United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Waltham, MA, Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

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Docket No. 10-1614
Issued: May 12, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On June 2, 2010 appellant, through her representative, filed a timely appeal from the
May 4, 2010 merit decision of the Office of Workers’ Compensation Programs, which denied
modification of a wage-earning capacity determination.1
The Board has duly considered the matter and finds that the Office’s May 4, 2010
decision must be set aside. Once the Office issues a formal decision on wage-earning capacity,
the rating should be left in place until the claimant requests resumption of compensation for total
wage loss for more than a limited period of disability, in which instance the Office will need to
evaluate the request according to the customary criteria for modifying a formal wage-earning
capacity determination.2

1

Appellant, a 51-year-old mail processor, developed carpal tunnel syndrome in the performance of duty. She
eventually accepted a limited-duty assignment, the earnings from which, the Office found, fairly and reasonably
represented her wage-earning capacity. In a January 10, 2006 decision, the Office reduced appellant’s compensation
to zero.
2

Katherine T. Kreger, 55 ECAB 633 (2004); Sharon C. Clement, 55 ECAB 552 (2004).

Appellant claimed a recurrence of disability on March 9, 2009 when the employing
establishment withdrew her limited-duty assignment due to the National Reassessment Process.
But she returned to work around August 14, 2009, so the period of disability for which she
sought compensation was limited or closed. In such situations, the Office should adjudicate the
claim as one of recurrence.3 The Board will therefore set aside the Office’s May 4, 2010
decision and remand the case for an appropriate final decision on appellant’s recurrence claim.
IT IS HEREBY ORDERED THAT the May 4, 2010 decision of the Office of Workers’
Compensation Programs is set aside and the case remanded for further action consistent with this
order.
Issued: May 12, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3

See id.; Sandra D. Pruitt, 57 ECAB 126 (2005) (the Office is not precluded from adjudicating a limited period
of employment-related disability when a formal wage-earning capacity determination has been issued); S.H., Docket
No. 07-755 (issued November 9, 2007). In Sharon C. Clement, supra note 2, following a wage-earning capacity
determination, the Office accepted a recurrence claim and paid compensation for a period of temporary total
disability when the claimant stopped work on the advice of her physician pending carpal tunnel surgery. The
surgeon released her to limited duty about a year after surgery. Cf. Elsie L. Price, 54 ECAB 734 (2003) (acceptance
of disability for an extended period -- five years -- was sufficient to establish that modification of the wage-earning
capacity determination was warranted).

2


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
)
Dayton, OH, Employer
)
___________________________________________ )
J.B., Appellant

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

Docket No. 09-1595
Issued: June 11, 2010

Case Submitted on the Record

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

JURISDICTION
On June 8, 2009 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ decision dated May 13, 2009, which denied further merit review and a
September 9, 2008 schedule award decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has more than a 33 percent permanent impairment
of his right upper extremity and a 43 percent permanent impairment of his left lower extremity;
and (2) whether the Office properly refused to reopen his case for further review of the merits
pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 24, 2003 appellant, then a 59-year-old letter carrier, injured his left knee, low
back and right hand when he jumped from his work vehicle after a wasp entered it. The Office
accepted a lumbosacral sprain, trigger finger of the right third digit and aggravation of

preexisting left knee osteoarthritis.1 The claim was also accepted for temporary aggravation of a
right shoulder rotator cuff tear.2 Appellant stopped work due to right trigger finger surgery. He
returned to work on September 8, 2003 and retired on September 27, 2003. Appellant underwent
a left knee arthroscopy and partial medial and lateral meniscectomy on October 28, 2003.3
In a decision dated June 21, 2005, the Office granted appellant schedule awards for 35
percent impairment of the left leg and 21 percent impairment of the right arm. The awards
covered the period October 11, 2004 to December 19, 2007.
On July 25, 2007 appellant claimed an additional schedule award. In an October 23,
2007 report, Dr. Martin Fritzhand, a Board-certified urologist, noted appellant’s history and
provided findings on examination. Dr. Fritzhand referred to the American Medical Association,
Guides to the Evaluation of Permanent Impairment, (hereinafter A.M.A., Guides) (5th ed. 2001)
to find that appellant had 33 percent impairment of the right arm and 43 percent impairment to
the left leg. For the right arm, he referred to Figure 16-40 and found that shoulder flexion of
70 degrees resulted in seven percent impairment while extension of 15 degrees yielded two
percent impairment.4 For shoulder abduction and adduction under Figure 16-43, Dr. Fritzhand
noted that 50 degrees of abduction equaled six percent impairment and 10 degrees of adduction
equaled one percent impairment.5 For shoulder rotation, he referred to Figure 16-46 and noted
that 10 degrees of internal rotation equaled two percent impairment and 10 degrees of external
rotation equaled five percent impairment.6 Dr. Fritzhand noted that appellant’s injury was to the
radial nerve and, for sensory impairment, Table 16-15 provided that the maximum impairment
for radial nerve sensory deficit or pain was five percent.7 The impairment was then rated for
severity under Table 16-10.8 Dr. Fritzhand found a Grade 3 or 50 percent sensory deficit and
multiplied this by the 5 percent maximum value for sensory deficit or pain to the radial nerve,
(50 percent times 5 percent) which resulted in 2.5 percent sensory impairment for the radial
nerve. He advised that Table 16-15 provided for a maximum 42 percent impairment for motor
1

Appellant has preexisting conditions which include an irregular heart rhythm, stress, headaches and surgical
history of left knee surgery.
2

Appellant has several prior claims. On July 15, 1992 he had a right index finger bee sting claim File No.
xxxxxx908. The Office accepted that on March 27, 1995 appellant sustained a left shoulder strain with no time lost
from work in claim File No. xxxxxx378. It also accepted that on February 16, 1999 he had a left knee strain and
right shoulder strain under claim File No. xxxxxx488. The Office accepted that on March 4, 2002 appellant
sustained a lumbosacral strain claim File No. xxxxxx989. It also accepted a September 8, 2003 right shoulder,
elbow and left knee contusion and lumbosacral strain claim File No. xxxxxx829. The Office combined File Nos.
xxxxxx309, xxxxxx929 and xxxxxx908 under master File No. xxxxxx488.
3

In a June 15, 2005 decision, the Office denied appellant’s claim for a right rotator cuff tear, as the evidence did
not show that this was causally related to either the June 24 or September 8, 2003 work injuries.
4

A.M.A., Guides 476.

5

Id. at 477.

6

Id. at 479.

7

Id. at 492.

8

Id. at 483.

2

deficit of the radial nerve.9 The impairment was rated for severity under Table 16-11.10
Dr. Fritzhand found a Grade 4 or 25 percent motor deficit and multiplied this by the 42 percent
maximum value for motor deficit of the radial nerve (25 percent times 42 percent) and
determined that appellant had 10.5 percent impairment for motor deficit of the radial nerve. He
used the Combined Values Chart and determined that appellant had an impairment of 33 percent
to the right upper extremity.
For the left leg, appellant had 90 degrees of knee flexion and 10 degrees of extension.
Dr. Fritzhand referred to Table 17-10 and found that the measurements yielded 10 percent and
20 percent impairment.11 He referred to Table 17-7 and advised that appellant had a motor
impairment “4/5.”12 Dr. Fritzhand determined that Table 17-8 supported impairment to the left
leg of 12 percent.13 He also advised that he utilized the guidelines for estimating impairment of
pain to the left lower extremity which resulted in eight percent impairment. Dr. Fritzhand
referred to the Combined Values Chart and determined that appellant had impairment to the left
leg of 43 percent.14
In an August 1, 2008 report, an Office medical adviser concurred with Dr. Fritzhand that
appellant had 33 percent impairment for the right arm and 43 percent for the left leg. He advised
that maximum medical improvement was the date of the examination by Dr. Fritzhand on
October 23, 2007.
By decision dated September 5, 2008, the Office granted appellant additional schedule
awards for 8 percent impairment of the left leg and a 12 percent impairment of the right arm or a
total impairment of 43 percent to the left lower extremity and 33 percent to the right upper
extremity.
The awards covered 60.48 weeks from December 20, 2007 through
February 15, 2009.
On March 18, 2009 appellant requested reconsideration. He noted having severe back
problems and two rotator cuff tears which required surgery. Appellant contended that, despite
being taken off work by his physician, the employing establishment ordered him back to work
and he was forced to retire. The Office received physical therapy notes. An October 10, 2005
emergency room report indicated that appellant was treated for sciatica and lumbago.
In a September 19, 2005 report of a lumbar magnetic resonance imaging (MRI) scan,
Dr. J. Keith Bidwell, a Board-certified diagnostic radiologist, noted multilevel degenerative disc
and facet disease and a small abdominal aortic aneurysm. In a May 9, 2007 lumbar MRI scan,
Dr. Bidwell noted multilevel degenerative disc and facet disease more prominent toward the
right resulting in increased right perolateral recess encroachment and SI root compression. In an
9

Id. at 492.

