United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Dublin, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-924
Issued: November 3, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On March 11, 2014 appellant, through her attorney, filed a timely appeal from a
January 6, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant sustained an injury on June 14, 2013 in the performance of
duty.
FACTUAL HISTORY
On June 20, 2013 appellant, then a 54-year-old practical nurse, filed a traumatic injury
claim alleging that on June 14, 2013 she sustained pain in her neck, the upper right side of her
1

5 U.S.C. § 8101 et seq.

back, right shoulder and right arm in the performance of duty. She described her injury as
occurring when a patient with dementia became combative and struck the left side of her neck
and shoulder area with his fist several times. Appellant stopped work on August 14, 2013. The
employing establishment controverted the claim based on wilful misconduct, noting that she did
not follow its proper procedures in “trying to lift the patient from the floor.”
In a report of contact form dated June 14, 2013, appellant related that on that date a
demented patient grew agitated when she tried to make him sit in a Broda chair. The patient hit
her about six times with his fist on her left shoulder and the left side of her neck. Appellant
stated, “When I attempted to stop patient from hitting me, he started to sit in the floor pulling me
down with him causing my clothes to tear.” She described her complaints of pain down the left
side of her neck into her left arm, pain and numbness in her right arm and hand and burning
between her shoulder blades.
In a report of contact dated June 14, 2013, Joan Revels, a registered nurse and charge
nurse that day, related that on June 14, 2013 she saw appellant trying to get a patient to sit in a
Broda chair. When he refused appellant tried to make him sit and took his left arm. The patient
slipped onto a foot rest and she tried to lift him by herself. Appellant stated that she had ripped
her pants. Ms. Revels maintained that appellant verbally abused the patient.
Appellant sought treatment in the emergency room on June 14, 2013. She provided a
history of being hit six times by a patient on “the left shoulder and left neck and then pulled
down to the floor….” In response to the question, “Where is your pain?” appellant responded
“down neck and between shoulder blades.” In a duty status report dated June 14, 2013, a
physician found that appellant could perform light duty pending further evaluation.
A magnetic resonance imaging (MRI) scan study of the cervical spine, obtained on
June 14, 2013 revealed postsurgical and chronic degenerative changes and moderate spinal
stenosis with bilateral foraminal narrowing and near entrapment of the cord possibly resulting in
radiculopathy. An MRI scan study of the scapula revealed subacromial and subdeltoid bursal
fluid.
In a statement dated June 15, 2013, Jimmie Stone, a coworker, related that on that date a
sitter (later identified as appellant) yelled and cursed at a patient and tried to get him to sit in a
work chair with rolling wheels, rather than the wheelchair that he requested. She telephoned for
assistance. Appellant yelled at the patient to get away from her and to get off her and the patient
stated, “what did I do, I’m sorry, I’m sorry.” She told the patient that she did not come to work
to “get beat up and kick on by a person like you….”
In another statement dated June 15, 2013, Beatrice James, a coworker, related that
Ms. Stone telephoned her for assistance. When Ms. James arrived, appellant was cursing at a
patient and telling him that she did not come to work to get kicked and he should get out of her
way. The patient was apologizing for something and appellant stated that she was leaving
because she was injured.
Dr. Laurence O.F. Harris, a Board-certified internist, indicated that on June 14, 2013 he
evaluated appellant after she was hit by a patient with dementia multiple times in the back and

2

neck. He noted that she felt that she had “exacerbated neck and shoulder pain from an old
injury.” Dr. Harris diagnosed scapular pain.
In a statement dated June 20, 2013, Renay Godfrey, a coworker, related that on June 14,
2013 she heard appellant tell a nurse to bring a patient a sedative. Appellant told the patient not
to hit her and that he had ripped her pants. She verbally abused the patient and tried to shove
him into a chair.
An employing establishment incident report form, signed on June 20, 2013 by Teen
Clemons, a supervisor, and on June 25, 2013 by Christopher Mimbs, a safety official, provided
that on June 14, 2013 appellant was attempting to make a patient with dementia sit in a chair.
While she held his left hand, the patient pushed her three times with his palm open on her left
shoulder. The form stated, “[Appellant] was seen by [the] charge nurse trying to lift [the] patient
alone and stated [that] her pants had ripped.” The safety official indicated that she did not follow
procedures and that it was investigating allegations that she verbally abused the patient.
By letter dated July 1, 2013, OWCP requested additional factual and medical information
from appellant, including a detailed report from her attending physician addressing the cause of
any diagnosed condition and its relationship to the identified work incident.
In a report dated July 19, 2013, Dr. William Maxwell Duke, Board-certified in family
medicine, indicated that appellant related that approximately four weeks ago a patient hit her in
the neck causing numbness of the right arm and pain in her neck. She had previously undergone
surgery on her cervical spine in 2004 and had a history of a fall “many months ago.” An MRI
scan study showed “spinal stenosis secondary to osteophytes in the lower cervical spine.”
Dr. Duke diagnosed stenosis of the cervical spine and found that appellant could work with
restrictions.
In a form report also dated July 19, 2013, Dr. Duke diagnosed cervical spinal stenosis.
He provided a history of appellant being hit by a patient four weeks earlier and a fall “many
months ago.” Dr. Duke checked “yes” in response to the question of whether the diagnosed
condition was caused or aggravated by employment and provided as an explanation that it was
“possibly aggravated.”
By letter dated July 30, 2013, the employing establishment controverted the claim,
arguing that appellant had not factually established that the incident occurred or that she
sustained a medical condition as a result of the incident. It stated:
“[Appellant’s] versions of events differ from the eye witness statement that
watched this incident take place. [She] stated that the patient became combative
when she attempted to get patient to sit in [a] [B]roda chair. The witness,
Ms. Revels, stated that [appellant] was trying to force [the] patient to sit in [a]
[B]roda chair. Another inconsistency includes [appellant’s] statement that the
patient struck her six times with a closed fist on the left shoulder and the left side
of her neck. Ms. Revels states that [appellant] was pushed by the veteran three
times of the left shoulder with the palm of his hand.”

3

The employing establishment noted that it had submitted three other witness statements
and provided its interpretation of the medical evidence.
In a decision dated August 9, 2013, OWCP denied appellant’s claim after finding that she
had not established that the incident occurred at the time, place and in the manner alleged. It
further found that the medical evidence did not provide a diagnosis.
In an e-mail addendum to her statement, received by OWCP on August 15, 2013,
appellant related that there were no witnesses around when the patient attacked her even though
she called for assistance.2 She asserted that Ms. Clemons wrote her statement based on
Ms. Revels report and that Ms. Revels was not present at the incident but provided her
“assumption of what occurred.” Appellant further noted that Ms. Godfrey was not present at the
time of the incident. She contended that she was not trying to make the patient sit as described
by Ms. Revels but instead holding onto his arms to stop him from hitting. Appellant related that
Ms. Revels did not arrive until “after the two nursing assistants had put the patient to bed and
restrained his wrists with soft wrist restraints.” She maintained that he did not slip onto the
footrest of the Broda chair and that she did not attempt to lift the patient. Appellant stated,
“What did occur when the patient sat in the floor and I was holding both of his forearms to
prevent from being hit again by him; as he sat down, I was pulled over into a bending at the
waist position, which caused my uniform pants to rip in the seam from the crotch almost to the
back waistband….” She loudly called “damn” when her pants ripped but this was not directed at
the patient. Appellant described medically how she could have pain on the right side of her neck
through her right arm after being hit on the left side.
In a report dated September 27, 2013, Dr. David L. Tate, Board-certified in family
practice, evaluated appellant for neck and shoulder symptoms. He noted that her condition had
recently worsened after she began using the telephone while working as a secretary. Dr. Tate
diagnosed cervical radiculopathy, cervical degenerative disc disease and cervical spinal stenosis.
He recommended that appellant be evaluated by a spinal surgeon either through workers’
compensation or privately and advised that her condition remained “related to her neck
problems.”
On October 17, 2013 appellant, through her attorney, requested reconsideration.3
Counsel contended that a claimant’s statement that an incident occurred must be rebutted by
strong evidence. He also reviewed the definition of disability under FECA.
By decision dated January 6, 2014, OWCP modified the August 9, 2013 decision to
reflect that the medical evidence provided a diagnosed condition. It found, however, that
appellant had not established the occurrence of the alleged June 14, 2013 work incident and thus
denied her claim after finding that she had not established fact of injury. OWCP additionally
2

In a July 22, 2013 e-mail, received by OWCP on August 15, 2013, appellant responded to the employing
establishment’s allegations of verbal abuse.
3

In a duty status report dated August 8, 2013, received by OWCP on November 19, 2013, a physician diagnosed
a shoulder condition and checked “yes” that the history of injury provided by appellant corresponded to that on the
form of her injuring her left shoulder working at a computer desk.

