
spondylosis effaced the thecal sac ventrally without compressing the cervical spinal cord.
Hypertrophic degenerative changes of the uncovertebral joints were noted without significant
neural foraminal stenosis. At C5-6, minimal centralized disc bulging and central spondylosis
effaced the thecal sac ventrally, but without significant spinal stenosis or cord compression. The
neural foramina were patent. At C6-7, mild generalized disc bulging and central spondylosis
effaced the thecal sac ventrally accompanied by hypertrophic degenerative changes of the
uncovertebral joints. There was no cord compression. The right neural foramen was mildly
narrowed.
In an October 27, 1999 report, Dr. Marc A. Goldman, a Board-certified internist, advised
that appellant had acute pain in his neck and shoulder which lead to headaches and diminished
use of his left arm and back. His condition began in 1982 and was permanent. Dr. Goldman
concluded that appellant was not currently incapacitated from performing his work duties, but
stated that his condition would require him to be off work intermittently.
OWCP documents dated July 18 and December 6, 2006 set forth the requirements for
filing a timely claim under 5 U.S.C. § 8122 and notifying the employing establishment about an
injury or death under 5 U.S.C. § 8119, respectively. In a February 8, 2001 letter to the
employment establishment, appellant explained that his absence from work was due to his
claimed injury. He submitted correspondence dated February 12, 2001 through June 10 2009
which addressed his timely notification of injury to his former supervisors, who he claimed lied
and wrote false statements to cover up his injury.
In an August 6, 2010 decision, OWCP denied appellant’s July 30, 2010 request for
reconsideration, without a merit review, on the grounds that it was not timely filed and failed to
establish clear evidence of error in the last merit decision dated April 3, 2006.
3

LEGAL PRECEDENT
Section 8128(a) of FECA4 does not entitle a claimant to a review of an OWCP decision
as a matter of right.5 OWCP, through its regulations, has imposed limitations on the exercise of
its discretionary authority under section 8128(a). Section 10.607(a) of OWCP’s implementing
regulations provide that an application for reconsideration must be sent within one year of the
date of OWCP’s decision for which review is sought.6
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.7
To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.8 The evidence must be positive, precise and explicit and
must be manifest on its face that OWCP committed an error.9 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 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.12
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 substantial question as to the correctness of OWCP’s decision.13 The
Board makes an 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.14

4

5 U.S.C. § 8128(a).

5

Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6

20 C.F.R. § 10.607(a).

7

Id. at § 10.607(b).

8

Nancy Marcano, 50 ECAB 110, 114 (1998).

9

Leona N. Travis, 43 ECAB 227, 241 (1991).

10

Richard L. Rhodes, 50 ECAB 259, 264 (1999).

11

Leona N. Travis, supra note 9.

12

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

13

Veletta C. Coleman, 48 ECAB 367, 370 (1997).

14

Thankamma Mathews, 44 ECAB 765, 770 (1993).

4

ANALYSIS
The Board finds that appellant did not file a timely request for reconsideration. OWCP
procedures provide that the one-year time limitation period for requesting reconsideration begins
on the date of its original decision.15 However, a right to reconsideration within one year also
accompanies any subsequent merit decision on the issues.16
The most recent merit decision in this case was OWCP’s April 3, 2006 decision which
found that the medical evidence of record was insufficient to establish a causal relationship
between appellant’s neck condition and the accepted January 22, 2001 employment incident. As
appellant’s July 30, 2010 letter requesting reconsideration of the merits of his claim by OWCP
was made more than one year after the April 3, 2006 merit decision,17 the Board finds that it was
not timely filed.
The Board further finds that appellant has not established clear evidence of error on the
part of OWCP. The duplicate medical reports from Dr. Kaye dated February 2 and 21, 2001
were previously of record and considered by OWCP in its prior decisions and do not establish
that OWCP committed clear evidence of error in finding that appellant did not sustain an injury
causally related to the accepted employment incident. Dr. Kaye addressed appellant’s cervical
condition and ability to work, but failed to provide a medical opinion explaining how lifting a
mop bucket on January 22, 2001 caused the diagnosed condition and any resultant disability. In
his July 30, 2010 request for reconsideration, appellant contended that Dr. Kaye’s February 21,
2001 opinion was correct as it was based on the July 8, 1999 and November 20, 2000 MRI scans
which predated his alleged injury. The Board notes that the diagnosis of degenerative cervical
spondylosis was based on physical examination findings which confirmed restricted range of
motion of the neck. Dr. Kaye relied on the stated MRI scan results in recommending appellant’s
treatment plan, which is not relevant to the issue on which the claim was denied by OWCP,
namely whether appellant sustained an injury causally related to the January 22, 2001
employment incident. The Board finds that the medical reports resubmitted by appellant do not
establish clear evidence of error.
The February 21, 2001 prescription from Dr. Kaye and the reports from Dr. Abbasy,
Dr. Gagnon and Dr. Goldman and treatment notes from the employing establishment health unit
predate the alleged injury. This evidence does not establish clear evidence of error on the part of
OWCP. This evidence did not provide a medical opinion explaining how the diagnosed cervical
conditions were caused by lifting a mop bucket on January 22, 2001. The Board finds that the
reports from Dr. Kaye, Dr. Abbasy, Dr. Gagnon, Dr. Goldman and the employing establishment
health unit are insufficient to prima facie shift the weight of the evidence in favor of appellant’s
claim.
Appellant’s February 8, 2001 letter to the employing establishment, the correspondence
regarding his notification to management about his claimed injury and OWCP documents
15

20 C.F.R. § 10.607(a); see A.F., 59 ECAB 714 (2008).

16

D.G., 59 ECAB 455 (2008); Robert F. Stone, 57 ECAB 292 (2005).

17

Appellant had one year to request reconsideration by OWCP of its March 8, 2004 decision. See Federal
(FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.6a (January 2004).

5

concerning the timely filing of a claim and notification of an injury are not relevant to the issue
in this case of causal relation between appellant’s claimed injury and the accepted employment
incident. The Board finds, therefore, that this evidence is insufficient to establish clear evidence
of error.
The Board finds that the argument and evidence submitted by appellant in support of his
untimely request for reconsideration do not constitute positive, precise and explicit evidence,
which manifests on its face that OWCP committed an error. Therefore, appellant failed to meet
his burden of proof to show clear evidence of error on the part of OWCP.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the August 6, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 11, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.S., Appellant
and
U.S. POSTAL SERVICE, AIRMAIL CENTER,
Seattle, WA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Norman R. McNulty, Jr., Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2168
Issued: February 13, 2009

Case Submitted on the Record

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

JURISDICTION
On August 4, 2008 appellant filed a timely appeal from a May 8, 2008 decision of the
Office of Workers’ Compensation Programs denying her request for reconsideration. Because
more than one year has elapsed from the last merit decision dated March 29, 2007 to the filing of
this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim pursuant to
20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office abused its discretion in denying appellant’s request for
reconsideration.

