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

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Appearances:
TWR Appeals Case Management, for the appellant
Office of Solicitor, for the Director

Docket No. 15-1940
Issued: February 24, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 29, 2015 appellant, through her representative, filed a timely appeal from
an August 19, 2015 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 established disability for the period beginning
June 18, 2013, causally related to an August 28, 2012 employment injury.
FACTUAL HISTORY
On August 28, 2012 appellant, then a 54-year-old secretary, sustained a traumatic injury
in the performance of duty when she fell to the floor while moving an office chair. She stopped

1

5 U.S.C. § 8101 et seq.

work on the date of injury and returned to modified duty on August 29, 2012.
received intermittent continuation of pay from August 31 to October 14, 2012.

Appellant

OWCP accepted the claim for sprain of the right shoulder, elbow, forearm, wrist, knee,
and neck. The claim was later expanded to include back sprain of the lumbar region.
Initial disability status reports limited appellant to working half days. In a September 27,
2012 report, Dr. Yusuf Mosuro, Board-certified in anesthesiology and pain medicine, noted the
history of the August 28, 2012 employment injury and her subsequent treatment. Appellant had
a prior history of cervical radiculopathy. Dr. Mosuro noted findings and diagnosed bilateral
shoulder sprain, bilateral elbow sprain, neck sprain, right wrist and hand sprain, lumbar sprain,
and right knee sprain. He opined that the diagnosed conditions were due to the work injury.
Dr. Mosuro advised that appellant should continue working half days with no lifting over 10
pounds. Diagnostic reports revealed small right knee joint effusion, intrasubstance degeneration
within the posterior horn of the medial meniscus, foraminal disc bulge at L5-S1 with
degeneration, mild disc bulge at L4-5, and a two millimeter ossific density along the lateral
margin of the right lateral humeral epicondyle.
Appellant continued working a modified schedule of four and a half hours per day. She
received wage-loss compensation for the remaining hours for the period January 14 to 31, 2013.
On January 29, 2013 appellant accepted a light-duty position with the employing establishment
restricting work to four and a half hours per day.
Dr. Mosuro submitted a February 14, 2013 report which he advised that appellant
complained of pain and discomfort in her shoulders and knees. On examination of the shoulder
he noted tenderness on palpation of the shoulders worse of the right, 160 degrees forward flexion
of the right, 160 degrees of abduction, 60 degrees internal rotation on the right, and 40 degrees
internal rotation on the left. Examination of the low back revealed negative straight leg raising,
reduced flexion to 40 degrees, and tenderness on palpation of the L4-5, L5-S1, and bilateral
sacroiliac joint. On examination of the right knee Dr. Mosuro noted tenderness of palpation on
the anterior knee on the medial joint line, flexion at 110 degrees, and extension at 0 degrees. He
recommended that appellant continue working four and a half hours per day taking at least one
10-minute break every two hours to avoid prolonged sitting. Dr. Mosuro recommended aquatic
therapy and further testing.
OWCP referred appellant on June 27, 2013, together with the medical record and a
statement of accepted facts, to Dr. Donald Mauldin, Board-certified in orthopedics, for a second
opinion evaluation regarding the need for requested treatment, appellant’s work-related
conditions, and work status. In a July 25, 2013 report, Dr. Mauldin noted that appellant was
injured when her office chair slipped from under her causing her to fall onto the floor. On
examination he noted that appellant appeared to have definite symptom magnification.
Examination of the cervical spine revealed a voluntary restriction of approximately 30 percent of
full range of motion, grimacing with passive range of motion, no palpable spasms, negative
Spurling, and no nerve root tension signs or compression signs neurologically. Dr. Mauldin
noted no significant atrophy in the upper extremity, no gross motor deficit in any major muscle
group in the upper extremity, positive Waddell findings with truncal rotation, negative straight
leg raising seated to 80 degrees with no back or leg complaints, supine at 60 degrees with
complaints of bilateral leg pain with no radicular pain, free rotation of the hips with no evidence
2

of sacroiliac joint dysfunction. Examination of the elbows and wrists revealed full symmetrical
range of motion with no complaints of pain. On examination of the right shoulder Dr. Mauldin
noted no pain with passive right shoulder range of motion, good mobility, and no atrophy. He
opined that, based on the lack of objective findings that a significant structural injury occurred,
appellant’s accepted soft tissue contusion sprains had resolved within 90 days. Dr. Mauldin
further opined that there was no indication that additional physical therapy, aquatic therapy, or
functional capacity evaluation was necessary. He advised that she was capable of working a full
eight to nine hours per day in her preinjury position.
A July 7, 2013 hospital report advised that appellant sustained a back sprain related to a
nonwork-related motor vehicle accident. In a July 9, 2013 statement, appellant notified OWCP
that she had been involved in a motor vehicle accident on July 7, 2013. She noted that she had
pain in her neck, arms, legs, lower back, and right knee following the accident. Appellant
advised that due to her injuries she was unable to work that week.
A physician assistant advised on July 10, 2013 that appellant was released to light-duty
work on July 15, 2013. She advised that appellant was unable to do any heavy lifting, twisting,
or bending.
By letter dated August 7, 2013, OWCP requested that Dr. Mosuro respond to
Dr. Mauldin’s opinion that appellant was capable of returning to work nine hours per day. In a
September 4, 2013 response, Dr. Mosuro expressed no opinion.
OWCP received additional claims for intermittent wage loss in August 2013 for periods
of time beginning April 22, 2013. The claims were generally for up to 4.5 hours of
compensation each day. By letters dated August 8 and 30, 2013, OWCP advised appellant that
her claims for compensation could not be processed as there was insufficient medical evidence to
support that she could only work part time.
Appellant submitted an August 26, 2013 report from Dr. Louis Train, Board-certified in
family medicine and an associate of Dr. Mosuro. Dr. Train advised that appellant injured her
right knee, low back, right hip, elbow, and neck when she fell from her chair at work. He noted
that appellant had a preexisting injury to her C5, C6, and C7 discs from a June 3, 2004 motor
vehicle accident; however, appellant related that she had been pain free for a year prior to the
work injury. Dr. Train also noted that appellant had been involved in another motor vehicle
accident on July 7, 2013 where she suffered a low back sprain. He advised that she was off work
for one week and later returned to work pain free. On examination of the neck Dr. Train noted
45 degrees rotation, abduction at 30 degrees, and pain in the C5 from a head compression test.
Further examination revealed normal range of motion and tenderness of the supraspinatus muscle
and tendon, tenderness of the levator scapulae muscle, normal range of motion of the right and
left shoulder, normal range of motion of the lower back, and bilateral sacroiliac tenderness.
Dr. Train noted that appellant had a history of cervical radiculopathy and diagnosed neck sprain,
low back sprain, sacroiliitis, sprained right hip, internal derangement of the right knee, sprains of
both shoulders, and right femoral trochanteric bursitis. He recommended keeping appellant off
work.
Dr. Train’s September 30, 2013 report noted that appellant’s lumbar spine was in
constant pain, particularly with sitting and standing for a half hour. Examination revealed
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bilateral rotation of the neck at 45 degrees, abduction at 45 degrees, and muscle spasms from C1
through T1 paravertebral muscles, 45 degrees of lumbar flexion, negative straight left raising,
tenderness of both sacroiliacs, and right knee swelling. Dr. Train noted that appellant’s knee
contusion caused inflammation resulting in vastus medialis which caused riding right patella
which chews up the knee as she walks. He advised that appellant was unable to sit, stand, or
walk for more than half an hour and was therefore incapable of work.
By decision dated November 5, 2013, OWCP denied appellant’s claim for compensation
for the period June 18, 2013 and ongoing finding that the medical evidence did not support
disability due to the August 28, 2012 work injury.2 Appellant requested reconsideration on
January 21, 2014.
Appellant provided November 25 and December 4, 2013 reports from Dr. Train in which
he advised that appellant had sustained an L4-L5 disc injury attributable to the accepted work
injury. He noted that she returned to work in April 2013 working four and a half hours per day
and that she continued having discomfort in her right knee. Dr. Train recommended that she
continue a half day of work as it was as much as she could tolerate. He noted that she was
involved in a motor vehicle accident on June 7, 2013, but opined that the accident did not
contribute to her injuries. Dr. Train reiterated his examination findings.3
By decision dated April 25, 2014, OWCP denied modification of its prior decision.4
On September 30, 2014 appellant requested reconsideration. She submitted multiple
muscle strength testing and physical therapy reports.
Dr. Train provided September 8 and October 16, 2014 reports which advised that
appellant complained of right hip and right lateral thigh pain. Examination revealed lower back
range of motion within normal limits, tenderness of the right piriformis, right femoral trochanter,
right lateral thigh, and sacroiliac joint.
In an October 21, 2014 report, Dr. Reginald Newsome, a Board-certified anesthesiologist,
advised that appellant complained of right knee and low back pain. He noted that she had a
history of chronic numbness, pain, and arthritis. Dr. Newsome made findings on examination
and advised that appellant was scheduled to receive a right intra-articular knee steroid injection.
An October 30, 2014 magnetic resonance imaging (MRI) scan report, evaluated by
Dr. Alexander Sardina, a Board-certified diagnostic radiologist, reflected minimal soft tissue
swelling of the anterior medial aspect of the knee and no evidence of internal derangement.5
In a December 30, 2014 decision, OWCP denied modification of its prior decision.
2

This decision superseded an October 22, 2013 OWCP decision.

