United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.N., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Julian, NC, Employer
__________________________________________

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

Docket No. 09-1077
Issued: December 8, 2009

Case Submitted on the Record

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

JURISDICTION
On March 16, 2009 appellant filed a timely appeal from a January 20, 2009 merit
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation based on its
finding that he had the capacity to perform the duties of a telephone operator. On appeal,
appellant argues that he is unable to work as a telephone operator because he cannot perform fine
manipulation with his hands.
FACTUAL HISTORY
On January 5, 2006 appellant, then a 47-year-old rural mail carrier, filed an occupational
disease claim alleging that he sustained bilateral carpal tunnel syndrome due to factors of his
federal employment. He stopped work on December 27, 2005. The Office accepted the claim
for bilateral carpal tunnel syndrome and paid appellant compensation beginning January 3, 2006.

On March 10, 2006 Dr. Daniel F. Murphy, a Board-certified orthopedic surgeon,
performed a left carpal tunnel release. A June 19, 2006 functional capacity evaluation (FCE),
performed for Dr. Murphy, established that appellant could work eight hours per day in a
sedentary/light capacity with lifting restrictions of 15 pounds. The FCE also indicated that
appellant could not perform fine hand movements with the right or left hand. In an initial work
conditioning evaluation dated September 29, 2006, a functional capacity evaluator indicated that
Dr. Murphy had not rated appellant’s work capacity on that date but noted that the June 20, 2006
FCE showed that he could perform sedentary/light work with lifting restrictions of 15 pounds.
In a report dated April 12, 2007, Dr. Murphy diagnosed residual left nerve root irritation
following a carpal tunnel release. He found that appellant had permanent work restrictions in
accordance with the September 29, 2006 functional capacity evaluation.
The Office referred appellant for vocational rehabilitation. In a report dated March 12,
2008, the rehabilitation counselor noted that the September 29, 2006 FCE indicated that he could
perform sedentary employment. She related that appellant asserted that he was unable to drive a
motor vehicle because of difficulty grasping the steering wheel.
In a progress report dated April 22, 2008, Dr. Murphy opined that appellant had “work
restrictions as outlined in his FCE from September 2006. This includes sedentary to light job
with [a] 15[-]pound lifting restrictions. These restrictions will not allow him to return to the
previous job he had as a rural letter carrier.”
The rehabilitation counselor performed a labor market survey and identified the position
of telephone operator/receptionist as within appellant’s work restrictions and vocational ability.
She noted that the specific vocational preparation for the position was 30 days to 3 months and
that the work was sedentary with occasional lifting of 10 pounds or less. The rehabilitation
counselor further found that labor market surveys conducted in April 2008 showed that the
positions of receptionist, customer service professional, telephone representative and
switchboard operator were reasonably available within appellant’s geographical area. In a report
dated May 7, 2008, she noted that appellant’s opportunity for successful rehabilitation was
guarded as he had applied for disability benefits with the Social Security Administration and
believed that he could not use his hands due to pain.
On May 7, 2008 an Office rehabilitation specialist opined that the positions of telephone
operator or protective service operator were reasonably available within appellant’s commuting
area. She opined that he had the specific vocational preparation for the positions based on his
work history and that he had the physical capacity to perform the positions.
By letter dated June 13, 2006, the Office informed appellant of its determination that the
positions of protective service operator, security officer and telephone operator were within his
limitations. It advised that he would have 90 days of assistance in finding a position.
On September 16, 2008 the rehabilitation specialist closed the case after unsuccessful
placement.1 By letter dated November 20, 2008, the Office notified appellant that it proposed to
1

On October 28, 2008 the rehabilitation counselor related that appellant had cancelled meetings and did not
respond to correspondence. She noted that he maintained that he was unable to drive.

2

reduce his compensation based on its finding that he had the physical and vocational ability to
perform the position of telephone operator. It provided him 30 days to submit additional
evidence or argument. The Office enclosed a description of the position of telephone operator
from the Dictionary of Occupational Titles. The position was sedentary but required often-using
hands to handle or control objects and often making repetitive motions.
On December 11, 2008 appellant related that he was submitting a report from
Dr. Murphy, which established that he was unable to work as a telephone operator.2
By decision dated January 20, 2009, the Office finalized its reduction of appellant’s
compensation effective January 18, 2009 as he had the capacity to work as a telephone operator
with wages of $300.00 per week. It noted that he had not submitted a report from Dr. Murphy as
stated in his December 11, 2008 letter. The Office calculated appellant’s new wage-earning
capacity in accordance with the principles set forth in Albert C. Shadrick.3
LEGAL PRECEDENT
Once the Office has made a determination that a claimant is totally disabled as a result of
an employment injury and pays compensation benefits, it has the burden of justifying a
subsequent reduction of benefits.4 Under section 8115(a), 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 his or
her wage-earning capacity or if the employee has no actual earnings, his or her wage-earning
capacity is determined with due regard to the nature of the injury, the degree of physical
impairment, his or her usual employment, age, qualifications for other employment, the
availability of suitable employment and other factors or circumstances which may affect wageearning capacity in his or her disabled condition.5
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist 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 the employee’s capabilities with regard to his or
her physical limitations, education, age and prior experience.6 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. Finally, application of the

2

A report from Dr. Murphy did not accompany appellant’s December 11, 2008 correspondence.

3

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

4

T.O., 58 ECAB ___ (Docket No. 06-1458, issued February 20, 2007).

5

Harley Sims, Jr., 56 ECAB 320 (2005); Karen L. Lonon-Jones, 50 ECAB 293 (1999).

6

Mary E. Marshall, 56 ECAB 420 (2005); James A. Birt, 51 ECAB 291 (2000).

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principles set forth in Albert C. Shadrick7 will result in the percentage of the employee’s loss of
wage-earning capacity.
ANALYSIS
The Board finds that the Office did not properly reduce appellant’s compensation based
on his ability to earn wages as a telephone operator. The medical evidence from Dr. Murphy,
appellant’s attending physician, established that he was no longer totally disabled; thus, the
Office properly referred him for vocational rehabilitation. The rehabilitation counselor found
that appellant had the physical and vocational capacity to perform the duties of a telephone
operator. On appeal, appellant argues that he is unable to work as a telephone operator because
the position requires fine hand manipulation.
The medical evidence is insufficient to support a finding that the position of telephone
operator was within appellant’s physical limitations. The issue of whether an employee has the
physical ability to perform a selected position is primarily a medical question that must be
resolved by the medical evidence.8 A June 19, 2006 FCE performed for appellant’s attending
physician, Dr. Murphy, found that appellant could work at a sedentary/light level with lifting
under 15 pounds. The June 2006 FCE specified that appellant could not perform fine hand
movements with either hand. On September 29, 2006 a functional capacity evaluator noted that
he had undergone a June 19, 2006 FCE, which indicated that he could perform sedentary/light
work lifting 15 pounds or less. In a report dated April 12, 2007, Dr. Murphy found that appellant
had permanent work restrictions in accordance with the FCE.9 On April 22, 2008 he found that
appellant could not work as a rural letter carrier but could work with the restrictions outlined in
his FCE. The position of telephone operator is classified as sedentary with lifting under
10 pounds occasionally, which is within the lifting restrictions set forth by his attending
physician. However, the position also requires use of the hands to handle or control objects and
to make repetitive motions “often.” The June 2006 FCE prohibited appellant from using his
hands for fine manipulation. There is no medical evidence addressing whether the repetitive
motions and use of the hands handling and controlling objects as a telephone operator constitutes
fine manipulation; consequently, it is unclear whether appellant had the capacity to work as a
telephone operator. The Office, therefore, has not met its burden of proof to reduce his
compensation benefits based on the selected position of telephone operator.
CONCLUSION
The Board finds that the Office did not properly reduce appellant’s compensation based
on its finding that he had the capacity to perform the duties of a telephone operator.

7

Supra note 3.

8

See Maurissa Mack, 50 ECAB 498 (1999); Robert Dickinson, 46 ECAB 1002 (1995).