FACTUAL HISTORY
This is the second appeal in this case.1 By decision dated August 4, 2006, the Board
affirmed a November 17, 2005 Office decision which upheld the termination of appellant’s
compensation and medical benefits.2 The facts of the previous Board decision are incorporated
herein by reference.
By decision dated March 29, 2007, the Office denied modification of its termination of
appellant’s compensation and medical benefits on the grounds that the evidence did not establish
any continuing disability or medical condition after October 6, 2003 causally related to her
December 10, 2002 employment-related thoracic strain.3
On March 25, 2008 appellant requested reconsideration and submitted new medical
evidence from Dr. William J. Morris, a Board-certified neurosurgeon. She asserted that, “By not
obtaining Dr. Morris’ report before referring [her] to Dr. Smith and Dr. Hubbard, the Office
breached its duty to develop the record in an adequate manner.” In a February 14, 2005 report,
Dr. Morris reviewed the medical history and provided findings on physical examination. He
diagnosed shoulder, neck, thoracic and low back pain and cervical spinal stenosis. Dr. Morris
stated that much of appellant’s low back, thoracic and neck pain was related to deconditioning
and musculoskeletal discomfort. He stated that appellant had a congenitally narrow spinal canal
in the upper to mid cervical region with a herniated disc at C3-4. Dr. Morris noted that appellant
returned to light-duty work following her December 2002 thoracic strain but stopped work in
August 2003 and did not return to work.
By decision dated May 8, 2008, the Office denied appellant’s request for reconsideration
on the grounds that the evidence was not sufficient to warrant further merit review of her claim.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act4 does not entitle a claimant
to a review of an Office decision as a matter of right. This section vests the Office with
discretionary authority to determine whether it will review an award for or against

1

See Docket No. 06-729 (issued August 4, 2006). On December 22, 2002 appellant, then a 45-year-old mail
handler dock technician, filed a traumatic injury claim alleging that on December 10, 2002 she sustained a back
injury while pushing a mail hamper. The Office accepted her claim for a thoracic spine strain.
2

The Office terminated appellant’s compensation and medical benefits by decision dated October 6, 2003. It
upheld its termination decision in subsequent decisions dated July 19 and October 14, 2004, November 17, 2005 and
March 29, 2007.
3

On March 13, 2007 appellant was evaluated by an impartial medical specialist, Dr. Ronald Hubbard, in order to
resolve a conflict in the medical opinion evidence between Dr. David Judish, her attending physician, and Dr. David
Smith, an Office referral physician. Dr. Hubbard determined that she had no continuing disability or medical
condition causally related to her December 10, 2002 work-related thoracic strain.
4

5 U.S.C. §§ 8101-8193.

2

compensation.5 The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).6
To require the Office to reopen a case for merit review under section 8128(a) of the Act,7
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.8 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.9 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.10
The Board has held that the submission of evidence or argument which repeats or
duplicates evidence or argument already in the case record11 and the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case.12
ANALYSIS
In a February 14, 2005 report, Dr. Morris diagnosed shoulder, neck, thoracic and low
back pain and cervical spinal stenosis. As noted, only a thoracic strain was accepted by the
Office as related to the December 10, 2002 work incident when appellant pushed a mail hamper.
Dr. Morris stated that appellant had a congenitally narrow spinal canal in the upper to mid
cervical region with a herniated disc at C3-4. However, he did not provide medical rationale
explaining the cause of the herniated disc. Dr. Morris stated that much of appellant’s low back,
thoracic and neck pain were related to deconditioning and musculoskeletal discomfort but did
not explain how the deconditioning and musculoskeletal problems were related to her accepted
thoracic strain. Lacking a well-reasoned opinion on the relationship of appellant’s cervical, low
back and shoulder conditions to her December 10, 2002 employment-related thoracic strain, the

5

5 U.S.C. § 8128(a).

6

Annette Louise, 54 ECAB 783, 789-90 (2003).

7

Under section 8128(a) of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [his or her] own motion or on application.” See supra note 5.
8

20 C.F.R. § 10.606(b)(2).

9

Id. at § 10.607(a).

10

Id. at § 10.608(b).

11

D.I., 59 ECAB __ (Docket No. 07-1534, issued November 6, 2007); Eugene F. Butler, 36 ECAB 393,
398 (1984).
12

D.K., 59 ECAB __ (Docket No. 07-1441, issued October 22, 2007); Edward Matthew Diekemper, 31 ECAB
224, 225 (1979).

3

February 14, 2005 report from Dr. Morris does not constitute relevant and pertinent new
evidence not previously considered by the Office.
Appellant did not submit evidence or argument that showed that the Office erroneously
applied or interpreted a specific point of law, advanced a relevant legal argument not previously
considered or constituted relevant and pertinent new evidence not previously considered by the
Office. Therefore, the Office properly denied her request for reconsideration.
On appeal, appellant asserts that Dr. Morris’ February 14, 2005 report constitutes
relevant and pertinent new evidence on the issue of whether she had a cervical spine condition
causally related to her December 10, 2002 work-related thoracic strain. As noted, Dr. Morris did
not provide a rationalized medical opinion as to how appellant’s cervical spine condition was
causally related to her 2002 employment injury. Therefore, this report does not constitute
relevant and pertinent new evidence. Appellant argued that the reports of Dr. Smith and
Dr. Hubbard, the Office referral physician and the impartial medical specialist respectively, were
not based on a complete and accurate medical history because the Office did not obtain a copy of
Dr. Morris’ February 14, 2005 report and provide it to them.13 However, the employee has the
burden of submitting evidence necessary for the establishment of his or her claim.14 The
February 14, 2005 report of Dr. Morris was not of record at the time of the evaluations of
Dr. Smith and Dr. Hubbard. It was appellant’s responsibility to provide medical evidence from
her physicians that she wanted the Office to consider. Therefore, her argument that the Office
should have provided a copy of the February 15, 2005 report to Dr. Smith and Dr. Hubbard does
not constitute relevant and pertinent legal argument not previously considered by the Office.
CONCLUSION
The Board finds that the Office did not abuse its discretion in denying appellant’s request
for reconsideration.

13

Appellant stated that Dr. Judish, her attending physician, referenced Dr. Morris in his reports.

14

See 20 C.F.R. § 10.115(f).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 8, 2008 is affirmed.
Issued: February 13, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Little Rock, AR, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 17-1891
Issued: December 11, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge
JURISDICTION
On September 6, 2017 appellant filed a timely appeal from a March 20, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation benefits
pursuant to 5 U.S.C. § 8123(d), effective June 20, 2016, due to her failure to attend a scheduled
medical examination.
FACTUAL HISTORY
On January 14, 1988 appellant, then a 31-year-old distribution clerk, filed an occupational
disease claim (Form CA-2) alleging that she sustained injuries to her upper extremities due to

1

5 U.S.C. § 8101 et seq.

factors of her federal employment. She noted that she first became aware of her claimed conditions
and of their relationship to her employment on January 8, 1988.
OWCP accepted her claim for bilateral carpal tunnel syndrome, left elbow contusion, and
chronic pain on January 3, 1989.
In an undated letter issued on December 16, 2014, OWCP advised appellant that an
appointment had been scheduled for her in order to assess the nature of her condition, the extent
of disability, and appropriate treatment. It explained that her entitlement to compensation could
be suspended, pursuant to 5 U.S.C. § 8123(d), if she refused to submit to or obstructed an
examination.
By letter dated July 29, 2015, mailed to appellant’s address of record, OWCP referred
appellant to Dr. Jeannie Andersson, a Board-certified orthopedic surgeon, for an appointment on
August 13, 2015 at 4:10 p.m. Central Standard Time (CST), to determine the nature and extent of
any residuals of her accepted work-related conditions, and whether she was capable of returning
to full duty.
By letter dated August 14, 2015, a case coordinator notified OWCP that appellant had not
kept her appointment with Dr. Andersson for August 13, 2015 at 4:10 p.m. CST.
On August 18, 2015 OWCP proposed to suspend appellant’s compensation benefits
pursuant to section 8123(d) of FECA for failure to attend the August 13, 2015 examination with
Dr. Andersson. It advised appellant that she should provide a written explanation of her reasons,
with substantive corroborating evidence, within 14 days for failing to attend the scheduled
examination.
In a record of a telephone conversation dated August 21, 2015, appellant stated that she
never received a letter regarding her appointment with Dr. Andersson. She further explained that
she did not appreciate being referred to a physician, as she had already been approved for disability
retirement. An OWCP representative explained that OWCP needed to obtain examination
findings. Appellant reiterated that she did not think the examination was necessary.
By letter dated August 24, 2015, appellant reiterated that she never received notice of her
appointment with Dr. Andersson.
In a record of a telephone conversation dated September 1, 2015, appellant stated that she
would attend a second opinion examination if it was rescheduled. In another record of a telephone
conversation of even date, an OWCP representative explained that nonattendance would not
preclude appellant from electing Office of Personnel Management (OPM) retirement benefits.
By letter dated September 10, 2015, appellant stated that she would cooperate with a “socalled” second opinion examination “under duress.” She reiterated that she had been approved for
disability retirement, and that she wanted to obtain her payments from September 17, 2014 through
present. Appellant stated that she would cooperate to the best of her ability.
By letter dated May 2, 2016, OWCP rescheduled appellant’s second opinion examination.
It advised appellant that an examination had been scheduled with Dr. Robert E. Holladay, IV, a
2