3

On December 31, 2013 appellant retired from the employing establishment.

4

This decision superseded an April 21, 2015 OWCP decision.

5

In a January 8, 2015 diagnostic report, Dr. Sardina advised that an MRI scan of the left knee revealed
nonspecific soft tissue inflammation posterior to the lateral facet of the patella.

4

Appellant continued submitting evidence. Dr. Train, in a November 17, 2014 report,
reiterated the history of the work injury. He advised that the TOS diagnosis that he previously
assessed was resolved. Dr. Train noted that the neck sprain was improving and requested that
sacroiliitis be included as an accepted condition.
In a December 22, 2015 report, Dr. Newsome advised that appellant had improved right
knee pain and noted that she would continue with diagnostic lumbar epidural steroid injections.
In a December 23, 2014 report, Dr. Novarro Stafford, a family medicine practitioner and
an associate of Dr. Train, provided the history of injury and appellant’s treatment history. He
assessed resolving bilateral shoulder pain, elbow sprain, cervical sprain, resolved wrist sprain,
lumbar sprain, and right knee sprain. Dr. Stafford opined that appellant’s condition was work
related. He noted that appellant had a “long history of disability secondary to the injury which
occurred on August 28, 2012.” In a January 14, 2015 diagnostic report, Dr. Stafford advised that
a nerve conduction study was grossly unremarkable.
Dr. Stafford, on January 30, 2015, advised that appellant was under his care for her workrelated accepted conditions. He noted that appellant returned to work for four and a half hours
per day from September 2012 through December 2013. Dr. Stafford noted that she worked these
hours daily with the exception of one week in July when she was off. He noted that appellant
retired on December 31, 2013, yet she did not receive the compensation for the period
September 1, 2012 through December 31, 2013.
On February 9, 2015 appellant requested reconsideration. In a February 10, 2015 report,
Dr. Stafford reiterated the history of the injury, imaging results, and appellant’s treatment
history. He assessed resolving bilateral shoulder pain, elbow sprain, cervical sprain, resolved
wrist sprain, lumbar sprain, and right knee sprain. Dr. Stafford opined that appellant’s condition
was work related. In March 10 and April 14, 2015 reports, he reiterated the history and findings
found in his earlier reports.
In a February 16, 2014 report, Dr. Newsome advised that appellant was experiencing pain
in the lower back. He noted that an MRI scan of the lumbar spine revealed multilevel disc
herniation and advised that appellant would receive a lumbar epidural steroid injection.
By decision dated August 19, 2015, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
A claimant has the burden of proving by a preponderance of the evidence that he or she is
disabled for work as a result of an accepted employment injury and submit medical evidence for
each period of disability claimed.6 Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues.7 The issue of
whether a particular injury causes disability for work must be resolved by competent medical

6

See Fereidoon Kharabi, 52 ECAB 291 (2001).

7

Id.

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evidence.8 To meet this burden, a claimant must submit rationalized medical opinion evidence,
based on a complete factual and medical background, supporting a causal relationship between
the alleged disabling condition and the accepted injury.9
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation. For each period of disability claimed, the employee has the burden
of establishing that he or she was disabled for work as a result of the accepted employment
injury.10
ANALYSIS
The Board finds that appellant had not established disability for the period commencing
June 18, 2013 due to the August 28, 2012 employment injury accepted for sprain of the right
shoulder, elbow, forearm, wrist, knee, neck, and lumbar spine.
In support of her claim for disability, appellant submitted many reports from Dr. Train.
On August 26, 2013 Dr. Train noted that she had a preexisting injury to her C5, C6, and C7 discs
from a June 3, 2004 motor vehicle accident as well as a history of cervical radiculopathy. He
also noted that appellant had a July 7, 2013 motor vehicle accident that caused a low back sprain.
Dr. Train advised that she was off work for one week and later returned to work pain free. He
assessed neck sprain, low back sprain, sacroiliitis, sprained right hip, internal derangement of the
right knee, sprains of both shoulders, and right femoral trochanteric bursitis. Dr. Train
recommended keeping appellant off work. On September 30, 2013 he noted that appellant’s
lumbar spine was in constant pain, that her knee condition remained symptomatic, and that she
could not work. In his November 25, 2013 report, Dr. Train advised that appellant had an L4-L5
disc injury attributable to the accepted work injury. He noted that she returned to work on
April 2013 working four and a half hours per day and continued having right knee discomfort.
Dr. Train recommended that she continue working half days as it was as much as she could
tolerate. He asserted that the June 7, 2013 motor vehicle accident did not contribute to her
injuries. On December 4, 2013 Dr. Train reported appellant’s continuing symptoms and advised
that her distress was too great for her to work.
In none of these reports does Dr. Train provide a medically-reasoned explanation for why
appellant could not work full time for the specific claimed periods because of the August 28,
2012 work injury. As noted, appellant must submit rationalized medical evidence supporting
causal relationship between the disabling condition and the accepted injury. Furthermore, the
medical evidence must directly address the specific dates of disability for work for which
compensation is claimed.11 The need for medical rationale is particularly important where the
record shows that appellant has a preexisting cervical condition as well as two previous
8

See Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

9

C.S., Docket No. 08-2218 (issued August 7, 2009).

10

Sandra D. Pruitt, 57 ECAB 126 (2005).

11

See supra notes 9 and 10.

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nonwork-related motor vehicle accidents. Dr. Train also appears to base appellant’s inability to
work on her subjective complaints. A complaint of too much pain to work without more support
does not establish disability for work.12 Dr. Train did not provide a discussion of how any
objective medical findings attributable to the accepted conditions supported that appellant could
not perform her job duties for specific periods. Other reports from Dr. Train are not
contemporaneous13 and do not discuss the period of disability commencing June 18, 2013
through appellant’s retirement from work.
Appellant also provided several reports from Dr. Stafford who supported that she had
ongoing work-related conditions for which she had disability. In his January 30, 2015 report,
Dr. Stafford noted that appellant returned to work for four and a half hours per day from
September 2012 through December 2013. He contended that appellant did not receive the
appropriate compensation for the period September 1, 2012 through December 31, 2013.14
Dr. Stafford’s report is not contemporaneous and this and his other reports do not provide
sufficient explanation as to why appellant was only able to work four and a half hours per day
due to the work injury and why any such disability was not attributable to nonemploymentrelated conditions. As a result it is insufficient to discharge appellant’s burden of proof.
Likewise reports from Dr. Mosuro, who treated appellant at the time of the onset of the
claimed disability, did not provide a reasoned opinion explaining why appellant could not work
full time, due to the work injury, for the specific periods in which compensation is claimed.
When OWCP asked for Dr. Mosuro, on August 7, 2013, to comment on Dr. Mauldin’s report,
which found no work-related disability, Dr. Mosuro provided no responsive opinion. His reports
are insufficient to establish any of the claimed periods of disability.
Other medical evidence of record is of limited probative value as it does not address the
period of claimed disability commencing on June 18, 2013. Thus, these reports are insufficient
to establish the claim for such periods.15 Appellant also provided reports from physical
therapists and a physician assistant. These documents do not constitute competent medical
evidence as they are not from a physician.16

12

See L.A., Docket No. 08-1988 (issued April 8, 2009) (a conclusion based on appellant’s subjective complaints
of pain rather than on any objective tests insufficient to establish a claim).
13

See S.S., 59 ECAB 315 (2008) (the Board has held that contemporaneous evidence is entitled to greater
probative value than later evidence).
14

It is unclear if Dr. Stafford has an accurate history of the claim as appellant did receive intermittent
continuation of pay from August 31 to October 14, 2012 and intermittent wage-loss compensation from January 14
to 31, 2013. Medical conclusions based on inaccurate or incomplete histories are of diminished probative value.
Beverly R. Jones, 55 ECAB 411 (2004).
15

See supra note 10.

