United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL AIR
FACILITY, El Centro, CA, Employer
__________________________________________

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

Docket No. 08-13
Issued: May 22, 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 October 1, 2007 appellant filed a timely appeal from the September 6, 2007 merit
decision of an Office of Workers’ Compensation Programs’ hearing representative who denied
her claim for an increased schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the schedule award decision.
ISSUE
The issue is whether appellant has established more than 14 percent impairment to both
her right and left upper extremities, for which she received a schedule award.
FACTUAL HISTORY
On July 17, 2000 appellant, then a 38-year-old quality assurance evaluator, filed a claim
for employment-related carpal tunnel syndrome (CTS). The Office accepted bilateral CTR,
bilateral lesion of the ulnar nerve, right wrist ganglion cyst and right radial styloid tendinitis.
Appellant underwent a left carpal tunnel release and injection of the bilateral cubital tunnels on
April 16, 2001 a right carpal tunnel release on May 3, 2001 a left ulnar nerve transposition with

injection of the bilateral first dorsal compartments on August 12, 2002 a right ulnar nerve
anterior transposition on December 17, 2003 a right first dorsal compartment release with
injection of the left first dorsal compartment on April 5, 2004 and a left first dorsal compartment
release on December 9, 2005. The Office paid appropriate benefits. Appellant returned to
full-time modified-duty work after each surgery.
In a January 23, 2002 report, appellant’s attending physician Dr. James R. Moitoza, a
Board-certified orthopedic surgeon, indicated that she reached a permanent and stationary status.
He diagnosed bilateral flexor tenosynovitis, resolved bilateral CTS, left cubital tunnel syndrome
and resolved right de Quervain’s tenosynovitis and resolved lateral epicondylitis of the bilateral
elbows. Dr. Moitoza noted that appellant continued to experience pain, numbness and tingling in
both upper extremities. Examination revealed limited range of motion of the right elbow from
5 to 130 degrees and the left elbow from 8 to180 degrees. Range of motion of the right wrist
was noted as: 71 degrees flexion, 60 degrees extension, 80 degrees pronation, 90 degrees
supination, 21 degrees radial deviation and 19 degrees ulnar deviation. Range of motion of the
left wrist was noted as: 72 degrees flexion, 55 degrees extension, 80 degrees pronation,
90 degrees supination, 20 degrees radial deviation and 19 degrees ulnar deviation. Appellant had
decreased sensation in the median and ulnar nerve distribution with inability to discriminate the
texture and size of unseen objects. She was also noted to have pain which became moderate to
severe with an increase in activities.
On April 14, 2002 the Office referred the claim to an Office medical adviser,
Dr. Arthur S. Harris, a Board-certified orthopedic surgeon, for an opinion on appellant’s
permanent impairment. In a March 28, 2002 report, Dr. Harris opined that appellant had 14
percent right arm impairment and 14 percent left arm impairment based on Dr. Moitoza’s
January 23, 2002 report based on loss of strength and pain. The medical adviser found that
appellant had a “Grade 4 pain/decreased sensation that is forgotten with activity [25 percent]
(Table 16-10/[p]age 482) of the median nerve/sensory function [39] (Table 16-15/[p]age 492),
resulting in 10 percent impairment of each upper extremity.” Dr. Harris also found that appellant
had a “Grade 3 pain/decreased sensation that interferes with some activity [60 percent] (Table
16-10/[p]age 482) of the ulnar/sensory function [7] (Table 16-15/[p]age 492), resulting in
4 percent impairment of each upper extremity.” Combining the totals of the 10 percent residual
CTS with the 4 percent residual cubital tunnel syndrome symptoms, Dr. Harris found that
appellant had 14 percent impairment to both arms. Dr. Harris noted that the date of maximum
medical improvement was January 23, 2002, when Dr. Moitoza described appellant as a
permanent and stationary status.
On June 5, 2002 the Office granted appellant a schedule award for 14 percent permanent
impairment of the right and left upper extremities. The period of the awards was 87.36 weeks,
from January 23, 2002 through September 26, 2003.
Dr. Moitoza continued to report on appellant’s condition. In a July 1, 2002 report, he
advised that appellant’s left elbow symptoms had not improved and there was additional
evidence of constriction of the canal on magnetic resonance imaging (MRI) scan. Dr. Moitoza
recommended a left anterior transposition of the ulnar nerve, which appellant underwent on
August 12, 2002. On December 18, 2002 he opined that appellant reached permanent and
stationary status from her upper extremity overuse syndromes. Dr. Moitoza noted that she had

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residuals of her de Quervain’s tenosynovitis of both wrists and residual flexor tenosynovitis,
mostly on the left. Examination of the right elbow and left elbow demonstrated range of motion
of 0 to 140 degrees with 90 degrees of pronation and supination, without instability.
Examination of the right wrist demonstrated limited range of motion with palmar flexion
70 degrees, dorsiflexion 70 degrees, radiation deviation 20 degrees and ulnar deviation
23 degrees. Examination of the left wrist demonstrated limited range of motion with palmar
flexion 75 degrees, dorsiflexion 58 degrees, radial deviation 15 degrees and ulnar deviation
19 degrees. Appellant was noted to have 25 percent loss of grip strength with diminished
sensation in the median and ulnar nerve distribution.
The record reflects that appellant underwent additional surgery. On December 17, 2003
she underwent an anterior transposition of the right ulnar nerve. On April 5, 2004 she underwent
a right first dorsal compartment release and injection of left first dorsal compartment. In an
August 25, 2004 report, Dr. Moitoza opined that appellant was permanent and stationary from
her April 5, 2004 right wrist surgery and left first dorsal compartment injections of April 5 and
June 2, 2004. In an October 25, 2004 report, he opined that appellant was permanent and
stationary from the ulnar nerve transposition. Examination findings of the right elbow revealed
10 degree extension and 135 degree flexion with 90 degrees pronation and supination. Full
range of motion in flexion, extension, pronation and supination of both wrists were noted.
Appellant was noted to have a 10 to 15 percent loss in grip strength of the left arm.
On November 2, 2004 appellant requested an increased schedule award. She submitted
reports of Dr. Moitoza dated December 18, 2002 to October 25, 2004.
On November 30, 2004 the Office referred the file to Dr. Harris for an opinion on the
degree of appellant’s permanent impairment. The Office noted the accepted conditions as:
bilateral CTS, bilateral ulnar nerve lesions, right wrist ganglion cyst and right radial styloid
tendinitis. In a December 2, 2004 report, Dr. Harris noted the prior impairment rating of
March 2002. Since then, appellant had three additional operations performed by Dr. Moitoza.
Based on Dr. Moitoza’s December 18, 2002 report, Dr. Harris concluded that appellant had 15
percent permanent impairment of the right upper extremity and 17 percent permanent
impairment of the left upper extremity. The impairment to the right upper extremity was
comprised of: 1 percent impairment for loss of wrist motion; 10 percent impairment for residual
CTS; and 4 percent impairment for residual cubital tunnel syndrome. The impairment to the left
upper extremity was comprised of: 3 percent impairment for loss of wrist motion; 10 percent
impairment for residual CTS; and 4 percent impairment for residual cubital tunnel syndrome.
Dr. Harris found that the date of maximum medical improvement was December 18, 2002, when
Dr. Moitoza found appellant’s condition to be permanent and stationary.
On September 21, 2005 Dr. Harris noted the October 25, 2004 report of Dr. Moitoza that
appellant reached permanent and stationary status on August 26, 2004. Appellant had limited
range of motion of 10 to 135 degrees with 90 degrees of pronation and supination. Dr. Harris
also had full wrist range of motion. He advised that appellant had no current neurologic deficit
in either arm. Dr. Harris found that, for schedule award purposes, appellant’s condition had not
changed since his December 2, 2004 report. He opined that appellant had 15 percent permanent
impairment of the right arm and 17 percent permanent impairment of the left arm. Dr. Harris

