United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, AIR MAIL FACILITY, )
San Francisco, CA, Employer
)
__________________________________________ )
A.L., Appellant

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

Docket No. 12-1634
Issued: May 7, 2013

Case Submitted on the Record

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

JURISDICTION
On July 30, 2012 appellant filed a timely appeal from a May 8, 2012 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP properly determined that the selected position of
appointment clerk represented appellant’s wage-earning capacity.
FACTUAL HISTORY
The case was before the Board on a prior appeal. In a decision dated October 4, 2012,
the Board affirmed a September 26, 2011 OWCP decision finding that appellant did not establish

1

5 U.S.C. § 8101 et seq.

a bilateral wrist condition as a consequence of the accepted April 3, 2007 employment injury.2
As the Board noted, OWCP had accepted that she sustained contusions to the chest wall, left
shoulder and upper arms, as well as sprains to the lumbar spine, left shoulder and upper arms
when she was struck by a forklift. Appellant stopped working on August 31, 2009 and began
receiving compensation for wage loss. The history of the case as provided in the Board’s prior
decision is incorporated herein by reference.
OWCP had referred appellant, as the Board noted in the prior appeal, for a second
opinion evaluation by Dr. Ramon Jimenez, a Board-certified orthopedic surgeon. In an April 23,
2010 report, Dr. Jimenez provided a history and results on examination. He diagnosed cervical
and lumbar sprains and shoulder tendinitis, stating that appellant continued to have employmentrelated residuals. Dr. Jimenez provided a work capacity evaluation (OWCP-5c) indicating that
appellant could work eight hours per day, with limitations of four hours of sitting, standing,
walking and reaching, with no reaching above shoulder. The limitations also included lifting of
10 pounds for up to two hours per day.
In a report dated September 8, 2011, attending physician Dr. Robert Harrison, a Boardcertified internist, noted that appellant had begun vocational rehabilitation in early 2011. He
indicated that she did repetitive keying tasks and her neck and hand pain worsened. Dr. Harrison
reported that appellant had been restricted to two hours of typing or keying since April 2011.
A rehabilitation counselor completed a job classification form (OWCP-66) dated
September 26, 2011 for the position of appointment clerk.3 The job was described as sedentary
strength level, with occasional lifting of 10 pounds, with frequent reaching and handling. The
weekly wages were reported as $400.00, and the counselor indicated that the position was
reasonably available in appellant’s commuting area, based on a recent labor market survey.
By letter dated October 20, 2011, OWCP advised appellant that her claim had been
accepted for cervical strain. In a letter dated October 24, 2011, it advised her that it proposed to
reduce her compensation on the grounds that she had the capacity to earn wages as an
appointment clerk. OWCP stated that the job was within the work restrictions provided by
Dr. Jimenez.
In a letter dated November 17, 2011, appellant’s representative stated that appellant
disagreed with the proposed action. The representative indicated that appellant had not been able
to secure a similar job.
By decision dated December 1, 2011, OWCP reduced appellant’s compensation for wage
loss. The wage-earning capacity worksheet found that appellant’s current pay rate for the dateof-injury position was $1,072.25 per week and appellant had the capacity to earn $400.00 per
week in the position of appointment clerk.

2

Docket No. 12-867 (issued October 4, 2012).

3

Department of Labor’s Dictionary of Occupational Titles No. 237.367.010.

2

Appellant requested a hearing before an OWCP hearing representative, which was held
on March 8, 2012. In a report dated February 25, 2012, Dr. George Karalis, a psychiatrist, stated
that he was treating appellant for a work-related psychiatric condition.4 He indicated that the
orthopedic injuries had produced psychological sequelae that had worsened her preexisting
psychiatric condition. Dr. Karalis reported that appellant wanted to work at the employing
establishment.
By decision dated May 8, 2012, the hearing representative affirmed the December 1,
2011 decision. He stated that he found no medical reports in disagreement with the restrictions
outlined by Dr. Jimenez.
LEGAL PRECEDENT
Once OWCP has made a determination that a claimant is totally disabled as a result of an
employment injury and pays compensation benefits, it has the burden of justifying a subsequent
reduction in such benefits.5
Under section 8115(a) of FECA, 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.6 If the actual earnings do not fairly and reasonably represent wage-earning capacity, or if
the employee has no actual earnings, his or her wage-earning capacity is determined with due
regard to the nature of his or her injury, his or her degree of physical impairment, his or her usual
employment, his or her age, his or her qualifications for other employment, the availability of
suitable employment, and other factors and circumstances which may affect his or her wageearning capacity in his or her disabled condition.7
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position, listed in the Department of Labor’s Dictionary of Occupational Titles or
otherwise available in the open 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 labor market should be made through contact
with the state employment service or other applicable service.8 Finally, application of the
principles set forth in Albert C. Shadrick will result in the percentage of the employee’s loss of
wage-earning capacity.9

4

Dr. Karalis identified a separate OWCP claim for a 1993 injury.

5

Carla Letcher, 46 ECAB 452 (1995).

6

5 U.S.C. § 8115(a).

7

See Wilson L. Clow, Jr., 44 ECAB 157 (1992); see also 5 U.S.C. § 8115(a).

8

See Dennis D. Owen, 44 ECAB 475 (1993).

9

5 ECAB 376 (1953); see also 20 C.F.R. § 10.303.

3

ANALYSIS
In the present case, OWCP found that the position of appointment clerk, No. 237.367-010
in the Department of Labor’s Dictionary of Occupational Titles, represented appellant’s wageearning capacity. To be an appropriate position for a wage-earning capacity determination under
5 U.S.C. § 8115(a), the position must be medically and vocationally suitable. The evidence must
also properly document the position’s availability and the wages earned and OWCP must follow
established procedures before reducing appellant’s wage-loss compensation.
With respect to the issue of medical suitability of the selected position, OWCP primarily
refers to the reports of Dr. Jimenez, the second opinion physician. As to the work restrictions
reported, Dr. Jimenez limited appellant to, inter alia, four hours of sitting and reaching and no
overhead reaching. OWCP does not explain how it determined that these restrictions were
within the job requirements of the appointment clerk position. There is nothing in the job
classification form (OWCP-66) that limits sitting to no more than four hours. The position is
specifically described as a sedentary position. In addition, the job required frequent reaching,
and Dr. Jimenez had limited appellant’s reaching to four hours. The form states that frequent
means up to two thirds of the time may be spent on the activity. It is not clear whether any of the
reaching required was above shoulder.
There are additional questions raised by the medical evidence. Dr. Harrison did not
specifically address the performance of the selected position, but did limit appellant’s keying
activities to no more than two hours per day. It is not entirely clear whether such a restriction
would be within the job requirements of the selected position. It is also not clear whether such
restrictions derived from an employment-related or preexisting condition, or whether it was
based on a subsequently acquired condition.10 The record also indicates that appellant had
another claim involving an emotional condition, and OWCP does not make clear findings as to
any accepted conditions or relevant medical evidence with respect to that claim. The hearing
representative finds that Dr. Karalis did not preclude appellant from performing the position of
appointment clerk. However, it is not appellant’s burden to submit evidence showing she could
not perform the position. Rather, it is the burden of OWCP to establish that the selected position
was medically suitable.
OWCP procedures state that, unless the medical evidence is “clear and unequivocal” that
the selected position is medically suitable, OWCP should send a job description to an appropriate
physician for an opinion as to whether the claimant can perform the position.11 The medical
evidence in this case is not “clear and unequivocal” as to whether the position of appointment
clerk was medically suitable. OWCP should have secured a rationalized medical opinion on the
issue. The Board accordingly finds that OWCP did not meet its burden of proof to reduce
compensation pursuant to 5 U.S.C. § 8115(a).

10

OWCP must consider employment-related and preexisting conditions in determining medical suitability of a
position. Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity, Chapter
2.814.8(d) (October 2009).
11

Id.

