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

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

Docket No. 19-0744
Issued: September 23, 2019

Case Submitted on the Record

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

JURISDICTION
On February 11, 2019 appellant filed a timely appeal from a December 3, 2018 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury causally
related to the accepted October 5, 2018 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 3, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On October 5, 2018 appellant, then a 51-year-old customer service supervisor, filed a
traumatic injury claim (Form CA-1) alleging that on that day she was involved in a motor vehicle
accident, which injured her lower back, shoulder, neck, and right arm while in the performance of
duty. On the reverse side of the claim form the employing establishment noted that she was injured
while in the performance of duty, and she had stopped working on October 5, 2018.
An October 5, 2018 emergency department note indicated that appellant could return to
work on October 8, 2018 without restrictions.3 This document contained an illegible signature.
An October 11, 2018 duty status report (Form CA-17) also contained an illegible signature
and stated that on October 5, 2018 appellant was involved in a motor vehicle accident, which
injured her shoulder, right arm, back, and neck, and diagnosed lumbar radiculopathy and
cervicalgia. Clinical findings included loss of motion and muscle spasm, and the form noted that
appellant could not perform her regular work duties.
An October 11, 2018 state workers’ compensation uniform medical treatment/status
reporting form by Dr. Richard Wallace, a family medicine specialist, related that appellant’s
October 5, 2018 injury was work related and diagnosed neck and back pain. He also noted that
she had no preexisting conditions that contributed to her injury, and that the injury was the major
contributing cause for the diagnoses. Dr. Wallace requested diagnostic testing and indicated that
appellant could return to work with restrictions relative to bending, carrying, climbing, grasping,
lifting, pulling, pushing, squatting, and twisting.
An October 18, 2018 state workers’ compensation uniform medical treatment/status form
containing an illegible signature indicated that appellant’s right arm and right leg required
functional limitations such as bending, carrying, climbing, kneeling, lifting, pulling, pushing, and
reaching overhead with a load less than 7.5 pounds. Additionally, the provider noted that she
should not sit, squat, stand, or walk for longer than a half hour at a time and should only engage in
sedentary work.
A duty status report (Form CA-17) dated October 18, 2018, which contained an illegible
signature, indicated that appellant was examined and that she had loss of range of motion, pain,
and muscle spasm. The date of injury was listed as October 5, 2018 and the provider noted that
the injury occurred due to a motor vehicle accident, which affected her neck, mid-back, shoulder
and arm and caused her diagnoses of cervical and lumbar cervicalgia and radiculopathy. The
provider listed all of the physical activities that appellant’s work requires and specified the various
restrictions necessary for her.
October 18, 2018 urgent care center records noted that appellant was seen by Laura
Khawaja a certified physician assistant for a follow-up appointment for her back pain. The records
noted that she prescribed appellant medication and restricted her work activity to sedentary work.
The records also mentioned that Ms. Khawaja diagnosed cervicalgia, radiculopathy of the cervical
3
OWCP also received March 12, 2018 emergency room treatment records for an unrelated left lower extremity
condition (thrombophlebitis).

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region, and radiculopathy of the lumbosacral region, and that an x-ray of the lumbosacral region
was taken during a previous appointment which displayed normal results.
In an October 25, 2018 development letter, OWCP advised appellant that additional
evidence was required in support of her claim for compensation benefits. It explained that the
medical evidence thus far only referenced pain, which is a symptom, not a valid medical diagnosis.
OWCP requested that appellant submit a comprehensive narrative medical report from a qualified
physician that included a diagnosis and an opinion, supported by medical rationale, addressing
how the claimed employment incident caused or aggravated a medical condition. It afforded her
30 days to submit the requested medical evidence.
An October 19, 2018 magnetic resonance imaging (MRI) scan of appellant’s cervical spine
was interpreted by Dr. Charles L. Domson, a Board-certified radiologist, who related that her
clinical history included neck pain with radiculopathy into both arms. He compared it with a
previous MRI scan of her cervical spine from March 2, 2018. The MRI scan revealed a mild disc
bulge at C3-4, a budging disc and facet atrophy at C4-5, a C5-6 disc bulge with 2 millimeter disc
protrusion, osteophyte and stenosis, and a C6-7 bulging disc with small osteophyte, but no stenosis.
The report found that there had been no changes since the prior MRI scan and no lesions or
fractures were identified.
An October 23, 2018 MRI scan report of appellant’s lumber spine by Dr. Jayson M. Lord,
a Board-certified radiologist, noted that her medical history included lower back pain, right lower
extremity pain, and a motor vehicle accident two weeks prior. His findings included disc
desiccation at L4-5, mild curvature of the lumbar spine, and no fractures. Additionally, Dr. Lord
found that at L4-5 there was a disc bulge loosely associated with mild canal stenosis and moderate
bilateral narrowing of the neural foramina. He also mentioned that at L5-S1 there was a disc bulge
associated with disc herniation with mild canal stenosis and mild leftward narrowing of the neural
foramina. Dr. Lord’s impression included scoliosis of the lumbar spine, a disc bulge and apparent
neural foramina at L3-4, and a reiteration of the report’s findings at L5-S1 and L4-5.
An October 25, 2018 duty status report (Form CA-17) containing an illegible signature
noted that appellant was injured in a motor vehicle accident, which resulted in neck, lower back,
and arm injuries and diagnosed neck and back pain. The provider noted work restrictions including
being limited to sedentary work.
Dr. Nabil Gerges, a pain management specialist, indicated in November 2, 2018 medical
records that appellant presented with neck pain in her midline, left lateral, and right lateral neck
and in her mid and lower back radiating into her right arm, shoulder, and leg. Appellant stated
that the pain was tingling, aching, dull, moderate, and numb and worsened with daily activities.
Nothing relieved appellant’s pain and everyday activities such as walking and sitting aggravated
it. Self-care activities were painful and she used a cane. Appellant had not previously had spine
surgery.
A March 3, 2010 MRI scan of appellant’s cervical spine was reviewed by Dr. Gerges, who
noted that it revealed disc herniation and thecal sac compression at C4-5, thecal sac compression
and bulging annulus at C5-6, and cervical lordosis straightening. He also reviewed an August 12,
2011 MRI scan of her cervical spine, which revealed central canal stenosis, thecal sac flattening,

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impingement of the cord, and protruding annulus at C4-5. Protruding annulus, central canal
stenosis, and thecal sac flattening were identified at C5-6. The report also indicated that at C6-7
there was central canal stenosis, reversal of cervical lordosis, and protruding annulus. A physical
examination of appellant revealed that her lumbosacral spine was tender and experienced spasms
in addition to painful flexion and extension. Her cervical spine also was tender and experienced
spasms in addition to painful flexion and extension. Dr. Gerges diagnosed spinal enthesopathy of
the lumbar region, cervical facet joint syndrome, muscle spasm, muscle weakness of upper
extremity, risk for falls, lumbar radiculitis, and cervical radiculitis. He prescribed medication and
gave appellant an ultrasound guided right iliolumbar ligament injection, a left trapezius trigger
point injection, and a right trapezius trigger point injection.
A November 16, 2018 duty status report (Form CA-17) containing an illegible signature
indicated that appellant was injured on October 5, 2018 in a motor vehicle accident where she was
rear ended, which caused cervical radiculitis and lumbar radiculitis. The provider noted that
appellant’s cervical and lumbar MRI scans revealed C5, C6, and L5 disc herniations and lumbar
stenosis, and appellant’s MRI scan of her cervical spine indicated that at C5 and C6 she had disc
herniation. Appellant’s employment duties were listed and the provider specified particular
limitations for appellant.
By decision dated December 3, 2018, OWCP denied appellant’s claim because the medical
evidence of record did not include a specific diagnosis in connection with the October 5, 2018
accepted employment incident. It concluded, therefore, that the requirements had not been met to
establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,5 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.6 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.7

4

Supra note 1.

5

J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
6

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
7
R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

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To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.8 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.9 Second, the employee must
submit sufficient evidence, generally in the form of medical evidence, to establish that the
employment incident caused a personal injury.10
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.11 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 employee.12
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.13
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an injury
causally related to the accepted October 5, 2018 employment incident.
Appellant submitted a series of documents that did not contain a legible signature. The
Board has held that reports that bear illegible signatures cannot be considered probative medical
evidence because they lack proper identification that the author is a physician.14 Therefore, this
evidence is of no probative value.
The October 11, 2018 state workers’ compensation uniform medical treatment/status
reporting form by Dr. Wallace noted that appellant’s injury was work related and diagnosed neck
and back pain. Dr. Wallace noted that she had no preexisting conditions that contributed to her
injury, and that the injury was the major contributing cause for the diagnoses. However, the Board
has held that pain is a symptom, not a valid medical diagnosis.15 As Dr. Wallace’s report does not

8

R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2009);
Bonnie A. Contreras, 57 ECAB 364 (2006).
9

S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

10

A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008);
D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 8.
11

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

L.D., id.; see also Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

13

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

14

J.P., Docket No. 19-0197 (issued June 21, 2019).

15

R.C., Docket No. 19-0376 (issued July 15, 2019).