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noted, however, that the date of maximum medical improvement was August 26, 2004, the date
of Dr. Moitoza’s examination.
In an October 10, 2005 report, Dr. Moitoza diagnosed recurrent left de Quervain’s
tenosynovitis and, on December 9, 2005, appellant underwent a left first dorsal compartment
release. In a December 20, 2006 report, Dr. Moitoza opined that appellant was permanent and
stationary.
On December 22, 2006 appellant requested an increased schedule award. In a March 22,
2007 report, Dr. Moitoza opined that appellant was permanent and stationary with maximum
medical improvement reached December 20, 2006. Range of motion for the right wrist revealed:
dorsiflexion 60 degrees; palmar flexion 78 degrees;1 radial deviation 22 degrees; ulnar deviation
25 degrees; supination 90 degrees; and pronation 80 degrees. Range of motion for the left wrist
revealed: dorsiflexion 60 degrees; palmar flexion 80 degrees; radial deviation 27 degrees; ulnar
deviation 17 degrees; supination 90 degrees; and pronation 80 degrees. With respect to pain,
Dr. Moitoza advised that there were no ulnar nerve symptoms, but appellant had numbness and
tingling and dysesthesias and loss of sensation in the median nerve distribution on both the right
and left, with the left side being more severe. He advised that most of the time the pain was mild
but became moderate to severe after 5 to 10 minutes when appellant engaged in activities
affecting her upper extremities. Dr. Moitoza stated that appellant had no significant atrophy of
the upper extremities but there was a 25 percent loss in grip strength with repetitive use caused
by pain and discomfort.
In a May 7, 2007 report, Dr. Harris reviewed the medical record and noted appellant’s
last surgery of December 9, 2005. Based on Dr. Moitoza’s March 22, 2007 report, the medical
adviser concluded that appellant had 9 percent impairment of the right arm and 12 percent
impairment of the left arm. With respect to the right arm, Dr. Harris found that appellant had
“Grade 3 pain/decreased sensation that interferes with some activity (Table 16-10/[p]age 482) of
the ulnar nerve/sensory function [7] (Table 16-15 at page 492), resulting in [four] percent
impairment.” Under Chapter 16 page 495, he found that appellant had five percent impairment
as a result of having a satisfactory result following carpal tunnel release. With respect to the left
arm, Dr. Harris found that, under Figure 16-31 at page 469, appellant had three percent
impairment for loss of wrist ulnar deviation. He found that appellant had a “Grade 3
pain/decreased sensation that interferes with some activity (Table 16-10/[p]age 482) of the ulnar
nerve/sensory function [7] (Table 16-15/[p]age 492), resulting in a four percent impairment.”
Under Chapter 16 at page 495, appellant had five percent impairment as a result of a satisfactory
left carpal tunnel release. Dr. Harris additionally found that the date of maximum medical
improvement was December 20, 2006 as indicated by Dr. Moitoza.
By decision dated May 23, 2007, the Office denied an additional schedule award. The
Office noted that Dr. Harris reviewed the medical file and found that the evidence did not
establish additional permanent impairment beyond that previously awarded.
On May 30, 2007 appellant requested a review of the written record. She disagreed with
Dr. Harris’ rating noting that she continued to experience pain due to her work injury and noted
1

In his May 7, 2007 report, Dr. Harris noted that appellant’s right palmar flexion was 70 degrees.

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how her symptoms affected her daily life. Copies of material previously of record were
submitted. In a June 20, 2007 report, Dr. Moitoza diagnosed neuropathic pain syndrome, left
greater than right side and overuse flexor tenosynovitis, bilateral wrists and forearms.
In a September 6, 2007 decision, an Office hearing representative affirmed the May 23,
2007 decision. The hearing representative found that the Office increased appellant’s original
schedule award from 14 percent permanent impairment of both arms to 15 percent permanent
impairment of the right arm and 17 percent permanent impairment of the left arm. The hearing
representative further found that there was no medical evidence which would warrant an
increased impairment rating over the amended schedule award.
LEGAL PRECEDENT
A claim for an increased schedule award may be based on new exposure.2 Absent any
new exposure to employment factors, a claim for an increased schedule award may also be based
on medical evidence indicating that the progression of an employment-related condition has
resulted in a greater permanent impairment than previously calculated.3
In determining entitlement to a schedule award, preexisting impairment to the scheduled
member should be included.4 Any previous impairment to the member under consideration is
included in calculating the percentage of loss except when the prior impairment is due to a
previous work-related injury, in which case the percentage already paid is subtracted from the
total percentage of impairment.5
The schedule award provision of the Federal Employees’ Compensation Act6 and its
implementing regulations7 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. The Act, however, does not specify the manner in which the percentage loss of a
member 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 American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001) has been
adopted by the Office for evaluating schedule losses.8

2

Linda T. Brown, 51 ECAB 115 (1999).

3

Id.

4

Carol A. Smart, 57 ECAB 340 (2006); Michael C. Milner, 53 ECAB 446, 450 (2002).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.7(a)(2) (November 1998).
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

See 20 C.F.R. § 10.404; see also David W. Ferrall, 56 ECAB 362 (2005).

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The A.M.A., Guides note that CTS involves compression of the median nerve at the volar
aspect of the wrist.9 The A.M.A., Guides list the symptoms, signs and findings of CTS as pain
and paresthesias in the median nerve distribution, including sensory autonomic disturbances in
the radial 3.5 digits, weakness or atrophy of the thenar muscles, a positive percussion sign at the
wrist, presence of Phalen’s sign and motor and sensory electroneuromyographic abnormalities.10
In evaluating CTS, the A.M.A., Guides provide that, if after an optimal recovery time
following surgical decompression, an individual continues to complain of pain, paresthesias or
difficulties in performing certain activities three possible scenarios can be present. The first
situation is: Positive clinical finding of median nerve dysfunction and electrical conduction
delay(s): The impairment due to residual CTS is rated according to the sensory and/or motor
deficits as described earlier.11 In this situation, the impairment due to residual CTS is evaluated
by multiplying the grade of severity of the sensory or motor deficit by the respective maximum
upper extremity impairment value resulting from sensory or motor deficits of each nerve
structure involved. When both sensory and motor functions are involved the impairment values
derived for each are combined.12
In the second scenario: Normal sensibility and opposition strength with abnormal
sensory and/or motor latencies or abnormal electromyogram testing of the thenar muscles: a
residual CTS is still present and an impairment rating not to exceed five percent of the upper
extremity may be justified. Finally, the A.M.A., Guides provide: Normal sensibility (two-point
discrimination and Semmes-Weinstein monofilament testing), opposition strength and nerve
conduction studies: there is no objective basis for an impairment rating.13
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the Office medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the Office medical
adviser providing rationale for the percentage of impairment specified.14

9

A.M.A., Guides 495.

10

Id.

11

Id.

12

Id. at 494, 481.

13

Id. at 495.

14

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

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ANALYSIS
On June 5, 2002 the Office granted appellant a schedule award for 14 percent permanent
impairment of the right arm and 14 percent permanent impairment of the left arm. Although the
Office developed the medical evidence in response to appellant’s November 2, 2004 request for
an increased schedule award, a new schedule award decision was not issued. Her condition
worsened and she underwent additional surgeries, the most recent being December 9, 2005.15 In
its May 23, 2007 decision, the Office denied appellant’s December 22, 2006 request for an
increased award on the basis that the medical evidence did not establish any additional
permanent impairment beyond the 14 percent impairment found for both upper extremities, for
which she received a schedule award. While an Office hearing representative affirmed the denial
of an increased schedule award in his September 6, 2007 decision, the hearing representative
incorrectly stated that the schedule award was comprised of 15 percent right arm impairment and
17 percent left arm impairment. The record on appeal indicates, however, that appellant only
received a schedule award for 14 percent permanent impairment to both upper extremities.
In a March 22, 2007 report, Dr. Moitoza provided a thorough description of findings on
examination but did not provide an impairment rating under the A.M.A., Guides. In accordance
with Office procedures, Dr. Harris, a medical adviser, reviewed the evidence and determined that
appellant had 9 percent impairment of the right upper extremity and a 12 percent impairment of
the left upper extremity. The nine percent right upper extremity impairment was based on four
percent pain impairment and five percent impairment as a result of a satisfactory carpal tunnel
release. The 12 percent left upper extremity impairment was based on 3 percent loss of motion,
4 percent pain impairment and 5 percent impairment as a result of a satisfactory carpal tunnel
release. Loss of grip strength was not included in Dr. Harris’ impairment calculation.
The Board finds that the case is not in posture for decision regarding whether appellant is
entitled to an increased schedule award, Dr. Harris did not adequately explain how his
impairment ratings were reached.
Dr. Harris properly applied option two on page 495 of the A.M.A., Guides to both the left
and right upper extremity to allow for an impairment rating not to exceed five percent in
situations where a person has normal sensibility and abnormal sensory with optimal recovery
time after surgical decompression.16 The A.M.A., Guides provide, except in rare circumstances,
ratings based on loss of motion or grip strength are not allowed in carpal tunnel award cases,
unless the medical evidence clearly establishes why such additional award is necessary.17
Dr. Harris properly excluded an impairment rating based on loss of grip strength. However, he
did not explain his basis for including impairment based on loss of range of motion (three
percent) for the left upper extremity.

15

See generally Mark A. Holloway, 55 ECAB 321, 325 (2004).

16

A.M.A., Guides at 495.