Board-certified orthopedic surgeon, located in Texarkana, TX, for May 25, 2016 at 10:00 a.m.
CST. OWCP mailed the letter to appellant’s address of record in Little Rock, Arkansas.
On May 23, 2016 appellant elected to receive OPM retirement benefits instead of benefits
to which she may be entitled under FECA.
By letter dated May 27, 2016, a case coordinator notified OWCP that appellant had not
attended the examination with Dr. Holladay on May 25, 2016 at 10:00 a.m. CST.
On June 2, 2016 OWCP again proposed to suspend appellant’s compensation benefits
pursuant to section 8123(d) of FECA due to failure to attend the May 25, 2016 examination with
Dr. Holladay. It advised appellant that she should provide a written explanation of her reasons,
with substantive corroborating evidence within 14 days for failing to attend the scheduled
examination. She did not respond.
By decision dated June 20, 2016, OWCP finalized its proposed suspension, effective that
same date. It noted that it had directed appellant on May 2, 2016 to report for the examination
scheduled on May 25, 2016, but she did not attend the examination or show good cause for her
failure to attend the examination, as she failed to respond to the proposed suspension.
In a letter dated June 24, 2016, appellant stated that she had not received the letter regarding
her appointment with Dr. Holladay. She noted that she did not know about the examination until
she was called two days before the date of examination. Appellant stated that she did not
understand why she was being sent to another appointment, as she had retired. She accused OWCP
of harassment, and claimed that she had undergone mediation related to this case. Appellant noted
that she had not received the first letter and had no one to drive her to the appointment.
On July 9, 2016 appellant requested a telephonic hearing before an OWCP hearing
representative. The hearing was held on February 14, 2017. During the hearing, appellant testified
that she was having issues with mail delivery and that she never received the July 29, 2015 letter
for her appointment with Dr. Holladay. She stated that she did not receive a copy of the letter until
she called OWCP to find out why they were sending her to an out-of-state physician. The hearing
representative explained to appellant that OWCP does not enter into mediation with claimants, and
that OWCP referred to any additional medical opinions as “second opinions.” She explained to
appellant that one of the provisions for continuing to receive benefits under FECA was scheduling
medical appointments and attending these appointments. The hearing representative asked
appellant if she would be willing to attend an appointment if another second opinion examination
was scheduled. Appellant responded that she would attend such an appointment if it were within
the state, as she could not drive long distances by herself. The hearing representative noted that
transportation could be arranged if it was medically necessary and asked again if appellant would
attend an appointment if it were rescheduled, to which appellant replied, “Yeah, I hear you.” Later,
the hearing representative stated that appellant had indicated a willingness to attend another
appointment.
By decision dated March 20, 2017, the hearing representative affirmed OWCP’s decision
dated June 20, 2016. She noted that appellant had avoided two second opinion appointments, the
second of which appellant had previously agreed to attend only “under duress.” She further noted

3

that appellant’s testimony at the hearing was less than convincing as to her willingness to attend,
but that she ultimately indicated that she would do so. The hearing representative noted that the
case would be returned to the office for rescheduling of an appointment.
LEGAL PRECEDENT
Section 8123 of FECA authorizes OWCP to require an employee, who claims disability as
a result of federal employment, to undergo a physical examination as it deems necessary.2 The
determination of the need for an examination, the type of examination, the choice of locale, and
the choice of medical examiners are matters within the province and discretion of OWCP.3
OWCP’s regulations provide that a claimant must submit to an examination by a qualified
physician as often and at such times and places as OWCP considers reasonably necessary.4 Section
8123(d) of FECA and OWCP regulations provide that, if an employee refuses to submit to or
obstructs a directed medical examination, his or her right to compensation is suspended until the
refusal or obstruction ceases.5 OWCP’s procedures provide that, before OWCP may invoke these
provisions, the employee is to be provided a period of 14 days within which to present in writing
his or her reasons for the refusal or obstruction.6 If good cause for the refusal or obstruction is not
established, entitlement to compensation is suspended in accordance with section 8123(d) of
FECA.7
ANALYSIS
The Board finds that OWCP properly suspended appellant’s compensation for failure to
attend a medical examination on May 25, 2016.
By letter dated December 16, 2014, OWCP notified appellant that she was being referred
for a second opinion examination to determine the nature and extent of any residuals of her
accepted injuries. It informed her of her obligations to attend and cooperate. The notice clearly
explained that appellant’s compensation benefits would be suspended for failure to report to or for
obstruction of the examination. By letter dated May 2, 2016, OWCP advised her of the date and
time of her appointment with Dr. Holladay. It also provided appellant with Dr. Holladay’s address.
As noted, she did not appear for the appointment, nor did she attempt to reschedule the appointment
prior to the designated time. Appellant’s refusal to submit to the medical examination warrants

2

5 U.S.C. § 8123.

3

J.T., 59 ECAB 293 (2008); S.B., 58 ECAB 267 (2007); James C. Talbert, 42 ECAB 974 (1991).

4

20 C.F.R. § 10.320.

5

Supra note 2; 20 C.F.R. § 10.323; Dana D. Hudson, 57 ECAB 298 (2006).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.13(d) (September 2010).
7

Id.

4

suspension of entitlement to compensation unless she can establish good cause for her failure to
report at the scheduled time.8
The Board finds that appellant did not establish good cause for her failure to report to the
scheduled examination with Dr. Holladay. In a letter dated June 24, 2016, appellant claimed that
she had not received the letter regarding her appointment with Dr. Holladay. She noted that she
did not know about the examination until she was called two days before the date of examination.
As such, appellant admitted that she knew about the appointment two days before the date, yet did
not attempt to reschedule. Moreover, although appellant maintains that she did not receive the
appointment letter, it is presumed, in the absence of evidence to the contrary, that a notice mailed
to an individual in the ordinary course of business was received by that individual. This
presumption arises when it appears from the record that the notice was properly addressed and
duly mailed.9 The mailbox rule provides that proper and timely mailing of a document raises a
rebuttable presumption of receipt by the addressee. The Board has applied the mailbox rule when
it is established that the mailing was in the ordinary course of the sender’s business practices. It
serves as a tool for determining in the face of inconclusive evidence, whether or not receipt has
actually been accomplished. The mailbox rule is to facilitate the fact finder in determining whether
receipt of a document has occurred. However, as a rebuttable presumption, receipt will not be
assumed when there is evidence of nondelivery.10 In the present case, OWCP’s May 2, 2016 letter
was mailed to appellant’s address of record and there is no evidence of record that the mailing was
undeliverable. As such, the Board finds that the May 2, 2016 correspondence was received by
appellant.11
Appellant further argued that she was incapable of driving the approximately 148-mile
distance to attend the examination with Dr. Holladay. The Board finds that appellant’s objection
to driving this distance to attend the appointment was not a valid excuse to refuse to attend the
second opinion examination, as appellant did not submit any medical or factual evidence showing
that she was incapable of attending the appointment by any other mode of transportation, or that
she could not take breaks in her driving to the scheduled appointment.
The evidence of record is insufficient to establish that appellant had good cause for not
attending the scheduled medical examination. The Board, therefore, finds that OWCP properly
suspended her right to compensation benefits, effective June 20, 2016, pursuant to 5 U.S.C.
§ 8123(d).
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits
pursuant to 5 U.S.C. § 8123(d), effective June 20, 2016 for failure to attend a medical examination.

8

Supra note 7 at Chapter 2.810.13(e) (September 2010); 20 C.F.R. § 10.320.

