United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.F., widow of W.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sacramento, CA, Employer
__________________________________________

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

Docket No. 14-2022
Issued: October 19, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 22, 2014 appellant, through counsel, filed a timely appeal from an
August 15, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the employee’s suicide on July 17, 2012 was causally related to
factors of his federal employment.
FACTUAL HISTORY
On January 15, 1988 the employee, a 29-year-old electrician, fell to the floor from the top
of an inspector’s gallery, injuring his back, when pulling down a rope to close a door which had
jammed. He filed a claim for benefits on January 28, 1988, which OWCP accepted for
1

5 U.S.C. § 8101 et seq.

contusions and abrasions of the left knee and hand; contusion of the right knee, bilateral knee
dislocations, internal derangement of the left knee, osteoarthritis of the left leg, derangement of
posterior horn medial meniscus, acute osteomylitis of the left leg, lumbar strain, and chronic pain
syndrome. OWCP accepted periodic disability and paid appropriate compensation benefits.
OWCP authorized multiple surgical procedures for the employee’s accepted left knee
injury including a March 16, 1988 anterior cruciate ligament (ACL) reconstruction with partial
medial and lateral menisectomy, an October 20, 1989 arthroscopy with removal of screws, an
October 2, 1996 arthroscopy including excision of a portion of the ACL, a June 21, 2000
arthroscopy including joint debridement, a May 20, 2003 ACL reconstruction, a November 11,
2004 arthroscopy with partial synovectomy and debridement, a December 4, 2006 total knee
replacement, and an October 25, 2011 revision of left total knee replacement.
By decision dated March 13, 1995, OWCP granted the employee a schedule award for a
42 percent permanent impairment of the left leg for the period October 20, 1990 to February 12,
1993, for a total of 120.96 weeks of compensation. By decision dated November 13, 2007,
OWCP granted the employee a schedule award for a 50 percent permanent impairment of the left
leg, less the 42 percent already awarded, for the period May 16 to October 24, 2007, for a total of
23.04 weeks of compensation.
OWCP continued to pay medical benefits and the employee continued to receive medical
treatment and physical therapy for his left knee as well as his low back condition through the
years.
Dr. Marcia J. Howton, Board-certified in pain medicine and anesthesiology, reported on
March 7, 2011 that the employee had returned for follow up of his chronic pain condition. She
related that his back pain was worsening, with pain radiating down his low back into the left
lateral leg. Dr. Howton requested authorization for a magnetic resonance imaging (MRI) scan.
The employee related anxiety of 9 on a 10 scale, and depression of 6 on a 10 scale. Dr. Howton
concluded that the employee could continue to work, with no restrictions. On May 3, 2011 she
related that the employee’s back pain had improved, but that he now had left knee pain of 9 on a
10 scale. Dr. Howton noted that the employee’s anxiety and depression were 7 on a 10 scale.
She concluded that the employee was temporarily disabled due to possible infection of the left
knee.
In a July 13, 2011 report, William G. Danton, Ph.D., a clinical psychologist, stated that
the employee’s chronic pain prevented him from doing the things that he loved and that he had
lost interest in his favorite activities. He advised that his wife was sick of his depression. The
employee related that approximately four years prior, he had “lost his mind” and was arrested for
domestic violence and assault with a deadly weapon, that his wife had called 911, and that he
was booked into jail for the night.
In reports dated July 25 and 28, 2011, received by OWCP on February 8, 2013, Dr. Ayse
Yasar, Board-certified in family practice, stated that the employee had major depressive disorder,
severe with recurrence, no psychotic features, chronic pain and hypertension, occupational
problems, and relationship problems. He advised that he had been admitted to a hospital on
July 25, 2011 after he expressed suicidal ideation and was released on July 28, 2011. Dr. Yasar

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stated that the employee had been dealing with chronic pain for 23 years as a result of his work
injury and that he began having suicidal ideation for the past two months, which was getting
intense. He asserted that the employee was experiencing severe pain, was severely and
chronically depressed, had chronic back, neck, and knee pain that resulted from the work-related
accident, and was experiencing anger, irritability, and insomnia.
The record reflects that the employee was placed on the periodic rolls as of August 28,
2011 and received disability compensation benefits until his death.
The record substantiates that the employee underwent an authorized revision of the left
total knee replacement on October 25, 2011, by Dr. Eric M. Boyden, a Board-certified
orthopedic surgeon. During the surgery, a large cyst in the lateral femoral condyle was removed.
Dr. Howton reported on January 11, 2012 that the employee had returned for follow up of
his chronic pain. He related right knee pain of 6 to 7 on a 10 scale and stabbing back pain. The
employee also related depression at about 9 on a 10 scale.
In a February 6, 2012 report, Dr. Yasar stated that he had been treating the employee for
severe pain and worsened mood since June 2011. He advised that the employee had developed
chronic pain which aggravated his depression and complicated the treatment of his depression.
The employee required inpatient treatment for his severe depression in the summer of 2011.
Dr. Yasar stated that the employee had not been able to work since May 2011 because of pain
and worsened mood symptoms.
In a May 8, 2012 report, Blake Tearnan, Ph.D, a clinical psychologist, stated that the
employee was experiencing left knee, left foot, and low back pain on a daily basis. The
employee related that the pain was burning, sharp, shooting, constant, stabbing and excruciating.
He rated it as a 6 to 7 on a scale of 1 to 10. Dr. Tearnan advised that the employee’s pain had
caused a number of problems in his life and had negatively affected his physical activity, ability
to work, marital life, social life, mood, sleep, energy level, ability to carry out home
responsibilities, and sex life. He stated that there was strong evidence that the employee’s painrelated disability was aggravated by both environmental and social factors, including ongoing
disability payments, dependency on the healthcare system, and possibly avoidance of workrelated responsibilities. Dr. Tearnan advised that the employee experienced thoughts of
hopelessness and frequent suicidal ideation.
Dr. Tearnan stated that the employee also experienced social isolation, significant marital
strain, sleep disturbance, and little to no sexual relations. He related that his chronic negatively
affected his physical activity, ability to work, marital life, social life, mood, energy level, and his
ability to carry out home responsibilities. The employee’s pain problem was manifested by a
significant amount of avoidance and fear. Psychologically, he reported symptoms of generalized
mood disturbance, including beliefs of hopelessness and suicidal ideation, social isolation,
significant marital strain, sleep disturbance, and an absence of sexual relations. Dr. Tearnan
stated that the employee reported a significant psychiatric history since his industrial accident,
particularly in the past few years. He opined that the employee appeared to be a bitter and
depressed man who felt hopeless and victimized by his pain and other problems in his life,
including a very distressed marriage. Dr. Tearnan noted that the employee’s wife was present

3

during the consultation and that there was obvious strain between the two of them, which they
openly admitted. He related that their relationship had been dissatisfying for several months.
Dr. Tearnan diagnosed major depression, dysthymic mood disturbance, pain disorder associated
with medical and psychological factors, and unspecified personality traits/disturbance.
In a July 12, 2012 report, Dr. Tearnan stated that the employee and his wife had
expressed concerns about the fact that charges had been filed against him approximately 20 years
previously for domestic abuse. The employee asserted that no charges were filed against him,
but that he had been arrested for abuse. He suggested that the medication he had been taking
may have led to the marital problems and to his arrest. In addition, the employee’s records noted
that a possible avoidance of work-related responsibilities was a possible external incentive, but
he adamantly denied that any of this was related to a desire to avoid work.
On August 2, 2012 appellant informed the employing establishment that the employee
died on July 17, 2012.
On December 10, 2012 appellant, the employee’s widow, filed a Form CA-5 claim for
survivor benefits, alleging that her husband’s death was causally related to employment factors,
which indicated that the cause of death was a self-inflicted gunshot wound to the head, a suicide.
She stated that her husband had never recovered from the psychological effects of his 1988
injury and the fact that he had been physically disabled for many years.
By letter dated January 7, 2013, OWCP advised appellant that it required additional
medical evidence to establish that her husband’s death was causally related to factors of his
federal employment. It requested that she submit a medical report providing a history of the
disease which caused or aggravated the employee’s condition resulting in death, a diagnosis of
the disease, and an opinion bearing on the relationship of disease and death to factors of his
employment, including medical reasons for the opinion.
In a series of reports received on February 8, 2013, Dr. Danton indicated that he had
treated the employee periodically from July 2011 to July 2012 for ongoing issues with chronic
pain syndrome and depression. He indicated that appellant had been experiencing work
avoidance issues primarily because of fear of failure given his ongoing pain problem, depression,
and use of narcotic pain killers.
In a February 4, 2013 report, Dr. Danton stated that due to his 1988 injury the employee
badly injured his left knee, which required multiple surgeries, including knee replacement
surgery in 2006 and 2011. He opined that he was never able to accept the physical limitations
imposed by his injury, which resulted in chronic depression and eventually suicide. Dr. Danton
stated that, according to DSM-IV-R, the essential feature of pain disorder is pain that is the
predominant focus of the clinical presentation and is of sufficient severity to warrant clinical
attention. This causes significant distress or impairment in social, occupational, or other
important areas of functioning. With regard to the employee’s mental and physical condition
prior to the suicide, Dr. Danton related that he was unable to derive pleasure from his marital or
social activities and was despondent over the failure of his second left knee replacement surgery
and the realization that the employee was never going to be pain free. The employee was
frustrated that his physical condition and concomitant pain could not be successfully

