United States Department of Labor
Employees’ Compensation Appeals Board

A.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION
MEDICAL CENTER, Tuskegee, AL, Employer
_________________________________________

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

Docket No. 14-221
Issued: April 15, 2014

Case Submitted on the Record

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

JURISDICTION
On November 12, 2013 appellant, through her attorney, filed a timely appeal from the
October 8, 2013 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 appellant met her burden of proof to establish that she sustained a
traumatic injury in the performance of duty on May 9, 2011.
FACTUAL HISTORY
On May 17, 2011 appellant, then a 55-year-old nurse, filed a traumatic injury claim
alleging that on May 9, 2011 she felt a sharp jolt to her left finger and arm as she turned on a
light switch. She stopped work on May 9, 2011.
1

5 U.S.C. § 8101 et seq.

On May 26, 2011 OWCP advised appellant of the additional factual and medical
evidence needed to establish her claim.
In a May 9, 2011 incident report, the employing establishment noted that appellant went
into a resident’s room to turn the light switch on. It was broken and she received a shock on her
right finger radiating up her right arm. An engineering safety official noted that “[e]ven if the
light switch was broke the chance of being shocked by flipping a switch would be [slim].”
OWCP received several treatment notes from Dr. John B. Riser, a Board-certified
neurologist and physiatrist. In a September 30, 2010 report, Dr. Riser advised that appellant was
being treated for relapsing remitting multiple sclerosis (MS). He noted that she was relatively
stable on medication for over 15 years but was having some difficulties with ataxia. In a
May 9, 2011 treatment note, Dr. Riser obtained a history that appellant had experienced an
electric shock to the left index finger that caused a dull pain. In a May 16, 2011 report, he noted
that there was an electrical switch malfunction that shocked the left side of her hand and went up
to her chest. Appellant felt more numbness on the left side and had trouble expressing herself.
Dr. Riser noted that she did not have any recent febrile illness and continued to take Betaseron
for immunomodulating treatment and Ampyra for ambulation. On examination, he noted mild
bilateral internuclear ophthalmic plegia, cranial nerves 2 to 12 were otherwise intact, motor
examination 5/5 throughout, reflexes brisk throughout, mild propriocceptive loss in the feet,
patient has a broad-based gait but can ambulate with no assisted device. Dr. Riser reviewed a
cranial magnetic resonance imaging (MRI) scan with and without contrast. He advised possible
“Soul-Medrol post MRI scan if not internal improvement and recommended continuing the
current medications.” In a May 18, 2011 report, Dr. Riser noted treating appellant for MS for a
number of years. He related that she had a recent on-the-job injury in which she was shocked by
a light switch which exacerbated her condition. A cranial MRI scan on May 20, 2011 revealed
dozens of MS defects throughout the midbrain, cerebellum and cerebrum and additional mild
diffuse cerebral atrophy.
In a July 8, 2011 decision, OWCP denied appellant’s claim. It found that the factual
evidence did not support that the claimed event occurred as alleged.
In an August 1, 2011 report, Dr. Riser noted that appellant had MS which was
exacerbated following the recent on-the-job incident. Appellant was unable to return to work
because of persistent neurological defects. Dr. Riser saw her on August 4, 2011, and noted that
she was unable to report to work as she had persistent balance issues and cognitive problems. In
reports dated October 12 and December 1, 2011, he advised that appellant was frustrated by her
residual neurological problems including difficulty with cognition and balance. Appellant
ambulated with a rolling walker and had some problems with endurance, but did not have any
recent falls or neurological deterioration.
On June 28, 2012 appellant’s attorney requested reconsideration.2

2

On January 11, 2012 appellant appealed to the Board.
dismissing the appeal at her request. Docket No. 12-559.

2

The Board issued an order on August 31, 2012

In an April 11, 2012 report, Dr. Riser provided an update on appellant’s neurological
condition. Appellant had a recent exacerbation of MS and continued to have problems with
balance and memory and could not return to work. Dr. Riser noted that her prognosis was
guarded because of her persistent neurological defects despite treatment and physical therapy.
On June 27, 2012 he explained that appellant was stable until she was subjected to a specific
incident at work involving an electrical shock from a defective light switch. Following the
incident, appellant had a significant worsening of her neurological symptoms and her disease
despite aggressive treatment with steroids and other medications. Dr. Riser explained that she
went from being ambulatory and independent and able to work as a nurse, to only be able to
walk with the assistance of a rolling walker and was not able to return to gainful employment.
He opined that the “exacerbation of [appellant’s] disease appears to be permanent based on the
lack of interval improvement over this period of time.”
In a June 22, 2012 report, Dr. Michael L. Aitkens, a Board-certified internist, advised that
appellant was a patient who was diagnosed with mitral valve prolapse, palpitations,
hyperlipidemia, hypertension and MS. He noted that she was referred to him after she sustained
an electrical shock while at work. Dr. Aitkens related that appellant had fatigue and weakness.
He ordered physical therapy and aqua therapy and noted that she also had symptoms of restless
legs syndrome.
On January 14, 2013 appellant’s attorney requested reconsideration.
In a
January 25, 2012 letter, appellant stated that since May 9, 2011 she was off duty and continued
to have exacerbation of her MS and was unable to work. In a January 20, 2012 letter, appellant
described her injury. Photos of the light switch accompanied her letters. An October 8, 2010
MRI scan of the brain showed extensive bilateral T2 hyper intensities throughout the right and
left cerebral hemispheres typical for MS.
In an October 19, 2012 report, Dr. Riser explained that appellant was stable until an
incident at work in May 2011, when she sustained an electrical shock while entering a patient’s
room. He stated that this caused a “worsening of her neurological symptoms despite aggressive
treatment. Dr. Riser indicated that appellant walked with a rolling walker and had problems with
cognition, memory and balance. He advised that she was unable to return to work.
In a letter dated January 25, 2013, Lasiandra Smith, a workers’ compensation specialist,
controverted the claim. She noted that, when the incident occurred, the fire department was
called and tape was placed over the area in question until the engineering department could take
care of the matter.
By decision dated March 13, 2013, OWCP denied modification of the July 8, 2011
decision.
On March 28, 2013 counsel requested reconsideration. He contended that appellant
submitted sufficient evidence to establish her claim. In a February 21, 2013 report, Dr. Riser
noted that she was seen in follow up for secondary progressive prolapsing MS. He stated that
appellant had an overall “continent function now and Lipitor with a rolling walker, but had
problems with recurrent falls despite physical therapy efforts.” Dr. Riser noted that she was
concerned about the initial injury with a light switch which seemed to have accelerated her MS.

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By decision dated May 14, 2013, OWCP modified the March 13, 2013 decision. It found
that the light switch incident occurred as alleged. OWCP found that the medical evidence was
not sufficient to establish that the light switch incident worsened appellant’s preexisting MS.
On July 10, 2013 appellant’s attorney requested reconsideration. He reiterated that
appellant provided sufficient evidence to establish the claim. OWCP also received another
statement from her describing her employment incident.
In a June 25, 2013 report, Dr. Riser noted that appellant was his patient for the past 20
years with relapsing remitting MS. Appellant was stable working full time as a nurse with
minimal neurological problems until she was shocked by a defective light switch on May 9, 2011
at work. Following the incident, she had significant progression of her disease, including
problems with her vision, thinking ability and balance such that she was unable to work in any
capacity and required a rolling walker for ambulation. Dr. Riser explained that the cranial MRI
scan subsequent to the injury did not show any significant changes. Due to appellant’s abnormal
baseline MRI scan, there often was no direct correlation between the clinical disease activity and
MRI scan findings. Dr. Riser opined that “the shock caused by the light switch had a negative
impact on her MS which has persisted to this day.”
By decision dated October 8, 2013, OWCP denied modification of the May 14, 2013
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA4 and that an injury was sustained in the performance of duty.5 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.7 In some traumatic injury cases, this
component can be established by an employee’s uncontroverted statement on the Form CA-1.8
3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989).

5

James E. Chadden, Sr., 40 ECAB 312 (1988).

6

Delores C. Ellyett, 41 ECAB 992 (1990).

7

Julie B. Hawkins, 38 ECAB 393, 396 (1987); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of
Injury, Chapter 2.803.2a (June 1995).
8

John J. Carlone, 41 ECAB 354 (1989).

