United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Altoona, PA, Employer
__________________________________________

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Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 08-970
Issued: November 19, 2008

Case Submitted on the Record

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

JURISDICTION
On February 15, 2008 appellant, through his attorney, filed a timely appeal from a
February 5, 2008 schedule award decision of the Office of Workers’ Compensation Programs.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the
appeal.
ISSUE
The issue is whether appellant has more than 35 percent impairment of his right upper
extremity.
FACTUAL HISTORY
This is appellant’s third appeal before the Board. On May 24, 2004 appellant, then a 54year-old letter carrier, sustained injury to his right shoulder while lifting flats. His claim was

accepted for injury to the bursae and tendons of the right shoulder.1 The Office granted appellant
a schedule award on September 27, 2006 for 31 percent impairment of his right arm. In an
April 5, 2007 decision, the Board remanded the case to the Office for further development.2 On
remand, the Office further developed the medical evidence and, in a May 17, 2007 decision,
granted a schedule award for 35 percent right upper extremity impairment. On January 28, 2008
the Board issued an order remanding the case to the Office for reconstruction.3 The facts and
history of the claim, as set forth in the prior Board decision, are incorporated herein by reference.
The relevant medical evidence includes a September 5, 2006 report from Dr. Michael J.
Platto, Board-certified in physical medicine and rehabilitation. Dr. Platto advised that appellant
had a 34 percent impairment of the right upper extremity based on loss of shoulder range of
motion and for an implant arthroscopic procedure. He provided measurements of appellant’s
right shoulder motion and stated that 111 degrees of abduction represented three percent
impairment and 15 degrees adduction represented two percent impairment under Figure 16-43,
page 477.4 Dr. Platto advised that 82 degrees of flexion represented seven percent impairment
and extension of 67 degrees resulted in no impairment under Figure 16-40, page 476. Internal
rotation of 64 degrees represented two percent impairment and 82 degrees external rotation did
not represent impairment under Figure 16-46, page 479. Dr. Platto totaled the loss of range of
motion as 14 percent. He advised that appellant had an additional 20 percent impairment of the
right upper extremity for a right shoulder arthroplasty implant under Table 16-27, page 506.
Using the Combined Values Chart, Dr. Platto rated appellant’s right upper extremity impairment
as 34 percent. In an April 23, 2007 report, he corrected his impairment rating, noting that, under
Table 16-27, 24 percent impairment was allowed for a shoulder implant arthroplasty. Dr. Platto
advised that combining 14 percent for loss of range of motion with 24 percent for the
arthroplasty implant, resulted in total impairment of 35 percent.
On June 14, 2007 Dr. Morley Slutsky, an Office medical adviser, concurred in the
impairment rating provided by Dr. Platto.
On February 5, 2008 the Office granted appellant a schedule award for 35 percent
impairment of the right upper extremity, less the 12 percent previously paid in 2002.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act5 sets for the number of weeks
of compensation to be paid for the permanent loss of use of specified members, functions and
1

The record reflects that appellant sustained a prior right shoulder strain and rotator cuff tear on August 22, 1989,
for which he underwent surgery. On November 25, 2002 the Office granted him a schedule award for 12 percent
impairment to the right upper extremity.
2

Docket No. 07-85 (issued April 5, 2007).

3

Docket No. 07-1883 (issued January 28, 2008).

4

The Board notes that 15 degrees of adduction represents one percent impairment under Figure 16-43 rather than
two percent impairment as found by Dr. Platto.
5

5 U.S.C. §§ 8101-8193.

2

organs of the body.6 The Act, however, does not specify the manner by which the percentage
loss of a member, function, or organ shall be determined. To ensure consistent results and equal
justice for all claimants under the law, good administrative practice requires the use of uniform
standards applicable to all claimants.7 The American Medical Association, Guides to the
Evaluation of Permanent Impairment has been adopted under the implementing regulation as the
appropriate standard for evaluating schedule losses.8
ANALYSIS
The Board finds that appellant has no more than 35 percent impairment of his right upper
extremity, for which he received schedule awards. The most recent evaluation of permanent
impairment was obtained from Dr. Platto, an examining physician, who set forth findings on
range of motion of appellant’s right shoulder and listed the impairment values found under the
A.M.A., Guides for the associated loss. The Board notes that his impairment rating of 14 percent
for loss of motion was erroneous to the extent that he listed two percent impairment under Figure
16-43 for loss of adduction. The record reflects that Dr. Platto obtained three measurements of
right shoulder adduction, each to 15 degrees, which he indicated represented two percent
impairment. Under Figure 16-43, however, this degree of motion represents only one percent
impairment. Therefore, the total loss of range of motion is 13 percent: 7 percent for loss of
flexion; 3 percent for loss of abduction; 1 percent for loss of adduction; and 2 percent for loss of
internal rotation. The Board notes that when combining 13 percent loss of motion with the 24
percent impairment for the right shoulder implant arthroplasty under the Combined Values
Chart, the total is still 35 percent impairment. Therefore, the medical evidence of record reflects
that appellant has no more than 35 percent impairment to his right upper extremity. As he
previously received a schedule award for 12 percent impairment in 2002, the Office properly
deducted this amount from the present award.9
CONCLUSION
The Board finds that appellant has no more than 35 percent impairment to his right upper
extremity.

6

5 U.S.C. § 8107.

7

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

8

20 C.F.R. § 10.404.

9

See id. at § 10.404(c).

3

ORDER
IT IS HEREBY ORDERED THAT the February 5, 2008 decision of the Office of
Workers’ Compensation Programs be affirmed, as modified.
Issued: November 19, 2008
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.B., Appellant
and
U.S. POSTAL SERVICE, GREENVILLE
PROCESSING & DISTRIBUTION CENTER.
Greenville, SC, Employer
__________________________________________