4

ameliorated. Dr. Danton advised that he was also frustrated by anhedonia, insomnia, and
physical inertia. He stated that these stressors were associated with his primary diagnosis.
Dr. Danton opined that the employee’s January 1988 work injury resulted in severe knee
and back pain, as well as physical disability, that he was never able to accept. He asserted that
his fear that the pain would consume him resulted in a number of avoidant behaviors.
Dr. Danton stated that, ultimately, the employee’s pain and resulting mood disturbance impacted
his marriage, social behavior, and ability to experience pleasure. This led to a feeling of being
trapped. The employee had believed that pain medications were necessary to merely function
but precluded his ability to return to work.
In a decision dated February 13, 2013, OWCP denied the survivor benefits claim, finding
that the evidence of record did not establish that the employee’s death was caused by the
January 15, 1988 employment injury.
By letter dated February 13, 2013, appellant’s counsel requested an oral hearing, which
was held on June 10, 2013.
In a report dated June 19, 2013, Dr. Danton stated that the employee’s consensus
diagnosis and his treatment diagnosis was pain disorder associated with both psychological
factors and a chronic, industrially-related condition. He reiterated his previous findings and
conclusions regarding the development of his suicidal ideation and stated: “It is my opinion
within a reasonable degree of medical certainty that had [the employee] not suffered the
debilitating work injuries he would not have taken his own life. It is my opinion that his death
was directly related to his on the job injuries.”
By decision dated September 11, 2013, an OWCP hearing representative affirmed the
February 13, 2013 decision.
On March 3, 2014 appellant requested reconsideration. In support of this request, she
submitted another report from Dr. Danton. In a January 30, 2014 report, Dr. Danton essentially
reiterated his previous findings and conclusions. He asserted that the employee had pain disorder
associated with both psychological factors and a general medical condition. Dr. Danton stated that
the employee’s January 15, 1988 work injury resulted in severe knee and back pain as well as
physical disability that he was never able to accept. Dr. Danton stated that the employee’s pain
and resulting mood disturbance ultimately affected his marriage, social behavior, and ability to
experience pleasure. He asserted that within a reasonable degree of medical certainty, his marital
discord, alienation from family, his dysfunctional reaction to his cousin’s death, and his financial
security issues were the result of his condition and were not independently caused by his suicide.
Dr. Danton concluded that, within a reasonable degree of medical certainty, had he not suffered his
debilitating work injuries he would not have taken his own life. He opined that the employee’s
death was directly related to his accepted condition, the result of on-the-job injuries.
By decision dated August 15, 2014, OWCP denied modification of the September 11,
2013 decision.

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LEGAL PRECEDENT
Appellant has the burden of establishing by a preponderance of the reliable, probative,
and substantial evidence the existence of a causal relationship between the employee’s death by
suicide and factors of his federal employment.2 The suicide itself must arise out of the
employee’s assigned duties to such an extent as to be regarded as arising out of and in the course
of employment.3
In determining whether an employee’s suicide is causally related to factors of his
employment, OWCP has adopted the “chain of causation” test.4 OWCP’s procedure manual
explains that all suicide claims are not precluded by 5 U.S.C. § 8102(a)(2)5 and states:
“[C]ompensation can be paid if the job-related injury (or disease) and its consequences directly
resulted in the employee’s domination by a disturbance of the mind and loss of normal judgment
which, in an unbroken chain, resulted in suicide.”6
The emphasis is on a showing of genuine brain derangement or psychosis, as
distinguished from mere melancholy, discouragement, or other sane condition such as
depression.7
Under the chain of causation test, OWCP procedure manual states: “If the injury and its
consequences directly resulted in a mental disturbance, or physical condition which produced a
compulsion to commit suicide, and disabled the employee from exercising sound discretion or
judgment so as to control that compulsion, then the test is satisfied and the suicide is
compensable.”8
The procedure manual adds that, for the suicide to be compensable, the chain of causation
from the injury to the suicide must be unbroken.9

2

Rosita Mahana (Wayne Mahana), 53 ECAB 503 (2002).

3

Id.

4

Id.

5

Section 8102(a)(2) of FECA (5 U.S.C. § 8102(a)(2)), precludes payment of compensation for disability or death
sustained in the performance of duty where the injury or death is caused by the employee’s intention to bring about
the injury or death of himself, herself, or another. Id.
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.15 (September 1995).

7

Larson, The Law of Workers’ Compensation § 38.01.

8

Supra note 6 at Chapter 2.804.15b(2).

9

Id. at Chapter 2.804.15(b)(3) (March 1994).

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The Board has approved the majority view as expressed in Larson’s treatise on workers’
compensation:
“If the sole motivation controlling the will of the employee who decides to
commit suicide is the pain and despair caused by the injury and if the will itself is
deranged and disordered by these consequences of the injury, then it seems wrong
to say that this exercise of will is ‘independent’ or that it breaks the chain of
causation. Rather, it seems to be in the direct line of causation.”10
In his treatise, Larson expresses the rule in a simpler manner: “Suicide under the
majority rule is compensable if the injury produces mental derangement and the mental
derangement produces suicide.”11
ANALYSIS
Appellant has attributed the employee’s death on July 17, 2012 to depression caused by
chronic pain resulting from his January 15, 1988 employment injury. In Carolyn King Palermo
and Travis Palermo (Dwayne Palermo),12 the Board noted that, for compensability to arise from
an employee’s suicide under FECA, a direct causal chain must be established with the accepted
employment injury. The proximate cause of the employee’s death must be established in an
employment injury which, in a natural and continuous sequence unbroken by any new or
independent causes, produced the employee’s death and without which the death would not have
occurred. For the employment injury to merely contribute to the mental disorder and the suicide
is not sufficient; the compensable factors must be a direct cause without which the suicide would
not have occurred.13 In Palermo, it was contended that OWCP had erroneously found that the
compensable factors of employment must be the sole motivation for the suicide. The Board
explained that the medical evidence of record must establish that compensable factors of
employment not only contributed to the mental disorder and the suicide, but that the
compensable factors were the direct cause, without which the suicide would not have occurred.
It is not enough to show that the employee suffered depression from the employment
injury, rather the evidence must establish genuine dementia or psychosis. The Board has
explained that the mental derangement must impair the employee’s normal, rational judgment.14
Applying this standard in the present case, the Board finds that the evidence is
insufficient to establish that the employee’s suicide on July 17, 2012 was the direct result of his
accepted January 15, 1988 employment injury.

10

Supra note 7.

11

Id. at 36.00; see also Carolyn King Palermo and Travis Palermo (Dwayne Palermo), 42 ECAB 435 (1991).

12

45 ECAB 308 (1994)

13

Id. at 313.

14

Id.; see also Melina Minter (Shane C. Minter), Docket No. 05-655 (issued June, 19, 2006).

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The record contains several reports documenting the employee’s condition in the
approximately one-year period leading up to his July 17, 2012 suicide. Dr. Yasar advised that
the employee had been suffering with chronic pain for 23 years as a result of his work injury and
had been hospitalized from July 25 to 28, 2011 after he expressed suicidal ideation. He
diagnosed severe, recurrent, major depressive disorder, and noted that the employee was
experiencing chronic pain, hypertension, occupational problems, and relationship problems.
Dr. Yasar asserted that the employee was experiencing severe pain, was severely and chronically
depressed, had chronic back, neck, knee pain that resulted from a work-related accident, and was
experiencing anger, irritability, and insomnia. He opined that the employee had not been able to
work since May 2011 because of pain and worsened mood symptoms.
Dr. Danton stated in his 2011 and 2012 reports, issued prior to the employee’s suicide,
that the employee had ongoing issues with chronic pain syndrome and depression. He opined
that the employee had been experiencing work avoidance issues, primarily because of a fear of
failure which stemmed from his ongoing pain problem, depression and use of narcotic pain
killers. Dr. Danton asserted that the employee’s chronic pain prevented him from doing the
things that he loved and had lost interest in his favorite activities. He noted that the employee
was arrested for domestic violence and assault with a deadly weapon and was jailed for the night.
Dr. Tearnan stated in his May 8, 2012 report that the employee was experiencing severe,
constant left knee, left foot, and low back pain. He asserted that this had caused a number of
problems in his life and had adversely affected his physical activity, ability to work, marital life,
social life, mood, sleep, energy level, ability to carry out home responsibilities, and sex life.
Dr. Tearnan asserted that the employee’s pain-related disability was aggravated by both
environmental and social factors; these included ongoing disability payments, dependency on the
healthcare system, and possibly avoidance of work-related responsibilities. He stated that the
employee experienced thoughts of hopelessness and frequent suicidal ideation. Dr. Tearnan
stated that his pain problem was manifested by a significant amount of avoidance and fear. The
employee had symptoms of generalized mood disturbance which included beliefs of
hopelessness and suicidal ideation, social isolation, significant marital strain, and sleep
disturbance. Dr. Tearnan indicated that the employee had a substantial psychiatric history since
his 1988 work injury, particularly in the past few years. He diagnosed major depression,
dysthymic mood disturbance, pain disorder associated with medical and psychological factors,
and unspecified personality traits/disturbance.
Following the employee’s suicide, Dr. Danton submitted reports dated February 4 and
June 19, 2013 and January 30, 2014. In his February 4, 2013 report, Dr. Danton stated that, due
to his 1988 injury, the employee badly injured his left knee, which required multiple surgeries,
including knee replacement surgery in 2006 and 2011. He opined that he was never able to
accept the physical limitations imposed by his injury, which resulted in chronic depression and
eventually suicide. With regard to the employee’s mental and physical condition prior to the
suicide, Dr. Danton reiterated that he was unable to derive pleasure from his marital or social
activities and was despondent over the failure of his second left knee replacement surgery, and
the realization that his condition was essentially incurable and that he was never going to be pain
free. He opined that the employee’s January 1988 work injury resulted in severe knee and back
pain as well as physical. Dr. Danton advised that, ultimately, the employee’s pain and resulting
mood disturbance impacted his marriage, social behavior, and ability to experience pleasure; this
led to a feeling of being trapped. He opined in his June 19, 2013 report that had the employee

