United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.N., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Southeastern, PA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 14-937
Issued: October 20, 2014

Case Submitted on the Record

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

JURISDICTION
On March 18, 2014 appellant, through his attorney, filed a timely appeal from merit
decisions of the Office of Workers’ Compensation Programs (OWCP) dated November 29, 2013
and January 8, 2014. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant has more than a 6 percent right arm and 10 percent
left arm permanent impairment; and (2) whether OWCP properly determined the date of
maximum medical improvement.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant has two compensation claims that have been administratively combined. On
February 13, 2006 he, then a 57-year-old clerk, filed an occupational disease claim for
compensation (Form CA-2) alleging that he sustained a left shoulder injury as a result of his
duties of federal employment. Appellant identified repetitive activity such as picking up
magazines and parcels and sweeping mail. On February 14, 2006 he underwent left shoulder
arthroscopic surgery by Dr. Samuel Puleo, a Board-certified orthopedic surgeon. OWCP
accepted this claim on June 9, 2006 for left shoulder calcific tendinitis with rotator cuff
impingement.
On July 23, 2007 appellant filed a Form CA-2 alleging that he sustained carpal tunnel
syndrome as a result of repetitive activity in his federal employment. He again identified
repetitive work activity as a clerk. On January 18, 2008 OWCP accepted bilateral carpal tunnel
syndrome. Appellant underwent a left carpal tunnel release on April 24, 2008 and a right carpal
tunnel release on June 4, 2008, performed by Dr. Puleo.
OWCP referred appellant to Dr. Noubar Didizian, a Board-certified orthopedic surgeon,
for a second opinion evaluation. In a report dated April 3, 2009, Dr. Didizian provided a history
and results on examination. He diagnosed status post bilateral carpal tunnel release with residual
weakness and stiffness of the digits.
On April 21, 2009 appellant submitted a report dated February 24, 2009 from Dr. David
Weiss, an osteopath, providing a history and results on examination. Dr. Weiss diagnosed:
cumulative and repetitive trauma disorder; left shoulder impingement syndrome; left shoulder
calcific tendinosis; a partial thickness rotator cuff tear to the left shoulder; status post
arthroscopic surgery to the left shoulder; left wrist and forearm chronic flexor tendinitis; bilateral
carpal tunnel syndrome; and status post left and right open carpal tunnel syndrome release. He
provided an opinion as to permanent impairment under the fifth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment.
OWCP referred appellant to Dr. Didizian, requesting an opinion with respect to a
permanent impairment under the A.M.A., Guides. In a report dated August 31, 2009,
Dr. Didizian provided results on examination. He opined that appellant had a 24 percent left arm
impairment, based on the regional shoulder grid, loss of range of motion, and sensory and motor
findings. Dr. Didizian also opined that appellant had a 10 percent right arm impairment for
carpal tunnel syndrome. He stated that the date of maximum medical improvement (MMI) was
90 days after the June 4, 2008 carpal tunnel surgery.
On October 13, 2009 appellant submitted a second report from Dr. Weiss dated
February 24, 2009. Dr. Weiss opined that, under the sixth edition of the A.M.A., Guides,
appellant had a 12 percent left arm impairment. He found that appellant had a 5 percent
impairment for partial rotator cuff tear under Table 15-5, and 8 percent for left median nerve
entrapment neuropathy under Table 15-23. For the right arm, Dr. Weiss opined that appellant
had a seven percent impairment based on entrapment neuropathy.

2

In a report dated October 20, 2009, an OWCP medical adviser, Dr. Arnold Berman,
opined that appellant had a six percent impairment to the left arm based on loss of shoulder range
of motion. He stated that carpal tunnel was not indicated as an accepted condition, but if it was
included, then there would be a two percent impairment. In a brief report dated November 9,
2009, Dr. Berman opined that appellant had a two percent right arm and eight percent left arm
impairment. He found the date of MMI was April 3, 2009.
By decision dated November 18, 2009, OWCP issued a schedule award for a two percent
impairment to each arm. The period of the award was 12.48 weeks from April 3, 2009.
In a letter dated November 24, 2009, appellant requested a hearing before an OWCP
hearing representative. By decision dated February 22, 2010, the hearing representative
remanded the case to OWCP. The hearing representative found that the case records should be
combined, a statement of accepted facts prepared and the case referred to an OWCP medical
adviser for an opinion as to the percentage of permanent impairment under the A.M.A., Guides.
OWCP prepared a statement of accepted facts and referred the case for a second opinion
examination by Dr. Robert Smith, a Board-certified orthopedic surgeon. In a report dated
April 15, 2010, Dr. Smith provided a history and results on examination. He opined that
appellant had a six percent left arm impairment under Table 15-23 of the A.M.A., Guides for
carpal tunnel syndrome. Dr. Smith also found a two percent left arm impairment based on
application of the shoulder regional grid. As to the right arm, he opined that appellant had a six
percent impairment for carpal tunnel syndrome. Dr. Smith indicated the date of MMI for the left
wrist was April 24, 2009 and for the right wrist June 4, 2009, as this was one year after surgery.
In a report dated June 6, 2010, Dr. Berman indicated that he agreed with Dr. Smith as to
the percentages of impairment. He stated that the date of MMI was April 15, 2010.
By decision dated June 23, 2010, OWCP issued a schedule award for an additional six
percent for the left arm and four percent for the right arm. The period of the award was 31.20
weeks from April 15, 2010.
Appellant requested a hearing before an OWCP hearing representative. By decision
dated September 15, 2010, the hearing representative set aside the June 23, 2010 OWCP
decision. The hearing representative found that the medical adviser had not properly considered
the report of Dr. Weiss, who had provided a rationalized opinion with regard to permanent
impairment.
In a report dated October 31, 2010, Dr. Berman stated that the rating by Dr. Weiss could
not be considered as he provided an opinion under the fifth edition of the A.M.A., Guides.
By decision dated January 6, 2011, OWCP found that appellant was not entitled to an
additional schedule award. Appellant again requested a hearing by letter dated January 11, 2011.
In a decision dated March 14, 2011, an OWCP hearing representative set aside the
January 6, 2011 decision. She noted that Dr. Weiss had submitted a report with an opinion under
the sixth edition of the A.M.A., Guides, and the medical adviser should be asked to provide a
thorough discussion regarding the ratings of Dr. Smith and Dr. Weiss.
3

