United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Palatine, IL, Employer
__________________________________________

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

Docket No. 16-1045
Issued: December 6, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 22, 2016 appellant filed a timely appeal from a March 29, 2016 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
ISSUE
The issue is whether appellant met his burden of proof to establish permanent impairment
of his right upper extremity causally related to his accepted October 7, 1991 employment injury.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence following the March 29, 2016 decision. Since the
Board’s jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board
may not consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB
126 (2005).

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The facts are set
forth below.
On October 8, 1991 appellant, then a 28-year-old part-time, flexible distribution clerk,
filed a traumatic injury claim (Form CA-1) alleging that on October 7, 1991 he sustained a right
shoulder dislocation when he slipped and fell in the performance of duty. He did not stop work.
OWCP accepted appellant’s claim for right shoulder dislocation. On October 29, 1991 appellant
underwent authorized right shoulder surgery and stopped work. OWCP paid wage-loss
compensation benefits. Appellant accepted a full-duty job offer on July 29, 1992.
On February 3, 2012 appellant filed a claim for a schedule award (Form CA-7).
By letter dated February 27, 2012, OWCP requested that appellant provide a medical
report from his treating physician with an opinion on whether he had reached maximum medical
improvement (MMI) and whether he had a permanent impairment rating utilizing the American
Medical Association, Guide to the Evaluation of Permanent Impairment (A.M.A., Guides),
(6th ed. 2009).
Appellant thereafter submitted reports from Dr. James Judge, a Board-certified family
practitioner. In reports dated March 9 and 27, and May 11, 2012, Dr. Judge related that
appellant’s right shoulder had full range of motion with no tenderness. Deep tendon reflexes
were positive bilaterally. Dr. Judge diagnosed superficial antebrachial neuritis. He related that
appellant had been evaluated by his physical medicine and rehabilitation (PMR) department
chair and was found to have 10 percent permanent impairment of the right shoulder according to
the sixth edition of the A.M.A., Guides.
In a March 9, 2012 electromyography (EMG) and nerve conduction velocity (NCV)
study report, Dr. Michael Merchut, a Board-certified psychiatrist and neurologist specializing in
clinical neurophysiology, observed no compression at the wrist or elbow areas, muscular habitus,
and intact sensation. He opined that appellant had normal findings without EMG/NCV evidence
for a nerve or root lesion in the upper limbs.
OWCP referred appellant to a medical adviser to review the evidence of record and
provide an opinion as to whether he attained MMI and sustained a permanent impairment
according to the sixth edition of the A.M.A., Guides. By report dated June 4, 2012, Dr. David H.
Garelick, a Board-certified orthopedic surgeon specializing in orthopedic sports medicine,
reviewed the record and stated that while Dr. Judge related that appellant had 10 percent
permanent impairment of the right upper extremity, the rating documentation was not available
for review. He reported that, pursuant to Dr. Judge’s report, appellant’s right shoulder
demonstrated full range of motion without any tenderness and no mention of weakness or
residual instability. Dr. Garelick noted that an EMG study was normal without evidence for a
nerve root or root lesion in the upper limbs. He opined that, given appellant’s normal strength
3

Docket No. 15-1512 (issued October 22, 2015).

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and range of motion, there was no objective evidence to support any permanent impairment of
the right upper extremity. Dr. Garelick explained that MMI was estimated to have occurred long
ago, back in 1991 and 1992. Thus, he concluded that appellant had no ratable permanent
impairment of the right upper extremity.
In a July 18, 2013 decision, OWCP denied appellant’s claim for a schedule award. It
found that the medical evidence of record failed to establish permanent impairment to his right
upper extremity as a result of the October 7, 1991 employment injury.
Appellant submitted a request for reconsideration, which was received by OWCP on
July 30, 2013.
Appellant submitted a May 9, 2012 report from Dr. Steve M. Gnatz, Board-certified in
PMR. Dr. Gnatz explained that appellant had a long-standing mild right shoulder dysfunction
after a work-related accident and subsequent surgical repair. He opined that appellant reached
MMI and had 10 percent permanent impairment of the right shoulder according to the A.M.A.,
Guides.
In a May 9, 2012 report, Dr. Stacey L. Hall, Board-certified in PMR, related appellant’s
complaints of right shoulder pain and restricted range of motion. She opined that he had reached
MMI, but the approximate date was unknown as this issue had been ongoing for 20 years.
Dr. Hall diagnosed right shoulder pain and mildly restricted range of motion secondary to
recurrent right shoulder dislocation. She determined that based on Table 15-5 of the sixth edition
of the A.M.A., Guides, appellant was a class 1, mild grade C, 10 percent impairment rating.
On August 22, 2013 OWCP referred appellant’s claim to another medical adviser for an
impairment rating. In an August 25, 2013 report, Dr. Christopher Gross, a specialist in
orthopedic surgery, stated that he reviewed appellant’s chart and Dr. Gnatz’ May 9, 2012 report.
He related that appellant had a work-related disorder of closed dislocation of the right shoulder
in 1991, which resulted in an open shoulder reconstruction. Dr. Gross reported that upon
examination appellant currently had normal motion and muscle strength and pointed out that the
May 9, 2012 examination was essentially normal. He stated that Dr. Garelick correctly utilized
the A.M.A., Guides in his June 4, 2012 report when he determined that appellant had zero
percent permanent impairment. Dr. Gross stated that the date of MMI was still not known at this
point since he did not have the records from 1991 to 1992.
On December 5, 2013 OWCP provided Dr. Gross the additional medical evidence he
requested. It asked him to provide a date of MMI and permanent impairment rating under the
sixth edition of the A.M.A., Guides. In an updated report, Dr. Gross discussed appellant’s
history and noted that there was no documentation of any neurological injury and that a March 9,
2012 EMG study was normal. Based on the Table 15-5, page 4, unidirectional shoulder
instability +/- surgical treatment with no evidence of recurrent instability, he determined that
appellant was a class 0 diagnosis with a zero percent permanent impairment. Dr. Gross stated
that appellant currently has normal motion and muscle strength. After reviewing Dr. Garelick’s
June 4, 2012 report, he opined that Dr. Garelick correctly utilized the A.M.A., Guides in
assigning zero percent permanent impairment of the right upper extremity. Dr. Gross explained
that physical examination findings were essentially normal and did not add additional

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information that was useful for the impairment rating. He reported that appellant’s date of MMI
would likely have been when appellant returned to light duty on June 17, 1992.
In a decision dated March 5, 2014, OWCP denied modification of the prior denial. It
found that the medical evidence demonstrated that appellant was not entitled to a schedule award
for permanent impairment of his right upper extremity.
On November 12, 2014 OWCP received appellant’s request for reconsideration.
Appellant submitted a November 6, 2014 report from Dr. Harold T. Pye, a specialist in
preventive medicine. Dr. Pye provided an accurate history of the October 7, 1991 employment
injury and reviewed appellant’s medical treatment for right shoulder dislocation. He noted that
appellant slowly improved, but appellant still complained of persistent right shoulder pain and
lack of range of motion even after surgery. Upon physical examination, Dr. Pye observed
decreased active range of motion in forward flexion, abduction, and internal rotation. Sensory
examination revealed intact to light touch in all upper extremity dermatomes. Deep tendon
reflexes were 2+ brisk and symmetric at the wrist and elbow bilaterally. Dr. Pye noted that
appellant had reached MMI. Referencing Table 15-5, page 404, of the A.M.A., Guides, he
indicated that appellant was class 1 for unidirectional shoulder instability and concluded that
appellant had 12 percent permanent impairment of the right upper extremity.
In a March 9, 2015 report, Dr. Garelick, an OWCP medical adviser, reviewed Dr. Pye’s
November 6, 2014 report and disagreed with his impairment rating. Dr. Pye noted that appellant
demonstrated full range of motion without any tenderness, weakness, or instability of the right
shoulder. He related that an EMG study was normal without any evidence for a nerve or root
lesion in the upper limbs. Thus, Dr. Pye opined that appellant had zero percent permanent
impairment of the right upper extremity.
By decision dated March 30, 2015, OWCP denied modification of its prior decision. It
relied on the March 9, 2015 report of Dr. Garelick, who determined that appellant had not
sustained any impairment to his right shoulder as a result of the October 7, 1991 employment
injury.
Appellant appealed to the Board. By decision dated October 22, 2015, the Board set
aside the March 30, 2015 OWCP decision.4 The Board determined that a conflict in medical
opinion existed between Dr. Pye, appellant’s treating physician, and Dr. Garelick, OWCP’s
medical adviser, and remanded appellant’s schedule award claim to OWCP for referral to a
referee medical examiner in order to resolve the conflict.
On remand from the Board’s decision, OWCP referred the medical record, along with a
statement of accepted facts, to Dr. Steven Mash, a Board-certified orthopedic surgeon and
impartial medical examiner, for an examination and opinion regarding whether appellant

4

Supra note 3.