4

CONCLUSION
The Board finds that OWCP did not properly determine that the selected position of
appointment clerk represented appellant’s wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 8, 2012 is reversed.
Issued: May 7, 2013
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
__________________________________________
K.H., Appellant
and
DEPARTMENT OF THE ARMY,
LETTERKENNY ARMY DEPOT,
Chambersburg, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-0968
Issued: July 6, 2015

Case Submitted on the Record

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

JURISDICTION
On March 21, 2014 appellant, through counsel, filed a timely appeal from a February 4,
2014 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that his claim should be expanded to
include occupational asthma causally related to factors of his federal employment.
FACTUAL HISTORY
On September 18, 2006 appellant, then a 53-year-old powered support systems mechanic,
filed an occupational disease claim alleging that he sustained severe headaches, blurred vision,
1

5 U.S.C. § 8101 et seq.

stomach problems, chest pains, shaking and fainting due to environmental exposures in the
course of his federal employment. OWCP accepted the claim for headache. Following his
injury, appellant was reassigned to another work location.
The record contains April 6, 2006 data from the employing establishment documenting
elevated carbon dioxide and carbon monoxide exposure levels in Building 37. In a statement
dated September 22, 2006, appellant’s supervisor indicated that air quality samples showed
levels that were less than harmful.
A September 22, 2006 individual environmental exposure record indicates that appellant
was exposed to elemental carbon at or above the permissible exposure limits.
On March 8, 2013 appellant, through his congressional representative, submitted a
January 14, 2013 medical report from Dr. Rebecca Bascom, a Board-certified internist, who
reviewed his presentation of his work history. Dr. Bascom noted that, from January to
March 2005, he was exposed to isocyanate spray paints while working in Building 37. In 2008,
appellant began working in Building 57. He was exposed to spray paint outside the paint booths
but did not work in the spray booths. Appellant began working modified employment in
Building 33 where there was no spraying but would experience symptoms again when sent to
other buildings. He relocated to Building 2 and experienced multiple exacerbations of asthma
when exposed to fumes. Dr. Bascom reviewed Material Safety Data Sheets for the chemicals to
which appellant attributed his exposure, the medical reports of record, and the results of
diagnostic testing. She diagnosed occupational inhalation exposure to dust, vapors, gases, fumes
including isocyanates, solvents and diesel fumes causing occupational asthma, occupational
rhinitis, and occupational migraine headache with syncopal migraine. Dr. Bascom described a
series of claims filed by appellant for headache, asthma and chemical exposure from 2006 to
2009 and stated, based on his description of his work duties:
“[My] opinion at the conclusion of the evaluation is that all of the above claims
describe manifestations of a single multisystem occupational illness caused by the
sustained Inhalation of sensitizing and irritant chemicals including isocyanates
spray paints, currently a leading cause of occupational asthma. The exposure
began in 2006 with the development of new onset isocyanate occupational asthma
and rhinosinusitis with headache, progressing to migraine headaches and syncopal
migraine. The prognosis of occupational asthma relates to the duration of
symptomatic exposure and the severity at the time of removal from exposure.
[Appellant] was exposed for over three years because he continued to be assigned
to work areas with regular use of spray paints through the spring of 2008. He had
severe persistent asthma that was not in good control at the time of removal from
exposure. [Appellant] also had developed new, severe migraine headaches. The
persistence of his diseases and persistent increased reactivity are consistent with
the medical literature on these conditions.”

2

Dr. Bascom found that appellant was permanently disabled from working at the
employing establishment. She stated:
“[Appellant]’s record demonstrates classic features of isocyanate occupational
asthma: there was a period of symptomless exposure; there was a characteristic
history of worsening of symptoms at work and improvement away from work;
there was worsening in peak flow measurements during times of work[-]related
symptoms; there is good correlation between peak flow measures and spirometric
values; there is variable airflow obstruction documented by standard lung function
testing.”
By letter dated March 18, 2013, OWCP informed appellant’s congressional
representative that it had accepted a 2006 claim for a headache, a 2008 claim for an aggravation
of asthma, and a 2009 claim for an acute headache. It noted that appellant last worked at the
employing establishment in April 2009. OWCP advised that it had not accepted all workplace
exposure discussed by Dr. Bascom and noted that she did not address outside exposure to odors
and fumes or his treatment for reflex epilepsy.
On March 20, 2013 OWCP requested that appellant submit additional factual
information, including his history of irritant exposure outside of his federal employment. In a
March 24, 2013 response, appellant indicated that he had no other outside exposure to irritants
except for certain restaurants, stores, and church.
By decision dated June 26, 2013, OWCP denied appellant’s claim after finding that he
had not submitted sufficient evidence that he sustained employment-related asthma. It noted that
he had not provided information about his wine making activities that exposed him to sulfur
dioxide.
On July 1, 2013 appellant, through counsel, requested a telephone hearing before an
OWCP hearing representative.
On November 26, 2013 appellant submitted a proposed remedial action plan for Building
37 site and Building 47 by the Environmental Protection Agency and responses from the
employing establishment to the plan.
At the telephone hearing, held on November 20, 2013, appellant’s counsel noted that
Building 37 was a superfund site and that the proposed remedial plan showed various volatile
organic compounds that had leached into the ground. Dr. Bascom testified at the hearing. She
related that she reached her diagnosis of occupational asthma through industrial hygiene reports
from the employing establishment, a review of medical records, pulmonary function tests and
Material Safety Data sheets. Dr. Bascom noted that appellant was exposed to hex methylene
diisocyanate, a sensitizer that was a frequent cause of occupational asthma. She related that the
spray painting was performed in alcoves rather than enclosed spray booths. Dr. Bascom opined
that appellant’s five-year history of cigarette smoking in the 1970s and his exposure to sulfur
dioxide while making wine did not contribute to his asthma. She explained that sulfur dioxide
could trigger occupational asthma, but that his symptoms and the timeframe were inconsistent
with that as the cause.

3

By letter dated December 19, 2013, the employing establishment requested additional
time to dispute appellant’s allegation. It did confirm, however, that Building 37 had been a
source of groundwater contamination and thus part of the superfund site list. The proposed
remediation plan did not indicate the presence of hex methylene diisocyanate in the soil. The
employing establishment maintained that it used surface coatings that contained polyurethanes
with hex methylene diisocyanate but that it was required to be put on with a spray in a paint
booth or with a brush.
In a decision dated February 4, 2014, an OWCP hearing representative affirmed the
June 26, 2013 decision. She found that Dr. Bascom’s opinion was not rationalized as she did not
provide a history of appellant’s work-related exposure to chemicals.
LEGAL PRECEDENT
A claimant seeking benefits under FECA2 has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence,3 including that he or she
sustained an injury in the performance of duty and that any specific condition or disability for
work for which he or she claims compensation is causally related to that employment injury.4
The evidence generally required to establish causal relationship is rationalized medical
opinion evidence.5 The claimant must submit a rationalized medical opinion that supports a
causal connection between his or her current condition and the employment injury. The medical
opinion must be based on a complete factual and medical background with an accurate history of
the claimant’s employment injury and must explain from a medical perspective how the current
condition is related to the injury.6
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility to see that justice is done.7 The nonadversarial policy of proceedings under
FECA is reflected in OWCP’s regulations at section 10.121.8 The Board has stated that, once
OWCP has begun investigation of a claim, it must pursue the evidence as far as reasonably
possible, particularly when such evidence is in the possession of the government employing
establishment and is, therefore, more readily accessible to OWCP.9
2

Id.

3

See J.P., 59 ECAB 178 (2007); Amelia S. Jefferson, 57 ECAB 183 (2005).

4

See G.T., 59 ECAB 447 (2008); Frankie A. Farinacci, 56 ECAB 723 (2005).

5

See T.H., 59 ECAB 388 (2008); Thomas L. Agee, 56 ECAB 465 (2005).

6

See D.G., 59 ECAB 734 (2008); Donald W. Wenzel, 56 ECAB 390 (2005).

7

Jimmy A. Hammons, 51 ECAB 219 (1999).

8

20 C.F.R. § 10.121.

9

See Richard Kendall, 43 ECAB 790 (1992); Leon C. Collier, 37 ECAB 378 (1986).

4

ANALYSIS
OWCP accepted that appellant sustained headaches causally related to environmental
exposure in the course of his federal employment. In 2013, appellant requested that OWCP
expand his claim to include occupational asthma. In a report dated January 14, 2013,
Dr. Bascom related that, based on appellant’s description of his employment exposures,
appellant had been exposed to isocyanate spray paints from January to March 2005 while
working Building 37. In 2008, appellant began working in Building 57 and was exposed to
spray paint outside of spray booths, even though he did not work in the spray booths. He
subsequently worked in locations that did not involve spray painting, but continued to experience
exacerbations at work when he was exposed to fumes. Dr. Bascom reviewed the safety
datasheets for the chemicals to which appellant alleged exposure, the results of diagnostic
testing, and the medical reports. She diagnosed occupational asthma, occupational rhinitis and
occupational migraines as a result of exposure at work to dust, vapors, gases and fumes that
included isocyanates, solvents, and diesel fumes. Dr. Bascom explained that appellant’s history
was consistent with the development of isocyanate occupational asthma as documented by his
improvement away from work, and spirometric values. At the November 20, 2013 telephone
hearing, she related that he was exposed to hex methylene diisocyanate, a common cause of
occupational asthma. Dr. Bascom determined that appellant’s five-year history of cigarette
smoking in the 1970s and his exposure to sulfur dioxide making wine did not contribute to his
asthma. She noted that he had exposure to hex methylene diisocyanate from spray paint in spray
alcoves rather than enclosed spray booths.
The Board finds that the case is not in posture for decision. Proceedings under FECA are
not adversarial in nature, nor is OWCP a disinterested arbiter. While the claimant has the burden
to establish entitlement to compensation, OWCP shares responsibility in the development of the
evidence to see that justice is done.10 The Board has reviewed Dr. Bascom’s opinion and finds
that appellant provided a history of being exposed to chemicals at work which she found to have
caused occupational asthma. Dr. Bascom based her diagnosis on appellant’s description of his
work history, exposure data, a review of medical records and the results of some objective
testing. Her opinion is supportive, unequivocal, bolstered by these objective findings and based
on a firm diagnosis. Dr. Bascom further provided rationale for her opinion by explaining that
appellant’s development of symptoms at work and improvement away from work, as established
by spirometric results, supported the diagnosis of occupational asthma. Although her opinion
lacks a verified knowledge of any specific exposure by appellant to chemicals at work, it
provides sufficient support for causal relationship to require further development by OWCP.11
OWCP shares responsibility in the development of the evidence, particularly when such
evidence is of the character normally obtained from the employing establishment or other
government source.12 It did not obtain from the employing establishment comprehensive data
10

A.A., 59 ECAB 726 (2008); Phillip L. Barnes, 55 ECAB 426 (2004).