17

Cristeen Falls, 55 ECAB 420 (2004).

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Additionally, Dr. Harris erroneously based the four percent pain impairment to both the
left and right upper extremity on a decreased sensation to the ulnar nerve. In his March 22, 2007
report, Dr. Moitoza advised that appellant’s numbness and tingling and dysesthesias and loss of
sensation arose from the median nerve distribution on both the right and left side and that no
ulnar nerve symptoms were present. The Board notes that, under Table 16-15 at page 492 of the
A.M.A., Guides, the maximum upper extremity impairment due to unilateral sensory deficit of
the median nerve below the midforearm is 39 percent while the maximum upper extremity
impairment of the ulnar nerve below the midforearm is 7 percent. Moreover, Dr. Harris
classified appellant’s impairment of the upper extremity due to sensory deficit or pain as that of a
Grade 3 deficit but applied the percentage deficit, which is noted as 25 percent, as that of a Grade
4 deficit.18 In calculating sensory loss to both the left and right upper extremity, Dr. Harris did
not use the correct maximum impairment value for the proper peripheral nerve (39 percent for
the median nerve below the midforearm) or correlate the proper sensory deficit percentage range
for the classification of appellant’s sensory deficit or pain. Dr. Harris should clarify how he
rated impairment under the A.M.A., Guides the Board will remand the case to the Office so that
it may request clarification from Dr. Harris.19

18

A.M.A., Guides, Table 16-10 at page 482. A Grade 3 sensory deficit represents a distorted superficial tactile
sensibility (diminished light touch and two point discrimination), with some abnormal sensations or slight pain, that
interferes with some activities and is assigned a sensory deficit range of 26 to 60 percent. A Grade 4 sensory deficit
represents a distorted superficial tactile sensibility (diminished light touch), with or without minimal abnormal
sensations or pain, that is forgotten during activity and is assigned a sensory deficit range of 1 to 25 percent.
19

The Board notes that appellant disputes some of the conditions which the Office accepted, such as a right wrist
ganglion cyst. A review of the record does not establish that appellant had such a diagnosis.

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CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the September 6, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for additional development
consistent with this decision of the Board.
Issued: May 22, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.N., Appellant
and
INDEPENDENT AGENCIES, LIBRARY OF
CONGRESS, Washington, DC, Employer
__________________________________________

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

Docket No. 15-0348
Issued: June 23, 2015

Case Submitted on the Record

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

JURISDICTION
On November 24, 2014, appellant filed a timely appeal from a July 30, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a recurrence of a
medical condition causally related to her June 12, 1989 injury.
FACTUAL HISTORY
OWCP accepted that appellant sustained several injuries in the performance of duty on
June 12, 1989 after falling from a chair. It accepted the claim for contusion of face, scalp, and

1

5 U.S.C. § 8101 et seq.

neck except the eyes, neck sprain, lumbar sprain, lumbar disc displacement without neuropathy,
and thoracic or lumbosacral neuritis or radiculitis.2
On May 7, 2014 appellant filed a claim for a recurrence for medical treatment. She did
not list a date of recurrence, but indicated that she stopped work in April 2002. Appellant noted
that, after the original injury, she had restrictions of limited sitting and standing and could not
stand the cold. She noted that she received medication. In response to how and when the
recurrence happened, appellant stated, “it was not a recurrence it was continuous.” Melissa
Greene-Thomas, a workers’ compensation program specialist with the employing establishment,
stated that appellant retired in April 2002. She explained that she was not the specialist who had
originally managed the claim and she did not have any information to support the claim since
appellant’s separation from the employing establishment in 2002. Ms. Greene-Thomas advised
that appellant argued that her claim was not for a recurrence. As appellant had last received
medical care over a year earlier, she was informed by OWCP that her case had been closed and
she needed to complete a new CA-2a. When appellant was asked about the gap in her medical
care, she explained that there were some billing issues regarding treatments and medications with
OWCP and that she started receiving treatment from her sister. She did not specify the type of
treatment received.
Appellant had received treatment from Dr. Curtis L. Whitehair, a Board-certified
physiatrist, who treated her for complaints of low back pain and bilateral knee pain. She also
had received physical therapy.
In a December 1, 2010 report, Dr. Whitehair had noted that appellant was last seen on
September 29, 2010 and presented for follow up of low back pain which she had for several
years. He indicated that appellant had not yet begun prescribed physical therapy, but was taking
Ultram which was helping “significantly with her pain.” Dr. Whitehair advised that she only
took it when her pain was severe. He advised that appellant’s symptoms of pain in the lumbar
spine and bilateral sacroiliac joint area, and upper back region continued. Dr. Whitehair noted
that she was currently not working.
The record was dormant until 2013. In a telephone call memorandum dated
September 25, 2013, OWCP noted that appellant was seeking additional medical care. Appellant
was advised that she must provide current medical evidence to relate the current condition to her
original injury of June 12, 1989.
By letter dated May 22, 2014, OWCP advised appellant that it had received her claim for
a recurrence for additional medical care of her accepted work-related conditions. It explained
that according to the medical records on file, she last received medical care for her work-related
condition on December 15, 2010. OWCP noted that it had not received any supporting
documentation with her claim form. It requested copies of all medical records for her workrelated condition from her date of discharge and the date of last medical care through the present,
including all visit notes, treatment notes, diagnostic test results, etc., to bring her claim up to
date. OWCP also explained that a physician’s opinion was crucial to her claim and allotted
2

OWCP denied appellant’s claim for total disability in a July 21, 2000 decision.

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appellant 30 days within which to submit the requested information. It also provided her with a
questionnaire to complete.
In a May 27, 2014 memorandum of telephone call, appellant requested clarification with
regard to her claim for a recurrence.
On May 29, 2014 OWCP received a May 27, 2014 questionnaire from appellant. In the
area when she was asked to describe how the recurrence happened, appellant filled in “N/A.”
She explained that she did “not need additional care due to her original injury. It is the same
injury.” Regarding the accepted work-related conditions, appellant explained that they were
“present continuously. Living made the worse.” Appellant denied having any other injuries.
She also explained that she did not know how to bridge the gap of time and outline the medical
care she received for all periods of disability from work as she did not have copies of her
records. Appellant also denied having any hobbies or activities.
By decision dated July 30, 2014, OWCP denied appellant’s claim for a recurrence. It
noted that appellant last received medical care for her work-related condition on
December 15, 2010 and that appellant had not submitted a current reasoned medical opinion
evidence to establish that she required additional medical treatment due to a worsening of her
accepted work-related June 12, 1989 employment injury.
LEGAL PRECEDENT
A recurrence of medical condition refers to a documented need for further medical
treatment after release from treatment for the accepted condition or injury when there is no
accompanying work stoppage. Continuous treatment for the original treatment or injury is not
considered a “need for further medical treatment after release from treatment,” nor is an
examination without treatment.3
An employee who claims a recurrence of medical condition has the burden of proof to
establish causal relationship by the weight of substantial, reliable, and probative evidence. This
burden requires that an employee furnish medical evidence from a physician who, on the basis of
a complete and accurate factual and medical history, concludes that the employee’s need for
additional medical care is causally related to the accepted injury and supports that conclusion
with sound medical reasoning.4
ANALYSIS
OWCP accepted, in 1989, contusions to the face, scalp, and neck, neck sprain, lumbar
sprain, lumbar disc displacement without neuropathy, and thoracic or lumbosacral neuritis or
radiculitis when she fell off her chair at work. On May 7, 2014 appellant filed a claim for a
recurrence and claimed a need for additional medical care for her accepted work-related

3

20 C.F.R. § 10.5(y).

4

E.O., Docket No. 11-1099 (issued February 24, 2012); J.B., Docket No. 11-1410 (issued January 5, 2012).

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symptoms.5 By letter dated May 22, 2014, OWCP requested that appellant provide medical
evidence to support her claim.
Appellant responded with a May 27, 2014 questionnaire indicating that her accepted
conditions had been present continuously since her original injury. However, she failed to
submit any medical opinion evidence to support her claim. The record contains medical
evidence from Dr. Whitehair from late 2010 but no current medical evidence which addresses
her need for medical treatment for her accepted condition. As noted, part of appellant’s burden
of proof requires that she furnish medical evidence from a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the employee’s need for
additional medical care is causally related to the accepted injury and supports that conclusion
with sound medical reasoning. Without any medical evidence supporting a need for continuing
treatment of her accepted condition, OWCP has no medical basis on which to accept her claim
for a recurrence of her medical condition.
Accordingly, the Board finds that appellant has not met her burden of proof to establish a
recurrence of her June 12, 1989 employment injury requiring further medical treatment.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established a recurrence of disability causally
related to her June 12, 1989 injury.

