United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Greenville, NC, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1954
Issued: June 5, 2017

Case Submitted on the Record

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

JURISDICTION
On September 25, 2015 appellant filed a timely appeal from an August 19, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 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 the claim.3
ISSUE
The issue is whether appellant established total disability for the period April 10 through
July 13, 2013 due to her accepted left carpal tunnel syndrome.
1

On her application for review (Form AB-1), appellant timely requested oral argument. By order dated
October 7, 2016, the Board denied the request as her arguments on appeal could be adequately addressed in a
decision based on a review of the case as submitted on the record. Order Denying Request for Oral Argument,
Docket No. 15-1954 (issued October 7, 2016).
2
3

5 U.S.C. § 8101 et seq.

The case record provided to the Board includes evidence received after OWCP issued its August 19, 2015
decision. The Board is precluded from considering evidence that was not in the record at the time OWCP rendered
its final decision. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On April 9, 2013 appellant then a 43-year-old rural letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that she had injured her left wrist “casing mail with [her] left hand.”
She indicated that she bent her wrist trying to hold mail and could not hold the mail with her left
hand. Appellant reportedly advised her supervisor that she could not do the job because her hand
was hurting. OWCP assigned File No. xxxxxx310 to the April 9, 2013 left wrist/hand traumatic
injury claim, which she filed on April 29, 2013. Appellant stopped work on April 9, 2013 and
resumed work on July 15, 2013.
In a May 7, 2013 statement, the employing establishment indicated that on April 9, 2013
appellant had returned to work in a limited-duty capacity as a result of a September 12, 2011
traumatic injury which had been accepted for right wrist sprain and right de Quervain’s
tenosynovitis (OWCP File No. xxxxxx920).4 According to the employing establishment,
appellant’s April 9, 2013 return to work lasted only a few minutes. Her limited-duty assignment
reportedly required appellant to case one piece of mail at a time using only her left hand. The
employing establishment indicated that before even attempting to case mail, appellant
complained to a coworker that she was unable to do the limited-duty assignment. Once she
began casing, appellant touched only three to four pieces of mail before she gathered her things
and left the premises. She reportedly left without notifying management of her alleged April 9,
2013 injury.
The medical evidence submitted with appellant’s April 29, 2013 Form CA-1 included an
April 26, 2013 follow-up treatment note and a narrative report from Dr. Christopher M. Barsanti,
a Board-certified orthopedic surgeon.5 Dr. Barsanti noted having previously treated appellant for
de Quervain’s and intersection syndrome of the right upper extremity. He further noted that
appellant had already undergone two right upper extremity surgical procedures, but continued to
have a significant amount of discomfort.6 Dr. Barsanti reported that appellant had an upcoming
appointment with a plastic surgeon regarding the right upper extremity, and also had left upper
extremity carpal tunnel syndrome.7 He indicated that appellant “tried to get back to work doing
her normal job and was having quite a bit of discomfort while at work.” Based upon appellant’s
history, Dr. Barsanti advised that she would not be able to do repetitive-type work in the near
future.
OWCP also received April 30, 2013 treatment notes from Dr. Peter P. Ganpat, a family
practitioner, who saw appellant for left wrist carpal tunnel syndrome. Appellant also underwent

4

As discussed infra, the complete case record under OWCP File No. xxxxxx920 is not part of the combined
record associated with the current claim, OWCP File No. xxxxxx861.
5

Dr. Barsanti is affiliated with Orthopaedics East & Sports Medicine Center.

6

Dr. Barsanti performed right wrist surgery on April 7 and October 18, 2012. Appellant had since developed scar
tissue at the surgical site, which was causing her a significant amount of discomfort.
7

In his April 26, 2013 follow-up treatment notes, Dr. Barsanti indicated that “[appellant] told me she also has
carpal tunnel in her left hand.”

2

a follow-up visit on May 14, 2013 for left wrist pain, at which time Dr. Geniene N. Jones, a
family practitioner, diagnosed, inter alia, bilateral carpal tunnel syndrome.
In a May 28, 2013 medical absence form report, Dr. Barsanti diagnosed “left wrist pain,”
and indicated “No work at this time.” He stated that the restrictions were necessary pending a
magnetic resonance imaging (MRI) scan. Dr. Barsanti further advised that appellant should
return for follow-up after obtaining the MRI scan.
A May 29, 2013 left wrist MRI scan revealed no evidence of mass lesion or ganglion
cyst.
In a May 31, 2013 medical absence form report, Dr. Barsanti advised that appellant could
not perform any work at that time due to her diagnosed “bilateral wrist” condition(s). The work
restriction was to remain in effect for six weeks.
On June 7, 2013 appellant advised OWCP that she wished to withdraw her April 29,
2013 Form CA-1. She further indicated that she was filing a recurrence claim (Form CA-2a)
under OWCP File No. xxxxxx920. Appellant alleged that the April 9, 2013 left wrist/hand
injury was a consequence of her September 12, 2011 employment-related right hand injury.
By letter dated June 10, 2013, OWCP granted appellant’s request to withdraw her alleged
April 9, 2013 left wrist/hand traumatic injury under File No. xxxxxx310.
On June 11, 2013 Dr. Brock J. Niceler, a family medicine and sports medicine specialist,
examined appellant for complaints of bilateral wrist pain. With respect to her left upper
extremity, Dr. Niceler noted that appellant had been using her left hand at work, and currently
had left-hand pain. He indicated that appellant’s left wrist showed signs and symptoms
consistent with carpal tunnel syndrome. Dr. Niceler ordered an electromyogram and nerve
conduction velocity study (EMG/NCV) to confirm his preliminary diagnosis. He did not
comment on appellant’s ability to work with respect to either her right or left upper extremity
complaints.
In a July 24, 2013 decision, OWCP denied appellant’s claim for recurrence and/or
consequential left hand/wrist injury under OWCP File No. xxxxxx920. After requesting a
hearing, by decision dated June 9, 2014, the Branch of Hearings and Review affirmed the denial,
noting that the circumstances suggested a new occupational disease claim rather than a claim for
recurrence of appellant’s September 12, 2011 right upper extremity injury. On April 21, 2014
appellant filed the current occupational disease claim, File No. xxxxxx861, which OWCP later
accepted on July 14, 2014 for left carpal tunnel syndrome, with an April 9, 2013 date of injury.8

8

Appellant also has an accepted occupational disease claim for right carpal tunnel syndrome (CTS), which arose
on or about February 10, 2014 (OWCP File No. xxxxxx120). Under File No. xxxxxx120, OWCP paid wage-loss
compensation for temporary total disability beginning April 5, 2014, and placed appellant on the periodic
compensation rolls effective August 24, 2014.