9

Cresenciano Martinez, 51 ECAB 322 (2000).

10

M.U., Docket No. 09-0526 (issued September 14, 2009).

11

C.B., Docket No. 16-1562 (issued December 22, 2016).

5

ORDER
IT IS HEREBY ORDERED THAT the March 20, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 11, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.F., Appellant
and
PEACE CORPS, PEACE CORPS VOLUNTEER
SERVICE, Washington, DC, Employer
__________________________________________
Appearances:
Karen G. Forner, Esq., for the appellant
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 11-1567
Issued: January 25, 2012

Case Submitted on the Record

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

On June 21, 2011 appellant, through his attorney, filed a timely appeal from an April 22,
2011 decision of the Office of Workers’ Compensation Programs (OWCP) that denied his
disability claim and a May 18, 2011 decision that denied his request for reconsideration. The
Board docketed the appeal as No. 11-1567.1
The Board has duly reviewed the record and finds that the case is not in posture for
decision. By decision dated October 4, 2006, OWCP reduced appellant’s compensation to zero
based on his capacity to earn wages in the constructed position of forester. On September 10,
2009 it accepted the additional condition of dermatitis due to drugs taken internally.

1

Appellant, who was born on December 16, 1968, was a Peace Corps volunteer in Senegal, West Africa. In
February 1996 he was medically evacuated to Georgetown Hospital in Washington, DC. OWCP accepted that he
sustained bipolar disorder with mania and psychosis and anemia. Appellant was hospitalized on multiple occasions
from 1996 to 1999 and was placed on the periodic compensation rolls. In 2002 he earned a B.S. degree in forest
engineering from the University of Washington.

On February 15, 2011 appellant filed a claim for total disability compensation.2 By letter
dated March 17, 2011, OWCP informed him of the type evidence needed to modify the formal
wage-earning capacity determination. Appellant submitted treatment notes from his attending
Board-certified psychiatrist, Dr. Daniel A. Sherman, dated January 20 to April 1, 2011, who
described appellant’s condition. In a March 30, 2011 letter, Dr. Sherman noted that appellant
had been treated by him for bipolar disorder since 1998, and that after a stormy course, he was
able to achieve some stability, attended college, and began work for the State of Washington as a
natural resource engineer in early 2007 and worked there until January 26, 2011. He noted that
throughout the years appellant had always been on medication, and had to stop work due to a
gradual increase and worsening of symptoms of his psychiatric condition that led to an inability
to perform his work duties. He stated that appellant’s recovery would take many months and
maintained that his temporary total disability was an exacerbation of his long-standing illness.
By decision dated April 22, 2011, OWCP noted that a formal wage-earning capacity
decision was in place but adjudicated the claim as a recurrence, stating that the medical evidence
did not show that he sustained a spontaneous recurrence of disability due to the employmentrelated condition and that his claimed disability was due to his recent employment for the State
of Washington. On May 3, 2011 appellant, through his attorney, requested reconsideration and
submitted an April 22, 2011 treatment note in which Dr. Sherman described appellant’s
treatment and condition. In a nonmerit decision dated May 18, 2011, OWCP denied appellant’s
request for reconsideration on the grounds that appellant had not submitted new relevant
evidence or legal contentions.
As noted above, OWCP issued a formal decision on appellant’s wage-earning capacity on
October 4, 2006. It is well established that a claimant may establish that a modification of a
wage-earning capacity is warranted if there is a material change in the nature and extent of an
injury-related condition, or a showing that the original determination was, in fact, erroneous.3
Appellant’s submission of a claim for compensation beginning February 15, 2011 should thus be
regarded as a request for modification of the wage-earning capacity determination. The Board
has held that, when a wage-earning capacity determination has been issued and appellant submits
evidence with respect to disability for work, OWCP must evaluate the evidence to determine if
modification of wage-earning capacity is warranted.4 While the April 22, 2011 decision
acknowledged that a formal wage-earning capacity determination was in place, OWCP
adjudicated the claim for total disability beginning February 15, 2011 as a recurrence claim.
OWCP procedures cover the situation when a claimant has completely stopped working.5
The principle is equally applicable to a claim of increased disability which would prevent a
claimant from performing the position that was the basis of the wage-earning capacity
2

On the claim form appellant checked that he was applying for a schedule award. His attorney clarified that he
was claiming total disability compensation effective February 15, 2011.
3

P.C., 58 ECAB 405 (2007).

4

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.9(a) (December 1995).

2

determination.6 The October 6, 2006 wage-earning capacity decision was based on appellant’s
capacity to earn wages in a full-time position as forester, and Dr. Sherman advised on March 30,
2011 that appellant’s bipolar disorder, the accepted condition in this case, had worsened to the
degree that he was totally disabled.
The Board finds that OWCP should have adjudicated appellant’s claim for total disability
compensation as to whether he had established that the wage-earning capacity determination
should be modified.7 The Board will therefore remand the case to OWCP for proper
adjudication, to be followed by an appropriate merit decision to preserve appellant’s appeal
rights.
IT IS HEREBY ORDERED THAT the April 22, 2011 decision of the Office of
Workers’ Compensation Programs be set aside and the case remanded for further proceedings
consistent with this order of the Board.
Issued: January 25, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

6

D.G., Docket No. 10-1666 (issued May 12, 2011).

7

F.B., Docket No. 09-99 (issued July 21, 2010).

3


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF VETERANS AFFAIRS,
)
WILLIAM JENNINGS BRYAN DORN
)
MEDICAL CENTER, Columbia, SC, Employer
)
___________________________________________ )
J.E., Appellant

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

Docket No. 08-1610
Issued: January 15, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 19, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 24, 2008, which affirmed a November 28,
2007 decision denying her emotional condition claim. Pursuant to 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 in establishing that she sustained
an emotional condition in the performance of duty.
FACTUAL HISTORY
On September 17, 2007 appellant, then a 48-year-old medical supply technician, filed an
occupational disease claim alleging that she developed post-traumatic stress and anxiety due to
increased stress at work. She alleged that, on September 14, 2006, Tom Viselli made a fist with
his hand and was yelling “bad words” loudly. Appellant stopped work on July 10, 2007. On

October 2, 2007 the Office asked appellant to submit evidence, including a detailed description
of the employment factors or incidents that she believed contributed to her claimed illness. It
also requested that the employing establishment address appellant’s allegations.
Appellant submitted a July 26, 2007 statement and alleged that Mr. Viselli, lead
technician, had harassed and verbally abused her and other coworkers over a six-year period.
She stated that he would often yell and demean others on a daily basis and was difficult to work
alongside. On September 14, 2006 Mr. Viselli attacked her. Appellant stated that Mr. Viselli
became enraged and invaded her personal space such that she became terrorized that he was
planning to physically harm her. She alleged that after the claimed incidents she was forced to
continue working with Mr. Viselli. Appellant noted that Mr. Viselli was not disciplined by her
supervisors, despite numerous requests.
Appellant submitted a July 17, 2007 report from Dr. Ayanna Swinton-Jamison, a
Board-certified psychiatrist, who treated appellant for stress associated with ongoing conflicts at
work and diagnosed post-traumatic stress disorder and anxiety.
On July 6, 2007 Ruth Mustard, associate director for patient care, noted that effective
July 16, 2007 appellant’s detail would end and she would resume her regular duties in the
sterilization, processing and decontamination (“SPD”) area. In an October 26, 2007 statement,
Ms. Mustard noted that on September 14, 2006 appellant was questioned by Jon Skelton, her
supervisor, regarding the manner in which she collected a variety of medical devices and put
them together in a plastic trash bin. Mr. Skelton advised appellant that she was not following the
proper procedures when she dumped the instruments together in the trash container.
Ms. Mustard stated that appellant became upset and alleged that Mr. Viselli was hostile and
yelled at her about the manner in which she handled the dirty medical items. After this incident,
appellant and Mr. Viselli were not assigned to work together. Appellant was rotated to the
second shift and, after her tour finished, Mr. Viselli was assigned to the second floor scope room
outside of the operating room. Ms. Mustard further noted that appellant was detailed out of this
department in January 2007 to the gastrointestinal (GI) clinic pursuant to her request because she
was afraid that she would make a mistake. She noted that appellant had previously ruined a
$10,000.00 camera by processing it incorrectly. In May 2007, appellant was again detailed to
the GI clinic. Her schedule prior to January 2007 was as a medical supply technician in the SPD
department and rotated weekends, worked evenings and covered various assignments similarly to
all employees assigned to that area. Ms. Mustard stated that an investigation was conducted
regarding the September 14, 2006 incident, which found that Mr. Viselli and other employees
did not create a hostile work environment. She submitted a copy of appellant’s job application, a
job description, a leave record for 2006 to 2007 and employing establishment medical records
from 2001 to 2007.
On an October 26, 2007 Evelyn Jones, a human resource specialist, noted that appellant’s
statement failed to clarify that on September 14, 2006 she was questioned by Mr. Skelton
regarding her failure to follow proper procedures in loading bins of equipment and instruments
for decontamination. Appellant’s failure to follow proper procedures could cause an adverse
impact on other employees including the risk of a work injury due to an instrument stick.
Ms. Jones indicated that the agency properly addressed the incidents of September 14, 2006 by
conducting an investigation to determine if appellant followed the proper procedures in loading