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contain a valid medical diagnosis, his report is of diminished probative value and, thus, insufficient
to establish appellant’s claim.
The October 18, 2018 urgent care documents indicate that appellant was seen by
Ms. Khawaja, a certified physician assistant. Reports from physician assistants have no probative
medical value in establishing her claim. Certain healthcare providers such as physician assistants,
nurse practitioners, physical therapists, and social workers are not considered “physician[s]” as
defined under FECA.16 Consequently, Ms. Khawaja’s medical findings and/or opinions will not
suffice for purposes of establishing entitlement to FECA benefits.17
The November 2, 2018 medical records by Dr. Gerges indicate that, after a physical
examination and reviewing appellant’s 2010 and 2011 MRI scans of her cervical spine, he
diagnosed spinal enthesopathy of the lumbar region, cervical facet joint syndrome, muscle spasm,
muscle weakness of upper extremity, risk for falls, lumbar radiculitis, and cervical radiculitis.
While these medical documents do provide medical diagnoses, they do not mention her accepted
October 5, 2018 employment incident. As stated above, an employee must submit sufficient
evidence, generally in the form of medical evidence, to establish that the employment incident
caused a personal injury.18 As this report does not mention appellant’s October 5, 2018 accepted
employment incident of a motor vehicle accident, it does not establish that the October 5, 2018
accepted employment incident caused a personal injury and is therefore insufficient to establish
her claim.19
Appellant submitted an October 19, 2018 MRI scan report of her cervical spine and the
October 23, 2018 MRI scan report of her lumbar spine. The Board has explained that diagnostic
studies lack probative value as they do not address whether the employment incident caused any
of the diagnosed conditions.20 Thus, these reports are also insufficient to establish appellant’s
claim.
As appellant has not submitted rationalized medical evidence establishing an injury
causally related to the accepted October 5, 2018 employment incident, she has not met her burden
of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
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.

16

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

17

See M.F., Docket No. 17-1973 (issued December 31, 2018); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk,
57 ECAB 316, 320 n.11 (2006). A report from a physician assistant or certified nurse practitioner will be considered
medical evidence if countersigned by a qualified physician. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Causal Relationship, Chapter 2.805.3a(1) (January 2013).
18

Supra note 10.

19

See id.

20

N.B., Docket No. 19-0221 (issued July 15, 2019).

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CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury
causally related to the accepted October 5, 2018 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the December 3, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 23, 2019
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
DEPARTMENT OF THE AIR FORCE, JOINT
BASE SAN ANTONIO, Randolph, TX, Employer
__________________________________________

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

Docket No. 16-1067
Issued: November 16, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 25, 2016 appellant filed a timely appeal of a February 3, 2016 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
has elapsed from the last merit decision, dated August 13, 2014, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
On appeal appellant contends that his condition had deteriorated since his schedule award
decision.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 19, 2011 appellant, then a 56-year-old financial specialist, filed a
traumatic injury claim (Form CA-1) alleging that he fractured his right femur and dislocated his
right hip when he tripped and fell on September 6, 2011 in the employing establishment parking
lot. On September 8, 2011 appellant, who has a history of cerebral palsy as well as multiple
bilateral lower extremity surgeries and ambulates with crutches, underwent an open reduction
and internal fixation of his right femur fracture. The fracture occurred near the tip of his onemonth-old right total hip arthroplasty. Appellant received a locking plate and multiple proximal
locking screws and cables with distal locking and unlocking screws in his right femur. He also
has had a left total hip arthroplasty. OWCP accepted appellant’s claim for periprosthetic fracture
right femur and closed fracture of the shaft of the right femur on November 1, 2011. Appellant
continued to work at the employing establishment.
Appellant underwent a magnetic resonance imaging (MRI) scan of this right knee on
October 25, 2011 which demonstrated high-grade patellofemoral and lateral femoral condyle
chondromalacia with diffuse thinning of the weight-bearing medial femoral condyle cartilage.
The scan also demonstrated a tear in the lateral meniscus and chronic sprain of the medial
collateral ligament as well as a Baker’s cyst.
A bone scan on June 12, 2013 demonstrated possible loosening of the femoral component
of the right hip arthroplasty. On October 25, 2013 appellant reported severe right hip and thigh
pain. Dr. Cory J. Lamblin, a Board-certified orthopedic surgeon, noted that appellant had a
significant limp partially due to pain and partially due to significant leg shortening of the right
leg. On February 7, 2014 appellant reported a dramatic improvement in his symptoms with a
shoe lift.
OWCP referred appellant for a second opinion evaluation on April 21, 2014 with
Dr. Lawrence G. Splitter, an osteopath Board-certified in preventative medicine. In his May 16,
2014 report, Dr. Splitter reviewed appellant’s medical records. He described appellant’s history
of injury and noted that appellant had residual decreased tolerance and endurance in his right leg.
Appellant currently required a three-centimeter shoe lift and an additional crutch. He reported
his current pain level was 7/10 in the right midthigh. Dr. Splitter reported appellant’s right thigh
measurement of 43 centimeters and his left of 42.5 centimeters. Appellant’s right calf was 32
centimeters while his left was 33.5 centimeters. His right leg was 87 centimeters long while his
left was 90 centimeters.
Appellant demonstrated active range of motion in the right hip, 50 degrees of flexion and
0 degrees of extension. His right hip abduction was 20 degrees while his adduction was 30
degrees. Dr. Splitter could not measure appellant’s internal and external rotation due to his
inability to lie flat on the examination table. He found full strength across the right hip.
Dr. Splitter reported appellant’s right knee motion as 90 degrees of flexion and negative 20
degrees of extension. He indicated that appellant’s gait was scissoring due to cerebral palsy and
was assisted with bilateral crutches. Dr. Splitter found increased muscle tone throughout the
lower extremities. He noted that appellant’s reflexes were present and symmetric at L4 and L5
and absent at S1. Appellant’s plantar reflexes were positive bilaterally, while sensation was
decreased in the bilateral lower extremities. Dr. Splitter found that appellant had reached

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maximum medical improvement. He applied the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2009) and found that appellant
had eight percent permanent impairment of the lower extremity due to his proximal femur
fracture due to malalignment.
On August 5, 2014 appellant filed a claim for compensation (Form CA-7) and requested
a schedule award. OWCP’s medical adviser reviewed the case record on August 8, 2014 and
found no malalignment, but did find mild motion loss and determined that appellant had nine
percent impairment of his right lower extremity.
By decision dated August 13, 2014, OWCP granted appellant a schedule award for nine
percent permanent impairment of his right lower extremity.
Appellant requested reconsideration on January 22, 2016 received by OWCP on
January 27, 2016. He argued that his impairment was greater than that awarded by OWCP.
Appellant described his loss of motion, pain and weakness, deformity, loss of strength,
sensitivity to heat and cold, as well as scarring. He noted that prior to his accident he was able to
do many of the activities of daily function, but many were now difficult if not impossible.
Appellant noted that, because of walking distance and daily job-related duties, he now uses a
wheelchair at work to perform normal daily functions. He alleged additional impairment due to
his limb length discrepancy. Appellant asked that OWCP notify him if additional information
was needed. He resubmitted Dr. Splitter’s May 16, 2014 report. Appellant also submitted
information from a website regarding schedule awards and amended schedule awards.
By decision dated February 3, 2016, OWCP found that appellant’s request for
reconsideration was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of use of scheduled members or functions of the body. FECA, however, does not specify
the manner in which the percentage loss of a member shall be determined. The method used in
making such determination is a matter which rests in the discretion of OWCP. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so
that there may be uniform standards applicable to all claimants. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.4

2

5 U.S.C. §§ 8101, 8107.

3

20 C.F.R. § 10.404.

4

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.5a (February 2013); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).

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To the extent that a claimant asserts that a schedule award decision was erroneous based
on his or her medical condition at that time, this would properly be considered a request for
reconsideration.5 A claimant may, however, seek an increased schedule award if the evidence
establishes that he sustained increased impairment at a later date causally related to the accepted
employment injury. Even if the term reconsideration is used, when a claimant is not attempting
to show error in the prior schedule award decision and submits medical evidence regarding a
permanent impairment at a date subsequent to the prior schedule award decision, it should be
considered a claim for an increased schedule award.6 A proper claim for an increase in
permanent impairment is not subject to time limitations or to the clear evidence of error
standard.7
A claimant may seek an increased schedule award based on a new exposure or on
medical evidence that indicates that the progression of an employment-related condition -without new exposure to employment factors -- has resulted in a greater permanent impairment
than previously calculated.8
ANALYSIS
The Board finds the case not in posture for a decision.
Appellant requested reconsideration through a letter dated January 22, 2016 and received
by OWCP on January 27, 2016. He argued that his condition had worsened and that he now
required a wheelchair to work. Appellant described his loss of motion, pain and weakness,
deformity, loss of strength, sensitivity to heat and cold, as well as scarring. He specifically
alleged that ongoing factors of his employment, namely, his walking of distances and other daily
job-related work assignments necessitated the use of the wheelchair for normal daily functions.
In its February 3, 2016 decision, OWCP denied appellant’s request for reconsideration
finding that it was untimely filed and failed to demonstrate clear evidence of error. However, its
procedures provide that, if a claimant is seeking an increased schedule award due to increased
impairment and/or additional exposure, but not contesting the original schedule award decision,
this should not be treated as a reconsideration request and OWCP should develop the issue of
entitlement to an additional award.9
It is evident from the record that appellant was seeking an increased schedule award
based on new factors and additional exposure. Appellant described his new inability to perform
activities of daily living and the necessity to use a wheelchair to perform his work duties. He
5

See J.K., Docket No. 14-1082 (issued November 24, 2014).