4

determined that the medical evidence did not contain a reasoned opinion relating the diagnosed
condition to the alleged employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are 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
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place and in the manner alleged,
by a preponderance of the reliable, probative and substantial evidence.7 Second, the employee
must submit sufficient evidence, generally only in the form of medical evidence, to establish a
causal relationship between the employment incident and the alleged disability and/or condition
for which compensation is claimed.8 An employee may establish that the employment incident
occurred as alleged, but fail to show that his or her disability and/or condition relates to the
employment incident.9
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.10 An injury
does not have to be confirmed by eyewitnesses in order to establish that an employee sustained
an injury in the performance of duty, but the employee’s statements must be consistent with the
surrounding facts and circumstances and his or her subsequent course of action.11 An employee
has not met his or her burden of proof in establishing the occurrence of an injury when there are
such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.12
4

See supra note 1.

5

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

6

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

7

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

8

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

9

Id.

10

See Louise F. Garnett, 47 ECAB 639 (1996).

11

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

12

Id.

5

Such circumstances as late notification of injury, lack of confirmation of injury, continuing to
work without apparent difficulty following the alleged injury and failure to obtain medical
treatment may, if otherwise unexplained, cast doubt on an employee’s statements in determining
whether a prima facie case has been established.13 However, an employee’s statement regarding
the occurrence of an employment incident is of great probative force and will stand unless
refuted by strong or persuasive evidence.14
ANALYSIS
Appellant alleged that she injured her neck, the right side of her upper back, her right
shoulder and right arm on June 14, 2013 after being repeatedly struck on the left side of her neck
and shoulder by a patient. She maintained that a patient with dementia hit her with his fist
around six times. When appellant attempted to stop him by holding his arms, he sat down on the
floor pulling her with him and ripping her pants. She immediately informed a supervisor,
Ms. Clemons, of the incident and sought treatment at the emergency room that date when her
neck, right shoulders, and right arm began hurting and her right hand grew numb.
The employing establishment controverted the claim, arguing that the statements of
witnesses did not support that the June 14, 2013 incident occurred as alleged. In a statement
dated June 14, 2013, Ms. Revels related that on that date appellant tried to force a patient to sit in
a chair after he did not comply with her instructions. Patient slipped down on a footrest and
appellant tried to lift him. Appellant told Ms. Revels that her pants had ripped. In an incident
report signed June 20, 2013, Ms. Clemons indicated that appellant was trying to make a patient
with dementia sit in a chair. While appellant held his left hand, the patient pushed her with an
open palm three times on the left shoulder. Ms. Clemons stated that a charge nurse witnessed
appellant attempting to lift him without assistance. On June 15, 2013 Ms. Stone related that
appellant was yelling at a patient and trying to get him to sit in a chair.15 Appellant told him that
she did not come to work to get beat up. In another statement dated June 15, 2013, Ms. James
related that she witnessed appellant cursing at a patient and telling him that she did not come to
work to get kicked. Appellant indicated that she was leaving because she was injured. In a
June 20, 2013 statement, Ms. Godfrey asserted that she heard appellant tell a patient not to hit
her and that he had made her pants rip.
The Board finds that the evidence does not contain sufficient inconsistencies sufficient to
cast serious doubt on whether an incident occurred on June 14, 2013. While the Board takes
seriously the assertions of patient abuse, such assertions have not been proven for the reasons set
forth herein.16 Appellant immediately reported the incident to her supervisor and sought
treatment on that date in the emergency room. She provided a sufficiently consistent history of
injury to her physicians, the employing establishment and OWCP. An employee’s statement
13

See Linda S. Christian, 46 ECAB 598 (1995).

14

See Gregory J. Reser, 57 ECAB 277 (2005).

15

Ms. Stone provided the date of the incident as June 15, 2013.

16

Although alleged by the employing establishment, OWCP made no finding of wilful misconduct under section
8102(a) of FECA. Morris Reminger, 18 ECAB 341 (1966); see Theresa B.L. Grissom, 18 ECAB 193 (1966).

6

regarding the occurrence of an employment incident is of great probative force and will stand
unless refuted by strong or persuasive evidence.17 Not only is there no strong evidence
contradicting appellant’s statement regarding how the incident occurred, there is considerable
evidence supporting her statement. The employing establishment did not dispute that she was
involved in an incident with a patient on June 14, 2013. The incident report prepared by the
employing establishment provided that the patient pushed appellant with an open palm three
times on the left shoulder. Ms. Godfrey overheard appellant tell the patient not to hit her and that
he had ripped her pants. Ms. Stone and Ms. James heard appellant tell him that she did not come
to work to get beat up or kicked. Ms. Revels witnessed that appellant told a patient to sit in a
chair, that he slipped to a foot rest and that her pants ripped when she tried to lift the patient.18
While the number of times that the patient hit appellant, whether his fist was open or closed and
whether he pulled her down to the floor or whether she was trying to lift him are disputed, it is
not contested that the patient struck her and that her pants ripped while she was in a bent over
position. Under the circumstances of this case, the Board finds that appellant’s allegations have
not been refuted by strong or persuasive evidence and there are insufficient inconsistencies to
cast serious doubt on whether an incident occurred.19 Consequently, appellant has established
the occurrence of the June 14, 2013 work incident.
As appellant has established that a June 14, 2013 incident occurred at the time, place and
in the manner alleged, the issue is whether the medical evidence establishes that she sustained an
injury as a result of this incident.
On June 14, 2013 appellant received treatment in the emergency room for complaints of
pain after being hit in the left shoulder and neck by a patient. In a duty status report dated
June 14, 2013, a physician described the clinical findings as reduced right upper extremity motor
strength and determined that she should work limited duty. The physician did not, however,
provide a diagnosis or address causation and thus his report is of little probative value.20
In a report dated June 15, 2013, Dr. Harris related that he evaluated appellant on June 14,
2013 after she was hit by a patient with dementia in her neck, back and shoulders. He noted that
she believed that she had aggravated preexisting pain in her neck and shoulders. Dr. Harris
diagnosed scapular pain. The Board has held that pain is generally a description of a symptom
and not considered a firm medical diagnosis.21 Dr. Harris did not provide a firm diagnosis or

17

See Gregory J. Reser, supra note 14.

18

It is unclear whether Ms. Revels witnessed the entire incident that occurred between appellant and the patient.
Appellant maintained that Ms. Revels was not a witness.
19

See D.S., Docket No. 11-634 (issued October 5, 2011); M.H., 59 ECAB 461 (2008).

20

See S.E., Docket No. 08-2214 (issued May 6, 2009) (medical evidence that does not offer any opinion
regarding the cause of an employee’s condition is of diminished probative value on the issue of causal relationship).
21

See H.A., Docket No. 13-1872 (issued February 26, 2014); B.P., Docket No. 12-1345 (issued
November 13, 2012).

7

directly relate the scapular pain to the June 14, 2013 work incident. Without a firm diagnosis
supported by medical rationale, the report is of little probative value.22
On July 19, 2013 Dr. Duke discussed appellant’s history of an injury four weeks ago
when a patient hit her in the neck causing right arm and neck numbness. He noted that she had a
prior history of a fall and surgery on her cervical spine in 2004. Dr. Duke diagnosed stenosis of
the cervical spine due to osteophytes as seen by MRI scan study and found that appellant could
work with restrictions. As he did not attribute the diagnosed condition of cervical spine stenosis
to the June 14, 2013 work incident, his opinion is insufficient to meet her burden of proof.
In a form report dated July 19, 2013, Dr. Duke indicated that appellant had a history of
being hit by a patient four weeks earlier and a fall months earlier. He diagnosed cervical spinal
stenosis and checked “yes” in response to the question of whether the diagnosed condition was
caused or aggravated by employment, providing as a rationale that the condition was “possibly
aggravated.” Dr. Duke’s finding that the work incident “possibly aggravated” the diagnosed
condition of spinal stenosis is speculative in nature and thus of little probative value.23
On September 27, 2013 Dr. Tate discussed appellant’s complaints of continued neck and
shoulder symptoms that worsened after she began working as a secretary. He diagnosed cervical
radiculopathy, degenerative cervical disc disease and cervical spinal stenosis. Dr. Tate opined
that appellant’s symptoms continued to be due to her neck condition and advised her to see a
spinal specialist either through workers’ compensation or privately. He did not, however,
reference the June 14, 2013 work incident or attribute any diagnosed condition to her altercation
with a patient on that date. A physician must provide a narrative description of the employment
incident and a reasoned opinion on whether the employment incident described caused or
contributed to appellant’s diagnosed medical condition.24
An award of compensation may not be based on surmise, conjecture, speculation or upon
appellant’s own belief that there is a causal relationship between her claimed condition and her
employment.25 Appellant must submit a physician’s report in which the physician reviews those
factors of employment identified by her as causing her condition and, taking these factors into
consideration as well as findings upon examination and the medical history, explain how
employment factors caused or aggravated any diagnosed condition and present medical rationale
in support of his or her opinion.26 She failed to submit such evidence and therefore failed to
discharge her burden of proof.

