United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

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

Docket No. 17-0865
Issued: July 5, 2018

Case Submitted on the Record

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

JURISDICTION
On March 10, 2017 appellant, through counsel, filed a timely appeal from a January 23,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish that his left foot
condition occurred in the performance of duty, as alleged.
FACTUAL HISTORY
On November 18, 2015 appellant, a 56-year-old letter carrier, filed an occupational disease
claim (Form CA-2) alleging that he developed left tibial tendinopathy as a result of over usage of
the left foot subsequent to a right Achilles injury. He indicated that he first became aware of his
claimed condition on November 7, 2013 and first realized that it was caused or aggravated by his
federal employment on November 28, 2013.
In a November 18, 2015 letter, the employing establishment controverted the claim,
contending that appellant had initially stopped work on November 21, 2012 and returned to work
on November 8, 2013. Appellant then worked seven days between November 8 and 19, 2013 for
a total of 30.22 hours. He did not return to work after November 19, 2013 and retired on
August 18, 2014. The employing establishment argued that appellant could not have become
aware of a left foot condition causally related to federal employment factors on November 7, 2013
because he did not initially return to work until November 8, 2013. It further noted that no medical
evidence had been submitted in support of his claim.
In a November 19, 2015 development letter, OWCP advised appellant of the deficiencies
of his claim and afforded him 30 days to submit additional evidence and respond to its inquiries.
Appellant did not respond.
The employing establishment continued to controvert appellant’s claim, in a letter dated
December 18, 2015, and submitted a copy of his position description.
By decision dated December 21, 2015, OWCP denied appellant’s claim finding that the
evidence of record failed to establish fact of injury as he had not provided a detailed statement
describing the employment factors believed to have caused his claimed condition.
On November 7, 2016 counsel requested reconsideration and submitted a June 17, 2013
report from Dr. Michael Canales, a podiatrist, who diagnosed adult-acquired flatfoot deformity
with posterior tibial tendon dysfunction and concomitant equinus. Dr. Canales indicated that
appellant had been seen for “longstanding bilateral foot problems.” He found that appellant’s
painful hammertoes were a result of his ruptured Achilles tendon and over-lengthened tendon that
had resulted in an increased use of his left side. Dr. Canales diagnosed posterior tibial
tendinopathy, resulting in posterior tibial dysfunction and adult-acquired flatfoot deformity. He
recommended surgical intervention to treat appellant’s condition.
By decision dated January 23, 2017, OWCP denied modification of its prior decision.

2

LEGAL PRECEDENT
A claimant seeking benefits under FECA3 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty, as alleged, and that any specific
condition or disability claimed is causally related to the employment injury.4
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
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.5
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his left foot
condition occurred in the performance of duty.
On his claim form appellant alleged that he developed left tibial tendinopathy as a result of
over usage of the left foot subsequent to a right Achilles injury. He indicated that he first became
aware of his claimed condition on November 7, 2013. However, the employing establishment
indicated that appellant was off work on November 7, 2013. Appellant had initially stopped work
on November 21, 2012 and then returned to work on November 8, 2013, before stopping work
again on November 19, 2013 and retiring on August 18, 2014. OWCP informed appellant of the
deficiencies in his claim, but he did not provide the required documentation prior to OWCP’s
issuance of its January 23, 2017 decision. Accordingly, the Board finds that appellant failed to
meet his burden of proof to establish fact of injury in the performance of duty.6
As appellant has not established that he sustained an injury in the performance of duty, he
failed to meet his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

3

Id.

4

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5

See D.R., Docket No. 09-1723 (issued May 20, 2010). 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).
6

See M.L., Docket No. 12-0957 (issued December 7, 2012).

3

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his left foot
condition occurred in the performance of duty, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the January 23, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 5, 2018
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newark, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0982
Issued: December 20, 2016

Case Submitted on the Record

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

JURISDICTION
On April 8, 2016 appellant, through counsel, filed a timely appeal from a November 13,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are:
(1) whether OWCP properly terminated appellant’s wage-loss
compensation and authorization for medical benefits effective January 20, 2015 as she had no
1

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

5 U.S.C. § 8101 et seq.

further disability or need for medical treatment causally related to her November 5, 1990
employment injury; and (2) whether appellant has established that she had continuing
employment-related disability after January 20, 2015.
FACTUAL HISTORY
OWCP accepted that in November 1990 appellant, then a 23-year-old clerk, sustained
bilateral carpal tunnel syndrome causally related to factors of her federal employment. She
underwent a right carpal tunnel release on February 18, 1992 and a left carpal tunnel release on
November 16, 2010. OWCP paid appellant compensation for total disability beginning
November 3, 2006.3
In a report dated January 18, 2012, Dr. Mark A.P. Filippone, a Board-certified
psychiatrist, related that an electromyogram (EMG) and a nerve conduction velocity (NCV)
study performed that date revealed findings consistent with bilateral carpal tunnel syndrome. He
advised that appellant was totally disabled and enclosed a copy of the January 18, 2012
electrodiagnostic testing.
On February 3, 2012 OWCP referred appellant to Dr. Jeffrey F. Lakin, a Board-certified
orthopedic surgeon, for a second opinion examination. In a report dated February 16, 2012,
Dr. Lakin diagnosed bilateral carpal tunnel syndrome treated with surgical releases. On
examination he found a negative Tinel’s sign and Phalen’s test and normal discrimination.
Dr. Lakin determined that appellant had no objective findings of carpal tunnel syndrome or
tendinitis and could return to her usual employment.
OWCP advised appellant on March 23, 2012 that it proposed to terminate her wage-loss
compensation and authorization for medical benefits as she had no residuals of her accepted
work injury.
Dr. Filippone, in a report dated April 9, 2012, found a positive Tinel’s sign bilaterally and
a positive Phalen’s test especially on the left side. He opined that electrodiagnostic testing
performed January 18, 2012 showed slowing of the median nerve at the carpal canals bilaterally.
Dr. Filippone disagreed with Dr. Lakin’s finding that appellant could resume her usual
employment.
By decision dated April 24, 2012, OWCP terminated appellant’s compensation and
entitlement to medical benefits effective that date. It found that Dr. Lakin’s opinion represented
the weight of the evidence and established that she had no further condition or disability.
Appellant, through counsel, requested an oral hearing before an OWCP hearing
representative. She provided an April 23, 2012 report from Dr. Teofilo A. Dauhajre, a Board3

By decision dated January 4, 2008, OWCP terminated appellant’s wage-loss compensation and authorization for
medical treatment. In a decision dated July 25, 2008, an OWCP hearing representative vacated the January 4, 2008
decision after finding a conflict in medical opinion. OWCP again terminated appellant’s compensation benefits in a
decision dated September 8, 2009. On April 19, 2010 an OWCP hearing representative set aside the September 8,
2009 decision as the record contained an unresolved conflict in medical opinion regarding the cause of her left wrist
condition. Following further development, OWCP accepted left carpal tunnel syndrome.

2

certified orthopedic surgeon, who related that a January 18, 2012 EMG/NCV test showed
bilateral carpal tunnel syndrome. Dr. Dauhajre found a positive Phalen’s sign on the left and
diagnosed chronic left carpal tunnel syndrome. He opined that appellant was “restricted from
returning back to her regular duties at work as a clerk….”
Following a preliminary review, on June 28, 2012 an OWCP hearing representative set
aside the April 24, 2012 decision. He found that Dr. Lakin’s opinion was not based on a proper
background as he did not have Dr. Filippone’s January 18, 2012 report and the results of
electrodiagnostic testing. The hearing representative remanded the case for OWCP to provide
this evidence to Dr. Lakin and obtain a supplemental report.
Dr. Dauhajre evaluated appellant on September 17, 2012. He diagnosed chronic carpal
tunnel syndrome on the left side and found that she was disabled from her usual employment.
In an addendum dated September 18, 2012, Dr. Lakin reviewed the additional evidence
and opined that appellant had no objective findings of carpal tunnel syndrome on examination.
He advised that she could return to her work without limitations.
OWCP determined that a conflict arose between its referral physician, Dr. Lakin and
appellant’s physicians, Dr. Filippone and Dr. Dauhajre. It referred her to Dr. Joseph Estwanik, a
Board-certified orthopedic surgeon, for an impartial medical examination.4
In a report dated June 3, 2014, Dr. Estwanik reviewed appellant’s history of injury and
the medical evidence of record. On examination he found normal range of motion of the neck,
hands, and elbows. Dr. Estwanik found that appellant had “very unusual and extreme symptom
magnification with falsified testing.” He related:
“[Appellant] had manual strength testing of the biceps and had repetitive giving
away, uncooperative testing and nonphysiological falsified weakness of the
biceps. When again performing manual testing for triceps strength she produced
nonphysiological symptom magnification and when simply testing her triceps and
gripping only the radius and ulna, she had falsified giving away and actually had
symptoms ‘going into her hands.’”
Dr. Estwanik found no atrophy or reflex sympathetic dystrophy. He advised that when
performing a Phalen’s test appellant pulled her hands away after 10 seconds of wrist flexion and
related, “The fact that both arms simultaneously responded this way is nonphysiologic to any
specific pathology in the right versus left. The Tinel’s test was performed and she stated that this
started burning into both hands after [three to four] taps.” Dr. Estwanik opined that based on the
objective evidence she could perform her work duties. He recommended a functional capacity
evaluation (FCE) using a cross reference testing system (XRTS) hand strength assessment to
accurately measure her effort and capacity.