2

equipment for decontamination and also if a hostile work environment existed at SPD. The
investigation concluded that appellant did not follow the proper procedures in processing used
equipment and there was not a hostile environment in SPD. Ms. Jones indicated that appellant
did not continue to work with Mr. Viselli after the September 14, 2006 incident, due to shift
rotations and assignments to other locations. Additionally, appellant was detailed to the GU
clinic until May 2007 and again detailed to the “GU” clinic in May 2007.
In a November 28, 2007 decision, the Office denied appellant’s claim finding that the
claimed emotional condition did not occur in the performance of duty.
On December 5, 2007 appellant requested and oral hearing which was held by telephone
on February 25, 2008. She submitted a September 14, 2006 union contact report, which
reiterated her allegations of stress due to a hostile work environment. Appellant submitted
e-mail to Ms. Mustard on September 23, 2006 requesting to be transferred to another location
due to work stress. She indicated that Mr. Viselli was the backbone of the department and
should not be relocated. In a November 26, 2007 report, Dr. Swinton-Johnson recommended
that appellant return to work part time but not in SPD. Appellant submitted a January 30, 2008
report from Lisa Williams, a counselor, who treated her for stress due to work- and home-related
conflicts.
The employing establishment submitted excerpts from an administration board
investigation hearing held on January 31, 2007. In a February 26, 2007 memorandum, the
administrative board of investigation determined that appellant failed to follow proper
procedures on September 14, 2006 by collecting the contaminated supplies and equipment and
placing them in a trash can. The investigation board noted that this collection method posed a
potential risk of injury to other employees and subjected medical equipment and instruments to
potential damage. Additionally, the investigation board determined that the supervisor or other
SPD employees did not create a hostile work environment. The investigation board noted that
Mr. Viselli was loud and aggressive but not exclusively to appellant and the evidence found that
there was routine yelling among the SPD employees. There was no evidence that the routine
yelling among the SPD employees was discriminatory, physically threatening or unreasonably
interfered with employee work performance and did not constitute sexual harassment or a hostile
work environment as set forth in employing establishment policy. The investigation further
determined that proper technical procedures were not followed in finding that Mr. Viselli had
engaged in disorderly conduct, such that the violation was found in error.
The employing establishment submitted a statement from Ms. Jones who noted
comments to the hearing transcript. In a December 5, 2006 statement, Mr. Viselli noted that
appellant approached him and requested the files documenting sterilization for the steam
sterilizer on October 19, 2006. He indicated that he complied with appellant’s request and she
expressed her belief that management was trying to fire her for failing to sterilize an arthroscopic
scope.
By decision dated April 24, 2008, the hearing representative affirmed the November 28,
2007 decision, finding that appellant had not established any compensable employment factors.

3

LEGAL PRECEDENT
To establish her claim that she sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that she has an
emotional or psychiatric disorder; (2) factual evidence identifying employment factors or
incidents alleged to have caused or contributed to her condition; and (3) rationalized medical
opinion evidence establishing that the identified compensable employment factors are causally
related to her emotional condition.1
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,2 the Board
explained that there are distinctions to the type of employment situations giving rise to a
compensable emotional condition arising under the Federal Employees’ Compensation Act.3
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act.4 When an employee
experiences emotional stress in carrying out her employment duties and the medical evidence
establishes that the disability resulted from her emotional reaction to such situation, the disability
is generally regarded as due to an injury arising out of an in the course of employment. This is
true when the employee’s disability results from her emotional reaction to a special assignment
or other requirement imposed by the employing establishment or by the nature of her work.5
There are situations where an injury or an illness has some connection with the employment but
nevertheless does not come within the concept or coverage under the Act. Where the disability
results from an employee’s emotional reaction to her regular or specially assigned duties or to a
requirement imposed by the employment, the disability comes within the coverage of the Act.
On the other hand, the disability is not covered where it results from such factors as an
employee’s fear of a reduction-in-force or her frustration from not being permitted to work in a
particular environment or to hold a particular position.6
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.7 If a claimant does implicate a factor of
1

Donna Faye Cardwell, 41 ECAB 730 (1990).

2

28 ECAB 125 (1976).

3

5 U.S.C. §§ 8101-8193.

4

See Anthony A. Zarcone, 44 ECAB 751, 754-55 (1993).

5

Lillian Cutler, supra note 2.

6

See Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB 566 (1991); Lillian Cutler, supra
note 2.
7

See Norma L. Blank, 43 ECAB 384, 389-90 (1992).

4

employment, the Office should then determine whether the evidence of record substantiates that
factor. When the matter asserted is a compensable factor of employment and the evidence of
record establishes the truth of the matter asserted, the Office must base its decision on an
analysis of the medical evidence.8
ANALYSIS
Appellant alleged that she was harassed by Mr. Viselli and that he verbally abused her
and other coworkers over a six-year period. She indicated that, on September 14, 2006,
Mr. Viselli made a fist with his hand and yelled “bad words” loudly. To the extent that incidents
alleged as constituting harassment by a supervisor are established as occurring and arising from
appellant’s performance of her regular duties, these could constitute employment factors.9
However, for harassment to give rise to a compensable disability under the Act, there must be
evidence that harassment did in fact occur. Mere perceptions of harassment are not compensable
under the Act.10
The factual evidence fails to support appellant’s claim of harassment. In a statement
dated October 26, 2007, Ms. Mustard noted that an investigation had determined that appellant
was not harassed or verbally abused by either Mr. Skelton or Mr. Viselli. Rather, on
September 14, 2006 appellant was questioned by her supervisor about the manner in which she
collected a variety of medical devices and put them in a plastic trash bin. She was advised by her
supervisor that she was not following protocol when she dumped the medical items together in a
trash container. Ms. Mustard indicated that appellant became upset and alleged that Mr. Viselli
was hostile toward her and yelled at her about procedures in handling dirty medical items. On
October 26, 2007 Ms. Jones, a human resource specialist, also stated that appellant was not
harassed or verbally abused on September 14, 2006 but had been questioned by Mr. Skelton
about her failure to follow proper procedures in loading bins regarding decontamination of
equipment. A February 26, 2007 memorandum of the administrative board of investigation
confirmed that appellant failed to follow proper procedures on September 14, 2006 in collecting
the contaminated supplies and that her actions posed a potential health risk to other employees
and subjected medical equipment and instruments to potential damage. The investigation board
determined that there was no hostile work environment. Although the Board noted that
Mr. Viselli was loud and aggressive, there was no finding to substantiate appellant’s allegations
concerning Mr. Viselli. There was no finding that routine yelling was discriminatory, physically
threatening or unreasonably interfered with work performance.
In this case, appellant has not submitted sufficient evidence to establish harassment by
her supervisor or Mr. Viselli.11 Although she alleged that her supervisor discriminated and
harassed her, she provided no corroborating evidence or witness statements to establish her
8

Id.

