United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Fort Worth, TX, Employer
__________________________________________

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

Docket No. 12-1368
Issued: January 28, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 11, 2012 appellant filed a timely appeal from a June 7, 2012 merit decision of
the Office of Workers’ Compensation Programs (OWCP) denying her claim for disability
compensation. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she is entitled to compensation for
total disability for the period December 5, 2011 to February 12, 2012.
FACTUAL HISTORY
On April 28, 2008 appellant, then a 47-year-old sales service associate clerk, filed an
occupational disease claim (Form CA-2) alleging that she developed a right shoulder, wrist,
finger and arm injury as a result of her federal employment duties. She stated that she first
1

5 U.S.C. § 8101 et seq.

became aware of her illness and of its relationship to her employment on November 5, 2007. By
decision dated June 30, 2008, OWCP accepted the claim for brachial neuritis or radiculitis.
Appellant was placed on light duty effective March 14, 2009.
Appellant submitted claim for compensation forms (Form CA-7) documenting leave
without pay beginning December 5, 2011.2
In a November 7, 2011 diagnostic report Dr. Terri L. Allen, a Board-certified diagnostic
radiologist, reported that a magnetic resonance imaging scan of appellant’s cervical spine
showed moderate disc space narrowing, spondylosis, bilateral unconvertebral spurring, posterior
spondylitic ridging and bilateral facet hypertrophy.
In medical reports dated June 14 to December 1, 2011, Dr. Karen M. Perl, Boardcertified in physical medicine and rehabilitation, noted that appellant sustained a cervical spine
and right shoulder injury related to her postal duties, which started in October 2011 but had
worsened in March and April noting the date of her original injury as November 5, 2007. She
diagnosed chronic right shoulder tendinitis, recurrent intermittent cervical radiculitis with trigger
points affecting the upper extremities and cervical facet syndrome affecting C4 through 7,
treating appellant with injections.
In her December 1, 2011 report, Dr. Perl reported that appellant had an acute flare up of
her cervical spine and was incapacitated from work because she was unable to tolerate her work
duties. Upon physical examination, appellant’s range of motion of the cervical spine was
minimal in all directions globally. She had a positive Spurling’s test for pain, tingling and
burning in the upper extremity. Dr. Perl also noted severe trigger points with minimal to no
range of motion at the cervical spine which showed tenderness to palpation that radiated into
both the trapezius and scapular regions bilaterally. She stated that appellant would be written off
work due to her severe pain and incapacitated level. Dr. Perl stated that appellant was unable to
work her job duties at the postal service due to range of motion loss, trigger points in the cervical
spine and pain in the upper extremity.
In a December 1, 2011 and January 5, 2012 attending physician’s report (Form CA-20),
Dr. Perl diagnosed appellant with cervical radiculitis, cervical spondylosis, cervical facet
inflammation and cervical facet syndrome as a result of repetitive activities from her
occupational duties. She stated that appellant was disabled from November 29, 2011 through
March 10, 2012 and recommended permanent limited-duty restrictions.
By decision dated January 23, 2012, OWCP denied appellant’s claim for disability for the
period beginning December 5, 2011 because the medical evidence failed to provide objective
findings to demonstrate that her work-related conditions had worsened and that she could no
longer perform the duties she was performing when she stopped work.

2

The Board notes that appellant also filed several recurrence claims (Form CA-2a) regarding her November 5,
2007 occupational injury for time loss from work, noting the date of recurrence as December 2, 2010, October 25,
2011 and September 5, 2012.

2

By letter dated February 24, 2012, appellant requested reconsideration of OWCP’s
decision. She stated that she suffered a recurrence from her original November 5, 2007 injury
and was incapable of working as of December 5, 2011 because of her disability.
In a January 13 and 20, 2012 operative report, Dr. Perl diagnosed cervical facet
arthropathy, cervical spondylosis and muscle spasm. Appellant underwent cervical facet
injection, right C4, right C5, right C6 and right C7 with fluoroscopic guidance on those dates.
In medical reports dated December 27, 2011 to April 19, 2012, Dr. Perl reported that
appellant was distressed in relation to her cervical spine. She diagnosed cervical facet syndrome,
muscle spasms, acute recurrent cervical radiculopathies affecting the upper extremities
bilaterally and right shoulder tendinitis. In her January 26, 2012 report, Dr. Perl noted that
appellant was using pain medication but her symptoms had worsened significantly, which
required her to be off work related to her severe dysfunction and inability to work. In her
February 24, 2012 report, she noted that appellant had to take off work on several occasions due
to her recurrent incapacitating episodes despite continued treatment for her injuries. Dr. Perl
stated that appellant’s episodes of incapacitation required ongoing medication along with
ongoing treatment. She further noted that appellant would require ongoing treatment related to
her cervical spine, which caused problems with numbness, tingling, decreased range of motion
and muscle spasms. Dr. Perl stated that it would be very difficult for appellant to work if she is
unable to turn her cervical spine from side to side or move freely so that she may look in
different directions. She concluded that if appellant were to return to work, she would have
future episodes with her cervical spine which would require being taken off of work for therapy,
injections and medication.
In an April 19, 2012 attending physician’s report, Dr. Perl stated that appellant was
totally disabled for the period March 10 to June 1, 2012 and noted that permanent issues were
expected with her condition.
By decision dated May 21, 2012, OWCP vacated the January 23, 2012 decision and
stated that a de novo decision would be issued accepting appellant’s recurrence of work injury
for the period February 13 through June 1, 2012, as supported by the medical evidence of
record.3
By letter dated May 22, 2012, appellant requested reconsideration and stated that she was
submitting additional medical documentation to support her claim for the period December 9,
2011 through February 10, 2012. She further stated that she would not be returning to work due
to her medical condition and had applied for retirement. Appellant resubmitted a number of
medical documents already of record.
In a May 17, 2012 medical report, Dr. Perl stated that appellant remained significantly
distressed with relation to her cervical spine. Range of motion continued to be a problem with
lateral flexion, rotation and extension. Dr. Perl reported that appellant had a positive Spurling’s
3

The Board notes that OWCP configured the time period for appellant’s recurrence of disability based on
Dr. Perl’s February 24, 2012 report and appellant’s claim for compensation forms filed for the period February 13 to
24, 2012 through May 21 to June 1, 2012.

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for cervical pain and had trigger points in the cervical paraspinal muscles with tenderness to
palpation. She diagnosed cervical facet syndrome with decreased range of motion and muscle
spasms with temporary improvement after medial branch blocks. Dr. Perl also diagnosed severe
cervical spine and right shoulder injury related to her postal duties, chronic recurrent cervical
radiculopathy affecting the upper extremity and right shoulder tendinitis.
By decision dated June 7, 2012, OWCP modified and vacated in part the May 21, 2012
decision and accepted a recurrence of disability for the period February 13 through June 1, 2012.
It denied appellant’s claim for disability for the period December 5, 2011 and continuing4
finding that there was no medical evidence to support that she was unable to work in her lightduty assignment as a result of her accepted condition.5
LEGAL PRECEDENT
Under FECA,6 the term disability is defined as incapacity, because of employment injury,
to earn the wages that the employee was receiving at the time of injury.7 Disability is not
synonymous with a physical impairment which may or may not result in an incapacity to earn the
wages. An employee who has a physical impairment causally related to a federal employment
injury but who nonetheless has the capacity to earn wages he or she was receiving at the time of
injury has no disability as that term is used in FECA.8
Whether a particular injury causes an employee to be disabled and the duration of that
disability are medical issues which must be proved by a preponderance of the reliable, probative
and substantial medical evidence.9 Findings on examination are generally needed to support a
physician’s opinion that an employee is disabled for work. When a physician’s statements
consist only of a repetition of the employee’s complaints that excessive pain caused an inability
to work, without making an objective finding of disability, the physician has not presented a
medical opinion on the issue of disability or a basis for payment of compensation.10 The Board
4

The Board notes that the last claim for compensation form filed by appellant prior to the issuance of the June 7,
2012 decision was for the period May 21 to June 1, 2012. After OWCP rendered its June 7, 2012 decision, appellant
submitted additional claim for compensation forms for leave without pay for the period June 1, 2012 and onward.
As there is no final OWCP decision with respect to appellant’s claim for compensation for the period after June 1,
2012, the Board does not have jurisdiction over that issue. 20 C.F.R. § 501.2(c) (the Board has jurisdiction to
consider and decide appeals from final decisions; there shall be no appeal with respect to any interlocutory matter
disposed of during the pendency of the case).
5

The Board further notes that appellant submitted additional evidence after OWCP rendered its June 7, 2012
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision and therefore this additional evidence cannot be considered on appeal. 20 C.F.R. § 510.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).
6

5 U.S.C. §§ 8101-8193.

7

See Prince E. Wallace, 52 ECAB 357 (2001).

8

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

9

See Fereidoon Kharabi, 52 ECAB 291, 293 (2001); Edward H. Horton, 41 ECAB 301, 303 (1989).

10

G.T., 59 ECAB 447 (2008); see Huie Lee Goal, 1 ECAB 180,182 (1948).