6

B.K., 59 ECAB 228 (2007).

7

W.H., Docket No. 15-1167 (issued November 10, 2015); R.P., Docket No. 10-1123 (issued January 25, 2011).

8

A.A., 59 ECAB 726 (2008).

9

See A.C., Docket No. 13-1810 (issued January 6, 2014); Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.3(b) (October 2011).

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alleged that these new inabilities were tied to the culmination of the residuals of his work injury
and his ongoing job duties. The Board has held that, even if the term reconsideration is used,
when a claimant is not attempting to show error in the prior schedule award decision, it should be
considered a claim for an increased schedule award and OWCP should address the schedule
award claim, rather than adjudicate an application for reconsideration.10
The Board finds that OWCP improperly adjudicated appellant’s request for an additional
schedule award as a request for reconsideration under the clear evidence of error standard.11 The
case will be remanded for further development on the issue of whether appellant has a permanent
impairment of his right lower extremity entitling him to an additional schedule award. After this
development is carried out, OWCP shall issue a de novo decision on appellant’s claim.
CONCLUSION
The Board finds that this case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the February 3, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: November 16, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
10

See B.K., 59 ECAB 228, 229-30 (2007); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards
and Permanent Disability Claims, Chapter 2.808.9.b (February 2013).
11

K.D., Docket No. 15-0524 (issued August 3, 2015).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.D., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
DEPOT, Corpus Christi, TX, Employer
__________________________________________

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Appearances:
Glenda Turner, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1373
Issued: October 10, 2014

Case Submitted on the Record

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

JURISDICTION
On May 30, 2014 appellant, through her representative, filed a timely appeal from the
March 19, 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 has more than a one percent impairment of her left lower
extremity.
FACTUAL HISTORY
On September 6, 2011 appellant, 59-year-old production controller (aircraft), sustained a
traumatic injury in the performance of duty when she stepped on an object that made her lose her
balance and stumble. X-rays revealed a minimally displaced comminuted fracture of the
1

5 U.S.C. § 8101 et seq.

midshaft of the left fifth metatarsal. OWCP accepted appellant’s claim for a closed fracture of
the left calcaneus.
Dr. Charles W. Kennedy, Jr., a Board-certified orthopedic surgeon, evaluated the
permanent impairment to appellant’s left lower extremity on December 10, 2013. Appellant’s
diagnosis was a healed fracture of the left fifth metatarsal. She had no limitation of motion.
Appellant’s most recent examination showed no tenderness or swelling and she was
neurovascularly intact. An extremity questionnaire indicated mild symptoms. Referring to
Table 16-2, page 504 of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009), Dr. Kennedy determined that appellant had a one percent
impairment of her left lower extremity.
On January 13, 2014 Dr. Ronald Blum, an OWCP medical adviser reviewed
Dr. Kennedy’s evaluation and concurred. Appellant had an essentially nondisplaced fracture of
the left fifth metatarsal shaft, which warranted a one percent impairment rating under Table 16-2.
In a decision dated March 19, 2014, OWCP issued a schedule award for a one percent
impairment of appellant’s left leg. The award was 2.88 weeks of compensation.
Appellant contends on appeal that she is still in pain and can no longer wear certain types
of shoes, such as high heels and boots. “I believe that my impairment rating was way too low.”
LEGAL PRECEDENT
The schedule award provision of FECA2 and the implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.4
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. OWCP has adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.5 As of May 1, 2009, the sixth edition of the A.M.A.,
Guides is used to calculate schedule awards.6

2

Id. at § 8107.

3

20 C.F.R. § 10.404.

4

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

5

Supra note 3; Ronald R. Kraynak, 53 ECAB 130 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010).

2

ANALYSIS
Diagnosis-based impairment is the primary method of evaluating the lower extremity.
Impairment is determined first by identifying the relevant diagnosis, then by selecting the class
of the impairment (no objective problem, mild problem, moderate problem, severe problem, very
severe problem approaching total function loss), which will provide a default impairment rating.
This default rating may then be adjusted slightly for grade, which is determined by functional
history, physical examination and clinical studies.7
Appellant’s diagnosis was a nondisplaced fracture of the left fifth metatarsal shaft.
Impairment ratings for fractures of the foot and ankle regions are found in Table 16-2 of the
A.M.A., Guides. Ratings for a fractured metatarsal are provided on page 504. For a healed
fracture with no objective deficits, the class of the impairment is “no objective problem” and the
lower extremity impairment rating is zero. For a fracture of a metatarsal other than the first
metatarsal, nondisplaced with abnormal examination findings, the class of the impairment is
“mild problem” with impairment ratings ranging from zero to two percent. These are the only
two classifications that are available for a fractured metatarsal.
X-rays showed the fracture to be essentially nondisplaced. There was no angular
deformity that would justify placing appellant’s impairment in the mild category. Further,
Dr. Kennedy, the evaluating orthopedic surgeon, noted no limitation of motion. Examination
findings about a week earlier showed no tenderness and no swelling. Appellant was found to be
neurovascularly intact. The record does not contain abnormal examination findings which would
justify placing her impairment in the mild category. Given the apparent absence of objective
deficits, either on x-ray or physical examination, the classification of “no objective problem” and
an impairment rating of zero is correct.
Dr. Kennedy classified the impairment as mild, which has a default impairment rating of
one percent. He noted that appellant completed an extremity questionnaire which indicated mild
functional symptoms.8 Because appellant’s impairment was classified as mild, this did not affect
the default impairment value.
Physical examination findings appeared negative. No observed or palpable findings were
reported. There was no mention of instability, misalignment, deformity, loss of motion, atrophy
or leg length discrepancy.9 These findings indicate no problem on physical examination and
move the default impairment value to the next lower grade. The impairment rating for the next
lower grade is one percent, as shown in Table 16-2, page 504.
X-rays confirmed the diagnosis but were not interpreted to show moderate pathology,
such as a healed angulation or rotational deformity less than five percent in any plane.10 The
7

A.M.A., Guides 497.

8

See id. at 516 (Table 16-6, Functional History Adjustment).

9

See id. at 517 (Table 16-7, Physical Examination Adjustment).

10

See id. at 519 (Table 16-8, Clinical Studies Adjustment).

3

clinical studies establish a mild problem, which does not alter impairment rating. Appellant’s
final impairment rating, therefore, is one percent.
Appellant contends that her impairment rating was too low. The highest rating any
claimant may receive for such a fracture is two percent, but, in appellant’s case, none of the
adjustments for functional history, physical examination or clinical studies supported an increase
in the default impairment value of one percent.
The Board notes a one percent impairment rating equals 2.88 weeks of compensation.
Under section 8107(c)(2) of FECA, a claimant who loses a lower extremity is entitled to a
maximum of to 288 weeks of compensation.
Section 8107(c)(19) provides that compensation for a partial loss of use is proportionate.
Thus, the compensation payable for appellant’s one percent impairment is one percent of 288
weeks of compensation or 2.88 weeks of compensation.
The Board finds that appellant has no more than a one percent impairment of her left
lower extremity. The default rating for her essentially nondisplaced fifth metatarsal fracture is
one percent -- assuming abnormal examination findings -- and the slight adjustment for grade
leaves the rating unchanged. The Board will therefore affirm OWCP’s March 19, 2014 schedule
award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than a one percent impairment of her left
lower extremity.

4

ORDER
IT IS HEREBY ORDERED THAT the March 19, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 10, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF THE INTERIOR,
NATIONAL PARK SERVICE, CUYAHOGA
VALLEY NATIONAL PARK, Brecksville, OH,
Employer
__________________________________________

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

Docket No. 20-0785
Issued: October 23, 2020

Case Submitted on the Record

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

JURISDICTION
On February 25, 2020 appellant filed a timely appeal from an October 16, 2019 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the issuance of the October 16, 2019 decision, OWCP received additional
evidence. However, the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence
in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be
considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from
reviewing this additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP properly suspended appellant’s wage-loss compensation
benefits, effective October 13, 2019, for failure to complete an EN1032 form as requested.
FACTUAL HISTORY
On January 31, 1984 appellant, then a 37-year-old motor vehicle operator, filed a traumatic
injury claim (Form CA-1) alleging that on that day he injured his back, right knee, right elbow,
and right shoulder when he stepped on ice-covered steps and fell down to the bottom of the
stairway while cleaning the steps in the performance of duty. On June 13, 1984 OWCP accepted
the claim for a contusion and sprain of the right shoulder and derangement of the right knee and
paid appellant wage-loss compensation on the periodic rolls commencing June 14, 1984.
By decision dated April 12, 1994, OWCP reduced appellant’s wage-loss compensation
based on its finding that his actual earnings as a poker dealer, $216.00 per week, effective May 1,
1994, fairly and reasonably represented his wage-earning capacity.
Over the years, OWCP periodically requested that appellant submit completed financial
disclosure statements (Form EN1032) which solicited information about his employment,
volunteer work, dependent(s) status, receipt of other federal benefits and/or payments, and thirdparty settlements.
On September 9, 2019 OWCP provided appellant a Form EN1032 and informed him that
federal regulations required him to report any improvement in his medical condition, any
employment, any change in the status of claimed dependents, any third-party settlement, and any
income or change in income from federally-assisted disability or benefit programs. It notified him
that he was required to fully answer all questions on the EN1032 form and return it within 30 days
or his benefits would be suspended. The letter was mailed to appellant’s last known address. No
response was received within the time allotted.
By decision dated October 16, 2019, OWCP suspended appellant’s compensation benefits,
effective October 13, 2019, for failing to complete the EN1032 form as requested. It noted that no
response had been received to its September 9, 2019 letter. OWCP advised that, if he completed
and returned an enclosed copy of the form, his compensation benefits would be restored
retroactively to the date they were suspended.
LEGAL PRECEDENT
Section 8106(b) of FECA authorizes the Secretary of Labor to require a partially disabled
employee to report his or her earnings from employment or self-employment, by affidavit or
otherwise, in the manner and at the times the Secretary specifies.3
Under section 10.528 of OWCP’s implementing federal regulations, an employee in receipt
of compensation benefits must complete an affidavit as to any work or activity indicating an ability
3

