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

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

Docket No. 07-786
Issued: September 25, 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 29, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated January 12, 2007 reducing his compensation.1
Pursuant to 20 C.F.R. §§ 501.2 and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation effective
August 7, 2005, based on its determination that the full-time constructed position of dispatcher,
maintenance service represented his wage-earning capacity.

1

The Board’s jurisdiction to consider and decide appeals from final decisions of the Office extends only to those
decisions issued within one year prior to the filing of the appeal. See 20 C.F.R. §§ 501.3(d)(2). The Office’s
February 20, 2007 schedule award decision, which was issued after the filing of this appeal, is the subject of ECAB
Docket No. 07-982 and a separate decision will issue on that appeal.

FACTUAL HISTORY
This is the second time this case has been before the Board on appeal. By order dated
September 26, 2006, the Board remanded the case to the Office for reconstruction of the record
and appropriate development, in order to obtain a copy of a November 2005 decision referenced
by the Office in its last merit decision.2
On February 27, 2002 appellant, a 29-year-old mail carrier, filed a traumatic injury claim
alleging that he injured his lower back while lifting a tray. His claim was accepted for
aggravation of a herniated lumbar disc and he was placed on the periodic rolls.
On November 13, 2002 appellant’s treating physician, Dr. Richard Levenberg, a Boardcertified orthopedic surgeon, opined that appellant was disabled. In a second opinion report
dated December 17, 2002, Dr. Steven J. Valentino, a Board-certified osteopath specializing in
orthopedic surgery, opined that appellant’s accepted condition had resolved. In order to resolve
the conflict of medical opinion, the Office referred appellant to Dr. Andrew J. Collier, Jr., a
Board-certified orthopedist, for an impartial medical examination. In a March 26, 2003 report,
Dr. Collier opined that appellant suffered residuals from his accepted February 27, 2002 injury,
and was unable to perform the duties of his date-of-injury job. He indicated that appellant was
able to work light duty, four to six hours per day, in a mainly sedentary position.
On May 20, 2003 the Office referred appellant to a rehabilitation counselor for vocational
rehabilitation services. In a report dated August 18, 2003, the rehabilitation counselor indicated
that appellant had completed vocational testing with Steven Gummerman, Ph.D. In a vocational
evaluation dated August 6, 2003, Dr. Gummerman opined that appellant’s postinjury transferable
skills would permit him to work as a dispatcher or in other sedentary positions.
On September 16, 2003 appellant underwent authorized L5-S1 lumbar surgery. On
December 2, 2003 appellant’s vocational rehabilitation status was changed to “service
interrupted” until March 2, 2004. After reinjuring himself during physical therapy, he underwent
a second authorized back surgery to remove a disc fragment at L5, and herniated disc surgery on
January 23, 2004. Appellant’s “service interrupted” status was then extended to June 2, 2004.
In a March 18, 2004 work ability report, Dr. Levenberg indicated that appellant could
return to work on April 1, 2004 in a sedentary position with restrictions, including: no pushing
or pulling; no weight-bearing; no repetitive kneeling or squatting; no repetitive typing or keying;
no repetitive bending; no climbing; and no lifting more than five pounds. In a note dated
March 18, 2004, Dr. Levenberg stated that appellant’s wound was well healed and that he was
neurovascularly unchanged. He found no evidence of infection, spasm or sciatic nerve root
tension. In a June 23, 2004 work capacity evaluation, Dr. Levenberg provided restrictions,
which included pushing, pulling and lifting a maximum of 10 pounds. Appellant was precluded
from walking or standing for more than four hours, and from reaching, operating a motor
vehicle, squatting, kneeling or climbing.

2

Docket No. 06-775 (issued September 26, 2006).

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After reviewing Dr. Levenberg’s work restrictions and appellant’s transferable skills, the
rehabilitation counselor, Susan Snedden, developed a reemployment placement plan. On
July 28, 2004 appellant signed an individual rehabilitation plan agreeing to search for jobs as a
dispatcher in his geographical region. On August 13, 2004 appellant’s status was changed to
“placement new employer,” and a three-month job placement search was approved. In a
vocational rehabilitation report for the period July 17 to August 17, 2004, Ms. Snedden noted
that appellant had extensive work history in the dispatching field.
The record reflects that the vocational counselor notified appellant of numerous available
dispatch positions, indicating that she had contacted the prospective employers on his behalf. On
October 18, 2004 appellant was advised of the availability of the position of central station
dispatcher, Security Alarm Monitoring, Woodlyn, PA. On October 21, 2004 he was informed of
the position of central station response call center operator, Vector Security,
Plymouth Meeting, PA. On January 12, 2005 appellant was told of the availability of the
position of central station dispatcher, Security Alarm Monitoring, Woodlyn, PA. On January 20,
2005 the vocational counselor identified the position of central response call center operator at
Vector Security, Plymouth Meeting, PA. On February 23, 2005 the counselor informed
appellant that the position of dispatcher was currently available at Quaker City & Community
Cab in Philadelphia, PA. On February 24, 2005 appellant was informed of an available position
of police dispatcher with the Whitemarsh Township Police Department in Lafayette Hill, PA.
The counselor noted that appellant had been inconsistent in his follow through on potential jobs
identified, even though in most cases, she had downloaded employment applications for
appellant, and sent him addressed, stamped envelopes in which to enclose his application and
resume.
In notes dated August 4, 2004, Dr. Levenberg reiterated that appellant was cleared for
sedentary work only.
In a closure report dated March 9, 2005, the rehabilitation specialist noted that the 90-day
job placement period had expired, and that, as of the date of the report, he had not obtained
employment. The rehabilitation counselor submitted job classifications for the positions of
“dispatcher, maintenance service,” and “dispatcher, service or work,” as listed in the Department
of Labor, Dictionary of Occupational Titles (DOT). Strength levels for both positions were
characterized as sedentary, requiring occasional lifting of up to 10 pounds. Physical demands of
the positions included frequent reaching and handling. Ms. Snedden reviewed these constructed
positions and found that they should be the target jobs of choice in determining appellant’s
wage-earning capacity, stating that the work was within appellant’s vocational abilities. The
counselor noted that he had an extensive work history in the dispatching field, and would have
an excellent chance for hire, if he maintained consistent follow-through on the positions referred.
The rehabilitation specialist noted that she had taken into consideration all significant preexisting
impairments and pertinent nonmedical factors. The specialist further found that these positions
were reasonably available within appellant’s commuting area with average weekly wages of
$340.00 and $480.00 respectively.3
3

The vocational counselor’s determination regarding reasonable availability was based on July 14, 2004 and
March 4, 2005 conversations with Tony Bucciarelli, program manager, State Office of Employment Security,
Philadelphia, PA.

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On June 22, 2005 the Office issued a notice of proposed reduction of compensation, on
the grounds that appellant was no longer totally disabled and had the capacity to earn the wages
of a dispatcher, maintenance service, at the rate of $340.00 per week. The record contains a
wage-earning capacity computation reflecting a weekly pay rate when injured of $720.40;
current weekly pay rate for job when injured of $780.40 (effective January 1, 2005); constructed
wage-earning capacity of $340.00 per week; percentage of new wage-earning capacity of 44
percent; adjusted wage-earning capacity amount per week of 313.86; loss in wage-earning
capacity (LWEC) of 406.54; gross weekly compensation rate of $304.91 (increased by cost-ofliving adjustment to $315.58 per week); and new compensation rate every four weeks of
$1,262.33.
By letter dated July 22, 2005, appellant’s representative contended that the proposed
reduction was inappropriate on several counts. He alleged: (1) that the vocational counselor
fraudulently reported that the position of dispatcher, maintenance service was reasonably
available in appellant’s commuting area, stating that the state employment bureau does not
maintain the data identified by the counselor; (2) that the selected position was not within
appellant’s work restrictions, because it requires frequent reaching and handling and occasional
fingering; (3) that vocational testing was not performed; and (4) that it is unclear whether the
position was available in appellant’s commuting area.
By decision dated August 2, 2005, the Office finalized its reduction of compensation
effective August 7, 2005. The Office found that the full-time position of “dispatcher,
maintenance service” was medically and vocationally suitable and represented appellant’s wageearning capacity of $340.00 per week. A final wage-earning capacity computation reflected a
weekly pay rate when injured of $720.40; current weekly pay rate for job when injured of
$780.40 (effective January 1, 2005); constructed weekly earning capacity of $340.00 per week;
percentage of new wage-earning capacity of 44 percent; adjusted wage-earning capacity amount
per week of $313.86; loss in wage-earning capacity (LWEC) of $406.54; gross weekly
compensation rate of $304.91 (increased by cost-of-living adjustment to $325.58 per week); and
new compensation rate every four weeks of $1,302.32. The record does not reflect that a copy of
the August 2, 2005 decision was sent to appellant’s representative.
On August 9, 2005 appellant, through his representative, requested a review of the
written record. The representative contended that the August 2, 2005 decision should be set
aside on the grounds that the Office had failed to send him a copy of the decision. In an undated
letter, received by the Office on November 28, 2005, appellant informed the Office that he was
working 5 days per week, 30 to 40 hours per week, at King Transportation in King of
Prussia, PA. Appellant submitted a duty status report dated November 30, 2005 from
Dr. Charles Kish, a treating physician, reflecting that he was able to work eight hours per day
with restrictions. Appellant was precluded from climbing; from kneeling more than one hour per
day; from fine manipulation more than six hours per day; and from reaching above shoulder
level, twisting, bending or stooping more than four hours per day. He was also restricted from
lifting or carrying more than 25 pounds continuously or 40 pounds intermittently. In a
December 1, 2005 “work-related injury report,” Dr. Kish indicated that appellant was capable of
performing “[m]edium [d]uty: Frequent carrying 25 pounds, max[imum] lifting 50 pounds at