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Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.9
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, must be one of reasonable medical certainty and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.10
ANALYSIS
The Board finds that this case is not in posture for decision.
Appellant alleged that on May 9, 2011 she was shocked when she turned on a light
switch. She felt a sharp jolt to her left finger and arm into her chest. OWCP accepted that the
incident occurred as alleged.
The issue is whether the medical evidence is sufficient to establish that the employment
incident caused an injury. The medical reports from Dr. Riser are generally supportive of
appellant’s claim. Dr. Riser stated that he had followed appellant for 20 years and found that the
May 9, 2011 incident exacerbated her MS. On May 18, 2011 he noted that she was a patient of
his for a number of years with relapsing MS and advised that she had a recent on-the-job injury
in which she was shocked by an open light switch which caused an exacerbation of her
preexisting condition. In an August 1, 2011 report, Dr. Riser noted that appellant had MS which
was exacerbated by the May 9, 2011 incident. He advised that she was unable to return to work
because of persistent neurological defects. In a June 27, 2012 report, Dr. Riser explained that
“following the incident, [appellant] had significant worsening of her neurological symptoms and
her disease despite aggressive treatment.” He noted that she went from being ambulatory and
independent in her employment as a nurse but was disabled for gainful employment and her
condition was permanent. Dr. Riser advised that the electrical shock caused a worsening of
appellant’s neurological symptoms. After the incident, appellant had significant progression of
her disease including problems with her vision, thinking ability and balance such that she was
been unable to work in any capacity and required a rolling walker for ambulation. Dr. Riser
opined that “the shock caused by the light switch had a negative impact on her MS which has
persisted to this day.” While none of these reports were completely rationalized, they were
consistent in indicating that appellant sustained an employment-related exacerbation of her MS.
Proceedings under FECA are not adversarial in nature nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.11 While

9

See supra note 8. For a definition of the term “traumatic injury,” see 20 C.F.R. § 10.5(ee).

10

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

11

William J. Cantrell, 34 ECAB 1223 (1983).

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Dr. Riser did not provide sufficient rationale in his support of causal relationship, his reports
raise an inference of causal relationship sufficient to require further development of the case.12
On remand, OWCP should refer appellant, the case record and a statement of accepted
facts to an appropriate specialist for an evaluation and a rationalized medical opinion on whether
the May 9, 2011 incident caused or contributed to her condition and disability for work. After
such further development of the case record as OWCP deems necessary, a de novo decision shall
be issued.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the October 8, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and remanded.
Issued: April 15, 2014
Washington, DC

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

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

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

12

See supra note 8; Horace Langhorne, 29 ECAB 820 (1978).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Springfield, IL, Employer
__________________________________________

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

Docket No. 19-0710
Issued: September 9, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 19, 2019 appellant filed a timely appeal from an August 29, 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 over the merits of this case.2

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2

5 U.S.C. § 8101 et seq.

The Board notes that following the August 29, 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 evidence for
the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish more than 13 percent
permanent impairment of his left lower extremity, for which he previously received a schedule
award.
FACTUAL HISTORY
Appellant filed a traumatic injury claim (Form CA-1) alleging that on February 19, 2014
he sustained an injury due to a fall which occurred while in performance of duty. OWCP accepted
that he sustained thoracic/lumbosacral neuritis or radiculitis, spinal stenosis of the lumbar region,
and lumbar radiculopathy. On February 19, 2015 Dr. Brian Russell, a Board-certified orthopedic
surgeon, performed OWCP-authorized lumbar surgery, including microforaminotomy and
microdiscectomy at L4-5.3
Dr. Russell continued to treat appellant’s back and lower extremity conditions and noted
in periodic reports dated in 2015 and 2016 that appellant reported weakness and sensory loss in
his left lower extremity.
On February 19, 2016 appellant filed a claim for a schedule award (Form CA-7) due to his
February 19, 2014 employment injury. In a March 11, 2016 development letter, OWCP requested
that he submit a medical report evaluating his lower extremity permanent impairment under the
standards of the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides),4 but appellant did not provide such evidence within the
allotted 30 days. By decision dated September 12, 2016, it denied appellant’s schedule award
claim finding that he had not met his burden of proof to establish employment-related permanent
loss, or loss of use, of a listed member or function of the body.
Appellant continued to claim entitlement to schedule award compensation. In a June 7,
2017 report, Dr. Neil Allen, a Board-certified internist and neurologist, reported the findings of his
physical examination, noting that appellant had 4/5 strength of the extensor hallicus longus
associated with the left L5 nerve distribution, as well as loss of sharp/dull discrimination over the
L3 dermatome on the left and the L5 dermatome on the right. He indicated that he was applying
the diagnosis-based impairment (DBI) method of rating the permanent impairment of appellant’s
lower extremities. Under Proposed Table 2 of The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter),
appellant’s severe sensory deficit associated with the L3 nerve distribution of the left lower
extremity warranted a class 1 default value of four percent. Dr. Allen determined that appellant
had a functional history grade modifier (GMFH) of 0 and a clinical studies grade modifier (GMCS)
of 2. He found that the physical examination grade modifier (GMPE) was not applicable.
Application of the net adjustment formula required no adjustment from the four percent default
value, and resulted in appellant having four percent permanent impairment due to sensory deficit
3

Appellant stopped work on February 19, 2014 and returned to full-duty work on March 4, 2015. OWCP paid him
wage-loss compensation on the supplemental rolls.
4

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

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associated with the L3 nerve distribution of the left lower extremity. Dr. Allen indicated that
appellant’s mild sensory deficit associated with the L5 nerve distribution of the left lower
extremity warranted a class 1 default value of one percent. He determined that appellant had a
GMFH of 2 and a GMCS of 2. Dr. Allen found that the GMPE was not applicable. Application
of the net adjustment formula required +2 adjustment from the one percent default value, and
resulted in appellant having two percent permanent impairment due to sensory deficit associated
with the L5 nerve distribution of the left lower extremity.
Dr. Allen further found that, under Proposed Table 2, appellant’s mild motor deficit
associated with the L5 nerve distribution of the left lower extremity warranted a class 1 default
value of five percent. He determined that appellant had a GMFH of 2 and a clinical studies grade
modifier GMCS of 2. Dr. Allen found that the physical GMPE was not applicable. Application
of the net adjustment formula resulted in +2 adjustment from the default value, and resulted in
nine percent permanent impairment due to motor deficit associated with the L5 nerve distribution
of the left lower extremity. Dr. Allen noted that adding the above-noted 4, 2, and 9 percent values
resulted in 15 percent permanent impairment of appellant’s left lower extremity. With respect to
the right lower extremity, he indicated that appellant’s severe sensory deficit associated with the
right L5 nerve distribution warranted a class 1 default value of six percent. He determined that
appellant had a GMFH of 2 and a GMCS of 2. Dr. Allen found that the GMPE was not applicable.
Application of the net adjustment formula yielded +2 adjustment, but did not change the six
percent default value. Therefore, appellant had six percent permanent impairment of the right
lower extremity.
On September 26, 2017 OWCP referred appellant’s case to Dr. Michael M. Katz, a Boardcertified orthopedic surgeon serving as an OWCP district medical adviser (DMA). It requested
that he review the case record, including Dr. Allen’s June 7, 2017 report, and provide an opinion
on the permanent impairment of appellant’s lower extremities under the standards of the sixth
edition of the A.M.A., Guides.
In a September 28, 2017 report, the DMA provided an extensive description of Dr. Allen’s
June 7, 2017 permanent impairment rating. He noted that Dr. Allen’s impairment rating raised
concerns because he identified sensory and motor deficits in appellant’s right lower extremity
which had not been identified by Dr. Russell or any other evaluator. The DMA recommended that
appellant be referred to an orthopedic surgeon or physical medicine and rehabilitation physician
for a second opinion examination and an impairment rating with respect to appellant’s lower
extremities.
In April 2018 OWCP referred appellant to Dr. Yibing Li, a Board-certified physical
medicine and rehabilitation physician, for a second opinion examination. It requested that she
provide an impairment rating of the lower extremities under the standards of the sixth edition of
the A.M.A., Guides.
In her June 14, 2018 report, Dr. Li discussed appellant’s factual and medical history and
reported the findings of her physical examination. She noted that appellant had decreased
sensation of the left L5 dermatomes and that muscle strength was 4/5 on the left side ankle
dorsiflexor. Appellant had 5/5 on the strength in the left hip flexors, knee extension, and plantar
flexors. For the right lower extremity, he had 5/5 strength in the key muscles and no sensory loss

