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

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

Docket No. 13-1155
Issued: September 16, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 12, 2013 appellant filed a timely appeal from a February 8, 2013 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 the case.
ISSUE
The issue is whether appellant has more than 17 percent impairment of her right leg for
which she received a schedule award.
FACTUAL HISTORY
On February 10, 2006 appellant, then a 47-year-old city carrier, injured her low back
when she was pulling a file cabinet down steps at work. OWCP accepted the claim for neck
1

5 U.S.C. §§ 8101-8193.

sprain, contusion of the face, scalp and neck and sprain of the back and lumbar region. It
authorized surgery.
On January 23, 2008 appellant underwent an L4-5 decompressive laminectomy with
bilateral foraminotomies and bilateral discectomies by Dr. Barry Pollard, a Board-certified
neurosurgeon.
She stopped work on February 11, 2006 and returned to work on
February 13, 2006. In reports dated February 12 to August 13, 2008, Dr. Pollard noted that
appellant did extremely well after the fusion surgery but noted some persistent numbness in the
right foot and leg.
A January 23, 2008 electromyogram (EMG) revealed stable
neurophysiological functioning with no electrodiagnostic evidence of spinal cord, nerve root,
lumbosacral plexus or peripheral nerve injury.
On June 26, 2012 appellant filed a claim for a schedule award. She submitted an
April 25, 2012 EMG which showed evidence of chronic right L5 radiculopathy with evidence of
reinnervation. A May 11, 2012 report from Dr. John Hughes, an osteopath, noted a stooped gait,
restricted range of motion of the lumbar spine and no spinal deformity. He stated that appellant
had no “clear-cut” neurological abnormalities but persistent numbness in her right leg and
shooting symptoms. Dr. Hughes diagnosed status postoperative lumbosacral fusion at L4-5 and
L5-S1. He opined that under the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides)2 appellant had 30 percent whole
person impairment based on the lumbar spine regional grid, page 570.
In a July 14, 2012 report, Dr. R. Meador, an OWCP medical adviser, noted that
Dr. Hughes’ May 11, 2012 report used the lumbar spine regional grid to rate 30 percent whole
person impairment. He noted that FECA did not permit schedule awards for impairment of the
spine but that a spine condition may be considered for impairment only if it results in impairment
to an extremity. The medical adviser further noted that an award may not be made for whole
person impairment. He noted that the spinal nerve injury could be rated using the
July/August 2009 “The Guides Newsletter.” Dr. Meador recommended that OWCP refer
appellant to another physician for an impairment rating.
On September 13, 2012 OWCP referred appellant to Dr. Shawn Smith, a Board-certified
orthopedic surgeon, to determine if she had any permanent impairment. In a September 25, 2012
report, Dr. Smith reviewed the records provided and examined appellant. He noted findings of
mild sensory deficits at L4 and S1, moderate sensory deficits at L5, weakness with dorsiflexion
and planter flexion of the right lower extremity, 4/5 strength in the right leg, positive straight leg
raises at 90 degrees on the right, limited flexion, extension and lateral bending in the lumbar
spine, reflexes were decreased at the ankles bilaterally, knee flexion on the left is 5/5 and 4/5 on
the right and quad strength was 4/5 on the right and 5/5 on the left. Dr. Smith diagnosed L4-5
sensory and motor deficits in the right lower extremity following spinal nerve impairment, right
S1 sensory motor deficits and L4-5 disc disease with radiculopathy with residual symptoms. He

2

A.M.A., Guides (6th ed. 2008).

2

advised that OWCP recognized only extremity impairment resulting from spinal nerve root
deficit as published in The Guides Newsletter July/August 2009.3
Dr. Smith utilized Table 2, Spinal Nerve Impairment, Lower Extremity found in The
Guides Newsletter. In rating the L4 injury, appellant had a class 1 mild sensory impairment for
one percent default impairment of the right leg. Dr. Smith noted a functional history grade
modifier of one, clinical studies grade modifier of two which resulted in a net adjustment score
of +1 for a grade D value of two percent impairment of the right leg. For the L5 injury, appellant
had a class 1 moderate sensory impairment for three percent default impairment of the right leg.
Dr. Smith noted a grade modifier for functional history of one, a grade modifier for clinical
studies of two for a net grade modifier adjustment score of +1 for a grade D value of four percent
impairment. For motor deficit for the L5 injury, appellant had a class 1 mild motor deficit for
five percent default impairment of the right leg. Dr. Smith noted grade modifier for functional
history of one, a grade modifier for clinical studies of two for a net grade modifier adjustment
score of +1 for a grade D value of seven percent impairment of the right leg. For the S1 injury,
appellant had a class 1 mild sensory impairment for one percent default impairment. Dr. Smith
noted a grade modifier for functional history of one and a grade modifier of two for clinical
studies for a net grade modifier adjustment score of +1 for a grade of D which also yielded one
percent impairment for the right leg. For motor deficit due to the S1 injury, appellant had a
class 1 mild motor impairment for three percent default impairment. Dr. Smith noted a grade
modifier for functional history of one and a grade modifier for clinical studies of two for a net
grade modifier adjustment score of +1 for a grade D that yielded four percent impairment of the
right leg. He opined that combining the sensory impairment for all three levels resulted in 7
percent sensory impairment and 11 percent motor impairment for 18 percent right leg
impairment.
In an October 15, 2012 report, Dr. H. Mobley, an OWCP medical adviser, reviewed the
medical evidence. He opined that appellant reached maximum medical improvement on
September 25, 2012. Using Dr. Smith’s examination findings, the medical adviser applied The
Guides Newsletter July/August 2009, using Table 2, Spinal Nerve Impairment, Lower Extremity.
He noted that Dr. Smith found right L4, L5 and S1 motor and sensory deficits from
radiculopathies, right leg numbness and weakness and strength was 4/5 on the right lower
extremity. Dr. Mobley concurred in Dr. Smith’s findings,4 but noted that he incorrectly
combined the values. He noted that appellant had a 17 percent impairment of the right lower
extremity. Appellant had 2 percent impairment for L4 sensory deficit, 11 percent for the L5
sensory and motor deficit (4 percent impairment for L5 sensory deficit and 7 percent impairment
for L5 motor deficit) and a 5 percent impairment for S1 sensory and motor deficit (1 percent
impairment for S1 sensory deficit and 4 percent impairment for S1 motor impairment) for a
combined total impairment of 17 percent for the right leg.

3

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
4

In addressing grade modifiers, the medical adviser explained that a physical examination modifier was excluded
because it was used to define the impairment.

3

In a decision dated February 8, 2013, OWCP granted appellant a schedule award for 17
percent impairment of the right leg. The period of the award was from September 25, 2012 to
September 2, 2013.
LEGAL PRECEDENT
Section 8107 of FECA5 and its implementing federal regulations,6 set forth the number of
weeks of compensation payable to employees sustaining permanent impairment from loss or loss
of use, of scheduled members or functions of the body. However, FECA does not specify the
manner in which the percentage of loss shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, OWCP has adopted the A.M.A., Guides as the
uniform standard applicable to all claimants.7 For decisions issued beginning May 1, 2009, the
sixth edition of the A.M.A., Guides will be used.8
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.9 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.10
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
alternative approach to rating spinal nerve impairments.11 OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures which memorializes proposed tables outlined in the
July/August 2009 The Guides Newsletter.12
In addressing lower extremity impairments, due to peripheral or spinal nerve root
involvement, the sixth edition requires identifying the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on Functional History
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

FECA Bulletin No. 09-03 (issued March 15, 2009).

9

Pamela J. Darling, 49 ECAB 286 (1998).

10

Thomas J. Engelhart, 50 ECAB 319 (1999).

11

Rozella L. Skinner, 37 ECAB 398 (1986).

12

See supra note 3.

