United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
U.S. POSTAL SERVICE, CARDWELL
STATION, Fresno, CA, Employer
__________________________________________

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

Docket No. 13-583
Issued: September 10, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 16, 2013 appellant, through his attorney, filed a timely appeal of a
December 6, 2012 merit decision of the Office of Workers’ Compensation Programs (OWCP)
which affirmed the May 7, 2012 loss of wage-earning capacity determination. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether OWCP met its burden to establish that the constructed position of
general office clerk represented appellant’s wage-earning capacity.
On appeal, appellant’s counsel argues that OWCP’s decision is contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On May 13, 2008 appellant, then a 60-year-old letter carrier, filed a traumatic injury
claim alleging that on May 19, 2008 he sustained a head injury when he fell while delivering
mail and hit the back of his head on concrete. On September 26, 2008 OWCP accepted his claim
for contusion of the face, scalp and neck except eye(s); postconcussion syndrome and sprain of
the neck. It paid appropriate compensation benefits.
In a September 10, 2010 Primary Treating Physician’s Permanent and Stationary Report,
Dr. Shahzad Jahromi, a physician Board-certified in occupational medicine, listed diagnoses of
chronic neck pain, degenerative disc disease of the cervical spine, cervical radiculopathy,
cervical sprain/strain; contusion of the head; headache, postconcussion syndrome; and status post
slip and fall injury. He opined that appellant was unable to return to his usual and customary
work. Dr. Jahromi placed appellant on permanent restrictions of limited lifting and carrying up
to 25 pounds and no repetitive reaching with arms above shoulder levels and no repetitive
flexion and extension of the neck. He noted that appellant will need future medical treatment for
medication use and possible physical therapy for occasional exacerbation of his pain. In an
October 7, 2011 industrial work status form, Dr. Jahromi indicated that appellant can work with
the following restrictions: able to lift/carry up to 20 pounds, needs to be able to change position,
alternating sitting and standing every 20 minutes and the elbow of affected arm must be kept
adjacent to trunk with no work above shoulder level.
On November 16, 2010 OWCP referred appellant to a vocational rehabilitation counselor
who provided vocational counseling and placement services. Appellant did not receive a job
offer during the period of vocational counseling, and in a December 20, 2011 report, the
counselor recommended closing his file. In a January 14, 2012 report, the vocational counselor
listed 10 employers in the Fresno area that had openings for an office clerk. In a February 17,
2012 closure memorandum, the counselor noted that a training plan was developed and approved
for the positions of general clerk and receptionist, but that after four months of placement
services, appellant was unable to obtain work. The general clerk position was described as
performing any combination of clerical duties requiring limited knowledge of systems or
procedures. The counselor indicated that the targeted job remained vocationally and medically
appropriate and existed in sufficient numbers within reasonable commuting distance of the
injured worker. She listed the wages of a general clerk as $360.00 to $400.00 weekly or $9.00 to
$10.00 per hour.
On March 7, 2012 OWCP proposed reducing appellant’s compensation for wage loss to
reflect his capacity to earn wages as a general office clerk at $360.00 per week. It noted that the
Department of Labor’s Dictionary of Occupational Titles (DOT) described the physical
requirements of the general office clerk as light in nature and involve frequent reaching,
handling, fingering and near acuity, with occasional talking, hearing and accommodating.
OWCP applied the Shadrick formula,2 and recommended reducing appellant’s compensation
accordingly.

2

See Albert C. Shadrick, 5 ECAB 376 (1953); codified at 20 C.F.R. § 10.403(d)-(e).

2

By letter to OWCP dated March 27, 2012, appellant disagreed with the assessment that
the job duties fell within his job restrictions. Furthermore, he contended that all the job referrals
from the vocational rehabilitation service were from Craig’s List, and that many of these
referrals were scams.
By decision dated May 7, 2012, OWCP finalized the reduction of appellant’s
compensation benefits to reflect that appellant was capable of performing the duties of a general
office clerk effective June 3, 2012.
By letter dated May 14, 2012, appellant, through counsel, requested a telephonic hearing
before an OWCP hearing representative. At the hearing held on September 17, 2012, appellant
testified that he has usual daily pain. He testified that his doctor limited him from doing
repetitive motions with his arms and twisting his head from side to side. Appellant noted that he
could tolerate only limited sitting and standing and that his physician did not want him to do
repetitive motion at shoulder level. He contended that he could not be a general office clerk
because he could not move things back and forth as it required walking and standing and also
reaching and manipulating things. Appellant also alleged that several of the jobs on Craig’s List
were just scams.
The record was left open for 30 days to provide appellant the opportunity to submit
further evidence. Appellant resubmitted reports that were previously in the record. These
included a report dated December 11, 2009 and a work capacity evaluation dated December 17,
2009 by Dr. Shen Ye Wang, a Board-certified neurologist. In the December 11, 2009 report,
Dr. Wang listed appellant’s diagnoses as status post slip and fall injury on wet pavement when
delivering mail on April 19, 2008; status post head concussion due to the industrial injury of
April 19, 2008; post-traumatic headaches; post-traumatic head syndrome with dizziness,
unsteady gait, subjective reporting of short-term memory loss, anxiety, depression and insomnia;
cervical sprain/strain injury from April 19, 2008 fall, aggravating the preexisting underlying
cervical spondylosis with foraminal narrowing at multiple levels; bilateral carpal tunnel
syndrome and left ulnar neural neuropathy due to the cumulative injury as a postal service letter
carrier for more than 20 years but not related to the specific accident of April 19, 2008; and
sinusitis, nonindustrial. He opined within a reasonable medical probability that appellant’s
residual headaches, dizziness and neck pain were caused by the specific industrial injury of
April 19, 2008. Dr. Wang also believed that the psychological counseling should be accepted as
part of the industrial injury. He indicated that appellant’s current physical restrictions were
primarily related to his progressive worsening of neck pain in shoulders, numbness of the hands
bilaterally and decreased range of motion of the neck. Dr. Wang opined that appellant could do
sedentary or semi-sedentary work in an office environment. He stated that appellant’s work
restrictions would include no persistent bending, flexing, turning or twisting the neck and allow
appellant to change positions for comfort because of the constant neck pain in one position; no
use of the arms and hands at or above shoulder level repeatedly; no repetitive use of the hands
bilaterally; and no lifting, carrying, pushing or pulling heavy objects weighing more than 15
pounds with either hand. Dr. Wang further noted that for the neck pain and numbness of the
hands, appellant should be allowed to have additional breaks for approximately 5 to 10 minutes
every hour. He opined that, if the employing establishment cannot accommodate appellant’s
permanent physical restrictions, then appellant should remain on temporary total disability.
Dr. Wang noted that appellant’s prospects of improvement will depend on the success of the

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future medical treatment, including surgical release of the carpal tunnel; surgical release of the
ulnar neuropathy across the Guyon’s canal; and additional treatment of his persistent neck pain.
In a December 17, 2009 work capacity evaluation, Dr. Wang listed appellant’s work
capacity restrictions, including sitting limited to four hours a day, walking, standing, reaching
above shoulder and pushing/pulling/lifting up to 15 pounds a day for one hour, reaching,
bending/stooping, limited to two hours, and repetitive movements of the wrists and elbow
limited to one hour.
Appellant also submitted new progress reports dated August 23 and October 2, 2012
wherein Dr. Jahromi indicated that appellant has not worked since the injury, but that he could
return to modified duty and that the permanent modified-duty description was in the file.
By decision dated December 6, 2012, an OWCP hearing representative affirmed the
May 7, 2012 decision reducing appellant’s compensation.
LEGAL PRECEDENT
Section 8115 of FECA3 provides that wage-earning capacity is determined by the actual
wages received by an employee if the earnings fairly and reasonably represent his or her wageearning capacity. If the actual earnings do not fairly and reasonably represent wage-earning
capacity or the employee has no actual earnings, his or her wage-earning capacity is determined
with due regard to the nature of his or her injury, the degree of physical impairment, his or her
usual employment, his or her age, his or her qualifications for other employment, the availability
of suitable employment and other factors or circumstances which may affect his or her wageearning capacity in his or her disabled condition.
When OWCP makes a medical determination of partial disability and of specific work
restrictions, it may refer the employee’s case to a vocational rehabilitation counselor authorized
by OWCP for selection of a position, listed in the Department of Labor’s Dictionary of
Occupational Titles or otherwise available in the open market, that fits the employee’s
capabilities with regard to his or her physical limitations, education, age and prior experience.
Once this selection is made, a determination of wage rate and availability in the open labor
market should be made through contact with the state employment service or other applicable
service. Finally, application of the principles set forth in Albert C. Shadrick,4 will result in the
percentage of the employee’s loss of wage-earning capacity.5
ANALYSIS
OWCP accepted that appellant sustained contusions on his face, scalp and neck except
eyes; postconcussion syndrome and sprain of the neck causally related to the May 19, 2008
3

5 U.S.C. §§ 8101-8193, 8115.

4

G.A., Docket No. 12-1826 (issued June 25, 2013).

5

See Dennis D. Owen, 44 ECAB 475, 479-80 (1993); Wilson L. Clow, Jr., 44 ECAB 157, 171-75 (1992);
Albert C. Shadrick, supra note 2.