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was identified. Dr. Li calculated permanent impairment of the left lower extremity utilizing the
DBI method found in The Guides Newsletter. She concluded that appellant had five percent
permanent impairment due to sensory deficit associated with the L5 nerve distribution of the left
lower extremity. Appellant also had 13 percent permanent impairment due to motor deficit
associated with the L5 nerve distribution of the left lower extremity. Dr. Li noted that combining
the 5 percent and 13 percent values, under the Combined Values Chart of the sixth edition of the
A.M.A., Guides, resulted in 17 percent permanent impairment of appellant’s left lower extremity.
She did not identify any permanent impairment of appellant’s right lower extremity.
On August 10, 2018 OWCP again referred appellant’s case to Dr. Katz in his capacity as
physician DMA. It requested that he review the case record, including the June 14, 2018 findings
of Dr. Li, and provide an opinion on the permanent impairment of appellant’s lower extremities
under the standards of the sixth edition of the A.M.A., Guides.
In an August 13, 2018 report, the DMA indicated that he was applying the DBI method of
rating the permanent impairment of appellant’s left lower extremity. Under Proposed Table 2 of
The Guides Newsletter, appellant’s moderate sensory deficit associated with the L5 nerve
distribution of the left lower extremity warranted a class 1 default value of three percent. Dr. Katz
determined that appellant had a GMFH of 1, a GMPE of 2, and a GMCS of 2. Application of the
net adjustment formula required +2 adjustment from the three percent default value, and resulted
in appellant having 5 percent permanent impairment due to sensory deficit associated with the L5
nerve distribution of the left lower extremity. The DMA further found that, under Proposed Table
2, appellant’s moderate motor deficit associated with the L5 nerve distribution of the left lower
extremity warranted a class 1 default value of 13 percent. He determined that appellant had a
GMFH of 1, a GMPE of 2, and a GMCS of 2. Application of the net adjustment formula resulted
in +2 adjustment from the default value, and resulted in 13 percent permanent impairment due to
motor deficit associated with the L5 nerve distribution of the left lower extremity. The DMA noted
that combining the 5 percent and 13 percent values, under the Combined Values Chart of the sixth
edition of the A.M.A., Guides, resulted in 17 percent permanent impairment of appellant’s left
lower extremity. The DMA indicated that the range of motion (ROM) method of rating permanent
impairment was not available for appellant’s left lower extremity condition. However, Proposed
Table 2 provided that the maximum permanent impairment for impairment associated with a single
nerve was 13 percent, and therefore the total permanent impairment of appellant’s left lower
extremity was 13 percent.
With respect to application of the DBI rating method for appellant’s right lower extremity,
the DMA indicated that, under Proposed Table 2, appellant had a class 0 permanent impairment
rating for sensory deficit associated with the L3, L4, L5, and S1 nerve distributions. Therefore,
appellant had no permanent impairment of his right lower extremity due to sensory deficit. In
addition, Proposed Table 2 provided that appellant had a class 0 permanent impairment rating for
motor deficit associated with the L3, L4, L5, and S1 nerve distributions and, therefore, he had no
permanent impairment of his right lower extremity due to motor deficit. The DMA indicated that
this assessment was based on Dr. Li’s finding that appellant had no sensory or motor deficit in his
right lower extremity. He also indicated that the ROM method of rating permanent impairment
was not available for appellant’s right lower extremity condition.

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By decision dated August 29, 2018, OWCP granted appellant a schedule award for 13
percent permanent impairment of his left lower extremity. The award ran for 37.44 weeks from
June 14, 2018 to March 3, 2019 and was based on the August 13, 2018 opinion of Dr. Katz in his
capacity as the DMA, who evaluated the June 14, 2018 findings of Dr. Li.
LEGAL PRECEDENT
The schedule award provisions of FECA5 and its implementing regulations6 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 to all claimants, OWCP has adopted the A.M.A., Guides as
the uniform standard applicable to all claimants.7 As of May 1, 2009, the sixth edition of the
A.M.A., Guides is used to calculate schedule awards.8
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole.9 However, a schedule
award is permissible where the employment-related spinal condition affects the upper and/or lower
extremities.10 The sixth edition of the A.M.A., Guides (2009) provides a specific methodology for
rating spinal nerve extremity impairment in The Guides Newsletter. It was designed for situations
where a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded
ratings for the spine. The FECA-approved methodology is premised on evidence of radiculopathy
affecting the upper and/or lower extremities. Proposed Table 2 of The Guides Newsletter provides
that the maximum permanent impairment for impairment associated with a single nerve is 13
percent. The appropriate tables for rating spinal nerve extremity impairment are incorporated in
the Federal (FECA) Procedure Manual.11

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. See also T.T., Docket No. 18-1622 (issued May 14, 2019).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
and Exhibit 1 (January 2010).
9

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see A.G., Docket No. 18-0815 (issued January 24, 2019); Jay K.
Tomokiyo, 51 ECAB 361, 367 (2000).
10

Supra note 8 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.5c(3)
(March 2017).
11

Supra note 8 at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (January 2010).

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ANALYSIS
The Board finds that appellant has not met his burden of proof to establish more than 13
percent permanent impairment of his left lower extremity, for which he previously received a
schedule award.
The Board notes that on August 13, 2018 Dr. Katz, the DMA, properly evaluated the
June 14, 2018 findings of Dr. Li and determined that appellant had 13 percent permanent
impairment of his left lower extremity and 0 percent permanent impairment of his right lower
extremity.12
In his August 13, 2018 report, the DMA applied the DBI method of rating the permanent
impairment of appellant’s left lower extremity, noting that, under Proposed Table 2 of The Guides
Newsletter, appellant’s moderate sensory deficit associated with the L5 nerve distribution of the
left lower extremity warranted a class 1 default value of three percent. He determined that
appellant had a GMFH of 1, a GMPE of 2, and a GMCS of 2. Application of the net adjustment
formula required +2 adjustment from the three percent default value, and resulted in appellant
having five percent permanent impairment due to sensory deficit associated with the L5 nerve
distribution of the left lower extremity. The DMA provided a similar evaluation for motor deficit
associated with the L5 nerve distribution which resulted in 13 percent permanent impairment due
to motor deficit associated with the L5 nerve distribution of the left lower extremity. He combined
the 5 percent and 13 percent values under the Combined Values Chart, which resulted in 17 percent
permanent impairment of appellant’s left lower extremity.13 However, Proposed Table 2 provides
that the maximum permanent impairment for impairment associated with a single nerve was 13
percent, and therefore the total permanent impairment of appellant’s left lower extremity was 13
percent.14 With respect to application of the DBI rating method for appellant’s right lower
extremity, the DMA indicated that, under Proposed Table 2, appellant had a class 0 permanent
impairment rating for sensory deficit and motor deficits associated with the L3, L4, L5, and S1
nerve distributions. Therefore, appellant had no permanent impairment of his right lower
extremity due to sensory or motor deficits. The DMA indicated that this assessment was based on
Dr. Li’s finding that appellant had no sensory or motor deficit in his right lower extremity. He
also indicated that the ROM method of rating permanent impairment was not available for
appellant’s right lower extremity condition.

12

The DMA had properly recommended that appellant be referred for a second opinion examination given his
concerns that Dr. Allen’s June 7, 2017 permanent impairment rating identified sensory and motor deficits in
appellant’s right lower extremity which had not been identified by Dr. Russell or any other evaluator. See generally
supra note 8 at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6f (February 2013)
(regarding the role of DMA’s in evaluating permanent impairment ratings).
13
A.M.A., Guides 604, Combined Values Chart. The DMA properly indicated that the A.M.A., Guides does not
contain any provision allowing for use of the ROM method of rating permanent impairment for appellant’s left lower
extremity condition.
14

See supra note 11. The Board notes that Dr. Li had also initially calculated that appellant had 17 percent
permanent impairment of his left lower extremity, but she failed to acknowledge that, under The Guides Newsletter,
the maximum permanent impairment for impairment associated with a single nerve was 13 percent.

6

The Board therefore finds that the report of Dr. Katz serving as the DMA is well
rationalized and makes proper citation to the applicable rating A.M.A., Guides and therefore is
entitled to the weight of the evidence. As there is no rationalized medical report providing a rating
of permanent impairment greater than that provided by the DMA, the Board finds that appellant
had not met his burden of proof to establish more than 13 percent permanent impairment of his
left lower extremity, for which he previously received a schedule award.
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 more than 13
percent permanent impairment of his left lower extremity, for which he previously received a
schedule award.
ORDER
IT IS HEREBY ORDERED THAT the August 29, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 9, 2019
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.M., Appellant
and
U.S. POSTAL SERVICE, GRAND CROSSING
POST OFFICE, Chicago, IL, Employer
__________________________________________

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

Docket No. 09-278
Issued: September 22, 2009

Case Submitted on the Record

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

JURISDICTION
On November 7, 2008 appellant filed a timely appeal from the nonmerit decision of the
Office of Workers’ Compensation Programs dated May 30, 2008, denying appellant’s request for
reconsideration of the merits of her claim. Her appeal is also timely filed from the June 27, 2008
decision, denying review of the written record. Because more than one year has elapsed between
the last merit decision, i.e., the hearing representative’s decision dated April 30, 2007 and the
appeal filed on November 7, 2008, the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUES
The issues are: (1) whether the Office properly denied appellant’s request for
reconsideration of the merits pursuant to 5 U.S.C. § 8128(a); and (2) whether the Office properly
denied appellant’s request for review of the written record as she first requested reconsideration
pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant raises various arguments with regard to the manner in which the
Office dealt with her claim and argues various substantive issues, including, but not limited to,

whether the schedule award was properly issued. Her specific arguments include, inter alia, that
the Office erroneously issued a decision on September 25, 2007 denying a reconsideration
request when, in fact, no request had been filed and therefore making all decisions after it
invalid; that the Office ignored evidence; that the Office abused its discretion and that the Office
erred in evaluating the amount of the schedule award under the American Medical Association,
Guidelines to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001).
Appellant also contends that the July 23, 2007 report of Dr. Samuel J. Chmell, a Board-certified
orthopedic surgeon, constitutes new evidence requiring merit review.
FACTUAL HISTORY
On April 5, 2000 appellant, then a 42-year-old letter carrier, filed an occupational disease
claim alleging that, as a result of her federal duties in casing and pulling mail, she suffered from
lumbar radiculopathy; pain in her right leg and right foot possibly secondary to sympathetic
hyperactivity; and facet joint arthropathy on the right side at level L4 and L5. The Office
accepted her claim for lumbar radiculopathy radiating to the right leg.
On July 18, 2005 appellant submitted a claim for a schedule award. In support thereof,
she submitted a June 26, 2006 report by Dr. Chmell wherein he indicated that he applied the
A.M.A., Guides and determined that appellant had a 100 percent impairment of her right lower
extremity as a result of injuries she sustained on March 1, 1999 at work causing her lumbar disc
herniation with radiculopathy.1 The Office medical adviser reviewed appellant’s file and
determined that appellant had an eight percent impairment of the right lower extremity.2 On
1