10

Id. at 484.

11

Id. at 537.

12

Id. at 531.

13

Id. at 532.

14

Id. at 604.

3

October 11, 2004 report, Dr. Kevin J. Paley, a Board-certified orthopedic surgeon, provided an
impairment rating for appellant.15 A May 30, 2007 treatment note from Dr. Harvey S. Hahn, a
Board-certified internist, indicated that appellant was a candidate for back surgery.
By decision dated May 13, 2009, the Office denied appellant’s request for
reconsideration without a review of the merits on the grounds that his request failed to provide
new and relevant evidence and was insufficient to warrant review of its prior decision.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act16 and its
implementing regulations17 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.18
The standards for evaluating the percentage of impairment of extremities under the
A.M.A., Guides are based primarily on loss of range of motion. In determining the extent of loss
of motion, the specific functional impairments, such as loss of flexion or extension, should be
itemized and stated in terms of percentage loss of use of the member in accordance with the
tables in the A.M.A., Guides.19 However, all factors that prevent a limb from functioning
normally should be considered, together with the loss of motion, in evaluating the degree of
permanent impairment.20
ANALYSIS -- ISSUE 1
The Office medical adviser agreed that, Dr. Fritzhand had properly rated the extent of
appellant’s impairment.
For the right arm, Dr. Fritzhand rated shoulder range of motion impairment in
conformance with the A.M.A., Guides. Figure 16-40,21 provides seven percent for 70 degrees of
15

The record reflects that Dr. Paley was part of an earlier medical conflict, prior to receipt of appellant’s first
schedule award in 2005.
16

5 U.S.C. § 8107.

17

20 C.F.R. § 10.404.

18

A.M.A., Guides (5th ed. 2001).

19

See William F. Simmons, 31 ECAB 1448 (1980); Richard A. Ehrlich, 20 ECAB 246, 249 (1969) and cases cited
therein.
20

Bernard A. Babcock, Jr., 52 ECAB 143 (2000); see also Paul A. Toms, 28 ECAB 403 (1987).

21

A.M.A., Guides, 476.

4

forward flexion and two percent for 15 degrees of extension. Under Figure 16-4322 appellant had
impairment of one percent for 10 degrees adduction and six percent for 50 degrees of abduction.
For rotation, under Figure 16-4623 10 degrees of internal rotation is two percent impairment
while 10 degrees of external rotation is five percent impairment. The values for loss of
extension, abduction, adduction and rotation were added to find a total 23 percent right shoulder
impairment.
For sensory and motor impairment, Dr. Fritzhand identified involvement of the radial
nerve. Under Table 16-15 the maximum impairment for sensory deficit of the radial nerve is
five percent.24 The deficit was then rated for severity under Table 16-10.25 Dr. Fritzhand rated a
Grade 3 impairment for distorted superficial tactile sensibility (diminished light touch and twopoint discrimination), with some abnormal sensations or slight pain, that interferes with some
activities. The range of sensory deficit is 26 to 60 percent of the maximum. Dr. Fritzhand
provided a 50 percent grade. He multiplied the 5 percent maximum for sensory deficit of the
radial nerve by the 50 percent deficit grade, to yield 2.5 percent sensory impairment.
Dr. Fritzhand determined that under Table 16-15 the maximum impairment for radial
nerve motor loss was 42 percent.26 The impairment was rated for severity under Table 16-11.27
Dr. Fritzhand rated a Grade 4 deficit for complete active range of motion against gravity with
some resistance. The range of impairment for this grade is from 1 to 25. Dr. Fritzhand allowed
25 percent and multiplied this by the 42 percent maximum value for motor loss to find 10.5
percent impairment of the radial nerve. He referred to the Combined Values Chart to combine
the sensory and motor loss with the rage of motion loss to total 33 percent impairment to the
right arm.
For the left leg, Dr. Fritzhand referred to Table 17-10 to find 10 percent impairment for
knee flexion of 90 degrees and 20 percent for extension of 10 degrees or a 30 percent total for
loss of range of motion.28 Under Table 17-7, appellant had a motor impairment 4/5 or Grade 4.29
Grade 4 impairment for the knee under Table 17-8 represents lower extremity impairment of 12
percent.30 The Board notes that the 30 percent for range of motion and the 12 percent for the
motor deficit when combined is 38 percent impairment of the left lower extremity.31
22

Id. at, 477.

23

Id. at 479.

24

Id. at 492.

25

Id. at 483.

26

Id. at 492.

27

Id. at 484.

28

Id. at 537.

29

Id. at 531.

30

Id. at 532.

31

Id. at 604.

5

Dr. Fritzhand found that appellant had pain to the left lower extremity, which was eight
percent impairment; however, he did not refer to a specific table or the A.M.A., Guides. The
Board finds that this is an improper application of the A.M.A., Guides. The Board has held that
physicians should not use Chapter 18 to rate pain-related impairments for any condition that can
be adequately rated on the basis of the body and organ impairment systems given in other
chapters of the A.M.A., Guides.32 Dr. Fritzhand did not explain how this rating was made under
Chapter 17 of the A.M.A., Guides. The Office medical adviser did not explain how this rating
conformed to the A.M.A., Guides. Consequently, the Office improperly allowed eight percent
leg impairment for pain as this rating is not sufficiently explained.
The Board finds that the medical evidence supports 33 percent impairment of the right
upper extremity and 38 percent of the left lower extremity. Appellant has not submitted any
other medical evidence conforming with the A.M.A., Guides establishing a greater impairment.
On appeal, appellant argued as to the amount or insufficiency of his award, his last
accident, retirement and the extent of his injures. As noted, the issue on appeal concerns the
impairment rating of his right arm and left leg. Factors such as employability or limitations on
daily activities have no bearing on the calculation of a schedule award.33
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,34 the Office may reopen a case for review on the merits
in accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provide that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(1) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(2) Advances a relevant legal argument not previously considered by the Office;
or
“(3) Constitutes relevant and pertinent new evidence not previously considered by
the [the Office].”35

32

See Linda Beale, 57 ECAB 429 (2006); Frantz Ghassan, 57 ECAB 349 (2006). See A.M.A., Guides 571. See
also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700 Exhibit 4
(November 2002). See A.G., 58 ECAB 582 (2007).
33

J.H., 60 ECAB ___ (Docket No. 08-2432, issued June 15, 2009).

34

5 U.S.C. § 8128(a).

35

20 C.F.R. § 10.606(b).

6

Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.36
ANALYSIS -- ISSUE 2
Appellant disagreed with the amount of his schedule award and requested
reconsideration. The underlying issue on reconsideration was whether he has greater impairment
than the 33 percent for the right arm or 43 percent for the left leg for which he has received
schedule awards. This is a medical determination; however, appellant did not submit any
relevant or pertinent new evidence.
Appellant’s arguments on reconsideration included that he had severe back problems and
underwent two rotator cuff surgeries that were not approved by the Office. As noted, the issue is
the extent of permanent impairment. Appellant’s arguments regarding surgery are not relevant to
the issue of his request for an increased award.37 He also disagreed with the schedule awards
received, contending that the surgery to his back was not successful. However, appellant did not
submit any medical evidence from a physician. His arguments regarding the employing
establishment, retirement or dissatisfaction with his prior representative are not relevant to the
issue on appeal. Appellant’s assertions do not establish that the Office erroneously applied or
interpreted a specific point of law or advance a relevant legal argument not previously
considered by the Office.
Appellant also submitted physical therapy records; however, they are not relevant or
pertinent to the issue on appeal. The various diagnostic studies and treatment note of Dr. Hahn,
do not address the issue of permanent impairment. This evidence does not constitute a basis for
reopening the case for further merit review.38
The Board also notes that appellant resubmitted an October 11, 2004 report from
Dr. Paley previously of record and considered in the adjudication of appellant’s first schedule
award. It is not relevant to his claim for an increased award filed in 2007. The submission of
evidence which repeats or duplicates evidence that is already in the case record does not
constitute a basis for reopening a case for merit review.39 Appellant did not provide any relevant
and pertinent new evidence to the issue of whether he was entitled to an increased schedule
award.

36

Id. at § 10.608(b).

37

The Board notes that if appellant were to undergo authorized surgery, he may seek an increased schedule award
if the evidence establishes that progression of an employment-related condition, without new exposure to
employment factors, has resulted in a greater permanent impairment than previously calculated. See Linda T.
Brown, 51 ECAB 115 (1999).
38

Alan G. Williams, 52 ECAB 180 (2000); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000); Robert P.
Mitchell, 52 ECAB 116 (2000).
39

Khambandith Vorapanya, 50 ECAB 490 (1999); John Polito, 50 ECAB 347 (1999); David J. McDonald,
50 ECAB 185 (1998).