4

OWCP initially referred appellant to Dr. Michael Wujciak, a Board-certified orthopedic surgeon. However, it
subsequently scheduled her with another physician upon determining that Dr. Wujciak had previously seen her as a
referral physician.

3

OWCP referred appellant, on September 23, 2014, for an XRTS FCE. On October 27,
2014 a physical therapist found that the evaluation was not valid as she did not perform
consistently and exhibited “[e]xtreme overt pain behavior.” Appellant also used no force on the
XRTS hand strength assessment which was “most likely indicative of blatant noncompliance.”
In a November 25, 2014 addendum, Dr. Estwanik reviewed the results of the XRTS
testing and the evaluator’s finding that appellant had not provided consistent effort. He
discussed his prior finding that she had no physiologic basis preventing a return to work.
Dr. Estwanik determined that appellant could return to her usual employment and opined that she
had reached maximum medical improvement (MMI) at least by July 23, 2009. In a work
restriction evaluation dated November 25, 2014, he found that she had no limitations.
OWCP advised appellant on December 16, 2014 of its proposed termination of her
compensation and entitlement to medical benefits.
In a December 15, 2014 attending physician’s report (Form CA-20), Dr. Filippone
diagnosed bilateral carpal tunnel syndrome and a right ulnar nerve lesion. He checked a box
marked “yes” that the condition was caused or aggravated by employment and found that
appellant was totally disabled.
Counsel, on December 30, 2014, contended that Dr. Estwanik did not provide the results
of neurological testing and therefore he was not qualified to find a psychological reason for
appellant’s disability.
By decision dated January 20, 2015, OWCP terminated appellant’s wage-loss
compensation and authorization for medical benefits effective that date. It found that the opinion
of Dr. Estwanik as the impartial medical examiner represented the special weight of the evidence
and established that she had no further employment-related disability or need for medical
treatment.
On January 27, 2015 appellant, through counsel, requested an oral hearing.
In a report dated March 27, 2015, Dr. Filippone discussed appellant’s complaints of pain
and numbness at the thenar eminence of the left wrist and pain bilaterally at the ulnar aspect,
greater on the right side. On examination he found a positive Tinel’s sign bilaterally and atrophy
especially on the right thenar eminence. Dr. Filippone diagnosed bilateral carpal tunnel
syndrome and an ulnar nerve lesion due to her accepted employment injury. He opined that
appellant was totally disabled.
At the hearing, held on August 27, 2015, counsel contended that Dr. Estwanik did not
address the January 18, 2012 positive electrodiagnostic testing or perform sensory testing.
By decision dated November 13, 2015, OWCP’s hearing representative affirmed the
January 20, 2015 decision. She found that appellant had not submitted evidence sufficient to
overcome the special weight afforded to Dr. Estwanik as the impartial medical examiner.
On appeal counsel contends that Dr. Estwanik’s opinion was not based on an accurate
factual background as he did not consider the January 18, 2012 EMG and relied upon reports of
4

other physicians. He also maintains that he failed to perform sensory tests and based his opinion
on an invalid FCE.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits. It may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.5
OWCP’s burden of proof in terminating compensation includes the necessity of furnishing
rationalized medical opinion evidence based on a proper factual and medical background.6
Additionally, the right to medical benefits for an accepted condition is not limited to the period
of entitlement for disability compensation.7 To terminate authorization for medical treatment,
OWCP must establish that appellant no longer has residuals of an employment-related condition,
which require further medical treatment.8
Section 8123(a) provides that, 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.9 The implementing regulations provide that, if
a conflict exists between the medical opinion of the employee’s physician and the medical
opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint
a third physician to make an examination. This is called a impartial examination and OWCP will
select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.10
When there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.11
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome due to factors
of her federal employment.
It paid her compensation for total disability beginning
November 3, 2006. OWCP properly determined that a conflict arose between Dr. Lakin, the
second opinion physician who found that appellant had no residuals of her work injury and could
5

Elaine Sneed, 56 ECAB 373 (2005); Gloria J. Godfrey, 52 ECAB 486 (2001).

6

Gewin C. Hawkins, 52 ECAB 242 (2001).

7

T.P., 58 ECAB 524 (2007); Pamela K. Guesford, 53 ECAB 727 (2002).

8

Id.

9

5 U.S.C. § 8123(a).

10

20 C.F.R. § 10.321.

11

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

5

resume her usual employment, and Dr. Filippone and Dr. Dauhajre, attending physicians who
found that she had continued disability due to carpal tunnel syndrome. It consequently referred
her to Dr. Estwanik, a Board-certified orthopedic surgeon, for an impartial medical examination
to resolve the conflict pursuant to 5 U.S.C. § 8123(a).
When a case is referred to an impartial medical examiner for the purpose of resolving a
conflict, the opinion of such specialist, if sufficiently well rationalized and based on a proper
factual and medical background, must be given special weight.12
On June 3, 2014 Dr. Estwanik reviewed the medical evidence of record and the history of
injury. On examination he found extreme symptom magnification including give way weakness
with motor strength testing of the biceps and triceps. Dr. Estwanik advised that when
performing the Phalen’s test appellant pulled both hands away after 10 seconds, which showed
that the problem was not physiologic. He found no atrophy or reflex sympathetic dystrophy.
Dr. Estwanik opined that objectively appellant could perform the duties of her employment. He
recommended an FCE with XRTS to accurately measure her strength and effort.
A physical therapist found that the FCE with XRTS performed on October 27, 2014 was
invalid due to pain behavior and the lack of consistent effort. On November 25, 2014
Dr. Estwanik reviewed the XRTS test results and determined that appellant could return to her
usual employment and that she had reached MMI from her injury. He completed a work
restriction evaluation finding that she had no limitations.
The Board finds that Dr. Estwanik provided a comprehensive, well-rationalized opinion
based on a proper factual background, and thorough examination. He concluded that appellant
had no residuals of her carpal tunnel syndrome or need for any work limitations and provided
rationale by explaining that the examination showed extreme symptom magnification, as
confirmed by XRTS testing. Dr. Estwanik further opined that she had reached MMI from her
injury. His report, which is detailed and reasoned, is entitled to special weight and establishes
that appellant has no further disability or need for medical treatment due to her bilateral carpal
tunnel syndrome.13
The remaining evidence is insufficient to overcome the special weight accorded to
Dr. Estwanik as the impartial medical examiner. In a form report dated December 15, 2014,
Dr. Filippone diagnosed bilateral carpal tunnel syndrome and a right ulnar nerve lesion. He
checked a box marked “yes” that the condition was caused or aggravated by employment and
found that appellant was totally disabled. The Board has held, however, that when a physician’s
opinion on causal relationship consists only of checking “yes” to a form question, without
explanation or rationale, that opinion has little probative value.14
On appeal counsel argues that Dr. Estwanik’s opinion was not based on an accurate
factual background as he did not consider the January 18, 2012 EMG, failed to perform sensory
12

5 U.S.C. § 8123(a); see O.C., Docket No. 15-0404 (issued November 19, 2015).

13

See R.B., Docket No. 16-0010 (issued April 1, 2016); Sharyn D. Bannick, 54 ECAB 537 (2003).

14

See Deborah L. Beatty, 54 ECAB 340 (2003).