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

Docket No. 13-2088
Issued: February 21, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 13, 2013 appellant filed a timely appeal from merit decisions of the Office
of Workers’ Compensation Programs (OWCP) dated April 9 and August 13, 2013 that denied
her recurrence claim. 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 is entitled to disability compensation for the period
January 23 to 25, 2013.
On appeal appellant generally asserts that she is entitled to wage-loss compensation for
the period claimed.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On November 3, 2006 appellant, then a 48-year-old mail handler, filed an occupational
disease claim, alleging that her daily job duties caused carpal tunnel syndrome in both hands.
After an initial denial on January 19, 2007, on March 30, 2007 an OWCP hearing representative
reversed the denial, and OWCP accepted bilateral carpal tunnel syndrome. OWCP adjudicated
the claim under file number xxxxxx625.
Appellant had a right carpal tunnel release on June 25, 2007, and returned to full-time
modified duty on August 12, 2007. By decision dated June 12, 2009, she was granted a schedule
award for five percent impairment of the right hand. In a June 25, 2009 decision, OWCP
determined that appellant’s actual earnings fairly and reasonably represented her wage-earning
capacity with zero loss. On September 16, 2009 appellant had a carpal tunnel release on the left,
and returned to full-time modified duty on June 3, 2010. She received appropriate disability
compensation.
On March 10, 2011 appellant filed an occupational disease claim for a left elbow
condition. She did not stop work. OWCP adjudicated the claim under file number xxxxxx065
and accepted bilateral lesion of the ulnar nerve. It combined the two cases on May 5, 2011.
On December 22, 2011 appellant was granted a schedule award for a five percent
impairment of the left arm. On May 31, 2012 she was granted a schedule award for an additional
five percent impairment of the left arm and on June 1, 2012 was granted an additional five
percent impairment of the right arm.
In a work capacity evaluation dated December 17, 2012, Dr. Phillip G. Esce, an attending
Board-certified neurosurgeon, advised that appellant was limited to two hours of modified duty
daily due to ulnar and median nerve problems. On January 31, 2013 appellant filed a claim for
compensation for January 23 through 25, 2013. The attached time analysis form indicated that
on each of these three days she worked two hours and claimed compensation for six hours.
By letter dated February 5, 2013, OWCP informed appellant of the type of evidence
needed to support her compensation claim. In a February 7, 2013 report, Dr. Esce indicated that
appellant could return to eight hours of modified duty daily on February 13, 2013. On
February 12, 2013 appellant filed a claim for compensation for January 26 through
February 8, 2013. On February 20, 2013 she accepted a full-time modified mail handler
position. On March 5, 2013 appellant filed a claim for compensation for February 9 through
22, 2013. The latter indicated that she returned to full-time modified duty on February 20, 2013.
In a March 7, 2013 report, Dr. Esce indicated that appellant was restricted to two hours of work
daily until February 13, 2013 due to worsening nerve pain, dysfunction and worsening symptoms
associated with her diagnoses of carpal tunnel syndrome and ulnar neuropathy.
In a decision dated April 9, 2013, OWCP denied appellant’s claim for compensation for
the period January 23 to February 22, 2013 on the grounds that the medical evidence did not
provide a thorough explanation with objective findings to show how her condition had worsened
such that she was no longer able to perform the duties of the modified position.
On May 9, 2013 appellant requested a review of the written record. In a May 6, 2013
statement, she indicated that she was forced to work only two hours daily by her physician and
2

the employing establishment and that she had no say in the matter. On May 2, 2013 Dr. Esce
noted that he had been treating appellant over the past two years. He advised that she was unable
to work full duty from January 26 to February 8, 2013, due to upper extremity dysfunction of
both hands which was caused by nerve entrapments in the median and ulnar locations, as
evidenced by a positive Tinel’s sign, electrodiagnostic study findings, and a surgical history
consistent with nerve entrapment and weakness and numbness in the arms. Dr. Esce described
physical examination findings and diagnosed carpal tunnel syndrome and ulnar neuropathy.2
In correspondence dated June 28, 2013, Charles Johnson, Health and Resource
Management Specialist with the employing establishment, advised that on September 11, 2012
employees who had not submitted medical evidence in one year were advised to provide updated
reports. He indicated that on December 21, 2012 appellant’s physician faxed a work capacity
evaluation limiting appellant to two hours of work daily. Mr. Johnson stated that in January he
became aware that appellant was still working full duty, and he, her supervisor, and appellant
had a teleconference where appellant asserted that she was not aware that her physician had
restricted her to two hours work per day. He indicated that once all parties were informed,
appellant’s supervisor abided by the new work restrictions and sent appellant home, with the
restrictions effective January 23, 2013. Mr. Johnson stated that once appellant’s physician
advised that she could work eight hours per day, a full-time modified job offer was provided and
signed on February 20, 2013. He concluded that it was not appellant’s choice to be reduced to
two hours of work per day, but that her physician placed this restriction without notifying
appellant or giving her a chance for her input. Mr. Johnson requested that OWCP honor her
claim for compensation for January 23 to February 8, 2013.
By decision dated August 13, 2013, an OWCP hearing representative affirmed the
April 9, 2013 decision with regard to the period January 23 to 25, 2013 on the grounds that the
medical evidence did not establish recurrent disability for this period. The hearing representative
set aside the decision regarding compensation from January 26 to February 22, 2013 because
OWCP had not provided appellant proper notice and advice regarding the evidence needed to
support her claim for continuing disability. On remand OWCP was to afford her 30 days to
submit sufficient evidence of meet her burden of proof for this period.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.3 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force), or when the physical

2

Appellant also submitted additional medical evidence that did not discuss her ability to work during the period
of claimed disability.
3

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

3

requirements of such an assignment are altered so that they exceed his or her established physical
limitations.4
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantial evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty.5
OWCP procedures provide that, if recurrent disability occurs after 90 days from return to
work, if the employing establishment has withdrawn a limited-duty assignment when no wageearning capacity determination is in place, the claims examiner need only establish continuing
injury-related disability for regular duty to accept this recurrence and begin payment of
compensation benefits.6
ANALYSIS
The Board finds that this case is not in posture for decision. On January 23, 2013
appellant changed her schedule from eight hours of limited duty daily to two hours a day. She
filed a claim for compensation for the remaining six hours she no longer worked. On a
December 17, 2012 work capacity evaluation, appellant’s physician Dr. Esce, placed a two-hour
workday restriction. He apparently faxed this to the employing establishment; but appellant
continued to work eight hours of modified duty daily until the employing establishment became
aware of the two-hour restriction. Following a conference with appellant, her supervisor, and the
health management specialist, the employing establishment restricted appellant to a two-hour
workday. Appellant then filed claims for six hours of compensation daily until she returned to
her eight-hour workday in February 2013.
In the case Terry R. Hedman, the Board held that to establish a claimed recurrence of
disability, a claimant must establish a change in the nature and extent of the injury-related
condition or a change in the nature and extent of the light-duty job requirements.7 In its April 9,
2013 decision, OWCP denied this claim on the grounds that the medical evidence did not
establish that her injury-related condition had worsened to the extent that she could no longer
perform the modified position. This decision was affirmed by an OWCP hearing representative
with regard to claimed disability from January 23 to 25, 2013. OWCP did not address Hedman
or determine whether appellant’s reduced hours represented a withdrawal of her light-duty
position.
As noted above, OWCP procedures provide that, if the employing establishment has
withdrawn a limited-duty assignment and no wage-earning capacity determination is in place, the
4

Id.

5

J.F., 58 ECAB 124 (2006); Carl C. Graci, 50 ECAB 557 (1999); Mary G. Allen, 50 ECAB 103 (1998); see also
Terry R. Hedman, 38 ECAB 222 (1986).
6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.6.a(4) (June 2013).

7

38 ECAB 222 (1986).

4

claims examiner need only establish continuing injury-related disability for regular duty to
accept this recurrence and begin payment of compensation benefits.8
The Board will set aside the August 13, 2013 decision and remand the case for proper
development in accordance with OWCP procedures. After such further development as deemed
necessary, OWCP shall issue an appropriate decision regarding appellant’s claim for disability
compensation for the period January 23 to 25, 2013.
CONCLUSION
The Board finds this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 13, 2013 is set aside and remanded to OWCP for
proceedings consistent with this opinion of the Board.
Issued: February 21, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

8

Federal (FECA) Procedure Manual, supra note 6. Although the record in this case includes a June 25, 2009
carpal tunnel release in which OWCP determined that appellant’s actual earnings fairly and reasonably represented
her wage-earning capacity with zero loss, when appellant resume total disability in 2010, her wage-loss
compensation after that date was not based on a wage-earning capacity determination.