7

Consequently, the evidence submitted by appellant on reconsideration does not satisfy the
third criterion, noted above, for reopening a claim for merit review. Furthermore, appellant also
has not shown that the Office erroneously applied or interpreted a specific point of law or
advanced a relevant new argument not previously submitted. Therefore, the Office properly
denied his request for reconsideration.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he has
greater than the 33 percent impairment of the right upper extremity and 43 percent impairment of
the left lower extremity, for which he received a schedule award. The Board also finds that the
Office properly refused to reopen appellant’s case for further review of the merits of his claim
under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 13, 2009 is affirmed. The September 9, 2008 schedule
award decision is affirmed as modified.
Issued: June 11, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board

_________________________________________
K.K., Appellant
and
DEFENSE AGENCIES, NATIONAL
GEOSPATIAL-INTELLIGENCE AGENCY
STAINT LOUIS, Springfield, VA, Employer
_________________________________________

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

Docket No. 14-1318
Issued: October 15, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 13, 2014 appellant filed a timely appeal from the November 15, 2013 Office of
Workers’ Compensation Programs’ (OWCP) schedule award decision. 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 schedule award determination.2
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, for which she received a schedule award.
1
2

5 U.S.C. § 8101 et seq.

Under the Board’s Rules of Procedure an appeal must be filed within 180 days from the date of the last OWCP
decision. An appeal is considered filed upon receipt by the Clerk of the Board. One hundred and eighty days from
November 15, 2013, the date of OWCP’s decision, was May 14, 2014. Since using May 19, 2014, the date the
appeal was received by the Clerk of the Board, would result in the loss of appeal rights, the date of the postmark is
considered the date of filing. The date of the U.S. Postal Service postmark is May 13, 2014 which rendered the
appeal timely filed. See 20 C.F.R. § 501.3(f)(1).

FACTUAL HISTORY
On February 22, 2011 appellant, then a 61-year-old team leader, fell on her left elbow
and knee and twisted her right ankle in the performance of duty. She stopped work on
February 22, 2011. OWCP accepted the claim for sprain of the right ankle, contusion of the left
knee, contusion of the left elbow and right lateral ankle instability. It also authorized a
February 7, 2012 right ankle surgery. Appellant received appropriate compensation and benefits.
In a letter dated May 16, 2013, OWCP advised appellant that she may be entitled to a
schedule award of compensation. On June 10, 2013 appellant filed a claim for a schedule award.
In a letter dated June 14, 2013, OWCP informed appellant of the type of evidence needed
to support her claim for a schedule award and requested that she submit such evidence within 30
days. It advised her that her physician should provide a medical report and opinion on whether
her condition had reached maximum medical improvement and a detailed description of any
impairment in accordance with the American Medical Association, Guides to the Evaluation of
Permanent Impairment, (6th ed. 2009) (hereinafter, A.M.A., Guides).
In a June 19, 2013 report, Dr. Richard B. Helfrey, an orthopedic surgeon and osteopath,
noted appellant’s history of injury and treatment and indicated that on February 7, 2012 he
performed a Brostrom-Gould lateral ankle reconstruction to her right ankle and she was placed in
a splint. He advised that she tolerated this procedure well and indicated that she had no
immediate postoperative concerns. Dr. Helfrey noted that on appellant’s last visit on
December 28, 2012, she demonstrated no instability whatsoever to talar or tilt testing. He
advised that her ankle was well aligned and the incision was completely healed. Dr. Helfrey
noted that she had tenderness over the sinus tarsi fat pad areas, no deltoid ligament laxity and 10
to 12 degrees of dorsiflexion and 35 to 40 degrees of plantar flexion. He explained that he
thought appellant’s strength was quite good at the time and released her to maximum medical
improvement. Dr. Helfrey opined that with her range of motion and persistent symptoms, she
had two percent whole person impairment which equated to five percent impairment of the lower
extremity or seven percent to the foot and ankle. He did not indicate that he used the A.M.A.,
Guides.
On August 21, 2013 OWCP referred appellant for a second opinion to determine the
extent of her work-related residuals and whether she sustained a permanent impairment, along
with a statement of accepted facts, a set of questions and the medical record to Dr. Richard T.
Katz, Board-certified in physical medicine and rehabilitation.
In an October 3, 2013 report, Dr. Katz noted appellant’s history of injury and examined
her right ankle. The right ankle showed clear swelling without warmth or redness and pain on
the medial and lateral portion of the ankle. Dr. Katz opined that appellant reached maximum
medical improvement on October 28, 2012. He explained that the most appropriate way to rate
her ankle, was to use range of motion (ROM). Dr. Katz noted that appellant had dorsiflexion of
20 degrees, plantar flexion of 30 degrees, inversion of 10 degrees and eversion of 20 degrees.
He advised that her fracture healed without objective findings and referred to page 503 of the
A.M.A., Guides, which revealed a zero percent rating for the fracture. Dr. Katz noted that
appellant’s range of motion revealed a slight loss of plantar flexion, which according to page 549
of the A.M.A., Guides, was not ratable. He noted that the hindfoot impairment revealed five
2

degrees of inversion or five percent lower extremity impairment. Dr. Katz referred to Table
16.25 of the A.M.A., Guides and noted that this was a class 1 impairment. He found a functional
history of grade 2 impairment and found “the PE” was “a grade 2 impairment with significant
swelling.” Dr. Katz explained that according to page 548 of the A.M.A., Guides, “if functional
history modifier exceeds the impairment class and requirements stated above are met, modify the
final impairment.” He indicated that no further instructions were given and opined that appellant
had a seven percent lower extremity impairment based on the loss of ROM, swelling and
functional history.
In an October 16, 2013 report, OWCP’s medical adviser noted that the date of maximum
medical improvement was October 3, 2013, the date of Dr. Katz’s report. He utilized
Table 16-20, Table 16-22 and Table 16-25 of the A.M.A., Guides. The medical adviser
explained that Dr. Katz incorrectly reported a finding for ROM for inversion that was not
supported by the right ankle examination. He explained that dorsiflexion of 20 degrees
corresponded to zero percent impairment, plantar flexion of 30 degrees corresponded to zero
percent impairment, inversion of 10 degrees corresponded to two percent impairment and
eversion of 20 degrees was zero percent impairment. The medical adviser referred to Table
16-17 and found that the 2 percent rating for ROM multiplied by 5 percent (for a functional
history net modifier) yielded 0.1 percent, which, when added to 2 percent impairment, was equal
to 2.1 percent, which rounded down to 2 percent. He explained that since the rating was a
hindfoot rating, it was rounded off as two percent pursuant to Table 16-25. The medical adviser
explained that Dr. Katz incorrectly calculated that the rating had been five degrees of inversion
whereas the examination finding was 10 degrees. He determined that appellant had two percent
impairment of the right leg.
Accordingly, on November 15, 2013, OWCP granted appellant a schedule award for two
percent permanent impairment of the right leg. The award covered a period of 5.76 weeks from
October 3 to November 12, 2013.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing federal regulations,4 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.5 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.6
For decisions issued after May 1, 2009, the sixth edition will be used.7
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

7

FECA Bulletin No. 09-03 (issued March 15, 2009).

3

The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS). The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).8 The sixth edition of the A.M.A., Guides
also provides that range of motion may be selected as an alternative approach in rating
impairment under certain circumstances. A rating that is calculated using range of motion may
not be combined with a diagnosis-based impairment and stands alone as a rating.9
Range of motion should be measured after a warm up, in which the individual moves the
joint through its maximum range of motion at least three times. The range of motion
examination is then performed by recording the active measurements from three separate range
of motion efforts. All measurements should fall within 10 degrees of the mean of these three
measurements. The maximum observed measurement is used to determine the range of motion
impairment.10
OWCP’ procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the percentage of
impairment using the A.M.A., Guides.11
ANALYSIS
The Board finds that this case is not in posture for decision.
OWCP accepted appellant’s claim for sprain of the right ankle, contusion of the left knee,
contusion of the left elbow and right lateral ankle instability. It issued a schedule award for a
two percent impairment of the right leg based on the October 16, 2013 opinion of OWCP’s
medical adviser.
In support of her claim, appellant submitted a June 19, 2013 report from Dr. Helfrey, who
noted appellant’s February 7, 2012 right ankle surgery and her postoperative course. Dr. Helfrey
noted that on her last visit on December 28, 2012, she demonstrated no instability whatsoever to
talar or tilt testing and that her ankle was well aligned and the incision was completely healed.
He indicated that appellant had 10 to 12 degrees of dorsiflexion and 35 to 40 degrees of plantar
flexion. Dr. Helfrey opined that with her range of motion and persistent symptoms, she had two
percent whole person impairment, five percent lower extremity impairment or seven percent
impairment to the foot and ankle. The Board notes that it is unclear how he arrived at these
values as he did not refer to the A.M.A., Guides. It is well established that when the attending
physician fails to provide an estimate of impairment conforming to the A.M.A., Guides, his or

8

A.M.A., Guides 521.