16

A.C., Docket No. 08-1453 (issued November 18, 2008) (records from a physical therapist do not constitute
competent medical opinion); L.L., Docket No. 13-829 (issued August 20, 2013) (a physician assistant not a
physician under FECA). See 5 U.S.C. § 8101(2). This subsection defines the term “physician.” See also Charley V.B.
Harley, 2 ECAB 208, 211 (1949) (where the Board held that medical opinion, in general, can only be given by a
qualified physician).

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Furthermore, OWCP further developed the claim by referring appellant to Dr. Mauldin.
In his July 25, 2013 report, Dr. Mauldin related the history of appellant’s injury and noted his
findings. He opined that, due to a lack of objective findings, no significant structural injury had
occurred and indicated that appellant’s accepted conditions resolved within 90 days.
Dr. Mauldin further opined that there was no further treatment of therapy needed for the work
injury. He advised that appellant was capable of working full time in her preinjury position.
Dr. Mauldin found no basis on which to attribute any disability to the accepted work injury.
On appeal appellant argues that medical reports from Dr. Train established her claimed
disability from work. As explained above, these reports are not sufficient to establish the claim
as Dr. Train did not provide sufficient medical reasoning to support his conclusions that
appellant had work-related disability for specific claimed periods.
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 disability for
the period commencing on June 18, 2013 causally related to an August 28, 2012 employment
injury.
ORDER
IT IS HEREBY ORDERED THAT the August 19, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 24, 2016
Washington, DC

Colleen Duffy Kiko, 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
__________________________________________
A.Z., Appellant
and
DEPARTMENT OF THE AIR FORCE, AIR
MOBILITY COMMAND, McCHORD AIR
FORCE BASE, WA, Employer
__________________________________________
Appearances:
John Goodwin, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 06-1480
Issued: February 28, 2007

Oral Argument February 13, 2007

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 12, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated May 22, 2006 which reduced her compensation
benefits based on her capacity to earn wages in the constructed position of case aid. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office met its burden of proof to reduce appellant’s
compensation benefits based on her capacity to earn wages as a case aid.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated January 15, 2002, the
Board reversed a suitable work termination, finding that a conflict of medical opinion existed
between appellant’s attending physician, Dr. Anthony G. Johnson, a Board-certified family
physician, and Dr. William T. Thieme, Board-certified in orthopedic surgery, regarding whether

appellant could perform the duties of the offered position.1 Subsequent to the Board’s
January 15, 2002 decision, appellant was returned to the periodic rolls.
On March 26, 2003 the Office referred appellant to Dr. Harry H. Kretzler, a Boardcertified orthopedic surgeon, to determine her current diagnoses, whether they were work-related
and whether she had work restrictions.2 In a report dated April 8, 2003, Dr. Kretzler noted his
review of the record, the history of injury and appellant’s current symptoms. Following physical
examination, he diagnosed degenerative disc disease at C5-6 and C6-7 which predated the onset
of neck pain caused by employment exposure. Dr. Kretzler also diagnosed bilateral carpal tunnel
syndrome more severe on the left, preexisting degenerative joint disease of the acromioclavicular
joint and employment-related right shoulder rotator cuff strain and impingement syndrome. He
advised that he was “hard put” to find that her carpal tunnel syndrome was related to work
activities, noting that she had fairly marked degenerative arthritis of the hands which became
worse in the five years since she stopped work. Dr. Kretzler noted that appellant did not give her
“all” in grip strength testing and opined that she could do sedentary work that would not require
much overhead work or gripping. In a work capacity evaluation he advised that she could work
eight hours a day with no reaching above the shoulders and one to two hours of repetitive
movements of the wrists. Pushing, pulling and lifting were limited to 10 pounds.
On September 9, 2004 appellant was referred to Tim Condon, a rehabilitation counselor,
for vocational rehabilitation. On March 8, 2005, the Office approved a training program at
Tacoma Community College. Training was completed on December 16, 2005 and appellant was
unable to secure employment. On March 31, 2006 the vocational counselor identified the
positions of social services aid and case aid as within appellant’s work restrictions and
reasonably available in the local labor market. By letter dated April 18, 2006, the Office
proposed to reduce appellant’s compensation benefits based on her capacity to earn wages as a
case aid. The Office advised appellant that, if she disagreed with the proposed reduction, she
should submit additional evidence or argument within 30 days. In a response dated May 5, 2006,
appellant disagreed with the proposed reduction, stating that she had “been off work a long time
and there is often discomfort.”
By decision dated May 22, 2006, the Office reduced appellant’s compensation benefits,
effective May 19, 2006, based on her capacity to earn wages as a case aid.
LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.3 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally

1

Docket No. 01-883.

2

The Office characterized Dr. Kretzler as a second opinion physician.

3

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

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disabled for all gainful employment, is entitled to compensation computed on loss of wageearning capacity.4
Section 8115 of the Federal Employees’ Compensation Act5 and Office regulations
provide that wage-earning capacity is determined by the actual wages received by an employee if
the earnings fairly and reasonably represent her wage-earning capacity. If the actual earnings do
not fairly and reasonably represent wage-earning capacity or the employee has no actual
earnings, her wage-earning capacity is determined with due regard to the nature of her injury, the
degree of physical impairment, her usual employment, her age, her qualifications for other
employment, the availability of suitable employment and other factors or circumstances which
may affect her wage-earning capacity in her disabled condition.6
The Office must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The
medical evidence upon which the Office relies must provide a detailed description of the
condition.7 Additionally, the Board has held that a wage-earning capacity determination must be
based on a reasonably current medical evaluation.8
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by the Office for selection of a position listed in the Department of Labor, Dictionary of
Occupational Titles (DOT) or otherwise available in the open market, that fits that employee’s
capabilities with regard to his or her physical limitations, education, age and prior experience.
Once this selection is made, a determination of wage rate and availability in the open labor
market should be made through contact with the state employment service or other applicable
service.9 Finally, application of the principles set forth in Albert C. Shadrick10 will result in the
percentage of the employee’s loss of wage-earning capacity.11
In determining an employee’s wage-earning capacity based on a position deemed
suitable, but not actually held, the Office must consider the degree of physical impairment,
including impairments resulting from both injury related and preexisting conditions, but not
impairments resulting from post injury or subsequently acquired conditions. Any incapacity to
perform the duties of the selected position resulting from subsequently acquired conditions is
4

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

5

5 U.S.C. §§ 8101-8193.

6

5 U.S.C. § 8115; 20 C.F.R. § 10.520; John D. Jackson, supra note 4.

7

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

8

John D. Jackson, supra note 4.

9

James M. Frasher, supra note 3.

10

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

11

James M. Frasher, supra note 3.

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immaterial to the loss of wage-earning capacity that can be attributed to the accepted
employment injury and for which appellant may receive compensation.12
ANALYSIS
The Board finds that the medical evidence does not establish that appellant was capable
of performing the selected position of case aid. The April 8, 2003 report provided by
Dr. Kretzler, an Office referral physician, established that appellant was no longer totally
disabled. The Office referred her for vocational rehabilitation counseling in September 2004.
She then underwent training as a case aid, which she completed in December 2005. Because
appellant was unable to secure employment, the vocational rehabilitation counselor identified
two positions, social services aid and case aid, that he felt fit her capabilities, and the Office
determined that she had the capacity to earn wages as a case aid.
The position description found in the DOT provides that a case aid “performs community
contact work on simpler aspects of programs or cases and assists in providing services to clients
and family members, under close and regular supervision and tutorage of [a] caseworker.”13 The
strength requirement is that of light work which is defined as “exerting up to 20 pounds of force
occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force
constantly.”14 The medical restrictions set forth by Dr. Kretzler do not comport with the strength
requirements of the case aid position. In a work capacity evaluation dated April 8, 2003, the
physician advised that pushing, pulling and lifting were limited to 10 pounds, and the position
description requires exertion of up to 20 pounds. The Office therefore failed to meet is burden of
proof to establish that appellant has the appropriate strength of perform the selected position of
case aid. Accordingly, the Office failed to establish that this position represents her wageearning capacity and failed to properly reduce her compensation benefits.15
CONCLUSION
The Board finds that the Office failed to meet its burden of proof in reducing appellant’s
wage-earning capacity based on her ability to earn wages in the selected position of case aid.

