United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
GRAND PRAIRIE POLICE DEPARTMENT,
)
Grand Prairie, TX, Employer
)
___________________________________________ )
D.H., claiming as widow of G.H., Appellant

Appearances:
Christopher D. Livingston, Esq., for the appellant
No appearance, for the Director

Docket No. 07-314
Issued: July 18, 2007

Oral Argument June 14, 2007

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

JURISDICTION
On November 15, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated August 11, 2006 which denied her claim for death
benefits on behalf of her deceased husband pursuant to section 8191 of the Federal Employees’
Compensation Act.1 Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the case.
ISSUE
The issue is whether appellant has established entitlement to death benefits pursuant to
section 8191 of the Act.
FACTUAL HISTORY
On April 18, 2005 appellant, then a 44-year-old widow, filed a compensation claim for
death benefits under 5 U.S.C. § 8191. On June 18, 2004 decedent, a police officer employed by
the Grand Prairie Police Department, was shot and killed in the line of duty while responding to
1

5 U.S.C. §§ 8101-8193.

a call concerning a suspicious motor vehicle. Appellant asserted that, at the time of the shooting,
decedent was involved in the apprehension of an individual who was in the commission of a
crime against the United States.
An autopsy report, dated June 18, 2004, noted that decedent’s cause of death was gunshot
wounds and the manner of death was homicide. A death certificate noted that decedent died on
June 18, 2004 of gunshot wounds. Appellant submitted an incident report dated June 18, 2004
which noted that, at 9:37 a.m., officers responded to a shooting at a local Wal-Mart. The report
indicated that decedent was on location at a Wal-Mart investigating a “suspicious van”
displaying New Mexico license plates that was parked in the north east corner of the parking lot.
The vehicle was registered to Michael Probst from New Mexico and the call history stated that
the van had been running all night. When decedent contacted an unknown male inside the van,
the suspect opened fire with an unknown type of firearm. Decedent was shot in the throat and
head and the accompanying officer returned fired. The identity of the suspect was Timothy Joe
Irwin and he was found dead in the van. It was subsequently discovered that the suspect had
active warrants out for his arrest for assault/domestic violence with violent tendencies from
Florida and a protection order from Florida. A September 20, 2004 memorandum from the
Department of Justice, Bureau of Alcohol, Tobacco and Firearms, authored by Ronald E.
Williams, assistant chief counsel in Dallas, Texas, dated September 20, 2004, noted that the
suspect who shot decedent was committing a violation of the federal firearms laws on that
occasion, as he possessed the firearm in violation of 18 U.S.C. §§ 922(g)(3) and 922(g)(8). In
addition, it was determined that the suspect possessed a destructive device in violation of 26
U.S.C. § 5861(d). Mr. Williams opined that, at the time of decedent’s death, he was engaged in
the apprehension or attempted apprehension of a person who had committed and was committing
crimes against the United States.
By letter dated May 4, 2005, the Office advised appellant of the factual evidence needed
to establish her claim. The Office advised that, in order to fall within the purview of 5 U.S.C.
§ 8191, decedent must have been engaged in the attempted apprehension of a person for a crime
against the United States which required that the stimulus for the officer’s response was an actual
federal crime. The Office advised that the later discovery of a federal crime was not, in itself,
sufficient to bring the death within the coverage of 5 U.S.C. § 8191. No additional information
was received.
In an August 1, 2005 decision, the Office denied appellant’s claim for death benefits
under section 8191 of the Act. The Office indicated that the stimulus for the apprehension or
attempted apprehension of a suspect must be a federal crime or an integral part of a federal
crime. However, in this instance, the stimulus for the suspect’s apprehension was a local matter
and decedent’s injury occurred prior to the discovery of the federal offense. The Office found
that subsequent discovery of a federal crime does not bring an officer into the scope of
coverage.2 Therefore, appellant’s claim did not fall within the purview of 5 U.S.C. § 8191.
By letter dated August 11, 2005, appellant requested an oral hearing before an Office
hearing representative. The hearing was held on May 30, 2006.
2

Federal Procedure Manual, Part 4 -- Special Case Procedures, Non-Federal Law Enforcement Officers, Chapter
4.200(7)(a) (September 1994).

2

By decision dated August 11, 2006, the hearing representative affirmed the August 1,
2005 decision.
LEGAL PRECEDENT
Under the Act, an individual seeking death benefits has the burden of proof to establish
the essential elements of his or her claim, including the fact that decedent was an employee of
the United States within the meaning of the Act.3 In this case, decedent was a nonfederal police
officer.4 Appellant has the burden of establishing that decedent was an eligible officer as defined
by section 8191 of the Act.5 In pertinent part, this section provides that an eligible officer is any
person who is determined by the Secretary of Labor in her discretion to have been on any given
occasion-“(1) [A] law enforcement officer and to have been engaged on that occasion in the
apprehension or attempted apprehension of any person-(A) for the commission of a crime against the United States, or
(B) who at that time was sought by a law enforcement authority of the
United States for the commission of a crime against the United States, or
(C) who at that time was sought as a material witness in a criminal
proceeding instituted by the United States; or
“(2) a law enforcement officer and to have been engaged on that occasion in
protecting or guarding a person held for the commission of a crime against the
United States or as a material witness in connection with such a crime; or
“(3) a law enforcement officer and to have been engaged on that occasion in the
lawful prevention of, or lawful attempt to prevent, the commission of a crime
against the United States.”6
The Board has recognized that the issue of whether a local law enforcement officer was
attempting to apprehend someone for, or prevent the commission of, a federal crime, turns
initially on the question of whether, at the time the injury was sustained, the local law
enforcement officer knew that a federal crime or potential federal crime was being, or about to

3

Daniel J. Overfield, 42 ECAB 718, 721 (1991).

4

See 5 U.S.C. § 8101(1) (defining a federal employee).

5

See Lance D. Coleman, 41 ECAB 604, (1990); Morris W. Farlow, 95 ECAB 1959 (1997).

6

5 U.S.C. § 8191(1)-(3).

3

be, committed and therefore formed the intent to apprehend someone for, or to prevent the
commission of, a federal crime.7
However, knowledge of a potential federal crime at the time of injury or death does not,
alone, establish eligibility to receive benefits under section 8191.8 Appellant must also establish
that the activities in which decedent was engaged at the time of his injury constituted the
apprehension or attempted apprehension of a federal offender or the lawful prevention of, or
lawful attempt to prevent, the commission of a federal crime.9
ANALYSIS
Appellant indicated that when decedent was initially dispatched to the scene, the purpose
was for a welfare call for a suspicious motor vehicle parked in a Wal-Mart parking lot which was
located on an interstate thoroughfare. Appellant asserts that the stimulus for the dispatch
changed when the suspect fired his weapon and at that point the mission was no longer a
response to a welfare call. Appellant contends that the Congressional intent of 5 U.S.C. § 8191
was to bring local law enforcement within the coverage of the Act and therefore the statute
should be broadly construed. Appellant asserts that decedent would have found out that his
assailant was a federal fugitive but was shot before he had the chance to question him.
While the Act is remedial and should be broadly and liberally construed in accord with its
purpose, the primary rule of statutory construction is to give effect to legislative intent. In
arriving at such intent, the words in a statute should be construed according to their common
usage.10 Section 8191 does not explicitly state that an eligible officer must be aware of a federal
crime, but the legislative history supports that the local officer be purposely, not accidentally,
engaged in the federal law enforcement activity.11 The statute’s wording suggests a
contemporaneous specificity. The phrases “on that occasion” and “at that time” in the statute
indicate that to be eligible for coverage under the Act, the local officer must be apprehending or
trying to apprehend a person who is committing or is wanted for committing a federal crime at
the time of the local officer’s activity.
Certainly, the congressional sponsors of section 8191 were clear that “the crime for
which the person was being apprehended would be “controlling” in determining coverage.12
This is because the purpose of the Act was to provide compensation benefits for state and local

7

Joel Goldberg, 45 ECAB 448, 452 (1994).

