United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boston, MA, Employer
__________________________________________

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Appearances:
Daniel B. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1511
Issued: April 25, 2019

Case Submitted on the Record

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

JURISDICTION
On August 2, 2018 appellant, through counsel, filed for review of a February 6, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the Federal
Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

Appellant filed a timely request for oral argument in this case. By order dated December 6, 2018, the Board
denied appellant’s request for oral argument as it would further delay issuance of a Board decision and not serve a
useful purpose. Order Denying Request for Oral Argument, Docket No. 18-1511 (issued December 6, 2018).
3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish bilateral hip
osteoarthritis causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On December 20, 2016 appellant, then a 56-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed bilateral hip osteoarthritis as a result of his
repetitive employment duties. He first became aware of his condition and of its relationship to his
federal employment on September 13, 2016.
In an accompanying narrative statement, appellant described his employment duties for the
employing establishment over the course of 22 years. He reported that he began working as a
letter sorter in 1994 and then worked as a flat sorter beginning in 1997. Appellant explained that
in 2000 he became a letter carrier, which since that time has remained his full-time position. He
described his duties, which entailed sorting and delivering mail and packages and required
repetitive bending, squatting, walking, stooping, twisting, pivoting, loading, unloading, lifting,
standing, pushing, pulling, and carrying. Appellant reported spending approximately two to three
hours daily casing mail, and seven hours delivering mail. He indicated that his mail routes included
many hills, sidewalks, and stairs. Appellant stated that on his various routes he would have 400
to 600 deliveries, and he would walk six to eight miles per day while carrying his satchel and
parcels, and climb and descend an average of at least 1,000 stairs per day. He noted a prior right
hip replacement in 2013.
In an April 29, 2016 medical note, Dr. Justin W. Kung, a Board-certified diagnostic
radiologist, reported that a March 24, 2016 left hip radiograph demonstrated overall findings
consistent with moderate degenerative changes of the left femoroacetabular joint.
In a December 13, 2016 report, Dr. Byron V. Hartunian, a Board-certified orthopedic
surgeon, noted examining appellant on September 13, 2016 for bilateral hip arthritis. He discussed
appellant’s medical history, reviewed diagnostic testing, and provided findings on physical
examination. Dr. Hartunian described appellant’s employment duties for the employing
establishment since 1994 and noted no major injuries to the lower extremities during the course of
his work as a letter carrier. A January 7, 2013 magnetic resonance imaging (MRI) scan of the right
hip demonstrated advanced bilateral degenerative changes involving the hips, more noticeable on
the right, and on April 2, 2013 appellant underwent a right total hip replacement with noncemented
bipolar prosthesis. Dr. Hartunian reported that postoperatively, appellant was released to
modified-duty work on July 2, 2013 and full-duty work approximately one month later. He noted
that there was no specific trauma to his left hip and, while performing his employment duties in
2014 and 2015, appellant experienced increasing left hip pain, stiffness, and restricted mobility.
X-rays of the left hip were taken on June 18, 2015, which revealed moderate-to-severe narrowing
of the femoral acetabular space with osteophytes. Appellant elected not to undergo left total hip
arthroplasty and continued to work as a letter carrier with his symptoms. A subsequent March 24,
2016 left hip x-ray revealed moderate degenerative changes of the left femoroacetabular joint.
Dr. Hartunian diagnosed status post right total hip replacement for end-stage degenerative arthritis
and left hip arthritis at the femoral acetabular joint. He opined that appellant’s right hip condition

2

had stabilized and reached maximum medical improvement (MMI) on June 26, 2013, the date his
physician released him to full-duty work, based on his right hip x-ray, which showed good position
of his total hip replacement. Dr. Hartunian opined that appellant’s left hip arthritis had stabilized
and reached MMI on March 24, 2016, the date of his most recent radiograph.
Dr. Hartunian opined that appellant’s work as a letter carrier aggravated and accelerated
his bilateral hip osteoarthritis. He discussed appellant’s repetitive work activity of ascending
stairs, which placed loads on the lower extremity joints approximately three times the body weight
and that descending stairs placed loads on the lower extremity joints approximately six times the
body weight. Dr. Hartunian noted that ascending stairs with a full mail satchel added
approximately 100 pounds to the effective body weight and descending stairs added approximately
200 pounds to the effective body weight, which placed repeated stresses on appellant’s lower
extremities. He noted that appellant’s job required constant and repetitive walking, standing,
squatting, stooping, climbing, bending, lifting, carrying, and twisting. These impact loading
activities exerted repeated local stresses to his lower extremities.
Dr. Hartunian defined arthritis as a failure and loss of articular cartilage surface, explaining
that the progression of arthritis was accelerated through a biological/chemical process that occurs
by which excessive impact loading and repeated local stresses caused mechanical stresses on the
cartilage surface, resulting in chronic inﬂammation. This inﬂammation results in an accelerated
loss of articular cartilage in the affected areas, in this case the lower extremities. Inﬂammation
results in a chemical change within the cartilage as it activates degradative enzymes, which cause
the loss of the proteoglycans. Dr. Hartunian explained that the loss of proteoglycans are signiﬁcant
because, among other reasons, proteoglycans are responsible for cartilage resilience. He reported
that appellant’s arthritis was accelerated through this process of impact loading from repeated local
stresses, causing chronic inflammation. Thus, Dr. Hartunian opined that loading and local stresses
arising from repetitive motion activities such as knee bending, kneeling, lifting, climbing,
stooping, twisting, squatting, and carrying contributed to the development and progression of
appellant’s lower extremity arthritis.
Accompanying Dr. Hartunian’s December 13, 2016 medical report was a January 4, 2013
right hip x-ray, a January 7, 2013 right hip MRI scan, a March 26, 2013 right hip x-ray, and an
April 2, 2013 operative report for a right bipolar hip arthroplasty.
By development letter dated February 21, 2017, OWCP informed appellant that the
evidence of record was insufficient to support his claim. It advised appellant of the factual and
medical evidence needed and was provided a questionnaire for completion. OWCP afforded
appellant 30 days to submit the necessary evidence. In a separate development letter dated
February 21, 2017, it requested the employing establishment provide comments pertaining to
appellant’s alleged occupational disease claim.
By letter dated March 10, 2017, counsel asserted that OWCP’s February 21, 2017
development letter failed to acknowledge receipt of all of the documents submitted in support of
his claim. He further argued that OWCP failed to consider Dr. Hartunian’s December 13, 2016
report, which he claimed provided a comprehensive opinion that appellant’s bilateral hip
osteoarthritis was causally related to his federal employment duties.

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In support of his claim, appellant resubmitted medical reports previously of record,
including Dr. Hartunian’s December 13, 2016 report. He also submitted a January 30, 2013 right
hip arthrogram, a May 7, 2013 right hip x-ray, and progress notes dated April 22, 2013 through
June 18, 2015 documenting treatment for hip osteoarthritis from Dr. Robert A. McGuirk, a Boardcertified orthopedic surgeon.
In a March 14, 2017 memorandum, OWCP’s Regional Director indicated that, in
accordance with Chapter 2.800.9 of the FECA Procedure Manual,4 the claim for acceleration of
osteoarthritis was being converted into an extended occupational disease claim as it required full
scale development as to the nature of exposure, or the relationship of the condition to the exposure
was not obvious. He noted that the claim was being converted to allow for tracking as an extended
occupational disease claim as the medical evidence of record did not meet all of OWCP’s
requirements for adjudication, but established a prima facie case. The Regional Director instructed
the claims examiner to prepare a statement of accepted facts (SOAF) and questions for the
physician. The instructions provided that the claims examiner could then write directly to the
attending physician (if of the appropriate specialty), or refer appellant for examination by a
qualified specialist. Following the instructions from the Regional Director, no additional
development of the claim is evident in the record.
By decision dated June 28, 2017, OWCP denied appellant’s claim, finding that the medical
evidence of record failed to establish that his bilateral hip osteoarthritis was causally related to the
established factors of his federal employment. It noted that it had requested that appellant provide
copies of all prior medical reports for treatment received of his bilateral hip condition, specifically
noting all office visits, postoperative reports, and those medical reports that led to the January 4,
2013 x-ray and January 7, 2013 MRI scan. However, appellant failed to provide these medical
records as requested. OWCP found that, as a result of incomplete medical records, it was unable
to determine the full nature of appellant’s condition because it did not have an accurate medical
history.
By letter received on July 11, 2017, appellant, through counsel, requested an oral hearing
before an OWCP hearing representative.
A hearing was held on November 28, 2017 and appellant was represented by counsel.
Counsel argued that Dr. Hartunian’s report provided an uncontroverted opinion supporting causal
relationship and that the claim should be accepted or remanded for further development.
In support of the claim, medical reports dated January 16 through May 7, 2013 were
submitted from Dr. McGuirk who documented treatment for appellant’s right hip osteoarthritis.
Appellant also submitted medical reports dated January 3 and 28, 2013 from Dr. Ronald F.
Gomes, Board-certified in internal medicine, who documented treatment for generalized
osteoarthritis, noting severe bilateral degenerative joint disease of the hips, right side worse than

4
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Extended Development,
Chapter 2.800.9 (June 2011).