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sustained any permanent impairment to his right upper extremity as a result of the October 7,
1991 employment injury.5
In a February 5, 2016 report, Dr. Mash accurately described the October 7, 1991
employment injury, reviewed appellant’s medical treatment and noted that appellant underwent
surgery. He related that, since 1992, appellant had complained of aching discomfort daily and
that he found it difficult to reach overhead in his work. Upon examination, Dr. Mash observed
subjective complaints of discomfort and reported an otherwise normal shoulder examination. He
noted no swelling, warmth, erythema, ecchymosis, deformity, and atrophy. Range of motion
examination was normal except for complaints of discomfort at the end of the range of motion,
especially with overhead reaching.
Impingement, acromioclavicular (AC) tenderness,
Apprehension, and Speed tests were negative. Dr. Mash diagnosed status post Bristow
reconstruction for recurrent dislocating shoulder and indicated that appellant had reached MMI.
He explained that the A.M.A., Guides used objective findings on examination and noted that all
of appellant’s findings were subjective.
Dr. Mash referenced Table 15-5, page 404, for unilateral shoulder instability and
assigned a class 0 rating because appellant had no findings of instability. He pointed out that
prior examiners who opined that appellant had 10 to 12 percent impairment would have to use a
diagnosis of grade 1 instability or subluxing humeral head even though appellant did not
demonstrate these findings. Dr. Mash indicated that he agreed with Dr. Garelick’s assessment
that appellant did not have any permanent impairment to his right upper extremity causally
related to his accepted October 7, 1991 employment injury.
Dr. Mash explained that he could also use a different diagnosis and approach with Table
15-5, page 401, for shoulder pain. He assigned appellant a class 1 injury for a history of painful
injury with residual symptoms without consistent objective findings. Dr. Mash noted that
appellant had a QuickDASH score of 27, which translated to a functional history grade modifier
of 3. He further indicated that appellant had a physical examination grade modifier of 1 due to
minimal palpatory findings. Dr. Mash reported that appellant had a clinical studies grade
modifier of 1 because x-ray examination revealed surgical changes secondary to prior surgery.
He applied the Net Adjustment Formula for a net adjustment of -2. Dr. Mash concluded that
appellant was a class 1, grade A, for 0 percent impairment of the upper extremity under Table
15-5. He reported that appellant had class 0 impairment regardless if one chose to evaluate
appellant in the traditional way with objective findings of instability or if one evaluated appellant
based on appellant’s subjective complaints.
On March 19, 2016 Dr. Jovito Estaris, Board-certified in occupational medicine and
surgery and an OWCP medical adviser, reviewed appellant’s medical record, including
Dr. Mash’s February 5, 2016 impartial medical report, and concurred with his opinion of a date
of MMI of February 5, 2016. He opined that Dr. Mash correctly applied the tables in the sixth
edition of the A.M.A., Guides except for one computation with the diagnosis of shoulder pain.
Dr. Estaris noted that Dr. Mash incorrectly used 3 for Class of Diagnosis (CDX) and 1 for
functional history grade modifier when computing the net adjustment, but he indicated that the
5

The Board notes that OWCP initially referred appellant to Dr. Kenneth Sanders, a Board-certified orthopedic
surgeon, but rescheduled appellant with Dr. Mash in the same medical group.

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error did not affect the outcome because appellant’s impairment rating should be based on a
diagnosis of shoulder dislocation. He agreed with Dr. Mash’s impairment rating of zero percent
impairment of the right upper extremity.
In a March 29, 2016 decision, OWCP denied appellant’s schedule award claim, finding
that he had zero percent permanent impairment of the right upper extremity.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing regulations 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. FECA, however, does not
specify the manner in which the percentage of loss of a member shall be determined. The
method used in making such determination is a matter which rests in the sound discretion of
OWCP. For consistent results and to ensure equal justice, the Board has authorized the use of a
single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by OWCP as the appropriate standards for evaluating schedule
losses.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World health Organization’s International Classification of Functioning, Disability
and Health.8 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition CDX, which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS). The Net
Adjustment Formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9 Evaluators are
directed to provide reasons for their impairment rating choices, including the choices of
diagnoses from regional grids and calculations of modifier scores.10
Section 8123(a) of FECA provides that if there is a disagreement between the physician
making the examination for the United States and the physician of an employee, the Secretary
shall appoint a third physician who shall make an examination.11 This is called an impartial
medical examination and OWCP will select a physician who is qualified in the appropriate
specialty and who has no prior connection with the case.12 When there exists opposing medical
reports of virtually equal weight and rationale and the case is referred to an impartial medical

6

Supra note 1.

7

20 C.F.R. § 10.404 (1999); see also Jacqueline S. Harris, 54 ECAB 139 (2002).

8

A.M.A., Guides 3 (6th ed. 2009), section 1.3.

9

Id. at 494-531.

10

See R.V., Docket No. 10-1827 (issued April 1, 2011).

11

5 U.S.C. § 8123(a); see R.S., Docket No. 10-1704 (issued May 13, 2011); S.T., Docket No. 08-1675 (issued
May 4, 2009).
12

20 C.F.R. § 10.321.

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specialist for the purpose of resolving the conflict, the opinion of such specialist, if sufficiently
well rationalized and based upon a proper factual background, must be given special weight.13
ANALYSIS
OWCP accepted that on October 7, 1991 appellant sustained a right shoulder dislocation
injury in the performance of duty. Appellant underwent right shoulder surgery and stopped
work. He returned to full duty and filed a claim for a schedule award.
On remand from the Board’s October 22, 2015 decision, OWCP referred appellant’s
claim to Dr. Mash for an impartial medical examination. In a February 5, 2016 report, Dr. Mash
accurately described the October 7, 1991 employment injury and reviewed appellant’s medical
records. He noted that appellant’s claim was accepted for right shoulder dislocation. Upon
examination, Dr. Mash observed subjective complaints of discomfort and reported an otherwise
normal shoulder examination. He reported no swelling, warmth, erythema, ecchymosis,
deformity, and atrophy. Range of motion examination was normal and impingement, AC
tenderness, Apprehension, and Speed tests were negative. Dr. Mash diagnosed status post
Bristow reconstruction for recurrent dislocating shoulder and indicated that appellant had
reached MMI. He referenced Table 15-5, page 404, for unilateral shoulder instability and
pointed out that appellant had no findings of instability. Dr. Mash indicated that appellant had a
class 0 rating for zero percent permanent impairment. He explained that even with a different
diagnosis for shoulder pain appellant still had zero percent permanent impairment of the upper
extremity.
On March 19, 2016 Dr. Estaris, an OWCP medical adviser, reviewed appellant’s medical
record, including Dr. Mash’s February 5, 2016 impartial medical report, and concurred that
appellant had reached MMI. He agreed with Dr. Mash that appellant had an impairment rating
of 0 percent of the right upper extremity.
The Board has carefully reviewed the opinion of Dr. Mash and finds that his February 5,
2016 report was sufficiently well rationalized to carry the special weight of the medical
evidence. Dr. Mash’s opinion was based on a proper factual and medical history, which he
reviewed, and on the proper tables and procedures in the A.M.A., Guides. He referenced Table
15-5, page 404, for unilateral shoulder instability and assigned a class 0 rating because appellant
had no findings of instability. Dr. Mash further explained that he could also use Table 15-5,
page 401, for shoulder pain. He assigned appellant a class 1 injury for a history of painful injury
without consistent objective findings. Dr. Mash noted that appellant had GMFH of 3 for a
QuickDASH score of 27, GMPE of 1 due to minimal palpatory findings, and GMCS of 1 based
on x-ray examination findings. He applied the Net Adjustment Formula for a net adjustment of 2. Dr. Mash concluded that appellant was a class 1, grade A, for 0 percent permanent
impairment of the right upper extremity under Table 15-5.
The Board notes that under Table 15-7, page 406, a QuickDASH score of 27 actually
results in a grade modifier 1. After applying the net adjustment formula, however, the
impairment rating is still 0 percent impairment under Table 15-5. Nevertheless Dr. Mash
13

Darlene R. Kennedy, 57 ECAB 414 (2006); Gloria J. Godfrey, 52 ECAB 486 (2001).

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provided sufficient medical rationale that appellant had a class 0 rating for either right shoulder
unilateral instability or right shoulder pain according to the appropriate tables of the A.M.A.,
Guides. As previously noted, a reasoned medical opinion from an impartial medical examiner is
entitled to special weight.14 Thus, Dr. Mash’s February 5, 2016 report represents the special
weight of an impartial medical examiner. Dr. Estaris, an OWCP medical adviser, further
reviewed Dr. Mash’s February 5, 2016 report and concurred with his impairment rating.
Appellant, therefore, has not met his burden of proof to establish permanent impairment of his
right upper extremity causally related to the October 7, 1991 employment injury.
Appellant may request a schedule award or increased schedule award 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 did not meet his burden of proof to establish permanent
impairment to his right upper extremity causally related to the October 7, 1991 employment
injury.

14

Id.