3

Appellant submitted a claim for compensation (Form CA-7) for the period April 10
through July 13, 2013.9
On September 9, 2014 OWCP combined/doubled the case records with respect to File
No. xxxxxx120 (right CTS), File No. xxxxxx310 (left wrist/hand traumatic injury -- withdrawn),
and File No. xxxxxx861 (left CTS).10 It did not include the record associated with appellant’s
September 12, 2011 injury (File No. xxxxxx920).
The medical evidence relevant to the claimed period of wage-loss compensation
beginning April 10, 2013 included the above-referenced evidence submitted under OWCP File
No. xxxxxx310, as well as the following additional treatment notes and reports.
In a May 28, 2013 report, Dr. Barsanti indicated that appellant had developed a problem
with her left wrist, most likely a volar mass, but noted that x-rays showed no evidence of
abnormality. He advised that he would schedule appellant for a left wrist MRI scan and would
reevaluate her.11
In his May 31, 2013 treatment notes, Dr. Barsanti indicated that appellant was seen that
day for follow-up and a recent diagnostic study showed no evidence of a left wrist mass. He
noted that appellant was currently out of work and advised that he did not think she was “going
to be able to go back and work in that capacity.” Dr. Barsanti planned to keep appellant out of
work while undergoing home therapy, and have her follow-up in six weeks.
In a June 28, 2013 report, Dr. Barsanti advised that he was going to attempt to return
appellant to work on a limited-duty basis with a three- to five-pound lifting restriction with both
hands. He opined that the overuse of appellant’s left hand due to the trouble she was having with
her right hand “exacerbates problems with her left hand.”
In a July 12, 2013 narrative report, Dr. Barsanti advised that he had been treating
appellant for right hand pain, which stemmed from her tenosynovitis, radial styloid condition.
He further noted that appellant called on April 9, 2013 and stated that her left wrist was hurting
and she was unable to finish her day at work. Dr. Barsanti indicated that he provided appellant a
medical absence note on April 9, 2013, which excused her from work until she could be further
evaluated. He eventually saw appellant on April 26, 2013 for follow-up of her right hand
condition, at which time she also reported having left wrist pain. Dr. Barsanti also noted there
was documentation from February 2012 of left thumb complaints consistent with trigger
thumb.12 He explained that the continued overuse of both hands, and specifically overuse of the
9

The employing establishment previously represented that appellant returned to work on July 15, 2013 (Form
CA-2). On the July 17, 2014 Form CA-7, the employing establishment verified that appellant was in leave without
pay (LWOP) status from April 10 through July 13, 2013, for a total of 536 hours.
10

OWCP designated File No. xxxxxx861 as the master file.

11

Dr. Barsanti also noted that appellant had recently been advised against undergoing further right wrist surgery.

12

On February 29, 2012 Dr. Barsanti saw appellant for follow-up with respect to her right upper extremity
condition. He also noted at the time that appellant complained of trouble with her left thumb, and that she had signs
and symptoms consistent with trigger thumb. Dr. Barsanti reported “he injected the left thumb today.”

4

left hand that day (April 9, 2013) while having problems with the right hand exacerbated
appellant’s problems with the left hand, causing her pain.
Dr. Barsanti also provided separate treatment notes and a medical absence form report,
both dated July 12, 2013. The follow-up treatment notes indicated that appellant seemed to be
doing about the same, and that she continued to have intermittent trouble with the left hand
where she had a trigger thumb and stenosing tenosynovitis. Dr. Barsanti noted that appellant
previously responded to an injection of that thumb, and he planned to reinject her that same day.
On physical examination, appellant’s left and right upper extremities were essentially
unchanged. Dr. Barsanti felt that appellant’s use of her left upper extremity in trying to get back
to work where she had limited use of her right upper extremity had gone on to more than likely
precipitate the trigger thumb problem. He was hopeful that the left thumb injection would help
resolve this problem.
The July 12, 2013 medical absence form report included a diagnosis of “wrist pain,” and
Dr. Barsanti noted that appellant could perform light duty with a lifting/carrying limit of three to
five pounds, five hours per day.
OWCP also received a July 24, 2013 report and treatment notes from Dr. Jason A. Foltz,
a family practitioner.13 Dr. Foltz advised that appellant had left carpal tunnel syndrome which
had been diagnosed on February 27, 2012. He also noted that appellant was currently being
treated at another facility, Orthopaedics East, for right hand pain (radial styloid
tenosynovitis/de Quervain’s, ICD-9 Code 727.04). Dr. Foltz reported that appellant stated she
had called Orthopaedics East on April 9, 2013 complaining that her left wrist was hurting, and
therefore, was unable to finish her day at work, and he noted that Orthopaedics East had
provided a work note taking her out of work until she could be further evaluated. He believed
that appellant’s work-related activities, which included turning wrists to get mail in cases,
carrying heavy bundles of mail, and sorting mail, affected her previous conditions. Dr. Foltz
reported that appellant demonstrated decreased strength in her wrists bilaterally with extension
and flexion, and decreased grip strength in her wrists bilaterally with extension and flexion.
Physical examination findings reflected decreased pincer strength in left wrist and findings
consistent with a carpal tunnel diagnosis. Dr. Foltz advised that repetitive-type work does
increase incidence of left wrist pain. He noted that appellant was using her left hand exclusively
at work, resulting in left-hand pain. Dr. Foltz noted that continued overuse of the left hand
would result in paresthesias and cramping in the palmar side. In conclusion, he advised that
continued overuse of both hands, specifically overuse of appellant’s left hand while having
problems with the right hand, exacerbated her left wrist problems and caused an increase in pain.
A July 25, 2013 EMG/NCV showed left greater than right bilateral median neuropathies
at the wrist, which clinically correlated with moderate-to-severe carpal tunnel syndrome.
By decision dated October 7, 2014, OWCP denied appellant’s claim for wage-loss
compensation beginning April 10, 2013. It found that she failed to submit sufficient medical
evidence to establish disability during the claimed period. OWCP also noted that a light/limitedduty assignment was available within appellant’s medical restrictions during the claimed period,
13

Alexis P. Goss, a certified physician assistant (PA-C), authored the report, which Dr. Foltz countersigned.

5

and appellant had not provided evidence to support her claimed inability to perform the
light/limited-duty assignment.
Appellant timely requested an oral hearing, which was held on July 2, 2015. During the
hearing she explained that for the claimed period -- April 10 through July 13, 2013 -- OWCP had
paid her wage-loss compensation for partial disability under OWCP File No. xxxxxx920 (right
de Quervain’s tenosynovitis), but that she was seeking compensation for the remaining hours
under the current claim (OWCP File No. xxxxxx861) due to her inability to work with her left
hand.
OWCP also received additional medical evidence following its October 7, 2014 decision,
which included reports and/or treatment notes from Dr. Barsanti dated August 15, October 6,
2014, and July 3, 2015.
In an August 15, 2014 report, Dr. Barsanti indicated that appellant complained of chronic
pain and swelling in her left wrist and on April 9, 2013 she was no longer able to do left-handed
work and was taken off work. He also noted that appellant had symptoms consistent with carpal
tunnel syndrome, which included numbness and paresthesia in the median nerve distribution.
Dr. Barsanti further indicated that appellant received several injections before returning to work
on July 15, 2013 at which time she was not allowed to lift more than five pounds. He also noted
August 27, 2013 EMG/NCV studies showed severe carpal tunnel syndrome. Dr. Barsanti
diagnosed left carpal tunnel syndrome and trigger thumb. He explained that carpal tunnel
syndrome was related to repetitive use of the hands on a continuous basis and noted that onehanded work was not an option. Dr. Barsanti also indicated that appellant was unable to work as
a rural carrier and was unable to use her left hand, and as of February 11, 2014 she had been
taken out of work indefinitely.
In his October 6, 2014 follow-up treatment notes, Dr. Barsanti explained that appellant
continued to have trouble with her trigger thumb on the left side, in addition to carpal tunnel
symptoms on the left side. He reported that she had received two injections for her trigger
thumb, but did not think another injection was needed. Dr. Barsanti advised that he had
discussed the option of carpal tunnel release and noted the possibility that appellant could
develop a keloid. He opined that her injuries were most likely job related “with overuse sort of
syndrome.”
On May 22, 2015 appellant underwent a left carpal tunnel release, which OWCP
authorized.14
In a July 3, 2015 report, Dr. Barsanti essentially reiterated his previous findings and
conclusions. He indicated that appellant was given a work excuse note for April 9, 2013.
Dr. Barsanti further noted that she developed an inability to work with the left hand from
April 10 through July 12, 2013 due to chronic pain as a result of left carpal tunnel syndrome. He
reported that appellant was released to return to work with restrictions effective July 13, 2013.