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left. Dr. Gomes’ medical reports dated September 29, 2016 through June 1, 2017 were also
submitted documenting treatment for left knee osteoarthritis.
By decision dated February 6, 2018, OWCP’s hearing representative affirmed the June 28,
2017 decision, finding that the evidence of record failed to establish that his bilateral hip
osteoarthritis was causally related to the established factors of federal employment. She noted that
Dr. Hartunian’s December 13, 2016 report was insufficient to establish appellant’s claim because
the record was devoid of any objective evidence demonstrating progression of bilateral hip
osteoarthritis prior to January 2013 when appellant was found to have extensive bilateral
degenerative joint disease of the hips. The hearing representative further noted that there was no
medical evidence addressing causal relationship between the April 2, 2013 right hip arthroplasty
and appellant’s employment duties.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,5 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.6 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.7
To establish that an injury was sustained in the performance of duty in a claim for occupational
disease, an employee must submit: (1) a factual statement identifying employment factors alleged
to have caused or contributed to the presence or occurrence of the disease or condition; (2) medical
evidence establishing the presence or existence of the disease or condition for which compensation
is claimed; and (3) medical evidence establishing that the diagnosed condition is causally related
to the employment factors identified by the employee.8
The medical evidence required to establish causal relationship is rationalized medical
opinion evidence. The opinion of the physician must be based on a complete factual and medical
background of the employee, must be one of reasonable certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors identified by the employee.9

5

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
6
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8
9

K.C., Docket No. 18-1330 (issued March 11, 2019); see Roy L. Humphrey, 57 ECAB 238, 241 (2005).
Id.

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ANALYSIS
The Board finds that this case is not in posture for decision.
After receiving OWCP’s February 21, 2017 development letter, appellant submitted
numerous medical reports in support of his claim dating back to January 2013, as well as
Dr. Hartunian’s December 13, 2016 report. Following receipt of these medical reports and prior
to the June 28, 2017 decision, the record reflects that the case file contained a March 14, 2017
memorandum from OWCP’s Regional Director. In the memorandum, the Regional Director
indicated that, in accordance with Chapter 2.800.9 of the FECA Procedure Manual,10 the claim for
acceleration of osteoarthritis was being converted into an extended occupational disease claim as
it required full scale development as to the nature of exposure, or the relationship of the condition
to the exposure was not obvious. It noted that the claim was being converted to allow for tracking
as an extended occupational disease claim as the medical evidence in the file did not meet all of
OWCP’s requirements for adjudication, but established a prima facie case. The Regional Director
instructed the claims examiner to prepare a SOAF and questions for the attending physician. He
then instructed the claims examiner to write directly to the attending physician (if of the
appropriate specialty), or to refer appellant for examination by a qualified specialist.
The Board notes that the claims examiner did not follow the instructions of OWCP’s
Regional Director as noted in the March 14, 2017 memorandum. The claims examiner did not
prepare a SOAF or questions for appellant’s attending physician in an effort to further develop the
claim, nor was appellant referred for examination by a qualified specialist. Despite having
received medical reports documenting appellant’s condition since January 2013, along with
Dr. Hartunian’s comprehensive medical report, OWCP’s claims examiner took no further action
on the claim.
The Board will remand the case for further development of the medical evidence. On
remand OWCP should follow the instructions provided by OWCP’s Regional Director in his
March 14, 2017 memorandum. Following this and any other further development deemed
necessary, OWCP shall issue a de novo merit decision on appellant’s occupational disease claim.
CONCLUSION
The Board finds that this case is not in posture for decision.

10

Supra note 4.

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ORDER
IT IS HEREBY ORDERED THAT the February 6, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.
Issued: April 25, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.N., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
FORCE CIVIL ENGINEERING SUPPORT
AGENCY, TYNDALL AIR FORCE BASE, FL,
Employer
__________________________________________

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Appearances:
John S. Evangelisti, Esq., for the appellant
No appearance, for the Director

Docket No. 08-614
Issued: December 15, 2008

Oral Argument May 15, 2008

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

JURISDICTION
On December 26, 2007 appellant timely appealed the September 21, 2007 merit decision
of the Office of Workers’ Compensation Programs, which affirmed the termination of her wageloss compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction
over the merits of the claim.
ISSUE
The issue is whether the Office properly terminated appellant’s wage-loss compensation
effective October 28, 2006.

FACTUAL HISTORY
Appellant, a 53-year-old civil engineer, has an accepted claim for depression, which
arose on or about April 30, 1993.1 The Office placed her on the periodic compensation rolls
effective April 3, 1994, and she continued to receive wage-loss compensation for more than a
decade. By decision dated October 12, 2006, it terminated appellant’s wage-loss compensation
because she was no longer disabled from performing her date-of-injury position.2 The decision
was based on the November 29, 2005, February 7 and August 9, 2006 reports of Dr. Howard J.
Entin, a Board-certified psychiatrist and impartial medical examiner,3 who diagnosed chronic
major depressive disorder with associated anxiety, in partial remission and nonindustrial posttraumatic stress disorder (PTSD).4 Dr. Entin explained that appellant’s ongoing depressive
symptoms were partially attributable to her employment injury. However, the majority of her
symptoms were due to preexisting depression and present-day coping difficulties. Dr. Entin
noted that appellant perceived herself as totally disabled. Appellant was medically retired and
receiving disability and had no intention of returning to work. However, Dr. Entin believed that
appellant was capable of resuming some type of full-time work. He indicated that appellant was
not competent to perform her usual job. Dr. Entin explained that appellant had not worked as a
civil engineer for 14 years, and consequently, she lost the technical knowledge required to
perform her job. He later clarified that appellant’s technical incompetence was not medically
related to her accepted employment injury, but merely a function of her prolonged inactivity as
an engineer.
Appellant timely requested an oral hearing, which she later changed to a request for
review of the written record. Her counsel deposed Dr. Entin on March 20, 2007 and submitted a
transcript of the deposition to the Office. In his deposition, Dr. Entin reiterated his
November 2005 diagnosis of PTSD and depression with associated anxiety. He also reiterated
that appellant could not return to her prior duties as a civil engineer because she lacked the

1

In November 1992, the employing establishment terminated appellant for alleged insubordination. The Merit
Systems Protection Board found that appellant had been improperly terminated and ordered her reinstatement.
2

The termination of compensation was effective October 28, 2006.

3

The Office found a conflict in medical opinion between appellant’s treating physician, Dr. David M. Elwonger,
a Board-certified psychiatrist, and Dr. Bret S. Furmansky, an Office referral physician and Board-certified
psychiatrist. In April 2004, Dr. Elwonger represented that appellant’s depression prevented her from functioning in
“any capacity in the workplace....” In contrast, Dr. Furmansky indicated that appellant could work part time, albeit
not as a civil engineer because that would be “too stressful.” In a July 13, 2006 work capacity evaluation (Form
OWCP-5a), Dr. Elwonger indicated that appellant was not competent to work 8 hours a day because she had not
worked in 14 years, has bronchial asthma, eczema, hay fever, arthritis in her hip, and lacks the stamina and fitness to
work a 40-hour week. He also noted that appellant was not competent to work as a civil engineer because she had
not worked for 14 years in any area involving math, science or physics, and thus, her “skills and knowledge [were]
outdated.”
4

Dr. Entin attributed appellant’s PTSD to childhood abuse and neglect. He explained that PTSD required
experiences that were life threatening, which appellant had not encountered during her employment. Dr. Entin noted
that the majority of appellant’s life threatening experiences occurred during childhood when she was subjected to
violence, abuse and neglect. He also referenced a later episode when appellant’s husband was quite abusive.

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technical skills due to a 14-year hiatus.5 Dr. Entin further explained that appellant had no
intention, motivation or desire to return to work as an engineer. He adhered to his earlier
assessment that appellant’s current condition was one part due to her 14-year-old employment
stressors and three parts due to her preexisting vulnerability and characterlogic issues of
passivity and avoidance. Dr. Entin explained that appellant was in a system that allowed her not
to have to work economically and so she just stayed where she was. Appellant essentially
became “habituated to her life as being a disabled person.”
The Office also received a September 11, 2007 report from Dr. Elwonger, who noted that
he was treating appellant for major depressive disorder, residual PTSD and restless legs
syndrome.6
On September 21, 2007 the Branch of Hearings & Review affirmed the October 12, 2006
decision terminating appellant’s wage-loss compensation.
LEGAL PRECEDENT
Once the Office accepts a claim and pays compensation, it bears the burden to justify
modification or termination of benefits.7 Having determined that an employee has a disability
causally related to his or her federal employment, the Office may not terminate compensation
without establishing either that the disability has ceased or that it is no longer related to the
employment.8
ANALYSIS
Appellant’s counsel argues that Dr. Entin’s opinion does not support terminating
appellant’s wage-loss compensation. He believes that Dr. Entin’s opinion demonstrates that
appellant continues to suffer from work-related residuals that preclude her from resuming her
date-of-injury position as a civil engineer. Counsel also argued that the Office neglected to
address whether appellant was disabled due to PTSD. The Board finds the Office met its burden
of proof in terminating appellant’s wage-loss compensation effective October 28, 2006.
The Office declared a conflict in medical opinion between appellant’s psychiatrist,
Dr. Elwonger, and an Office referral physician, Dr. Furmansky. Appellant’s psychiatrist
believed that her depression precluded any type of gainful employment, and the Office referral
physician opined that, while appellant could not work as a civil engineer, she could work on a
part-time basis. Because of this conflict between Dr. Elwonger and Dr. Furmansky, the Office
properly referred appellant to Dr. Entin, a Board-certified psychiatrist, for an impartial medical
5

He also noted that even if appellant had the engineering skills set, he did not think she could perform her civil
engineering duties “emotionally.”
6

Dr. Elwonger also identified the various medications prescribed for appellant’s work-related condition.
However, this latest report did not address appellant’s ability to work.
7

Curtis Hall, 45 ECAB 316 (1994).