22

See Samuel Senkow, 50 ECAB 370 (1999) (finding that, because a physician’s opinion of Legionnaires disease
was not definite and was unsupported by medical rationale, it was insufficient to establish causal relationship).
23

Rickey S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need
not be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).
24

John W. Montoya, 54 ECAB 306 (2003).

25

D.E., 58 ECAB 448 (2007); George H. Clark, 56 ECAB 162 (2004); Patricia J. Glenn, 53 ECAB 159 (2001).

26

See D.D., 57 ECAB 734 (2006); Robert Broome, 55 ECAB 339 (2004).

8

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she sustained an injury on June 14,
2013 in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the June 14, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: November 3, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.T., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 14-1282
Issued: October 9, 2014

Case Submitted on the Record

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

JURISDICTION
On May 12, 2014 appellant, through his attorney, timely appealed the April 9, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has greater than two percent impairment of the right lower
extremity.

1
2

5 U.S.C. §§ 8101-8193.

The record on appeal contains evidence received after OWCP issued its April 9, 2014 decision. The Board is
precluded from considering evidence that was not in the case record at the time OWCP rendered its final decision.
20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
Appellant, a 41-year-old former marine machinist, injured his right knee in the
performance of duty on March 10, 2013.3 OWCP initially accepted his claim for right knee
sprain. The claim was later expanded to include right knee internal derangement, partial tear of
the right anterior cruciate ligament and right leg villonodular synovitis. Additionally, OWCP
authorized a June 20, 2003 right knee arthroscopic procedure. Although appellant was capable
of performing limited-duty work, the employing establishment was unable to accommodate his
work restrictions.4 Accordingly, OWCP paid wage-loss compensation for temporary total
disability and placed him on the periodic compensation rolls.
Effective August 28, 2011, OWCP terminated appellant’s wage-loss compensation and
medical benefits. It based its decision on the May 12, 2011 report of Dr. Robert A. Fullord, a
Board-certified orthopedic surgeon and OWCP referral physician.5 By decision dated
April 2, 2012, the Branch of Hearings and Review affirmed OWCP’s August 19, 2011 decision
terminating benefits.
On April 30, 2012 appellant filed a claim for a schedule award (Form CA-7).
In a report dated July 3, 2012, Dr. Stuart J. Goodman, a Board-certified neurologist,
found five percent right lower extremity permanent impairment under the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (2008). He
indicated that the rating was based on class 1 impairment with “mild motion deficits” under
Table 16-3, Knee Regional Grid (LEI), A.M.A., Guides 509 (6th ed. 2008). However,
Dr. Goodman’s July 3, 2012 report did not include range of motion measurements (ROM) with
respect to appellant’s right lower extremity.6 He also indicated that appellant reached MMI prior
to 2006.
OWCP’s district medical adviser, Dr. Leonard A. Simpson, reviewed the case record on
January 19, 2013 and found two percent right lower extremity impairment under Table 16-3,
A.M.A., Guides 509 (6th ed. 2008). He based his rating on a diagnosis of muscle/tendon strain
with palpatory findings and/or radiographic findings. This represented class 1 (CDX 1)
impairment with a default rating (grade C) of two percent.7 Dr. Simpson then calculated a net
3

Appellant twisted his knee while walking off the brow of a ship.

4

The employing establishment removed appellant from service effective July 23, 2004.

5

Dr. Fullord found that appellant had reached maximum medical improvement (MMI) in March 2004 and was
capable of performing his usual job without restrictions. He concluded that the effects of appellant’s work injury
had ceased without disabling residuals.
6

Appellant complained of pain, discomfort and swelling of the right knee with activity. He also stated that his
knee would pop out of line. Dr. Goodman’s neurological examination revealed normal strength. He also reported
tenderness of the right patella region. Appellant was unable to squat down to his knees. Reflexes were 1+/4 and
plantar response was normal (“flexor”). Sensory examination was intact and cerebellar examination was normal.
Also, Romberg’s test was negative and appellant was able to tandem gait.
7

Dr. Simpson disagreed with the July 3, 2012 rating for mild motion deficit because Dr. Goodman did not
document ROM of either knee. As such, there was no clear evidence of right knee ROM limitation to support
Dr. Goodman’s five percent right lower extremity impairment rating.

2

adjustment of -1 based on grade modifiers for Functional History (GMFH 1) and Physical
Examination (GMPE 0).8 The -1 adjustment from grade C to B still represented a right lower
extremity impairment of two percent under Table 16-3, A.M.A., Guides 509 (6th ed. 2008).
Dr. Simpson found that appellant reached MMI prior to Dr. Goodman’s July 3, 2012 evaluation.
He recommended an MMI date of no more than three years following appellant’s right knee
arthroscopy; June 20, 2006 at the latest.
On February 28, 2013 OWCP granted a schedule award for two percent right lower
extremity impairment.9 The decision indicated that appellant reached MMI as of June 20, 2006.
By decision dated June 11, 2013, the Branch of Hearings and Review set aside the
February 28, 2013 schedule award and remanded the case for OWCP to obtain clarification from
Dr. Simpson regarding his selection of a retroactive date of MMI.
In a June 28, 2013 report, Dr. Simpson, reiterated his two percent right lower extremity
impairment rating. Additionally, he referenced a March 9, 2006 progress report from Dr. Loel Z.
Payne as indicating that appellant reached MMI at some point in calendar year 2006.
Dr. Simpson explained that MMI would appear to be supported on or about three years following
appellant’s June 2003 right knee surgery. He also acknowledged that MMI could technically be
based on Dr. Goodman’s July 3, 2012 evaluation.
On August 21, 2013 OWCP issued an amended schedule award for two percent right
lower extremity impairment with a March 9, 2006 date of MMI.
In an April 9, 2014 decision, the Branch of Hearings and Review affirmed OWCP’s
August 21, 2013 schedule award.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.10 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the American Medical Association, Guides to the
Evaluation of Permanent Impairment as the appropriate standard for evaluating schedule

8

Net Adjustment (-1) ꞊ (GMFH 1 -- CDX 1) + (GMPE 0 -- CDX 1). See Section 16.3d, A.M.A, Guides 521
(6 ed. 2008). The district medical adviser did not include a grade modifier for Clinical Studies (GMCS) because it
was nonapplicable at the time of MMI.
th

9

The award covered a period of 5.76 weeks from August 28 through October 7, 2011.

10

For complete loss of use of a leg, an employee shall receive 288 weeks’ compensation. 5 U.S.C. § 8107(c)(2).