5 U.S.C. § 8106(b).

2

to work, which the employee has performed for the prior 15 months.4 If an employee who is
required to file such a report fails to do so within 30 days of the date of the request, his or her right
to compensation for wage loss is suspended until OWCP receives the requested report. At that
time, OWCP will reinstate compensation retroactive to the date of suspension if the employee
remains entitled to compensation.5
ANALYSIS
The Board finds that OWCP properly suspended appellant’s wage-loss compensation
benefits, effective October 13, 2019, for failure to complete an EN1032 form as requested.
On September 9, 2019 OWCP provided appellant with an EN1032 form. It properly
advised him that, if he had not completely answered all of the questions and return the statement
within 30 days, his benefits would be suspended. The record reflects that OWCP’s letter was
properly sent to appellant’s last known address and there is no indication that it was returned as
undeliverable.6 Under the mailbox rule, a document mailed in the ordinary course of the sender’s
business practices to the addressee’s last known address is presumed to be received by the
addressee.7
The record indicates that appellant failed to timely submit the EN1032 form within 30 days
of OWCP’s request. Appellant was receiving wage-loss compensation and he was, therefore,
required to complete the EN1032 form. His failure to file an EN1032 form within 30 days resulted
in the suspension of compensation. Thus, the Board finds that OWCP properly suspended
appellant’s compensation benefits, effective October 13, 2019, pursuant to 20 C.F.R. § 10.528.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s wage-loss compensation
benefits, effective October 13, 2019, for failure to complete an EN1032 form as requested.

4
20 C.F.R. § 10.528. See also P.B., Docket No. 20-0148 (issued July 23, 2020); R.B., Docket No. 20-0176 (issued
June 25, 2020); H.B., Docket No. 19-0405 (issued June 26, 2019).
5

Id.; see also id. at § 10.525.

6

See P.B., supra note 4; H.B., supra note 4; J.J., Docket No. 13-1067 (issued September 20, 2013); Kenneth E.
Harris, 54 ECAB 502, 505 (2003).
7

Id.

3

ORDER
IT IS HEREBY ORDERED THAT the October 16, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 23, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.A., Appellant
and
U.S. POSTAL SERVICE, FOX CHASE POST
OFFICE, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 12-1210 & 13-516
Issued: March 19, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On May 9, 2012 appellant, through her attorney, filed a timely appeal from a January 25,
2012 decision of the Office of Workers’ Compensation Programs (OWCP) regarding a schedule
award docketed as No. 12-1210. On July 25, 2012 counsel filed a timely appeal of a May 7,
2012 schedule award decision docketed as No. 13-516. 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 sustained more than 12 percent impairment of the right
arm, 10 percent impairment of the left arm and 6 percent impairment of each lower extremity, for
which she received schedule awards.
On appeal, counsel contends that appellant sustained 19 percent impairment of the right
arm, 18 percent impairment of the left arm and 13 percent impairment to each lower extremity,
based on the opinion of her an attending physician. Alternatively, counsel asserts a conflict in
1

5 U.S.C. § 8101 et seq.

medical opinion requiring selection of an impartial medical examiner. He also asserts that
OWCP should have based the schedule awards on the 2007 reports of an OWCP medical adviser.
FACTUAL HISTORY
OWCP accepted that on December 15, 2003 appellant, then a 52-year-old letter carrier,
sustained a cervical sprain, lumbar strain and aggravation of a herniated cervical disc when
lifting a tub of mail. Under File No. xxxxxx024, it accepted that, on or before December 26,
2003, appellant sustained bilateral carpal tunnel syndrome, cervical and lumbar sprains and an
aggravation of cervical and lumbar herniated discs. Under File No. xxxxxx368, OWCP accepted
that appellant sustained cervical and lumbar sprains on October 7, 2008. It combined all three
claims under File No. xxxxxx860.
Appellant was treated by Dr. Charles Bolno, an attending osteopathic physician
specializing in family practice and orthopedic surgery. He submitted reports from December 7,
2003 to June 2004 prescribing work restrictions due to the December 15, 2003 injuries, which he
opined aggravated preexisting degenerative disc disease with radiculopathy into all extremities.2
Appellant obtained a December 16, 2003 magnetic resonance imaging (MRI) scan showing disc
protrusions throughout C2 to C6 with nerve root irritation, disc herniations at C3-4, C6-7, C7-T1,
an L2-L3 disc protrusion with impingement on the dural sac, disc protrusions with nerve root
impingement at L3, L4 and L5, and L5-S1 disc protrusion. Dr. Bolno submitted periodic reports
through May 15, 2010, noting chronic cervical radiculopathy in both arms, bilateral carpal tunnel
syndrome, lumbar radiculopathy in both legs, pain and paresthesias throughout all extremities
and decreased or absent extensor hallucis longus and ankle reflexes bilaterally. He attributed the
findings to the accepted injuries.3
On December 23, 2005 appellant claimed a schedule award. In a July 7, 2005
impairment report, Dr. Nicholas Diamond, an attending osteopath, used the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter,
the A.M.A., Guides). He found a 41 percent impairment of the right upper extremity, a 51
percent impairment of the left upper extremity and 9 percent impairment of each lower
extremity.

2

In a December 23, 2003 report, Dr. Leonard A. Bruno, an attending Board-certified neurosurgeon, opined that
the disc herniations and protrusions throughout appellant’s cervical and lumbar spine caused radiculitis in all
extremities.
3

A February 21, 2004 nerve conduction velocity (NCV) and electromyogram (EMG) study showed acute rightsided C5 radiculopathy superimposed on chronic left-sided C5-6, C6-7 and C7-T1 radiculopathy, severe median
nerve compression in the right wrist and moderate carpal tunnel syndrome in the left wrist. A March 6, 2004 lumbar
EMG and NCV study showed left-sided L4-5 radiculopathy and right-sided L5-S1 radiculopathy. An October 3,
2005 lumbar EMG and NCV study showed multilevel lumbar radiculopathy, on the left at L4-5 and on the right at
L5-S1, progressed since the March 2004 study with increased denervation of the L5-S1 muscles on the right. An
October 17, 2005 EMG and NCV study showed bilateral radiculopathy at C5-6 and C6-7, progressed since
February 2004 and severe progressive carpal tunnel syndrome on the right. A November 15, 2007 NCV and EMG
study showed bilateral, progressive, severe carpal tunnel syndrome and chronic left-sided C5-6 and C6-7
radiculopathy with progressive denervation.

2

In a February 17, 2007 report, Dr. Arnold T. Berman, a Board-certified orthopedic
surgeon and OWCP medical adviser, opined that, under the fifth edition of the A.M.A., Guides,
appellant had 15 percent impairment of each arm, 28 percent impairment of the right leg and 27
percent impairment of the left leg due to the accepted conditions. He noted that Dr. Diamond
inappropriately included pinch strength and range of wrist motion as elements of upper extremity
impairment.
In a September 11, 2008 letter, counsel requested a case status update and submitted a
second copy of Dr. Diamond’s July 7, 2005 report. On October 9, 2008 OWCP requested that an
OWCP medical adviser review Dr. Diamond’s report and calculate the percentages of permanent
impairment based on the fifth edition of the A.M.A., Guides. In an October 17, 2008 report, the
medical adviser opined that appellant reached maximum medical improvement as of July 7,
2005, the date of Dr. Diamond’s evaluation. The medical adviser found that appellant’s
condition had not changed since his February 17, 2007 impairment rating.
In a May 4, 2009 letter, OWCP advised counsel to submit an impairment rating from
appellant’s physician utilizing the sixth edition of the A.M.A., Guides in effect as of
May 1, 2009. It noted that it combined appellant’s claims, File No. xxxxxx368 and xxxxxx024
under File No. xxxxxx368. Counsel contended in a May 8, 2009 letter that appellant was
entitled to a schedule award under the fifth edition of the A.M.A., Guides as OWCP delayed in
processing her claim.
On July 21, 2009 OWCP requested that an OWCP medical adviser address his
February 17, 2007 impairment rating using the sixth edition of the A.M.A., Guides. In an
August 2, 2009 report, OWCP’s medical adviser discussed spinal and whole person
impairments.4
On November 12, 2009 Dr. Diamond resubmitted his July 7, 2005 impairment report.
Referring to the sixth edition of the A.M.A., Guides, he found 25 percent impairment of the right
upper extremity, 26 percent impairment of the left upper extremity and 13 percent impairment of
each lower extremity. Regarding the left leg, Dr. Diamond found a class 1 diagnosis-based
impairment (CDX) for sensory deficit of the L5-S1 nerve root, affecting the sciatic nerve,
equaling four percent impairment according to Table 16-12,5 based on appellant’s history of
injury, chronic sciatica as documented on examinations. He assessed a grade 2 modifier for
Functional History (GMFH), according to Table 16-6.6 Dr. Diamond found a grade 1 modifier