8

Jason C. Armstrong, 40 ECAB 907 (1989).

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evaluation.9 Where the Office has referred appellant to an impartial medical examiner to resolve
a conflict in the medical evidence, the opinion of such a specialist, if sufficiently well
rationalized and based upon a proper factual background, must be given special weight.10
According to Dr. Entin, appellant continued to suffer from depression, which was
partially attributable to her employment injury. However, her accepted condition did not
preclude her from returning to work in a full-time capacity. Furthermore, appellant’s
employment-related condition did not preclude her from performing her prior duties as a civil
engineer. While Dr. Entin believed appellant could not return to her prior duties as a civil
engineer, he explained that this was due to her diminished technical skills. Dr. Entin noted that
appellant had not worked as an engineer for approximately 14 years. In a supplemental report,
Dr. Entin clarified that appellant’s inability to function as an engineer was not due to her
accepted medical condition, but merely a function of the passage of time.11 Dr. Entin also
indicated that appellant was not motivated to resume working, and in fact, she had no intention
of returning to work. When he was later deposed by appellant’s counsel, he stated that even if
appellant had the engineering skills set, she could not perform her civil engineering duties
“emotionally.” Counsel believes this latter statement demonstrates appellant’s inability to
resume her prior duties because of her accepted employment condition. However, Dr. Entin did
not state that appellant’s employment-related depression precluded her from resuming her prior
duties. What he stated repeatedly was that appellant lacked the intent or motivation to return to
work. Furthermore, in both his written report and during his deposition, Dr. Entin explained that
the majority of appellant’s ongoing depressive symptoms were attributable to preexisting
depression and characterlogic issues unrelated to her employment injury. Contrary to counsel’s
belief, Dr. Entin’s deposition does not undermine his prior reports, but instead illuminates his
earlier findings regarding why appellant remains unmotivated to return to gainful employment in
any capacity.
Dr. Entin’s opinion is sufficiently well rationalized and based upon a proper factual
background. He not only examined appellant, but also reviewed her extensive medical records.
Dr. Entin also reported accurate medical and employment histories. Therefore, the Office
properly accorded determinative weight to his findings, as he was the impartial medical
examiner.12 Dr. Entin’s opinion is sufficient to meet the Office’s burden to terminate appellant’s
wage-loss compensation. It is also noteworthy that, while Dr. Elwonger indicated in July 2006
that appellant was not competent to work eight hours a day, he did not attribute the disability to
appellant’s accepted psychiatric condition. Instead, he identified several nonwork-related factors
9

The Act provides that, if there is disagreement between the physician making the examination for the Office and
the employee’s physician, the Office shall appoint a third physician who shall make an examination. 5 U.S.C.
§ 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).
10

Gary R. Sieber, 46 ECAB 215, 225 (1994).

11

Because of her lengthy absence from work, appellant similarly believed that she lacked the technical skills to
resume work as a civil engineer. This opinion was also expressed by Dr. Elwonger in his July 13, 2006 work
capacity evaluation. At the time, he noted appellant was not competent to work as a civil engineer because her
“skills and knowledge [were] outdated.”
12

Gary R. Sieber, supra note 10.

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and conditions such as bronchial asthma, eczema, hay fever, arthritis, and lack of stamina and
fitness. Consequently, the September 21, 2007 decision terminating appellant’s compensation is
affirmed.13
CONCLUSION
The Office met its burden to terminate appellant’s wage-loss compensation effective
October 28, 2006.
ORDER
IT IS HEREBY ORDERED THAT the September 21, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 15, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13

The Board also finds no merit in counsel’s argument that the Office should have addressed the possible
disabling affects of appellant’s PTSD. First, this condition has not been formally accepted by the Office as
employment related. Second, while counsel is correct that preexisting and subsequently acquired conditions should
be considered in determining whether a particular job offer is suitable, the issue of suitable employment is not
currently before the Board.

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

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

Docket No. 13-717
Issued: July 24, 2013

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 January 31, 2013 appellant, through her attorney, filed a timely appeal from a
September 26, 2012 merit decision of the Office of Workers’ Compensation Programs’ (OWCP)
hearing representative, which denied her recurrence 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 this case.2
ISSUE
The issue is whether appellant established a recurrence of disability commencing
January 26, 2012 causally related to her accepted October 25, 2010 employment injury.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the September 26, 2012 decision. Since
the Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the
Board may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c); Sandra D. Pruitt, 57
ECAB 126 (2005). Appellant may submit that evidence to OWCP along with a request for reconsideration.

FACTUAL HISTORY
OWCP accepted that on October 25, 2010 appellant, then a 42-year-old rural mail carrier,
sustained a right thumb sprain when she jammed her thumb while putting a mail tray in a postal
truck. She stopped work and returned to full duty on November 12, 2010. In another claim,
OWCP accepted that on June 7, 2011 appellant sustained right thumb tenosynovitis when she
shifted mail trays in the performance of duty. Appellant stopped work and returned to full duty
on June 29, 2011.
On January 26, 2012 appellant filed a notice of recurrence claim alleging that she
continued to feel pain in her thumb since the original October 25, 2010 employment injury. She
stopped work.
Appellant submitted a claim for disability compensation beginning
January 26, 2012.
In a January 26, 2012 attending physician’s report, Dr. Nikhil Parikh, a Board-certified
internist, noted appellant’s complaints of right arm pain and numbness. He reported a history of
right thumb strain and noted that x-rays did not show a fracture. Dr. Parikh diagnosed carpal
tunnel syndrome and right lateral epicondylitis. He checked “yes” that appellant’s condition was
caused or aggravated by an employment activity. Dr. Parikh stated that she was partially
disabled from January 26 to February 9, 2012. He authorized appellant to return to light duty
with no lifting of the upper extremities.
In a January 31, 2012 urgent care record, a physician with an illegible signature
diagnosed thumb injury. He checked a box indicating that appellant was unable to work and
needed a follow-up appointment within one day.
In a February 3, 2012 magnetic resonance imaging scan report, Dr. Michael Dutka, a
Board-certified diagnostic radiologist, found no evidence of ligament tear and significant joint
effusion. He reported that flexor and extensor tendons and pulleys appeared intact and that
alignment in appellant’s right hand appeared satisfactory. Dr. Dutka observed minimal spurring
of the first metacarpal head at the metacarpophalangeal joint. He concluded that there was no
evidence or ligament or tendon tear, fracture or suspicious bony lesion.
In a February 18, 2012 return to work slip, Dr. Parikh stated that he treated appellant for
carpal tunnel syndrome. He authorized her to return to work on March 2, 2012.
In a February 28, 2012 form, Dr. Manish K. Singh, a Board-certified neurologist,
indicated that appellant underwent electromyography and nerve conduction velocity tests. He
circled many diagnoses including insomnia, headache, cervicobrachial syndrome, cervical
spondylosis, brachial plexopathy and carpal tunnel syndrome.
By letter dated March 15, 2012, OWCP advised appellant that the evidence was
insufficient to establish that she sustained a recurrence of disability beginning January 26, 2012
and requested additional evidence to establish her claim.
In a January 31, 2012 report, Dr. Salvatore Pepe, Board-certified in emergency medicine,
related appellant’s complaints of right hand and thumb pain since January 25, 2012. Appellant
denied any recent injury or trauma but stated that it was a recurrence of an original October 2010
right thumb injury at work. Dr. Pepe reviewed her history and conducted an examination. He
2