By report dated March 22, 2011, Dr. Berman stated that Dr. Didizian’s report did not
confirm loss of sensation reported by Dr. Weiss. According to Dr. Berman, Dr. Weiss also
stated that the distal clavicle resection was carried out as part of the operative procedure, when
only a subacromial decompression was done.
In a decision dated June 2, 2011, OWCP found that appellant was not entitled to an
additional schedule award. Appellant again requested a hearing by letter dated June 7, 2011. A
hearing was held on September 21, 2011.
By decision dated December 19, 2011, the hearing representative remanded the case for
further development. She noted that Dr. Weiss did not base an opinion as to permanent
impairment on a distal clavicle resection. The case was again remanded for review by an OWCP
medical adviser.
In a report dated February 27, 2012, Dr. Berman acknowledged that Dr. Weiss used a
diagnosis of partial rotator cuff tear, and while Dr. Weiss’ use of grade modifiers was
questionable, Dr. Berman recommended acceptance of five percent left arm impairment under
the shoulder regional grid table. According to Dr. Berman, there were discrepancies between
Dr. Weiss and Dr. Didizian. In applying Table 15-23 for entrapment neuropathy, Dr. Berman
stated grade modifier three for history was acceptable, but grade modifier one was proper for
physical findings because Dr. Didizian found no sensory or motor loss. He opined that appellant
had a 10 percent left arm impairment and a 6 percent right arm impairment.
By decision dated March 5, 2012, OWCP issued a schedule award for an additional two
percent to the left arm. The period of the award was 6.24 weeks from June 30, 2009.
In a letter dated March 8, 2012, appellant requested a hearing before an OWCP hearing
representative. A hearing was held on June 13, 2012.
By decision dated August 21, 2012, the hearing representative set aside the March 8,
2012 decision and remanded for yet further development. She indicated that it was unclear why
Dr. Berman referred to the findings of Dr. Didizian, without discussing the more recent second
opinion report from Dr. Smith. The hearing representative remanded the case to ask Dr. Berman
to consider the reports of Dr. Smith and Dr. Weiss.
In a report dated October 22, 2012, Dr. Berman stated that Dr. Weiss was not a Boardcertified orthopedic surgeon, and his opinion was not as credible as Dr. Smith’s.
By decision dated May 1, 2013, OWCP found that appellant was not entitled to an
additional schedule award. Appellant requested a hearing by letter dated May 6, 2013. On
September 3, 2013 appellant indicated that the request was for a review of the written record.
In a decision dated November 29, 2013, the hearing representative found appellant was
not entitled to an additional schedule award. She noted that the schedule award decisions had
each contained a different date of MMI, and the case was remanded for an opinion from an
OWCP medical adviser on the issue.

4

By report dated December 4, 2013, Dr. Berman noted that the last examination was
April 15, 2010, and “it would not be appropriate to reach a conclusion utilizing these older
examinations.” He recommended an additional second opinion examination. Dr. Berman also
stated his recommendations as to the degree of impairment remained unchanged.
In a decision dated January 8, 2014, OWCP stated that Dr. Berman had found no change
in his opinion. The decision did not make specific findings with respect to date of MMI.
LEGAL PRECEDENT -- ISSUES 1 & 2
5 U.S.C. § 8107 provides that, if there is permanent disability involving the loss or loss of
use of a member or function of the body, the claimant is entitled to a schedule award for the
permanent impairment of the scheduled member or function.2 Neither FECA nor the regulations
specify the manner in which the percentage of impairment for a schedule award shall be
determined. For consistent results and to ensure equal justice for all claimants, OWCP has
adopted the A.M.A., Guides as the uniform standard applicable to all claimants.3 For schedule
awards after May 1, 2009, the impairment is evaluated under the sixth edition.4
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 which 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.5
ANALYSIS -- ISSUES 1 & 2
As the above history indicates, the development of the case has involved repeated
referrals to an OWCP medical adviser, Dr. Berman. This development did not properly resolve
the medical issue. Dr. Weiss, the attending physician, provided an opinion as to the degree of
permanent impairment to the upper extremities under the sixth edition of the A.M.A., Guides.
He applied Table 15-5, the shoulder regional grid, and Table 15-23, for entrapment neuropathy.6
Dr. Weiss opined that appellant had a 12 percent left arm impairment and a 7 percent right arm

2

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).
3

A. George Lampo, 45 ECAB 441 (1994).

4

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

5

L.H., 58 ECAB 561 (2007).

6

A.M.A., Guides 401-05, Table 15-5, and 449, Table 15-23.

5

impairment, and explained how the tables were applied.7 As noted by a hearing representative in
the September 15, 2010 decision, Dr. Weiss provided a rationalized medical opinion on the issue.
On the other hand, the second opinion physician, Dr. Smith, provided an opinion that
conflicted with Dr. Weiss. He found that appellant had an eight percent left arm and six percent
right arm permanent impairment under the A.M.A., Guides. Dr. Smith explained how he
determined the impairment and applied relevant tables. It is well established that, when there is a
disagreement between the physician making the examination for the United States and the
physician of the employee, a third physician shall be appointed to make an examination to
resolve the conflict.8 The case will accordingly be remanded to OWCP for selection of a referee
physician9 and proper resolution of the conflict in accord with established procedures. The
referee physician should provide a reasoned medical opinion with respect to an employmentrelated permanent impairment under the A.M.A., Guides.
The referee physician should also provide an opinion with respect to the proper date of
maximum medical improvement. As noted by the hearing representative in the November 29,
2013 decision, the record contains several different dates with respect to MMI. The hearing
representative remanded the case on this issue but the January 8, 2014 decision did not make any
specific findings on the issue. After such development as is warranted to resolve the issues
presented, OWCP should issue an appropriate decision.
CONCLUSION
The Board finds that there is a conflict in the medical evidence and the case is remanded
to OWCP for resolution of the conflict.