5


United States Department of Labor
Employees’ Compensation Appeals Board
____________________________________________
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and
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DEPARTMENT OF THE INTERIOR,
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NATIONAL PARK SERVICE, Bryce Canyon, UT, )
Employer
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____________________________________________ )
J.K., claiming as mother of J.K., Appellant

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

Docket No. 17-0142
Issued: December 1, 2017

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 October 28, 2016 appellant filed a timely appeal from a September 23, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found an overpayment of compensation in
the amount of $19,139.57; and (2) whether OWCP properly found appellant at fault in creating
the overpayment and therefore not entitled to waiver of recovery.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On November 7, 1996 appellant, mother of the deceased employee’s minor daughter,
filed a claim for compensation by widow, widower, or child (Form CA-5)2 alleging that on
August 26, 1996 the employee had died in a motor vehicle accident while in the performance of
duty. The employee’s daughter was four years old at the time of his death, born
November 25, 1991. Appellant began receiving dependent compensation on behalf of the minor
daughter of the employee as of December 8, 1996.3
Appellant periodically submitted CA-12 forms with respect to continuing entitlement to
compensation benefits. The form requests information regarding the dependent, including the
age of the dependent. Appellant provided the completed forms to OWCP. Appellant submitted
evidence on December 7, 2009 that her daughter would graduate from high school in June 2010.
On November 21, 2011 OWCP received a Form CA-12 dated November 3, 2011 reflecting that
the deceased employee’s daughter was 19 years old.
OWCP sent appellant a letter dated March 6, 2012, requesting additional information
regarding continuing entitlement to compensation benefits. It was noted that compensation was
payable for an unmarried child who had reached age 18, and until 23 if the child was a full-time
student. In addition, OWCP notified appellant “Compensation is not payable beyond the end of
the semester or enrollment period in which the child either completes the fourth year of
education beyond high school or reaches the age of 23 years.” The record indicates that OWCP
also sent a similar letter dated April 10, 2012 to the dependent daughter, at the same address as
appellant.
On May 1, 2012 OWCP received a response from the daughter indicating that she had
been a full-time student since September 2010. Appellant continued to complete CA-12 forms
annually. In a Form CA-12 dated October 13, 2014, she indicated that her daughter was a
college student and was not living at home. OWCP continued to pay compensation to appellant
every 28 days through June 25, 2016.
By letter dated August 3, 2016, OWCP made a preliminary determination of an
overpayment of compensation in the amount of $19,139.57. It explained that the daughter was
not entitled to compensation after turning 23 years of age on November 25, 2014. In addition,
OWCP found appellant at fault as she had accepted compensation payments she knew or should
have known were incorrect. Appellant was advised of actions she could take within 30 days and,
if she did not respond, a final decision would be issued based on the evidence of record.
A memorandum of telephone call dated August 18, 2016 related that appellant believed
her daughter would receive life-long payment of compensation. On August 22, 2016 OWCP

2

Appellant was claiming on behalf of the minor daughter of the employee. Her minor daughter was born on
November 25, 1991.
3

Under 5 U.S.C. § 8133(a)(3), if the employee dies from an employment injury and has one child, the child
receives 40 percent of the deceased employee’s monthly pay.

2

sent appellant copies of the evidence of record, including a copy of the April 10, 2012 letter with
respect to a child’s entitlement to compensation.
By decision dated September 23, 2016, OWCP finalized the preliminary determination of
the creation of an overpayment in the amount of $19,139.57 for which appellant was at fault as
she had accepted payments she knew or should have known were incorrect. Therefore appellant
was not entitled to waiver of recovery.
LEGAL PRECEDENT -- ISSUE 1
Pursuant to 5 U.S.C. § 8133, if death results from an employment injury, compensation is
paid “to the children, if there is no widow or widower, 40 percent [of the monthly pay of the
deceased employee] for one child…” The compensation is payable until the child becomes 18
“or if over 18 and incapable of self-support becomes capable of self-support.” However, the
child may continue to receive compensation if he or she is a student at the time he or she reaches
18 years of age, and for as long as she continues to be a student as defined by 5 U.S.C.
§ 8101(17) or until he or she marries. 5 U.S.C. § 8101(17) defines a student as an individual
under 23 years of age who has not completed four years of education beyond high school and
who is regularly pursuing a full-time course of study.4
ANALYSIS -- ISSUE 1
In the present case, appellant was the mother of the deceased employee’s minor daughter.
The daughter was eligible for compensation benefits under 5 U.S.C. § 8133, following the death
of her father on August 26, 1996. She turned 18 years of age on November 25, 2009. The
evidence of record indicates that she continued to be a high school student until June 2010.
The daughter began education beyond high school in the fall semester of 2010. She
would have completed four years of education beyond the high school level as of the end of
July 2014.5 Under 5 U.S.C. § 8101(17), the daughter is no longer a student once she completes
four years of education beyond the high school level. Therefore, she was no longer a student as
of July 31, 2014. OWCP continued to pay compensation, however, through June 25, 2016.
Therefore it properly found an overpayment of compensation.
OWCP declared the period of overpayment from November 25, 2014 (the date the
daughter turned 23 years old) to June 25, 2016 (the date compensation payments ceased). It
calculated that it had paid $19,137.59 in compensation for that period. No contrary evidence was
presented, and appellant does not contest the amount. The Board accordingly finds that an
overpayment of $19,137.59 was created for the declared period.

4

For a full-time student that has not completed four years beyond high school, if the 23rd birthday occurs during a
semester or other enrollment period, student status continues until the end of the semester or enrollment period.
5 U.S.C. § 8101(17).
5

A year of education is defined as the 12-month period beginning the month after high school graduation, if the
student indicated an intention to continue in school during the next regular session, and each successive 12-month
period, provided that school attendance continues. S.B., Docket No. 07-0554 (issued September 4, 2007).