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will not require OWCP to pay compensation for disability without any medical evidence directly
addressing the specific dates of disability for which compensation is claimed. To do so would
essentially allow employees to self-certify their disability and entitlement to compensation.11
Proceedings under FECA are not adversarial in nature and OWCP is not a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility to see that justice is done.12 The nonadversarial policy of proceedings
under FECA is reflected in OWCP’s regulations at section 10.121.13
ANALYSIS
OWCP accepted appellant’s claim for brachial neuritis or radiculitis. In its June 7, 2012
decision, OWCP accepted that she sustained a recurrence of her work injury for the period
February 13 through June 1, 2012. It denied her claim for compensation, however, for the period
December 5, 2011 to February 12, 2012. Appellant has the burden of proving by the weight of
the substantial, reliable and probative evidence a causal relationship between her claimed
disability from December 5, 2011 to February 12, 2012 and the accepted condition.14 The Board
finds that this case is not in posture for decision.
The medical evidence of record relevant to the claimed period of December 5, 2011 to
February 12, 2012 consists of reports dated June 14, 2011 to May 17, 2012 from Dr. Perl, who
provided examination findings and diagnoses pertaining to appellant’s cervical spine and right
shoulder injury. In her December 1, 2011 medical report, Dr. Perl noted that appellant sustained
a cervical spine and right shoulder injury related to her postal duties, which started in
October 2011 but had worsened in March and April noting the date of original injury as
November 5, 2007. She reported that appellant had an acute flare up of her cervical spine and
was incapacitated with work because she was unable to tolerate her work duties. Upon physical
examination, appellant’s range of motion of the cervical spine was minimal in all directions
globally. She had a positive Spurling’s test for pain, tingling and burning in the upper extremity.
Dr. Perl also noted severe trigger points with minimal to no range of motion at the cervical spine
which showed tenderness to palpation that radiated into both the trapezius and scapular regions
bilaterally. She diagnosed cervical facet syndrome, acute recurrent cervical radiculitis with
severe trigger points causing minimal ability for range of motion of the cervical spine and right
shoulder tendinitis. Dr. Perl stated that appellant would be taken off work due to severe pain and
her incapacitated level. She opined that appellant was unable to work her job duties at the postal
service due to range of motion loss, trigger points in the cervical spine and pain in the upper
extremity. In a January 13, 2012 operative report, Dr. Perl provided findings regarding
appellant’s operative procedure and stated that she underwent cervical facet injection, right C4,
right C5, right C6 and right C7 with fluoroscopic guidance. She provided a postoperative
diagnosis of cervical facet arthropathy, cervical spondylosis and muscle spasm. In a January 26,
11

Id.

12

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

13
14

20 C.F.R. § 10.121.
See Amelia S. Jefferson, 57 ECAB 183 (2005).

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2012 report, Dr. Perl noted that appellant was using pain medication but her symptoms had
worsened significantly which required her to be off work related to her severe dysfunction, levels
of pain and incapacitation. She noted that appellant was not able to tolerate her limited-duty
assignment.
In a December 1, 2011 and January 5, 2012 attending physician’s report, Dr. Perl
diagnosed appellant with cervical radiculitis, cervical spondylosis, cervical facet inflammation
and cervical facet syndrome as a result of repetitive activities from her occupational duties. She
stated that appellant was totally disabled from November 29, 2011 through March 10, 2012.
Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence to see that justice is done.15 The Board
notes that, while none of Dr. Perl’s reports are completely rationalized, they are consistent in
indicating that appellant was disabled as a result of her cervical radiculitis for the period
December 5, 2011 to February 12, 2012 and are not contradicted by any substantial medical or
factual evidence of record. Dr. Perl provided a clear opinion that appellant became disabled on
December 1, 2011 because of a cervical radiculitis flare up. She based her findings on the
evidence of cervical radiculitis found on examination and operative reports for cervical facet
injections. Dr. Perl provided specific dates of disability as well as an explanation regarding why
appellant was disabled, stating that she was unable to perform her job duties at the postal service
due to range of motion loss, trigger points in the cervical spine and pain in the upper extremity.16
Though Dr. Perl’s reports did not offer an unequivocal opinion or fully describe why
appellant was disabled, she provided a clear, if limited, opinion based on examination findings
and an accurate factual and medical background, that appellant was unable to work for the period
December 5, 2011 to February 12, 2012. Moreover, OWCP accepted appellant’s recurrence
claim for the period February 13 to June 1, 2012 based on Dr. Perl’s February 24, 2012 medical
report. In her February 24, 2012 report, Dr. Perl stated that appellant had to take off work on
several occasions due to her recurrent incapacitating episodes despite continued treatment for her
injuries. She further noted that appellant would require ongoing treatment related to her cervical
spine which caused problems with numbness, tingling, decreased range of motion and muscle
spasms. Dr. Perl stated that it would be very difficult for appellant to work because she was
unable to turn her cervical spine from side to side or move freely so that she may look in
different directions. This medical report provides further support for Dr. Perl’s prior conclusions
that appellant was disabled due to range of motion loss, explaining that she would be unable to
turn from side to side or look in different directions.17 Though Dr. Perl’s reports are not
sufficient to meet appellant’s burden of proof to establish her claim, they raise an uncontroverted
inference between her condition and her disability for the period December 5, 2011 to

15

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

16

Id.

17

A.P., Docket No. 11-1767 (issued September 26, 2012).

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February 12, 2012 and are sufficient to require OWCP to further develop the medical evidence
and the case record.18
Accordingly, the Board will remand the case to OWCP. On remand, OWCP should
prepare a statement of accepted facts which includes a detailed employment history, job
descriptions for each position held, specific functions performed by appellant in each position
and the restrictions imposed by her treating physicians. It should further develop the medical
record to determine whether appellant has established that she was totally disabled as a result of
her cervical radiculitis condition for the period December 5, 2011 to February 12, 2012.
Following this and any other further development as deemed necessary, OWCP shall issue an
appropriate merit decision on appellant’s claim.
CONCLUSION
The Board finds this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the June 7, 2012 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part; the case is remanded for further
proceedings consistent with this decision of the Board.
Issued: January 28, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board
18

See Virginia Richard, claiming as executrix of the estate of Lionel F. Richard, 53 ECAB 430 (2002); see also
Brian E. Flescher, 40 ECAB 532, 536 (1989); Ronald K. White, 37 ECAB 176, 178 (1985).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.E., Appellant
and
DEPARTMENT OF THE ARMY, WILLIAM
BEAUMONT ARMY MEDICAL CENTER,
El Paso, TX, Employer
__________________________________________

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

Docket No. 09-1054
Issued: November 5, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 12, 2009 appellant filed an appeal of a schedule award decision of the Office
of Workers’ Compensation Programs’ dated February 18, 2009.1 Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the schedule award in this
case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she has more
than a two percent impairment of bilateral upper extremities, for which she received schedule
awards.

1

Appellant also filed an appeal of decisions of the Office dated February 7 and November 2, 2008 that terminated
her wage-loss compensation on the grounds that she refused an offer of suitable work and a July 23, 2008 decision
that denied her request for written review. This appeal is docketed as Docket No. 09-1054.

FACTUAL HISTORY
The Office accepted that appellant, a food service worker, sustained employment-related
bilateral carpal tunnel syndrome (CTS) and displacement cervical disc and radiculitis. Appellant
did not return to work after cervical surgery on April 21, 2006 and she elected civil service
retirement on October 24, 2007, retiring on November 15, 2007.
On February 5, 2008 appellant filed a schedule award claim. She submitted a January 2,
2008 report from Dr. Michael K. Boone, a Board-certified physiatrist, who provided findings on
examination.2 Dr. Boone advised that maximum medical improvement had been reached as of
that day and that he utilized the fifth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter A.M.A., Guides).3 Regarding appellant’s left
upper extremity, Dr. Boone identified the C5 nerve under Table 16-134 and advised that under
Table 16-10 she had a C5 sensory deficit on the left of one percent and under Table 16-11, a C5
motor deficit of five percent.5 Regarding appellant’s bilateral CTS, he utilized Table 16-156 and
identified the median nerve, finding that she had a bilateral 10 percent sensory deficit under
Table 16-10 and a 3 percent motor deficit under Table 16-11 for a bilateral 13 percent
impairment.7 Dr. Boone concluded that she had a 13 percent right upper extremity impairment
due to CTS and, by combining her 16 percent C5 deficit with his 13 percent median nerve deficit
due to CTS, she had a 27 percent left upper extremity impairment.
On February 7, 2008 the Office requested that an Office medical adviser review the
medical record, including the January 2, 2008 report from Dr. Boone. In a February 19, 2008
report, the Office medical adviser concurred with Dr. Boone’s conclusion that appellant had a
13 percent impairment of the right upper extremity and a 27 percent impairment on the left. He
advised that maximum medical improvement was achieved on January 2, 2008.
By decision dated February 18, 2009, appellant was granted schedule awards for a
permanent loss of two percent, bilateral hand, for a total of 4.88 weeks, to run from January 2
to February 5, 2008.

2

The Board notes that the record includes a number of additional medical reports. None, however, provides an
impairment analysis.
3

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

4

Id. at 489.

5

Id. at 482, 484.

6

Id. at 492.

7

Id. at 482, 484.