11

Id.

12

See Donald L. Strain, Docket No. 94-2607 (issued January 14, 1997); Robert A. Redmond, 40 ECAB
800 (1989).

5

setting forth appellant’s exposure to dust, fumes and chemicals during his employment. The
employing establishment provided exposure data for carbon dioxide and carbon monoxide in
Building 37 in 2006. In a September 22, 2006 statement, appellant’s supervisor indicated that
the air quality samples showed levels that did not cause harm; however, this appears to relate to
the carbon monoxide and carbon dioxide levels. On December 19, 2013 the employing
establishment confirmed that it used hex methylene diisocyanate in spray paints but maintained
that it had to be used in spray booths or with a brush. It did not, however, specifically state
where appellant worked and at what times, whether it used spray alcoves for the application of
spray paint in Building 37 during the time of appellant’s employment, or provide any
comprehensive exposure data relating to appellant’s specific periods of employment.
On remand, OWCP should obtain an accurate history of his employment, and to what
chemicals he was exposed and during what periods of time and, based on this information,
prepare a statement of accepted facts. It should then develop the medical evidence to determine
whether appellant sustained occupational asthma due to factors of his federal employment.
Following this and such further development as OWCP deems necessary, it shall issue a de novo
decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

6

ORDER
IT IS HEREBY ORDERED THAT the February 4, 2014 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: July 6, 2015
Washington, DC

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
R.K., claiming as Executrix of the Estate of A.K.,
Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Moorestown, NJ, Employer
__________________________________________
Appearances:
Thomas R. Uliase, Esq., for the appellant
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)
)

Docket No. 12-212
Issued: June 28, 2012

Case Submitted on the Record

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

On November 8, 2011 appellant, through her attorney, filed a timely appeal from an
August 29, 2011 decision of the Office of Workers’ Compensation Programs (OWCP) that found
that the employee was not entitled to a schedule award.1 The appeal was docketed as
No. 12-212.
The Board finds that this case is not in posture for decision and agrees with the argument
on appeal that OWCP has not established that Dr. Howard Zeidman, a Board-certified orthopedic
surgeon, was properly selected as the impartial medical specialist. The case was previously
before the Board. By decision dated January 29, 2009, the Board found the case not in posture
for decision because the January 24, 2007 report of Dr. Robert R. Bachman, a Board-certified
orthopedic surgeon, selected as an impartial physician, required clarification regarding the

1

The employee died on August 21, 2010 of nonemployment-related cancer.

employee’s entitlement to a schedule award.2 On September 30, 2009 OWCP referred the
employee to Dr. Zeidman for an impartial evaluation to resolve a conflict in medical opinion
regarding whether the employee had a permanent impairment due to an accepted injury.
The Board finds that OWCP has not adequately explained how the rotational system
selected Dr. Zeidman. A physician selected by OWCP to serve as an impartial medical specialist
should be one wholly free to make a completely independent evaluation and judgment. In order
to achieve this, OWCP has developed specific procedures for the selection of impartial medical
specialists designed to provide adequate safeguards against any possible appearance that the
selected physician’s opinion was biased or prejudiced. The procedures contemplate that
impartial medical specialists will be selected on a strict rotating basis in order to negate any
appearance that preferential treatment exists between a particular physician and OWCP.3
OWCP has an obligation to verify that it selected Dr. Zeidman in a fair and unbiased
manner. It maintains records for this very purpose.4 The current record contains a
September 29, 2009 MEO23 iFECS report which states that the employee’s referee appointment
was scheduled with Dr. Zeidman. The record also contains four screen shots. The screen shots,
however, are not fully legible.5 Several do not identify the physicians bypassed because the
physician’s name is obscured by a box indicating the reason the unknown physicians were
bypassed. These documents do not substantiate the proper referee selection of Dr. Zeidman.6
The Board has placed great importance on the appearance as well as the fact of
impartiality, and only if the selection procedures which were designed to achieve this result are
scrupulously followed may the selected physician carry the special weight accorded to an
impartial medical specialist. OWCP has not met its affirmative obligation to establish that it
properly followed its selection procedures.7

2

Docket No. 08-1672 (issued January 29, 2009). On January 17, 2000 the employee, a letter carrier, sustained a
work-related lumbar sprain and lumbar radiculopathy while lifting a tub of mail. This claim was adjudicated under
OWCP file number xxxxxx502. On June 6, 2003 the employee sustained a second lumbar sprain and lumbar
radiculopathy condition. The 2003 claim was adjudicated by OWCP under file number xxxxxx212. The employee
filed a schedule award claim on January 28, 2005. The claims were doubled and, on September 8, 2009, OWCP
accepted the additional condition of herniated disc at L4-5.
3

Raymond J. Brown, 52 ECAB 192 (2001).

4

M.A., Docket No. 07-1344 (issued February 19, 2008).

5

See B.S., Docket No. 10-2343 (issued September 28, 2011) (The Board remanded the case for selection of a new
impartial medical examiner as OWCP failed to establish that it properly followed its procedures for selection of the
impartial medical examiners because iFECS documents in the record were illegible).
6

See generally, P.D., Docket No. 10-31 (issued September 28, 2011) (The Board remanded the case for selection
of a new impartial medical examiner, although the record contained an MEO23 iFECS report stating that appellant’s
referee appointment was scheduled with the selected impartial medical examiner, it did not include any iFECS
screen shots substantiating the referee selection of the impartial medical examiner).
7

See V.P., Docket No. 11-605 (issued January 12, 2012).

2

The Board will remand the case to OWCP for selection of another impartial medical
specialist. After such further development as necessary, OWCP shall issue an appropriate
decision regarding the employee’s entitlement to a schedule award.
IT IS HEREBY ORDERED THAT the August 29, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this order of the Board.
Issued: June 28, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., JR., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Milford, CT, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
John L. DeGeneres, Jr., Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0505
Issued: November 24, 2020

Case Submitted on the Record

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

JURISDICTION
On January 6, 2020 appellant, through counsel, filed a timely appeal from a November 1,
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.3

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
3

5 U.S.C. § 8101 et seq.

Appellant, through counsel, filed a timely request for oral argument. After exercising its discretion, by order
dated November 20, 2020 the Board denied his request finding that his arguments could be adequately addressed in
a decision based on a review of the case record. Order Denying Request for Oral Argument, Docket No. 20-0505
(issued November 20, 2020).

ISSUE
The issue is whether appellant has met his burden of proof to establish that his bilateral
hip, knee, and ankle conditions are causally related to the accepted factors of his federal
employment.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On September 29, 2014 appellant, then a 65-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed an aggravation of his preexisting bilateral
hip, knee, and ankle osteoarthritis conditions due to factors of his federal employment including
walking, lifting, climbing, bending, twisting, stooping, and driving. He noted that he first
became aware of his condition and its relationship to his federal employment on
August 20, 2014. Appellant stopped work on August 8, 2014 and retired from the employing
establishment effective November 30, 2014.
In support of his claim, appellant submitted an August 20, 2014 report from Dr. Amit
Lahav, a Board-certified orthopedic surgeon, which detailed the history of appellant’s medical
treatment from 2006 and noted in general terms the requirements of appellant’s duties as a letter
carrier.
On January 23, 2015 OWCP referred the record and a statement of accepted facts
(SOAF) to a district medical adviser (DMA) for an opinion as to whether appellant’s job duties
aggravated appellant’s preexisting bilateral knee, hip, and ankle conditions.
By decision dated March 26, 2015, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that his diagnosed conditions were caused or aggravated by
the accepted factors of his federal employment.
On April 21, 2015 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. Counsel subsequently converted the
request for oral hearing to a request for review of the written record by an OWCP hearing
representative. In support thereof, he submitted a November23, 2015 report by Dr. Lahav, who
again summarized appellant’s medical history and opined that there was a direct causal
relationship between appellant’s worsening arthritic conditions and his employment duties.
By decision dated February 8, 2016, OWCP’s hearing representative affirmed the denial
of appellant’s claim. Appellant subsequently submitted a December 31, 2016 report by
Dr. Lahav who diagnosed bilateral hip degenerative joint disease, and bilateral lower leg
osteoarthritis and expanded on his prior opinion regarding causal relationship. On January 17,
2017 appellant, through counsel, requested reconsideration.
4

Docket No. 17-1811 (issued March 23, 2018).