6

tests, relied on an invalid FCE, and reviewed the reports of other physicians. As discussed,
however, Dr. Estwanik properly based his opinion on a review of the medical evidence, his
findings on physical examination, and the results of XRTS testing. He further provided rationale
for his conclusion by explaining that the examination and objective testing revealed extreme
symptom magnification. Dr. Estwanik’s opinion thus represents the special weight of the
evidence.15
LEGAL PRECEDENT -- ISSUE 2
As OWCP properly terminated appellant’s compensation benefits, the burden shifts to
appellant to establish that she has continuing disability after that date related to her accepted
injury.16 To establish a causal relationship between the condition as well as any attendant
disability claimed and the employment injury, an employee must submit rationalized medical
evidence based on a complete medical and factual background, supporting such a causal
relationship.17 Causal relationship is a medical issue and the medical evidence required to
establish a causal relationship is rationalized medical evidence.18
ANALYSIS -- ISSUE 2
Given the Board’s finding that OWCP properly relied upon the opinion of Dr. Estwanik
in terminating compensation, the burden of proof shifts to appellant to establish that she remains
entitled to compensation after that date.19
On March 27, 2015 Dr. Filippone related that appellant experienced symptoms of pain
and numbness at the thenar eminence of the left wrist and pain bilaterally at the ulnar aspect,
greater on the right side. He found a positive Tinel’s sign bilaterally and atrophy especially on
the right thenar eminence. Dr. Filippone diagnosed employment-related carpal tunnel syndrome
of both wrists and an ulnar nerve lesion. He opined that appellant was totally disabled.
Dr. Filippone did not bolster his causation finding with medical rationale and thus his reports are
of little probative value.20 Additionally, he was on one side of the conflict in medical opinion
previously resolved by Dr. Estwanik. Reports from a physician on one side of a medical
conflict, resolved by an impartial medical examiner, are generally insufficient to overcome the
special weight accorded the impartial medical examiner or to create a new conflict.21
15

See supra note 13.

16

Manual Gill, 52 ECAB 282 (2001).

17

Id.

18

Paul Foster, 56 ECAB 208 (2004); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

19

See supra note 16.

20

See J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006) (medical evidence that
states a conclusion, but does not offer any rationalized medical explanation regarding the cause of an employee’s
condition is of limited probative value on the issue of causal relationship).
21

See I.H., Docket No. 15-1798 (issued March 17, 2016); Alice J. Tysinger, 51 ECAB 638 (2000).

7

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 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
authorization for medical benefits effective January 20, 2015 as she had no further disability due
to her November 5, 1990 employment injury. The Board further finds that she has not
established continuing employment-related disability after January 20, 2015.
ORDER
IT IS HEREBY ORDERED THAT November 13, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 20, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newark, NJ, Employer
__________________________________________

)
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)
)
)
)
)
)

Appearances:
James D. Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-1096
Issued: November 4, 2009

Case Submitted on the Record

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

JURISDICTION
On March 17, 2009 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ May l4, 2008 and February 17, 2009 merit decisions. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof in establishing that he
sustained bilateral hip and leg conditions in the performance of duty.
FACTUAL HISTORY
Appellant, a 62-year-old letter carrier, filed a Form CA-2 claim for benefits on
February 22, 2008, alleging that as of February 12, 2008 he became aware that he had a bilateral
hip and leg condition causally related to factors of his employment. In a supplemental statement,
he explained that he had worked for the employing establishment for 23 years in a position that
required constant walking, climbing stairs, standing and carrying a heavy mailbag.

By letter dated March 3, 2008, the Office advised appellant that it required factual and
medical evidence to determine whether he was eligible for compensation benefits. It asked
appellant to submit a comprehensive medical report from his treating physician describing his
symptoms and the medical reasons for his condition and an opinion as to whether his claimed
conditions were causally related to his federal employment.
Appellant submitted a March 6, 2007 x-ray report, the results of which showed a small
synovial cyst on the right of the femoral neck, but no evidence of acute fracture or dislocation in
his hip joints. In a report dated March 29, 2007, Dr. Mark A.P. Filippone, Board-certified in
physical and rehabilitative medicine, stated that appellant had been complaining of lower and
upper extremity pain caused by his duties as a letter carrier. He noted that appellant had recently
experienced low back pain radiating into the right thigh and the calf, with numbness in the lateral
right thigh. Dr. Filippone diagnosed low back derangement with lumbosacral radiculitis and
suspected internal derangement of both hips. He opined that appellant’s low back and hip
complaints were directly and solely the result of occupational injuries sustained through his years
of employment as a letter carrier.
By decision dated May 14, 2008, the Office denied appellant’s claim, finding that he
failed to submit medical evidence sufficient to establish that he sustained a bilateral hip or leg
condition in the performance of duty.
In a report dated October 15, 2008, Dr. Filippone reiterated his previously stated opinion
that appellant’s job as a letter carrier resulted in his claimed bilateral hip condition because it
required him to be on his feet eight hours per day, walking long distances, walking up and down
stairs, getting in and out of the employing establishment vehicles, walking up and down hills,
etc., for approximately 23 years. He noted that appellant had been complaining of intermittent
low back pain over the last few years, with pain on both hips and buttocks, on the right than on
the left, although he denied any discrete history of trauma or injury. Dr. Filippone opined that
given appellant’s work history, objective findings on physical examination and subjective
complaints, it was well within reasonable medical probability that his bilateral hip abnormalities
were directly and solely the result of his employment duties.
By letter dated November 19, 2008, appellant’s attorney requested reconsideration.
By decision dated February l7, 2009, the Office denied modification of the May 14, 2008
decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing that the essential elements of his or her claim including the fact that the
individual is an “employee of the United States” within the meaning of the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained in the performance of duty as alleged, and that any disability and/or specific condition

1

5 U.S.C. §§ 8101-8193.

2

for which compensation is claimed are causally related to the employment injury.2 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.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed, or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
The medical evidence required to establish causal relationship is usually rationalized medical
evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.4
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor,
his belief that his condition was caused, precipitated or aggravated by his employment is
sufficient to establish causal relationship.5 Causal relationship must be established by
rationalized medical opinion evidence and he failed to submit such evidence.
A claimant has the burden of establishing by the weight of the substantial, reliable and
probative evidence, a causal relationship between his claimed right shoulder condition and his
federal employment. This burden includes providing medical evidence from a physician who
concludes that the disabling condition is causally related to employment factors and supports that
conclusion with sound medical reasoning.6
ANALYSIS
In the instant case, appellant has alleged that his duties, which included walking,
climbing stairs, and standing, caused bilateral hip and lower extremity conditions. He has
submitted medical evidence which indicates that he has been diagnosed with low back
2

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

3

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

4

Id.

5

Id.

6

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982).

3

derangement with lumbosacral radiculitis, suspect internal derangement of both hips and a small
synovial cyst of the right femoral head. Appellant has failed to submit probative medical opinion
evidence containing a rationalized medical explanation which relates his alleged conditions to
factors of his employment. For this reason, he has not discharged his burden of proof.
Appellant submitted the May 29, 2007 and October 15, 2008 reports from Dr. Filippone,
noted that he was required to be on his feet eight hours per day, walk long distances, walk up and
down stairs, walk up and down hills, and get in and out of the employing establishment vehicles
for more than two decades. Dr. Filippone stated that, based on appellant’s work history,
objective findings on physical examination and his subjective complaints, his bilateral hip
abnormalities were directly and solely the result of his employment duties. His opinion,
however, is of limited probative value as it does not contain any medical rationale explaining
how these duties physiologically caused the diagnosed conditions of low back derangement with
radiculitis, “suspect” bilateral hip derangement or the small synovial cyst of the femoral head.7
The weight of medical opinion is determined by the opportunity for and thoroughness of
examination, the accuracy and completeness of physician’s knowledge of the facts of the case,
the medical history provided, the care of analysis manifested and the medical rationale expressed
in support of stated conclusions.8 Dr. Filippone did not sufficiently describe appellant’s job
duties and then explain the medical process through, which such duties would have been
competent to cause the claimed condition. His reports, the only evidence appellant submitted in
support of his claim, thus, did not constitute sufficient medical evidence to establish that his
claimed bilateral conditions were causally related to his employment.
The Office advised appellant of the evidence required to establish his claim; however, he
failed to submit such evidence. Consequently, appellant has not met his burden of proof in
establishing that his claimed bilateral hip and leg conditions were causally related to his
employment.
CONCLUSION
The Board finds that appellant has failed to meet his burden of proof in establishing that
his claimed bilateral hip and leg conditions were sustained in the performance of duty.

7

William C. Thomas, 45 ECAB 591 (1994).