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LEGAL PRECEDENT
Under section 8107 of the Federal Employees’ Compensation Act8 and section 10.404 of
the implementing federal regulations,9 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides10 has been adopted by the Office and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.11
It is the claimant’s burden to establish that he or she sustained a permanent impairment of
a scheduled member or function as a result of an employment injury.12 Office procedures
provide that to support a schedule award, the file must contain competent medical evidence
which shows that the impairment has reached a permanent and fixed state and indicates the date
on which this occurred (“date of maximum medical improvement”), describes the impairment in
sufficient detail to include, where applicable, the loss in degrees of active and passive motion of
the affected member or function, the amount of any atrophy or deformity decreases in strength or
disturbance of sensation or other pertinent description of the impairment and the percentage of
impairment should be computed in accordance with the fifth edition of the A.M.A., Guides. The
procedures further provide that, after obtaining all necessary medical evidence, the file should be
routed to the Office medical adviser for an opinion concerning the nature and percentage of
impairment and the Office medical adviser should provide rationale for the percentage of
impairment specified.13

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

A.M.A., Guides, supra note 3.

11

See Joseph Lawrence, Jr., supra note 3; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287
(1989); Francis John Kilcoyne, 38 ECAB 168 (1986).
12

Tammy L. Meehan, 53 ECAB 229 (2001).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Evaluation of Schedule Awards, Chapter 2.808.6(d)
(August 2002).

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Chapter 16 of the fifth edition of the A.M.A., Guides provides the framework for
assessing upper extremity impairments.14 Regarding CTS, the A.M.A., Guides provide:
“If, after an optimal recovery time following surgical decompression, an
individual continues to complain of pain, paresthesias and/or difficulties in
performing certain activities, three possible scenarios can be present-1. Positive clinical findings of median nerve dysfunction and electrical
conduction delay(s): the impairment due to residual CTS is rated
according to the sensory and/or motor deficits as described earlier.
2. Normal sensibility and opposition strength with abnormal sensory
and/or motor latencies or abnormal EMG [electromyogram] testing of the
thenar muscles: a residual CTS is still present and an impairment rating
not to exceed [five] percent of the upper extremity may be justified.
3 Normal sensibility (two-point discrimination and Semmes-Weinstein
monofilament testing), opposition strength and nerve conduction studies:
there is no objective basis for an impairment rating.”15
Section 16.5b of the A.M.A., Guides describes the methods for evaluating upper
extremity impairments due to peripheral nerve disorders and provides that the severity of the
sensory or pain deficit and motor deficit should be classified according to Tables 16-10a and 1611a respectively. The impairment is evaluated by multiplying the grade of severity of the
sensory or motor deficit by the respective maximum upper extremity value resulting from
sensory or motor deficits of each nerve structure involved. When both sensory and motor
functions are involved, the impairment values derived for each are combined.16
Section 8106(c)(2) of the Act and section 10.517 of Office regulations provide that if a
partially disabled employee refuses or neglects work after suitable work is offered to him or her
is not entitled to compensation.17 It is well established that the period covered by the schedule
award commences on the date that the employee reaches maximum medical improvement from
the residuals of the accepted employment injury. The Board has explained that maximum
medical improvement means that the physical condition of the injured member of the body has
stabilized and will not improve further. The determination of whether maximum medical
improvement has been reached is based on the probative medical evidence of record and is

14

A.M.A., Guides, supra note 3 at 433-521.

15

Id. at 495.

16

Id. at 481; see Kimberly M. Held, 56 ECAB 670 (2005).

17

5 U.S.C. § 8106(c)(2); 20 C.F.R. § 10.517; see D.S., 60 ECAB ___ (Docket No. 08-885, issued
March 17, 2009).

4

usually considered to the date of the evaluation by the attending physician which is accepted as
definitive by the Office.18
ANALYSIS
While the medical evidence in this case supports that appellant has a 27 percent left upper
extremity impairment and a 13 percent right upper extremity impairment,19 the Act provides that
if a partially disabled employee refuses or neglects work after suitable work is offered, he or she
is not entitled to further monetary compensation.20 Appellant’s monetary compensation was
terminated on February 7, 2008 because she refused an offer of suitable work.21 Both Dr. Boone,
an attending physiatrist, and the Office medical adviser opined that maximum medical
improvement was reached on January 2, 2008. Although section 8106(c) serves as a bar to
compensation for the period after the termination of compensation for refusal of suitable work, if
a claimant reached maximum medical improvement prior to the refusal of suitable employment,
he or she would be entitled to payment of any portion of a schedule award due prior to the
termination of monetary compensation benefits.22 The period covered by the schedule award
commences on the date that the employee reaches maximum medical improvement from the
residuals of the accepted employment injury.23 The Office properly determined that appellant
was entitled to a schedule award beginning on January 2, 2008, the date maximum medical
improvement was reached. By its February 18, 2009 schedule award decision, however, the
Office found that appellant’s entitlement to a schedule award compensation ceased on
18

Mark A. Holloway, 55 ECAB 321 (2004).

19

In a January 2, 2008 report, Dr. Boone advised that under Table 16-10 of the A.M.A., Guides, appellant had a
25 percent sensory weakness involving the C5 nerve of the left upper extremity. He then referenced Table 16-13 to
find a maximum sensory deficit for C5 weakness of 5 percent which, when multiplied by 25 percent, yielded a 1
percent left upper extremity impairment due to C5 sensory loss. Dr. Boone advised that under Table 16-11,
appellant had a 50 percent motor weakness involving the C5 nerve of the left upper extremity and properly
referenced Table 16-13 to find a maximum motor deficit for C5 weakness of 30 percent which, when multiplied by
50 percent, yielded a 15 percent left upper extremity impairment due to C5 motor loss. A.M.A., Guides, supra note
4 at 482, 484, 489. Dr. Boone then identified the median nerve, finding that under Table 16-10, appellant had a
bilateral 25 percent sensory weakness involving the median nerve. He properly referenced Table 16-15 to find a
maximum sensory deficit of the median nerve of 39 percent which, when multiplied by 25 percent, yielded a
10 percent upper extremity impairment due to median sensory loss. Dr. Boone then found that under Table 16-11,
appellant had a 25 percent bilateral motor weakness involving the median nerve of each upper extremity and
properly referenced Table 16-15 to find a maximum motor deficit for median nerve weakness of 10 percent which,
when multiplied by 25 percent, yielded a 3 percent upper extremity impairment due to median motor loss. Id. note 3
at 482, 484, 492. Dr. Boone concluded that appellant had a 13 percent right upper extremity impairment and, by
combining values, a 27 percent impairment of the left upper extremity. Id. at 604. In his February 19, 2008 report,
the Office medical adviser concurred with Dr. Boone’s calculations and application of the A.M.A., Guides,
concluding that appellant had a 13 percent impairment of the right upper extremity and a 27 percent impairment on
the left.
20

Supra note 17.

21

Supra note 1.

22

D.S., supra note 17.

23

Supra note 18.

5

February 5, 2008 whereas the Office terminated her wage-loss compensation as of
February 7, 2008. Appellant would therefore be entitled to an additional schedule award for this
two-day period.
CONCLUSION
The Board finds that appellant is entitled to a schedule award for bilateral upper
extremity impairments for the period January 2 to February 7, 2008.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 18, 2009 is affirmed as modified.
Issued: November 5, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.W., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Marion, IL, Employer
__________________________________________

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

Docket No. 12-1411
Issued: November 27, 2012

Case Submitted on the Record

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

JURISDICTION
On June 18, 2012 appellant, through his attorney, filed a timely appeal of a May 7, 2012
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 schedule award issue.
ISSUE
The issue is whether appellant sustained more than six percent permanent impairment of
the right arm, for which he received a schedule award.
FACTUAL HISTORY
On April 9, 2010 appellant, then a 39-year-old electronic equipment repairman, sustained
right shoulder pain when he removed a tool bin from a shelf. OWCP accepted his traumatic
injury claim for unspecified right shoulder bursa and tendon disorder and right supraspinatus
1

5 U.S.C. § 8101 et seq.

sprain, right ulnar nerve lesion and right tenosynovitis. Appellant underwent right shoulder
arthroscopy on June 16, 2010 and right elbow arthroscopy, posterior interosseous nerve release,
and ulnar nerve decompression on September 10, 2010. Both procedures were authorized by
OWCP.
Appellant filed a claim for a schedule award on August 3, 2011 and submitted
November 1 and 5, 2010 progress notes from a physical therapist.2 In an October 5, 2011 letter,
OWCP advised him that additional evidence was needed to establish his claim. It afforded 30
days to submit an impairment rating from a qualified physician that utilized the American
Medical Association, Guides to the Evaluation of Permanent Impairment (hereinafter A.M.A.,
Guides).3
In an October 27, 2011 report, Dr. Richard C. Lehman, a Board-certified orthopedic
surgeon, related that appellant experienced right fourth and fifth digit radicular pain following
multiple surgeries, but otherwise exhibited functional elbow and shoulder range of motion
(ROM). Applying Table 15-5 (Shoulder Regional Grid) on pages 401-05 of the A.M.A., Guides,
he assigned impairment ratings of two percent for right shoulder sprain, two percent for right
shoulder tendinitis and two percent for rotator cuff injury, respectively. Dr. Lehman combined
these values and concluded that appellant had six percent permanent impairment of the right
upper extremity. He identified May 19, 2011, the date of appellant’s most recent examination, as
the date of maximum medical improvement.4
Dr. Michele D. Koo, a Board-certified plastic surgeon, commented in a November 7,
2011 report that appellant showed positive results from the September 10, 2010 surgery. During
a January 10, 2011 physical examination, she observed full hand, wrist, forearm, and elbow
ROM without pain or discomfort, excellent grip strength and a negative Tinel’s sign.5 Dr. Koo,
without citation, assigned an impairment rating of two percent: one percent for right elbow ulnar
nerve submuscular transposition and one percent for dorsal forearm surgery and scarring.
On March 26, 2012 Dr. David H. Garelick, an OWCP medical adviser and Boardcertified orthopedic surgeon, reviewed Dr. Lehman and Dr. Koo’s reports. He concluded that
Dr. Lehman’s impairment rating of six percent was reasonable in view of the A.M.A., Guides, as
Dr. Koo’s opinion was not corroborated by her objective findings.
By decision dated May 7, 2012, OWCP granted a schedule award for six percent
permanent impairment of the right upper extremity for the period May 20 to September 28, 2011.