2

By decision dated March 10, 2017, OWCP denied modification. On August 18, 2017
appellant, through counsel, filed a timely appeal with the Board.5 By decision dated March 23,
2018, the Board affirmed OWCP’s March 10, 2017 decision finding appellant had not submitted
rationalized medical evidence establishing that his bilateral hip, knees, and ankle osteoarthritis
conditions were caused or aggravated by factors of his federal employment.
On March 1, 2019 appellant, through counsel, requested reconsideration and submitted
additional evidence.
In a February 24, 2019 supplemental report, Dr. Lahav explained that arthritis was the
loss of joint cartilage, and osteoarthritis was the loss of articular cartilage providing joint
cushioning. He reported that the loss of the cushioning of the joint resulted in a chronic
inflammatory process and decreasing viscosity of the joint lubricating synovial fluid. Dr. Lahav
opined that the impact-loading activities appellant performed, including walking an average of
seven miles per day, lifting packages up to 70 pounds, carrying a mail satchel weighing 35
pounds, constant bending, twisting, and stooping, and climbing approximately 280,000 stairs on
his route, accelerated the deterioration of his joint cartilage joint surface leading to arthritis. He
acknowledged that hip and knee joints were more susceptible to developing arthritis as one ages.
While age was a factor in development of this condition, Dr. Lahav explained that appellant’s
job duties were also a factor to be considered as these duties were a contributing factor to the
acceleration of the joint degradation. He also explained that there were other factors contributing
to arthritis, including genetics, body habitus, dominance of one side of the body over the other,
environmental factors, and traumatic injury, but opined that it was impossible to determine the
percentage of each contributing factor to the development of appellant’s arthritis. Dr. Lahav
explained that ascending and descending stairs loaded three to six times the body’s weight and
was a major contributing factor to the progression of arthritis. In appellant’s case, as a letter
carrier, ascending and descending stairs with a full mail satchel added a minimum of 100 pounds
to effective body weight, which was a contributing factor to the progression of arthritis.
Dr. Lahav reported that the medical literature proved that impact lower extremity impact loading
activities over time resulted in arthritic changes. He cited to the American Academy of
Orthopedic Surgeons website which found climbing stairs to be an aggravating factor for
arthritis. Moreover, Dr. Lahav concluded that there was a greater contribution to the increased
degenerative joint wear the longer a person performed the impact-loading activities and that later
in life these activities were performed. He concluded that since appellant was in the 64 to 66
years old age range when he performed his employment duties, his employment factors would
have contributed to the degeneration of his joints.
By decision dated November 1, 2019, OWCP reopened the claim for merit review, but
denied modification finding that Dr. Lahav’s February 24, 2019 report was conclusory and
insufficiently rationalized to establish appellant’s claim.

5

Docket No. 17-1811 (issued March 23, 2018).

3

LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his claim, including the fact that the individual is an employee of the
United States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty, as alleged; and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.7 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.8
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.9
Causal relationship is a medical issue and the medical evidence required to establish
causal relationship is rationalized medical opinion evidence.10 Rationalized medical opinion
evidence is medical evidence which includes a physician’s rationalized opinion on whether there
is a causal relationship between the employee’s diagnosed condition and the compensable
employment factors.11 The opinion of the physician must be based on a complete factual and
medical background of the employee, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.12
In any case where a preexisting condition involving the same part of the body is present
and the issue of causal relationship therefore involves aggravation, acceleration, or precipitation,

6

Supra note 2.

7

E.S., Docket 18-1580 (January 23, 2020); M.E., Docket No. 18-1135 (issued January 4, 2019); C.S., Docket No.
08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).
8

E.S., id.; S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

9

E.S., supra note 7; D.U., Docket No. 10-0144 (issued July 27, 2010); R.H., 59 ECAB 382 (2008); Roy L.
Humphrey, 57 ECAB 238 (2005); Donald W. Wenzel, 56 ECAB 390 (2005).
10

S.S., Docket No. 19-0688 (issued January 24, 2020); Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D.,
58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB 642 (2006).
11

T.L., Docket No. 18-0778 (issued January 22, 2020); J.J., Docket No. 09-0027 (issued February 10, 2009);
Michael S. Mina, 57 ECAB 379 (2006).
12
S.K., Docket No. 18-1414 (issued April 29, 2020); I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB
345, 352 (1989).

4

the physician must provide a rationalized medical opinion that differentiates between the effects
of the work-related injury or disease and the preexisting condition.13
ANALYSIS
The Board finds that this case is not in posture for a decision.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the
evidence appellant submitted prior to the issuance of OWCP’s March 10, 2017 decision because
the Board considered that evidence in its March 23, 2018 decision and found it insufficient for
purposes of establishing causal relationship. Findings made in prior Board decisions are res
judicata absent any further review by OWCP under section 8128 of FECA.14
In support of his claim, appellant submitted a February 24, 2019 report from Dr. Lahav
describing appellant’s employment duties and how they were a contributing factor in aggravating
appellant’s preexisting bilateral lower extremity arthritis. Dr. Lahav accurately described the
employment duties appellant performed and noted other contributing factors, including age, to
the development of arthritis. He specified the physiologic effects of the forces generated by
appellant’s ascending and descending stairs, carrying a heavy mail satchel, constant bending,
twisting, and stooping, and climbing approximately 280,000 stairs on his route. Dr. Lahav
attempted to explain the pathophysiologic connection between these duties as well as other
contributing factors, including age, aggravated appellant’s bilateral hip degenerative joint
disease, and bilateral lower leg osteoarthritis, due to the acceleration of joint degradation.
The Board finds that the reports of Dr. Lahav are sufficient to require further medical
development of the claim as he described appellant’s work duties and provided an explanation as
to how these work duties could be a contributing factor in the aggravation of appellant’s bilateral
hip degenerative joint disease, and bilateral lower leg osteoarthritis. The Board has long held
that it is unnecessary that the evidence of record in a case be so conclusive as to suggest causal
connection beyond all possible doubt. Rather, the evidence required is only that necessary to
convince the adjudicator that the conclusion drawn is rational, sound, and logical.15 The Board
thus finds that while not sufficiently rationalized, Dr. Lahav’s report is of sufficient probative
value to require further development of the case record by OWCP.16
It is well established that proceedings under FECA are not adversarial in nature, and that
while appellant has the burden of proof to establish entitlement to compensation, OWCP shares

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3(e) (January 2013).
See R.D., Docket No. 18-1551 (issued March 1, 2019).
14

See E.S., supra note 7; B.R., Docket No. 17-0294 (issued May 11, 2018).

15

T.F., Docket No. 19-1900 (issued October 27, 2020); W.M., Docket No. 17-1244 (issued November 7, 2017);
E.M., Docket No. 11-1106 (issued December 28, 2011); Kenneth J. Deerman, 34 ECAB 641, 645 (1983).
16
J.J., Docket No. 19-0789 (issued November 22, 2019); J.G., Docket No. 17-1062 (issued February 13, 2018).
See also John J. Carlone, 41 ECAB 354 (1989); Horace Langhorne, 29 ECAB 820 (1978).

5

responsibility in the development of the evidence.17 OWCP has an obligation to see that justice
is done.18
On remand OWCP shall refer appellant to a specialist in the appropriate field of
medicine, along with the case record and a statement of accepted facts. The referral physician
shall be instructed to provide a well-rationalized opinion as to whether appellant’s diagnosed
osteoarthritic conditions are causally related to the accepted employment factors. If the
physician opines that the diagnosed conditions are not causally related to the employment
factors, he or she must explain with rationale how or why their opinion differs from that
articulated by Dr. Lahav. After such further development of the case record as OWCP deems
necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for a decision.

17

J.J., id. A.P., Docket No. 17-0183 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB 219, 223 (1999);
William J. Cantrell, 34 ECAB 1233, 1237 (1983).
18

J.J., supra note 16; R.B., Docket No. 18-0162 (issued July 24, 2019); William J. Cantrell, id.