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once.” He stated that appellant was able to bend, squat and reach occasionally, but that he could
never crawl or climb.
By decision dated December 22, 2005, the Office hearing representative affirmed the
Office’s November 7, 2005 decision, finding that appellant was not unfairly prejudiced by the
Office’s failure to send a copy of the decision to his representative. Appellant, through his
representative, appealed the December 22, 2005 decision.
By order dated September 26, 2006, the Board remanded the case to the Office for
reconstruction of the record and appropriate development, in order to obtain a copy of a
November 2005 decision referenced by the Office in its December 22, 2005 decision.4
On August 9, 2006 Dr. Levenberg indicated that appellant should continue to work in a
sedentary position. He also stated that appellant was “approved to work for his current job at
Thomas Jefferson University Hospital” in the dispatch department. In an accompanying work
capacity evaluation, Dr. Levenberg indicated that appellant could work with the following
restrictions: no lifting more than 20 pounds; no reaching above the shoulder; no twisting,
bending, stooping, pushing, pulling, squatting, kneeling or climbing. He also indicated that
appellant should be permitted to take 15-minute breaks, 5 to 6 times per day. On August 29,
2006 Dr. Levenberg reiterated his opinion that appellant would require permanent sedentary
work restrictions due to his work-related injury.
In accordance with the Board’s September 26, 2006 order, the Office reviewed the file in
an attempt to locate the November 7, 2005 decision referenced by the hearing representative in
his December 22, 2005 decision. In a January 12, 2007 decision, the Office concluded that the
reference to a November 7, 2005 decision was a typographical error, and that no such decision
existed. The Office reissued its August 2, 2005 decision finalizing appellant’s reduction of
compensation effective August 7, 2005.
LEGAL PRECEDENT
An injured employee who is either unable to return to the position held at the time of
injury or unable to earn equivalent wages, but who is not totally disabled for all gainful
employment, is entitled to compensation computed on loss of wage-earning capacity.5 Under
section 8115(a) of the Federal Employees’ Compensation Act, wage-earning capacity is
determined by the actual wages received by an employee if the earnings fairly and reasonably
represent his or her wage-earning capacity. If the actual earnings do not fairly and reasonably
represent the employee’s wage-earning capacity, or if the employee has no actual wages, the
wage-earning capacity is determined with due regard to the nature of the injury, the degree of
physical impairment, the employee’s usual employment, age, qualifications for other

4

Docket No. 06-775 (issued September 26, 2006).

5

20 C.F.R. §§ 10.402, 10.403 (2006); see Alfred R. Hafer, 46 ECAB 553, 556 (1995).

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employment, the availability of suitable employment, and other factors and circumstances which
may affect wage-earning capacity in his or her disabled condition.6
The Office must initially determine appellant’s medical condition and work restrictions
before selecting an appropriate position that reflects appellant’s vocational wage-earning
capacity. The medical evidence on which the Office relies must provide a detailed description of
appellant’s condition.7 Additionally, a wage-earning capacity determination must be based on a
reasonably current medical evaluation.8
When the Office makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an Office wage-earning capacity specialist for
selection of a position listed in the Department of Labor, DOT, or otherwise available in the open
labor market, that fits the employee’s capabilities with regard to his or her physical limitations,
education, age and prior experience. Once this selection is made, a determination of wage rate
and availability in the open labor market should be made through contact with the state
employment service or other applicable service. Finally, application of the principles set forth in
the Shadrick decision will result in the percentage of the employee’s loss of wage-earning
capacity.9
ANALYSIS
On January 12, 2007 the Office reissued its August 2, 2005 decision finalizing
appellant’s reduction of compensation effective August 7, 2005. The Office determined that the
selected position of “dispatcher, maintenance services” was medically and vocationally suitable,
and represented appellant’s wage-earning capacity of $340.00 per week. The issue of whether an
employee has the physical ability to perform a modified position offered by the employing
establishment is primarily a medical question that must be resolved by the medical evidence.10
The Board finds that the medical evidence does not support a finding that the selected position of
“dispatcher, maintenance services” is within appellant’s physical limitations.
The requirements of the position identified by appellant’s vocational rehabilitation
counselor exceed appellant’s restrictions. On June 23, 2004 Dr. Levenberg restricted appellant
from pushing, pulling or lifting more than ten pounds, from walking or standing for more than

6

5 U.S.C. § 8115(a) (2000); see Mary Jo Colvert, 45 ECAB 575 (1994); Keith Hanselman, 42 ECAB 680 (1991).

7

Samuel J. Russo, 28 ECAB 43 (1976).

8

Carl C. Green, Jr., 47 ECAB 737, 746 (1996).

9

Albert C. Shadrick, 5 ECAB 376 (1953); 20 C.F.R. § 10.403(d).

10

Robert Dickinson, 46 ECAB 1002 (1995).

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four hours, and from reaching, operating a motor vehicle, squatting, kneeling or climbing. On
August 9, 2006 he indicated that appellant could work with the following restrictions: no lifting
more than 20 pounds; no reaching above the shoulder; no twisting, bending, stooping, pushing,
pulling, squatting, kneeling or climbing. He also indicated that appellant should be permitted to
take 15-minute breaks, five to six times per day. On December 1, 2005 Dr. Kish indicated that
appellant was able to bend, squat and reach occasionally, but that he could never crawl or climb.
The rehabilitation counselor submitted job classifications for the positions of “dispatcher,
maintenance service,” and “dispatcher, service or work,” as listed in the Department of Labor,
DOT. Although strength levels for both positions were characterized as sedentary, requiring
occasional (up to one-third of the time) lifting of up to 10 pounds, the physical demands of the
positions included frequent (from one-third to two-thirds of the time) reaching, which was
prohibited by both Dr. Levenberg and Dr. Kish. Furthermore, the position descriptions did not
provide for frequent breaks, as required by Dr. Levenberg.
In its August 2, 2005 decision, which was reissued on January 12, 2007, the Office found
that the position of “dispatcher, maintenance service” was within appellant’s physical
restrictions. However, the medical evidence does not establish that appellant has the physical
capacity to perform the duties of the constructed position. Accordingly, the Office did not meet
its burden of proof in this case to reduce appellant’s compensation benefits pursuant to 5 U.S.C.
§ 8115.
CONCLUSION
The Board finds that the Office did not meet its burden to reduce appellant’s
compensation benefits pursuant to 5 U.S.C. § 8115.

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ORDER
IT IS HEREBY ORDERED THAT the January 12, 2007 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: September 25, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Houston, TX, Employer
__________________________________________

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

Docket No. 16-0985
Issued: August 17, 2016

Case Submitted on the Record

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

JURISDICTION
On April 8, 2016 appellant filed a timely appeal of a January 13, 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 to
consider the merits of the case.
ISSUE
The issue is whether appellant has met her burden of proof to establish an occupational
disease of the left shoulder in the performance of duty.
FACTUAL HISTORY
On November 16, 2015 appellant, then a 39-year-old rural carrier, filed an occupational
disease claim (Form CA-2) alleging that on November 9, 2015 she became aware of a strain and
shoulder pain which she attributed to her employment duties.
1