4

Counsel submitted September 3, 2009 impairment rating from an evaluator, approved on September 4, 2009 by
Dr. David Weiss, an osteopath and associate of Dr. Diamond. The evaluator applied the sixth edition of the A.M.A.,
Guides to Dr. Diamond’s July 5, 2005 findings, and opined that appellant had 13 percent impairment of each leg, 18
percent impairment of the left arm and 19 percent impairment of the right arm.
5

Table 16-12, page 535 of the sixth edition of the A.M.A., Guides is entitled “Peripheral Nerve Impairment -Lower Extremity Impairments.”
6

Table 16-6, page 516 of the sixth edition of the A.M.A., Guides is entitled “Functional History Adjustment -Lower Extremities.”

3

for Clinical Studies (GMCS) according to Table 16-87 based on prior EMG studies. Using the
net adjustment formula of (GMFH - CDX) + (GMPE8 - CDX) + (GMCS - CDX), he found a
plus one adjustment, raising the default value of four percent for the sciatic nerve to six percent.
Dr. Diamond also found a class 1 motor strength deficit in the left quadriceps, implicating the
femoral nerve, with a default value of five percent according to Table 16-12. He found a GMFH
of 2 due to weakness on prior and current examinations, and a GMCS of 1 for prior NCV studies.
Using the net adjustment formula, Dr. Diamond calculated a net adjustment of plus 1, raising the
default five percent for the femoral nerve to seven percent. He then combined the six percent
sciatic nerve and seven percent femoral nerve impairments to equal a 13 percent impairment of
the left leg. Dr. Diamond applied the same grade modifiers and formulae to the right leg, finding
13 percent impairment attributable to the sciatic and femoral nerves.
Regarding the left arm, Dr. Diamond noted a GMCS of 1, a GMFH of 3 and a GMPE of
3 for decreased pinch strength according to Table 15-23,9 equaling five percent arm impairment.
He also found a class 1 motor strength deficit of the left deltoids due to axillary nerve
impairment, according to Table 15-21,10 equaling five percent impairment, six percent
impairment due to left triceps weakness in the radial nerve distribution adjusted upward to nine
percent, and a class 1 motor strength deficit of the left biceps equaling five percent impairment
of the musculocutaneous nerve. Dr. Diamond totaled these impairments to equal 26 percent
impairment of the left arm. He then explained how he applied his findings to these tables and
grading schemes to arrive at 25 percent impairment of the right arm.
On June 27, 2010 Dr. Berman reviewed Dr. Diamond’s report. He found that
Dr. Diamond misapplied the A.M.A., Guides by rating individual nerves and muscle groups
instead of nerve roots originating in the cervical spine. Dr. Berman rated 12 percent impairment
of the right arm, seven percent impairment of the left arm and six percent impairment of each
lower extremity. Regarding the right arm, under Table 15-23, appellant had a GMCS of 1 based
on electrodiagnostic findings of motor delay, a GMFH of 2 for significant intermittent symptoms
and a GMPE of 2 due to objectively decreased sensation. Applying the net adjustment formula,
or 1 + 1 + 2, Dr. Berman divided the total of 5 by 3, the number of modifiers, averaging 1.66,
rounded upward to 2, resulting in five percent arm impairment due to carpal tunnel syndrome.
Regarding the left arm, he found a GMCS of 1, a GMFH of 1 and a GMPE of 2. Using the net
adjustment formula, resulting in the equation of 1 + 1 + 2 = 4, divided by 3, equaled 1.3, rounded
downward to 1, equaling a default value of two percent arm impairment. As Dr. Diamond found
a higher GMFH for the left arm, the medical adviser found three percent impairment of the left
arm. Dr. Berman addressed the spinal nerve impairment affecting the upper extremities. He
referred to the Spinal Nerve Impairment, Upper Extremity Impairment, Proposed Table 1 from
7

Table 16-8, page 519 of the sixth edition of the A.M.A., Guides is entitled “Clinical History Adjustment -Lower Extremities.”
8

Grade modifier for Physical Examination“(GMPE).”

9

Table 15-23, page 449 of the sixth edition of the A.M.A., Guides is entitled “Entrapment/Compression
Neuropathy Impairment.”
10

Table 15-21, page 436 of the sixth edition of the A.M.A., Guides is entitled “Peripheral Nerve Impairment:
Upper Extremity Impairments.”

4

the July/August 2009, The Guides Newsletter. He found seven percent impairment of each arm
due to a class 1 impairment of C5 equaling two percent, three percent impairment for C6 and two
percent impairment for C7. Dr. Diamond used the Combined Values Chart to rate 12 percent
impairment of the right arm and seven percent impairment of the left arm. Regarding the legs,
Dr. Berman referred to proposed Table 2 of the July/August 2009 newsletter, finding a moderate
sensory deficit of three percent for L4 and three percent for L5, for a total six percent impairment
of each lower extremity.
By decision dated July 1, 2010, OWCP granted appellant schedule awards for a 12
percent impairment of the left arm, 7 percent impairment of the right arm and 6 percent
impairment to each lower extremity.
Counsel requested a hearing, contending that the July 1, 2010 schedule award reversed
the upper extremity impairment percentages as found in 2007 by OWCP’s medical adviser. He
submitted an October 19, 2010 report from Dr. Diamond, who reviewed his report of 2005.
Counsel stated that left triceps strength, coinciding with the radial nerve, “which is nerve root C5
through T1, should be included in the impairment rating.” This would result in a 24 percent
impairment of the left upper extremity and a 22 percent impairment of the right upper extremity.
At the hearing, held on October 27, 2010, counsel contended that Dr. Diamond’s reports
demonstrated a greater percentage of impairment to the right arm and both lower extremities.
In a January 6, 2011 decision, OWCP’s hearing representative remanded the case finding
that the schedule award was in error, as it reversed the upper extremity percentages found by
OWCP’s medical examiner. By decision dated February 9, 2011, OWCP issued a corrected
schedule award for 12 percent impairment of the right upper extremity, 7 percent impairment of
the left upper extremity and 6 percent impairment of each lower extremity. In a February 16,
2011 letter, counsel requested a hearing.
By decision dated March 24, 2011, OWCP awarded appellant a schedule award for an
additional 5 percent impairment of the left arm, for a total of 10 percent.
In a March 29, 2011 letter, counsel requested a hearing.
By decision dated June 13, 2011, OWCP determined that the case was not in posture for a
decision as it had not properly determined the percentage of impairment to appellant’s left arm
under the sixth edition of the A.M.A., Guides. It set aside its March 24, 2011 decision and
referred the case to an OWCP medical director for a supplemental report.
In a February 8, 2011 report, Dr. Berman reviewed the record and opined that appellant
had a class 1, grade C impairment equaling two percent impairment of the C5 nerve root, three
percent impairment of the C6 nerve root and two percent impairment of the C7 nerve root,
resulting in seven percent impairment of the left arm for cervical radiculopathy. Using the
Combined Values Chart, he found that the 7 percent impairment for cervical radiculopathy,
combined with the 5 percent previously awarded, totaled 10 percent impairment of the left arm.
OWCP issued a February 9, 2011 decision granting 12 percent impairment of the right arm and 6
percent impairment of each leg.

5

Counsel requested a hearing, held on June 21, 2011, at which he asserted that there was
conflict of medical opinion between Dr. Diamond and Dr. Berman regarding the appropriate
percentages of right upper extremity and bilateral lower extremity impairment.
By decision dated June 13, 2011, an OWCP hearing representative remanded the case for
recalculation of the schedule award for the left arm. In a July 14, 2011 report, Dr. Berman
affirmed his prior rating of 10 percent impairment of the left arm due to carpal tunnel syndrome
and cervical nerve root compression.
By decision dated July 27, 2011, OWCP granted appellant an additional 5 percent
impairment of the left arm, for a total of 10 percent. Counsel requested a hearing by an
August 1, 2011 letter, held on November 16, 2011.
By decision dated September 1, 2011, an OWCP hearing representative remanded the
case to OWCP to consider Dr. Diamond’s November 12, 2009 and October 19, 2010 reports, to
determine if appellant sustained greater than 12 percent impairment of the right upper extremity
and 6 percent impairment to each lower extremity.
In an October 12, 2011 report, Dr. Berman reviewed Dr. Diamond’s reports and opined
that they did not support more than 12 percent impairment of the right arm or 6 percent
impairment of each leg. He found that Dr. Diamond misapplied the sixth edition of the A.M.A.,
Guides by rating the sciatic and femoral nerves, encompassing multiple nerve roots, rather than
the single nerve root rating method specified in the A.M.A., Guides. Regarding the right arm,
Dr. Diamond improperly rated both the C4, C5 and C6 cervical nerve roots and the median
nerve.
By decision dated October 20, 2011, OWCP denied appellant’s claim for additional
schedule awards on the grounds that the evidence submitted did not establish greater percentages
of impairment than 12 percent of the right arm or 6 percent for each lower extremity.
At a November 16, 2011 telephonic hearing regarding the percentage of left upper
extremity impairment, counsel asserted that OWCP should have based the schedule award on the
fifth edition of the A.M.A., Guides, and that there was a conflict of medical opinion between
Dr. Diamond and Dr. Berman.
By decision dated January 25, 2012, an OWCP hearing representative found that
appellant had not established greater than 10 percent impairment of the left arm. The hearing
representative found that OWCP properly utilized the sixth edition of the A.M.A., Guides in
assessing the percentages of impairment.
Counsel requested an oral hearing, held on February 27, 2012. At the hearing, he
contended that OWCP deprived appellant of a valuable property right by adjudicating her claim
under the sixth edition of the A.M.A., Guides although she timely submitted an adequate
impairment rating while the fifth edition of the A.M.A., Guides was in effect. Counsel submitted
2011 and 2012 progress notes from Dr. Bolno, who did not address the issue of permanent
impairment.