8

Jean Ann Nalley (Guy David Nalley), 38 ECAB 561, 565 (1987).

9

Kenneth Dudonis, 37 ECAB 287, 293 (1986).

10

Mary C. Anderson-Paine (Robert O. Anderson), 47 ECAB 148 (1995).

11

See Lance D. Coleman, supra note 5 (listing congressional comments to this effect).

12

See James R. Coon, 43 ECAB 587, 595-97 (1992); Cong. Rec., September 11, 1967, pp. 24, 941-42;
September 14, 1967, pp. 25, 564.

4

law enforcement officers who “expose themselves to the dangers” of enforcing federal laws or
providing assistance to federal authorities.13
The Board has consistently held that coverage will not be afforded where the law
enforcement officer is engaged in a purely local police matter,14 nor is coverage appropriate if,
only after the injury or death, is it discovered that a federal crime was involved; in such a case
the initial police activity which resulted in the injury or death would have been a purely local
matter.15 Thus, the proximate cause of the injury or death was related to whatever prompted the
local officer’s actions; any subsequent link to federal offenses or potential crimes becomes too
tenuous to support coverage in keeping with the purpose of the Act.16
A review of the Board’s case law involving traffic stops demonstrates the distinguishing
characteristics of purely local police activity. The Board has denied coverage when the officer
was engaged in a local police matter and only later learned that the suspect was a possible federal
offender.17
In this case, the facts establish that decedent had no knowledge that the occupant of the
vehicle was a federal offender, potential or otherwise. On June 18, 2004 decedent was asked to
respond to the parking lot of a Wal-Mart investigating a “suspicious van” with New Mexico
license plates which had been running all night. According to the police incident report,
decedent contacted an unknown male inside the van and the suspect opened fire, with an
unknown type of firearm. Decedent was shot in the throat and head and later died at the hospital.
The identity of the suspect was later determined to be Timothy Joe Irwin who was killed by a
fellow officer. It was subsequently discovered that the suspect had active warrants out for his
arrest for assault/domestic violence from Florida, a protection order with armed and dangerous
caution from Florida, that he committed a violation of the federal firearms laws on that occasion,
as he possessed the firearm in violation of 18 U.S.C. §§ 922(g)(3) and 922(g)(8) and possessed a
13

See James David Finch, 24 ECAB 181, 185-6 (1973); Cong. Rec., September 14, 1967, p. 25, 567.

14

See James R. Coon, supra note 12 at 597-605.

15

Michael McKeon, 28 ECAB 8 (1976); Angel F. Poggi, 28 ECAB 199 (1977); Edward L. Jackson, 31 ECAB
550 (1980).
16

See Alan R. Penberg, 42 ECAB 610, 614 (1991) (finding that whether the on-going investigation might have
prevented further federal violations was too remote a circumstance to bring appellant within coverage of section
8191).
17

See Rocco A. Ranaudo, 35 ECAB 689, 691 (1984) (where a police officer approached an idling vehicle whose
driver appeared to be asleep, was injured when the man accelerated rapidly and the driver was subsequently found to
be an illegal alien; the Board denied coverage because the officer was engaged in a local police matter, a potential
traffic violation, and only later did the police department learn that the driver was a possible federal offender);
Lance D. Coleman, supra note 5 at 641 (where a highway patrol officer stopped a vehicle because of a broken tail
light and was shot; the Board held that the officer was not covered under section 8191 because only after the
incident was it discovered that the assailant was wanted for a federal crime); Morris W. Farlow, 48 ECAB
659 (1997) (where a police officer stopped a vehicle because its out-of-state license plate number was registered to a
different make of car and the police reported “suspicious activity” by the car’s occupants; the Board denied coverage
because nothing of a federal criminal nature was known to appellant as he approached the car’s driver and was
immediately shot).

5

destructive device in violation of 26 U.S.C. § 5861(d). Nothing of a federal criminal nature was
known to decedent when he approached the automobile, made contact with the occupant and was
immediately shot. Only afterward, were the potential federal violations discovered. Therefore,
the circumstances of this case do not afford coverage under section 8191 of the Act.
At the time of death, decedent was responding to a welfare call for a suspicious van that
had been parked in the Wal-Mart parking lot and was running all night, not to arrest or
apprehend the occupant. Before he could ask the suspect to identify himself, he was shot. The
activity of responding to a suspicious vehicle and approaching the driver did not constitute the
apprehension of a federal offender or prevention of a federal crime.18
CONCLUSION
The Board finds that appellant failed to establish that decedent was an eligible officer
under the purview of section 8191 of the Act.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 11, 2006 is affirmed.
Issued: July 18, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

18

See Kenneth Dudonis, supra note 9 at 294.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
DEPARTMENT OF THE TREASURY, OFFICE
OF THE SECRETARY, Washington, DC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Steven E. Brown, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1448
Issued: December 19, 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 June 16, 2017 appellant, through counsel, filed a timely appeal from a December 20,
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.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has established disability commencing January 15, 2014
causally related to her accepted August 16, 2013 employment injury.
FACTUAL HISTORY
On October 21, 2013 appellant, then a 31-year-old economist, filed a traumatic injury
claim (Form CA-1) alleging that on August 16, 2013 she sustained injuries when she fell on
stairs while entering the work site.
OWCP initially denied the claim for compensation by decision dated January 7, 2014. It
found the factual evidence did not establish that the incident occurred as alleged.
Appellant filed a claim for compensation (Form CA-7) on March 17, 2015, claiming
wage-loss compensation commencing January 15, 2014.
As to medical evidence, appellant submitted a partially illegible January 17, 2014 report
from Dr. James Weiss, a Board-certified orthopedic surgeon. Dr. Weiss wrote that appellant was
able to ascend and descend stairs without a cane, but remained “fairly disabled.”
By report dated February 3, 2014, Dr. Weiss wrote that appellant had headaches, with
discomfort in her ankles, feet, left elbow, and left wrist. He indicated that he was concerned
about myofascial problems or reflex sympathetic dystrophy (RSD) developing. Dr. Weiss
opined that appellant remained disabled from her normal work activities.
Dr. David Satinsky, a Board-certified neurologist, related in a February 12, 2014 report
that appellant continued to have headaches, and he diagnosed postconcussion syndrome. He
opined that she was fatigued to the point of disability, and is quite unable to return to work at this
time.
In a report dated February 17, 2014, Dr. Weiss related that he had received a January 16,
2014 letter from a psychiatrist, Dr. Susan Rich, who opined that appellant was disabled. He
reported that Dr. Rich opined that appellant had major depressive disorder, single episode,
because of the stress brought on by her injuries and the inability to work. Dr. Weiss also wrote
that appellant’s pain medication resulted in an inability to concentrate at work, and he had
diagnosed myofascial pain syndrome or RSD. He opined that appellant’s diagnosed conditions
were causally related to the August 16, 2013 employment incident, and that appellant could not
work in her present capacity. In a May 2, 2014 report, Dr. Weiss noted that appellant had
multiple symptoms and remained disabled.
On February 4, 2015 OWCP accepted appellant’s claim for knee sprain, bilateral ankle
sprain, right tibia contusion, and lumbar sprain.
In a report dated October 19, 2015, Dr. Kevin Crutchfield, a Board-certified neurologist,
provided a history that appellant had fallen down seven or eight stairs on August 16, 2013, with a
brief loss of consciousness and amnesia. He reported that appellant had developed a posttraumatic occipital neuritis, causing headaches. In addition, Dr. Crutchfield indicated that
2