9

L.B., Docket No. 12-910 (issued October 5, 2012).

10

A.M.A., Guides 464.

11

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

4

her opinion is of diminished probative value in establishing the degree of permanent
impairment.12 Thus, OWCP properly referred appellant to Dr. Katz.
In his October 3, 2013 report, Dr. Katz examined appellant and opined that range of
motion was the best way to rate her impairment due to her right ankle injury. Although he noted
right ankle inversion of 10 degrees in noting examination findings, he reported it as five degrees
when conducting his rating which he found equated to five percent lower extremity impairment.
Dr. Katz advised that appellant had a class 1 impairment under Table 16-25 of the A.M.A.,
Guides and that she had a functional history grade 2 net modifier. He explained that according to
page 548 of the A.M.A., Guides, “if functional history modifier exceeds the impairment class
and requirements stated above are met, modify the final impairment.” Dr. Katz noted that there
were no further instructions in the A.M.A., Guides and opined that appellant had a seven percent
lower extremity impairment.
In an October 16, 2013
incorrectly reported a finding for
examination. He advised that
impairment and that application
percentage.

report, OWCP’s medical adviser explained that Dr. Katz
ROM for inversion that was not supported by his right ankle
inversion of 10 degrees corresponded to two percent leg
of the functional history net modifier did not change this

The Board notes that both Dr. Katz, the second opinion physician and OWCP’s medical
adviser provided findings and an opinion utilizing range of motion method for rating appellant’s
impairment. While OWCP’s medical adviser correctly noted that Dr. Katz used an incorrect
measurement for inversion, neither physician provided a range of motion rating fully in
conformance with the procedure outlined in the A.M.A., Guides. In particular, the Board notes
that there is no indication that Dr. Katz measured range of motion three times after a warm up
and then utilized the average of the measurements as required by section 15.7 of the A.M.A.,
Guides.13 As Dr. Katz did not follow the appropriate procedures for documenting range of
motion, his report and that of the medical adviser, who used Dr. Katz’s measurements, are of
limited probative value.14
It is well established that proceedings under FECA are not adversarial in nature and,
while the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.15 Once OWCP undertakes development of the
medical evidence, it has the responsibility to do so in a proper manner.16 The reports from
Dr. Katz and OWCP’s medical adviser are insufficient to resolve the issue of whether appellant
was entitled to a greater schedule award. As OWCP did not properly discharge its
responsibilities in developing the record, the Board finds that the case must be remanded for
12

Linda Beale, 57 ECAB 429 (2006); see also E.S., Docket No. 11-1162 (issued November 17, 2011).

13

See supra note 10.

14

See D.U., Docket No. 13-2086 (issued February 11, 2014) (where there was no indication that a physician
obtained three joint measurements, the physician’s report was of diminished probative value).
15

Richard E. Simpson, 55 ECAB 490 (2004).

16

Melvin James, 55 ECAB 406 (2004).

5

further development of the medical evidence and a reasoned opinion regarding whether appellant
has more than a two percent permanent impairment of her right leg, for which she received a
schedule award.17 Following such further development as deemed necessary, OWCP shall issue
a de novo decision.
On appeal, appellant argued that she believed she was entitled to a greater award as both
her physician and the second opinion physician gave her a higher rating. However, as found
above, the case is not in posture for decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 15, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and remanded.
Issued: October 15, 2014
Washington, DC

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

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

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

17

Richard F. Williams, 55 ECAB 343 (2004).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
)
__________________________________________ )
T.D., Appellant

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

Docket No. 20-0921
Issued: November 12, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On March 24, 2020 appellant filed a timely appeal from a March 16, 2020 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 March 16, 2020 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.

ISSUE
The issue is whether appellant has met his burden of proof to establish that he developed
trigger finger of the right middle finger causally related to the accepted factors of his federal
employment.
FACTUAL HISTORY
On January 6, 2020 appellant, then a 35-year-old sheet metal mechanic, filed an
occupational disease claim (CA-2) alleging that he sustained trigger finger of the right middle
finger due to factors of his federal employment. He noted that he first became aware of his
condition and first realized its relation to his federal employment on August 29, 2019. Appellant
explained that he was using a rivet gun to disassemble a nose cowl when his right hand and middle
finger began to cramp and hurt. He stopped work on September 27, 2019.
In a September 27, 2019 medical report, Jessica Deppen, a registered nurse, evaluated
appellant for right hand pain radiating up his arm that he had experienced for the past month. He
reported that he used his right middle finger to operate an air drill and medic rivet gun at work and
suspected that this was the cause of his pain. On evaluation, Ms. Deppen diagnosed right hand
pain and referred appellant for an x-ray of his right hand.
In a December 19, 2019 medical note, Dr. Mehdi Adham, a Board-certified orthopedic
surgeon, diagnosed trigger middle finger of the right hand and right hand pain.
In an undated statement, appellant explained that his position as a sheet metal mechanic
required him to use his right middle finger to operate a rivet gun and a drill for 8 to 10 hours a day
for 5 to 6 days per week. He provided a definition for trigger finger and detailed the development
of his symptoms beginning on or about August 29, 2019. Appellant recalled experiencing
progressively worsening pain and cramping in his right hand and middle finger until the pain
became constant and he was unable to use his right hand to operate his tools. On October 17, 2019
he was diagnosed with trigger finger of the right middle finger and right hand pain. Appellant
asserted that he had no prior medical history associated with trigger finger or his right hand.
Appellant also submitted a position description of his duties as a sheet metal mechanic.
By development letter dated January 15, 2020, OWCP advised appellant that it required
additional factual and medical evidence to determine whether he was eligible for FECA benefits.
It requested that he submit medical evidence which contained a firm diagnosis and a physician’s
opinion supported by a medical explanation as to how the work activities in his federal
employment caused, contributed to, or aggravated his medical condition. In a separate
development letter of even date, OWCP requested that the employing establishment provide
comments from a knowledgeable supervisor regarding the accuracy of appellant’s allegations. It
afforded both parties 30 days to respond.
In medical reports dated September 27 and October 21, 2019, Dr. Edward King, Boardcertified in occupational medicine, evaluated appellant for right hand and middle finger pain. He
noted appellant’s employment as a sheet metal mechanic and the development of his symptoms as

2

they related to his use of a rivet gun. Dr. King diagnosed tendinitis of the right middle finger and
released him to return to work with restrictions.
In medical reports dated from October 17, 2019 to January 24, 2020 Dr. Adham diagnosed
right trigger finger of the right middle finger and right hand pain and detailed his treatment of
appellant’s condition through the use of steroid injections. In his January 24, 2020 medical report,
he observed that the steroid injections did not give significant relief and suggested that appellant
undergo a right long finger trigger release.
In a January 27, 2020 operative report, Dr. Adham performed a right middle finger trigger
release. He provided discharge instructions of even date that explained that trigger finger is caused
when the sheaths of the flexor tendons of the thumb and fingers become swollen and put pressure
on the tendons, locking the fingers into a bent position. Dr. Adham stated that trigger finger is
often the result of repetitive gripping motions.
In a February 11, 2020 medical report, Dr. Adham evaluated appellant after his January 27,
2020 surgery to treat his trigger middle finger of the right hand and instructed him to follow up in
one month.
In an undated statement, the employing establishment agreed with appellant’s allegations
and provided that he performed nose cowl refurbishment for six to seven hours a day. It also
submitted a position description of his duties as a sheet metal mechanic.
By decision dated March 16, 2020, OWCP denied appellant’s occupational disease claim,
finding that the medical evidence of record was insufficient to establish that his diagnosed medical
condition was causally related to the accepted factors of his federal employment.
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 timely filed within the applicable
time limitation period of FECA,3 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.4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5
K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).

3

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.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors must be based on a
complete factual and medical background.8 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factors.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he
developed trigger finger of the right middle finger due to factors of his federal employment.
In Dr. Adham’s January 27, 2020 hospital record and discharge instructions, he noted
performing a right middle finger trigger release to treat appellant’s trigger finger of the right middle
finger. The discharge instructions explained in general terms that trigger finger is caused when
the sheaths of the flexor tendons of the thumb and fingers become swollen and put pressure on the
tendons, locking the fingers into a bent position. He noted that trigger finger is often the result of
repetitive gripping motions. However, as the physician failed to specifically attribute the condition
to the employment factors, this report is insufficient to establish his burden of proof.10 Without
explaining how, physiologically, appellant’s use of his right middle finger to use his tools caused
or contributed to his diagnosed condition, Dr. Adham’s January 27, 2020 medical evidence is of
limited probative value.11
Dr. Adham’s remaining medical evidence consisted of medical reports dated from
October 17, 2019 to February 11, 2020 in which he discussed his use of steroid injections to treat
appellant’s symptoms of pain as they related to his trigger finger of the right middle finger.
However, he did not specifically discuss how or why appellant’s condition was caused or

6

R.G., Docket No. 19-0233 (issued July 16, 2019). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I.
Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
7

T.H., 59 ECAB 388, 393 (2008); Robert G. Morris, 48 ECAB 238 (1996).