12

John D. Jackson, supra note 4.

13

DOT, section 195.367-010.

14

Id.

15

The Board notes that at oral argument counsel argued that the Office erred in relying on Dr. Kretzler’s April 3,
2003 reports because his examination was too distant in time to the May 19, 2006 decision. The Board need not
reach this issue, however, as it is reversing the May 19, 2006 decision on other grounds.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 22, 2006 be hereby reversed.
Issued: February 28, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 17-1079
Issued: June 4, 2018

Case Submitted on the Record

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

JURISDICTION
On April 27, 2017 appellant filed a timely appeal from a February 21, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the claim.
ISSUE
The issue is whether appellant has met his burden of proof to establish that his diagnosed
right shoulder condition was causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On December 31, 2015 appellant, then a 55-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that he sustained a right shoulder rotator cuff tear, which he
attributed to the overhead lifting and reaching required by his federal employment duties. He
1

5 U.S.C. § 8101 et seq.

indicated that he first became aware of his condition on September 10, 2012 and realized that it
was employment related on September 30, 2013. Appellant did not indicate on the claim form that
he had stopped work.
In a January 8, 2016 development letter, OWCP advised appellant that additional evidence
was necessary to establish his claim. It requested that he submit additional factual and medical
evidence, including a physician’s opinion supported by a medical explanation as to whether and
how his work-related exposure resulted in or contributed to the specific diagnosed conditions.
OWCP afforded appellant 30 days to submit such information.
Appellant submitted a February 2, 2016 supplemental statement in which he described his
duties as a part-time flexible city carrier since January 22, 2005. He also submitted a position
description for a part-time flexible city carrier.
OWCP also received medical evidence from, Dr. Thomas H. Kay, a Board-certified
orthopedic surgeon, who in a September 10, 2012 report indicated that appellant had right shoulder
and elbow pain for several months. He noted that appellant exercised and did a lot of yardwork.
Appellant also had a history of prior back surgery. An assessment of tendinitis calcifying and
lateral epicondylitis was provided.
A September 13, 2012 magnetic resonance imaging (MRI) scan of appellant’s right
shoulder revealed moderate supraspinatus and infraspinatus tendinosis with minute partial
interstitial tears, mild subacromial subdeltoid bursitis, moderate tendinosis and partial
undersurface tearing of the subscapularis tendon, and partial tear of the long biceps tendon with
mild medial subluxation.
In a September 17, 2012 report, Dr. Kay noted that appellant was off work because of
severe right shoulder pain. He noted that the MRI scan of the right shoulder demonstrated a partial
tear of the biceps tendon with mild medial subluxation. Minor fraying of the supraspinatus was
also identified. Dr. Kay took appellant off work until October 5, 2012. He provided an assessment
of right sprains and strains of the right shoulder and upper arms, supraspinatus (muscle) (tendon)
and referred appellant to physical therapy.
In an October 5, 2012 note, Dr. Kay indicated that appellant was totally disabled from
September 5 through October 5, 2012 due to right bicep tears and shoulder pain. He noted that
appellant was unable to work because of his injury.
In an initial October 10, 2012 physical therapy report, Michael Schloemer, a physical
therapist, noted that appellant had shoulder injuries while in the military and that he worked for
the employing establishment delivering mail. He noted the mechanism of injury as increased right
shoulder pain after working in the yard doing a lot of pulling, using a rototiller, and raking, etc.
and assessed of secondary impingement syndrome due to shoulder instability.
In a November 4, 2012 report, Dr. Paul R. Miller, Board-certified in orthopedic surgery,
reported that appellant was seen for a follow up of his right shoulder and that the shoulder was
improving with physical therapy. He indicated that the MRI scan showed tendinitis of the
supraspinatus, infraspinatus biceps and provided an impression of right shoulder impingement and
probable cubital tunnel syndrome. In a November 5, 2012 order, Dr. Miller provided diagnoses
2

of lesion of ulnar nerve and disorders of bursae and tendons in shoulder region, unspecified. He
indicated that cubital tunnel needed to be ruled out.
A November 13, 2012 electromyogram/nerve conduction velocity (EMG/NCV) study
contained evidence of a mild right ulnar mononeuropathy at the elbow without ongoing motor
denervation. There was no electrodiagnostic evidence of a right cervical radiculopathy, brachial
plexopathy, or other right upper limb mononeuropathy.
In a December 7, 2012 report, Dr. Joaquin Sanchez-Sotelo, a Board-certified orthopedic
surgeon, indicated that appellant worked for the employing establishment and that his right
shoulder symptoms started in August 2012 without a clear-cut injury. Appellant recalled a very
remote injury playing football in high school. Dr. Sanchez-Sotelo noted appellant’s examination
findings. He also indicated that appellant’s x-rays showed a very thick acromion as well as
sclerosis on the greater tuberosity and marked acromial joint osteoarthritis. Those findings were
confirmed on MRI scan, which also showed a very high-grade, partial-thickness tear of the
supraspinatus tendon on the articular side with some biceps tenosynovitis. Dr. Sanchez-Sotelo
diagnosed right shoulder symptomatic AC joint osteoarthritis, right shoulder chronic subacromial
impingement, right shoulder partial thickness tear of the supraspinatus tendon, and associated
biceps tenosynovitis. He indicated that surgery was scheduled.
In a December 10, 2012 report, Dr. C.J. Owens, a Board-certified orthopedic surgeon,
performed a surgical consultation. He noted that appellant has had right shoulder pain since
August, when he was doing some strenuous yard work. Dr. Owens indicated that appellant had
undergone physical therapy and had a cortisone injection with partial relief. Physical examination
findings were provided and diagnostic testing discussed. Dr. Owens diagnosed right shoulder
rotator cuff tear and AC joint arthritis. A December 27, 2012 work status note indicated that
appellant would be off eight weeks from January 9 to March 11, 2013 after his surgery.
The employing establishment indicated in a January 6, 2013 note that appellant had no
medical limitations or restrictions when hired.
On January 9, 2013 appellant underwent surgery for right rotator cuff tear with
Dr. Sanchez-Sotelo. The final diagnosis was status post right rotator cuff tear, right acromial joint
resection, and right biceps tenodesis. In a February 7, 2013 letter, Dr. Sanchez-Sotelo indicated
that appellant made satisfactory progress status post right shoulder rotator cuff repair with
resection of the distal end of the clavicle and biceps tendon.
In a February 7, 2013 radiologist report, Dr. Jeffry R. Bond, a Board-certified radiologist,
indicated that appellant had right clavicle resection and probable rotator cuff repair since
December 7, 2012. He noted that degenerative arthritis in the glenohumeral joint was unchanged.
In a February 25, 2013 report, Dr. Sanchez-Sotelo provided an impression of satisfactory
progress status post right rotator cuff repair with resection of the distal end of the clavicle and
biceps tenodesis. Dr. Sanchez-Sotelo noted that appellant was eight weeks postoperative on his
right shoulder and made great progress. He noted that appellant was to return to work next Monday
with the restriction of no use of right upper extremity for repetitive lifting for a total of three and
a half months after date of surgery.