6

In a May 7, 2012 decision, an OWCP hearing representative affirmed the October 20,
2011 decision, finding that appellant did not establish more than 12 percent impairment of the
right arm and 6 percent impairment of each leg. The hearing representative found that an OWCP
medical adviser properly applied the appropriate portions of the sixth edition of the A.M.A.,
Guides to Dr. Diamond’s findings. The hearing representative found that OWCP did not unduly
delay processing appellant’s schedule award claim such that OWCP would be compelled to
calculate the schedule awards under the fifth edition of the A.M.A., Guides.
LEGAL PRECEDENT
The schedule award provision of FECA11 and its implementing regulations12 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, 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 has been adopted by the implementing regulations as the appropriate standard for
evaluating schedule losses.13
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the regulations.14 Because neither FECA nor the regulations provide for the
payment of a schedule award for the permanent loss of use of the back,15 no claimant is entitled
to such an award.16 However, in 1966, amendments to FECA modified the schedule award
provision to provide for an award for permanent impairment to a member of the body covered by
the schedule regardless of whether the cause of the impairment originated in a scheduled or
nonscheduled member. As the schedule award provision of FECA includes the extremities, a
claimant may be entitled to a schedule award for permanent impairment to an extremity even
though the cause of the impairment originated in the spine.17
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome, cervical and
lumbar sprains, a lumbar strain and aggravation of a herniated cervical disc. Appellant claimed a
schedule award on December 23, 2005. The Board notes that, although FECA does not provide
11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404.

13

Id. at § 10.404; Jacqueline S. Harris, 54 ECAB 139 (2002).

14

Henry B. Floyd, III, 52 ECAB 220 (2001).

15

FECA specifically excludes the back from the definition of “organ.” 5 U.S.C. § 8101(19).

16

Thomas Martinez, 54 ECAB 623 (2003).

17

See Thomas J. Engelhart, 50 ECAB 319 (1999).

7

for a schedule award for the back or spine, impairment of the extremities due to a spinal injury
may be compensable.18
In a July 7, 2005 report, Dr. Diamond, an attending osteopath, examined appellant and
rated impairment under the fifth edition of the A.M.A., Guides. He subsequently updated his
impairment ratings in 2009 and 2010 to address the sixth edition of the A.M.A., Guides. It
appears that the later impairment ratings were based on the physical examination findings of
2005. Dr. Diamond found 25 percent impairment of the right arm, 26 percent impairment of the
left arm and 13 percent impairment of each leg. Dr. Berman reviewed his report on June 6, 2010
and found that Dr. Diamond misapplied the A.M.A., Guides by expressing impairment by
muscle and innervation instead of spinal nerve roots. He used Table 15-23 to rate 12 percent
impairment of the right arm and 7 percent impairment of the left arm based on bilateral median
nerve entrapment at the wrist and C4, C5 and C6 nerve root impairments. For the right arm, the
medical adviser referred to Table 15-23, noting a GMCS of 1 for motor delay, a GMFH of 2 for
symptoms, and a GMPE of 2 due to decreased sensation. Applying the net adjustment formula,
he found a modifier of 2, resulting in five percent upper extremity impairment due to carpal
tunnel syndrome. Regarding the left upper extremity, the medical adviser found a GMCS of 1, a
GMFH of 1 and a GMPE of 2, resulting in a grade modifier of 1, equaling two percent upper
extremity impairment, adjusted to three percent based on Dr. Diamond’s GMFH determination.
Dr. Berman used Spinal Nerve Impairment, Upper Extremity Impairment, Proposed Table 1
from the July/August 2009, The Guides Newsletter, to find seven percent impairment of each
arm due to C5, C6 and C7 nerve root impairments. He combined the impairments to rate a 12
percent impairment of the right arm and 7 percent impairment of the left arm. Regarding the
legs, the medical adviser utilized proposed Table 2, finding six percent impairment of each lower
extremity for sensory deficit in the L4 and L5 nerve roots. Following additional development,
Dr. Berman found an additional 5 percent impairment of the left upper extremity due to C5 nerve
root impairment, combined to equal 10 percent.
The Board finds that Dr. Berman properly used the appropriate portions of the A.M.A.,
Guides to calculate a 12 percent impairment of the right upper extremity, 10 percent impairment
of the left upper extremity and 6 percent impairment of each lower extremity. Dr. Diamond
misapplied the sixth edition of the A.M.A., Guides. OWCP properly accorded Dr. Berman’s
opinion of the weight of the medical evidence. Its January 25 and May 7, 2012 decisions were
therefore proper under the facts and circumstances of this case.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
On appeal, counsel contends that appellant sustained greater impairment based on the
opinion of Dr. Diamond. Alternatively, he asserts a conflict between Dr. Diamond and
Dr. Berman. Counsel asserts that OWCP should have based its schedule awards on the 2007
reports of Dr. Berman. As noted, Dr. Diamond misapplied the A.M.A., Guides. Therefore, his

18

See id.

8

ratings of impairment are outweighed by those of Dr. Berman. As of May 2009, the sixth edition
of the A.M.A., Guides became applicable to all schedule award ratings.19
CONCLUSION
The Board finds that appellant has 12 percent impairment of the right arm, 10 percent
impairment of the left arm and 6 percent impairment of each lower extremity, for which she
received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the May 7 and January 25, 2012 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 19, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

19

As of May 1, 2009, the sixth edition of the A.M.A., Guides is used to calculate schedule awards. J.B., Docket
No. 09-2191 (issued May 14, 2010). The Board has held that the applicable date of the sixth edition of the A.M.A.,
Guides relates to the date of the schedule award decision, not the date of maximum medical improvement or when
the schedule award claim was filed. See C.R., Docket No. 11-1441 (issued January 12, 2012).

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.A., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL
FACILITIES ENGINEERING COMMAND,
APO, AE, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-1814
Issued: February 8, 2012

Case Submitted on the Record

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

JURISDICTION
On July 22, 2011 appellant, through her attorney, filed a timely appeal from a June 28,
2011 merit decision of the Office of Workers’ Compensation Programs’ (OWCP) hearing
representative which denied her traumatic injury claim. Pursuant to the Federal Employees’
Compensation Act (FECA)1 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 an injury in the performance of duty on
May 6, 2009.
On appeal, appellant’s counsel alleges that OWCP’s decision was contrary to fact and
law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On July 2, 2010 appellant, then a 63-year-old senior realty specialist, filed a traumatic
injury claim alleging that on May 7, 2009 she hurt her back when she picked up her suit case
from an airport carousel.2
In a June 30, 2009 letter, Dr. Ryan A. Bell, a Board-certified internist, stated that
appellant had a history of lower back pain that had greatly worsened over the past two months to
the point that she could not walk without considerable pain. He noted that a June 29, 2009
neurological evaluation indicated that appellant may benefit from surgical intervention and that
she requested to return to the United States for surgery and rehabilitation.
In a July 8, 2009 letter, the employing establishment explained that appellant began
working overseas on April 10, 2009 after signing a 36-month transportation agreement.
Appellant requested to be released from her transportation agreement due to medical reasons and
the human resources office recommended that her request be approved. On July 14, 2009 the
employing establishment approved her request to be released from her overseas service
agreement. Appellant also submitted correspondence between the employing establishment’s
human resources office and her supervisors stating that she did not inform the human resources
office of an on-the-job injury.3
On November 19, 2010 OWCP advised appellant that the evidence submitted was
insufficient to establish that she experienced the alleged incident that caused her injury and to
demonstrate that she suffered any diagnosed medical condition as a result of that incident. It
requested additional factual and medical evidence to support her claim.
In a December 21, 2010 decision, OWCP denied appellant’s claim finding that she failed
to meet her burden of proof to establish that she experienced the alleged May 7, 2009
employment incident and that she sustained a diagnosed medical condition as a result of the
alleged incident.
On December 30, 2010 appellant, through her representative, requested a telephone
hearing that was held on April 19, 2011. Her representative was present. Appellant reported that
she suffered a slipped disc in 2008 and underwent a microdiscectomy in 2006. She explained
that she was on temporary-duty assignment from Naples, Italy to Bahrain, Iraq from May 3
to 7, 2009. Appellant brought a suitcase that weighed about 20 pounds. When she arrived in
Bahrain, she picked up her suitcase from the conveyer belt and experienced a very sharp pain
2

During her telephone hearing, appellant clarified that the employment incident occurred on May 6, 2009 and
that the May 7, 2009 date on the claim form was a typographical error.
3

In an October 19, 2010 memorandum, the employing establishment noted that appellant did not notify her
supervisor of any claimed injury at the time that the alleged incident occurred but only requested to return early to
the United States for medical reasons. The employing establishment stated that individuals who would have firsthand knowledge of the reason for her early return had also transferred so any details regarding an alleged job injury
was unknown. In a November 10, 2010 e-mail, human resource specialist for the employing establishment stated
that the human resources office was only aware of a request for an early release due to medical reasons and was not
informed of any job-related injury and did not receive any information regarding an alleged job-related injury.