8

M.V., Docket No. 18-0884 (issued December 28, 2018).

9

Id.; Victor J. Woodhams, supra note 6.

10

Supra note 8 and 9; see also S.G., Docket No. 18-1271 (issued March 1, 2019).

11

M.M., Docket No. 19-0061 (issued November 21, 2019); see L.M., Docket No. 14-0973 (issued August 25, 2014);
R.G., Docket No. 14-0113 (issued April 25, 2014); K.M., Docket No. 13-1459 (issued December 5, 2013); A.J., Docket
No. 12-0548 (issued November 16, 2012).

4

aggravated by the accepted factors of his federal employment.12 As stated previously, without
explaining how appellant’s employment factors caused or contributed to his diagnosed condition,
Dr. Adham’s remaining medical evidence is of limited probative value.13
In medical reports dated from September 27 to October 21, 2019, Dr. King evaluated
appellant for right hand and middle finger pain. He acknowledged his employment as a sheet
metal mechanic and the development of his symptoms as they related to his use of a rivet gun and
diagnosed tendinitis of the right middle finger. The Board finds that Dr. King did not offer medical
rationale sufficient to explain how and why he believes appellant’s employment factors could have
resulted in or contributed to the diagnosed condition. Without explaining how appellant’s use of
a rivet gun caused or contributed to his condition, Dr. King’s medical reports are of limited
probative value.14
The remaining medical evidence consisted of a September 27, 2019 medical report from
Ms. Deppen. The Board has consistently held that certain healthcare providers such as physician
assistants, registered nurses, physical therapists, and social workers are not considered physician[s]
as defined under FECA.15 Consequently, their medical findings and/or opinions will not suffice
for purposes of establishing entitlement to FECA benefits.16
As appellant has not submitted rationalized medical evidence establishing that his trigger
finger of the right middle finger is causally related to the accepted factors of his federal
employment, the Board finds that he has not met his burden of proof to establish his claim.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
developed trigger finger of the right middle finger due to factors of his federal employment.

12

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

13

Supra note 11.

14

See A.P., Docket No. 19-0224 (issued July 11, 2019).

15

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

Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal
Relationship, Chapter 2.805.3a(1) (January 2013). See also T.W., Docket No. 19-1412 (issued February 3, 2020);
K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); D.H., Docket
No. 18-0072 (issued January 21, 2020) (physical therapists are not considered physicians under FECA).
16

5

ORDER
IT IS HEREBY ORDERED THAT the March 16, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 12, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.F., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Little Rock, AR,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 12-1816
Issued: May 21, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On September 4, 2012 appellant filed a timely appeal from a July 25, 2012 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 established an emotional condition causally related to
a compensable work factor.
FACTUAL HISTORY
On April 18, 2012 appellant, then a 39-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that he sustained stress as a result of an altercation with a coworker
1

5 U.S.C. § 8101 et seq.

on that date. He submitted a statement that on April 18, 2012 at approximately 3:30 p.m. he was
“on union time” and while walking down a hallway a coworker, Joe Smith, came up to him and
stated that “your boys are campaigning against you” in an upcoming union election. Appellant
alleged that there was a verbal altercation and Mr. Smith bumped him with his forehand and
pushed him in the face.
The record contains a witness statement from Delores Overton that she heard loud talking
and she came into the hall and told appellant and Mr. Smith to stop. By letter dated April 30,
2012, OWCP advised appellant that the evidence was not sufficient to establish the incident as
alleged. It also advised that he needed to submit medical evidence regarding his claim.
On May 7, 2012 appellant submitted May 4, 2012 statements from three coworkers
indicating that they observed scratches on appellant’s face. In a report of interview with
Mr. Smith dated April 19, 2012, an employing establishment inspector reported that Mr. Smith
denied striking or touching appellant. In an April 23, 2012 report, the inspector indicated that
appellant was asked why Mr. Smith would push him, and appellant stated that it might be due to
the upcoming union elections. The report also indicated that appellant was a union steward. In a
letter dated May 24, 2012, the employing establishment argued that appellant had not submitted
factual and medical evidence to establish his claim.
By decision dated July 25, 2012, OWCP denied the claim for compensation. It found that
the altercation involved internal union business and was a private dispute imported into the
workplace.
LEGAL PRECEDENT
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his or her regular or specially assigned work duties or to a requirement
imposed by the employment, the disability comes within the coverage of FECA.2
With regard to union activities in general, the Board has adhered to the principle that union
activities are personal in nature and are not considered to be within the course of employment.3
The Board has recognized an exception to the general rule in that employees performing
representational functions which entitle them to official time are in the performance of duty and
entitled to all benefits of FECA if injured in the performance of those functions. The rationale for

2

Lillian Cutler, 28 ECAB 125 (1976).

3

Marie Boylan, 45 ECAB 338 (1994).

2

this exception is that activity undertaken in the capacity of union office may simultaneously serve
the interests of the employer.4
OWCP procedures discuss union representational functions and official time.5 There are
specific guidelines for case development when union activity may be involved:
“When an employee claims to have been injured while performing representational
functions, an inquiry should be made to the official superior to determine whether
the employee had been granted ‘official time’ or, in emergency cases, would have
been granted official time if there had been time to request it. If so, the claimant
should be considered to have been in the performance of duty. This includes Postal
Service employees who are ‘on the clock’ while performing representational
activities under the National Agreement.6
“If an agency states that the employee was not performing an activity for which
official time is allowed, [OWCP] should issue a letter warning [appellant] that the
case will be denied unless additional information is provided, and allowing 30 days
for a response. If there is no timely response from [appellant], a formal decision
should be issued on the grounds that [appellant] is not in the performance of duty.
“If [appellant] provides evidence contradicting the [employing establishment’s]
position, the official superior should be asked to reply to his evidence.... [OWCP]
will accept the ruling of the [employing establishment] as to whether a
representative was entitled to official time unless the ruling is later overturned by a
duly authorized appellate body.7”
ANALYSIS
Appellant has alleged that he was involved in a verbal and physical altercation with a
coworker on April 18, 2012. According to appellant, he was “on union time” and the record
indicates that he was a union steward. The July 25, 2012 OWCP decision finds the altercation
was not a compensable work factor as it was private union business.
OWCP did not, however, follow its own procedures with respect to the development of
the claim. There was little of evidence of record as to appellant’s work status at the time of the
alleged incident on April 18, 2012. OWCP should have sought evidence from the employing
establishment as to whether appellant was performing representational functions that would
bring the alleged altercation within the performance of duty. The procedures noted above
provide specific guidelines as to what constitutes representational functions and official time. If
the employing establishment found that appellant was not performing representational functions,
4

Id.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.16 (September 2010).

6

Id. 2.804.16(e).

7

Id.

3

appellant should have been advised of the finding and provided an opportunity to submit relevant
evidence on the issue. Failing the submission of such evidence, the employing establishment’s
position that appellant was not in a representational capacity would determine the outcome of
that issue.
The case will be remanded to OWCP to develop the case in accord with its own
procedures. After such further development as OWCP deems necessary, it should issue an
appropriate decision.
CONCLUSION
The Board finds the case is not in posture for decision and is remanded for further
development in accord with OWCP procedures regarding union activity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 25, 2012 is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: May 21, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
DEPARTMENT OF THE ARMY, HUMAN
RESOURCES COMMAND, Alexandria, VA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-2339
Issued: May 22, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On August 25, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ November 16, 2007 and July 31, 2008 merit decisions regarding the
termination of his compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s compensation effective
November 16, 2007 on the grounds that he refused an offer of suitable work.
FACTUAL HISTORY
The Office accepted that on February 6, 1997 appellant, then a 41-year-old computer
specialist, sustained a lumbar strain and aggravation of degenerative disc disease of the lumbar
spine when he attempted to untangle cable under an employee’s desk at work. Appellant stopped
work on October 22, 1997 and received Office compensation for periods of disability.