6

ORDER
IT IS HEREBY ORDERED THAT the November 1, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with the decision of the Board.
Issued: November 24, 2020
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS BENEFITS ADMINISTRATION,
Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-0546
Issued: September 5, 2017

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 January 3, 2017 appellant filed a timely appeal from a November 18, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than four percent permanent impairment of her
left upper extremity, for which she previously received a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case was previously before the Board.2 The facts of the case as presented in the
prior decision are incorporated herein by reference. The relevant facts are set forth below.
On September 11, 2000 appellant, then a 36-year-old claims examiner, filed an
occupational disease claim (Form CA-2) alleging that her chronic left shoulder, elbow, wrist, and
hand pain were the result of repetitive typing in her federal employment. She did not stop work.
OWCP accepted appellant’s claim for left ulnar strain, left shoulder strain, and left forearm
strain. It also subsequently accepted left ulnar compression, left flexor tendinitis, and left
shoulder bursitis.
Appellant filed a claim for a schedule award (Form CA-7). On May 11, 2005 she was
granted a schedule award for three percent permanent impairment of her left upper extremity.
On July 5, 2005 appellant filed an appeal to the Board from OWCP’s May 11, 2005
decision. By decision dated September 30, 2005, the Board found that she had four percent
permanent impairment of her left upper extremity, affirming OWCP’s May 11, 2005 decision
with modification to the extent of impairment.3
On November 18, 2005 appellant was granted a schedule award for an additional one
percent permanent impairment of the left upper extremity.
On February 6, 2007 OWCP informed appellant that it had updated her claim to accept
the following diagnoses: sprain of elbow and forearm, unspecified site, left; sprain of shoulder
and upper arm, unspecified site, left; adhesive capsulitis of shoulder, left; carpal tunnel
syndrome, left; and myalgia and myositis, not otherwise specified, left.4
On February 15, 2007 appellant filed a claim for an increased schedule award (Form
CA-7) based on the newly accepted conditions of left-sided carpal tunnel syndrome, myalgia,
and myositis.
On October 29, 2008 OWCP referred appellant for a second opinion evaluation to
determine the extent of her permanent impairment.
In a report dated November 20, 2008, Dr. Klaud Miller, Board-certified in orthopedic
surgery serving as a second opinion physician, concluded that appellant had no objective

2

Docket No. 09-1980 (issued May 24, 2010); Docket No. 08-0192 (issued April 11, 2008); Docket No. 05-1467
(issued September 30, 2005).
3

Docket No. 05-1467 id.

4

On the same date OWCP denied her claim for disability on dates from January 24, 2003 through June 13, 2005.
On October 25, 2007 appellant filed a timely appeal from the decision of February 6, 2007 denying her
compensation for dates of disability. By decision dated April 11, 2008, the Board found that she had not met her
burden of proof to establish disability causally related to her accepted injuries on the specific dates claimed. Docket
No. 08-0192 supra note 2.

2

physiologic abnormalities, and therefore, she had zero percent permanent impairment of her left
upper extremity.
To resolve the conflict that arose between appellant’s physician and Dr. Miller as to
whether there was a continuing work-related condition, OWCP referred appellant, together with
the case record and a statement of accepted facts (SOAF), to Dr. Paul D. Belich, a Boardcertified orthopedic surgeon, for an impartial medical evaluation.
On May 7, 2009 Dr. Belich related appellant’s history of injury and current complaints.
He reviewed her medical records and described his findings on physical examination. Dr. Belich
diagnosed soft tissue periscapular pain, soft tissue left shoulder pain, and normal examinations of
the left elbow, left wrist, and left hand. He explained that no significant objective findings or
diagnostic tests substantiated appellant’s complaints of pain in the left shoulder and shoulder
girdle. Dr. Belich felt that she was actively resisting attempts to obtain a better range of motion
in the left shoulder and was putting a great deal of effort in not allowing her arm to be raised
more than 120 degrees. Internal and external rotations on the left were symmetrical to the right,
an inconsistency indicative of abnormal pain-type behavior attempting to influence the
examination. Dr. Belich concluded that appellant’s subjective complaints did not correspond
with any objective findings or any definitive orthopedic diagnosis.
Having found appellant’s range of motion evaluation invalid, Dr. Belich noted that other
physicians never actually found impaired range of shoulder motion beyond a few degrees and
there was nothing to explain why her current examination would be so much different. He
concluded that he could not find more than about two to three percent permanent impairment of
the left upper extremity based on range of motion, but as there was nothing to indicate that she
had an impaired ability to carry out her work, he believed that her true impairment rating should
be zero percent. Dr. Belich reviewed six previous impairment evaluations. Three evaluations,
from orthopedic surgeons, found no impairment and two others found left hand stiffness and a
sensory deficit that were not currently substantiated on examination.
In a decision dated June 18, 2009, OWCP denied appellant’s claim for an increased
schedule award.
On July 30, 2009 appellant filed a timely appeal from OWCP’s June 18, 2009 merit
decision. By decision dated May 24, 2010, the Board found that she had not submitted sufficient
evidence to establish that she had more than four percent permanent impairment of her left upper
extremity.5
On June 1, 2015 appellant requested an additional schedule award (Form CA-7). She
subsequently submitted an April 18, 2016 medical report from Dr. Eugene Lopez, a Boardcertified orthopedic surgeon, in which he opined that she had four percent permanent impairment
of the left upper extremity according to the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2009). On
examination, Dr. Lopez noted positive Neer and Hawkins signs, as well as tenderness with
internal and external rotation of the shoulder. He did not observe any loss of range of motion of
5

Docket No. 09-1980 (issued May 24, 2010).

3

the shoulder or wrist. Dr. Lopez cited Tables 15-5 and 15-23 of the A.M.A., Guides for
calculating his percentage of impairment. He concluded that appellant had four percent
permanent impairment of the left shoulder, based upon the diagnosis of impingement syndrome
of the left shoulder. Dr. Lopez also noted that he could not render an impairment rating for
carpal tunnel syndrome because test findings were negative and her sensory/motor function were
intact on examination.
On September 20, 2016 OWCP forwarded the case file to a district medical adviser
(DMA) for evaluation of appellant’s permanent partial impairment of the left upper extremity.
In a report dated September 30, 2016, the DMA found a rating of four percent permanent
impairment of the left upper extremity according the sixth edition A.M.A., Guides. He noted
that he concurred with Dr. Lopez’ April 18, 2016 report and impairment rating. The DMA
specifically explained regarding appellant’s left shoulder that the diagnosis within the
diagnosis-based regional grid was impingement syndrome (Table 15.5, page 402 of the A.M.A.,
Guides). Pursuant to Table 15.5, he related that her class was class 1. Regarding grade
modifiers he noted that functional history was grade 2 (QuickDASH score of 45); physical
evaluation was grade 1 (tenderness); clinical studies was grade 1 (diagnosis and mild pathology).
He then applied the net adjustment formula and determined that the default impairment at class
1, grade C was three percent permanent impairment, but the adjustment formula would move the
impairment rating up 1 grade from C to D, resulting in a rating of four percent permanent
impairment of the left upper extremity. The DMA also noted that while Dr. Lopez rated
appellant’s wrist pain using the entrapment/compressive neuropathy grid, that was not the proper
grid because there were no nerve conduction studies to review. He then explained that using the
diagnosis-based regional grid for wrist pain at Table 15.3, page 395, the default impairment at
class 1, grade C was one percent. The DMA specifically noted that functional history was
excluded as it had already been used for the highest rated diagnosis; physical evaluation was
grade 1 (mild tenderness); and clinical studies was grade 0 (normal x-ray). The grade modifiers,
however, moved the impairment down 1 grade from C to B, which resulted in an impairment
value of zero percent. The DMA concluded that he concurred with Dr. Lopez that appellant had
four percent permanent impairment of the left upper extremity.
By decision dated November 18, 2016, OWCP found that appellant had not submitted
sufficient evidence to support any additional impairment beyond the four percent left upper
extremity permanent impairment for which she had received a schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA6 and its implementing federal regulations7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
FECA however does not specify the manner by which the percentage loss of a member, function
or organ shall be determined. To ensure consistent results and equal justice for all claimants
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

4

under the law, good administrative practice requires the use of uniform standards applicable to
all claimants.8 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.9 For decisions issued after May 1, 2009, the
sixth edition is used to calculate schedule awards.10 It is well established that in determining the
amount of a schedule award for a member of the body that sustained an employment-related
permanent impairment, preexisting impairments of the body are to be included.11
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).12 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition should be Class of Diagnosis (CDX), which is then adjusted by grade
modifiers based on Functional History (GMFH), Physical Examination (GMPE), and Clinical
Studies (GMCS).13 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS
- CDX).14
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides with the medical adviser
providing rationale for the percentage of impairment specified.15
ANALYSIS
The Board finds that appellant has not established greater than four percent left upper
extremity permanent impairment, for which she previously received combined schedule awards.
In support of her June 1, 2015 request for an additional schedule award appellant
submitted a report from Dr. Lopez, dated April 18, 2016. Dr. Lopez however explained that she
had four percent permanent impairment of the left upper extremity according to the sixth edition
of the A.M.A., Guides. OWCP forwarded Dr. Lopez’ report along with a SOAF to a DMA. The
8

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

9

Id.