2

Appellant did not initially furnish the employing establishment portion of the Form CA-7, which was later filed
on August 22, 2011.
3

American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed. 2008).

4

The case record also contains Dr. Lehman’s May 19, 2011 report.

5

The case record also contains Dr. Koo’s January 10, 2011 report.

2

LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss of or loss of use of scheduled members or functions of the body.6 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 to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7
The A.M.A., Guides provides a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health (ICF).
For upper extremity impairments, the evaluator identifies the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on Functional History
(GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS). The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).8 Evaluators are directed to
provide reasons for their impairment rating choices, including the choices of diagnoses from
regional grids and calculations of modifier scores.9
ANALYSIS
OWCP accepted that appellant sustained unspecified right shoulder bursa and tendon
disorder, right supraspinatus sprain, right ulnar nerve lesion and right tenosynovitis while in the
performance of duty and authorized multiple right upper extremity surgeries on June 16 and
September 10, 2010. After appellant filed a claim for a schedule award on August 3, 2011,
OWCP received an October 27, 2011 impairment rating report from Dr. Lehman. Based on
Table 15-5 of the A.M.A., Guides, Dr. Lehman calculated a rating of six percent for appellant’s
right shoulder conditions. Dr. Garelick concurred with this rating on March 26, 2012 and OWCP
granted a corresponding schedule award on May 7, 2012. Appellant appeals on the grounds that
he is entitled to a greater award.
The Board finds that the medical evidence does not establish that appellant sustained
more than six percent permanent impairment of the right upper extremity. In a November 7,
2011 report, Dr. Koo calculated an additional two percent permanent impairment of the right
upper extremity on account of right elbow ulnar nerve submuscular transposition and dorsal
forearm surgery; however, she did not cite the A.M.A., Guides at any point. According to
OWCP procedures, an attending physician’s impairment rating report must include a detailed
description of the impairment and a rationalized opinion as to the percentage of permanent
6

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

7

K.H., Docket No. 09-341 (issued December 30, 2011). For decisions issued after May 1, 2009, the sixth edition
will be applied. B.M., Docket No. 09-2231 (issued May 14, 2010).
8

R.Z., Docket No. 10-1915 (issued May 19, 2011).

9

J.W., Docket No. 11-289 (issued September 12, 2011).

3

impairment under the A.M.A., Guides.10 When the attending physician fails to provide a rating
that conforms to the A.M.A., Guides, his or her opinion is of diminished probative value in
establishing the degree of permanent impairment.11 Because Dr. Koo failed to utilize the
A.M.A., Guides, her report was of limited probative value regarding the extent of appellant’s
right upper extremity impairment.12
Appellant also provided November 1 and 5, 2010 progress notes from a physical
therapist. To support a claim for a schedule award, an employee must submit an impairment
rating from a qualified physician that is in accordance with the A.M.A., Guides.13 A physical
therapist, however, is not a physician as defined by FECA and is not competent to rate
impairment of a scheduled member or otherwise render a medical opinion.14 The progress notes
lack evidentiary weight.15 In the absence of other impairment rating reports that conform to the
A.M.A., Guides and demonstrate greater impairment, the Board finds that appellant did not
sustain more than six percent permanent impairment of the right upper extremity.
Counsel argues on appeal that the May 7, 2012 decision is contrary to fact and law. The
Board has addressed the deficiencies of the medical evidence.
Appellant submitted new evidence after issuance of the May 7, 2012 decision. The
Board, however, lacks jurisdiction to review evidence for the first time on appeal.16 Appellant
may request an 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 sustain more than six percent permanent
impairment of the right upper extremity.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6(a)-(c) (January 2010).
11

Linda Beale, 57 ECAB 429, 434 (2006). See also James Kennedy, Jr., 40 ECAB 620, 627 (1989).

12

The Board further adds, in agreement with Dr. Garelick, that Dr. Koo’s own findings seemingly undermined
her opinion in support of partial impairment. See Robert P. Bourgeois, 45 ECAB 745 (1994); Kenneth J. Deerman,
34 ECAB 641 (1983) (medical evidence must necessarily convince the adjudicator that the conclusion drawn is
rational, sound and logical).
13

James Robinson, Jr., 53 ECAB 417 (2002).

14

See id. See also 5 U.S.C. § 8101(2).

15

E.O., Docket No. 12-517 (issued July 6, 2012).

16

20 C.F.R. § 501.2(c).

4

ORDER
IT IS HEREBY ORDERED THAT the May 7, 2012 decision of the Office of Workers’
Compensation Programs be affirmed.
Issued: November 27, 2012
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
MALCOLM RANDALL VETERANS
ADMINISTRATION MEDICAL CENTER,
Gainesville, FL, Employer
__________________________________________

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

Docket No. 15-0706
Issued: May 9, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 12, 2015 appellant filed a timely appeal from a January 15, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met her burden of proof to establish an emotional
condition in the performance of duty causally related to factors of her federal employment.
1
2

5 U.S.C. § 8101 et seq.

Appellant timely requested oral argument before the Board. 20 C.F.R. § 501.5(b). By order dated August 14,
2015, the Board denied the request, finding that the arguments on appeal could adequately be addressed based on the
case record. Order Denying Request for Oral Argument, Docket No. 15-0706 (issued August 14, 2015). The
Board’s Rules of Procedure provide that any appeal in which a request for oral argument is not granted by the Board
will proceed to a decision based on the case record and any pleadings submitted. 20 C.F.R. § 501.5(b).

On appeal appellant asserts that her claim should be accepted because she worked in a
hostile environment and has been diagnosed with post-traumatic stress disorder (PTSD).
FACTUAL HISTORY
On December 9, 2013 appellant, then a 57-year-old nurse, filed an occupational disease
claim (Form CA-2) alleging that she had been subjected to verbal abuse and threatening behavior
by her supervisor, the union president, and a colleague over the past four months.3
In letters dated December 18, 2013, OWCP informed appellant of the evidence needed to
support her claim and asked the employing establishment to respond to appellant’s allegations.
In a lengthy response, appellant alleged that she was being mistreated by management,
including that her supervisor, a social worker, and a clinical coordinator of mental health
intensive care management (MHICM) criticized her time management skills, embarrassed her in
front of coworkers, gave her instructions on how to carry out her work without input, gave social
workers preferential treatment, and generally harassed and mistreated her. She also alleged that
another nurse had a critical spirit and was aggressive, rude, and disrespectful upon her arrival at
the employing establishment, had continually treated her in a harsh manner, and had given her no
support. Appellant asserted that other coworkers created a hostile environment by shunning her,
being “gossip-mongers,” and bullying her. She maintained that she was not given appropriate
policies or procedures, not given a chance to attend new employee orientation, and that she
disagreed with the assignment of work and work policies at the employing establishment.
Appellant described computer problems, alleging that when her printer broke, she was told to
contact information resources management (IRM) who told her she would have to get approval
for a new one, which was given. She also maintained that she was overwhelmed by working
with five clients, but on numerous times had requested more clients. Appellant provided a diary
dated November 7 to December 23, 2013. She related that on November 7, 2013 she visited the
union to try and set up a meeting with her supervisor and the “bully” nurse, but the union officer
was rude to her when the meeting was scheduled for November 8, 2013. Appellant cancelled the
meeting because she was so upset. She then notified her supervisor that she was taking time off.
Appellant related that she was hospitalized for PTSD from November 18 to 24, 2013 and
described problems thereafter dealing with Family and Medical Leave Act (FMLA) requests, her
FECA claim, getting paid properly, and scheduling meetings.
Appellant attached e-mail correspondence from October 30 to November 26, 2013
regarding leave problems and filing of her FECA claim. In treatment reports dated August 7 to
November 13, 2013, Dr. Lalita Ramnaraine, a resident physician in psychiatry, reported a history
of appellant being hospitalized in February 2013 for depression with suicidal ideation following
problems at work. She diagnosed major depressive disorder, PTSD, personality disorder, and
psychosocial stress. On November 13, 2013 Dr. Ramnaraine reported that appellant was being
bullied at work and had problems with the union which caused depression and suicidal thoughts.
She completed an FMLA certification indicating that appellant was unable to work due to

3

The record indicates that appellant had two prior claims: an accepted May 27, 2011 traumatic injury
adjudicated by OWCP under file number xxxxxx468, and a denied emotional condition claim, adjudicated by
OWCP under file number xxxxxx619. These other claims are not presently before the Board.