8

See Anna C. Leanza, 48 ECAB 115 (1996).

4

ORDER
IT IS HEREBY ORDERED THAT the February 17, 2009 and May 14, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: November 4, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.W., Appellant
and
DEPARTMENT OF THE AIR FORCE,
COMMISSARY, McGUIRE AIR FORCE BASE,
NJ, Employer
__________________________________________

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

Docket No. 07-397
Issued: April 26, 2007

Case Submitted on the Record

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

JURISDICTION
On December 1, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ April 26, 2006 nonmerit decision denying his request for merit review.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over this nonmerit
decision. The most recent merit decision of record was the Office’s June 15, 2005 decision
finding that he did not sustain an employment injury. Because more than one year has elapsed
between the last merit decision and the filing of this appeal on December 1, 2006, the Board
lacks jurisdiction to review the merits of this claim.1
ISSUE
The issue is whether the Office properly denied appellant’s request for further review of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

See 20 C.F.R. §§ 501.2(c) and 501.3(d)(2).

FACTUAL HISTORY
On February 26, 2004 appellant, then a 47-year-old warehouse store worker, filed a
traumatic injury claim alleging that he sustained a back injury when he lifted boxes and pallets at
work on February 13, 2004. His supervisor, Carl Rawls, indicated on the form that he responded
“no” when asked if he was injured on the job.
In a March 3, 2004 statement, Donna Chew, a store administrator, indicated that on
February 23, 2004 she observed appellant and Mr. Rawls walking toward the administrative
office. She indicated that appellant noted that he had hurt his back but responded in the negative
when she asked him if he hurt his back at work. In a March 4, 2004 statement, Mr. Rawls
provided a similar account.
In an undated statement received by the Office on April 28, 2004, appellant stated that he
did not remember the conversation that was purported to have occurred with Mr. Rawls and
Ms. Chew on February 23, 2004. He indicated that he delayed seeking treatment for his injury
because he self-treated himself.
Appellant submitted several reports, dated beginning in April 2004, of Dr. Andre M. Hu,
an attending Board-certified orthopedic surgeon, who noted that appellant reported that he
injured himself while lifting at work on February 14, 2004.
By decision dated May 7, 2004, the Office denied appellant’s claim on the grounds that
he had not established the fact of injury, as he had not shown that the claimed injury occurred at
the time, place and in the manner alleged.
Appellant submitted additional medical reports, some of which listed February 13, 2004
as the date of injury and some of which listed the date of injury as February 14, 2004. The
record was supplemented to include a February 24, 2004 statement in which appellant indicated
that he delayed seeking treatment for his injury because he self-treated himself.
Appellant requested a hearing before an Office hearing representative. At the
February 14, 2005 hearing, he testified that he did not remember the conversation that was
purported to have occurred with Mr. Rawls and Ms. Chew on February 23, 2004. Appellant
discussed his learning disability and his limited English skills.
Appellant submitted a March 9, 2005 report in which Dr. Hu stated that he clarified on
February 24, 2005 that he sustained an employment injury on February 13, 2004 rather than
February 14, 2004.
By decision dated and finalized June 15, 2005, the Office hearing representative affirmed
the Office’s May 7, 2004 decision. The hearing representative indicated that there were such
inconsistencies in appellant’s account of the claimed injury to cast doubt on its validity.
In October 2005, appellant submitted a statement reiterating that he did not remember the
conversation that was purported to have occurred with Mr. Rawls and Ms. Chew on
February 23, 2004. Appellant also discussed his learning disability, his limited English skills,
and his hunting activities. He also submitted another copy of Dr. Hu’s March 9, 2005 report.
2

By decision dated April 24, 2006, the Office denied appellant’s request for further review
of the merits of his claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,2 the Office’s regulations provide that the evidence or
argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.3 To be entitled to a merit review of an Office decision denying or
terminating a benefit, a claimant also must file his or her application for review within one year
of the date of that decision.4 When a claimant fails to meet one of the above standards, the
Office will deny the application for reconsideration without reopening the case for review on the
merits.5
ANALYSIS
The Office denied appellant’s claim that he sustained an employment injury on the grounds
that there were such inconsistencies in his claim as to cast doubt on the validity of his claim.
In support of his October 2005 reconsideration request, appellant submitted a statement in
which he reported that he did not remember the conversation that was purported to have occurred
with Mr. Rawls and Ms. Chew on February 23, 2004. He also discussed his learning disability,
his limited English skills and his hunting activities. Appellant also submitted another copy of a
previously submitted March 9, 2005 report of Dr. Hu, an attending Board-certified orthopedic
surgeon.
The submission of this evidence and argument would not require reopening of appellant’s
claim because the Board has held that the submission of evidence which repeats or duplicates
evidence already in the case record does not constitute a basis for reopening a case.6 Appellant
previously advanced similar argument in support of his claim and the March 9, 2005 report had
previously been considered in connection with the main issue of the present case. He did not
present any new evidence or argument relevant to the underlying point at issue, whether the
February 13, 2004 incident occurred as alleged.

2

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.606(b)(2).

4

20 C.F.R. § 10.607(a).

5

20 C.F.R. § 10.608(b).

6

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

3

Appellant has not established that the Office improperly denied his request for further
review of the merits of its June 15, 2005 decision under section 8128(a) of the Act, because the
evidence and argument he submitted did not show that the Office erroneously applied or
interpreted a specific point of law, advance a relevant legal argument not previously considered
by the Office, or constitute relevant and pertinent new evidence not previously considered by the
Office.
CONCLUSION
The Board finds that the Office properly denied appellant’s request for further review of
the merits of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
April 26, 2006 decision is affirmed.
Issued: April 26, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
South Euclid, OH, Employer
__________________________________________

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

Docket No. 16-1093
Issued: October 17, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On April 29, 2016 appellant, through counsel, filed a timely appeal from a January 21,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than 31 percent permanent impairment to his
right leg, for which he has received schedule awards.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 3, 2002 appellant, then a 39-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that his right knee condition was causally related to his
federal employment. On the claim form he attributed right knee osteoarthritis to years of
carrying mail while walking four to five miles per day. Appellant indicated that he first became
aware of the condition on March 1, 1995 and its relationship to his federal employment on
February 1, 2001.
The record indicates that appellant had undergone right knee arthroscopic surgery on
May 11, 1995 by Dr. John Bergfeld, an orthopedic surgeon. The postoperative diagnosis was
degenerative arthritis with torn lateral meniscus and articular cartilage changes. Appellant also
underwent right knee arthroscopic surgery on June 25, 2002. OWCP accepted aggravation of
right knee arthritis on January 22, 2003. Appellant was paid wage-loss compensation from
July 13 to September 13, 2002. He submitted a claim for compensation (Form CA-7) on April 4,
2003 requesting a schedule award.
OWCP referred appellant for a second opinion examination by Dr. Sheldon Kaffen, a
Board-certified orthopedic surgeon. In a report dated July 2, 2003, Dr. Kaffen provided a history
and results on examination. As to permanent impairment, he applied the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment and found
that appellant had 20 percent right leg impairment due to loss of range of motion in the right
knee. By report dated August 8, 2003, an OWCP medical adviser opined that appellant had 20
percent right leg impairment based on loss of knee range of motion.
By decision dated August 21, 2003, OWCP issued a schedule award for 20 percent
permanent impairment to the right leg. The period of the award was 57.60 weeks from
January 1, 2003.
Appellant filed a claim for a recurrence of disability (Form CA-2a) on December 4, 2009,
asserting that he continued to have right knee pain. By decision dated March 2, 2010, OWCP
denied the claim for a recurrence of disability.
In a report dated May 18, 2012, Dr. Robert Molloy, a Board-certified orthopedic surgeon,
indicated that appellant underwent a total right knee arthroplasty surgery. On September 3, 2013
appellant submitted an August 15, 2013 report from Dr. John Dunne, an osteopath. Dr. Dunne
provided a history and results on examination. He opined that under the sixth edition of the
A.M.A., Guides appellant had 59 percent right leg permanent impairment. Dr. Dunne opined
that under Table 16-3 appellant had a class 4, grade A impairment for total knee replacement of
59 percent.
The case was referred to an OWCP medical adviser, Dr. Morley Slutsky Board-certified
in occupational medicine, for review. In a report dated October 9, 2013, he requested that
additional evidence from Dr. Molloy be obtained. No additional evidence was received.
By decision dated January 10, 2014, OWCP found that appellant was not entitled to an
additional schedule award.