observed tenderness over the thenar eminence of the right thumb with no ecchymosis or
erythema. Dr. Pepe reported nontender front range of motion of the right forearm and shoulder.
He diagnosed sprain and strain of carpometacarpal joint of the hand.
In a March 6, 2012 report, Dr. Singh related appellant’s complaints of pain and burning
in her right arm and elbow pain. He reviewed her records and conducted an examination.
Dr. Singh stated that appellant should be excused from work for the period March 6 to 13, 2012.
He indicated that she may return to light duty on March 14, 2012 and restricted her to avoid
heavy lifting.
In an April 16, 2012 statement, appellant reported that she was unable to work beginning
January 26, 2012 because the pain in her right thumb increased and recently moved up her arm.
She explained that she continuously felt pain in the same thumb and that the swelling in her
thumb had not gone down since the original October 25, 2010 injury. Appellant noted that she
did the same work from June 2011 to January 2012 and that she did not sustain any new injuries
at work or elsewhere.
In a decision dated April 27, 2012, OWCP denied appellant’s claim for recurrence of
disability finding that the medical evidence failed to establish that she was unable to work
beginning January 26, 2012 as a result of the October 25, 2010 employment injury.
On May 14, 2012 appellant, through counsel, requested an oral hearing, which was held
on August 13, 2012. She described her duties as a rural carrier and the October 25 and
November 27, 2010 injuries. Appellant stated that she returned to full duty but she still
experienced pain and swelling in her right hand. She noted that she requested light duty but the
employing establishment was unable to accommodate her request. Appellant explained that in
the week leading up to January 26, 2012 the pain in the right hand and elbow increased. She
described the medical treatment she received and stated that a hand specialist prescribed a brace
for her to wear because a ligament in her right thumb had moved. Appellant’s counsel alleged
that appellant’s right thumb injury continued to worsen until she was not able to work. He stated
that going back to full duty did not help to improve her condition. Appellant’s counsel
contended that appellant sustained a recurrence because she was still trying to get diagnosed
regarding her thumb. He noted that if a physician clearly stated that it was from her prior work
injury and that the overall condition worsened then it would likely be a recurrence of the thumb
but there was also a possibility that there were new symptoms and new employment factors that
aggravated old symptoms.
In an April 17, 2012 disability slip, Dr. Singh diagnosed brachial plexus and carpal tunnel
syndrome. He excused appellant from work for the period February 28 to April 30, 2012 and
authorized her to return to work on May 1, 2012.
In a June 5, 2012 work capacity evaluation form, Dr. Singh reported that appellant was
not capable of performing her usual job due to right upper extremity pain. He indicated that she
was authorized to return to modified duty with restrictions of no heavy lifting. Dr. Singh also
limited repetitive movements of the wrists and elbows for 2 to 4 hours, pushing and pulling up to
25 pounds and lifting up to 10 pounds.
In a July 10, 2012 report, Dr. Singh related appellant’s October 25 and November 27,
2010 right hand and thumb injuries. He noted that she worked full duty as a rural mail carrier
3

from November 19, 2010 to January 26, 2012 and described her duties as casing and pulling mail
and carrying parcels weighing up to 70 pounds. Dr. Singh first examined appellant on
February 28, 2012 and noted that she had been out of work since January 26, 2012. He related
that she reported an exacerbation of symptoms since January 2012. Upon examination,
Dr. Singh observed tenderness to occipital region and tenderness over the right trapezius region.
Ross maneuver was positive on the right side. Dr. Singh also noted tenderness over
supraclavicular and infraclavicular region on the right side. Appellant’s deep tendon reflexes
were 3+ symmetric bilaterally and no objective sensory deficits were noticed. Dr. Singh
diagnosed cervicobrachial plexus traction injury on the right side, mechanical neck pain, bilateral
cervical pain and headache and insomnia. He stated that appellant was unable to tolerate more
than two hours of work because she still had significant difficulty performing her assigned work
as a rural carrier. Dr. Singh reported that the repetitive activity of pulling, pushing and reaching
overhead and heavy lifting would aggravate her right upper extremity symptoms. He opined that
appellant’s right upper extremity symptoms were more likely due to brachial plexus traction
injury and that her symptoms appeared to be from lateral cord. Dr. Singh concluded that her
right upper extremity symptoms were more likely than not causally related to her October 25,
2010 injury and that her symptoms were more likely to get exacerbated by her work situation.
By decision dated September 26, 2012, an OWCP hearing representative affirmed the
April 27, 2012 decision denying appellant’s recurrence of disability claim.
LEGAL PRECEDENT
OWCP regulations define the term a recurrence of disability as an inability to work after
an employee has returned to work, caused by a spontaneous change in a medical condition,
which resulted from a previous injury or illness without an intervening injury or new exposure to
the work environment that caused the illness. This term also means an inability to work that
takes place when a light-duty assignment made specifically to accommodate an employee’s
physical limitations due to his or her work-related injury or illness is withdrawn or when the
physical requirements of such an assignment are altered so that they exceed his or her established
physical limitations.3 OWCP’s procedure manual provides that a recurrence of disability also
includes worsening of disability due to an accepted consequential injury.4
Where an employee, who is disabled from the job he or she held when injured returns to a
light-duty position or the medical evidence establishes that he or she can perform the light-duty
position, the employee has the burden to establish by the weight of the reliable, probative and
substantial evidence a recurrence of total disability and show that he or she cannot perform such
light duty. As part of this burden, the employee must show either a change in the nature and
extent of the injury-related condition or a change in the nature and extent of the light-duty
requirements.5 This burden includes the necessity of furnishing evidence from a qualified
physician who concludes, on the basis of a complete and accurate factual and medical history,
that the disabling condition is causally related to the employment injury. The medical evidence
3

20 C.F.R. § 10.5(x).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.3(b) (May 1997).

5

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).

4

must demonstrate that the claimed recurrence was caused, precipitated, accelerated or aggravated
by the accepted injury.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence.7 The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.8
ANALYSIS
OWCP accepted that appellant sustained a right thumb sprain as a result of an
October 25, 2010 employment injury. Appellant stopped work and returned to full duty on
November 10, 2010. OWCP also accepted in another claim that she sustained right thumb
tenosynovitis as a result of a June 7, 2011 employment injury. Appellant stopped work and
returned to full duty on June 29, 2011. On January 26, 2012 she submitted a recurrence of
disability claim alleging that she continued to feel pain in her thumb as a result of the
October 25, 2010 employment injury. Appellant stopped work and submitted a claim for
disability compensation beginning January 26, 2012. The issue is whether she sustained a
recurrence of total disability on January 26, 2012 causally related to the October 25, 2010
employment injury.
Appellant has not alleged a change in her light-duty job requirements. Instead, she
attributed her recurrence of disability to a change in the nature and extent of her employmentrelated conditions. Appellant must provide medical evidence to establish that she was disabled
due to a worsening of her accepted work-related conditions. The Board finds that she has not
met her burden of proof to establish her claim.
Appellant submitted medical reports and disability slips from Dr. Singh. The relevant
reports are dated March 6 to July 10, 2012. In March 6 and April 17, 2012 disability notes,
Dr. Singh excused her from work for the period February 28 to April 30, 2012. In a June 5, 2012
work capacity evaluation form, he authorized appellant to return to modified duty with
restrictions of no heavy lifting. Although Dr. Singh excused her from work for the period
February 28 to April 30, 2012, he did not provide any explanation on the cause of her inability to
work during that period.9 The Board finds that he fails to provide an explanation, based on
objective medical findings and rationale demonstrating why appellant’s current conditions were
disabling and how any inability to work was a result of the October 25, 2010 employment injury.
In a July 10, 2012 report, Dr. Singh noted that appellant had been out of work since
January 26, 2012 and that her duties as a rural mail carrier required repetitive activity of pulling,
6

Supra note 4 at Chapter 2.805.2 (March 2011).

7

I.R., Docket No. 09-1229 (issued February 24, 2010); D.I., 59 ECAB 158 (2007).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 465 (2005).

9

T.S., Docket No. 13-227 (issued April 9, 2013); R.E., Docket No. 10-679 (issued November 16, 2010); K.W., 59
ECAB 271 (2007).