appellant had a sensitivity to fluorescent lighting and computer screens. He opined that
appellant’s disability started on August 16, 2013, but she was able to work part time as of
July 2015.
OWCP referred appellant for second opinion examinations by Dr. Donald Heitman, a
Board-certified orthopedic surgeon, and Dr. Chandra Sharma, Board-certified in psychiatry and
neurology. In a report dated October 28, 2015, Dr. Heitman provided a history and results on
examination. He opined that appellant had a chronic lumbar strain with radiculopathy.
Dr. Heitman wrote that it could be connected to the work injury, but diagnostic studies did not
show any significant findings in the low back, and appellant did not require further treatment.
He concluded that appellant had reached maximum medical improvement with respect to the
accepted lumbar sprain, bilateral ankle sprain, and tibia contusion, with no continuing residuals.
Dr. Heitman further opined that there were no periods of total disability for these conditions.
In a report dated November 23, 2015, Dr. Sharma provided a history and results on
examination. She opined that there were no neurological injuries sustained from the employment
injury and no further treatment was warranted. Dr. Sharma wrote that the sensory changes
reported in the feet and left hand were causally related, but “I do not see those changes affecting
the neurological function.” She opined that appellant could work without restriction.
By decision dated December 11, 2015, OWCP denied the claim for compensation as of
January 15, 2014. It found the medical evidence of record did not establish an employmentrelated disability as alleged.
On June 30, 2016 appellant, through counsel, requested reconsideration. Counsel
submitted a May 12, 2016 report from Dr. Weiss, who indicated that he had reviewed medical
records, including Dr. Heitman’s report. Dr. Weiss opined that he disagreed with the
conclusions of the second opinion examiner. He reported that diagnostic studies would be
negative with RSD, and he found that appellant did have objective findings and needed
continuing treatment. Dr. Weiss opined that appellant was totally disabled from August 16, 2013
to January 17, 2014, and partially disabled from January 17 to June 17, 2014 due to her
employment injuries.
Counsel also submitted a June 29, 2016 report from Dr. Crutchfield. Dr. Crutchfield
reiterated his opinion that the August 16, 2013 fall had resulted in post-traumatic occipital
neuritis, which had induced chronic, secondary headaches. He opined that appellant could not
have performed office work due to flexing of the neck and photosensitivity. Dr. Crutchfield
indicated that occipital nerve surgery had been recommended.
By decision dated December 20, 2016, OWCP reviewed the merits of the claim, but
denied modification. It found the weight of the evidence was represented by the second opinion
physicians.

3

LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.4 The term
disability is defined as the incapacity because of an employment injury to earn the wages the
employee was receiving at the time of the injury, i.e., a physical impairment resulting in loss of
wages.5
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the
reliable, probative, and substantial medical evidence.6 To establish causal relationship between
the disability claimed and the employment injury, an employee must submit rationalized medical
evidence, based on a complete factual and medical background, supporting such a causal
relationship.7 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.8 The opinion of the physician
must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship.9
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.10
ANALYSIS
OWCP accepted that appellant fell on stairs while in the performance of duty on
August 16, 2013. The accepted conditions are knee sprain, bilateral ankle sprains, right tibia
contusion, and lumbar sprain.
Appellant has claimed compensation commencing
January 15, 2014.
The Board finds that appellant has not established that she was disabled from work as of
January 15, 2014 causally related to her accepted August 16, 2013 employment injury.
3

Supra note 2.

4

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

5

20 C.F.R. § 10.5(f); see, e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (where appellant had an injury but no
loss of wage-earning capacity).
6

See Fereidoon Kharabi, 52 ECAB 291 (2001).

7

Kathryn E. DeMarsh, 56 ECAB 677 (2005).

8

Elizabeth Stanislaw, 49 ECAB 540 (1998).

9

Leslie C. Moore, 52 ECAB 132 (2000).

10

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

4

The Board notes initially that none of appellant’s treating physicians offered a specific
medical opinion addressing whether appellant’s disability from work as of January 15, 2014 was
causally related to the accepted conditions.11 As appellant did not provide medical evidence
containing a rationalized opinion supporting that she could not work beginning January 15, 2014
due to her accepted conditions, she did not meet her burden of proof.
Appellant’s treating physicians, Dr. Weiss, Dr. Santinsky, and Dr. Crutchfield, opined
that appellant was disabled. However, Dr. Weiss diagnosed RSD, Dr. Satinsky diagnosed postconcussion syndrome, and Dr. Crutchfield diagnosed an occipital neuritis. Where an employee
claims that a condition not accepted or approved by OWCP was due to an employment injury, he
or she bears the burden of proof to establish that the condition is causally related to the
employment injury.12 The medical opinion must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition
and the specific employment incident.13 As appellant’s treating physicians did not provide a
rationalized medical opinion as to how the accepted employment injury caused the additional
diagnosed conditions, their opinions fail to establish causal relationship between any disability
from the diagnosed conditions and the accepted employment injury.14
OWCP’s second opinion physician, Dr. Heitman, found no additional employmentrelated conditions and no disability. Dr. Sharma, the second opinion neurologist, found no
employment-related neurological condition. The issue of whether appellant’s disability is
causally related to the accepted employment injury is a medical question which must be
established on the basis of a complete and accurate factual and medical history.15 Both second
opinion physicians noted appellant’s history of injury and results from her physical
examinations. They related that the diagnostic studies did not show significant findings related
to the accepted injury. Therefore, they both concluded that appellant had no disability from
work due to the accepted injury. As their opinions were based on a proper factual and medical
history, and were supported by medical rationale, they constitute the weight of the medical
evidence.16
The Board therefore finds that because the medical evidence of record does not estabish
disabilty as of January 15, 2014 causally related to the August 16, 2013 accepted employment
injury, appellant has not met her burden of proof.

11

See L.J., Docket No. 17-1048 (issued October 27, 2017).

12

See D.H., Docket No. 17-0609 (issued October 5, 2017).

13

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

14

See L.J., Docket No. 17-1048 (issued October 27, 2017).

15

See Sandra D. Pruitt, 57 ECAB 126 (2006).

16

Supra note 14.

5

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish disability as of
January 15, 2014 causally related to her accepted August 16, 2013 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 20, 2016 is affirmed.
Issued: December 19, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE,
)
McGUIRE AIR FORCE BASE, Burlington, NJ,
)
Employer
)
___________________________________________ )
F.P., Appellant

Docket No. 07-2315
Issued: April 18, 2008

Appearances:

Case Submitted on the Record

Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

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

JURISDICTION
On September 11, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated August 31, 2007. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether the Office utilized the correct pay rate in issuing appellant’s
schedule award payment.
FACTUAL HISTORY
On December 9, 1998 appellant, then a 58-year-old civil engineering technician, filed a
traumatic injury claim (Form CA-1) alleging that on December 3, 1998 he fell down stairs at
work and injured his left leg. The Office accepted his claim for left knee strain and tearing of the
posterior horn and body of the medial meniscus. The Office authorized arthroscopic surgery
which was performed on February 1, 1999. Appellant stopped work on December 3, 1998 and