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(GMFH) and if electrodiagnostic testing were done, Clinical Studies (GMCS).13
adjustment formula is (GMFH - CDX) + (GMCS - CDX).14

The net

ANALYSIS
Appellant’s claim was accepted by OWCP for neck sprain, contusion of the face, scalp
and neck and sprain of the back and lumbar region. OWCP authorized surgery and on
January 23, 2008 she underwent an L4 and L5 decompressive laminectomy, bilateral
foraminotomies and bilateral discectomies. On June 26, 2012 appellant filed a claim for a
schedule award. The Board finds that the medical evidence of record establishes 17 percent
impairment to her right lower extremity. The Board finds that the weight of the medical
evidence rests with the opinion of the medical adviser’s interpretation of Dr. Smith’s physical
findings.
Appellant initially submitted a May 11, 2012 report from Dr. Hughes who rated 30
percent whole person impairment; however, FECA does not authorize schedule awards for
permanent impairment of the whole person or the spine.15 As Dr. Hughes did not otherwise
address whether she sustained permanent impairment of a lower extremity due to her work
injury, his report is insufficient to establish permanent impairment of a scheduled body member.
OWCP referred appellant for a second opinion to Dr. Smith who properly noted that
spinal nerve lower extremity impairments to the extremities were to be rated as provided in the
July/August 2009 The Guides Newsletter. Dr. Smith used the proposed Table 2.16 In rating the
L4 injury, as explained, he determined that appellant had a mild sensory impairment which, after
applying grade modifiers, resulted in two percent impairment of the right lower extremity. For
the L5 injury, appellant had a moderate sensory impairment which merited four percent
impairment. The L5 injury also involved a mild motor deficit which warranted seven percent
impairment of the right leg. For the S1 injury, appellant had mild sensory impairment for one
percent impairment. For the S1 motor deficit, Dr. Smith explained that she had a class 1 mild
motor impairment which warranted four percent impairment of the right lower extremity.
OWCP’s medical adviser, in his October 15, 2012 report, concurred with these findings of
Dr. Smith who opined that using the Combined Values Chart on page 604 of the A.M.A.,
Guides, appellant had 18 percent right leg impairment. However, as properly explained by
OWCP’s medical adviser, the 11 percent impairment due to motor deficit must be combined with

13

Supra note 2 at 533.

14

Id. at 521.

15

N.D., 59 ECAB 344 (2008).

16

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).

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the 7 percent impairment due to sensory deficit.17 Using the Combined Values Chart, it yielded
17 percent for the right lower extremity.18
The Board finds that Dr. Mobley properly reviewed the medical record and evaluated
appellant’s right lower extremity impairment in accordance with OWCP procedures found at
Exhibit 4 of section 3.700. There is no medical evidence in conformance with the A.M.A.,
Guides showing a greater impairment. The Board finds that, as the medical adviser properly
applied the A.M.A., Guides to Dr. Smith’s clinical findings, his opinion represents the weight of
the medical evidence in this case.19
On appeal appellant argues that she is entitled to a greater schedule. As explained, the
sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating spinal
nerve injuries as extremity impairment as was the case in prior editions. Instead, OWCP
procedures provide that such lower extremity impairments are to be rated as provided in
Exhibit 4 of section 3.700 of OWCP’s procedures. This identifies proposed Table 2 of the
July/August 2009 The Guides Newsletter, which is to be used in rating lower extremity
impairments caused by spinal nerve injury.20 Dr. Smith examined appellant and explained how
he determined lower extremity impairment at each affected level. OWCP’s medical adviser
concurred in Dr. Smith’s findings and noted that the motor and sensory deficits must be
combined. There is no medical evidence in conformance with the A.M.A., Guides or The Guides
Newsletter showing a greater impairment.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than 17 percent impairment of the right lower
extremity for which she received a schedule award.

17

See id. at page 3 of Exhibit 4.

18

See A.M.A., Guides 604.

19

See Bobby L. Jackson, 40 ECAB 593, 601 (1989).

20

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).

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ORDER
IT IS HEREBY ORDERED THAT the February 8, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 16, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Sam Houston, TX, Employer
__________________________________________

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

Docket No. 09-2250
Issued: June 4, 2010

Case Submitted on the Record

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

JURISDICTION
On September 8, 2009 appellant filed a timely appeal from October 10, 2008 and
March 6, 2009 merit decisions of the Office of Workers’ Compensation Programs denying his
claim for compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of the case.
ISSUE
The issue is whether appellant established that he sustained a back injury causally related
to the August 1, 2006 employment incident or any other employment factors.
FACTUAL HISTORY
On July 14, 2008 appellant, then a 39-year-old lead police officer, filed an occupational
disease claim (Form CA-2) alleging that he sustained an on-the-job lower lumbar injury on
August 1, 2006, which was subsequently aggravated by wearing his required uniform including
an accoutrement belt and body armor. The employing establishment noted that appellant was on
administrative leave pending a decision regarding a disciplinary action.

By letter dated July 16, 2008, the Office notified appellant of the deficiencies in his claim
and requested additional factual and medical evidence.
On June 26, 2008 Dr. Robert Pinter, a medical officer and Board-certified internist,
provided work restrictions through July 10, 2008.
In June 20 and 30, 2008 reports, Dr. Edmundo O. Garcia, Board-certified in family
medicine, diagnosed lumbar radiculopathy. He recommended that, due to the caustic
circumstances of wearing body armor and an accoutrement belt, appellant be removed from his
current law enforcement duties and be reassigned to a position with a lower impact to the back.
Dr. Garcia stated that appellant’s change should be permanent as his symptoms were
progressively worsening due to a depreciating injury in August 2006.
On July 8, 2008 Dr. Christopher D. Medellin, a medical officer Board-certified in
occupational medicine, provided work restrictions effective until July 29, 2008.
In an August 1, 2008 statement, appellant stated that in August 2006 he was instructed by
his supervisor to move a four-by-seven metal wall locker from the second floor down to the first
floor. He was offered no assistance and attempted to move the locker with a dolly. While
transporting the locker downstairs, the locker fell on appellant’s lumbar back. The incident was
witnessed by Wayne Blanco-Cerda. Due to a pending administrative investigation, appellant
feared management reprisal and did not file an injury report. On May 9, 2007 he was assigned to
the patrol section. Appellant began to experience signs of lower back aggravation by the body
armor and duty belt that he was required to wear as part of his uniform. He contended that he
believed this aggravation was related to the alleged August 2006 injury as he did not experience
any prior complications while wearing the uniform.
By decision dated October 10, 2008, the Office denied appellant’s claim on the grounds
that there was insufficient evidence to establish that an injury occurred on August 1, 2006 or that
a work injury existed in connection with the identified factors.
In an October 30, 2008 statement, Mr. Blanco-Cerda reported that sometime during
August 2006 he observed a large, metal wall locker collapse on appellant while he was trying to
transport the locker with a dolly but no safety harness or assistance from other personnel.
In an October 30, 2008 report, Dr. Garcia diagnosed lumbar radiculopathy. He stated
that, during August 2006, he examined appellant for a lumbar injury sustained at work.
Dr. Garcia periodically treated appellant with medication from 2006 through 2008. He reported
that appellant was diagnosed with lumbar radiculopathy in 2008 and that the condition was
believed to have occurred as a result of the work-related injury sustained in August 2006.
Dr. Garcia stated that appellant’s symptoms were progressively worsening. He recommended
that, due to the initial on-the-job injury and the caustic circumstances of his occupation, appellant
seek a lower impact position.
In November 1, 2008 and January 9, 2009 statements, appellant contended that he was
filing a claim for the August 1, 2006 injury, as well as the exacerbation of the injury due to
wearing body armor and the accoutrement belt. He stated that he experienced constant pain after
the August 2006 injury and was treated with medication. During the course of his administrative
2

duty, from May 2006 through May 2007, appellant endured this pain because his occupational
responsibilities were limited. However, his condition worsened when he was placed back on full
status duty. Appellant stated that he did not initially file a claim due to a fear of termination. He
noted that he was terminated on September 13, 2008.
On November 13, 2008 appellant filed a request for a review of the written record by an
Office hearing representative.
By decision dated March 6, 2009, the Office hearing representative affirmed the
October 10, 2008 decision, as modified, finding that appellant identified the employment factors
which caused his condition and that the evidence supported that the August 1, 2006 incident
occurred as alleged; however, appellant did not submit sufficient medical evidence to establish
that he sustained a causally related injury.
LEGAL PRECEDENT
An employee seeking compensation under the Federal Employees’ Compensation Act1
has the burden of establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence,2 including that he is an “employee” within the meaning of
the Act3 and that he filed his claim within the applicable time limitation.4 The employee must
also establish that he sustained an injury in the performance of duty as alleged and that his
disability for work, if any, was causally related to the employment injury.5 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.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. 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. 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,

1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
57 (1968).
3

See M.H., 59 ECAB ___ (Docket No. 08-120, issued April 17, 2008); Emiliana de Guzman (Mother of Elpedio
Mercado), 4 ECAB 357, 359 (1951); see 5 U.S.C. § 8101(1).
4

R.C., 59 ECAB ___ (Docket No. 07-1731, issued April 7, 2008); Kathryn A. O’Donnell, 7 ECAB 227, 231 (1954);
see 5 U.S.C. § 8122.
5

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

6

S.P., 59 ECAB ___ (Docket No. 07-1584, issued November 15, 2007); Joe D. Cameron, 41 ECAB 153 (1989).