2

Appellant’s counsel requested a telephone hearing before an OWCP hearing
representative on January 13, 2014.
On February 21, 2014 OWCP received medical reports from Dr. Molloy. The most
recent report was June 26, 2013, in which Dr. Molloy provided results on examination and
indicated that appellant had 0 degrees extension and 120 degrees of flexion, with no effusion.
He wrote that appellant was doing well postoperatively.
In a decision dated September 17, 2014, an OWCP hearing representative remanded the
case to OWCP for further development. The hearing representative indicated that the medical
record should be referred to an OWCP medical adviser for review.
In a report dated September 22, 2014, Dr. Slutsky reviewed the medical evidence and
opined that appellant had 21 percent right leg permanent impairment under Table 16-3. He
found that the permanent impairment was a class 2, grade A impairment for total knee
replacement.
OWCP found that a conflict existed in the medical evidence between Dr. Dunne and
Dr. Slutsky with respect to the degree of permanent impairment in the right leg. It selected
Dr. James Rutherford, a Board-certified orthopedic surgeon, as an impartial medical specialist.
In a report dated January 22, 2015, Dr. Rutherford provided a history and results on examination.
As to permanent impairment in the right leg, he opined that under Table 16-3 appellant had 31
percent permanent impairment, for a class 3, grade A impairment for total knee replacement.
Dr. Rutherford explained that appellant had a fair result from the surgery, with mild motion
deficit. He discussed the grade modifiers applied in determining a grade A impairment,
indicating that grade modifier one was used for functional history and physical examination. As
to functional history, Dr. Rutherford appellant limped a little, which would be a grade modifier
one under 4 Table 16-6.
The medical evidence was referred to an OWCP medical adviser for review. By report
dated April 9, 2015, an OWCP medical adviser, Dr. Daniel D. Zimmerman, a Board-certified
internist, concurred that the right leg impairment was 31 percent. He opined that date of
maximum medical improvement was January 22, 2015, the date of Dr. Rutherford’s
examination.
By decision dated April 20, 2015, OWCP issued a schedule award for an additional 11
percent permanent impairment to the right leg. The period of the award was 31.68 weeks from
January 22, 2015.
Appellant, through counsel, requested a hearing before an OWCP hearing representative
on May 7, 2015. A hearing was held on November 18, 2015. Counsel argued that
Dr. Rutherford’s report should be clarified, as the permanent impairment should be 37 percent
with a gait disturbance, citing a Board case W.B.3

3

Docket No. 14-1982 (issued August 26, 2015).

3

By decision dated January 21, 2016, the hearing representative affirmed the April 20,
2015 OWCP decision. The hearing representative found that Dr. Rutherford represented the
weight of the medical evidence and had properly applied the A.M.A., Guides.
LEGAL PRECEDENT
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.4 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.5 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.6
With respect to a knee impairment, the A.M.A., Guides provides a regional grid at Table
16-3. The class of impairment Class of Diagnosis (CDX) is determined based on specific
diagnosis, and then the default value for the identified CDX is determined. The default value
(grade C) may be adjusted by using grade modifiers for Functional History (GMFH), Table 16-6,
Physical Examination (GMPE), Table 16-7 and Clinical Studies (GMCS), Table 16-8. The
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).7
5 U.S.C. § 8123(a) provides that when there is a disagreement between the physician
making the examination for the United States and the physician of the employee, a third
physician shall be appointed to make an examination to resolve the conflict.8 When there are
opposing medical reports of virtually equal weight and rationale, the case must be referred to an
impartial referee physician, pursuant to section 8123(a), to resolve the conflict in the medical
evidence.9 It is well established that when a case is referred to an impartial medical specialist for
the purpose of resolving a conflict, the opinion of such specialist, if sufficiently well rationalized
and based on a proper factual and medical background, must be given special weight.10

4

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

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

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013) and id. at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
7

The net adjustment is up to +2 (grade E) or -2 (grade A).

8

Robert W. Blaine, 42 ECAB 474 (1991); 5 U.S.C. § 8123(a).

9

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

10

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

4

ANALYSIS
In the present case, OWCP found a conflict in the medical evidence with respect to the
degree of permanent impairment in the right leg based on appellant’s right knee condition. The
Board notes that under Table 16-3, the diagnostic criteria of “total knee replacement” may be
placed in class 2 (good result, with a default grade C permanent leg impairment of 25 percent),
class 3 (fair result, with 37 percent default permanent impairment), or class 4 (poor result, 67
percent default leg permanent impairment).11 Once the class is determined the default (grade C)
impairment may be adjusted according to application of grade modifiers. While Dr. Dunne and
Dr. Slutsky, the medical adviser, agreed that there was a grade A impairment for total knee
replacement, they clearly disagreed as to the result of the surgery and therefore the class of
impairment to be assigned. Dr. Dunne found a poor result for surgery, while Dr. Slutsky found a
good result.
The impartial medical specialist, Dr. Rutherford, provided a rationalized opinion that the
proper application of Table 16-3, based on examination results, was a class 3 permanent
impairment for a fair result. He noted mild motion deficit which was consistent with a fair
result. Dr. Rutherford explained that applying the net adjustment formula resulted in a grade A
(-2) impairment, which was consistent with both Dr. Dunne and Dr. Slutsky. At the hearing
counsel referred to W.B., wherein the Board found that, based on the medical evidence, the
claimant’s impairment was 37 percent under Table 16-3. In that case, the Board found that there
was no conflict in the medical evidence, and none of the grade modifiers were applicable, but
this does not establish that in all cases a fair result from a total knee replacement must result in
the default impairment of 37 percent. Each case is dependent on the medical evidence of record.
Dr. Rutherford explained that for functional history the grade modifier was one, based on Table
16-6. Under this table an antalgic limp that is correctable with footwear or orthotics is a grade
one.12 This was consistent with his examination findings. Using the net adjustment formula
(GMFH - CDX) the result is 1-3 or -2, without use of physical examination or clinical studies.13
Therefore, the impairment was properly found to be a grade A, class 3 permanent impairment of
31 percent.
The Board finds that the special weight of the medical evidence was represented by the
impartial medical specialist, who provided a rationalized medical opinion that the right leg
permanent impairment under the sixth edition of the A.M.A., Guides was 31 percent. As noted
above, a rationalized opinion from an impartial medical specialist is given special weight. The
Board finds that the evidence of record does not establish more than 31 percent right leg
permanent impairment.

11

A.M.A., Guides 511, Table 16-3.

12

Id. at 516, Table 16-6.

13

It appeared that Dr. Rutherford had used range of motion in determining the diagnostic class, and therefore
range of motion would not be used to determine a grade modifier for physical examination. A.M.A., Guides 516.
Dr. Rutherford did not cite to clinical studies and did not apply a grade modifier in this regard.

5

Appellant may request a schedule award or increased schedule award based evidence of a
new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant had not established more than 31 percent permanent
impairment to his right leg, for which he has received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 21, 2016 is affirmed.
Issued: October 17, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.A., Appellant
and
U.S. POSTAL SERVICE, MIAMI MAIL
PROCESSING CENTER, Miami, FL, Employer
__________________________________________

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

Docket No. 07-799
Issued: July 19, 2007

Case Submitted on the Record

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

JURISDICTION
On January 31, 2007 appellant filed a timely appeal from a November 2, 2006 merit
decision of the Office of Workers’ Compensation Programs which denied her claim for wageloss compensation and leave buy-back. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she was
totally disabled for the period October 17, 2005 to January 23, 2006; and (2) whether the Office
properly denied her request for leave buy-back for October 3 and 4, November 18 and
December 8, 2005.
FACTUAL HISTORY
On October 30, 2005 appellant, then a 36-year-old mail processing clerk, filed a Form
CA-2, occupational disease claim, alleging that pain from her neck down was caused by work
activities. She stopped work on October 17, 2005 and returned to limited duty on