9

See David W. Shirey, 42 ECAB 783, 795-96 (1991); Kathleen D. Walker, 42 ECAB 603, 608 (1991).

10

Jack Hopkins, Jr., 42 ECAB 818, 827 (1991).

11

See Joel Parker, Sr., 43 ECAB 220, 225 (1991) (finding that a claimant must substantiate allegations of
harassment or discrimination with probative and reliable evidence).

5

allegations.12 Additionally, the employing establishment refuted appellant’s allegations. The
Board notes that there is no evidence substantiating her charges. Thus, appellant has not
established a compensable employment factor under the Act with respect to the claimed
harassment or discrimination.
To the extent that appellant alleged verbal abuse, physical threats and fear of physical
attacks by Mr. Viselli, the Board has recognized the compensability of physical threats or verbal
abuse in certain circumstances. This does not imply, however, that every statement uttered in the
workplace will give rise to coverage under the Act.13 As noted, the evidence does not establish
that Mr. Viselli threatened appellant or acted unreasonably. The evidence suggests that he was
loud and aggressive and that there was routine yelling among SPD employees. There is no
evidence to establish that the routine yelling between SPD employees was discriminatory or
interfered with work performance. Appellant provided no evidence, such as witness statements,
to establish her allegations.14 The employing establishment denied that Mr. Viselli threatened,
harassed or spoke to appellant in a hostile manner and there is no corroborating evidence to
support her assertion. Appellant has not otherwise shown how supervisory comments or actions
rose to the level of verbal abuse or otherwise fell within coverage of the Act.15
Other allegations by appellant relate to administrative or personnel actions. In
Thomas D. McEwen,16 the Board held that an employee’s emotional reaction to administrative
actions or personnel matters taken by the employing establishment is not covered under the Act
as such matters pertain to procedures and requirements of the employer and do not bear a direct
relation to the work required of the employee. The Board noted, however, that coverage under
the Act would attach if the factual circumstances surrounding the administrative or personnel
action established error or abuse by the employing establishment superiors in dealing with the
claimant. Absent evidence of such error or abuse, the resulting emotional condition must be
considered self-generated and not employment generated. In determining whether the employing
establishment erred or acted abusively, the Board has examined whether the employing
establishment acted reasonably.17
Appellant alleged that after the September 14, 2006 incident she was required to continue
working with Mr. Viselli which caused her anxiety. However, the Board finds that this relates to
administrative or personnel matters, unrelated to appellant’s regular or specially assigned work

12

See William P. George, 43 ECAB 1159, 1167 (1992) (claimed employment incidents not established where
appellant did not submit evidence substantiating that such incidents actually occurred).
13

Charles D. Edwards, 55 ECAB 258 (2004).

14

See William P. George, supra note 12.

15

See Judy L. Kahn, 53 ECAB 321 (2002) (the fact that a supervisor was angry and raised her voice does not, by
itself, support a finding of verbal abuse).
16

See Thomas D. McEuen, supra note 5.

17

See Richard J. Dube, 42 ECAB 916, 920 (1991).

6

duties and do not fall within the coverage of the Act.18 The Board has held that denials by an
employing establishment of a request for a different job, promotion or transfer are not
compensable factors of employment as they do not involve the employee’s ability to perform his
or her regular or specially-assigned work duties but rather constitute his or her desire to work in
a different position.19 The employing establishment submitted statements from Ms. Mustard and
Ms. Jones who indicated that after the September 2006 incident appellant and Mr. Viselli were
not assigned to work together. Appellant was rotated to the second shift and Mr. Viselli was
assigned to the following shift on the second floor scope room outside of the operating room.
Ms. Mustard further noted that appellant was detailed out of the SPD department pursuant to her
request and from January to May 2007 she worked in the GI clinic and from May 2007 to
January 2008 she was again detailed to the GI clinic. Appellant indicated that she wanted a
transfer because she was afraid she would make a mistake, as she had previously ruined a
$10,000.00 camera by processing it incorrectly. She has presented no evidence to support that
the employing establishment erred or acted abusively with regard to her work assignments.
Thus, appellant has not established administrative error or abuse in the performance of these
actions and therefore they are not compensable under the Act.
Appellant alleged that Mr. Viselli’s behavior was never corrected by her supervisors
despite numerous requests. The Board recognizes that a supervisor or manager must be allowed
to perform his or her duties and that, in performing such duties, employees will at times dislike
actions taken.20 Appellant presented no evidence to support that her supervisors acted
unreasonably in investigating the matter. Rather, the evidence suggests that the employing
establishment properly addressed the incidents of September 14, 2006 by conducting an
investigation to determine if appellant followed the proper procedures in loading equipment for
decontamination and also if a hostile work environment existed at SPD. The investigation
concluded that appellant did not follow the proper procedures in processing equipment and there
was no hostile work environment. Consequently, appellant has not established her claim for an
emotional condition.21
CONCLUSION
The Board finds that the evidence fails to establish that appellant sustained an emotional
condition in the performance of duty.

18

See Janet I. Jones, 47 ECAB 345, 347 (1996), Jimmy Gilbreath, 44 ECAB 555, 558 (1993); Apple Gate,
41 ECAB 581, 588 (1990); Joseph C. DeDonato, 39 ECAB 1260, 1266-67 (1988).
19

Donald W. Bottles, 40 ECAB 349, 353 (1988).

20

See Michael A. Deas, 53 ECAB 208 (2001).

21

As appellant has failed to establish a compensable employment factor, the Board need not address the medical
evidence of record; see Margaret S. Krzycki, 43 ECAB 496 (1992).

7

ORDER
IT IS HEREBY ORDERED THAT the April 24, 2008 and November 28, 2007
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: January 15, 2009
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.W., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
OFFICE OF THE GENERAL COUNSEL,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-1846
Issued: April 5, 2010

Case Submitted on the Record

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

JURISDICTION
On July 13, 2009 appellant, through her attorney, filed a timely appeal from November 3,
2008 and May 22, 2009 merit decisions of the Office of Workers’ Compensation Programs
denying her claim for disability compensation. Pursuant to 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 has established that she was disabled from December 1,
2007 to July 31, 2008 causally related to her accepted employment injury.
FACTUAL HISTORY
On August 30, 2007 appellant, then a 34-year-old legal assistant, filed a claim for injuries
sustained on August 17, 2007 when she fell from a stepping stool. She stopped work on
August 17, 2007. The Office accepted the claim for a right shoulder sprain at the rotator cuff and
an upper arm sprain. Appellant received continuation of pay.