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ORDER
IT IS HEREBY ORDERED THAT the March 29, 2016 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 6, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.H., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CITIZENSHIP & IMMIGRATION SERVICES,
Westminster, CA, Employer
__________________________________________

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

Docket No. 08-2057
Issued: July 1, 2009

Case Submitted on the Record

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

JURISDICTION
On July 21, 2008 appellant filed an appeal from decisions of the Office of Workers’
Compensation Programs dated November 5, 2007 and June 13, 2008.
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 the Office met its burden of proof to reduce appellant’s
compensation benefits based on her capacity to earn wages in the constructed position of branch
manager.
FACTUAL HISTORY
On November 4, 1999 the Office accepted that appellant, then a 56-year-old adjudicator,
sustained an employment-related right knee and low back strain. On December 17, 1999
Dr. Christopher A. Wills, Board-certified in orthopedic surgery, performed repair of a right
medial meniscal tear. Appellant subsequently returned to limited duty. On January 17, 2002 she

was granted a schedule award for a two percent permanent impairment of the right lower
extremity. On February 16, 2005 the employing establishment informed appellant that it could
no longer accommodate her physical restrictions. Appellant stopped work on March 6, 2005 and
filed a Form CA-7, claim for compensation. On June 20, 2005 she was referred for vocational
rehabilitation services and was placed on the periodic roll.
On December 15, 2005 Mike Hooker, a rehabilitation specialist, identified the positions
of manager, credit and collections and branch manager as appropriate for appellant. Placement
efforts began on January 20, 2006. In a work capacity evaluation dated November 1, 2006,
Dr. Wills advised that appellant could sit, walk, stand, reach and perform repetitive movements
of the wrists and elbows for eight hours a day, could push and pull for six hours a day, could
reach above the shoulder for three hours daily, twist, bend, stoop and lift for two hours daily, and
could not squat, kneel or climb.
By letter dated April 14, 2007, appellant informed the Office that she was in the process
of relocating from her home in San Bernardino, California, to Roy, Utah. On May 1, 2007 her
rehabilitation counselor, Denise Stanton, identified the positions of manager, credit and
collection and branch manager, finding that they were within the sedentary strength category,
within appellant’s work restrictions and qualifications and reasonably available in the local labor
market.1
On August 21, 2007 the Office proposed to reduce appellant’s wage-loss compensation
based on her capacity to earn wages as a branch manager. It advised appellant that, if she
disagreed with the proposed reduction, she should submit additional evidence or argument within
30 days. The Office also requested that Dr. Wills provide an updated work capacity evaluation.
By letter dated August 30, 2007, appellant disagreed with the proposed reduction. Dr. Wills
replied that the Office should use his November 1, 2006 report.
In a November 5, 2007 decision, the Office reduced appellant’s compensation benefits,
effective October 28, 2007, based on her capacity to earn wages as a branch manager, finding the
position medically and vocationally suitable.
On December 2, 2007 appellant requested a telephonic hearing that was held on
March 17, 2008. At the hearing appellant, who was represented by counsel, described her job
duties and unsuccessful job search. She relocated to Roy, Utah, approximately 30 miles north of
Salt Lake City, because she “had wind” that her compensation was going to be reduced. Counsel
argued that appellant did not have the requisite skills or physical ability to perform the branch
manager position and that, at her age, the chance of obtaining work was vastly reduced. He
concluded that the labor market survey should have been done in Utah rather than in California.
By decision dated June 13, 2008, an Office hearing representative affirmed the
November 5, 2007 decision.

1

The labor market surveys do not indicate what commuting area was used to determine availability.

2

LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.2 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.3
Section 8115 of the Federal Employees’ Compensation Act4 and Office regulations
provide that wage-earning capacity is determined by the actual wages received by an employee if
the earnings fairly and reasonably represent his or her wage-earning capacity. If the actual
earnings do not fairly and reasonably represent wage-earning capacity or the employee has no
actual earnings, the wage-earning capacity is determined with due regard to the nature of the
injury, the degree of physical impairment, the employee’s usual employment, age and
qualifications for other employment, the availability of suitable employment and other factors or
circumstances which may affect the wage-earning capacity in his or her disabled condition.5
The Office must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The
medical evidence upon which it relies must provide a detailed description of the condition.6
Additionally, the Board has held that a wage-earning capacity determination must be based on a
reasonably current medical evaluation.7
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by the Office for selection of a position listed in the Department of Labor’s Dictionary of
Occupational Titles or otherwise available in the open market, that fits that employee’s
capabilities with regard to his or her physical limitations, education, age and prior experience.
Once this selection is made, a determination of wage rate and availability in the open labor
market should be made through contact with the state employment service or other applicable
service.8 Finally, application of the principles set forth in Albert C. Shadrick9 will result in the
percentage of the employee’s loss of wage-earning capacity.10
2

James M. Frasher, 53 ECAB 794 (2002).

3

20 C.F.R. §§ 10.402, 10.403; John D. Jackson, 55 ECAB 465 (2004).

4

5 U.S.C. §§ 8101-8193.

5

5 U.S.C. § 8115; 20 C.F.R. § 10.520; see John D. Jackson, supra note 3.

6

William H. Woods, 51 ECAB 619 (2000).

7

John D. Jackson, supra note 3.

8

James M. Frasher, supra note 2.

9

5 ECAB 376 (1953); see also 20 C.F.R. § 10.403.

10

James M. Frasher, supra note 2.

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In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, the Office must consider the degree of physical impairment,
including impairments resulting from both injury-related and preexisting conditions, but not
impairments resulting from post injury or subsequently acquired conditions. Any incapacity to
perform the duties of the selected position resulting from subsequently acquired conditions is
immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which appellant may receive compensation.11
Office procedures provide that the availability of employment is usually evaluated with
respect to the area where the injured employee resides at the time the determination is made,
rather than the area of residence at the time of injury. However, when the employee voluntarily
moves to an isolated locality with few job opportunities, the question of availability should be
applied to the area of residence at the time of the injury.12
ANALYSIS
The Board finds that the Office did not properly determine that appellant was capable of
performing the selected position of branch manager. The medical evidence from Dr. Wills,
established that appellant was no longer totally disabled and the Office properly referred her for
vocational rehabilitation counseling in June 2005. Because appellant was unable to secure
employment, on May 1, 2007, the vocational rehabilitation counselor identified the positions of
manager, credit and collection, and branch manager as within her capabilities. The Office based
its November 5, 2007 decision on the latter position which is identified in the Dictionary of
Occupational Titles13 as sedentary. Dr. Wills provided a November 1, 2006 work capacity
evaluation and reiterated his findings in a November 2007 report. He advised that appellant
could perform her usual job of adjudicator and provided permanent restrictions to her physical
activities that were within the requirements of a sedentary position. Appellant has submitted no
additional medical evidence. The medical evidence established that she was physically capable
of performing the branch manager position.
As noted, however, the selected position must be reasonably available in appellant’s
commuting area. Ms. Stanton, the rehabilitation counselor, did not identify the geographic area
she used in the labor market surveys dated May 1, 2007. As she is based in California and
appellant lived and worked in the greater Los Angeles area prior to her relocation to Utah, it is
reasonable to assume that the labor market surveys completed by Ms. Stanton were based on
information pertaining to the greater Los Angeles area. Appellant moved from San Bernardino,
California to Roy, Utah, in April 2007 and the Office did not reduce her compensation until
October 28, 2007. Office procedures provide that the availability of the employment is usually
evaluated with respect to the area where the injured employee resides at the time the

11

John D. Jackson, supra note 3.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services,
Chapter 2.814.8(c)(1) (December 1995).
13

Department of Labor, Dictionary of Occupational Titles.

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determination is made.14 The Office did not explain what geographic area it used in the May 1,
2007 labor market surveys. The Board cannot determine if it considered appellant’s move in
April 2007 in its finding of reasonable availability. The Office failed to meet its burden of proof
to establish that the position of branch manager was reasonably available in the general labor
market in the greater Salt Lake area in which appellant lived when issued the November 5, 2007
decision. Accordingly, it failed to establish that the selected position of branch manager
represented appellant’s wage-earning capacity and failed to properly reduce her compensation
benefits.
CONCLUSION
The Board finds that the Office did not meet its burden of proof in reducing appellant’s
wage-earning capacity based on her ability to earn wages in the selected position of branch
manager because the Office did not establish that the position was reasonably available in
appellant’s commuting area of Roy, Utah.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 13, 2008 and November 5, 2007 be reversed.
Issued: July 1, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Vocational Rehabilitation Services,
Chapter 2.814.8(c)(1) (December 1995).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.M., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
DC VETERANS MEDICAL CENTER,
Washington, DC, Employer
__________________________________________

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

Docket No. 15-0674
Issued: July 10, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On February 9, 2015 appellant filed a timely appeal from a December 16, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly suspended appellant’s compensation for failing to
submit a Form EN1032, as requested.

1

Subsequent to the filing of her appeal, appellant passed away on April 27, 2015.