November 9, 2005. In support of appellant’s claim, she submitted a September 26, 2005
computerized tomography scan of the lumbar spine which demonstrated a possible central
herniated disc at L3-4, a bulging annulus at L4-5 and mild associated central stenosis at L3-4. In
reports dated October 31, 2005, Dr. Rene J. Garcia, Board-certified in family medicine,
diagnosed back pain and lumbar radiculopathy and advised that appellant could return to work
that day. He provided restrictions to her physical activity of lifting 0 to 10 pounds with one to
two hours of walking, standing, sitting, stooping, kneeling and repeated bending with no
climbing. A November 8, 2005 magnetic resonance imaging scan of the lumbar spine
demonstrated disc herniations at L3-4 and L5-S1. In a November 14, 2005 report, Dr. Garcia
advised that appellant could work from one to two hours, depending on her symptoms.
By letter dated November 21, 2005, Raymond Martin, supervisor of distribution
operations, controverted the claim. He noted that appellant had been employed for four years
and described the physical requirements of her job, stating that as a clerk in the flats distribution
area she was required to sort mail from tubs weighing approximately 10 to 15 pounds containing
approximately 15 to 20 pieces of mail. On December 8, 2005 the Office accepted that appellant
sustained an employment-related displaced lumbar intervertebral disc.
On July 27, 2006 appellant filed a claim for compensation for the period December 9,
2005 to January 23, 2006 and also requested leave buy-back for this period. On August 3, 2006
she filed a claim for compensation and leave buy-back for the period October 3 to
December 8, 2005. Appellant submitted medical evidence including reports from Dr. Garcia
dated October 6 and 12, 2005 in which he advised that she had been under his care since
October 3, 2005 and could work limited duty beginning October 11, 2005 with no lifting greater
than 10 pounds or pulling or pushing heavy objects until after a neurosurgical evaluation. On an
Office Form CA-17 dated October 31, 2005, Dr. Garcia provided restrictions that appellant could
not lift greater than 10 pounds intermittently and could work between one to two hours of
intermittent sitting, standing, walking, kneeling, bending/stooping, twisting, pulling/pushing,
simple grasping and reaching above her shoulder with no climbing or fine manipulation. On the
CA-17 form, the employing establishment provided information that 70 pounds of frequent
lifting was required and that the position was for eight hours a day. In a report dated
November 14, 2005, Dr. Garcia advised that appellant could work from one to two hours daily,
depending on her symptoms. On February 1, 2006 appellant saw Dr. Luis R. Pagan, a Boardcertified neurosurgeon, who noted findings on examination, diagnosed a disc dislocation without
radiculopathy and degenerative disease of the lumbosacral spine. Dr. Pagan provided restrictions
to her physical activity.1
By decision dated November 2, 2006, the Office denied entitlement to wage-loss
compensation for the period October 3, 2005 to January 23, 2006 and for leave buy-back for
October 3 and 4, November 18 and December 8, 2005.

1

Dr. Pagan continued to submit reports that are not relevant to the time period of the claimed compensation and
leave buy-back in this case.

2

LEGAL PRECEDENT -- ISSUE 1
Under the Federal Employees’ Compensation Act2 the term “disability” is defined as
incapacity, because of employment injury, to earn the wages that the employee was receiving at
the time of injury.3 Disability, is thus not synonymous with physical impairment which may or
may not result in an incapacity to earn the wages. An employee who has a physical impairment
causally related to a federal employment injury but who nonetheless has the capacity to earn
wages he or she was receiving at the time of injury has no disability as that term is used in the
Act4 and whether a particular injury causes an employee disability for employment is a medical
issue which must be resolved by competent medical evidence.5 Whether a particular injury
causes an employee to be disabled for work and the duration of that disability, are medical issues
that must be proved by a preponderance of the reliable, probative and substantial medical
evidence.6
The Board will not require the Office to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.7
LEGAL PRECEDENT -- ISSUE 2
Office regulation, effective January 4, 1999, stated: “The employee may claim
compensation for periods of annual and sick leave which are restorable in accordance with the
rules of the employing establishment. Forms CA-7 and CA-7b are used for this purpose.”8
ANALYSIS -- ISSUES 1 & 2
The Board finds this case is not in posture for decision. Appellant filed an occupational
disease claim on October 30, 2005 that was accepted by the Office for displaced lumbar disc on
December 8, 2005. She subsequently filed claims for compensation and leave buy-back for
periods beginning October 3, 2005 through January 23, 2006. Her family physician, Dr. Garcia,
advised that she was under his care beginning October 3, 2005 and could return to limited duty
on October 11, 2005 for 1 to 2 hours daily work with a lifting restriction of 10 pounds. He
continued to advise that appellant should work this restricted schedule until she was seen by a
neurosurgeon. Appellant did not begin working limited duty until November 9, 2005.
2

5 U.S.C. §§ 8101-8193.

3

See Prince E. Wallace, 52 ECAB 357 (2001).

4

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

5

Donald E. Ewals, 51 ECAB 428 (2000).

6

Tammy L. Medley, 55 ECAB 182 (2003); see Donald E. Ewals, supra note 5.

7

William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

8

20 C.F.R. 10.425; see Glen M. Lusco, 55 ECAB 148 (2003).

3

Mr. Martin, an employing establishment supervisor, stated that appellant had to lift tubs
weighing 10 to 15 pounds. It is unclear, however, if this describes her regular job or the limited
duty she began on November 9, 2005. Office CA-17 forms found in the record indicate that
appellant was required to lift up to 70 pounds and was to work eight hours a day. Furthermore,
the Board has long held that an employee is entitled to disability compensation for any loss of
wages incurred during the time he or she receives authorized treatment and for loss of wages for
time spent incidental to such treatment.9 The record does not include a job description of either
appellant’s regular job as a mail processing clerk or of the light-duty job she began working on
November 9, 2005 or when this position became available to appellant. There is, therefore, no
way for the Board to determine if appellant was physically capable of performing either position,
based on Dr. Garcia’s recommendations or if light duty within his recommendations was
available. The case must, therefore, be remanded to the Office to obtain the necessary job
descriptions and determine if appellant is entitled to either/or wage-loss compensation or leave
buy-back for the claimed periods.
CONCLUSION
The Board finds that this case is not in posture for decision regarding whether appellant is
entitled to wage-loss compensation or leave buy-back for the period October 3, 2005 through
January 23, 2006.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 2, 2006 be vacated and the case remanded to the
Office for proceedings consistent with this opinion of the Board.
Issued: July 19, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
9

See Lawrence A. Wilson, 51 ECAB 684 (2000).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kearny, NJ, Employer
__________________________________________

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

Docket No. 14-470
Issued: July 14, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 26, 2013 appellant, through her attorney, filed a timely appeal from a
September 27, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
granting her a schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than a two percent permanent impairment of
each upper extremity.
FACTUAL HISTORY
This case has previously been before the Board. By decision dated April 15, 2010, the
Board set aside the September 5, 2008 and January 21, 2009 OWCP decisions denying

1

5 U.S.C. § 8101 et seq.

appellant’s claim for compensation for disability from March 15 to September 28, 2007.2
OWCP found that appellant had submitted sufficient evidence to warrant further development
regarding whether she was disabled due to her bilateral carpal tunnel syndrome. In a decision
dated December 2, 2011, the Board set aside a December 20, 2010 OWCP decision finding that
appellant had not established employment-related disability from March 15 to
September 28, 2007.3 The Board determined that OWCP had not obtained a report that would
resolve the relevant issue of whether she was disabled from March 15 to September 28, 2007 due
to her accepted work injury. The Board remanded the case for further development of the
medical evidence. The facts from the prior decisions are hereby incorporated by reference.
On September 2, 2010 appellant underwent a right carpal tunnel release and on
November 10, 2010 underwent a left carpal tunnel release.4 On October 17, 2011 she filed a
claim for a schedule award. In support of her request, appellant submitted a June 24, 2011
impairment evaluation from Dr. Arthur Becan, an orthopedic surgeon, who noted that
electromyograms (EMG) dated April 23 and September 28, 2007 and March 23, 2009 showed
bilateral carpal tunnel syndrome. Dr. Becan diagnosed right and left carpal tunnel syndrome and
repetitive trauma disorder. On examination, he found continued wrist pain and weakness with
reduced range of motion and grip strength. Applying Table 15-23 on page 449 of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides),
(6th ed. 2009), Dr. Becan identified the diagnosis as entrapment neuropathy of the median nerve
bilaterally. He applied a grade modifier of three based on positive electrodiagnostic studies, a
grade modifier of two for history and a grade modifier of three for decreased grip strength to find
a total impairment of eight percent. Dr. Becan determined that the QuickDASH (Disabilities of
the Arm, Shoulder and Hand) score of 34 percent reduced the impairment percentage to
7 percent for each upper extremity.
On December 23, 2011 OWCP referred appellant to Dr. Kenneth P. Heist, an osteopath,
to determine whether she was disabled from March 15 through September 28, 2007 due to her
accepted work injury. In a report dated January 5, 2012, Dr. Heist found that she had full grip
strength with no pain on range of motion, sensory loss or atrophy of the hands and wrists. He
determined that appellant had a negative Tinel’s sign of the ulnar and median nerve bilaterally
and no Phalen’s sign. Dr. Heist diagnosed status post bilateral carpal tunnel releases with
residuals of her accepted carpal tunnel syndrome.5

2

Docket No. 09-1503 (issued April 15, 2010). On December 19, 2007 appellant, then a 53-year-old distribution
clerk, filed an occupational disease claim alleging that she sustained bilateral carpal tunnel syndrome causally
related to factors of her federal employment. OWCP accepted the claim for bilateral carpal tunnel syndrome.
3

Docket No. 11-1146 (issued December 2, 2011).