3

In an April 1, 2013 report, Dr. Sanchez-Sotelo indicated that appellant was eight weeks
postoperative status on his right shoulder and had made great progress. Dr. Sanchez-Sotelo noted
that appellant was to return to work the following Monday with no use of his right upper extremity
for repetitive lifting for a total of three and a half months after the date of surgery. In an April 1,
2013 telephone conversation and work status report, he clarified that appellant was allowed to go
back to work on March 11, 2013 with limited use of the right upper extremity and full duty with
no restrictions on June 1, 2013.
By a September 19, 2013 telephone report, Dr. M.C. Kergosien, a Board-certified
orthopedic surgeon, noted that appellant requested clarification regarding the cause of his shoulder
problems. He noted that he reinforced to appellant the points made in Dr. Sanchez-Sotelo’s letter
that there was no good evidence or way for them to link his shoulder condition with being a mail
carrier.
In a September 30, 2013 report, Dr. Kay noted appellant’s request for a letter reflecting his
opinion about any contribution his work activities may have had on his shoulder. Examination
findings were presented.
In a January 31, 2016 letter, Dr. Kay indicated that appellant originally presented to his
office on September 10, 2012 with complaints of pain in the right shoulder and elbow, which he
had been experiencing for several months. He denied any trauma or specific injury, but reported
that he exercised and did a lot of yard work. Dr. Kay summarized appellant’s visits as well as the
results of the diagnostic studies. He indicated that on September 30, 2013 appellant requested a
letter which reflected his opinion regarding any possible contribution his work activities may have
made to his shoulder status. Dr. Kay noted that appellant had undergone surgery in January 2013
and that the operative report reflected that he underwent an open distal claviculectomy,
acromioplasty, biceps tenodesis, and repair of the supraspinatus tendon, and that he was back at
work. Dr. Kay noted that, at that time, appellant was status post repair of a rotator cuff tear. He
indicated that he advised appellant that his condition was largely degenerative in nature. However,
it was quite likely that work activity involving overhead lifting and reaching had contributed to his
condition. Dr. Kay concluded that appellant’s rotator cuff injury was more likely than not related
to years of lifting and overhead activity in his role as a mail carrier. He also noted that appellant
was seen for complaints of left knee pain on August 22, 2014 and that he eventually underwent
arthroscopic partial medial meniscectomy on September 4, 2014.
By decision dated April 4, 2016, OWCP denied the claim as the medical evidence
submitted did not establish that appellant’s diagnosed right shoulder condition was causally related
to the accepted work duties.
On November 23, 2016 appellant requested reconsideration. In a November 23, 2016
statement, he indicated that a decision had been reached with his appeal of the Department of
Veterans Affairs denial of his right shoulder claim. In an October 31, 2016 letter, the Department
of Veterans Affairs awarded a service-connected disability of 100 percent for right shoulder status
post rotator cuff repair, AC joint resection, and biceps tendinosis.
By decision dated February 21, 2017, OWCP denied modification of its April 4, 2016
decision. It found that appellant had not met his burden of proof to establish that his right shoulder
conditions were causally related to factors of his federal employment.
4

LEGAL PRECEDENT
An employee seeking benefits under FECA 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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.2 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.3
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.4
The medical evidence required to establish causal relationship is generally rationalized
medical opinion evidence. Rationalized medical opinion evidence is medical evidence which
includes a physician’s rationalized opinion on the issue of whether there is a causal relationship
between the claimant’s diagnosed condition and the implicated employment factors. The opinion
of the physician must be based on a complete factual and medical background of the claimant,
must be one of reasonable medical certainty, and must be supported by medical rationale
explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant.5
ANALYSIS
The Board finds that appellant failed to provide sufficiently-rationalized medical opinion
evidence which established that his diagnosed right shoulder condition was causally related to the
accepted work activities.
Appellant alleged that his right shoulder condition was caused or aggravated by his work
duties as a part-time flexible city carrier since January 2005. OWCP denied his claim as the
medical evidence of record was insufficient to establish that his diagnosed right shoulder
conditions and surgery were causally related to his accepted employment activities. Dr. Kay
started treating appellant in September 2012. While Dr. Kay provided several progress reports in
2012, which diagnosed right shoulder conditions, he did not provide a medical opinion as to
whether the established employment factors in this claim caused or aggravated appellant’s right
shoulder conditions. The Board has held that medical evidence that does not offer any opinion
2

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

3

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

4

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

5

Solomon Polen, 51 ECAB 341 (2000).

5

regarding the cause of an employee’s condition is of limited probative value.6 Thus, Dr. Kay’s
progress reports are of limited probative value in establishing appellant’s claim.
In his January 31, 2016 letter, Dr. Kay summarized appellant’s treatment. He indicated
that after appellant’s January 2013 rotator cuff tear surgery, he had advised appellant that his
condition was largely degenerative in nature, but it was likely that work activity involving
overhead lifting and reaching had contributed to his condition. Dr. Kay concluded that appellant’s
rotator cuff injury was more likely than not related to years of lifting and overhead activity in his
role as a mail carrier. He did not, however, explain how appellant’s work activity caused or
contributed to his shoulder condition or was competent to cause an injury. Additionally, Dr. Kay’s
opinion that appellant’s rotator cuff injury was likely related to his years of work lifting and
overhead activity is speculative in nature and thus insufficient to meet appellant’s burden of proof.7
The need for rationale is particularly important as the evidence indicates that appellant has a
preexisting degenerative condition.8 Thus, Dr. Kay’s letter is insufficient to establish appellant’s
claim.
The medical reports from Drs. Miller, Sanchez-Sotelo, Owens, and Bond, while diagnosing
right shoulder conditions, are of limited probative value as they did not specifically address
causation.9 Dr. Sanchez-Sotelo did note appellant’s history of remote injury while playing football
in high school, while Dr. Owens noted that appellant had experienced right shoulder pain since
performing yard work. None of these physicians, however, offered an opinion that the accepted
factors of appellant’s federal employment caused or aggravated his diagnosed right shoulder
conditions.10
The remaining medical evidence of record is also insufficient to establish appellant’s claim.
The diagnostic testing of record only interpreted diagnostic/imaging studies and provided no
opinion on the cause of appellant’s injury.11
Dr. Kergosien specifically indicated in his September 19, 2013 telephone report that there
was no good evidence or way for them to link appellant’s shoulder condition to his job as a mail
carrier.

6

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
7

Rickey S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).
8

See R.R., Docket No. 16-1118 (issued November 7, 2016) (where the Board held that the need for rationale is
particularly important where the evidence indicated that appellant had a preexisting condition).
9

See A.D., supra note 6.

10

Supra note 4.

11

D.H., Docket No. 11-1739 (issued April 18, 2012).

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The October 31, 2016 letter from the Department of Veterans Affairs indicated that
appellant’s right shoulder condition was service connected.
Appellant’s belief that factors of employment caused or aggravated his condition is
insufficient, by itself, to establish causal relationship.12 The issue of causal relationship is a
medical one and must be resolved by probative medical opinion from a physician. The Board
finds that there is insufficient medical evidence of record to establish that appellant’s right shoulder
condition was caused or aggravated by the accepted employment factors. Appellant, therefore,
did not meet his burden of proof.
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 his burden of proof to establish that his
diagnosed right shoulder condition was causally related to the accepted factors of his federal
employment.

12

20 C.F.R. § 10.115(e); Phillip L. Barnes, 55 ECAB 426, 440 (2004).

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ORDER
IT IS HEREBY ORDERED THAT the February 21, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 4, 2018
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
DEPARTMENT OF HOUSING & URBAN
DEVELOPMENT, Atlanta, GA, Employer
__________________________________________

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

Docket No. 12-1514
Issued: March 1, 2013

Case Submitted on the Record

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

JURISDICTION
On June 28, 2012 appellant filed a timely appeal from a February 14, 2012 merit decision
of the Office of Workers’ Compensation Programs (OWCP) terminating her compensation
benefits. 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 OWCP properly terminated appellant’s wage-loss compensation
benefits effective July 3, 2011 on the grounds that she no longer had any residuals or disability
causally related to her accepted employment-related injuries.
FACTUAL HISTORY
OWCP accepted that on March 31, 1992 appellant, then a 38-year-old legal technician,
developed a severe allergic reaction when a ceiling tile fell in her work area. It accepted her
1