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employment injury and paid appropriate compensation and medical benefits. Appellant’s
treating physician, Dr. Jahromi, indicated that, while appellant was unable to return to his usual
customary work, he was able to return to work with restrictions. In an October 7, 2011 report, he
indicated that appellant could lift/carry up to 20 pounds, needed to be able to change positions
alternating sitting and standing every 20 minutes, and that the elbow of the affected arm must be
kept adjacent to the trunk with no work above shoulder level. The clerk position was described
as involving light physical requirements.
There is no indication that the duties of the general clerk position exceeded appellant’s
physical abilities as set forth by Dr. Jahromi. Appellant also resubmitted the report by Dr. Wang.
Although the reports of Dr. Wang were somewhat more restrictive than those of Dr. Jahromi in
that he limited appellant to pushing/pulling/lifting up to 15 pounds a day for one hour, the Board
notes that these reports were dated in December 2009, almost two years prior to Dr. Jahromi’s
report. Also, Dr. Wang opined that appellant could do sedentary or semi-sedentary work in an
office environment. Accordingly, the Board finds that the medical evidence supports that the
position of general clerk was within appellant’s medical restrictions.
The Board also finds that the position of general clerk was vocationally suitable. The
vocational rehabilitation counselor listed 10 positions within appellant’s commuting area that
had openings for an office assistant. The counselor indicated that these positions were
vocationally and medically appropriate for appellant and existed in sufficient numbers within
reasonable commuting distance of the injured worker. Because the counselor is an expert in the
field of vocational rehabilitation, OWCP may rely on his or her opinion as to whether the job is
reasonably available and vocationally suitable.6 The fact that appellant was unable to secure a
position does not mean that the position is not reasonably available to him in the open labor
market.7
OWCP considered the proper factors, such as availability of suitable employment and
appellant’s physical limitations, usual employment, age and employment qualifications, in
determining that the position of general clerk represented appellant’s wage-earning capacity.8
The weight of the evidence of record establishes that appellant had the requisite physical ability,
skill and experience to perform the position of general clerk and that it was reasonably available
within the general labor market of appellant’s commuting area. Therefore, OWCP properly
reduced appellant’s compensation effective June 3, 2012 based on his capacity to earn wages as a
general clerk.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.8d (October 2009). See also M.P., Docket No. 12-1458 (issued May 9, 2013).
7

See J.Q., Docket No. 13-395 (issued May 1, 2013).

8

See D.C., Docket No. 13-747 (issued June 25, 2013); Clayton Varner, 37 ECAB 248, 256 (1985).

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CONCLUSION
The Board finds that OWCP met its burden to establish that the constructed position of
general office clerk represented appellant’s wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 6, 2012 is affirmed.
Issued: September 10, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chino, CA, Employer
__________________________________________

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

Docket No. 08-151
Issued: March 6, 2009

Case Submitted on the Record

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

JURISDICTION
On October 22, 2007 appellant filed a timely appeal of the August 6, 2007 merit decision
of the Office of Workers’ Compensation Programs, which affirmed the termination of her
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over
the merits of the claim.1
ISSUE
The issue is whether the Office properly terminated appellant’s compensation for
refusing an offer of suitable work.

1

The record on appeal includes evidence submitted after the Office issued the August 6, 2007 decision. The
Board may not consider evidence that was not before the Office at the time it rendered its final decision. 20 C.F.R.
§ 501.2 (2008).

FACTUAL HISTORY
Appellant, a 60-year-old distribution clerk, was struck by a bulk mail container at work
on July 1, 1998. The Office initially accepted her claim for left shoulder contusion and trapezius
strain. The claim was later expanded to include thoracic outlet syndrome (TOS). The Office
also approved a March 28, 2003 left first rib resection, performed by Dr. Karim Abdollahi, a
Board-certified orthopedic surgeon. Appellant received appropriate wage-loss compensation
beginning March 31, 2003.2
Following surgery she developed complex regional pain
syndrome/reflex sympathetic dystrophy (CRPS/RSD).
On September 16, 2004 the employing establishment offered appellant a full-time,
limited-duty assignment as a modified distribution clerk. Appellant was expected to sort and
distribute mail into a “‘HOT CASE’” or distribution case. She was also expected to sort nixie
mail, sort and case box mail and sort carrier mail. The position description stated that appellant
would not be expected to lift anything heavy with her right arm. Appellant’s other duties
included working in the registry processing accountable mail. She was not required to use her
left upper extremity to perform any overhead work or any heavy pushing, pulling or carrying.
The job offer also indicated that casing mail could be accomplished with either extremity.
Whenever, any overhead reaching was required, appellant was instructed to use her right upper
extremity. The September 16, 2004 modified distribution clerk position was reportedly based on
the July 23, 2004 opinion of Dr. Paul Bouz, a Board-certified orthopedic surgeon and impartial
medical examiner.3
At the time of her July 23, 2004 examination, appellant’s chief complaints were left-sided
neck pain, left shoulder pain, left upper extremity pain and a tingling sensation in the left hand.
Dr. Bouz diagnosed musculoligamentous strain of the cervical spine and status post first rib
resection as a result of TOS.4 He explained that appellant’s left upper extremity pain might be
due to stiffness in the shoulder, which she exhibited on physical examination. Dr. Bouz also
noted that there was a slight possibility that appellant had RSD. He recommended another two
months of pain management therapy and a home exercise program. Further, surgical
intervention was not an option. If there was no improvement with pain management therapy,
Dr. Bouz advised that appellant would have to accept her condition and learn to live with it. In
addition to short-term pain management therapy, he recommended occasional pain and antiinflammatory medication.5 Regarding work restrictions, Dr. Bouz noted that he would restrict

2

The Office placed her on the periodic compensation rolls effective September 7, 2003.

3

The Office declared a conflict in medical opinion between appellant’s surgeon, Dr. Abdollahi, and Dr. Bunsri T.
Sophon, a Board-certified orthopedic surgeon and Office referral physician. Whereas Dr. Abdollahi continued to
find appellant totally disabled, Dr. Sophon’s February 24, 2004 report indicated that she could work with
restrictions. He diagnosed cervical strain and left thoracic outlet syndrome, but did not believe appellant had RSD.
Dr. Sophon limited appellant to four hours of reaching and no reaching above shoulder level with the left arm. He
also imposed a 20-pound restriction with respect to pushing, pulling and lifting. On May 9, 2004 Dr. Abdollahi
reviewed Dr. Sophon’s findings and noted his disagreement, particularly with respect to the diagnosis of RSD.
4

According to Dr. Bouz, appellant did not presently have TOS.

5

Appellant’s then current medications included Neurontin, Vicodin and Tramadol.

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appellant from repetitive overhead work with her left upper extremity and from heavy pushing,
pulling and carrying with the left upper extremity.6
On September 22, 2004 the Office advised appellant that the September 16, 2004
modified distribution clerk position description was considered suitable based on Dr. Bouz’
July 23, 2004 report. Appellant was afforded 30 days to either accept the position or submit a
written explanation for her refusal.
The Office subsequently received a September 21, 2004 report from Dr. Abdollahi, who
reviewed the September 16, 2004 job offer and found that this type of job was “too repetitive”
for appellant to perform. Dr. Abdollahi continued to find appellant temporarily totally disabled.
He recommended another six weeks of physical therapy to increase her left shoulder range of
motion. Dr. Abdollahi also recommended a psychiatric consultation to evaluate and treat
appellant’s depression, which he attributed to her current disability.
On September 27, 2004 appellant rejected the modified distribution clerk job offer. She
explained that she was unable to drive or travel to work due to her chronic pain and the many
medications she took for her condition. Appellant also stated that the offered position exceeded
the physical limitations established by Dr. Abdollahi.
In a November 13, 2004 report, Dr. Abdollahi reviewed Dr. Bouz’ findings and noted his
disagreement, particularly with respect to appellant’s ability to return to work. He also took
issue with Dr. Bouz’ opinion regarding future medical treatment and the need for medication.
Dr. Abdollahi reiterated that appellant had likely developed depression as a result of her RSD
and would require psychiatric care and medications. He also urged the Office to include RSD as
an accepted condition. With respect to the September 16, 2004 job offer, Dr. Abdollahi stated
that the work required far too much use of the left upper extremity and appellant was “almost
certainly likely to aggravate her condition.” He continued to find appellant temporarily totally
disabled.
Dr. Bouz, the impartial medical examiner, provided a supplemental report on
November 19, 2004. He also submitted a work capacity evaluation (Form OWCP-5c). Dr. Bouz
found Dr. Abdollahi’s apparent restriction from using the left upper extremity “too severe.” He
explained that appellant was able to use her left upper extremity to a “limited extent and she
should be able to lift light objects weighing up to five pounds.” Dr. Bouz also expressed
agreement with Dr. Sophon’s February 24, 2004 restrictions, which he characterized as
reasonable. Additionally, he reviewed the September 16, 2004 modified distribution clerk
position description and stated that it contained “reasonable work restrictions,” which appellant
“should be able to perform....” The accompanying work capacity evaluation precluded any
reaching above shoulder and imposed a 20-pound weight restriction regarding pushing, pulling
and lifting with the left arm.
On January 4, 2005 the Office advised appellant that she had not provided any valid
reasons for rejecting the September 16, 2004 job offer. It afforded appellant an additional 15
6

Dr. Bouz did not submit a work capacity evaluation (Form OWCP-5c) identifying specific time limitations or
weight restrictions.