9

Dr. Murphy referenced a September 29 2006 FCE; however, the FCE was performed on June 19, 2006.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 20, 2009 is reversed.
Issued: December 8, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
Holtsville, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-91
Issued: April 9, 2007

Case Submitted on the Record

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

JURISDICTION
On October 4, 2006 appellant, through her representative, filed an appeal of a
September 14, 2006 decision of the Office of Workers’ Compensation Programs denying
modification of its determination that appellant had no disability or continuing residuals
subsequent to July 10, 2004. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of the appeal.
ISSUE
The issue is whether appellant has established any continuing residuals on or after
July 10, 2004 causally related to her accepted employment injury of December 10, 2001.
FACTUAL HISTORY
This case is before the Board for the second time. In a decision dated February 4, 2005,
the Board affirmed the Office’s July 1, 2004 decision terminating appellant’s medical and
compensation benefits due to her accepted lumbar subluxation, sustained on July 10, 2004, on

the grounds that the condition had resolved and related residuals had ceased. The Board found
that the Office met its burden of proof to terminate appellant’s compensation based on the report
of Dr. Edmunde Stewart, a Board-certified orthopedic surgeon and impartial medical specialist,
whose opinion represented the special weight of the medical evidence. The findings of fact and
conclusions of law from the prior decision are hereby incorporated by reference.1
On December 15, 2005 appellant, through her representative, requested reconsideration.
The representative contended that the Board improperly terminated appellant’s medical and
wage-loss benefits effective July 10, 2004 and that appellant continued to suffer residuals from
her December 1, 2001 work injury. In support of her request for reconsideration, appellant
submitted reports from Dr. Marc Chernoff, a Board-certified orthopedic surgeon, and
Dr. Elias Kotsovolos, a chiropractor.
In a report dated February 21, 2005, Dr. Chernoff noted appellant’s complaints of upper
and lower back pain, muscle pain and numbness in the feet and hands, which began after an
injury at work. His examination revealed that appellant was able to toe and heel walk and was
able to perform lumbar flexion with two feet to the floor. Hyperextension was 10 degrees past
neutral; deep tendon reflexes were 12+ at the knees, bilaterally symmetric and 2+ at the ankles.
Sensation was intact in the lower extremities to light touch, bilaterally symmetric. Power testing
revealed 5/5 strength in the hip flexors, quadriceps, hamstrings tibialis anterior, extensor hallucis
longus and plantar flexors. Straight leg raising elicited back pain and posterior thigh pain
bilaterally. Dr. Chernoff found a negative bowstring sign bilaterally. He provided an impression
of lumbar and cervical disc disease with fibromyalgia.
In physical ability evaluations dated August 30, October 29 and December 27, 2004,
Dr. Kotsovolos stated that appellant had been disabled since December 10, 2001. In a report
dated January 3, 2005, he described appellant’s history of injury, indicating that she had first
sought treatment from him on January 16, 2002, after injuring herself at work on December 10,
2001 while moving boxes. Appellant’s current complaints included lower back pain and neck
pain, with intermittent hand numbness, leg pain and foot numbness bilaterally. Examination of
the cervical spine showed tight and tender cervical musculature with trigger points in the levator
scapulae scalene, trapezius and rhomboin musculature. Active range of motion was restricted, at
end range, with pain. Range of motion was increased during passive range of motion.
Compressions produced pain in extension. Examination of the lumbar spine revealed tight and
tender quadratus lumborum and pyriformis musculature. Range of motion was mildly restricted,
with pain at all end ranges. Adam’s and bilateral Kemp were positive. Dr. Kotsovolos provided
diagnoses of lumbar spine subluxation complex with lumbar IVD syndrome; cervical spine
subluxation complex with cervical IVD syndrome; headaches; and fibromyalgia. He stated that
appellant was capable of performing intermittent tasks, but would have difficulty completing a
consistent work schedule.
On March 26, 2005 Dr. Kotsovolos reiterated his January 3, 2005 diagnoses. On
examination of the cervical spine, he found that lateral translator pressure of the transverse
processes (TP’s) created pain at the right C1-3 TP’s and bilateral C4-6 TP’s. Motion palpation
revealed intersegmental hypomobility-loss of range of motion (aka vertebral
1

Docket No. 04-2012 (issued February 4, 2005).

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subluxation/dislocation complex) of the right C1-2 and left C4-7 motor units. On examination of
the lumbar spine, he found that posteroanterior pressure of the lumbar spinous processes (SP’s)
and TP’s created pain at the L4-5 SP’s and bilateral L4-5 TP’s. Motion palpation revealed
intersegmental hypomobility-loss of range of motion (aka vertebral subluxation/dislocation
complex) of the left L4-5 motor unit, with a right posterior inominate.
In an April 11, 2005 report, Dr. Kotsovolos stated that appellant’s objective and
subjective findings, related to her lower back and neck injury, had been persistent for over two
years and had been complicated by fibromyalgia. He further stated that her condition was
chronic and permanent and that she was disabled. On April 26, 2005 Dr. Kotsovolos stated that
he had initially used an incorrect diagnosis code to identify the subluxation/dislocation complex
diagnosis code for appellant’s lumbar spine. In a letter dated May 28, 2005, he again stated that
appellant was disabled. On July 15, 2005 Dr. Kotsovolos amended his March 26, 2005 report.
He stated that appellant’s subluxation complexion of the lumbar spine was diagnosed by x-rays
taken on January 16, 2002 in his office.
By decision dated September 14, 2006, the Office denied modification of its prior
decision. The Office found that the medical evidence submitted failed to establish a causal
relationship between appellant’s current condition and the accepted December 1, 2001 work
injury.
LEGAL PRECEDENT
When the Office meets its burden of proof in justifying termination of compensation
benefits, the burden of proof shifts back to the claimant to establish that she had any continuing
disability causally related to her accepted injuries.2 Causal relationship is a medical issue and the
medical evidence required to establish causal relationship, generally, is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence that includes a
physician’s rationalized opinion on whether there is a causal relationship between the claimant’s
diagnosed condition and the established incident or factor of employment. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.3
ANALYSIS
As the Board found in its February 4, 2005 decision, the Office met its burden of proof in
terminating compensation effective July 10, 2004. Therefore, the burden of proof shifted back to

2

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Virginia Davis-Banks, 44 ECAB 389 (1993); Joseph M.
Campbell, 34 ECAB 1389 (1983).
3

See John F. Glynn, 53 ECAB 562 (2002).

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appellant to establish that she had continuing employment-related residuals after that date.4 The
Board finds that the medical evidence submitted was insufficient to meet her burden of proof.
In his February 21, 2005 report, Dr. Chernoff related appellant’s complaints of upper and
lower back pain, muscle pain and numbness in the feet and hands, which he stated began after an
injury at work. He reported findings on examination and diagnosed lumbar and cervical disc
disease with fibromyalgia. However, Dr. Chernoff did not offer an opinion on whether there was
a causal relationship between appellant’s diagnosed condition and the established work injury.
Medical evidence which does not offer an opinion regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship.5
Appellant submitted numerous reports from her chiropractor, Dr. Kotsovolos. These
reports are insufficient to establish that she had any continuing residuals on or after July 10, 2004
causally related to her accepted employment injury. A chiropractor is only considered a
physician for purposes of the Federal Employees’ Compensation Act where he diagnoses
subluxation by x-ray.6 In its February 4, 2005 decision, the Board found that the reports
submitted by Dr. Kotsovolos as of that date lacked probative value, noting that there was no
evidence of record reflecting that he had based his diagnosis of lumbar and cervical spine
subluxation on the results of an x-ray. The Board also found the fact that Dr. Kotsovolos
rendered his subluxation diagnosis more than two years after he began treating appellant for her
injury, cast serious doubt on its credibility. On March 26, 2005 he provided diagnoses of lumbar
spine subluxation complex with lumbar IVD syndrome, cervical spine subluxation complex with
cervical IVD syndrome, headaches and fibromyalgia. On July 15, 2005 Dr. Kotsovolos amended
his March 26, 2005 report to reflect that appellant’s subluxation complexion of the lumbar spine
was diagnosed by x-rays taken on January 16, 2002 in his office. However, he did not provide a
copy of the x-ray report, nor did Dr. Kotsovolos explain why he waited more than three years to
report the basis of his diagnosis, again diminishing the probative value of his opinion.
Moreover, Dr. Kotsovolos did not address the relevant issue of whether appellant
remained disabled after July 10, 2004 due to her accepted employment injuries. On April 11,
2005 he stated that appellant’s objective and subjective findings, related to her lower back and
neck injury, had been persistent for over two years and had been complicated by fibromyalgia.
Dr. Kotsovolos further stated that her condition was chronic and permanent and that she was
disabled. However, he failed to address the report of Dr. Stewart, a Board-certified orthopedic
surgeon and impartial medical specialist, whose opinion represented the special weight of the
medical evidence. All of his reports merely repeated his opinion that appellant had been disabled
since her December 10, 2001 employment injury. None of Dr. Stewart’s reports explained how
appellant’s current diagnosed conditions were causally related to the accepted injury. As
4

Id.