2

5 U.S.C. § 8101-8193.

FACTUAL HISTORY
OWCP accepted that on July 20, 1992 appellant, then a 43-year-old employee, suffered a
sprain of left shoulder and upper arm and displacement of cervical intervertebral disc without
myelopathy and paid FECA benefits. She was eventually retained on the periodic compensation
rolls.
On October 7, 2014 OWCP informed appellant that federal regulations required her to
make an affidavit relative to any earnings or employment during the previous year and that an
EN1032 form was enclosed for that purpose. It notified her that she had to fully answer all
questions on the form and return the statement within 30 days or her benefits would be
suspended. The letter was mailed to appellant’s address of record. Appellant did not respond.
By decision dated December 16, 2014, OWCP suspended appellant’s compensation
benefits, effective January 11, 2014,3 for failing to submit the EN1032 form, as requested. It
noted that, if she completed and returned an enclosed copy of the form, her compensation
benefits would be restored retroactively to the date they were suspended.
LEGAL PRECEDENT
FECA authorizes the Secretary of Labor to require a partially disabled employee to report
his or her earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies.4
Under section 10.528 of OWCP’s implementing federal regulations, an employee in
receipt of compensation benefits must complete an affidavit as to any work or activity indicating
an ability to work which the employee has performed for the prior 15 months.5 If an employee
who is required to file such a report fails to do so within 30 days of the date of the request, his or
her right to compensation for wage loss is suspended until OWCP receives the requested report.
At that time, OWCP will reinstate compensation retroactive to the date of suspension if the
employee remains entitled to compensation.6
ANALYSIS
On October 7, 2014 OWCP provided appellant with an EN1032 form. It notified her that
federal regulations required her to complete the form and answer all questions concerning her
employment or earnings. OWCP properly notified appellant that, if she did not completely
answer all questions and return the statement within 30 days, her benefits would be suspended.
The record reflects that OWCP’s letter was properly sent to her address of record.7 The record
3

The record reflects that benefits were suspended as of January 11, 2015.

4

Id. at § 8106(b).

5

20 C.F.R. § 10.528.

6

Id.; see also id. at § 10.525.

7

See J.J., Docket No. 13-1067 (issued September 20, 2013).

2

does not establish that appellant responded prior to the December 16, 2014 OWCP decision.
Based on the evidence of record, the Board finds that OWCP properly suspended her
compensation benefits pursuant to 20 C.F.R. § 10.528.8
On appeal appellant contends that she was hospitalized from November 2014 until
January 23, 2015 and could not get her paperwork ready as she was not home to check on her
mail. She argued that she should not be penalized for being ill and she would prepare the
appropriate paperwork and mail it to OWCP. Appellant provided the name and number of her
physician and social worker to verify that she was hospitalized during the claimed time frame.
OWCP properly informed her that her benefits would be retroactively reinstated when she
completed and submitted the EN1032 form to OWCP.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits for
failing to submit information on a EN1032 form, as required.
ORDER
IT IS HEREBY ORDERED THAT the December 16, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 10, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8

J.J., Docket No. 09-1724 (issued March 1, 2010). See also James A. Igo, 49 ECAB 189 (1997).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.S., claiming as widow of W.S., Appellant
and
DEPARTMENT OF LABOR, MINE SAFETY &
HEALTH ADMINISTRATION, Pikeville, KY,
Employer
__________________________________________

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Appearances:
John Harlan Callis III, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-116
Issued: March 25, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 15, 2007 appellant, through her representative, filed a timely appeal from the
July 2, 2007 nonmerit decision of the Office of Workers’ Compensation Programs, which denied
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the Office’s denial.
ISSUE
The issue is whether the Office properly denied appellant’s May 31, 2007 request for
reconsideration on the grounds that it was untimely filed and failed to demonstrate clear evidence
of error.
FACTUAL HISTORY
The employee, a mine inspector, sustained an injury to his neck and low back on June 7,
1977 when his vehicle was struck from behind. The Office accepted his claim for cervical

sprain, lumbar sprain and cervical spondylosis.
disability.

The employee received compensation for

The employee died on November 25, 2004. The immediate cause of death was asystole
(stopped heart), due to aspiration pneumonia, due to coronary arteriosclerosis.
On December 21, 2004 appellant filed a claim for compensation by widow. On the back
of the form, Dr. Anthony C. Stumbo, a Board-certified internist, indicated that the employee’s
death was due to his coronary condition.
On April 6, 2005 the Office asked appellant to provide a medical report from her
husband’s physician explaining in detail how the accepted cervical and lumbar strains resulted in
his passing. Appellant submitted an April 13, 2005 report from Dr. Stumbo:
“[The employee] worked as a federal mine inspector. On June 7, 1977 while
working, his four-wheel drive was struck from behind by another motor vehicle
with sufficient violence that the driver’s seat of the four-wheel drive removed
from the floor of the vehicle. Consequently, [he] experienced the abrupt onset of
chest pain. Due to injuries sustained [the employee] became totally and
permanently disabled from gainful employment.
“I am of the opinion his injury contributed to his heart problems and ultimate
demise.”
In a decision dated May 18, 2005, the Office denied appellant’s claim for benefits. It
found that Dr. Stumbo’s report was not sufficient to establish that the accepted lumbar strain,
cervical sprain and cervical spondylosis aggravated or accelerated the employee’s underlying
cardiac condition. The Office noted no objective evidence of aggravation: “Given the
decedent’s age, underlying disease processes involving diabetes and cardiac conditions it would
[be] necessary for a physician to address the objective evidence demonstrating the underlying
cardiac condition was materially worsened by the accepted orthopedic conditions.” In addition,
it stated that the physician would need to provide a detailed medical report based on a review of
cardiac records from all sources addressing whether the cardiac disease followed its natural
progression given the employee’s age without any intervention from work injuries.
Appeal rights attached to the Office’s May 15, 2005 decision notified appellant that if she
had any additional evidence or legal argument that she believed established her claim for
benefits, she could request reconsideration. The Office advised that any such request must be
accompanied by relevant evidence not previously submitted. It further advised that any request
for reconsideration must be filed within one year of the date of its May 15, 2005 decision.
On August 1, 2005 appellant filed a request for reconsideration. She submitted no
evidence and made no argument. On August 27, 2005 the Office denied that request on the
grounds that she neither raised substantive legal questions nor included new and relevant
evidence.

2

In an undated letter received by the Office on May 31, 2007, appellant told her husband’s
story and stated that the debilitating injuries from his accident caused his diabetes and blood
pressure to worsen. She asked the Office to reconsider her claim for spousal compensation.
In a decision dated July 2, 2007, the Office denied appellant’s May 31, 2007 request. It
found that the request was untimely and failed to present clear evidence of error in the Office’s
May 18, 2005 decision.
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act vests the Office with
discretion to determine whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at anytime on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”1
The Office, through regulations, has imposed limitations on the exercise of its discretion
under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607 provide that an application
for reconsideration must be sent within one year of the date of the Office decision for which
review is sought. The Office will consider an untimely application only if the application
demonstrates clear evidence of error on the part of the Office in its most recent merit decision.
The application must establish, on its face, that such decision was erroneous.2
The term “clear evidence of error” is intended to represent a difficult standard.3 If clear
evidence of error has not been presented, the Office should deny the application by letter
decision, which includes a brief evaluation of the evidence submitted and a finding made that
clear evidence of error has not been shown.4
ANALYSIS
Appellant had one year from the Office’s May 18, 2005 decision denying her claim or
until May 18, 2006, to request reconsideration. Her undated request, received on May 31, 2007,
is therefore untimely. To require the Office to reopen her claim for reconsideration, appellant
must present clear evidence of error in the Office’s May 18, 2005 decision. Appellant must
submit evidence that shows, on its face, that the May 18, 2005 decision was erroneous.
1

5 U.S.C. § 8128(a).

2

20 C.F.R. § 10.607 (1999).

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3.c (January 2004).

4

Id., Chapter 2.1602.3.d(1).

3

Appellant’s May 31, 2007 request does not show, on its face, that the Office’s May 18,
2005 decision was erroneous. Her request presents only her personal opinion that her husband’s
debilitating injuries caused his diabetes and blood pressure to worsen and, presumably,
contributed to his eventual death. However, causal relationship is a medical issue,5 so her lay
opinion on the cause of her husband’s death is not the kind of evidence needed to reopen her
claim.
Appellant previously submitted the April 13, 2005 opinion of Dr. Stumbo, a Boardcertified internist, who unequivocally reported that the employee’s June 7, 1977 employment
injury contributed to his heart problems and ultimate demise. Although this was supportive of
appellant’s claim for spousal compensation, the Office explained in its May 18, 2005 decision
that Dr. Stumbo needed to offer a fuller explanation. Dr. Stumbo needed to present objective
evidence demonstrating a material worsening of the employee’s underlying cardiac condition by
the accepted employment injury. He needed to review the employee’s cardiac records and
determine whether the underlying cardiac disease followed its natural progression, in light of the
employee’s other medical problems.
Because appellant seeks compensation under the Act, she bears the burden of proof to
establish her entitlement to benefits.6 It is up to her to submit sufficient medical opinion
evidence necessary to establish clear evidence of error in the denial of her claim.
Appellant’s own opinion is not particularly relevant and does not resolve the medical
question outstanding. For this reason, the Board finds that the Office properly denied her
May 31, 2007 request for reconsideration. The Board will affirm the Office’s July 7, 2007
decision.
CONCLUSION
The Board finds that the Office properly denied appellant’s May 31, 2007 request for
reconsideration on the grounds that it was untimely filed and failed to demonstrate clear evidence
of error.

5

Mary J. Briggs, 37 ECAB 578 (1986).

6

Nathaniel Milton, 37 ECAB 712 (1986); Joseph M. Whelan, 20 ECAB 55 (1968) and cases cited therein; see
Harold Hendrix, 1 ECAB 54 (1947).