5 U.S.C. § 8101 et seq.

In a letter dated November 23, 2015, OWCP noted receiving appellant’s claim form, but
no other information in support of her claim. It requested that she describe how her injury
occurred, provide a medical diagnosis for her condition, and provide a physician’s opinion as to
how employment activities caused, contributed to, or aggravated her medical condition.
Appellant submitted a note and a duty status report (Form CA-17) from Dr. Kamran
Shabtai, a physician Board-certified in preventative medicine, providing a date of injury of
November 9, 2015. Dr. Shabtai noted that appellant started experiencing pain in her left
shoulder while working and diagnosed synovitis and tenosynovitis of the left shoulder. He
provided work restrictions. Dr. Shabtai noted that appellant had decreased range of motion in
her left shoulder with weakness and swelling. He found diffuse tenderness and positive
impingement. Dr. Shabtai reviewed x-rays which were normal. He reexamined appellant on
November 23, 2015 for pain in her left shoulder while working on November 9, 2015.
Dr. Shabtai diagnosed synovitis and tenosynovitis left shoulder.
Appellant also sought treatment from Dr. Marcos Masson, a Board-certified orthopedic
surgeon, who examined her on November 12 and December 3, 2015. Dr. Masson noted that
appellant developed left shoulder pain from repetitive overhead reaching and had a previous
diagnosis of thoracic outlet syndrome. He diagnosed left brachial plexus disorders.
The employing establishment submitted a statement from appellant noting that on
November 7, 2015 she reported pain in her left shoulder. On November 9, 2015 appellant
indicated that she was not clear how her shoulder pain began, but when she started to reach up to
case mail she could feel pain. She denied hitting her shoulder, twisting, or sudden jerks. On
November 12, 2015 appellant described her onset of shoulder pain, noting that on November 9,
2015 she was performing her normal work including picking up tubs of flats from the floor and
placing them on her case. She alleged, “After I emptied all the mail from the tubs, I began to
case the flats. An hour or and an hour and a half in casing the flats, I noticed a sharp pain in my
left shoulder when I would reach up.”
The employing establishment provided appellant’s job description which included casing,
delivering, and collecting mail along a prescribed rural route using a vehicle.
Dr. Shabtai examined appellant on December 11 and 30, 2015 and repeated his earlier
diagnoses and findings. He recommended additional physical therapy and a magnetic resonance
imaging scan.
By decision dated January 13, 2016, OWCP denied appellant’s claim. It found that she
failed to submit factual evidence as to how her federal employment contributed to her condition.
LEGAL PRECEDENT
OWCP’s regulations define an occupational disease as “a condition produced by the work
environment over a period longer than a single workday or shift.”2 To establish that an injury
was sustained in the performance of duty in an occupational disease claim, a claimant must
2

20 C.F.R. § 10.5(q).

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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.3
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.4
Moreover, an injury does not have to be confirmed by eyewitnesses. An employee’s statement,
however, must be consistent with the surrounding facts and circumstances and his or her
subsequent course of action. An employee has not met his or her burden in establishing the
occurrence of an injury when there are such inconsistencies in the evidence as to cast serious
doubt upon the validity of the claim. Circumstances such as late notification of injury, lack of
confirmation of injury, continuing to work without apparent difficulty following the alleged
injury, and failure to obtain medical treatment may, if otherwise unexplained, cast doubt on an
employee’s statement in determining whether a prima facie case has been established.5
The evidence required to establish causal relationship is rationalized medical opinion
evidence, based upon a complete factual and medical background, showing a causal relationship
between the claimed condition and identified factors. The belief of a claimant that a condition
was caused or aggravated by employment duties is insufficient to establish causal relation.6
ANALYSIS
In order to establish her occupational disease claim, appellant must submit a medical
report diagnosing a condition. She has provided medical evidence from Drs. Shabtai and
Masson diagnosing synovitis and tenosynovitis, and left brachial plexus disorder, respectively.
The next requirement to establish an occupational disease claim is the identification of
the implicated employment factors. OWCP denied the claim on this basis. However, as noted,
an employee’s statement that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence. The record
contains appellant’s description of her employment duties as provided to the employing
establishment. Appellant initially reported pain in her left shoulder to the employing
establishment on November 7, 2015. On November 9, 2015 she reported that she was
experiencing pain while reaching up to case mail. On November 12, 2015 appellant provided a
more detailed description to the employing establishment, noting that on November 9, 2015 she
was performing her normal work including picking up tubs of flats from the floor and placing
3

Lourdes Harris, 45 ECAB 545, 547 (1994).

4

R.T., Docket No. 08-408 (issued December 16, 2008); Gregory J. Reser, 57 ECAB 277 (2005).

5

Betty J. Smith, 54 ECAB 174 (2002).

6

Supra note 3.

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them on her case and casing the flats of mail. She asserted that, after an hour or more of casing
flats, she noticed a sharp pain in her left shoulder when she reached up. The Board finds that
appellant has indicated that she experienced shoulder pain for a period longer than one workday
or work shift and attributed this condition to her duties of lifting tubs and casing flats. There are
not such inconsistencies in the evidence as to cast serious doubt on whether the claimed work
factors occurred as alleged. The Board finds that appellant has sufficiently identified and
established the work factors she alleged caused her diagnosed condition.7
CONCLUSION
The Board finds that appellant has met her burden of proof to establish factors of her
federal employment that she has alleged caused an occupational disease of the left shoulder.
ORDER
IT IS HEREBY ORDERED THAT the January 13, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action in
conformance with this decision.
Issued: August 17, 2016
Washington, DC

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

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

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

7

See Louise F. Garnett, 47 ECAB 639 (1996); Louise G. Moore, 20 ECAB 165 (1968).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.F., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
CONTRACT MANAGEMENT AGENCY,
Melbourne, FL, Employer
__________________________________________

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

Docket No. 08-1129
Issued: October 16, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On March 10, 2008 appellant filed a timely appeal of a December 4, 2007 merit decision
of the Office of Workers’ Compensation Programs finding that he had no more than nine percent
impairment of the right upper extremity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of the schedule award.
ISSUE
The issue is whether appellant has more than nine percent impairment to his right upper
extremity for which he received a schedule award.
FACTUAL HISTORY

On June 6, 2006 appellant, a 57-year-old contracts operations supervisor, hit his right arm
against a doorway. He indicated that the shock of hitting the door reinjured his right shoulder
which was recovering from tendinitis. On June 20, 2006 appellant filed a claim for benefits,

which the Office accepted for “other specified disorder of bursae and tendons in shoulder region,
right.”
Appellant stopped work on May 30, 2007 and underwent arthroscopic surgery for right
shoulder impingement syndrome and degenerative arthritis of acromioclavicular joint.
Following the surgery, he underwent physical therapy. Appellant eventually returned to parttime light-duty work.
On October 1, 2007 appellant underwent a functional capacity evaluation. The following
figures were obtained for range of motion findings for the right shoulder: flexion, 139.0 degrees;
extension, 33.3 degrees; abduction, 128.3 degrees; adduction, 21.3 degrees; internal rotation,
59.7 degrees; external rotation, 77.0 degrees.
In an October 22, 2007 report, Dr. Anthony Lombardo, a Board-certified orthopedic
surgeon, noted that appellant advised that he had good range of motion but pain with extended
use of the shoulder. Range of motion findings for the right shoulder revealed: limited passive
range of motion; abduction, 135 degrees; flexion, 135 degrees; internal rotation, 90 degrees;
external rotation; 60 degrees. Strength findings were normal with no signs of atrophy,
deformity, or ecchymosis. Examination revealed a positive subacromial space tenderness and
positive painful arc. All other testing was negative. Dr. Lombardo noted the functional capacity
evaluation showed appellant was capable of light-duty work. He opined that appellant was at
maximum medical improvement and he was capable of light duty with restrictions.
Dr. Lombardo further opined that appellant had four percent whole person impairment under the
1996 Florida Workers’ Compensation Guidelines.
In a report dated November 14, 2007, an Office medical adviser reviewed the medical
record, including Dr. Lombardo’s report. He noted that the Florida guidelines noted by
Dr. Lombardo were not consistent with the Office’s standards. The Office medical adviser used
range of motion findings from the functional capacity evaluation and determined that appellant
had nine percent right upper extremity impairment pursuant to the American Medical
Association, Guides to the Evaluation of Permanent Impairment (fifth edition) (the A.M.A.,
Guides). He derived three percent impairment based on 140 degrees flexion pursuant to Figure
16-40 at page 476; one percent impairment based on 30 degrees extension pursuant to Figure 1640 at page 476; two percent impairment based on 128 degrees abduction pursuant to Figure 1643 at page 477; one percent impairment based on 21 degrees adduction pursuant to Figure 16-43
at page 477; two percent impairment based on 60 degrees loss of internal rotation pursuant to
Figure 16-46 at page 479; and zero percent impairment based on 77 degrees external rotation
pursuant to Figure 16-46 at page 479. The Office medical adviser added these figures for a total
nine percent right upper extremity impairment.
By decision dated December 4, 2007, the Office granted appellant a schedule award for a
nine percent permanent impairment of the right upper extremity for the period October 2, 2007 to
April 15, 2008, for a total of 28.08 weeks of compensation.

2

LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act1 and section 10.404 of
the implementing federal regulation,2 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for 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., Guides3 has been adopted by the Office, and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.4
The standards for evaluating the percentage of impairment of extremities under the
A.M.A., Guides are based primarily on loss of range of motion. In determining the extent of loss
of motion, the specific functional impairments, such as loss of flexion or extension, should be
itemized and stated in terms of percentage loss of use of the member in accordance with the
figures and tables found in the A.M.A., Guides. However, all factors that prevent a limb from
functioning normally should be considered, together with the loss of motion, in evaluating the
degree of permanent impairment.5 Chapter 16 of the fifth edition of the A.M.A., Guides
provides the framework for assessing upper extremity impairments.6
ANALYSIS
The Office medical adviser adopted Dr. Lombardo’s date of maximum medical
improvement of October 22, 2007 but discarded Dr. Lombardo’s report as the physician’s
impairment estimate did not conform to the A.M.A., Guides.7 It is well established that, when
the attending physician fails to provide an estimate of impairment conforming to the protocols of
the A.M.A., Guides, his opinion is of diminished probative value in establishing the degree of
any permanent impairment. In such cases, the Office may rely on the opinion of its medical
adviser to apply the A.M.A., Guides to the findings reported by the attending physician.8

1

5 U.S.C. § 8107.

2

20 C.F.R. § 10.404.

3

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

4

See Joseph Lawrence, Jr., 53 ECAB 331 (2002).