5

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

6

Section 8101(2) of the Act provides as follows: “(2) ‘physician’ includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. The term ‘physician’ includes chiropractors only to the extent that their reimbursable services are
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by
x-ray to exist and subject to regulation by the secretary.” See Merton J. Sills, 39 ECAB 572, 575 (1988).

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Dr. Kotsovolos failed to provide any medical rationale which supports that appellant suffered
residuals after July 10, 2004 due to her accepted employment injuries, his reports are of
diminished probative value.7 The Board notes that Dr. Kotsovolos diagnosed headaches and
fibromyalgia, as well as spinal subluxation. However, diagnosis and treatment of these
conditions is outside the scope of his expertise as a chiropractor. As appellant has submitted no
probative medical evidence establishing that she continues to suffer residuals from employmentrelated conditions, she has not met her burden of proof to establish entitlement to compensation
after July 10, 2004, the date the Office terminated her compensation benefits.8
CONCLUSION
The Board finds that appellant has not established any continuing residuals on or after
July 10, 2004 causally related to her accepted employment injury of December 10, 2001.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 14, 2006 is affirmed.
Issued: April 9, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7

Jean Culliton, 47 ECAB 728 (1996).

8

On appeal, her representative contended that the Board erred in terminating appellant’s benefits. In the instant
case, the Board resolved the issue of whether the Office properly terminated appellant’s wage-loss and medical
benefits effective July 10, 2004 on the grounds that the accepted condition of lumbar subluxation had resolved. A
decision of the Board is final upon the expiration of 30 days from the date of the decision. 20 C.F.R. § 501.6(d).
Appellant did not seek reconsideration of the Board’s decision pursuant to 20 C.F.R. § 501.7(a). Therefore, this
issue is res judicata. 5 U.S.C. § 8128; Clinton E. Anthony, Jr., 49 ECAB 476 (1998). See also Hugo A. Mentink,
9 ECAB 628, 629 (1958).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., claiming as child of T.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Jacksonville, FL, Employer
__________________________________________

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Appearances:
V.B., for the appellant
Office of Solicitor, for the Director

Docket No. 14-916
Issued: August 11, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 13, 2014 appellant, through his representative, filed a timely appeal from a
February 3, 2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP),
finding that the employee abandoned his request for an oral hearing.1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the nonmerit decision of OWCP. The last merit decision of record was
OWCP’s July 8, 2013 decision. Because more than 180 days has elapsed between the last merit
decision and the filing of this appeal on March 13, 2014, the Board lacks jurisdiction to review
the merits of this case.3

1

The appeal was filed on behalf of appellant as the only child of the deceased employee, who died on July 13,
2013 and was divorced. In response to the Board’s inquiry, appellant submitted a durable power of attorney
authorizing his mother as his agent in probate of the estate and as his representative before the Board.
2
3

5 U.S.C. § 8101 et seq.

An appeal of OWCP decisions issued on or after November 19, 2008 must be filed within 180 days of the
decision. 20 C.F.R. § 501.3(e).

ISSUE
The issue is whether the employee abandoned his request for an oral hearing before an
OWCP hearing representative.
FACTUAL HISTORY
On May 31, 2013 the employee, then a 47-year-old mail clerk, filed a traumatic injury
claim (Form CA-1) alleging that on May 30, 2013 he sustained a head and back injury when he
passed out and fell on the floor. He notified his supervisor and first sought medical treatment on
May 31, 2013. The employing establishment controverted the claim and noted that the employee
had a history of fainting spells and seizures at work.
On May 31, 2013 the employing establishment issued appellant a properly completed
Form CA-16, authorization for examination, which authorized the employee to visit Sacred Heart
Hospital. A May 31, 2013 emergency room (ER) report was submitted documenting treatment
for the employee’s injury.
By letter dated June 6, 2013, OWCP informed the employee that the evidence of record
was insufficient to support his claim. The employee was advised of the medical and factual
evidence needed and asked that he respond to the provided questions within 30 days.
In support of his claim, the employee submitted a June 13, 2013 note from Dr. Billy C.
Weistein, a Board-certified neurologist, who released him back to work with restrictions.
By decision dated July 8, 2013, OWCP denied the employee’s claim finding that the
evidence did not establish that the May 31, 2013 incident occurred as alleged. It also found that
the employee failed to establish a diagnosed medical condition causally related to the alleged
employment incident.
On July 8, 2013 the employee requested an oral hearing before an OWCP hearing
representative.4
By letter dated December 4, 2013, OWCP notified the employee that his hearing would
be held on January 14, 2014 at 3:15 p.m. Eastern time. It provided him with a toll-free number
to call at that time to be connected to the hearing representative and court reporter.
By decision dated February 3, 2014, OWCP’s hearing representative found that the
employee abandoned his request for an oral hearing. He noted that the employee received
written notice 30 days in advance of the hearing but failed to participate. The hearing

4

See supra note 1.

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representative also found no evidence of record that the employee contacted OWCP either prior
or subsequent to the scheduled hearing to explain his failure to appear.5
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides the right to a hearing before an OWCP hearing
representative, stating:
“Before review under section 8128(a) of this title, a claimant for compensation
not satisfied with a decision of the Secretary under subsection (a) of this section is
entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.”6
A claimant who has received a final adverse decision by OWCP may obtain a hearing by
writing the address specified in the decision within 30 days of the date of the decision for which
a hearing is sought.7 Unless otherwise directed in writing by the claimant, OWCP’s hearing
representative will mail a notice of the time and place of the hearing to the claimant and any
representative at least 30 days before the scheduled date.8 OWCP has the burden of proving that
it mailed to appellant and his representative a notice of a scheduled hearing.9
Under the mailbox rule, it is presumed, in the absence of evidence to the contrary, that a
notice mailed to an individual in the ordinary course of business was received by that individual.
This presumption arises when it appears from the record that the notice was properly addressed
and duly mailed.10 However, as a rebuttable presumption, receipt will not be assumed when
there is evidence of nondelivery.11 The presumption of receipt does not apply where a notice is
sent to an incorrect address.12
The authority governing abandonment of hearings rests with OWCP’s regulations, which
provide in pertinent part as follows: A claimant who fails to appear at a scheduled hearing may
5

The Board notes that appellant submitted additional evidence after OWCP rendered its February 3, 2014
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, this additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952). Appellant may submit this evidence
to OWCP, together with a formal request for reconsideration, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§ 10.606(b)(2).
6

5 U.S.C. § 8124(b)(1).

7

20 C.F.R. § 10.616(a).

8

Id. at 10.617(b).

9

See Michelle R. Littlejohn, 42 ECAB 463 (1991); see also K.D., Docket No. 11-77 (issued August 18, 2011).

10

See Michelle Lagana, 52 ECAB 187 (2000).

11

See C.O., Docket No. 10-1796 (issued March 23, 2011); M.U., Docket No. 09-526 (issued
September 14, 2009).
12

See Clara T. Norga, 46 ECAB 473 (1995); W.A., Docket No. 06-1452 (issued November 27, 2006).

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request in writing within 10 days after the date set for the hearing that another hearing be
scheduled. Where good cause for failure to appear is shown, another hearing will be scheduled
and conducted by teleconference. The failure of the claimant to request another hearing within
10 days or the failure of the claimant to appear at the second scheduled hearing without good
cause shown, shall constitute abandonment of the request for a hearing.13
ANALYSIS
Following OWCP’s July 8, 2013 decision denying his traumatic injury claim, the
employee requested an oral hearing before an OWCP hearing representative. On December 4,
2013 OWCP notified the employee that his telephone hearing was scheduled for January 14,
2014 at 3:15 p.m. Eastern time. It provided him with a toll-free number and pass code to call in
at the time of the hearing. The employee did not request a postponement, failed to call in for the
scheduled hearing and failed to provide any notification for such failure within 10 days of the
scheduled date of the hearing. As all three conditions for abandonment are met, the Board finds
that the employee abandoned his request for an oral hearing. The Board will therefore affirm the
hearing representative’s February 3, 2014 decision.
On appeal, the representative argues that OWCP should have accepted the employee’s
traumatic injury claim as work related. As noted, the Board does not have jurisdiction to review
the July 8, 2013 merit decision denying the employee’s traumatic injury claim.14
CONCLUSION
The Board finds that the employee abandoned his request for an oral hearing before an
OWCP hearing representative on January 14, 2014.

13

20 C.F.R. § 10.622(f); see Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the
Written Record, Chapter 2.1601.6(g) (October 2011). See also M.F., Docket No. 14-128 (issued March 18, 2014).
14

Supra note 2.