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not sustained the debilitating work injuries he would not have taken his own life and that his
death was directly related to his on-the-job injuries.
While Drs. Tearnan, Yasar, and Danton provided reports which generally supported
appellant’s claim, these physicians did not provide sufficient medical opinions to establish that
the employee’s death by suicide on July 17, 2012 was a natural or continuous sequence of the
January 15, 1988 injury, unbroken by any independent causes or to establish that the
employment injury was the motivation for his suicide. These physicians did not explain the
process by which the 1988 work injury directly led to the employee’s July 2012 suicide.
The medical evidence of record does support a finding that the employee suffered chronic
pain from his accepted conditions and that he was depressed. The evidence of record, however,
is not sufficient to establish that appellant sustained derangement or psychosis from his accepted
injury. None of the reports contain medical rationale that the employee’s work injury prevented
him from exercising sound judgment such that he could not control his impulses.
Dr. Tearnan indicated that the employee had expressed beliefs of hopelessness and
suicidal ideation and had a substantial psychiatric history since his 1988 work injury, but noted
that these issues had been particularly extant in the past few years. In addition, the evidence
supports that such other factors contributed to his major depression and that the 1988
employment injury was not the sole motivation in the suicide. Dr. Tearnan advised that the
employee’s depression was aggravated by other, nonwork-related problems in his life, which
included a very distressed and strained marital situation. Dr. Danton opined that, had the
employee not suffered his debilitating work injuries he would not have taken his own life, and that
his death was directly related to his work-related condition. These physicians however did not
explain the psychological process by which the 1988 work injury directly led to the employee’s
July 2012 suicide or provide probative, rationalized medical opinion that the employment injury
was the motivation for his suicide. The Board therefore concludes that the medical evidence of
record does not establish that the employee could no longer exercise sound judgment to control
his impulses. Rather the evidence establishes that the employee suffered from depression and no
longer wanted to live.
The Board therefore affirms OWCP’s August 15, 2014 decision denying modification of
OWCP’s February 13, 2013 decision.
CONCLUSION
Appellant has failed to establish a direct causal relationship between the employee’s
accepted 1988 injury and his death on July 17, 2012. Therefore, the Board finds that she has
failed to establish her claim for survivor benefits.

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ORDER
IT IS HEREBY ORDERED THAT the August 15, 2014 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: October 19, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.C., Appellant
and
U.S. POSTAL SERVICE, AIKEN POST
OFFICE, Aiken, SC, Employer
__________________________________________

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

Docket No. 18-1306
Issued: October 18, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 19, 2018 appellant filed a timely appeal from an April 11, 2018 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees ’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
consider the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish greater than one
percent permanent impairment of the right leg, for which he previously received a schedule award.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the April 11, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

FACTUAL HISTORY
On October 6, 2017 appellant, then a 53-year-old city carrier, hyperextended his right leg
when dismounting his delivery truck while in the performance of duty. OWCP accepted his
traumatic injury claim (Form CA-1) for right leg (calf) strain. Appellant received continuation of
pay beginning October 7, 2017 and he resumed his full-time, regular duties effective
January 4, 2018.
Dr. David B. Minter, a Board-certified orthopedist, began treating appellant for his right
calf strain on October 10, 2017. In a December 19, 2017 follow-up report, he indicated that
appellant’s right calf strain continued to improve. Dr. Minter noted findings upon examination of
muscle aches, arthralgias/joint pain, swelling in the extremities, and residual weakness in his calf.
He diagnosed work-related right calf strain injury on October 6, 2017. Dr. Minter advised that
appellant could return to full duty on January 2, 2018, at which time he would be at maximum
medical improvement (MMI). He further noted in accordance with the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides)3 that appellant had five percent permanent impairment to the right lower extremity.
In January 2018, appellant filed a claim for a schedule award (Form CA-7). In a
January 30, 2018 note, Dr. Minter indicated that he treated appellant in follow-up for strain of the
right calf muscle. He noted findings for the right calf of reduced tenderness, reduced swelling,
and improving strength. Dr. Minter diagnosed work-related sprain of the calf muscle on
October 6, 2017. He again noted that appellant had reached MMI and had five percent permanent
impairment of the right lower extremity.
In an January 30, 2018 letter, OWCP requested that appellant provide an impairment
evaluation pursuant to the sixth edition of the A.M.A., Guides. It specifically requested that
he arrange for the submission of a detailed narrative medical report from his treating physician
based upon a recent examination in accordance with the A.M.A., Guides. OWCP acknowledged
receipt of the impairment rating dated December 19, 2017 from Dr. Minter.
OWCP subsequently received an additional copy of Dr. Minter’s January 30, 2018
treatment records.
In a report dated March 28, 2018, Dr. Arthur S. Harris, a Board-certified orthopedic
surgeon and OWCP district medical adviser (DMA) reviewed Dr. Minter’s December 19, 2017
and January 30, 2018 reports which diagnosed a right calf muscle strain. The DMA indicated that
the established diagnosis was right calf muscle strain. Pursuant to Table 16-2 (Foot and Ankle
Regional Grid) beginning on page 501 of the A.M.A., Guides, calf muscle strain, appellant was a
class 1 for a diagnosis-based rating (with palpatory findings and or radiographic findings) for one
percent lower extremity impairment. The medical adviser explained that the ankle regional grid,
Table 16-2, page 501-08, required documented motion deficits to qualify for five percent

3

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

2

impairment and the examination reports of Dr. Minter had not documented motion deficits in his
right lower extremity. He noted that the date of MMI was January 30, 2018.
By decision dated April 11, 2018, OWCP granted appellant a schedule award for one
percent permanent impairment of the right leg. The period of the award was for 2.88 weeks
and ran from January 30 to February 19, 2018.
LEGAL PRECEDENT
The schedule award provisions of FECA,4 and its implementing federal regulations,5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants. 6 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards. 7
In addressing lower extremity impairments, the sixth edition requires identification of the
impairment class of diagnosis (CDX) condition, which is then adjusted by grade modifiers based
on functional history (GMFH), physical examination (GMPE), and clinical studies (GMCS). The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).8 OWCP
procedures provide that, after obtaining all necessary medical evidence, the file should be routed
to a DMA for an opinion concerning the nature and percentage of impairment in accordance with
the A.M.A., Guides, with the DMA providing rationale for the percentage of permanent
impairment specified. 9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish greater than one
percent permanent impairment of the right leg, for which he previously received a schedule award.
In his December 19, 2017 and January 30, 2018 follow-up treatment notes, Dr. Minter
indicated that appellant had reached MMI and had five percent impairment of the right lower
extremity. However, he failed to explain how appellant’s accepted strain of his right calf muscle
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700.2 and Exhibit 1 (January 2010).
8

A.M.A., Guides 494-531 (6th ed. 2009).

9
See P.R., Docket No. 18-0022 (issued April 9, 2018); Federal (FECA) Procedure Manual, supra note 7 at Chapter
2.808.6f (March 2017).