5 U.S.C. § 8101 et seq.

claim for contact dermatitis and esophagitis. Appellant stopped work and received wage-loss
compensation. She was treated by Dr. Jack E. Dawson, a cardiologist.
On July 1, 2010 OWCP referred appellant to Dr. Jane St. Clair, Board-certified in
occupational medicine, for a second-opinion examination regarding whether she continued to be
disabled as a result of her accepted employment injuries. In an August 28, 2010 report,
Dr. St. Clair reviewed appellant’s medical history, including the statement of facts and provided
an accurate history of injury. She opined that appellant’s contact dermatitis and esophagitis had
resolved and that appellant no longer had residuals from the March 31, 1992 injury. Dr. St. Clair
explained that, although appellant related a history of recurrent skin infections, she did not
observe any evidence of current lesions or rashes on her arms, chest or face. She noted that
appellant did not have a rash, urticaria, hives, erythema, dry skin or skin disease. Regarding the
accepted esophagitis, Dr. St. Clair stated that appellant was eating and swallowing without
complaints. She noted that “definitive information to answer the question concerning the
presence of esophagitis will only become available if she has another endoscopy,” but that this
would unlikely occur. Dr. St. Clair opined that appellant’s current symptoms were related to her
personal or psychological health. She stated that there were no physical findings that established
that appellant’s current complaints were related to her March 31, 1992 work-related injury.
In an August 28, 2010 duty status report, Dr. St. Clair authorized appellant to return to
full duty without restrictions. She stated that there was no proof that appellant was allergic to
compounds normally found in an office environment.
In a November 10, 2010 statement, appellant contended that Dr. St. Clair’s reports
contained several errors. She stated that she was accompanied by her husband who stayed in the
waiting room. Appellant noted that the examination was interrupted on several occasions
because Dr. St. Clair saw another patient. She reported that Dr. St. Clair asked her about the rash
on her face and chest and spots on her arms but it was not included in the report.
In an April 1, 2010 note, Dr. Jack E. Dawson, Board-certified in cardiology, related
appellant’s complaints of hypertension and multi-chemical sensitivities. He noted that she did
not have frequent cardiac complaints except for one episode of palpitations about a month prior.
On July 27, 2010 Dr. Dawson stated that appellant was still disabled and unable to return to
work. She was also found to be totally disabled by the Social Security Administration. He
reported that her significant allergy-related problems continued and recommended that she limit
her exposure to cleaning agents, plants, and flowers.
In an October 27, 2010 report, Dr. Michelle B. Futral, a Board-certified dermatologist,
noted that appellant was treated for follow-up after a toxic chemical burn.
In a November 12, 2010 report, Dr. Dawson disagreed with Dr. St. Clair’s opinion that
appellant’s contact dermatitis had resolved. He reported that on occasional visits he had seen
mild-to-moderate erythema of the skin and that she continued to complain of accompanying
burning and occasional itching. Dr. Dawson stated that to know what is going on with
appellant’s esophagus, an endoscope needed to be obtained. He stated that her occasional chest
pains did not appear to be heart related, but might be residual esophageal spasms originating with
the March 31, 1992 employment injury.

2

In a February 25, 2002 report, Dr. Husham P. Mishu, a Board-certified psychiatrist and
neurologist, stated that appellant’s headaches had improved but she was still on pain medication.
He stated that she required all these medications secondary to the migraines caused by the toxic
exposure she sustained at work.
On May 19, 2011 OWCP issued a notice of proposed termination of appellant’s
compensation and medical benefits based on Dr. St. Clair’s August 18, 2010 medical report.
Appellant was advised that she had 30 days to submit additional relevant evidence or argument if
she disagreed with the proposed action.
In a decision dated June 24, 2011, OWCP finalized the termination of appellant’s
compensations benefits effective July 3, 2011. It found that the medical evidence of record
established that her accepted conditions had ceased and that she no longer had any residuals or
disability causally related to her accepted employment injuries.
In a June 15, 2011 report, Dr. Futral examined appellant for follow-up treatment of a
toxic chemical burn that occurred several years ago. She related that appellant continued to
complain of dry skin and itching.
In a June 22, 2011 report, Dr. Dawson stated that appellant’s original diagnostic problems
of multi-chemical sensitivities with skin and esophageal involvement remained the same. He
explained that she remained ultra sensitive with skin manifestations on exposure to petrol and
other chemicals. Dr. Dawson concluded that appellant’s injury was permanent and that she was
unable to work because of her sensitivities and symptom manifestations.
On July 18, 2011 appellant submitted a request for an oral hearing. Upon receipt of the
May 19, 2011 proposed termination, she contacted Dr. Dawson and Dr. Futral to schedule
appointments and requested updated opinions regarding her condition. Appellant reiterated that
there were several errors in Dr. St. Clair’s August 28, 2010 report. She resubmitted
Dr. Dawson’s May 27, 2010 and June 22, 2011 reports and Dr. Futral’s June 15, 2011 report.
In a July 28, 2011 report, Dr. Mark A. Sims, a Board-certified internist, stated that
appellant’s esophagitis had healed on her current therapy. He advised her to continue taking her
medication daily or else her condition would return as severe as or even worse than it was before.
Dr. Sims reported that the endoscopy performed last week showed no evidence of acute
ulceration in appellant’s esophagus, but the valve between her esophagus and stomach was more
loose than normal.
On August 9, 2011 appellant requested that her compensation continue until her hearing.
She described the March 31, 1992 employment incident where she was exposed to
formaldehyde, fiber glass, pest control, poison and asbestos. Appellant stated that she still
experienced extreme allergic dermatitis, multiple chemical sensitivities, stress syndrome,
esophagitis, migraines, fatigue, colon problems, vertigo and dry mouth.
On November 4, 2011 a telephone hearing was held. Appellant contended that OWCP
should not have relied on Dr. St. Clair’s opinion because it contained numerous errors. She
stated that her husband went with her to the appointment even though Dr. St. Clair noted that she

3

was unaccompanied. Appellant also contended that Dr. St. Clair did not conduct a thorough
examination.
In an October 4, 2011 progress note, Dr. Mishu conducted a follow-up examination for
appellant’s fibromyalgia, migraines and lumbar radiculopathy. He related that her neck and back
pain had worsened since an April 2011 accident. Dr. Mishu stated that appellant’s symptoms
were about the same and recommended cervical and lumbar epidural injections.
In a November 14, 2011 report, Dr. Dawson reiterated that appellant’s original diagnostic
problems of multi-chemical sensitivities with skin and esophageal involvement remained the
same and that there was no change in her accepted employment-related injuries. He concluded
that her injury was permanent and that she was unable to work because of her symptom
manifestations.
In a November 17, 2011 report, Dr. Sims stated that appellant was under his care for
esophagitis and dysphagia. Appellant’s problems were due to esophageal spasm which resulted
in difficulty eating, swallowing and taking her medication and also resulted in significant chest
pain. Dr. Sims reported that if she took Prilosec daily then her symptoms were mostly
controlled.
In a December 8, 2011 report, Dr. Mishu stated that appellant had been his patient since
2007 and was treated for fibromyalgia, migraines, cervical and lumbar radiculopathy and
imbalance. He stated that she would need to continue her treatment for her conditions
indefinitely.
In a December 6, 2011 report, Dr. Michelle Juneau, a Board-certified dermatologist,
stated that she had treated appellant for a history of recurrent contact dermatitis. She noted that
she prescribed appellant steroid cream and advised that she continue to use Aveeno Moisturizing
cream and Cetaphil. Dr. Juneau reported that appellant’s contact dermatitis would remain for the
rest of her life.
By decision dated February 14, 2012, OWCP’s hearing representative affirmed the
June 24, 2011 termination decision. He determined that Dr. St. Clair’s August 28, 2010 report
represented the weight of the medical evidence.
LEGAL PRECEDENT
According to FECA, once OWCP accepts a claim and pays compensation, it has the
burden of justifying termination or modification of an employee’s benefits.2 OWCP may not
terminate compensation without establishing that the disability had ceased or that it was no
longer related to the employment.3 Its burden of proof includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.4 The
2

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

3

Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L. Minor, 37
ECAB 541 (1986).
4

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

4

right to medical benefits for an accepted condition is not limited to the period of entitlement for
disability compensation.5 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment.6
If there is a disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.7
ANALYSIS
OWCP accepted that on March 31, 1992 appellant developed contact dermatitis and
esophagitis while in the performance of duty. She stopped work and received disability
compensation.
In an August 28, 2010 report, Dr. St. Clair, the second-opinion examiner, concluded that
appellant was no longer disabled due to the March 31, 1992 employment injury. Appellant did
not have any residuals causally related to the work-related injury. Dr. Dawson, appellant’s
treating physician, stated that her work-related conditions had not resolved and that she
continued to be totally disabled from work. OWCP determined that Dr. St. Clair’s opinion
constituted the weight of the evidence and thereafter terminated appellant’s entitlement to
disability compensation.
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits due to a conflict in medical opinion between
Dr. St. Clair, OWCP’s referral physician, and Dr. Dawson, appellant’s treating physician. In an
August 28, 2010 report, Dr. St. Clair reviewed appellant’s history and conducted an examination.
She observed that, although appellant had a history of recurrent skin infections, there was no
evidence of current lesions or rashes. Dr. St. Clair also noted that appellant was eating and
swallowing without complaints, but recommended another endoscopy be performed. She stated
that there were no physical findings to establish that appellant’s current complaints were directly
related to her March 31, 1992 work-related injury and concluded that her contact dermatitis and
esophagitis had resolved. Dr. Dawson disagreed with Dr. St. Clair’s findings and observed that
appellant continued to suffer from allergy-related problems and remained totally disabled from
work. He reported that he still observed mild-to-moderate erythema of the skin and that
appellant complained of burning and occasional itching. Regarding appellant’s esophagitis,
Dr. Dawson explained that an endoscope was needed. He stated that there was no change in
appellant’s employment-related injuries and concluded that she was unable to work because of
her symptoms. The Board, therefore, finds a conflict in medical opinion.