4

ORDER
IT IS HEREBY ORDERED THAT the July 2, 2007 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 25, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Saint Louis, MO, Employer
__________________________________________

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

Docket No. 17-0961
Issued: March 14, 2018

Case Submitted on the Record

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

JURISDICTION
On March 31, 2017 appellant filed a timely appeal from a March 1, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than six percent permanent impairment of his
right lower extremity, for which he previously received a schedule award.
FACTUAL HISTORY
On February 14, 2012 appellant, then a 56-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on February 13, 2012 he sustained a right foot/ankle injury
while he was walking his mail route and started to feel pain in his right foot. He stopped work
1

5 U.S.C. § 8101 et seq.

on February 14, 2012 and sought medical treatment on that day. OWCP accepted the claim for
enthesopathy of the right ankle/tarsus, right Achilles tendinitis, rupture of other tendon right
foot/ankle, right ankle sprain/strain, and right contracture of tendon sheath.2
Appellant sought treatment with Dr. Ryan Pitts, a Board-certified orthopedic surgeon.
On July 11, 2012 Dr. Pitts performed a right ankle arthroscopy, limited arthroscopic
debridement, open right ankle peroneal brevis tenodesis, and peroneal longus and brevis
tenolysis.
In a May 20, 2013 clinical note, Dr. Pitts provided physical examination findings of right
ankle swelling. He diagnosed right ankle peroneal tear -- high grade partial debridement and
tenodesis from a February 13, 2012 work-related injury.
On August 8, 2013 appellant filed a claim for a schedule award (Form CA-7).
OWCP routed a statement of accepted facts and the case file to Dr. Daniel Zimmerman,
Board-certified in internal medicine serving as an OWCP district medical adviser (DMA), for
review and a determination on whether appellant sustained permanent impairment of the right
lower extremity and date of maximum medical improvement (MMI).
In an August 27, 2013 report, Dr. Zimmerman reported that per appellant’s May 20, 2013
report from Dr. Pitts, he had not yet reached MMI.
By letter dated September 16, 2013, OWCP requested appellant submit an impairment
evaluation from his attending physician in accordance with the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3 It afforded him 30 days
to submit the requested impairment evaluation.
In a September 27, 2013 medical report, Dr. Pitts reported that appellant’s right ankle
revealed good strength and mild loss of motion when compared to the left side. He opined that
appellant had reached MMI.
In support of his schedule award claim, appellant submitted an August 13, 2014 report
pertaining to the right lower extremity from Dr. John W. Ellis, Board-certified in family
2
The Board notes that appellant has another traumatic injury claim under OWCP subsidiary File No. xxxxxx246,
which was combined with this claim, OWCP File No. xxxxxx728. Appellant has another claim, OWCP File No.
xxxxxx359 which has also been combined and serves as the master file. On January 28, 2010 he sustained a
traumatic injury under OWCP File No. xxxxxx359. On March 22, 2010 OWCP accepted the claim for rotator cuff
strain of right shoulder, right shoulder bursitis, and right shoulder tendinitis. Appellant returned to full-duty work on
June 17, 2010. By decision dated March 24, 2011, he received a schedule award for six percent permanent
impairment of the right upper extremity. On December 14, 2011 appellant sustained a traumatic injury under
OWCP File No. xxxxxx246. On January 31, 2012 OWCP accepted the claim for right rotator cuff sprain, right
superior glenoid labrum lesion, lateral tear of the right shoulder, and a partial right rotator cuff tear. By decision
dated March 1, 2016, it issued a schedule award for nine percent permanent impairment of the upper right extremity.
Appellant was awarded 15 percent less the 6 percent previously paid under OWCP File No. xxxxxx359, resulting in
an award for 9 percent permanent impairment of the upper right extremity.
3

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

2

medicine.4 In his report, Dr. Ellis opined that appellant reached MMI on August 13, 2014. He
determined that appellant would be entitled to a schedule award for 13 percent permanent
impairment of the right lower extremity using the diagnosis-based impairment (DBI) method for
a peroneal and other tendon tear, class 1 for a mild problem.5 Dr. Ellis assigned a grade modifier
of 2 for functional history, a grade modifier of 2 for physical examination, and no grade modifier
was assigned for clinical studies. However, he determined that the range of motion (ROM)
method more accurately reflected appellant’s lower extremity impairment. Dr. Ellis noted 2
percent impairment for decreased hind foot ROM,6 and 15 percent impairment of decreased
ankle ROM,7 resulting in a total 17 percent permanent impairment of the right lower extremity.
He explained that the decreased ROM method more accurately reflected appellant’s impairment
as his injury entailed more than just the peroneal tendon, having impairment of tendons, arthritis,
and tendinitis in the right foot and ankle.
By letter dated September 3, 2014, OWCP requested that appellant provide further
medical evidence from his treating physician in support of his schedule award claim. It
specifically requested that he provide a reasoned medical opinion containing rationale for
calculation of permanent impairment with references to the applicable criteria and tables in the
sixth edition of the A.M.A., Guides.
By letter dated September 22, 2014, Dr. Ellis informed OWCP that his prior August 13,
2014 report established appellant’s claim for a schedule award and listed the diagnoses utilized
along with the tables within the A.M.A., Guides.
OWCP routed the case file and referred appellant to Dr. Richard T. Katz, Board-certified
in physical medicine and rehabilitation, for a second opinion examination pertaining to
permanent impairment of both the right upper and lower extremities.8 In his report of
November 16, 2015, as it relates to lower extremity permanent impairment, Dr. Katz
documented a history of injury, summarized prior medical records, reviewed diagnostic testing,
and provided physical examination findings. He explained that peroneal tendinitis was rated at
page 501 of the A.M.A., Guides ranging from three to seven percent.9 Dr. Katz determined that
based on Table 16-2 (Mild Motion Deficits), this resulted in class 1 placement at a default value
of five percent. He assigned a grade modifier of 1 for physical examination and a grade modifier
of 2 based on the lower extremity questionnaire. Dr. Katz determined that appellant’s final
rating resulted in grade D, warranting movement one place to the right of the default value
resulting in six percent permanent impairment of the right lower extremity.
4

The Board notes that appellant also submitted another August 13, 2014 report from Dr. Ellis pertaining to the
right upper extremity, but that report is irrelevant to the present claim.
5

Supra note 3 at 501, Table 16-2.

6

Id. at 549, Table 16-20.

7

Id. at Table 16-22.

8

The Board notes that appellant’s claim for right upper extremity impairment is not before the Board on appeal.
As such, the Board will not discuss findings made pertaining to the right upper extremity.
9

Supra note 5.

3

On January 6, 2016 OWCP routed the case file to Dr. David H. Garelick, a Boardcertified orthopedic surgeon, serving as OWCP’s DMA, for review and a determination on
whether appellant sustained permanent impairment of the right upper extremity and permanent
impairment of the right lower extremity.10
In a January 16, 2016 report, Dr. Garelick agreed with Dr. Katz’ findings pertaining to
the right foot and opined that appellant sustained six percent permanent impairment of the right
lower extremity. He further determined that appellant reached MMI for his lower extremity
condition on September 27, 2013.
By decision dated March 1, 2016, OWCP granted appellant a schedule award for six
percent permanent impairment of the right lower extremity. It found that the weight of the
medical evidence rested with Dr. Katz and Dr. Garelick serving as OWCP’s DMA. The date of
MMI was noted as September 27, 2013. The award covered a period of 17.28 weeks from
September 27, 2013 to January 25, 2014.
On March 15, 2016 appellant requested an oral hearing before an OWCP hearing
representative.
By decision dated September 23, 2016, an OWCP hearing representative set aside the
March 1, 2016 schedule award decision and remanded the case for further development. The
hearing representative explained that OWCP referred appellant to Dr. Katz for a second opinion
evaluation and that he had opined that appellant sustained six percent permanent impairment of
the right lower extremity, which was confirmed by Dr. Garelick serving as OWCP’s DMA.
However, neither Dr. Katz nor Dr. Garelick discussed Dr. Ellis’ August 13, 2014 impairment
rating finding 17 percent right lower extremity permanent impairment based on the ROM
method. The hearing representative remanded the case for Dr. Katz to review Dr. Ellis’
August 13, 2014 report, identify if there were any points of disagreement, and to provide a
rationalized explanation pertaining to appellant’s right lower extremity impairment rating. It
noted that the sixth edition provided that the DBI was the primary method of evaluation.
However, ROM impairments could be used as a stand-alone rating when other grids referred the
evaluator to this method or when no other diagnosis-based sections were applicable for
impairment rating of a condition.11 As such, if Dr. Katz determined that the DBI method should
be utilized as opposed to the ROM method as indicated by Dr. Ellis, then he should provide a
rationalized explanation supporting this contention. Following receipt of his supplemental
report, the case file would be forwarded to an OWCP DMA for review. The DMA should also
be advised that while the DBI method was preferred to the ROM method, both approaches were
permissible under the A.M.A., Guides. Following any further development as deemed
necessary, OWCP was instructed to issue a de novo decision on the claim.
On November 2, 2016 OWCP routed the report of Dr. Ellis to Dr. Katz for review and
determination on his right lower extremity impairment rating, whether the ROM or DBI
methodology should be used, and the appropriate date of MMI. It instructed Dr. Katz to identify
10

See supra note 9.

11

Supra note 3 at 387 and 461.