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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.7
ANALYSIS
The Office accepted that the August 1, 2006 employment incident occurred as alleged
and that appellant sufficiently identified other employment factors of wearing body armor and an
accoutrement belt. The issue is whether appellant established that he sustained a back injury
causally related to his employment. The Board finds he has not met his burden of proof.
In support of his claim, appellant submitted medical reports dated June 26 and July 8,
2008 from Drs. Pinter and Medellin, who provided work restrictions. Neither doctor provided a
diagnosis or addressed the cause of appellant’s condition. Thus, these reports are of diminished
probative value and insufficient to establish appellant’s claim.8
Appellant further provided medical reports dated June 20 and 30, 2008 from Dr. Garcia
who diagnosed lumbar radiculopathy and provided work restrictions. Dr. Garcia opined that, due
to the caustic circumstances of wearing body armor and an accoutrement belt, appellant should
be reassigned to a position with low impact exposure to the back. He also opined that appellant’s
symptoms were progressively worsening due a depreciating injury during August 2006. Further,
in an October 30, 2008 report, Dr. Garcia stated that he examined appellant in August 2006 for a
lumbar injury sustained at work. He diagnosed lumbar radiculopathy in 2008 and opined that the
condition occurred as a result of the work-related injury sustained in August 2006.
These reports are also insufficient to establish appellant’s claim. Although Dr. Garcia
attributed appellant’s back condition to the August 2006 incident, he did not describe the
incident or explain how the mechanism of injury caused the diagnosed lumbar radiculopathy.
Further, he did not support his opinion with any physical findings on examination concurrent
with the incident.9 Moreover, Dr. Garcia did not provide an opinion as to the reason for the
worsening of appellant’s symptoms or clarify whether his back condition had been exacerbated
by any subsequent activities. Although he stated that appellant should be reassigned due to the
requirement that he wear body armor and an accoutrement belt, he did not specifically provide an
opinion that these factors actually caused the progression of appellant’s symptoms or that they
aggravated his lumbar radiculopathy. Dr. Garcia did not provide a rationalized medical opinion
explaining how appellant’s August 2006 employment incident or his wearing of body armor and
an accoutrement belt caused or aggravated his lumbar radiculopathy. As such, his reports are of
diminished probative value on the issue of causation.10
7

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).
8

See Robert Broome, 55 ECAB 339 (2004).

9

A physician’s opinion on causal relationship is not dispositive simply because it is rendered by a physician. To
be of probative value, the physician must provide rationale for the opinion reached. See Jean Culliton, 47 ECAB
728 (1996); Lucrecia M. Nielsen, 42 ECAB 583 (1991).
10

See Victor J. Woodhams, supra note 7.

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CONCLUSION
The Board finds that appellant did not establish that he sustained a back injury causally
related to the August 1, 2006 employment incident or any other employment factors.
ORDER
IT IS HEREBY ORDERED THAT the March 6, 2009 and October 10, 2008 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: June 4, 2010
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Concord, NC, Employer
__________________________________________

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Appearances:
Daniel F. Read, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-601
Issued: September 13, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 22, 2013 appellant, through counsel, filed a timely appeal of an October 1,
2012 decision of the Office of Workers’ Compensation Programs (OWCP) denying a recurrence
claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he is entitled to wage-loss compensation
for intermittent disability for the period June 30 to July 28, 2012.
On appeal appellant’s counsel contends that the modified position was not suitable.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, then a 33-year-old city carrier filed an occupational disease claim alleging that
on June 10, 1988 he first realized that his left knee condition was employment related. OWCP
accepted the conditions of left chondromalacia patellae and left medial meniscus derangement of
the posterior horn. Appellant was given a permanent light-duty job in February 1990 as he was
physically unable to perform his date-of-injury position. OWCP accepted his recurrence claims
of September 27 to October 10, 2008 and October 9 to 22, 2010.
On April 22, 2009 appellant accepted a permanent modified clerk position. The
restrictions of the position included up to four hours of intermittent lifting/carrying up to 50
pounds; up to four hours of intermittent standing/walking; up to two hours of intermittent
bending, stooping and twisting; up to three hours of intermitting pushing/pulling up to 50 pounds
and up to one hour intermittent kneeling/climbing. The hours of the position were 4:00 a.m. to
12:30 p.m. at the Concord Main Post Office. The duties of the position included manual
distribution of letter, nixie clerk work, manual parcel distribution as needed and post office box
distribution with use of a cart.
On August 17, 2010 appellant accepted an August 17, 2010 modified job offer by the
employing establishment. The duties of the new modified job offer included driving hub mail
between delivery unit and Charlotte general mail facility; delivering missent parcels and other
items under 40 pounds; picking up outgoing parcels under 40 pounds from customers and
collecting mail from blue boxes. In addition the title of the modified position was changed to
modified carrier from modified clerk.
In a September 15, 2010 report, Julie Abney, a physician’s assistant, advised that
appellant was unable to perform the driving portion of his modified position. She stated that he
was being treated for a history of severe obstructive sleep apnea and hypertension. Ms. Abney
recommended that appellant not drive at work due to an increased risk of falling asleep while
driving.
In a December 2, 2011 letter, the employing establishment noted that appellant’s
nonemployment-related sleep apnea prevented him from performing his four hours of city carrier
work.
In a January 11, 2012 report, Dr. Robert Beaver, an attending Board-certified orthopedic
surgeon, diagnosed a chronic history of depression, hypertension, sleep apnea, high cholesterol
and severe left knee osteoarthritis. He reported no change in appellant’s work restrictions from
May 2010. Dr. Beaver found that appellant was capable of working an eight-hour day with
restrictions. The restrictions include no lifting more than 40 pounds; up to four hours of
intermittent sitting; up to two hours of intermittent standing and walking; no climbing or
kneeling; up to two hours of intermittent bending, twisting and stooping; up to two hours of
intermittent pushing/pulling; and up to six hours of simple grasping.
On August 13, 2012 appellant filed a claim for intermittent disability for the period
June 30 to July 28, 2012.

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In a letter dated August 24, 2012, OWCP informed appellant that the evidence was
insufficient to establish that his wage loss was due to his accepted employment injury. It noted
that he currently was working intermittent hours due to a nonaccepted sleep apnea condition.
Appellant was advised as to the definition of a recurrence and the evidence required to support
his claim.
By decision dated October 1, 2012, OWCP denied appellant’s claim for a recurrence of
disability from June 30 to July 28, 2012. It found the partial disability was due to his nonworkrelated accepted sleep apnea and not to his accepted left knee conditions.
LEGAL PRECEDENT
An employee 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 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.4 Whether a particular injury causes an
employee to become disabled for work, and the duration of that disability, are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.5 To
meet his or her burden, a claimant must submit rationalized medical opinion evidence, based on
a complete factual and medical background, supporting a causal relationship between the alleged
disabling condition and the accepted injury.6
Under FECA the term “disability” means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.7 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.8 An employee who has a physical impairment causally related to his or her federal
employment, but who nonetheless has the capacity to earn the wages he or she was receiving at
the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.9 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his or her employment, he or she is entitled to compensation for any loss of wages.

2

Id.

3

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
4

See Amelia S. Jefferson, supra note 3; see also David H. Goss, 32 ECAB 24 (1980).

5

See Edward H. Horton, 41 ECAB 301 (1989).

6

A.D., 58 ECAB 166 (2006); Sandra D. Pruitt, 57 ECAB 126 (2005).

7

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
8

Roberta L. Kaaumoana, 54 ECAB 150 (2002).

9

Merle J. Marceau, 53 ECAB 197 (2001).

3

When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a limited-duty position or the medical evidence
establishes that he or she can perform the limited-duty position, the employee has the burden of
proof to establish a recurrence of total disability and that he or she cannot perform such limitedduty work.10 As part of this burden of proof, the employee must show either a change in the
nature and extent of the injury-related condition or a change in the nature and extent of the lightduty requirements.11
OWCP’s implementing regulations define a recurrence of disability as an inability to
work after an employee has returned to work, caused by a spontaneous change in a medical
condition which has resulted from a previous injury or illness without an intervening injury or
new exposure to the work environment that caused the illness.12 The term also means the
inability to work that takes place when a light-duty assignment made specifically to
accommodate an employee’s physical limitations due to his work-related injury or illness is
withdrawn, except for when such withdrawal occurs for reasons of misconduct, nonperformance
of the job duties, or a reduction-in-force (RIF).13 The Board has held that when a claimant stops
work for reasons unrelated to the accepted employment injury, there is no disability within the
meaning of FECA.14
The Board has held that whether a particular injury causes an employee to be disabled for
work is a medical question that must be resolved by competent and probative medical
evidence.15 The weight of medical opinion is determined on the report of a physician, who
provides a complete and accurate factual and medical history, explains how the claimed
disability is related to the employee’s work and supports that conclusion with sound medical
reasoning.16
ANALYSIS
OWCP accepted appellant’s claim for left chondromalacia patellae and left medial
meniscus derangement of the posterior horn. Appellant was unable to return to his date-of-injury
position and was provided modified positions. He filed a claim for intermittent disability for the
period June 30 to July 28, 2012 due to his inability to perform all the duties of an August 17,
10

J.F., 58 ECAB 124 (2006); Hubert Jones, Jr., 57 ECAB 467 (2006).