5

A.P., Docket No. 08-1822 (issued August 5, 2009); T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB
677 (2005).
6

James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002).

7

5 U.S.C. § 8123; 20 C.F.R. § 10.321(b); see also Darlene R. Kennedy, 57 ECAB 414 (2006).

5

Section 8123(a) of FECA provides that, if there is a disagreement between the physician
making the examination for the United States and the employee’s physician, OWCP shall
appoint a third physician who shall make an examination.8 The case will be remanded for an
impartial medical examiner to resolve the conflict in medical opinion. On remand, OWCP
should refer appellant and a statement of accepted facts to an appropriate physician to examine
her and evaluate the evidence pursuant to section 8123(a) of FECA. Following this and such
further development as OWCP deems necessary, it shall issue an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the February 14, 2012 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: March 1, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8

Id. at § 8123(a); see also Charles S. Hamilton, 52 ECAB 110 (2000).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. RAILROAD RETIREMENT BOARD,
Chicago, IL, Employer
__________________________________________

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)
)
)
)
)
)
)

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

Docket No. 17-0930
Issued: July 11, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 24, 2017 appellant filed a timely appeal from a February 23, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish more than 30 percent
permanent impairment of her right lower extremity and 15 percent permanent impairment of her
left lower extremity, for which she previously received schedule awards.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted additional evidence to OWCP after the February 23, 2017 decision was
issued. The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision.
Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
Appellant, then a 56-year-old computer specialist, has an accepted occupational disease
claim (Form CA-2) alleging for temporary aggravation of mild asthma and temporary aggravation
of preexisting chronic low back pain, resolved December 21, 2006, under OWCP File No.
xxxxxx017 due to inhaling asphalt fumes during a roof repair. She also has an accepted traumatic
injury claim for a lumbar strain and a herniated disc at L4-5 under OWCP File No. xxxxxx023 due
to a December 15, 1998 work injury when a box of books fell on her leg. Appellant stopped work
on November 22, 2006 and then retired on July 31, 2007. OWCP granted her a schedule award
for 30 percent permanent impairment of the right lower extremity and 15 percent permanent
impairment of the left lower extremity. Appellant appealed to the Board. On June 25, 2013 the
Board remanded the case for OWCP to administratively combine her case files in order to
determine whether OWCP properly adjudicated the issue of her schedule award claim.4 By
decision dated August 19, 2013, OWCP denied modification of its prior schedule award decisions.
Appellant appealed to the Board. By decision dated April 23, 2014, the Board affirmed OWCP’s
August 19, 2013 decision, finding that there was no probative medical evidence of record
establishing that she was entitled to a schedule award greater than that previously received.5
On July 8, 2015 appellant filed a claim for an increased schedule award (Form CA-7).
In a July 16, 2015 letter, OWCP advised appellant of the deficiencies of her claim and
afforded her 30 days to submit additional medical evidence and respond to its inquiries.
Subsequently, appellant submitted a July 30, 2015 report from Dr. Samuel J. Chmell, a
Board-certified orthopedic surgeon, who diagnosed lumbar herniated disc and assigned a grade
modifier of 4 for functional history, 3 for physical examination, and 3 for clinical studies.
Dr. Chmell concluded that appellant had a class 2 diagnosis of intervertebral disc herniation, which
equaled 14 percent permanent impairment of the left lower extremity and 14 percent permanent
impairment of the right lower extremity under Table 17-4 of the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).6
In an August 3, 2015 report, Dr. Chmell reiterated his impairment rating.
On August 20, 2015 Dr. Chmell reported that appellant was seen for an urgent
appointment. He asserted that several days prior she had a sharp pain in her back such that her
3

Docket No. 13-1996 (issued April 23, 2014); Docket No. 13-0445 (issued June 25, 2013).

4

By letter dated July 30, 2013, OWCP notified appellant that her claim had been doubled and her new occupational
disease claim under File No. xxxxxx017 was the master case file.
5

Docket No. 13-1996 (issued April 23, 2014).

6

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

2

legs gave out and she fell injuring her left wrist. Dr. Chmell diagnosed lumbar disc herniation,
aggravation of degenerative disc disease of the lumbar spine, asthma, bilateral carpal tunnel
syndrome with multiple tendinitis, cervical disc derangement, and fracture left wrist distal radius.
In an August 25, 2015 narrative statement, appellant indicated that she fell in her home on
August 16, 2015 and fractured her left wrist. She stated that her leg gave way and this injury was
due to her work-related back injury.
In two reports dated September 3, 2015, Dr. Chmell continued to diagnose left wrist
fracture and opined that appellant’s condition was causally related to her accepted employmentrelated conditions. He explained that the weakness at her ankles and feet was due to her work
injury to her low back where she had lumbar disc herniation and the radiculopathy that she had in
her legs had resulted in his weakness at her ankles and feet. Dr. Chmell concluded that this resulted
in appellant’s fall and left wrist fracture, which he advised that should be accepted as a
consequential injury.
On September 17, 2015 Dr. Chmell reiterated his opinion that appellant’s left wrist fracture
was causally related to her accepted lumbar disc herniation condition. He noted that she had
weakness and diminished sensation in both legs, ankles, and feet due to her lumbar disc herniation
and also noted that she had started using a cane over the last year because of the weakness.
Dr. Chmell also reiterated that appellant fell due to the weakness in her legs and, as was a normal
reaction when falling, put her left hand out in front of herself when she fell. He opined that her
left wrist fracture was caused by a fall due to the weakness in her legs, ankles, and feet and was
therefore causally related to her accepted back condition.
In an October 8, 2015 report, Dr. Chmell reiterated his diagnoses and stated that appellant
continued to experience low back pain and stiffness, radiating into her legs.
On October 30, 2015 Dr. Michael Hellman, an OWCP medical
evidence of record and found that Dr. Chmell agreed that no additional
awarded because he determined that appellant had 14 percent permanent
lower extremity and she had previously received a schedule award for
impairment of the left lower extremity.

adviser, reviewed the
impairment should be
impairment of the left
15 percent permanent

By decision dated November 18, 2015, OWCP denied appellant’s claim for an increased
schedule award, indicating that she had previously received a schedule award for 30 percent
permanent impairment of the right lower extremity and 15 percent permanent impairment of the
left lower extremity under File No. xxxxxx023 and the medical evidence did not support an
increase in the impairment already compensated.
On January 11, 2016 appellant requested reconsideration and submitted reports dated
December 17 and 30, 2015, and January 28 and February 27, 2016 from Dr. Chmell who
diagnosed right elbow derangement and arthritis aggravation and reiterated his impairment rating,
arguing that it was unfair and inappropriate to require a new methodology to determine her
impairment rating using the July/August 2009 The Guides Newsletter.
By decision dated April 7, 2016, OWCP denied modification of its prior decision. It found
FECA required a work-related spinal impairment to be rated under the sixth edition of the A.M.A.,
3