14

Dr. Jacob R. Bosley, a Board-certified orthopedic surgeon, performed the May 22, 2015 left endoscopic carpal
tunnel release.

6

Effective July 7, 2015, appellant’s surgeon released her to full duty with no “left upper
extremity” restrictions.
By decision dated August 19, 2015, the hearing representative affirmed OWCP’s
October 27, 2014 decision denying appellant’s claim for wage-loss compensation for the period
April 10 through July 13, 2013. She noted appellant’s bilateral upper extremity claims,
including her September 12, 2011 right upper extremity traumatic injury under claim number
OWCP File No. xxxxxx920 (de Quervain’s tenosynovitis). The hearing representative also
noted that appellant had filed an April 9, 2013 recurrence/consequential injury claim under
OWCP File No. xxxxxx920, which OWCP had previously denied. As to the current
occupational disease claim, which OWCP had accepted for left carpal tunnel syndrome (OWCP
File No. xxxxxx861), the hearing representative found that appellant had not established
disability for the claimed period because the medical evidence of record failed to establish why
she was unable to perform her three-hour left-handed, limited-duty assignment on or after
April 9, 2013. The hearing representative also noted that in several of his reports Dr. Barsanti
noted complaints of left wrist pain, but the hearing representative indicated that “findings of pain
alone” were not compensable.
LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including that an injury was sustained in the performance of duty as alleged and that any specific
condition or disability claimed is causally related to the employment injury.15
Disability means “the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury.”16 Disability may be partial or total.17 The
question of whether an employee is disabled for work is an issue that must be resolved by
competent medical evidence.18 The employee is responsible for providing sufficient medical
evidence to justify payment of any compensation sought.19

15

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is a
medical question that generally requires rationalized medical opinion evidence to resolve the issue. See Robert G.
Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between the
diagnosed condition and the implicated employment factor(s) must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical rationale,
explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment
factor(s). Id.
16

20 C.F.R. § 10.5(f).

17

Id.

18

See R.C., 59 ECAB 546, 551 (2008).

19

20 C.F.R. § 10.501(a).

7

Certain healthcare providers such as physician assistants, nurse practitioners, physical
therapists, and social workers are not considered “physician[s]” as defined under FECA.20
Consequently, their medical findings and/or opinions will not suffice for purposes of establishing
entitlement to FECA benefits.21
ANALYSIS
OWCP accepted the current occupational disease claim, File No. xxxxxx861, for left
carpal tunnel syndrome, with an April 9, 2013 date of injury. Appellant seeks wage-loss
compensation for partial disability (three hours/day) for the period April 10 through
July 13, 2013. According to the employing establishment, appellant returned to work on April 9,
2013 in a part-time, limited-duty capacity. The employing establishment represented that the
assignment required use of the left hand only, and had been designed to accommodate
appellant’s right upper extremity limitations due de Quervain’s tenosynovitis, which OWCP
accepted under File No. xxxxxx920. The record indicates that appellant reported for duty on
April 9, 2013, but left soon after she had arrived. Appellant claimed that her employment-related
left carpal tunnel syndrome precluded her from performing the part-time, left-hand-only
assignment. The employing establishment indicated that before she even attempted to case mail,
appellant complained to a coworker that she was unable to do the job, and once she began
casing, appellant touched only three to four pieces of mail before she gathered her belongings
and left the premises. As of July 15, 2013, appellant resumed work in a part-time (five
hours/day), limited-duty capacity.22
For the claimed period April 10 through July 13, 2013, the Board finds that appellant did
not met her burden of proof to establish that she was disabled for work due to her accepted left
carpal tunnel syndrome.
Dr. Barsanti reported that appellant called on April 9, 2013 and stated that her left wrist
was hurting and she was unable to finish her day at work. He also indicated that appellant
received a medical absence note on April 9, 2013 excusing her from work until she could be
further evaluated. Dr. Barsanti did not examine appellant until more than two weeks later. As
such, the record is devoid of any contemporaneous physical examination findings and/or
diagnostic evidence that would support appellant’s claimed disability for the period April 10
through April 25, 2013. The referenced April 9, 2013 medical absence note is not in the

20

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

21

K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006). A report from a
physician assistant or certified nurse practitioner will be considered medical evidence if countersigned by a qualified
physician. Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1)
(January 2013).
22

Dr. Barsanti’s July 12, 2013 medical absence form report noted that appellant could perform light duty with a
lifting/carrying limit of three to five pounds, five hours per day.

8

record.23 Appellant’s self-certification of her inability to work due to left hand/wrist complaints
beginning April 9, 2013 will not suffice.24
When Dr. Barsanti eventually examined appellant on April 26, 2013, he noted that in
addition to her right upper extremity condition, she also had left upper extremity carpal tunnel
syndrome. Appellant reportedly told him that she had carpal tunnel in her left hand.
Additionally, Dr. Barsanti indicated that appellant “tried to get back to work doing her normal
job and was having quite a bit of discomfort while at work.” He appears to have been
misinformed about the type of work appellant was doing on April 9, 2013. The record does not
support Dr. Barsanti’s representation that appellant tried to get back to work “doing her normal
job.” His April 26, 2013 medical records made no mention of appellant having worked just a
few minutes of her scheduled three-hour left-hand-only limited-duty assignment. Dr. Barsanti
also failed to explain why he excused appellant from all work for the next two-month period. A
physician’s opinion should be based on a complete factual and medical background, and should
also include medical rationale supporting his/her conclusion(s).25
On April 30, 2013 Dr. Ganpat diagnosed left carpal tunnel syndrome, and on May 14,
2013 Dr. Jones diagnosed bilateral carpal tunnel syndrome. However, neither physician
indicated what, if any, work restrictions appellant had with respect to her left upper extremity.
Accordingly, their respective reports are insufficient to establish entitlement to wage-loss
compensation for the claimed period due to appellant’s accepted left carpal tunnel syndrome.
On May 28, 2013 appellant returned for a follow-up visit with Dr. Barsanti. He
continued to keep her off work pending the results of a left wrist MRI scan. Appellant’s May 29,
2013 left wrist MRI scan revealed no evidence of mass lesion or ganglion cyst. When she
returned to see Dr. Barsanti on May 31, 2013, he advised that appellant could not perform any
work at the time due to her diagnosed “bilateral wrist” condition(s). Appellant was to remain off
work for at least six weeks. However, Dr. Barsanti failed to explain or elaborate as to why
appellant was unable to work given that her recent left upper extremity x-ray and MRI scan both
revealed no abnormalities. In the absence of rationale to support his conclusion, Dr. Barsanti’s
May 28 and 31, 2013 disability assessments are of limited probative value.26
Dr. Niceler examined appellant on June 11, 2013 and noted that she had been using her
left hand at work, and currently had left-hand pain. Appellant’s left wrist showed signs and
symptoms consistent with carpal tunnel syndrome. Dr. Niceler ordered an EMG/NCV to
confirm his preliminary diagnosis. He did not specifically comment on appellant’s ability to
work. Therefore, Dr. Niceler’s June 11, 2013 report is of limited probative value with respect to
appellant’s entitlement to wage-loss compensation for the claimed period.