2

worsening PTSD. On December 16, 2013 Dr. Ramnaraine reported that appellant could return to
full-duty work with no restrictions on January 6, 2014.4
In a February 13, 2014 statement, appellant’s supervisor related that appellant began
work at the employing establishment in July 2013. Appellant had 12 weeks of training, had
difficulties with the MHICM team, went on FMLA leave on November 8, 2013, and returned to
work on January 6, 2014. Her supervisor stated that appellant had reported prior problems with
bullying at the previous location as well as things going on in her personal life which caused
emotional distress. She advised that after appellant returned in January 2014, her caseload was 5
veterans, whereas the usual caseload was 12 to 15 veterans. Her supervisor maintained that she
treated appellant with respect and courtesy and had not observed any staff behaving in an
abusive manner. She noted that she first heard that appellant felt she was being abused and
working in a hostile environment when she was contacted by the union on November 7, 2013,
and that a meeting was scheduled on November 8, 2013, but the meeting was cancelled by
appellant. Her supervisor attached a response to each of appellant’s allegations. She described
the MHICM team, opining that it needed to work together. The supervisor noted that appellant
was provided a copy of her functional statement twice, and this was also available online. When
appellant was hired, she was placed on a waiting list for new employee training, and when it
became available, she was on FMLA leave, but that she had attended it since returning to work
in January. The supervisor noted that when appellant reported a computer problem, she
informed appellant that the proper procedure was to contact IRM and put in a work order. She
indicated that she offered appellant another computer and assisted her in getting paperwork for a
new computer. The supervisor advised that appellant did not like to be questioned by others on
the team regarding her treatment suggestions and reported that she, as clinical coordinator, had
the responsibility for daily assignments. She further related that appellant had difficulty with
attending a required yoga group and in attending rounds and continued to question policies
regarding injections, transportation, and pharmacy. Her supervisor reported that she had never
observed any inappropriate behavior by the nurse identified by appellant or other team members,
and concluded by stating that she did not agree with appellant’s allegations.
In a June 12, 2014 decision OWCP reviewed each of appellant’s allegations and denied
her claim, finding that as she had not established a compensable factor of employment, she did
not develop an emotional condition in the performance of duty.
Appellant timely requested a hearing that was held before an OWCP hearing
representative on October 29, 2014. She testified at the hearing that she transferred from another
employing establishment location in Gainesville on July 13, 2013. Appellant indicated that she
left Orlando following a settlement and after three weeks in the new location, she began having
problems with her supervisor and a nurse and with her union’s representative. She stated it all
came to a head on November 7, 2013 when she had a confrontation with the representative about
union representation and had to call VA police. Appellant stated that later she was in the field
and received a call from her supervisor who was furious because she had gone to the union
complaining of a hostile work environment. She testified that she then had to be hospitalized
4

The record also contains medical reports predating her employment with the employing establishment including
emergency room records from October 15, 2012 and January 27, 2013, and an April 9, 2013 report in which
Dr. Eneida Gomez, a Board-certified psychiatrist, advised that she began treating appellant on February 11, 2013
and diagnosed major depressive disorder, PTSD, personality disorder, and psychosocial stress.

3

and, following this, her supervisor yelled out at work that appellant was mentally ill.5 Appellant
asserted that she did not timely receive new employee orientation and reported ongoing
problems, maintaining that she was targeted by a nurse and the supervisor, and that things were
so hostile that she made two medication errors. She further indicated that the physician chief of
mental health had promised to help her, but failed to do so. Appellant stated that she had filed an
Equal Employment Opportunity Commission (EEOC) complaint listing 153 charges against the
VA and was now working full duty.6
By decision dated January 15, 2015, an OWCP hearing representative found no
compensable factors of employment and affirmed the June 12, 2014 decision.
LEGAL PRECEDENT
To establish her claim that she sustained an emotional condition in the performance of
duty, appellant must submit the following: (1) medical evidence establishing that she has an
emotional or stress-related 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 stress-related condition.7 If a claimant does implicate a factor of employment,
OWCP should then determine whether the evidence of record substantiates that factor.8 When
the matter asserted is a compensable factor of employment and the evidence of record establishes
the truth of the matter asserted, OWCP must base its decision on an analysis of the medical
evidence.9
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. In the case of Lillian Cutler,10 the Board
explained that there are distinctions as to the type of employment situations giving rise to a
compensable emotional condition arising under FECA. There are situations where an injury or
illness has some connection with the employment, but nevertheless does not come within
coverage under FECA.11 When an employee experiences emotional stress in carrying out his or
her employment duties, and the medical evidence establishes that the disability resulted from an
emotional reaction to such situation, the disability is generally regarded as due to an injury
arising out of and in the course of employment. This is true when the employee’s disability
5

Appellant also discussed problems with her involuntary hospitalization at a private hospital, not relevant to the
issue in this case.
6

Subsequent to the hearing appellant submitted copious records including evidence previously of record and/or
not relevant to this case. This included copies of e-mails, court documentation regarding her involuntary
November 2013 hospitalization, VA police reports and FLRA claims regarding other employees, and medical
reports.
7

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

8

Dennis J. Balogh, 52 ECAB 232 (2001).

9

Id.

10

28 ECAB 125 (1976).

11

See Robert W. Johns, 51 ECAB 137 (1999).

4

results from his or her emotional reaction to a special assignment or other requirement imposed
by the employing establishment or by the nature of the work.12 Allegations alone by a claimant
are insufficient to establish a factual basis for an emotional condition claim.13 Where the
claimant alleges compensable factors of employment, he or she must substantiate such
allegations with probative and reliable evidence.14 Personal perceptions alone are insufficient to
establish an employment-related emotional condition.15
Administrative and personnel matters, although generally related to the employee’s
employment, are administrative functions of the employing establishment rather than the regular
or specially assigned work duties of the employee and are not covered under FECA.16 Where the
evidence demonstrates that the employing establishment either erred or acted abusively in
discharging its administrative or personnel responsibilities, such action will be considered a
compensable employment factor.17
For harassment or discrimination to give rise to a compensable disability, there must be
evidence introduced which establishes that the acts alleged or implicated by the employee did, in
fact, occur. Unsubstantiated allegations of harassment or discrimination are not determinative of
whether such harassment or discrimination occurred. A claimant must establish a factual basis
for his or her allegations that the harassment occurred with probative and reliable evidence.18
With regard to emotional claims arising under FECA, the term “harassment” as applied by the
Board is not the equivalent of “harassment” as defined or implemented by other agencies, such
as the EEOC, which is charged with statutory authority to investigate and evaluate such matters
in the workplace. Rather, in evaluating claims for workers’ compensation under FECA, the term
“harassment” is synonymous, as generally defined, with a persistent disturbance, torment or
persecution, i.e., mistreatment by coemployees or coworkers. Mere perceptions and feelings of
harassment will not support an award of compensation.19
ANALYSIS
The Board finds that appellant has failed to establish an employment-related emotional
condition in the performance of duty because she did not establish a compensable factor of
employment.
Appellant has alleged as a factor of employment that she was generally “overwhelmed.”
The Board has held that overwork, when substantiated by sufficient factual information to
12

Supra note 10.

13

J.F., 59 ECAB 331 (2008).

14

M.D., 59 ECAB 211 (2007).

15

Roger Williams, 52 ECAB 468 (2001).

16

Charles D. Edwards, 55 ECAB 258 (2004).

17

Kim Nguyen, 53 ECAB 127 (2001).

18

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

19

Beverly R. Jones, 55 ECAB 411 (2004).

5

corroborate the claimant’s account of events, may be a compensable factor of employment.20 In
this case, however, the information provided by appellant is contradictory. On one hand, she
stated that she was overwhelmed, yet she also stated that she had asked to work with additional
veterans. Her supervisor indicated that appellant handled five veterans when the usual number
for a team member was 12 to 15. As with all allegations, overwork must be established on a
factual basis to be a compensable employment factor.21 Appellant has not submitted any
evidence corroborating this allegation nor has she otherwise attributed her condition to specific
regular or specially assigned work duties under Cutler.22 Therefore, she has not established a
compensable factor of employment in this regard.
Appellant has also alleged that because she was not given appropriate policies or
procedures, she disagreed with her work assignments, she was not given a chance to attend new
employee orientation, and she had computer problems, her PTSD was aggravated and resulted in
her November 2013 hospitalization. As a general rule, a claimant’s reaction to administrative or
personnel matters falls outside the scope of FECA.23 The Board has long held that disputes
regarding leave,24 the inability to obtain a transfer,25 the assignment of work,26 the provision of
training and equipment,27 and the handling of a workers’ compensation claim,28 are
administrative functions of the employing establishment and, absent error or abuse, are not
compensable.29 Absent evidence establishing error or abuse, a claimant’s disagreement or
dislike of such a managerial action is not a compensable factor of employment.30
Appellant’s supervisor refuted appellant’s allegation. She advised that appellant had 12
weeks of training, had been given her functional statement twice and noting that it was also
available online, and that, when appellant was hired, there was a waiting list for new employee
training. She stated that when appellant returned to work in January 2014 after her FMLA leave,
she attended the new employee training. Although appellant complained that her printer broke,
she provided appellant the proper procedure and a new printer was approved. Moreover, her
supervisor indicated that appellant had another computer/printer available for her use. There is
therefore no evidence of error or abuse in these administrative matters. Likewise, appellant
provided no evidence of error or abuse with regard to any perceived problem with pay.
20

Bobbie D. Daly, 53 ECAB 691 (2002).