Dr. Chmell indicated that appellant’s physical examination demonstrated that she had diminished strength at the
right ankle and foot, Grade 4- plantar flexion strength, Grade 4- dorsiflexion strength, Grade 4- inversion and
eversion strength and Grade 4- great toe extension and flexion. He noted that, as a result of these muscle strength
deficits, there was a 40 percent degree of permanent impairment to the right lower extremity. Dr. Chmell also noted
that appellant demonstrated a gait derangement with a limp in the right leg. He noted that she demonstrated that she
can rise to a standing position and can walk some distance with difficulty, but is limited to level surfaces in her
ambulation. Dr. Chmell noted that this indicated a 15 percent impairment. He also noted a deficiency with regard to
sensory testing on physical examination with diminished sensation and pain in her right leg, ankle and foot
interfering with activity, which comprised 40 percent permanent impairment to the right lower extremity.
Dr. Chmell noted that, as a result of these deficits, appellant had a 100 percent impairment to her right lower
extremity. In support of his figures, he attached copies of pages from the A.M.A., Guides, (4th ed. 1995).
2

Using the fifth edition of the A.M.A., Guides, the Office medical adviser noted that an impairment could not be
awarded for the axial skeleton for the person as a whole, only for extremities. He also noted that muscle strength
cannot be combined with gait derangement, muscle atrophy, range of motion and arthritis. A.M.A., Guides 526,
Table 17-2. The Office medical adviser indicated that, with regard to the L5 nerve root, appellant had a one percent
permanent impairment resulting from Grade 4 pain/sensory deficit in the distribution of the L5 nerve root. A.M.A.,
Guides 424, Tables 15-15 and 15-18. The Office medical adviser also noted that appellant had a four percent
permanent impairment resulting from Grade 4 motor deficit in the distribution of the L5 nerve root. A.M.A., Guides
424, Table 15-16 and 15-18. Using the Combined Values Chart, he noted that appellant had a five percent
impairment resulting from an L5 nerve root radiculopathy. With regard to the S1 nerve root, the Office medical
adviser found a one percent permanent impairment resulting from Grade 4 pain/sensory deficit in the distribution of
the S1 nerve root. A.M.A., Guides 424, Tables 15-15 and 15-18. The Office medical adviser also noted a two
percent permanent impairment due to Grade 4 motor deficit in the distribution of the S1 nerve root. A.M.A., Guides
424, Tables 15-16 and 15-18. Using the Combined Values Chart, the Office medical adviser found that appellant
was entitled to a three percent impairment of the right upper extremity for S1 nerve root radiculopathy. He then
determined that, using the Combined Values Chart, appellant should receive and award as based on an eight percent
right lower extremity impairment.

2

August 30, 2006 the Office issued a schedule award for an eight percent impairment of her right
lower extremity. On September 13, 2006 appellant requested an oral hearing. On March 7, 2007
she submitted her own calculations wherein she discussed the A.M.A., Guides and the medical
evidence and indicated that she was entitled to a schedule award of 62 percent of her right lower
extremity. At the hearing held on February 13, 2007, appellant argued that she was entitled to a
greater schedule award than she received. By decision dated April 30, 2007, the hearing
representative affirmed the finding that appellant had no more than an eight percent impairment
of her right lower extremity.
By letter dated July 23, 2007, Dr. Chmell responded to the Office’s request that he
recalculate appellant’s permanent impairment due to her lumbar disc herniation with
radiculopathy. He noted that his previous calculations were criticized because he used the 4th
edition of the A.M.A., Guides rather than the 5th edition. Dr. Chmell indicated that his
determinations and calculations had not changed. He stated that the tables had not changed
between the 4th and 5th edition, that the A.M.A., Guides had been reorganized and reissued so
that the A.M.A., Guides could make more money. Dr. Chmell sent his prior calculations to the
Office but attached a copy of selected pages from the 5th edition of the A.M.A., Guides.
On June 20, 2007 appellant filed requests for review of the April 30, 2007 decision with
this Board. However, she subsequently requested that her appeal be withdrawn so that she could
pursue reconsideration before the Office. Accordingly, by orders dated August 16, 2007, the
Board dismissed appellant’s appeal.3
On September 25, 2007 the Office issued a decision, denying modification after
reviewing the merits of appellant’s case. By letter to appellant dated November 19, 2007, it
indicated that she correctly stated that the Office erroneously indicated that she had requested
reconsideration. The Office noted that it had erroneously interpreted the Board’s dismissal of the
appeal as a request for reconsideration. It noted that this had no impact on appellant’s appeal
rights as she still had one year from the last merit decision, the April 30, 2007 hearing
representative’s decision, to request reconsideration.
On April 21, 2008 appellant filed a request for reconsideration of the April 30, 2007
hearing representative decision. She alleged that the Office’s decision was biased, that the
claim’s examiner ignored evidence, that the A.M.A., Guides were not properly applied and that
the Chicago District Office has adopted “a culture of denial.” Appellant also noted that
Dr. Chmell submitted an amended award determination on July 23, 2007. She also submitted
evidence that had been submitted previously.
By decision dated May 30, 2008, the Office denied appellant’s request for
reconsideration without merit review.
On June 27, 2008 appellant requested review of the written record. By decision dated
September 15, 2008, the Office denied her request. It noted that the record revealed that a
reconsideration had previously been requested under section 8128 and therefore appellant was
not entitled to a review of the written record as a matter of right. The Office also reviewed
3

Docket Nos. 07-1777 and 07-1778.

3

appellant’s request under its discretionary powers and further denied her request as the issue
could be equally well addressed by requesting reconsideration and submitting further evidence.
LEGAL PRECEDENT -- ISSUE 1
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,4 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.5 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.6 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.7
ANALYSIS -- ISSUE 1
In the instant case, on April 21, 2008 appellant filed a timely request for reconsideration
of the April 30, 2007 decision of the hearing representative affirming the Office’s determination
that she had an eight percent impairment of the right lower extremity. In a decision dated
May 30, 2008, the Office denied her request for reconsideration without merit review. The
Board finds that the Office properly denied reconsideration. Appellant has not submitted any
new relevant legal argument nor showed that the Office erroneously applied or interpreted a
specific point of law. She repeated arguments made and rejected earlier that the Office
improperly applied the A.M.A., Guides. It is well established that to ensure consistent results
and equal justice under the law to all claimants, the Office has adopted the A.M.A., Guides as the
uniform standard applicable to all claimants.8 Furthermore, the 5th edition of the A.M.A., Guides
has been adopted by the implementing regulations as the appropriate standard for evaluating
schedule losses.9 Schedule award calculations are made by a physician; appellant’s calculations
of her level of impairment are not entitled to any weight. Accordingly, appellant has not met the
criteria for the first two elements for showing that she was entitled to reconsideration.
With regard to the third element, submissions of pertinent new evidence not previously
considered by the Office, the only new evidence, the July 23, 2007 report by Dr. Chmell, is
repetitive of his prior report. Basically, Dr. Chmell xeroxed his old report of June 26, 2006. He
4

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

20 C.F.R. § 10.606(b)(2).

6

Id. at § 10.607(a).

7

Id. at § 10.608(b).

8

Id. at § 10.404(a).

9

Id.