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days to accept the position and make arrangements to report for duty. Appellant was further
advised that no additional reasons for refusal would be considered and a failure to accept the
position within the allotted timeframe would result in the termination of entitlement to both
schedule award benefits and future wage-loss compensation.
On January 12, 2005 the Office received another report from Dr. Abdollahi dated
December 28, 2004. Dr. Abdollahi diagnosed left TOS and left shoulder and left upper
extremity RSD. He also noted that on December 2, 2004 appellant began seeing a psychologist.
Dr. Abdollahi believed that appellant might benefit from antipsychotic medication to better
control her depression symptoms. He noted that the Elavil she was currently taking at night did
not seem to adequately control her symptoms.
On January 20, 2005 the Office obtained verification from the employing establishment
that appellant had not yet returned to work. That same day it issued a decision terminating
appellant’s entitlement to wage-loss compensation and schedule award benefits.
A few days after issuing its final decision, the Office received a January 17, 2005 letter
from appellant’s representative. He asked that the Office rescind the January 4, 2005 15-day
letter and reconsider its position regarding the suitability of the modified distribution clerk
position. Appellant’s representative noted, among other things, that the Office did not properly
address appellant’s reported travel restrictions. Additionally, he noted that appellant’s
documented medical condition of depression was not considered.
Appellant later submitted additional medical evidence from her psychologist, Cheryl L.
Imes, Ph.D. In a January 19, 2005 report, Dr. Imes diagnosed CRPS/RSD and adjustment
disorder with depression and anxiety. She had been treating appellant since December 2, 2004
for complaints of depression, anhedonia and poor quality of life. Dr. Imes noted that appellant
had regularly attended group psychotherapy sessions.
On January 31, 2005 appellant requested an oral hearing.
Appellant continued to submit monthly progress reports from Dr. Abdollahi, who
routinely diagnosed TOS, left shoulder and left upper extremity RSD and depression.
Dr. Abdollahi also continued to find appellant totally disabled. In a February 13, 2005 report, he
reiterated that the modified distribution clerk position would likely exacerbate appellant’s
condition. Dr. Abdollahi also indicated that it was unsafe for appellant to drive while on
medication. He stated that even if someone drove appellant to work, the shaking and vibrations
associated with traveling increased her left shoulder pain. Appellant’s medication also
reportedly interfered with her ability to function safely in a work environment. In an August 15,
2005 report, Dr. Abdollahi stated that appellant’s multiple medications caused side effects,
which along with her RSD and depression, were just as limiting as her physical condition.
The Office also received additional psychotherapy progress reports and treatment records
from Dr. Imes. In an August 8, 2005 report, Dr. Imes stated that appellant’s depression was
severe and that it significantly impaired her daily life. According to her appellant was unable to
work due to RSD pain, depression and concentration difficulties. Dr. Imes also submitted a
January 19, 2006 work capacity evaluation for psychological conditions (Form OWCP-5a). She

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indicated that appellant could not work an eight-hour day due to severe pain. Dr. Imes further
noted that appellant’s pain medications cause her to be drowsy. She also indicated that appellant
was severely depressed and her memory and concentration skills were impaired. Dr. Imes
related appellant’s depression to her medical condition, CRPS/RSD. She further explained that
appellant’s depression and pain would interfere with her concentration for mail sorting, reading
and interacting with others. Additionally, appellant’s cognitive processing was slow so it was
unlikely that she could keep up with the work. Lastly, Dr. Imes stated that appellant was not
ready for vocational rehabilitation and she would need to wean off medications in order to
perform any gainful employment.
Appellant’s hearing was held on January 25, 2006. By decision dated March 16, 2006,
the Branch of Hearings & Review affirmed the Office’s January 20, 2005 decision.
On February 25, 2007 appellant again requested reconsideration. In March 2007, the
Office expanded appellant’s claim to include RSD as an accepted condition.
In an August 6, 2007 decision, the Office reviewed the merits of the claim and denied
modification.
LEGAL PRECEDENT
Pursuant to 5 U.S.C. § 8106(c)(2), a partially disabled employee who refuses or neglects
to work after suitable work is offered to, procured by or secured for her is not entitled to
compensation.7 An employee who refuses or neglects to work after suitable work has been
offered or secured for her has the burden to show that this refusal or failure to work was
reasonable or justified.8
Whether an employee has the physical or psychological ability to perform an offered
position is primarily a medical question that must be resolved by the medical evidence.9 In
evaluating the suitability of a particular position, the Office must consider preexisting and
subsequently acquired medical conditions.10
When the Office considers a job to be suitable, it shall advise the employee of its finding
and afford her 30 days to either accept the job or present any reasons to counter the Office’s
finding of suitability.11 If the employee presents such reasons and the Office determines that the
reasons are unacceptable, it will notify the employee of that determination and further inform the
employee that she has 15 days in which to accept the offered work without penalty.12 After
7

See 20 C.F.R. § 10.517 (2008).

8

Id.

9

Gayle Harris, 52 ECAB 319, 321 (2001).

10

Id.; Martha A. McConnell, 50 ECAB 129, 132 (1998).

11

20 C.F.R. § 10.516.

12

Id. However, the 15-day notification need not explain why the Office found the employee’s reasons for refusal
unacceptable.

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providing the 30-day and 15-day notices, the Office will terminate the employee’s entitlement to
further compensation.13 However, the employee remains entitled to medical benefits.14
ANALYSIS
Appellant has repeatedly argued that the modified distribution clerk position did not
adequately account for her diagnosed depression. The Board finds that the Office did not
properly consider whether appellant’s depression interfered with her ability to perform the duties
of a modified distribution clerk. The Office based its suitability determination on Dr. Bouz’
July 23 and November 19, 2004 reports, which did not include a psychological assessment.
Although Dr. Bouz was apparently unaware of appellant’s depression, the Office was fully aware
of this condition prior to issuing the January 20, 2005 decision terminating compensation. As
early as September 21, 2004, Dr. Abdollahi reported that appellant was suffering from
depression, which he attributed to her RSD. In his December 28, 2004 report, he indicated that
appellant was undergoing psychotherapy and taking Elavil for her depression. The Office
received both reports prior to issuing the January 20, 2005 decision. But it did not pause to
consider whether appellant’s depression would interfere with her ability to perform the duties of
a modified distribution clerk.
When the matter was pending before the Branch of Hearings & Review appellant’s
representative argued, among other things, that the Office should have considered the effects of
appellant’s depression. By the time appellant had her oral hearing in January 2006, the record
included several reports from Dr. Imes attesting to the severity of appellant’s psychological
condition. But noticeably absent from the hearing representative’s March 16, 2006 decision is
any reference to Dr. Imes or the fact that appellant had been diagnosed with depression. The
Office’s latest decision similarly fails to address the apparent effects of appellant’s depression on
her ability to perform the duties of a modified distribution clerk. In evaluating the suitability of a
particular position the Office must consider preexisting and subsequently acquired medical
conditions.15 As appellant’s depression was not properly taken into account, the Board finds that
the Office failed to demonstrate that the modified distribution clerk position was suitable.
Accordingly, the termination of appellant’s wage-loss compensation effective January 20, 2005
is reversed. Her entitlement to wage-loss compensation is reinstated retroactive to the date of
termination.
CONCLUSION
The Board finds that the Office improperly terminated appellant’s wage-loss
compensation.

13

20 C.F.R. § 10.517(b). This includes compensation for lost wages as well as compensation for any permanent
loss of use of a schedule member. Id.; see 5 U.S.C. §§ 8105, 8106 and 8107.
14

20 C.F.R. § 10.517(b).

15

Martha A. McConnell, supra note 10.

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ORDER
IT IS HEREBY ORDERED THAT the August 6, 2007 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 6, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.F., Appellant
and
U.S. POSTAL SERVICE, LORAIN CARRIER
ANNEX, Lorain, OH, Employer
__________________________________________

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

Docket No. 07-187
Issued: May 18, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 30, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ September 29, 2006 decision denying her request for an oral hearing as
untimely filed and an April 6, 2006 merit decision denying her emotional condition claim.
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 appellant sustained an emotional condition in the
performance of duty; and (2) whether the Office properly denied a request for an oral hearing
pursuant to 5 U.S.C. § 8124.
FACTUAL HISTORY
On September 27, 2005 appellant, then a 48-year-old bulk mail clerk, filed a traumatic
injury claim for compensation alleging abuse, discrimination and threats at work from June 9 to