7

The Board has previously noted concern with medical reports of Dr. Weiss which provide ratings of impairment
under the sixth edition of the A.M.A., Guides without a contemporaneous medical evaluation -- frequently relying
upon stale and outdated physical findings previously utilized for an evaluation of impairment under the fifth edition.
While, Dr. Weiss herein provides a rating under the sixth edition based upon a prior evaluation, the prior evaluation
in this matter was not unduly stale. See Cf. K.S., Docket No. 12-43 (issued March 12, 2013); L.T., Docket No. 13997 (issued June 10, 2014); W.M., Docket No. 12-773 (issued March 29, 2013).
8

Robert W. Blaine, 42 ECAB 474 (1991); 5 U.S.C. § 8123(a). The Board notes that in the August 21, 2012
hearing representative decision, 5 U.S.C. § 8123(a) was cited, but no finding that a conflict existed was made.
9

See Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations, Chapter
3.500.4 (May 2013).

6

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated January 8, 2014 and November 29, 2013 are set aside and the
case remanded for further action consistent with this decision.
Issued: October 20, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Chicago, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-0345
Issued: April 21, 2016

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 December 16, 2015 appellant filed a timely appeal from a July 16, 2015 merit
decision and a November 18, 2015 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant met his burden of proof to establish arthritis of the
left shoulder due to factors of his federal employment; and (2) whether OWCP properly denied
his request for further merit review under 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101, et seq.

The Board notes that appellant submitted additional evidence following the November 18, 2015 nonmerit
decision. Since the Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final
decision, the Board may not consider this evidence for the first time on appeal. 20 C.F.R. § 501.2(c)(1); Dennis E.
Maddy, 47 ECAB 259 (1995); James C. Campbell, 5 ECAB 35, 36 n.2 (1952).

FACTUAL HISTORY
On April 16, 2015 appellant, then a 63-year-old tractor trailer driver, filed an
occupational disease claim (Form CA-2) alleging that he developed arthritis of the left shoulder
as a result of his federal employment duties. He first became aware of his condition on
February 16, 2015 and of its relationship to his employment on March 3, 2015.
By letter dated May 7, 2015, OWCP informed appellant that the evidence of record was
insufficient to support his claim. It provided a questionnaire for completion and advised him to
describe in detail the employment-related activities which he believed contributed to his
condition. Appellant was informed of the medical and factual evidence necessary and was
afforded 30 days to respond.
In support of his claim, appellant submitted medical and diagnostic reports dated March 3
through June 22, 2015. In an April 27, 2015 report, Dr. Anatoly Rozman, Board-certified in
physical medicine and rehabilitation, diagnosed left shoulder osteoarthritis and possible rotator
cuff tendinitis. She noted that given appellant’s work for over 18 years as a truck driver, it
appeared that he suffered from cumulative trauma disorder/occupational disease which could be
related to driving, pushing, and pulling heavy objects at work.
By decision dated July 16, 2015, OWCP denied appellant’s claim finding that the
evidence of record failed to establish that the occupational exposure occurred as alleged. It noted
that he had failed to explain what work duties caused or aggravated his condition and noted that
appellant had not responded to the questions provided in its May 7, 2015 development letter.
On August 13, 2015 appellant requested reconsideration of OWCP’s decision.
In support of his claim, appellant submitted an August 13, 2015 report from Dr. Estella
Hernandez, Board-certified in family medicine. Dr. Estella reported a history of a prior accepted
claim for left shoulder tendinitis and bursitis from December 2002. She argued that appellant’s
prior accepted conditions were aggravated resulting in osteoarthritis of the left shoulder due to
his repetitive employment duties over the years which included pulling, pushing, and throwing
mail.
By decision dated November 18, 2015, OWCP denied appellant’s request for
reconsideration finding that the evidence submitted was insufficient to warrant a merit review as
it did not address the outstanding issue of the factors of employment responsible for the
osteoarthritis.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an “employee of
the United States” within the meaning of FECA; that the claim was filed within the applicable
time limitation; that an injury was sustained while in the performance of duty as alleged; and that
any disability or specific condition for which compensation is claimed is causally related to the

2

employment injury.3 These are the essential elements of every compensation claim regardless of
whether the claim is predicated on a traumatic injury or an occupational disease.4
To determine whether an employee actually sustained an injury in the performance of
duty, OWCP begins with an analysis of whether fact of injury has been established. Generally,
fact of injury consists of two components which must be considered in conjunction with one
another. The first component to be established is that the employee actually experienced the
employment incident which is alleged to have occurred.5 The second component is whether the
employment incident caused a personal injury and generally can be established only by medical
evidence.
To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
To establish causal relationship between the condition, including any attendant disability
claimed, and the employment event or incident, the employee must submit rationalized medical
opinion evidence based on a complete factual and medical background, supporting such a causal
relationship.7 The opinion of the physician must be one of reasonable medical certainty and
must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant. This
medical opinion must include an accurate history of the employee’s employment injury and must
explain how the condition is related to the injury. The weight of medical evidence is determined
by its reliability, its probative value, its convincing quality, the care of analysis manifested, and
the medical rationale expressed in support of the physician’s opinion.8
ANALYSIS -- ISSUE 1
The Board finds that appellant failed to establish left shoulder osteoarthritis causally
related to factors of his federal employment as a tractor trailer driver.
Appellant has not provided sufficient detail to establish what factors of employment
caused or aggravated his left shoulder osteoarthritis.9 On his Form CA-2, he failed to provide
3

Gary J. Watling, 52 ECAB 278 (2001); Elaine Pendleton, 40 ECAB 1143, 1154 (1989).