returned to work four hours per day, limited duty on March 15, 1999, and returned to full-time
limited-duty work on April 5, 1999. The CA-1 form noted that appellant worked from 7:30 a.m.
until 4:15 p.m., five days a week, with Saturday and Sunday off. Appellant’s pay rate on the
date of injury, December 3, 1998, was $38,077.00 per year. He retired effective July 1, 2005.
Appellant submitted reports from Dr. James P. Taitsman, a Board-certified orthopedist,
dated December 8, 1998, who noted that appellant injured his left knee at work when he fell
down steps. Dr. Taitsman diagnosed strain of the left knee and possible meniscal tear. On
January 7, 1999 he noted that a magnetic resonance imaging (MRI) scan of the left knee revealed
a posterior horn tear of the medial meniscus and degenerative changes and he recommended
arthroscopic surgery. On February 1, 1999 Dr. Taitsman performed arthroscopic surgery of the
left knee with medial and lateral meniscectomy and excision of the plica; he diagnosed medial
and lateral meniscal tear and degenerative joint disease of the left knee plica. In reports dated
February 4 and May 14, 1999, he noted that appellant was progressing well postoperatively with
good range of motion of the left knee.
On September 29, 2006 appellant claimed a schedule award. He submitted a June 5,
2006 report from Dr. David Weiss, an osteopath, who noted that appellant reached maximum
medical improvement on June 5, 2006. Dr. Weiss noted that examination of the left knee
revealed gastrocnemius circumference measuring 41.5 centimeters on the right and 43
centimeters on the left and quadriceps circumference measuring 53.5 centimeters on the right and
52 centimeters on the left. He diagnosed post-traumatic internal derangement to the left knee
with tear of the medial and lateral meniscus, post-traumatic chondromalacia patella to the left
knee, aggravation of preexisting left knee pathology, post-traumatic osteoarthritis to the left knee
with medial joint narrowing, status post arthroscopic surgery with partial medical meniscectomy
to the left knee, status post lateral meniscus debridement to the left knee, status post lateral
meniscus debridement of the left knee, status post chondroplasty to the left knee. Dr. Weiss
noted that based on the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment,1 (A.M.A., Guides) that appellant would receive 8 percent
impairment for left thigh atrophy,2 8 percent impairment for left calf atrophy3 and a 3 percent for
pain-related impairment,4 for a total left leg impairment of 18 percent.
In a report dated November 25, 2006, an Office medical adviser opined that appellant had
15 percent impairment of the left leg under the A.M.A., Guides. The medical adviser opined that
appellant had impairment of 6 percent for left thigh atrophy,5 6 percent for left calf atrophy6 and

1

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

2

Id. at 530, Table 17-6.

3

Id.

4

Id. at 574, Figure 18-1.

5

Id. at 530, Table 17-6.

6

Id.

2

3 percent for pain,7 for a total left lower extremity impairment of 15 percent. The medical
adviser noted that appellant reached maximum medical improvement on June 5, 2006.
In correspondence dated December 14, 19, 2006 and January 17, 2007, appellant asserted
that the proper pay rate for an occupational disease claim was the date of the last exposure to the
employment factors which caused or aggravated the claimed condition. He submitted a
notification of personnel action indicating that he retired on July 1, 2005 and asserted that his
weekly pay rate for schedule award purposes should be based on his pay rate at the time of his
retirement, which was the date of last exposure, rather than the original date of injury of
December 3, 1998. Appellant submitted a January 4, 1998 notification of personnel action
which indicated that his salary was $38,077.00 per year. The notification further indicated that a
pay adjustment was granted effective January 4, 1998 and appellant’s salary increased to
$39,096.00 per year or $751.85 per week. Also submitted was a notification of personnel action
dated July 1, 2005, which noted that appellant voluntarily retired effective July 1, 2005 and his
salary was $56,706.00 per year.
The Office determined that a conflict of medical opinion existed between Dr. Weiss,
appellant’s treating physician, and the Office medical adviser, regarding the degree of permanent
partial impairment of the left lower extremity due to his work-related injury.
To resolve the conflict, on April 13, 2007, the Office referred appellant to a referee
physician, Dr. Ronald L. Gerson, a Board-certified orthopedic surgeon. In a June 12, 2007
report, Dr. Gerson noted a history of appellant’s work-related injury and diagnosed internal
derangement of the left knee with tears of the menisci and aggravation of the underlying arthritic
condition and opined that this diagnosis was causally related to the December 3, 1998 work
injury. He provided several methods for calculating appellant’s schedule award; however, the
range of motion deficit of the left knee provided the greatest impairment rating. Dr. Gerson
noted findings upon physical examination on the left of flexion contracture of 10 degrees for 20
percent impairment and 5 degrees of varus deformity for 20 percent impairment. Dr. Gerson
opined that using the Combined Values Chart, page 604 of the A.M.A. Guides, appellant would
be entitled to a 36 percent impairment of the left lower extremity.
In a report dated July 20, 2007, an Office medical adviser reviewed Dr. Gerson’s report
and calculated that appellant sustained 40 percent permanent impairment of the left leg. He
advised that he based appellant’s impairment rating on the loss of range of motion because this
calculation produced the greatest impairment rating. The Office medical adviser calculated
range of motion for flexion of 125 degrees for a 0 percent impairment, flexion contracture of 10
degrees for a 20 percent impairment, and 5 degrees of varus deformity for a 20 percent
impairment. He opined that Dr. Gerson improperly combined these figures using the Combined
Values Chart as the A.M.A. Guides instruct the examiner to add these figures.8

7

Id. at 574, Figure 18-1.

8

See id. at 533, 17.2f, Range of Motion.

3

In an August 31, 2007 decision, the Office granted appellant a schedule award for 40
percent permanent impairment of the left leg. The period of the award was from May 14, 1999
to July 28, 2001 for a total of 124.80 weeks of compensation based on his weekly rate of pay of
$563.89 as of December 3, 1998, the date of injury and the date disability commenced. The
Office noted that the weekly pay rate was calculated as $751.85 per week multiplied by the
augmented, three-quarters, compensation rate for a weekly pay rate of $563.89.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act9 provides that compensation
for a schedule award shall be based on the employee’s monthly pay.10 Section 8105(a) of the
Act provides: If the disability is total, the United States shall pay the employee during the
disability monthly monetary compensation equal to 66 2/3 percent of his monthly pay, which is
known as his basic compensation for total disability.11
Section 8101(4) of the Act defines monthly pay for purposes of computing compensation
benefits as follows: The monthly pay at the time of injury or the monthly pay at the time
disability begins or the monthly pay at the time compensable disability recurs, if the recurrence
begins more than six months after the injured employee resumes regular full-time employment
with the United States, whichever is greater.12 The Board has held that rate of pay for schedule
award purposes is the highest rate which satisfies the terms of section 8101(4).13 Office
regulations provide that a recurrence of disability means an inability to work after an employee
has returned to work, caused by a spontaneous change in a medical condition resulting from a
previous injury or illness without a new or intervening injury.14
The Board has held that where an injury is sustained over a period of time, the date of
injury is the date of last exposure to those work factors causing injury.15 In schedule award
claims, the issue is the permanent impairment sustained resulting from such injury. Under the
9

5 U.S.C. §§ 8101-8193; see also R.S., 58 ECAB ___ (Docket No. 06-1346, issued February 16, 2007).

10

5 U.S.C. § 8107.

11

5 U.S.C. § 8105(a). Section 8110(b) of the Act provides that total disability compensation will equal three
fourths of an employee’s monthly pay when the employee has one or more dependents. 5 U.S.C. § 8110(b).
12

5 U.S.C. § 8101(4). In an occupational disease claim, the date of injury is the date of last exposure to the
employment factors which caused or aggravated the claimed condition. Patricia K. Cummings, 53 ECAB 623,
626 (2002).
13

Robert A. Flint, 57 ECAB ___ (Docket No. 05-1106, issued February 7, 2006).

14

20 C.F.R. § 10.5(x).

15

20 C.F.R. § 10.5 defines the terms “traumatic injury” and “occupational disease or illness.” “Traumatic injury”
is defined by section 10.5(ee) as “a condition of the body caused by a specific event or incident, or series of events
or incidents, within a single workday or shift. Such condition must be caused by external force including stress or
strain which is identifiable as to time and place of occurrence and member or function of the body affected.”
“Occupational disease or illness” is defined by 20 C.F.R. § 10.5(q) as “a condition produced by the work
environment over a period longer than a single workday or shift.”

