United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cincinnati, OH, Employer
__________________________________________

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

Docket No. 12-1492
Issued: January 28, 2013

Case Submitted on the Record

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

JURISDICTION
On July 3, 2012 appellant, through his attorney, filed a timely appeal from an April 2,
2012 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly found that an overpayment of $29,882.70
was created; and (2) whether it properly found that appellant was at fault in creating the
overpayment and not entitled to waiver.
FACTUAL HISTORY
On May 15, 2008 appellant, then a 55-year-old mail handler, submitted a traumatic injury
claim (Form CA-1) alleging that on May 11, 2008 he sustained a right leg injury when he fell
1

5 U.S.C. § 8101 et seq.

while pushing an all-purpose container. OWCP accepted the claim for closed fracture of the
right tibia and fibula. By decision dated February 25, 2009, it determined that appellant was not
entitled to a schedule award for his injuries.
In a report dated March 27, 2009, Dr. Martin Fritzhand, a Board-certified urologist,
provided a history and results on examination. He noted that appellant had retired from the
employing establishment but was currently working. Dr. Fritzhand opined that appellant had a
30 percent permanent impairment to the right leg. By report dated July 15, 2009, an OWCP
medical adviser concurred that appellant had a 30 percent right leg impairment.
By decision dated August 20, 2009, OWCP issued a schedule award for a 30 percent
permanent impairment to the right leg. The decision stated the period of the award was 86.40
weeks, from December 1, 2008 to July 28, 2010. The compensation rate was reported as
75 percent of weekly pay rate. OWCP advised appellant that, after the ending date of the award,
entitlement to ongoing compensation would be based solely on disability for work. It indicated
that he could claim continuing compensation by submitting evidence showing the accepted
injury caused disability for work. In addition, appellant was advised that if he was being paid at
the augmented compensation rate (75 percent) because he had one or more dependents, he must
notify OWCP in writing of any change in the status of dependents. The notice must include the
effective date of the change and if there was a change in the status of a sole dependent, he should
return any payments received after the change in status to OWCP.
The record contains a memorandum of telephone call (Form CA-110) dated
January 14, 2010. Appellant stated that he was divorced as of November 2009. OWCP advised
him that this would result in a change to the statutory compensation rate of 66 2/3 percent and he
stated that he did not understand why this would occur. As of January 17, 2010, it began paying
compensation pursuant to the schedule award based on a compensation rate of 66 2/3 percent.
On January 19, 2010 appellant submitted a January 15, 2010 Form EN1032 regarding
employment activity and dependents. He advised that he had no dependents as of November 10,
2009 and he enclosed a copy of the marriage dissolution decree. According to the evidence,
appellant continued to receive compensation payments through April 9, 2011.
By letter dated September 27, 2011, OWCP advised appellant of a preliminary
determination that an overpayment of compensation of $29,882.70 was created. It found an
overpayment from November 10, 2009 to January 16, 2010 based on an incorrect compensation
rate and an overpayment from July 29, 2010 to April 9, 2011 as he continued to receive
compensation payments after the expiration of the schedule award. OWCP calculations showed
that appellant had received $101,451.44 in compensation pursuant to the schedule award, but
should have received $71,568.74 if the proper compensation rate and ending date had been
applied. It also advised him of a preliminary determination that he was not without fault in
creating the overpayment.
Appellant requested a hearing before an OWCP hearing representative, which was held
on February 3, 2012. He stated that he did not have a clear understanding of the ending date of
the schedule award.

2

By decision dated April 2, 2012, the hearing representative finalized the preliminary
determinations as to fact and amount of the overpayment. The hearing representative also found
that appellant was at fault in creating the overpayment and waiver was denied.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA are found at 5 U.S.C. § 8107 and provide that, if
there is permanent disability involving the loss or loss of use of a member or function of the
body, the claimant is entitled to compensation for the permanent impairment of the scheduled
member or function.2 Neither, FECA nor the regulations specify the manner in which the
percentage of impairment for a schedule award shall be determined. For consistent results and to
ensure equal justice for all claimants OWCP has adopted the American Medical Association,
Guides to the Evaluation of Permanent Impairment as the uniform standard applicable to all
claimants.3 If a claimant receives compensation payments pursuant to a schedule award in
excess of the degree of permanent impairment established by the medical evidence, an
overpayment of compensation may be created.4
According to 5.U.S.C. § 8107, a claimant is entitled to basic compensation at the rate of
66 2/3 percent of pay for the number of weeks established by the compensation schedule for the
affected member or function of the body. Under 5 U.S.C. § 8110, a claimant is entitled to
augmented compensation at 75 percent of the pay rate if the claimant has a dependent.
ANALYSIS -- ISSUE 1
The overpayment in this case is based on two overpayments that OWCP considered
together. OWCP found an overpayment from July 29, 2010 to April 9, 2011, as appellant
received compensation after the expiration of the schedule award. The schedule award in this
case was for a 30 percent impairment to the right leg. According to 5 U.S.C. § 8107, complete
loss of use of the leg results in 288 weeks of compensation. As the medical evidence of record
establish that appellant had a 30 percent impairment, he was entitled to 86.40 weeks of
compensation. The period of the award was properly found to be from December 1, 2008 to
July 28, 2010, which is 86.40 weeks.
The evidence establishes that appellant was not entitled to compensation after July 28,
2010 based on permanent impairment to his right leg. In addition, there was no evidence that he
was entitled to continuing compensation based on disability for work. The last medical report
from an attending physician was Dr. Fritzhand’s March 27, 2009 report, which provides no
relevant opinion as to disability after July 28, 2010. The Board finds that the evidence supports a

2

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
3

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

4

See Richard Saldibar, 51 ECAB 585 (2000) (the Board found that the overpayment issue was not in posture
because OWCP had not properly resolved the schedule award issue).

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finding that any compensation received after the expiration of the schedule award on July 28,
2010 represented an overpayment of compensation.
With respect to the compensation rate, the evidence reflects that appellant no longer had
any eligible dependents as of November 10, 2009, the date of his marriage dissolution decree. In
accord with 5 U.S.C. § 8107, appellant should have been paid compensation based on the
statutory rate of 66 2/3 of his monthly pay. Instead he continued to receive compensation at the
augmented rate of 75 percent through January 16, 2010. For the period November 10, 2009 to
January 16, 2010, the difference between compensation at the augmented and the basic statutory
rate represents an overpayment of compensation.
With respect to the amount of the overpayment, the difference between the total amount
of compensation appellant received, $101,451.44 and the amount he should have received,
$71,568.74, was found to be the overpayment amount of $29,882.70. OWCP provided its
calculations and accompanying documentation and there is no contrary evidence. The Board
does note that the fault analysis discussed below requires that the two overpayments be
considered separately, as they are separate issues. Had appellant been found to be without fault
with respect to one of the overpayments, OWCP would be required to provide separate
calculations as to each overpayment.
LEGAL PRECEDENT -- ISSUE 2
5 U.S.C. § 8129(b) provides: “Adjustment or recovery by the United States may not be
made when incorrect payment has been made to an individual who is without fault and when
adjustment or recovery would defeat the purpose of [FECA] or would be against equity and good
conscience.”5 A claimant who is at fault in creating the overpayment is not entitled to waiver.6
On the issue of fault, 20 C.F.R. § 10.433 provides that an individual will be found at fault if he or
she has done any of the following: “(1) made an incorrect statement as to a material fact which
he or she knew or should have known to be incorrect; (2) failed to provide information which he
or she knew or should have known to be material; or (3) accepted a payment which he or she
knew or should have known was incorrect.”
ANALYSIS -- ISSUE 2
With respect to the overpayment created because the schedule award continued beyond
July 28, 2010, the Board notes that the August 20, 2009 OWCP decision clearly stated the period
of the award and the ending date. In addition, appellant was advised that the only basis for
continuing compensation after July 28, 2010 was compensation based on disability for work. In
this case, he did not claim compensation for wage loss on or after July 28, 2010 or submit any
medical evidence regarding his current employment-related condition or disability for work.
A finding of fault may be established when a claimant accepts payments that he should
have known was incorrect. Although appellant asserted that he did not have a clear
5