5

Robert V. Disalvatore, 54 ECAB 351 (2003).

6

A.M.A., Guides 433-521.

7

In his October 22, 2007 report, Dr. Lombardo determined that appellant had four percent whole person
impairment under the 1996 Florida Workers’ Compensation Guidelines. However, the A.M.A., Guides is the
standard for determining the percentage of impairment under the schedule award provision of the Act. See Mark A.
Holloway, 55 ECAB 321 (2004). Furthermore, the Act does not authorize schedule awards for permanent
impairment of the whole person. N.D., 59 ECAB ___ (Docket No. 07-1981, issued February 1, 2008).
8

See John L. McClenic, 48 ECAB 552 (1997); see also Paul R. Evans, 44 ECAB 646, 651 (1993).

3

The Office medical adviser determined that appellant had nine percent permanent
impairment of the right upper extremity by using the range of motion findings contained in the
October 1, 2007 functional capacity evaluation. The finding of nine percent impairment of the
right upper extremity was based on loss of range of motion findings pursuant to Figures 16-40,
16-43 and 16-46 at pages 476, 477 and 479, respectively. Figure 16-40 at page 476 measures
upper extremity motion impairments due to lack of flexion and extension of the shoulder. The
Office medical adviser found that appellant’s retained flexion of 140 degrees equaled three
percent impairment and appellant’s retained extension of 30 degrees equaled one percent
impairment pursuant to this figure.9 Figure 16-43 at page 477 measures upper extremity motion
impairment due to lack of abduction and adduction of the shoulder. Appellant’s retained
abduction of 128 degrees represents two percent impairment pursuant to this figure and his
retained adduction of 21 degrees produces one percent impairment. Figure 16-46 at page 479
measures upper extremity motion impairments due to lack of internal and external rotation of the
shoulder. Appellant’s retained external rotation of 77 degrees represents zero percent
impairment and his retained internal rotation of 60 degrees represents two percent impairment
pursuant to this figure. Therefore, he has a total of nine percent right upper extremity
impairment for loss of range of motion of the shoulder.
There is no other probative medical evidence establishing that appellant has greater
permanent impairment. While appellant asserts his pain and atrophy should be accounted for in
determining his schedule award, neither Dr. Lombardo’s examination nor the functional capacity
evaluation found pain or atrophy to be a limiting factor. Additionally, as noted above,
Chapter 16 of the A.M.A., Guides provides the proper framework for determining impairments
of the upper extremities. Dr. Lombardo did not explain how, pursuant to the A.M.A., Guides,
appellant had any greater impairment than that which the Office accepted.
CONCLUSION
The Board finds that appellant has no greater than nine percent right upper extremity
impairment for which he received a schedule award.

9

The Board notes that functional capacity evaluation reported flexion at 139.0 degrees and extension at 33.3
degrees, while the Office medical adviser stated that flexion was 140 degrees and extension was 30 degrees. The
misreporting by the Office medical adviser is harmless error; however, as the same impairment values are obtained.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 4, 2007 is affirmed.
Issued: October 16, 2008
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY, San Diego, CA,
Employer
__________________________________________

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

Docket No. 17-0966
Issued: August 4, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On April 3, 2017 appellant filed a timely appeal from a January 11, 2017 merit decision
of the Office of Workers’ Compensation Programs (OWCP) and a March 14, 2017 nonmerit
decision. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has established that he was totally disabled from
October 19 to 26, 2010 causally related to his accepted employment injury; and (2) whether
OWCP properly denied appellant’s request for a review of the written record under 5 U.S.C.
§ 8124 as untimely.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 14, 2010 appellant, then a 62-year-old grocery department manager, filed an
occupational disease claim (Form CA-2) alleging that he sustained stress, anxiety, and
depression due to harassment and a hostile work environment.
The employing establishment, in a memorandum dated October 25, 2010, issued
appellant a return to work order.2 It noted that he had been absent without leave (AWOL) after
October 19, 2010 when he refused to follow an order of a supervisor.3
Appellant stopped work on March 5, 2011 and retired on April 1, 2011.
By decision dated March 9, 2011, OWCP denied appellant’s emotional condition claim
as he had not sufficiently supported his allegation of harassment. It further noted that the
medical evidence submitted was insufficient to support causation.
Appellant requested an oral hearing before an OWCP hearing representative. A
telephone hearing was held on July 16, 2012. In a decision dated October 12, 2012, an OWCP
hearing representative vacated the March 9, 2011 decision. She reviewed a February 7, 2012
Merit Systems Protection Board (MSPB) decision finding that the employing establishment had
reduced appellant’s grade without due process in May 2010. The hearing representative found
that the MSPB decision demonstrated error or abuse by the employing establishment in reducing
his grade and thus constituted a compensable work factor. She remanded the case for OWCP to
prepare a statement of accepted facts and refer appellant for a second opinion examination to
determine whether he sustained a diagnosed condition causally related to the accepted work
factor.
Following further development, on August 11, 2014 OWCP accepted appellant’s claim
for recurrent major depression. It paid him wage-loss compensation for total disability beginning
April 1, 2011. Appellant remains on the periodic compensation rolls for total disability.
Appellant, on October 16, 2014, filed a claim for compensation (Form CA-7) requesting
compensation for intermittent wage loss from October 19 to 26, 2010. On the form the
employing establishment advised that he had used leave without pay intermittently from
October 19 to 26, 2014. In a time analysis form, the employing establishment indicated that
appellant worked two hours on October 19, 2010, three hours on October 21, 2010, and was
AWOL for the remaining hours.
On August 30, 2016 appellant again filed a claim for compensation for lost time from
October 19 to 26, 2010. By letter dated August 30, 2016, OWCP notified him that there was no
medical evidence establishing that he was disabled from work for 43 hours from October 19

2

In an October 13, 2010 statement, H.D., a coworker, related that on that date a manager ordered appellant into
his office, but he refused. The manager called security.
3

Appellant provided an October 26, 2010 response to the memorandum.

2

to 26, 2010.4 It further noted that there was no evidence that the employing establishment erred
in finding appellant AWOL during the claimed period. OWCP asked that he submit evidence
supporting error by the employing establishment in categorizing him as AWOL and medical
evidence supporting disability from employment.
Appellant submitted clinic notes regarding his treatment on October 19, 2010 for
complaints of “depression about [appellant’s] work.” A nurse practitioner noted that
management took his badge and escorted him from his office and that he wanted a work excuse
for one week due to stress. She diagnosed depression with anxiety and gave him a one week
work excuse. Appellant further provided a note from another nurse practitioner excusing him
from work from October 19 to 26, 2010.
By decision dated January 11, 2017, OWCP denied appellant’s claim for compensation
for intermittent disability from October 19 to 26, 2010. It found that he had not submitted
factual evidence showing that the employing establishment erred in determining that he was
AWOL from October 19 to 26, 2010. OWCP noted that the only compensable work factor was
that the employing establishment erred in demoting him in 2010.
In correspondence dated February 14, 2017 and postmarked February 15, 2017, appellant
requested a review of the written record. By decision dated March 14, 2017, OWCP denied his
request for a review of the written record under section 8124 as it was not made within 30 days.
It exercised its discretion and found that the matter could equally well be addressed through a
request for reconsideration with supporting evidence establishing entitlement to disability
compensation for the claimed period.
On appeal appellant contended that the employing establishment involuntarily removed
him from work on October 19, 2010.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including that any disability or specific condition for
which compensation is claimed is causally related to the employment injury.5 The term
disability is defined as the incapacity because of an employment injury to earn the wages the
employee was receiving at the time of the injury, i.e., a physical impairment resulting in loss of
wage-earning capacity.6
Whether a particular injury causes an employee to be disabled for employment and the
duration of that disability are medical issues which must be proved by a preponderance of the

4

OWCP indicated that the claimed date of disability was from October 19, 2010 to October 26, 2013 instead of
October 26, 2010.
5

Kathryn Haggerty, 45 ECAB 383 (1994); Elaine Pendleton, 40 ECAB 1143 (1989).

6

20 C.F.R. § 10.5(f); see e.g., Cheryl L. Decavitch, 50 ECAB 397 (1999) (finding that the claimant had an injury,
but no loss of wage-earning capacity).