3

represented five percent permanent impairment under the A.M.A., Guides (6th ed. 2009). The
Board has held that an attending physician’s report is of little probative value where the A.M.A.,
Guides were not properly followed. 10
OWCP properly routed appellant’s medical record to a DMA who utilized the findings in
Dr. Minter’s December 19, 2017 and January 30, 2018 reports and determined that appellant had
one percent permanent impairment of the right leg due to tenderness on palpation pursuant to the
A.M.A., Guides.11 The DMA further noted that Dr. Minter had not documented motion deficits in
the lower extremity which would justify five percent impairment of the right leg. 12 He properly
applied the A.M.A., Guides to the clinical findings provided in Dr. Minter’s reports and reached
an impairment rating of one percent for the right leg. This evaluation conforms to the A.M.A.,
Guides and establishes that appellant has no more than one percent permanent impairment of the
right leg. There is no other medical evaluation of record explaining how, pursuant to the A.M.A.,
Guides, appellant has more than one percent permanent impairment of the right leg.
On appeal appellant argues that Dr. Minter’s reports were sufficiently detailed and
rationalized to support five percent permanent impairment of the right leg. As noted, Dr. Minter
failed to explain how he reached his impairment rating and had not reported motion deficits in the
leg. Therefore, the Board finds that the medical evidence of record does not establish more than
one percent right lower extremity permanent impairment.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish greater than one
percent permanent impairment of the right lower extremity, for which he previously received a
schedule award.

10

See Paul R. Evans, Jr., 44 ECAB 646 (1993); John Constantin, 39 ECAB 1090 (1988) (medical report not
explaining how the A.M.A., Guides are utilized is of little probative value).
11
12

See A.M.A., Guides 501, Table 16-2.
Id.

4

ORDER
IT IS HEREBY ORDERED THAT the April 11, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 18, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.Q., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Columbus, NM, Employer
__________________________________________

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Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 21-1284
Issued: March 22, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 25, 2021 appellant, through counsel, filed a timely appeal from an August 10,
2021 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 met his burden of proof to establish an injury in the
performance of duty, as alleged.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On June 28, 2019 appellant, then a 65-year-old retired assistant port director, filed an
occupational disease claim (Form CA-2) alleging that he developed non-smokers emphysema due
to factors of his federal employment. He noted that he first became aware of his condition and
first realized its relationship to his federal employment on March 27, 2019. On the reverse side of
the claim form D.C., an assistant port director for the employing establishment, noted that
appellant retired, effective August 31, 2018.
In a development letter dated July 19, 2019, OWCP informed appellant of the deficiencies
of his claim. It advised him of the type of medical and factual evidence necessary to establish his
claim and provided a questionnaire for his completion. In a separate development letter of even
date, OWCP also requested additional information from the employing establishment. It afforded
both parties 30 days to submit the necessary information.
In a memorandum dated August 8, 2019, D.C. responded on behalf of the employing
establishment reporting that appellant’s position at the employing establishment was primarily a
supervisory and administrative position that did not require constant exposure to the elements. He
noted that the port area was surrounded by open desert with the associated dust and wind. D.C.
provided a position description for an assistant port director.
By decision dated August 28, 2019, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record failed to establish the alleged factors of his employment. It
specifically noted that he failed to respond to OWCP’s request for a detailed statement regarding
how his federal employment caused or contributed to his claimed condition. OWCP, therefore,
concluded that the requirements had not been met to establish an injury as defined by FECA.
On September 25, 2019 appellant requested reconsideration. By decision dated
October 29, 2019, OWCP denied his request for reconsideration of the merits of his claim pursuant
to 5 U.S.C. § 8128(a).
On April 8, 2020 appellant, through counsel, requested reconsideration.
In reports dated June 7, 2019 through February 3, 2020, Dr. Juan Fernandez, a Boardcertified pulmonologist, diagnosed interstitial lung disease, post-influenza syndrome, and history
of deep vein thrombosis and pseudo aneurysm. In a July 24, 2019 report, he indicated that a
3

Docket No. 20-1477 (issued March 25, 2021).

2

computerized tomography (CT) scan of appellant’s chest4 showed panlobular emphysema.
Dr. Fernandez opined that etiology was “most likely to be related to his previous job/work
environment” since he did not have a history of smoking.
By decision dated June 30, 2020, OWCP denied modification of the August 28, 2019
decision.
Appellant timely appealed to the Board. By decision dated March 25, 2021, the Board
affirmed the June 30, 2020 decision, finding that appellant had not met his burden of proof to
establish an injury in the performance of duty, as alleged. 5
On May 14, 2021 appellant, through counsel, requested reconsideration. 6
Appellant submitted a completed OWCP’s development questionnaire dated May 5, 2021.
He indicated that he believed he developed emphysema while working as a customs inspector from
1988 to 2018. Appellant explained that his primary duty was inspecting vehicles coming inbound
from Mexico. He reported that he worked an average of 64 hours per day and inspected an average
of 2,080 vehicles per week. Appellant asserted that he was exposed to and had contact with car
exhaust fumes from vehicular traffic, air pollution, and weather elements, such as dust. He
indicated that outside of his federal employment, he had limited exposure to vehicle exhaust fumes
and dust. Appellant explained that he first noticed his condition changing in early 2015 when his
stamina and endurance declined and he developed a persistent cough. He noted that, at that time,
doctors attributed his symptoms to the cold and flu. Appellant reported that he was finally
diagnosed in 2019 when he suffered respiratory distress and had to go to the hospital.
In an August 10, 2021 decision, OWCP denied modification of the June 30, 2020 decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA 7 has the burden of proof to establish the
essential elements of his or her claim, including 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

4

A January 8, 2020 chest CT scan showed parenchymal distortion with mild subpleural reticulation suggestive of
an interstitial lung disease, stable 5.0 mm partly calcified nodule in the right upper lobe, moderate generalized
centrilobular emphysema in the upper lobe, and persistent small loculated right pleural effusion. A plethysmography
report of even date revealed moderate restrictive lung defect, increased airway resistance, and a decrease in diffusing
capacity.
5

Supra note 3.

6
Although appellant claimed to be filing a request for reconsideration from the Board’s March 25, 2021 decision,
OWCP is not authorized to review Board decisions. The decisions and orders of the Board are final as to the subject
matter appealed and such decisions and orders are not subject to review, except by the Board. See 20 C.F.R.
§ 501.6(d). Although the March 25, 2021 Board decision was the last merit decision, the June 30, 2021 OWCP
decision is the appropriate subject of possible modification by OWCP.
7

Id.

3

limitation of FECA, 8 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. 9 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. 10
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant 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 claimant. 11
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant has alleged that he developed emphysema due to factors of his federal
employment. OWCP initially denied his claim finding that he had failed to establish that the
employment factors occurred as alleged. It specifically noted that appellant failed to respond to
OWCP’s request for a detailed statement regarding how his federal employment caused or
contributed to his claimed condition. By decision dated March 25, 2021, the Board affirmed the
denial of his claim.
Following the Board’s March 15, 2021 decision, appellant submitted his response to
OWCP’s July 19, 2019 development questionnaire. He asserted that he developed emphysema
while working as a customs inspector for the employing establishment from 1988 to 2018.
Appellant explained that, as a customs inspector, he worked an average of 64 hours per day and
inspected an average of 2,080 vehicles per week arriving inbound from Mexico. He indicated that
he was exposed to car exhaust fumes from vehicular traffic, air pollution, and weather elements.
OWCP’s procedures provide that a description of job duties will almost always be required
to adjudicate an occupational disease claim. 12 It further notes that a claimant should usually be
asked to describe the physical and environmental requirements of the job, and the supervisor or
injury compensation specialist should review that statement and provide comments if there is any
8

D.D., Docket No. 19-1715 (issued December 3, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); J.P.,
59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
9

Y.G., Docket No. 20-0688 (issued November 13, 2020); J.M., Docket No. 17-0284 (issued February 7, 2018);
R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB 312 (1988).
10

C.H., Docket No. 19-1781 (issued November 13, 2020); 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).
11

T.M., Docket No. 20-0712 (issued November 10, 2020); S.C., Docket No. 18-1242 (issued March 13, 2019);
R.H., 59 ECAB 382 (2008).
12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.7b(2).
(June 2011)

4

disagreement. 13 While the employing establishment responded to OWCP’s July 19, 2019
development letter, the Board notes that it provided information regarding appellant’s employment
duties as an assistant port director and provided a position description for an assistant port director.
Appellant, however, has not attributed his pulmonary condition to his employment duties as an
assistant port director, but to his employment as a customs inspector from 1988 to 2018. The
Board notes that OWCP did not request further information, including his position description as
a customs inspector from 1988 to 2018, from the employing establishment addressing appellant’s
contentions that he was exposed to vehicle fumes and/or environmental conditions. For this
reason, the Board finds that the case must be remanded for further development of the factual
evidence.14
It is well established that, proceedings under FECA are not adversarial in nature and while
the claimant has the responsibility to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence, particularly when such evidence is of the
character normally obtained from the employing establishment.15 OWCP has an obligation to see
that justice is done. 16
On remand OWCP should obtain a detailed statement from the employing establishment
indicating whether it concurred with appellant’s allegations and a position description for a
customs inspector. If the employing establishment fails to respond to a request for comments on
appellant’s allegations, OWCP’s claims examiner may accept the statements as factual. 17
Following this and any such further development as deemed necessary, OWCP shall issue a de
novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

13

Id.