3

LEGAL PRECEDENT -- ISSUE 2
5 U.S.C. § 8129(b) provides: “Adjustment or recovery by the United States may not be
made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of FECA or would be against equity and good
conscience.”6 A claimant who is at fault in creating the overpayment is not entitled to waiver.7
On the issue of fault, 20 C.F.R. § 10.433 provides that an individual will be found at fault if he or
she has done any of the following: “(1) made an incorrect statement as to a material fact which
he or she knew or should have known to be incorrect; (2) failed to provide information which he
or she knew or should have known to be material; or (3) accepted a payment which he or she
knew or should have known was incorrect.” The regulations further provide that each recipient
of compensation benefits is responsible to ensure that payments he or she receives from OWCP
are proper.8 Whether or not OWCP determines that an individual was at fault with respect to the
creation of the overpayment depends on the circumstances surrounding the overpayment.9
ANALYSIS -- ISSUE 2
OWCP found appellant was at fault as she accepted payments she knew or should have
known were incorrect. In this regard, the Board notes that OWCP did send appellant a March 6,
2012 letter, as well as an April 10, 2012 letter to the daughter, at the same address, which clearly
explained the definition of a student.
As discussed above, the employee’s child would have completed four years of education
by the summer of 2014. The daughter turned 23 years of age on November 25, 2014. The
March 6 and April 10, 2012 letters clearly explained that compensation was not payable after
four years of education. OWCP issued compensation payments to appellant’s account on
July 26, August 23, September 20, October 18, and November 15, 2014. By the time appellant
accepted the December 13, 2014 payment, she should have known it was incorrect.10
On appeal appellant alleges that she does not recall receiving any letters regarding
student status ending at age 23. The record clearly indicates that OWCP had mailed her
information regarding the daughter’s entitlement to compensation as a student, after the age
of 18.
Appellant also notes that OWCP had evidence of the daughter’s birthday for 20 years and
should have stopped payments. However, even if the overpayment occurred because OWCP was
negligent, this does not excuse the acceptance of payments that appellant knew or should have
6

5 U.S.C. § 8129(b).

7

See Robert W. O’Brien, 36 ECAB 541, 547 (1985).

8

20 C.F.R. § 10.433(a). See also C.V., Docket No. 13-2108 (issued June 17, 2014).

9

Id.

10

See N.T., Docket No. 13-2050 (issued April 25, 2014); D.T., Docket No. 16-0710 (issued November 2, 2016);
G.M., Docket No. 15-0939 (issued April 13, 2016).

4

known were incorrect.11 For the reasons discussed above, the Board finds that OWCP properly
found an overpayment of compensation and appellant was at fault in creating the overpayment.
Since she is at fault, appellant is not entitled to waiver of recovery of the overpayment.
CONCLUSION
The Board finds an overpayment in the amount of $19,139.57 because OWCP paid
compensation pursuant to 5 U.S.C. § 8133 after the employee’s daughter was no longer a
student. The Board further finds that OWCP properly found appellant was at fault and therefore
not entitled to waiver of recovery of the overpayment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 23, 2016 is affirmed.
Issued: December 1, 2017
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

11

See V.D., Docket No. 16-0578 (issued November 3, 2016).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newaygo, MI, Employer
__________________________________________

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

Docket No. 17-1550
Issued: April 17, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On July 7, 2017 appellant, through counsel, filed a timely appeal from a May 3, 2017
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 more than one percent permanent impairment of her left
upper extremity, for which she previously received a schedule award.
FACTUAL HISTORY
On April 10, 2014 appellant, then a 53-year-old rural carrier, filed an occupational disease
claim (Form CA-2) alleging that she sustained a repetitive motion injury causally related to factors
of her federal employment. She did not stop work. OWCP accepted the claim, assigned File No.
xxxxxx419, for other affectations of the left shoulder region not otherwise classified.3
OWCP had previously accepted that appellant sustained left shoulder tendinitis under
OWCP File No. xxxxxx502. It administratively combined File No. xxxxxx502 with the present
claim.
Dr. Christopher Hudson, Board-certified in family practice, opined on July 23 and
October 16, 2015 that appellant had reached maximum medical improvement (MMI).4
On December 7, 2015 appellant filed a claim for a schedule award (Form CA-7). By letter
dated December 8, 2015, OWCP requested that she submit an impairment evaluation from her
attending physician addressing the extent of any employment-related permanent impairment in
accordance with the sixth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (A.M.A., Guides).5
In a March 9, 2016 impairment evaluation, Dr. Catherine Watkins Campbell, Boardcertified in family practice, recounted appellant’s history of injury and continued complaints of
left shoulder pain. On examination she found no laxity in the shoulders bilaterally with mild joint
tenderness on the left side. Dr. Watkins Campbell measured range of motion (ROM) of the left
shoulder6 three times and found a grade 4/5 strength deficit. She opined that appellant had reached
MMI on October 16, 2015. Dr. Watkins Campbell found three percent permanent impairment due
to a loss of left shoulder flexion and one percent impairment for loss of adduction using Table 1534 on page 475 of the A.M.A., Guides, which she added to find four percent permanent impairment
of the left upper extremity. She applied a grade modifier of three for functional history based on
appellant’s QuickDASH score of 73, to find no change from the four percent left upper extremity
impairment rating.
3

In a decision dated July 3, 2014, OWCP denied appellant’s claim as the medical evidence of record was
insufficient to establish a diagnosed condition causally related to the accepted work factors. By decision dated
May 13, 2015, it vacated its July 3, 2014 decision and accepted her claim for left shoulder impingement.
4

A June 20, 2015 magnetic resonance imaging (MRI) scan revealed moderate tendinopathy of the rotator cuff and
moderate glenohumeral and acromioclavicular joint osteoarthritis.
5

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

6
Dr. Watkins Campbell indicated that she was measuring appellant’s right rather than left shoulder; however, it is
apparent from the context of her report that this was a typographical error.

2

An OWCP medical adviser reviewed the evidence on April 7, 2016 and noted that
Dr. Watkins Campbell based her impairment rating on ROM, which the A.M.A., Guides indicated
was used primarily as an adjustment factor. He found that appellant’s impairment should be related
using the diagnosis-based impairment (DBI) method. The medical adviser identified the diagnosis
as impingement syndrome using Table 15-5 on page 402 of the A.M.A., Guides, which yielded a
default value of one percent. He found that applying grade modifiers would not alter the award.7
By decision dated June 1, 2016, OWCP granted appellant a schedule award for one percent
permanent impairment of her left upper extremity. The period of the award ran for 3.12 weeks
from January 4 to 25, 2016.
On June 13, 2016 appellant, through counsel, requested a telephone hearing before an
OWCP hearing representative. During the telephone hearing, held on February 16, 2017, counsel
maintained that recent Board decisions remanded cases for clarification regarding the use of ROM
in rating permanent impairment of the upper extremities.
By decision dated May 3, 2017, OWCP’s hearing representative affirmed the June 1, 2016
decision. She found that OWCP’s medical adviser properly applied the provisions of the A.M.A.,
Guides to the findings by Dr. Watkins Campbell.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.8 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of use
of specified members, functions, and organs of the body.9 FECA, however, does not specify the
manner by which the percentage loss of a member, function, or organ shall be determined. To
ensure consistent results and equal justice under the law, good administrative practice requires the
use of uniform standards applicable to all claimants. Through its implementing regulations,
OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating schedule losses.10
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first printing
7

In an April 21, 2016 supplemental report, OWCP’s medical adviser concurred with Dr. Hudson’s finding that
appellant obtained MMI occurred on July 23, 2015. On April 29, 2016 he found that she reached MMI on
October 16, 2015. In a supplemental report dated May 14, 2016, the medical adviser opined that appellant reached
MMI on January 4, 2016, the date of the impairment evaluation used to rate her impairment.
8

See 20 C.F.R. §§ 1.1-1.4.