5

Appellant did not claim disability compensation. As noted, infra, she retired in April 2002.

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ORDER
IT IS HEREBY ORDERED THAT the July 30, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 23, 2015
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.G., SR., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT
AGENCY, New Orleans, LA, Employer
__________________________________________

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

Docket No. 20-0808
Issued: April 23, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 2, 2020 appellant, through counsel, filed a timely appeal from a January 31,
2020 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.

ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective August 18, 2019, as he no longer had
residuals or disability causally related to his accepted September 22, 2008 employment injury; and
(2) whether appellant has met his burden of proof to establish continuing residuals or disability
causally related to his accepted employment injury on or after August 18, 2019.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On September 22, 2008 appellant, then a 49-year-old temporary database management
specialist, filed a traumatic injury claim (Form CA-1) alleging that on that date he scraped his right
knee when he tripped over petition footing. He stopped work that day. OWCP accepted the claim
for a right leg abrasion or friction burn, and subsequently expanded the acceptance of the claim to
include a lumbar sprain.4 It paid appellant wage-loss compensation on the supplemental rolls as
of September 23, 2008 and on the periodic rolls as of March 15, 2009. By decision dated
January 12, 2010, OWCP finalized the termination of his wage-loss compensation, effective
February 14, 2010, finding that the weight of the medical and factual evidence established that his
accepted employment injuries no longer precluded him from performing the duties of his date-ofinjury position. By decision dated June 22, 2010, OWCP’s hearing representative affirmed the
January 12, 2010 decision, terminating appellant’s wage-loss compensation. On August 5, 2010
appellant, through counsel, appealed to the Board. By decision dated May 13, 2011, the Board
found that OWCP had not met its burden of proof to terminate appellant’s compensation benefits,
effective February 14, 2010.5
Following the Board’s decision, OWCP paid appellant wage-loss compensation on the
supplemental rolls from February 14, 2010 through July 2, 2011 and on the periodic rolls beginning
July 3, 2011.
Appellant came under the care of Dr. Morteza Shamsnia, a Board-certified neurologist,
who provided progress reports from April 1, 2010. In a May 17, 2017 progress report,
Dr. Shamsnia related appellant’s continued complaints since 2010 of low back pain and
paresthesia into the left lower extremity. He reported an impression of lumbosacral and cervical
radiculopathy, and neuropathy and related that appellant was totally disabled from work.
On August 18, 2017 OWCP referred appellant, together with a statement of accepted facts
(SOAF), medical record and list of questions, to Dr. Simon Finger, a Board-certified orthopedic
3

Docket No. 10-2039 (issued May 13, 2011).

4

Appellant was terminated from the employing establishment effective September 22, 2008.

5

Supra note 3.

2

surgeon, for a second opinion examination to determine the current status of appellant’s accepted
conditions. In a September 19, 2017 report, Dr. Finger noted his review of appellant’s medical
records and the SOAF, and provided physical examination findings. He diagnosed radiculitis as a
residual of appellant’s employment injury and noted that the objective findings were consistent
with radiculitis and nerve conduction velocity studies demonstrated L5-S1 radiculopathies.
Dr. Finger further opined that the physical examination was inconsistent and, therefore, does not
provide objective evidence for the claimant’s injury. He opined that appellant’s knee sprain had
resolved with no residuals and concluded that appellant was capable of working with restrictions
in a sedentary position.
In a May 2, 2018 report, Dr. Shamsnia diagnosed low back pain, cervical and lumbosacral
radiculopathies, bilateral tibial neuropathy, left peroneal nerve neuropathy, and periodic limb
movement disorder. He reported that appellant was seen in a follow-up visit for low back and
right leg pain, and right lower extremity paresthesia. With regard to the history of the present
injury, Dr. Shamsnia noted that appellant was status post a work injury wherein appellant sustained
a low back and knee injury and that he had been involved in an October 2013 motor vehicle
accident during which his vehicle was rear-ended. He opined that appellant would remain in a nowork status until further notice.
On January 8, 2019 OWCP determined that a conflict in medical opinion existed between
Dr. Shamsnia, appellant’s treating physician, and Dr. Finger, OWCP’s referral physician, with
respect to his employment-related conditions and his disability status. It referred appellant to
Dr. Christopher E. Cenac, Sr., a Board-certified orthopedic surgeon, together with a list of
questions, medical record, and a SOAF, to resolve the conflict in medical opinion evidence.6
On April 15, 2019 OWCP received an August 3, 2019 report from Dr. Shamsnia wherein
he reiterated his prior findings. Dr. Shamsnia again diagnosed low back pain, cervical and
lumbosacral radiculopathies, bilateral tibial neuropathy, left peroneal nerve neuropathy, and
periodic limb movement disorder. He reported that appellant was seen in a follow-up visit for low
back and right leg pain, and right lower extremity paresthesia. Under history of present injury,
Dr. Shamsnia noted that appellant was status post work injury where he sustained a low back and
knee injury and in an October 2013 motor vehicle accident.
OWCP subsequently received a report dated February 14, 2019, wherein Dr. Cenac
described the September 22, 2008 employment injury, noted that appellant was involved in an
October 2013 nonemployment-related motor vehicle accident. Dr. Cenac also noted that OWCP
had an accepted lumbar sprain and right knee abrasion. He reviewed appellant’s medical records
and noted that x-ray interpretations showed bilateral knee symmetrical mild medial joint space loss
and no evidence of spondylosis or traumatic lumbar injury. Upon physical examination, Dr. Cenac
reported low back discomfort with left straight leg raising while seated, no low back pain with
right leg testing, no evidence of sciatica, no sensory deficits, normal bilateral knee and ankle
reflexes, full flexion, but extension was limited by appellant’s obesity, mild right knee crepitation,
and no tenderness or instability in either knee joint. He diagnosed “lumbar contusion and
contusion right knee, resolved.” This patient has no evidence of residual to the lumbar spine or
6
The most recent SOAF was dated August 31, 2012 and related that OWCP had accepted the conditions of lumbar
region sprain and right knee abrasion due to the accepted September 22, 2008 employment injury.

3

right knee” due to the accepted September 22, 2008 employment injury. Regarding appellant’s
disability status, Dr. Cenac related that appellant had no work restrictions due to the accepted
September 22, 2008 employment injury and, more probably than not, that appellant could return
to his date-of-injury position.
By notices dated May 8 and 21, 2019, OWCP advised appellant that it proposed to
terminate his wage-loss compensation and medical benefits based on Dr. Cenac’s February 14,
2019 impartial medical opinion that the accepted conditions had ceased without residuals. It
afforded him 30 days to submit additional evidence or argument challenging the proposed action.
By decision dated August 2, 2019, OWCP finalized the proposed notices of termination of
appellant’s wage-loss compensation and medical benefits, effective August 18, 2019. It found that
Dr. Cenac’s February 14, 2019 impartial medical report represented the special weight of the
medical evidence and established that appellant no longer had any disability or residuals due to his
accepted work-related conditions.
On August 20, 2019 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review.
OWCP subsequently received an August 6, 2019 attending physician’s report (Form CA20), wherein Dr. Shamsnia diagnosed low back pain, lumbosacral radiculopathy, bilateral
posterior tibial neuropathy, and left peroneal nerve neuropathy. Dr. Cenac indicated by check
mark “Yes” that appellant’s condition was caused or aggravated by appellant’s accepted
employment injury and that his conditions were permanent in nature.
Appellant also submitted reports dated August 3 and November 6, 2018, and May 14,
August 8, and November 5, 2019 from Dr. Shamsnia, reiterating the diagnoses and findings from
his prior reports.
A hearing was held on December 11, 2019.
By decision dated January 31, 2020, OWCP’s hearing representative affirmed the
August 2, 2019 termination decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits.7 It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment

7
J.T., Docket No. 19-1723 (issued August 24, 2020); S.P., Docket No. 19-0196 (issued June 24, 2020); S.F., 59
ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

injury.8 OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.9
The right to medical benefits for an accepted condition is not limited to the period of
entitlement to compensation for disability.10 To terminate authorization for medical treatment,
OWCP must establish that the employee no longer has residuals of an employment-related
condition that require further medical treatment.11
Section 8123(a) of FECA12 provides that, if there is disagreement between the physician
making the examination for OWCP and the employee’s physician, the Secretary shall appoint a
third physician, known as a referee physician or impartial medical examiner (IME), who shall
make an examination.13 This is called a referee examination and OWCP will select a physician
who is qualified in the appropriate specialty and who has no prior connection with the case.14
Where there exist opposing medical reports of virtually equal weight and rationale and the case is
referred to an IME for the purpose of resolving conflict, the opinion of such specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.15
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective August 18, 2019.
Appellant’s attending physician, Dr. Shamsnia, opined that appellant was totally disabled
from work and had ongoing residuals. OWCP referred appellant for a second opinion with
Dr. Finger who opined that appellant had no residuals of his employment injury and could perform
sedentary work duties. Due to the conflict between Dr. Shamsnia and Dr. Finger, it properly