5 U.S.C. § 8129(b).

6

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

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understanding of the ending date, the issue is whether he knew or should have known the date
the schedule award expired. The Board finds that, based on the clear language of the August 20,
2009 decision and the lack of any probative evidence regarding entitlement to continuing
compensation, he should have known that any compensation received after July 28, 2010 was
incorrect.7 Each compensation check includes the period covered by the payment.8 Appellant
accepted a compensation payment on July 31, 2010 covering compensation through that date and
accepted payments every 28 days through April 9, 2011. Pursuant to 20 C.F.R. § 10.433, he was
at fault with respect to receipt of compensation after July 28, 2010 and is not entitled to waiver
of this overpayment.
The remaining issue is fault as to the overpayment based on an incorrect compensation
rate. The August 20, 2009 decision provided clear instructions to a claimant who has a sole
dependent and is receiving compensation at the augmented rate. If there is a change in status of
the dependent OWCP should be notified in writing and any payment after the change in status
should be returned. Appellant knew or should have known that compensation received after
November 10, 2009 should be returned until OWCP had an opportunity to adjust the
compensation rate. He accepted a compensation payment on November 21, 2009 for $3,451.23,
which represented the amount he had previously received based on the 75 percent compensation
rate for a claimant with a dependent. Appellant should have known that this payment and
subsequent payments in this amount were incorrect because he no longer had any dependents.
Pursuant to 20 C.F.R. § 10.433, he was at fault with respect to compensation from November 10,
2009 to January 16, 2010 and is not entitled to waiver of the overpayment.
CONCLUSION
The Board finds that an overpayment of $29,882.70 was created as appellant received
compensation from November 10, 2009 to January 16, 2010 based on an incorrect compensation
rate and from July 29, 2010 to April 9, 2011 as the schedule award had expired. The Board
further finds that he was at fault in creating the overpayment and therefore was not entitled to
waiver.

7

See J.W., Docket No. 11-2116 (issued August 3, 2012) (claimant was at fault in accepting payment covering a
period after the expiration of schedule award).
8

20 C.F.R. § 10.430(a).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 2, 2012 is affirmed.
Issued: January 28, 2013
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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

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Appearances:
James D. Muirhead, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1595
Issued: August 13, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On July 22, 2019 appellant, through counsel, filed a timely appeal from an April 9, 2019
merit decision2 of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
The Board notes that OWCP issued a June 27, 2019 nonmerit decision which is within the Board’s jurisdiction.
However, counsel did not file an appeal from that decision, thus the Board will not address that decision in this appeal.

Federal Employees’ Compensation Act3 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.4
ISSUE
The issue is whether appellant has met his burden of proof to establish a recurrence of total
disability commencing August 31, 2012, causally related to his accepted February 1, 2000
employment injury.
FACTUAL HISTORY
On February 1, 2000 appellant, then a 49-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that on that date, he broke his left hand when he fell on ice near steps while
in the performance of duty. He stopped work on the date of injury. On March 3, 2000 OWCP
accepted the claim for fracture of the left hand carpal bone. Appellant underwent a surgical fusion
of the left hand on March 1, 2000. He returned to a limited-duty position on August 2, 2000,
stopped work on August 15, 2000, and returned to part-time, limited employment duties of four
hours per day, effective March 6, 2006. The limited-duty position noted that all work duties would
be performed with the right hand, as appellant was unable to use the left hand for repetitive
movements. OWCP paid him wage-loss compensation on the supplemental rolls based upon his
loss of wage-earning capacity as of March 6, 2006, and on the periodic rolls as of
September 30, 2007.
On October 11, 2007 appellant accepted a part-time modified job offer for three hours of
work per day. The physical requirements of the position required writing and lifting less than five
pounds, using the left arm to hold less than one pound of mail, sorting mail with the right hand,
using both arms to hand mail weighing less than five pounds to customers, and picking up a
telephone with both hands.
On February 27, 2008 OWCP expanded acceptance of the claim to include the additional
condition of complex regional pain syndrome (CRPS), left upper extremity.
In a narrative report dated August 31, 2012, Dr. Frederick Fakharzadeh, a Board-certified
orthopedic surgeon, noted appellant’s history of injury. He examined appellant and found that he
had greater complaints of pain at the medial left elbow; numbness in the “long, ring, and little
fingers” of his left hand, with milder numbness in the index finger and satisfactory sensation in
the thumb; numbness of the dorsal ulnar left hand and ulnar border of the left hand; satisfactory
thenar sensation; good perfusion; a left wrist infused with previous unrelated surgery; a positive
Tinel’s sign over the ulnar nerve at the left elbow; a Tinel’s sign over the left side of his neck with
radiation to this fingers; a negative Tinel’s sign at the wrist and forearm over the ulnar nerve;
3

5 U.S.C. § 8101 et seq.

4
The Board notes that OWCP received additional evidence following the June 27, 2019 decision. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

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weakness of finger abduction; profundus of the left “little finger”; and weakness of grip and
intrinsic muscle function. Dr. Fakharzadeh opined that appellant “appears to have some
worsening.” He recommended electromyography and nerve conduction velocity (EMG/NCV)
studies to distinguish “if this is an ulnar neuropathy, which was documented as a work injury in
2000 when he fell at work and injured the left upper extremity.” Dr. Fakharzadeh opined that
appellant was “disabled from his work altogether without ability to return to his previously
significantly limited capacity. The worsened weakness I think precludes his ability to return to
work. Further treatment will depend on his electrodiagnostic studies.”
In an August 31, 2012 attending physician’s report (Form CA-20), Dr. Fakharzadeh, noted
that on February 1, 2000 appellant fell on an icy sidewalk. He indicated that appellant had a
preexisting fused left wrist and diagnosed ulnar neuropathy of the left elbow and left cervical
radiculopathy. Dr. Fakharzadeh checked the box marked “Yes” indicating that appellant’s current
conditions were caused or aggravated by an employment activity. He further noted that the
conditions were “caused by a fall onto left arm at work February 1, 2000.”
OWCP also received a progress report from Dr. Fakharzadeh dated September 6, 2013,
wherein he reiterated his opinion that appellant had worsening numbness in the left hand, which
was probably related to ulnar neuropathy. He opined that appellant was unable to work and should
be on total disability and again recommended electrodiagnostic studies in each of his reports.
In a September 6, 2013 Form CA-20 report, Dr. Fakharzadeh noted that on February 1,
2000 appellant fell on an icy sidewalk at work and injured his left upper extremity. He indicated
that appellant had a preexisting fused left wrist and diagnosed ulnar neuropathy of the left elbow
and possible cervical radiculopathy. Dr. Fakharzadeh checked the box marked “Yes” indicating
that appellant’s current conditions were caused or aggravated by an employment activity. He
further noted that the conditions were “caused by a fall onto left arm at work February 1, 2000.”
Dr. Fakharzadeh opined that appellant was permanently and totally disabled from
August 31, 2012. He again recommended electrodiagnostic studies.
In a narrative report dated September 9, 2014, Dr. Fakharzadeh noted that appellant had
continuing complaints of numbness in the left long, right and little fingers, and milder complaints
in the thumb and index fingers. He also noted appellant’s physical examination findings and
concluded that he had ulnar neuropathy, which had significantly worsened and caused significant
weakness. Dr. Fakharzadeh again recommended electrodiagnostic studies and indicated that
appellant was unable to work.
In a September 9, 2014 Form CA-20, Dr. Fakharzadeh noted that on February 1, 2000
appellant fell on icy steps while working and that he had a prior fusion of the left wrist for an
unrelated injury. He diagnosed “left ulnar neuropathy, likely elbow, possibly cervical.”
Dr. Fakharzadeh checked the box marked “Yes” indicating that appellant’s current conditions were
caused or aggravated by an employment activity. He further noted that the conditions were
“caused by a fall onto left arm at work February 1, 2000.” Dr. Fakharzadeh opined that appellant
was permanently and totally disabled from work commencing August 31, 2012. He again
recommended electrodiagnostic studies.