14

See D.C., Docket No. 21-0231 (issued August 27, 2021) (case was remanded because the employing
establishment did not provide a detailed statement indicating whether it concurred with appellant’s allegations); see
also M.T., Docket No. 18-1104 (issued October 9, 2019) (case was remanded for OWCP to obtain a statement from
the employing establishment addressing appellant’s allegations regarding harassment at work).
15

D.O., Docket No. 20-0006 (issued September 9, 2020); R.A., Docket No. 17-1030 (issued April 16, 2018);
Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985).
16

S.S., Docket No. 18-0397 (issued January 15, 2019); Donald R. Gervasi, 57 ECAB 281, 286 (2005); William J.
Cantrell, 34 ECAB 1233, 1237 (1983).
17

Federal (FECA) Procedure Manual, supra note 12 at Chapter 2.800.5d(1) (June 2011). See also L.B., Docket
No. 17-1671 (issued November 6, 2018).

5

ORDER
IT IS HEREBY ORDERED THAT the August 10, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: March 22, 2022
Washington, DC

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

Janice B. Askin, 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
__________________________________________
K.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, West Roxbury, MA, Employer
__________________________________________

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

Docket No. 07-333
Issued: March 23, 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 November 12, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ December 1, 2005 merit decision, denying his traumatic injury claim
and its June 13, 2006 nonmerit decision denying his request for reconsideration. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant sustained a traumatic injury on July 6, 2005
causally related to factors of his federal employment; and (2) whether the Office properly refused
to reopen appellant’s case for further review of the merits of his claim pursuant to 5 U.S.C.
§ 8128(a).

FACTUAL HISTORY
On August 3, 2005 appellant, a 48-year-old pipefitter, filed a traumatic injury claim
(Form CA-1) alleging that he injured his left knee while working on July 6, 2005. He stated that
he developed a sharp pain in his left knee after repairing a sink, which required him to work on
his knees.
In support of his claim, appellant submitted numerous reports from “Boston HCS”
outpatient department, including triage notes, nursing notes, physician’s progress notes,
radiology reports, physical therapy progress notes and consult notes, all of which were
electronically signed. In urgent care notes dated July 6, 2005, Denise M. Perron, a nurse
practitioner, noted appellant’s report that he had developed severe pain and swelling in his left
knee while at work, performing his usual chores. An April 21, 2005 report of an x-ray of both
knee joints showed no acute fractures or dislocations, with a tiny density at the medial aspect of
the left knee joint on the anterior posterior, which could be secondary to prior trauma. In a
July 6, 2005 report of an x-ray of appellant’s left knee, Dr. Stephen G. Gerzof, a Board-certified
radiologist, noted no significant change since April 21, 2005. The x-ray revealed an ill-defined,
faintly calcified 6.5 millimeter density projected over the medial aspect of the knee joint. In
July 12, 2005 nursing notes, Ms. Perron indicated that appellant was experiencing left knee pain
and swelling of questionable etiology. The record contains a July 23, 2005 report of a magnetic
resonance imaging (MRI) scan of the left lower extremity. In progress notes dated July 26,
2005, Dr. Michael J. Tierney, a Board-certified internist, stated that appellant’s left knee was
tender to the touch, mostly on the medial side. He reported that appellant had massive edema of
both lower extremities, as well as minimal degenerative joint disease-type changes in his knees,
as reflected by x-ray. In August 2, 2005 outpatient care notes, Ms. Perron noted appellant’s
persisting left knee pain. She indicated that an MRI scan had revealed evidence of a torn medial
meniscus and prepatellar bursitis. In August 2, 2005 progress notes, Dr. Gerzof reported that
appellant’s MRI scan showed a complex left medial meniscal tear and prepatellar bursitis.
The record contains August 4, 2005 notes of an orthopedic consultation, signed by
Dr. Benjamin Schwartz, a Board-certified internist, and Dr. Tamara L. Martin, a Board-certified
orthopedic surgeon. The notes reflected appellant’s reported history of left knee pain since
July 6, 2005. Appellant stated that he did not recall any specific incident when he injured his left
knee, but that he had been experiencing pain since repairing a sink at work. Examination of the
left lower extremity revealed diffuse 1+ pitting edema from about the level of the calf to the
ankle; mild effusion of the knee joint; and a positive patellar grind test. Dr. Schwartz found the
knee grossly stable to varus and valgus testing at 0 and 30 degrees of flexion. Appellant reported
results of appellant’s MRI scan, which revealed a complex tear of the posterior horn of the
medial meniscus. X-rays showed mild osteoarthritis of the right knee, with the left knee looking
normal, but for some chondrocalcinosis of the medial meniscus.
The record contains an August 17, 2005 preoperative anesthesia assessment by
Dr. Santa N. Brouwer, a treating physician, who noted that appellant’s previous medical history
included massive lymphedema in both lower extremities since his service in the military.

2

In progress notes dated August 18, 2005, Dr. Martin reported that appellant was
scheduled to undergo a left knee arthroscopy with partial meniscectomy, to repair a complex tear
of the posterior horn of the medial meniscus. She reiterated appellant’s report that, although he
had experienced knee pain since July 6, 2005, when he repaired a sink at work, he could not
remember any specific incident when he injured his left knee.
On September 14, 2005 the Office notified appellant that the evidence submitted was
insufficient to establish his claim and advised him to provide additional documentation,
including a physician’s report containing a specific diagnosis and an opinion supported by a
medical explanation as to how the reported work incident caused or aggravated the claimed
injury. The Office asked appellant to provide a detailed description of how his injury occurred.
Appellant submitted new and previously submitted medical records from West Roxbury
Veterans Administration for the period July 6 through October 6, 2005. Newly submitted
medical evidence included an August 26, 2005 surgical report from Dr. Martin, reflecting that
she performed a left knee arthroscopy and partial meniscectomy on that date. The record
contains August 26, 2005 discharge instructions; consult requests regarding appellant’s chronic
lymphedema; September 7, 2005 progress notes from Dr. Martin; and progress notes dated
September 15 and 22, 2005 from Dr. Nancy Cantelmo, a Board-certified vascular surgeon,
reflecting appellant’s continuing problems with his chronic lymphedema. In October 6, 2006
progress notes, Dr. Martin observed that appellant was doing well following his arthroscopic
surgery, but that recovery had been complicated by vascular issues.
On September 22, 2005 appellant responded to the Office’s request for a detailed
description as to how his injury occurred. He stated that he felt pain in his left knee after
bending, kneeling and twisting in different positions.
By decision dated December 1, 2005, the Office denied appellant’s claim on the grounds
that the evidence failed to establish that appellant had sustained an injury in the performance of
duty. The Office accepted that the claimed event occurred, namely, that appellant was working
on his knees fixing a sink. However, the Office found that the medical evidence submitted was
insufficient to establish that the claimed medical condition was causally related to the accepted
work-related incident.
On April 17, 2006 appellant requested reconsideration. In support of his request, he
submitted copies of previously submitted medical reports. Appellant also submitted consult
request forms for items related to his chronic lymphedema.
By decision dated June 13, 2006, the Office denied appellant’s request for
reconsideration, finding that he had failed to raise substantive legal questions or submit new and
relevant evidence sufficient to warrant a merit review.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act has the
burden of proof to establish the essential elements of the claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim

3

was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged and that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.1 When an
employee claims that he sustained a traumatic injury in the performance of duty, he must
establish the “fact of injury,” namely, he must submit sufficient evidence to establish that he
experienced a specific event, incident or exposure occurring at the time, place and in the manner
alleged and that such event, incident or exposure caused an injury.2
The claimant has the burden of establishing by the weight of reliable, probative and
substantial evidence that the condition for which compensation is sought is causally related to a
specific employment incident or to specific conditions of employment.3 Causal relationship is a
medical issue and the medical evidence generally required to establish causal relationship is
rationalized medical opinion evidence. Rationalized medical opinion evidence is medical
evidence that includes a physician’s rationalized opinion on whether there is a causal relationship
between the claimant’s diagnosed condition and the established incident or factor of
employment. The opinion 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
established incident or factor of employment.4
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish a causal relationship.5
ANALYSIS -- ISSUE 1
The Office accepted that appellant was a federal employee, that he timely filed his claim
for compensation benefits and that the workplace incident occurred as alleged. The issue,
therefore, is whether appellant has submitted sufficient medical evidence to establish that the
employment incident caused an injury. The medical evidence presented does not contain a
rationalized medical opinion establishing that the work-related incident is causally related to
appellant’s diagnosed condition. Therefore, appellant has failed to satisfy his burden of proof.
Appellant submitted numerous reports from “Boston HCS” outpatient department,
including triage notes, nursing notes, physician’s progress notes, radiology reports, physical
therapy progress notes, consult notes and surgical reports. However, none of these reports
1

Robert Broome, 55 ECAB 339 (2004); see also Elaine Pendleton, 40 ECAB 1143 (1989).