21

Sherry L. McFall, 51 ECAB 436 (2000).

22

Supra note 10.

23

Carolyn S. Philpott, 51 ECAB 175 (1999).

24

Jose L. Gonzalez-Garced, 46 ECAB 559 (1995).

25

Alberta Kinloch-Wright, 48 ECAB 459 (1997).

26

Robert W. Johns, 51 ECAB 137 (1999).

27

Brian H. Derrick, 51 ECAB 417 (2000).

28

Bettina M. Graf, 47 ECAB 687 (1996).

29

Supra note 16.

30

Donney T. Drennon-Gala, 56 ECAB 469 (2005).

6

As to appellant’s assertions that her supervisor inappropriately yelled out in the presence
of others that appellant was mentally ill, other than appellant’s allegation, there is no
corroborating evidence that this statement was in fact made. She also provided no corroboration
that a supervisor called her in the field and was furious with her because she had gone to the
union. Because appellant did not establish that these statements were in fact made, they do not
constitute compensable factors of employment.31
Appellant also alleged that her supervisor treated her disrespectfully. Generally,
complaints about the manner in which a supervisor performs his or her duties or the manner in
which a supervisor exercises his or her discretion fall, as a rule, outside the scope of coverage
provided by FECA. This principle recognizes that a supervisor or manager in general must be
allowed to perform his or her duties and employees will, at times, dislike the actions taken. Mere
disagreement or dislike of a supervisory or managerial action will not be compensable, absent
evidence of error or abuse.32 Here again, the record contains no evidence that her supervisor or
any employing establishment supervisor or manager treated appellant in a disrespectful manner,
there is no evidence of error or abuse in discharging management duties, and this allegation is
not compensable.33
Regarding appellant’s general contention that she was subjected to harassment at work,
particularly by her supervisor and a nurse, the Board has held that mere perceptions of
harassment or discrimination are not compensable under FECA,34 and unsubstantiated
allegations of harassment or discrimination are not determinative of whether such harassment or
discrimination occurred. A claimant must establish a factual basis for his or her allegations with
probative and reliable evidence.35 Although appellant indicated that she had filed an EEOC
complaint, the record does not contain any documentation in support of such a complaint. She
submitted nothing to show a persistent disturbance, torment or persecution, i.e., mistreatment by
employing establishment management.36 Appellant therefore did not establish a factual basis for
her claim of harassment by probative and reliable evidence.37
With regard to appellant’s problems and allegations regarding a union representative and
the union itself, the Board has adhered to the principle that union activities are personal in nature
and are not considered to be within the course of employment.38 While there is a recognized
exception to the general rule, in that employees performing representational functions which
entitle them to official time are in the performance of duty, this did not occur in this case as
31

Ernest J. Malagrida, 51 ECAB 287 (2000).

32

Id.

33

See David C. Lindsey, Jr., 56 ECAB 263 (2005).

34

Supra note 18.

35

Id.

36

Supra note 19.

37

See Robert Breeden, 57 ECAB 622 (2006).

38

Jimmy E. Norred, 36 ECAB 726 (1985).

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appellant was at union offices to seek representation on November 7, 2013 when she had a
confrontation with the union representative.39
As appellant failed to establish a compensable employment factor, the Board need not
address the medical evidence of record.40
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not establish an emotional condition in the
performance of duty causally related to factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the January 15, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 9, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

39

Compare Shelly D. Duncan, 54 ECAB 367 (2003).

40

Katherine A. Berg, 54 ECAB 262 (2002).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.W., Appellant
and
SOCIAL SECURITY ADMINISTRATION,
OFFICE OF DISABILITY ADJUDICATION &
REVIEW, Falls Church, VA, Employer
__________________________________________

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

Docket No. 14-1508
Issued: November 5, 2014

Case Submitted on the Record

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

JURISDICTION
On June 23, 2014 appellant filed a timely appeal from a May 30, 2014 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant sustained a ratable impairment of his left upper extremity
due to his accepted left shoulder injury.
FACTUAL HISTORY
On February 19, 2013 appellant, then a 65-year-old administrative law judge, filed a
traumatic injury claim (Form CA-1) alleging that on February 14, 2013 he dislocated his left
1

5 U.S.C. § 8101 et seq.

shoulder after slipping and falling towards an elevator door at an employee entrance. By
decision dated May 2, 2013, OWCP accepted his claim for a left shoulder dislocation.
In a February 19, 2013 diagnostic report, Dr. Steven Kuchta, a Board-certified
radiologist, examined the results of a magnetic resonance imaging (MRI) scan test of appellant’s
left shoulder. He noted an old Hill-Sachs lesion involving the posterior-superior aspect of the
humeral neck and humeral head, with a heterogenous edema or reactive changes in the adjacent
bone marrow; a large ill-defined Bankart lesion with irregular tears of the anterior and inferior
glenoid labrum and glenohumeral joint capsule with the adjacent soft tissues extending medially;
effusions of the glenohumeral joint and subacromial-subdeltoid bursa; supraspinatus and
infraspinatus tendinosis with irregular partial thickness articular surface tears and probable small
full thickness components in the distal supraspinatus tendon; a subscapularis tendinosis and
partial thickness longitudinal intrasubstance tear; and degenerative osteoarthritis affecting the
acromioclavicular joint.
In a note dated June 20, 2013, Dr. Joshua S. Dines, a Board-certified orthopedic surgeon,
stated that appellant had significant partial thickness tears of the supraspinatus, infraspinatus and
possibly the subscapularis. He stated that these injuries were consistent with a 15 percent loss of
use. Dr. Dines further noted that appellant had a mild defect in the posterior extension consistent
with a 10 percent loss of use, as well as a mild defect in internal and external rotation consistent
with an additional 10 percent loss of use. He totaled these percentages and stated that appellant
had a 35 percent loss of use of the right shoulder.
On July 30, 2013 appellant requested a schedule award.
By letter dated August 22, 2013, OWCP requested that appellant’s physician respond to
inquiries regarding the date of maximum medical improvement, restrictions of movement,
objective findings, subjective complaints, and an impairment rating rendered according to the
sixth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).
Appellant resubmitted Dr. Dines’ June 20, 2013 note regarding the permanent
impairment of his left shoulder along with a permanent impairment worksheet dated
August 29, 2013. Dr. Dines calculated that based on appellant’s reduced range of motion and
defects in posterior, internal and external rotation, he had a class 2 grade C upper extremity
impairment of 20 percent of the right shoulder. Based on his rotator cuff tear, he calculated that
appellant had a class 2 grade A upper extremity impairment of 15 percent of the right shoulder.
Totaling these figures, Dr. Dines arrived at a final impairment rating of 35 percent of the right
shoulder.
In a record of a telephone conversation dated September 17, 2013, a claims examiner
noted that she left a voice message for appellant informing him that Dr. Dines’ report contained
an error, in that he referred to appellant’s right shoulder instead of his left shoulder. She noted
that appellant had until September 23, 2013 to submit a corrected report.

2

Appellant submitted a corrected report from Dr. Dines referencing his left shoulder on
September 18, 2013. The report was dated June 20, 2013 and was otherwise identical to
Dr. Dines’ earlier report.
On November 22, 2013 OWCP referred the case, together with a statement of accepted
facts, to Dr. Henry J. Magliato, a Board-certified orthopedic surgeon and medical adviser, who
was asked to review the medical evidence and provide a calculation of appellant’s permanent
percentage of loss of use of the left upper extremity along with a date of maximum medical
improvement, in accordance with the sixth edition of the A.M.A., Guides.
In a December 2, 2013 report, Dr. Magliato stated that Dr. Dines’ August 29, 2013
impairment rating was obviously incorrect, as he performed both the range of motion method of
calculation permanent impairment and the diagnosis-related method, then combined those ratings
to arrive at a final impairment rating of 35 percent. He recommended a second opinion
evaluation or the submission of a new report from Dr. Dines in conformance with the sixth
edition of the A.M.A., Guides.
In a supplementary report dated January 17, 2014, Dr. Dines examined appellant and
calculated his scheduled loss of use. On examination of the left shoulder, he noted abduction of
105 to 110 degrees with passive motion to approximately 115 degrees. Anterior flexion and
elevation was 120 to 125 degrees actively and passively. Internal rotation was complete, while
external rotation was approximately 60 degrees with a positive apprehension test. Dr. Dines
noted that he could sublux the shoulder but not dislocate the joint. Abduction and external
rotation were weak against resistance. Dr. Dines referenced several tables and pages from the
A.M.A., Guides, but did not show his calculations. He stated that appellant had reached
maximum medical improvement as of the time of his report and that he had lost approximately
35 percent of the range of motion from a functional point of view. Dr. Dines stated that his
calculations were self-explanatory and based on the sixth edition of the A.M.A., Guides.
On January 31, 2014 OWCP referred Dr. Dines’ supplementary report to Dr. Magliato for
issuance of an updated report.
In a February 7, 2014 report, Dr. Magliato stated that Dr. Dines’ supplementary report
was of no value. He noted that Dr. Dines referenced many pages and tables from the sixth
edition of the A.M.A., Guides, but that he had chosen no particular method and had given no
actual calculations. Dr. Magliato stated that Dr. Dines’ best reference was to Table 15-34 on
page 475, but that he did not understand the notation of a “30 percent section” in reference to this
table. He explained that, since this table related to the range of motion method, each shoulder
motion must be listed separately and the impairment corresponding to each lost motion listed
next to it, and each of the individual impairments added and modified by a functional grade
modifier to arrive at final percentage impairment. Dr. Magliato concluded that a second opinion
examination with a physician familiar with the sixth edition of the A.M.A., Guides was
necessary.
On March 6, 2014 OWCP referred the case to Dr. Leon Sultan, a Board-certified
orthopedic surgeon, for a second opinion examination to determine whether appellant sustained