4

provided no further explanation other than to attach pages from the 5th edition of the A.M.A.,
Guides. The Board has held that material which is repetitious or duplicative of that already in
the case record is of no evidentiary value in establishing a claim and does not constitute a basis
for reopening a case.10 This type of material is prima facie insufficient to warrant review.11
Appellant has not established that the Office improperly refused to reopen her claim for
review of the merits under section 8128(a) of the Act. She did not show that the Office
erroneously applied or interpreted a specific point of law, advance a relevant legal argument not
previously considered by the Office or submit relevant and pertinent new evidence not
previously considered by the Office.
The majority of appellant’s remaining argument’s made on appeal regard the merits of
her case. As stated supra, the Board does not have jurisdiction over the merits of this case and
will only consider on appeal whether the Office properly exercised its discretion in denying
reconsideration of the merits. Furthermore, appellant’s argument that, as the Office issued a
decision denying a request for reconsideration on September 25, 2007 when she had not filed a
request for reconsideration at the time, all subsequent decisions were not valid is without merit.
The Office acknowledged by letter dated November 19, 2007 that appellant had not filed a
request for reconsideration at that time. Appellant was in no way harmed by this decision. The
Board further notes that an award for or against payment of compensation may be reviewed at
any time on the Director’s own motion.12 Accordingly, appellant’s arguments are without merit.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of the Act provides in pertinent part as follows:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary ... is entitled, on request made within
30 days after the date of the issuance of the decision, to a hearing on his claim
before a representative of the Secretary.”13
The claimant can choose between two formats: an oral hearing or a review of the written
record. The requirements are the same for either choice.14 The Board has held that section
8124(b)(1) is unequivocal in setting forth the time limitation for requesting hearings or reviews
of the written record. A claimant is entitled to a hearing or review of the written record as a
matter of right only if the request is filed within the requisite 30 days as determined by postmark

10

Eugene F. Butler, 36 ECAB 393 (1984).

11

Id.

12

5 U.S.C. § 8128(a); 20 C.F.R. § 10.610.

13

20 C.F.R. § 10.615.

14

Claudio Vazquez, 52 ECAB 496, 499 (2001).

5

or other carrier’s date marking15 and before the claimant has requested reconsideration.16 When
the request is not timely filed or when reconsideration has previously been requested, the Office
may within its discretion grant or deny a hearing or review of the written record and must
exercise this discretion.17
ANALYSIS -- ISSUE 2
Appellant is not entitled to review of the written record if she has previously requested
reconsideration. She filed her request for review of the written record on June 27, 2008.
Appellant had previously requested reconsideration of the April 30, 2007 hearing representative
decision on April 21, 2008, which the Office denied on May 30, 2008. Accordingly, she was not
entitled to a review of the written record as a matter or right.
The Office then properly exercised its discretion and determined that the issue in the case
could equally well be addressed in a request for reconsideration. As the only limitation on its
authority is reasonableness, abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment or actions taken which are contrary to both logic
and probable deductions from known facts.18 The Board finds that there is no evidence of record
that the Office abused its discretion in denying appellant’s request. Thus, the Board finds that
the Office’s denial of appellant’s request for a review of the written record was proper under the
law and the facts of this case.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for reconsideration of
the merits pursuant to 5 U.S.C. § 8128(a). The Board further finds that the Office properly
denied appellant’s request for review of the written record, as she first requested reconsideration
pursuant to 5 U.S.C. § 8128(a).

15

20 C.F.R. § 10.616(a). Tammy J. Kenow, 44 ECAB 619 (1993).

16

Martha A. McConnell, 50 ECAB 129, 130 (1998).

17

Id.

18

Daniel J. Perea, 42 ECAB 214 (1990).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated September 15 and May 30, 2008 are affirmed.
Issued: September 22, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


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

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

Docket No. 07-235
Issued: May 14, 2007

Case Submitted on the Record

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

JURISDICTION
On November 3, 2006 appellant filed a timely appeal from a September 6, 2006 decision
of the Office of Workers’ Compensation Programs, adjudicating his schedule award claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has more than a 24 percent permanent impairment of the
right lower extremity.

FACTUAL HISTORY
This case was previously before the Board. By decision dated March 13, 2006, the Board
remanded an October 18, 2005 Office schedule award decision for further development of the
medical evidence.1 The March 13, 2006 Board decision is incorporated herein by reference.
On May 16, 2006 the Office referred appellant to Dr. Paul Harlan Wright, a Boardcertified surgeon, for an impairment rating of his right lower extremity. On June 22, 2006
Dr. Wright provided a history of appellant’s condition and findings on examination. He stated:
“In the category of arthritis, there are guidelines in Table 17-31 on page 544. We
have radiographs today and I cannot measure any joint loss. However, he
obviously has chronic changes consistent with traumatic arthritis…. The footnote
on Table 17-31 indicates 5 percent lower extremity impairment for the patella
with a history of direct trauma and crepitation on physical examination, but
without joint space narrowing on x-rays. In addition, he clearly has a degree of
traumatic arthritis involving the tibial femoral articulation, especially the lateral
compartment. In this regard, I think the rating for arthritis of the knee would be at
least 10 percent of the lower extremity.
“On evaluation of range of motion today, we can use Table 17-10 on page 537. I
suspect that we could achieve more than 110 degrees of flexion, but probably not
normal flexion. Likewise, we may be able to achieve a few more degrees of
extension than what was measured. However, [appellant] did not have full
extension of the knee even under general anesthesia. It looks like the appropriate
rating for range of motion technique would be somewhere between 10
and 30 percent. I would, therefore, assign a rating of 20 percent for the range of
motion technique.
“In looking at gait analysis, we can use Table 17-5 on page 529. In all likelihood,
the most appropriate category is mild-A, indicating a … lower extremity
impairment of 17 [to] 18 percent.
“In looking at the diagnosis based estimates, we can use Table 17-33 on page 546.
[Appellant’s] records indicate that he has had a partial medial and lateral
meniscectomy with a rating of 10 percent of the lower extremity. He has also had
articular cartilage procedures, which are not listed specifically. Using the
approximation technique, it seems reasonable to look at the value for undisplaced
plateau fracture, which corresponds to five percent of the lower extremity. This
gives a total for diagnosis based estimate at 15 percent of the lower extremity.
1

Docket No. 06-229 (issued March 13, 2006). Appellant, a mail processor, sustained a right knee sprain and
aggravation of right knee osteoarthritis in the performance of duty on October 8, 2002. By decision dated March 23,
2005, the Office granted appellant a schedule award for a 20 percent impairment of the right lower extremity. On
October 18, 2005 the Office denied appellant’s request for further merit review. This case was combined with a
case accepted for a right knee meniscus tear on May 30, 1995. Appellant was granted two schedule awards totaling
a 20 percent impairment of the right lower extremity for the 1995 employment injury (18 percent plus 2 percent).

2

“After going through these techniques, we need to look at the cross usage table,
Table 17-2 on page 526. The gait derangement method is a stand alone technique
and would be 17 [to] 18 percent of the lower extremity. The range of motion does
not combine with any other of today’s methods and would be 20 percent of the
lower extremity. The arthritis method (10 percent) and the diagnosis based
estimate (15 percent) do combine to give a total value of 24 percent of the lower
extremity ([C]ombined [V]alue [C]hart on page 604).”
***
“Following the summary outlined in [s]ection 17.3 on page 555, we would use the
combination of degenerative joint disease [arthritis] and DBE [diagnosis based
estimate] to come up with a final permanent impairment rating of 24 percent of
the lower extremity.”
On August 2, 2006 the Office medical adviser stated that Dr. Wright correctly determined
that appellant had a 24 percent impairment of the lower extremity based on the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).2
On August 2, 2006 the Office advised appellant that, in its October 18, 2005 schedule
award decision, it incorrectly calculated the amount of compensation payable as $9,849.83 for a
20 percent impairment of the right lower extremity. The Office stated that appellant should have
been paid $38,274.68 (57.6 weeks of compensation multiplied by his weekly compensation rate
of $656.66 plus Consumer Price Index pay increases). The Office advised that it would pay
appellant an additional $28, 424.85 ($38,274.68 minus the $9,849.83 previously paid).
In an amended schedule award decision dated September 6, 2006, the Office granted
appellant an additional award in the amount of $7,564.67 for 11.52 weeks based on a four
percent impairment of the right lower extremity.3 The Office noted that it had previously granted
appellant compensation based on a 20 percent impairment of the right lower extremity.
LEGAL PRECEDENT
The schedule award provision of the Act4 and its implementing regulation5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, the Act does not
2

The Board notes that the Office claims examiner erroneously indicated that Dr. Wright was a referee physician,
rather than a second opinion physician.
3

The Federal Employees’ Compensation Act provides for 288 weeks of compensation for 100 percent loss or loss
of use of a lower extremity. 5 U.S.C. § 8107(c)(2). Multiplying 288 weeks by four percent equals 11.52 weeks of
compensation. The Board notes that appellant submitted additional evidence subsequent to the Office decision of
September 6, 2006. The Board’s jurisdiction is limited to the evidence that was before the Office at the time it
issued its final decision. See 20 C.F.R. § 501.2(c). The Board may not consider this evidence for the first time on
appeal.
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

3

specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides6 has been adopted by the implementing regulation as the
appropriate standard for evaluating schedule losses.
ANALYSIS
The Board finds that appellant has no more than a 24 percent impairment of the right
lower extremity causally related to his October 8, 2002 employment injury.
Dr. Wright provided findings on physical examination and correctly applied the fifth
edition of the A.M.A., Guides in determining that appellant had a 24 percent impairment of the
right lower extremity. He determined appellant’s impairment using range of motion
measurements, gait derangement, arthritis and diagnosis based estimates (based on his surgical
procedures). Dr. Wright determined that appellant’s arthritis impairment could be combined
with the diagnosis based estimate method and yielded a higher impairment than the other
methods in the A.M.A., Guides. He found that appellant had 10 percent impairment due to
arthritis and 15 percent for diagnosis based estimates according to Table 17-33 at page 546 for a
partial medial and lateral meniscectomy (10 percent) and an undisplaced plateau fracture
(5 percent). Dr. Wright combined the impairment for arthritis and diagnosis based estimates at
24 percent of the right lower extremity using the Combined Values Chart on page 604. The
Office found that appellant had previously been awarded a total of 20 percent impairment for his
1995 and 2002 right lower extremity injuries. Therefore, it correctly granted appellant a
schedule award based on a four percent additional impairment in its September 6, 2006 decision.
There is no probative medical evidence of record establishing that appellant has more than a
24 percent impairment of the right lower extremity.
CONCLUSION
The Board finds that appellant has no more than a 24 percent impairment of the right
lower extremity.