2

Betty J. Smith, 54 ECAB 174 (2002); see also Tracey P. Spillane, 54 ECAB 608 (2003). The term “injury” as
defined by the Act, refers to a disease proximately caused by the employment. 5 U.S.C. § 8101(5). See 20 C.F.R.
§ 10.5(q), (ee).
3

Katherine J. Friday, 47 ECAB 591, 594 (1996).

4

John W. Montoya, 54 ECAB 306 (2003).

5

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

4

offered any opinion on the cause of appellant’s condition. Medical evidence which does not
offer an opinion regarding the cause of an employee’s condition is of limited probative value on
the issue of causal relationship.6 Dr. Martin’s reports establish that appellant had a complex tear
of the posterior horn of the medial meniscus, for which he underwent a left knee arthroscopy
with partial meniscectomy. The record reflects appellant’s report to Dr. Martin that he did not
recall any specific incident when he injured his left knee, but that he had been experiencing pain
since repairing a sink at work on July 6, 2005. However, the record does not contain an opinion
by Dr. Martin or by any other qualified physician, supporting appellant’s contention that his left
knee condition was causally related to the accepted employment activity. While appellant has
submitted chart notes and other medical documents which track his treatment, he has not
provided a narrative report containing a physician’s rationalized opinion on whether there is a
causal relationship between his diagnosed condition and the established incident. No physician
has explained how appellant’s knee condition was physiologically related to the July 6, 2005
work incident. The Board notes that appellant submitted reports signed by nurses, nurse
practitioners and physical therapists. As these reports were not signed by individuals that qualify
as “physicians” under the Act, the Board finds that they do not constitute probative medical
evidence.7
Appellant expressed his belief that his knee condition resulted from the July 6, 2005
employment incident. The Board has held that the mere fact that a condition manifests itself
during a period of employment does not raise an inference that there is a causal relationship
between the two.8 Neither the fact that the condition became apparent during a period of
employment nor the belief that the condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.9 Causal relationship must be substantiated
by reasoned medical opinion evidence, which it is appellant’s responsibility to submit.
Therefore, appellant’s belief that his condition was caused by the work-related injury is not
determinative.
The Office advised appellant that it was his responsibility to provide a comprehensive
medical report which described his symptoms, test results, diagnosis, treatment and the doctor’s
opinion, with medical reasons, on the cause of his condition. Appellant failed to submit
appropriate medical documentation in response to the Office’s request. As there is no probative,
rationalized medical evidence addressing how appellant’s claimed knee condition was caused or

6

Michael E. Smith, 50 ECAB 313 (1999).

7

A medical report may not be considered as probative medical evidence if there is no indication that the person
completing the report qualifies as “physician” as defined in 5 U.S.C. § 8101(2). [Section] 8101(2) of the Act
provides as follows: “‘physician’ includes surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors and osteopathic practitioners within the scope of their practice as defined by State law. The term
‘physician’ includes chiropractors only to the extent that their reimbursable services are limited to treatment
consisting of manual manipulation of the spine to correct a subluxation as demonstrated by [x]-ray to exist and
subject to regulation by the secretary.” See Merton J. Sills, 39 ECAB 572, 575 (1988).
8

See Joe T. Williams, 44 ECAB 518, 521 (1993).

9

Id.

5

aggravated by his employment, appellant has not met his burden of proof in establishing that he
sustained an injury in the performance of duty causally related to factors of his federal
employment.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act, the Office has the discretion to reopen a case for
review on the merits. The Office must exercise this discretion in accordance with the guidelines
set forth in section 10.606(b)(2) of the implementing federal regulation,10 which provides that a
claimant may obtain review of the merits of his or her written application for reconsideration,
including all supporting documents, which sets forth arguments and contains evidence that:
“(1) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(2) Advances a relevant legal argument not previously considered by the
(Office); or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
[the Office].”
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.11
Evidence that repeats or duplicates evidence already in the case record has no evidentiary
value and does not constitute a basis for reopening a case.12
ANALYSIS -- ISSUE 2
Appellant’s April 17, 2006 request for reconsideration neither alleged nor demonstrated
that the Office erroneously applied or interpreted a specific point of law. Additionally, he did
not advance a relevant legal argument not previously considered by the Office. Consequently,
appellant is not entitled to a review of the merits of his claim based on the first and second
above-noted requirements under section 10.606(b)(2).
Subsequent to the Office’s December 1, 2005 decision, appellant submitted numerous
copies of previously submitted documents. The Board has held that evidence that repeats or
duplicates evidence already in the case record has no evidentiary value.13 Appellant also
submitted consult request forms for items related to his chronic lymphedema. In its December 1,
10

20 C.F.R. § 10.606(b).

11

Id.

12

See Helen E. Paglinawan, 51 ECAB 591 (2000).

13

See Manuel Gill, 52 ECAB 282 (2001).

6

2005 decision, the Office determined that appellant had failed to submit a rationalized medical
opinion explaining the causal relationship between his diagnosed meniscal tear and the accepted
work injury. As the documents submitted by appellant do not address the issue at hand, they are
irrelevant. Therefore, the Office properly determined that this evidence did not constitute a basis
for reopening the case for a merit review.
As appellant has failed to meet any of the standards under section 8128(a) of the Act
which would require the Office to reopen the case for merit review, the Board finds that the
Office did not abuse its discretion in denying his request for reconsideration.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained a traumatic injury on July 6, 2005 causally related to his employment. The Board
further finds that the Office properly refused to reopen appellant’s case for further review of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 13, 2006 and December 1, 2005 are affirmed.
Issued: March 23, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.T., Appellant
and
DEPARTMENT OF THE INTERIOR,
BADLANDS NATIONAL PARK, Interior, SD,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-1015
Issued: March 16, 2012

Case Submitted on the Record

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

JURISDICTION
On March 16, 2011 appellant filed a timely appeal from a March 2, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly reduced appellant’s compensation benefits based
on its finding that his actual earnings as a seasonal visitor use assistant fairly and reasonably
represented his wage-earning capacity.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a decision dated January 6, 2011,2 the
Board reversed an August 27, 2009 OWCP decision finding that appellant’s actual earnings as a
seasonal visitor use assistant fairly and reasonably represented his wage-earning capacity.3 It
determined that OWCP properly used appellant’s actual earnings effective June 22, 2009 as a
temporary, seasonal visitor use assistant in determining his wage-earning capacity as he was a
temporary employee at the time of his injury. The Board further found, however, that there was
no evidence that the offered position was available at least 90 days. As the record did not show
the period of his temporary, seasonal position, it concluded that OWCP erred in finding that the
position fairly and reasonably represented his wage-earning capacity. The facts and the
circumstances as set forth in the prior decision are hereby incorporated by reference.
In a January 14, 2011 telephone call, the employing establishment informed OWCP that
appellant “worked from June 21, 2009 through September 13, 2009 and then worked
intermittent[ly] until November 21, 2009. [Appellant] returned to work July 11 through
August 29, 2010 and then worked intermittent[ly] until December 19, 2010.”
By decision dated March 2, 2011, OWCP reduced appellant’s compensation based on its
finding that his actual earnings in a temporary, seasonal position (a seasonal visitor use assistant)
effective June 22, 2009 fairly and reasonably represented his wage-earning capacity. It found
that he worked over 90 days from June 22 to November 29, 2009 and July 11 to
December 19, 2010. OWCP utilized the formula developed in Albert C. Shadrick4 to determine
appellant’s loss of wage-earning capacity.
On appeal, appellant maintains that he did not work 90 days as a seasonal visitor use
assistant in either 2009 or 2010.
He relates that he worked from June 22 until
September 12, 2009. During the period September 13 to November 21, 2009, appellant asserts
that he did not work any hours and the position during this time was termed “intermittent not
seasonal employment.” The employing establishment only hired him in 2010 to replace an
employee who quit. Appellant worked July 11 to August 29, 2010 and then was an intermittent
employee. He worked four days during his intermittent employment. Appellant contends that
his appointment was not the equivalent of the position held at the time of injury.5

2

The Board initially dated its decision November 9, 2010; however, on January 6, 2011 it issued an Order
Erratum finding that the decision required a new issuance date of January 6, 2011.
3

Docket No. 10-1012 (issued January 6, 2011). OWCP accepted that appellant, then a 47-year-old temporary,
seasonal maintenance mechanic, sustained lumbar sprain and a permanent aggravation of lumbar degenerative disc
disease due to an August 24, 2007 employment injury.
4

5 ECAB 376 (1953); codified at 20 C.F.R. § 10.403.

5

Appellant submitted additional evidence with this appeal. The Board has no jurisdiction to review new evidence
on appeal; see 20 C.F.R. § 501.2(c).