September 24, 2005 which resulted in multiple physical and mental symptoms. She indicated
that the date of injury was June 9, 2005. Appellant stopped work on September 28, 2005.
In an October 13, 2005 letter, the Office advised appellant that the information received
was not sufficient to make a determination on her claim. It noted that it appeared that she was
claiming an occupational injury for events that had occurred over a period of time or were
ongoing, as opposed to something that occurred in a traumatic manner over the course of one
single shift. Appellant was requested to provide a detailed explanation of the work factors that
she was claiming caused her various conditions.1
Appellant submitted statements dated September 27 to November 7, 2005 detailing the
events which she alleged supported that management had engaged in a pattern of harassment
against her. She alleged that Postmaster Sue Taylor threatened her on June 9, 2005, stating that
she had no position. On September 22, 2005 appellant was called into a clerk meeting with
Ms. Taylor and Barbara Urazeni, a clerk supervisor, about following orders, express mail and
being on time when off-site. However, she was the only clerk called into the office by
management. On September 23, 2005 appellant alleged that Ms. Urazeni followed her to an offsite bulk mail position, but did not follow a white male clerk, Joe Lesko. She alleged that
management tried to bully her into a verbal assault, using profanity, which would result in her
being removed. Appellant contended that numerous white coworkers had used profanity in front
of management without consequence. She filed an Equal Employment Opportunity (EEO) claim
and a labor charge to get a key and password to the building, while Mascel Jarret only had to
request a key.
Appellant alleged a traumatic injury on September 24, 2005 and that she could not work
that day. She was not called in for overtime work on September 24, 2005 as Cathy Thomas, her
supervisor, lied about not having her telephone number. Appellant alleged that management had
other employees change their schedule and come in early to avoid paying her overtime. She
stated that overtime was given to a white male under 30 and a female under 40.
On September 24, 2005 Ms. Thomas instructed appellant to leave her bulk mail job and
run a machine. Appellant alleged that a supervisor was brought along to witness the instruction.
An argument ensued with Ms. Thomas to support her actions and she would not go with
appellant to the office. When she asked Ms. Thomas for union time to file a CA-1 claim,
Ms. Thomas loudly stated “of course you need union time, of course you do.” Appellant stated
that Gary Reiter, a coworker, got in her face in a threatening manner and stated that he was not
“getting in the middle of your petty-ass bullshit.” She contended that Mr. Reiter had used
profanity and that she would file a grievance. When appellant again asked Ms. Thomas for
union time to file a claim, Ms. Thomas threatened her position, stating that appellant was making
her life miserable and walked away with her hands over her ears. She also alleged that
Mr. Reiter got a verbal warning for swearing at her, while she got fired for swearing in front of
Ms. Thomas.

1

The Office noted that, since appellant had a prior claim for a stress-related condition under File No. 092052260,
this claim would pertain only to events and/or work factors that occurred on or after September 24, 2004 or the date
that she returned to work from her previous condition, whichever was later.

2

On September 28, 2005 appellant submitted a CA-1 form to Ms. Taylor. She alleged that
management improperly paged Union Steward Jon McFarland to look at the CA-1 form, which
she asserted was a private document. Appellant had training scheduled for September 28, 2005
and when she was leaving to go to training Ms. Thomas told her that she had the wrong claim
form. She stated that a disagreement ensued as to the correct form to file. Appellant alleged that
Ms. Thomas yelled at her and pointed to the door stating “just go, just get out and go.” She
stated that this occurred in front of Ms. Taylor, who did nothing. Appellant contended that it was
“impossible” to work or to attend training because she was “yelled at” with profanity. She
alleged that Ms. Taylor had lied about a document sent by a Mr. McFarland about a grievance
she filed. Appellant asserted that management engaged in racist abusive behavior. She alleged
that management had improperly refused documents for Family Medical Leave Act (FMLA)
approval; were not compliant with advanced sick leave authorization and refused to provide her
continuation of pay.
Appellant alleged that she received a threatening letter from Ms. Urazeni dated
September 30, 2005. The letter noted that appellant was to submit medical documentation for
absences over three days and in the case of a prolonged illness to renew her application for sick
leave every 30 days. It stated that “employees returning to duty from an absence due to illness of
twenty-one (21) calendar days or more or any absences in which they have been hospitalized …
regardless of the length of absence, are required to report to the Postal Service Medical Unit
before reporting to duty to obtain clearance by presenting a statement from their physician.”
Appellant alleged that the requirement to report to the medical unit before reporting to work was
illegal. She submitted an article from the American Postal Worker, which indicated that the U.S.
Court of Appeals for the Seventh Circuit ruled that management did not have the right to require
“fitness-for-duty examinations” before workers on extended FMLA leave could return to the job.
Appellant submitted leave request forms, including requests and correspondence
pertaining to continuation of pay, leave under the FMLA, advanced sick leave, complaints about
shared services and her EEO claims. In a June 9, 2005 statement, Christine Guler, a coworker,
indicated that “on Thursday, [Ms.] Taylor stated to [appellant] to worry about her own job and
not hers.”
Dr. Thomas J. Haglund, Ph.D., a clinical psychologist, submitted disability slips dated
October 12 and 13, July 15, November 14 and 28, 2005. On November 28, 2005 he advised that
appellant had anxiety and depression stemming from what she saw as a hostile work
environment. In a July 15, 2005 medical report, Dr. Enrique Huerta, a Board-certified
psychiatrist, diagnosed a general anxiety disorder.
In a November 1, 2005 statement, Ms. Thomas addressed the events of
September 24, 2005. She had instructed appellant to work the letter sorting machine and
appellant yelled at her, questioning where the other clerks were and that she should have been
called in early for overtime. Appellant called Ms. Thomas a liar when she said she only had the
telephone number of appellant’s mother. Although she wanted to go into the office, Ms. Thomas
told her to work on the machine. Ms. Thomas stated that appellant followed her and yelled that
she needed union time to file a grievance. She responded that she did not expect anything less
from appellant. Ms. Thomas also told appellant that she did not need any more lip from her and
wanted appellant to work on the sorting machine “now.” Appellant commented very loudly on

3

the workroom floor that Ms. Thomas did not know how to make a schedule. Ms. Thomas called
union official Mary Ann Janda to calm appellant down so that she would not have to leave the
office. When appellant told her that she needed a CA-1 form and union time, Ms. Thomas told
appellant that she had already arranged for her union time. Ms. Janda noted that appellant had
stated that she wanted to file a grievance against Mr. Reiter for swearing at her while on the
workroom floor. An argument arose between appellant and Ms. Janda, who denied threatening
her, yelling or discriminating against her. Ms. Janda indicated that she had simply issued
instructions and that appellant did not take instruction well or like to work on the sorting
machines.
In an October 25, 2005 statement, Ms. Taylor stated that on June 9, 2005 appellant was
talking with Supervisor Jon Klassen about the attire of another employee and she approached
them asking what the problem was. Ms. Taylor noted that all employees in the clerk craft were
made aware of the dress code. She indicated that those employees who were not in proper
uniform were put on notice and no one was sent home. Ms. Taylor advised that she never
threatened appellant, but that appellant had threatened her by stating that she had better worry
about her job. She reported witnessing a confrontation between Ms. Thomas and appellant on
September 28, 2005 in which both raised their voices and appellant called her supervisor a liar.
Ms. Thomas told appellant that she had made a mistake and to go to her training class. She
denied any knowledge of anyone screaming or yelling profanities at appellant during her eight
years as postmaster. Ms. Thomas denied any discrimination or abuse of appellant.
By decision dated April 6, 2006, the Office denied the claim finding that appellant failed
to establish a compensable factor of employment. The Office adjudicated the matter as an
occupational disease claim as appellant’s allegations pertained to incidents or more than one
work shift. Therefore, appellant was not eligible for continuation of pay.
On September 6, 2006 appellant requested an oral hearing before an Office hearing
representative. She included copies of a June 3, 2004 letter, contending that no decision had
been issued in her case within 180 days and copies of August 30 and 31, 2006 electronic
mailings, alleging that she never received copies of the April 10, 2006 decision.
By decision dated September 29, 2006, the Office denied appellant’s request for an oral
hearing. It found that her request was untimely. The Office exercised its discretion and denied
appellant’s request for the further reason that her claim could equally well be addressed by
submitting relevant evidence and requesting reconsideration.
LEGAL PRECEDENT -- ISSUE 1
To establish that she sustained an emotional condition in the performance of duty, a
claimant must submit the following: (1) medical evidence establishing that she has an emotional
or psychiatric disorder; (2) factual evidence identifying employment factors or incidents alleged
to have caused or contributed to her condition; and (3) rationalized medical opinion evidence
establishing that the identified compensable employment factors are causally related to her
emotional condition.2
2

Leslie C. Moore, 52 ECAB 132 (2000).

4

Workers’ compensation law does not apply to each and every injury or illness that is
somehow related an employee’s employment. There are situations where an injury or an illness
has some connection with the employment but nevertheless does not come within the concept or
coverage of workers’ compensation. Where the disability results from an employee’s emotional
reaction to her regular of specially assigned duties or to a requirement imposed by the
employment, the disability comes within the coverage of the Act.3 On the other hand, the
disability is not covered where it results from such factors as an employee’s fear of a reductionin-force or her frustration from not being permitted to work in a particular environment or to
hold a particular position.4
When working conditions are alleged as factors in causing disability, the Office, as part
of its adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment, which may be considered by a physician when
providing an opinion on causal relationship and which are not deemed factors of employment
and may not be considered. When a claimant fails to implicate a compensable factor of
employment, the Office should make a specific finding in that regard. If a claimant does
implicate a factor of employment, the Office should then determine whether the evidence of
record substantiates that factor.5 When the matter asserted is a compensable factor of
employment and the evidence of record establishes the truth of the matter asserted, then the
Office must base its decision on an analysis of the medical evidence.6 As a rule, allegations
alone by a claimant are insufficient to establish a factual basis for an emotional condition claim
but rather must be corroborated by the evidence.7
Generally, an employee’s emotional reaction to administrative or personnel actions taken
by the employing establishment is not covered because such matters pertain to procedures and
requirements of the employer and are not directly related to the work required of the employee.8
An administrative or personnel matter will be considered to be an employment factor, however,
where the evidence discloses error or abuse on the part of the employing establishment.9 An
employee’s frustration from not being permitted to work in a particular environment or to hold a

3

Lillian Cutler, 28 ECAB 125 (1976).