6

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

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 6, 2006 is affirmed.
Issued: May 14, 2007
Washington, DC

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

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

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

5


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

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

Docket No. 15-1062
Issued: July 23, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 14, 2015 appellant filed a timely appeal from an October 29, 2014 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated May 8, 2014 to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing
before an OWCP hearing representative as untimely filed.
FACTUAL HISTORY
On March 19, 2014 appellant, then a 58-year-old clerk, filed a traumatic injury claim
alleging that on March 17, 2014 he lost his balance, fell, and hit his head against the wall.
1

5 U.S.C. § 8101 et seq.

In a March 17, 2014 hospital report, Amy Rowe, a physician assistant, noted seeing
appellant in the emergency department where he was released to return to work on
March 19, 2014. She diagnosed cervical strain, concussion/head injury (adult), fall prevention,
head injury, headache, and postconcussive syndrome.
In a letter dated April 7, 2014, OWCP informed appellant that the evidence of record was
insufficient to establish his claim. Appellant was advised as to the medical and factual evidence
required and given 30 days to provide this information.
In response to OWCP’s letter, appellant submitted a statement further describing how the
March 17, 2014 incident occurred.
On April 29, 2014 OWCP received a March 17, 2014 report of Dr. Gary Kronick, a
Board-certified internist.2 The report related that the injury occurred while appellant was
walking into work when he saw an identification badge on the ground. As he bent over to pick
up the badge, appellant lost his balance and struck the wall with his head. Complaints included a
bump on his forehead, stiff neck and abrasion along the bridge of his nose. A physical
examination revealed multiple head and nose bruising.
By decision dated May 8, 2014, OWCP denied appellant’s claim as it found he failed to
establish fact of injury as there was no diagnosed condition.
On September 23, 2014 OWCP received appellant’s September 16, 2014 request for an
oral hearing, via telephone before an OWCP hearing representative. The request was
postmarked September 16, 2014.
By decision dated October 29, 2014, OWCP’s Branch of Hearings and Review denied
appellant’ hearing request as untimely filed. OWCP considered appellant’s request and
determined that his case could equally well be addressed by requesting reconsideration and
submitting new evidence.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that a claimant is entitled to a hearing before an
OWCP hearing representative when a request is made within 30 days after issuance of an OWCP
final decision.3 A claimant is not entitled to a hearing if the request is outside that time frame as
determined by receipt of the request.4 OWCP has discretion, however, to grant or deny a request

2

The American Board of Medical Specialties indicated that Dr. Kronick was not meeting maintenance of
certification requirements.
3

5 U.S.C. § 8124(b)(1). See A.B., 58 ECAB 546 (2007); Gerard F. Workinger, 56 ECAB 259 (2005).

4

20 C.F.R. § 10.616(b).

2

that is made after this 30-day period.5 In such a case, it will determine whether a discretionary
hearing should be granted or, if not, will so advise the claimant with reasons.6
ANALYSIS
A request for a hearing must, as noted above, be made within 30 days after the date of the
issuance of OWCP’s final decision. Appellant requested a telephone hearing before OWCP’s
Branch of Hearings and Review on a form dated and postmarked September 16, 2014 and
received on September 23, 2014 by the Board of Hearings and Review. Because the request was
received by OWCP more than 30 days following issuance of the May 8, 2014 decision, it was
untimely filed.
OWCP retains the discretion to grant an oral hearing even though a claimant is not
entitled to an oral hearing as a matter of right. The Board finds that OWCP, in its October 29
2014 decision, properly exercised its discretion. The decision stated that it had considered the
matter in relation to the issue involved and had denied appellant’s request for an oral hearing
because her claim could be addressed through a reconsideration application. The Board has held
that as the only limitation on OWCP’s authority is reasonableness. Abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment, or
actions taken which are contrary to both logic and probable deduction from established facts.7 In
the present case, the evidence shows that OWCP did not abuse its discretion when it denied
appellant’s request for an oral hearing.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing as it
was untimely filed.

5

Hubert Jones, Jr., 57 ECAB 467 (2006).

6

Teresa M. Valle, 57 ECAB 542 (2006).

7

Id.; Daniel J. Perea, 42 ECAB 214 (1990).

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ORDER
IT IS HEREBY ORDERED THAT the October 29, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 23, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.O., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Sutter Creek, CA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 13-1840
Issued: September 24, 2013

Case Submitted on the Record

ORDER REMANDING CASE AND DENYING REQUEST FOR ORAL
ARGUMENT
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On August 5, 2013 appellant filed an appeal of a May 29, 2013 final decision of the
Office of Workers’ Compensation Programs (OWCP).
The appeal was docketed as
No. 13-1840.
The May 29, 2013 OWCP decision finalizes a preliminary determination that an
overpayment of $148,642.64 was created and that appellant was at fault in creating the
overpayment. According to the record, on May 29, 2013 appellant submitted 36 pages of
evidence and argument with respect to the overpayment issues. There is no indication that
OWCP reviewed the evidence submitted on May 29, 2013. In the May 29, 2013 final decision,
OWCP states that appellant’s response to the preliminary determination was a letter dated
April 22, 2013 that was received on April 26, 2013.
It is well established that a claimant is entitled to a decision with findings of fact and a
statement of reasons,1 and the Board has held that OWCP must review all the evidence received
by OWCP prior to the issuance of its final decision.2 Board decisions are final with regard to the
1

20 C.F.R. § 10.126.

2

See Kenneth R. Love, 50 ECAB 193, 198 (1998); see also William A. Couch, 41 ECAB 548 (1990).

subject matter appealed, and it is crucial that OWCP consider all evidence relevant to the subject
matter that was properly submitted to OWCP prior to the issuance of its final decision, even if
received the same day of issuance.3 In the present case OWCP did not properly review the
relevant evidence of record. The case will be remanded to OWCP for proper consideration of
the evidence and an appropriate decision.4
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 29, 2013 is set aside and the case remanded for further
action consistent with this order of the Board.
Issued: September 24, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

3

See S.A., Docket No. 13-117 (issued April 25, 2013); Linda Johnson, 45 ECAB 439 (1994); Patsy R. Tatum, 44
ECAB 490 (1993).
4

Appellant requested an oral argument with respect to her appeal. In view of the Board’s findings, an oral
argument would only delay adjudication of the claim and serve no useful purpose.

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Montrose, CO, Employer
__________________________________________

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

Docket No. 09-2273
Issued: June 17, 2010

Case Submitted on the Record

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

JURISDICTION
On September 14, 2009 appellant filed a timely appeal from an April 10, 2009 decision
of the Office of Workers’ Compensation Programs concerning a schedule award. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant has established greater than 15 percent impairment of her
right upper extremity, for which she received a schedule award.
FACTUAL HISTORY
On October 24, 2007 appellant, then a 47-year-old clerk, filed an occupational disease
claim (Form CA-2) for a rotator cuff tear. She indicated that lifting parcels above her shoulders
caused her condition. The Office accepted the claim for impingement of the right shoulder and
right rotator cuff tear. On December 21, 2007 appellant underwent right shoulder cuff repair,
subacromial debridement, and biceps tendonesis, which the Office authorized. She returned to
work with restrictions on January 31, 2008 but stopped work July 25, 2008 to undergo an