11

S.F., 59 ECAB 525 (2008); Terry R. Hedman, 38 ECAB 222 (1986).

12

20 C.F.R. § 10.5(x); Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter
2.1500.3.b(a)(1) (May 1997). See also Phillip L. Barnes, 55 ECAB 426 (2004).
13

20 C.F.R. § 10.5(x).

14

John I. Echols, 53 ECAB 481 (2002); John W. Normand, 39 ECAB 1378 (1988). Disability is defined to mean
the incapacity because of an employment injury, to earn the wages the employee was receiving at the time of injury.
It may be partial or total. See 20 C.F.R. § 10.5(f).
15

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

16

See T.E., Docket No. 09-2040 (issued July 27, 2010); Sedi L. Graham, 57 ECAB 494 (2006).

4

2010 modified job offer. By decision dated October 1, 2012, OWCP denied appellant’s claim
for wage-loss compensation. The Board finds that he failed to meet his burden of proof to
establish that his disability and resulting wage loss was due to his accepted left leg conditions.
In his claim for wage-loss compensation from June 30 to July 28, 2012, appellant did not
allege a change in the nature or extent of his employment-related condition. Rather, he alleged
that his intermittent periods of disability were the result of a change in the nature and extent of
his light-duty assignment, such that he was unable to perform all the duties of the job. The issue
is whether the duties of the August 17, 2010 modified job offer constituted a change in the nature
and extent of appellant’s light-duty job assignment.
Appellant worked in a light-duty position since February 1990. It was the driving
responsibilities in the August 17, 2010 job offer that triggered the present claim for partial wage
loss. Appellant accepted the position, but subsequently claimed that he was unable to perform
the driving duties due to his sleep apnea. The employing establishment confirmed that his
nonemployment-related sleep apnea prevented him from performing his four hours of city carrier
work in the August 17, 2010 job offer. Although the original modified job position in
February 1990 did not include driving hub mail between delivery unit and Charlotte general mail
facility, the evidence does not establish that such duties violated his current medical restrictions
due to his accepted left leg conditions. Moreover, a review of the record demonstrates that the
August 17, 2010 modified job was within the restrictions set by Dr. Beaver, who did not include
any restriction on driving. In a January 11, 2012 report, Dr. Beaver noted appellant’s medical
history, including sleep apnea, but stated that the work restrictions provided in May 2010 were
unchanged. Appellant did not contend that his sleep apnea was related to his accepted injury.
In support of his contention that the August 17, 2010 modified job violated his work
restriction appellant submitted a report from Ms. Abney, a physician’s assistant, who advised
that appellant was precluded from driving due to a nonemployment-related condition of sleep
apnea. It is well established that a physician’s assistant is not a “physician” as defined under
FECA. Thus, Ms. Abney’s work restriction has no probative medical value as to his claim for
disability.17
Appellant has not alleged that his claimed intermittent disability was a result of a change
in the nature and extent of his employment-related condition. The Board has reviewed the record
and finds the medical evidence is insufficient to establish any worsening of his employmentrelated left chondromalacia patellae or left medial meniscus derangement of the posterior horn.
Rather, the evidence shows that appellant’s inability to perform all duties of the August 17, 2010
modified job offer were due to the nonemployment condition of sleep apnea. It is his burden of
proof to provide evidence from a qualified physician supporting any disability for any period of
time was due to his accepted conditions.
Appellant’s counsel argued that the May 17, 2010 modified job was not suitable because
appellant was disabled from performing the carrier job because of his sleep apnea. He also
contends that OWCP was required to consider all conditions, work related and nonwork related
17

5 U.S.C. § 8101(2). See E.H., Docket No. 08-1862 (issued July 8, 2009); Roy L. Humphrey, 57 ECAB
238 (2005).

5

in determining whether a position is suitable. In addition, counsel argues that the position was
not suitable as it involved cross craft work. As noted, when a claimant returns to a modified job
and then stops work for reasons unrelated to the accepted employment injury, there is no
disability within the meaning of FECA. Appellant’s work stoppage was unrelated to his
accepted left leg injury. He is not entitled to wage-loss compensation for his intermittent
disability.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that he is entitled to wage-loss
compensation for intermittent disability for the period June 30 to July 28, 2012.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 1, 2012 is affirmed.
Issued: September 13, 2013
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
WILLIAM P. HOBBY AIRPORT, Houston, TX,
Employer
__________________________________________

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

Docket No. 13-1802
Issued: March 20, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge
JURISDICTION
On July 29, 2013 appellant, through his attorney, filed a timely appeal of a June 4, 2013
decision of the Office of Workers’ Compensation Programs (OWCP) denying further merit
review. Because over 180 days elapsed between the most recent merit decision of July 3, 2012
to the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s case,
pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 25, 2010 appellant, then a 35-year-old transportation security officer, filed
a traumatic injury claim alleging that on December 21, 2010 a coworker began to bang on the
left side of his neck and back causing burning and pain in his left neck and shoulder.
In a letter dated January 6, 2011, OWCP requested additional factual and medical
evidence in support of appellant’s claim. An emergency center note dated December 21, 2010
diagnosed contusion and pain in the left shoulder. In a report dated December 27, 2010,
Dr. Joseph Vadas, Board-certified in physical medicine and rehabilitation, diagnosed stiffness of
the left shoulder joint and exacerbation of a cervical and left shoulder injury. In a note dated
January 10, 2012, Dr. Marcos V. Masson, a Board-certified orthopedic surgeon, noted that
appellant had a previous left plexus stretch injury after pulling several 50- to 100-pound bags off
a conveyor belt. A coworker began pounding appellant’s left shoulder on December 21, 2010
and he experienced pain and a burning sensation in his left shoulder.
Dr. Masson completed a form report on January 7, 2011 and diagnosed left shoulder pain.
He indicated with a checkmark “yes” that appellant’s condition was caused by a coworker
pounding on his shoulder.
By decision dated February 11, 2011, OWCP denied appellant’s claim finding that he had
not submitted sufficient evidence to establish that the employment incident occurred as alleged.
Dr. Masson completed a note on February 14, 2011 and reported appellant’s history of
injury. He advised that appellant had a diagnosis of left elbow enthesopathy and left axillary
nerve injury.
Appellant, through his attorney, requested an oral hearing before an OWCP hearing
representative on March 1, 2011. In a report dated March 4, 2011, Dr. Masson noted appellant’s
history of injury in August 2010 and his diagnosis of a left plexus stretch injury. He further
noted that a coworker pounded on appellant’s left shoulder three times on December 21, 2010
causing a recurrence of pain and burning sensation to his left shoulder that radiated to his neck
and down to his left hand causing numbness. Dr. Masson stated that the event at work on
December 21, 2010 appeared to have aggravated the original injury but did not cause permanent
anatomic injury.
Appellant testified at the oral hearing on April 17, 2012 regarding the employment
incident. He stated that a coworker struck him on the left shoulder causing pain. Appellant
stated that the coworker used an open hand on his shoulder while standing behind appellant, who
was seated. His coworker used a grasping pressing motion on his shoulder.
In a decision dated July 3, 2012, OWCP’s hearing representative modified the
February 11, 2011 decision to reflect that appellant established the December 21, 2010
employment incident. She also found that the medical evidence of record was insufficient to
establish causal relation as none of the physicians based their opinion regarding the cause of his
shoulder and neck pain on an accurate description of the incident. The hearing representative