4

In a decision dated February 29, 2012, OWCP denied appellant’s claim for compensation from March 15
through September 28, 2007; however, following a preliminary review on May 10, 2012 a hearing representative
vacated the February 29, 2012 decision and remanded the case for further development of the medical evidence. In
decisions dated September 18, 2012 and April 22, 2013, it again denied her claim for disability compensation from
March 15 through September 28, 2007.
5

In an addendum dated February 10, 2012, Dr. Heist advised that appellant was not disabled from March 15
through September 28, 2007 due to her accepted work injury.

2

On March 1, 2012 Dr. Henry J. Magliato, a Board-certified orthopedic surgeon and
OWCP medical adviser, noted that the physical findings of Dr. Becan differed significantly from
those set forth by Dr. Heist. He noted that Dr. Heist found no loss of sensation, power or atrophy
and a negative Tinel’s sign and Phalen’s test, which would yield no impairment of the upper
extremities. Dr. Magliato opined that a conflict in medical opinion existed and recommended
that OWCP refer appellant for an impartial medical examination.
OWCP determined that a conflict in medical opinion arose between Dr. Becan and
Dr. Magliato. On April 17, 2012 it referred appellant to Dr. Dean Carlson, a Board-certified
orthopedic surgeon, for an impartial medical examination.
In a report dated May 10, 2012, Dr. Carlson discussed appellant’s history of bilateral
carpal tunnel releases in 2010 and continued complaints of occasional numbness of the hands.
He measured range of motion for both upper extremities and found full strength of the wrists
bilaterally and intact sensation “to light touch and pinprick.” Dr. Carlson measured pinch
strength of seven pounds on the right and three pounds on the left. He found no Tinel’s sign and
a negative Phalen’s sign bilaterally. Dr. Carlson related that x-rays obtained on that date
revealed “advanced osteoarthritis of the first metacarpal trapezial joint, left hand.” He diagnosed
status post bilateral carpal tunnel releases, a postoperative incisional inclusion cyst of the left
hand and nonemployment-related advanced first metacarpal trapezial osteoarthritis of the left
hand. Dr. Carlson advised that electrodiagnostic studies verified carpal tunnel syndrome. He
rated appellant’s impairment due to entrapment neuropathy using Table 15-23 on page 449 of the
A.M.A., Guides. For both the right and left upper extremity, Dr. Carlson applied a grade
modifier of three for test findings, a grade modifier of one for a history of mild symptoms and a
grade modifier of zero for physical findings of normal strength and sensation, which he found
yielded an average modifier 1 and impairment value of two percent. He determined that the
QuickDASH score of 34 substantiated the grade modifier 1. Dr. Carlson concluded that
appellant had a two percent permanent impairment of each upper extremity.
On February 8, 2013 Dr. Andrew A. Merola, a Board-certified orthopedic surgeon and
OWCP medical adviser, concurred with Dr. Carlson’s findings. He opined that appellant
reached maximum medical improvement on May 10, 2012.
By decision dated March 14, 2013, OWCP granted appellant schedule awards for a two
percent permanent impairment of each upper extremity. The period of the awards ran for 12.48
weeks from May 10 to August 5, 2012.
On March 19, 2013 appellant, through her attorney, requested an oral hearing before an
OWCP hearing representative.
In a report dated July 9, 2013, Dr. Becan noted that Dr. Carlson found seven pounds of
pinch strength on the right and three pounds on the left. He disagreed with Dr. Carlson’s finding
of a grade modifier of one rather than two for history. Dr. Becan stated, “In conclusion, I stand
by my impairment rating as outlined in my report that [appellant] does indeed have an
impairment rating of [seven percent] to the right upper extremity and [seven percent] to the left
upper extremity.”

3

At the hearing, held on July 15, 2013, counsel argued that the medical adviser should not
have used Dr. Heist’s findings in determining that a conflict arose as the physician was asked for
an opinion on disability. The medical adviser contended that the record contained no conflict.
Appellant’s attorney further maintained that Dr. Carlson found no grade modifier for physical
examination even though he found a loss of pinch strength and did not provide a proper modifier
for history because he did not rate her physical complaints of pain and numbness.
By decision dated September 27, 2013, an OWCP hearing representative affirmed the
March 14, 2013 decision. She found that Dr. Carlson’s opinion represented the weight of the
evidence and established that appellant had no more than a two percent permanent impairment of
each upper extremity.
On appeal, appellant’s attorney contends that the medical adviser improperly used the
findings of Dr. Heist to find a conflict in opinion as he addressed disability rather than the extent
of any impairment. He argues that there was thus no conflict in medical opinion at the time of
OWCP’s referral of appellant to Dr. Carlson. Counsel maintains that Dr. Carlson inaccurately
provided a zero grade modifier for physical examination as he found a loss of motion and
strength and failed to provide a grade modifier for appellant’s complaints of hand and wrist pain.
Appellant’s attorney further asserts that he did not rate appellant’s impairment due to preexisting
osteoarthritis of the left hand.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing federal regulations,7 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.8 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.9
Impairment due to carpal tunnel syndrome is evaluated under the scheme found in Table
15-23 (Entrapment/Compression Neuropathy Impairment) and accompanying relevant text.10 In
Table 15-23, grade modifier levels (ranging from zero to four) are described for the categories of
test findings, history and physical findings. The grade modifiers are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value.
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5(a) (February 2013); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
10

A.M.A., Guides 449, Table 15-23.

4

When there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.11
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome causally related
to factors of her federal employment. In 2010, appellant underwent bilateral carpal tunnel
releases and, in 2011, filed a claim for a schedule award. OWCP determined that a conflict in
medical opinion arose between the medical adviser and Dr. Becan regarding the extent of her
permanent impairment. It referred appellant to Dr. Carlson for an impartial medical
examination. Based on his opinion, OWCP granted her schedule awards for a two percent
permanent impairment of each upper extremity.
On appeal, appellant’s attorney argues that there was no conflict at the time of the referral
of appellant to Dr. Carlson. The Board finds, however, that a conflict existed between the
medical adviser, who reviewed the clinical findings of Dr. Heist, to find that appellant had no
impairment of the upper extremities, and Dr. Becan, who determined that she had a seven
percent permanent impairment of each upper extremity based on his clinical findings.
When a case is referred to an impartial medical examiner for the purpose of resolving a
conflict, the opinion of such specialist, is sufficiently well rationalized and based on a prior
factual and medical background, must be given special weight.12 In a report dated May 10, 2012,
Dr. Carlson discussed appellant’s complaints of occasional hand numbness following bilateral
carpal tunnel releases. On examination, he found no Tinel’s sign and a negative Phalen’s test
bilaterally. Dr. Carlson measured full wrist strength and intact sensation bilaterally and pinch
strength of seven pounds on the right and three pounds on the left. He diagnosed bilateral carpal
tunnel syndrome confirmed by electrodiagnostic studies and advanced osteoarthritis of the first
metacarpal trapezial joint of the left hand. Dr. Carlson utilized Table 15-23 on page 449 of the
A.M.A., Guides to rate appellant’s impairment due to bilateral entrapment neuropathy. He
applied a grade modifier 3 for test findings, 1 for a history of mild symptoms and 0 for physical
findings of normal strength and sensation, which he averaged to find a grade modifier 1.
Dr. Carlson found that the grade modifier 1 was supported by the QuickDASH score of 34 and
yielded a two percent permanent impairment of each upper extremity due to entrapment
neuropathy. On February 8, 2013 Dr. Merola, the medical adviser, reviewed and concurred with
Dr. Carlson’s findings.
Regarding the extent of appellant’s right upper extremity impairment, the Board finds
that Dr. Carlson’s opinion, which is detailed, well rationalized and supported by findings on
examination, is entitled to special weight and establishes that she has no more than a two percent
permanent impairment. In a report dated July 9, 2013, Dr. Becan again advised that she had a
seven percent permanent impairment. He challenged Dr. Carlson’s finding of a grade modifier 0
11

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

12

See R.C., 58 ECAB 238 (2006); Kathryn Haggerty, 45 ECAB 383 (1994).