8
See S.P., id.; R.P., Docket No. 17-1133 (issued January 18, 2018); Jason C. Armstrong, 40 ECAB 907 (1989);
Charles E. Minnis, 40 ECAB 708 (1989).
9

S.P., supra note 7; M.C., Docket No. 18-1374 (issued April 23, 2019); Del K. Rykert, 40 ECAB 284, 29596 (1988).
10

S.P., supra note 7; J.W., Docket No. 19-1014 (issued October 24, 2019); L.W., Docket No. 18-1372 (issued
February 27, 2019).
11

D.G., Docket No. 19-1259 (issued January 29, 2020); L.S., Docket No. 19-0959 (issued September 24, 2019);
R.P., Docket No. 18-0900 (issued February 5, 2019).
12

Supra note 2 at § 8123(a)

13

Id.; L.T., Docket No. 18-0797 (issued March 14, 2019); Shirley L. Steib, 46 ECAB 309, 317 (1994).

14

20 C.F.R. § 10.321.

15
D.G., supra note 11; D.W., Docket No. 18-0123 (issued October 4, 2018); Gloria J. Godfrey, 52 ECAB 486
(2001); Gary R. Sieber, 46 ECAB 215, 225 (1994).

5

referred appellant for an impartial medical examination with Dr. Cenac to resolve the conflict in
the medical opinion evidence, pursuant to 5 U.S.C. § 8123(a).
In a February 14, 2019 report, Dr. Cenac noted that he had reviewed the SOAF and the
medical record and opined that appellant had no residuals of the accepted September 22, 2008
employment condition, that appellant had no work restrictions, and more probably than not could
return to the date-of-injury position. He concluded that appellant had resolved right knee contusion
and lumbar contusion. Based on this report, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective August 18, 2019.
The Board finds, however, that Dr. Cenac’s report is not entitled to the special weight of
the medical evidence accorded an IME as it is not based on an accurate factual background.
Dr. Cenac acknowledged that the SOAF provided by OWCP indicated that it had accepted
appellant’s September 22, 2018 traumatic injury claim for right leg abrasion and lumbar sprain.
However, he did not follow that acceptance in rendering his medical opinion. Instead, Dr. Cenac
related that appellant had resolved “right knee and lumbar contusions.”
The Board has long held that the report of an IME who disregards a critical element of the
SOAF is defective and insufficient to resolve the existing conflict of medical opinion evidence.16
The Board finds that Dr. Cenac’s report is, therefore, not entitled to the special weight as an IME
and is insufficient to meet OWCP’s burden of proof to terminate appellant’s wage-loss
compensation and medical benefits.
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective August 18, 2019.17

16

See W.F., Docket No. 18-0653 (issued September 26, 2019); B.B., Docket No. 18-1121 (issued January 8, 2019);
V.C., Docket No. 14-1912 (issued September 22, 2015).
17

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

6

ORDER
IT IS HEREBY ORDERED THAT the January 31, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: April 23, 2021
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, REMOTE ENCODING )
CENTER, Salt Lake City, UT, Employer
)
__________________________________________ )
C.L., Appellant

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

Docket No. 09-1246
Issued: December 16, 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 April 15, 2009 appellant timely appealed the March 11, 2009 merit decision of the
Office of Workers’ Compensation Programs, which found an overpayment of compensation.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
claim.1
ISSUES
The issues are: (1) whether appellant received an overpayment of $4,124.00 for the
period July 13 through August 29, 2008; and (2) whether the Office properly denied waiver of
recovery.

1

The current record includes evidence received after the Office issued its March 11, 2009 decision. The Board’s
review of a case is limited to the evidence in the case record that was before the Office at the time of its final
decision. 20 C.F.R. § 501.2(c)(1) (2009).

FACTUAL HISTORY
Appellant, a 38-year-old data conversion operator, has an accepted occupational disease
claim for aggravation of left lateral epicondylitis, which arose on or about January 28, 2008. On
September 4, 2008 the Office authorized an emergency payment and appellant received
$4,124.01 for the period July 13 through August 29, 2008. On September 12, 2008 the Office
issued two checks, again totaling $4,124.00 for the period July 13 through August 29, 2008.
In an October 31, 2008 preliminary determination, the Office advised appellant that she
received an overpayment of $4,124.00 for the period July 13 through August 29, 2008. The
Office explained that an emergency payment was issued on September 5, 2008 by the National
Office and on September 12, 2008 the Denver District Office made payment for the same period
of disability. Appellant was advised that she was not at fault in creating the overpayment.
Appellant subsequently requested a telephone conference with the district Office
regarding possible waiver of the overpayment. She did not challenge the Office’s determination
regarding either the fact or amount of the overpayment. Appellant submitted a November 18,
2008 overpayment recovery questionnaire (Form OWCP-20), an unsigned copy of her 2007
federal individual income tax return (Form 1040), as well as bank and credit card statements.
The overpayment recovery questionnaire listed total monthly expenses of $2,264.15, of which
$740.00 represented unspecified “Other expenses.” Appellant reported zero ($0.00) monthly
income and liquid assets (cash/checking/savings) totaling $93.49.
During the February 6, 2009 conference, appellant indicated that based on her last two
paychecks from work she had gross earnings of $1,887.00.2 She acknowledged that she had
received compensation from the Office.3 Appellant provided additional information regarding
her monthly expenses, including housing costs,4 utilities, a $550.00 car payment and $395.00 in
unreimbursed medical expenses. The reported monthly expenses totaled $2,004.00.
By decision dated March 11, 2009, the Office affirmed the fact and amount of the
overpayment, as well as the preliminary finding that appellant was not at fault in creating the
$4,124.00 overpayment. It further found that appellant was not entitled to waiver of recovery of
the overpayment.

2

Appellant worked a part-time schedule due to her accepted injury and she was paid biweekly. On March 3,
2009 the employing establishment advised the Office that appellant’s gross pay for the two-week period ending
February 27, 2009 was $942.21.
3

The Office paid appellant net/gross compensation of $1,328.20 for the period January 3 through 30, 2009. In
addition, from January 31 through February 27, 2009, appellant received net/gross wage-loss compensation of
$1,341.10.
4

Appellant reported $600.00 in housing costs, which was consistent with the information previously included in
the November 18, 2008 overpayment recovery questionnaire. During the February 6, 2009 conference, she
indicated that the $600.00 housing cost was split with her mother, who actually owned the property but did not
reside there.

2

LEGAL PRECEDENT -- ISSUE 1
An injured employee may receive compensation for lost wages due to either total or
partial disability.5 When an overpayment has been made to an individual because of an error of
fact or law, adjustment shall be made under the regulations prescribed by the Secretary of Labor
by decreasing later payments to which the individual is entitled.6 When a claimant receives a
duplicative compensation payment for a period that she has already received compensation for
wage loss, an overpayment is created.7
ANALYSIS -- ISSUE 1
The record demonstrates that appellant was paid wage loss twice in the amount of
$4,124.00 for the period July 13 through August 29, 2008. Although she is entitled to
compensation for lost wages due to her temporary total disability, she is not entitled to be paid
twice for the same period of wage loss.8 The Board finds that appellant was overpaid $4,124.00
for the period July 13 through August 29, 2008. The Board also concurs with the Office’s
finding that she was not at fault in creating the overpayment.
LEGAL PRECEDENT -- ISSUE 2
An individual who is without fault in creating or accepting an overpayment is nonetheless
subject to recovery of the overpayment unless adjustment or recovery would defeat the purpose
of the Federal Employees’ Compensation Act or would be against equity and good conscience.9
Recovery of an overpayment will defeat the purpose of the Act if such recovery would cause
hardship to a currently or formerly entitled beneficiary because the beneficiary from whom the
Office seeks recovery needs substantially all of his or her current income, including
compensation benefits, to meet current ordinary and necessary living expenses and the
beneficiary’s assets do not exceed a specified amount as determined by the Office.10
Additionally, recovery of an overpayment is considered to be against equity and good conscience
when any individual who received an overpayment would experience severe financial hardship
in attempting to repay the debt or when any individual, in reliance on such payment or on notice

5

20 C.F.R. §§ 10.401, 10.403.

6

5 U.S.C. § 8129(a).

7

See Lawrence J. DuBuque, 55 ECAB 667, 670-71 (2004).