authorized open distal claviculectomy performed by Dr. Vineet Singh, a Board-certified
orthopedic surgeon. Appellant was released to limited-duty work with restrictions on
September 11, 2008. On January 6, 2009 she underwent a functional capacity evaluation that
was ordered by Dr. Singh.1 On February 10, 2009 Dr. Singh opined that appellant had reached
maximum medical improvement and released her to modified work. The Office paid appropriate
compensation benefits.
In a January 28, 2009 report, Dr. Glen E. Oren, a Board-certified orthopedic surgeon and
associate of Dr. Singh, noted the history of injury and appellant’s medical treatment thereafter.
He noted his examination findings, which included well-healed arthroscopy portal site scars from
which appellant was nontender on palpation and from which she had palpation contraction
function in her posterior, middle and anterior right deltoid. No trapezial, paracervical or
parascapular muscle spasm was appreciated. Dr. Oren reviewed appellant’s restricted duty
request and opined, once maximum medical impairment status was declared, appellant was
capable of restricted duty, as outlined in her restricted-duty request, for eight hours a day.
On March 5, 2009 appellant filed a claim for a schedule award. She submitted a
March 3, 2009 report, from Dr. Ellen W. Price, an osteopath Board-certified in physiatry.
Dr. Price noted the history of injury, presented her physical examination findings from
February 20, 2009 and assessed mild to moderate subluxation with synovial hypertrophy. She
opined that appellant was at maximum medical improvement. Dr. Price noted appellant’s elbow
had 140 degree elbow flexion, 0 degree extension and 90 degrees supination and pronation.
Shoulder flexion was 125 degrees, extension 20 degrees, abduction 150 degrees, adduction 30
degrees, internal rotation 60 degrees, external rotation 60 degrees. Dr. Price noted that appellant
had evidence of mild to moderate crepitus and some mild to moderate instability while doing
range of motion. Under the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides), she opined that appellant had 20 percent
right upper extremity impairment. Dr. Price advised that appellant had nine percent range of
motion impairment for the shoulder. She also advised that appellant had impairment of the
glenohumeral joint secondary to multiple surgeries and synovial hypertrophy. Under Table 1618 of the A.M.A., Guides, Dr. Price noted that the maximum glenohumeral impairment equated
to 60 percent impairment of the upper extremity and, under Table 16-19 of the A.M.A., Guides,
she found that appellant had a moderate or 20 percent joint impairment from the synovial
hypertrophy. She multiplied the 60 percent impairment due to impairment of the glenohumeral
joint by the 20 percent impairment to find 12 percent impairment of the glenohumeral joint.
Dr. Price then combined the range of motion impairment of 9 percent with the glenohumeral
joint impairment of 12 percent to find 20 percent right upper extremity impairment.
On April 3, 2009 an Office medical adviser reviewed the medical evidence of record. He
opined that appellant reached maximum medical improvement on January 6, 2009, the date the
functional capacity evaluation was performed. The medical adviser opined that appellant had 15
percent right arm impairment. He advised this was for loss of right shoulder range of motion and
for undergoing a distal clavulectomy. The medical adviser disagreed with Dr. Price’s rating for
1

The functional capacity evaluation noted right arm active motion of 150 degrees of flexion, 85 degrees of
external rotation, 65 degrees of internal rotation and 140 degrees of abduction.

2

synovial hypertrophy. He advised that, under Table 16-19, page 500 of the A.M.A., Guides,
there must be a visibly apparent or palpatory evidence of synovial hypertrophy. The medical
adviser noted that Dr. Price did not document what findings were present for synovial
hypertrophy in the physical examination portion of her report. He noted that Dr. Oren had
evaluated appellant one month earlier and indicated that appellant’s scars had healed and there
was no pain with palpation. Dr. Oren did not mention a finding of synovial hypertrophy. Thus,
the Office medical adviser did not recommend a rating for synovial hypertrophy as the record did
not support either visual or palpatory evidence of the condition as required under Table 16-19.
Furthermore, he noted that Dr. Price had combined impairments for loss of range of motion with
synovial hypertrophy which is not allowed under page 500 of the A.M.A., Guides.
The Office medical adviser noted that appellant underwent a distal clavicle resection and,
under Table 16-27, page 506 of the A.M.A., Guides, she was eligible for 10 percent upper
extremity impairment. He then stated that, under pages 475, 476 and 478 of the A.M.A., Guides,
the “maximum active” shoulder motion taken by a goniometer must be used to rate impairment.
The medical adviser noted the greatest shoulder range of motion was found during the functional
capacity evaluation and used those values to rate appellant’s impairment. Under Figure 16-40,
page 476 of the A.M.A., Guides, he found 150 degrees flexion equaled two percent impairment
and 20 degrees extension equaled two percent impairment. Under Figure 16-43, page 477 of the
A.M.A., Guides, the Office medical adviser found that 30 degrees adduction equaled 1 percent
impairment and 150 degrees abduction equaled 1 percent impairment. Under Figure 16-43, page
479 of the A.M.A., Guides, he found 65 degrees internal rotation equaled 2 percent impairment
and 85 degrees external rotation equaled zero percent impairment. The medical adviser found
that the total range of motion impairments equaled six percent. He combined the 6 percent range
of motion impairment with 10 percent impairment for distal clavicle resection to total 15 percent
right arm impairment.
By decision dated April 10, 2009, the Office granted appellant a schedule award for 15
percent right upper extremity. The award represented 46.8 weeks of compensation and covered
the period January 6 to November 29, 2009.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 set forth the number of weeks of compensation to be paid for
permanent loss, or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.4 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure

2

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

3

20 C.F.R. § 10.404.

4

5 U.S.C. § 8107(c)(19).

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equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.5
ANALYSIS
The Office accepted appellant’s claim for impingement of the right shoulder and right
rotator cuff tear and authorized appellant’s surgeries, which included right shoulder cuff repair,
subacromial debridement, biceps tendonesis, and an open distal claviculectomy. By decision
dated April 10, 2009, appellant received a schedule award for 15 percent permanent impairment
of the right upper extremity. This was based on the Office medical adviser’s review of the
medical file.
The Board notes that the report of appellant’s physician, Dr. Price, is not in conformance
with the relevant standards of the A.M.A., Guides, with regard to her impairment finding of the
glenohumeral joint secondary to surgery and synovial hypertrophy. Dr. Price calculated 12
percent impairment of the glenohumeral joint secondary to multiple surgeries and synovial
hypertrophy under Tables 16-18 and 16-19 of the A.M.A., Guides and combined it with the
range of motion impairment. Impairments from the disorders considered under section 16.7,
which addresses impairment of the upper extremity due to synovial hypertrophy, are under the
category of “other disorders” and are usually estimated by using other impairment evaluation
criteria. The section states “[t]he criteria described in this section should be used only when the
other criteria have not adequately encompassed the extent of the impairment.6 (Emphasis in the
original.) The A.M.A., Guides further provide, with regard to joint impairment due to synovial
hypertrophy, that it is a sign of an inflammatory arthritic process that can progress through
varying the manifestations listed above, including decreased motion. “If synovial hypertrophy is
the only finding, the joint impairment is rated according to Table 16-19 and multiplied by the
relative maximum value of the joint involved (Table 16-18). It cannot be combined with
impairment due to decreased joint motion or other findings.”7 Since Dr. Price provided a range
of motion rating for appellant’s right shoulder, this impairment cannot be combined with
impairment due to synovial hypertrophy under the A.M.A., Guides. Additionally, there is no
evidence in Dr. Price’s report as to what findings were present to support her finding of a
moderate or palpably apparent joint swelling from synovial hypertrophy. The Office medical
adviser properly noted that the other medical evidence of record did not support either visual or
palpatory evidence of synovial hypertrophy as required under Table 16-19, page 500 of the
A.M.A., Guides. Therefore, there is insufficient justification to allow a rating for synovial
hypertrophy.
The Office medical adviser reviewed the medical evidence and opined that appellant had
a right upper extremity impairment of 15 percent. He properly applied the A.M.A., Guides to the
evidence of record. Under Table 16-27, page 506 of the A.M.A., Guides, the Office medical
5

20 C.F.R. § 10.404. Effective February 1, 2001, the Office began using the A.M.A., Guides (5th ed. 2001). See
also Linda Beale, 57 ECAB 429 (2006).
6

A.M.A., Guides 499.

7

See id. at 500.