2

LEGAL PRECEDENT
Section 8115(a) of FECA6 provides that, in determining compensation for partial
disability, the wage-earning capacity of an employee is determined by his actual earnings if his
actual earnings fairly and reasonably represent his wage-earning capacity.7 Generally, wages
actually earned are the best measure of a wage-earning capacity and in the absence of showing
that they do not fairly and reasonably represent the injured employee’s wage-earning capacity,
must be accepted as such a measure.8 The formula for determining loss of wage-earning
capacity based on actual earnings, developed in the Albert C. Shadrick decision,9 has been
codified at 20 C.F.R. § 10.403. OWCP calculates an employee’s wage-earning capacity in terms
of percentage by dividing the employee’s earnings by the current pay rate for the date-of-injury
job.10 OWCP procedures provide that a determination regarding whether actual earnings fairly
and reasonably represent wage-earning capacity should be made after an employee has been
working in a given position for more than 60 days.11
The Federal (FECA) Procedure Manual provides that OWCP can make a retroactive
wage-earning capacity determination if appellant worked in the position for at least 60 days, the
position fairly and reasonably represented his wage-earning capacity and the work stoppage did
not occur because of any change in the injury-related condition affecting the ability to work.12
OWCP’s procedure manual provides guidelines for determining wage-earning capacity
based on actual earnings:
“a. Factors considered. To determine whether the claimant’s work fairly and
reasonably represented his or her WEC [wage-earning capacity] the CE [claims
examiner] should consider whether the kind of appointment and tour of duty (see
FECA PM 2.900.3) are at least equivalent to those of the job held on the date of
injury. Unless they are, the CE may not consider the work suitable.
“For instance, reemployment of a temporary or casual worker in another
temporary or casual (USPS) [United States Postal Service] position is proper, as
long as it will last at least 90 days and reemployment of a term or transitional

6

5 U.S.C. § 8101 et seq.

7

Id. at § 8115(a); Loni J. Cleveland, 52 ECAB 171 (2000).

8

Lottie M. Williams, 56 ECAB 302 (2005).

9

Albert C. Shadrick, 5 ECAB 376 (1953).

10

20 C.F.R. § 10.403(c).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7(c) (December 1993).
12

Id. at Chapter 2.814.7 (July 1997).

3

(USPS) worker in another term or transitional (USPS) worker is likewise
acceptable. However, the reemployment may not be considered suitable when:
(1) The job is part-time (unless the claimant was a part-time
worker at the time of injury or sporadic in nature;
(2) The job is seasonal in an area where year-round employment is
available;
(3) The job is temporary where the claimant’s previous job was
permanent.”13
ANALYSIS
On prior appeal, the Board reversed OWCP’s finding that appellant’s actual earnings as a
temporary, seasonal visitor use assistant beginning June 22, 2009 fairly and reasonably
represented his wage-earning capacity. It noted that appellant had worked in a temporary,
seasonal position at the time of his work injury and thus OWCP could use earnings from a
temporary position as the basis for a wage-earning capacity determination. OWCP procedures
and Board case law, however, provided that a temporary offered position must be available for at
least 90 days in order to be appropriate.14 The Board found that there was no evidence
establishing the duration of the temporary, seasonal position offered by the employing
establishment and thus reversed OWCP’s wage-earning capacity determination.
By decision dated March 2, 2011, OWCP again reduced appellant’s compensation based
on its finding that his actual earnings in a temporary, seasonal position as a visitor use assistant
effective June 22, 2009 fairly and reasonably represented his wage-earning capacity. It
determined that he worked over 90 days from June 22 to November 29, 2009 and July 11 to
December 19, 2010. In a telephone call dated January 14, 2011, however, the employing
establishment notified OWCP that appellant worked June 21 through September 13, 2009, a
period of 84 days, and then worked intermittently until November 21, 2009. Appellant also
worked the following summer from July 11 through August 29, 2010 and intermittently until
December 19, 2010 under another job offer. On appeal, he contends that he did not work for 90
days as a visitor use assistant. Appellant asserts that after September 13, 2009 he worked in a
position classified as intermittent rather than seasonal and maintains that he did not work any
hours. There is still no evidence that the employing establishment offered him a seasonal
position as a visitor use assistant that was available for more than 90 days. Consequently,
OWCP failed to follow its procedures in issuing its wage-earning capacity decision.

13

Id. at Chapter 2.814.7(a) (July 1997).

14

Id.; C.f., A.P., 58 ECAB 198 (2006) (finding that OWCP properly reduced the wage-earning capacity of a
temporary firefighter who returned to work in a temporary position as the position was available for over 90 days
and as the claimant worked over 60 days in the position).

4

CONCLUSION
The Board finds that OWCP improperly reduced appellant’s compensation benefits after
finding that his actual earnings as a seasonal visitor use assistant fairly and reasonably
represented his wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 2, 2011 is reversed.
Issued: March 16, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Bellmawr, NJ, Employer
)
___________________________________________ )
M.C., Appellant

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

Docket No. 08-1323
Issued: April 20, 2009

Case Submitted on the Record

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

JURISDICTION
On April 2, 2008 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ hearing representative decision dated November 13, 2007, which
affirmed a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the schedule award determination.
ISSUE
The issue is whether appellant has more than 29 percent impairment of her left arm, for
which she received schedule awards.
FACTUAL HISTORY
This case has previously been before the Board.1 In an October 23, 2001 decision, the
Board found that the case was not in posture for decision regarding whether appellant had more
1

Docket No. 00-0859 (issued October 23, 2001) and Docket No. 02-1612 (issued November 7, 2002). The
Office combined the claims under case No. xxxxxx803 on May 6, 2005.

than 20 percent impairment to her left upper extremity. In a November 7, 2002 decision, the
Board found the case was not in posture for a decision with regard to whether appellant had more
than nine percent impairment of her left arm for which she had received a schedule award. The
Board found that a conflict in medical opinion between Dr. Weiss, a treating physician, and an
Office medical adviser regarding the extent of impairment to appellant’s left upper extremity.
The facts and the history contained in the prior decisions are incorporated by reference.
The Office followed the Board’s instructions on remand and obtained an opinion from an
impartial specialist. In a February 28, 2003 decision, it denied appellant’s claim for an increased
schedule award. On September 23, 2003 the Office found that appellant did not have more than
20 percent impairment to the left upper extremity.
On September 29, 2003 appellant’s representative requested a hearing which was held on
June 22, 2004. In a December 8, 2004 decision, the Office hearing representative remanded the
case for further development and directed the Office to combine the claims.
On March 17, 2005 the Office referred appellant to Dr. Zohar Stark, a Board-certified
orthopedic surgeon, for a second opinion. In an April 5, 2005 report, Dr. Stark reviewed
appellant’s history of injury and conducted a physical examination. Appellant had range of
motion of the left shoulder which was restricted by 10 degrees of internal rotation, 20 degrees of
abduction, and 20 degrees or forward flexion. Dr. Stark advised that appellant had normal
adduction and external rotation, and negative impingement and apprehension tests. He advised
that his examination of the left upper extremity revealed a healed arthroscopic scar over the left
shoulder area and examination of the left elbow revealed some tenderness on palpation over the
medial aspect of the elbow. Dr. Stark noted that appellant had normal range of motion of the left
elbow and negative Tinel’s and Phalen’s tests for entrapment of the median or ulnar nerves in the
left wrist or at the left elbow. Appellant had local tenderness over the lateral aspect of the distal
radius, preserved motion of the left wrist and a negative Finkelstein maneuver in the left hand.
Dr. Stark found that motion of the fingers of the left hand was preserved, and muscle power to
both hands appeared to be equal.2 In rating left shoulder impairment, he referred to pages 474-79
of the A.M.A., Guides and opined that appellant had four percent impairment based on 10
degrees internal rotation, two percent impairment for 20 degrees of abduction, and two percent
impairment for 20 degrees forward flexion, or a total of eight percent based on loss of range of
motion. Dr. Stark noted that external rotation and adduction were normal. He opined that there
were no objective findings to substantiate de Quervain’s syndrome of the left wrist and no
impairment related to that diagnosis pursuant to Table 16-7 D.3 Dr. Stark rated 3 percent
impairment for left ulnar nerve entrapment in the elbow, for a total impairment of 11 percent to
the left upper extremity. Dr. Stark advised that maximum medical improvement was reached on
December 1, 2000. He completed a work capacity evaluation and opined that appellant could
perform her usual job.

2

The physician also addressed findings for appellant’s right arm.

3

A.M.A., Guides 507.