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On September 9, 2014 Dr. Fakharzadeh also completed a work capacity evaluation form
(OWCP-5c) in which he noted that appellant had permanent work restrictions due to pain and
weakness of the left upper extremity.
On September 18, 2015 Dr. Fakharzadeh noted appellant’s history of injury and physical
examination findings. He concluded that appellant had apparent neuropathy with worsening
numbness in the right hand,5 which had worsened since his employment injury. Dr. Fakharzadeh
reported that appellant had notable weakness, which was probably ulnar neuropathy primarily, but
may be other neuropathy as well. He again concluded that appellant was unable to work.
In a September 6, 2016 report, Dr. Fakharzadeh examined appellant and found numbness
and weakness in the left hand with an apparent neuropathy. He opined that the condition was
caused by compression of the ulnar nerve, but could have a different origin. Dr. Fakharzadeh
advised that appellant was unable to work and repeated his request for electrodiagnostic studies.
On April 3, 2017 OWCP received an undated notice of recurrence of disability (Form
CA-2a) alleging a recurrence of disability since September 1, 2012. Appellant explained that he
had been receiving wage-loss compensation for five hours of disability per day, but that he was
totally disabled from work and Dr. Fakharzadeh had determined that his hand condition had
worsened and required further diagnostic testing.
In a September 1, 2017 report, Dr. Fakharzadeh noted that he initially treated appellant on
September 8, 2001, for left hand pain following a February 1, 2000 injury when he fractured his
left wrist at work after slipping on ice and falling down steps. He advised that appellant continued
to have long-standing difficulty grasping and holding things with continued pain and numbness in
the left hand and up the arm. Dr. Fakharzadeh indicated that appellant had a prior fusion of the
left wrist for an unrelated injury and a previous documented ulnar neuropathy on EMG scan
following the nerve surgery. He noted that appellant had retired from the employing
establishment, but continued to have complaints of numbness diffusely in the left hand and ulnar
wrist pain. Dr. Fakharzadeh examined appellant and found numbness and weakness of the left
hand with neuropathy. He opined that this condition was due to compression of the ulnar nerve
and that appellant was unable to work.
On June 18, 2018 appellant filed a notice of recurrence (Form CA-2a), claiming time lost
from work effective August 31, 2012, based on a material change in his accepted work-related
condition. He argued that his left hand and wrist gradually worsened and he was totally disabled
from work. Appellant indicated that he was only working three hours per day and stopped work
altogether on November 30, 2008. The employing establishment controverted the claim and noted
that appellant had retired in 2008.
In a development letter dated August 2, 2018, OWCP informed appellant of the
deficiencies in his recurrence claim and informed him of the type of evidence necessary to establish
his claim. It noted that appellant’s accepted conditions were open fracture of the left carpal bone
and reflex sympathetic disorder (RSD) of the upper limb. OWCP requested that appellant provide
5
This appears to be a typographical error as the Board notes that the remainder of Dr. Fakharzadeh’s reports
reference a left hand injury.

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a rationalized medical report explaining the basis of his claimed recurrence and provided a
questionnaire for him to complete. It afforded appellant 30 days to respond. On August 14, 2018
OWCP received his response to the development questionnaire. Appellant noted that he continued
to experience pain, and his left hand condition had worsened.
By decision dated September 4, 2018, OWCP denied appellant’s claim for compensation
commencing August 31, 2012, finding that the medical evidence of record was insufficient to
establish how the accepted condition had worsened effective August 31, 2012.
On September 10, 2018 appellant, through counsel, requested a telephonic hearing, which
was held on February 8, 2019. Appellant indicated that he was then receiving compensation for
five hours per day and was seeking compensation for the additional three hours per day due to his
recurrent disability.
In an October 7, 2018 report, Dr. Fakharzadeh noted appellant’s history of injury and
treatment. He examined appellant and provided findings of signiﬁcant ulnar neuropathy.
Dr. Fakharzadeh explained that the initiating factor was trauma to the left elbow, that appellant
had surgery in 2001, and had continued worsening of his ulnar nerve function over time. He noted
that he recommended electrodiagnostic studies repeatedly over several prior years, but they were
yet to be performed. Dr. Fakharzadeh opined that he was “not altogether certain as to the origin
currently, but it is in the distal ulnar compartment of the wrist.” He advised that the degree of
weakness and loss of muscle function in the left hand limited appellant’s ability to do manual work
and he had been out of work since 2008. Dr. Fakharzadeh again recommended electrodiagnostic
studies to assess the ulnar nerve function and distinguish any other possible origins, such as
cervical radiculopathy.
By decision dated April 9, 2019, OWCP’s hearing representative affirmed the September 4,
2018 decision finding that the medical evidence of record was insufficient to establish that
appellant experienced a change in the nature and extent of his accepted condition on or around
August 31, 2012.
LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment.6 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations, and which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties, or a reduction-in-force.7

6

20 C.F.R. § 10.5(x); see T.J., Docket No. 18-0831 (issued March 23, 2020); see J.D., Docket No. 18-1533 (issued
February 27, 2019).
7

Id.

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OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. That change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.8
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning.9 Where no such rationale is present,
the medical evidence is of diminished probative value.10
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a recurrence of
total disability commencing August 31, 2012, causally related to his accepted February 1, 2000
employment injury.
In Form CA-20 reports dated August 31, 2012, September 6, 2013, and September 9, 2014,
Dr. Fakharzadeh diagnosed ulnar neuropathy of the left elbow and left cervical radiculopathy and
checked the box marked “Yes” indicating that appellant’s current conditions were caused or
aggravated by an employment activity. He also indicated that appellant was permanently and
totally disabled from August 31, 2012. The Board has held that to establish a period of disability
the medical evidence must provide a discussion of how objective medical findings, attributable to
the accepted conditions, support a finding that a claimant could not perform his or her job duties.11
As such, these reports are insufficient to discharge appellant’s burden of proof with respect his
recurrence of disability claim.
Dr. Fakharzadeh also completed an OWCP-5c form report in which he noted that appellant
had pain and weakness of the left upper extremity which caused permanent work restrictions.
While he noted findings on examination, and described symptoms, he did not provide an opinion
as to the cause of appellant’s disability from work. The Board has held that medical evidence that
does not provide an opinion as to whether a period of disability is due to an accepted employment

8
Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2b (June 2013); L.B., Docket
No. 18-0533 (issued August 27, 2018).
9

J.D., supra note 6; C.C., Docket No. 18-0719 (issued November 9, 2018).

10

H.T., Docket No. 17-0209 (issued February 8, 2018).

11
See S.G., Docket No. 18-0209 (issued October 4, 2018); R.A., Docket No. 17-1472 (issued December 6, 2017);
Sedi L. Graham, 57 ECAB 494 (2006); Deborah L. Beatty, 54 ECAB 340 (2003).