Appellant received treatment for his back problems from Dr. David Petersen, an
attending Board-certified orthopedic surgeon. In an undated report received by the Office in
November 2005, Dr. Petersen asserted that appellant was “not gainfully employable” due to his
chronic back pain. He indicated that appellant’s condition was permanent in nature.1 In a
September 26, 2005 report, Dr. Adam Bright, a Board-certified orthopedic surgeon, who served
as an Office referral physician, agreed with Dr. Petersen that appellant had continuing residuals
of his accepted employment injuries. He indicated that appellant could perform sedentary, lightduty work for four hours per day with restrictions such as lifting no more than five pounds.2
A functional capacity evaluation (FCE) was performed on October 11, 2005 which
showed that appellant could perform activities at a “light-sedentary physical demand level.” The
findings that appellant could only sit for one to two hours per day in 10-minute intervals was
marked as “conditionally valid.” The evaluator noted that appellant displayed inconsistencies in
performing various tasks.
The Office determined that there was a conflict in the medical opinion between
Dr. Petersen and Dr. Bright regarding the extent to which appellant was able to work. In
October 2006 it referred appellant to Dr. Howard Schuele, a Board-certified orthopedic surgeon,
for an impartial medical examination and an opinion on the matter.3
In a November 2, 2006 report, Dr. Schuele stated that on examination appellant did not
exhibit back muscle firmness or spasms upon range of motion testing. Appellant had full lateral
bending and rotation of his back but expressed pain on some back motions. He was able to heel
walk, toe walk and do a deep knee bend, his straight leg raising was 90/90 with slight pain,
sensation in his lower extremities was intact and there were no signs of atrophy. Dr. Schuele
indicated that diagnostic testing showed mild lumbar disc degeneration without disc herniation.
He indicated that appellant suffered from a permanent lumbar condition and noted that appellant
could perform sedentary, light-duty work for four hours per day. In a November 10, 2006 work
restrictions form, Dr. Schuele stated that appellant could work for four hours per day, sit for four
hours per day, walk or stand for two hours per day and lift, push or pull up to five pounds for one
hour per day. He could not twist, bend, squat, kneel or climb and needed to take a 10-minute
break every 90 minutes.
In January 2007 the employing establishment offered appellant a light-duty job as a
modified information technology specialist for four hours per day. The job involved performing
simple clerical tasks. The employing establishment required sitting for four hours per day,
walking or standing for two hours per day and lifting, pushing or pulling up to five pounds for
one hour per day. The job did not require twisting, bending, squatting, kneeling or climbing and
allowed 10-minute breaks every 90 minutes.
1

Dr. Petersen indicated that appellant drove his car for 5,000 miles per year. He continued to produce reports
indicating that appellant was totally disabled.
2

In mid October 2005 Dr. Bright indicated that appellant could perform more arduous work including lifting up
to 10 pounds. He stated that appellant could work six hours per day.
3

In an August 25, 2006 report, Dr. Ron Lopez, an attending Board-certified psychiatrist, stated that appellant had
a major depressive disorder that was in partial remission.

2

In a September 4, 2007 letter, the Office advised appellant of its determination that the
modified information technology specialist position offered by the employing establishment was
suitable. It informed appellant that his compensation would be terminated if he did not accept
the position or provide good cause for not doing so within 30 days of the date of the letter.
In a September 24, 2007 letter, appellant’s attorney stated that appellant was refusing the
offered position because it was unsuitable. Counsel asserted that the position of modified
information technology specialist failed to take into account the claimant’s various medical
conditions, including diabetes, arthritis and major depressive disorder. He indicated that
appellant took numerous prescription medications daily and was not able to drive. In an
October 4, 2007 letter, the Office advised appellant that his reasons for not accepting the position
offered by the employing establishment were unjustified. It advised appellant that his
compensation would be terminated if he did not accept the position within 15 days of the date of
the letter. Appellant did not accept the job within the allotted time.4
In a November 16, 2007 decision, the Office terminated appellant’s compensation
effective November 16, 2007 on the grounds that he refused an offer of suitable work. It
indicated that the weight of the medical evidence regarding appellant’s ability to work rested
with the well-rationalized opinion of Dr. Schuele.
Appellant requested a hearing before an Office hearing representative regarding his
claim. At the telephone hearing held on June 4, 2008, he testified that he had been under the care
of Dr. Lopez for four years. Appellant asserted that he suffers from chronic pain and cannot
concentrate or read due to his medications which included morphine and Percocet. He testified
that he could not sit or stand for extended periods of time but noted that he is able to drive a car
and operated a garden tractor at his house. Counsel argued that the medical report of Dr. Schuele
was contradictory and not supported by the results of the FCE performed on October 11, 2005.
He contended that the Office failed to take into account all of the claimant’s medical conditions
when it determined that the job offer was suitable. It also failed to consider the amount of
medications that appellant takes.
Appellant submitted a March 10, 2008 report in which Dr. Lopez indicated that he treated
appellant for a major depressive disorder which he believed was mostly related to his back injury
and the resulting chronic pain. Dr. Lopez stated:
“I have reviewed the job offer dated January 8, 2007. I do not believe that
[appellant] would be capable of performing the duties of this job as he is
incapable of performing anything but a very minimal stress position.
Additionally, I believe the physical activities will exacerbate his chronic pain and,
thus, aggravate his major depressive disorder to the point that he would be a risk
to himself and others due to anxiety and lack of concentration.”
In a July 31, 2008 decision, the Office hearing representative affirmed the Office’s
July 31, 2008 decision indicating the evidence from the time of that decision showed that the
4

On September 20, 2007 appellant underwent an FCE which showed that he could perform light-duty work with
restrictions such as no lifting over 18 pounds.

3

offered position was suitable. He indicated that appellant later submitted a March 10, 2008
report of Dr. Lopez which required remanding the case to it for further development to determine
whether he had an emotional condition which prevented him from performing the offered
position. The Office hearing representative indicated that appellant’s compensation would not
be reinstated because there was no evidence of psychiatric disability when appellant’s
compensation was terminated effective November 16, 2007.
LEGAL PRECEDENT
Section 8106(c)(2) of the Federal Employees’ Compensation Act provides in pertinent
part, “A partially disabled employee who refuses or neglects to work after suitable work is
offered ... is not entitled to compensation.”5 However, to justify such termination, the Office
must show that the work offered was suitable.6 An employee who refuses or neglects to work
after suitable work has been offered to him has the burden of showing that such refusal to work
was justified.7
Section 8123(a) of the Act provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”8 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of the Act, to resolve the conflict in the medical
evidence.9 In situations where there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving the
conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper
factual background, must be given special weight.10
ANALYSIS
The Office accepted that on February 6, 1997 appellant sustained a lumbar strain and
aggravation of degenerative disc disease of the lumbar spine when he attempted to untangle
cable under an employee’s desk at work. Appellant stopped work on October 22, 1997 and in
January 2007 the employing establishment offered him light-duty work as a modified
information technology specialist. The job involved performing simple clerical tasks. It
required sitting for four hours per day, walking or standing for two hours per day and lifting,
pushing or pulling up to five pounds for one hour per day. The job did not require twisting,
bending, squatting, kneeling or climbing and allowed 10-minute breaks every 90 minutes.
5

5 U.S.C. § 8106(c)(2).

6

David P. Camacho, 40 ECAB 267, 275 (1988); Harry B. Topping, Jr., 33 ECAB 341, 345 (1981).

7

20 C.F.R. § 10.517; see Catherine G. Hammond, 41 ECAB 375, 385 (1990).

8

5 U.S.C. § 8123(a).

9

William C. Bush, 40 ECAB 1064, 1975 (1989).

10

Jack R. Smith, 41 ECAB 691, 701 (1990); James P. Roberts, 31 ECAB 1010, 1021 (1980).

4

In determining that appellant was physically capable of performing the modified
information technology specialist position, the Office properly relied on the opinion of
Dr. Schuele, a Board-certified orthopedic surgeon who served as an impartial medical
specialist.11
The Office properly determined that there was a conflict in the medical opinion between
Dr. Petersen, an attending Board-certified orthopedic surgeon and Dr. Bright, a Board-certified
orthopedic surgeon who served as an Office referral physician, regarding the extent to which
appellant was able to work. In several reports dated from late 2005 onwards, Dr. Petersen
asserted that appellant was not gainfully employable due to his chronic back pain. In contrast,
Dr. Bright indicated in a September 26, 2005 report that appellant could perform sedentary,
light-duty work for four hours per day with restrictions on such activities such as lifting.12 In
order to resolve the conflict, the Office properly referred appellant, pursuant to section 8123(a)
of the Act, to Dr. Schuele for an impartial medical examination and an opinion on the matter.
In a November 2, 2006 report, Dr. Schuele stated that on examination appellant did not
exhibit back muscle firmness or spasms upon range of motion testing. He had full lateral
bending and rotation of his back but expressed pain on some back motions. Appellant was able
to heel walk, toe walk and do a deep knee bend, his straight leg raising was 90/90 with slight
pain, sensation in his lower extremities was intact and there were no signs of atrophy. He found
that appellant could perform sedentary, light-duty work for four hours per day. In a
November 10, 2006 work restrictions form, Dr. Schuele stated that appellant could work for four
hours per day, sit for four hours per day, walk or stand for two hours per day and lift, push or
pull up to five pounds for one hour per day. He could not twist, bend, squat, kneel or climb and
needed to take a 10-minute break every 90 minutes. Dr. Schuele indicated that these work
restrictions were appropriate given appellant’s limited findings on examination and diagnostic
testing.
The Office properly found that the weight of the medical evidence regarding appellant’s
ability to work rested with the well-rationalized report of Dr. Schuele, whose recommended
work restrictions would allow appellant to perform the position of modified information
technology specialist offered by the employing establishment. The Board notes that, therefore,
the Office has established that the position of modified information technology specialist is
suitable. As noted above, once it has established that a particular position is suitable, an
employee who refuses or neglects to work after suitable work has been offered to him has the
burden of showing that such refusal to work was justified. The Board has carefully reviewed the
evidence and argument submitted by appellant in support of his refusal of the modified
information technology specialist position and notes that it is not sufficient to justify his refusal
of the position.