2

down her back. Appellant informed her supervisor that she hurt her back and her supervisor
volunteered to carry her suitcase for her. She stated that there were no witness statements
because the individuals she was traveling with did not see the incident, but she did tell them as
soon as it happened that she hurt her back. Appellant did not see a doctor until she arrived back
in Italy a few days later and was advised to rest for a few days. The pain, however, did not go
away. By the end of July, appellant was in so much pain that she could not walk. She was
referred to a neurosurgeon who recommended surgery.
On August 4, 2009 appellant returned to the United States for surgery. Her representative
pointed out that appellant’s doctor examined her on August 11, 2009 and indicated that she
picked up something wrong in Italy and felt pain down her right side.4 Appellant related the
various medical treatments she received and surgeries she underwent. Her representative noted
that he would submit the medical reports he mentioned.
In a June 28, 2011 decision, an OWCP hearing representative accepted that the May 7,
2009 incident occurred as alleged but found that the medical evidence was insufficient to
establish that she sustained any diagnosed condition as a result of the accepted event.5
LEGAL PRECEDENT
An employee seeking compensation under FECA6 has the burden of establishing the
essential elements of her claim by the weight of the reliable, probative and substantial evidence,7
including that she is an “employee” within the meaning of FECA8 and that she filed her claim
within the applicable time limitation.9 The employee must also establish that she sustained an
injury in the performance of duty as alleged and that her disability for work, if any, was causally
related to the employment injury.10
Casual relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical opinion evidence.11 Rationalized medical opinion
4

Appellant noted that the physician incorrectly stated that the incident in Italy when it actually occurred in
Bahrain, Iraq.
5

It pointed out that the only medical evidence submitted was Dr. Bell’s June 30, 2009 report, which did not
mention any May 7, 2009 work event or explain whether appellant’s back pain resulted from a specific incident or
event. The hearing representative also noted that, while additional medical evidence was discussed during the
hearing, no evidence was received following the hearing.
6

5 U.S.C. §§ 8101-8193.

7

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

8

See M.H., 59 ECAB 461 (2008); Emiliana de Guzman (Mother of Elpedio Mercado), 4 ECAB 357, 359 (1951);
see 5 U.S.C. § 8101(1).
9

R.C., 59 ECAB 42 (2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954); see 5 U.S.C. § 8122.

10

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

11

D.E., 58 ECAB 448 (2007); Mary J. Summers, 55 ECAB 730 (2004).

3

evidence is medical evidence which includes a physician’s rationalized opinion on whether there
is a causal relationship between the employee’s diagnosed condition and the specified
employment factors or incident.12 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 the specific employment factors identified by the employee.13
The Board has recognized that FECA covers an employee 24 hours a day when the
employee is on travel status and engaged in activities essential or incidental to such duties.14
ANALYSIS
Appellant alleged that on May 6, 2009 she sustained a low back and leg injury when she
picked up luggage at an airport carousel while on temporary travel status. It is not in dispute that
she was in the performance of duty at the time of the incident. In a December 21, 2010 decision,
OWCP denied appellant’s claim finding insufficient factual evidence to demonstrate that the
incident occurred as alleged and insufficient medical evidence establishing that the work event
caused any condition. In a June 28, 2011 decision, a hearing representative accepted that the
May 6, 2009 incident occurred as alleged but found the medical evidence insufficient to establish
that she sustained any diagnosed condition as a result of the accepted employment incident. The
Board finds that appellant failed to provide sufficient evidence demonstrating that she sustained
a back condition as a result of the May 6, 2009 employment incident.
The only medical evidence submitted was Dr. Bell’s June 30, 2009 report. Dr. Bell did
not provide any diagnosis for appellant’s condition but only noted that she suffered from back
pain that had worsened over the past two months. The Board has found, however, that pain is
not a compensable medical diagnosis.15 Dr. Bell also failed to provide any opinion on the cause
of appellant’s back pain or explain how her back pain resulted from the May 6, 2009 work event.
The Board has found that medical evidence that does not offer any opinion regarding the cause
of an employee’s condition is of limited probative value on the issue of causal relationship.16
Thus, Dr. Bell’s report is insufficient to establish appellant’s claim.
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship is rationalized medical opinion evidence.17 As appellant has not submitted
such rationalized medical opinion evidence in this case, she did not meet her burden of proof to
establish her claim.
12

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

13

B.B., 59 ECAB 234 (2007); D.S., Docket No. 09-860 (issued November 2, 2009).

14

See L.A., Docket No. 09-2778 (issued September 27, 2010).

15

Robert Broome, 55 ECAB 339, 342 (2004).

16

K.W., 59 ECAB 271 (2007); R.E., Docket No. 10-679 (issued November 16, 2010).

17

Mary J. Summers, supra note 11.

4

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 did not meet her burden of proof to establish that she
sustained an injury in the performance of duty on May 6, 2009.
ORDER
IT IS HEREBY ORDERED THAT the June 28, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 8, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF HOMELAND SECURITY,
)
IMMIGRATION & CUSTOMS
)
ENFORCEMENT, Long Beach, CA, Employer
)
___________________________________________ )
L.M., Appellant

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

Docket No. 10-2111
Issued: July 25, 2011

Case Submitted on the Record

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

JURISDICTION
On August 17, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) schedule award decision dated April 23, 2010. Pursuant to
the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the schedule award determination.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has more than
a two percent permanent impairment of her right leg of one percent impairment of her left leg for
which she received schedule awards.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 6, 2003 appellant, then a 48-year-old supervisory special agent, was injured
when her left foot was caught in a seam on a floor where carpet and tile joined. She stopped
work on June 6, 2003 and returned on June 16, 2003. OWCP accepted the claim for contusions
of both knees, internal derangement of the left knee and contusion to the head. It subsequently
accepted old bucket handle tear of the right medial meniscus and bilateral tear of the medial
meniscus. Appellant underwent left knee arthroscopies in August 2003 and June 2004. She also
underwent a partial medial meniscectomy at the right knee in September 2003. Appellant
underwent additional right knee arthroscopic surgery in May 2006. She received compensation
benefits.2
On November 12, 2008 appellant filed a claim for a schedule award.
In a report dated December 16, 2008, OWCP’s medical adviser reviewed appellant’s
history of injury and treatment. He utilized the American Medical Association, Guides to the
Evaluation of Permanent Impairment (5th ed. 2001) to rate two percent impairment of the left leg
for the partial meniscectomy and five percent impairment based upon evidence of
roentgenographic narrowing and tenderness and crepitus. OWCP’s medical adviser combined
these impairments to find seven percent left leg impairment. He cautioned that this was not a
final rating as the surgical reports from August 2003 and June 2004 required review to verify that
appellant underwent a partial meniscectomy. OWCP’s medical adviser noted that the right knee
was not at maximum medical improvement as additional surgery was requested.
On March 6, 2009 OWCP referred appellant for a second opinion, together with a
statement of accepted facts, a set of questions and the medical record, to Dr. Aubrey Swartz, a
Board-certified orthopedic surgeon.
In a report dated May 1, 2009, Dr. Swartz described appellant’s history of injury and
treatment. He utilized A.M.A., Guides (6th ed. 2009). Dr. Swartz examined appellant and noted
findings which included a painful and tender right heel, a mildly tender left heel and
hyperalgesias in a stocking fashion in the right leg from the knee to the toes with pinwheel
testing and normal sensation in the left leg. He found no atrophy in the lower extremities and
good range of motion from 0 to 130 degrees in the right knee and 0 to 140 degrees in the left
knee. Dr. Swartz also found patellofemoral compression and medial and lateral tenderness in
both knees. For the right knee, he noted that the diagnoses included partial medial
meniscectomy, partial medial meniscus tear and patellar chondromalacia. Dr. Swartz advised
that the primary diagnosis would be the medial meniscus tear, which underwent a partial medial
meniscectomy. He referred to the knee regional grid, Table 16-3 and determined that, for a
meniscal injury with a partial medial meniscectomy or meniscus tear, appellant would be placed
in a class 1 with a default value of two percent.3

2

On May 13, 2008 OWCP found that appellant failed, without good cause, to undergo vocational rehabilitation
and reduced her compensation to reflect what her earnings would be as a claims examiner.
3

A.M.A., Guides 509.