6

condition is insufficient to meet a claimant’s burden of proof.12 Therefore this report is insufficient
to establish appellant’s recurrence of disability claim.
In separate narrative reports dated August 31, 2012, September 6, 2013, September 9, 2014,
and September 18, 2015, Dr. Fakharzadeh opined that appellant “appears to have some worsening”
in his hand, but did not address a period of disability. As noted, a medical report lacking an opinion
as to whether a period of disability is due to an accepted condition lacks probative value.13
Therefore, these reports are also insufficient to establish the claimed recurrence of disability.
In his reports dated September 6, 2016, September 1, 2017, and October 7, 2018,
Dr. Fakharzadeh opined that appellant’s condition was caused by compression of the ulnar nerve,
but could have a different origin. He explained that he was “not altogether certain as to the origin
currently, but it is in the distal ulnar compartment of the wrist.” Dr. Fakharzadeh continued to
advise in this report that appellant was unable to work. The Board notes, however, that OWCP as
only accepted a fracture of the left hand and RSD/CRPS of the left upper extremity. These reports
fail to provide an opinion as to whether the recurrence of disability was due to the accepted
conditions and therefore lacks probative value.14
As appellant has not submitted sufficient medical evidence to establish that he was disabled
from work beginning August 31, 2012 and continuing, due to a spontaneous change or worsening
of his accepted February 1, 2000 employment-related conditions of left hand carpal fracture and
left upper extremity RSD/CRPS, the Board finds that he has not met his burden of proof to establish
his claim.15
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability commencing August 31, 2012, causally related to his accepted February 1, 2000
employment injury.

12

M.A., Docket No. 19-1119 (issued November 25, 2019); S.I., Docket No. 18-1582 (issued June 20, 2019).

13

Id.

14

Id.

15

See J.P., Docket No. 18-1396 (issued January 23, 2020).

7

ORDER
IT IS HEREBY ORDERED THAT the April 9, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: August 13, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newport, WA, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 18-1686
Issued: August 15, 2019

Case Submitted on the Record

ORDER REMANDING CASE
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JANICE B. ASKIN, Judge

On September 6, 2018 appellant filed a timely appeal from a June 11, 2018 decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 18-1686.
The Board has duly considered the matter and notes that in an August 7, 2017 decision,
OWCP reduced appellant’s wage-loss compensation benefits based upon his actual earnings as an
auto sales branch manager. The record reflects that appellant disagreed with the loss of wageearning capacity (LWEC) determination and, on March 20, 2018, formally requested modification
of the LWEC determination. On May 1, 2018, appellant requested reconsideration of OWCP’s
August 7, 2017 LWEC determination. By decision dated June 11, 2018, OWCP denied appellant’s
reconsideration request.
The Board finds that OWCP improperly reviewed the case under the standard for a timely
reconsideration request.1 While appellant used the term reconsideration in his May 1, 2018
correspondence, he contended that OWCP committed error in its August 7, 2017 LWEC

1

A.C., Docket No. 15-0710 (issued June 5, 2015). See also K.J., Docket No. 14-1874 (issued February 26, 2015).

determination and requested a resumption of compensation for total wage loss.2 The Board thus
finds that appellant’s May 1, 2018 request constituted a request for modification of the August 7,
2017 LWEC determination.3
The Board has held that, when an LWEC determination has been issued, and appellant
submits evidence with respect to one of the criteria for modification, OWCP must evaluate the
evidence to determine if modification of LWEC determination is required.4 A claimant may
establish that a modification of an LWEC determination is warranted if there is a material change
in the nature and extent of an injury-related condition, or a showing that the original determination
was, in fact, erroneous.5
The case must therefore be remanded to OWCP for a proper decision which includes
findings of fact and a clear and precise statement regarding whether appellant has met his burden
of proof to establish modification of the August 7, 2017 LWEC determination. The Board
consequently remands the case to OWCP for proper adjudication, to be followed by a de novo
decision.6 Accordingly,

2

J.J., Docket No. 11-1958 (issued June 27, 2012).

3

See R.Z., Docket No. 17-1455 (issued February 15, 2019).

4

Id.

5

20 C.F.R. § 10.511; see P.C., 58 ECAB 405 (2007).

6

Y.C., Docket No. 14-1605 (issued November 21, 2014); W.W., Docket No. 09-1934 (issued February 24, 2010);
Gary L. Moreland, 54 ECAB 638 (2003); see also Daryl Peoples, Docket No. 05-0462 (issued July 19, 2005); Emmit
Taylor, Docket No. 03-1780 (issued July 21, 2004) (The Board found that requests for reconsideration of an LWEC
determination constituted requests for modification of such decision. The Board therefore set aside OWCP decisions
denying the claimant’s reconsideration request and remanded for adjudication of the issue of modification of LWEC
determination).

2

IT IS HEREBY ORDERED THAT the June 11, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded to OWCP for further proceedings
consistent with this order of the Board.7
Issued: August 15, 2019
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

7

The Board notes that, by decision dated September 18, 2018, OWCP denied modification of its August 7, 2017
LWEC decision. However, appellant filed the appeal to the Board on September 6, 2018, prior to the September 18,
2018 decision. The Board notes that during the pendency of this appeal, OWCP issued a September 18, 2018 decision,
that decision is null and void as the Board and OWCP may not simultaneously have jurisdiction over the same issue.
See Terry L. Smith, 51 ECAB 182 (1999); Arlonia B. Taylor, 44 ECAB 591 (1993); Russell E. Lerman, 43 ECAB 770
(1992); Douglas E. Billings, 41 ECAB 880 (1990).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Executrix of the Estate of W.M., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
DEPOT, Corpus Christi, TX, Employer
__________________________________________

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Appearances:
Steve Maher, for the appellant
Office of Solicitor, for the Director

Docket No. 11-2103
Issued: August 27, 2012

Oral Argument August 7, 2012

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 21, 2011 appellant filed a timely appeal from an April 6, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) and a September 12, 2011
nonmerit decision denying merit review of the claim. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUES
The issues are: (1) whether the employee has established an injury causally related to
exposure to chemicals in his federal employment; and (2) whether OWCP properly denied
appellant’s application for reconsideration without merit review of the claim.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
The case has been before the Board on prior appeals. There were four claims filed by the
employee, who initially filed a claim on March 2, 1988 alleging that he developed fatigue,
depression, a skin condition, rapid heartbeat, stress and anxiety due to exposure to Agent Orange.
By decision dated March 31, 1992, the Board affirmed OWCP’s denial of the claim on the
grounds it was not timely filed.2 On January 7, 2005 the employee filed an occupational disease
claim alleging that he developed Type 2 diabetes and peripheral neuropathy as a result of
chemical exposure while overhauling helicopters in federal employment. By decision dated
September 17, 2008, the Board affirmed an OWCP decision dated July 2, 2007, finding that the
medical evidence was insufficient to establish that diabetes and peripheral neuropathy were
casually related to chemical exposure.3
On August 2, 2007 the employee filed an occupational disease claim alleging that he
sustained colon and liver cancer as a result of chemical exposure. By decision dated July 15,
2008, the Board affirmed OWCP’s decision dated October 24, 2007 denying the claim on the
grounds the medical evidence was insufficient.4 On September 12, 2008 the employee filed an
occupational disease claim alleging that he developed a stroke and peripheral neuropathy as a
result of chemical exposure. By decision dated January 6, 2010, the Board affirmed a
January 19, 2009 OWCP decision denying the claim on the grounds that the medical evidence
was insufficient to establish the claim.5 The employee’s claims had been consolidated under the
claim file for the January 7, 2005 claim. He died on January 27, 2011. The history of the case as
reported in the Board’s prior decisions is incorporated herein by reference.
In a letter dated May 14, 2010, the employee requested reconsideration and submitted a
January 21, 2010 report from Dr. A. Lee Guinn, a Board-certified internist, who stated that
appellant had been diagnosed with Type 2 diabetes and peripheral neuropathy secondary to
diabetes. Dr. Guinn stated that during the employee’s federal employment from approximately
1966 to 1974, the employee was responsible for returning helicopters from Vietnam, which were
contaminated with the herbicide Agent Orange. He stated that multiple research studies confirm
that exposure to Agent Orange can cause a variety of diseases, including, but not limited to,
diabetes mellitus Type 2, peripheral neuropathy, prostate cancers, respiratory cancers and
multiple myeloma. Dr. Guinn opined that the employee’s “current health status could be a result
of his exposure to Agent Orange” during his years of federal employment.
By decision dated September 23, 2010, OWCP reviewed the merits of the claim and
denied modification of the January 6, 2010 Board decision. It found that the medical evidence
was insufficient to establish the claim.