4

See Thomas D. McEuen, 41 ECAB 387, 390-91 (1990), reaff’d on recon., 42 ECAB 566 (1991).

5

Margaret S. Krzycki, 43 ECAB 496 (1992).

6

See Charles D. Edwards, 55 ECAB 258 (2000).

7

Charles E. McAndrews, 55 ECAB 711 (2004); see also Arthur F. Hougens, 42 ECAB 455 (1991); and
Ruthie M. Evans, 41 ECAB 416 (1990) (in each case, the Board looked beyond the claimant’s allegations to
determine whether or not the evidence established such allegations).
8

Felix Flecha, 52 ECAB 268 (2001).

9

James E. Norris, 52 ECAB 93 (2000).

5

particular position is not compensable.10 Likewise, an employee’s dissatisfaction with perceived
poor management is not compensable under the Act.11
For harassment or discrimination to give rise to a compensable disability, there must be
evidence which establishes that the acts alleged or implicated by the employee did, in fact, occur.
Mere perceptions of harassment or discrimination are not compensable under the Act.12
ANALYSIS -- ISSUE 1
The Board notes that the Office properly adjudicated appellant’s claim as an occupational
illness. Appellant alleged multiple events that occurred over a period of more than one shift.
Thus, her claim is that of an occupational illness.13 Therefore, she would not be eligible for
continuation of pay. Section 8118(a) authorizes continuation of pay only for an employee who
has filed a valid claim for a traumatic injury.14
Appellant attributed her emotional condition to actions of her supervisors on June 9,
September 22, 23, 24 and 28, 2005. As noted, workers’ compensation law does not cover an
emotional reaction to an administrative or personnel action unless the evidence establishes error
or abuse on the part of the supervisor.15 The Board has held that the manner in which a
supervisor exercises his or her discretion generally falls outside the coverage of the Act. This
principal recognizes that a supervisor or manager must be allowed to perform their duties and
that employee’s will at times disagree with actions taken. Mere disagreement with or dislike of
actions taken by a supervisor or manager will not be compensable absent evidence establishing
error or abuse.16 Appellant did not submit sufficient evidence to establish that Ms. Taylor,
Ms. Urazeni or Ms. Thomas committed error or abuse with regard to the administrative matters
alleged.
Appellant alleged that Ms. Taylor “threatened” her position on June 9, 2005. Ms. Guler’s
June 9, 2005 statement supports that Ms. Taylor told appellant to worry about her own job not
hers. This statement is insufficient to support appellant’s allegation that her position was
threatened. Ms. Taylor denied that she ever threatened appellant’s position. The evidence of
record does not establish a threat by the postmaster on that date, as alleged.
Regarding the events of September 24, 2005, appellant submitted no evidence to establish
a factual basis for her claim. The record reflects that appellant became upset about not being
10

Barbara J. Latham, 53 ECAB 316 (2002).

11

Id.

12

Reco Roncoglione, 52 ECAB 454, 456 (2001).

13

See 20 C.F.R. § 10.5(ee) (traumatic injury defined); 20 C.F.R. § 10.5(q) (occupational disease defined).

14

5 U.S.C. § 8118(a).

15

See Charles D. Edwards, supra note 6.

16

Linda J. Edwards-Delgado, 55 ECAB 401, 405 (2004).

6

called in for overtime work and called Ms. Thomas a liar when she said she did not have
appellant’s telephone number. Ms. Taylor stated that Ms. Thomas told appellant that she had
made a mistake. There is no evidence to support appellant’s claim that the employing
establishment discriminated against her or took actions to avoid paying her overtime. Appellant
has not established this allegation as a compensable factor.
On September 24, 2005 Ms. Thomas instructed appellant to work the letter sorting
machine. However, appellant yelled at her, trying to get Ms. Thomas to justify her actions.
There is no evidence to support appellant’s allegation that management sought to bait her into an
argument. Although appellant may have disagreed with the manner in which Ms. Thomas made
schedules or issued instructions to work on the letter sorting machine, there is no evidence or any
error or abuse in this administrative matter. There is also no evidence to support appellant’s
assertion that she was not relieved while working on the letter sorting machine. The record
reflects that appellant was granted union time in which to file a claim. Appellant asserted that
she was also going to file a grievance against Mr. Reiter, a coworker. On September 28, 2005
she got into an argument with Ms. Thomas, during which both parties raised their voices and
appellant called her supervisor a liar. Ms. Thomas told appellant to go to her training class.
Although appellant indicated that she had filed a grievance and EEO complaints pertaining to
management and Mr. Reiter, there is no finding or final decision of record regarding these
matters. The filing of a grievance or an equal employment opportunity complaint is not
sufficient by itself to establish error or abuse.17
Appellant also alleged a general pattern of harassment, verbal abuse and discrimination.
These events include her allegations that Ms. Urazeni followed her to an off-site position on
September 23, 2005, but did not follow a white male clerk, management tried to bully her into a
verbal assault using profanity so that she could be removed; management acted in a
discriminatory manner; and that she had to file an EEO and labor charge to get a key and
password to the building. Appellant, however, submitted no evidence to support that these
events occurred, as alleged. As previously noted, mere perceptions of harassment or
discrimination are not compensable. Unsubstantiated allegations of harassment or discrimination
are not determinative of whether such harassment or discrimination occurred. A claimant must
establish a factual basis for her allegations with probative and reliable evidence.18 The Board has
recognized the compensability of verbal altercations or abuse when sufficiently detailed by the
claimant and supported by the record. However, this does not imply that every statement uttered
in the workplace will give rise to coverage under the Act.19 Appellant did not submit sufficient
evidence establishing a factual basis for her allegations of harassment or verbal abuse at the
employing establishment. She did not establish that harassment or discrimination occurred. The
evidence suggests that her feelings were self-generated and thus, not compensable under the
Act.20
17

Michael A. Salvato, 53 ECAB 666, 668 (2002).

18

James E. Norris, supra note 9.

19

Joe M. Hagewood, 56 ECAB ___ (Docket No. 04-1290, issued April 26, 2005) (the mere fact a supervisor or
employee may raise his voice during the course of a conversation does not warrant a finding of verbal abuse).
20

See Gregorio E. Conde, 52 ECAB 410 (2001).

7

While appellant alleged that she was the only clerk to attend a “clerk meeting” on
September 22, 2005, there is no evidence in the record to substantiate that this event occurred as
alleged. Ms. Taylor indicated that appellant complained about the dress code on June 9, 2005
and management informed all employees as to the dress code. The Board finds that the
employing establishment’s action of meeting with employees in the clerk craft to discuss the
dress code was reasonable. Additionally, Ms. Taylor indicated that no one was sent home for not
being in proper uniform. Although appellant alleged that she was being harassed by
management by being spoken to individually, she has submitted no evidence that the employing
establishment committed error or abuse in this regard.
Appellant alleged that management was noncompliant in processing her claim forms,
authorizing advanced sick leave, and in not signing FMLA documents. However, there is
nothing in the evidence to support that these events occurred, as alleged. Although management
requested medical and FMLA documentation prior to appellant’s return to work, she did not
submit evidence showing how the employing establishment acted improperly toward her in this
matter. As noted above, management’s method of carrying out supervisory duties falls outside
the coverage of the Act absent a finding of error or abuse.21 Appellant did not submit sufficient
evidence to substantiate her allegation that managements repeated requests for medical
information from her were erroneous or abusive. Thus, she did not establish any compensable
factors of employment with regard to these matters.
The Board finds that appellant has not established any compensable employment factors
under the Act. Therefore, she has not met her burden of proof in establishing that she sustained
an emotional condition in the performance of duty.22
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b) of the Act, concerning a claimant’s entitlement to a hearing before an
Office representative, states: “Before review under section 8128(a) of this title, a claimant not
satisfied with a decision of the Secretary ... is entitled, on request made within 30 days after the
date of issuance of the decision, to a hearing on his claim before a representative of the
Secretary.”23
The Office, in its broad discretionary authority in the administration of the Act, has the
power to hold hearings in certain circumstances where no legal provision was made for such
hearings and the Office must exercise this discretionary authority in deciding whether to grant a
hearing. Specifically, the Board has held that the Office has the discretion to grant or deny a
21

Linda J. Edwards-Delgado, supra note 16. See David C. Lindsey, Jr., 56 ECAB ___ (Docket No. 04-1828,
issued January 19, 2005) (generally, actions of the employing establishment in matters involving the use of leave are
not considered compensable factors of employment as they are administrative functions of the employer and not
duties of the employee).
22

As appellant has not established any compensable employment factors, the Board need not consider the medical
evidence of record. See Roger Williams, 52 ECAB 468, 474 (2001); Margaret S. Krzycki, supra note 5.
23

5 U.S.C. § 8124(b)(1).

8

hearing request on a claim involving an injury sustained prior to the enactment of the 1966
amendments to the Act, which provided the right to a hearing, when the request is made after the
30-day period established for requesting a hearing, or when the request is for a second hearing on
the same issue. The Office’s procedures, which require the Office to exercise its discretion to
grant or deny a hearing when a hearing request is untimely or made after reconsideration under
section 8128(a), are a proper interpretation of the Act and Board precedent.24
ANALYSIS -- ISSUE 2
Appellant’s request for an oral hearing was dated September 6, 2006, more than 30 days
after the April 6, 2006 decision. Therefore, appellant is not entitled to an examination of the
written record as a matter of right. The Office properly exercised its discretion in denying an
oral hearing upon appellant’s untimely request by determining that the issue could be equally
well addressed by requesting reconsideration and submitting additional evidence to the Office.
As the only limitation on the Office’s authority is reasonableness, abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment, or
actions taken which are contrary to both logic and probable deductions from known facts.25
While appellant argues that she had no notice of the Office’s decision, there is no evidence in the
case record to establish that the Office abused its discretion in refusing to grant appellant’s
hearing request.