On October 29, 2007 appellant filed a claim for compensation from October 15 to
November 8, 2007. The Office paid her compensation for wage loss from October 15 to
November 30, 2007.
Appellant resigned from the employing establishment effective November 5, 2007, citing
as the reason her desire to relocate.1
On January 16, 2008 Dr. Christopher G. Mazoue, a Board-certified orthopedic surgeon,
noted that appellant reported that her back and right shoulder pain was better and that she had no
further numbness in the lateral aspect of the right arm. He diagnosed “[m]uch improved neck
pain, back pain, right upper extremity pain and parethesias.
In a progress report dated April 18, 2008, Dr. Mazoue described appellant’s complaints
of some low back pain and a burning pain in her right shoulder. He listed findings on
examination and diagnosed chronic low back pain and right shoulder pain. Dr. Mazoue opined
that it was “difficulty to say what exactly is causing [appellant’s] symptoms.” In an
accompanying excuse slip, he found that she was disabled from work beginning January 1, 2008
until a date to be determined.
On June 18, 2008 Dr. Mazoue diagnosed chronic right shoulder pain with impingement
and chronic low back pain. He noted that appellant’s condition had improved following
corticosteroid injections and physical therapy. In a disability slip of the same date, Dr. Mazoue
found that she should remain off work pending the next evaluation.
On July 9, 2008 Dr. Mazoue discussed appellant’s complaints of increased right shoulder
pain. He diagnosed chronic right shoulder pain with impingement syndrome, chronic low back
pain and abnormal neurological symptoms. Dr. Mazoue noted that her symptoms suggested a
possible problem “more central within the brain or cervical spine.”
On August 14, 2008 appellant filed Forms CA-7 requesting compensation for wage loss
from December 1, 2007 to July 31, 2008. By letter dated August 19, 2008, the Office requested
that she submit a comprehensive medical report from her attending physician addressing whether
she had any disability due to her accepted work injury.
By decision dated November 3, 2008, the Office denied appellant’s claim for
compensation after finding that the medical evidence was insufficient to establish that she was
disabled from December 1, 2007 to July 31, 2008 causally related to her accepted work injury.
In a report dated October 29, 2008, received by the Office on November 16, 2008,
Dr. Mazoue diagnosed chronic right shoulder pain with impingement syndrome, chronic low
back pain and a neurogenic pain of the right upper extremity with mild carpal tunnel syndrome
on electrodiagnostic studies. He recommended that she see a neurologist and stated, “I am a
little bit confused with regards to her diagnosis.”

1

On October 31, 2007 appellant informed the Office that she was resigning from the employing establishment in
order to relocate. She requested information about obtaining medical treatment and wage loss.

2

On December 3, 2008 appellant, through her attorney, requested a telephone hearing. At
the telephone hearing held on March 18, 2009 she described her work injury and treatment
received. Appellant stopped work in August 2007 and relocated. She related that she resigned
voluntarily in order to avoid termination for cause.
In an April 14, 2009 form report, Dr. Mazoue diagnosed right shoulder pain and low back
pain. He noted objective findings of limited range of motion of the right shoulder. Dr. Mazoue
asserted that appellant was disabled from October 2007 to October 2008. He provided the
history of injury as a fall on August 17, 2007 and indicated that the history of injury and the
diagnosis were “related.”
By decision dated May 22, 2009, the hearing representative affirmed the November 3,
2008 decision. She found that the medical evidence was insufficient to establish that appellant
was disabled during the period in question due to her accepted employment injury.
LEGAL PRECEDENT
The term disability as used in the Federal Employees’ Compensation Act2 means the
incapacity because of an employment injury to earn the wages that the employee was receiving
at the time of injury.3 Whether a particular injury caused an employee disability for employment
is a medical issue which must be resolved by competent medical evidence.4 When the medical
evidence establishes that the residuals of an employment injury are such that, from a medical
standpoint, they prevent the employee from continuing in the employment held when injured, the
employee is entitled to compensation for any loss of wage-earning capacity resulting from such
incapacity.5 The Board will not require the Office to pay compensation for disability in the
absence of any medical evidence directly addressing the specific dates of disability for which
compensation is claimed. To do so would essentially allow employee’s to self-certify their
disability and entitlement to compensation.6
ANALYSIS
The Office accepted that appellant sustained a sprain of the right shoulder and upper arm
at the rotator cuff due to an August 17, 2007 employment injury. It paid her compensation for
total disability from October 15 to November 30, 2007. Effective November 5, 2007 appellant
resigned from the employing establishment and provided as her reason that she desired to
relocate. On August 14, 2008 she filed claims for compensation for wage loss from December 1,
2007 to July 31, 2008.

2

5 U.S.C. §§ 8101-8193; 20 C.F.R. § 10.5(f).

3

Paul E. Thams, 56 ECAB 503 (2005).

4

Id.

5

Id.

6

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

3

In a report dated January 16, 2008, Dr. Mazoue discussed appellant’s reduced symptoms
of back and right shoulder pain. He diagnosed improved back and neck pain and improved pain
and parethesias of the right upper extremity. As Dr. Mazoue did not address the cause of
appellant’s condition or whether she was disabled from employment, his report is of little
probative value.7
On April 18, 2008 Dr. Mazoue diagnosed chronic low back and right shoulder pain. He
listed findings on examination and asserted that he was not sure what was causing appellant’s
symptoms. In a disability certificate of the same date, Dr. Mazoue found that she was disabled
from work beginning January 1, 2008. As he opined that he was unsure of the cause of
appellant’s condition, his report is speculative in nature and thus of diminished probative value.8
Further, Dr. Mazoue did not provide a history of the August 17, 2007 work injury or attribute
any condition or disability to the accepted employment injury. Without a firm diagnosis
supported by medical rationale, his opinion is of little probative value.9
On June 18, 2008 Dr. Mazoue diagnosed chronic low back and right shoulder pain with
impingement. He found that she should remain off work until the next appointment. As
Dr. Mazoue did not attribute any condition or period of disability to appellant’s work injury, his
opinion is of diminished probative value.10
In a report dated July 9, 2008, Dr. Mazoue noted that appellant complained of increased
right shoulder pain. He found that she had abnormal neurological symptoms and that her
complaints might be the result of a brain or cervical spine condition. On October 29, 2008
Dr. Mazoue diagnosed right shoulder pain and impingement syndrome, chronic low back pain
and neurogenic right upper extremity pain. He related that he was “a little bit confused” about
her diagnosis. As Dr. Mazoue’s opinion is speculative in nature and fails to address the relevant
issue of whether appellant was disabled due to her accepted work injury on or after December 1,
2007, his reports are of little probative value.11
In a form report dated April 14, 2009, Dr. Mazoue listed the history of injury as a fall on
August 17, 2007. He diagnosed right shoulder and low back pain and indicated that the history
of injury and diagnoses were “related.” Dr. Mazoue found that appellant was disabled from
October 2007 to October 2008. He did not, however, explain how or why her work injury
resulted in disability from employment for one year. The issue of whether a claimant’s disability
is related to an accepted condition is a medical question which must be established by a
7

See A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer
any opinion regarding the cause of an employee’s condition is of little probative value on the issue of causal
relationship); Carol A. Lyles, 57 ECAB 265 (2005) (whether a particular injury caused an employee disability from
employment is a medical issue which must be resolved by competent medical evidence).
8

D.E., 58 ECAB 448 (2007); Cecelia M. Corley, 56 ECAB 662 (2005)

9

See Samuel Senkow, 50 ECAB 370 (1999) (finding that, because a physician’s opinion of Legionnaires disease
was not definite and was unsupported by medical rationale, it was insufficient to establish causal relationship).
10

See supra note 7.

11

See L.R. (E.R.), 58 ECAB 369 (2007); A.D., 58 ECAB 149 (2006).

4

physician who, on the basis of a complete and accurate factual and medical history, concludes
that the disability is causally related to employment factors and supports that conclusion with
sound medical reasoning.12 Consequently, Dr. Mazoue’s report is of diminished probative value.
Appellant has not submitted rationalized medical evidence showing that she was disabled
from December 1, 2007 to July 31, 2008 due to her accepted employment injury. Consequently,
the Office properly denied her claim for compensation.
CONCLUSION
The Board finds that appellant has not established that she was disabled from
December 1, 2007 to July 31, 2008 causally related to her accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 22, 2009 and November 3, 2008 are affirmed.
Issued: April 5, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12

Sandra D. Pruitt, 57 ECAB 126 (2005).