2

Docket No. 91-1047 (issued March 31, 1992).

3

Docket No. 07-1911 (issued September 17, 2008). The Board noted that OWCP had accepted that the employee
was exposed to fuels, solvents and Agent Orange while working on helicopters.
4

Docket No. 08-361 (issued July 15, 2008).

5

Docket No. 09-908 (issued January 6, 2010).

2

By letter dated October 19, 2010, the employee requested reconsideration. In a report
dated October 15, 2010, Dr. Guinn provided a history, stating that the employee had a
documented exposure to multiple toxic chemicals in federal employment, including pesticide
compounds such as Agent Orange, solvents, fuels, asbestos, toluene, chromate compounds and
multiple other carcinogens. He reiterated that multiple research studies confirm that exposure to
Agent Orange can cause a number of diseases. Dr. Guinn indicated that the employee frequently
had direct contact with these chemicals without any protective barriers such as gloves or
protective clothing and daily his skin was in frequent contact with these chemicals. He stated
that pesticide compounds may be absorbed through the skin, GI tract and respiratory tract, but
almost all significant poisonings occur as a result of accidental or intentional ingestion.
According to Dr. Guinn, these herbicides produce nonspecific dermal and GI irritation with
nausea, muscular abnormalities and generalized muscle weakness. He stated that the employee
had peripheral neuropathy, a known complication of Agent Orange exposure, as well as diabetes
and colon cancer. Dr. Guinn concluded:
“For these reasons above my opinion, with a reasonable degree of medical
certainty, is that [the employee] has developed many comorbid medical
conditions due to continuous and long-term exposure to the chemicals noted
which include his peripheral neuropathy, diabetes mellitus, [T]ype 2,
cardiovascular disease resulting in stroke, skin cancers and damage at site of
exposure and metastatic colon cancer. His exposure was great since he had direct
contact with these chemicals through his skin, gastrointestinal tract and
respiratory tract without appropriate barrier protective gear.”
By decision dated April 6, 2011, OWCP reviewed the case on its merits and denied
modification of the July 2, 2007 OWCP decision. It found that the October 15, 2010 report from
Dr. Guinn was not of sufficient probative value to establish the claim.
On August 15, 2011 OWCP received an August 9, 2011 letter from the employee’s
spouse requesting reconsideration. The letter stated that additional medical evidence was
attached, but the record does not include any additional medical evidence submitted with the
August 9, 2011 letter.
By decision dated September 12, 2011, OWCP found that the application for
reconsideration was insufficient to warrant merit review of the claim.
LEGAL PRECEDENT -- ISSUE 1
A claimant seeking benefits under FECA6 has the burden of establishing the essential
elements of his claim by the weight of the reliable, probative and substantial evidence, including
that an injury was sustained in the performance of duty as alleged and that any specific condition
or disability claimed is causally related to the employment injury.7

6

5 U.S.C. §§ 8101-8193.

7

20 C.F.R. § 10.115(e), (f) (2005); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

3

To establish that an injury was sustained in the performance of duty, a claimant must
submit: (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 diagnosed condition is causally related to the
employment factors identified by the claimant.8
Causal relationship is a medical question that can generally be resolved only by
rationalized medical opinion evidence.9 A physician’s opinion on the issue of whether there is a
causal relationship between the claimant’s diagnosed condition and the implicated employment
factors must be based on a complete factual and medical background of the claimant.10
Additionally, the opinion must be expressed in terms of a reasonable degree of medical certainty,
and must be supported by medical rationale, explaining the nature of the relationship between the
diagnosed condition and the specific employment factors.11
ANALYSIS -- ISSUE 1
As the procedural history of the case has noted, the employee filed occupational claims
on January 7, 2005 for diabetes and peripheral neuropathy, on August 6, 2007 for colon and liver
cancers and on September 12, 2008 for stroke and peripheral neuropathy. These claims have
been consolidated under the current OWCP claim file.
OWCP has accepted some exposure to chemicals during federal employment. The
numerous decisions in the case have been based on a review of the medical evidence with respect
to causal relationship between a diagnosed condition and the employment exposure. The Board,
having reviewed the October 15, 2010 report from Dr. Guinn, finds that the medical evidence
requires further development. Dr. Guinn provided a history discussing the employee’s chemical
exposure, noted the employee’s medical history and referred to medical studies regarding causal
relationship between chemical exposure and diabetes, peripheral neuropathy and cancer. He
offered an opinion within a reasonable degree of medical certainty that peripheral neuropathy,
Type 2 diabetes mellitus, cardiovascular disease resulting in stroke and metastatic colon cancers
were causally related to chemical exposure in federal employment.
While Dr. Guinn did not fully explain his opinion as to causal relationship with
employment for the diagnosed conditions, he provided a clear and probative medical opinion
reflected a thorough knowledge and review of appellant’s medical and employment history and
there is no contrary medical evidence. OWCP has never attempted to further develop the
medical evidence in this case. While appellant has the burden of proof to establish the claim,
OWCP shares responsibility in the development of the evidence.12 The Board will remand the
8

Ruby I. Fish, 46 ECAB 276, 279 (1994).

9

See Robert G. Morris, 48 ECAB 238 (1996).

10

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

11

Id.

12

William J. Cantrell, 34 ECAB 1233 (1983).

4

case for OWCP to prepare an accurate statement of accepted facts and referral to an appropriate
specialist(s) for a rationalized medical opinion on the issues presented. After such further
development as OWCP deems necessary, it should issue an appropriate decision. In view of the
Board’s finding, OWCP will not address the denial of reconsideration issue.
CONCLUSION
The Board finds that appellant has submitted sufficient medical evidence to require
further development of the claim.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 6, 2011 is set aside and the case remanded for further action
consistent with this decision of the Board.
Issued: August 27, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
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and
)
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SMALL BUSINESS ADMINISTRATION,
)
GOVERNMENT CONTRACTING & BUSINESS )
DEVELOPMENT, Washington, DC, Employer
)
__________________________________________ )
F.J., Appellant

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

Docket No. 10-1303
Issued: April 22, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 17, 2010 appellant filed a timely appeal from a September 28, 2009 Office of
Workers’ Compensation Programs’ decision which affirmed an Office decision denying her
claim for compensation. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant met her burden of proof in establishing that she had a total
of five hours of disability on October 21 and November 20, 2008 causally related to her accepted
employment condition.
FACTUAL HISTORY
On April 18, 2007 appellant, then a 53-year-old program analyst filed an occupational
disease claim for neck and shoulder pain as a result of performing repetitive work duties. She
1