5

pushing, reaching overhead and heavy lifting. Upon examination, he observed tenderness over
supraclavicular and infraclavicular region on the right side. Dr. Singh diagnosed cervicobrachial
plexus traction injury on the right side and carpal tunnel syndrome, among other conditions. He
opined that appellant’s right upper extremity symptoms were more likely due to brachial plexus
traction injury and that her symptoms appeared to be from lateral cord. Dr. Singh stated that she
was unable to tolerate more than two hours of work because she still had significant difficulty
performing her assigned work as a rural carrier. He concluded that appellant’s right upper
extremity symptoms were more likely than not causally related to her October 25, 2010 injury.
Although Dr. Singh notes that she was unable to work beginning January 26, 2012 and states that
her right upper extremity symptoms were related to the October 25, 2010 employment injury, he
also attributes her right upper extremity condition to a brachial plexus traction injury, not the
accepted right thumb sprain. As previously noted, a recurrence of disability means an inability
to work after an employee has returned to work that is caused by a spontaneous change in a
medical condition resulting from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness.10 In this case, Dr. Singh attributes
appellant’s current right upper extremity symptoms to a brachial injury, which is a new injury.
He does not discuss a worsening of her accepted right thumb condition or provide a wellrationalized medical opinion establishing a recurrence of total disability on January 26, 2012.11
Without a clear opinion relating appellant’s inability to work to the accepted October 25, 2010
right thumb injury, the Board finds that Dr. Singh’s reports are insufficient to establish her
recurrence of disability claim.
Appellant also submitted reports by Dr. Parikh dated January 26 and February 18, 2012.
Dr. Parikh related her complaints of right arm pain and numbness and noted a history of right
thumb strain. He diagnosed carpal tunnel syndrome and right lateral epicondylitis. Dr. Parikh
stated that appellant was partially disabled from January 26 to February 9, 2012 and authorized
her to return to light duty with no lifting of the upper extremities. The Board finds that his
reports do not establish that she sustained a recurrence of total disability because he authorized
her to return to light duty on January 26, 2012. Dr. Parikh’s opinion does not support that
appellant was totally disabled beginning January 26, 2012.
The additional reports by Drs. Dutka and Pepe are similarly insufficient to establish
appellant’s recurrence of disability claim as they do not address whether she was disabled from
work beginning January 26, 2012 as a result of the accepted October 25, 2010 employment
injury. Dr. Dutka found no evidence for ligament or tendon tear and no evidence of recent
fracture or suspicious bony lesion. Dr. Pepe diagnosed sprain and strain of carpometacarpal joint
of the hand. Neither physician, however, addressed appellant’s inability to work as a result of
the October 25, 2010 employment injury. Furthermore, the January 31, 2012 urgent care record
by a physician with an illegible signature is insufficient to establish appellant’s claim as it lacks
proper identification.12
On appeal, appellant’s counsel alleges that Dr. Singh’s July 10, 2012 report clearly
reported an overall worsening of appellant’s symptoms up to January 25, 2012 and attributes her
10

Supra note 4.

11

See H.M., Docket No. 09-864 (issued November 6, 2009).

12

Thomas L. Agee, 56 ECAB 465 (2005); Richard F. Williams, 55 ECAB 343 (2004).

6

symptoms to the October 25, 2010 injury. He acknowledges that, while appellant’s initial
injuries were accepted for a thumb condition, Dr. Singh felt that there was more of an upper
extremity impairment related to a neurologic dysfunction in the right arm. As previously
explained, the Board finds that Dr. Singh failed to provide a rationalized medical opinion
explaining how appellant was unable to work beginning January 26, 2012 as a result of her
accepted October 25, 2010 right thumb sprain. Dr. Singh diagnosed her current right upper
extremity conditions as brachial plexus traction injury and carpal tunnel syndrome, which are
new injuries that were not previously accepted. He has not established a recurrence of
appellant’s October 25, 2010 employment injury.
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 a recurrence
of total disability commencing January 26, 2012.
ORDER
IT IS HEREBY ORDERED THAT the September 26, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 24, 2013
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.V., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Belmont, MA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-725
Issued: August 15, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 22, 2007 appellant filed a timely appeal from a December 13, 2006 decision
of the Office of Workers’ Compensation Programs, denying his request for reimbursement of
tuition. Pursuant to 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 the Office properly denied appellant’s request for reimbursement of
tuition.
FACTUAL HISTORY
On October 3, 2000 appellant, then a 36-year-old letter carrier, filed a traumatic injury
claim alleging that he sustained an emotional condition due to harassment at work on
September 13, 2000. Appellant stopped work on September 13, 2000 and did not return. The
Office accepted his claim for panic disorder, acute incident and paid appropriate wage-loss
compensation.

By letters dated October 16, 2002 and January 25, 2003, appellant asked the Office
whether it would pay for his tuition. He submitted copies of documents relating to his tuition
and other expenses. Appellant also provided information regarding his courses and grades.1
On September 11, 2003 appellant stated that he wished to be reimbursed for his tuition at
the Cambridge School of Culinary Arts and Eastern Maine Technical College. He indicated
tuition expenses of approximately $20,000.00. On September 25, 2004 appellant stated that the
Office did not “technically” send him to school but he did not receive a response from the Office
to a September 21, 2001 telephone inquiry regarding job rehabilitation. His vocational
rehabilitation counselor indicated that he graduated from a one-year program at the Cambridge
School of Culinary Arts in 2002. Appellant subsequently earned an associate degree in culinary
arts from Eastern Maine Community College. He later began taking courses at the University of
Southern Maine toward a bachelor’s degree in technology education.
On October 25, 2004 the Office advised appellant that a decision regarding
reimbursement for tuition was deferred pending the outcome of his vocational rehabilitation
program.
By decision dated May 5, 2005, the Office denied appellant’s request for reimbursement
for tuition for approximately $20,000.00 on the grounds that he did not obtain prior authorization
from the Office.
On June 20, 2005 appellant requested reconsideration. He argued that he was not aware
of the availability of rehabilitation services under the Federal Employees’ Compensation Act
until he began attending classes. Between 2001 and 2005, appellant made several requests for
tuition reimbursement.
By decision dated September 19, 2005, the Office denied modification of the May 5,
2005 decision.
On September 14, 2006 appellant requested reconsideration. By decision dated
December 13, 2006, the Office denied modification of the September 19, 2005 decision. The
Office noted that, if appellant had not commenced a retraining and educational program on his
own without approval from the Office, the Office might have been able to provide him with
suitable employment without the need for retraining. If his wages in the new employment
procured by the Office were less than he made in his former federal job, the Office would have
compensated him for his decreased earnings.2
LEGAL PRECEDENT
Section 8104(a) of the Act provides for the furnishing of vocational rehabilitation
services. The section further provides that “[t]he cost of providing these services to individuals
1

In February 2005, appellant submitted additional documentation regarding his courses and expenses.

2

Subsequent to the December 13, 2006 Office decision, appellant submitted additional evidence. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.

2

undergoing vocational rehabilitation “shall be paid by the Employees’ Compensation Fund.”3
The Office has discretionary authority with respect to vocational rehabilitation and the Board has
held that an Office decision involving the exercise of this discretion will not be disturbed unless
it is clearly in error.4
ANALYSIS
Appellant requested reimbursement for tuition for culinary courses and for courses
toward obtaining a college bachelor’s degree taken at three educational institutions. However,
he did not obtain prior authorization from the Office for his educational expenses.
The record shows that the tuition for which appellant seeks reimbursement was not part
of any Office-approved vocational rehabilitation plan. Section 8104 of the Act does not
authorize the reimbursement of expenses for self-procured training. As noted, the Office has
discretionary authority with respect to the provision of vocational services and the Office’s
decision involving exercise of this discretion will not be disturbed unless it is clearly
unreasonable. Appellant has not established that the Office’s decisions denying his request for
reimbursement for tuition constituted an abuse of discretion. The Board finds that the Office
properly denied reimbursement of appellant’s tuition.
CONCLUSION
The Board finds that the Office did not abuse its discretion in denying appellant’s request
for reimbursement of his tuition.

3

5 U.S.C. § 8104(a).

4

See Edward E. Johnson, 39 ECAB 611 (1988).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 13, 2006 is affirmed.
Issued: August 15, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Washington, DC, Employer
__________________________________________

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)
)
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)
)
)

Appearances:
Stephen Larkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0192
Issued: June 5, 2017

Case Submitted on the Record

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

JURISDICTION
On November 5, 2016 appellant, through counsel, filed a timely appeal from a May 11,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established an emotional condition in the performance
of duty causally related to a compensable work factor.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts of the case as presented in the
prior Board decisions are incorporated herein by reference. The relevant facts are as follows.
On December 29, 2005 appellant, then a 49-year-old distribution clerk, filed an
occupational disease claim (Form CA-2) alleging that she sustained “mental stress and physical
stress” as a result of her federal employment. Specifically, she alleged that on August 29, 2005 a
supervisor, B.F., yelled at her regarding overtime. Appellant alleged that on September 1, 2005
the supervisor pushed her and grabbed leave slips in a hostile manner. She was issued a removal
notice and on November 16, 2005 employing establishment inspectors had her arrested.
Appellant’s supervisor noted on the reverse side of the claim form that appellant had not worked
since September 1, 2005.
In a December 12, 2005 letter, an employing establishment manager wrote that appellant
had been suspended as of September 1, 2005 for assaulting a supervisor while submitting a leave
slip. The record contains a memorandum of telephone call dated June 26, 2006, which notes
that, according to supervisor, N.C., she was allowed to go to the medical unit on
August 29, 2005. When N.C., went to look for appellant, she was not in the medical unit. The
supervisor returned to his workstation and she presented him with a leave slip that he refused to
sign. Appellant then began hitting the supervisor on his back and appellant was arrested for
assault.
By decision dated June 27, 2006, OWCP denied appellant’s claim for compensation. It
found that the evidence of record did not establish that an injury occurred in the performance of
duty.
On July 14, 2006 appellant requested a hearing before an OWCP hearing representative.
A hearing was held on December 28, 2006. Appellant testified that on August 29, 2005 she told
supervisor, B.F. that she could not work overtime because she had been injured on
August 17, 2005. According to her, B.F. yelled at her when stating that if she was on the list she
had to work overtime. Appellant also referred to three days of work for which she had not
received pay. As to September 1, 2005, she alleged that the supervisor gave her a medical slip to
go to the medical unit, but asked to go with her. Appellant felt this was harassment. She did go
to the medical unit alone, but found that it was closed. When appellant returned to work, she
again requested to go to the medical unit, but was refused. She wrote “denied medical
treatment” on a leave slip, and the supervisor crossed it out. The supervisor then “snatched it out
of my hand.” Appellant denied hitting the supervisor.
As to November 16, 2005, appellant reported that she had gone to the police department
because she had filed a complaint of harassment. She alleged “the inspectors” had told her
husband they had a warrant for her arrest, and the police threw her down a flight of stairs.
According to appellant, the inspectors came to her home and told her she had to come to the

3

Docket No. 14-1351 (issued October 20, 2014); Docket No. 11-0512 (issued September 28, 2011); Docket No.
09-2022 (issued May 18, 2010).