8

See also J.M., Docket No. 08-2244 (issued June 10, 2009); E.B., Docket No. 06-1585 (issued
February 22, 2007).
9

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

10

20 C.F.R. § 10.436(a), (b). For an individual with no eligible dependents the asset base is $4,800.00. The base
increases to $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6a(1)(b) (October 2004).

3

that such payments would be made, gives up a valuable right or changes his or her position for
the worse.11
The individual who received the overpayment is responsible for providing information
about income, expenses and assets as specified by the Office.12 This information is necessary for
determining whether a waiver of recovery of the overpayment is warranted.13 Failure to submit
the requested information within 30 days of the request shall result in denial of waiver.14
ANALYSIS -- ISSUE 2
The Office’s March 11, 2009 decision denied waiver of recovery of the overpayment.
The senior claims examiner stated that appellant had not provided “justification for the Office to
waive recovery of the overpayment.” The decision noted that appellant submitted an
overpayment recovery questionnaire and that a conference was held on February 6, 2009
regarding the issue of waiver of recovery. However, the March 11, 2009 decision made no
mention of appellant’s reported monthly expenses, her monthly income or her available assets.
The Office concluded that “the financial information received has not established the (sic) basis
for granting waiver....”
Notwithstanding the above-noted deficiencies in the Office’s March 11, 2009 decision,
the Board finds that appellant is not entitled to waiver of recovery of the overpayment. The
record indicates that appellant’s monthly income was approximately $3,220.00, which included
gross wages from part-time employment and compensation benefits.15 In her November 18,
2008 overpayment recovery questionnaire, appellant reported total monthly expenses of
$2,264.15. The Office’s March 11, 2009 decision did not identify any specific issues with
appellant’s monthly expenses. Therefore, accepting all of appellant’s claimed expenses, her
monthly income exceeds monthly expenses by approximately $1,000.00. On appeal, she argued
that the Office should take into account her net earned wages of $1,011.23, rather than her gross
earnings of $1,887.00. However, even when factoring in net wages, appellant’s total monthly
income, including compensation benefits, still exceeds her reported monthly expenses by
approximately $80.00. An individual is deemed to need substantially all of his or her income to
meet current ordinary and necessary living expenses if monthly income does not exceed monthly
expenses by more than $50.00.16 Regardless of whether net earnings or gross earnings are
utilized, appellant fails to meet the minimum $50.00 threshold.17 She has not demonstrated that
11

20 C.F.R. § 10.437(a), (b).

12

Id. at § 10.438(a).

13

Id.

14

Id.

15

For the months of January and February 2009, appellant averaged $1,334.65 per month in wage-loss
compensation.
16

George A. Rodriguez, 57 ECAB 224, 232 n.24 (2005).

17

Id.; see Otto A. Fernandez, 55 ECAB 558, 562 (2004) (pretax income cannot be said to be funds available for
use in determining whether recovery would defeat the purpose of the Act).

4

recovery of the overpayment would defeat the purpose of the Act. Additionally, appellant has
not alleged, nor does the record indicate, that she relinquished a valuable right or changed her
position for the worse as a result of receiving the overpaid benefits. As such, there is no basis to
find that recovery of the overpayment would be against equity and good conscience.
CONCLUSION
Appellant received an overpayment of $4,124.00 for the period July 13 through
August 29, 2008, for which she was not at fault. The Board finds that she is not entitled to
waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the March 11, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 16, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.F., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ATLANTA VETERANS AFFAIRS MEDICAL
CENTER, Decatur, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 21-0390
Issued: August 23, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 26, 2021 appellant, through counsel, filed a timely appeal from a December 21,
2020 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 a medical condition
causally related to the accepted April 20, 2017 employment incident.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On May 16, 2017 appellant, then a 50-year-old supervisor, filed a traumatic injury claim
(Form CA-1) alleging that on April 20, 2017 he sustained injuries to his cervical spine and left arm
when lifting dental bins from a pallet while in the performance of duty. He stopped work on
May 10, 2017.
In support of his claim, appellant submitted hospital discharge instructions and a work
release form, dated September 16, 2017, a nurse practitioner, who noted that he was treated for
neck and head pain and had been advised to remain off work for 24 hours.
On December 15, 2017 appellant filed a claim for compensation (Form CA-7) for leave
without pay for the period June 1 through December 15, 2017.
In a development letter dated July 23, 2018, OWCP informed appellant that the evidence
of record was insufficient to establish his claim. It advised him of the type of factual and medical
evidence needed and provided a questionnaire for his completion. OWCP afforded appellant 30
days to submit the necessary evidence. No response was received.
By decision dated September 11, 2018, OWCP denied appellant’s claim, finding that the
factual evidence of record was insufficient to establish that the April 20, 2017 incident occurred,
as alleged. It concluded, therefore, that the requirements had not been met to establish injury as
defined by FECA.
On September 19, 2018 appellant, through counsel, requested a telephonic hearing before
a representative of OWCP’s Branch of Hearings and Review.
On October 10, 2018 OWCP received appellant’s response to its development
questionnaire, dated August 17, 2018. Appellant noted that he was working alone on April 20,
2017, when he sustained an injury lifting dental bins of contaminated surgical instrumentation. He
reported that he tried to continue working as he thought his injury was not serious. However, after
receiving an epidural injection that provided no relief, appellant stopped work on May 10, 2017,
noting that he could no longer deal with the pain.
Appellant also submitted a series of medical reports dated May 11, 2017 through March 5,
2018 from a physician assistant who reported appellant’s complaints of neck pain and noted his
3

Docket No. 19-1573 (issued March 16, 2020).

2

continued treatment. She diagnosed cervical radiculopathy, cervical spondylosis, cervical disc
displacement, and cervical spondylosis.
In a June 6, 2017 report, Dr. Mark E. Mullins, a Board-certified diagnostic radiologist,
reviewed a magnetic resonance imaging (MRI) scan of appellant’s cervical spine. He compared
the MRI scan to May 12, 2017 radiographs of appellant’s cervical spine and noted degenerative
marrow changes at C5-6 and multilevel degenerative disc height loss and desiccation. Dr. Mullins
diagnosed cervical spondylosis.
In a July 20, 2017 report, Dr. Keith Michael, a Board-certified orthopedic surgeon, noted
that appellant had developed neck and left upper extremity pain after lifting medical equipment at
work in April 2017. He reviewed appellant’s May 12, 2017 x-ray and the June 6, 2017 MRI scan
of his cervical spine. Dr. Michael found moderate-to-severe disc degeneration at C5-6 and
bilateral moderate foraminal stenosis at C6-7. He diagnosed cervical disc displacement, cervical
spondylosis with radiculopathy, and multilevel foraminal stenosis at C5-6 and C6-7.
In September 15 and October 6, 2017 reports, Dr. Howard Levy, a Board-certified
specialist in physical medicine and rehabilitation, noted that he administered epidural steroid
injections at appellant’s left C5-6 and C6-7 neural foramen. He diagnosed cervical radiculopathy.
A telephonic hearing was held before a hearing representative of OWCP’s Branch of
Hearings and Review on February 12, 2019. Appellant provided testimony and the hearing
representative held the case record open for 30 days for the submission of additional evidence. No
further evidence was submitted.
By decision dated April 29, 2019, OWCP’s hearing representative affirmed the
September 11, 2018 decision.4 The hearing representative found that the medical evidence of
record was insufficient to establish how the accepted April 20, 2017 employment incident caused
or aggravated appellant’s diagnosed medical conditions.
Appellant, through counsel, appealed to the Board on July 18, 2019.
By decision dated March 16, 2020,5 the Board affirmed OWCP’s April 29, 2019 decision.
On October 14, 2020 appellant, through counsel, requested reconsideration and submitted
an August 31, 2020 report from Dr. Ralph D’Auria, a Board-certified physical medicine and
rehabilitation specialist. Dr. D’Auria noted appellant’s history of treatment and provided physical
examination findings. He diagnosed cervical radiculopathy. Dr. D’Auria opined that appellant’s
condition was directly related to the accepted April 20, 2017 employment incident. He based his
opinion on appellant’s medical history, the mechanism of injury, the absence of any previous
injury to the cervical region, appellant’s condition, and findings on physical examination.

4

The Board notes that, while the hearing representative asserted that he had affirmed the September 11, 2018
decision, he actually modified the decision to accept that the April 20, 2017 employment incident occurred as alleged.
5

Supra note 3.

3

By decision dated December 21, 2020, OWCP denied modification.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA,7 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.8 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.9
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.10
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.11 The opinion of
the physician must be based on a complete factual and medical background of the employee, 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 specific employment incident
identified by the employee.12

6

Supra note 2.