2

found that appellant’s coworker did not strike him on his left shoulder, rather he patted appellant
lightly on the shoulder while greeting him.
Counsel requested reconsideration on August 29, 2012. In support of this request, he
resubmitted the March 4, 2011 note from Dr. Masson.
By decision dated June 4, 2013, OWCP declined to reopen appellant’s claim for
consideration of the merits of his claim on the grounds that the medical report from Dr. Masson
was cumulative and substantially similar to evidence already included in the record.
LEGAL PRECEDENT
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.2
Section 10.606(b) of the Code of Federal Regulations provide that a claimant may obtain review
of the merits of the claim by submitting in writing an application for reconsideration which sets
forth arguments or evidence and shows that OWCP erroneously applied or interpreted a specific
point of law; or advances a relevant legal argument not previously considered by OWCP; or
includes relevant and pertinent new evidence not previously considered by OWCP.3 Section
10.608 of OWCP’s regulations provide that, when a request for reconsideration is timely, but
does meet at least one of these three requirements, OWCP will deny the application for review
without reopening the case for a review on the merits.4
When a reconsideration decision is delayed beyond 90 days, and the delay jeopardizes the
claimant’s right to review of the merits of the case by the Board, OWCP should conduct a merit
review. That is, the basis of the original decision and any new evidence should be considered
and, if there is no basis to change the original decision, an order denying modification (rather
than denying the application for review) should be prepared. There is no obligation to conduct a
merit review on insufficient evidence if the maximum 180-day time limit for requesting review
by the Board will have expired within the 90-day period following OWCP’s receipt of the
claimant’s reconsideration request.5
ANALYSIS
Appellant filed a traumatic injury claim alleging that he sustained a left shoulder and
neck injury when a coworker pounded on his shoulder on December 21, 2010. OWCP initially
denied his claim on the grounds that he had not submitted sufficient factual evidence to establish
that the employment incident occurred as alleged. Counsel requested an oral hearing and an
OWCP hearing representative found that appellant established that a coworker patted him on the
2

Id. at §§ 8101-8193, 8128(a).

3

20 C.F.R. § 10.606.

4

Id. at § 10.608.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.7(a) (October 2011);
M.D., Docket No. 13-1344 (issued November 7, 2013).

3

shoulder on December 21, 2010. The medical evidence was found insufficient to establish that
an injury resulted from the accepted employment incident.
Counsel requested reconsideration from the July 3, 3012 decision on August 29, 2012.
OWCP issued a decision denying appellant’s request for reconsideration on June 4, 2013 more
than nine months after receiving the request. The Board, having duly considered the matter,
finds that OWCP’s delay of more than nine months in issuing a decision on appellant’s
reconsideration request effectively precluded him from appealing the most recent merit decision
to the Board.6 Had OWCP acted upon his request within 90 days, he would have been able to
seek review of OWCP’s July 3, 2012 merit decision before the Board.
CONCLUSION
The Board finds that OWCP did not issue a timely decision on appellant’s request for
reconsideration. The case will be remanded to OWCP to issue an appropriate decision on the
merits of the claim in order to preserve his appeal rights.
ORDER
IT IS HEREBY ORDERED THAT the June 4, 2013 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: March 20, 2014
Washington, DC

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

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

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
6

See 20 C.F.R. §§ 501.2(c) and 501.3. For final adverse OWCP decisions issued on or after November 19, 2008,
a claimant has 180 days to file an appeal with the Board. See 20 C.F.R. § 501.3(e) (2009).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.P., Appellant
and
DEPARTMENT OF AGRICULTURE, FOREST
SERVICE, Alturas, CA, Employer
__________________________________________

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

Docket No. 11-208
Issued: October 20, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 1, 2010 appellant, through his attorney, filed a timely appeal of the
September 17, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
reducing his compensation for noncooperation with vocational rehabilitation efforts. Pursuant to
the Federal Employees’ Compensation Act (FECA)1 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 reduced appellant’s compensation for failure to
cooperate with vocational rehabilitation without good cause under 5 U.S.C. § 8113(b).
On appeal, counsel contends that OWCP’s decision is contrary to fact and law.
FACTUAL HISTORY
OWCP accepted that on June 18, 2008 appellant, then a 26-year-old firefighter, sustained
lumbar and lumbosacral strains and displacement of lumbar interverterbral disc without
1

5 U.S.C. § 8101 et seq.

myelopathy as a result of fighting a fire at work. Appellant stopped work on the date of injury.
OWCP paid him appropriate compensation for temporary total disability.
On July 30, 2009 OWCP referred appellant, together with a statement of accepted facts
and medical record, to Dr. Bunsri T. Sophon, a Board-certified orthopedic, for a second opinion.
In an August 28, 2009 medical report, Dr. Sophon reviewed the history of the June 18, 2008
employment injuries and medical treatment. He advised that appellant had reached maximum
medical improvement. Appellant was not able to return to his regular work duties due to
residuals from his accepted conditions. Dr. Sophon found that he could work eight hours per day
with physical restrictions.
By letter dated October 6, 2009, OWCP requested that the employing establishment offer
appellant a light-duty position within the restrictions set forth by Dr. Sophon.
On November 5, 2009 OWCP informed appellant that he had been referred to a
vocational rehabilitation counselor to assist him with a return to work. He was notified of his
obligation to cooperate fully in all aspects of the return-to-work effort.
In a November 22, 2009 report, the vocational rehabilitation counselor stated that the
employing establishment did not have an alternate or a modified position for appellant. The
rehabilitation counselor stated that on November 12, 2009 she scheduled an initial meeting with
him, which was held on November 17, 2009. Appellant stated that he had worked as a wildlife
firefighter since 2006. His work duties involved direct and indirect attacks on fire activities and
strenuous outside physical activities. Appellant was very attentive and eager to get involved in
the vocational rehabilitation process to return to work. He noted his previous positions as a sales
clerk, dishwasher, restaurant cashier and car washer. The rehabilitation counselor requested a
change in appellant’s rehabilitation plan from placement with the previous employer to plan
development which was approved by OWCP on December 22, 2009.
In a December 11, 2009 report, the vocational rehabilitation evaluator provided the
results of appellant’s vocational testing. Appellant scored high on mechanical reasoning, above
average on spatial relations and perceptual speed and accuracy, average on verbal reasoning,
language usage, word knowledge and manual speed and dexterity and below average on
numerical ability. Based on the test results, the rehabilitation counselor recommended further
structured vocational exploration. She noted that appellant demonstrated an interest and abilities
consistent with outdoor occupations. The test results reflected a strong probability of success in
a higher level training program or on-the-job training.
In a report dated January 21, 2010, the vocational rehabilitation counselor stated that she
performed labor market research and identified the positions of technical support specialist, user
support analyst and microcomputer support technician as being within appellant’s restrictions
and commuting area. Appellant did not have any marketable transferable skills, but his work
restrictions would allow him to pursue his interest in the computer technician and support field.
The rehabilitation counselor recommended enrollment in a computer systems technician
program.
By letter dated February 19, 2010, the vocational rehabilitation counselor advised
appellant that she had tried to reach him during the past two weeks to discuss his pending
vocational rehabilitation plan. She left numerous telephone messages at his parents’ home and
2

spoke to his father, mother and an unidentified woman about her need to talk to him, but he did
not return her call. The rehabilitation counselor informed appellant that it was critical that she
hear from him or she would be forced to submit a Rehabilitation Action Report (OWCP-44)
regarding his failure to participate in the rehabilitation process which could result in the
termination of his compensation benefits by OWCP. She requested that he respond by
February 25, 2010. In a Form OWCP-44, the rehabilitation counselor indicated again that she
had unsuccessfully tried to contact appellant by telephone and left messages with his father,
mother and a woman who may have been his sister on February 9, 11 and 16, 2010.
In another Form OWCP-44, the vocational rehabilitation counselor stated that on
February 23, 2010 appellant’s mother advised her that appellant was in jail and that he may be
there for a few months.
By letter dated March 2, 2010, OWCP proposed to suspend appellant’s compensation on
the grounds that he failed to cooperate with rehabilitation efforts. It notified him that, pursuant
to 5 U.S.C. § 8113(b) and its implementing regulations, his refusal to participate, without good
cause, could result in the reduction of his compensation benefits prospectively based upon what
probably would have been his wage-earning capacity had he not failed to cooperate in vocational
rehabilitation efforts. Appellant was given 30 days to make a good faith effort to participate in
the rehabilitation effort, or to show good cause for his noncompliance, together with supporting
evidence.
In a March 8, 2010 letter, appellant’s mother stated that appellant was unable to attend
any classes since he was in a county jail awaiting a preliminary hearing.
In an April 6, 2010 decision, OWCP found that appellant, without good cause, failed to
participate in vocational rehabilitation. It reduced his wage-loss compensation, based on his
capacity to earn wages as a user support analyst.
On April 12, 2010 appellant, through his attorney, requested a telephone hearing. In a
May 3, 2010 letter, counsel advised that appellant was incarcerated for a traffic misdemeanor.
During a June 29, 2010 telephone hearing, appellant testified that he was arrested on
February 3, 2010 for excessive speed and evasion of a police officer and was jailed through
April 2010. He was charged with a felony and currently free on bail. Appellant rejected an offer
to accept a plea for a misdemeanor charge and preferred to go to trial. He did not perform any
work, receive any training or have any contact with his vocational rehabilitation counselor while
in jail. Appellant did not contact his rehabilitation counselor because her telephone number was
in his cell phone which had been taken away from him. He did not think about writing a letter
advising OWCP about his incarceration. Appellant noted that he was scheduled to attend a
course at the time of his arrest. He contended that he did not intentionally refuse to participate in
vocational rehabilitation. Appellant related that he had not been convicted of a crime and would
have met with the rehabilitation counselor had she come to the jail. His attorney argued that
appellant did not fail to cooperate with vocational rehabilitation efforts. Appellant should have
contacted his rehabilitation counselor but, he did not know the person’s identity. Counsel argued
that the rehabilitation counselor should have inquired about appellant’s whereabouts by sending
a letter to his home address. He further argued that when OWCP finally learned that appellant
was in jail, his benefits were reduced although he had not been found guilty of a felony and it
made no attempt to continue the vocational rehabilitation process.
3