24

Claudio Vazquez, 52 ECAB 496 (2001); Henry Moreno, 39 ECAB 475 (1988).

25

Daniel J. Perea, 42 ECAB 214 (1990).

9

CONCLUSION
Appellant has not met her burden of proof in establishing that she sustained an emotional
condition in the performance of duty. The Board further finds that the Office properly denied
her request for an oral hearing before an Office hearing representative under 5 U.S.C. § 8124.
ORDER
IT IS HEREBY ORDERED THAT the September 29 and April 6, 2006 decisions of
the Office of Workers’ Compensation Programs are hereby affirmed.
Issued: May 18, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Clearwater, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 19-0540
Issued: August 8, 2019

Case Submitted on the Record

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

JURISDICTION
On January 11, 2019 appellant filed a timely appeal from a January 8, 2019 merit decision1
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

Appellant’s AB-1 form notes that he is appealing from a December 18, 2018 purported decision. The only
document of record dated December 18, 2018 was a recurrence development letter. As this correspondence is not a
final adverse decision of OWCP, the Board does not have jurisdiction to consider the merits of appellant’s recurrence
claim. See 20 C.F.R. § 501.2(c). The only OWCP decision over which the Board may take jurisdiction is the
January 8, 2019 schedule award decision.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the January 8, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
On October 11, 2017 appellant, then a 41-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on October 10, 2017 he injured his lower back as a result of an
automobile accident while in the performance of duty. After an initial denial, OWCP accepted the
claim by decision dated March 6, 2018 for lumbar and cervical strains, lumbar and cervical bulging
discs, and left foot strain and sprain. It also paid wage-loss compensation retroactive to
November 25, 2017 because the employing establishment had been unable to accommodate
appellant’s limited-duty work restrictions.
In a work capacity evaluation dated April 6, 2018, Dr. Jonathan Yousef, a Board-certified
family practitioner, recommended temporary sedentary work restrictions. The employing
establishment informed OWCP on April 30, 2018 that it could not accommodate limited-duty
work within appellant’s restrictions. OWCP paid appellant wage-loss compensation on the
periodic compensation rolls beginning April 29, 2018.
On June 8, 2018 appellant filed a claim for a schedule award (Form CA-7).
In a work capacity evaluation dated June 8, 2018, Dr. Yousef recommended permanent
work restrictions of no sitting more than 30 minutes per day, no walking, pushing, pulling, or
squatting more than 4 hours per day, no twisting more than 5 hours per day, and no lifting more
than 6 hours per day. In a report of the same date, he followed up with appellant for his injury
resulting from the motor vehicle accident of October 10, 2017. Dr. Yousef noted that the sudden
impact created forces that damaged soft tissue structures in the lumbar and cervical spine, as
demonstrated by magnetic resonance imaging (MRI) scan results revealing bulging discs in his
lumbar and cervical spine. He diagnosed cervical disc displacement, segmental and somatic
dysfunction of the lumbar region, intervertebral disc displacement of the lumbar region,
contracture of muscle, low back pain, sprain of the ligaments of the lumbar spine, and left foot
pain. Dr. Yousef stated that, in regards to the medical care he provided, appellant had reached
maximum medical improvement (MMI). He also noted that he would defer to appellant’s
neurosurgeon regarding an impairment rating.
On July 25, 2018 appellant returned to full-time modified-duty work at the employing
establishment.
Appellant resubmitted his schedule award claim on August 28, 2018.
In a development letter dated September 7, 2018, OWCP requested that appellant provide
an impairment rating in accordance with the sixth edition of the American Medical Association,

2

Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).4 It afforded him 30 days
to submit the requested information.
In a report dated September 19, 2018, Dr. Yousef again stated that appellant was at
maximum medical improvement, further recommending that appellant revisit his neurosurgeon to
see if he would like to reconsider surgical options. Appellant stated that he would like to consider
neck surgery.
In a work capacity evaluation dated December 19, 2018, Dr. Jorge Inga, a Board-certified
neurosurgeon, checked a box indicating that appellant had not reached MMI.
By decision dated January 8, 2019, OWCP denied appellant’s schedule award claim,
finding that he had not reached MMI.
LEGAL PRECEDENT
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proof to establish that the condition for which a schedule award is
sought is causally related to his or her employment.5
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.6 FECA, however,
does not specify the manner by which the percentage loss of a member, function, or organ shall be
determined. To ensure consistent results and equal justice for all claimants under the law, good
administrative practice requires the use of uniform standards applicable to all claimants.7 The
A.M.A., Guides has been adopted by the implementing regulations as the appropriate standard for
evaluating schedule losses.8 Effective May 1, 2009, schedule awards are determined in accordance
with the sixth edition of the A.M.A., Guides.9
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.10 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 schedule or nonscheduled member. Therefore, as the
4

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

5

L.C., Docket No. 15-1671 (issued May 24, 2016); Veronica Williams, 56 ECAB 367 (2005).

6

5 U.S.C. § 8107.

7

L.C., supra note 5; Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

8

20 C.F.R. § 10.404.

9

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010);
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017).
10

L.C., supra note 5; Pamela J. Darling, 49 ECAB 286 (1998).

3

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.11
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal neve injuries as impairment of the extremities. Recognizing that FECA allows ratings for
extremities and precludes ratings for the spine, The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter) offers
an approach to rating spinal nerve impairments consistent with sixth edition methodology.12
OWCP has adopted this approach for rating impairment to the upper or lower extremities caused
by a spinal injury.13
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award. OWCP
accepted his claim for lumbar and cervical strain, lumbar and cervical bulging discs, left foot strain
and left foot sprain. On June 8, 2018 appellant filed a claim for a schedule award. In a work
capacity evaluation dated December 19, 2018, Dr. Inga checked a box indicating that appellant
had not reached MMI. By letter dated December 21, 2018, Dr. Yousef stated that appellant was
scheduled for surgery on January 14, 2019 with Dr. Inga. On December 26, 2018 appellant
requested authorization for cervical spinal fusion.
It is well established that a schedule award cannot be determined and paid until a claimant
has reached MMI.14 The medical record indicates that appellant was still actively treating with
Dr. Inga, as of December 21, 2018, who also noted that appellant had not yet reached MMI in a
work capacity evaluation dated December 19, 2018. The Board finds that, as appellant did not
submit medical evidence indicating that he had reached MMI, he has not met his burden of proof
to establish a claim for a schedule award.15
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

11

L.C., supra note 5; Thomas J. Englehart, 50 ECAB 319 (1999).

12

L.C., supra note 5; L.J., Docket No. 10-1263 (issued March 3, 2011).

13

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

14

L.C., supra note 5; D.H., Docket No. 13-1642 (issued January 7, 2014).

15

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the January 8, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 8, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 21-1075
Issued: March 18, 2022

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On July 7, 2021 appellant filed a timely appeal from a June 17, 2021 nonmerit decision of
the Office of Workers’ Compensation Program (OWCP). As more than 180 days elapsed from
OWCP’s last merit decision, dated May 11, 2020, to the filing of this appeal, pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
lacks jurisdiction over the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
On February 27, 2020 appellant, then a 79-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed actinic keratosis and basal cell carcinoma
1