5 U.S.C. §§ 8101-8193.

became aware of her illness on December 14, 1998 when she was on travel for work and luggage
fell on her neck and arm. The Office accepted appellant’s claim for right shoulder, upper right
arm and neck sprain. Appellant did not stop work.
Appellant was treated by Dr. Leonid Selya, a Board-certified orthopedist, from June 6,
2007 to December 17, 2008 for neck and low back pain which appellant attributed to repetitive
work duties. Dr. Selya noted appellant’s history was significant for bilateral carpal tunnel
syndrome and diagnosed cervical myelopathy and cervical myomalacia due to degenerative disc
disease at C3-4, C4-5, C5-6 and C6-7 and discogenic back pain due to degenerative disc disease
at L4-5. He returned appellant to work.
Appellant came under the treatment of Dr. Baljeet S. Sethi, a Board-certified neurologist,
on June 11 to November 20, 2008 for recurrent neck and back pain which started in 1998 after a
work injury. On September 17, 2008 Dr. Sethi treated appellant for right shoulder and lower
back pain and diagnosed cervical radiculopathy, myelopathy, recurrent chronic headache,
lumbosacral spondylosis and severe lumbosacral strain. In an October 21, 2008 report, he noted
treating appellant on that date for intermittent headaches, neck and shoulder pain and muscle
spasm. Dr. Sethi noted findings of mild weakness of the handgrip bilaterally, mildly positive
Tinel’s sign on the right, diminished reflexes, normal sensory examination, normal lower
extremities strength bilaterally with spasm and tenderness of the cervical and lumbosacral spine.
In a November 20, 2008 treatment report, he treated appellant on that date. Appellant reported
feeling better with infrequent headaches but she continued to experience neck, back and right
wrist pain and was using a splint. Dr. Sethi noted that the physical examination revealed
weakness of the handgrip, more prominent on the right, positive Tinel’s sign bilaterally, normal
reflexes and no gross incoordination with mild spasm and tenderness of the cervical spine. He
advised that appellant’s condition was stable and she would be seen in one month.
On January 8, 2008 appellant submitted CA-7 forms, claiming compensation for total
disability for the period October 12 to 25, 2008 and November 9 to 22, 2008. In attached CA-7a
time analysis forms, however, she had only reimbursement for 2.5 hours of leave each for
doctor’s appointments on October 21 and November 20, 2008.
In a letter dated January 12, 2009, the Office requested that appellant submit additional
information with regard to her claim for compensation beginning October 12, 2008. It requested
that she submit medical evidence establishing that she was totally disabled due to the accepted
condition for the period claimed.
Appellant submitted a January 15, 2009 report from Dr. Sethi who treated appellant for
insomnia, neck, left shoulder and lower back pain and numbness in the extremities. Dr. Sethi
opined that appellant was improving with conservative treatment. Also submitted were physical
therapy reports dated December 18 and 31, 2008.
In a decision dated February 12, 2009, the Office denied appellant’s claim for
compensation for total disability for the period October 12 to 25, 2008 and November 9 to 22,
2008 on the grounds that the evidence did not establish that appellant’s total disability was due to
her accepted work injury.

2

On March 6, 2009 appellant requested a review of the written record. She submitted a
February 2, 2009 report from Dr. Steven C. Scherping, a Board-certified neurologist, who noted
appellant’s history and diagnosed multilevel degenerative cervical disc disease with mild
cervical spinal stenosis, left shoulder bursitis/impingement, lumbar degenerative
spondylolisthesis and bilateral carpal tunnel syndrome. Appellant was treated by Dr. Selya on
February 25 and July 8, 2009. Dr. Selya noted appellant’s diagnosis and status. Other reports
from Dr. Sethi dated April 15 to August 24, 2009, noted appellant’s treatment for headaches and
neck and back pain with gradual improvement. Appellant was treated by Dr. Ryan M. Jander, a
Board-certified orthopedist, from July 6 to August 17, 2009, for recurrent right shoulder pain
stemming from a 1998 injury. Dr. Jander diagnosed right shoulder impingement and right
shoulder acromioclavicular joint arthritis and noted that appellant could work with restrictions.
In a decision dated September 28, 2009, the hearing representative affirmed the Office
decision dated February 12, 2009.
LEGAL PRECEDENT
A claimant has the burden of proving by a preponderance of the evidence that he or she is
disabled for work as a result of an accepted employment injury and submit medical evidence for
each period of disability claimed.2 Whether a particular injury causes an employee to be
disabled for employment and the duration of that disability are medical issues.3 The issue of
whether a particular injury causes disability for work must be resolved by competent medical
evidence.4 To meet this burden, a claimant must submit rationalized medical opinion evidence,
based on a complete factual and medical background, supporting a causal relationship between
the alleged disabling condition and the accepted injury.5
The Board will not require the Office to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation. For each period of disability claimed, the employee has the burden
of establishing that he or she was disabled for work as a result of the accepted employment
injury.6
The Office’s procedure manual provides that wages lost for compensable medical
examination or treatment may be reimbursed.7 It notes that a claimant who has returned to work
2

See Fereidoon Kharabi, 52 ECAB 291 (2001).

3

Id.

4

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

5

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

6

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

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16
(December 1995).

3

following an accepted injury or illness may need to undergo examination or treatment and such
employee may be paid compensation for wage loss while obtaining medical services and for a
reasonable time spent traveling to and from the medical provider’s location.8
ANALYSIS
The Office accepted appellant’s claim for right shoulder, upper right arm and neck sprain.
Appellant filed claims for wage-loss compensation for 2.5 hours of leave without pay on
October 21, 2008 and 2.5 hours of leave without pay on November 20, 2008 to attend doctor’s
appointments. The Office found that she did not support her claim of disability, noting that the
evidence did not establish that her disability was due to her accepted work injury.
On October 21, 2008 appellant claimed 2.5 hours of leave without pay. The record
reflects that she was examined by Dr. Sethi on that date in follow-up for complaints of
headaches, neck and shoulder pain and muscle spasm. Dr. Sethi noted findings upon physical
examination of the neck and right arm and noted that appellant would be seen in one month. On
November 20, 2008 appellant claimed 2.5 hours of leave without pay. She was treated on that
date by Dr. Sethi in follow-up. He found that appellant showed some improvement but
continued to experience constant neck, back and right wrist pain and has been using a splint.
Dr. Sethi noted the examination findings for the right arm and neck. He advised that appellant’s
condition was stable. The Board finds that the record confirms that appellant was treated by
Dr. Sethi on October 21 and November 20, 2008 for complaints generally consistent with her
accepted right shoulder, upper right arm and neck sprain.
The leave records reflect that appellant used 2.5 hours of leave without pay on
October 21 and on November 20, 2008, the dates that she was treated by Dr. Sethi. As noted
under Office procedures, appellant is entitled to compensation for wage loss related to a
reasonable time spent traveling to and being examined for her accepted conditions. Contrary to
the Office’s decision, the Board finds the medical evidence from Dr. Sethi is sufficient to
establish that he treated her for her accepted conditions on the claimed dates and there is no
evidence supporting that the 2.5 hours on each date was unreasonable. The Board finds that
appellant is entitled to 2.5 hours of compensation for wage loss incidental to medical treatment
for her accepted conditions on both October 21 and November 20, 2008.9
CONCLUSION
The Board finds that appellant is entitled to reimbursement for wages lost for medical
treatment for 2.5 hours each on October 21 and November 20, 2008.

8

See also Daniel Hollars, 51 ECAB 355 (2000); Jeffrey R. Davis, 35 ECAB 950 (1984).