23

See supra notes 20 and 21.

24

20 C.F.R. § 10.501(a); see R.C., supra note 18.

25

See Victor J. Woodhams, supra note 15.

26

Id.

9

In a June 28, 2013 follow-up report, Dr. Barsanti advised that he was going to try to
return appellant to work on a limited-duty basis with a three- to five-pound lifting restriction
with both hands. He thought that overuse of appellant’s left hand due to the trouble she was
having with her right hand “exacerbates problems with her left hand.” Again, Dr. Barsanti
offered no explanation of how appellant’s relatively brief work exposure on April 9, 2013
constituted “overuse” that ostensibly exacerbated her left hand problems, thereby precluding her
from all work for an approximate three-month period. It is apparent that Dr. Barsanti relied on
an inaccurate and/or incomplete factual background, which undermines the probative value of
his opinion.27 While Dr. Barsanti released appellant to return to work on June 28, 2013, she did
not resume work for another 17 days.
Dr. Barsanti reexamined appellant on July 12, 2013. On physical examination,
appellant’s left and right upper extremities were essentially unchanged. Dr. Barsanti noted that
appellant could work part-time (five hours/day), light duty with a lifting/carrying limit of three to
five pounds. With respect to the claimed period of disability, he indicated that she called on
April 9, 2013 and stated that her left wrist was hurting and she was unable to finish her day at
work. Appellant received a medical absence note on April 9, 2013 that excused her from work
until she could be evaluated, which occurred on April 26, 2013. When Dr. Barsanti examined
her on April 26, 2013, appellant reported having left wrist pain. He also noted there was a prior
history of left thumb complaints that dated back to February 2012. Dr. Barsanti explained that
the continued overuse of both hands, and specifically overuse of the left hand that day (April 9,
2013) while having problems with the right hand exacerbated appellant’s problems with the left
hand, causing her pain. Dr. Barsanti’s repeated reference to left hand “overuse” on April 9, 2013
is inconsistent with the evidence of record, which demonstrated that appellant worked only a few
minutes casing mail with her left hand before curtailing what would have been a three-hour,
limited-duty shift. The continued reliance upon an inaccurate factual background undermines
Dr. Barsanti’s opinion.28
As noted, appellant returned to work as of July 15, 2013. However, Dr. Barsanti had
released her to return to work on June 28, 2013. There is no apparent explanation for the more
than two-week delay in resuming work.
Dr. Foltz, a family practitioner, examined appellant on July 24, 2013, after she had
already returned to work. He advised that appellant had left carpal tunnel syndrome, which was
diagnosed on February 27, 2012. Dr. Foltz also noted appellant’s treatment at Orthopaedics East
for her right hand (radial styloid tenosynovitis/de Quervain’s), and her recent left wrist/hand
complaints beginning April 9, 2013. He described appellant’s work-related activities, which
included turning wrists to get mail in cases, carrying heavy bundles of mail, and sorting mail,
affected the previously listed conditions. Dr. Foltz advised that repetitive-type work increased
the incidence of left wrist pain. He further advised that appellant was noted to be using her left
hand exclusively at work resulting in left-hand pain. Dr. Foltz noted that continued overuse of
the left hand would result in paresthesias and cramping in the palmar side. In conclusion, he
advised that continued overuse of both hands, specifically overuse of appellant’s left hand while
27

Id.

28

Id.

10

having problems with the right hand, exacerbated her left wrist problems and caused an increase
in pain.
Dr. Foltz did not specifically address whether appellant’s left carpal tunnel syndrome
disabled her from all work during the claimed period April 10 through July 13, 2013. As such,
his opinion is not particularly probative with respect to the issue on appeal. Moreover, like
Dr. Barsanti, Dr. Foltz’s reference to “overuse” strongly suggests that he was unaware of the
very brief and limited activity appellant engaged in before she stopped work on April 9, 2013.
In an August 15, 2014 report, Dr. Barsanti indicated that appellant complained of chronic
pain and swelling in her left wrist and on April 9, 2013 she was no longer able to do left-handed
work and was taken off work. He also noted that appellant had symptoms consistent with carpal
tunnel syndrome, which included numbness and paresthesia in the median nerve distribution.
Dr. Barsanti further indicated that appellant received several injections before returning to work
on July 15, 2013, at which time she was not allowed to lift more than five pounds. He diagnosed
left carpal tunnel syndrome and trigger thumb. Dr. Barsanti explained that carpal tunnel
syndrome was related to repetitive use of the hands on a continuous basis and noted that onehanded work was not an option. He also indicated that appellant was unable to work as a rural
carrier and was unable to use her left hand, and as of February 11, 2014 she had been taken out
of work indefinitely.
In a July 3, 2015 report, Dr. Barsanti reiterated his previous findings and conclusions. He
noted that appellant developed an inability to work with the left hand from April 10 through
July 12, 2013 due to chronic pain as a result of left carpal tunnel syndrome. Dr. Barsanti
reported that appellant was released to return to work with restrictions effective July 13, 2013.
In his August 15, 2014 and July 3, 2015 reports, Dr. Barsanti indicated that appellant was
unable to work with her left hand for the period April 10 through July 13, 2013. As previously
indicated, Dr. Barsanti did not examine appellant until April 26, 2013, and has not provided any
evidence, apart from appellant’s own representations, that she was disabled for work dating back
to her April 9, 2013 work stoppage. Moreover, Dr. Barsanti initially released appellant to return
to work on June 28, 2013, which contradicts his more recent statement that she was disabled
through July 13, 2013. With respect to appellant’s disability during the interim period April 26
through June 28, 2013, Dr. Barsanti has not provided an explanation for why her left carpal
tunnel syndrome precluded all work, and particularly why one-handed work was no longer an
option. A physician’s opinion that lacks adequate rationale is insufficient to establish entitlement
to FECA benefits.29
Based on the foregoing analysis, the Board finds that the medical evidence of record fails
to establish that appellant was disabled during the claimed period due to her accepted left carpal
tunnel syndrome. Accordingly, she is not entitled to an additional three hours of compensation
per day for the period April 10 through July 13, 2013.

29

Id.

11

CONCLUSION
The Board finds that for the period April 10 through July 13, 2013, appellant failed to
establish entitlement to wage-loss compensation for partial disability due to her accepted left
carpal tunnel syndrome.
ORDER
IT IS HEREBY ORDERED THAT the August 19, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 5, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.J., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL CORRECTIONAL
INSTITUTE, Fairton, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 09-982
Issued: January 6, 2010

Case Submitted on the Record

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

JURISDICTION
On March 3, 2009 appellant, through counsel, filed a timely appeal from the merit
decisions of the Office of Workers’ Compensation Programs dated March 3 and November 5,
2008 denying appellant’s claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board
has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant’s claimed injury of December 16, 2007 was caused by his
willful misconduct.
On appeal, appellant’s attorney contends that appellant established that he sustained an
injury in the course of employment. Counsel argues that the altercation had its origin with
regard to work issues and that appellant was fulfilling the duties of his assignment when the
altercation occurred. He contended that the affirmative defense of willful misconduct cannot
remove appellant from the performance of duty. Counsel further contends that the correctional
guard position by its very nature creates a hostile environment and that disputes between guards
and inmates as well as among guards are common.