2

Dr. Swartz referred to Table 16-6 and noted that a Functional History (GMFH) grade
modifier adjustment was 1 based on appellant’s complaints of pain and a burning sensation in the
right knee.4 He referred to the physical examination adjustment pursuant to Table 16-75 and
determined that she would be in a grade modifier 1 as she had limited squatting capacity and
pain with McMurray’s maneuver in the right knee and patellofemoral compression. Dr. Swartz
advised that no atrophy was noted. He referred to Table 16-8 regarding Clinical Studies
(GMCS) adjustments and advised that there were mild irregularities on the patellar surface of the
right knee with her history of chondromalacia and accompanying surgery.6 Dr. Swartz classified
appellant with a mild problem which correlated to a grade 1 modifier. He noted applying the net
adjustment formula and determined that she had one percent impairment of the right leg. For the
left leg, Dr. Swartz referenced Table 16-3 on page 510 and advised that “under cruciate or
collateral ligament injury,” class 0 or no impairment because there was no instability. However,
he also noted a GMFH modifier of 1, Physical Examination (GMPE) modifier of 0 and GMCS
modifier of 1. Dr. Swartz applied the net adjustment formula to determine a net adjustment of 2.
Based on this, he explained that his calculations would be “two up from the initial classification
of 0, which would bring us into class 1, category C, which would be a [one percent] lower
extremity impairment.” Dr. Swartz opined that appellant had one percent impairment for both
the right and left lower extremities.
In a July 11, 2009 report, OWCP’s medical adviser agreed with Dr. Swartz, with the
exception of the left lower extremity. He referred to Table 16-3, page 509, to determine that
appellant had an impairment of two percent impairment of the right leg, due to her partial medial
meniscectomy and one percent permanent impairment of the left leg due to “residual problems”
in the left knee. OWCP’s medical adviser explained the discrepancy for the right leg. He
referred to Table 16-3 and determined that a patient who had undergone a partial medial
meniscectomy, without an additional grade modifier would be entitled to an impairment of two
percent to the lower extremity. OWCP’s medical adviser indicated that appellant reached
maximum medical improvement on May 1, 2009.
On July 22, 2009 OWCP granted appellant a schedule award for two percent impairment
of the right leg and one percent impairment of the left leg. The award covered a period of 8.64
weeks from May 1 to June 30, 2009.
On August 15, 2009 appellant requested an oral hearing.
In a November 18, 2009 decision, OWCP’s hearing representative affirmed OWCP’s
July 22, 2009 decision following a review of the written record.
In a letter dated December 14, 2009, appellant indicated that she had requested a hearing.
She argued that OWCP should vacate the November 18, 2009 decision and provide her with a
hearing. In a January 4, 2010 decision, OWCP vacated the November 18, 2009 decision and
4

Id. at 516.

5

Id. at 517.

6

Id. at 519.

3

remanded the case for appropriate action consistent with her request for a hearing. The hearing
was held on February 1, 2010.7
By decision dated April 23, 2010, OWCP’s hearing representative affirmed the July 22,
2009 decision.
LEGAL PRECEDENT
The schedule award provision of FECA8 and its implementing federal regulations9 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.10 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.11
The sixth edition requires identifying the impairment class for the Diagnosed Condition
(CDX), which is then adjusted by grade modifiers based on GMFH, GMPE and GMCS.12 The
net adjustment formula is GMFH-CDX + GMPE-CDX + GMCS-CDX.13
Office procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with OWCP’s medical adviser
providing rationale for the percentage of impairment specified.14
ANALYSIS
OWCP accepted appellant’s claim for appellant’s claim for contusions of both knees,
internal derangement of the left knee, contusion to the head, old bucket handle tear of the medial
7

In a letter dated January 4, 2010, appellant requested a postponement of her hearing. She indicated that she
wanted a copy of an audiotape from her examination with Dr. Swartz. Appellant alleged that Dr. Swartz either
overlooked her medical record or omitted medical information. Her request for a postponement of the hearing was
denied.
8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id. at § 10.404(a).

11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
12

A.M.A., Guides 494-531; see J.B., Docket No. 09-2191 (issued May 14, 2010).

13

Id. at 521.

14

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

4

meniscus right, tear of the medial meniscus bilateral. Appellant underwent left knee arthroscopy
in August 2003 and June 2004. She also underwent a partial medial meniscectomy, right knee
September 2003 and right knee arthroscopic surgery in May 2006.
In a May 1, 2009 report, Dr. Swartz, the second opinion physician, noted appellant’s
history, examined her and rated permanent impairment. The sixth edition of the A.M.A., Guides
provides that lower extremity impairments be classified by diagnosis which is then adjusted by
grade modifiers according to the formula noted above.15 In this case, regarding the right leg,
Dr. Swartz referred to the knee regional grid, Table 16-3, page 509 and determined that, for a
meniscal injury with a partial medial meniscectomy or meniscus tear, appellant would be placed
in a class 1 with a default value of two percent. He also found grade modifiers of 1 for GMPE
findings, functional complaints and GMCS under Table 16-6 through Table 16-8 and applied the
net adjustment formula.16 Dr. Swartz found a net adjustment of 0. He determined the class 1
impairment without adjustment for the right leg, equated to one percent impairment for the right
leg. The Board notes that the default impairment, grade C, for a class 1 partial medial
meniscectomy, page 509 of the A.M.A., Guides, is two percent impairment, not one percent. In
his July 11, 2009 report, OWCP’s medical adviser properly noted this error by Dr. Swartz and
explained that appellant had two percent right leg impairment, which is what OWCP awarded
her. The Board finds there is no medical evidence conforming with the A.M.A., Guides which
establishes more than two percent impairment of the right leg.
The Board finds that the case is not in posture for a decision regarding permanent
impairment of the left leg. For the left leg, Dr. Swartz referenced Table 16-3 on page 510,
“under cruciate or collateral ligament injury.” He found that appellant was class 0 or no
impairment, as she had instability. This is correct as class 0 for cruciate or collateral ligament
injury allows for no impairment. However, Dr. Swartz proceeded to find grade modifiers of 1
for GMFH and GMCS and advised that the net adjustment formula resulted in a net adjustment
of two. Based on this, he stated that this moved appellant from class 0 to class 1 for impairment
of one percent. However, movement from class 0 to class one based on grade modifiers is not
allowed by the A.M.A., Guides. The A.M.A., Guides provide that, while grade modifiers allow
movement within a class, they do not allow movement into a different class.17 Furthermore, if
class 1 were established for a cruciate or collateral ligament injury in Table 16-3, the range of
impairment is 7 to 13 percent. A rating of one percent is not provided for a class 1 cruciate or
collateral ligament injury in Table 16-3. Dr. Swartz provided no other reasoning to explain his
left leg rating.
OWCP’s medical adviser also found one percent impairment of the left leg but did not
clearly explain his rating under the A.M.A., Guides. He referred to an unspecified provision in
Table 16-3 at page 509 and only attributed impairment to “residual problems with the left knee.”
OWCP’s medical adviser did not note a specific diagnosis in the A.M.A., Guides, reference any
grade modifiers or indicate that he applied the net adjustment formula. As such, OWCP’s
15

20 C.F.R. § 10.404.

16

See A.M.A., Guides 516, 521.

17

Id. at 497.

5

medical adviser’s opinion regarding left leg impairment is not in conformance with the A.M.A.,
Guides. As neither Dr. Swartz nor OWCP’s medical adviser provided a left leg impairment
rating in conformance with the A.M.A., Guides, their opinions are insufficient to establish the
extent of left leg impairment.18
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.19
The Board will remand the case for further medical development regarding appellant’s
left leg impairment. OWCP should obtain a new and reasoned medical opinion regarding the
extent of appellant’s left leg impairment pursuant to the A.M.A., Guides. Following this and any
other further development as deemed necessary, OWCP shall issue an appropriate merit decision.
On appeal, appellant essentially expresses dissatisfaction with the results of her second
opinion examination. The Board notes that there is no evidence to support the examination was
improper. As noted, the evidence establishes that appellant has no more than two percent
impairment of the right leg. Furthermore, the case is remanded for further medical development
regarding permanent impairment of the left leg.20
CONCLUSION
The Board finds that appellant has no more than two percent impairment of the right leg
for which she received a schedule award. The Board further finds that the case is not in posture
for decision with regards to appellant’s left leg impairment.

18

See I.F., Docket No. 08-2321 (issued May 21, 2009) (an opinion which is not based upon the standards adopted
by OWCP and approved by the Board as appropriate for evaluating schedule losses is of diminished probative value
in determining the extent of permanent impairment).
19

Horace L. Fuller, 53 ECAB 775, 777 (2002).

20

Appellant contends that she would like to submit additional evidence in support of her claim. However, the
Board cannot consider new evidence, as its review of the case is limited to the evidence of record which was before
OWCP at the time of its final decision. 20 C.F.R. § 501.2(c). Appellant may wish to submit additional evidence to
OWCP for its consideration.

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ORDER
IT IS HEREBY ORDERED THAT the April 23, 2010 Office of Workers’ Compensation
Programs decision is affirmed in part and set aside. The case is remanded for further action
consistent with this decision.
Issued: July 25, 2011
Washington, DC

Richard J. Daschbach, Chief 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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