9

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 28, 2009 is reversed.
Issued: April 22, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.R., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
CORRECTIONAL COMPLEX, Coleman, FL,
Employer
__________________________________________

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)

Appearances:
Capp P. Taylor, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0588
Issued: June 25, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On January 22, 2020 appellant, through counsel, filed a timely appeal from a December 4,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish greater than six
percent permanent impairment of the left upper extremity, for which he previously received
schedule award compensation.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On March 2, 2004 appellant, then a 42-year-old lieutenant, filed a traumatic injury claim
(Form CA-1) alleging that on that date he was attempting to move a mattress when his left hand
caught under one and pulled him, causing pain in his left shoulder. OWCP accepted the claim for
left rotator cuff syndrome and subsequently expanded acceptance of the claim to include left
shoulder impingement syndrome. On August 30, 2004 appellant underwent OWCP-approved left
shoulder surgery.4
On September 22, 2016 appellant filed a claim for a schedule award (Form CA-7).
OWCP received an October 7, 2015 report from Dr. Samy F. Bishai, an orthopedic
surgeon, who related appellant’s history of injury to his left shoulder. Dr. Bishai diagnosed rotator
cuff syndrome of the left shoulder joint, left shoulder impingement syndrome, severe supraspinatus
tendinitis of the left shoulder, and status postoperative arthroscopic surgery for treatment of
shoulder impingement syndrome and rotator cuff syndrome and tears. He referred to the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides)5 and explained that he utilized the stand-alone range of motion (ROM)
methodology for calculating permanent impairment because appellant’s loss of ROM of the left
shoulder joint had become appellant’s primary disability. Dr. Bishai concluded that appellant had
24 percent left upper extremity impairment due to loss of left shoulder ROM under the A.M.A.,
Guides.
OWCP’s district medical adviser (DMA), Dr. Jovito Estaris, a specialist in occupational
medicine, reviewed the claim on November 8, 2016. Regarding the October 7, 2015 report from
Dr. Bishai, he noted that “inexplicably” his measurement of ROM was “markedly different” from
other physicians. The DMA also noted that Dr. Bishai did not provide three sets of measurements,
as recommended by the A.M.A., Guides, and he recommended that appellant be referred for a
second opinion evaluation.

3

Docket No. 17-1961 (issued December 20, 2018).

4

Appellant underwent arthroscopic labrum repair of the shoulder, arthroscopic supraspinatus rotator cuff
debridement, arthroscopic subacromial decompression, and subacromial pain catheter placement.
5

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

2

On November 14, 2016 OWCP referred appellant for a second opinion examination with
Dr. Richard C. Smith, a Board-certified orthopedic surgeon. In a December 8, 2016 report,
Dr. Smith reviewed appellant’s history of injury. He noted that the accepted condition was left
rotator cuff syndrome and left shoulder impingement syndrome. Dr. Smith utilized the diagnosisbased impairment (DBI) methodology for rating permanent impairment pursuant to the A.M.A.,
Guides, Table 15-5.6 He used the Shoulder Regional Grid from Table 15-57 and placed appellant’s
impairment in Class 1 due to some residual loss of function with normal motion. Dr. Smith applied
the net adjustment formula for a grade modifier for functional history (GMFH), grade modifier for
physical examination (GMPE), and grade modifier for clinical studies (GMCS) and concluded that
appellant had five percent permanent impairment of the left upper extremity. He also explained
that he did not disagree with Dr. Bishai’s calculation, but the DBI methodology “better reflects the
claimant’s overall condition.”
On March 7, 2017 OWCP requested further review of the record by Dr. Estaris, the DMA.
In a May 3, 2017 supplemental report, the DMA noted that he had reviewed Dr. Smith’s report.
He noted that Dr. Smith’s permanent impairment rating was made using the DBI methodology for
rotator cuff syndrome with impingement of the left shoulder and he concurred that appellant had
five percent left upper extremity permanent impairment, utilizing the DBI methodology.
On July 5, 2017 OWCP received an undated addendum from Dr. Estaris. He advised that
neither Dr. Bishai, nor Dr. Smith followed the A.M.A., Guides for the ROM methodology because
neither had provided three sets of ROM measurements. The DMA recommended another second
opinion evaluation by a Board-certified orthopedic surgeon to provide an impairment rating using
the ROM methodology in accordance with the A.M.A., Guides.
By decision dated July 19, 2017, OWCP granted appellant a schedule award for five
percent impairment of the left upper extremity.
On September 1, 2017 appellant, through counsel, appealed to the Board. By decision
dated December 20, 2018, the Board set aside the July 19, 2017 decision and remanded the case
for further development. The Board noted that the July 19, 2017 decision referred to the DMA’s
May 3, 2017 report, but made no mention of his undated addendum received on July 5, 2017.
Thus, the DMA’s recommendation to further develop the medical evidence had not been followed.
On February 5, 2019 OWCP referred appellant for a second opinion examination with
Dr. Patrick Horan, a Board-certified orthopedic surgeon. In a February 26, 2019 report, Dr. Horan
noted the history of appellant’s accepted left shoulder injury. He indicated that he rated appellant’s
permanent impairment under both the DBI and ROM methods. Dr. Horan first discussed the DBI
methodology using a diagnosis of rotator cuff injury, partial thickness tear. Applying the A.M.A.,
Guides, Table 15-5,8 he placed appellant’s impairment in Class 1, applied the grade modifiers and
concluded that the net adjustment resulted in five percent left shoulder permanent impairment
6

A.M.A., Guides 402.

7

Id.

8

Id.

3

under the DBI methodology. Dr. Horan also utilized the ROM impairment rating methodology,
he recorded three sets of ROM measurements for both the right and left shoulders. Regarding
appellant’s left shoulder, he found 115 degrees of forward flexion, 30 degrees of extension, 91
degrees of abduction, 50 degrees of adduction, 51 degrees of external rotation, and 75 degrees of
internal rotation. Dr. Horan calculated nine percent permanent impairment of the left upper
extremity due to loss of ROM. He indicated that, when the DBI and ROM ratings were different,
the greater rating was used. Therefore, Dr. Horan concluded that appellant had nine percent left
upper extremity permanent impairment.
OWCP routed the case record, including Dr. Horan’s February 26, 2019 report, to
Dr. Estaris, the DMA, for review. In a March 12, 2019 report, the DMA noted that, according to
the DBI rating methodology, under the A.M.A., Guides, Table 15-5, Shoulder Regional Grid,9
appellant had four percent permanent impairment of the left upper extremity.
The DMA also utilized the ROM methodology in Table 15-3410 and found three percent
impairment for 120 degrees of flexion, one percent impairment for 30 degrees of extension, three
percent impairment for 90 degrees of abduction, zero percent impairment for 50 degrees of
adduction, zero percent impairment for 80 degrees of internal rotation, and two percent impairment
for 50 degrees of external rotation. He added these values to equal nine percent permanent
impairment of the left upper extremity. The DMA noted that appellant also had a right shoulder
permanent impairment of three percent due to loss of ROM and subtracted this rating to conclude
that appellant had six percent permanent impairment of his left upper extremity under the ROM
methodology, which was greater than the DBI rating. He noted that, since appellant was previously
granted a schedule award for five percent permanent impairment of the left upper extremity, an
additional award of one percent was warranted.
By decision dated March 18, 2019, OWCP granted appellant a schedule award for an
additional one percent permanent impairment of the left upper extremity, for a total six percent
permanent impairment of the left upper extremity, noting that he was previously paid for five
percent permanent impairment of the left upper extremity.
On November 5, 2019 appellant, through counsel, requested reconsideration. He argued
that the DMA improperly reduced the left shoulder impairment rating by the contralateral right
shoulder impairment of three percent. Counsel asserted that, in reports dated May 9 and October 2,
2019, Dr. Robert R. Reppy, an osteopathic physician Board-certified in orthopedic surgery, found
that appellant’s right shoulder was not normal.
In a May 9, 2019 report, Dr. Reppy explained that the DMA reduced the percentage of
impairment for appellant’s left shoulder using the right shoulder as appellant’s normal, uninjured
base status. He advised that he saw signs of osteoarthritis in the glenoid joint of the right shoulder
and the possibility of a rotator cuff lesion in the right shoulder as well, and opined that one could

9

Id.