7

S.O., Docket No. 21-0002 (issued April 29, 2021); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
8
R.J., Docket No. 20-1630 (issued April 27, 2021); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
9

J.C., Docket No. 20-1584 (issued April 23, 2021); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
10

K.M., Docket No. 21-0016 (issued April 21, 2021); Elaine Pendleton, 40 ECAB 1143 (1989); John J. Carlone,
41 ECAB 354 (1989).
11

J.B., Docket No. 21-0011 (issued April 20, 2021); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
12
P.C., Docket No. 20-0855 (issued November 23, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a cervical
condition causally related to the accepted April 20, 2017 employment incident.
Preliminarily, the Board notes that it is unnecessary to consider the evidence appellant
submitted prior to the issuance of OWCP’s April 29, 2019 merit decision because the Board
considered that evidence in its March 16, 2020 decision. Findings made in prior Board decisions
are res judicata absent further review by OWCP under section 8128 of FECA.13
On October 14, 2020 appellant, through counsel, requested reconsideration and submitted
an August 31, 2020 report from Dr. D’Auria. Dr. D’Auria provided physical examination findings
and diagnosed cervical radiculopathy. He opined that appellant’s condition was directly related to
the accepted April 20, 2017 employment incident. Dr. D’Auria based his opinion on appellant’s
medical history, the mechanism of injury, the absence of any previous injury to the cervical region,
appellant’s condition, and findings on physical examination. While he supported causal
relationship, he offered only a conclusory statement devoid of medical rationale. Dr. D’Auria did
not explain the medical mechanics of how the accepted employment incident of lifting dental bins
from a pallet was competent to cause appellant’s diagnosed condition. The Board has held that a
medical report is of limited probative value on a given medical issue if it contains an opinion,
which is unsupported by medical rationale.14 Consequently, Dr. D’Auria’s opinion is insufficient
to meet appellant’s burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a cervical
condition causally related to the accepted April 20, 2017 employment incident.

13

P.B., Docket No. 20-0124 (issued March 10, 2021); J.S., Docket No. 19-0022 (issued November 4, 2020);
Clinton E. Anthony, Jr., 49 ECAB 476 (1998).
14

P.C., supra note 12.

5

ORDER
IT IS HEREBY ORDERED THAT the December 21, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 23, 2021
Washington, DC

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

Patricia H. Fitzgerald, Alternate Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF THE ARMY, BLUEGRASS
ARMY DEPOT, Richmond, KY, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0821
Issued: November 9, 2016

Case Submitted on the Record

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

JURISDICTION
On March 15, 2016 appellant, through counsel, filed a timely appeal from a January 15,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained permanent impairment to a scheduled member or
function of the body causally related to his March 18, 2005 employment injury warranting a
schedule award.
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.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as outlined
in the prior Board decisions are incorporated herein by reference. The relevant facts are set forth
below.
On March 24, 2005 appellant, then a 67-year old security officer sustained a knee injury
when a screw punctured his right knee as he knelt down on a mat during handcuff training.
OWCP accepted the claim for right knee puncture wound, strain/sprain of the left knee, and left
knee tear of the medial meniscus.
On February 8, 2013 OWCP referred appellant to Dr. Stanley Collis, a Board-certified
orthopedic surgeon, for a second opinion examination regarding whether appellant had residuals
of his accepted conditions. OWCP provided Dr. Collis with the medical record, a statement of
accepted facts, and a list of questions to be answered.
In a February 26, 2013 report, Dr. Collis noted the history of injury, advising that on
March 18, 2005 appellant injured his prepatellar bursa when a screw punctured his right knee.
He noted that currently the knee had some puffiness, stiffness, minimal effusion, and weakness
of the quadriceps. Appellant had full right knee extension and could flex the knee to about 60
degrees. Ligaments were stable and intact. He diagnosed advanced degenerative arthritis in the
medial compartment of the right knee and opined that appellant’s condition was due to age and
was not a residual effect of the injury. With respect to the accepted condition of punctured right
knee, Dr. Collis advised that the skin healed well, there was no point tenderness in the area of the
puncture, and that the prepatellar bursa seemed to be intact. Dr. Collis concluded that, based on
examination, record review, and x-rays, there was no evidence of an ongoing work-related
injury.
By letter dated April 29, 2013, OWCP asked Dr. Collis for clarification because his
report only addressed the right knee. In a May 2, 2013 report, Dr. Collis stated that appellant did
not complain of any work-related left knee problems. He stated that the right knee aggravation
was only temporary and was fully resolved. Dr. Collis also reiterated that appellant’s right knee
arthritis was developmental due to his genes and was not work related.
OWCP subsequently sought further evaluation from Dr. Collis. In an August 6, 2013
report, Dr. Collis noted examining appellant on that date and related the history of the left knee
injury. Dr. Collis noted that upon physical examination the left knee had normal configuration
and that it looked normal in appearance. He further noted that appellant had full flexion, full
extension with no apparent pain, and no instability of the left knee. Dr. Collis diagnosed
minimal arthritis of the medial compartment of the left knee and attributed any left knee
discomfort to his minimal left knee arthritis, his weight, and the fact that he was using his left
knee more frequently because of the developmental arthritis of the right knee. Dr. Collis
concluded that appellant did not have any work-related problems with either the left or right
knee.

3

Docket No. 14-1762 (issued December 23, 2014).

2

By decision dated March 6, 2014, OWCP terminated appellant’s wage-loss compensation
and medical benefits, finding that he no longer had residuals of the accepted conditions. By
decision dated December 23, 2014, the Board affirmed OWCP’s termination decision.
In an October 21, 2014 report, a physician assistant advised that appellant had reached
maximum medical improvement.4
In a March 2, 2015 claim for compensation (Form CA-7), appellant requested a schedule
award.
By letter dated March 4, 2015, OWCP advised appellant of the type of evidence needed
to establish permanent impairment for a schedule award.
In a March 30, 2015 letter, the employing establishment contended that appellant should
not be able to receive a schedule award as he had refused an offer of suitable employment.5
By decision dated April 7, 2015, OWCP denied appellant’s request for a schedule award.
In a letter dated April 22, 2015, appellant, through counsel, requested an oral telephone
hearing.
Appellant submitted a March 20, 2015 report from Dr. Martin Fritzhand, Board-certified
in urology, who provided an impairment rating. He found that appellant had reached maximum
medical improvement in January 2015 and, using the American Medical Association, Guides to
the Evaluation of Permanent Impairment (sixth edition) (A.M.A., Guides), found 34 percent
permanent impairment to the right leg and two percent permanent impairment to the left leg.
Examination revealed a limping antalgic gait with the use of a cane, difficulty forward bending at
the waist to 80 degrees, inability to squat, negative McMurray and Lachman signs, wellpreserved muscle strength, normal left knee flexion, diminished right knee flexion to 90 degrees,
no atrophy, diminished pinprick and light touch over the medial aspect of the lower legs, and a
brisk reflex over the left patellar tendon. Dr. Fritzhand used Table 16-3 for meniscal injury at a
class 1 impairment. Using Table 16-6 he found a grade 2 modifier for functional history, grade 1
modifier for physical examination, and grade 1 modifier for clinical studies. This moved the
rating from grade C to grade D for two percent permanent impairment of the left lower
extremity.
For total right knee replacement Dr. Fritzhand used Table 16-3. He found a class 3
impairment. Using Table 16-6 and 16-8 Dr. Fritzhand found a grade 2 modifier for functional
history and grade modifier 3 for clinical studies. He advised that this moved the grade from C to
B for 34 percent permanent impairment of the right lower extremity.
At the November 12, 2015 oral hearing, counsel contended that Dr. Fritzhand’s
March 20, 2015 report established appellant’s entitlement to a schedule award. The hearing
representative noted that there was no current medical evidence that established that there were
4

The record indicates that appellant underwent a total right knee arthroplasty on July 23, 2014. The operative
report is not in the record before the Board and OWCP did not authorize the procedure.
5

OWCP has not issued a decision finding that appellant refused suitable work under 5 U.S.C. § 8106(c).