9

For a complete loss of use of an arm, an employee shall receive 312 weeks of compensation. 5 U.S.C.
§ 8107(c)(1).
10

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

3

of the A.M.A., Guides. In April 2009, these changes were formally incorporated into the second
printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).11 The Board has approved the use by OWCP of the A.M.A., Guides
for the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.12
ANALYSIS
The issue on appeal is whether appellant has more than one percent permanent impairment
of her left upper extremity, for which she previously received a schedule award.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth edition
of the A.M.A., Guides when granting schedule awards for upper extremity claims. No consistent
interpretation has been followed regarding the proper use of the DBI or the ROM methodology
when assessing the extent of permanent impairment for schedule award purposes.13 The purpose
of the use of uniform standards is to ensure consistent results and to ensure equal justice under the
law to all claimants.14 In T.H., the Board concluded that OWCP physicians are at odds over the
proper methodology for rating upper extremity impairment, having observed attending physicians,
evaluating physicians, second opinion physicians, impartial medical examiners, and district
medical advisers use both DBI and ROM methodologies interchangeably without any consistent
basis. Furthermore, the Board has observed that physicians interchangeably cite to language in
the first printing or the second printing when justifying use of either ROM or DBI methodology.
Because OWCP’s own physicians were inconsistent in the application of the A.M.A., Guides, the
Board found that OWCP could no longer ensure consistent results and equal justice under the law
for all claimants.15
In light of the conflicting interpretation by OWCP of the sixth edition with respect to upper
extremity impairment ratings, it is incumbent upon OWCP, through its implementing regulations
and/or internal procedures, to establish a consistent method for rating upper extremity impairment.
In order to ensure consistent results and equal justice under the law for cases involving upper
extremity impairment, the Board will set aside the May 3, 2017 decision. Following OWCP’s
development of a consistent method for calculating permanent impairment for upper extremities

11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
12

Isidoro Rivera, 12 ECAB 348 (1961).

13

T.H., Docket No. 14-0943 (issued November 25, 2016).

14

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

15

Supra note 13.

4

to be applied uniformly,16 and such other development as may be deemed necessary, OWCP shall
issue a de novo decision on appellant’s claim for an upper extremity schedule award.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 3, 2017 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: April 17, 2018
Washington, DC

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

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

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

16

See FECA Bulletin No. 17-06 (May 8, 2017).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.H., Appellant
and
DEPARTMENT OF JUSTICE, DRUG
ENFORCEMENT ADMINISTRATION,
San Diego, CA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 08-1683
Issued: January 5, 2009

Case Submitted on the Record

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

JURISDICTION
On May 27, 2008 appellant timely appealed a March 6, 2008 decision of the Office of
Workers’ Compensation Programs denying his claim for benefits. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this claim.
ISSUE
The issue is whether appellant met his burden of proof in establishing that he sustained a
traumatic injury on December 3, 2007.
FACTUAL HISTORY
On December 5, 2007 appellant, then a 32-year-old special agent, filed a traumatic injury
claim, Form CA-1, alleging that on December 3, 2007 he jumped over a fence during
surveillance and injured his upper back upon impact.
By report dated December 5, 2007, Dr. Michael Anthony Mikus, Board-certified in
family and sports medicine, noted that appellant presented with knee pain, which had been

ongoing for two to three weeks. He indicated that appellant had not experienced any recent
trauma, but that his knee pain started after he was “doing squats.” Dr. Mikus also noted that
appellant had experienced pain in the neck/upper back intermittently for several months. He
noted that appellant had “no recent trauma” but that he had repetitive strain from
computer/deskwork.
By letter dated February 4, 2008, the Office notified appellant that the evidence
submitted was insufficient to support his claim because it did not contain a diagnosis of any
condition causally related to the alleged December 3, 2007 incident.
In response, appellant submitted a February 15, 2008 medical report from Dr. Mikus,
who again noted the presence of intermittent pain in the upper neck and upper back for several
months.
Appellant also submitted a February 19, 2008 statement describing his injury. He stated
that he scaled a seven-foot fence to ascertain the location of a residence associated with a target
of a Drug Enforcement Agency investigation. After scaling the fence, appellant jumped to the
ground on the other side. Upon a normal landing, he felt a sharp pain in the upper to middle
back, radiating outward. The pain did not subside for several days and still had not healed
completely. Appellant iced and rested the injured area prior to consulting with a physician on
December 5, 2007, when Dr. Mikus referred him to a chiropractor. He saw the chiropractor and
participated in daily stretching and strengthening exercises for the back.
By decision dated March 6, 2008, the Office denied appellant’s claim for compensation
finding that the evidence was not sufficient to establish that he sustained a back injury. The
Office accepted that the December 3, 2007 incident occurred as alleged but noted there was no
medical evidence relating a back injury to the incident.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of his or her claim by the weight of the
evidence,2 including that they sustained an injury in the performance of duty and that any
specific condition or disability for which they claim compensation is causally related to that
employment injury.3
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
1

5 U.S.C. § 8101 et seq.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
3

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).

2

incident at the time, place and in the manner alleged.4 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.5
As part of his burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.6 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.7 The Board has held that the fact that a condition manifests itself or
worsens during a period of employment8 or, moreover, that work activities produce symptoms
revelatory of an underlying condition9 does not raise an inference of causal relationship between
a claimed condition and employment factors.
ANALYSIS
Appellant claimed that he sustained an upper back and neck strain in the performance of
duty on December 3, 2007 when he jumped off a seven-foot fence. The Office accepted that the
incident occurred as alleged but denied the claim on the grounds that appellant submitted
insufficient medical evidence to establish an injury.
Appellant submitted several reports from Dr. Mikus, a treating physician, in support of
his traumatic injury claim. However, this evidence is deficient for several reasons. The Board
notes that none of the reports from Dr. Mikus provides the pertinent history of injury. Dr. Mikus
did not describe the incident of December 3, 2007, but stated that appellant did not sustain any
recent traumatic injury. On December 5, 2007 he stated that appellant presented with knee pain
of two to three weeks’ duration and noted his complaint of upper back and neck pain of several
months. Dr. Mikus did not provide a definitive diagnosis of any specific neck or back condition,
only that appellant had experienced an onset of neck and upper back pain several months prior to
December 2007 in conjunction with computer and deskwork. The Board has held that pain is a
symptom, not a compensable medical diagnosis.10

4

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

5

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
6

G.T., supra note 3; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

7

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

8

E.A., 58 ECAB ___ (Docket No. 07-1145, issued September 7, 2007); Albert C. Haygard, 11 ECAB 393,
395 (1960).
9

D.E., 58 ECAB ___ (Docket No. 07-27, issued April 6, 2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

10

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

3

The medical reports of Dr. Mikus do not provide a diagnosis or address the causal
relationship between appellant’s employment incident and the alleged injury. They are
insufficient to establish that appellant sustained an employment-related injury.11
Although appellant submitted a statement detailing how he believed his injury occurred,
neither the fact that his claimed back condition became apparent during a period of employment
nor his belief that his condition was caused or aggravated by his employment is sufficient to
establish causal relationship.12
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 6, 2008 is affirmed.
Issued: January 5, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

11

Appellant submitted additional medical evidence to the record following the Office’s March 6, 2008 decision.
The Board’s review of the evidence is however limited to the evidence which was before the Office at the time of its
final decision. 20 C.F.R. § 501.2(c).
12

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.S., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
New Orleans, LA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 07-1834
Issued: November 20, 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 July 2, 2007 appellant filed a timely appeal from an April 5, 2007 Office of Workers’
Compensation Programs’ decision, denying her claim for a schedule award. 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 any permanent impairment of her upper extremities
which entitles her to a schedule award.
FACTUAL HISTORY
This is the third appeal in this case.1 By decisions dated March 8, 2006 and April 10,
2007, the Board reversed Office wage-earning capacity decisions dated June 29, 2005 and
August 25, 2006. The findings of fact and conclusions of law from the prior Board decisions are
incorporated herein by reference.
1

Docket No. 07-21 (issued April 10, 2007); Docket No. 06-30 (issued March 8, 2006).