3

losses.11 Effective May 1, 2009, schedule awards are determined in accordance with the sixth
edition of the A.M.A., Guides (2008).12
If there is disagreement between the physician making the examination for OWCP and
the employee’s physician, OWCP shall appoint a third physician who shall make an
examination.13 For a conflict to arise the opposing physicians’ viewpoints must be of “virtually
equal weight and rationale.”14 Where OWCP has referred the employee to an impartial medical
examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if
sufficiently well rationalized and based upon a proper factual background, must be given special
weight.15
ANALYSIS
Counsel previously argued that OWCP should have based the schedule award on
Dr. Goodman’s July 3, 2012 rating of five percent impairment of the right lower extremity.
Alternatively, he argued there was a conflict between Dr. Simpson and Dr. Goodman and,
therefore, OWCP should have referred appellant to an impartial medical examiner.
For a conflict to arise the opposing physicians’ viewpoints must be of “virtually equal
weight and rationale.”16 Dr. Goodman based his five percent right lower extremity impairment
rating on “mild motion deficits.” Although he referenced Table 16-3, Knee Regional Grid (LEI),
A.M.A., Guides 509 (6th ed. 2008), he did not indicate the diagnosis upon which he based his
rating. Dr. Simpson correctly noted that Dr. Goodman did not provide bilateral knee ROM
measurements in support of his finding of “mild motion deficits.”17 Given the deficiencies in
Dr. Goodman’s July 3, 2012 impairment rating, OWCP reasonably deferred to Dr. Simpson.
Contrary to counsel’s argument, there is no reasonable basis upon which to declare a conflict in
medical opinion.
The Board finds that Dr. Simpson’s two percent impairment rating conforms to the
A.M.A., Guides (6th ed. 2008), and thus, represents the weight of the medical evidence regarding
the extent of appellant’s right lower extremity impairment. Dr. Simpson’s rating, which was
11

20 C.F.R. § 10.404.

12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.6a (February 2013).
13

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994). Dr. Simpson, acting
on behalf of OWCP, may create a conflict in medical opinion. 20 C.F.R. § 10.321(b).
14

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

15

Gary R. Sieber, 46 ECAB 215, 225 (1994).

16

Supra note 14.

17

Under Table 16-3, the diagnosis of muscle/tendon strain includes class 1 impairment for “Mild motion
deficits.” See A.M.A., Guides 509 (6th ed. 2008). For this particular diagnosis, the range of lower extremity
impairment is from five to nine percent, with seven percent representing the default (C) grade. Id. Dr. Goodman
did not provide an analysis regarding applicable grade modifiers, and thus, he did not calculate a net adjustment.

4

based on a diagnosis of muscle/tendon strain with palpatory findings and/or radiographic
findings, is supported by the record, including Dr. Goodman’s July 3, 2012 examination.
Furthermore, his assigned grade modifiers for functional history and physical examination,
which resulted in a net adjustment of -1.18 Accordingly, the final rating was two percent right
lower extremity impairment under Table 16-3, Knee Regional Grid (LEI), A.M.A., Guides 511
(6th ed. 2008). There is no credible medical evidence indicating a greater right lower extremity
impairment than previously awarded.
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
Appellant has not demonstrated that he has greater than two percent impairment of the
right lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the April 9, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 9, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

18

See supra note 8.

5


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

)
)
)
)
)
)
)
)

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

Docket No. 16-1811
Issued: May 17, 2017

Case Submitted on the Record

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

JURISDICTION
On September 13, 2016 appellant, through counsel, filed a timely appeal from a June 24,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that appellant submitted new evidence following the June 24, 2016 decision. Since the Board’s
jurisdiction is limited to evidence that was before OWCP at the time it issued its final decision, the Board may not
consider this evidence for the first time on appeal. See 20 C.F.R. § 501.2(c)(1); Sandra D. Pruitt, 57 ECAB
126 (2005).

ISSUE
The issue is whether appellant has established a recurrence of disability commencing
June 1, 2015 causally related to his accepted employment injury.
FACTUAL HISTORY
On June 14, 2013 appellant, then a 50-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that on May 6, 2012 he sustained a herniated disc as a result of
driving a mail truck. He stopped work on July 26, 2012. On April 3, 2013 appellant underwent
lumbar microdiscectomy, laminectomy, foraminotomy, and partial facetectomy at L5-S1 on the
left. OWCP accepted his claim for herniated disc at L5-S1 without myelopathy and thoracic or
lumbar neuritis or radiculitis. It paid wage-loss compensation commencing July 26, 2012.
Dr. Francisco Battle, a neurosurgeon, treated appellant. In an August 12, 2013 duty
status report (Form CA-17), he noted diagnoses of lumbago and displacement of lumbar
intervertebral disc without myelopathy. Dr. Battle advised that appellant could return to work
with restrictions of no lifting or carrying more than 20 pounds. He also noted that driving should
be limited to seven hours; simple grasping for six hours; standing, walking, climbing, and fine
manipulation for three hours; sitting, twisting, and reaching above the shoulder for two hours;
and bending, stooping, pushing, and pulling for one hour.
In an August 16, 2013 attending physician’s report (Form CA-20), Dr. Battle noted
diagnosis of lumbar radiculopathy. He related that appellant was able to return to light-duty
work with restrictions of no lifting over 20 pounds, no squatting, stooping, repetitive bending,
working at heights and overhead, and needing to be able to sit, stand, and walk at will.
Appellant was also treated by Dr. Frank Gonzales, a chiropractor. In an August 16, 2013
Form CA-20, Dr. Gonzales indicated that appellant had a history of back pain radiating to his
legs. He noted diagnoses of somato dysfunction of the lumbar region, displacement of lumbar
intervertebral disc without myelopathy, and lumbosacral neuritis.
On August 20, 2013 the employing establishment offered appellant a part-time light-duty
position as a letter carrier. This position required that appellant work six hours per day with
restrictions. The duties of his modified assignment included performing vehicle check, casing
mail for one and a half hours, delivering mail for four and a quarter hours, pulling down and
loading vehicles for 15 minutes, and performing vehicle check for 3 minutes. The physical
requirements of his position were simple grasping for six hours, driving a vehicle for four to six
hours, and walking and standing for three hours.
Appellant returned to modified-duty work on August 21, 2013 working six hours a day
pursuant to his work restrictions. OWCP paid wage-loss compensation for the additional two
hours a day that he did not work.
Dr. Thomas Martens, an osteopath specializing in family medicine, began to treat
appellant on June 1, 2015. In a progress report, he noted appellant’s accepted diagnoses of
displacement of lumbar intervertebral disc without myelopathy and thoracic or lumbosacral

2

neuritis or unspecified radiculitis. Dr. Martens indicated that appellant had been working six
hours daily with modifications since September 2, 2013. He related appellant’s complaints of
lumbar pain radiating down his left and right leg. Dr. Martens recounted that appellant believed
his symptoms worsened when the new postmaster required appellant to carry and dismount his
mailbag. Upon physical examination, he observed decreased range of motion, extension, and
flexion of the lumbar spine. Straight leg raise testing was positive on the right and negative on
the left. Dr. Martens reported decreased extension, flexion, and effusion of the right knee.
Examination of the right shoulder revealed decreased shoulder movement and muscle pain.
Dr. Martens diagnosed displacement of the lumbar intervertebral disc without myelopathy,
thoracic or lumbosacral neuritis or radiculitis, right shoulder internal derangement, and right
knee internal derangement. He recommended a functional capacity evaluation (FCE) to
determine appellant’s return to work status.
In a June 1, 2015 Form CA-17, Dr. Martens reported a diagnosis of displacement of
lumbar intervertebral disc. He indicated that appellant could work part time for four hours a day
with restrictions of lifting, carrying, simple grasping, and sitting for four hours per day, fine
manipulation for two hours per day, and standing, walking, bending, stooping, twisting, pushing,
pulling, and driving a vehicle for one hour per day.
Dr. Martens further indicated in a June 3, 2015 letter to OWCP that he had treated
appellant for work-related conditions to his lower back due to his repetitive work-related duties
as a letter carrier for the past 26 years. He noted that appellant had worked modified duty since
September 2013 and reported that recently the new postmaster required that he carry and
dismount his mailbag. Dr. Martens related appellant’s complaints of constant lumbar pain
radiating down both legs. He reported physical examination findings of decreased extension,
flexion, and range of motion of the lumbar spine. Dr. Martens also noted decreased extension,
flexion, and effusion of appellant’s right knee and decreased shoulder movement and muscle
pain of the right shoulder. He opined that as a result of appellant’s continued repetitive duties
and overcompensating for pain in his back, appellant’s right knee and shoulder complaints had
worsened and had caused right knee internal derangement and right shoulder internal
derangement. Dr. Martens explained that appellant’s right knee internal derangement and right
shoulder internal derangement were consequential to appellant’s initial lumbar conditions. He
requested that OWCP accept the additional diagnoses of knee internal derangement and shoulder
internal derangement as a result of appellant’s repetitive work duties.
Regarding appellant’s work capacity, Dr. Martens explained that the effects of
appellant’s work injury and disability limited him from returning to work at a full-duty capacity.
He reported that appellant’s current limitations were sitting and lifting for four hours day,
repetitive movements of the wrist for two hours a day, walking, standing, twisting, operating a
motor vehicle and repetitive movements of the elbows, pushing, and pulling for one hour per
day. Dr. Martens further restricted appellant to lifting, pushing, and pulling up to 20 pounds and
no reaching, reaching above the shoulders, squatting, kneeling, or climbing.
On June 9, 2015 appellant filed a claim for wage-loss compensation (Form CA-7)
claiming additional wage loss for the period May 16 to 29, 2015. The time analysis form (Form
CA-7a) indicated that appellant took leave on the dates claimed from May 16 through 20, 2015
and worked six hours per day from May 21 through 29, 2015.