4

Act, the possibility of a future injury does not constitute an injury.16 In schedule award claims
where the injury is sustained over a period of time, the Board has recognized that the claim
covers all exposures which occurred up to the filing of the claim.17
The Office’s implementing regulations18 provide that the pay rate for compensation
purposes means the employee’s pay, as determined under 5 U.S.C. § 8114.19
Section 8114(d) of the Act20 provides:
“Average annual earnings are determined as follows:
(1) If the employee worked in the employment in which he was employed
at the time of his injury during substantially the whole year immediately
preceding the injury and the employment was in a position for which an
annual rate of pay -(A) was fixed, the average annual earnings are the annual rate of
pay.”
ANALYSIS
The Office accepted appellant’s traumatic injury claim for a left knee strain and tearing of
the posterior horn and body of the medical meniscus which occurred on December 3, 1998 when
appellant fell down stairs at work.21 Appellant sustained a traumatic injury and stopped work on
December 3, 1998 and returned to work on March 15, 1999. There is no evidence that appellant
sustained a recurrence of disability. Appellant’s pay rate on the date of injury, December 3,
1998, was $39,096.00 per year or $751.85 per week. He received a fixed annual rate of pay, for
a position that provided employment for the whole year preceding the injury.22 The Office
calculated his pay rate on August 31, 2007 as $563.89 per week based on the date of injury
which is the same as the date disability began, December 3, 1998.
The Board finds that appellant’s pay rate for schedule award purposes is no more than
$563.89, his pay rate at the time of his December 3, 1998 work injury and which is also the date
disability began. Pursuant to section 8101(4) of the Act appellant’s monthly pay for purposes of
16

Id.

17

See Patricia K. Cummings, supra note 12.

18

20 C.F.R. § 10.5(s).

19

5 U.S.C. § 8114.

20

Id.

21

The Board notes that appellant did not dispute the nature and degree of permanent impairment of the left lower
extremity and therefore it was not addressed in this decision.
22

5 U.S.C. § 8114.

5

computing compensation benefits is the monthly pay at the time of injury or the monthly pay at
the time disability begins or the monthly pay at the time compensable disability recurs, if the
recurrence begins more than six months after the injured employee resumes regular full-time
employment, whichever is greater.23 In this instance, appellant’s claim was accepted for a
traumatic injury which occurred on December 3, 1998 and he stopped work on December 3,
1998 and did not file a recurrence of disability. The Office calculated his pay rate on August 31,
2007 as $563.89 per week ($751.85 x .75 augmented compensation rate = $563.89) based on
information on the CA-1 provided by the employing establishment and a notification of
personnel action dated January 4, 1998. The Office based appellant’s August 31, 2007 schedule
award on the December 3, 1998 date of injury pay rate which was also the date disability
commenced.24 The Board finds that the Office properly calculated appellant’s pay rate for the
purposes of his August 31, 2007 schedule award for a left knee strain.
Appellant contended that since his claim was an occupational disease, the Office should
have based the schedule award on his pay rate as of his last date of exposure to the employment
factors which caused or aggravated his condition, which would be his date of retirement,
July 1, 2005. He asserted that consistent with the holding in Patricia K. Cummings,25 the “date
of injury” should be his retirement (date of last exposure).
The Board has noted in occupational disease cases such as Patricia K. Cummings,26
Sherron A. Roberts27 and Jack R. Lindgren,28 where an injury is sustained over a period of time,
the date of injury is the date of last exposure to those work factors causing injury or if there is
continuing exposure, the date of injury is the date of the medical report upon which the Office
relies in determining permanent impairment.29 However, in this case, there is no evidence that
appellant sustained an injury over a period of time or that there was continuing exposure; rather,
the evidence supports that appellant sustained a traumatic injury on December 3, 1998, when he
fell down stairs. Therefore, the determination of the date of last exposure or continuing exposure
as set forth in Patricia K. Cummings would not be applicable in appellant’s case. The Board
finds that the Office properly calculated appellant’s pay rate on August 31, 2007 as $563.89 per
23

5 U.S.C. § 8101(4). In an occupational disease claim, the date of injury is the date of last exposure to the
employment factors which caused or aggravated the claimed condition.
24

The Board notes that although the CA-1 notes that appellant’s injury occurred on December 3, 1998 and he
stopped work on December 7, 1998, the factual evidence supports that appellant stopped work on December 3, 1998
and sought medical attention that day.
25

Supra note 12.

26

Id.

27

47 ECAB 617 (1996).

28

35 ECAB 676 (1984).

29

See also R.S., supra note 9; Patricia K. Cummings, supra note 12; Barbara A. Dunnavant, 48 ECAB 517
(1997) (where the Board found that the date of injury is the date of last exposure to work factors causing the injury
or if there is continuing exposure, the date of injury is the date of the medical report upon which the Office relies in
determining permanent impairment).

6

week based on the date of injury which is the same as the date disability began,
December 3, 1998.
On appeal, appellant asserts that he is entitled to cost-of-living increases up to the date
following the approval of his schedule award in August 2007. The Board finds that the Office
properly determined that the compensation rate should not be adjusted for cost-of-living
increases.
The Act provides for cost-of-living adjustments.30 Section 8146a(a) provides that
compensation payable on account of disability or death which occurred more than one year
before the effective date of a cost-of-living increase shall be increased by the percentage of the
increase.31 On August 31, 2007 the Office granted appellant a schedule award for 40 percent
permanent impairment of the left lower extremity and the period of the award was from May 14,
1999 to July 28, 2001 for a total of 124.80 weeks of compensation based on his weekly pay rate
of $563.89 as of December 3, 1998. In this case, appellant was not entitled to cost-of-living
increases in 1998 and succeeding years through 2007 because the evidence does not show that he
had injury-related disability for more than a year prior to the effective date of the respective
increase for those years.32
CONCLUSION
The Board finds that the Office properly calculated appellant’s pay rate for the purposes
of his schedule award as $563.89.

30

5 U.S.C. § 8146(a); see 20 C.F.R. § 10.420(b).

31

Id.

32

See Anthony M. Kowal, 49 ECAB 222 (1997); David M. Chillemi, Docket No. 95-2546 (issued
August 14, 1997). See also Thomas Donaghue, 39 ECAB 336 (1988) (the legislative history of section 8146a(a)
makes it clear that the intent was to have cost-of-living increases apply only in situations where an employee has
already been receiving compensation for more than one year prior to the effective date of the increase).

7

ORDER
IT IS HEREBY ORDERED THAT the August 31, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 18, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.M., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Mather, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-2304
Issued: May 21, 2009

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 August 20, 2008 appellant filed a timely appeal from an August 23, 2007 merit
decision of the Office of Workers’ Compensation Programs denying his traumatic injury claim.
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 sustained an injury on November 19, 2006 in the
performance of duty.
FACTUAL HISTORY
On November 19, 2006 appellant, then a 48-year-old air traffic control specialist, filed a
claim alleging that at 3:40 p.m. on that date he sustained a traumatic injury to the left side of his

neck, the lower left back and to an upper molar when the left arm rest of his chair dropped about
six to eight inches.1 He stopped work on November 19, 2006.
On December 15, 2006 the Office requested that appellant submit additional factual and
medical information in support of his claim. In a statement dated December 20, 2006, he
maintained that the Office was questioning his integrity.
In an authorization for examination and/or treatment (Form CA-16) dated November 20,
2006, a physician’s assistant, John Littleton, diagnosed low back and cervical strain. He listed
the history of injury as the left arm rest of a chair collapsing. In an undated form report received
December 18, 2006, Mr. Littleton listed a history of injury as a chair collapsing under appellant
and diagnosed low back pain with radiculopathy. He checked “yes” that the condition was due
to an employment activity and found him disabled from November 20, 2006 to January 1, 2007.
In a November 22, 2006 form report, Dr. Richard Nakabayaski, a dentist, noted that a
“chair gave way with a jolt” and resulted in a break of appellant’s left upper molar. He
diagnosed a broken cusp of the tooth and checked “yes” that the condition was caused or
aggravated by the described employment activity.
On December 22, 2006 the Office noted that appellant’s December 4, 2006 claim form
contained a portion of a witness’ statement. It requested that the employing establishment
forward the complete statement. On December 29, 2006 the employing establishment provided a
November 20, 2006 statement from Michael J. Lemon, who stated:
“I was working as the [o]perations [s]upervisor, sitting approximately [four] feet
from [appellant], facing the same direction. I heard the sound of the armrest on
the chair he was using as it slid down to the bottom position. I looked in his
direction. I noticed his hand on the armrest, his fingers at the control that allows
the armrest to move. [Appellant] had a normal expression on his face. I raised
my eyebrows as if surprised. [Appellant] looked at me, smiled and said ‘I’m
okay, I’m okay.’ I picked up a [tele]phone, pushed a button (that would indicate
that I [am] recording the statement) and said ‘say that again.’ [Appellant] again
smiled and waved his hand and shook his head ‘no.’ I set down the [tele]phone,
releasing the button and I said are you sure you [are] okay? [Appellant] assured
me he was. He exhibited absolutely no symptoms of any pain, nor did he for the
remainder of the time he was at the flight data position, (approximately [15] more
minutes). [Appellant] said nothing to indicate that any injury had occurred
whatsoever.”
In a record of conversation dated November 19, 2006, Kelley Althouse, appellant’s
supervisor, related that appellant called her at 5:50 p.m. on that date and stated that the arm of his
chair had “malfunctioned and dropped six to eight inches jarring his arm and his face breaking a
molar.” She noted that she had previously encountered him in the break room and he did not
indicate that he was injured. Ms. Althouse provided him with a claim form (Form CA-1).
1