On September 24, 2001 the Office accepted that appellant, then a 41-year-old mail
processing clerk, sustained bilateral entrapment neuropathy and bilateral radiculopathy caused by
her duties of patching mail, labeling envelopes, folding letters and sealing and stuffing envelopes
eight hours a day. The Office provided appropriate wage-loss compensation and medical
benefits. Appellant returned to work in a limited-duty capacity on September 21, 2002. On
March 26, 2004 appellant filed a claim for a schedule award.
On June 8, 2001 Dr. Mary Mathai, a Board-certified physiatrist and specialist in
electrodiagnostic medicine, noted that appellant’s reflexes and grip strength were normal in both
extremities but she had positive Tinel’s and Phalen’s signs. A nerve conduction study (NCS),
performed on her upper extremities revealed normal distal latencies, amplitudes and conduction
velocities in both the median and ulnar nerves with the exception of a slowing of conduction
velocity in the ulnar nerve across the right elbow. An electromyogram (EMG) was consistent
with entrapment neuropathy as seen in cubital tunnel syndrome and also revealed chronic C6-7
bilateral radiculopathy.
On April 21, 2005 Dr. Windsor S. Dennis, an attending orthopedic surgeon, provided
findings on physical examination and diagnosed cervical radiculopathy, originating at C6-8, and
cubital tunnel syndrome. He stated that appellant had a 43.5 percent bilateral impairment of her
upper extremities based on the American Medical Association, Guides to the Evaluation of
Permanent Impairment,2 including 6 percent for each upper extremity due to loss of range of
motion in her wrists, 4.5 percent for each upper extremity due to spinal nerve deficit at the C6-8
levels, 18 percent for median nerve motor deficit of the right upper extremity and 15 percent for
motor deficit of the left upper extremity. On June 14, 2005 Dr. H. Mobley, an Office medical
adviser, stated that the report of Dr. Dennis contained insufficient information for determining
appellant’s bilateral upper extremity impairment.
An August 16, 2006 magnetic resonance imaging (MRI) scan of appellant’s cervical
spine noted normal body height and alignment. The disc spaces appeared to be well maintained
in height with diffuse disc dessication. There was no evidence of abnormal signal or swelling in
her cervical spine. An August 17, 2006 EMG and NCS examination of appellant’s upper
extremities was essentially normal. There was mild bilateral median nerve entrapment of her
wrists consistent with carpal tunnel syndrome but no evidence of cervical radiculopathy or ulnar
neuropathy on either side.
In a report dated July 26, 2006, Dr. Christopher E. Cenac, an orthopedic surgeon and an
Office referral physician, provided findings on physical examination as follows:
“[Appellant] has no specific tenderness of the brachial plexus bilaterally. Reflex
testing is normal in both upper extremities. Grip strength is symmetrical with the
dynamometer on three occasions at 20 foot pounds equally. [Appellant] is right
handed. No sensory deficits are identified to pinprick or light touch in the arms or
hands. Tinel’s test is positive at both wrists and elbows. Atrophy is not
documented by direct measurement above or below the elbows. [Appellant] has
2

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

2

full range of motion of the neck with subjective complaints at extremes of motion.
No point tenderness is elicited in the cervical spine. [Appellant] has normal pinch
and grasping ability. She has normal fine and gross dexterity bilaterally. Range
of motion of the shoulder, elbow, wrist is normal. Distal pulses are intact. The
Phalen’s test is negative.
“Cervical x-ray studies show reversal of the cervical lordosis.3 Mild degenerative
changes are noted at C6-7 and C6-T1.
“A review of the EMG/NCS previously accomplished [June 8, 2001] reveals an
entrapment neuropathy of the right ulnar nerve at the elbow and a chronic C6-7
radiculopathy bilaterally. Imaging studies revealed only findings consistent with
straightening of the cervical lordosis without any cord compression or nerve root
impingement identified.
“[Appellant] has not had any recent diagnostic testing to support her subjective
complaints. Imaging studies have been scheduled locally and EMG/NCS are also
scheduled. Upon receipt of these test results additional comments will be
forwarded relative to assessment of impairment….”
On September 13, 2006 Dr. Cenac noted that he had reviewed recent EMG and NCS testing. He
stated:
“[Appellant] has a mild bilateral median nerve entrapment at both wrists
consistent with carpal tunnel syndrome. She has no evidence of cervical
radiculopathy or ulnar radiculopathy on either extremity. The findings noted on
the prior study, June 8, 2001, have resolved.
“Using [the A.M.A., Guides, fifth edition], the following opinion is submitted.
[Appellant] has normal motion at the elbow, wrist and all digits. She has normal
grip strength testing.
[Appellant] has normal sensibility, [two-point]
discrimination testing, and opposition strength. She has no sensory or motor
deficits recorded. [Appellant] has mild findings on nerve conduction studies.
Accordingly, there is no objective basis for an impairment rating based on the
[A.M.A., Guides], Tables 16-10, 16-11, 16-15. [Appellant] reached MMI
[maximum medical improvement] December 6, 2002 as documented by
Dr. Windsor Dennis in his report of April 21, 2005.”
On April 3, 2007 Dr. Mobley stated that appellant had no impairment of her upper
extremities based on Dr. Cenac’s report and the A.M.A., Guides.

3

Lordosis is an abnormal increase in the curvature of the spine.
Dictionary (30th ed. 2003) 1067.