4

Michael E. Smith, 50 ECAB 313 (1999).

5

Elaine Pendleton, supra note 3.

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

See 20 C.F.R. § 10.110(a); John M. Tornello, 35 ECAB 234 (1983).

8

James Mack, 43 ECAB 321 (1991).

9

Dennis M. Mascarenas, 49 ECAB 215, 218 (1997).

3

any discussion of his employment duties. By letter dated May 7, 2015, OWCP requested that
appellant provide the factual circumstances of his injury and provided him with a questionnaire
for completion. Appellant did not respond. The record contains no explanation provided by
appellant pertaining to the employment factors allegedly responsible for his injury. By failing to
describe his employment duties and circumstances surrounding his alleged injury, appellant has
not established that the occupational exposure occurred as alleged.10
Subsequent to OWCP’s May 7, 2015 development letter, appellant submitted an April 27,
2015 medical report from Dr. Rozman. The Board notes that, in her report, Dr. Rozman
described some of appellant’s employment duties. However, Dr. Rozman’s report lacks
sufficient explanation to determine to which specific employment duties appellant is attributing
his injury, how often he performed these tasks, and the frequency and duration of each task. The
factual and medical evidence of record fails to establish the factual element of appellant’s claim,
namely, that a claimed occupational exposure caused him medical injury or disease.11
The Board has held that the mere fact that a condition manifests itself during a period of
employment does not raise an inference of causal relation.12 An award of compensation may not
be based on surmise, conjecture, or speculation. Appellant did not submit an adequately detailed
description of his specific employment duties which he believed caused or aggravated his
condition and, as such, the Board finds that OWCP properly denied his claim.13
Appellant may submit additional evidence, together 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 and 10.607.
LEGAL PRECEDENT -- ISSUE 2
To require OWCP to reopen a case for merit review under FECA section 8128(a), OWCP
regulations provide that a request for reconsideration must set forth arguments and contain
evidence that either: (1) shows that OWCP erroneously applied or interpreted a specific point of
law; (2) advances a relevant legal argument not previously considered by OWCP; or
(3) constitutes relevant and pertinent new evidence not previously considered by OWCP.14
Section 10.608(b) of OWCP regulations provides that when an application for reconsideration
does not meet at least one of the three requirements enumerated under section 10.606(b)(3),
OWCP will deny the application for reconsideration without reopening the case for a review on
the merits.15
10

P.T., Docket No. 14-598 (issued August 5, 2014).

11

B.S., Docket No. 13-405 (issued July 18, 2013).

12

Daniel O. Vasquez, 57 ECAB 559 (2006).

13

Given that appellant did not establish employment factors, further consideration of the medical evidence is
unnecessary. See Bonnie A. Contreas, 57 ECAB 364, 368 n.10 (2006).
14

D.K., 59 ECAB 141 (2007).

15

K.H., 59 ECAB 495 (2008).

4

ANALYSIS -- ISSUE 2
The Board finds that OWCP properly refused to reopen appellant’s case for further
consideration of the merits of his claim, pursuant to 5 U.S.C. § 8128(a).
In his August 13, 2015 request for reconsideration, appellant failed to show that OWCP
erroneously applied or interpreted a specific point of law and he did not advance a relevant legal
argument not previously considered by OWCP. Appellant also failed to submit relevant and
pertinent new evidence.
The underlying issue on appeal involves fact of injury. Appellant’s reconsideration
request does not provide the requested detail pertaining to the factors of his employment. He
failed to submit a narrative statement detailing the federal employment duties alleged to have
caused his injury, or a response to OWCP’s May 7, 2015 questionnaire. Rather, appellant
submitted new evidence in the form of medical reports. While these documents have some
connection to his claim, they are not relevant to the issue for which OWCP denied appellant’s
claim, the failure to establish factors of his federal employment. Therefore, these documents do
not constitute a basis for reopening appellant’s claim.16
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish that his left
shoulder osteoarthritis was causally related to factors of his federal employment as a tractor
trailer driver. OWCP properly denied appellant’s request for reconsideration without a merit
review.

16

David J. McDonald, 50 ECAB 185 (1990).

5

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated November 18 and July 16, 2015 are affirmed.
Issued: April 21, 2016
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
U.S. POSTAL SERVICE, SUNSET STATION,
Pueblo, CO, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Timothy Quinn, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-82
Issued: July 15, 2014