10

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); see also Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6a
(February 2013).
11

See Dale B. Larson, 41 ECAB 481, 490 (1990); Id. at Chapter 3.700.3.a.3 (January 2010). This portion of
OWCP’s procedure provides that the impairment rating of a given scheduled member should include any preexisting
permanent impairment of the same member or function.
12

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
13

Id. at 383-419.

14

Id. at 411.

15

See supra note 10 at Chapter 2.808.6(f) (February 2013).

5

DMA carefully explained how Dr. Lopez’ findings should be rated using the diagnosis-based
impairment methodology. He rendered a rating of four percent permanent impairment for
appellant’s left upper extremity, based upon appellant’s accepted shoulder condition, largely
concurring with Dr. Lopez’ report except for the use of Table 15-2 in place of Table 15-23 in his
calculations for wrist impairment. The DMA’s impairment rating is in accordance with the
A.M.A., Guides (6th ed. 2009) and thus, represents the weight of the medical evidence with
respect to her entitlement to a schedule award under FECA.16
The Board finds that the DMA’s rating properly utilized the A.M.A., Guides and
represents the weight of medical opinion. The DMA explained his impairment rating
calculations with citations to the A.M.A., Guides, and explained why his rating of four percent
permanent impairment concurred with the rating of Dr. Lopez.17 Since the case was last before
the Board, appellant has not submitted any additional medical evidence indicating that she
currently has a greater impairment under the A.M.A., Guides. There are no contemporaneous
medical reports of record containing a permanent impairment rating greater than four percent.18
Therefore, the Board finds that appellant has no more than four percent permanent
impairment of her left upper extremity, for which she previously received a schedule award.
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 employmentrelated condition resulting in permanent impairment or increased impairment.
On appeal, appellant requests that her claim be expanded to include additional conditions.
The Board has jurisdiction only over final adverse decisions of OWCP, and OWCP has not
issued a final adverse decision over which the Board may exercise jurisdiction on the issue of
expansion of her claim to include the requested additional conditions.19
CONCLUSION
The Board finds that appellant has no more than four percent permanent impairment of
her left upper extremity, for which she previously received schedule awards.

16

See C.J., Docket No. 13-0342 (issued May 6, 2013).

17

See M.M., Docket No. 16-0388 (issued April 18, 2016).

18

Id.

19

See supra note 1.

6

ORDER
IT IS HEREBY ORDERED THAT the November 18, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 5, 2017
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


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
K.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Solen, OH, Employer
_________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0733
Issued: January 11, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 7, 2016 appellant, through counsel, filed a timely appeal from a January 29,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

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 OWCP properly reduced appellant’s compensation effective April 5,
2015 based on his capacity to earn wages in the constructed position of a heating, ventilating,
and air conditioning (HVAC) installer/servicer.
On appeal, appellant contends that he cannot work as an HVAC installer/servicer due to a
prior felony conviction and lack of experience.
FACTUAL HISTORY
On July 28, 2011 appellant, then a 46-year-old letter carrier (transitional employee), filed
a traumatic injury claim (Form CA-1) alleging that, while delivering mail that day, he tripped on
exposed roots and injured his left knee. OWCP accepted the claim for left knee sprain and
subsequently expanded accepted conditions to include left medial meniscus tear with repair
surgery and left knee chondromalacia. Appropriate treatment and compensation benefits were
authorized. Appellant worked in limited-duty capacity with restrictions until July 17, 2012,
when he was placed off work due to disciplinary reasons. He underwent left knee surgery on
September 6, 2012. Following surgery, OWCP retained appellant on the periodic compensation
rolls.
In an April 26, 2013 report, Dr. Bruce T. Cohn, a Board-certified orthopedic surgeon,
indicated that appellant was partially disabled as a result of the work injury. He noted that
appellant was in HVAC school. Dr. Cohn advised that appellant should remain on light duty and
gradually increase his walking for an additional hour each month and would be at full duty with
no restrictions on July 1, 2013.
Based on Dr. Cohn’s opinion, OWCP referred appellant for vocational rehabilitation
services.
On July 18, 2013 OWCP received a report from the vocational rehabilitation counselor.
In this report the counselor related that she had met with appellant on July 8, 2013. Employment
history included working as a Cleveland police officer from 1990 through 2000. He was
convicted of two class 1 felonies in 2000 and was incarcerated for three years. He had worked as
a car salesman from 2005 through 2010 and thereafter worked for the employing establishment
until September 3, 2012 when he was discharged. He has an associate of arts degree from
community college and a bachelor of art’s degree in public safety management where he
graduated in 2005. At the time of the July 18, 2013 meeting, appellant was attending HVAC
training at Fortis College and had received “As” in all of his classes to date.
The rehabilitation counselor discussed with appellant a possible referral to Towards
Employment, an agency that assisted felons with finding employment by contracting with local
employers who agreed to hire these individuals on a contractual basis. The counselor related that
he informed appellant that all employers now performed background checks and appellant might
find it a large barrier to employment. Appellant believed, however, that he did not feel that he
would have difficulty finding employment.

2

Following a vocational assessment and interview, the vocational rehabilitation specialist
identified the position of HVAC installer/servicer and furnace installer as being within
appellant’s age, experience, education, medical restrictions and a labor market survey. The
rehabilitation counselor noted that she would develop a plan retroactively for the HVAC training.
OWCP paid for appellant’s final quarter of training at Fortis College from March 11 to
November 16, 2013. Appellant was advised that, following his HVAC training after he
graduated on November 16, 2013, he would also receive 90 days of placement assistance. On
May 5, 2014 appellant’s placement assistance was extended and concluded on August 5, 2014.3
On February 5, 2014 Dr. Cohn indicated that appellant was at maximum medical
improvement. He also provided restrictions based on the letter carrier position.
As Dr. Cohn had not provided restrictions applicable to the targeted HVAC position,
OWCP referred appellant to Dr. William Bohl, a Board-certified orthopedic surgeon, for a
second opinion evaluation. In a September 25, 2014 report, Dr. Bohl noted that the history of
injury, reviewed appellant’s medical history and the statement of accepted facts, and presented
findings on examination. He reviewed the job descriptions for a furnace installer and HVAC
installer and indicated that appellant was capable of performing such jobs. In an October 27,
2014 supplemental report, Dr. Bohl stated that appellant’s main disabling condition was
chondromalacia. Since the job of furnace installer required more kneeling and crouching than
the job of HVAC installer, he opined that the job of HVAC installer would be more preferable
for appellant and less likely to cause problems in the long term.
On January 28, 2015 the vocational rehabilitation counselor performed updated market
analysis on the position of HVAC installer/servicer (DOT No. 637.261.014) and furnace installer
(DOT No. 862.361.010) and found those positions vocationally suitable and reasonably available
to appellant. The Department of Labor, Dictionary of Occupational Titles describes the position
of HVAC installer/servicer as “installs, services, and repairs environmental control systems in
residences, department stores, office buildings, and commercial establishments, utilizing
knowledge of refrigeration theory, pipefitting, and structural layout. Mounts compressor and
condenser units on platform or floor, using hand tools, following blueprints or engineering
specifications. Fabricates, assembles, and installs ductwork and chassis parts, using portable
metalworking tools and welding equipment.” The physical requirements of the HVAC
installer/servicer position are medium strength, which means able to exert force of 20 to 50
pounds occasionally, 10 to 25 pounds frequently, or up to 10 pounds constantly. Occasional
climbing, stooping, kneeling, crouching, reaching, handling and fingering are also involved. The
Specific Vocational Preparation (SVP) for the position of HVAC installer/servicer required an
SVP of 7, which requires two to four years education, training and/or experience.4

3

The record reflects that appellant worked as a pipefitter technician with Budzar Industries effective March 3,
2014 and changed jobs on March 17, 2014 to work as an HVAC technician with Arctic Air. Appellant was released
from Arctic Air because of lack of available work. As appellant had not completed a 60-day work status, the
rehabilitation specialist allowed him to go back into job search for another period of 90 days.
4

In addition to his college degree, appellant was noted to have completed HVAC training at Fortis College.