Guides, which included a supplemental publication of the July/August 2009 The Guides
Newsletter, and Dr. Chmell had not provided objective findings to support an additional
impairment above what had been previously awarded to appellant.
On May 2, 2016 appellant requested reconsideration and submitted reports dated
March 31, May 5, June 9, July 29, and October 27, 2016 from Dr. Chmell reiterating his diagnoses
and indicating that appellant continued to experience pain.
In an April 18, 2016 report, Dr. Chmell argued that OWCP’s decision were erroneous
because its medical advisers were residents in training to become orthopedic surgeons and
therefore their opinions were of questionable probative value.
On July 15, 2016 Dr. Michael M. Katz, a Board-certified orthopedic surgeon and OWCP’s
medical adviser, reviewed the medical evidence of record and found that Dr. Chmell’s impairment
rating was unacceptable for schedule award purposes because OWCP calculated lumbar spinal
radiculopathy impairment according to Proposed Table 2: Spinal Nerve Impairment: Lower
Extremity Impairment, as published in the July/August 2009 The Guides Newsletter, as it offered
a more accurate determination of impairment for specific spinal nerves. He concluded that
Dr. Chmell’s impairment rating lacked probative value.
OWCP referred appellant to Dr. Allan Brecher, a Board-certified orthopedic surgeon, for
a second opinion evaluation to determine the nature and extent of her employment-related
impairment. In his December 27, 2016 report, Dr. Brecher reviewed her medical history, a
statement of accepted facts, and conducted a physical examination. He found that appellant was
neurologically intact. Appellant had some tenderness in her lower back. She had a negative
straight-leg raise test and her motor and sensation were intact. Dr. Brecher found that appellant
only had back pain, noting that she did “not have lower extremity problems.” He determined that
she had reached maximum medical improvement as of 2001. Dr. Brecher disagreed with
Dr. Chmell’s impairment rating because he did not find any lower extremity impairment upon
physical examination. He noted that appellant’s chronic back pain equated to a one percent whole
person impairment rating under the sixth edition of the A.M.A., Guides.
Subsequently, appellant submitted reports dated December 22, 2016 and February 9, 2017
from Dr. Chmell who reiterated his diagnoses and opinions.
In a February 22, 2017 report, Dr. Katz reviewed Dr. Brecher’s December 27, 2016 second
opinion report and found that although he calculated whole person impairment rating of one
percent on the basis of chronic back pain, a whole person impairment did not qualify for a schedule
award. He concluded that appellant had zero percent permanent impairment of the bilateral lower
extremities and her date of maximum medical improvement was December 13, 2016, the date of
Dr. Brecher’s examination.
By decision dated February 23, 2017, OWCP denied modification of its prior decision.

4

LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.7 It, however, does
not specify the manner by which the percentage loss of a member, function or organ shall be
determined. To ensure consistent results and equal justice under the law, good administrative
practice requires the use of uniform standards applicable to all claimants. The implementing
regulations have adopted the A.M.A., Guides as the appropriate standard for evaluating schedule
losses.8 Effective May 1, 2009, schedule awards are determined in accordance with the sixth
edition of the A.M.A., Guides (2009).9
Neither FECA nor the implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole.10 However, a
schedule award is permissible where the employment-related spinal condition affects the upper
and/or lower extremities.11 The sixth edition of the A.M.A., Guides (2009) provides a specific
methodology for rating spinal nerve extremity impairment.12 It was designed for situations where
a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for
the spine. FECA-approved methodology is premised on evidence of radiculopathy affecting the
upper and/or lower extremities. The appropriate tables for rating spinal nerve extremity
impairment are incorporated in the procedure manual.13
When determining entitlement to a schedule award, preexisting impairment to the
scheduled member should be included.14 Impairment ratings for schedule awards include those
conditions accepted by OWCP as job related, and any preexisting permanent impairment of the
same member or function.15 If the work-related injury has affected any residual usefulness in
whole or in part, a schedule award may be appropriate.16 There are no provisions for

7
For a total or 100 percent loss of use of a leg, an employee shall receive 288 weeks compensation. 5 U.S.C.
§ 8107(c)(2).
8

20 C.F.R. § 10.404.

9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
10

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

11

Supra note 8 at Chapter 2.808.5c(3).

12

The methodology and applicable tables were initially published in The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009). Id.
13

See supra note 8 at Chapter 3.700, Exhibit 4.

14

Carol A. Smart, 57 ECAB 340, 343 (2006); Michael C. Milner, 53 ECAB 446, 450 (2002).

15

Supra note 8 at Chapter 2.808.5d.

16

Id.

5

apportionment under FECA,17 but when the prior impairment is due to a previous work-related
injury and a schedule award has been granted for such prior impairment, the percentage already
paid is subtracted from the total percentage of impairment.18
ANALYSIS
OWCP accepted that appellant sustained a temporary aggravation of mild asthma and
temporary aggravation of preexisting chronic low back pain, resolved December 21, 2006, due to
factors of her federal employment. It also accepted a lumbar strain and a herniated disc at L4-5
due to a December 15, 1998 employment injury. OWCP awarded her schedule awards for 30
percent permanent impairment of the right lower extremity and 15 percent permanent impairment
of the left lower extremity. It is appellant’s burden to submit sufficient evidence to establish the
extent of permanent impairment.19
Appellant submitted reports from Dr. Chmell in support of her claim. Dr. Chmell opined
that she had sustained 14 percent permanent impairment of the bilateral lower extremities. The
Board finds that his reports failed to clearly explain how he calculated appellant’s impairment
under the sixth edition of the A.M.A., Guides. For example, Dr. Chmell did not note how he
applied grade modifiers to particular diagnoses under specific tables in the A.M.A., Guides.20 The
Board has held that when the attending physician fails to provide an estimate of impairment
conforming to the A.M.A., Guides or does not discuss how he arrives at the degree of impairment
based on physical findings, his opinion is of diminished probative value in establishing the degree
of impairment and OWCP may rely on the opinion of its medical adviser to apply the A.M.A.,
Guides to the findings reported by the attending physician.21 Thus, Dr. Chmell’s reports are of
diminished probative value regarding appellant’s lower extremity permanent impairment under
the sixth edition of the A.M.A., Guides.22
The Board finds that OWCP properly referred appellant to Dr. Brecher for a second opinion
examination after finding that the impairment ratings of appellant’s attending physician,
Dr. Chmell failed to properly follow procedures for the calculation of permanent functional
impairment. In his December 27, 2016 report, Dr. Brecher found that she had some tenderness in
her lower back, but she was neurologically intact. Appellant had a negative straight-leg raise test
and her motor and sensation were intact. Dr. Brecher found that she had back pain only and did
not find any lower extremity impairment upon physical examination. He concluded that

17

Id.

18

Id. at Chapter 2.808.7a(1); 20 C.F.R. § 10.404(c).

19

See Annette M. Dent, 44 ECAB 403 (1993).

20

A.M.A., Guides 411. See also M.B., Docket No 12-361 (issued September 10, 2012).

21

See John L. McClanic, 48 ECAB 552 (1997); L.M., Docket No. 12-0868 (issued September 4, 2012).

22
See Richard A. Neidert, 57 ECAB 474 (2006) (an attending physician’s report is of little probative value where
the A.M.A., Guides are not properly followed).

6

appellant’s chronic back pain equated to a one percent whole person impairment rating under the
sixth edition of the A.M.A., Guides.
In accordance with its procedures, OWCP properly referred the evidence of record to its
OWCP medical adviser, Dr. Katz. In his July 15, 2016 report, Dr. Katz found that Dr. Chmell’s
impairment rating was unacceptable for schedule award purposes because OWCP calculated
lumbar spinal radiculopathy impairment according to the July/August 2009 The Guides
Newsletter, as it offered a more accurate determination of impairment for specific spinal nerves.
In his February 22, 2017 report, Dr. Katz reviewed Dr. Brecher’s December 27, 2016 second
opinion report and found that although he calculated a one percent whole person impairment rating
on the basis of chronic back pain, a whole person impairment did not qualify for a schedule award.
He concluded that appellant had zero percent permanent impairment of the bilateral lower
extremities and her date of maximum medical improvement was December 13, 2016, the date of
Dr. Brecher’s examination.
The Board finds that OWCP’s medical adviser applied the appropriate tables and grading
schemes of the sixth edition of the A.M.A., Guides to Dr. Brecher’s clinical findings. OWCP’s
medical adviser’s calculations were mathematically accurate. There is no medical evidence of
record utilizing the appropriate tables of the sixth edition of the A.M.A., Guides demonstrating a
greater percentage of permanent impairment. The medical adviser explained that Dr. Brecher’s
assessment of one percent whole person impairment was not allowed for purposes of making
schedule award decisions under FECA.23 Therefore, OWCP properly relied on an OWCP medical
adviser’s assessment of a zero percent permanent impairment of the bilateral lower extremities, in
denying an additional schedule award for the right and left lower extremities.
There is no probative medical evidence of record, in conformance with the sixth edition of
the A.M.A., Guides, establishing that appellant has more than 30 percent permanent impairment
of the right lower extremity and 15 percent permanent impairment of the left lower extremity.
Accordingly, appellant has not established that she is entitled to a schedule award greater than that
previously awarded.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than 30
percent permanent impairment of her right lower extremity and 15 percent permanent impairment
of her left lower extremity, for which she previously received schedule awards.

23
Neither FECA, nor its implementing regulations, provide for a schedule award for impairment to the body as a
whole. See James E. Mills, 43 ECAB 215, 219 (1991); see also N.C., Docket No. 14-1882 (issued March 3, 2015).

7

ORDER
IT IS HEREBY ORDERED THAT the February 23, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 11, 2018
Washington, DC

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

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

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

8