Case Submitted on the Record

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

JURISDICTION
On October 15, 2013 appellant, through his attorney, filed a timely appeal from a
September 10, 2013 decision of the Office of Workers’ Compensation Programs (OWCP) that
denied modification of a wage-earning capacity determination. Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that an April 23, 2008
wage-earning capacity decision should be modified.
On appeal, appellant’s attorney asserted that the criteria for modifying the wage-earning
capacity determination were met because the decision was in error and appellant’s medical
condition worsened.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board. In a September 19, 2012 decision, the
Board set aside an October 7, 2010 OWCP decision that denied modification of the
April 23, 2008 wage-earning capacity determination. The Board noted that, OWCP analyzed the
case under the customary criteria for modifying a loss of wage-earning capacity determination,
but did not acknowledge FECA Bulletin No. 09-05 or fully follow the procedures outlined
therein for claims, such as this, in which limited-duty positions were withdrawn pursuant to the
National Reassessment Policy (NRP).2 The facts of the previous Board decision are incorporated
herein by reference.
On July 23, 2009 appellant filed a claim for compensation for the period July 10
to 13, 2009. He attached a brief July 13, 2009 report from his attending physician,
Dr. Michael E. Dallenbach, who practices occupational medicine, who advised that appellant
was unable to work for this period secondary to significant bilateral knee pain. In a duty status
report dated July 13, 2009, Dr. Dallenbach provided restrictions to appellant’s physical activity.
In reports dated August 10 and 26, 2009, he noted appellant’s report that his pain had increased
and it had become harder to continue working. Dr. Dallenbach provided physical examination
findings and reiterated his diagnosis, stating that appellant remained at maximum medical
improvement with no new impairment.
While the prior appeal was pending before the Board, Dr. Robert B. Goos, a Boardcertified psychiatrist with the Department of Veterans Affairs, submitted an August 18, 2008
mental health treatment note. He stated that appellant, a veteran, had been exposed to a
traumatic event in which he received a beating at gunpoint by a group of marines. Dr. Goos
diagnosed recurrent, moderate post-traumatic stress disorder and panic disorder.
On
November 2, 2010 Dr. Dallenbach noted appellant’s complaint of chronic right knee pain,
described findings and advised that appellant was restricted to sitting 100 percent of the time. In
a treatment note dated October 27, 2011, he indicated that he last saw appellant on
November 2, 2010 and described physical examination findings.
Dr. Dallenbach noted
appellant’s complaint of constant right knee pain and that he was now retired. He diagnosed
chronic right knee pain secondary to patellofemoral syndrome. On January 30, 2012
Dr. Dallenbach reiterated his findings and conclusions. Appellant also submitted an undated,
unsigned mental impairment questionnaire.
By letter dated October 2, 2012, OWCP asked the employing establishment to provide all
current medical evidence, copies of a job description and other documentation related to the
position appellant had been working at the time he was sent home under NRP, whether his job
duties had changed subsequent to the wage-earning capacity determination and to provide a
written statement addressing whether the position on which the wage-earning capacity was based
encompassed functions that were necessary to the operation of the employing establishment at
the time of the determination.
2

Docket No. 11-375 (issued September 19, 2012). On September 10, 2003 appellant, a letter carrier, was injured
when he tripped over a pallet jack. OWCP accepted right patellar sprain, left shin contusion, other joint
derangement of the right lower leg, other derangement of the right lateral meniscus and traumatic arthropathy of the
right lower leg.

2

In response, the employing establishment provided the December 14, 2007 permanent
modified job offer that appellant accepted on January 17, 2008. The offer stated:
“This position is tailored to meet your personal physical limitations. This job
does not qualify as a position which requires assignment through competitive
seniority bidding. All positions requiring assignment by seniority contain duties
with different job descriptions which are contrary to your physical condition.
Therefore, although you have and gain seniority, you cannot successfully bid on
other preferred assignments unless you can meet all requirements of the position,
including the physical requirements.”
The employing establishment also submitted a notification of personnel action that appellant was
reassigned effective February 2, 2008 and a July 8, 2010 work capacity evaluation in which
Dr. Dallenbach provided permanent restrictions to appellant’s physical activity.
In a February 28, 2013 decision, OWCP denied appellant’s claim for wage-loss
compensation beginning on July 24, 2010 finding that the evidence submitted was insufficient to
modify the July 6, 2009 wage-earning capacity determination. It reviewed the evidence in
accordance with FECA Bulletin No. 09-05 and found that the record established that he had not
been retrained or otherwise vocationally rehabilitated, that the position on which the wageearning capacity decision was not sheltered, odd-lot or a makeshift position and that there had
not been a material change in the nature or extent of the injury-related condition.
Counsel timely requested a hearing. He submitted a pleading asserting that appellant’s
accepted condition had worsened and that the job on which the wage-earning capacity decision
was based was makeshift and tailored to meet appellant’s specific needs. Counsel noted that
even though appellant was receiving wage-loss compensation under the left knee claim, he
wanted the record to show that appellant was also entitled to wage-loss compensation for his
right knee. At the July 10, 2013 the hearing, appellant testified that his job duties changed after
the April 23, 2008 wage-earning capacity determination. He had to case mail more and drive the
route less. Appellant also had to stand as it was impossible to sit on the round stool provided for
casing mail.
The evidence submitted at the hearing included an August 26, 2009 medical certification
for the Family and Medical Leave Act from Dr. Dallenbach, who diagnosed chronic bilateral
knee pain, right greater than left and advised that the condition was permanent. In
correspondence dated August 6, 2013, appellant indicated that a route he delivered in 2008
required some walking. He stated that it was impractical to sit on the stool provided to case mail.
By letter dated August 8, 2013, counsel maintained that the medical evidence established a
material worsening of the accepted condition and that the job offer on which the wage-earning
capacity determination was based was inadequate.
In a September 10, 2013 decision, an OWCP hearing representative affirmed the
February 28, 2013 decision. He found that the position on which the wage-earning capacity
determination was based was a bona fide job, that appellant had not been retrained or
vocationally rehabilitated and that the medical evidence did not establish that his condition had

3

materially worsened. The hearing representative noted that appellant was receiving wage-loss
compensation under his left knee claim.
LEGAL PRECEDENT
A wage-earning capacity decision is a determination that a specific amount of earnings,
either actual earnings or earnings from a selected position, represents a claimant’s ability to earn
wages. Compensation payments are based on the wage-earning capacity determination and it
remains undisturbed until properly modified.3 OWCP procedures at Chapter 2.1501 contain
provisions regarding the modification of a formal loss of wage-earning capacity.4 The relevant
part provides that a formal loss of wage-earning capacity will be modified when: (1) the original
rating was in error; (2) the claimant’s medical condition has materially changed; or (3) the
claimant has been vocationally rehabilitated.5 Chapter 2.1501 further provides that FECA
Bulletin No. 09-05 should be consulted if the circumstances in the case indicate that the position
in question may have been withdrawn (in whole or in part) as a result of NRP.6 FECA Bulletin
No. 09-05 outlines the procedures OWCP should follow when limited-duty positions are
withdrawn pursuant to NRP.
If OWCP has issued a formal wage-earning capacity
determination, it must develop the evidence to determine whether a modification of that
determination is appropriate.7 FECA Transmittal No. 13-09 provides information regarding
updating OWCP Procedure Manual Chapters 2.814 to 2.816 and 2.1500 to 2.1501.8 OWCP
procedures further provide that the party seeking modification of a formal loss of wage-earning
capacity decision has the burden to prove that one of these criteria has been met.9
OWCP’s procedures provide that factors to be considered in determining whether the
claimant’s work fairly and reasonably represents his or her wage-earning capacity include the
kind of appointment, that is, whether the position is temporary, seasonal or permanent and the
tour of duty, that is, whether it is part time or full time.10 Further, a makeshift or odd-lot position
designed for a claimant’s particular needs will not be considered suitable.11

3

Katherine T. Kreger, 55 ECAB 633 (2004).