5 U.S.C. § 8101 et seq.

due to factors of his federal employment, including exposure to the ultraviolet rays from the sun.
He noted that he first became aware of the condition on September 26, 2007 and realized its
relationship to his federal employment on February 18, 2020. In an attached February 28, 2020
statement, appellant detailed his exposure to the sun, both on and off the job . He also cited to prior
Board decision pertaining to causal relationship.
In a February 23, 2020 report, Dr. Suzette Sanchez, an osteopath specializing in
dermatology, noted that appellant had worked for the employing establishment for over 30 years
and had spent most of his eight-hour workday outside delivering mail. She reported that appellant
had previously been treated for actinic keratosis and basal cell carcinoma on his upper mid
forehead in 2017 and was seen on February 18, 2020 for recurring actinic keratosis on his right
forehead. Dr. Sanchez indicated that actinic keratosis and basal cell carcinoma is a skin cancer,
which directly correlates with high amounts of past sun exposure. She noted that appellant had a
lifetime of sun exposure and opined, with a reasonable degree of medical certainty, that his
extensive time spent outside in the sun delivering mail contribu ted to the development of actinic
keratosis and basal cell carcinoma. An April 28, 2017 dermatopathology laboratory report was
attached, which identified appellant’s biopsied specimen as basal cell carcinoma.
In an April 2, 2020 development letter, OWCP informed appellant of the deficiencies of
his claim. It advised him of the type of evidence needed to establish his claim and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to respond.
In an April 6, 2020 letter, appellant responded to OWCP’s April 2, 2020 development
letter. He also resubmitted his previous correspondence and evidence.
By decision dated May 11, 2020, OWCP denied the claim, finding that the medical
evidence of record was insufficient to establish that the claimed medical conditions were causally
related to the accepted work events.
On June 1, 2021 appellant requested reconsideration an appeal request form. In an
accompanying May 27, 2021 letter, he argued that OWCP never mentioned nor considered his
April 6, 2020 submission, which contained relevant information. Appellant further argued that
Dr. Sanchez was not required to delineate the percent of non-federal or federal exposure
contribution to his skin cancer, only that his federal employment contributed to the development
of his skin cancer. In support of his argument, he again cited to the same Board precedent as cited
in his February 28, 2020 statement.
By decision dated June 17, 2021, OWCP denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
LEGAL PRECEDENT
Pursuant to section 8128(a) of FECA, OWCP has the discretion to reopen a case for further
merit review.2 This discretionary authority, however, is subject to certain restrictions. For
2

5 U.S.C. § 8128(a); L.W., Docket No. 18-1475 (issued February 7, 2019); Y.S., Docket No. 08-0440 (issued
March 16, 2009).

2

instance, a request for reconsideration must be received within one year of the date of OWCP’s
decision for which review is sought. 3 Timeliness is determined by the document receipt date, i.e.,
the “received date” in OWCP’s Integrated Federal Employees’ Compensation System (iFECS). 4
Imposition of this one-year filing limitation does not constitute an abuse of discretion. 5
When a request for reconsideration is untimely, OWCP undertakes a limited review to
determine whether the request demonstrates clear evidence that OWCP’s most recent merit
decision was in error. 6 OWCP’s procedures provide that it will reopen a claimant’s case for merit
review, notwithstanding the one-year filing limitation set forth in 20 C.F.R. § 10.607, if the
claimant’s request for reconsideration demonstrates “clear evidence of error” on the part of
OWCP.7 In this regard, OWCP will limit its focus to a review of how the newly submitted
evidence bears on the prior evidence of record. 8
To demonstrate clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP. 9 The evidence must be positive, precise, and explicit and
must manifest on its face that OWCP committed an error. Evidence, which does not raise a
substantial question concerning the correctness of OWCP’s decision, is insufficient to demonstrate
clear evidence of error. It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by OWCP of how the evidence
submitted with the reconsideration request bears on the evidence previously of record and whether
the new evidence demonstrates clear error on the part of OWCP. To demonstrate clear evidence
of error, the evidence submitted must be of sufficient probative value to shift the weight of the
evidence in favor of the claimant and raise a substantial question as to the correctness of OWCP’s
decision.10
OWCP’s procedures note that the term clear evidence of error is intended to represent a
difficult standard. The claimant must present evidence, which on its face demonstrates that OWCP
made an error (for example, proof that a schedule award was miscalculated). Evidence such as a
detailed, well-rationalized medical report, which if submitted before the denial was issued, would
have created a conflict in medical opinion requiring further development, is not clear evidence of

3

20 C.F.R. § 10.607(a).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 September 2020).

5

G.G., Docket No. 18-1072 (issued January 7, 2019); E.R., Docket No. 09-0599 (issued June 3, 2009); Leon D.
Faidley, Jr., 41 ECAB 104 (1989).
6

See 20 C.F.R. § 10.607(b); D.M., Docket No. 21-0261 (issued September 29, 2021); M.H., Docket No. 18-0623
(issued October 4, 2018); Charles J. Prudencio, 41 ECAB 499 (1990).
7

D.M., id.; L.C., Docket No. 18-1407 (issued February 14, 2019); M.L., Docket No. 09-0956 (issued
April 15, 2010). See also 20 C.F.R. § 10.607(b).
8

J.M., Docket No. 19-1842 (issued April 23, 2020); Robert G. Burns, 57 ECAB 657 (2006).

9

See D.M., supra note 6; S.C., Docket No. 18-0126 (issued May 14, 2016).

10

C.M., Docket No. 19-1211 (issued August 5, 2020).

3

error.11 The Board makes an independent determination of whether a claimant has demo nstrated
clear evidence of error on the part of OWCP. 12
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration,
finding that it was untimely filed and failed to demonstrate clear evidence of error.
On June 1, 2021 appellant filed a request for reconsideration. As this request was received
more than one year after the latest merit decision, dated May 11, 2020, the request for
reconsideration was untimely filed pursuant to 20 C.F.R. § 10.607(a). 13 As such, appellant must
demonstrate clear evidence of error with respect to OWCP’s last merit decision. 14
In support of his untimely reconsideration request, appellant argued that OWCP did not
review all the documents he submitted. He also argued that Dr. Sanchez was not required to
delineate the percent of non-federal or federal exposure contribution to his skin cancer, but that
she need only to opine that his federal employment contributed to the development of his skin
cancer. In support of his argument, appellant cited to Board precedent for the proposition that it
is not necessary to show a significant contribution of employment factors to a diagnosed condition
to establish causal relationship.15 His argument, however, failed to sufficiently explain how this
legal precedent in conjunction with Dr. Sanchez February 23, 2020 report raises a substantial
question as to the correctness of OWCP’s May 11, 2020 merit decision.16
The Board, thus, finds that appellant has not raised an argument or submitted an y evidence
that manifests on its face that OWCP committed an error in denying his occupational claim.17 As
such, his untimely request for reconsideration failed to demonstrate clear evidence of error.18

11

J.S., Docket No. 16-1240 (issued December 1, 2016); supra note 4 at Chapter 2.1602.5(a) (September 2020).

12

D.S., Docket No. 17-0407 (issued May 24, 2017).

13

20 C.F.R. § 10.607(a).

14

20 C.F.R. § 10.607(b); see D.M., Docket No. 21-0261 (issued September 29, 2021); R.T., Docket No. 19-0604
(issued September 13, 2019); see Debra McDavid, 57 ECAB 149 (2005).
15

C.H., Docket No. 20-0194 (issued August 26, 2021); F.K., Docket No. 19-1804 (issued April 27, 2020; J.B.,
Docket No. 17-2021 (issued August 8, 2018); G.G., Docket No. 17-0504 (issued August 8, 2017); Beth C. Chaput, 37
ECAB 158 (1985) (it is not necessary to show a significant contribution of employment factors to a diagnosed
condition to establish causal relationship).
16

See O.K., Docket No. 21-0708 (issued September 29, 2021); T.C., Docket No. 19-1709 (issued June 5, 2020);
B.W., Docket No. 19-0626 (issued March 4, 2020).
17

O.K., id., S.C., Docket No. 19-1424 (issued September 15, 2020).

18

Id.

4

CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration, finding
that it was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the June 17, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 18, 2022
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
DEPARTMENT OF THE AIR FORCE,
WRIGHT-PATTERSON AIR FORCE BASE,
OH, Employer
__________________________________________

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

Docket No. 13-659
Issued: July 17, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 28, 2013 appellant, through her attorney, filed a timely appeal from a
January 11, 2013 schedule award 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 schedule award decision.
ISSUE
The issue is whether appellant met her burden of proof to establish more than an 11
percent impairment of the right upper extremity for which she received a schedule award and
whether she is entitled to a schedule award for either lower extremity.
On appeal, appellant’s attorney asserts that the January 11, 2013 decision is contrary to
fact and law.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On April 13, 1991 appellant, then a 36-year-old food service worker, sustained an
employment-related right hip contusion, right shoulder condition and lumbar strain when she fell
on a wet floor at work. OWCP adjudicated the claim under file number xxxxxx642.
On December 8, 2006 appellant, then a cook, fell again at work. In a claim adjudicated
under file number xxxxxx622, OWCP accepted the 2006 claim for lumbosacral and neck sprains
and bilateral sciatica. Appellant missed intermittent periods of work and returned to regular duty
without restrictions on May 7, 2007. By decision dated June 3, 2010, OWCP denied her claim
for wage-loss compensation for the period January 21 to February 6, 2008, finding that she did
not establish that she was disabled from work due to either the 1991 or 2006 employment injury.
In a September 24, 2008 report, Dr. Martin Fritzhand, a Board-certified urologist, noted
the history of the 2006 employment injury and provided examination findings. He advised that,
in accordance with the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter A.M.A., Guides),2 appellant had a 15 percent
impairment for each lower extremity.
OWCP continued to develop the claim and in June 2010 referred appellant to
Dr. Rudolph A. Hofmann, a Board-certified orthopedic surgeon, for an opinion regarding
residuals of the accepted conditions and whether appellant had a permanent impairment due to
the 1991 and/or 2006 employment injury. In a July 1, 2010 report, Dr. Hofmann advised that, in
accordance with the sixth edition of the A.M.A., Guides,3 appellant had an 11 percent
impairment of the right upper extremity due to decreased shoulder range of motion and no
clinical evidence of an impairment of either lower extremity.
By decision dated October 25, 2010, appellant was granted a schedule award for an 11
percent loss of use of the right arm and zero percent for loss of use of the right or left leg. On
November 3, 2010 appellant, through her attorney, requested a hearing regarding the October 25,
2010 schedule award decision. A May 31, 2007 magnetic resonance imaging (MRI) scan study
of the lumbar spine that demonstrated multilevel degenerative disc disease with significant
neural compromise at L4-5. A July 1, 2008 electrodiagnostic study of the lower extremities
demonstrated lumbar radiculopathy involving the anterior rami with possible mild L5 nerve root
irritation. In a December 18, 2008 report, Dr. Morris L. Brown, an attending Board-certified
family physician, described his care of appellant from December 6, 2006 to December 12, 2008.
He advised that, in accordance with the sixth edition of the A.M.A., Guides, appellant had a right
shoulder impairment of 14 percent, a right wrist impairment of 14 percent and a lumbar spine
impairment of 25 percent.
Following a March 15, 2011 hearing, regarding the October 25, 2010 schedule award
decision, the record was held open for 30 days for appellant to submit additional evidence. In a
March 25, 2011 report, Dr. Fritzhand advised that he had examined appellant on September 28,
2

A.M.A., Guides to the Evaluation of Permanent Impairment (5th ed. 2001).