4

any points of disagreement. OWCP further noted that if he chose to utilize the DBI method to
calculate the right lower extremity impairment, as opposed to the ROM method, he needed to
provide a rationalized explanation to support his rating, specifically addressing why Dr. Ellis’
chosen ROM-based impairment method was inappropriate.
In a December 14, 2016 supplemental report, Dr. Katz reported that the rating he
provided pertained to tendinitis, which differed from that of Dr. Ellis who rated appellant for a
tendon tear. He noted that, while he did not have the original records, he believed that Dr. Ellis
misrepresented the word tear. Dr. Katz explained that a sprain represented a microscopic tear of
the tendon, but not a gross tear. Dr. Ellis, however, portrayed the ankle problem as a gross tear
of a tendon. Dr. Katz did not believe that, such a tear took place and rather, appellant had
tendinitis which he had previously correctly rated at six percent permanent impairment of the
right lower extremity.
On January 6, 2017 OWCP routed the case file to Dr. Garelick, serving as OWCP’s
DMA, for review of Dr. Katz’ reports and a determination on whether appellant sustained a
permanent impairment of the right lower extremity, date of MMI, and whether the DBI or ROM
methodology should have been used to rate the right lower extremity impairment. It requested
that he provide a clear explanation as to why the method chosen was used in lieu of another
allowable method (e.g., DBI vs. ROM).
In a January 10, 2017 report, Dr. Garelick reported that there was no change with respect
to the right lower extremity impairment rating. The DMA concurred with Dr. Katz’ findings
pertaining to the September 27, 2013 date of MMI and six percent permanent impairment of the
right lower extremity.
By decision dated March 1, 2017, OWCP found that the medical evidence failed to
establish that appellant was entitled to more than six percent permanent impairment of the right
lower extremity previously awarded.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations 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.12 However, it does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.13

12

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

13
K.H., Docket No. 09-0341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth
edition will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).

5

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).14 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.15
The A.M.A., Guides provide a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health (ICF).
For lower extremity impairments, the evaluator identifies the impairment class for the diagnosed
condition should be Class of Diagnosis (CDX), which is then adjusted by grade modifiers based
on Functional History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS).16
The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).17
Evaluators are directed to provide reasons for their impairment rating choices, including choices
of diagnoses from regional grids and calculations of modifier scores.18
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.19
ANALYSIS
OWCP accepted appellant’s claim for enthesopathy of the right ankle/tarsus, right
Achilles tendinitis, rupture of other tendon right foot/ankle, right ankle sprain/strain, and right
contracture of tendon sheath. The issue is whether appellant has more than six percent
permanent impairment of the right lower extremity, for which he previously received a schedule
award.
The Board finds this case is not in posture for decision.
In support of his schedule award claim, appellant submitted an August 13, 2014 report
from Dr. Ellis who calculated 13 percent permanent impairment of the right lower extremity
utilizing the DBI method for the diagnosis of peroneal and other tendon tear. However, Dr. Ellis
determined that the ROM method more accurately reflected appellant’s impairment, finding 17
percent permanent impairment of the right lower extremity (2 percent impairment for decreased
hind foot ROM and 15 percent impairment of decreased ankle ROM). He explained that the
14

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); see also Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6a
(February 2013).
15

Isidoro Rivera, 12 ECAB 348 (1961).

16

Supra note 3 at 493-531.

17

Id. at 521.

18

R.V., Docket No. 10-1827 (issued April 1, 2011).

19

See supra note 14 at Chapter 2.808.6(f) (March 2017).

6

decreased ROM method more accurately reflected appellant’s impairment as he had more than
just the peroneal tendon with impairment of a few tendons, arthritis, and tendinitis in the right
foot and ankle.
On November 16, 2015 OWCP referred appellant to Dr. Katz for a second opinion
evaluation pertaining to the right lower extremity impairment. Dr. Katz utilized the DBI
diagnosis of peroneal tendinitis to calculate six percent permanent impairment of the right lower
extremity. Dr. Garelick, serving as OWCP’s DMA, concurred with Dr. Katz’ impairment rating.
On September 23, 2016 an OWCP hearing representative set aside the March 1, 2016
schedule award decision and remanded the case for further development. She ordered that
Dr. Katz and the DMA review Dr. Ellis’ August 13, 2014 impairment rating and address whether
the DBI method should be utilized as opposed to the ROM method as indicated by Dr. Ellis.
However, the Board has previously held that Chapter 16 of the sixth edition of the
A.M.A., Guides, pertaining to the lower extremities, provides that DBI is the primary method of
calculation for the lower limb. Furthermore, most impairments are based on the DBI method
where impairment class is determined by the diagnosis and specific criteria as adjusted by the
grade modifiers for functional history, physical examination, and clinical studies. It further
provides that alternative approaches are also provided for calculating impairment for peripheral
nerve deficits, complex regional pain syndrome, amputation, and ROM. ROM is primarily used
as a physical examination adjustment factor.20 The A.M.A., Guides also explains that some of
the DBI grids refer to the ROM section when that is the most appropriate mechanism for grading
the impairment. This section is to be used as a stand-alone rating when other grids refer to this
section or no other DBI sections of the chapter are applicable for rating a condition.21
Following remand, in his December 14, 2016 addendum, Dr. Katz argued that his right
lower extremity rating remained at six percent permanent impairment. The Board finds that his
supplemental report is insufficient to form the basis of appellant’s schedule award claim.22
Dr. Katz explained that his impairment rating utilized the DBI of tendinitis which differed with
that of Dr. Ellis who rated appellant for tendon tear. The Board finds that the opinion of
Dr. Katz is speculative as he noted that he did not have the original records, but “believed” that
Dr. Ellis misrepresented the word tear. Dr. Katz argued that the sprain represented a microscopic
tear of the tendon and not a gross tear as found by Dr. Ellis. Dr. Garelick, serving as OWCP’s
DMA, simply reported that there was no change in the right lower extremity impairment rating
without further explanation. As such, these reports cannot be afforded the weight of the medical
opinion evidence and are insufficient to form the basis for a schedule award.23
While the hearing representative ordered the supplemental reports to contain a reasoned
opinion as to the use of ROM vs. DBI, the citation was made to the upper extremity impairment
20

See M.M., Docket No. 16-1759 (issued April 24, 2017); A.M.A., Guides 494-531.

21

Id.; see also D.F., Docket No. 15-0664 (issued January 8, 2016).

22

L.R., Docket No. 14-0674 (issued August 13. 2014).

23

S.S., Docket No. 15-1736 (issued August 4, 2016).

7

chapter which is, obviously, inapplicable to the present lower extremity impairment rating. The
Board therefore finds that this remand issue is not relevant in the present claim.
Once OWCP undertakes development of the record it must procure medical evidence that
will resolve the relevant issues in the case.24 It began to develop the evidence by seeking an
opinion from Dr. Katz, serving as the second opinion physician, and Dr. Garelick, serving as
OWCP’s DMA, yet failed to obtain a fully rationalized report pertaining to appellant’s right
lower extremity impairment rating.25 It is unclear if appellant’s impairment rating should be
calculated utilizing peroneal and other tendon tear as noted by Dr. Ellis, or tendinitis as
stipulated by Dr. Katz. As the Board is unable to determine from the current record whether
Dr. Ellis or Dr. Katz appropriately applied the A.M.A., Guides in determining appellant’s
permanent impairment for schedule award purposes, this case must be remanded for further
development and appropriate impairment rating under the A.M.A., Guides.26
The Board will remand the case to OWCP for further medical development.27 OWCP
should refer appellant to another second opinion physician in accordance with its procedures to
properly determine the impairment to his right lower extremity based on a current examination,
the accepted employment injuries, and utilizing the proper tables and figures of the A.M.A.,
Guides. After such further development as deemed necessary, OWCP shall issue a de novo
decision on the extent of impairment to appellant’s right lower extremity.
CONCLUSION
The Board finds that this case is not in posture for a decision.

24

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, claiming as executrix of the estate of
Lionel F. Richard, 53 ECAB 430 (2002); Dorothy L. Sidwell, 36 ECAB 699 (1985); William J. Cantrell, 34 ECAB
1233 (1993).
25

C.B., Docket No. 11-1937 (issued April 6, 2012).

26

See C.S., Docket No. 14-1085 (issued August 27, 2014) (finding that when the medical adviser does not
provide sufficient explanation for his rating that his report is not entitled to constitute the weight of the medical
opinion evidence).
27

R.R., Docket No. 16-0589 (issued February 3, 2017).