3

reliable, probative, and substantial medical evidence.7 Findings on examination are generally
needed to support a physician’s opinion that an employee is disabled for work. When a
physician’s statements regarding an employee’s ability to work consist only of repetition of the
employee’s complaints that he hurt too much to work, without objective findings of disability
being shown, the physician has not presented a medical opinion on the issue of disability or a
basis for payment of compensation.8
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained recurrent major depression as a result of the
compensable work factor, that the MSPB found the employing establishment erred in reducing
his grade without due process in May 2010. It paid him compensation for total disability
commencing April 1, 2011.
Appellant filed a claim for wage-loss compensation for the period October 19
to 26, 2010. OWCP noted that the employing establishment considered him AWOL during the
claimed period. It denied appellant’s claim for disability compensation from October 19 to 26,
2010 as he failed to demonstrate error by the employing establishment in finding him AWOL.
The relevant issue, however, is whether appellant established disability from employment during
that period causally related to the accepted compensable employment factor.
The Board finds that the medical evidence of record is insufficient to support that
appellant was disabled from October 19 to 26, 2010 due to the accepted employment injury.
Appellant submitted evidence addressing his ability to work during this period from nurse
practitioners. A nurse or nurse practitioner, however, is not considered a “physician” under
FECA and thus cannot render a medical opinion.9 Thus, this evidence is of no probative value in
establishing appellant’s claim.10 Appellant, consequently, has offered insufficient medical
evidence to establish his claim for disability compensation from October 19 to 26, 2010.
On appeal appellant contended that the employing establishment involuntarily removed
him from work on October 19, 2010. The Board’s jurisdiction, however, is limited to reviewing
final decisions of OWCP issued under FECA.11
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.
7

See Fereidoon Kharabi, 52 ECAB 291 (2001).

8

Id.

9

5 U.S.C. § 8101(2) (defining physicians as surgeons, podiatrists, dentists, clinical psychologists, optometrists,
chiropractors, and osteopathic physicians within the scope of their practice as defined by State law); see also R.E.,
Docket No. 16-1568 (issued February 9, 2017) (nurse practitioners are not considered physicians as defined by
FECA).
10

See A.B., Docket No. 17-0301 (issued May 19, 2017).

11

20 C.F.R. § 501.2(c).

4

LEGAL PRECEDENT -- ISSUE 2
Section 8124(b) of FECA provides that a claimant for compensation not satisfied with a
decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his or her claim before a representative of the Secretary.12
Section 10.615 of the federal regulations implementing this section of FECA provides that a
claimant shall be afforded a choice of an oral hearing or a review of the written record.13 The
request must be sent within 30 days (as determined by postmark or other carrier’s date marking)
of the date of the decision for which a hearing is sought.14 A claimant is entitled to a hearing or
review of the written record as a matter of right if the request is filed within 30 days.15
While a claimant may not be entitled to a hearing or review of the written record as a
matter of right if the request is untimely, OWCP has the discretionary authority to grant the
request and must properly exercise such discretion.16
ANALYSIS -- ISSUE 2
By decision dated January 11, 2017, OWCP denied appellant’s claim for disability
compensation from October 19 to 26, 2010. Appellant sought a review of the written record by
letter dated February 14, 2017 and postmarked February 15, 2017. OWCP, in a decision dated
March 14, 2017, denied his request for a review of the written record as untimely. As appellant’s
request for a hearing was postmarked February 15, 2017, more than 30 days after OWCP issued
its January 11, 2017 decision, he was not entitled to a hearing as a matter of right.17
OWCP has the discretionary power to grant a hearing or review of the written record
when a claimant is not entitled to a hearing or review as a matter or right.18 It properly exercised
its discretion by noting that it had considered the matter in relation to the issue involved and
denied appellant’s request for an oral hearing as the case could be resolved by submitting
additional evidence in a reconsideration request. The Board has held that the only limitation on
OWCP’s discretionary authority is reasonableness. An abuse of discretion is generally shown
through proof of manifest error, clearly unreasonable exercise of judgment, or actions taken
which are contrary to both logic and probable deduction from established facts.19 There is no
evidence that OWCP committed any action in connection with its denial of appellant’s request
12

5 U.S.C. § 8124(b)(1).

13

20 C.F.R. § 10.615.

14

Id. at § 10.616(a).

15

See Leona B. Jacobs, 55 ECAB 753 (2004).

16

20 C.F.R. § 10.616(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the
Written Record, Chapter 2.1601.2(a) (October 2011).
17

See supra note 15.

18

Afegalai L. Boone, 53 ECAB 533 (2002).

19

See R.C., Docket No. 17-0280 (issued May 5, 2017).

5

for a review of the written record that constituted an abuse of discretion.20 Accordingly, the
Board finds that OWCP properly denied his request for a review of the written record as
untimely.
CONCLUSION
The Board finds that appellant has not established that he was disabled from October 19
to 26, 2010 causally related to his accepted employment injury. The Board further finds that
OWCP properly denied his request for a review of the written record under section 8124 as
untimely.
ORDER
IT IS HEREBY ORDERED THAT the March 14 and January 11, 2017 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: August 4, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

20

See B.H., Docket No. 16-1553 (issued March 27, 2017).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

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

Docket No. 08-1168
Issued: May 21, 2009

Case Submitted on the Record

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

JURISDICTION
On March 12, 2008 appellant filed a timely appeal from a February 29, 2008 merit
decision of the Office of Workers’ Compensation Programs finding that she received an
overpayment of compensation and denying waiver. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly found that appellant received an
overpayment of $6,285.36 because she received payment for a schedule award for which she was
previously compensated; (2) whether the Office properly denied waiver of the overpayment; and
(3) whether the Office abused its discretion in setting the rate of recovery from continuing
compensation at $100.00 a month.
FACTUAL HISTORY
On December 14, 1998 appellant, then a 49-year-old flat sorter operator, filed an
occupational disease claim alleging that she developed carpal tunnel syndrome (CTS) due to

repetitive employment activities. The Office accepted her claim for right CTS, right CTS
release, right ruptured rotator cuff, right reflex symptom dystrophy (upper limb) and bilateral
radial styloid tenosynovitis. On December 9, 1999 it granted appellant a schedule award for an
eight percent permanent impairment of her right upper extremity.
The record reflects that appellant’s December 1, 1999 claim for left wrist injury was
accepted for de Quervain’s tenosynovitis of the left wrist. Her January 22, 2006 claim for left
upper extremity injuries was accepted for left CTS and left rotator cuff tear.1
On July 19, 2001 appellant was granted a schedule award in File No. xxxxxx736 for a
three percent permanent impairment of her left upper extremity. The period of the award was
from April 12 to June 16, 2001. On March 23, 2003 appellant received a schedule award for an
additional five percent impairment of her right upper extremity.
On October 5, 2005 the Office granted appellant a schedule award for a 10 percent
impairment of her left upper extremity and for a 28 percent impairment of her right upper
extremity. In a May 17, 2006 decision affirming the October 5, 2005 schedule award decision,
an Office hearing representative explained that the medical evidence of record established that
appellant had a 10 percent permanent impairment of the left upper extremity and a 41 percent
impairment of the right upper extremity. Accordingly, appellant was granted a schedule award
for a 10 percent left upper extremity impairment and for an additional 28 percent right upper
extremity impairment (41 percent less the 13 percent previously paid).
On November 29, 2007 the Office notified appellant of its preliminary determination that
she received an overpayment of compensation in the amount of $6,285.36 due to the Office’s
failure to take into account her receipt of a previous schedule award for a three percent
impairment of her left upper extremity. It found that she received payment for a schedule award
for a 10 percent impairment of her left upper extremity, but that she should have received an
award for only an additional 7 percent impairment. The Office determined that appellant
received $20,754.36 in schedule award payments for a 10 percent impairment to her left upper
extremity (218.4 days for the period August 20, 2005 through March 26, 2006). It calculated the
amount to which she was entitled for a 7 percent impairment (152.88 days payable for the period
August 20, 2005 through January 19, 2006) to be $14,469.00 and then subtracted the amount to
which she was entitled ($14,469.00) from the amount actually received ($20,754.36), to find an
overpayment of $6,285.36. The Office further advised appellant of its preliminary determination
that she was not at fault in the creation of the overpayment and of her right to request a telephone
conference, a final decision based on the written evidence or a prerecoupment hearing, if she
objected to the decision or requested waiver of the overpayment. Appellant was advised to
complete the enclosed overpayment recovery questionnaire and to submit supporting financial
documents.
Appellant submitted an overpayment action request form, dated December 5, 2007,
requesting a telephone conference. In a January 29, 2008 note of a telephone call, Terry Arient,
1

On February 28, 2008 File No. xxxxxx518 was combined with File No. xxxxxx210, which became the master
file. The record reflects that, at the time this appeal was filed, appellant was receiving compensation and medical
benefits under File No. xxxxxx210.