11

The record does not reveal that the offered position was temporary or seasonal in nature or that the position was
vocationally inappropriate. See Federal (FECA) Procedure Manual, Part 2 -- Claim, Reemployment: Determining
Wage-Earning Capacity, Chapter 2-814.4b (July 1997).
12

In mid October 2005 Dr. Bright indicated that appellant could perform more arduous work including lifting up
to 10 pounds. He stated that appellant could work six hours per day.

5

Appellant alleged that he was not able to sit for the lengths of time required by the
modified information technology specialist position. Although the FCE performed in 2005
indicated that the claimant could only sit for 10 minutes at a time, the FCE performed in 2007
revealed no such limitations. Appellant claimed that he would not be able to concentrate, read or
drive to the work site due to the medications that he takes. However, he testified that he drives
on a regular basis and there is no rationalized medical evidence showing that the medications
would prevent him from driving, concentrating or reading. Appellant alleged that the Office
failed to take into account his nonwork-related conditions, including arthritis and diabetes. The
Board notes that there is no medical evidence in the record showing that appellant is disabled due
to these conditions.
For these reasons, the Office properly terminated appellant compensation effective
November 16, 2007 on the grounds that he refused an offer of suitable work.13 The Board
further notes that the Office properly remanded the case to it after it received a March 10, 2008
report in which Dr. Lopez, an attending Board-certified psychiatrist, indicated that appellant was
disabled due to a depressive disorder.14 The Office hearing representative properly indicated that
appellant’s compensation would not be reinstated because there was no evidence of psychiatric
disability when his compensation was terminated effective November 16, 2007.
CONCLUSION
The Board finds that the Office properly terminated appellant’s compensation effective
November 16, 2007 on the grounds that he refused an offer of suitable work.

13

In mid October 2005 Dr. Bright indicated that appellant could perform more arduous work including lifting up
to 10 pounds. He stated that appellant could work six hours per day.
14

The Board notes that the report was not sufficiently well rationalized to establish such total disability but the
report did require remanding the case to the Office for further development.

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
July 31, 2008 and November 16, 2007 decisions are affirmed.
Issued: May 22, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Memphis, TN, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-1812
Issued: March 15, 2017

Case Submitted on the Record

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

JURISDICTION
On September 12, 2016 appellant filed a timely appeal from an April 26, 2016 merit
decision and an August 16, 2016 nonmerit 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.
ISSUES
The issues are: (1) whether OWCP abused its discretion in denying appellant’s request
for authorization of medical equipment; and (2) whether OWCP properly denied appellant’s
request for reconsideration of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On March 24, 1989 appellant, then a 32-year-old mail handler, filed a traumatic injury
claim (Form CA-1) alleging that on March 15, 1989 he injured his lower back as a result of
1

5 U.S.C. § 8101 et seq.

lifting sacks of mail. According to a statement of accepted facts (SOAF) dated December 19,
1991, his claim was initially accepted for back sprain. By decision dated October 27, 2004,
OWCP accepted appellant’s claim for a herniated nucleus pulposus (HNP) at L5-S1. A SOAF
dated December 10, 2015 noted that his accepted conditions included lumbar sprain and
displacement of the lumbar intervertebral disc. Appellant received compensation benefits for the
period February 14, 2008 through April 30, 2010.
Appellant filed a claim (Form CA-7) on July 15, 2010 for compensation due to leave
without pay commencing May 1, 2010. OWCP denied this claim on September 28, 2010.2
In a progress report dated May 8, 2014, Dr. Rommel G. Childress, a Board-certified
orthopedic surgeon, noted that appellant was experiencing pain in the back and legs on a daily
basis.
By letter dated June 23, 2014, appellant requested medical items and accommodations for
his accepted condition including a stair lift, an adjustable bed with a mattress and box spring, a
bathtub with jets to ease his back pain, and as well as repairs to a ramp OWCP built on his home.
On September 22, 2014 Dr. Childress recommended that appellant use a bathtub with jets
and an adjustable bed. He explained that the bathtub and adjustable bed could relieve appellant’s
chronic pain. In a report dated October 10, 2014, Dr. Childress noted that appellant continued to
have difficulty with his back and legs, and remarked that appellant had sought treatment at a pain
clinic.
Dr. Childress reported on November 17, 2014 that appellant was ambulatory with a
crutch, and he renewed appellant’s Lortab prescription. By letter dated January 27, 2015, he
reviewed a magnetic resonance imaging (MRI) scan of appellant’s spine, noting that his
continued difficulties were consistent with the testing.
By letter to OWCP dated May 26, 2015, Dr. Childress noted that he had treated appellant
for acute and chronic lumbar sprain and a herniated disc at L5-S1. He requested and
recommended that appellant have a gym membership at a center with a hot tub and whirlpool in
order for appellant to undergo water therapy three to four times per week. Dr. Childress noted
that this therapy would help appellant maintain reasonable strength and capability in his back.
On August 10, 2015 OWCP authorized a jet shower head to be used in a hot shower, an
adjustable bed board placed between a mattress and a box spring with orthopedic pillows, and
one year of hydrotherapy with aquatic exercises at the YMCA.
In a report dated August 28, 2015, Dr. Childress noted that, while OWCP had authorized
a jet shower head, appellant already had one, and explained that the bathtub with jets was
necessary because appellant had trouble standing in the shower for extended periods of time. He
further noted that the adjustable bed board would be cumbersome for appellant given the nature

2

The record does not reflect that appellant returned to work or received wage-loss compensation benefits after
May 1, 2010. Appellant’s claim remained open for medical treatment.

2

of his condition. Dr. Childress recommended a queen size bed with individually adjustable
sides.
On September 24, 2015 OWCP authorized installation of a tub with a jet and one year of
hydrotherapy with aquatic exercise at a different facility, the Kroc Center. On the same date it
denied authorization for a double bed noting that appellant had not provided a note with medical
rationale for the necessity of a double bed, but instead only addressed his desire to sleep with his
spouse.
In a report dated November 9, 2015, Dr. Childress noted that appellant’s condition
required him to use a cane, crutches, or a wheelchair for activities of daily living. He noted that
appellant had radicular pain that made both lower extremities numb at times, with pain going
down his left lower extremity.
In January 25, 2016 letter, Dr. James T. Galyon, a Board-certified orthopedic surgeon
noted his opinion that appellant refused to have a physical examination. Therefore, he was
unable to qualify the completeness of his findings.
In a supplement medical report from the second opinion examiner, dated March 10, 2016,
Dr. Galyon replied to OWCP’s query as to whether appellant’s request for an adjustable mattress
and chairlift were medically necessary. He opined that appellant did not need an adjustable
mattress, jetted bathtub,3 or chairlift, and noted that a shower chair would be a reasonable
accommodation for appellant’s condition. Dr. Galyon opined, “I do not believe that the other
equipment that I have just referred as being unnecessary, would in any way improve
[appellant’s] condition.”
By decision dated April 26, 2016, OWCP approved only hydrotherapy at the Kroc Center
and a shower chair. It denied authorization for an adjustable mattress, widening of the home
doorway, installation of a heavy chairlift, a jetted bathtub, modification of appellant’s existing
bathroom, and repair of a cracked ramp. OWCP noted that the medical evidence supported
authorization of hydrotherapy, but that there was no medical evidence supporting the remainder
of her requests for authorization. Regarding the cracked ramp, it noted that the crack was minor,
and that a recommendation was made to monitor the ramp and reassess in 12 to 24 months.
On August 3, 2016 appellant requested reconsideration of OWCP’s April 26, 2016
decision. With his request, he submitted letters and reports from Dr. Childress dated from
May 8, 2014 through March 4, 2016, which were previously of record. Appellant also submitted
two reports from Dr. Childress not previously of record, dated May 9 and July 28, 2016. In the
May 9, 2016 report, Dr. Childress noted that appellant had visited for a follow-up on his
condition, and recommended the use of a cane for activities outside the home. In the July 28,
2016 report, he noted that appellant experienced increased pain and difficulty and that he had
requested a lumbar facet block to manage his pain.

3

The jetted bathtub had previously been authorized on September 24, 2015.