8

ORDER
IT IS HEREBY ORDERED THAT the March 1, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further development
consistent with this decision.
Issued: March 14, 2018
Washington, DC

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

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

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
In the matter of R.W., Executrix of the Estate of
M.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Dallas, TX, Employer
__________________________________________

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Appearances:
Michael E. Woods, for the appellant
Office of Solicitor, for the Director

Docket No. 16-0119
Issued: April 18, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On October 27, 2015 appellant, through her representative, filed a timely appeal of a
September 30, 2015 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). As more than 180 days elapsed from October 7, 2004, the date of the most recent
OWCP merit decision on the disputed issue, and the filing of this appeal on October 27, 2015,
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 appellant’s claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been on appeal before the Board. In a decision dated
February 9, 2004, the Board found that the case was not in posture for decision with regard to
whether the employee was entitled to disability compensation after July 31, 1996. The Board
determined that OWCP had properly found that, if the employee was receiving retroactive pay
for the period August 1, 1996, under an Equal Employment Opportunity (EEO) decision, he
would be prohibited from receiving wage-loss compensation for the same period. However,
there was no evidence of record that the employing establishment had fulfilled its obligations
under the EEO decision, nor was there evidence that the employee was paid any of the back
wages he was owed. On remand, the Board directed that OWCP should determine whether the
employee was paid back wages pursuant to the EEO order and, after examining all of the
relevant evidence, to issue a de novo decision on the employee’s entitlement to wage-loss
compensation benefits for the period beginning August 1, 1996.2 The facts of the case, as set
forth in the prior decisions, are incorporated herein by reference.
On May 12, 2004 OWCP requested that the employing establishment provide
documentation regarding retroactive payments for salary or wages beginning August 1, 1996 and
the employee’s return to work. The employing establishment provided sufficient evidence to
establish that appellant was on the payroll for that period and included the employee’s back pay
application and the back pay decision/settlement worksheet with supporting documents.
In an October 7, 2004 decision, OWCP determined that the employee had received back
pay for the period August 1, 1996 until his return to work on February 23, 2004. It determined
that, as a result, the employee was not eligible for any further FECA compensation benefits
during that period.
The record indicates that the employee passed away in 2013.
On May 18, 2015 appellant’s representative requested reconsideration of the October 7,
2004 decision. He argued that the employee should receive compensation for wage-loss
compensation benefits for the period beginning August 1, 1996 through February 23, 2004.
Appellant’s representative argued that the employee did not receive the correct payment for his
back wages under the EEO order and the wages were calculated incorrectly. He argued that the
employee was not compensated for the above noted period of time, but rather, the employing
establishment credited the employee with the amount of money he would have received from his
Office of Personnel Management (OPM) retirement account as if he had been working and
receiving wages outside the employing establishment.
Appellant’s representative argued that instead of paying the employee for the time period
in question, the employing establishment deducted/credited the compensation it owed him
because he used his own (money in his retirement) to support him and his family. He argued that
since the employee used his own money, he was entitled to make an election of benefits and have
his OPM retirement account credited for the amount of money withdrawn from his retirement
2

Docket No. 04-0091 (issued February 9, 2004).

2

account. Under 5 U.S.C. § 8116, the representative argued that when an election was required in
a disability case, OWCP must provide a Form CA-1102 to the employee, which provides
information about the rate of compensation payable and the employee’s right to elect the more
advantageous benefit. He argued that when the employee’s benefits were reinstated on
February 23, 2004, it was clear evidence of error because OWCP failed to provide him with an
election of benefits letter. The representative argued that he had met the requirements to
establish clear evidence of error and requested that the employee be given an election of benefits
letter to elect the more advantageous benefit. No documentation accompanied his argument.
In a September 30, 2015 decision, OWCP denied appellant’s request for reconsideration
for the reason that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for
further merit review.3 This discretionary authority, however, is subject to certain restrictions.
For instance, a request for reconsideration must be received within one year of the date of
OWCP’s decision for which review is sought.4 Imposition of this one-year filing limitation does
not constitute an abuse of discretion.5
OWCP may not deny a reconsideration request solely as it was untimely filed. When a
claimant’s application for review is untimely filed, OWCP must nevertheless undertake a limited
review to determine whether it demonstrates clear evidence of error. If an application
demonstrates clear evidence of error, OWCP will reopen the case for merit review.6
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue that was decided by OWCP. The evidence must be positive, precise, and explicit and must
manifest on its face that OWCP committed an error. Evidence that does not raise a substantial
question concerning the correctness of OWCP’s decision is insufficient to establish clear
evidence of error. It is not enough merely to show that the evidence could be construed so as to
produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and
whether the new evidence demonstrates clear error on the part of OWCP.7 To demonstrate clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in the medical opinion or establish a clear procedural error, but must be of sufficient
probative value to shift the weight of the evidence in favor of the claimant and raise a substantial
question as to the correctness of OWCP’s decision. The Board makes an independent
3

See 5 U.S.C. § 8128(a); Y.S., Docket No. 08-440 (issued March 16, 2009).

4

20 C.F.R. § 10.607(a).

5

E.R., Docket No. 09-599 (issued June 3, 2009); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

6

M.L., Docket No. 09-956 (issued April 15, 2010). See also 20 C.F.R. § 10.607(b); Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(c) (September 2011) (the term “clear evidence of
error” is intended to represent a difficult standard).
7

Steven J. Gundersen, 53 ECAB 252, 254-55 (2001).

3

determination of whether a claimant has demonstrated clear evidence of error on the part of
OWCP such that it abused its discretion in denying merit review in the face of such evidence.8
ANALYSIS
In its September 30, 2015 decision, OWCP properly determined that appellant failed to
file a timely application for review. It rendered its last merit decision regarding whether the
employee was entitled to receive compensation for wage loss beginning August 1, 1996 on
October 7, 2004. The reconsideration request of appellant’s representative was received on
May 18, 2015, more than 10 years after the October 7, 2004 merit decision and was, therefore,
untimely.
The Board also finds that the untimely request does not demonstrate clear evidence of
error. In its October 7, 2004 decision, OWCP determined that the employing establishment had
provided sufficient documentation to establish that the employee had been on the employing
establishment rolls for the period August 1, 1996 through his return to work on
February 23, 2004. It determined that the employee was thus not entitled to any further
compensation benefits during that period.
The employee’s representative argued that the employee should receive compensation for
wage-loss compensation benefits for the period beginning August 1, 1996 through
February 23, 2004 because the employing establishment had not properly paid the employee for
his back wages under the EEO order and the wages had been calculated incorrectly. However,
the Board lacks jurisdiction over the structure and accuracy of the back wages the employee was
to receive, as a result of this EEO order. Any concerns regarding that payment would be
addressed to either the EEOC or the employing establishment. Appellant’s representative argues
that the employing establishment calculated some of the back pay on the employee’s retirement
salary and as such believes an election of benefits form, under 5 U.S.C. § 8116, would have been
appropriate. However, this allegation has not been supported by any evidence to establish any
error in OWCP’s September 30, 2015 decision. While appellant is correct that if an employee
were receiving retirement pay and was also entitled to wage-loss compensation under FECA, an
election under 5 U.S.C. § 8116 would be required. In this case, however, the employee was not
entitled to compensation benefits under FECA because he was receiving compensation from the
employing establishment for back wages.9 As such this argument fails to raise a substantial
question as to the correctness of OWCP’s decision and is therefore insufficient to demonstrate
clear evidence of error.
OWCP reviewed the arguments submitted by appellant’s representative and properly
found it to be insufficient to demonstrate clear evidence of error on the part of OWCP such that
OWCP abused its discretion in denying merit review. The Board finds that OWCP did not abuse
its discretion in denying further merit review.

8

Id.

9

See 5 U.S.C. § 8116; 20 C.F.R. § 10.421.

4

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the September 30, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 18, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
U.S. POSTAL SERVICE, ROCKRIDGE
STATION, Oakland, CA, Employer
__________________________________________

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

Docket No. 10-933
Issued: December 9, 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
Appellant filed a timely appeal of the November 17, 2008 merit decision of the Office of
Workers’ Compensation Programs affirming the termination of her compensation benefits.1
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 the Office properly terminated appellant’s compensation benefits
effective January 17, 2008 on the grounds that she no longer had any residuals or disability
causally related to her November 7, 1987 employment-related injury.

1

For Office decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal with the
Board. See 20 C.F.R. § 501.3(d)(2). The evidence establishes that appellant timely filed the current appeal, i.e.,
within one year of the issuance of the November 17, 2008 Office decision.

On appeal, appellant contends that she did not submit any additional medical evidence in
support of her continuing employment-related residuals and disability because she does not have
medical insurance to cover a medical examination.
FACTUAL HISTORY
The Office accepted that on November 7, 1987 appellant, then a 27-year-old letter carrier,
sustained a lumbosacral sprain in the performance of duty. Following this injury, she worked as
a modified letter carrier. Appellant stopped work on May 16, 2005. The Office paid appropriate
disability compensation.
On June 4, 2007 the Office referred appellant, together with a statement of accepted facts
and medical record, to Dr. Robert S. Ferretti, a Board-certified orthopedic surgeon, for a second
opinion on her need for further medical treatment, disability and ability to participate in
vocational rehabilitation.2
In a June 25, 2007 medical report, Dr. Ferretti reviewed a history of appellant’s
November 7, 1987 employment injury, medical treatment and employment and social
background. He noted her symptoms of pain in her lower back and bilateral legs and cramps in
her bilateral feet and hands. On physical examination, Dr. Ferretti reported normal findings
regarding appellant’s ambulation, ability to sit, pelvis and bilateral lower extremities. He
diagnosed posterior lumbar strain causally related to the November 7, 1987 employment injury
based on a history of injury and medical record. Dr. Ferretti advised that a June 1, 2005 lumbar
magnetic resonance imaging scan demonstrated a mild disc bulge at L4-5 and L5-Sl without
spinal stenosis or foraminal narrowing. No other abnormalities were noted. Dr. Ferretti stated
that appellant’s prognosis was guarded, noting her subjective chronic pain. From an objective
standpoint, her prognosis was favorable for resolution of symptoms considering the lack of
objective findings to support her complaints. Dr. Ferretti stated that appellant’s disability for
work since May 16, 2005 was difficult to explain based on his objective evaluation. He
recommended medication for symptomatic relief and a self-directed home exercise program. No
additional physical therapy, gym or fitness center membership or pain management program was
necessary. Dr. Ferretti advised that appellant did not have any nonindustrial or preexisting back
conditions. The accepted employment injury temporarily aggravated her underlying lumbar
degenerative disc disease with a bulging disc. The aggravation was temporary as there was no
material change in the naturally occurring lumbar condition.
Dr. Ferretti opined that any symptomatic aggravation of the underlying condition
following the employment injury had ceased. He stated that appellant continued to suffer from
subjective residuals of the accepted employment-related back condition which included pain
greater on the right with radiation to both of her thighs, abnormal sensations, tenderness,
stiffness and decreased range of motion. Dr. Ferretti advised that there were no signs of nerve
root involvement or any other neurological abnormality. He found there were no objective
2

On May 30, 2007 the Office stated that appellant’s December 2006 vocational rehabilitation counseling had
been interrupted due to administrative action taken against her by the employing establishment. On June 25, 2007
appellant was separated from the employing establishment effective July 7, 2007 based on her physical inability to
meet the requirements of her letter carrier position.