In a September 17, 2010 decision, an OWCP hearing representative affirmed the
reduction of appellant’s wage-loss compensation. She found that his failure to advise OWCP
and instruct his family to inform it about his incarceration did not constitute good cause for
failing to continue vocational rehabilitation.
LEGAL PRECEDENT
Section 8104(a) of FECA provides:
“[OWCP] may direct a permanently disabled individual whose disability is
compensable under this subchapter to undergo vocational rehabilitation. The
Secretary shall provide for furnishing the vocational rehabilitation services.”2
Section 8113(b) of FECA provides:
“If an individual without good cause fails to apply for and undergo vocational
rehabilitation when so directed under section 8104 of this title, the Secretary, on
review under section 8128 of this title and after finding that in the absence of the
failure the wage-earning capacity of the individual would probably have
substantially increased, may reduce prospectively the monetary compensation of
the individual in accordance with what would have probably been his wageearning capacity in the absence of the failure, until the individual in good faith
complies with the direction of the Secretary.”3
Section 10.519 of the implementing regulations provide:
“Under 5 U.S.C. § 8104(a), [OWCP] may direct a permanently disabled employee
to undergo vocational rehabilitation. To ensure that vocational rehabilitation
services are available to all who might be entitled to benefit from them, an injured
employee who has a loss of wage-earning capacity shall be presumed to be
permanently disabled, for purposes of this section only, unless and until the
employee proves that the disability is not permanent. If an employee without
good cause fails or refuses to apply for, undergo, participate in, or continue to
participate in a vocational rehabilitation effort when so directed, [OWCP] will act
as follows:
(a) Where a suitable job has been identified, [OWCP] will reduce the
employee’s future monetary compensation based on the amount which
would likely have been his or her wage-earning capacity had he or she
undergone vocational rehabilitation. [OWCP] will determine this amount
in accordance with the job identified through the vocational rehabilitation
planning process, which includes meeting with the [OWCP] nurse and the
employer. The reduction will remain in effect until such time as the
employee acts in good faith to comply with the direction of [OWCP].

2

5 U.S.C. § 8104(a).

3

Id. at § 8113(b).

4

(b) Where a suitable job has not been identified, because the failure or
refusal occurred in the early but necessary stages of a vocational
rehabilitation effort (that is, meetings with the [OWCP] nurse, interviews,
testing, counseling, functional capacity evaluations, and work
evaluations), [OWCP] cannot determine what would have been the
employee’s wage-earning capacity.
(c) Under the circumstances identified in paragraph (b) of this section, in
the absence of evidence to the contrary, [OWCP] will assume that the
vocational rehabilitation effort would have resulted in a return to work
with no loss of wage-earning capacity, and [OWCP] will reduce the
employee’s monetary compensation accordingly (that is, to zero). This
reduction will remain in effect until such time as the employee acts in
good faith to comply with the direction of [OWCP].”4
Chapter 2.814.8(g) of OWCP’s procedure manual provides:
“g. Claimants in Prison. Pursuant to § 8148(b) of the FECA, benefits of
individuals imprisoned as a result of a felony conviction shall be suspended as of
the date of imprisonment. The implementing regulations (20 C.F.R. § 10.18)
provide that the convicted individual forfeits all rights to compensation during the
period of incarceration. See Danny E. Haley, 56 ECAB 393 (2005). However,
during periods that a claimant’s compensation is suspended under section 8148(b)
for a felony conviction, the claimant’s dependents are entitled to a percentage of
his compensation. See Cheri Cortinas, guardian of Savannh Speiser, Docket No.
02-363 (issued April 21, 2003). See also [procedure manual] Chapter 2.1400.12.
“Claimants not convicted of felonies do not lose entitlement to compensation
payments simply because they are imprisoned. Such cases are handled according
to the same criteria as any other case, insofar as possible. Work performed in
prison, and training received there, should be considered in assessing the
claimant’s physical capability to perform a job and his or her job skills along with
other factors in the claimant’s background to determine a suitable job on which to
base an estimated earning capacity. Prison authorities should be asked to provide
information on the claimant’s work activities and training. The [rehabilitation
specialist] should contact the claimant and prison officials to arrange any feasible
training program. Since prison is not an open labor market and the claimant is
considered to be confined as the result of a voluntary misdeed, job selection
should be based on availability in the area which would apply if the claimant was
not imprisoned.”5

4

20 C.F.R. § 10.519.

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8(g) (October 2009).

5

The United States shall pay compensation for the disability of an employee resulting
from personal injury sustained while in the performance of duty.6 Once OWCP accepts a claim,
it has the burden of proof to justify termination or modification of compensation benefits.7
ANALYSIS
The Board finds that OWCP improperly reduced appellant’s compensation for failure to
participate in vocational rehabilitation.
OWCP initiated rehabilitation efforts on November 5, 2009 based on the medical opinion
of Dr. Sophon, an OWCP referral physician, who found that appellant could work eight hours
per day within set physical limitations. Appellant initially cooperated with his vocational
rehabilitation counselor, who first contacted him on November 12, 2009 and held a meeting with
him on November 17, 2009. He underwent vocational testing which demonstrated his ability to
succeed in a training program. On January 21, 2010 the rehabilitation counselor noted that
appellant did not have any transferable skills, but his work restrictions allowed him to pursue his
interest in the computer technician and support field. She identified three positions within his
physical restrictions and commuting area and recommended enrollment in a computer technician
program. By letter dated February 19, 2010, the rehabilitation counselor indicated that she had
tried to contact appellant on numerous occasions, left telephone messages at his home and talked
to his father, mother and sister about her need to talk to him about his vocational rehabilitation
plan and he had not responded to her calls. On February 23, 2010 appellant’s mother advised the
rehabilitation counselor that appellant was incarcerated in the county jail and he would be there
for a few months. By letter dated March 2, 2010, OWCP proposed to suspend appellant’s
compensation based on his failure to cooperate with the rehabilitation efforts. On March 8, 2010
appellant’s mother again advised OWCP about appellant’s incarceration and stated that he would
be unable to attend any classes. At the June 29, 2010 hearing, appellant contended that he did
not intentionally refuse to participate in vocational rehabilitation efforts as his incarceration
prevented him from attending a scheduled class. He further contended that he would have met
with the rehabilitation counselor if she had come to the jail.
The Board finds that the record does not establish appellant’s nonparticipation in
vocational rehabilitation. The evidence does not document a specific instance of noncooperation
or nonparticipation in vocational rehabilitation. Appellant’s hearing testimony indicated that he
planned to attend the scheduled training class before being incarcerated. The rehabilitation
counselor’s February 19, 2010 letter directed him to contact her by February 25, 2010, and he
complied with this direction. Appellant also complied with the March 2, 2010 OWCP letter
which directed him to give reasons for his noncompliance with the rehabilitation effort within 30
days. Although he was charged with a felony, he was not convicted of this crime at the time
OWCP reduced his compensation. The Board finds no probative evidence to support OWCP’s
finding that appellant failed to continue participation in vocational rehabilitation. In the absence

6

5 U.S.C. § 8102(a).

7

I.J., 59 ECAB 408 (2008); Fermin G. Olacoaga, 13 ECAB 102, 104 (1961).

6

of probative evidence, the Board finds that OWCP improperly reduced appellant’s compensation
under section 8113(b).8
CONCLUSION
The Board finds that OWCP improperly reduced appellant’s compensation for failure to
cooperate with vocational rehabilitation without good cause under 5 U.S.C § 8113(b).
ORDER
IT IS HEREBY ORDERED THAT the September 17, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: October 20, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8

Compare Leonard I. Harrell, Docket No. 97-1789 (issued April 1, 1999) and Samuel L. Biers, Docket No. 931496 (issued September 24, 1994) where appellant’s incarceration was cause for finding noncooperation.