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity, Chapter
2.1501 (June 2013).
5

Id. at § 2.1501.3(a).

6

Id. at § 2.1501.1.

7

FECA Bulletin No. 09-05 (issued August 18, 2009).

8

FECA Transmittal No. 13-09 (issued June 4, 2013).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Modification of Loss of Wage-Earning Capacity, Chapter
2.1501.4 (June 2013).
10

Id. at Chapter 2.815.5.c(1).

11

Id. at Chapter 2.815.5.c(2)(a).

4

ANALYSIS
The Board finds that the September 16, 2013 decision must be reversed. The modified
position on which the April 23, 2008 wage-earning capacity determination was based was
makeshift in nature. Appellant has established that modification of the wage-earning capacity
determination is warranted.
OWCP accepted that appellant sustained a right patellar sprain, left shin contusion, other
derangement of the right lower leg, other derangement of the right lateral meniscus and traumatic
arthropathy of the right lower leg. Surgery was performed on appellant’s right knee in
March 2004, April 2005 and August 2006. On December 14, 2007 the employing establishment
offered him a permanent modified position, which he accepted under protest. On April 23, 2008
OWCP issued a formal wage-earning capacity decision, finding that appellant’s modified
position fairly and reasonably represented his wage-earning capacity. Appellant continued
working modified duties until November 2009 when he was sent home under NRP.
When a loss of wage-earning capacity decision has been issued, as provided in
Chapter 2.1501 of the procedure manual, FECA Bulletin No. 09-05 is to be consulted if a
position has been withdrawn under NRP.12 FECA Bulletin No. 09-05 requires OWCP to develop
the evidence to determine whether a modification of the decision is appropriate.13 FECA
Bulletin No. 09-05 asks OWCP to confirm that the record contains documentary evidence
supporting that the position on which the wage-earning capacity determination was made was an
actual bona fide position. It further requires OWCP to review whether current medical evidence
supports work-related disability and establishes that the current need for limited duty and
medical treatment is a result of residuals of the employment injury and to further develop the
evidence from both appellant and the employing establishment if the record lacks current
medical evidence.14
FECA Bulletin No. 09-05 further states that OWCP, in an effort to proactively manage
these types of cases, may undertake further nonmedical development, such as requiring that the
employing establishment address in writing whether the position on which the wage-earning
capacity determination was based was a bona fide position at the time of the wage-earning
capacity decision and direct the employing establishment to review its files for contemporaneous
evidence concerning the position.
OWCP wrote the employing establishment on October 2, 2012 requesting that it provide
all current medical evidence, copies of a job description and other documentation related to the
position appellant had been working at the time he was sent home under NRP, whether his job
duties had changed subsequent to the wage-earning capacity determination and to provide a
written statement addressing whether the position on which the wage-earning capacity was based
encompassed functions that were necessary to the operation of the employing establishment at
12

Supra note 7.

13

Supra note 8.

14

Id.

5

the time of the determination. The record contains forwarded copies of the December 14, 2007
job offer, a February 2, 2008 notice of personnel action and a July 8, 2010 report from
Dr. Dallenbach.
A review of the December 14, 2007 job offer establishes that it was makeshift in nature.
The offer stated that the position was tailored to meet appellant’s personal physical limitations
and did not qualify as a position which required assignment through competitive seniority
bidding. It continued that, although appellant had seniority, he could not bid on other preferred
assignments unless he could meet all requirements of the position, including the physical
requirements. The Board finds the position was makeshift.
A basis for modifying a wage-earning capacity decision is to establish that the original
decision was in error.15 The Board finds under the facts of this case that the modified assignment
upon which the April 23, 2008 wage-earning capacity determination was made was makeshift in
nature. It was created to accommodate appellant’s restrictions and the duties outlined do not
constitute a bona fide job that would be available to him in the community at large. The
position, therefore, does not fairly and reasonable represent appellant’s wage-earning capacity
and the April 23, 2008 determination was erroneous. Accordingly, the September 10, 2013
decision will be reversed.16 As the position on which the April 23, 2008 decision was based was
makeshift in nature, appellant met his burden of proof to establish that the decision should be
modified.
Lastly, the Board also notes that the employing establishment did not provide current
medical evidence that it may have possessed and the medical evidence that is in the record
indicates that appellant continued to have residuals of the accepted right knee condition.
CONCLUSION
The Board finds that appellant has established that modification of the April 23, 2008
wage-earning capacity determination is warranted.

15

Supra note 9.

16

A.J., Docket No. 10-619 (issued June 29, 2010).

6

ORDER
IT IS HEREBY ORDERED THAT the September 10, 2013 decision of the Office of
Workers’ Compensation Programs is reversed.17
Issued: July 15, 2014
Washington, DC

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

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

17

Richard J. Daschbach participated in the preparation of the decision but was no longer a member of the Board
after May 16, 2014.