3

In a June 12, 2015 magnetic resonance imaging (MRI) scan report, Dr. Anita Rich, a
Board-certified diagnostic radiologist, noted radial tearing of the in the medial meniscus of the
right knee, tricompartmental osteoarthritic change in the knee with areas of grade 3 to 4 chondral
loss along the patella trochlea and medial femoral condyle with mild to moderate reactive or
stress-related subchondral marrow edema and subchondral cystic change in the patellofemoral
compartmental, and moderate suprapatellar effusion.
On June 15, 2015 appellant filed another Form CA-7 alleging wage-loss compensation
for the period May 30 to June 12, 2015. The employing establishment remarked that an
unauthorized doctor had reduced appellant’s work hours and noted that a recurrence needed to be
developed. Appellant continued to file Forms CA-7 claiming wage-loss compensation for four
hours a day beginning June 12, 2015. The time analysis forms (Form CA-7a) indicated that
beginning June 3, 2015 appellant worked four hours and claimed wage-loss compensation for the
remaining four hours.
By letters dated June 17 and 19, 2015, OWCP informed appellant that additional
evidence was needed to establish that he was entitled to disability compensation beginning
May 19, 2015 as a result of his accepted back condition. It requested that he submit a
comprehensive medical report, which explained how his lumbar condition had worsened to the
extent that he was no longer able to perform the duties of his position when he stopped work on
May 19, 2015.
Dr. Martens continued to treat appellant. In a July 1, 2015 report, he noted that appellant
was removed from work and remained incapacitated at this time due to the severity of range of
motion deficit. Upon examination, Dr. Martens observed decreased trapezius height of the left
shoulder when compared to the right, edema to the anterior aspect at the deltoid and rotator cuff,
and pain with palpation at the rotator cuff particularly supraspinatus insertion. He reported that
Speed’s test on the left was positive with inability to externally rotate the left shoulder.
Neurological examination revealed intact deep tendon reflexes bilaterally. Dr. Martens
explained that appellant was incapacitated pending medical improvement. He reported that
appellant’s incapacitation was fully supported by the factual clinical findings and physical
examination. Dr. Martens indicated that appellant was currently unable to perform at the
physical demand required for his position of rural letter carrier. He noted that appellant’s
incapacitation from June 15 through July 10, 2015 was medically certified.
Appellant requested, in a letter dated July 2, 2015, that Dr. Martens be authorized as his
treating physician. He indicated that he filled out the paperwork authorizing Dr. Martens to be
his treating physician and asked that if there was any additional paperwork to fill out to please let
him know. In a letter dated September 21, 2015, OWCP denied appellant’s request for a change
of physicians.
In a July 9, 2015 Form CA-17, Dr. Martens noted appellant’s clinical finding of
displacement of lumbar intervertebral disc. He indicated that appellant was authorized to work
modified duty four hours per day.
On July 13, 2015 OWCP received a handwritten letter from appellant. He explained that
he had been on sick leave since February 28, 2015 due to a broken ankle and had returned to

4

modified-duty work on May 21, 2015.
Appellant recounted that on May 22, 2015
Postmaster D.N. informed him that he needed a new Form CA-17 with updated restrictions and
instructed him to deliver his entire route, including the park and loop of 2026 through 2027.
When he asked Postmaster D.N. for a PS Form 3996 because his medical restrictions limited him
from delivering the park and loop sections, Postmaster D.N. told him that he did not need a PS
Form 3996 because of all the mail was loaded onto the truck parcels. Appellant reported that he
delivered the mail as ordered, but needed help to finish the park and loop on May 22, 23,
and 26, 2015. He asserted that on May 27, 2015 Postmaster D.N. informed him that he spoke
with appellant’s occupational nurse and they decided that appellant no longer had work
restrictions. Postmaster D.N. instructed appellant to load up his mail truck and deliver the mail
without any help. Appellant continued to work without restrictions and was finally able to fill
out a PS Form 3996 on May 29, 2015. He related that on May 30, 2015 he began to experience
pain in the right side of his back, leg, and shoulder. Appellant alleged that Postmaster D.N.
pushed him past his work restrictions for three days and now his medical conditions had
worsened. He submitted a PS Form 3996 dated May 28, 2016.
In a decision dated July 28, 2015, OWCP denied appellant’s claim for wage-loss
compensation beginning May 16, 2015. It determined that the medical evidence of record failed
to establish that his accepted lumbar condition worsened to the extent that he was no longer able
to perform his modified-duty work. Accordingly, OWCP found that appellant failed to establish
that his disability beginning May 16, 2013 was a result of his accepted employment conditions.
On August 13, 2015 OWCP received appellant’s request for reconsideration. Appellant
submitted an August 12, 2015 report by Dr. Martens. Dr. Martens recounted that appellant
sustained a lower back condition as a result of his repetitive, work-related duties. He noted that
he reviewed OWCP’s July 28, 2015 denial letter based on the lack of a well-reasoned medical
opinion to support causal relationship. Dr. Martens requested that OWCP clearly review his
previous narrative. He included an excerpt from his June 3, 2015 report where he explained that
due to appellant overcompensating for his back pain, appellant’s right knee and shoulder had
worsened. Upon physical examination, Dr. Martens observed decreased range of motion of the
back and back antalgic gait. He also reported decreased flexion, extension, and effusion of the
right knee. Dr. Martens provided a copy of section 8102 of FECA. He requested that OWCP
review the medical evidence and reconsider acceptance of appellant’s disability compensation
claim. Dr. Martens continued to submit Form CA-17s which indicated that appellant could work
four hours per day.
On August 26, 2015 OWCP received a letter from appellant’s counsel requesting a
telephone hearing before an OWCP hearing representative.4 A telephonic hearing was held on
April 14, 2016. Appellant testified that he was working modified duty six hours per day and was
receiving wage-loss compensation for the other two hours. He testified that on May 28, 29, and
30 the current postmaster pushed him and gave him direct orders to work the two hours
delivering a park and loop on his route. Appellant explained that delivering mail on the park and
loop required walking house to house and carrying his mailbag to deliver mail. He related that
4

In a letter dated August 27, 2015, OWCP informed appellant that it received his attorney’s request for a
telephone hearing and would take no further action on his request for reconsideration.

5

his back and bilateral knees began to hurt. Appellant reported that he sought medical treatment
from Dr. Martens, who ordered a lower extremity MRI scan which showed that the tissues in his
knee were injured. He noted that Dr. Martens placed him on restrictions working four hours per
day. Appellant indicated that the employing establishment would not accommodate his new
work restrictions so he stopped work. The hearing representative clarified that appellant was
alleging that there was a change in his modified work assignment when Postmaster D.N.
instructed him to work the full eight hours on May 28, 29, and 30 and to deliver mail on the park
and loop routes. She noted that appellant was to claim an additional injury and disability due to
these new work activities.
Appellant provided a letter from Dr. Martens dated May 6, 2016, which was similar to his
June 3, 2015 letter. He reported that appellant had accepted conditions of lumbar disc
displacement and lumbosacral radiculitis and noted additional diagnoses of right knee and left
knee internal derangement. Dr. Martens again explained that due to appellant’s continued
repetitive duties and overcompensating for his back pain, his right and left knee worsened and
caused the condition of bilateral knee internal derangement. He related that the effects of
appellant’s work injury persisted and prevented him from returning to full-duty work.
Dr. Martens indicated that appellant was capable of working modified duty of four hours per
day. He opined that appellant’s bilateral knee internal derangement was a direct result of
appellant’s accepted lumbar conditions. Dr. Martens explained that since appellant’s bilateral
knee internal derangements were consequential to appellant’s original claim, OWCP should add
these conditions as compensable injuries.
In a May 31, 2016 letter, Dr. Martens indicated that appellant suffered from a low back
and bilateral knee condition as a result of his repetitive work duties. He related that an
electromyography (EMG) and nerve conduction velocity (NCV) study performed on May 16,
2016 revealed evidence supportive of chronic left and right L5 radiculopathy. Dr. Martens
further noted that a June 12, 2015 MRI scan examination demonstrated radial tearing in the
medial meniscus of the right knee. He provided examination findings similar to his previous
examinations. Dr. Martens opined that due to the extent of appellant’s condition he had
experienced “documented measurable physical disability which resulted in incapacitation from
June 1, 2015 through May 31, 2016 and continuing.” He reported that appellant had functional
deficits on examination, decreased muscle strength, decreased range of motion, decreased overall
function, and significant increase of pain, which caused incapacitation for the dates listed.
Dr. Martens explained that appellant continued to suffer from his ongoing physical disabilities
related to the progressive degeneration of his lower back and bilateral knee that originated as a
result of a work-related injury. He reported that, due to the residual effects of these injuries with
activities of daily living, he experienced a period of incapacitation. Dr. Martens concluded that
“due to the nature and severity of [appellant’s] work-related injury on May 26, 2012, the patient
had been totally temporarily disabled and continues to require incapacitation until further
evaluation.” He submitted the May 16, 2016 EMG/NCV testing report and resubmitted his
previous Form CA-17s.
Dr. Martens reiterated his examination findings and medical opinion in a June 1, 2016
letter. He added that appellant also sustained right knee medial meniscus tear as consequence of
his accepted low back condition. Dr. Martens recommended that appellant continue to work