3

any permanent impairment as a result of his accepted injury and the extent of any permanent
impairment in accordance with the A.M.A., Guides.
In a March 20, 2014 report, Dr. Sultan accurately described the February 14, 2013
employment injury and reviewed appellant’s medical history. On examination of the left
shoulder, he noted abduction and forward elevation of 175 degrees; complete internal rotation
and external rotation of 40 degrees; adduction of 45 degrees and posterior extension of 40
degrees. Dr. Sultan noted a negative shoulder impingement test, Hawkin’s test and drop arm
test. He reviewed appellant’s MRI scan of February 19, 2014, which confirmed reduction of his
left shoulder dislocation. Dr. Sultan stated that appellant’s date of maximum medical
improvement was three months from appellant’s date of injury. He calculated appellant’s
percentage of impairment using the Shoulder Regional Grid on page 201 of the sixth edition of
the A.M.A., Guides. After noting a functional history grade modifier of 1 and physical
examination and clinical studies modifiers of zero and applying the net adjustment formula,
Dr. Sultan calculated that appellant had a zero percent impairment of the upper left shoulder.
OWCP referred Dr. Sultan’s March 20, 2014 report to Dr. Andrew A. Merola, a Boardcertified orthopedic surgeon and medical adviser, for review on April 9, 2014.
In an April 24, 2014 report, Dr. Merola reviewed Dr. Sultan’s report and stated that the
date of maximum medical improvement was April 7, 2014, which was the date of Dr. Sultan’s
examination. He noted that there was a class 1 left total shoulder dislocation, referencing
Table 15-5. Appellant’s functional history modifier was 1 whereas his physical examination and
clinical study modifiers were zero. Dr. Merola concluded that this was a grade A impairment
whereby the left shoulder dislocation’s percentage of permanent impairment was zero percent.
By decision dated May 30, 2014, OWCP denied appellant’s claim for a schedule award,
finding that the medical evidence failed to establish that he had sustained a ratable permanent
impairment to his left upper extremity as a result of his accepted work-related injury.
LEGAL PRECEDENT
The schedule award provision of FECA2 and its implementing federal regulations3 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member,
function or organ shall be determined. To ensure consistent results and equal justice for all
claimants under the law, good administrative practice requires the use of uniform standards
applicable to all claimants.4 The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.5 For decisions issued after
2

Id. at § 8107.

3

20 C.F.R. § 10.404.

4

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

5

Id.

4

May 1, 2009, the sixth edition is used to calculate schedule awards.6 It is well established that in
determining the amount of a schedule award for a member of the body that sustained an
employment-related permanent impairment, preexisting impairments of the body are to be
included.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).9 The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).10
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides with the medical adviser
providing rationale for the percentage of impairment specified.11
ANALYSIS
OWCP accepted appellant’s claim for a left shoulder dislocation. On July 30, 2013
appellant requested a schedule award.
Following clearly erroneous reports of impairment submitted by appellant from his
treating physician, OWCP referred him for a second opinion evaluation with Dr. Sultan, who
provided a March 20, 2014 report. In accordance with Table 15-5, shoulder regional grid,
Dr. Sultan rated appellant’s impairment as class 1C. He applied the modifiers for functional
history, physical examination, and clinical studies found in Table 15-7, Table 15-8 and Table 159, respectively. Appellant’s functional history modifier was one, denoting a mild problem with
pain or symptoms on strenuous activity and the ability to perform self-care independently. His
physical examination indicated a grade modifier of zero based on a normal range of motion.
Clinical studies indicated a grade modifier of zero based on an MRI scan confirming reduction of

6

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

7

See Dale B. Larson, 41 ECAB 481, 490 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.3.a.3 (January 2010). This portion of OWCP’s procedure provides that the impairment
rating of a given scheduled member should include any preexisting permanent impairment of the same member or
function.
8

A.M.A., Guides (6th ed. 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
9

Id. at 383-419.

10

Id. at 411.

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).

5

the left shoulder dislocation. Using the net adjustment formula and applying the grade modifiers,
Dr. Sultan calculated a final impairment rating of zero percent.
Dr. Sultan properly explained his calculations under the sixth edition of the A.M.A.,
Guides. Dr. Merola, OWCP’s medical adviser, reviewed Dr. Sultan’s report and agreed with his
impairment rating. There is no other medical evidence of record in accordance with the sixth
edition of the A.M.A., Guides supporting a higher impairment rating. In particular, Dr. Dines’
January 17, 2014 report did not contain any actual calculations of an impairment rating, but
instead merely referenced various sections of the A.M.A., Guides and stated that his calculations
were self-explanatory. As Dr. Dines’ report is the only contemporaneous impairment rating of
record other than that of the second opinion physician and medical adviser, and as his rating of
35 percent does not comport with the sixth edition of the A.M.A., Guides, the Board finds that
the weight of the medical evidence establishes that appellant had a zero percent left shoulder
impairment.
On appeal, appellant contends that Dr. Dines’ report should be given greater weight, and
that he sustained a permanent impairment such that it impacted his ability to swim. For the
reasons stated above, the weight of the medical evidence rests with Drs. Sultan and Merola.
The Board notes that appellant submitted evidence after the issuance of the May 30, 2014
decision. The Board lacks jurisdiction to review evidence for the first time on appeal.12
Appellant may request a schedule award or an increased schedule award based on
evidence of a new exposure or medical evidence showing a progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established that he has a ratable impairment of his
left arm.

12

20 C.F.R. § 501.2(c).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 30, 2014 is affirmed.
Issued: November 5, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board

__________________________________________
D.S., Appellant
and
DEPARTMENT OF THE ARMY, ARMY
MATERIAL COMMAND, Texarkana, TX,
Employer
__________________________________________

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

Docket No. 15-1244
Issued: August 24, 2015

Case Submitted on the Record

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

JURISDICTION
On May 12, 2015 appellant filed a timely appeal from a merit decision dated March 27,
2015 of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish that she has
reached maximum medical improvement (MMI).
FACTUAL HISTORY
Appellant, a 57-year-old materials expediter, filed a Form CA-2 claim on November 21,
2013 alleging that she developed left foot and left ankle conditions causally related to
1

5 U.S.C. § 8101 et seq.

employment factors. OWCP accepted the claim for hallux rigidus of the left great toe and
osteoarthritis of the left ankle and left foot.
Appellant had previously undergone left foot surgery on December 8, 2011, a
cheilectomy procedure on the first metatarsophalangeal joint of the left foot to ameliorate the
conditions of hallux rigidus of the left foot and arthritic first metatarsophalangeal joint of the left
foot. These conditions did not respond to conservative therapy. Appellant was experiencing
both bone and joint pain and her symptoms had progressed to the point where each step was
painful.
In a March 31, 2014 report, Dr. Arthur Sharp, Board-certified in orthopedic surgery,
found that appellant had five percent permanent impairment of the left lower extremity pursuant
to the American Medical Association, Guides to the Evaluation of Permanent Impairment (sixth
edition) (the A.M.A., Guides). He advised that she had left great toe metatarsalgia with a history
of hallux rigidness, status post cheilectomy. Dr. Sharp asserted that appellant continued to
experience pain and gait abnormality with pain on weight-bearing at the great toe and range of
motion. He advised that she was considering a follow-up appointment with a foot surgeon
regarding the possibility of undergoing a metatarsophalangeal joint fusion procedure for her left
foot. Dr. Sharp opined that in light of this appellant was not at MMI. However, in the event she
declined any further surgery, appellant would have reached MMI as of March 31, 2014.
Dr. Sharp stated that, pursuant to Table 16-2 at page 507, Table 16.2 of the A.M.A., Guides, The
Foot and Ankle Regional Grid for Lower Extremity Impairments, appellant had a class 1
impairment for arthritis of the first metatarsal phalangeal joint, a mild problem, which yielded an
adjusted net impairment of five percent for the left lower extremity.
On April 28, 2014 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of her left lower extremity.
In a May 19, 2014 report, an OWCP district medical adviser (DMA) found that, if
appellant declined surgery, she would be at MMI and was entitled to an award for five percent
left lower extremity impairment, as rated by Dr. Sharp. He indicated, however, that if she
proceeded with further surgical treatment she was not at MMI and her percentage of permanent
impairment should be determined at a later date.
In a January 21, 2015 letter, OWCP advised appellant of the evidence needed to establish
her claim, including her physician’s opinion that she had attained MMI and an evaluation of any
permanent impairment utilizing the sixth edition of the A.M.A., Guides. It advised her that the
medical evidence of record; including its medical adviser’s May 19, 2014 report, indicated that
her condition had not yet reached MMI, and therefore it was unable to process her claim for
schedule award at that time. OWCP informed appellant that she needed to submit supporting
medical evidence from her treating physician, in the form of a detailed medical report providing
rationale for this opinion, indicating that she had reached MMI, along with a request to reopen
her claim for schedule award. It informed her that she had 30 days to submit this evidence.
By decision dated March 27, 2015, OWCP denied appellant’s schedule award claim,
finding that she did not submit sufficient medical evidence to establish that diagnosed condition
had reached MMI.