7


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

)
)
)
)
)
)
)
)

Appearances:
Anthony S. Arenas, for the appellant1
Office of Solicitor, for the Director

Docket No. 20-0066
Issued: July 2, 2020

Case Submitted on the Record

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

JURISDICTION
On October 8, 2019 appellant, through his representative, filed a timely appeal from an
August 7, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant filed a timely claim for compensation pursuant to 5 U.S.C.
§ 8122(a).
FACTUAL HISTORY
On March 18, 2019 appellant, then a 63-year-old retired rural carrier, completed an
occupational disease claim (Form CA-2) alleging that he sustained bilateral shoulder rotator cuff
tears and bilateral shoulder impingement due to factors of his federal employment. He indicated
that he first became aware of his condition and attributed it to factors of his federal employment
on April 12, 2016. The Form CA-2 bears an “employing establishment received” stamp dated
April 15, 2019. Appellant noted that he delayed filing his occupational disease claim because he
did not have a doctor willing to handle a workers’ compensation case. On the reverse side of the
claim form, the employing establishment noted that he separated from federal employment on
April 29, 2016 and first reported his condition to his supervisor on May 8, 2019.
In an accompanying narrative statement, appellant recounted that, his daily duties as a rural
carrier included routing/casing letters for approximately two to three hours. He noted that this
involved continuous standing, twisting, turning, and reading over the shoulder. Appellant also
reported that he was required to lift trays of unsorted mail weighing between 15 to 30 pounds. He
related that after routing letters, he routed, bundled, and loaded letters, magazines, and small
parcels. Appellant noted that these tasks required continuous reading over the shoulder, bending,
standing, stooping, twisting, reaching, and lifting. He indicated that he had to lift parcels and trays
weighing up to 70 pounds. Appellant also stated that he delivered mail approximately five to six
hours per day. He reported that this task involved walking, climbing, twisting, turning, bending,
reaching, lifting above the shoulder, and stooping. Appellant noted that he also had to unload mail
at the end of his shift which required lifting, twisting, stooping, bending, and turning.
In a November 26, 2018 report, Dr. Mark Seldes, a Board-certified family practitioner,
related appellant’s history of bilateral shoulder conditions. He noted appellant’s daily
requirements as a rural carrier and reviewed his medical record, including reports from different
doctors and diagnostic testing. Dr. Seldes diagnosed bilateral shoulder rotator cuff tears and
bilateral shoulder impingement. He opined that appellant’s shoulder conditions “came directly
from his work[-]related duties.”
In a May 8, 2019 letter, the employing establishment controverted appellant’s claim
asserting that appellant waited more than three years to file his claim and was no longer employed
with the employing establishment.
In a May 24, 2019 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish his claim, noting that it did not appear that his claim was timely
filed. It advised him of the type of factual and medical evidence needed and provided a
questionnaire for his completion. OWCP afforded appellant 30 days to submit the necessary
evidence.

2

In a June 11, 2019 letter, appellant’s representative responded to OWCP’s development
letter. He asserted that appellant mailed his Form CA-2 on March 23, 2019 and that the employing
establishment received it on “April 13, 2019,” not on May 8, 2019 as the employing establishment
alleged. Appellant’s representative attached partially legible certified mail receipts and documents
with his letter.
By decision dated August 7, 2019, OWCP denied appellant’s claim finding that he failed
to file a timely claim within the requisite three-year time limit under section 8122(a) of FECA. It
found that the date of last exposure was April 29, 2016 and that appellant did not file his
occupational disease claim until May 8, 2019, the date on the Form CA-2 that the employing
establishment indicated that appellant first reported his condition to his supervisor.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA,4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury.5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.6
The issue of whether a claim was timely filed is a preliminary jurisdictional issue that
precedes a determination on the merits of the claim.7 In cases of injury on or after September 7,
1974, section 8122(a) of FECA provides that an original claim for compensation, for disability or
death must be filed within three years after the injury or death.8
In a case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware, or reasonably should have been aware, of a possible relationship
between his or her condition and his or her employment. Such awareness is competent to start the
limitation period even though the employee does not know the precise nature of the impairment or
whether the ultimate result of such affect would be temporary or permanent.9 Where the employee
continues in the same employment after he or she reasonably should have been aware that he or
3

Supra note 2.

4

G.L., Docket No. 18-1057 (issued April 14, 2020); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

M.G., Docket No. 18-1616 (issued April 9, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
6
20 C.F.R. § 10.115; A.S., Docket No. 19-1955 (issued April 9, 2020); L.M., Docket No. 13-1402 (issued
February 7, 2014); Delores C. Ellyett, 41 ECAB 992 (1990).
7

F.F., Docket No. 19-1594 (issued March 12, 2020); Charles W. Bishop, 6 ECAB 571 (1954).

8

5 U.S.C. § 8122(a); A.M., Docket No. 19-1345 (issued January 28, 2020); W.L., 59 ECAB 362 (2008).

9

S.O., Docket No. 19-0917 (issued December 19, 2019); Larry E. Young, 52 ECAB 264 (2001).

3

she has a condition which has been adversely affected by factors of federal employment, the time
limitation begins to run on the date of the last exposure to the implicated factors.10 Section 8122(b)
of FECA provides that the time for filing in latent disability cases does not begin to run until the
claimant is aware or by the exercise of reasonable diligence should have been aware, of the causal
relationship between the employment and the compensable disability.11 It is the employee’s
burden to establish that a claim is timely filed.12
ANALYSIS
The Board finds that appellant filed a timely claim for compensation pursuant to 5 U.S.C.
§ 8122(a).
Where an employee continues in the same employment after he or she reasonably should
have been aware that he or she has a condition, which has been adversely affected by factors of
federal employment, the time limitation begins to run on the date of the last exposure to the
implicated factors.13 The date of last exposure in the present case is April 29, 2016, the date
appellant was separated from federal employment.
OWCP determined that appellant’s occupational disease claim was filed on May 8, 2019
as that was the date that appellant’s supervisor signed the employing establishment’s portion of
the Form CA-2. The date an occupational disease claim is filed is determined by the date of receipt
of a claim by OWCP or by the employing establishment, rather than the date the claim was
completed.14 This date may be established by the date of receipt of a Form CA-2 by the employing
establishment.15 Appellant’s Form CA-2 and his accompanying narrative statement were date
stamped as received by the employing establishment on April 15, 2019. The Board therefore finds
that appellant’s occupational disease claim was filed on April 15, 2019. As the date of last
exposure is April 29, 2016, the Board finds that appellant’s April 15, 2019 claim was timely filed
under the three-year requirement of 5 U.S.C. § 8122(a).16
As appellant has filed a timely claim for compensation, the case is remanded to OWCP to
address the merits of the claim. After such further development as is deemed necessary, it shall
issue a de novo decision.