2

employing establishment. She reported that she had filed an Equal Employment Opportunity
(EEO) claim, but it was denied.
By decision dated March 15, 2007, the hearing representative affirmed the June 27, 2006
decision. The hearing representative found that appellant had not established any compensable
work factor with respect to her claim for compensation.
On May 25, 2007 appellant requested reconsideration of the March 15, 2007 OWCP
decision. By letter dated June 8, 2007, OWCP advised her that it was unclear what decision or
issues she wanted OWCP to reconsider. Appellant resubmitted the reconsideration request on
March 19, 2008. She also submitted a March 13, 2008 report from Dr. Atlener Artis-Trower, a
psychiatrist, who diagnosed post-traumatic stress disorder.
By decision dated June 2, 2009, OWCP denied merit review of the claim. It found that
appellant had neither raised substantive legal questions, nor submitted new and relevant
evidence.
On August 5, 2009 appellant appealed to the Board. The Board, by order dated May 18,
2010, remanded the case to OWCP.4 The Board found that OWCP had delayed issuing a
decision on reconsideration, jeopardizing appellant’s right to a review of the merits of the claim.
The case was remanded for a merit decision.
OWCP issued a decision dated June 28, 2010, again denying merit review of the claim.
On December 23, 2010 appellant appealed to the Board. In an order dated September 28, 2011,
the Board again remanded to case to OWCP for a decision on the merits of the claim.5
By decision dated November 10, 2011, OWCP reviewed the merits of the claim and
denied modification. It found that appellant had not established that her alleged injury occurred
in the performance of duty.
The record indicates that appellant submitted a reconsideration request dated
October 20, 2012 and received on November 15, 2012. The evidence submitted included a
September 1, 2005 letter indicating that she was placed on an off-duty status without pay.
Appellant also submitted an October 17, 2015 notice of removal for improper conduct on
September 1, 20056 and a settlement agreement dated September 29, 2006, indicating that the
removal be rescinded and she would be allowed to retire. She also submitted witness statements
regarding an October 7, 2003 incident.7

4

Docket No. 09-2022 (issued May 18, 2010).

5

Docket No. 11-0512 (issued September 28, 2011).

6

The notice of removal found that appellant had pushed and hit B.F.

7

Appellant filed a traumatic injury claim (Form CA-1) on November 4, 2003 identifying October 7, 2003 as the
date of injury. That claim was assigned OWCP File No. xxxxxx927.

3

Appellant resubmitted her reconsideration request on January 9, 2014. By decision
March 12, 2014, OWCP found that the reconsideration request was untimely filed and failed to
demonstrate clear evidence of error. It found that appellant had not requested reconsideration
until January 9, 2014.
On May 28, 2014 appellant again appealed to the Board. In a decision dated October 20,
2014, the Board set aside the March 12, 2014 decision.8 The Board found that appellant had
submitted a reconsideration request prior to January 9, 2014 and even though the October 20,
2012 reconsideration request provided a received date of November 15, 2012 in iFECS, OWCP
date stamp was November 7, 2012. A November 7, 2012 received date would render the
reconsideration request timely with respect to the November 10, 2011 OWCP merit decision.
The case was therefore remanded to OWCP for an appropriate decision.
By decision dated February 12, 2015, OWCP reviewed the merits of the claim. It found
that appellant had not established a compensable work factor, and therefore had not met one of
the requirements for establishing her claim for compensation.
On February 11, 2016 appellant again requested reconsideration. She submitted medical
evidence from Dr. Artis-Trower, and character witness statements. Appellant submitted a brief
portion of testimony from B.F., dated February 2, 2006, in a District of Columbia Superior Court
criminal case. B.F., testified “I grabbed it back. [Appellant] grabbed it and almost before it left
my hand I just snatched it back.” A coworker provided a witness statement dated September 30,
2005, asserting that on September 1, 2005 she saw supervisor B.F., snatch a piece of paper out of
appellant’s hand.
By decision dated May 11, 2016, OWCP reviewed the merits of the claim and denied
modification. It found that appellant had not met her burden of proof to establish a compensable
work factor.
LEGAL PRECEDENT
A claimant has the burden of proof to establish by the weight of the reliable, probative,
and substantial evidence that the condition for which he or she claims compensation was caused
or adversely affected by factors of his or her federal employment.9 To establish that he or she
sustained an emotional condition in the performance of duty, a claimant must submit: (1) factual
evidence identifying employment factors or incidents alleged to have caused or contributed to his
or her condition; (2) medical evidence establishing that he or she has an emotional or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that the identified
compensable employment factors are causally related to his or her emotional condition.10
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
8

Docket No. 14-1351 (issued October 20, 2014).

9

W.M., Docket No. 15-1080 (issued May 11, 2017); Pamela R. Rice, 38 ECAB 838 (1987).

10

Id., see also Donna Faye Cardwell, 41 ECAB 730 (1990).

4

some connection with the employment, but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it, but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or to secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to her regular or specially assigned work duties or to a requirement imposed by
the employment, the disability comes within the coverage of FECA.11
A reaction to an administrative or personnel matter is generally not covered as it is not
related to the performance of regular or specially assigned duties.12 Nevertheless, if the evidence
demonstrates that the employing establishment erred, acted abusively or unreasonably in the
administration of a personnel matter, any physical or emotional condition arising in reaction to
such error or abuse may be covered.13
The Board has addressed the difficulty in determining whether interactions between
employees will give rise to coverage under FECA where harassment is alleged through verbal
altercations or difficult relationships between employees.14 The difficulty in such claims is the
subjective nature of a claimant’s perceptions to his or her work environment. To support a claim
for compensation, the claimant must specifically delineate those factors or incidents to which the
emotional condition is attributed and submit supporting factual evidence verifying that the
implicated work situations or incidents occurred as alleged. Vague or general allegations of
perceived harassment, abuse or difficulty arising in the employment are not sufficient to give rise
to compensability under FECA.15
ANALYSIS
In the present case, appellant has alleged that she sustained stress as a result of
interactions with a supervisor on August 29 and September 1, 2005. She has also noted
administrative actions of the employing establishment such as an October 15, 2005 notice of
removal, and has referred to November 16, 2005 incidents involving the local police and
employing establishment inspectors.
Appellant has not attributed her emotional condition to the performance of her regular or
specially assigned duties as a mail processor under Cutler.16 Therefore, the initial question is
whether she has alleged and substantiated compensable work factors.
11

Lillian Cutler, 28 ECAB 125 (1976).

12

See Brian H. Derrick, 51 ECAB 417, 421 (2000).

13

Margreate Lublin, 44 ECAB 945, 956 (1993).

14

E.H. Docket No. 11-0798 (issued March 22, 2012); Paul Trotman-Hall, 58 ECAB 189 (2006).

15

Id.

16

See supra note 9.

5

With respect to an August 29, 2005 incident, appellant alleges that a supervisor yelled at
her regarding her decision not to work overtime the following day. She did not provide
additional detail or supporting statements. The Board has held that the raising of a voice during
the course of a conversation does not warrant a finding of verbal abuse.17
Appellant alleges that, on September 1, 2005, the supervisor asked to go with appellant to
the medical unit, which she felt was harassment. There is no probative evidence of record
establishing harassment. The request to accompany appellant was not unreasonable and any
perception of harassment would be self-generated.18
It was also alleged that later that day the supervisor pushed appellant and grabbed a leave
slip she had presented. There was no evidence submitted that corroborates her allegation that the
supervisor pushed her. A witness indicated that the supervisor grabbed the leave slip. The
record also contained brief testimony from the supervisor dated February 2, 2006, as part of
criminal proceedings. Assuming the supervisor was referring to the September 1, 2005 incident,
he acknowledged that he grabbed the paper as appellant also tried to grab it. However, the
establishment of an incident does not establish that it was a compensable work factor. There is
no evidence of record establishing that the actions of the supervisor were so unreasonable as to
constitute a compensable work factor. Not every dispute or argument between employees
establishes a compensable work factor.19 The actions of the supervisor must be unreasonable
under the circumstances.20 Physical contact by a supervisor or coworker may give rise to a
compensable work factor,21 but there was no evidence of physical contact in this case. The
Board finds that the actions of the supervisor on September 1, 2005 do not rise to the level of a
compensable work factor.
As to appellant’s allegations regarding improper pay and a notice of removal dated
October 15, 2005, such actions are administrative functions of the employing establishment.22
Only if there is error or abuse by the employing establishment is a compensable work factor
established.23 Appellant did not submit any evidence regarding the pay issue. The record
contains a settlement agreement dated September 29, 2006 that rescinds the removal, but the
rescission of a disciplinary action does not itself establish a compensable work factor. There is
no admission or acknowledgment of error by the employing establishment, and the mere fact that

17

Carolyn S. Philpott, 51 ECAB 175, 179 (1999).