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adviser could properly find 10 percent upper extremity impairment for the distal clavicle
resection. The Board finds that this is proper under the A.M.A., Guides. For lost range of
motion, the medical adviser stated that he correlated the findings of the January 6, 2009
functional capacity evaluation to the A.M.A., Guides to determine appellant’s range of motion
shoulder impairment. He noted basing range of motion findings on the functional capacity
evaluation as these showed the greatest shoulder range of motion; however, a review of his
report shows that the medical adviser actually used Dr. Price’s findings for shoulder extension
and adduction as the functional capacity evaluation does not contain measurements for these
motions. The medical adviser did not explain why he found some of Dr. Price’s range of motion
findings to be accurate but not other range of motion findings. Thus, in these circumstances, the
Board finds that Dr. Price’s more recent and complete measurements should be used to calculate
impairment due to lost shoulder range of motion.8
Under Figure 16-40, page 476 of the A.M.A., Guides, Dr. Price properly found 125
degrees of flexion equaled three percent impairment and 20 degrees extension equaled two
percent impairment. Under Figure 16-43 page 477 of the A.M.A., Guides, she properly found
that 30 degrees adduction equaled one percent impairment and 150 degrees abduction equaled
one percent impairment. Under Figure 16-43, page 479 of the A.M.A., Guides, Dr. Price
properly found 60 degrees internal rotation equaled two percent impairment and 60 degrees
external rotation yielded no percent impairment. She properly added these range of
measurements to equal nine percent impairment for lost shoulder range of motion. Under the
Combined Values Chart on page 604, the 10 percent impairment due to open distal clavicle
resection combined with 9 percent range of motion impairment equals 18 percent impairment.
Thus, the Board will modify the Office’s decision to find that appellant has 18 percent
impairment of the right arm.
On appeal, appellant asserts that Dr. Price’s opinion should prevail. As explained,
Dr. Price provided insufficient findings to support 12 percent impairment of the glenohumeral
joint secondary to multiple surgeries and synovial hypertrophy. Even if such impairment were
supported, it could not be combined with impairment for lost range of motion. Also, as noted,
the Board finds that Dr. Price’s loss of shoulder motion findings were a proper basis on which to
base the lost range of motion component of appellant’s impairment.
CONCLUSION
The Board finds that appellant is entitled to 18 percent right upper extremity
impairment.

8

Cf. Michelle L. Collins, 56 ECAB 552 (2005) (the Board has held that the impairment rating of an examining
physician may take precedence over the opinion of an Office medical adviser when considering subjective factors).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 10, 2009 is affirmed, as modified.
Issued: June 17, 2010
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.P., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Employer
__________________________________________

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

Docket No. 07-1478
Issued: February 20, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 1, 2007 appellant filed a timely appeal from an Office of Workers’
Compensation Programs overpayment decision dated April 11, 2007. Under 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this overpayment decision.
ISSUES
The issues are: (1) whether the Office properly determined that appellant received an
overpayment in the amount of $28,317.34, for the periods January 9 to 22, 2005 and June 12,
2005 to November 25, 2006; and (2) whether it properly found that he was at fault in creating the
overpayment.
FACTUAL HISTORY
Appellant, a 48-year old baggage screener, injured his left knee while lifting luggage on
August 17, 2004. He filed a claim for benefits which the Office accepted for torn

cartilage/meniscus of the left knee and sprain/strain of his left knee and leg. In its February 4,
2005 letter accepting the claim, the Office advised appellant:
“In order to avoid an overpayment of compensation, NOTIFY THIS OFFICE
IMMEDIATELY WHEN YOU RETURN TO WORK. Each payment made
through the Office’s automated system will include the period for which payment
is made. If you have worked for any portion of this period, you must return the
check to this Office. Otherwise, an overpayment of compensation may result….”
(Emphasis in the original.)
The Office paid appellant appropriate compensation for total disability and placed him on
the periodic rolls. Appellant returned to work on January 18, 2005. The Office, however,
continued to pay him temporary total disability compensation until November 25, 2006.
On February 1, 2007 the Office issued a preliminary determination that an overpayment
had occurred in the amount of $28,317.34, for the periods January 9 to 22, 2005 and June 12,
2005 to November 25, 2006 because he received compensation to which he was not entitled. It
found that appellant was at fault in the matter because he should have been aware that the
payments were incorrect. The Office noted that appellant had submitted copies of five checks,
for which payment was cancelled, each in the amount of $1,510.36: one for the pay period
ending on February 19, 2005, cancelled on May 1, 2006; one for the pay period ending on
March 19, 2005, cancelled on June 1, 2006; one for the pay period ending on April 16, 2005,
cancelled on July 3, 2006; one for the pay period ending on May 14, 2005, cancelled on
August 2, 2006; and one for the pay period ending on June 11, 2005, cancelled on September 1,
2006. The Office stated that the fact that appellant had returned these payments indicated that he
was aware that he was not entitled to the payments after he returned to work. It further noted
that he had been informed on February 4, 2005 that he needed to return any payments he
received after returning to work.
The Office advised appellant that if, he disagreed with the fact or amount of the
overpayment he could submit new evidence in support of his contention. It further advised
appellant that, when he was found without fault in the creation of the overpayment, recovery
might not be made if it could be shown that such recovery would defeat the purpose of the Act or
would be against equity and good conscience. The Office informed appellant that, if he
disagreed with the decision he could, within 30 days, submit evidence or argument to the Office
or request a prerecoupment hearing with the Branch of Hearings and Review on the matter of the
overpayment and that any response he wished to make with regard to the overpayment should be
submitted within 30 days of the October 20, 2003 letter. Appellant did not respond to this letter
within 30 days.
In a decision dated April 11, 2007, the Office finalized the preliminary determination
regarding the overpayment of $28,317.34. It noted that appellant had been advised by letter
dated February 1, 2007 that a preliminary finding had been made that an overpayment had
occurred, but had not responded within 30 days. Therefore, the Office found that appellant was
not entitled to waiver.

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LEGAL PRECEDENT -- ISSUE 1
Compensation for total disability under the Federal Employees’ Compensation Act is
payable when the employee starts to lose pay.1 Compensation for wage loss due to disability is
available only for any periods during which an employee’s work-related medical condition
prevents him from earning the wages earned before the work-related injury.2
ANALYSIS -- ISSUE 1
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $28,317.34, for the periods January 9 to 22, 2005
and June 12, 2005 to November 25, 2006. The record shows that appellant received an
overpayment during the period in question because he received payment of temporary total
disability compensation after returning to full-time work on January 18, 2005. The Office
calculated the $28,317.34 overpayment by totaling the amount of temporary total disability
compensation appellant received for the period of January 9 to 22, 2005, $755.18 and subtracting
the amount of compensation to which he was entitled, $372.66, for an overpayment of $382.50;
added the sum of $12,082.88, representing eight payments of $1.587.16, for the period
February 19 to March 18, 2006; and added eight more payments of $1.510.36, for the period
March 19 to November 25, 2006, totaling $12,697.28, for a total overpayment of $28,317.34.
The Office properly found that appellant received an overpayment of compensation in the stated
amount during this period.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act3 provides that an overpayment must be recovered unless
“incorrect payment has been made to an individual who is without fault and when adjustment or
recovery would defeat the purpose of the Act or would be against equity and good conscience.”
No waiver of an overpayment is possible if the claimant is not “without fault” in helping to
create the overpayment.4
In determining whether an individual is with fault, section 10.433(a) of the Office’s
regulations provides in relevant part:
“A recipient who has done any of the following will be found to be at fault with
respect to creating an overpayment:
(1) Made an incorrect statement as to a material fact which the individual
knew or should have known to be incorrect; or

1

20 C.F.R. § 10.401(a) (2003).

2

20 C.F.R. § 500(a) (2003).

3

5 U.S.C. § 8129(a)-(b).

4

Bonnye Mathews, 45 ECAB 657 (1994).

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(2) Failed to provide information which the individual knew or should
have known to be material; or
(3) Accepted a payment which he or she knew or should have known to be
incorrect.5
ANALYSIS -- ISSUE 2
The Office applied the third standard in determining that appellant was at fault in creating
the overpayment. Even if an overpayment resulted from negligence on the part of the Office,
this does not excuse appellant from accepting payment which he knew or should have been
expected to know he was not entitled.6 Appellant returned to work on January 18, 2005 and was,
therefore, no longer totally disabled. He knew or should have known that he was no longer
entitled to wage-loss compensation. Upon his receipt of payments for total disability
compensation following his return to work, appellant had a duty to contact the Office and inquire
as to whether acceptance of this payment was appropriate or return the check issued for total
disability because he had returned to work during the period covered by the check. Appellant
did return five of the checks, each in the amount of $1,510.36, thus indicating his knowledge that
he was not entitled to these payments. However, he failed to return all of the other checks he
received after January 18, 2005 which resulted in a total overpayment of $28,317.34.
The Board finds that appellant reasonably knew or should have known that the payments
issued by the Office for the periods January 9 to 22, 2005 and June 12, 2005 to November 25,
2006 were incorrect. As appellant is not without fault under the third standard noted above,
recovery of the overpayment of compensation in the amount of $28,317.34 may not be waived.
The Office’s April 11, 2007 decision is affirmed.7
CONCLUSION
The Board finds that the Office properly determined that appellant received an
overpayment of compensation in the amount of $28,317.34, for the periods January 9 to 22, 2005
and June 12, 2005 to November 25, 2006. The Board finds that the Office properly found that
appellant was at fault in creating the overpayment.

5

20 C.F.R. § 10.433(a).

6

See Russell E. Wageneck, 46 ECAB 653 (1995).

7

The Board notes that appellant submitted additional evidence to the record following the April 11, 2007 Office
decision. The Board’s jurisdiction is limited to a review of evidence which was before the Office at the time of its
final review. 20 C.F.R. § 501.2(c).

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ORDER
IT IS HEREBY ORDERED THAT the April 11, 2007 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: February 20, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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