FACTUAL HISTORY
On December 19, 2007 appellant, then a 46-year-old correctional officer, filed a
traumatic injury claim alleging that on December 16, 2007 he had an argument with another
officer who pushed him and began hitting him on the head with a flashlight. He indicated that he
sustained cuts on his head.
The employing establishment controverted the claim on the grounds that appellant caused
the injury by his willful misconduct. It further contended that, at the time of his injury, he was
not performing assigned duties and the injury was not in relation to his work. Specifically, the
employing establishment, through Lieutenant (Lt.) Nolan, alleged that appellant’s “antagonistic,
aggressive, combative and hostile actions towards other staff directly resulted in his being
injured.” He contended that, although the actions of the other staff were inappropriate and
excessive, appellant instigated the situation and became the victim of circumstances that he was
ultimately responsible for creating. Specifically, Lt. Nolan indicated that appellant physically
initiated contact with his alleged assailant by grabbing and punching the staff member
responsible for his injury. He stated that it was this action that led to appellant being struck in
the head with a flashlight. Lt. Nolan concluded that, although both officers were at fault,
appellant’s behavior prior to being injured was the primary factor for assigning blame.
By letter dated January 15, 2008, the Office asked appellant to submit further information
and to answer a series of questions. In a response signed January 24, 2008, appellant submitted a
more detailed description of the incident. He alleged that on December 16, 2007 at 3:55 a.m., he
had a verbal argument with Officer Snyder in the lieutenant’s office at which time
Officer Snyder used profanity, racial references and called him names. Appellant then indicated
that they moved outside the office at which time Officer Snyder pushed him into the door of the
lieutenant’s office causing a minor injury to his left elbow. He alleged that at that time he
grabbed the door to pull it closed and Officer Snyder jerked the door from his hand and pushed
him into the door. However, appellant indicated that he managed to get the door closed and
locked. He continued that Officer White, a good friend of Officer Snyder, began arguing with
him and grabbed his flashlight and shoved him and began hitting him over the head several times
with enough force that caused him to need nine staples to his head. Appellant noted that blood
was pouring into his eyes from the lacerations and he staggered out of the office to get away
from Officer White. He alleged that the altercation was not personal but arose from the fact that
Officer White brought up a work incident that happened over a year ago and was under
investigation in the prison. When asked what other activities he was engaged in prior to the
injury, appellant noted that at 9:30 p.m. on December 15, 2007 he arrived at the institution. He
made a list for the officers to sign up for duties that night. Appellant indicated that at that time
he had a few cross words with Officer Washington. He noted that from 10:30 p.m. to 3:45 a.m.
he conducted counts, turned in count slips, conducted the institutional fire and security check and
conducted the area shake downs. Appellant noted that at 3:45 a.m. he went to the lieutenant’s
office to get a cup of coffee.
The Office also sent a letter on January 15, 2008 to the employing establishment
requesting further information. In a response dated February 29, 2008, Peter D. Lawrie, the
Occupational Safety and Environmental Health Manager for the employing establishment, noted
that this case was still under active investigation by the Office of Internal Affairs but that he was
presenting a summary that was the result of various summaries and excerpts provided by the
2

correctional officers on what transpired on the night of December 15, 2007 and the early
morning of December 16, 2007. He noted that, on this shift, appellant was required to report to
work at 10:15 p.m. the evening of December 1, 2007 and work until 6:15 a.m. the following
morning. Appellant was supervised by Lt. Pagan until 12:00 a.m. and then by Lt. Nolan until
6:15 a.m. He stated that there was an altercation between him and Officer Washington that
transpired at approximately 10:10 p.m. while Lt. Pagan was conducting his briefing. Appellant
allegedly began walking away and making comments to the other officers such as, “You guys are
all lazy. I do all the work around here. Why do you need him to tell us what needs to be done
when I’m making a list of what you need to do.” Lt. Pagan indicated that he gave appellant
verbal counseling at the beginning of his shift. Specifically, he stated that he told appellant to
keep his comments to himself at which point appellant indicated that he would. Lt. Pagan also
wrote that, in addition to this incident, approximately one hour later while he was speaking on
the telephone he overheard appellant use profanity and insult Officer Washington by calling him
lazy. The report indicated that Officer Washington commented that appellant did not know what
he was talking about and, if he had a problem, he could speak to the lieutenants or the captain.
At that point, Lt. Pagan hung up the telephone and advised, “Knock it off [appellant] … you are
stepping way over the line.” He spoke with appellant who indicated that he was just “fooling
around.” Lt. Pagan made it clear to appellant that this was unacceptable behavior and not to do
this to anyone else and appellant agreed. He asked appellant if he wanted to go home but
appellant declined. Lt. Pagan also reported that he spoke with Lt. Washington about the
incident, and that, although he seemed upset, he mentioned that he would stay way from
appellant. The employing establishment noted that Lt. Pagan’s statement of the events was
supported by the statements of Officers Washington and Snyder. Mr. Lawrie continued that later
that night, between 3:15 a.m. and 3:45 a.m., another incident escalated resulting in appellant’s
injury. He mentioned that six correctional officers were in the lieutenant’s office when an
altercation transpired. Mr. Lawrie indicated that he reviewed the memoranda prepared by
Lt. Nolan and the two responding officers, Harkcom and Washington. He noted that several
officers stated that, as the officers were preparing to eat, appellant made a profane comment to
Officer Bartholomew. Officer Snyder walked into the office, heard the comment, and stated
“Why don’t you stop bullying Bart.” Mr. Lawrie indicated that, according to several accounts,
appellant started berating Officer Snyder and called him various names and used obscenities.
Officer Snyder responded that appellant was a bully and did not bother him. Appellant
responded with a religiously insensitive comment and the confrontation escalated. At one point,
appellant locked Officer Snyder outside at which point Officer White walked up to appellant and
asked for the keys to let Officer Snyder inside. Mr. Lawrie indicated that appellant stated that he
was the only one with keys and was not letting him in. Appellant then started harassing
Officer White, who stated “I’m not Impellizzari,1 I’m not one for you to push around.” At this
point appellant pushed his chest into Officer White’s chest. Officer White tried pushing him
away with both hands, then appellant struck Officer White in the head with his right hand. Both
started wrestling and Officer White struck appellant in the head with a 12-inch flashlight. The
other officers intervened and one of them summoned help on his hand-held radio.
Officers Washington and Harkcom and Lt. Nolan responded to the call and appellant was taken
to the hospital. Mr. Lawrie concluded by saying that six eyewitnesses supported that appellant
acted outside of his employment and was not performing official duties at the time of the injury.
He noted that it was the position of the agency that appellant precipitated the injury by verbal
1

Impellizzari is a reference to a previous altercation involving appellant that was under investigation.