2

of the Office, stated that she had informed appellant that the Office had received neither an
overpayment recovery questionnaire nor supporting documents and that her requested telephone
conference would be delayed pending receipt of those documents. A February 5, 2008
memorandum of a telephone call between appellant and M. Maloney of the Office, reflects her
representation that her sole source of income was her $2,900.00 monthly compensation.
Appellant submitted an overpayment recovery questionnaire dated February 4, 2008
reflecting monthly income in the amount of $2,900.00 and available funds in the amount of
$300.00. On a separate sheet, she listed monthly expenses totaling $3,112.00 as follows: Nicor
gas -- $200.00; water -- $53.00; garbage -- $50.00; mortgage -- $1,719.00; car note -- $440.00;
telephone -- $125.00; lights -- $100.00; car gas -- $150.00; food -- $150.00; Direct TV -$125.00. Appellant stated that she was not aware of an overpayment or how it was calculated.
Appellant submitted supporting financial documents, including a February 3, 2008
mortgage statement from Beneficial Mortgage, reflecting a monthly payment in the amount of
$1,719.32; a 2007 tax return for herself and her husband, dated February 4, 2008, reflecting joint
annual gross income of $39,826.00; an HSBC loan agreement reflecting monthly income of
$2,950.00; and a February 12, 2008 checking account statement from LaSalle Bank, reflecting a
negative balance.
By decision dated February 29, 2008, the Office finalized its determination that appellant
received an overpayment of compensation in the amount of $6,285.36 due to her receipt of
schedule award payments to which she was not entitled. It stated that, although appellant was
found not to be at fault in creating the overpayment, she was not entitled to a waiver of recovery
of the overpayment. The Office acknowledged that appellant had submitted a bank statement,
mortgage statement, tax forms and a statement of monthly expenses, but stated that she “did not
provide any supporting documentation to support [her itemized] expenses.” It found that
appellant had not provided information to support a finding that the recovery would defeat the
purpose of the Federal Employees’ Compensation Act or be against equity and good conscience.
The Office determined that the amount of $100.00 per month would be deducted from her
continuing compensation.
LEGAL PRECEDENT -- ISSUE 1
Section 8108 of the Act2 provides for the reduction of compensation for subsequent
injury to the same member as follows:
“The period of compensation payable under the schedule in section 8107(c) of
this title is reduced by the period of compensation paid or payable under the
schedule for an earlier injury if -(1) compensation in both cases is for disability of the same member or
function or different parts of the same member or function or for
disfigurement; and

2

5 U.S.C. §§ 8101-8193.

3

(2) the Secretary of Labor finds that compensation payable for the later
disability in whole or in part would duplicate the compensation payable
for the preexisting disability.”3
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $6,285.36. Therefore, the Office’s February 29, 2008 decision shall be affirmed as to fact and
amount of overpayment.
Appellant initially received a schedule award for a three percent permanent impairment
of the left upper extremity on July 19, 2001. On October 5, 2005 the Office granted her a
schedule award for a 10 percent permanent impairment of her left upper extremity, based on its
finding that the medical evidence established that she had a 10 percent total left upper extremity
impairment. On May 17, 2006 an Office hearing representative affirmed the October 5, 2005
schedule award. However, the Office did not take into consideration appellant’s previous
schedule award.4 The 10 percent impairment rating should have been reduced by 3 percent, the
amount of the July 19, 2001 schedule award, resulting in a schedule award for a 7 percent left
upper extremity impairment.5
The record reflects that appellant received $20,754.36 in schedule award compensation
for the period August 20, 2005 through March 26, 2006, but was entitled to receive only
$14,469.00 for the additional seven percent impairment. She thus received an overpayment of
compensation in the amount of $6,285.36.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of the Act provides that an overpayment must be recovered unless incorrect
payment has been made to an individual who is without fault and when adjustment or recovery
would defeat the purpose of the Act or would be against equity and good conscience.6 Thus, a
finding that appellant was without fault does not automatically result in waiver of the
overpayment. The Office must then exercise its discretion to determine whether recovery of the
overpayment would defeat the purpose of the Act or would be against equity and good
conscience.7

3

5 U.S.C. § 8108.

4

The Board notes that the Office properly reduced appellant’s schedule award for the right upper extremity by the
amount of previous awards. Finding that appellant had a 41 percent impairment, the Office granted an additional
schedule award for a 28 percent impairment (41 percent minus 13 percent, the total of previous schedule awards for
right upper extremity impairment).
5

See supra note 3.

6

5 U.S.C. § 8129.

7

20 C.F.R. § 10.434.

4

Section 10.436 of the implementing federal regulations provide that recovery of an
overpayment will defeat the purpose of the Act if recovery would cause undue hardship by
depriving a presently or formerly entitled beneficiary of income and resources needed for
ordinary and necessary living expenses and outlines the specific financial circumstances under
which recovery may be considered to defeat the purpose of the Act.8
Section 10.437 provides that recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship attempting to repay the debt; and when an individual, in reliance on
such payments or on notice that such payments would be made, gives up a valuable right or
changes his or her position for the worse.9
5 U.S.C. § 8124(a) provides that the Office shall determine and make a finding of facts
and make an award for or against payment of compensation.10 The Office’s regulations provide
that an Office decision shall contain findings of fact and a statement of reasons.11 Its decision
should contain a discussion of the issues, requirements for entitlement, a background framework
so that the reader can understand the issues at hand, a discussion of the relevant evidence, a basis
for the decision and a conclusion.12 Office procedures further specify that a final decision must
provide clear reasoning which allows the claimant to understand the precise defect of the claim
and the kind of evidence which would overcome it.13 Thus, a final decision must include
findings of fact and a description of the basis for the findings so that the parties of interest will
have a clear understanding of the reasoning behind the decision.14
ANALYSIS -- ISSUE 2
The Board finds that the Office’s February 29, 2008 decision lacks sufficient reasoning to
explain the basis for its denial of appellant’s request for waiver. Therefore, the case must be
remanded to the Office for an appropriate decision and further development as deemed necessary
by the Office.
The Office made a preliminary determination that appellant was without fault in creating
the overpayment. Appellant submitted detailed information regarding her income and expenses,
as well as financial documents supporting her request for waiver. The Office held a telephone
conference on February 5, 2008 and obtained additional financial information. However, in its
February 29, 2008 decision finalizing the overpayment of compensation and denying waiver, the
8

Id. at § 10.436.

9

Id. at § 10.437.

10

5 U.S.C. § 8124.

11

20 C.F.R. § 10.126.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.4 (March 1997).

13

Id.

14

Paul M. Colosi, 56 ECAB 294 (2005).

5

Office concluded, without explanation, that the information provided by appellant was not
sufficient to establish waiver.
Although the Office acknowledged that appellant had submitted a bank statement,
mortgage statement, tax forms and a statement of monthly expenses, it stated inaccurately that
she “did not provide any supporting documentation to support [her itemized] expenses.”
Without discussing appellant’s income and expenses, including her representation that her
expenses exceeded her income or any of the evidence submitted in support of her request for
waiver, the Office found that she had not provided information to support a finding that the
recovery would defeat the purpose of the Act or be against equity and good conscience. The
Office is required to make findings of fact and a statement of reasons regarding the material facts
of the case15 and to provide clear reasoning which allows the claimant to understand the precise
defect of the claim and the kind of evidence which would overcome it.16 Its finding in its
February 29, 2008 decision is not sufficiently detailed so that appellant or the Board can
understand the reasoning behind the denial of her request for waiver.17 The case is, therefore,
remanded to the Office for an appropriate determination with adequate findings and reasoning
regarding whether appellant has established entitlement to waiver of the overpayment.18
CONCLUSION
The Board finds that appellant received an overpayment of $6,285.36 because she
received schedule award compensation which duplicated compensation previously received. The
Board further finds that the case is not in posture for decision regarding whether the Office
properly denied waiver of the overpayment.

15

See supra note 11; Beverly Dukes, 46 ECAB 1014 (1995).

16

Id.

17

See Paul M. Colosi, supra note 14.

18

In light of the Board’s ruling on the second issue, the third issue is moot.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 29, 2008 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: May 21, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Denton, TX, Employer
__________________________________________

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

Docket No. 07-596
Issued: June 8, 2007

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 December 27, 2006 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ March 13 and August 25, 2006 merit decisions denying his claim for a
traumatic injury and the November 16, 2006 nonmerit decision denying his request for
reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has jurisdiction
over the merits of this claim.
ISSUES
The issues are: (1) whether appellant has established that his September 17, 2005 injury
was an incident of, and arose out of, his employment; and (2) whether the Office properly
refused to reopen appellant’s case for further review of the merits of his claim pursuant to
5 U.S.C. § 8128(a).
FACTUAL HISTORY
On September 19, 2005 appellant, a 50-year-old letter carrier, filed a claim for a left
ankle sprain sustained on September 17, 2005, when he stepped down from a high sidewalk onto