3

In a February 19, 2015 notice, OWCP advised appellant that it proposed to reduce his
compensation for wage loss because the medical and factual evidence of record established that
he was no longer totally disabled. It found that he had the physical and vocational capacity to
earn the wages of an HVAC installer/servicer, DOT No. 637.261.014 at the rate of $512.00 per
week. OWCP requested that appellant submit additional evidence or argument within 30 days if
he disagreed with the proposed action.
A March 9, 2015 treatment note from Dr. Cohn was received. Dr. Cohn noted that
appellant was self-employed. He did not provide an opinion regarding appellant’s ability to
perform the duties of an HVAC installer/servicer.
By decision dated April 1, 2015, OWCP reduced appellant’s compensation based on his
capacity to earn wages in the constructed position of HVAC installer/servicer. It found that the
evidence showed that he was vocationally and physically capable of working as an HVAC
installer/servicer and was capable of earning $512.00 per week.
On April 9, 2015 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative, which was held on November 13, 2015. Counsel contended that
while appellant was physically and vocationally able to perform the job of an HVAC
installer/servicer,5 he could not perform such position as his felony conviction had not been
erased from his record and neither he nor his employers could obtain bonding, as required by
insurance requirements, for appellant to perform HVAC services in private residences. Counsel
acknowledged that appellant had obtained employment with Ford Motor Company on October 5,
2015 and earned approximately $631.20 weekly, which is a higher salary than the HVAC
position. However, counsel continued to contend that appellant was entitled to temporary total
compensation until he started working with Ford Motor Company on October 5, 2015.
Appellant testified that, because of his felony conviction, he obtained a judgment entry from the
state to certify that he could work in HVAC, but nonetheless he could not get any of the jobs
because of his lack of experience.6 In a June 19, 2015 report, Dr. Cohn reported that appellant
was self-employed and found that appellant could perform light duty.
By decision dated January 29, 2016, an OWCP hearing representative found OWCP had
met its burden of proof to establish that the position of HVAC installer/servicer represented
appellant’s wage-earning capacity.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.7 An injured employee who is either unable to return to
5

Appellant testified that he had completed his course work for the HVAC certification. Counsel conceded that
appellant was vocationally trained for the position, but was lacking the experience necessary to be employable.
6

Appellant described the different positions which he had held and those for which he had applied. He indicated
that he worked for Arctic Air Conditioning for a little less than a month, but they let him go as he only had limited
experience.
7

H.N., Docket No. 09-1628 (issued August 19, 2010); T.F., 58 ECAB 128 (2006); Kelly Y. Simpson, 57 ECAB
197 (2005).

4

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 wageearning capacity.8
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual
wages received by an employee, if the earnings fairly and reasonably represent his or her wageearning 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 employment, the availability of
suitable employment and other factors and circumstances which may affect his or her wageearning capacity in his or her disabled condition.9 Additionally, the job selected for determining
wage-earning capacity must be a job reasonably available in the general labor market in the
commuting area in which the employee lives.10
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to an OWCP wage-earning capacity specialist for
selection of a position, listed in the Department of Labor, Dictionary of Occupational Titles or
otherwise available in the open market, that fit 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 labor market should be made through contact
with the state employment service or other applicable service.
Finally, application of the principles set forth in Albert C. Shadrick11 and codified by
regulations at 20 C.F.R. § 10.40312 should be applied. Subsection (d) of the regulations provide
that the employee’s wage-earning capacity in terms of percentage is obtained by dividing the
employee’s actual earnings or the pay rate of the position selected by OWCP, by the current pay
rate for the job held at the time of the injury.13
ANALYSIS
The Board finds that OWCP properly reduced appellant’s compensation benefits based
on his wage-earning capacity as an HVAC installer/servicer.
OWCP found in its April 1, 2015 decision, which a hearing representative affirmed on
January 29, 2016, that appellant had the capacity to earn wages as an HVAC installer/servicer.
8

20 C.F.R. §§ 10.402, 10.403.

9

5 U.S.C. § 8115(a); see N.J., 59 ECAB 171 (2007); T.O., 58 ECAB 377 (2007); Dorothy Lams, 47 ECAB
584 (1996).
10

Id.

11

5 ECAB 376 (1953).

12

20 C.F.R. § 10.403.

13

Id. at § 10.403(d).

5

It is the responsibility of OWCP to confirm that the claimant has the necessary vocational
ability to perform the requirements of the position.14 To determine wage-earning capacity,
OWCP relies upon its wage-earning capacity specialist for selection of an appropriate position.15
The Board finds that OWCP properly found that appellant had obtained the educational
and vocational background to perform the duties of an HVAC installer/servicer, which had been
identified by the rehabilitation counselor. The Department of Labor, Dictionary of Occupational
Titles identifies the SVP for the position as a level seven, requiring from two to four years of
education, training, and/or experience. This training may be acquired in a school, work, military,
institutional, or vocational environment.16 The rehabilitation counselor properly determined, and
counsel for appellant conceded, that appellant met the vocational requirements of two to four
years of education, training, and/or experience. In addition, it found that the position of HVAC
installer/servicer was reasonably available in his commuting area.
The physical requirements of the HVAC installer/servicer included the exertion of
physical force at medium strength, described as 20 to 50 pounds occasionally, 10 to 25 pounds
frequently, or up to 10 pounds constantly. The position also involved occasional climbing,
stooping, kneeling, crouching, reaching, handling, and fingering. Upon review of the physical
requirements, Dr. Bohl, the second opinion specialist, concluded that as appellant’s main
disabling condition was chondromalacia, the position of HVAC installer/servicer met his
physical requirements as it entailed less kneeling and crouching and would pose fewer problems
long term. The Board finds that the medical evidence establishes that the physical demands of
the position of HVAC installer/servicer were within appellant’s work restrictions as established
by Dr. Bohl.
OWCP considered the proper factors, such as availability of suitable employment and
appellant’s physical limitations, usual employment, age, and employment qualifications in
determining that the position of HVAC installer/servicer represented his wage-earning capacity.
The weight of the evidence in the record establishes that appellant had the requisite physical
ability, skill and experience to perform the position of HVAC installer/servicer and that such a
position was reasonably available within the general labor market of his commuting area. The
Board therefore finds that OWCP met its burden of proof to reduce appellant’s compensation
benefits based on his capacity to earn the wages of an HVAC installer/servicer.
Counsel argued that appellant’s felony conviction should have been considered when
determining whether positions would have been available. However, the Board notes that
appellant had already received a petition from the state to allow him to serve in the capacity of an

14

Robert W. Carlisle, Docket No. 97-1299 (issued December 3, 1998).

15

Id.

16

Kim C. Marr, Docket No. 00-1275 (issued March 27, 2002); see also J.S., Docket No. 08-2270 (issued
August 19, 2009).

6

HVAC installer/servicer, despite his felony, so that alone would not have been a bar to his
employment.17
CONCLUSION
The Board finds that OWCP met its burden of proof to reduce appellant’s compensation
benefits effective April 1, 2015 based on his capacity to earn wages in the constructed position of
HVAC installer/servicer.
ORDER
IT IS HEREBY ORDERED THAT the January 29, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 11, 2017
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

17

See James R. Verhine, 47 ECAB 460 (1996).

7


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

)
)
)
)
)
)
)
)

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

Docket No. 19-0933
Issued: October 1, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 27, 2019 appellant, through counsel, filed a timely appeal from a March 8, 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 review 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 her burden of proof to establish that the acceptance
of her claim should be expanded to include right hand osteoarthritis as a condition causally related
to her accepted January 18, 2014 employment injuries.
FACTUAL HISTORY
On January 25, 2014 appellant, then a 54-year-old lead sales service associate, filed a
traumatic injury claim (Form CA-1) alleging that on January 18, 2014 she sustained a contusion
and bruise on the back of her right hand when the weight of a spring loaded hamper shifted as she
lifted two trays out of the hamper and a tray hit her hand while in the performance of duty. She
stopped work on January 19, 2014.3
OWCP subsequently accepted the claim for contusion and other tenosynovitis of the right
wrist and hand; other specified forms of effusion except tuberculosis, hemorrhagic effusion, right;
and hemarthrosis and villonodular synovitis of the right hand. It paid appellant wage-loss
compensation benefits on the supplemental rolls as of March 13, 2014.
In letters dated June 25, 2018, appellant, through counsel, requested that the acceptance of
her claim be expanded to include osteoarthritis involving the first and second metacarpal and first
metacarpophalangeal joint. Counsel submitted a right hand magnetic resonance imaging (MRI)
scan report dated April 7, 2014 from Dr. Brian M. Fagan, a Board-certified diagnostic radiologist.
Dr. Fagan provided an impression of hemorrhagic fluid distending the tendon sheath of the third
extensor tendon at the level of the metacarpophalangeal joint. There was no hemorrhagic fluid in
the extensor tendon sheath of the fourth digit and in the flexor tendon sheath of the second digit.
Dr. Fagan also provided an impression of no evidence of disruption of flexor or extensor tendons.
The collateral ligaments at the metacarpophalangeal joints were intact and there was no evidence
of fracture. Dr. Fagan further provided an impression of osteoarthritis involving the first and
second metacarpal joints and first metacarpophalangeal joint.
Counsel also submitted progress notes dated February 24, March 10 and 20, 2014 from
Dr. Ronald A. Hickombottom, an internist. Dr. Hickombottom noted that appellant was seen for
a follow-up visit for a job-related injury with a diagnosis of right hand second and third metacarpal
joint contusion and second and third digit tenosynovitis. He reported physical examination
findings and provided impressions of right hand contusion, right hand second, third, and fourth
metacarpal joint tenderness, and right hand second and third digit tenosynovitis.
Dr. Hickombottom advised that appellant was unable to work until further evaluation.
Additionally, counsel submitted a request from Alan Chen Surgical Associates, P.C. for
surgery to treat appellant’s diagnoses of synovitis and tenosynovitis, unspecified, and osteoarthritis
and hemarthrosis of the right hand.