18

The mere perception of harassment is not compensable. Sandra F. Powell, 45 ECAB 877, 886 (1994); see also
K.G., Docket No. 07-1687 (issued February 21, 2008).
19

See Robert P. Chamberlain, Docket No. 01-1494 (issued October 23, 2003).

20

See Shirin S. Marshall, Docket No. 03-1127 (issued July 6, 2004); see also R.W., Docket No. 11-0362 (issued
October 24, 2011).
21

Gary N. Fiocca, Docket No. 05-1209 (issued October 18, 2005).

22

T.H., Docket No. 16-1164 (issued February 24, 2017); C.T., Docket No. 08-2160 (issued May 7, 2009).

23

Id.

6

an administrative action is later modified or rescinded does not, in and of itself, establish error or
abuse.24
Appellant also refers to events on November 16, 2005, reporting that she was arrested,
but she discusses the actions of local police as well inspectors from the employing establishment.
She does not provide clear statement as to the sequence of events, or any probative supporting
evidence that would establish error or abuse by the employing establishment. There is a
reference to an EEO complaint, but no findings or other relevant evidence were submitted in this
regard.25
The Board accordingly finds that appellant has not alleged and substantiated a
compensable work factor in this case. Since appellant has not established a compensable work
factor, the Board will not address the medical evidence.26
On appeal, counsel argues that the snatching of a document by a supervisor is not an
administrative matter and should be a compensable work factor, but as discussed above, the
evidence of record did not establish the supervisor pushed appellant or otherwise made physical
contact. The actions of the supervisor did not rise to the level of a compensable work factor.
Counsel also refers to other claims and other alleged incidents. The claim in this case was based
on specific incidents in 2005. Counsel asserts that appellant was bruised by the city police when
she was arrested. As noted above, the alleged actions of the local police do not establish error or
abuse by the employing establishment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established an emotional condition in the
performance of duty causally related to a compensable work factor.

24

See Michael Thomas Plante, 44 ECAB 510 (1993); Richard J. Dube, 42 ECAB 916 (1991) (reduction of a
disciplinary letter to an official discussion did not constitute abusive or erroneous action by the employing
establishment).
25

See J.M., Docket No. 16-0312 (issued June 22, 2016).

26

See Margaret S. Krzycki, 43 ECAB 496 (1992).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 11, 2016 is affirmed.
Issued: June 5, 2017
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Clifton, NJ, Employer
__________________________________________

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Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-327
Issued: November 10, 2010

Case Submitted on the Record

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

JURISDICTION
On November 18, 2009 appellant, through her attorney, filed a timely appeal from the
September 11, 2009 decision of the Office of Workers’ Compensation Programs, which denied
her claim for a schedule award. 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 appellant has established that she had any employment-related
permanent impairment thereby entitling her to a schedule award.
On appeal appellant, through her attorney, contends that her claim was established with
her physician’s report on her accepted condition of left knee chondromalacia patella.
FACTUAL HISTORY
On March 9, 2000 appellant, then a 35-year-old letter carrier, filed an occupational
disease claim alleging that she sustained left anterior knee syndrome as a result of delivering

mail for 13 years. On June 7, 2000 the Office accepted appellant’s claim for left knee
chondromalacia patella.
On August 5, 2008 appellant filed a claim for a schedule award. By letter dated
September 11, 2008, the Office requested that appellant submit further information including a
medical report establishing that she has reached maximum medical improvement as well as her
physician’s assessment with regard to the loss of function of the affected body member, and gave
appellant 30 days to submit the evidence. No new evidence was timely submitted.
By decision dated October 23, 2008, the Office denied appellant’s claim for a schedule
award.
By letter dated October 29, 2008, appellant requested a telephonic hearing before an
Office hearing representative.
In a May 12, 2008 report, Dr. David Weiss, an osteopath, reviewed appellant’s work
history including a February 19, 1999 injury, which occurred while delivering mail, and a second
injury on February 15, 2000, which occurred when her knees gave out. He reviewed appellant’s
medical records, discussed his findings on physical examination and noted range of motion
findings. Dr. Weiss listed his diagnoses as chronic post-traumatic cervical and lumbosacral
strain and sprain; bulging cervical disc C4-5 and C5-6; bulging lumbar disc L4-L5, lumbar upper
extremity radiculitis; cumulative and repetitive trauma disorder superimposed upon a defined
work-related injury to the left knee February 15, 2000; chondromalacia patella to the left knee;
and patellofemoral arthralgia to the right knee. He determined that, pursuant to the American
Medical Association, Guides to the Evaluation of Permanent Impairment (5th edition, 2001),
appellant had a 15 percent impairment of the left lower extremity. Dr. Weiss reached this
conclusion by finding that appellant had a 3 percent impairment due to pain and a 12 percent
impairment of the left lower extremity due to a Grade 4/5 motor strength weakness in the left
quadriceps “(knee extension),” for a total impairment to the left lower extremity of 15 percent.1
At the hearing held on February 11, 2009, appellant testified with regard to her injury,
noted that she retired on disability and indicated that she now works as a security guard checking
identification.
By decision dated March 18, 2009, the hearing representative denied appellant’s claim
for a schedule award. The hearing representative stated that Dr. Weiss did not explain in medical
terms why appellant’s weakness and pain was due to the accepted February 15, 2000 condition
of left chondromalacia patella related to walking up and down stairs. Further, the hearing
representative found that Dr. Weiss’ opinion was based on an inaccurate history.
By letter dated May 22, 2009, appellant requested reconsideration. In support thereof,
she submitted an April 15, 2009 report, wherein Dr. Weiss stated that, after reviewing the
medical record, “it is apparent that the claimant’s injury to the left knee was that of cumulative
and repetitive trauma disorder as there was no defined work-related injury to her left knee
occurring on February 15, 2000.”
1

Dr. Weiss utilized the A.M.A., Guides (5th ed. 2001) 530, Table 17-6, 532 and Table 17-8, 574.

2

By decision dated September 11, 2009, the Office denied modification of the denial of
the schedule award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 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, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants, the
Office has adopted the A.M.A., Guides as the uniform standard applicable to all claimants.4 The
A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard
for evaluating schedule losses.5
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an Office medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.6
ANALYSIS
The Office accepted appellant’s claim for left knee chondromalacia patella. However, it
denied appellant’s claim for a schedule award, finding that the report of Dr. Weiss did not
accurately reflect the history of appellant’s injury. The Board notes, however, that the issue in
this case was not whether appellant sustained an injury causally related to her federal
employment as the claim had already been accepted for left knee chondromalacia patella.
Rather, the issue was whether appellant sustained a permanent impairment caused by the
accepted injury which entitled appellant to a schedule award.
The Board finds that the Office did not properly develop the medical evidence with
regard to appellant’s entitlement to a schedule award. Dr. Weiss provided a report wherein he
discussed appellant’s history, provided measurements with regard to range of motion and
determined an impairment rating. This detailed report included a history of clinical presentation,
physical findings, functional history, clinical studies or objective tests, analysis of findings and
appropriate impairment ratings. Dr. Weiss determined that appellant had a permanent
impairment to her left lower extremity of 15 percent. The 15 percent impairment rating was
based on the fifth edition of the A.M.A., Guides from which he concluded appellant sustained 3
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id. at § 10.404(a).

5

Id.

6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (March 1995).