4

ORDER
IT IS HEREBY ORDERED THAT the February 3, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 11, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
DEPARTMENT OF THE ARMY, GARRISON,
Fort Hunter Liggett, CA, Employer
__________________________________________

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

Docket No. 14-243
Issued: June 2, 2014

Case Submitted on the Record

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

JURISDICTION
On November 15, 2013 appellant filed a timely appeal from the September 17, 2013
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury in the
performance of duty on October 18, 2012.
On appeal, appellant contends that he injured his right shoulder at work and that his goal
was to get his shoulder repaired so that he could return to work without restrictions.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On October 24, 2012 appellant, then a 62-year-old maintenance mechanic, filed a
traumatic injury claim alleging that on October 18, 2012 his right shoulder popped, while he was
standing up to install a hood vent on a stove in the shop. He listed the nature of his injury as
right shoulder strain/sprain.
In a November 5, 2012 report, Dr. William F. Sima, a Board-certified diagnostic
radiologist, listed the date of injury as October 18, 2012 and noted that appellant’s pain began
suddenly after a misstep on that date. Appellant stepped off a ladder to grab a tool and his right
shoulder popped. Dr. Sima noted that appellant’s pain initially began on September 12, 2012
when he was injured while using a handrail climbing stairs and caught his right hand and had
instant shoulder pain. He listed a preliminary impression as impingement/rotator cuff tendinitis
and right rotator cuff tear. Dr. Sima noted that this was a very common condition especially with
advancing age that could result in significant difficulties with use of the arm. Appellant had a
history of a prior rotator cuff repair on October 3, 2004. Dr. Sima advised that appellant could
return to work with restrictions of no over-the-shoulder reaching or lifting on the right side
beginning October 18, 2012. He requested a magnetic resonance imaging (MRI) scan.
In a December 7, 2012 report, Dr. D. Young Shin, a Board-certified radiologist, obtained
an MRI scan that showed: (1) infraspinatus tendon is completely torn and retracted to muscle
tendinous junction; (2) small full-thickness tears of the distal supraspinatus tendon and small
partial thickness tears of the distal supraspinatus tendon and small partial-thickness tear of the
articular side distal subscapularis tendon; (3) large inferior osteophytic spurring of distal clavicle;
(4) SLAP tear and possible posterior labrum tear; (5) glenoid chondrosis; and (6) prior rotator
cuff repair.
In a December 12, 2012 report, Dr. Sima noted that appellant’s overall condition was
somewhat better. Appellant had pain that radiated to the lateral aspect of the upper arm and
shoulder and weakness with lifting overhead. Dr. Sima noted that paresthesias was present. He
listed an impression as impingement/rotator cuff tendinitis and recurrent retracted large right
rotator cuff tear. Dr. Sima noted that appellant elected to proceed with right shoulder
arthroscopy rotator cuff repair.2
In a decision dated February 8, 2013, OWCP denied appellant’s claim. It accepted the
October 18, 2012 incident but found that the medical evidence did not establish that his right
shoulder condition was causally related to the incident.3
On March 5, 2013 appellant requested an oral hearing before an OWCP hearing
representative.

2

In a February 26, 2013 note, Dr. Sima indicated that he prescribed Vicodin for management of pain and
inflammation.
3

OWCP noted that a September 12, 2012 incident had not been accepted as employment related.

2

In a statement dated February 27, 2013, appellant indicated that on September 12, 2012
while working in the boiler room circulating pumps, he carried tools up the stairs that became
caught in the right side handrail. He felt a pull in his right shoulder and a slight pain. After a
couple of days, it still bothered appellant, so he saw Dr. Sima, who gave him a Cortisone
injection and he returned to work. On October 18, 2012, while he was cutting a sleeve through a
wall for a kitchen hood, he reached suddenly for a part that slipped from his hands and heard a
loud pop and experienced pain.
At the July 11, 2013 hearing, appellant explained how he injured himself. The hearing
representative explained to appellant that medical evidence was required to establish that the
accepted incident resulted in an injury. The hearing representative held the record open for an
additional 30 days. Appellant did not submit any new medical evidence.
In a September 17, 2013 decision, the hearing representative affirmed the denial of
appellant’s claim. She noted that appellant had a nonwork-related rotator cuff tear in 2004. The
hearing representative found that the medical evidence did not adequately describe how the
incident of October 18, 2013 caused the diagnosed medical condition.4
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged
and that any disability and/or specific condition for which compensation is claimed are causally
related to the employment injury. These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component is whether the employee actually
experienced the employment incident or exposure, which is alleged to have occurred.6 The
second component is whether the employment incident caused a personal injury and generally
can be established only by medical evidence.7
The medical evidence required to establish causal relationship is usually rationalized
medical evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
4

The hearing representative noted that appellant did not file a claim for a September 12, 2012 work incident.

5

Jussara L. Arcanjo, 55 ECAB 281, 283 (2004).

6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (August 2012).

7

John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

3

claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.8
ANALYSIS
OWCP accepted that appellant sustained an employment-related incident on
October 18, 2012. The record also establishes that he has a preexisting nonwork-related right
shoulder rotator cuff tear for which he underwent surgery in 2004. Appellant was diagnosed in
2012 with impingement/rotator cuff tendinitis and recurrent retracted large right rotator cuff tear.
OWCP determined that appellant did not submit medical evidence addressing how the
October 18, 2012 employment incident caused or aggravated his right shoulder condition.
The Board finds that appellant failed to submit medical evidence sufficient to establish a
causal relationship between the claimed injuries and the October 18, 2012 employment incident.
Dr. Shin interpreted appellant’s December 7, 2012 MRI scan but did not address his
employment. Dr. Sima noted appellant’s employment injury of October 18, 2012 and the onset
of pain that day. He also diagnosed appellant with impingement/rotator cuff tendinitis and right
rotator cuff tear. However, Dr. Sima did not provide a rationalized medical opinion addressing
how this condition was causally related to the accepted October 18, 2012 employment incident.
He noted a prior history of injury in 2004 and a September 12, 2012 incident that was not the
basis for appellant’s claim. Therefore, Dr. Sima’s opinion on causal relation is of reduced
probative value.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that the condition was caused by his employment is sufficient to
establish causal relationship.9 Appellant did not establish that his medical condition was causally
related to the October 18, 2012 incident. He failed to meet his burden of proof.
Appellant may submit evidence or argument with a written request for reconsideration to
OWCP within one year of this merit decision pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden to establish that he sustained an
injury in the performance of duty on October 18, 2012.

8

Judith A. Peot, 46 ECAB 1036 (1995); Ruby I. Fish, 46 ECAB 276 (1994).

9

D.I., 59 ECAB 158 (2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 17, 2013 is affirmed.
Issued: June 2, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, EDGEWOOD
STATION, Columbia, SC, Employer
__________________________________________

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

Docket No. 12-1259
Issued: October 10, 2012

Case Submitted on the Record

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

JURISDICTION
On May 24, 2012 appellant filed a timely appeal from the March 12, 2012 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP), which denied his
reconsideration request. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review this nonmerit decision. Since
more than 180 days has elapsed between the last merit decision on February 25, 2011 and the
filing of this appeal, the Board lacks jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s reconsideration request as
untimely filed and failing to demonstrate clear evidence of error.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 12, 1996 appellant, a 51-year-old letter carrier, sustained a traumatic injury
claim when dirt gave way, causing him to twist his left knee, back and left side. OWCP accepted
his claim for lumbar strain and right knee strain. It later accepted status post right knee
replacement and status post right shoulder arthroscopy.
In 2004 appellant received a schedule award for a 37 percent impairment of his right leg
and a 15 percent impairment of his right arm.
In a 2010 he filed a claim for an increased award.
On February 25, 2011 OWCP issued a decision denying an increased award. It found
that the medical evidence did not support an increase in the impairment already compensated.
OWCP noted that appellant’s physician had not provided an impairment rating. Appeal rights
attached to the decision notified appellant that any reconsideration request must be made within
one calendar year of the date of the decision.
On March 2, 2012 OWCP received a completed appeal request form from appellant
requesting reconsideration of the February 25, 2011 decision. Appellant dated the form
August 22, 2011. In a notation, he stated that he signed the papers in August, and it took his
physician “until today” to get them finished. Appellant gave no other indication that he was
submitting any evidence or argument to support his request for reconsideration.
On March 2, 2012 OWCP also received a January 17, 2011 work capacity evaluation
advising that appellant was unable to work.
In a decision dated March 12, 2012, OWCP denied appellant’s reconsideration request. It
found that the request was untimely and failed to present clear evidence of error in the
February 25, 2011 decision denying an increased schedule award.
On appeal, appellant contends that he dated the appeal request form August 22, 2011 and
gave it to his physician, who was supposed to send it to OWCP with the impairment worksheet.
In the meantime, he went to Thailand. Appellant returned on January 10, 2012. The physician’s
office called him to pick up the appeal on February 24, 2012. Appellant sent the request to
OWCP on February 24, 2012 and the request was postmarked that date.
To support this assertion, appellant submitted to the Board a tracking confirmation
inquiry from the U.S. Postal Service for Tracking Label 0311 1660 0002 0285 6630. It indicates
that a letter was sent to the proper address for requesting reconsideration and that the letter was
sent on February 24, 2012.