3
On November 4, 2015 the employing establishment informed OWCP that appellant had returned to full-duty work
on December 3, 2014.

2

On July 9, 2018 OWCP referred a statement of accepted facts (SOAF) and the medical
record, to Dr. Nathan Hammel, a Board-certified orthopedic surgeon serving as an OWCP district
medical adviser (DMA), to determine whether the acceptance of appellant’s claim should be
expanded to include right hand second and third digit tenosynovitis, and osteoarthritis involving
the first and second carpal metacarpal and first metacarpophalangeal joints, right hand.
In an August 1, 2018 medical report, Dr. Hammel noted that he had reviewed the SOAF
and medical record. He indicated that the requested upgrade of tenosynovitis was encompassed
by the previously accepted right hand tenosynovitis. Dr. Hammel further related that regarding
the claimed arthritis, the SOAF described mechanism of injury was incapable of producing this
condition. He recommended against the expansion of the acceptance of the claim. Dr. Hammel
concluded that there was no rationalized discussion presented for evaluation.
OWCP, in a letter dated August 2, 2018, requested that counsel review Dr. Hammel’s
August 1, 2018 report. In a response letter dated August 9, 2018, counsel requested that OWCP
issue a decision and appropriate appeal rights if it declined to expand the acceptance of appellant’s
claim to include arthritis.
By decision dated August 16, 2018, OWCP denied the expansion of the acceptance of
appellant’s claim to include the additional condition of right hand osteoarthritis.
On August 28, 2018 appellant, through counsel, requested a telephonic hearing with a
representative of OWCP’s Branch of Hearings and Review.
Counsel thereafter submitted additional medical evidence including a June 30, 2014
physicians order from Alan Chen Surgical Associates, P.C. The order noted appellant’s right hand
physical restriction and indicated that approval for right middle finger and ring finger metacarpal
joint exploration with hemarthrosis drainage, extensor tenosynovectcomy of the right index,
middle, ring, and small fingers, and right thumb A1 pulley release had been denied as not related
to a work injury.
In a surgery booking form dated April 15, 2014, Dr. Alan Chen, a Board-certified plastic
surgeon, noted that a right middle finger and ring finger metacarpal joint exploration with
hemarthrosis drainage, extensor tenosynovectcomy of the right index, middle, ring, and small
fingers, and right thumb A1 pulley release was planned. In a progress note dated June 30, 2014,
Dr. Chen indicated that appellant was seen for a follow-up visit status post her right hand surgery.
He discussed findings on physical examination. Dr. Chen diagnosed musculoskeletal and
connective tissue disorders, and synovitis, tenosynovitis, and trigger finger, acquired. He advised
that given appellant’s mechanism of injury, a 20-pound plate hitting her right dorsal hand/knuckles
causing immediate swelling and a large hematoma (up to “5x7 centimeters”) with evidence of
extensor and tenosynovitis with hemarthrosis of multiple joints to right hand and tendon sheaths,
she needed right hand extensor and flexor tenosynovectomy of the right index, middle and ring
fingers with right thumb Al pulley release, and hemarthrosis drainage of the right middle, and ring
finger metacarpals. Dr. Chen indicated that this should have been done more than two months
prior, but it had been denied by workers’ compensation. In a note dated December 8, 2014, he
reiterated his diagnoses of synovitis and tenosynovitis, unspecified, and diagnosed osteoarthritis,
localized, primary hand.

3

During a telephonic hearing, held on January 9, 2019, appellant testified that Dr. Chen
performed surgery on her right hand in September 2014 because blood was going into her joints
and tendons.
An OWCP hearing representative, by decision dated March 8, 2019, affirmed the
August 16, 2018 decision finding that the medical evidence of record did not contain a rationalized
opinion sufficient to support a causal relationship between appellant’s right hand osteoarthritis and
the accepted January 18, 2014 employment injury.
LEGAL PRECEDENT

When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury. 4 To establish causal relationship between the condition, as well
as any attendant disability claimed and the employment event or incident, the employee must
submit rationalized medical opinion evidence based on a complete factual and medical
background, supporting such a causal relationship. 5 The opinion of the physician must be based
on a complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the claimant. 6
The weight of medical evidence is determined by its reliability, its probative value, its convincing
quality, the care of analysis manifested, and the medical rationale expressed in support of the
physician’s opinion.7
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish that the
acceptance of her claim should be expanded to include right hand osteoarthritis as a condition
causally related to her accepted January 18, 2014 employment injuries.
In support of her claim, appellant submitted a progress note dated June 30, 2014 from
Dr. Chen. Dr. Chen diagnosed musculoskeletal and connective tissue disorders, and synovitis,
tenosynovitis, and trigger finger, acquired. He opined that based on appellant’s mechanism of
injury, surgery on her right hand was warranted. While Dr. Chen’s opinion is generally supportive
of causal relationship, he did not explain how appellant’s accepted conditions of contusion and
other tenosynovitis of the right wrist and hand; other specified forms of effusion except
tuberculosis, hemorrhagic effusion, right, and hemarthrosis and villonodular synovitis of the right

4

See T.F., Docket No. 17-0645 (issued August 15, 2018); Jaja K. Asaramo, 55 ECAB 200 (2004).

5

See S.A., Docket No. 18-0399 (issued October 16, 2018).

6

See P.M., Docket No. 18-0287 (issued October 11, 2018).

7

F.H., Docket No. 18-1238 (issued January 18, 2019).

4

hand caused the additional diagnosed conditions.8 Medical conclusions unsupported by rationale
are of diminished probative value and are insufficient to establish causal relation. 9 Dr. Chen’s
remaining note and surgery booking form addressed appellant’s right hand conditions and
requested surgery, but did not offer a medical opinion finding that the diagnosed conditions were
causally related to the accepted work injuries. Medical evidence which does not offer an opinion
regarding the cause of an employee’s condition is of no probative value on the issue of causal
relationship.10 For the foregoing reasons, the Board finds, that his reports are insufficient to
establish appellant’s burden of proof.
Similarly, Dr. Hickombottom’s February 24 and March 10 and 20, 2014 progress notes are
insufficient to establish appellant’s burden of proof. He provided impressions of right hand
contusion, right hand second, third, and fourth metacarpal joint tenderness, and right hand second
and third digit tenosynovitis. Dr. Hickombottom advised that appellant was unable to work until
further evaluation. He did not offer a medical opinion finding that the diagnosed conditions and
resultant disability were causally related to the accepted work injuries. 11 The Board finds,
therefore, that Dr. Hickombottom’s progress notes are insufficient to establish appellant’s burden
of proof.
Appellant also submitted Dr. Fagan’s April 7, 2014 diagnostic test report in support of her
claim. Diagnostic studies lack probative value as they do not address whether the employment
incident caused any of the diagnosed conditions. 12 This report, therefore, is also insufficient to
establish appellant’s claim.
OWCP referred appellant to the DMA, Dr. Hammel, for an opinion regarding whether the
acceptance of appellant’s claim should be expanded. Dr. Hammel found no additional
employment-related conditions and advised that the acceptance of appellant’s claim should not be
expanded. He explained that there was no need to upgrade the claim for tenosynovitis because
this condition was encompassed by the previously accepted right hand tenosynovitis. In addition,
Dr. Hammel explained that the mechanism of injury described in the SOAF was incapable of
producing the claimed arthritis. Moreover, he reasoned that there was no rationalized discussion
presented for evaluation.
The Board finds that appellant has not submitted sufficient rationalized medical evidence
to establish causal relationship between the accepted January 18, 2014 employment injuries and
the claimed additional conditions of right hand osteoarthritis. As such, appellant has not met her
burden of proof.

8

See S.O., Docket No. 19-0307 (issued June 18, 2019); S.J., Docket No. 16-0279 (issued April 20, 2016).

9

L.M., Docket No. 18-1514 (issued July 18, 2019).

10

See R.J., Docket No. 17-1365 (issued May 8, 2019).

11

See T.D., Docket No. 18-1157 (issued March 26, 2019).

12

See R.J., supra note 10; E.G., Docket No. 17-1955 (issued September 10, 2018).

5

On appeal counsel contends that OWCP’s March 8, 2019 decision is contrary to fact and
law. For the reasons set forth above, the Board finds that appellant has not met her burden of
proof.
Appellant may submit new evidence or argument with a written request for reconsideration,
to OWCP within one year of the Board’s 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 her burden of proof to establish that the
acceptance of her claim should be expanded to include right hand osteoarthritis as a condition
causally related to her accepted January 18, 2014 employment injuries.
ORDER
IT IS HEREBY ORDERED THAT the March 8, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: October 1, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6