3

abuse of staff members. Mr. Lawrie noted that a criminal investigation into this matter was
continuing.
By decision dated March 3, 2008, the Office denied appellant’s claim, finding that the
evidence did not establish that appellant sustained an injury while in the performance of duty. It
found the evidence supports that the cause of appellant’s injury was his own misconduct because
he had continued verbally abusing his coworkers despite his supervisor’s verbal warnings, and
that this conduct removed him from the performance of duty.
By letter dated March 7, 2008, appellant, through his attorney, requested a hearing. At
the hearing held on July 15, 2008, appellant noted that he first started employment with the
employing establishment on June 14, 1992 as a correctional officer. He discussed his prior
injuries on the job. Appellant then discussed the job. He indicated that, on that shift, as had
been his past practice, he made a list of all of the officers on the shift that night and they would
sign the list regarding duties. Appellant noted that the institution was on lock down for an
incident that happened earlier that week. He noted that he asked Officer Washington what he
wanted to do that night and he stated that he wanted to be left alone and that this led to a brief
verbal altercation, after which appellant did counts and a fire and security check. Appellant
testified that at about 3:45 a.m. he went to the office for coffee and that when Officer Snyder
came in he looked at appellant and called him a “punk” and that when he asked why
Officer Snyder stated it was because appellant called him a profane name, which appellant
denied. He noted that Officer Snyder continued with name calling. Appellant indicated that
Officer Snyder, a Muslim, got upset when appellant stated that he was going home and eat pork
sandwiches. He testified that at that point he went outside the office with Officer Snyder at
which point Office Snyder shoved him through the door. Appellant indicated that he quickly
grabbed the door and jumped back inside and pulled the door closed and locked it to keep
Officer Snyder from getting to him. At that point he indicated that Officer White demanded his
keys but appellant responded that he wanted Officer Snyder to cool down. Appellant testified
that Officer White looked at him, and made various profane comments. He noted that the
argument got hot and heavy and involved a lot of name calling and cussing, that Officer White
grabbed the flashlight and shoved appellant back and hit appellant with the flashlight. Appellant
indicated that he started bleeding and could not see anything and that Officer White hit him a
few more times. He indicated that he grabbed the flashlight out of Officer White’s hand and
staggered to the front door. Appellant noted that Officers Washington and Harkcom told him to
put the light down and then they started trying to stop appellant’s bleeding. He did note that
Lt. Pagan told him to be quiet earlier that night and he agreed.
By decision dated November 5, 2008, the hearing representative affirmed the Office’s
March 3, 2008 decision.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of duty, unless
the injury is caused by willful misconduct of the employee.2 Willful misconduct is generally
regarded as deliberate conduct involving premeditation, obstinacy or intentional wrongdoing
2

5 U.S.C. § 8102(a)(1).

4

with the knowledge that it is likely to result in serious injury, or conduct that is in wanton or
reckless disregard of probable injurious consequences.3
An allegation of willful misconduct is in the nature of an affirmative defense. The
adjudicating agency has the burden, if it makes such an allegation, to prove that there was willful
misconduct and that such misconduct caused the injury. If the adjudicator believes that the
evidence in the case record justifies a finding of the injury being caused by willful misconduct of
the claimant, he or she has the responsibility of making such a finding in the original
adjudication of the case.4
ANALYSIS
The Board has carefully considered the accounts of what happened on the shift from
December 15 through 16, 2007 and finds that the weight of the evidence supports a finding of
willful misconduct. Appellant’s attorney makes various arguments to the effect that appellant
was in the performance of duty when he was injured. However, the Board has held that willful
misconduct is a statutory exclusion to coverage. Accordingly, even if appellant sustained an
injury in the performance of duty, there is no coverage under the Act if the injury was caused by
appellant’s willful misconduct.5
This case can be distinguished from other cases where the Board rejected the argument
that a claimant’s actions amounted to willful misconduct which removed him from the
performance of duty. In Barry Himmelstein, claimant was injured in a physical altercation that
started after appellant shoved a hamper at another employee.6 In that case, the Board rejected the
argument raised by the employing establishment that appellant’s claim be denied due to willful
misconduct. However, the reason the Board rejected this argument was because the Office did
not invoke an affirmative defense in initial adjudication of the claim. In the instant case, the
Office received notification that the employing establishment was claiming willful misconduct
on the part of appellant one week after the claim was filed and the case was adjudicated with the
willful misconduct defense at the forefront. In Allan B. Moses, this Board found that, as the
Office did not invoke the affirmative defense of willful misconduct in the original adjudications
of the claim, it was precluded from doing so on reconsideration.7 In Janet D. Yates, an
emotional condition claim, appellant was involved in a dispute with a coworker over a piece of
mail. In Yates, the other party was the first to use profanity and appellant responded in kind.
The Board found that appellant’s behavior did not amount to willful misconduct but rather was
an angry reaction to her coworker’s response. The Board noted that her actions did not
constitute willful misconduct but rather were a spontaneous reaction or impulse rather than any
deliberate behavior.8 However, appellant’s actions in this case were deliberate as he had been
3

J.S., 60 ECAB ____ (Docket No. 08-1654, issued February 2, 2009); Abraham Finkelstein, 4 ECAB 130
n.8 (1951).
4

Paul Raymond Kuyoth, 27 ECAB 498, 505 (1976), reaff’d on recon, 27 ECAB 253 (1976).

5

J.S, supra note 3.

6

42 ECAB 423 (1991).

7

42 ECAB 575 (1991).

8

49 ECAB 240 (1997).

5

abusing his coworkers for the entire shift. Furthermore, in this case, he instigated the altercation
by his behavior, and his behavior was generally much more aggressive than that of the claimant
in Yates.
Appellant’s behavior in the instant case is more in line with the Board’s cases that find
that a claimant’s willful misconduct barred the claim. In J.S., the Board found that the
claimant’s claim was barred by willful misconduct because her injuries occurred when she
refused to cooperate with a police officer from the employing establishment. In that case, she
was injured while trying to shut the door on the police officer who was investigating her for a
security violation.9 In Theodore Karntslais, an argument ensued in the men’s room between the
claimant and another employee with regard to some missing office equipment. A fight ensued in
which the evidence indicated that the claimant was the aggressor. The Board found that, based
on the reliable evidence, the claimant’s conduct of starting a fight that was likely to have
injurious consequences removed him from the performance of duty and made the injury not
compensable under the Act.10 In Soo F. Dong, the claimant had a dispute with the security
guards when she failed to submit proper identification upon entering the building. The accounts
of eyewitnesses describe how she began to strike at the security guards, even with a shoe, in
resistance to their requests. The Board found that the claimant’s willful misconduct removed her
from the performance of duty and affirmed the denial of benefits.11
In the instant case, the employing establishment invoked the affirmative defense of
“willful misconduct.” The Board finds that appellant’s actions established wanton or reckless
disregard of probable injurious consequences.12 The weight of the evidence establishes that
appellant was the aggressor in the altercation that took place on December 16, 2007. The
evidence establishes that appellant had been making abusive comments to several of his
colleagues for the entire shift. In fact, appellant’s superior warned him that his behavior was not
acceptable. Immediately prior to his injury, appellant got into a fight with Officer Snyder
followed by an intense verbal confrontation with Officer Washington. In the altercation with
Officer White, appellant was the first to resort in physical contact. Pursuant to the credible
evidence submitted by the employing establishment, appellant pushed his chest into
Officer White’s chest. Appellant’s attorney argues that the nature of appellant’s job as a
corrections officer created a hostile environment. However, it was not the nature of appellant’s
employment that was cause of the incident but rather his persistent misbehavior and wanton
disregard for the consequences of his actions.
The Board finds that appellant engaged in willful misconduct not only in his actions
immediately prior to the fight but in his persistent conduct throughout the day. Appellant
ignored a warning from his superior and continued to badger his colleagues with insults,
insensitive religious comments and profanity. He attempted to instigate a fight with
Officer Snyder and antagonized Officer Washington with abusive comments, profanity and
insensitive comments with regard to his religion. According to the statement submitted by the
9

J.S., supra note 3.