The claim form listed the date of injury as November 18, 2006. Appellant subsequently clarified at the hearing
that the date of his injury was November 19, 2006 rather than November 18, 2006.

2

In a statement dated December 14, 2006, Mr. Lemon again described the events of
November 19, 2006. He noted that after he heard the armrest of the chair going to the bottom
position he immediately turned to appellant, who was erect and smiling. Mr. Lemon sated, “The
thought ran through my mind that he was, incredulously, going to say that what had just
happened would result in a repeat of the chair incident a few weeks earlier.” Instead, appellant
said that he was “okay.” Mr. Lemon related that, at 4:50 p.m. on November 19, 2006, he met
appellant and he did not indicate that he was uncomfortable. At around 5:44 p.m. on that date
appellant told Mr. Lemon that he thought that he chipped a tooth when the arm of the chair went
down. He did not mention that his back or neck hurt.
In a report dated December 27, 2006, Dr. Herbert Getman, a general practitioner,
discussed his treatment of appellant on November 20, 2006. He stated, “[Appellant] apparently
went to sit in a chair and work and the armrest collapsed. This twisted his body with him falling
to the side approximately 8 [to] 10 inches before he caught himself. He never fell completely to
the floor. The wrenching action of the fall caused him to injure his back.” Dr. Getman
diagnosed an annular defect at L5-S1 probably due to his fall and the twisting action.
By letter dated January 8, 2007, the employing establishment controverted the claim,
noting that appellant informed Mr. Lemon immediately after the incident that he was uninjured
and that he did not report a broken tooth to Ms. Althouse when he initially spoke with her on
November 19, 2006. The employing establishment asserted that a broken tooth “would be an
immediately noticeable condition….”
By decision dated January 16, 2007, the Office denied appellant’s claim on the grounds
that he did not establish that the incident occurred at the time, place and in the manner alleged. It
noted that appellant had filed a previous claim, assigned file number xxxxxx579 alleging that he
sustained an injury on September 26, 2006 when the seat bottom of his chair malfunctioned
when he was adjusting it and threw him forward. The Office found that he had not sufficiently
responded to its initial development letter.
On January 23, 2007 appellant requested an oral hearing.2
January 31, 2007, he stated:

In a statement received

“I was working the Flight Data position. Both of my elbows and forearm were
resting on the arm rests of my chair facing forward. As I was turning to my left to
answer someone’s question I was evidently applying more pressure to the left arm
rest while at the same time I picked up my right hand and placed it on the right
arm rest to complete my turn. As I was turning to the left the left arm rest broke
and dropped approximately 8-12 inches with what felt like my entire weight
falling over and suddenly snapping to an abrupt stop. The left armrest would not
go back up after it broke.”

2

In a report dated December 27, 2006, received by the Office on January 31, 2007, Dr. Getman, again listed the
history of injury as an armrest collapsing, causing appellant to fall to the left side about 8 to 10 inches. He
diagnosed a tear at L5-S1 probably due to the sudden fall.

3

At the telephonic hearing, held on June 11, 2007, appellant’s attorney clarified that the
date of injury was actually November 19, 2006, as shown by the statements of both appellant and
the employing establishment. Appellant related that he had one prior injury at work when a chair
that he was sitting on malfunctioned on September 26, 2006. He returned to work on
November 11, 2006. On November 19, 2006 appellant experienced a second injury when the left
armrest of his chair suddenly collapsed about 8 to 10 inches. He felt an immediate burning pain
in his lower back. Appellant related that he could not believe that it had happened and felt
embarrassed by the incident. Mr. Lemon asked him to state that he was uninjured into a
recording device. Appellant told a coworker, Craig Zaias, that he had back pain and that it was
“just unbelievable that this was happening again….” He did not have pain in his mouth at the
time of the incident but did feel “jaggedness” in his mouth. During a break appellant asked
Tom Gallagher to check his tooth and Mr. Gallagher stated that it looked like he had a chipped
tooth. He told Mr. Lemon that he believed that he had broken a tooth about 40 minutes after the
event. Appellant sought medical treatment the following day. He did not recall telling
Mr. Lemon that he was okay after the incident. Appellant stated, “I don’t recall saying anything
to that effect at all. I just couldn’t believe it had happened. I mean, I had just gotten back to
work, it seemed like a week, maybe a week and a half. I was in my second week back to work
when this happened. And the fact that they knew the chair was in that area just -- it was a lot of
emotional things to think about.” He denied that his hand was on the controls of the left chair.
Appellant stated that he was hanging on to the armrest on the left trying to stabilize himself. He
did not immediately tell Mr. Lemon about the pain in his back because he was hoping that it
would subside and because he could not believe that it had happened again after he just got back
to work. Appellant denied speaking with Ms. Althouse in the break room.
In a report dated May 28, 2007, received by the Office on June 14, 2007,
Dr. Nakabayaski provided a history of injury as the arm of a chair giving way and bringing
appellant’s teeth together such that he broke a tooth.
On July 2, 2007 Mr. Lemon again related that appellant did not mention that he was in
pain after the injury and continued working for another hour and a half. Appellant also did not
mention any pain or injury to a body part other than his tooth on the date of the alleged incident.
On July 6, 2007 appellant provided an affidavit stating that on November 23,
2006 John E. Bronzo informed him that he had inspected the chair he used on November 19,
2006 and that “the left armrest was indeed broken and locked in the down position.” Michael
Witte, a coworker, noted that there were numerous broken chairs in the control room.
On July 9, 2007 Donald H. Kirby, a manager, related that appellant’s chair was not
broken but that if the “armrest is not properly engaged the armrest will release to the bottom
position when very little pressure is applied. If the armrest was at the highest height setting and
released completely, the armrest would drop [three] to [four] inches.” On July 10, 2007
Dale Durbin, a program consultant, related that Mr. Lemon’s version of the events on
November 19, 2006 was the more plausible and maintained that the medical evidence provided a
varied history of injury.

4

In a statement dated July 24, 2007, Mr. Gallagher related that on November 19, 2007
appellant asked him to look at his tooth. He stated, “I looked at his mouth and it looked as if the
tooth was wrong.”
On July 25, 2007 appellant’s attorney pointed out discrepancies in Mr. Lemon’s versions
of events and maintained that he provided a consistent history of injury to his physicians.
By decision dated August 23, 2007, the hearing representative affirmed the January 16,
2007 decision after finding that appellant did not establish that the event occurred at the time,
place and in the manner alleged.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing 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 the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.4 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.5
To determine whether an employee sustained a traumatic injury in the performance of
duty, the Office must determine whether “fact of injury” is established. First, an employee has
the burden of demonstrating the occurrence of an injury at the time, place and in the manner
alleged, by a preponderance of the reliable, probative and substantial evidence.6 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.7 An employee may establish that the employment
incident occurred as alleged, but fail to show that his or her disability and/or condition relates to
the employment incident.8
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee

3

5 U.S.C. §§ 8101-8193.

4

Anthony P. Silva, 55 ECAB 179 (2003).