2

In a report dated May 3, 2005, an Office medical adviser reviewed Dr. Stark’s report and
the A.M.A., Guides. He determined that appellant had a total of 12 percent left arm impairment.
The Office medical adviser rated appellant’s loss of range of motion under Figures 16-40, 16-43
and 16-46.4 He explained that 10 degrees of internal rotation resulted in zero percent
impairment, 20 degrees abduction resulted in one percent impairment, and 20 degrees of forward
flexion resulted in one percent impairment, which he added for two percent impairment for loss
of range of motion. The Office medical adviser determined that, under Table 16-27,5 a
subacromial decompression warranted 10 percent impairment.6 He combined the 2 percent for
loss of range of motion with the 10 percent subacromial decompression to find 12 percent
impairment. The Office medical adviser noted that Dr. Stark did not include a rating for the
subacromial decompression.
In a decision dated May 6, 2005, the Office found that appellant did not have more than
20 percent impairment of the left upper extremity, for which she had received a schedule award.7
On May 9, 2005 appellant requested a hearing, which was held on December 7, 2005.
In a February 22, 2006 decision, the Office hearing representative found that the Office
medical adviser failed to address whether Dr. Stark correctly awarded three percent impairment
for left elbow entrapment under section 16.5d of the A.M.A., Guides.8 The Office hearing
representative remanded the case for clarification from the Office medical adviser.
On October 26, 2006 the Office requested that the Office medical adviser provide an
opinion regarding whether appellant had impairment for left elbow nerve entrapment. In a
November 1, 2006 report, the medical adviser explained that Dr. Stark’s examination did not
support an ulnar neuropathy as there were no findings of neurological deficit of the wrist. On
January 30, 2007 the Office medical adviser noted that the only objective findings on
examination were loss of motion equal to eight percent and a pain evaluation equal to three
percent.
The Office medical adviser opined that appellant did not have any ulnar nerve
entrapment.
In a May 31, 2007 decision, the Office found that appellant was not entitled to an
additional schedule award.
On June 7, 2007 appellant’s representative requested a hearing, which was held on
September 25, 2007. He contended that appellant’s claims for the left shoulder, left carpal tunnel
syndrome, and ulnar nerve problems, should be combined to obtain an accurate impairment
4

Id. at 476, 477, 479.

5

Id. at 506.

6

Dr. Stark noted that a clavicle excision was actually listed but not performed.

7

The record reflects that appellant has received schedule awards totaling 29 percent impairment to her left arm.
On June 10, 1997 the Office granted appellant a schedule award for 20 percent impairment of her left arm. On
April 20, 2001 it issued appellant a schedule award for nine percent impairment of the left arm.
8

A.M.A., Guides 491.

3

assessment. Appellant’s representative also argued that Dr. Stark’s range of motion findings
were unclear and incomplete as the physician did not provide any measurements for range of
motion of the elbow or wrist.
By decision dated November 13, 2007, an Office hearing representative affirmed the
May 31, 2007 decision.9
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act10 sets forth the number of
weeks of compensation to be paid for the permanent loss of use of specified members, functions,
and organs of the body.11 The Act, however, does not specify the manner by which the
percentage loss of a member, function, or organ shall be determined. To ensure consistent
results and equal justice for all claimants under the law, good administrative practice requires the
use of uniform standards applicable to all claimants.12 The A.M.A., Guides has been adopted by
the implementing regulation as the appropriate standard for evaluating schedule losses.13
The standards for evaluating the percentage of impairment of extremities under the
A.M.A., Guides are based primarily on loss of range of motion. In determining the extent of loss
of motion, the specific functional impairments, such as loss of flexion or extension, should be
itemized and stated in terms of percentage loss of use of the member in accordance with the
tables in the A.M.A., Guides.14
ANALYSIS
Appellant received a schedule award for 20 percent impairment of the left arm on
June 10, 1997. She received another schedule award for 9 percent impairment of the left arm on
April 26, 2001, for a total of 29 percent impairment. On appeal, appellant asserts that she has
greater impairment. In the course of developing her claims, the Office combined her claims and
referred appellant to, Dr. Stark, a Board-certified orthopedic surgeon.
In an April 5, 2005 report, Dr. Stark noted appellant’s history of injury and treatment. On
physical examination, he noted that appellant had normal adduction and external rotation, with
negative impingement and apprehension tests. He also advised that range of motion of the
9

The hearing representative phrased the issue as whether appellant had more than 20 percent impairment of her
left arm. However, as indicated at note 7, the record establishes that appellant has received two schedule awards for
her left arm totaling 29 percent impairment.
10

5 U.S.C. §§ 8101-8193.

11

5 U.S.C. § 8107.

12

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

13

A.M.A., Guides (5th ed. 2001); 20 C.F.R. § 10.404.

14

See William F. Simmons, 31 ECAB 1448 (1980); Richard A. Ehrlich, 20 ECAB 246, 249 (1969) and cases cited
therein.

4

fingers of the left hand was not reduced and muscle power to both hands appeared to be equal.
Dr. Stark provided range of motion findings for the shoulder which included 10 degrees of
internal rotation, 20 degrees of abduction, and 20 degrees of forward flexion. He found a wellhealed arthroscopic scar over the left shoulder area with some tenderness on palpation over the
medial aspect of the elbow, normal range of motion of the left elbow, and negative Tinel’s and
Phalen’s tests for entrapment of the median or ulnar nerve in the left wrist or of the ulnar nerve at
the left elbow. Dr. Stark indicated that appellant had local tenderness over the lateral aspect of
the distal radius, preserved motion of the left wrist and a negative Finkelstein maneuver in the
left hand. He referred to the A.M.A., Guides15 and opined that appellant had four percent
impairment based on 10 degrees internal rotation, two percent impairment for 20 degrees of
abduction, and two percent impairment for 20 degrees forward flexion, or a total of eight percent
impairment based on loss of range of motion. Dr. Stark noted that external rotation and
adduction were normal. He opined that there were no objective findings to substantiate a
diagnosis of de Quervain’s syndrome of the left wrist and no impairment related to that diagnosis
pursuant to Table 16-7 D.16 Dr. Stark opined that appellant had 3 percent impairment due to
ulnar nerve entrapment in the elbow for a total of 11 percent impairment to the left upper
extremity. He advised that appellant reached maximum medical improvement on December 1,
2000 and that she could perform her usual job.
In a report dated May 3, 2005, an Office medical adviser reviewed Dr. Stark’s report and
the A.M.A., Guides. The Office medical adviser referred to Table 16-4617 and determined that
10 degrees of internal rotation resulted in zero percent impairment. However, the Board notes
that 10 degrees of internal rotation would warrant five percent impairment under Table 16-46.
Additionally, the Office medical adviser determined that 20 degrees of abduction would result in
one percent impairment; however, according to Table 16-43,18 this is seven percent impairment.
Regarding forward flexion, the Office medical adviser indicated that 20 degrees of forward
flexion resulted in 1 percent impairment; however, the Board notes that Table 16-4019 provides
for 11 percent impairment for 20 degrees of forward flexion. Adding these shoulder range of
motion findings results in an impairment of 23 percent. The Office medical adviser referred to
Table 16-27 and found that appellant’s subacromial decompression represented 10 percent
impairment.20 Under the Combined Values Chart, 23 percent impairment for lost range of
motion combined, with 10 percent for the subacromial decompression results in a total of 31
percent impairment.21

15

A.M.A., Guides 474-79.

16

Id. at 507.

17

Id. at 479.

18

Id. at 477.

19

Id. at 476.

20

Id. at 506.

21

Id. at 604.

5

The Office medical adviser also explained that appellant would not be entitled to
additional impairment for ulnar neuropathy as she did not have an ulnar nerve entrapment. He
explained that there were no findings of neuropathy at the wrist. The medical adviser noted that
there were no focal neurological deficits. He also advised that the only objective findings
provided by Dr. Stark on examination were for loss of motion and a pain rating equal to three
percent. The Board also notes that the A.M.A., Guides warns that examiners should not use
Chapter 18 to rate pain-related impairment for any condition that can be adequately rated on the
basis of the body and organ impairment rating systems given in other chapters.22 The A.M.A.,
Guides state: the impairment ratings in the body organ system chapters make allowance for any
accompanying pain.23 So the presence of pain alone does not justify a pain-related impairment.
None of the physicians provided an opinion or explanation to show why appellant’s condition
could not be rated in other chapters of the A.M.A., Guides or how her condition falls within one
of the several situations identified under Chapter 18.3a.24
The Board finds that appellant sustained 31 percent impairment of her left arm. As
appellant has already received schedule awards totaling 29 percent impairment of her left arm,
she is entitled to receive an additional 2 percent impairment for a total of 31 percent impairment
of her left upper extremity.
On appeal, appellant’s representative alleged that the second opinion report of Dr. Stark
was insufficient, or at a minimum should have created a conflict with the report of Dr. Weiss.
The Board notes that the evidence does not suggest a conflict in the instant matter. The opinion
of Dr. Weiss was previously considered and he has not submitted a more current report with new
findings sufficient to support further development. The Board also notes that the Office
combined the cases to consider the extent of appellant’s impairment due to her accepted
conditions.
CONCLUSION
The Board finds that appellant has no more than 31 percent impairment of the left upper
extremity. As she has previously received schedule awards totaling 29 percent of the left upper
extremity, she should receive a schedule award for an additional two percent impairment of the
left upper extremity.

22

Id. at 571.

23

Id. at 20.

24

Id. at 570-571.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 13, 2007 is affirmed as modified.
Issued: April 20, 2009
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

7