10

49 ECAB 603 (1998).

11

47 ECAB 800 (1996).

12

J.S., supra note 3.

6

employing establishment, appellant shoved Officer White and the altercation escalated to the
point where Officer White hit appellant with the flashlight. His general conduct and instigation
of a fight that was likely to have injurious consequences removed him from the performance of
duty. Hence, appellant’s injury is not compensable under the Act.
CONCLUSION
The Board finds that appellant’s claimed injury of December 16, 2007 was caused by his
willful misconduct.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated November 5 and March 3, 2008 are affirmed.
Issued: January 6, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


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

)
)
)
)
)
)
)
)

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

Docket No. 17-1484
Issued: October 27, 2017

Case Submitted on the Record

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

JURISDICTION
On June 20, 2017 appellant filed a timely appeal from a January 18, 2017 merit decision
and a March 10, 2017 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish permanent
impairment due to the accepted right thumb laceration; and (2) whether OWCP properly denied
appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
On appeal appellant asserts that she continues to have thumb impairments.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 24, 2015 appellant, then a 47-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that she cut her thumb when pulling on a mail container that day. OWCP
accepted a right thumb laceration. Appellant returned to light-duty work on August 27, 2015,
and was performing full-time, full-duty work by September 23, 2015.
Dr. Richard L. Manzo, Board-certified in orthopedics and surgery of the hand, began
treating appellant in October 2015 for the thumb laceration. He described the employment injury
and noted appellant’s complaint of intermittent, aching pain made worse by attempted right
thumb flexion. Dr. Manzo indicated that an October 5, 2015 x-ray showed mild interphalangeal
joint space narrowing, but no bony injury. Following physical examination, he diagnosed
hypertrophic scar, contracture of the right thumb, and status post crush injury of the right thumb.
Dr. Manzo continued to treat appellant. On August 29, 2016 he noted that appellant had not
been seen since February, and that she denied pain with routine activities. Right thumb
examination demonstrated a well-healed laceration that was mildly hypertrophic, but not
sensitive to palpation. Thumb interphalangeal range of motion was 30 of hyperextension to 40
of flexion. Dr. Manzo diagnosed status post right thumb crush injury with laceration and
interphalangeal joint extension contracture. He advised that, in accordance with Table 16-1 and
Figure 16-12 of the fifth edition of the American Medical Association, Guides to the Evaluation
of Permanent Impairment (hereinafter A.M.A., Guides),2 appellant had three percent permanent
right thumb impairment, or one percent permanent impairment of the right hand.
On October 11, 2016 appellant filed a claim for a schedule award (Form CA-7). In
November 2016, OWCP referred appellant to Dr. Balazs B. Somogyi, a Board-certified
orthopedic surgeon, for a second opinion evaluation and impairment rating. In a December 24,
2016 report, Dr. Somogyi described the history of injury and noted his review of the medical
record and appellant’s complaint of range of motion (ROM) limitation of the right thumb and
occasional pain and awkwardness with writing and using the thumb. He advised that appellant’s
ROM was comparable to the left thumb with no limitations, indicating that the only objective
finding was a well-healed “hockey-stick” type scar over the dorsoradial aspect of the
interphalangeal joint of the right thumb. Dr. Somogyi concluded that, under the sixth edition of
the A.M.A., Guides,3 appellant had no ratable impairment, with December 24, 2016 the date of
maximum medical improvement.
By decision dated January 18, 2017, OWCP denied appellant’s claim for a schedule
award finding that the weight of the medical evidence rested with the opinion of Dr. Somogyi.
On February 13, 2017 appellant requested reconsideration. She asserted that she had
difficulty writing for long periods and right thumb ROM impairments.
In a nonmerit decision dated March 10, 2017, OWCP denied the reconsideration request,
noting that the evidence submitted was insufficient to warrant merit review.
2

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

3

Id. (6th ed. 2009).

2

LEGAL PRECEDENT -- ISSUE 1
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.4 Section 8107
of FECA sets forth the number of weeks of compensation to be paid for the permanent loss of
use of specified members, functions, and organs of the body.5 FECA, however, does not specify
the manner by which the percentage loss of a member, function, or organ shall be determined.
To ensure consistent results and equal justice under the law, good administrative practice
requires the use of uniform standards applicable to all claimants. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.6
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).7 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.8
ANALYSIS -- ISSUE 1
The merit issue in this appeal is whether appellant established entitlement to a schedule
award for the accepted right thumb laceration.
The Board finds that this case is not in posture for decision.
Appellant’s treating physician Dr. Manzo reported on August 29, 2016 that she had three
percent permanent impairment of the right thumb. He referenced the fifth edition of the A.M.A.,
Guides rather than the sixth edition. Dr. Manzo, however, also reported that appellant had
interphalangeal joint extension contracture, noting right thumb ROM was 30 of hyperextension
4

See 20 C.F.R. §§ 1.1-1.4.

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

6

5 U.S.C.

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

7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
8

Isidoro Rivera, 12 ECAB 348 (1961).

3

to 40 of flexion. Dr. Somogyi, an OWCP referral physician, reviewed the record and concluded
that appellant had no right thumb impairment under the sixth edition of the A.M.A., Guides.
Dr. Somogyi did not reference a specific table or provide specific right thumb ROM
measurements, other than to indicate that appellant had no limitation.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation had been followed regarding the proper use of the diagnosis-based
impairment (DBI) or the ROM methodology when assessing the extent of permanent impairment
for schedule award purposes.9 The purpose of the use of uniform standards is to ensure
consistent results and to ensure equal justice under the law to all claimants.10 In T.H., the Board
concluded that OWCP physicians were at odds over the proper methodology for rating upper
extremity impairment, having observed that attending physicians, evaluating physicians, second
opinion physicians, impartial medical examiners, and district medical advisers use both DBI and
ROM methodologies interchangeably without any consistent basis. Furthermore, the Board
observed that physicians have interchangeably cited to language in the first printing or the
second printing when justifying use of either ROM or DBI methodology. Because OWCP’s own
physicians were inconsistent in the application of the A.M.A., Guides, the Board found that
OWCP could no longer ensure consistent results and equal justice under the law for all
claimants.11
In order to ensure consistent result and equal justice under the law for cases involving
upper extremity impairment, the Board will set aside the January 18, 2017 decision. Utilizing a
consistent method for calculating permanent impairment for upper extremities applied uniformly,
and after such other development as may be deemed necessary, OWCP shall issue a de novo
decision on appellant’s claim for an upper extremity schedule award.12
In light of the Board’s disposition regarding Issue 1, Issue 2 is rendered moot.
CONCLUSION
The Board finds this case is not in posture for decision.

9

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

10

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

11

T.H., supra note 9.