3

Id. at (6th ed. 2008).

2

2008 and was now reassessing her findings under the sixth edition of the A.M.A., Guides. He
indicated that, in accordance with the July to August 2009 Guides Newletter, under Table 16-11,
appellant had a severe, level 3, sensory deficit involving both lower extremities and a mild, level
1, motor deficit also involving both lower extremities. Dr. Fritzhand concluded that she had a
four percent sensory and a four percent motor deficit of each lower for extremity, for a total eight
percent impairment of each lower extremity.
In a May 18, 2011 decision, OWCP’s hearing representative affirmed the October 25,
2010 schedule award decision. On August 2, 2011 appellant, through her attorney, requested an
additional schedule award and submitted a July 22, 2011 report in which Dr. Fritzhand noted that
he had reexamined appellant that day. Dr. Fritzhand provided physical examination findings and
indicated that maximum medical improvement was reached by January 2008. He indicated that,
in accordance with the July to August 2009 Guides Newsletter, appellant had a 12 percent
impairment of the right upper extremity and a 3 percent impairment on the left. Dr. Fritzhand
also found that she had a sensory impairment to each lower extremity of 6 percent.
OWCP determined that a conflict in medical evidence had been created between the
opinions of Dr. Hofmann, who provided a second-opinion evaluation for OWCP and
Dr. Fritzhand, an attending physician, and referred appellant to Dr. Pietro Seni, a Board-certified
orthopedic surgeon, for an impartial evaluation regarding the degree of appellant’s impairment to
the bilateral upper and lower extremities due to the accepted employment injuries.
In a November 19, 2012 report, Dr. Seni reviewed the medical record, statement of
accepted facts and histories of the 1991 and 2006 employment injuries. He reported appellant’s
complaint of chronic neck, back and right leg pain and that she continued to work as a cook at
the employing establishment. Dr. Seni noted that, at the end of his physical examination, she
was complaining of severe pain and was crying. He indicated that, after examining appellant,
there was no evidence whatsoever that she had any radiculopathy of the cervical or lumbar spine
affecting the upper or lower extremities. Dr. Seni disagreed with the opinion of Dr. Fritzhand,
stating that he found no symptoms or signs on physical examination to indicate either a C5 or L5
radiculopathy. He noted that during this examination there were severe emotional components.
Dr. Seni found no further residuals of the accepted conditions of bilateral sciatica, lumbar sprain,
right hip contusion, neck sprain and right shoulder sprain. He indicated that the only positive
physical findings were decreased range of motion of the right shoulder and noted that appellant
had previously received an 11 percent right upper extremity schedule award based on this
condition. Regarding the lower extremities, Dr. Seni indicated that, while disc protrusions were
evident on the lumbar MRI scan study, these did not translate into any lower extremity
symptoms and were therefore not ratable. He specifically advised that on physical examination
all reflexes were present and symmetrical. There were no sensory changes that, followed a
particular dermatomal pattern, no muscle weakness or atrophy and range of motion was within
normal limits. Regarding the upper extremities, Dr. Seni found no evidence of radiculopathy.
Other than the shoulder range of motion described above, he stated that there was no upper
extremity muscle weakness from the shoulder girdle down to the tip of the fingers, no sensory
changes and no atrophy. Dr. Seni opined that appellant most likely had fibromyalgia but that her
physical examination was not reliable enough to make an absolute diagnosis. He recommended
a psychological evaluation. Dr. Seni indicated that the accepted conditions had stabilized when
appellant reached maximum medical improvement in 2008 and, as such, no further treatment

3

was necessary. He concluded that, after carefully reviewing the sixth edition of the A.M.A.,
Guides and its newsletter, she had no ratable impairment of the lower extremities and no
additional impairment of the upper extremities.
On December 20, 2012 Dr. Nabil F. Angley, Board-certified in orthopedic surgery and an
OWCP medical adviser, reviewed appellant’s record including Dr. Seni’s November 12, 2012
report. OWCP’s medical adviser indicated that Dr. Seni had provided a thorough and meticulous
report in which he commented on the conflicting medical reports and also provided his own
history, physical examination and independent opinion. Dr. Angley discussed Dr. Seni’s opinion
and physical examination findings and agreed with him.
In a merit decision dated January 11, 2013, OWCP found that the weight of the medical
evidence rested with the opinion of Dr. Seni, the referee physician, and affirmed the October 25,
2010 and May 18, 2011 decisions which found that appellant was not entitled to an additional
schedule award.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing federal regulations5 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.6 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides was used to calculate schedule awards.7
For decisions issued after May 1, 2009, the sixth edition is to 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

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
8

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

9

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

4

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 to
August 2009 Guides Newsletter.12
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary
shall appoint a third physician who shall make an examination.13 The implementing regulations
state that, if a conflict exists between the medical opinion of the employee’s physician and the
medical opinion of either a second opinion physician or an OWCP medical adviser, OWCP shall
appoint a third physician to make an examination. This is called a referee examination, and
OWCP will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.14 When there exist opposing medical reports of virtually equal weight
and rationale and the case is referred to an impartial medical specialist for the purpose of
resolving the conflict, the opinion of such specialist, if sufficiently well rationalized and based
upon a proper factual background, must be given special weight.15
ANALYSIS
OWCP accepted that on April 13, 1991 appellant sustained a right hip contusion, right
shoulder condition and lumbar strain and that on December 8, 2006 she sustained lumbosacral
and neck sprains and bilateral sciatica. On October 25, 2010 appellant was granted a schedule
award for an 11 percent loss of use of the right arm and 0 percent for loss of use of either leg. In
a May 18, 2011 decision, OWCP’s hearing representative affirmed the October 25, 2010
decision.
On August 2, 2011 appellant requested an additional schedule award. OWCP properly
determined that a conflict existed between Dr. Fritzhand, an attending physician, and
Dr. Hofmann, who provided a second-opinion evaluation for OWCP, regarding the extent of
permanent impairment of the upper and lower extremities. It referred appellant to Dr. Seni for
resolution of the conflict.
10

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

11

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

12

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, supra note 9.

13

5 U.S.C. § 8123(a); see Y.A., 59 ECAB 701 (2008).

14

20 C.F.R. § 10.321.

15

V.G., 59 ECAB 635 (2008).

5

The Board finds that Dr. Seni’s opinion is thorough and well rationalized. It represents
the weight of the medical evidence.16 In a report dated November 19, 2012, Dr. Seni reviewed
the history of both employment injuries and the diagnostic studies. He discussed the medical
evidence of record. Dr. Seni provided extensive physical examination findings and indicated
that the only positive physical findings were decreased range of motion of the right shoulder but
that appellant had previously received a right upper extremity schedule award based on this
condition. He opined that she most likely had fibromyalgia and recommended a psychological
evaluation. Dr. Seni indicated that the accepted conditions had stabilized when appellant
reached maximum medical improvement in 2008 and, as such, no further treatment was
necessary. He concluded that, after carefully reviewing the sixth edition of the A.M.A., Guides
and its newsletter, she had no ratable impairment of the lower extremities and no additional
impairment of the upper extremities.
The Board has carefully reviewed the opinion of Dr. Seni and notes that it has reliability,
probative value and convincing quality with respect to its conclusions regarding the relevant
issue in the present case. Dr. Seni’s opinion is based on a proper factual and medical history and
he thoroughly reviewed the factual and medical history and accurately summarized the relevant
medical evidence.17 He extensively described physical examination findings and provided
medical rationale for his opinion by explaining that appellant had no ratable impairment of the
lower extremities and no additional impairment of the upper extremities under the A.M.A.,
Guides. Dr. Seni’s opinion is consequently entitled to special weight as the impartial medical
examiner and establishes that she has no additional upper extremity impairment and no lower
extremity impairment due to either employment injury.18
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 did not establish that she has more than an 11 percent
impairment of the right upper extremity.

16

Id.

17

See Melvina Jackson, 38 ECAB 443 (1987).

18

See R.C., 58 ECAB 238 (2006).

6

ORDER
IT IS HEREBY ORDERED THAT the January 11, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 17, 2013
Washington, DC

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

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

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

7