the edge of a round cement stepping stone and twisted his ankle. He stated that the injury
occurred between 5:30 p.m. and 6:00 p.m., immediately following his tour of duty. The injury
occurred at the “northwest corner of the outside of the building.” Noting that appellant’s regular
work hours were from 7:30 a.m. until 4:00 p.m., the employing establishment controverted
appellant’s claim, stating that the injury occurred off the clock, while he was crossing a public
street on his way to the official employee parking lot, which was leased by the employing
establishment.
By letter dated September 30, 2005, the Office informed appellant that the information
submitted was insufficient to establish his claim. The Office provided appellant 30 days to
submit medical evidence supporting his claim, and a response to the employing establishment’s
contention that appellant was “off the clock.”
Appellant submitted duty status reports for the period September 19 through October 3,
2005 from Dr. Andrew Blankenau, a treating physician. The record contains follow-up
physicians’ notes from Minor Emergency of Denton for the period September 21 through
October 24, 2005; September 19, 2005 reports of x-rays of appellant’s left foot and ankle; an
October 11, 2005 report of a magnetic resonance imaging (MRI) scan of the left ankle; a Texas
workers’ compensation status report dated November 7, 2005; and a September 26, 2005
prescription for physical therapy.
The employing establishment submitted an accident report dated September 21, 2005,
reflecting that, at approximately 6:00 p.m., on September 17, 2005, appellant was “off the clock”
and walking towards his vehicle, when he stepped down off the sidewalk onto the edge of a
stepping stone and twisted his ankle. The report further states that appellant was on overtime
status. A handwritten note on the face of the report indicates that “the accident occurred on a
public street – not on postal premises.”
By decision dated November 22, 2005, the Office denied appellant’s claim. Stating that
the injury had occurred on a public sidewalk approximately one and a half hours after his tour of
duty ended, the Office found that appellant had failed to establish that he had sustained an injury
in the performance of duty.
On December 5, 2005 appellant requested reconsideration. He submitted a map of the
area in which the September 17, 2005 incident occurred. Notations on the map indicated that the
site of injury was between the employing establishment building and the employee parking lot.
Appellant stated that the accident occurred in the flowerbed behind the truck on the northwest
corner of the employing establishment. He contended that employees have to walk across the
street to reach the parking lot leased by the employing establishment. Appellant also submitted a
copy of provisions and procedures regarding coverage for claims, issued by the National
Association of Letter Carriers, as well as a September 17, 2005 time sheet.
On March 13, 2006 the Office denied modification of its previous decision. The Office
found that the incident did not occur on the property of the employing establishment, and that
appellant had failed to explain the fact that the injury occurred one and a half hours after his
regular tour of duty ended.

2

On April 6, 2006 appellant again requested reconsideration. He stated that he was
submitting a copy of Form 3996, which showed that he was on authorized overtime on
September 17, 2005. No such form was included in the record. By decision dated May 25,
2006, the Office denied appellant’s request for reconsideration, finding the evidence submitted
insufficient to warrant merit review.
On June 7, 2006 appellant requested reconsideration. He submitted Form 3996 dated
September 17, 2005, reflecting the authorization for two hours of overtime on the date of the
employment incident. By letter dated July 18, 2006, the Office asked the employing
establishment to explain whether appellant was on authorized overtime on the date in question.
The Office also inquired as to whether the flowerbed identified by appellant as the location of the
accident, was on the employing establishment’s premises and, if so, who maintained the
flowerbed.
In a July 27, 2006 memorandum to the Office, the employing establishment stated that
appellant’s tour ended at 5:49 p.m. on September 17, 2005. The employing establishment also
indicated that, although the flowerbed was on the premises, appellant did not fall in the
flowerbed, but rather in the public street, off the clock, on his way to his vehicle.
By decision dated August 25, 2006, the Office modified its March 13, 2006 decision to
reflect that appellant worked overtime from 4:00 p.m. to 5:30 p.m. on September 17, 2005.
However, the Office denied the claim, finding that the evidence failed to establish that he had
sustained an injury in the performance of duty.
On October 25, 2006 appellant again requested reconsideration. He provided copies of
September 19, 2005 reports of x-rays of the left foot and ankle, which had previously been
reviewed by the Office. On November 16, 2006 the Office denied appellant’s request for
reconsideration, finding that the evidence submitted was insufficient to warrant merit review.
LEGAL PRECEDENT -- ISSUE 1
The Federal Employees’ Compensation Act1 provides for the payment of compensation
for the disability or death of an employee resulting from personal injury sustained while in the
performance of duty.2 The phrase “sustained while in the performance of duty” in the Act is
regarded as the equivalent of the commonly found requisite in workers’ compensation law of
“arising out of and in the course of employment.”3 The Board has recognized as a general rule
that off-premises injuries sustained by employees having fixed hours and place of work, while
going to or coming from work, are not compensable as they do not arise out of and in the course

1

5 U.S.C. §§ 8101-8193.

2

5 U.S.C. § 8102(a).

3

Valerie C. Boward, 50 ECAB 126 (1998).

3

of employment. Rather, such injuries are merely the ordinary, nonemployment hazards of the
journey itself, which are shared by all travelers.4
The premises of the employer, as the term is used in workers’ compensation law, are not
necessarily coterminous with the property owned by the employer; they may be broader or
narrower and are dependent more on the relationship of the property to the employment than on
the status or extent of the legal title. The term “premises” as it is generally used in workers’
compensation law is not synonymous with property. The former does not depend on ownership,
nor is it necessarily coextensive with the latter. In some cases “premises” may include all the
property owned by the employer; in other cases, even though the employer does not have
ownership and control of the place where the injury occurred, the place is nevertheless
considered part of the premises.5
Underlying the proximity exception to the premises rule is the principle that course of
employment should extend to an injury that occurred at a point where the employee was within
the range of dangers associated with the employment.6 The most common ground of extension is
that the off-premises point at which the injury occurred lies on the only route or at least on the
normal route, which employees must traverse to reach the plant, and that the special hazards of
that route become the hazards of the employment.7 Another such extension of the premises rule
occurs when an employee must travel a public thoroughfare to traverse between two premises of
the employer. As noted by A. Larson, in his work, The Law of Workers’ Compensation
§ 13.04[4][a] compensation is generally awarded when an injury occurs as an employee travels
along or across a public road between two portions of the employer’s premises, whether coming
and going, or pursuing active duties. Section 13.04[4][b] states “[M]ost courts … hold that an
injury in a public street or other off-premises place between the plant and parking lot is in the
course of employment, being on a necessary route between the two portions of the premises.”
ANALYSIS -- ISSUE 1
Appellant’s injury did not occur on the employing establishment’s premises, but rather on
the public sidewalk adjacent to the employing establishment.8 There is no evidence of record
indicating that the employing establishment owned or was responsible for the maintenance of the
sidewalk or adjacent street. At the time of his injury, appellant had fixed hours and place of
work, and was traveling from the employing establishment to the employee parking lot. Barring

4

See P.S., 57 ECAB ___ (Docket No. 06-114, February 8, 2006); Gabe Brooks, 51 ECAB 184 (1999).

5

See Denise A. Curry, 51 ECAB 158 (1999).

6

See Linda D. Williams, 52 ECAB 300 (2001); Michael K. Gallagher, 48 ECAB 610 (1997).

7

Id.

8

The Board notes that the evidence of record does not support appellant’s claim that he fell in a flowerbed owned
by the employing establishment.

4

an exception to the general rule, the injury was an ordinary, nonemployment hazard of the
journey to work itself which is shared by all travelers.9
The Board now must evaluate whether the employment premises should be
constructively expanded to include the sidewalk on which appellant’s injury occurred. There is
no dispute that the official employee parking lot, towards which appellant was walking when the
injury occurred, was leased by the employing establishment for the benefit of the employees.
The Board has held that a parking lot for the use of its employees may be considered part of the
employment premises, where it has been established that the employer owned, maintained or
controlled the parking facility, or provided the parking for its employees.10 The Board finds that
the employee lot in the instant case falls within the employing establishment’s premises. The
issue, then, becomes whether the path between the two separate portions of the employer’s
premises should also be considered part of the premises.
Appellant alleged that employees had to walk across the area where the accident occurred
in order to reach the parking lot leased by the employing establishment. The map submitted by
appellant supports his contention. The employing establishment did not provide any argument or
evidence to contradict appellant’s claim that he was required to travel over the location of the
injury in order to reach the employee parking lot from the building in which he worked. The
Board finds that appellant’s injury, which occurred on a necessary route between two portions of
the employing establishment’s premises, albeit on a public sidewalk, arose in the course of his
employment. This case must be set aside and remanded to the Office for consideration of such
compensation or other benefits as he may show he is entitled to receive. After such further
development as may be necessary, the Office shall issue an appropriate final decision on
appellant’s entitlement to compensation benefits.11
CONCLUSION
The Board finds that appellant has established that his September 17, 2005 injury was an
incident of, and arose out of, his employment.

9

Denise A. Curry, supra note 5; Jacqueline Nunnally-Dunford, 36 ECAB 217 (1984).

10

Gladys W. Hansen, 8 ECAB 603 (1956).

11

In light of the Board’s ruling on the first issue, the second issue is moot.