2

findings to support appellant’s subjective residuals. Dr. Ferretti further found there was no need
for sacroiliac joint and epidural injections or any other invasive procedure including, surgery.
He concluded that appellant could work full time with restrictions as a modified letter carrier.
By letter dated July 17, 2007, the Office requested that Dr. James H. Rhee, an attending
Board-certified physiatrist, review Dr. Ferretti’s June 25, 2007 report and provide comments.
In a July 15, 2007 investigative report, the employing establishment’s Office of Inspector
General stated that appellant had been observed from March 15 to July 15, 2007 engaging in
significant physical activity that exceeded her physical restrictions while in receipt of
compensation for temporary total disability. A digital video disc (DVD) showed her physical
activities.
In an August 6, 2007 report, Dr. Rhee noted appellant’s complaint of pain which she
rated as 5 to 6 out of 10. On physical examination, he reported continued tenderness across the
lower lumbar region, more on the right side. Dr. Rhee found limited lumbar range of motion and
a symmetrical gait. He diagnosed chronic low back pain mostly along the right side. Dr. Rhee
ruled out chronic strain versus sacroiliac joint dysfunction. He recommended continued physical
therapy and a gym membership. Dr. Rhee reviewed Dr. Ferretti’s June 25, 2007 findings and
stated that appellant continued to have residual spasm and tightness across the lumbosacral
region with markedly limited spine motion based on his numerous medical examinations.
Although he did not see any significant findings consistent with neurological compromise, she
was an appropriate candidate for a fluoroscopically-guided sacroiliac joint injection. Dr. Rhee
concluded that appellant should continue with her previous work restrictions and listed additional
restrictions.
In an August 23, 2007 letter, the Office requested that Dr. Rhee respond to the employing
establishment’s DVD. It again requested that he review and respond to Dr. Ferretti’s June 25,
2007 findings and provide comments on the nature and extent of appellant’s employment-related
residuals and disability and need for further medical treatment.
In an August 15, 2007 letter received by the Office, on August 23, 2007, Dr. Rhee
reviewed the employing establishment’s DVD. He stated that it did not appear that appellant
demonstrated any obvious discomfort while performing the recorded activities. The activities
appeared to be a gross misrepresentation of her range of motion and functional abilities as
demonstrated and reported in her numerous clinical visits to Dr. Rhee’s office. At that time,
appellant demonstrated severe restrictions related to lumbar flexion and essentially minimal
lumbar extension. She also moved fairly slowly at times.
In a September 7, 2007 report, Dr. Rhee opined that appellant did not appear to have
significant residuals of the November 7, 1987 employment injury. Although he did not review a
description of her letter carrier position, he opined that she could return to full-duty work with no
restrictions. Dr. Rhee advised that further physical therapy was not necessary.
In a September 17, 2007 report, Dr. Rhee advised that appellant’s continued chronic
lumbar pain and restricted range of motion appeared to be primarily subjective in nature based
on the employing establishment’s DVD.

3

On December 17, 2007 the Office issued a notice of proposed termination of appellant’s
wage-loss compensation and medical benefits based on the medical opinions of Dr. Ferretti and
Dr. Rhee. Appellant was afforded 30 days to respond to this notice. She did not respond.
In a decision dated January 17, 2008, the Office terminated appellant’s compensation for
wage-loss and medical benefits with regard to her accepted employment-related injury, effective
that date. It found that the weight of the medical opinion evidence established that she no longer
had any residuals or need for further medical treatment causally related to the accepted
employment injury.
On February 7, 2008 appellant requested an oral hearing before an Office hearing
representative.
In a January 28, 2008 report, Dr. Michael F. Overfield, a Board-certified family
practitioner, advised that appellant was treated for sciatica on that date. He stated that the
diagnosed condition caused her grave discomfort.
In a November 17, 2008 decision, an Office hearing representative affirmed the
January 17, 2008 termination of compensation benefits.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of justifying termination or
modification of compensation. After it has been determined that an employee has disability
causally related to her employment, the Office may not terminate compensation without
establishing that the disability had ceased or that it was no longer related to the employment.3
The Office’s burden of proof includes the necessity of furnishing rationalized medical opinion
evidence based on a proper factual and medical background.4 Furthermore, the right to medical
benefits for an accepted condition is not limited to the period of entitlement for disability. To
terminate authorization for medical treatment, the Office must establish that a claimant no longer
has residuals of an employment-related condition that requires further medical treatment.5
ANALYSIS
The Board finds that the Office met its burden of proof to terminate appellant’s wage-loss
and medical benefits as of January 17, 2008. The Office accepted that she sustained a
lumbosacral sprain while in the performance of duty on November 7, 1987. It subsequently
referred appellant to Dr. Ferretti for a second opinion evaluation.
Dr. Ferretti’s June 25, 2007 report reviewed a history of appellant’s November 7, 1987
employment-related injury and medical treatment. He found that there were no clinical findings
of any residuals or disability causally related to the accepted employment injury. Dr. Ferretti
3

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

4

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

5

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

4

advised that appellant’s subjective complaints related to her back which included pain that
radiated to her bilateral lower extremities, abnormal sensations, tenderness, stiffness and
decreased range of motion were not supported by objective findings. His physical examination
revealed normal findings which he listed in grave detail. Dr. Ferretti advised that there were no
signs of nerve root involvement or any other neurological abnormality. He opined that the
accepted employment injury temporarily aggravated appellant’s underlying mild disc bulge at
L4-5 and L5-S1 without spinal stenosis foraminal narrowing which had ceased as there was no
material change in the naturally occurring condition. Dr. Ferretti advised that she did not require
any further physical therapy, gym or fitness center membership, pain management program or
invasive medical treatment such as, lumbar injections or surgery. He concluded that appellant
was physically able to return to full-time work as a modified letter carrier with restrictions.
Dr. Rhee, an attending physician, initially found in an August 6, 2007 report that
appellant had chronic low back pain mostly along the right side for which she required further
medical treatment and a gym membership. He reviewed Dr. Ferretti’s June 25, 2007 findings
and advised that she continued to have residual spasm and tightness across the lumbosacral
region with markedly limited spine motion. Dr. Rhee further advised that appellant should
continue to follow her previous work restrictions, as well as, newly established restrictions.
However, in subsequent reports, he changed his opinion after reviewing the employing
establishment’s DVD of her physical activities. Dr. Rhee found that appellant did not have any
residuals of the November 7, 1987 employment injury. He further found that her chronic low
back pain and restricted range of motion were subjective in nature. Dr. Rhee opined that
appellant could return to full-duty work with no restrictions. He concluded that she did not
require any further medical treatment.
The weight of the medical opinion is determined by the opportunity for and thoroughness
of examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.6 The Board finds that Dr. Ferretti’s report, which is supported
by Dr. Rhee, appellant’s own attending physician, represents the weight of the medical evidence
and that the Office properly relied on Dr. Ferretti’s report in terminating appellant’s
compensation benefits on January 17, 2008. Dr. Ferretti fully discussed the history of injury and
related his comprehensive examination findings in support of his opinion that appellant had no
residuals or disability causally related to her accepted lumbosacral sprain.
Dr. Overfield’s report which found that appellant had sciatica does not provide any
opinion addressing the causal relationship between the November 7, 1987 employment-related
injury and her current back condition and disability for work. The Board finds, therefore, that
his report is of limited probative value.7
On appeal, appellant contended that she did not submit any additional medical evidence
in support of her continuing employment-related residuals and disability because she does not
have medical insurance to cover a medical examination. Upon securing such coverage and
6

See Ann C. Leanza, 48 ECAB 115 (1996).

7

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

5

undergoing an examination, she can submit any new evidence to the Office and request
reconsideration.8
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
January 17, 2008 on the grounds that she no longer had any residuals or disability causally
related to her accepted employment-related lumbosacral strain.
ORDER
IT IS HEREBY ORDERED THAT the November 17, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 9, 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

8

5 U.S.C. § 8128; 20 C.F.R. § 10.606.

6