5

See Ellen L. Noble, 55 ECAB 530 (2004).

6

Delphyne L. Glover, 51 ECAB 146 (1999).

7

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

8

Id.

5

actually experienced the employment incident which is alleged to have occurred.9 An injury
does not have to be confirmed by eyewitnesses in order to establish that an employee sustained
an injury in the performance of duty, but the employee’s statements must be consistent with the
surrounding facts and circumstances and his or her subsequent course of action.10 An employee
has not met his or her burden of proof of establishing the occurrence of an injury when there are
such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.11
Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury and failure to obtain medical
treatment may, if otherwise unexplained, cast doubt on an employee’s statements in determining
whether a prima facie case has been established.12 However, an employee’s statement regarding
the occurrence of an employment incident is of great probative force and will stand unless
refuted by strong or persuasive evidence.13
ANALYSIS
The Office denied appellant’s claim based on its finding that he did not establish the
occurrence of the November 19, 2006 work incident. The employing establishment controverted
the claim based on Mr. Lemon’s assertion that appellant told him that he was uninjured after the
incident and because he did not immediately report his broken tooth to his supervisor. The
employing establishment also noted that the medical evidence contained discrepancies in the
history of injury. The Board finds, however, that the evidence is sufficient to establish that
appellant experienced the incident at the time, place and in the manner alleged. Appellant
related that he injured his left neck, upper back and an upper molar when the left armrest of his
chair suddenly dropped. He provided a statement from a witness, Mr. Lemon, who confirmed
that he heard appellant’s arm rest drop to the bottom position. Mr. Lemon related that appellant
told him that he was “okay” after the armrest dropped. Appellant maintained at the hearing that
he did not recall telling Mr. Lemon that he was “okay” and explained that he was embarrassed
and stunned by the incident. The mere fact that there is some question about what he said
immediately after the armrest dropped would not create such an inconsistency as to cast doubt on
the validity of the claim.14 Appellant informed Mr. Lemon later that day that he believed that he
had broken his tooth from the sudden drop of the armrest. He also related the incident to his
supervisor on that date and filed a claim for a traumatic injury indicating that he had injured his
neck, the left lower back and an upper tooth. While appellant did not immediately notify his
supervisor of the incident, this does not render the claim factually deficient. He sought medical
treatment for his back the following day and for his tooth on November 22, 2006. The medical

9

See Louise F. Garnett, 47 ECAB 639 (1996).

10

See Betty J. Smith, 54 ECAB 174 (2002).

11

Id.

12

Linda S. Christian, 46 ECAB 598 (1995).

13

Gregory J. Reser, 57 ECAB 277 (2005).

14

See generally Betty J. Smith, supra note 10.

6

evidence contemporaneous to the event contains a generally consistent history of injury as the
left armrest of his chair collapsing or his chair giving way “with a jolt.”
An employee’s statement alleging that an injury occurred at a given time and in a given
manner is of great probative value and will stand unless refuted by strong and persuasive
evidence.15 Not only is there no strong evidence contradicting appellant’s statement as to how
the incident occurred but there is considerable evidence supporting the statement. Thus, under
the circumstances of this case, the Board finds that appellant’s allegations have not been refuted
by strong or persuasive evidence and there are no inconsistencies sufficient to cast serious doubt
on appellant’s version of the employment incident. Consequently, appellant has established the
occurrence of the November 19, 2006 employment incident.16
As the Office denied appellant’s claim on the grounds that he did not establish the
occurrence of an employment incident on November 19, 2006, it did not consider the medical
evidence. The case will be remanded to the Office for evaluation of the medical evidence to
determine whether appellant sustained a medical condition or disability due to the accepted
November 19, 2006 work incident. After such development as it deems necessary, the Office
should issue an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision on the issue of whether
appellant sustained an injury on November 19, 2006 in the performance of duty.

15

Allen C. Hundley, 53 ECAB 551 (2002).

16

Mr. Kirby, a manager with the employing establishment, indicated that it took little pressure to release the
armrest to the bottom if not correctly engaged. He further indicated that the armrest would fall three to four inches.
Mr. Kirby’s statement does not establish that appellant’s armrest did not suddenly fall as he alleged but instead
supports that it did not fall as far as he described.

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 23, 2007 is set aside and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: May 21, 2009
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Philadelphia, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-255
Issued: November 29, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 3, 2009 appellant filed a timely appeal from an August 6, 2009 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award determination in this
case.
ISSUE
The issue is whether appellant has more than a three percent impairment of the left upper
extremity for which she received a schedule award and whether she has any ratable impairment
of the right upper extremity or either lower extremity.
On appeal, appellant’s attorney asserts that a conflict in medical opinion exists between
her attending physician and the Office medical adviser.

FACTUAL HISTORY
On May 16, 2003 appellant, then a 51-year-old nurse case manager, was struck by a van
while crossing the street to attend a meeting at the employing establishment nursing home. She
stopped work. The Office accepted her claim for a concussion without loss of consciousness,
left shoulder adhesive capsulitis, left shoulder disorder of the bursa and tendons, other
derangements of the left shoulder, cervical strain, cervical herniated disc and lumbar strain.
Appellant was placed on the periodic compensation rolls. On March 8, 2006 Dr. Todd Schwartz,
a Board-certified osteopath practicing orthopedic surgery, performed left shoulder arthroscopy
with subacromial decompression and debridement of a tear of the posterosuperior labrum.1
Appellant was referred for vocational rehabilitation and elected to retire effective June 20, 2007.2
On August 25, 2008 appellant filed a schedule award claim and submitted a May 29,
2008 report from Dr. Nicholas Diamond, an osteopath, who reviewed the history of injury,
medical records and noted appellant’s complaint of neck, upper and lower extremity pain with
numbness and weakness. Dr. Diamond advised that she could no longer perform activities of
daily living including household chores and had difficulty with self-care. On physical
examination, he noted tenderness and decreased range of motion in the cervical spine, both
shoulders and lumbar spine. Dr. Diamond provided results of grip and pinch key testing and
advised that manual muscle strength of the upper and lower extremities tested at 4+/5, bilateral
upper extremity sensory examination was normal and that she had thigh atrophy on the left. He
diagnosed: left L3-4 herniated nucleus pulposus; L4-5 disc bulging with spondylosis; bulging
discs at C3 through C7; post-traumatic shoulder impingement syndrome with posterior and
superior labral tear; status post left shoulder arthroscopy with posterosuperior labral debridement
and subacromial decompression; post-traumatic left C5-6 radiculopathy; post-traumatic left ulnar
nerve (cubital tunnel) syndrome at the elbow; post-traumatic left L5 radiculopathy; posttraumatic cephalgia; post-traumatic left acromioclavicular joint arthritis; and post-traumatic right
shoulder subacromial/subdeltoid bursitis and clavicular osteolysis.
Under the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (hereinafter A.M.A., Guides),3 appellant had 32 percent left arm
impairment. This was comprised of 2 percent impairment for loss of left shoulder range of
motion, 10 percent impairment due to resection arthroplasty, 20 percent impairment due to grip
strength deficit and 3 percent pain-related impairment. Dr. Diamond found four percent right
arm impairment due to one percent loss of shoulder flexion and three percent pain-related
impairment. He rated left leg impairment of six percent based on three percent left thigh atrophy
and three percent impairment due to pain. The impairment to the right leg was rated as three
percent due to a pain.
1

In February 2007, a third-party claim was settled.