2

LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority 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 any time 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.”2
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607 provides that an
application for reconsideration must be sent within one year of the date of OWCP’s decision for
which review is sought. If submitted by mail, the application will be deemed timely if
postmarked by the U.S. Postal Service within the time period allowed. If there is no such
postmark, or it is not legible, other evidence such as (but not limited to) certified mail receipts,
certificate of service and affidavits, may be used to establish the mailing date.3
OWCP will consider an untimely application only if the application demonstrates clear
evidence of error on the part of OWCP in its most recent merit decision. The application must
establish, on its face, that such decision was erroneous.4
The term “clear evidence of error” is intended to represent a difficult standard.5 If clear
evidence of error has not been presented, OWCP 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.6
ANALYSIS
The Board’s review of a case is limited to the evidence in the case record that was before
OWCP at the time of its final decision. Evidence not before OWCP may not be considered by the
Board for the first time on appeal.7

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.607(a).

4

Id. § 10.607(b).

5

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

6

Id. at Chapter 2.1602.3.d(1).

7

20 C.F.R. § 501.2(c)(1).

3

When OWCP issued its March 12, 2012 decision finding appellant’s reconsideration
request untimely, it did not have the tracking confirmation evidence that he submitted to the Board.
That evidence was not a part of the record when OWCP issued its final decision. The Board is
therefore precluded from reviewing this evidence to determine whether it establishes the timeliness
of appellant’s reconsideration request. Following this appeal, appellant may submit this evidence
to OWCP for consideration.
Based on the evidence that was before OWCP at the time of its March 12, 2012 decision,
the Board finds that appellant’s reconsideration request was untimely. The record contained no
postmark, no certified mail receipt, no certificate of service, no affidavit and no other evidence to
establish the mailing date of his request. The record showed only that OWCP received
appellant’s request on March 2, 2012, which is insufficient by itself to establish that he timely
sent the request on or before February 25, 2012, one calendar year after the date of the most
recent merit decision.
The date appellant signed the appeal request form, August 22, 2011, does not appear to
be the date of mailing. Appellant’s notation that he signed the form in August and that it took his
doctor “until today” to get the papers finished supports that he mailed the form on some date
after August 22, 2011.
As appellant’s reconsideration must be considered untimely, absent evidence to the
contrary, the question for determination is whether his request nonetheless showed clear
evidence of error in OWCP’s February 25, 2011 decision. Appellant did not support his
reconsideration request with evidence or argument. OWCP received a work capacity evaluation
dated January 17, 2011, but this did not address the issue adjudicated by the February 25, 2011
decision, which was whether appellant was entitled to an increased schedule award. Appellant’s
request is thus insufficient on its face to warrant a reopening of his case for a merit review.
The Board finds that appellant’s reconsideration request was untimely and failed to show
clear evidence of error in OWCP’s February 25, 2011 decision. The Board will therefore affirm
OWCP’s March 12, 2012 decision denying his request.
CONCLUSION
The Board finds that OWCP properly denied appellant’s reconsideration request as
untimely filed and failing to demonstrate clear evidence of error.

4

ORDER
IT IS HEREBY ORDERED THAT the March 12, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 10, 2012
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.A., Appellant
and
U.S. POSTAL SERVICE, GREELEY ANNEX,
Greeley, CO, Employer
__________________________________________

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Appearances:
Timothy Quinn, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-1815
Issued: June 11, 2009

Case Submitted on the Record

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

JURISDICTION
On June 16, 2008 appellant, through her representative, filed a timely appeal from the
April 8, 2008 merit decision of the Office of Workers’ Compensation Programs which denied an
additional schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant has more than a 20 percent permanent impairment of her
left upper extremity. On appeal, her representative argues that the Office improperly selected the
impartial medical specialist.
FACTUAL HISTORY
On a prior appeal,1 the Board found that appellant raised a timely objection to the
selection of the impartial medical specialist, Dr. Jeffrey J. Sabin, a Board-certified orthopedic
1

Docket No. 07-1344 (issued February 19, 2008).

surgeon. The Board also found that appellant provided sufficient reason to require the Office to
demonstrate that it properly followed its selection procedures. While there was no indication
that the Office bypassed any physician on the Physicians Directory System (PDS), the Board
found that the Office had an obligation to verify that it selected Dr. Sabin in a fair and unbiased
manner. The Board set aside the Office’s February 1, 2007 decision denying an additional
schedule award and remanded the case for further development.2
On remand, the Office requested the impartial medical specialist bypass history from the
National Office. After checking the database, it learned that no physician was bypassed in
Dr. Sabin’s selection.
In a decision dated April 8, 2008, the Office explained its selection procedures and the
nature of the PDS. It then explained how it selected Dr. Sabin:
“In your case, the Office entered your zip code in the PDS system and there were
no doctors available in the PDS in your particular zip code. The medical
advis[e]r, following the correct procedure then responded to the program and
indicated that the next available physician closest to your original zip code should
be selected, and the first doctor that came up was Dr. Sabin.”
The Office found that Dr. Sabin’s selection was proper and that his report would remain
the weight of the medical evidence.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act3 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment.4
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.5 When there exist opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving

2

The facts of this case as set forth in the Board’s prior decision are hereby incorporated by reference. Appellant,
a letter carrier, sustained several injuries in the performance of duty. She moved a tray of letters, she fell and hit her
left shoulder on a vehicle door, and she performed continuous lifting, carrying and walking as well as repetitive
duties. The Office accepted a left wrist ganglion, left shoulder contusion and strain, aggravation of myalgia and
myositis and right carpal tunnel syndrome. Appellant received schedule awards totaling 20 percent for her left
upper extremity. A conflict arose as to whether her impairment was greater.
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

5 U.S.C. § 8123(a).

2

the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.6
ANALYSIS
Appellant’s representative does not argue the substance of the impartial medical
specialist’s report. He again questions the selection. But when the Office entered appellant’s zip
code into the PDS, no doctors were available. The Office then asked the system to find the next
available physician closest to appellant’s zip code, and the first doctor identified was Dr. Sabin.
The Office bypassed no one in the PDS to get to him. The Board therefore finds that the Office
has sufficiently shown that it properly followed its selection procedures.
The PDS does not list every physician in the American Board of Medical Specialties
(ABMS) database. Physicians in the ABMS database may be unwilling to participate in the PDS
program. And the Office may suspend physicians from the PDS for a number of reasons.
Because the PDS thus varies from the ABMS database, merely listing ABMS physicians who
were not selected and who were closer to the claimant’s zip code does not establish an improper
selection.
On March 29, 2004 Dr. Sabin related appellant’s history and complaints and findings on
physical examination. He reviewed appellant’s medical record and the statement of accepted
facts. Dr. Sabin found impairments of seven percent due to loss of left shoulder flexion,7 two
percent due to loss of extension,8 four percent due to loss of abduction,9 and two percent due to
loss of internal rotation.10 He also found impairments of two percent for loss of left wrist
flexion,11 two percent for loss of extension,12 and one percent for loss of ulnar deviation.13 The
15 percent regional impairment of the shoulder combines with the 5 percent regional impairment
of the wrist for 19 percent total impairment of the left upper extremity.14
The Board finds that Dr. Sabin’s March 29, 2004 examination was based on a proper
background and was sufficiently rationalized that it is entitled to special weight in resolving the
extent of appellant’s impairment. Because the weight of the medical evidence fails to establish
6

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

7

American Medical Association, Guides to the Evaluation of Permanent Impairment 476 (5th ed. 2001) (Figure
16-40, 80 degrees).
8

Id. at Figure 16-40 (20 degrees).

9

Id. at 477 (Table 16-43, 90 degrees).

10

Id. at 479 (Table 16-46, 60 degrees).