6

modified duty four hours per day. He noted that it was unknown when appellant would return to
full duty.
On June 10, 2016 OWCP paid additional wage-loss compensation for two hours per day
for the period May 16 to 31, 2015.
By decision dated June 24, 2016, an OWCP hearing representative affirmed the July 28,
2015 decision, with modification. She noted that because OWCP paid additional wage-loss
compensation for the period May 16 to 31, 2015, the issue regarding additional wage-loss
compensation during this period was moot. The hearing representative denied appellant’s claim
for recurrent disability beginning June 1, 2015 because she determined that the medical evidence
of record failed to establish that appellant’s reduced work hours were causally related to a
worsening of his work-related conditions.5
LEGAL PRECEDENT
An employee seeking benefits under FECA bears the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence. For each period of disability
claimed, the employee must establish that he was disabled from work as a result of the accepted
employment injury. 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 reliable, probative, and substantial medical opinion evidence.6 Findings on
examination and a physician’s opinion, supported by medical rationale, are needed to show how
the injury caused the employee’s disability for his particular work.7 For each period of disability
claimed, the employee must establish that he was disabled for work as a result of the accepted
employment injury. The Board will not require OWCP to pay compensation for disability for
which compensation is claimed. To do so would essentially allow an employee to self-certify his
or her disability and entitlement to compensation.8
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 resulted from a previous injury or illness without an intervening injury or new
exposure to the work environment that caused the illness.9 This term also means an inability to
work when a light-duty assignment made specifically to accommodate an employee’s physical
limitations due to his or her work-related injury or illness is withdrawn (except when such
withdrawal occurs for reasons of misconduct, nonperformance of job duties or a reduction-inforce) or when the physical requirements of such an assignment are altered such that they exceed
5

The hearing representative further noted that, to the extent that Dr. Martens opined that appellant developed
consequential right shoulder and bilateral knee conditions due to new employment exposure, she advised appellant
that he could file a new occupational disease claim.
6

Amelia S. Jefferson, 57 ECAB 183 (2005); William A. Archer, 55 ECAB 674 (2004).

7

Dean E. Pierce, 40 ECAB 1249 (1989).

8

Amelia S. Jefferson, supra note 6.

9

20 C.F.R. § 10.5(x).

7

the employee’s physical limitations.10 Appellant has the burden of proof to establish that there
was no medically appropriate light duty available for the claimed period.11
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 of
record establishes that he or she can perform the limited-duty position, the employee has the
burden to establish by the weight of the reliable, probative, and substantial evidence a recurrence
of total disability and to show that he or she cannot perform the limited-duty position. As part of
this burden, the employee must show either a change in the nature and extent of the injuryrelated condition or a change in the nature and extent of the limited-duty requirements.12 This
burden includes the necessity of furnishing evidence from a qualified physician who concludes,
on the basis of a complete and accurate factual and medical history, that the disabling condition
is causally related to employment factors and supports that conclusion with sound medical
reasoning.13
ANALYSIS
OWCP accepted that appellant sustained a herniated disc at L5-S1 without myelopathy
and lumbar radiculitis as a result of his duties as a city carrier. He stopped work and returned to
modified duty work on August 21, 2013 working six hours per day. OWCP paid wage-loss
compensation for the remaining two hours per day. Appellant filed claims for wage-loss
compensation (Forms CA-7) commencing June 1, 2015 claiming disability compensation for the
remaining four hours per day. OWCP denied his recurrence claim finding that he failed to
provide sufficient medical evidence to establish that his reduced work hours were causally
related to a worsening or change of his accepted lumbar condition. The Board finds that the
medical evidence of record is insufficient to establish that appellant was unable to work his
modified-duty position six hours per day beginning June 1, 2015 as a result of his accepted
injury.
The only medical reports addressing appellant’s claimed dates of disability are narrative
letters and Forms CA-17 from Dr. Martens dated June 1, 2015 to June 1, 2016. In a June 1, 2015
report and Form CA-17, he noted appellant’s accepted diagnoses of displacement of lumbar
intervertebral disc without myelopathy and thoracic or lumbosacral neuritis or unspecified
radiculitis. Dr. Martens recounted that beginning September 2013 appellant had worked six
hours per day with modifications. He provided physical examination findings and reported
additional diagnoses of right shoulder internal derangement and right knee internal derangement.
Dr. Martens authorized appellant to return to part-time modified-duty work with specified
restrictions for four hours per day. He did not, however, provide an opinion that appellant’s
10

Id.

11

J.F., 58 ECAB 124 (2006).

12

Albert C. Brown, 52 ECAB 152 (2000); Mary A. Howard, 45 ECAB 646 (1994); Terry R. Hedman, 38 ECAB
222 (1986).
13

Ronald A. Eldridge, 53 ECAB 218 (2001); see Nicolea Bruso, 33 ECAB 1138 (1982). Federal (FECA)
Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.2 (January 2013).

8

inability to work modified duty six hours per day was causally related to his accepted lumbar
condition or otherwise provide medical reasoning explaining why any disability was due to the
employment injury.14
In his July 1, 2015 report, Dr. Martens suggested that appellant’s increased disability was
due to left shoulder complaints. The Board notes that his previous medical reports had referred
to appellant’s right shoulder complaints. Dr. Martens’ lack of explanation makes it unclear if his
findings regarding appellant’s right or left shoulder were the result of a preexisting
nonoccupational condition, caused by a new injury from appellant’s limited-duty assignment, or
due to a recurrence of disability. He failed to provide the required link relating the disability to
appellant’s previously accepted work injuries to establish a spontaneous worsening of the
accepted conditions.15 Dr. Martens did not provide a rationalized medical explanation as to why
appellant’s shoulder complaints were caused by the accepted lumbar injury and caused increased
disability after June 1, 2015.
As of his August 13, 2015 report, Dr. Martens seemingly attributed appellant’s inability
to work modified duty to both appellant’s accepted lumbar condition and to a bilateral knee
condition. In a May 6, 2016 letter to OWCP, he explained that due to appellant’s continued
repetitive work duties and overcompensating for his back pain, appellant’s bilateral knees
worsened and caused bilateral knee derangement. Dr. Martens opined that appellant’s bilateral
knee condition was a direct result of his accepted lumbar conditions. He reported that the effects
of appellant’s work injury persisted and prevented him from returning to full duty. Dr. Martens
noted that appellant was capable of working modified duty for four hours per day. In a May 31,
2016 letter, he reported that appellant experienced “documented measurable physical disability
which resulted in incapacitation from June 1, 2015 through May 31, 2016 and continuing.”
Dr. Martens explained that appellant still suffered from the progressive degeneration of his lower
back and bilateral knee conditions that originated as a result of a work-related injury.
The Board finds that Dr. Martens did not provide a rationalized medical opinion
substantiating that appellant’s accepted lumbar conditions worsened, causing total disability. To
the extent that Dr. Martens attributes appellant’s bilateral knee condition to his accepted lumbar
condition, it is noted that for conditions not accepted by OWCP as being employment related, it
is the employee’s burden of proof to provide rationalized medical evidence sufficient to establish
causal relationship, not OWCP’s burden to disprove such a relationship.16 The Board finds,
however, that Dr. Martens did not provide any explanation based on objective medical findings
and rationale, demonstrating how appellant’s bilateral knee condition, and any resultant
disability, resulted from his accepted lumbar condition.17 The Board has found that medical
evidence that offers a conclusion, but does not offer any rationalized medical explanation is of
14

See William A. Archer, 55 ECAB 674 (2004) (the Board will not require OWCP to pay compensation for
disability in the absence of medical evidence directly addressing the specific dates of claimed disability).
15

See L.N., Docket No. 16-566 (issued October 18, 2016).