2

LEGAL PRECEDENT
FECA authorizes the payment of schedule awards for the loss or loss of use of specified
members, organs, or functions of the body.2 Such loss or loss of use is known as permanent
impairment. OWCP evaluates the degree of permanent impairment according to the standards
set forth in the specified edition of the A.M.A., Guides.3
Permanent impairment may only be rated according to the A.M.A., Guides, and only after
MMI has been achieved. Impairment should not be considered permanent until a reasonable
time has passed for the healing or recovery to occur. This will depend on the nature of
underlying pathology, as the optimal duration for recovery may vary considerably from days to
months. The clinical findings must indicate that the medical condition is static and well
stabilized for the person to have reached MMI.4
A preliminary element for considering a schedule award is establishing that the claimant
has attained MMI.5 The A.M.A., Guides explain that impairment should not be considered
permanent until the clinical findings indicate that the medical condition is static and well
stabilized. The A.M.A., Guides note that an individual’s condition is dynamic. MMI refers to a
date from which further recovery or deterioration is not anticipated, although over time there
may be some expected change. Once impairment has reached MMI, a permanent impairment
rating may be performed.6
The period covered by a schedule award commences on the date that the employee
reaches MMI from the residuals of the injury. The question of when MMI has been reached is a
factual one that depends upon the medical findings in the record. The determination of such date
is to be made in each case upon the basis of the medical evidence in that case.7 The date of MMI
is usually considered to be the date of the medical examination that determined the extent of the
impairment.8

2

Id. at § 8107.

3

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, OWCP should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards & Permanent Disability Claims, Chapter 2.808.6.a (January 2010).
4

A.M.A., Guides 24 (6th ed. 2009); see Orlando Vivens, 42 ECAB 303 (1991) (a schedule award is not payable
until MMI -- meaning that the physical condition of the injured member of the body has stabilized and will not
improve further -- has been reached).
5

J.D., Docket No. 12-481 (issued November 17, 2012).

6

A.M.A., Guides 20, Table 201 (6th ed. 2009); Orlando Vivens, supra note 4.

7

Marie J. Born, 27 ECAB 623 (1976).

8

E.g., Richard Larry Enders, 48 ECAB 184 at n.12 (1996) (date of the audiologic examination).

3

ANALYSIS
OWCP accepted appellant’s claim for hallux rigidus of the left great toe and osteoarthritis
of the left ankle and left foot. Appellant claimed a schedule award on April 28, 2014. OWCP
advised her in a January 21, 2015 letter of the necessity of submitting a medical opinion
establishing that the claimed condition had reached MMI. By decision dated March 27, 2015,
OWCP denied appellant’s schedule award claim because the medical evidence indicated that
MMI had not been reached.
In support of her schedule award claim, appellant submitted the March 27, 2014 report
from Dr. Sharp, her treating physician, who opined that she had a five percent permanent
impairment of the left lower extremity pursuant to the A.M.A., Guides. Dr. Sharp advised that
she continued to experience pain and gait abnormality with pain on weight-bearing at the great
toe and range of motion.
He stated that appellant was considering undergoing
metatarsophalangeal joint fusion surgery to ameliorate her accepted left foot condition and that
therefore she was not at MMI.
Appellant bears the burden of proof to establish her entitlement to a schedule award.
Dr. Sharp, the treating physician, provided the only report in the record containing an
impairment rating and evaluation. He opined that appellant was not at MMI.9 The DMA in his
May 19, 2014 report concurred with Dr. Sharp that, if appellant proceeded with surgery, she
would be at MMI following the surgery, however if she declined surgery her degree of
permanent impairment would have to be evaluated.
As the element of MMI is a requirement for granting a schedule award, the Board finds
that appellant has not met her burden of proof. The Board will affirm OWCP’s March 27, 2015
decision.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she has
reached MMI.

9

The Board notes that a description of appellant’s impairment must be obtained from appellant’s physician,
which must be in sufficient detail so that the claims examiner and others reviewing the file will be able to clearly
visualize the impairment with its resulting restrictions and limitations. See Peter C. Belkind, 56 ECAB 580,
585 (2005).

4

ORDER
IT IS HEREBY ORDERED THAT the March 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 24, 2015
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF THE AIR FORCE,
AIR FORCE NATIONAL GUARD,
Fort Dix, NJ, Employer
__________________________________________

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

Docket No. 14-2065
Issued: February 11, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 29, 2014 appellant filed a timely appeal from the September 5, 2014 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of this case.2

1
2

5 U.S.C. § 8101 et seq.

Appellant argues that he did send in the necessary paperwork, but he was not able to do so in a timely manner
because the doctor’s office did not give him the information when he needed it. The Board is not able to consider on
this appeal any of the medical evidence received by OWCP after the September 5, 2014 decision. 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).

ISSUE
The issue is whether the July 8, 2014 work incident caused or aggravated a specific
medical condition.
FACTUAL HISTORY
On July 10, 2014 appellant, a 29-year-old aircraft fuel systems mechanic, filed a
traumatic injury claim alleging an injury in the performance of duty on July 8, 2014 when he
slipped on residual fuel and twisted his left knee.
Appellant saw an advanced practical nurse on July 24, 2014. He reported his history and
symptoms. On examination, moderate pain with motion was noted in the left knee. Appellant
was diagnosed with “knee injury.” He was given medication and referred to an orthopedic
surgeon for evaluation and treatment. Dr. Paul Lanza, an osteopath Board-certified in family
medicine, countersigned the report on August 6, 2014.
An imaging study two days later showed a low-grade partial tear of the medial patellar
tendon at the patellar attachment measuring four millimeters in width.
In a decision dated September 5, 2014, OWCP denied appellant’s traumatic injury claim
finding that the evidence was sufficient to establish the incident of July 8, 2014 as described;
however, it found the medical evidence provided no physician’s reasoned opinion on how the
incident caused or aggravated a diagnosed medical condition.
Appellant argues that he sent in the necessary paperwork but not in a timely manner. He
explains that he was unable to obtain the information he needed from his physician.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.3 An employee seeking benefits under FECA
has the burden of proof to establish the essential elements of his or her claim. When an
employee claims that he or she sustained an injury in the performance of duty, he or she must
submit sufficient evidence to establish that he or she experienced a specific event, incident or
exposure occurring at the time, place, and in the manner alleged. He or she must also establish
that such event, incident or exposure caused an injury.4
Causal relationship is a medical issue,5 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the claimant,6 must be
3

5 U.S.C. § 8102(a).

4

John J. Carlone, 41 ECAB 354 (1989).

5

Mary J. Briggs, 37 ECAB 578 (1986).

6

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

2

one of reasonable medical certainty,7 and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the established incident or factor
of employment.8
ANALYSIS
OWCP accepted that the July 8, 2014 work incident occurred as alleged. The question
that remains is whether this incident caused or aggravated a diagnosed medical condition.
The July 24, 2014 report countersigned by Dr. Paul Lanza assessed a “knee injury.” It
did not identify a specific medical condition.
The imaging study obtained two days later identified a low-grade partial tear of the
medial patellar tendon. This evidence does not establish that the July 8, 2014 work incident
caused the tear. Causal relationship requires a physician to discuss in some detail what happened
at work and to explain, from a medical point of view, how the incident caused or aggravated the
diagnosed medical condition.
Appellant did not submit a physician’s rationalized opinion on the issue of causal
relationship. Accordingly, the Board finds that he has not met his burden of proof to establish an
injury in the performance of duty. The Board will affirm OWCP’s September 5, 2014 decision
to deny his traumatic injury claim.
Appellant may submit additional evidence, with a written request for reconsideration, to
OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that the medical evidence is insufficient to establish that the July 8, 2014
work incident caused or aggravated a specific medical condition.

7

Morris Scanlon, 11 ECAB 384, 385 (1960).

8

See William E. Enright, 31 ECAB 426, 430 (1980).

3

ORDER
IT IS HEREBY ORDERED THAT the September 5, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 11, 2015
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4