11

Id. at 467 (Table 16-28, 50 degrees).

12

Id.

13

Id. at 469 (Table 16-31, 25 degrees).

14

Id. at 604 (Combined Values Chart).

3

that appellant has more than 20 percent impairment of her left upper extremity, the Board will
affirm the Office’s April 8, 2008 decision.
CONCLUSION
The Board finds that appellant has 20 percent permanent impairment of her left upper
extremity.
ORDER
IT IS HEREBY ORDERED THAT the April 8, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 11, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
DEPARTMENT OF THE INTERIOR,
BUREAU OF RECLAMATION,
Grand Coulee, WA, Employer
__________________________________________

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Appearances:
Stephanie Leet, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-1065
Issued: November 29, 2018

Case Submitted on the Record

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

JURISDICTION
On May 1, 2018 appellant, through counsel, filed a timely appeal from an April 10, 2018
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish more than 28 percent
permanent impairment of his right lower extremity, for which he previously received schedule
award compensation.
FACTUAL HISTORY
This matter has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
On August 20, 2008 appellant, then a 56-year-old mechanic, filed a traumatic injury claim
(Form CA-1) alleging that he sustained a right knee injury at work on August 13, 2008. He
asserted that his right knee twisted and popped when he stepped on a steam cleaner hose. Appellant
did not stop work.4
OWCP accepted appellant’s claim for medial meniscus tear and medial collateral ligament
sprain of his right knee.
Appellant stopped work on October 21, 2008 and, on the same date, Dr. James M.
Lamberton, an attending Board-certified orthopedic surgeon, performed OWCP-approved partial
medial and lateral meniscectomies, and medial and lateral femoral condyle chondroplasties.
On December 8, 2008 appellant returned to regular duty on a full-time basis.
In a September 15, 2009 report, Dr. Lamberton determined that appellant had 35 percent
permanent impairment of his right lower extremity due to right knee deficits related to arthritis and
partial medial and lateral meniscectomies. He calculated appellant’s permanent impairment under
the standards of the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides).5
OWCP requested that Dr. Kenneth D. Sawyer, a Board-certified orthopedic surgeon,
evaluate appellant’s permanent impairment in his role as an OWCP medical adviser. On
October 7, 2009 Dr. Sawyer determined that, under the sixth edition of the A.M.A., Guides,
appellant had 26 percent permanent impairment of his right lower extremity based on deficits from
right knee arthritis, a condition that he deemed to be the most impairing right knee diagnosis.
By decision dated November 3, 2009, OWCP granted appellant a schedule award for 26
percent permanent impairment of his right lower extremity. The award ran for 74.88 weeks from
3

Docket No. 16-0968 (issued August 8, 2016).

4

In 2005, OWCP accepted an employment-related left knee condition under a separate claim file. Appellant
underwent OWCP-approved total left knee replacement surgery and received schedule award compensation for the
condition, but the permanent impairment of appellant’s left lower extremity is not the subject of the present appeal.
5

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

2

September 15, 2009 to February 21, 2011 and was based on the October 7, 2009 report of
Dr. Sawyer.
Appellant stopped work on January 23, 2012 and, on that same date, Dr. Lamberton
performed OWCP-approved total right knee replacement surgery.
In a September 30, 2013 report, Dr. Lamberton determined that, under the sixth edition of
the A.M.A., Guides, appellant had 21 percent permanent impairment of his right lower extremity
due to deficits related to his January 23, 2012 total right knee replacement surgery.
OWCP requested that Dr. L.J. Weaver, a Board-certified internist, evaluate appellant’s
permanent impairment in his role as an OWCP medical adviser. On December 12, 2013
Dr. Weaver expressed his agreement with Dr. Lamberton’s permanent impairment rating.
By decision dated January 16, 2014, OWCP granted appellant a schedule award for 21
percent permanent impairment of his right lower extremity. The award ran for 74.88 weeks from
September 15, 2009 to February 21, 2011 and was based on Dr. Lamberton’s September 30, 2013
report and Dr. Weaver’s December 12, 2013 report.
By decision dated March 9, 2015, OWCP rescinded its January 16, 2014 schedule award
because the compensation awarded for 21 percent permanent impairment of appellant’s right lower
extremity was duplicative of previously-awarded compensation for his right lower extremity
permanent impairment.6
In January 2015, OWCP expanded appellant’s accepted conditions to include trochanteric
bursitis of the right hip.
On May 11, 2015 appellant filed a claim for compensation (Form CA-7) seeking increased
schedule award compensation due to his August 13, 2008 employment injury.
In support of his schedule award claim, appellant submitted an April 12, 2015 report from
Dr. Lamberton who noted that appellant continued to complain of right knee soreness with
recurrent reproducible popping in the medial aspect upon flexion/extension motion. He also
reported walking with a limp most of the time and Dr. Lamberton opined that appellant’s
increasing right trochanteric bursa pain was secondary to his abnormal gait. Dr. Lamberton
detailed the findings of the physical examination he conducted on February 10, 2015, noting that
he observed appellant walking with a mild-to-moderate limp.7 Examination of appellant’s right
knee showed mild swelling without effusion and stability both anteriorly and posteriorly.
Dr. Lamberton indicated that range of motion testing of appellant’s right knee showed full
By decision dated January 5, 2016, OWCP’s hearing representative affirmed OWCP’s March 9, 2015 rescission
decision. By separate decision dated January 5, 2016, the hearing representative determined that appellant received a
$62,032.20 overpayment of compensation, due to receipt of duplicative schedule award compensation, which was not
eligible for waiver of recovery of the overpayment. By decision dated August 8, 2016, the Board affirmed both
January 5, 2016 decisions. Docket No. 16-0968 (issued August 8, 2016); see supra note 3.
6

7
Dr. Lamberton indicated that appellant had an antalgic gait favoring his left lower extremity, but noted that he
also had a hint of a Trendelenburg gait favoring his right hip.

3

extension and flexion limited to about 110 to 115 degrees. He found that appellant had tenderness
to palpation over the medial side of his right knee and popping upon flexion/extension. The range
of motion testing of appellant’s right hip showed flexion to 95 degrees, internal rotation to 10
degrees, external rotation to 20 degrees, and abduction to 20 degrees with a negative Patrick’s test.
Appellant had very exquisite point tenderness over his greater right hip trochanter.8 Dr. Lamberton
diagnosed status post total right knee replacement/arthroplasty (fixed and stable with a fair result)
and severe chronic trochanteric bursitis of the right hip secondary to abnormal gait pattern due to
the August 13, 2008 injury.
Dr. Lamberton advised that appellant’s right lower extremity permanent impairment had
increased since the last rating evaluation due to his development of an employment-related right
hip trochanteric condition and deterioration of his right knee condition evidenced by persistent
mild-to-moderate limp, recurrent swelling, recurrent popping, and some loss of range of motion.
He applied the diagnosis-based impairment rating method of the sixth edition of the A.M.A.,
Guides.9 Under Table 16-3 (Knee Regional Grid) beginning on page 509, appellant’s total right
knee replacement fell under class 3 with a default value of 37 percent due to a fair result with mild
right knee range of motion deficits. Under Table 16-6 through Table 16-8 on pages 516 through
520, Dr. Lamberton determined that appellant had a grade modifier for functional history (GMFH)
of 1 (mild antalgic limp), a grade modifier for physical examination (GMPE) of 2 (recurrent
tenderness to palpation and painful popping over the medial side), and grade modifier for clinical
studies (GMCS) of 2 (total right knee replacement in place). Application of the net adjustment
formula on page 520 required movement from the 37 percent default value on Table 16-3 to the
31 percent value two spaces to the left. Dr. Lamberton concluded that appellant had 31 percent
permanent impairment of his right lower extremity due to right knee deficits. He further found
that, under Table 16-4 (Hip Regional Grid) beginning on page 512, appellant’s right hip condition
(including heterotopic bone/bursitis) fell under class 1. Dr. Lamberton determined that appellant
had a functional history grade modifier of 1 (mild antalgic limp), a physical examination grade
modifier of 2 (recurrent tenderness to palpation of the trochanter), and clinical studies grade
modifier of 2 (moderate pathology with heterotopic bone). Application of the net adjustment
formula meant that appellant had 13 percent permanent impairment of his right lower extremity
due to right hip deficits. Dr. Lamberton combined the 31 percent and 13 percent values, using the
Combined Values Chart on page 604, and concluded that appellant had 40 percent permanent
impairment of his right lower extremity.
On February 2, 2016 OWCP requested that Dr. Eric M. Orenstein, a Board-certified
orthopedic surgeon and OWCP medical adviser, review Dr. Lamberton’s April 12, 2015 report
and provide an opinion on the extent of appellant’s permanent impairment.
In a February 6, 2016 report, Dr. Orenstein discussed Dr. Lamberton’s April 12, 2015
report and provided his own right lower extremity permanent impairment under the sixth edition
of the A.M.A., Guides. He noted that, under Table 16-3, appellant’s total right knee replacement
fell under class 2 with a default value of 25 percent due to a good result. Under Table 16-6 through
Table 16-8, Dr. Orenstein determined that appellant had a GMFH of 1 (antalgic limp), a GMPE of
8

Dr. Lamberton noted that x-ray testing demonstrated mild heterotopic bone over the greater right trochanter.