3

See DORLAND’S, Illustrated Medical

By decision dated April 5, 2007, the Office denied appellant’s claim for a schedule award
on the grounds that the medical evidence did not establish that she sustained any permanent
impairment of her upper extremities causally related to her August 1, 2001 employment injury.4
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act5 and its
implementing regulations6 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act does not specify the manner in which the percentage of loss shall be
determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.7
ANALYSIS
Dr. Cenac provided findings on physical examination. He stated that appellant had no
specific tenderness of the brachial plexus bilaterally and reflex testing was normal in both upper
extremities. Tinel’s test was positive at both wrists and elbows but the Phalen’s test was
negative. No sensory deficits were identified to pinprick or light touch in the arms or hands.
Atrophy was not documented by direct measurement above or below the elbows. Appellant had
full range of motion of her neck with subjective complaints at extremes of motion. No point
tenderness was elicited in the cervical spine. Appellant had normal range of motion of her
shoulders, elbows, wrists and all digits. She had normal pinch and grasping ability and normal
fine and gross dexterity bilaterally. Distal pulses were intact. Dr. Cenac found that appellant
had no sensory or motor deficits. He noted that a June 8, 2001 EMG/NCS report revealed an
entrapment neuropathy of the right ulnar nerve at the elbow and chronic C6-7 radiculopathy
bilaterally and that x-rays revealed findings consistent with cervical lordosis. Dr. Cenac noted
that recent x-rays showed a reversal of appellant’s cervical lordosis since the 2001 studies. In
addition, an August 16, 2006 MRI scan of appellant’s cervical spine noted normal body height
and alignment and no evidence of abnormal signal or swelling. An August 17, 2006 EMG and
NCS examination of appellant’s upper extremities was reported as essentially normal. He noted
that the recent studies revealed mild bilateral median nerve entrapment of her wrists consistent
with carpal tunnel syndrome but no evidence of cervical radiculopathy or ulnar radiculopathy in
either upper extremity. Dr. Cenac determined that appellant had no permanent impairment of her
upper extremities. The Board finds that the detailed report of Dr. Cenac, which is based on his
findings on physical examination, the results of objective testing and the A.M.A., Guides,
4

The Board notes that on April 30, 2007 the Office issued a wage-earning capacity decision. In the instant
appeal, appellant is not seeking Board review of the April 30, 2007 decision.
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

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

4

establishes that appellant has no permanent impairment of her upper extremities causally related
to her August 1, 2001 employment injury.
On April 21, 2005 Dr. Dennis provided findings on physical examination and stated that
appellant had a 43.5 percent bilateral impairment of her upper extremities based on the A.M.A.,
Guides, including 6 percent for each upper extremity due to loss of range motion in her wrists,
4.5 percent for each upper extremity due to spinal nerve deficit at the C6-8 levels, 18 percent for
median nerve motor deficit of the right upper extremity and 15 percent for motor deficit of the
left upper extremity. However, his examination of appellant was conducted more than one year
prior to Dr. Cenac’s examination. Objective testing performed at the time of Dr. Cenac’s
evaluation in 2006 revealed changes in appellant’s upper extremities. For example, although a
2001 EMG revealed bilateral cervical radiculopathy, the August 17, 2006 EMG and NCS
examinations of appellant’s upper extremities were essentially normal with no evidence of
radiculopathy. Dr. Dennis based his April 2005 impairment rating on findings of loss of range of
motion and motor and sensory deficit. However, more than one year later, in July 2006,
Dr. Cenac examined appellant and found no evidence of loss of range of motion or motor or
sensory deficit. Due to these deficiencies, the report of Dr. Dennis is not sufficient to establish
that appellant sustained any permanent impairment to her upper extremities causally related to
her August 1, 2001 employment injury.
CONCLUSION
The Board finds that appellant failed to establish that she has any permanent impairment
to her upper extremities causally related to her August 1, 2001 employment injury.

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 5, 2007 is affirmed.
Issued: November 20, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE ARMY,
)
Fort Riley, KS, Employer
)
___________________________________________ )
W.T., Appellant

Docket No. 15-0827
Issued: August 7, 2015

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

Case Submitted on the Record

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

JURISDICTION
On February 3, 2015 appellant filed a timely appeal from a December 12, 2014 merit
decision and a January 15, 2015 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish that he
sustained a traumatic injury on September 27, 2013 in the performance of duty; and (2) whether
OWCP properly refused to reopen appellant’s case for further review of the merits of his claim
under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 18, 2013 appellant, then a 50-year-old management analyst, filed a traumatic
injury claim alleging that on September 27, 2013, he was given preemployment vaccinations for
his new job with the employing establishment and sustained a muscle nerve injury to the right
1

5 U.S.C. § 8101 et seq.

arm. He stopped work on September 30, 2013. The employing establishment challenged the
claim.
By letter dated October 30, 2013, OWCP informed appellant of the type of evidence
needed to support his claim and requested that he submit such evidence within 30 days.
In a November 1, 2013 statement, appellant indicated that on September 27, 2013 he
reported to the employing establishment health clinic to receive vaccinations for an “OCONUS”
position. He received four vaccinations in the left arm and three in the right arm. Appellant
noted that he had fatigue and soreness in both arms and, by the end of the first week, most of the
side effects had dissipated but he had “noticeable pain and achiness still in the right arm.” By
the middle of the following week, the pain in the right arm worsened, with burning, mostly in the
upper arm, and across the bend at the elbow, with a dull ache that persisted in the hand and
forearm. Appellant advised that using the arm to lift or do normal tasks increased the pain and
certain movements were excruciating. When he continued having right arm pain, he saw a nurse
practitioner who recommended continued monitoring. Appellant went to an emergency room for
treatment when symptoms worsened. He indicated he was given pain and sleep medication and
had some relief at night and in the morning, but the pain returned and worsened with any use as
the day progressed. Appellant indicated that since he received the shots, he experienced loss of
strength in the right arm and hand and limited range of motion, pain or dull aching almost
constantly, and twitching and tics primarily when lying down. He completed OWCP’s
questionnaire on November 8, 2013 and responded “no” with regard to whether he had prior
injuries and whether he had a similar injury or disability before the injury.
In a November 21, 2013 statement, Barry Wade, an injury compensation manager with
the employing establishment, controverted the claim.
In a November 25, 2013 report, Dr. Anjaneyulu Alapati, a Board-certified clinical
neurologist, noted appellant’s history, which included that he presented with right arm pain and
weakness two months after receiving immunizations for a trip overseas. The physician examined
appellant, assessed right arm pain and diagnosed improving brachial neuralgia and no weakness.
Appellant also submitted evidence nurses’ notes and October 12, 2013 emergency department
discharge instructions.
In a decision dated December 2, 2013, OWCP denied appellant’s claim, finding that the
medical evidence did not establish causal relationship.
On December 9, 2013 appellant requested reconsideration. In a December 15, 2013
statement, appellant indicated that he was diagnosed with brachial neuritis as a direct result of
the employment-related vaccinations. OWCP received copies of previously submitted
documentation to include a copy of Dr. Alapati’s November 25, 2013 report.
In a January 7, 2014 decision, OWCP denied appellant’s request for reconsideration
finding that the evidence submitted was insufficient to warrant review of its prior decision.2
2

On October 10, 2014 appellant filed an appeal of the January 7, 2014 decision. On December 24, 2014 the
Board issued an order dismissing appeal. It found that the appeal was untimely filed. Docket No. 15-56.