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.H., Appellant
and
U.S. POSTAL SERVICE, JACKSON DELTA
STATION, Jackson, MS, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0253
Issued: June 17, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge

JURISDICTION
On November 11, 2019 appellant, through counsel, filed a timely appeal from a
September 18, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of his left lower extremity, warranting a schedule award.
FACTUAL HISTORY
On March 7, 2017 appellant, then a 39-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on March 3, 2017 he sustained a severe left ankle sprain with swelling
in his ankle and foot when his left foot turned inward as he was walking down steps while in the
performance of duty. On the reverse side of the claim form, the employing establishment noted
that appellant stopped work on March 4, 2017.
OWCP accepted appellant’s claim for sprain of the other ligament and tibiofibular ligament
of the left ankle and subluxation of the left ankle joint.3 On October 3, 2017 appellant underwent
an authorized left ankle arthroscopy with lateral ankle ligament repair, which was performed by
Dr. Jamey Burrow, an attending Board-certified orthopedic surgeon.4 OWCP paid appellant wageloss compensation on the supplemental rolls commencing May 4, 2017.
On August 25, 2018 appellant returned to full-duty work at the employing establishment.
In an August 9, 2018 medical report, Dr. Burrow discussed his findings on physical
examination and diagnosed sprain of other ligament of the left ankle, subsequent encounter. He
advised that appellant had reached maximum medical improvement (MMI) with zero percent
permanent impairment. Dr. Burrow released him to return to work with restrictions based on the
results of a functional capacity evaluation.
On November 5, 2018 appellant filed a claim for a schedule award (Form CA-7).
OWCP, in a November 6, 2018 development letter, requested that appellant submit an
impairment evaluation from his attending physician addressing whether he had reached MMI and
evaluating the extent of permanent impairment, if any, in accordance with the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).5 It afforded him 30 days to submit the necessary evidence. Appellant did not submit
additional evidence.

3

By decision dated September 12, 2018, OWCP denied appellant’s request to expand the acceptance of his claim
to include the conditions of depression, hypertension, stress/emotional condition, and diabetes as causally related to
his accepted March 3, 2017 employment injury.
4

In his October 3, 2017 operation report, Dr. Burrow found extensive anterior, medial, and lateral gutter synovitis
with no chondral abnormality. He further found stable syndesmosis. Dr. Burrow reported that after debridement of
the ankle, there was some laxity in the tibiotalar joint with talar tilt testing approximately 15 to 20 degrees with stress.
5

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

2

By decision dated December 10, 2018, OWCP denied appellant’s claim for a schedule
award. It noted that he had not responded to its November 6, 2018 request for medical
documentation including an impairment evaluation.
In an October 31, 2018 report Dr. Lisa Marie Sheppard, a Board-certified radiologist and
neurologist, noted her review of appellant’s September 28, 2018 left knee and ankle x-rays. She
reported that the left knee demonstrated overall normal mineralization and mild osteophyte
formation of the lateral joint space. The superior to inferior measurement of the medial joint space
was 3.7 millimeters (mm). The superior to inferior measurement of the lateral joint space was 3.4
mm. The patellofemoral joint space demonstrated an “AP” measurement of 3.2 mm. No joint
effusion was noted and no lyric or blastic lesions were observed. Utilizing the lateral projection
of the left ankle, the superior to inferior measurement of the tibiotalar joint space was 2 mm. The
superior to inferior measurement of the talocalcaneal joint space was 2.3 mm. The measurement
of the talonavicular joint was 1.2 mm.
In a February 1, 2019 report, Dr. Sonny Dosanjh, a Board-certified physiatrist, noted that
appellant presented for an initial evaluation of left ankle pain status post a March 3, 2017 work
injury. He also noted a history of the accepted employment injury, the treatment history, and
examination findings and diagnosed pan-talar arthritis. Dr. Dosanjh referenced Table 16-2, Foot
and Ankle Regional Grid, on page 505 of the sixth edition of the A.M.A., Guides and found that
pan-talar arthritis represented a class of diagnosis (CDX) of 3 representing a severe problem.
Pursuant to Table 16-6, he assigned a grade modifier for functional history (GMFH) of 2 based on
an antalgic gait. Pursuant to Table 16-7, Dr. Dosanjh assigned a grade modifier for physical
examination (GMPE) of 3 due to loss of range of motion (ROM) and severe palpatory findings
(including crepitus and joint line tenderness over the medial and lateral joint line, positive talar
tilt, and positive laxity). Pursuant to Table 16-8, he assigned a grade modifier for clinical studies
(GMCS) of 2 for studies used to confirm the diagnosis and moderate pathology. Using the net
adjustment formula (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), Dr. Dosanjh calculated that
appellant had a net adjustment of (2-3) + (3-3) + (2-3) = -2, which equaled a grade A default value
that was moved up to a grade C or 26 percent permanent impairment of the left lower extremity.
On April 16, 2019 appellant, through counsel, requested reconsideration of the
December 10, 2018 decision.
On April 29, 2019 OWCP routed Dr. Dosanjh’s February 1, 2019 report, a statement of
accepted facts (SOAF), and the case record to Dr. Ari Kaz, a Board-certified orthopedic surgeon
serving as a district medical adviser (DMA) for review and determination regarding whether
appellant sustained permanent impairment based on the sixth edition of the A.M.A., Guides and
the date of MMI.
In a May 8, 2019 report, the DMA noted that he reviewed the SOAF, the case record, and
Dr. Dosanjh’s February 1, 2019 report. He indicated that it was unclear why Dr. Dosanjh elected
to rate appellant based on a diagnosis of pan-talar arthritis. The DMA noted that page 506 of the
A.M.A., Guides indicated that a subtalar joint space of more than two mm yielded zero percent
permanent impairment and a talonavicular joint space of more than one mm yielded no
impairment. He indicated that, while the ankle joint space of two mm yielded a class 2 problem
per Table 16-2, he suggested that these were “radiographic findings only” and were not clinically

3

relevant and that a diagnosis of arthritis was not made on x-rays alone. The DMA noted that
appellant was 42 years of age and it was extremely unusual for someone his age to develop
significant arthritis (according to Dr. Dosanjh a severe class 3 problem) within 18 months of an
ankle sprain. Furthermore, an April 18, 2017 magnetic resonance imaging (MRI) scan, which was
much more sensitive than an x-ray, showed no marrow edema, cartilage abnormality, or evidence
of arthritis. Additionally, the DMA explained that arthritis was not an accepted condition in the
case and other than Dr. Dosanjh’s opinion and the clinically unrelated x-ray finding, there was no
evidence that appellant had ankle arthritis He maintained that this was strengthened by a lack of
documentation by the radiologist stating that the ankle joint was arthritic. In addition, the greatest
support was the operative findings of no cartilage injury noted by Dr. Dosanjh. The DMA noted
that it was difficult to support the diagnosis of ankle arthritis when the operative surgeon looked
at the cartilage and documented that it was normal. He determined that Dr. Dosanjh appeared to
rely on radiographs to assign a diagnosis and an impairment rating. The DMA concluded,
however, that the diagnosis of pan-talar arthritis had no other support in the medical records
provided. He recommended another rating by an orthopedic surgeon with access to the complete
medical records.
On May 13, 2019 OWCP referred appellant, together with a SOAF, the medical record,
and a set of questions, to Dr. Byron T. Jeffcoat, a Board-certified orthopedic surgeon, for a second
opinion examination regarding his current condition and the extent of his permanent impairment,
if any, due to his accepted left ankle conditions.
In a report dated June 5, 2019, Dr. Jeffcoat noted appellant’s history of injury and his
review of the medical record. On physical examination, he reported that appellant could stand on
his toes and heels and squat about 75 percent of normal and recover. Appellant could not touch
his toes, lacking about two inches. There was full ROM of all extremities and no weakness or
instability with left foot eversion or inversion. There was also no swelling, but demonstrated
subjective tenderness over the distal ﬁbula and medial malleolus. Appellant complained of
subjective left talus pain. There was no atrophy by measurement of feet, ankles, or calves as
compared to his normal right counterparts. There was a well-healed left foot/ankle puncture
wound, the site of his 2017 arthroscopy, with no evidence of redness or erythema.
Neurovasculature appeared intact and strength was normal with no joint effusion. In response to
questions posed by OWCP, Dr. Jeffcoat related that clinically, he found no objective ﬁndings
relative to appellant’s March 3, 2017 work-related left ankle injury in his normal physical
examination. The only findings he noted were subjective, which included pain over the medial
tibiotalar and ﬁbula talar ligaments. Dr. Jeffcoat advised that appellant’s accepted left ankle sprain
had resolved although appellant related that he developed left ankle pain when he walked on unlevel ground for an extended period of time, a subjective complaint for which he wore an ankle
orthosis. He noted that clinically, appellant had no left ankle instability. Again, Dr. Jeffcoat
indicated that he found no objective ﬁndings pertinent to the original work-related left ankle injury
in his evaluation. He maintained that there was no evidence of left ankle osteoarthritis as
evidenced by left ankle x-ray findings (three views) in Dr. Burrow’s December 26, 2017 notes,
which showed diffuse osteopenia, otherwise no osteoarticular abnormalities. Dr. Jeffcoat further
maintained that appellant had no other residuals of his accepted March 3, 2017 work injury. He
determined that appellant reached MMI as of the date of his examination.