9

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

4

2 (moderate palpatory findings), and a GMCS of 1. Application of the net adjustment formula
required movement from the 25 percent default value on Table 16-3 to the 21 percent value two
spaces to the left. Dr. Orenstein concluded that appellant had 21 percent permanent impairment
of his right lower extremity due to right knee deficits. He further found that, under Table 16-4,
appellant’s right hip bursitis fell under class 1 with a default value of seven percent for right lower
extremity permanent impairment. Dr. Orenstein determined that appellant had a GMPE of 2
(moderate palpatory findings) and a GMCS of 2 (confirmation of heterotopic bone), and that a
GMFH was not applicable because functional history was used to determine the diagnosis class.
Application of the net adjustment formula required movement two spaces to the right of the seven
percent default value on Table 16-3 such that appellant’s total right lower extremity permanent
impairment due to right hip deficits was nine percent. Dr. Orenstein combined the 21 percent and
9 percent values and concluded that appellant had 28 percent permanent impairment of his right
lower extremity. He found that appellant reached maximum medical improvement (MMI) on
April 12, 2015, the date of Dr. Lamberton’s examination.
On February 10, 2016 OWCP referred appellant for a second opinion examination to
Dr. Aleksandar Curcin, a Board-certified orthopedic surgeon, and requested that he provide an
assessment of appellant’s permanent impairment.
In a March 22, 2016 report, Dr. Curcin discussed appellant’s factual and medical history
and noted that appellant presented to the March 22, 2016 appointment complaining of right knee
pain with occasional popping and right trochantric bursitis symptoms. He reported his findings of
the physical examination, noting that he observed appellant walking with full weight on his lower
extremities and that he had no significant limp or list. Dr. Curcin indicated that appellant could
stand on one leg at a time without signiﬁcant discomfort, but he declined squatting to the ﬂoor for
fear of worsening his symptoms. Appellant’s right knee produced very mild-to-minor mechanical
clunking from knee replacement surgery and there was no tenderness with palpation or evidence
of effusion. Dr. Curcin noted that range of motion of the right knee was from 0 to 105 degrees
and that the drawer tests of the medial collateral, lateral collateral, and anterior cruciate ligaments
were all stable. Regarding the right hip, there was discomfort with palpation over the right greater
trochanteric region. Thigh circumference was 55 centimeters on the right and 57 centimeters on
the left. Dr. Curcin diagnosed right medial meniscal tear, sprain of right medial collateral
ligament, and trochanteric bursitis of the right hip.
Dr. Curcin found that, under Table 16-3 of the sixth edition of the A.M.A., Guides,
appellant’s total right knee replacement fell under class 2 with a default value of 25. He determined
that appellant had a GMFH of 0 (no limp or assistive devices used), a GMPE of 1 (thigh atrophy),
and a GMCS of 1 (limited imaging findings). Application of the net adjustment formula required
movement from the 25 percent default value on Table 16-3 such that appellant had 21 percent
permanent impairment of his right lower extremity due to right knee deficits. Dr. Curcin further
found that, under Table 16-4, appellant’s right hip bursitis fell under class 1 with a seven percent
default value for right lower extremity permanent impairment. He determined that appellant had
a GMPE of 2 and a GMCS of 2, and that a GMFH was not applicable because functional history
was used to determine the diagnosis class. Application of the net adjustment formula required
movement two spaces to the right of the seven percent default value on Table 16-3 such that
appellant’s total right lower extremity permanent impairment due to right hip deficits was nine
percent. Dr. Curcin combined the 21 percent and 9 percent values and concluded that appellant

5

had 28 percent permanent impairment of his right lower extremity. He agreed with both
Dr. Lamberton and Dr. Orenstein that appellant reached MMI on April 12, 2015
OWCP requested that Dr. Orenstein review Dr. Curcin’s March 22, 2016 report in his role
as an OWCP medical adviser and provide an opinion on the extent of appellant’s permanent
impairment. In a September 10, 2017 report, Dr. Orenstein indicated that he agreed with
Dr. Curcin’s March 22, 2016 rating evaluation and his own earlier rating evaluation that appellant
had 28 percent permanent impairment of his right lower extremity.10
By decision dated September 14, 2017, OWCP granted appellant a schedule award for an
additional 2 percent permanent impairment of his right lower extremity, for a total of 28 percent
permanent impairment of his right lower extremity (2 percent permanent impairment in addition
to the 26 percent permanent impairment previously awarded). The award ran for 5.75 weeks from
March 22 to May 1, 2016 and was based on the opinions of Dr. Curcin and Dr. Orenstein.
On October 10, 2017 appellant requested a telephone hearing with a representative of
OWCP’s Branch of Hearings and Review. During the hearing held on February 23, 2018, counsel
argued that there was a conflict in the medical opinion evidence between Dr. Lamberton, the
attending physician, and Dr. Curcin and Dr. Orenstein, OWCP’s physicians, regarding the extent
of the permanent impairment of appellant’s right lower extremity.
By decision dated April 10, 2018, OWCP’s hearing representative denied modification of
its September 14, 2017 decision. She found that the weight of the medical evidence rested with
the permanent impairment ratings of Dr. Curcin and Dr. Orenstein.
LEGAL PRECEDENT
The schedule award provisions of FECA,11 and its implementing federal regulations,12 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.13 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.14

10

Dr. Orenstein appears to have inadvertently referred to his earlier rating evaluation as occurring on December 4,
2016, but it actually occurred on February 6, 2016. The record does not contain a December 4, 2016 report of
Dr. Orenstein.
11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404.

13

Id. at § 10.404(a).

14
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).

6

In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the knee, the relevant portion of the leg for the present case, reference
is made to Table 16-3 (Knee Regional Grid) beginning on page 509.15 After the class of diagnosis
(CDX) is determined from the Knee Regional Grid (including identification of a default grade
value), the net adjustment formula is applied using the GMFH, GMPE and GMCS. The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).16 Under Chapter 2.3,
evaluators are directed to provide reasons for their impairment rating choices, including choices
of diagnoses from regional grids and calculations of modifier scores.17
FECA provides that if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination.18
For a conflict to arise the opposing physicians’ viewpoints must be of “virtually equal weight and
rationale.”19 Where OWCP has referred the case to an impartial medical examiner to resolve a
conflict in the medical evidence, the opinion of such a specialist, if sufficiently well-reasoned and
based upon a proper factual background, must be given special weight.20
ANALYSIS
The Board finds that the case is not in posture for decision.
OWCP initially accepted appellant’s claim for medial meniscus tear and medial collateral
ligament strain of his right knee, and it later expanded the accepted conditions to include
trochanteric bursitis of the right hip. It granted appellant schedule awards for 28 percent permanent
impairment of his right lower extremity.
The Board finds that there is an unresolved conflict in the medical opinion evidence
between Dr. Lamberton, the attending physician, and Drs. Orenstein and Curcin, OWCP’s
physicians, regarding the extent of the permanent impairment of appellant’s right lower extremity.
In an April 12, 2015 report, Dr. Lamberton determined that, under Table 16-3 of the sixth
edition of the A.M.A., Guides, total right knee replacement fell under class 3 with a default value
of 37 percent due to a fair result with mild right knee range of motion deficits.21 Under Table 166 through Table 16-8, Dr. Lamberton found that appellant had a GMFH of 1, a GMPE of 2, and a

15

See A.M.A., Guides 509-11 (6th ed. 2009).

16

Id. at 515-22.

17

Id. at 23-28.

18

5 U.S.C. § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994).

19

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

20

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

21

A.M.A., Guides 509-11, Table 16-3.