2

On October 30, 2014 OWCP received appellant’s request for reconsideration. Appellant
indicated that it was 13 months post injury and he continued to suffer from pain and paralysis
directly resulting from the required vaccinations taken for his federal employment. OWCP
received nerve conduction studies dated December 4, 2013, which were normal and a copy of a
November 25, 2013 report from Dr. Alapati.
In a May 13, 2014 report, Dr. Tiffany Hendricks, Board-certified in family medicine,
noted that he had weakness and pain in the elbow and right arm after having had vaccinations.
She also indicated that appellant had aches and would get very tired. Dr. Hendricks diagnosed
essential hypertension and unspecified backache.
OWCP received a medical report dated June 10, 2014, from an unidentified healthcare
provider associated with Sportsmed. This report contains a diagnosis of bicipital tenosynovitis
and the provider indicates that his right elbow pain was not likely related to his vaccinations.
OWCP also received nurses’ notes dated December 8, 2014.
In a December 12, 2014 decision, OWCP denied modification of its prior decision.
On January 12, 2015 OWCP received appellant’s request for reconsideration. Appellant
argued that he filed his claim with the proper agency and his vaccination was work related as he
had to undergo the vaccination for his employment position. He noted that he had incurred
exorbitant out-of-pocket medical expenses. Appellant indicated that he also submitted further
documentation to include “doctor office notes.” He argued that his brachial praxis
“DIRECTLY” resulted from the vaccinations. OWCP received a copy of the June 10, 2014
report and treatment notes from a physical therapist dated December 16 and 18, 2014.
In a decision dated January 15, 2015, OWCP denied appellant’s request for
reconsideration finding that the evidence submitted was insufficient to warrant review of its prior
decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA3 and that an injury was sustained in the performance of duty.4 These
are the essential elements of each compensation claim, regardless of whether the claim is
predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a “fact of injury” has been established.
First, the employee must submit sufficient evidence to establish that he or she actually
3

Joe D. Cameron, 41 ECAB 153 (1989).

4

James E. Chadden, Sr., 40 ECAB 312 (1988).

5

Delores C. Ellyett, 41 ECAB 992 (1990).

3

experienced the employment incident at the time, place, and in the manner alleged.6 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish that the employment incident caused a personal injury.7
Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence. Rationalized medical opinion
evidence is generally required to establish causal relationship. The opinion of the physician must
be based on a complete factual and medical background, 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.8
ANALYSIS -- ISSUE 1
Appellant alleged that he sustained right arm pain and weakness after receiving
preemployment vaccinations at work. OWCP properly found that appellant was in the
performance of duty when the incident, the inoculations occurred on September 27, 2013. This
finding is consistent with OWCP procedures which state that deleterious effects such as injury
while undergoing periodic medical examination, reaction to agency-sponsored inoculation or
disease contracted from instrumentation are compensable.9 OWCP, however, denied appellant’s
claim for compensation after finding that the medical evidence was insufficient to establish that
appellant’s claimed conditions were causally related to the September 27, 2013 inoculations.
The medical reports of record do not establish that the vaccinations on September 27,
2013 caused a personal injury. The medical evidence contains no firm diagnosis, no rationale
and no explanation of the mechanism of injury. Appellant provided a November 25, 2013 report
from Dr. Alapati, who indicated that appellant presented with right arm pain and weakness two
months after receiving immunizations for a trip overseas. Dr. Alapati examined appellant,
assessed right arm pain and diagnosed brachial neuralgia improving and no weakness. The
Board notes that he did not indicate the condition was work related.10
In a May 13, 2014 report, Dr. Hendricks noted appellant was having weakness and pain
in the elbow and right arm after having had vaccinations. The Board initially notes that it
appears that Dr. Hendricks is concerned with a nonwork-related back condition. While
Dr. Hendricks mentioned right arm complaints, she did not specifically address whether an
employment incident on September 27, 2013 caused any condition to his right arm as she only
diagnosed essential hypertension and backache, unspecified. Consequently, the Board finds that
this evidence is insufficient to establish appellant’s claim.
6

John J. Carlone, 41 ECAB 354 (1989).

7

Id.

8

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

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.19(a) (March 1994).

10

Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer any opinion regarding the cause
of an employee’s condition is of diminished probative value on the issue of causal relationship).

4

Other reports submitted by appellant did not specifically address causal relationship
between the September 27, 2013 vaccinations and a diagnosed medical condition.
The record also contains notes from physical therapists and a nurse. Section 8101(2) of
FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their
practice as defined by the applicable state law. Consequently, this evidence is not relevant as it
is cannot be considered medical evidence and, as noted above, the underlying point at issue is
medical in nature.
11

The record also contains a report dated June 10, 2014, from an unidentified healthcare
provider. The Board has held that medical reports lacking proper identification do not constitute
probative medical evidence.12 Without a signature, it is unclear who authored the opinion and it
is therefore of limited probative value.
In the present case, there is no reasoned medical evidence from a physician explaining
how and why the employment activities on September 27, 2013 caused or aggravated appellant’s
right arm condition.
As such, appellant has not established that the September 27, 2013 employment incident
caused or aggravated a specific injury.
On appeal appellant argues that his claim was denied in part because it was filed with the
wrong agency. However, the Board notes that the claim is denied because the medical evidence
was insufficient, as found above.
Appellant may submit evidence or argument with a written request for reconsideration
within one year of this merit decision pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605
through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of FECA,13 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provides that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence which:
“(i) Shows that OWCP erroneously applied or interpreted a specific point of law;
or

11

See 5 U.S.C. § 8101(2). See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held
that a medical opinion, in general, can only be given by a qualified physician).
12

See C.B., Docket No. 09-2027 (issued May 12, 2010).

13

5 U.S.C. § 8128(a).

5

“(ii) Advances a relevant legal argument not previously considered by OWCP; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by the OWCP.”14
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.15
ANALYSIS -- ISSUE 2
Appellant disagreed with the denial of his traumatic injury claim and timely requested
reconsideration on January 12, 2015. The underlying issue on reconsideration is medical in
nature, whether the September 27, 2013 work incident caused or contributed to an injury.
OWCP denied appellant’s application on January 15, 2015, finding that no new evidence
was offered warranting further merit review. The underlying issue on reconsideration is medical
in nature. OWCP denied the claim because the medical evidence did not contain medical
opinion evidence explaining how his right arm condition was caused or aggravated by the
September 27, 2015 work incident.16 The Board finds that appellant made no arguments that
demonstrated a legal error by OWCP or advance a relevant legal argument not previously
considered by OWCP. Appellant’s general disagreement with OWCP’s denial of his claim is
insufficient to meet one of these two criteria.
Appellant argued that he filed his claim with the proper agency. He also indicated that
his medical evidence supported that his brachial plexus was directly related to the vaccinations.
Appellant’s opinion on causal relationship would not be sufficient to reopen the case. The Board
has held that the submission of evidence which does not address the particular issue involved
does not constitute a basis for reopening a case.17
The Board finds that no new medical evidence was submitted. Appellant resubmitted
evidence which included the unsigned June 10, 2014 report. Material which is cumulative does
not constitute a basis for reopening a case for further merit review.18
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that he
sustained a traumatic injury on September 27, 2013 in the performance of duty. The Board also
14

20 C.F.R. § 10.606(b).

15

Id. at § 10.608(b).

16

See for example, A.D., 58 ECAB 149 (2006).

17

Ronald A. Eldridge, 53 ECAB 218 (2001); Alan G. Williams, 52 ECAB 180 (2000).

18

Betty A. Butler, 56 ECAB 545 (2000).

6

finds that OWCP properly refused to reopen appellant’s case for further review of the merits of
his claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the January 15 and December 12, 2014 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: August 7, 2015
Washington, DC

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

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

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

7