16

G.A., Docket 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger, 51
ECAB 638 (2000).
17

See J.C., Docket No. 15-1780 (issued March 17, 2016).

9

limited probative value.18 Accordingly, appellant has failed to meet his burden of proof to
establish a bilateral knee condition as a result of his accepted lumbar condition, and therefore,
was unable to work his modified-duty position.
Other medical evidence provided by appellant either predates the claimed period of
disability beginning June 1, 2015 or does not specifically address how there was a spontaneous
change or worsening of appellant’s accepted lumbar condition which caused a recurrence of
disability beginning June 1, 2015.19 For these reasons, the Board finds that appellant did not
meet his burden of proof to establish a recurrence of disability beginning June 1, 2015.
To the extent that appellant is alleging a worsening of his accepted conditions due to the
Postmaster’s assignment of additional duties on May 22, 2015, this would constitute a new injury
rather than a spontaneous recurrence of disability. A recurrence of disability does not include
disability resulting from exposure to new work factors. Moreover, any disability resulting from a
condition aggravated by employment duties would be considered a new injury rather than a
recurrence of disability.20
On appeal counsel alleges that the claim should have been more fully developed, the
claimant described a classic recurrence, and the decision is contrary to fact and law. As
explained above, however, the Board finds that the evidence of record failed to establish that his
accepted lumbar condition changed or worsened to the extent that he was no longer able to work
his modified-duty position beginning June 1, 2015. The medical evidence is insufficient to
establish a causal relationship between appellant’s alleged recurrence of disability and his
accepted lumbar condition or to warrant any further development.
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 a recurrence of disability commencing
June 1, 2015 causally related to his accepted employment injury.

18

T.M., Docket No. 08-975 (February 6, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

19

K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB 386 (1997).

20

D.D., Docket No. 16-0701 (issued July 18, 2016).

10

ORDER
IT IS HEREBY ORDERED THAT the June 24, 2016 merit decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 17, 2017
Washington, DC

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

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

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

11


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.P., Appellant
and
DEPARTMENT OF THE ARMY,
Fort Richardson, AK, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
David Holdsworth, Esq., for the appellant
Office of the Solicitor, for the Director

Docket No. 07-123
Issued: August 10, 2007

Oral Argument July 10, 2007

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 17, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated July 27, 2006. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether the Office properly determined that an overpayment of
$59,204.42 was created from August 12, 1982 to September 6, 2003 for failure to deduct health
benefit insurance premiums; (2) whether the Office properly denied waiver of the overpayment;
and (3) whether the Office properly found that the overpayment should be collected by deducting
$400.00 from appellant’s continuing compensation payments.
FACTUAL HISTORY
The Office accepted that appellant sustained an acute lumbosacral strain and aggravation
of degenerative disc disease as a result of a February 3, 1978 lifting incident in the performance
of duty. He began receiving compensation for temporary total disability.

Appellant periodically submitted information relevant to receipt of compensation
benefits. The record indicates, for example, that appellant was divorced on January 10, 1989;
remarried on March 7, 1989 and divorced on November 30, 1992. He also provided information
regarding current dependants on CA-1032 forms.
In a letter dated October 8, 2003, the Office advised appellant of a preliminary
determination that an overpayment of compensation had occurred. The Office explained that
health benefit insurance premiums had not been deducted from his continuing compensation
payments from August 12, 1982 to September 6, 2003. The amount of the overpayment was
reported as $66,930.70. The Office also made a preliminary determination that appellant was not
at fault in creating the overpayment.
The record contains an undated, handwritten memorandum calculating the amount of the
overpayment. The memorandum referred to Blue Cross Blue Shield “Code 105” for the years
2002 and 2003 and “Code 102” for the years from 1982 to 2001. For each year an amount owed
for the claimant and the employing establishment was reported based on a periodic roll cycle.
The total amount for the period August 12, 1982 to September 6, 2003 was reported as
$66,930.70 for the employing establishment and $68,804.42 for the claimant.
Appellant requested a prerecoupment hearing before an Office hearing representative,
which was held on April 28, 2004. By decision dated July 22, 2004, the Office hearing
representative finalized the preliminary determination of a $66,930.70 overpayment. The
hearing representative denied waiver of the overpayment based on the financial evidence of
record and determined the overpayment should be recovered by deducting $400.00 from
continuing compensation payments.
Appellant filed an appeal with the Board. By order dated March 27, 2006, the Board
granted the Director’s motion to remand to clarify the amount of the overpayment. In a letter
dated June 21, 2006, the Office advised appellant that the amount of the overpayment was
$68,804.42, minus $9,600.00 already paid, or $59,204.42. The Office included a calculation of
the overpayment based on the prior handwritten memorandum. For the year 2001, the Office
noted, “$278.64 x 13 periodic roll cycles” or a total owed of $3,622.32 for this period. No
explanation of insurance codes or other information was provided. The Office requested that
appellant submit current financial information.
By decision dated July 27, 2006, the Office determined that an overpayment of
$59,204.42 was created from August 12, 1982 to September 6, 2003. The Office denied waiver
of the overpayment, finding that appellant had not submitted current financial information.
Appellant was advised the overpayment would be recovered by deducting $400.00 from
continuing compensation payments.
LEGAL PRECEDENT
The regulation of the Office of Personnel Management (OPM), which administers the
Federal Employee Health Benefits (FEHB) Program, provides guidelines for the registration,

2

enrollment and continuation of enrollment for federal employees. In this connection, 5 C.F.R.
§ 890.502(b)(1) provides:
“An employee or annuitant is responsible for payment of the employee’s share of
the cost of enrollment for every pay period during which the enrollment
continues. In each pay period for which health benefits withholdings or direct
premium payments are not made but during which the enrollment of an employee
or annuitant continues, he or she incurs an indebtedness due to the United States
in the amount of the proper employee withholding required for that pay period.”
ANALYSIS
In the present case, appellant does not contest that the compensation payments he
received from August 12, 1982 to September 6, 2003 failed to deduct for health benefit insurance
premiums. As noted above, when the proper employee withholding is not made during a period
of enrollment, the claimant incurs indebtedness. The Board finds that an overpayment of
compensation was created due to the failure to deduct health insurance premiums in this case.
Appellant does contest the amount of the overpayment. The Office determined that the
actual amount that should have been deducted from August 12, 1982 to September 6, 2003 was
$68,804.42. Since appellant had paid $9,600.00, the stated overpayment was $59,204.42.
With respect to the amount of the overpayment, the Office is required to provide a clear
explanation as to how the amount was calculated.1 The information provided by the Office
consisted of listing by year the amount owed by appellant, based on a specific amount for a
periodic roll cycle. The amounts reported were apparently based on the handwritten, undated
memorandum submitted to the record in October 2003. The Office failed to provide any relevant
information as to how these amounts were calculated and why the figures were correct based on
the factual history of the case. For example, the record clearly indicated that during the period
appellant received compensation his marital status had changed. A divorce decree indicated that
he was divorced as of November 30, 1992, and on subsequent CA-1032 forms appellant did not
claim dependants. The handwritten memorandum made brief reference to codes 102 and 105,
which are codes representing family coverage.2 The Office did not adequately discuss the
relevant factual history and explain why the specific amounts for health benefit deductions were
appropriate for a specific period of coverage.
The case will be remanded to the Office for proper findings with respect to the amount of
the overpayment in this case. After such further development as the Office deems necessary, it
should issue an appropriate decision on the overpayment issues. In view of the Board’s findings,
the remaining issues will not be addressed in this appeal.

1

See James Tackett, 54 ECAB 611 (2003); Sandra K. Neil, 40 ECAB 924 (1989).

2

See, e.g., Elmer C. Jones, Docket No. 04-917 (issued October 12, 2004).