10

Supra note 6 at 475.

4

not consider the right shoulder as “normal.” Dr. Reppy indicated that he was ordering a magnetic
resonance imaging (MRI) scan of appellant’s right shoulder.
In an October 2, 2019 report, Dr. Reppy advised that appellant’s MRI scan revealed
osteoarthritis in the glenoid joint of the right shoulder, and the possibility of a rotator cuff lesion
in the right shoulder. He argued that these conditions did not preexist the accepted 2004
employment injury, and thus should be added to the list of accepted conditions.
In a November 23, 2019 supplemental report, the DMA reviewed the reports from
Dr. Reppy and appellant’s MRI scan. He related that there was no documentation of any injury to
appellant’s right shoulder and advised that, pursuant to the A.M.A., Guides, page 461, section
15.7a, clinical measurements of motion, “If the opposite extremity is neither involved nor
previously injured, it must be used to define normal for that individual any losses should be made
in comparison to the opposite normal extremity.” Additionally, the DMA noted that the June 14,
2019 MRI scan of the right shoulder showed a degenerative subchondral cyst and a posterior labral
tear. He explained that labral tears were “either the result of injury or degenerative changes.” As
there was no documented injury to the right shoulder, the DMA opined, “in all probability, this
labral tear is a degenerative change. Degenerative changes are the result of aging and not from
injury.” He opined that his six percent permanent impairment rating remained unchanged.
By decision dated December 4, 2019, OWCP denied modification of the March 18, 2019
decision.
LEGAL PRECEDENT
The schedule award provisions of FECA,11 and its implementing federal regulations,12 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.13 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.14

11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404.

13

Id. at § 10.404(a).

14
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Chapter 3.700.2 and Exhibit 1 (January 2010).

5

The sixth edition requires identifying the impairment class for the class of diagnosis
(CDX), which is then adjusted by GMFH, GMPE, and GMCS.15 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).16
Regarding the application of the ROM or the DBI methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)17
The Bulletin further advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA
should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE….”18
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish greater than six
percent permanent impairment of the left upper extremity, for which he previously received
schedule award compensation.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s July 19, 2017 merit decision because the
Board considered that evidence in its December 20, 2018 decision. Findings made in prior Board
decisions are res judicata absent any further review by OWCP under section 8128 of FECA.19

15

Supra note 6 at 383-492.

16

Id. at § 411.

17

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

18

Id.

19

A.G., Docket No. 18-0329 (issued July 26, 2018); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

6

In a February 26, 2019 report, Dr. Horan provided three sets of ROM measurements and
calculated nine percent permanent impairment of appellant’s left shoulder due to loss of ROM. He
also rated appellant’s left shoulder permanent impairment using the DBI method and found that
appellant had a lesser than five percent permanent impairment under the DBI rating methodology.
On March 12, 2019 Dr. Estaris the DMA, rated appellant’s left shoulder permanent
impairment utilizing both the DBI methodology under Table 15-5 and the ROM method under
Table 15-34. According to the DBI rating method, he concluded that under Table 15-5 appellant
had four percent permanent impairment of the left shoulder.
Dr. Estaris then rated appellant’s left shoulder permanent impairment under the ROM
methodology. He correctly noted that the A.M.A., Guides provide that if the opposite member is
not involved or previously injured, any losses should be made in comparison to the opposite
normal extremity. Using ROM measurements for both shoulders, the DMA found that appellant
had nine percent impairment of the left shoulder and three percent impairment of the right shoulder.
He subtracted the right shoulder rating from the left shoulder rating to conclude that appellant had
six percent permanent impairment of his left upper extremity. As the ROM rating was higher than
the DBI rating, the DMA found that appellant’s permanent impairment was best represented by
the ROM rating. He noted that appellant was previously awarded five percent for the left upper
extremity impairment and advised that an additional one percent award was warranted.
Counsel thereafter submitted medical reports dated May 9 and October 2, 2019 from
Dr. Reppy to support his argument that appellant’s right shoulder was not normal, and therefore
the DMA’s opinion was invalid.
In the May 9, 2019 report, Dr. Reppy noted that the DMA reduced the percentage of
appellant’s left shoulder impairment by three percent, based on the right shoulder being appellant’s
normal, uninjured base status. He noted that he had found signs of osteoarthritis in the glenoid
joint of the right shoulder and the possibility of a rotator cuff lesion in the right shoulder, and
therefore appellant’s right shoulder could not be considered “normal.” In an October 2, 2019
report, Dr. Reppy noted that an MRI scan confirmed his findings of glenoid joint right shoulder
osteoarthritis and the possibility of right shoulder rotator cuff lesion. He argued that these
conditions did not preexist the employment injury and thus should not be added to the list of
accepted conditions.
The Board notes that the A.M.A., Guides explain that in evaluating ROM measurements
“If the opposite extremity is neither involved nor previously injured, it must be used to define
normal for that individual; any losses should be made in comparison to the opposite normal
extremity.”20 Dr. Reppy indicated that appellant’s right shoulder was not “normal.” He concluded
that it must have been injured during the employment injury as his right shoulder conditions did
not exist prior to the employment injury. Appellant has not, however, alleged that he injured his
right shoulder during the employment injury, or at any other time. Dr. Reppy, therefore, failed to
provide an accurate history of injury as identified by appellant on his Form CA-1 and the medical

20

Supra note 5 at page 461.

7

reports of record.21 He therefore did not provide a rationalized medical opinion explaining that
appellant’s right shoulder was involved in the accepted employment injury or previously injured,
as required by the A.M.A., Guides. As such, his report is insufficient to meet appellant’s burden
of proof.22
The DMA, after reviewing Dr. Reppy’s reports, properly explained that appellant’s right
shoulder must be used to define normal for the impairment rating of the left shoulder. He referred
to the A.M.A., Guides and noted that there was no documentation of any injury to the right
shoulder. The DMA also noted that the June 14, 2019 MRI scan of the right shoulder showed a
degenerative subchondral cyst and a posterior labral tear. He explained that labral tears were
“either the result of injury or degenerative changes.” Because there was no documented injury to
the right shoulder, the DMA advised that, “in all probability, this labral tear is a degenerative
change. Degenerative changes are the result of aging and not from injury.” The DMA advised
that Dr. Reppy’s findings with regard to the right shoulder did not change his opinion that the right
shoulder impairment of three percent must be used to calculate the left shoulder impairment.
The Board therefore finds that there is no probative medical evidence of record that
appellant has more than six percent permanent impairment of the left upper extremity, for which
he previously received schedule award compensation.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish greater than six
percent permanent impairment of the left upper extremity, for which he previously received
schedule award compensation.

21

See D.M., Docket No. 20-0266 (issued January 8, 2021); J.K., Docket No. 20-0590 (issued July 17, 2020).

22
See D.A., Docket No. 20-0951 (issued November 6, 2020); G.M., Docket No. 15-1288 (issued
September 18, 2015).

8

ORDER
IT IS HEREBY ORDERED THAT the December 4, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 25, 2021
Washington, DC

Janice B. Askin, Judge
Employees' Compensation Appeals Board

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

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

9