3

By decision dated August 16, 2016, OWCP denied appellant’s request for
reconsideration, noting that he had failed to submit relevant and pertinent new evidence in
support of his claim.
LEGAL PRECEDENT -- ISSUE 1
Section 8103(a) of FECA provides for the furnishing of services, appliances and supplies
prescribed or recommended by a qualified physician who OWCP, under authority delegated by
the Secretary, considers likely to cure, give relief, reduce the degree or the period of disability or
aid in lessening the amount of monthly compensation.4 In interpreting section 8103(a), the
Board has recognized that OWCP has broad discretion in approving services provided under
FECA to ensure that an employee recovers from his or her injury to the fullest extent possible in
the shortest amount of time.5
In interpreting section 8103, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA. OWCP has the general objective of ensuring that an
employee recovers from his or her injury to the fullest extent possible, in the shortest amount of
time. It therefore has broad administrative discretion in choosing means to achieve this goal.
The only limitation on OWCP’s authority is that of reasonableness.6 In order to be entitled to
reimbursement for medical expenses, a claimant must establish that the expenditures were
incurred for treatment of the effects of an employment-related injury by submitting rationalized
medical evidence that supports such a connection and demonstrates that the treatment is
necessary and reasonable.7 While OWCP is obligated to pay for treatment of employmentrelated conditions, the employee has the burden of establishing that the expenditure is incurred
for treatment of the effects of an employment-related injury or condition.8
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not abuse its discretion in denying appellant’s request to
widen the home doorway, installation of a heavy chairlift, modification of appellant’s existing
bathroom, repair of a cracked ramp, an adjustable bed, and a jetted bathtub.
OWCP accepted appellant’s claim for an HNP at L5-S1, lumbar sprain, and displacement
of the lumbar intervertebral disc. Appellant submitted a report from Dr. Childress dated May 26,
2015, which recommended hydrotherapy to treat appellant’s accepted conditions. By letter dated
June 23, 2014, he requested medical items and accommodations for his accepted condition
including a stair lift, an adjustable bed with a mattress and box spring, a bathtub with jets to ease
his back pain, and repairs to a ramp OWCP built on his home. On September 22, 2014
4

5 U.S.C. § 8103(a).

5

See Dale E. Jones, 48 ECAB 648, 649 (1997).

6

Dr. Mira R. Adams, 48 ECAB 504 (1997).

7

See Debra S. King, 44 ECAB 203 (1992).

8

Kennett O. Collins, Jr., 55 ECAB 648, 654 (2004).

4

Dr. Childress recommended that appellant use a bathtub with jets and an adjustable bed. He
explained that the bathtub and adjustable bed could relieve appellant’s chronic pain. On
August 10, 2015 OWCP authorized a jet shower head to be used in a hot shower, an adjustable
bed board placed between a mattress and a box spring with orthopedic pillows, and one year of
hydrotherapy with aquatic exercises at the YMCA. In a report dated August 28, 2015,
Dr. Childress noted that, while OWCP had authorized a jet shower head, appellant already had
one, and explained that the bathtub with jets was necessary because he had trouble standing in
the shower for extended periods of time. He further noted that the adjustable bed board would be
cumbersome for appellant given the nature of his condition, and recommended a queen size bed
with individually adjustable sides. On September 24, 2015 OWCP then authorized a tub with a
jet.
In a report from a second opinion examiner, Dr. Galyon, dated March 10, 2016,
responding to OWCP’s query as to whether appellant’s request for an adjustable mattress and
chairlift were medically necessary, he opined that appellant did not need an adjustable mattress,
jetted bathtub, or chairlift, and noted that a shower chair would be a reasonable accommodation
for appellant’s condition.
By decision dated April 26, 2016, OWCP approved hydrotherapy at the Kroc Center and
a shower chair. It denied authorization for an adjustable mattress, widening of the home
doorway, installation of a heavy chairlift and a jetted bathtub, modification of appellant’s
existing bathroom, and repair of a cracked ramp.
The Board finds that OWCP did not abuse its discretion in this case as there is no medical
of record supporting authorization for widening of the home doorway, installation of a heavy
chairlift, modification of appellant’s existing bathroom, repair of a cracked ramp, an adjustable
bed, and a jetted tub.
The Board notes that Dr. Childress did not specifically recommend authorization for
widening of the home doorway, installation of a heavy chairlift, modification of appellant’s
existing bathroom, or repair of a cracked ramp. There was no evidence presented with
appellant’s request for these items as to why these items were necessary due to his accepted
injury. As previously noted, while OWCP is obligated to pay for treatment of employmentrelated conditions, the employee has the burden of proof to establish that the expenditure is
incurred for treatment of the effects of an employment-related injury or condition.9
While Dr. Childress did recommend a bathtub with jets to relieve chronic pain due to
appellant’s trouble standing in a tub, OWCP authorized a jet shower head and shower chair for
appellant, hydrotherapy and aquatic exercises at the YMCA, and a tub with a jet. He offered no
medical explanation as to why appellant would require the tub with multiple jets to relieve pain,
given these other authorizations for hydro/aquatic therapy. Dr. Childress did not provide the
necessary medical explanation as to how the jetted tub would cure, reduce the period of

9

Id.

5

disability, or aid in lessening the amount of monthly compensation.10 The Board also notes that
Dr. Galyon’s March 10, 2016 report suggested that jetted bathtub was not medically necessary.
Regarding appellant’s request for an adjustable bed, Dr. Childress related on
September 22, 2014 that an adjustable bed would relieve appellant’s chronic pain. OWCP
thereafter authorized an adjustable bed board. In an August 28, 2015 report, Dr. Childress
opined that the adjustable bed board would be cumbersome for appellant. However, Dr. Galyon
opined in his March 10, 2016 report that he did not believe that the adjustable bed would in any
way improve appellant’s condition. Again, there is no rationalized medical evidence of record
establishing that an adjustable bed, instead of an adjustable bed board, was medically necessary
and would reduce the period of disability, or aid in lessening the amount of monthly
compensation.
OWCP has administrative discretion in choosing the means to achieve the goal of
recovery from a work-related injury and the only limitation on OWCP’s authority is that of
reasonableness.11
Abuse of discretion is generally shown through proof of manifest error, clearly
unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts. It is not enough to merely show that the evidence
could be construed so as to produce a contrary factual conclusion.12
The Board finds that OWCP did not abuse its discretion by denying authorization of the
requested items.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.13 Section 10.608(b) of OWCP’s regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.14

10

See E.J., Docket No. 10-0743 (issued November 2, 2010).

11

See Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding that abuse of discretion by OWCP is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment, or administrative actions which are
contrary to both logic and probable deductions from established facts).
12

See Minnie B. Lewis, 53 ECAB 606 (2002).

13

20 C.F.R. § 10.606(b)(3); D.K., 59 ECAB 141, 146 (2007).

14

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

6

ANALYSIS -- ISSUE 2
The issue presented on appeal of the August 16, 2016 decision is whether appellant met
any of the requirements of 20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for
review of the merits of his claim. In his August 3, 2016 request for reconsideration, appellant
did not show that OWCP erroneously applied or interpreted a specific point of law, or advance a
new and relevant legal argument not previously considered. Thus, he is not entitled to a review
of the merits of his claim based on the first and second above-noted requirements under section
10.606(b)(3).
The underlying issue is whether OWCP abused its discretion in denial of authorization
for an adjustable mattress, widening of the home doorway, and installation of a heavy chairlift, a
jetted bathtub, modification of appellant’s existing bathroom, and repair of a cracked ramp. A
claimant may be entitled to a merit review by submitting relevant and pertinent new evidence,
but appellant did not submit any relevant and pertinent new evidence with his request for
reconsideration.
The evidence submitted in support of reconsideration included a narrative statement from
appellant, which is not medical evidence and therefore is irrelevant to the issue of whether
OWCP abused its discretion.15 Appellant also submitted various reports from Dr. Childress, of
which only two had not previously been record: the reports of May 9 and July 28, 2016. In the
May 9, 2016 report, Dr. Childress noted that appellant had visited for a follow up on his
condition, and recommended the use of a cane for activities outside the home. In the July 28,
2016 report, he noted that appellant experienced increased pain and difficulty and that he had put
in a request for a lumbar facet block to manage appellant’s pain.16
As neither the May 9, 2016 report nor the July 28, 2016 report discussed the
authorization of requested items, they are irrelevant to the underlying issue on reconsideration,
and therefore insufficient to warrant reconsideration of appellant’s claim.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP did not abuse its discretion in denying appellant’s request
for widening of the home doorway, installation of a heavy chairlift, modification of appellant’s
existing bathroom, repair of a cracked ramp, a jetted bathtub, and adjustable mattress. The
Board further finds that OWCP properly denied appellant’s request for reconsideration of his
claim pursuant to 5 U.S.C. § 8128(a).
15

See C.L., Docket No. 14-1585 (issued December 16, 22014).

16

Johnnie B. Causey, 57 ECAB 359, 364 (2006).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 16 and April 26, 2016 are hereby affirmed.
Issued: March 15, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

8