5

ORDER
IT IS HEREBY ORDERED THAT the August 25 and March 13, 2006 decisions of the
Office of Workers’ Compensation Programs are set aside and remanded for action consistent
with this decision.
Issued: June 8, 2007
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.T., Appellant
and
U.S. POSTAL SERVICE, NEW YORK
PRIORITY MAIL PROCESSING CENTER,
Bethpage, NY, Employer
__________________________________________

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Appearances:
Thomas S. Harkins, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1336
Issued: February 7, 2012

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 10, 2011 appellant, through his attorney, filed a timely appeal of a December 7,
2010 Office of Workers’ Compensation Programs’ (OWCP) merit decision granting a schedule
award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c)(1) and 501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than 14 percent impairment of his right arm for
which he received a schedule award.
On appeal counsel argued that the medical evidence represented by Dr. Jonathan B.
Ticker, a Board-certified orthopedic surgeon, established that appellant had 24 percent
impairment of his right upper extremity.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 21, 2002 appellant, then a 56-year-old equipment operator, filed a traumatic
injury claim alleging that on August 20, 2002 he injured his right shoulder while pulling a brake.
X-rays demonstrated degenerative changes of the glenohumeral joint. OWCP accepted
appellant’s claim for right shoulder sprain on September 11, 2002.
A magnetic resonance imaging (MRI) scan on October 24, 2002 demonstrated fullthickness tear of the rotator cuff near the insertion of the supraspinatus tendon as well as
acromioclavicular (AC) joint changes and a subchondral injury to the humeral head. In a report
dated December 3, 2002, Dr. Ticker diagnosed right impingement syndrome with glenohumeral
degenerative arthritis and a lipoma of his shoulder. Appellant underwent a bone scan on
March 29, 2003 which demonstrated osteoarthritic changes in the right shoulder girdle involving
the humeral head and AC joint. On January 13, 2005 Dr. Ticker also diagnosed borderline
carpal tunnel syndrome. Appellant underwent computerized tomography (CT) scan on
March 21, 2006 which demonstrated extensive osteoarthritic degeneration of the glenohumeral
and AC joints. OWCP authorized surgery on March 6, 2006. Dr. Ticker performed a right
proximal humerus hemiarthroplasty, biceps tenodesis and distal clavicle excision on
July 27, 2006. He found right glenohumeral osteoarthritis, AC joint osteoarthritis and biceps
tendinitis with degeneration.
OWCP accepted appellant’s claim for recurrence of disability beginning on July 26, 2006
on September 5, 2006.
Dr. Ticker found that appellant had reached maximum medical improvement on
September 28, 2007. He completed a report on October 31, 2008 and listed appellant’s range of
motion as 140 degrees of forward flexion, 30 degrees of external rotation and internal rotation to
L3, as well as abduction of 70 degrees, 45 degrees of external rotation and 30 degrees of internal
rotation with 30 degrees of adduction and extension. Dr. Ticker stated that appellant had
diminished strength on the right of 4+/5. He stated that x-rays revealed that the implant was in
good position. Dr. Ticker applied the fifth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment,2 and found three percent impairment due to lack of
flexion, five percent impairment of loss of abduction, one percent impairment each for extension,
adduction and external rotation as well as four percent impairment of loss of internal rotation. In
addition to impairment ratings for loss of range of motion, he found that appellant had 24 percent
impairment due to the total shoulder implant including that distal clavicle excision and biceps
surgery. Dr. Ticker concluded that appellant had 39 percent impairment of his right upper
extremity.
Appellant requested a schedule award on June 8, 2010. OWCP requested additional
information on June 23, 2010. In a progress note dated July 16, 2010, Dr. Ticker stated that
appellant had 120 degrees of forward flexion and 30 degrees of external rotation. He found 5-/5
strength. Dr. Ticker reviewed x-rays and found the implant in good position with minimal
lucency around the stem. He stated that he reviewed the sixth edition of the A.M.A., Guides3
2

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

3

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

2

and found no change in the impairment rating of 24 percent. In a letter dated August 9, 2010,
OWCP requested a supplemental report from Dr. Ticker providing citations to the appropriate
tables and pages of the A.M.A., Guides. It allotted him 21 days to reply. Dr. Ticker did not
respond.
OWCP referred appellant for a second opinion evaluation with Dr. P. Leo Varriagle, a
Board-certified orthopedic surgeon. In a report dated October 20, 2010, Dr. Varriagle reviewed
the statement of accepted facts and provided range of motion findings including 30 degrees of
both external and internal rotation, as well as 150 degrees of abduction. He found mild weakness
of internal and external rotation and good strength of the biceps and triceps. Dr. Varriagle
opined that appellant had reached maximum medical improvement in July 2007. He rated
appellant’s impairment as a shoulder arthroplasty4 and found that he could also utilize the range
of motion provisions to reach an impairment rating of 50 percent.5 Dr. Varriagle completed an
addendum on November 3, 2010 and provided additional range of motion figures including
flexion of 150 degrees, extension of 40 degrees, external and internal rotation of 30 degrees. He
noted mild weakness of internal and external rotation with no tenderness. Dr. Varriagle stated
that based on range of motion appellant had three percent impairment due to loss of flexion and
abduction, four percent impairment as a result of loss of internal rotation, one percent
impairment each due to loss of the extension and adduction and two percent impairment due to
loss of external rotation. He concluded that appellant had 14 percent impairment under the sixth
edition of the A.M.A., Guides due to loss of range of motion.6 Dr. Varriagle stated that
appellant’s functional history adjustment was grade 2 and his range of motion was grade 2
resulting in a percentage of loss of 14 percent of the right arm.
On November 22, 2010 OWCP’s medical adviser, Dr. Henry J. Magliato, a Boardcertified orthopedic surgeon, reviewed Dr. Varriagle’s report. He found that Dr. Ticker did not
provide any citations to the appropriate edition of the A.M.A., Guides to support that appellant
had 14 percent impairment of the right arm due to loss of range of motion.
By decision dated December 7, 2010, OWCP granted appellant a schedule award for 14
percent impairment of his right upper extremity.
LEGAL PRECEDENT
The schedule award provision of FECA7 and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
4

Id. at 405, Table 15.5.

5

Id. at 406, Table 15.7.

6

Id. at 475, Table 15-34.

7

5 U.S.C. §§ 8101-8193, 8107.

8

20 C.F.R. § 10.404.

3

used in making such determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.9
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10
The A.M.A., Guides also provide that, if motion loss if present, some impairments may
alternatively be assessed11 using section 15.7, range of motion impairment.12
ANALYSIS
OWCP accepted appellant’s claim for right shoulder sprain. On July 27, 2006 appellant’s
physician, Dr. Ticker, performed an authorized right proximal humerus hemiarthroplasty, biceps
tenodesis and distal clavicle excision.13 The sixth edition of the A.M.A., Guides provides two
methods to evaluate appellant’s permanent impairment of the right upper extremity, the preferred
method through the diagnosis-based estimates.14 Under this method, Drs. Ticker and Varriagle
found that appellant had at least 24 percent impairment of the right upper extremity due to
shoulder arthroplasty.15 While neither physician provided a detailed explanation of how the
respective impairment ratings of 24 and 50 percent were reached, the record contains evidence
that appellant has more than 14 percent impairment.
Dr. Magliato negated the diagnosis-based impairment rating by Dr. Ticker on the grounds
that he did not provide citations to the A.M.A., Guides to support his conclusion. He did not
mention that Dr. Ticker relied on the default value for a shoulder arthroplasty of 24 percent in
reaching his impairment rating. Dr. Magliato also failed to discuss or consider the diagnosedbased impairment rating received from Dr. Varriagle of 50 percent when evaluating appellant’s
9

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
10

A.M.A., Guides 411.

11

Id. at 405.

12

Id. at 461.

13

Consistent with OWCP procedures, any impairment resulting from an authorized surgery, even if the
underlying condition is not an accepted condition, may for the basis of a compensation claim. D.B., 58 ECAB
354 (2007). Furthermore, the Board has long held that preexisting impairments to the scheduled member are to be
included when determining entitlement to a schedule award. Carol A Smart, 57 ECAB 340 (2006).
14

A.M.A., Guides 461.

15

Id. at 405, Table 15-5.

4

permanent impairment for schedule award purposes. He concluded that Dr. Varriagle, the
OWCP second opinion physician, had established an impairment rating of 14 percent based on
loss of range of motion without attempting to ascertain how Dr. Varriagle reached the much
higher impairment rating of 50 percent. The Board finds that this case requires additional
development of the medical evidence. Proceedings before OWCP are not adversarial in nature
and OWCP is not a disinterested arbiter; in a case where OWCP “proceeds to develop the
evidence and to procure medical evidence, it must do so in a fair and impartial manner.”16 On
remand, OWCP should request a supplemental report from Dr. Varriagle comporting with the
A.M.A., Guides and explaining how he reached the diagnosis-based estimate of 50 percent
impairment. OWCP should also determine if and why Dr. Varriagle believes that range of
motion assessment is most appropriate in this case. After this and such other development as
OWCP deems necessary, OWCP should issue a de novo decision with regard to appellant’s
schedule award claim.
CONCLUSION
The Board finds this case is not in posture for decision due to deficiencies in the medical
evidence.

16

Walter A. Fundinger, Jr., 37 ECAB 200, 204 (1985).

5

ORDER
IT IS HEREBY ORDERED THAT the December 7, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: February 7, 2012
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

6