4

Regarding the extent of appellant’s left lower extremity permanent impairment,
Dr. Jeffcoat referred to Table 16-2 on page 501 of the sixth edition of the A.M.A., Guides for the
diagnoses of sprain of the tibiofibular ligament and sprain of the other ligament of the left ankle,
resulting in a CDX of 1 for the left ankle with a mid-range default value of one percent permanent
impairment. He assigned a GMFH of 1 and GMPE and GMCS of zero. Dr. Jeffcoat applied the
net adjustment formula of (1-1) + (0-1) + (0-1) to find a net adjustment of -2, which yielded zero
percent permanent impairment of the left lower extremity.
On June 27, 2019 OWCP routed Dr. Jeffcoat’s June 9, 2019 report, a SOAF, and the case
record to the DMA for review as to whether appellant sustained permanent impairment as a result
of his accepted conditions.
In a September 15, 2019 addendum to his May 8, 2019 DMA report, Dr. Kaz noted that he
reviewed the SOAF, the medical record, and Dr. Jeffcoat’s June 5, 2019 report. He noted that it
was clear that appellant did not have ankle or pan-talar arthritis based on numerous x-rays as read
by Dr. Burrow, the April 18, 2017 MRI scan, and most importantly Dr. Burrow’s October 3, 2017
operative report in which he clearly documented normal cartilage. The DMA noted that
Dr. Jeffcoat clearly documented the same opinion. He agreed with Dr. Jeffcoat that the appropriate
diagnosis on which to base an impairment rating was ankle sprain, found in Table 16-2 on page
502 and previously used in his May 8, 2019 report. The DMA indicated that Dr. Jeffcoat clearly
documented no ankle instability, as found by Dr. Burrow on numerous occasions. Dr. Jeffcoat
also clearly delineated that there were no objective abnormal findings. The DMA maintained that
this was the definition of a class 0 problem as found on page 502 which yielded zero percent
permanent impairment. He noted that while Dr. Jeffcoat accurately found that the default class 1
rating was one percent, a class 1 rating required ankle instability. The DMA advised that without
any documentation of ankle instability, the appropriate rating was class 0, which yielded zero
percent permanent impairment of the left lower extremity. He concluded that the date of MMI
was June 5, 2019.
By decision dated September 18, 2019, OWCP denied modification of its December 10,
2018 decision. It found that the weight of the medical evidence rested with the opinion of
Dr. Burrow as supported by the opinions of Dr. Jeffcoat and its DMA.
LEGAL PRECEDENT
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of an employment injury.6

6

See T.H., Docket No. 19-1066 (issued January 29, 2020); D.F., Docket No. 18-1337 (issued February 11, 2019);
Tammy L. Meehan, 53 ECAB 229 (2001).

5

The schedule award provisions of FECA7 and its implementing regulations8 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. OWCP has adopted the
A.M.A., Guides as the uniform standard applicable to all claimants. As of May 1, 2009, the sixth
edition of the A.M.A., Guides is used to calculate schedule awards.9
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).10 Under the sixth edition, the evaluator identifies the CDX, which is then
adjusted by grade modifiers of GMFH, GMPE, and GMCS.11 The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).12
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA 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.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of his left lower extremity, warranting a schedule award.
In a February 1, 2019 report, Dr. Dosanjh, appellant’s treating physician, diagnosed left
ankle pan-talar arthritis and found that appellant had reached MMI and 26 percent permanent
impairment of the left lower extremity under the sixth edition of the A.M.A., Guides. The Board
notes, however, that OWCP has not accepted an arthritic condition as diagnosed by Dr. Dosanjh.
For conditions not accepted by OWCP as being employment related, it is appellant’s burden to
submit rationalized medical evidence to establish causal relationship between the additional or
consequential conditions and the accepted employment injury.14 Dr. Dosanjh provided no
7

5 U.S.C. § 8107.

8

20 C.F.R. § 10.404.

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5 (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
10
Supra note 6 at page 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF):
A Contemporary Model of Disablement.
11

Id. at 494-531.

12

Id. at 411.

13

See supra note 9 at Chapter 2.808.6(f) (March 2017).

14

R.R., Docket No. 15-0913 (issued March 25, 2016); Alice J. Tysinger, 51 ECAB 638 (2000).

6

explanation on how the diagnosed arthritic condition was causally related to the March 3, 2017
employment injury. The only support Dr. Dosanjh provided for his conclusion was that his opinion
was based on his evaluation and history appellant provided. He did not explain how the additional
condition of left ankle pan-talar arthritis was due to the accepted employment injury or a natural
progression of the accepted sprain of the other ligament and tibiofibular ligament of the left ankle
and subluxation of the left ankle joint. Dr. Dosanjh failed to provide sufficient medical rationale
explaining the causal relationship between the diagnosis of pan-talar arthritis and the accepted
March 3, 2017 employment injury, and thus, his report is insufficient to establish causal
relationship or entitlement to a schedule award.15
In accordance with its procedures, OWCP properly routed the case record to its DMA who
recommended, in a May 8, 2019 report, that appellant undergo further impairment evaluation by
an orthopedic surgeon with access to his complete medical record. He further explained that it
was unclear as to why Dr. Dosanjh rated appellant’s left lower extremity permanent impairment
based on the diagnosis of pan-talar arthritis, which was not supported by objective findings or
accepted by OWCP as employment related.
Appellant was then referred to Dr. Jeffcoat for a second opinion. In a June 5, 2019 report,
Dr. Jeffcoat found that appellant had zero percent permanent impairment of the left lower
extremity under the sixth edition of the A.M.A., Guides. He reviewed his history, conducted a
physical examination, and provided diagnoses. In calculating impairment for the left ankle,
Dr. Jeffcoat selected the accepted diagnoses of sprain of the tibiofibular ligament and sprain of the
other ligament of the left ankle, which represented a class 1 impairment with a default value of
one percent impairment under Table 16-2 on page 501. He assigned modifiers and applied the net
adjustment formula and found a net adjustment of -2 for a permanent impairment rating of zero
percent for the left lower extremity.
In a September 15, 2019 addendum report, the DMA reviewed Dr. Jeffcoat’s June 5, 2019
report and agreed with his finding that appellant had zero percent permanent impairment of the
left lower extremity based on his accepted diagnoses of sprain of the tibiofibular ligament and
sprain of the other ligament of the left ankle. He, however, disagreed with Dr. Jeffcoat’s finding
that the diagnoses warranted a CDX of 1 for a default value of one percent under Table 16-2 on
page 502 of the A.M.A., Guides. The DMA related that a class 1 impairment required ankle
instability and there was no documentation of ankle instability in the medical record. Thus, he
advised that the appropriate rating was a class 0 default value, which yielded zero percent
permanent impairment of the left lower extremity. Regardless, this disagreement over the
appropriate diagnosis is immaterial to final impairment rating because it results in the same rating
under both methodologies.
The Board finds that the DMA properly applied the A.M.A., Guides and determined that
appellant had zero percent left lower extremity permanent impairment.
On appeal counsel contends that an unresolved conflict in medical opinion existed between
Dr. Dosanjh and Dr. Jeffcoat with regards to appellant’s continuing residuals of the accepted
March 3, 2017 employment injury resulting in permanent impairment. As explained above,
15

R.R., id.; Deborah L. Beatty, 54 ECAB 340 (2003).

7

Dr. Dosanjh did not attribute appellant’s permanent impairment to his accepted employmentrelated left ankle injury. There is no evidence of record supporting a finding of permanent
impairment due to appellant’s accepted ankle condition. It is appellant’s burden of proof to
establish a permanent impairment of a scheduled member as a result of an employment injury.16
He did not submit such evidence and thus, he failed to meet his burden of proof.17
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of his left lower extremity, warranting a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the September 18, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 17, 2020
Washington, DC

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

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

16

Supra note 6.

17

T.H., supra note 6; D.S., Docket No. 18-1140 (issued January 29, 2019).

8