12

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

4

ORDER
IT IS HEREBY ORDERED THAT the March 10 and January 18, 2017 decisions of the
Office of Workers’ Compensation Programs are set aside, and the case is remanded for further
action consistent with this decision.
Issued: October 27, 2017
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.P., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
Staten Island , NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Thomas S. Harkins, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0024
Issued: September 1, 2020

Case Submitted on the Record

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

JURISDICTION
On October 2, 2019 appellant, through counsel, filed a timely appeal from an April 16,
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 over the merits of this case.
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective September 28, 2018, as she no longer had
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.

residuals or disability causally related to her accepted employment conditions; and (2) whether
appellant has met her burden of proof to establish continuing employment-related disability or
residuals, on or after September 28, 2018, due to the accepted employment conditions.
FACTUAL HISTORY
On June 16, 2003 appellant, then a 42-year-old claims examiner, filed a traumatic injury
claim (Form CA-1) alleging that on June 12, 2003 she sustained injuries to her head, cheek, lip,
wrist, neck, shoulder, and knee when she tripped after her sandal caught in a rug, struck her head
against a file cabinet, and fell to the floor while in the performance of duty. OWCP accepted the
claim for cervical sprain, left wrist sprain, and right knee contusion. By decision dated
February 18, 2004, it accepted appellant’s claim for a recurrence of disability commencing
January 6, 2004. OWCP paid her wage-loss compensation on the supplemental rolls commencing
August 27, 2003 and later on the periodic rolls commencing May 16, 2004.
Over time, appellant continued to receive medical treatment from several attending
physicians, including Dr. Jack D’Angelo, a physician specializing in physical medicine and
rehabilitation, Dr. Richard A. Bova, a chiropractor, Dr. Christopher M. Perez, a Board-certified
physiatrist, Ilana Reich, Ph.D., a clinical psychologist, and Dr. Ernest B. Visconti, Board-certified
in infectious disease.
In a May 16, 2018 report, Dr. Reich noted appellant’s June 12, 2003 history of injury and
provided an update regarding appellant’s medical status. She opined that appellant was totally and
permanently disabled due to anxiety and depression, as well as appellant’s physical conditions.
Dr. Visconti noted in a May 17, 2018 attending physician’s report (Form CA-20), that
appellant had a history of arthritis with parovirus, as well as neck, wrist, and knee injuries, with an
injury date of June 12, 2003. He also noted a diagnosis of auto immune disease and opined that
she remained totally disabled due to these conditions. Dr. Visconti, in a work capacity evaluation
form (Form OWCP-5c) of even date, indicated that appellant was unable to return to work.
Dr. Visconti, in a May 19, 2018 report, noted that he had treated appellant since
December 17, 2003 and that she had employment-related chronic parovirus. He noted that she
also sustained neck, knee, and back injuries from a fall at work.
On June 13, 2018 OWCP referred appellant, a statement of accepted facts (SOAF),3 and
the medical record, to Dr. Andrew Farber, an osteopathic physician Board-certified in orthopedic
surgery, for a second opinion evaluation to determine whether she continued to have disability or
residuals from her accepted June 12, 2003 employment injury.
In a July 9, 2018 report, Dr. Farber reviewed the medical record and the SOAF. He noted
that OWCP had accepted the claim for right knee contusion, cervical sprain, and left wrist sprain.
On examination Dr. Farber noted mild lower cervical paraspinal tenderness, no bilateral knee
tenderness, negative bilateral Lachman’s test, and negative bilateral McMurray’s tests. He also
3
In the SOAF, OWCP noted that it had accepted the condition of parovirus in an occupational disease claim under
OWCP File No. xxxxxx784, which had been administratively closed due to lack of activity.

2

provided goniometric measurements for range of motion. In response to OWCP’s question
regarding diagnoses due to the accepted June 12, 2003 employment injury, Dr. Farber opined that
“appellant is suffering from cervical sprain, right knee contusion, and left wrist sprain.” He
concluded that the accepted conditions of cervical sprain and right knee contusion had resolved
and that the left wrist sprain “seems to have resolved.” Dr. Farber indicated that appellant was
able to return to work as a claims representative with no restrictions.
By notice dated August 22, 2018, OWCP advised appellant that it proposed to terminate
her wage-loss compensation and medical benefits based on Dr. Farber’s opinion that the accepted
conditions had ceased without residuals. It afforded her 30 days to submit additional evidence.
In a September 6, 2018 report, Dr. Visconti diagnosed parvovirus and severe bilateral
shoulder and knees arthritic pain and occasional finger joint severe arthritic pain.
By decision dated September 28, 2018, OWCP terminated appellant’s wage-loss
compensation and medical benefits effective that day, finding that Dr. Farber’s report was entitled
to the weight of the medical evidence.
On January 17, 2019 appellant, through counsel, requested reconsideration and asserted
that OWCP had improperly terminated appellant’s wage-loss compensation and medical benefits
based upon Dr. Farber’s opinion. Counsel also noted that OWCP had accepted an occupational
disease claim with an August 31, 2003 date of injury for parovirus.
By decision dated April 16, 2019, OWCP denied modification of the September 28, 2018
termination decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.4 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment. Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.5
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.6 To terminate authorization for medical treatment, OWCP

4

S.R., Docket No. 19-1229 (issued May 15, 2020); D.G., Docket No. 19-1259 (issued January 29, 2020); R.P.,
Docket No. 17-1133 (issued January 18, 2018); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB
824 (2003).
5

S.R., id.; K.W., Docket No. 19-1224 (issued November 15, 2019); see M.C., Docket No. 18-1374 (issued April 23,
2019); Del K. Rykert, 40 ECAB 284, 295-96 (1988).
6
S.R., id.; A.G., Docket No. 19-0220 (issued August 1, 2019); A.P., Docket No. 08-1822 (issued August 5, 2009);
T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005); Furman G. Peake, 41 ECAB 361, 364 (1990).

3

must establish that appellant no longer has residuals of an employment-related condition which
require further medical treatment.7
ANALYSIS -- ISSUE 1
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits effective September 28, 2018.
OWCP terminated appellant’s wage-loss compensation and medical benefits based on the
July 9, 2018 report of Dr. Farber, an OWCP second-opinion physician. Dr. Farber reviewed her
history of injury and noted that her claim was accepted for right knee contusion, cervical sprain,
and left wrist sprain. Upon examination of appellant’s cervical spine, he observed mild lower
cervical paraspinal tenderness. Dr. Farber also noted no bilateral knee tenderness, negative
bilateral Lachman’s test, and negative bilateral McMurray’s tests. He opined that “appellant is
suffering from cervical sprain, right knee contusion, and left wrist sprain” but he also concluded
that the accepted cervical sprain and right knee conditions had resolved, and that her left wrist
strain condition “seems to have resolved.”
The Board finds that Dr. Farber’s opinion was internally inconsistent, as he concluded that
“appellant is suffering from” the accepted employment-related conditions, and conclusory in
nature in that the left wrist strain “seems to have resolved.” Dr. Farber did not provide an opinion
with sufficient medical reasoning to establish that appellant no longer had residuals or disability
due to her accepted June 12, 2003 employment injury.8 Once OWCP undertook development of
the record it was required to complete development of the record by procuring medical evidence
that would resolve the relevant issue(s) in the case.9 As it did not request that Dr. Farber clarify
his report, the Board finds that OWCP erred in relying on his opinion as the basis to terminate
appellant’s wage-loss compensation. The Board therefore finds that OWCP has not met its burden
of proof.10
CONCLUSION
The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective September 28, 2018.11

7

S.R., id.; K.W., supra note 5; see A.G., id.; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB
727 (2002); Furman G. Peake, id.
8
See R.K., Docket No. 19-1980 (issued May 7, 2020); J.W., Docket No. 19-1014 (issued October 24, 2019); S.B.,
Docket No. 18-0700 (issued January 9, 2019); S.W., Docket No. 18-0005 (issued May 24, 2018).
9

See J.F., Docket No. 17-1716 (issued March 1, 2018).

10

Id.

11

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

4

ORDER
IT IS HEREBY ORDERED THAT the April 16, 2019 decision of the Office of Workers’
Compensation Programs is reversed.
Issued: September 1, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5