2

In a November 29, 2007 decision, the Office found that appellant had the wage-earning capacity of a nurse
consultant. By decision dated December 7, 2007, an Office hearing representative found that an overpayment in
compensation in the amount of $11,065.18 had been created because proper deductions were not made for
appellant’s health insurance. Appellant was found not at fault, but not entitled to waiver because her income
exceeded her expenses by $610.00 a month. The overpayment was repaid in full.
3

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

2

On September 6, 2008 Dr. Arnold T. Berman, an Office medical adviser Board-certified
in orthopedic surgery, reviewed the medical record. He disagreed with the impairment ratings of
Dr. Diamond as the surgical report did not indicate that appellant underwent a resection
arthroplasty of the left clavicle and would not be entitled to an impairment rating on that basis.4
Dr. Berman noted that under the A.M.A., Guides strength loss cannot be rated in the presence of
decreased motion. Further, no right upper extremity condition had been accepted by the Office
and there was not work-related etiology to explain the finding of left thigh atrophy.
Dr. Diamond did not provide any explanation regarding the three percent pain-related
impairments attributed to each extremity under Chapter 18. Dr. Berman advised that under
Figure 16-40 of the fifth edition of the A.M.A., Guides, appellant had one percent impairment for
160 degrees of flexion; under Figure 16-43, one percent impairment for 150 degrees of
abduction; and under Table 16-46, one percent impairment for 75 degrees of internal rotation.
This totaled three percent impairment of the left arm.
In a March 3, 2009 decision, the Office granted appellant a schedule award for three
percent impairment of the left upper extremity to run from May 29 to August 2, 2008.
Appellant, through her attorney, timely requested a hearing that was held on
June 10, 2009. She testified that in 1990 she injured her left knee and had surgery while working
at Temple University. Appellant described the May 16, 2003 employment injury, subsequent
medical care and her current condition. It was argued that the report of Dr. Diamond should
represent the weight of medical opinion.5
In an August 6, 2009 decision, an Office hearing representative affirmed the March 3,
2009 schedule award.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act6 and its
implementing federal regulations,7 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 for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.8 For decisions after February 1, 2001, the fifth edition of the A.M.A., Guides is used

4

The Board notes that Dr. Berman misidentified Dr. Diamond as Dr. Rodriguez in his report. A close reading of
the report, however, clearly indicates that Dr. Berman was referring to Dr. Diamond’s report.
5

On July 20, 2009 counsel stated that she was forwarding a July 10, 2009 report from Dr. Diamond; however, the
report is not presently of record.
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

3

to calculate schedule awards.9 For decisions issued after May 1, 2009, the sixth edition will be
used.10
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the Office medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the Office medical
adviser providing rationale for the percentage of impairment specified.11
ANALYSIS
The Board finds that appellant has no more than three percent impairment of her left arm,
for which she received a schedule award.
Regarding the left upper extremity, Dr. Diamond rated 10 percent impairment for left
shoulder resection arthroplasty; however, Table 16-27 of the fifth edition of the A.M.A., Guides
provides that the distal clavicle must be resected for such an impairment rating.12 Appellant’s
March 8, 2006 operative report noted that subacromial decompression and debridement of a tear
of the posterior labrum were performed, not a distal clavicle resection. Dr. Diamond did not
sufficiently address how such surgical procedure warranted the impairment rating he assigned
under Table 16-27. He rated 20 percent impairment for grip strength deficit; but the A.M.A.,
Guides do not encourage the use of grip strength for impairment ratings because strength
measurements are functional tests influenced by subjective factors that are difficult to control
and the A.M.A., Guides is based on anatomic impairment. The A.M.A., Guides do not assign a
large role to loss of grip strength measurements. Only in rare cases should grip strength be used
and only when it represents an impairing factor that has not been otherwise considered
adequately.13 Dr. Diamond did not adequately explain the 20 percent grip strength rating in light
of the provisions of section 16.8 in strength evaluation. Without sufficient explanation or
rationale, this impairment rating is of diminished probative value.14
On September 6, 2008 Dr. Berman reviewed Dr. Diamond’s report and rated impairment
to the left arm based on loss of range of motion deficits. There was one percent impairment for
160 degrees of left shoulder flexion under Figure 16-40,15 one percent impairment for 150

9

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

10

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

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
12

A.M.A., Guides, supra note 3 at 506.

13

Mary L. Henninger, 52 ECAB 408 (2001).

14

James R. Taylor, 56 ECAB 537 (2005).

15

A.M.A., Guides, supra note 3 at 476.

4

degrees of adduction under Figure 16-4316 and one percent impairment due to 75 degrees of
internal rotation under Figure 16-46.17 This totaled three percent impairment of the left arm.
The Board notes that appellant has no accepted right upper extremity condition; however,
her claim was accepted for a cervical strain and cervical herniated disc. Although the A.M.A.,
Guides include guidelines for estimating impairment due to disorders of the spine, a schedule
award is not payable under the Act for injury to the spine.18 In 1960, amendments to the Act
modified the schedule award provisions to provide for an award for permanent impairment to a
member of the body covered by the schedule regardless of whether the cause of the impairment
originated in a scheduled or nonscheduled member. As the schedule award provisions of the Act
include the extremities, a claimant may be entitled to a schedule award for permanent
impairment to an extremity even though the cause of the impairment originates in the spine.19
Dr. Diamond assigned 10 percent impairment due to loss of right shoulder flexion; but he did not
address how this loss of range of motion was caused by appellant’s accepted cervical condition.
He did not provide an analysis under section 16.5 of the A.M.A., Guides20 or explain how such
loss was contributed to by cervical radiculopathy. The medical evidence of record is not
sufficient to support impairment to appellant’s right arm due to the injury accepted in this claim.
Dr. Diamond rated left leg impairment due to left thigh atrophy, appellant has no
accepted lower extremity condition. Appellant claim was accepted for a lumbar strain and, as
noted, she may be entitled to a schedule award for permanent impairment to a lower extremity
even though the cause of the impairment originates in the spine.21 Section 17.2 of the A.M.A.,
Guides provides that anatomic changes, including atrophy are properly assessed in physical
examination, supported by clinical studies.22 Dr. Diamond provided gastrocnemius and
quadriceps circumferential measurements. He did not explain how the accepted lumbar strain or
lumbar radiculopathy would contribute to left thigh atrophy.23 Appellant has not established this
impairment of her left leg with probative medical opinion.24
Dr. Diamond also assessed pain to all four extremities under Chapter 18. The Board
notes that the fifth edition of the A.M.A., Guides allows for an impairment percentage to be
16

Id. at 477.

17

Id. at 479.

18

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

19

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

20

A.M.A., Guides, supra note 3 at 480.

21

Thomas J. Engelhart, supra note 19.

22

A.M.A., Guides, supra note 3 at 525.

23

The record reflects that appellant has a history of a preexisting left knee condition; but Dr. Diamond did not
provide any history of such condition or explanation of how the accepted injury caused or contributed to any
preexisting impairment to the left leg.
24

See K.H., 61 ECAB ____ (Docket No. 09-341, issued December 30, 2009).

5

increased by up to three percent for pain if an individual appears to have a pain-related
impairment that has increased the burden on his or her condition slightly.25 A formal pain
assessment is to be performed in accordance with Chapter 18.26 Dr. Diamond did not provide a
formal pain assessment as described by Chapter 18; rather, he merely cited to page 574 in
support of his ratings. This reduces the probative value of his impairment estimate such that
appellant has not established pain as a basis for rating impairment to any extremity. There is no
well-rationalized medical evidence to establish more than three percent left upper extremity
impairment based on the range of motion findings of the Office medical adviser under the fifth
edition of the A.M.A., Guides.
CONCLUSION
The Board finds that appellant has not established more than three percent left arm
impairment.
ORDER
IT IS HEREBY ORDERED THAT the August 6, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 29, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

25

T.H., 58 ECAB 335 (2007).

26

A.M.A., Guides, supra note 3 at 573.

6