3

CONCLUSION
The Office did not provide an adequate explanation as to the amount of the overpayment
and therefore the case is remanded for further development.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 27, 2006 is affirmed, in part as to the finding of
overpayment. The decision is set aside on the amount of the overpayment and the case
remanded for further action consistent with this decision of the Board.
Issued: August 10, 2007
Washington, DC

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

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

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

4


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

)
)
)
)
)
)
)
)

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

Docket No. 12-1540
Issued: February 8, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 9, 2012 appellant filed a timely appeal from a June 4, 2012 merit decision of the
Office of Workers’ Compensation Programs (OWCP) regarding a schedule. 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 claim.
ISSUE
The issue is whether appellant sustained more than one percent impairment of the left leg
for which she received a schedule award.
On appeal, appellant contends that she sustained a significant impairment of the left ankle
affecting her work, recreational and personal activities.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
OWCP accepted that on September 4, 2007 appellant, then a 41-year-old city letter
carrier, sustained a left ankle sprain and strain and left tibial tendinitis with contracture of the
tendon sheath after she walked on plant debris while delivering mail.
Dr. Peter F. Alward, an attending Board-certified orthopedic surgeon, submitted reports
from September 24 to November 8, 2007. He diagnosed a left ankle sprain with posterior tibial
tendinitis due to the September 4, 2007 work incident. Dr. Alward obtained x-rays showing no
fracture or dislocation of the left ankle. A December 2007 magnetic resonance imaging scan
showed a tendon tear in the left ankle.
On February 13, 2008 appellant was treated by Drs. Helena Reid and Eric C. Palmquist,
attending podiatrists. In reports through December 9, 2008, the physicians diagnosed a partial
tear of the posterior tibial tendon with tenosynovitis, complicated by pes planus and a calcaneal
valgus deformity. On December 11, 2008 Dr. Reid and Dr. Palmquist performed a left
medializing calcaneal slide osteotomy, a transfer of the flexor digitorum longus to the posterior
tibial tendon and an endoscopic gastrocnemius resection. OWCP approved the procedure.
Appellant was off work from December 11, 2008 to March 21, 2009. She received total
disability compensation for this period and returned to full-time light-duty work.
Dr. Palmquist submitted progress reports and continued work restrictions through
December 2010. Appellant continued to have left foot pain and minimal difficulty walking. In
January 19 and April 26, 2011 reports, he provided permanent work restrictions attributable to
the accepted injuries. As of April 4, 2011, appellant was “at maintenance.” On April 7, 2011
Dr. Palmquist opined that appellant had attained maximum medical improvement. He noted no
gait abnormalities, no sensory deficits in the left foot and ankle and a normal range of motion of
all joints. Appellant no longer wore a prescribed orthotic. Dr. Palmquist observed motor
strength in the left ankle at -5/5 although there was no muscle atrophy.
On April 13, 2011 appellant claimed a schedule award. In an April 22, 2011 letter,
OWCP advised appellant of the additional evidence needed to establish her schedule award
claim, including a report from her attending physician rating impairment under the sixth edition
of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides). It also requested information directly from Dr. Palmquist who did not submit
an impairment rating.
On May 22, 2012 OWCP referred a statement of accepted facts and the medical record to
an OWCP medical adviser for an impairment rating based on Dr. Palmquist’s reports. In a
May 28, 2012 report, Dr. Daniel D. Zimmerman, an OWCP medical adviser, provided an
impairment rating for the left leg according to the sixth edition of the A.M.A., Guides. He
reviewed the medical record and statement of accepted facts. Dr. Zimmerman concurred with
Dr. Palmquist that appellant attained maximum medical improvement on April 4, 2011.
Referring to Table 16-2 of the A.M.A., Guides, the Foot and Ankle Regional Grid, OWCP’s
medical adviser found a class 1 diagnosis-based impairment (CDX) for strain tendinitis or
history of a ruptured posterior tibialis tendon. The default value was one percent, which the
medical adviser explained was appropriate as appellant had a full range of motion and no fixed
or flexible deformity. Dr. Zimmerman noted a grade modifier for Physical Examination
2

(GMPE) of 1 for -5/5 weakness according to Table 16-7,2 and a grade modifier for Functional
History (GMFH) of zero according to Table 16-6 as appellant had no postsurgical gait antalgia
and did not use an orthotic.3 He found that a grade modifier for Clinical Studies (GMCS) was
not applicable according to Table 16-84 as there were no studies following surgery. Using the net
adjustment formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), or (0-1) + (1-1), the
medical adviser found a minus one adjustment to the default grade, such that the default value of
one percent remained unchanged. Dr. Zimmerman found a one percent impairment of the left
lower extremity.
By decision dated June 4, 2012, OWCP granted appellant a schedule award for a one
percent impairment of the left lower extremity. The period of the award ran from April 4
to 24, 2011.
LEGAL PRECEDENT
The schedule award provisions of FECA provide for compensation to employees sustaining
impairment from loss or loss of use of specified members of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides has
been adopted by OWCP as a standard for evaluation of schedule losses and the Board has
concurred in such adoption.5 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides, published in 2008.6
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).7 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition, which is then adjusted by grade modifiers based on GMFH, GMPE and
GMCS.8 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).

2

Table 16-7, page 517 of the sixth edition of the A.M.A., Guides is entitled “Physical Examination Adjustment -Lower Extremities.”
3

Table 16-6, page 516 of the sixth edition of the A.M.A., Guides is entitled “Functional History Adjustment -Lower Extremities.”
4

Table 16-8, page 519 of the sixth edition of the A.M.A., Guides is entitled “Clinical Studies Adjustment -Lower Extremities.”
5

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
7

A.M.A., Guides (6th ed., 2008), page 3, section 1.3, “The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.”
8

A.M.A., Guides (6th ed., 2008), pp. 494-531.

3

ANALYSIS
OWCP accepted that appellant sustained a left ankle sprain and strain and left tibial
tendinitis with contracture of the tendon sheath, necessitating a left medializing calcaneal slide
osteotomy, transfer of the flexor digitorum longus to the posterior tibial tendon and an
endoscopic gastrocnemius resection. Appellant claimed a schedule award on April 13, 2011. In
support of her claim, she submitted reports from Dr. Palmquist, an attending Board-certified
podiatrist, who noted that appellant attained maximum medical improvement as of April 4, 2011.
On an April 7, 2011 examination of the left lower extremity, Dr. Palmquist diagnosed no gait
abnormalities, no sensory deficits in the foot and ankle, a normal range of motion of all joints,
and -5/5 weakness. OWCP advised appellant and Dr. Palmquist on April 22, 2011 to submit an
impairment rating according to the sixth edition of the A.M.A., Guides. As Dr. Palmquist did
not provide an impairment rating, OWCP referred the medical record and a statement of
accepted facts to Dr. Zimmerman, a medical adviser, to determine the appropriate percentage of
permanent impairment.
Dr. Zimmerman provided a May 28, 2012 impairment rating for the left lower extremity,
utilizing the sixth edition of the A.M.A., Guides. After reviewing the medical record and
statement of accepted facts, he concurred with Dr. Palmquist that appellant attained maximum
medical improvement on April 4, 2011. Dr. Zimmerman found a class 1 CDX for tendinitis and
a history of a ruptured posterior tibialis tendon, with a default value of one percent. He
explained that this was the only appropriate percentage as appellant had no motor deficit or
postsurgical foot deformity. Dr. Zimmerman found a GMPE of 1 for -5/5 weakness, a GMFH of
0 as appellant had a normal gait and no longer used orthotics as of April 4, 2011, and noted that a
GMCS was not applicable as there were no postsurgical studies. Applying the net adjustment
formula of (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX), or (0-1) + (1-1), he calculated
a minus one adjustment to the default grade, resulting in a one percent impairment of the left
lower extremity.
The Board finds that Dr. Zimmerman applied the proper tables and grading schemes to
Dr. Palmquist’s findings in determining the appropriate percentage of lower extremity
impairment. Therefore, OWCP properly awarded appellant a schedule award for a one percent
impairment of the left lower extremity.
On appeal, appellant contends that she sustained a significant impairment of the left
ankle, affecting work, recreational and personal activities. She noted that she no longer worked
at the employing establishment as she was medically unable to perform her light-duty job.9
However, the medical evidence does not support that appellant sustained more than a one percent
impairment of the left lower extremity.
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.

9

The Board notes that there is no claim of record for a recurrence of disability related to appellant separating
from the employing establishment.

4

CONCLUSION
The Board finds that appellant has not established that she sustained more than a one
percent impairment of the left lower extremity, for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 4, 2012 is affirmed.
Issued: February 8, 2013
Washington, DC

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

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

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

5