3

percent impairment of the left lower extremity due to pain and 12 percent impairment of the left
lower extremity due to Grade 4/5 motor strength weakness. Prior to denying the claim, pursuant
to Office procedures, this report, along with appellant’s file, should then have been referred to
the Office medical adviser for an opinion concerning the nature and percentage of impairment.7
The Board will remand the case to the Office to undertake additional development of the
medical evidence to appropriately determine if appellant has a permanent impairment for
schedule award purposes. On remand the Office should develop the medical evidence as
appropriate to determine the extent of permanent impairment due to appellant’s accepted
employment injury under the A.M.A., Guides.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 11, 2009 is set aside, and the case remanded for
further consideration consistent with this decision.
Issued: November 10, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7

Id.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.M., Appellant
and
U.S. POSTAL SERVICE, DALLAS BULK MAIL
CENTER, Dallas, TX, Employer
__________________________________________

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)

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

Docket No. 09-1262
Issued: December 15, 2009

Case Submitted on the Record

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

JURISDICTION
On May 16, 2009 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ merit decision dated March 23, 2009 denying his request for an additional schedule
award. 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 appellant has more than four percent impairment of the left upper
extremity and nine percent impairment of the right upper extremity, for which he received a
schedule award.
FACTUAL HISTORY
This is the second time this case has been before the Board. In a decision dated
November 19, 2008, the Board found the case was not in posture for a decision as to whether
appellant was entitled to an increased schedule award due to a conflict in medical opinion
between appellant’s treating physician, Dr. Ronnie D. Shade, a Board-certified orthopedic

surgeon, who opined that he had 20 percent bilateral upper extremity impairment, and the second
opinion physician, Dr. Richard N. Brown, a Board-certified physiatrist, who opined that he had
four percent impairment of the left upper extremity and nine percent impairment of the right
upper extremity. The Board remanded the case to the Office for an impartial medical
examination to resolve the conflict. The facts and the law contained in the Board’s
November 19, 2008 decision are incorporated herein by reference.1
On remand, the Office referred appellant, together with a statement of accepted facts and
the medical record, to Dr. John A. Sklar, a Board-certified physiatrist, for an impartial medical
examination in order to resolve the conflict in medical opinion. In a February 23, 2009 report,
Dr. Sklar reviewed the entire medical record and provided a history of injury and treatment and
examination findings. Appellant had normal wrist range of motion bilaterally; flexion was to 60
degrees, with extension to 60 degrees, radial deviation to 20 degrees, and ulnar deviation to 20
degrees bilaterally. Two-point discrimination was decreased in the right hand at one centimeter
at the median and ulnar distribution. In the left hand, two-point discrimination was six
millimeters. Appellant described generalized pain in the bilateral hands and forearms, greater on
the right side than on the left and tenderness over his bilateral carpal tunnel syndrome scars.
Phalen’s test was positive bilaterally. Applying Tables 16-10 and 16-15 at pages 482 and 492 of
the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment, Dr. Sklar concluded that appellant had 16 percent right upper extremity impairment
and 2 percent left upper extremity impairment. However, he opined that these impairments were
not causally related to his accepted conditions.
Dr. Sklar found 14 percent impairment for sensory deficit in the distribution of the right
median nerve (39 percent maximum for the median nerve (Table 16-15) multiplied by 35 percent
for Grade 3 for deficient two-point discrimination (Table 16-10), resulting in 14 percent deficit
(13.65 percent rounded)). He found 2 percent impairment for sensory deficit in the distribution
of the right ulnar nerve (7 percent maximum for the ulnar nerve (Table 16-15) multiplied by 35
percent for Grade 3 deficit (Table 16-10), resulting in 2 percent deficit (2.45 percent rounded))
for a combined right upper extremity impairment of 16 percent. Noting that appellant had no
similar neurologic impairment on the left, Dr. Sklar determined that appellant was entitled to
2 percent impairment rating for pain in the left upper extremity according to page 573 of the
A.M.A., Guides.
In support of his opinion that appellant’s upper extremity impairment was not causally
related to his accepted condition, Dr. Sklar stated that electrodiagnostic testing performed after
his 2006 carpal tunnel release surgeries provided absolutely no evidence of persistent cubital or
carpal tunnel syndrome. He noted that the fact that sensation in both the median and ulnar
distribution remained unchanged was evidence for a peripheral neuropathy, rather than of
persistent carpal tunnel syndrome. Dr. Sklar opined that appellant’s ongoing complaints were
due to a combination of degenerative joint disease in the hands and peripheral neuropathy due to
diabetes, neither of which are work-related conditions. He stated that maximum medical
improvement should have occurred within three months of his second surgical procedure, which
occurred on December 1, 2005.
1

Docket No. 08-1205 (issued November 19, 2008).

2

The Office forwarded the February 23, 2009 report to an Office medical adviser for
review. Based on Dr. Sklar’s findings, on March 18, 2009 the medical adviser concluded that
appellant had 16 percent impairment of his right upper extremity and 2 percent impairment of his
left upper extremity pursuant to the A.M.A., Guides. However, he opined that the impairment
was not causally related to appellant’s accepted conditions, noting that postoperative
electrodiagnostic testing was normal. In a March 21, 2009 report, an Office medical adviser
stated that there was no probative medical evidence to support that appellant’s upper extremity
impairment was due to his job-related injury, rather than to degenerative joint disease of the
hands and diabetic neuropathy.
By decision dated March 23, 2009, the Office denied appellant’s request for an increased
schedule award, based on Dr. Sklar’s well-reasoned report. It found that the impartial medical
examiner’s report, which was entitled to special weight, was sufficient to resolve the conflict in
medical opinion, and established that appellant had no upper extremity impairment due to his
work-related injuries.
LEGAL PRECEDENT
When the Office secures an opinion from an impartial medical specialist for the purpose
of resolving a conflict in the medical evidence and the opinion from the specialist requires
clarification or elaboration, the Office has the responsibility to secure a supplemental report from
the specialist for the purpose of correcting a defect in the original report.2 It is well established
that, when a case is referred to an impartial medical specialist for the purpose of resolving a
conflict, the opinion of such specialist, if sufficiently well rationalized and based on proper
factual and medical background must be given special weight.3
The schedule award provision of the Federal Employees’ Compensation Act4 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. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.6 Effective
February 1, 2001, the Office adopted the fifth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.7
2

Roger W. Griffith, 51 ECAB 491, 505 (2000).

3

Gloria J. Godfrey, 52 ECAB 486, 489 (2001).

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id.

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(a) (August 2002).

3

ANALYSIS
In accordance with the Board’s instructions, the Office referred appellant to Dr. Sklar in
order to resolve the conflict in medical evidence as to the degree of appellant’s upper extremity
impairment. In his February 23, 2009 report, Dr. Sklar reviewed the entire medical record and
provided a history of injury and treatment, as well as detailed examination findings. He found
normal wrist range of motion bilaterally. Flexion was to 60 degrees, with extension to 60
degrees, radial deviation to 20 degrees, and ulnar deviation to 20 degrees bilaterally. Two-point
discrimination was decreased in the right hand at one centimeter at the median and ulnar
distribution. In the left hand, two-point discrimination was six millimeters. Appellant described
generalized pain in the bilateral hands and forearms, greater on the right side than on the left and
tenderness over his bilateral carpal tunnel syndrome scars. Phalen’s test was positive bilaterally.
Applying Tables 16-10 and 16-15 at pages 482 at page 492 of the fifth edition of the A.M.A.,
Guides, Dr. Sklar concluded that appellant had 16 percent right upper extremity impairment and
2 percent left upper extremity impairment. However, he opined that these impairments were not
causally related to his accepted conditions, noting that postsurgical electrodiagnostic testing
provided absolutely no evidence of persistent cubital or carpal tunnel syndrome. Dr. Sklar
explained that the fact that sensation in both the median and ulnar distribution remained
unchanged, was evidence for a peripheral neuropathy, rather than of persistent carpal tunnel
syndrome. He opined that appellant’s ongoing complaints were due to a combination of
degenerative joint disease in the hands and diabetes-related peripheral neuropathy, neither of
which are work-related conditions.8
The Board finds that Dr. Sklar’s opinion was based on a proper factual and medical
background and is entitled to special weight. Based on his review of the case record and
statement of accepted facts, physical examination and negative test results, he found that
appellant did not have any permanent impairment due to his accepted conditions. Dr. Sklar’s
well-rationalized report constitutes the special weight of the medical opinion evidence afforded
an impartial medical specialist. The Board, therefore, finds that appellant has not established
that he has more than four percent impairment of the left upper extremity and nine percent
impairment of the right upper extremity, for which he received a schedule award.
On appeal, appellant argues that Dr. Sklar’s report is insufficient to resolve the conflict in
medical opinion. For reasons stated herein, the Board finds that Dr. Sklar’s report is sufficient to
resolve the conflict between Dr. Brown and Dr. Slade, and establishes that appellant is not
entitled to an additional schedule award.

8

It is well established that, in determining the amount of the schedule award for a member of the body that
sustained an employment-related impairment, preexisting impairments are to be included in the evaluation of
permanent impairment. See Eleanor E. Smith, 53 ECAB 292 (2002); Lela M. Shaw, 51 ECAB 372 (2000).
Although appellant contends on appeal that he told Dr. Sklar that he had a history of arthritis and diabetes, there is
no medical evidence of record establishing that appellant had either a preexisting degenerative joint disease in the
hands or a preexisting diabetes-related peripheral neuropathy. Therefore, these conditions should not be included in
the evaluation of permanent impairment for schedule award purposes.

4

CONCLUSION
The Board finds that Dr. Sklar’s well-reasoned report constitutes the weight of the
medical evidence and resolves the conflict of medical opinion. As appellant has not established
that he has more than four percent impairment of the left upper extremity and nine percent
impairment of the right upper extremity for which he has received a schedule award, he has not
establish that he is entitled to an additional schedule award.
ORDER
IT IS HEREBY ORDERED THAT the March 23, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 15, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5