5


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

)
)
)
)
)
)
)
)

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

Docket No. 10-1761
Issued: May 9, 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 June 22, 2010 appellant filed a timely appeal from a May 24, 2010 merit decision of
the Office of Workers’ Compensation Programs regarding her schedule award claim. Pursuant
to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has permanent impairment of the right arm greater than
that for which she has previously received schedule awards.
FACTUAL HISTORY
On July 17, 1978 appellant, then a 30-year-old mail clerk, filed a traumatic injury claim
for right arm and shoulder conditions sustained that day as a result of handling mail containers.
The Office accepted the claim for adhesive capsulitis of the right shoulder and sprains of the
1

5 U.S.C. § 8101 et seq.

right shoulder, upper arm and rotator cuff and paid all appropriate benefits. On May 12, 1997
appellant underwent a right open subacromial decompression arthroplasty with
acromioclavicular (AC) joint resection arthroplasty and full-thickness rotator cuff repair. She
subsequently retired.
Appellant received a schedule award for 23 percent permanent impairment of the right
arm on April 26, 1984. The record also indicates that she received a schedule award for 24
percent permanent impairment of the right arm on or about October 13, 2000.2 By decision
dated December 17, 2008, the Office awarded appellant an additional four percent permanent
impairment of the right upper extremity.3 In an August 5, 2009 decision, an Office hearing
representative affirmed the December 17, 2008 decision.
On December 14, 2009 appellant, through her attorney, requested an increased schedule
award. In a November 27, 2009 report, Dr. William N. Grant, a Board-certified internist, noted
the history of injury, presented his examination findings and diagnosed adhesive capsulitis of the
right shoulder and sprain/strain of the right shoulder. He noted that clinical studies were not
available. Dr. Grant indicated that appellant reached maximum medical improvement and
opined, under the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment, (hereinafter A.M.A., Guides), that she had 43 percent right upper
extremity impairment. Under Table 15-5, page 405, he stated that she was “CDX 3.”4 Under
Table 15-7, page 406, Dr. Grant found a grade 4 modifier for functional history adjustment
(GMFX) due to a QuickDash score of 85 and pain symptoms at rest and unable to perform selfcare. Under Table 15-8, page 408, he found a grade 3 modifier for physical examination
(GMPE). Dr. Grant found the net adjustment of (GMFH-CDX) + (GMPE-CDX) or (4-3) + (3-3)
equaled 1. Thus, he opined that appellant had 43 percent impairment of the right arm “[c]lass C,
grade D upper extremity impairment.”
On January 4, 2010 an Office medical adviser reviewed the record and noted appellant’s
previous schedule awards under the fifth edition of the A.M.A., Guides based on motion loss and
weakness in the rotator cuff musculature. He noted that Dr. Grant recommended 43 percent right
arm impairment based on class 3 diagnosis of a complicated, unstable or infected total shoulder
replacement (shoulder arthroplasty). The Office medical adviser indicated, however, that
appellant did not have a shoulder replacement, but had a rotator cuff repair and AC joint
resection in 1997. Consequently, he found that Dr. Grant’s award recommendation was without
merit. The Office medical adviser found that appellant reached maximum medical improvement
on May 12, 1998 and noted that she had continued pain, weakness and stiffness in the right
shoulder. Under Table 15-5, page 403 of the A.M.A., Guides, the Office medical adviser found
the maximum one could get for a bad result following a rotator cuff tear based on the diagnosis
2

The actual schedule award decision is not in the record but Office schedule award payment record reflects that
on October 13, 2000, the Office issued a $39,291.11 check for a schedule award covering the period January 20,
1998 to June 28, 1999. Accompanying documents reflect that this was payment for 24 percent impairment of the
right arm. Upon return of the case record, the Office shall supplement the record with a copy of the schedule award
decision, if available, or other available documents pertaining to this schedule award.
3

Thus, the record indicates that appellant’s schedule awards for impairment of the right arm total 51 percent.

4

Dr. Grant did not specifically identify the diagnosis he used in Table 15-5.

2

was seven percent. Thus, he opined there was no objective evidence to change the previous
award of 28 percent permanent impairment.
By decision dated January 13, 2010, the Office denied appellant’s claim for an increased
schedule award based on the recommendation from its Office medical adviser.
On January 21, 2010 appellant’s attorney requested a telephonic hearing which was held
April 6, 2010. At the hearing, counsel contended that there was error of fact and law with
regards to Dr. Grant’s report. He argued that Dr. Grant clearly indicated that the diagnosis was
adhesive capsulitis and sprain/strain of the right shoulder. Counsel stated that Dr. Grant did not
base his impairment rating on a total replacement of the shoulder and thus there was no merit to
the Office medical adviser’s finding that he had based his impairment finding on a total
replacement of the shoulder. The hearing representative noted that Dr. Grant was not clear
regarding the diagnosis class that he used and held the record open for 30 days so Dr. Grant
could provide clarification. No new evidence was received.
By decision dated May 24, 2010, the Office hearing representative affirmed the denial of
appellant’s claim for an increased schedule award.
LEGAL PRECEDENT
The schedule award provision of the Act and its implementing regulations5 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. The Act, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of the Office.6 For
consistent results and to ensure equal justice under the law to all claimants, good administrative
practice necessitates the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
The sixth edition requires identifying the impairment class for the CDX, which is then
adjusted by GMFH, GMPE and GMCS.9 The net adjustment formula is (GMFH-CDX) +
(GMPE-CDX) + (GMCS-CDX).10
5

20 C.F.R. § 10.404.

6

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

7

Ronald R. Kraynak, 53 ECAB 130 (2001).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
9

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

10

Id. at 521.

3

ANALYSIS
The Office accepted that on July 17, 1978 appellant sustained adhesive capsulitis of the
right shoulder and sprains of the right shoulder, upper arm and rotator cuff. In 1997 appellant
underwent a right subacromial decompression arthroplasty and full-thickness rotator cuff repair.
The record indicates that the Office granted her schedule awards for a total of 51 percent
permanent impairment of the right upper extremity.
On December 14, 2009 appellant requested an increase award. She submitted a
November 27, 2009 impairment determination from Dr. Grant, who opined that appellant had 43
percent right arm impairment under the sixth edition of the AM.A., Guides. Before the A.M.A.,
Guides can be utilized, a description of the claimant’s impairment must be obtained from a
physician. The description must be in sufficient detail so that the claims examiner and others
reviewing the file will be able to clearly visualize the impairment with its resulting restrictions
and limitations.11 Further, evaluations under the sixth edition are primarily diagnosis based and
require identifying the impairment class for the diagnosed condition and then adjusting by grade
modifiers based on functional history, physical examination and clinical studies.12 Dr. Grant’s
report fails to adequately identify the diagnosed condition for which the impairment rating was
based. He diagnosed conditions of adhesive capsulitis and sprain/strain of the right shoulder. A
sprain or strain is a class 1 diagnoses under the shoulder regional grid of Table 15-5 of the
A.M.A., Guides,13 and Dr. Grant did not clearly explain an impairment class in the A.M.A.,
Guides consistent with adhesive capsulitis. While Dr. Grant indicated that his impairment rating
was based on a class 3 impairment class, he did not clearly identify a class 3 diagnosed condition
for which he rated appellant despite the hearing representative’s allowing appellant an
opportunity to obtain clarification from Dr. Grant. Thus, his evaluation is of little probative
value and is insufficient to support an increased impairment of the right upper extremity. The
record was held open for Dr. Grant to clarify his opinions; however, nothing was forthcoming.
An Office medical adviser reviewed Dr. Grant’s report and noted the maximum
percentage for a rotator cuff full-thickness tear, a class 1 diagnosis, was seven percent. He noted
no other basis on which appellant could be rated for higher impairment than that which was
previously found. The Board finds that there is no medical evidence to support any greater
impairment than that for which appellant has previously received schedule awards. It is
appellant’s burden to submit medical evidence supporting the degree of permanent impairment.14
Appellant failed to submit such an impairment evaluation and thus failed to meet her burden of
proof.
Appellant argues on appeal that the Office’s decision is contrary to fact and law.
However, for the reasons noted above, she failed to meet her burden of proof to establish that she
was entitled to a greater award than that already received.
11

D.N., 59 ECAB 576 (2008); Vanessa Young, 55 ECAB 575 (2004).

12

Supra note 9.

13

See id. at 401.

14

See D.H., 58 ECAB 358 (2007); Annette M. Dent, 44 ECAB 403 (1993).

4

CONCLUSION
The Board finds that appellant has not established any greater impairment of her right
arm than that for which she previously received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the May 24, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 9, 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

5