3

any ongoing residuals related to the accepted puncture wound of the right knee. Counsel agreed
and requested that only the left leg impairment be considered.
By letter dated December 9, 2015, the employing establishment contended that appellant
had no ongoing entitlement to compensation for continuing disability or schedule award
payments due to his refusal of suitable work without good cause. The employing establishment
resubmitted its March 30, 2015 letter.
By decision dated January 15, 2016, OWCP’s hearing representative affirmed the
previous decision. She found that Dr. Fritzhand had failed to explain what objective findings
established a continuing left knee condition causally related to the work injury and found his
report was insufficient to create a medical conflict with the reports of Dr. Collis regarding
whether appellant had continuing injury-related residuals or impairment.
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.6 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.7 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.8
Under OWCP procedures, medical evidence to support a schedule award should include a
report that shows that the impairment has reached a date of MMI, describe the impairment in
sufficient detail for the claims examiner to visualize the character and degree of disability, and
give a percentage of impairment under the A.M.A., Guides.9 The report should include a history
of clinical presentation, physical findings, functional history, clinical studies or objective tests,
analysis of findings, and the appropriate impairment based on the most significant diagnosis, as
well as a discussion of how the impairment rating was calculated.10 If the claimant’s physician
provides an impairment report, the case should be referred to an OWCP medical adviser for
review.11

6

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
7

A. George Lampo, 45 ECAB 441 (1994).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013) and Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(b) (February 2013).
10

Id. at Chapter 2.808.6(a)(1).

11

Id. at Chapter 2.808.6(e), (f).

4

ANALYSIS
The Board finds that this case is not in posture for a decision. OWCP found that
appellant was not entitled to a schedule award for permanent impairment of his left and right
lower extremities. Appellant’s counsel acknowledged that appellant did not wish to pursue a
right leg schedule award as the evidence did not show current work-related residuals.
In denying the schedule award claim, the hearing representative noted that Dr. Collis
opined in his second opinion examination reports that appellant no longer had continuing
residuals of the March 19, 2015 work injury. The Board notes, however, that OWCP did not ask
Dr. Collis to address permanent impairment and that his reports predate appellant’s schedule
award claim. As his reports did not address the issue of permanent impairment, they are not
relevant to this issue.12 Furthermore, the fact that appellant’s compensation was terminated does
not necessarily preclude appellant from entitlement to a schedule award.13
As noted, appellant submitted a March 20, 2015 report from Dr. Fritzhand in support of
his request for a schedule award. The report provided a history, specific results on examination,
and a review of medical records. Using the sixth edition of the A.M.A., Guides, Dr. Fritzhand
identified Table 16-3, the knee regional grid, and provided an opinion that appellant had two
percent left leg permanent impairment for the diagnosis of meniscal injury. He applied the grade
modifiers of functional history, physical examination, and clinical studies. OWCP’s hearing
representative made a medical determination as to whether appellant had established any
permanent impairment, but did not provide a copy of Dr. Fritzhand’s report to an OWCP medical
adviser. OWCP procedures provide that an OWCP medical adviser should verify the
calculations of the attending physician and determine the percentage of impairment according to
the A.M.A., Guides, sixth edition.14
Consequently, the Board finds that further development of the medical evidence is
required to determine whether appellant is entitled to a schedule award for impairment to his left
leg. The case will be remanded for further development in accord with OWCP procedures.
After such further development as deemed necessary, OWCP shall issue an appropriate merit
decision.15
CONCLUSION
The Board finds the case is not in posture for decision and is remanded to OWCP for
further development of the medical evidence.
12

See P.S., Docket No. 12-0649 (issued February 14, 2013).

13

See M.K., Docket No. 16-0243 (issued May 9, 2016).

14

See supra note 11. See also M.M., Docket No. 16-0981 (issued August 29, 2016).

15

Following the March 9, 2014 termination of wage-loss compensation and medical benefits, appellant filed a
claim for schedule award. The hearing representative referenced in her January 15, 2016 decision that appellant had
also failed to establish any continuing disability or impairment. The Board finds that the issue of continuing
disability is not at issue on appeal. The only issue presently before the Board is whether appellant established
permanent impairment due to an accepted condition sufficient to warrant a schedule award.

5

ORDER
IT IS HEREBY ORDERED THAT the January 15, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: November 9, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Cleveland, OH, Employer
)
___________________________________________ )
D.O., Appellant

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

Docket No. 09-755
Issued: May 20, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 26, 2009 appellant’s representative filed a timely appeal from the January 15,
2009 merit decision of the Office of Workers’ Compensation Programs denying her claim.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(e), the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury in the performance of duty.
FACTUAL HISTORY
This case has previously been before the Board.1 In a January 24, 2008 decision, the
Board affirmed Office decisions dated January 24 and May 3, 2007, finding that appellant did
not submit sufficient medical evidence to establish that her employment duties as a letter carrier
1

Docket No. 07-1999 (issued January 24, 2008), petition for recon. denied (issued December 22, 2008).

caused or aggravated her right shoulder condition. The facts and history as contained in the prior
decision are incorporated by reference.
On October 31, 2008 appellant requested reconsideration before the Office. In a
February 21, 2008 report, Dr. Robert Leb, a Board-certified orthopedic surgeon, advised that he
was providing an addendum to a prior report. He diagnosed right shoulder impingement
syndrome, which was an overuse injury with a continuum of pathology that started with
subacromial bursitis and ultimately proceeded to rotator cuff tears and rotator cuff arthropathy.
Dr. Leb explained that repetitive motion of the shoulder especially in an overhead position would
lead to such a condition. He stated that “within a reasonable degree of medical certainty that
[appellant]’s impingement syndrome was caused by being on right hand duty given the type of
work she described to me. [Appellant] stated that she was doing repetitive duty and that it
required placing her shoulder in at risk (overhead) positions.”
In a letter dated May 5, 2008, appellant contended that her right shoulder condition was a
consequence of consistently using the right side of her body to compensate for the loss of use of
her left side. On November 19, 2008 her representative submitted additional evidence. He
provided copies of previously evidence from Dr. Leb. Appellant’s representative also enclosed
an April 5, 2005 treatment note from Dr. Leb, pertaining to her left shoulder and wrist
conditions. Dr. Leb noted that appellant was also complaining of right shoulder discomfort.
By decision dated January 15, 2009, the Office denied modification of its previous
decisions.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained in
the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 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.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence establishing that the employment
factors identified by the claimant were the proximate cause of the condition for which
compensation is claimed or, stated differently, medical evidence establishing that the diagnosed
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

2

condition is causally related to the employment factors identified by the claimant. The medical
evidence required to establish causal relationship, generally, is rationalized medical opinion
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 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.5
ANALYSIS
The Board finds that appellant has submitted insufficient medical evidence to establish
that her right shoulder condition was caused or aggravated by the activities of her light-duty
position at work or any other specific factors of her federal employment.
In support of her claim for a right shoulder condition, appellant submitted a February 21,
2008 report from Dr. Leb, who advised that she had right shoulder impingement syndrome and
opined that it was an overuse injury. Dr. Leb explained that repetitive motion of the shoulder
especially in an overhead position would lead to such a condition. He opined that he believed
that “within a reasonable degree of medical certainty that [appellant]’s impingement syndrome
was caused by being on right hand duty given the type of work she described to me. [Appellant]
stated that she was doing repetitive duty and that it required placing her shoulder in at risk
(overhead) positions.” The Board notes that, while he opined that appellant’s condition was
work related, he did not explain how he arrived at this conclusion or identify the employment
factors of appellant’s limited-duty position caused her condition.
As noted in the prior appeal, appellant’s position consisted of performing the mail count,
writing, carrying mail under 10 pounds, and counting mail every two hours. Furthermore, the
record reveals that appellant was not working from May 18 to July 31, 2006. The Board notes
that the physician did not explain how her condition became symptomatic on August 15, 2006 as
appellant has alleged. While Dr. Leb advised that repetitive motion of the shoulder in an
overhead position would cause impingement syndrome and advised that it was caused by being
on right hand duty, the record does not reflect that appellant’s duties involved repetitive motion
of the shoulder with overhead arm movements. He did not identify the specifics of any overhead
duty or indicate the time period in which any such duty was performed. Dr. Leb did not appear
to be aware of appellant’s actual duties nor did he explain how her light duties of counting mail
and carrying bundles under 10 pounds caused a right shoulder condition. He also did not explain
the reasons why any established job duties would cause or aggravate the diagnosed impingement
syndrome. The evidence generally required to establish causal relationship is rationalized
medical opinion evidence. The claimant must submit a rationalized medical opinion that
supports a causal connection between his or her current condition and the employment injury.
The medical opinion must be based on a complete factual and medical background with an

5

Id.

3

accurate history of the claimant’s employment injury, and must explain from a medical
perspective how the current condition is related to the injury.6
As there is no reasoned medical evidence based on an accurate factual background
explaining how appellant’s employment duties caused or aggravated a right shoulder condition,
appellant has not met her burden of proof in establishing that she sustained a right shoulder
condition causally related to factors of her employment.
CONCLUSION
The Board finds that appellant has not met her burden of proof in establishing that she
sustained an injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 15, 2009 is affirmed.
Issued: May 20, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6

K.E., 60 ECAB ___ (Docket No. 08-1461, issued December 17, 2008).

4