5

for physical examination findings, noting that he measured reduced pinch strength. A medical
report, however, from a physician on one side of a conflict resolved by an impartial medical
examiner is generally insufficient to overcome the weight accorded the report of an impartial
medical examiner or create a new conflict.13 The Board, consequently, finds that Dr. Carlson’s
opinion represents the special weight of the evidence afforded an impartial medical examiner
with regards to appellant’s right upper extremity impairment.14
On appeal, counsel contends that Dr. Carlson should have applied a higher grade
modifier for physical findings. Dr. Carlson, however, explained the basis for his grade modifier
for physical findings and, as discussed, his report represents the weight of the evidence.
Appellant has not submitted evidence sufficient to overcome the weight of the impartial medical
examiner in regards to the extent of her right upper extremity impairment.
Appellant may request a schedule award or increased schedule award for the right upper
extremity based on evidence of a new exposure or medical evidence showing progression of an
employment-related condition resulting in permanent impairment or increased impairment.
Regarding the extent of appellant’s left upper extremity impairment, the Board finds that
the case is not in posture for decision. On appeal, her attorney contends that Dr. Carlson should
have considered the preexisting osteoarthritis in reaching his impairment rating. It is well
established that in determining the amount of a schedule award for a member of the body that
sustained an employment-related impairment, preexisting impairments are to be included.15
OWCP’s procedures provide that, in evaluating the loss of use of a scheduled member due to an
employment injury, the percentage includes both employment-related impairments and “any
preexisting permanent impairment of the same member or function.”16 Dr. Carlson found that
appellant had nonemployment-related advanced osteoarthritis of the metacarpal trapezial joint of
the left hand, but did not specifically address whether it preexisted her employment-related
carpal tunnel syndrome. The case, therefore, will be remanded for OWCP to obtain a
supplemental opinion from Dr. Carlson regarding whether the osteoarthritis is preexisting and, if
so, whether it resulted in a greater permanent impairment of the left upper extremity under the
A.M.A., Guides. Following such further development as deemed necessary, OWCP shall issue a
de novo decision.
CONCLUSION
The Board finds that appellant has no more than a two percent permanent impairment of
the right upper extremity. The Board further finds that the case is not in posture for decision
regarding the extent of any left upper extremity impairment.

13

See Jaja K. Asaramo, 55 ECAB 200 (2004); Michael Hughes, 52 ECAB 387 (2001).

14

See H.S., Docket No. 13-365 (issued January 8, 2014).

15

See Clary J. Cleary, 57 ECAB 563 (2006); Mike E. Reid, 51 ECAB 543 (2000).

16

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(a)(3)
(January 2010).

6

ORDER
IT IS HEREBY ORDERED THAT the September 27, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part and the case is
remanded for further proceedings consistent with this decision of the Board.
Issued: July 14, 2014
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MEDICAL & REGIONAL OFFICE CENTER,
San Juan, PR, Employer
__________________________________________

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Appearances:
Laura R. Dominguez Llerandi, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1922
Issued: May 24, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 23, 2011 appellant, through his attorney, filed a timely appeal from a decision
of the Office of Workers’ Compensation Programs (OWCP) dated April 26, 2011, suspending
his compensation benefits. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP failed to properly reinstate appellant’s benefits after he
submitted his Form CA-1032 reporting earnings.
FACTUAL HISTORY
On August 18, 1987 appellant, then a 33-year-old housekeeping aid, filed a traumatic
injury claim alleging that, while cleaning underneath the washbasin, he felt back pain. On
1

5 U.S.C. § 8101 et seq.

September 4, 1987 OWCP accepted his claim for recurrent low back sprain. Appellant received
wage-loss compensation and medical benefits.
Appellant also suffers from nonemployment-related schizophrenia and receives benefits
from the Department of Veterans Affairs (VA) for a service-connected back injury while he was
serving in Vietnam. He was in the service from April 2, 1975 through October 29, 1976.
On November 18, 2009 OWCP asked appellant to complete Form CA-1032 within 30
days to provide information regarding his earnings from the prior year. Appellant did not submit
a timely response.
By decision dated January 19, 2010, OWCP suspended appellant’s compensation benefits
because he did not provide a complete Form CA-1032. OWCP informed him that, if he
completed Form CA-1032, his compensation would be restored retroactively from the date of
suspension. Appellant completed the form on February 20, 2010 which OWCP received on
March 5, 2010. He noted that he did not work during the past 15 months. Appellant advised that
he received benefits from the VA and compensation of “100 percent.” He also stated that the
percentage of his award has not increased since his OWCP injury.
In an April 27, 2010 letter, a VA service center manager stated that appellant had serviceconnected disability ratings for schizophrenia of 70 percent, limitation of motion of lumbar spine
of 20 percent and hearing loss of 0 percent. By letter to appellant dated May 5, 2010, OWCP
asked him to forward a letter to the VA asking for further information with regard to his
veteran’s benefits for the purpose of avoiding possible dual benefits. In a form completed on
July 12, 2010, received July 16, 2010, the veterans’ service representative noted that appellant
received $3,052.00 a month for his service-connected disability. With regard to a question as to
whether there had been any increase in monthly benefits as a result of an on-the-job injury, he
replied in the negative. The veterans’ service representative noted that appellant received
unemployment benefits.
On January 18, 2011 appellant requested reconsideration of the January 19, 2010
suspension of benefits. He noted that, as he submitted all documents, he requested retroactive
restoration of compensation benefits as of February 14, 2010.
By decision dated April 26, 2011, OWCP denied modification of the decision dated
January 19, 2010 suspending appellant’s compensation. It noted that as appellant indicated on
CA-1032 forms that he received compensation from the VA at the rate of 100 percent, and it was
unknown what condition the VA award was increased from 80 percent (as indicated in a prior
form) to 100 percent, OWCP was unable to assess the appropriate benefit level and was therefore
unable to reinstate benefits.
LEGAL PRECEDENT
Under section 10.528 of OWCP’s implementing federal regulations, an employee in
receipt of compensation benefits must complete an affidavit as to any work or activity indicating
an ability to work which the employee has performed for the prior 15 months.2 If an employee
2

20 C.F.R. § 10.525; Robert A. Robbins, Docket No. 05-728 (issued July 15, 2005).

2

who is required to file such a report fails to do so within 30 days of the date of the request, his or
her right to compensation for wage loss is suspended until OWCP receives the requested report.
At that time, OWCP will reinstate compensation retroactive to the date of suspension if the
employee remains entitled to compensation.3
ANALYSIS
By decision dated January 19, 2010, OWCP properly suspended appellant’s
compensation benefits because he did not provide a completed Form CA-1032. On March 5,
2010 it received the completed form. However, OWCP determined that reinstatement of benefits
was not proper because appellant submitted evidence addressing the amount he received for his
military service-connected benefits.
The Board finds that OWCP improperly failed to reinstate appellant’s benefits effective
March 5, 2010. In its January 19, 2010 decision, OWCP informed appellant that, if he
completed and returned Form CA-1032, his compensation benefits would be restored
retroactively to the date that they were suspended. Appellant completed the form and it was
received by OWCP on March 5, 2010. As of March 5, 2010, he met his burden to submit Form
CA-1032 and, pursuant to section 10.528 of the implementing regulations,4 his benefits should
have been reinstated at that time.5
CONCLUSION
The Board finds that OWCP failed to properly reinstate appellant’s benefits after he
submitted his completed Form CA-1032.

3

W.F., Docket No. 11-877 (issued March 9, 2012).

4

20 C.F.R. § 10.528.

5

The Board notes that there is some confusion in the record as to whether appellant’s veteran’s benefits had
increased. In its April 26, 2011 decision, OWCP noted that it was unable to assess his appropriate benefits level and
was therefore unable to reinstate his benefits. As previously noted, appellant properly submitted the form on
March 5, 2010 and at that point OWCP should have reinstated his benefits. If OWCP believes that he is receiving
dual benefits, it is OWCP’s responsibility to further develop the evidence.

3

ORDER
IT IS HEREBY ORDERED THAT the decision of Office of Workers’ Compensation
Programs dated April 26, 2011 is reversed.
Issued: May 24, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4