7

GMCS of 2.22 Application of the net adjustment formula required movement from the 37 percent
default value on Table 16-3 to the 31 percent value two spaces to the left.23 Dr. Lamberton
concluded that appellant had 31 percent permanent impairment of his right lower extremity due to
right knee deficits. He further found that, under Table 16-4, appellant’s right hip condition fell
under class 1. Dr. Lamberton determined that appellant had a GMPH of 1, a GMPE of 2, and a
GMCS of 2. Application of the net adjustment formula meant that appellant had 13 percent
permanent impairment of his right lower extremity due to right hip deficits. Dr. Lamberton
combined the 31 percent and 13 percent values, using the Combined Values Chart, and concluded
that appellant had 40 percent permanent impairment of his right lower extremity.
In contrast both Dr. Orenstein and Dr. Curcin determined that appellant had lesser
permanent impairment of his right lower extremity, i.e., 28 percent rather than 40 percent, under
the standards of the sixth edition of the A.M.A., Guides. The reports of Dr. Orenstein and
Dr. Curcin contain numerous calculations that differ from those of Dr. Lamberton. Mostly
notably, Dr. Orenstein and Dr. Curcin concluded that appellant’s right knee condition fell under
class 2 under Table 16-3, whereas Dr. Lamberton found that it fell under class 3.
Consequently, the case must be referred to an impartial medical specialist to resolve the
existing conflict in the medical opinion evidence regarding the extent of the permanent impairment
of appellant’s right lower extremity. On remand OWCP should refer appellant, along with the
case file and a statement of accepted facts, to an appropriate specialist for an impartial medical
evaluation and report including a rationalized opinion as to the extent of appellant right lower
extremity permanent impairment. Following this further development, OWCP should issue a
de novo decision regarding appellant’s increased schedule award claim.
CONCLUSION
The Board finds that the case is not in posture for decision.

22

Id. at 516-20, Table 16-6 through Table 16-8.

23

Id. at 520.

8

ORDER
IT IS HEREBY ORDERED THAT the April 10, 2018 decision of the Office of Workers’
Compensation Programs is set aside, and the case is remanded to OWCP for further action
consistent with this decision.
Issued: November 29, 2018
Washington, DC

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

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

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

9


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

)
)
)
)
)
)
)
)
)

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

Docket No. 07-2177
Issued: March 20, 2008

Case Submitted on the Record

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

JURISDICTION
On August 27, 2007 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ merit decision dated July 11, 2007 denying her claim for an additional
schedule award. She also appealed a nonmerit decision dated July 26, 2007. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merit and nonmerit issues of
this case.
ISSUES
The issues are: (1) whether appellant has more than 20 percent impairment of her right
upper extremity for which she has received schedule awards; and (2) whether the Office properly
refused to reopen appellant’s case for further consideration of the merits of her claim pursuant to
5 U.S.C. § 8128(a).

FACTUAL HISTORY
This case has previously been before the Board on appeal. On March 10, 2003 appellant,
then a 35-year-old automation clerk, sustained an injury to her right shoulder while lifting in the
performance of duty. She also alleged that she hit her right elbow on the machine. By decision
dated July 25, 2003, the Office accepted appellant’s claim for partial right rotator cuff tear. On
August 19, 2003 she underwent a Neer acromioplasty and repair of rotator cuff on the right.
Appellant’s attending physician, Dr. J. Wayne Keeling, a Board-certified orthopedic surgeon,
found that she had reached maximum medical improvement on March 2, 2004 and opined that
she had 10 percent impairment of her right upper extremity. Appellant requested a schedule
award on March 17, 2004. By decision dated October 14, 2004, the Office granted her a
schedule award for three percent impairment of her right upper extremity. Appellant requested
an appeal before the Board. By decision dated June 9, 2005,1 the Board affirmed the Office’s
October 14, 2004 decision finding that the weight of the medical opinion evidence established
that appellant had no more than three percent impairment of her right upper extremity. The facts
and the circumstances of the case as set forth in the Board’s prior decision are incorporated
herein by reference.
On April 5, 2005 appellant underwent surgery of the right rotator cuff using a
biodegradable surgical anchor. The Office entered her on the periodic rolls on July 13, 2005.
Appellant requested an additional schedule award on November 7, 2005. By decision dated
May 19, 2006, the Office granted appellant a schedule award for an additional 17 percent
impairment of her right upper extremity.
On November 29, 2006 the Office interrupted appellant’s schedule award and reentered
her on the periodic rolls due to a recurrence of disability. Appellant’s March 5, 2007 arthrogram
revealed an additional full-thickness rotator cuff tear on the right. In a letter dated April 30,
2007, she stated that she did not wish to undergo additional surgery and instead requested an
impairment rating. On May 2, 2007 appellant informed the Office that she wished to elect Office
of Personnel Management benefits and receive the remainder of her schedule award.
In a note dated May 16, 2007, Dr. Keeling provided appellant’s range of motion for the
right shoulder as 55 degrees of flexion, 40 degrees of extension, 40 degrees of adduction, 40
degrees of abduction, 30 degrees of internal rotation and 45 degrees of external rotation. He
concluded that appellant had 28 percent impairment of her right upper extremity due to loss of
range of motion.
The Office medical adviser applied the American Medical Association, Guides to the
Evaluation of Permanent Impairment,2 to the range of motion figures provided by Dr. Keeling on
June 7, 2007 and determined that appellant had 19 percent impairment of the right upper
extremity by combining impairment for the range of motion figures provided by Dr. Keeling.

1

Docket No. 05-661 (issued June 9, 2005).

2

A.M.A., Guides (5th ed. 2000).

2

Appellant requested a schedule award. By decision dated July 11, 2007, the Office
denied her request for an additional schedule award on the grounds that the weight of the medical
opinion evidence as represented by the Office medical examiner established that she had no more
than 19 percent impairment of her right upper extremity. She was not entitled to additional
schedule award as she had previously received schedule awards totaling 20 percent.
Appellant requested reconsideration of the Office’s July 11, 2007 decision on July 14,
2007 and alleged an error in the Office medical adviser’s report. She stated that she was entitled
to a schedule award based on an impairment rating of 21 percent rather than 19 percent as found
by the Office medical adviser. Appellant resubmitted Dr. Keeling’s May 16, 2007 report as well
as the June 6, 2007 report of the Office medical adviser.
By decision dated July 26, 2007, the Office declined to reopen her claim for
consideration of the merits on the grounds that she failed to submit relevant and pertinent new
evidence.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulations4 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.5 Effective
February 1, 2001, the Office adopted the fifth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.6
ANALYSIS -- ISSUE 1
Appellant’s attending physician, Dr. Keeling, a Board-certified orthopedic surgeon,
provided a report dated May 16, 2007 which listed appellant’s range of motion in the right
shoulder. However, he did not properly correlate his findings with the A.M.A., Guides in
reaching his impairment rating of 29 percent. The Office medical adviser applied the appropriate
provisions of the A.M.A., Guides to reach the individual impairments accorded for each loss of
range of motion. He properly found that the A.M.A., Guides provide that 55 degrees of flexion
is nine percent impairment and that 40 degrees of extension is one percent impairment of the

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

6

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

3

right upper extremity.7 The A.M.A., Guides provide that 40 degrees of adduction is not a ratable
impairment and that 40 degrees of abduction is six percent impairment.8 In accordance with the
A.M.A., Guides, 30 degrees of internal rotation is four percent impairment and 45 degrees of
external rotation is one percent impairment of the right upper extremity.9 However, the A.M.A.,
Guides provide, “The upper extremity impairment resulting from abnormal shoulder motion is
calculated from the pie charts by adding directly the upper extremity impairment values
contributed by each motion unit.”10 (Emphasis in the original.) The Office medical adviser
improperly reached his impairment rating of 19 by combining the impairments for loss of range
of motion of the shoulder rather than adding the impairments. In accordance with the provisions
of the A.M.A., Guides appellant has 21 percent impairment of her right upper extremity due to
loss of range of motion rather than 19 percent impairment as found by the Office medical
adviser. She has already received schedule awards totaling 20 percent impairment of her right
upper extremity. On return of the record, the Office should issue an appropriate decision
granting appellant a schedule award for an additional one percent impairment of her right upper
extremity.11
CONCLUSION
The Board finds that appellant has 21 percent impairment of her right upper extremity.

7

A.M.A., Guides 476, Figure 16-40.

8

Id. at 477, Figure 16-43.

9

Id. at 479, Figure 16-46.

10

Id. at 474.

11

Due to the disposition of this issue, the Office’s July 26, 2007 nonmerit decision is moot.

4

ORDER
IT IS HEREBY ORDERED THAT the July 11, 2007 decision of the Office of
Workers’ Compensation Programs is affirmed as modified.
Issued: March 20, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5