10

Id.

11

5 U.S.C. § 8122(b).

12

D.D., Docket No. 19-0548 (issued December 16, 2019); Gerald A. Preston, 57 ECAB 270 (2005).

13

S.O., supra note 9.

14

Federal (FECA) Procedure Manual, Part 2 -- Claims, Time, Chapter 2.0801.4 (March 1993).

15

Id. at Chapter 2.0801.4(a)(2).

16

A.M., supra note 8.

4

CONCLUSION
The Board finds that appellant filed a timely claim for compensation pursuant to 5 U.S.C.
§ 8122(a).
ORDER
IT IS HEREBY ORDERED THAT the August 7, 2019 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: July 2, 2020
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.B., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY, Virginia Beach, VA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-1742
Issued: June 2, 2008

Case Submitted on the Record

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

JURISDICTION
On June 20, 2007 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs dated April 30, 2007, wherein an Office hearing representative affirmed a February 16,
2006 decision. In the February 16, 2006 decision, the Office terminated her compensation
benefits for refusing an offer of suitable work. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3(d)(2), the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly terminated appellant’s wage-loss compensation
effective February 16, 2006 under 5 U.S.C. § 8106(c) on the grounds that she refused an offer of
suitable work.
FACTUAL HISTORY
This is the third appeal in this case. The Board issued its first decision on February 19,
2004 in which it reversed an August 22, 2003 decision of the Office on the grounds that the

Office improperly terminated appellant’s compensation effective August 20, 2003 because she
neglected to work after suitable work was offered to her.1 The Board found that the Office failed
to notify appellant that she had 15 days in which to accept the offered work without penalty.
Furthermore, the Board found that the evidence of record was unclear as to whether the position
was open and available to appellant.2 In the second appeal, the Board reversed the April 5, 2005
decision of the Office on the grounds that the Office improperly terminated appellant’s
compensation effective April 5, 2005.3 The Board found that the Office failed to develop the
evidence regarding whether suitable employment was available in appellant’s commuting area of
Bowling Rock, NC. The facts and the circumstances of the case up to that point are set forth in
the Board’s prior decision and are incorporated herein by reference.
The relevant evidence includes an August 31, 2004 report by Dr. Maher Fahim Habashi,
a second opinion Board-certified orthopedic surgeon. On August 31, 2004 he reported the
history of appellant’s May 20, 2001 employment injury and her medical treatment since that
time. Dr. Habashi indicated that appellant did not have any range of motion deficits in her upper
extremities, but had limited range of motion in her cervical spine. Range of motion in the
cervical spine included 20 degrees extension, 20 degrees bending and 60 degrees rotation. He
reported that appellant had “pain on stress of rotator cuff right shoulder.” X-ray interpretations
revealed “marked narrowing at C4-5 and C5-6,” dorsal and lumbar spine degenerative changes,
lumbar scoliosis and left shoulder acromioclavicular arthritis. Dr. Habashi concluded that
appellant was capable of working with restrictions of no lifting more than 20 pounds and no
“excessive repeated bending, excessive reaching above shoulder level and heavy pushing and
pulling.” In a June 1, 2005 corrected report, he reiterated the findings of his August 31, 2004
report.
On November 30, 2005 the employing establishment offered appellant a position as a
modified sales store checker at Camp Lejeune Commissary.4 The employing establishment
noted that this position was consistent with previous job offers and with the restrictions noted by
Dr. Habashi and prior physicians and that the position was immediately available. The
restrictions included no lifting more than 20 pounds and no reaching above shoulder level,
excessive repeated bending and heavy pulling or pushing. The employing establishment noted
that there were “no Defense Commissary Agency commissaries in the commuting area of
Bowling Rock NC” and thus the employing establishment was unable to offer her a position
within her commuting area. Appellant was informed that relocation expenses would be
provided.
1

On May 23, 2001 appellant, then a 52-year-old cashier, sustained shoulder, arm, back and neck injuries on
May 20, 2001 while participating in a team exercise. The Office accepted the claim for thoracic strain, scalp/head
contusion and left shoulder/arm contusion. Subsequently, the Office authorized left shoulder arthroscopy with
subacromial decompression and bursectomy on May 14, 2002 and left shoulder arthroscopic surgery on
November 26, 2002. Appellant worked intermittently from the date of the injury until June 26, 2001 and was
subsequently placed on the automatic rolls for total disability.
2

Docket No. 03-2143 (issued February 19, 2004).

3

Docket No. 05-1254 (issued September 22, 2005).

4

The work schedule was for 32 hours per week initially.

2

On December 28, 2005 the Office advised appellant of its determination that the position
of modified sales store checker was suitable and gave her 30 days to accept the position or
provide a written explanation of her reasons for failing to accept it.
Appellant initially accepted the position on January 12, 2006 and requested the money for
relocating be sent to her. She also noted that she had relocated from Bowling Rock, NC to
Mountain City, TN.
In a letter dated January 19, 2006, the employing establishment informed the Office that
no Commissary positions were available within appellant’s new commuting area of Mountain
City, TN.
Appellant subsequently changed her mind and declined the position on January 23, 2006,
noting the position was impossible for her to perform, that she was awarded Social Security
disability benefits, she was afraid her agency would fire her after accepting the position and
relocating and that she had not been placed back on the periodic rolls for temporary total
disability.
By letter dated January 30, 2006, the Office advised appellant that her reason for refusing
to accept the modified sales store checker position was not valid and provided her with 15 days
to accept the position. The Office informed her of the information required to reinstate her to the
periodic rolls for temporary total disability.
In response to the Office’s letter, appellant contended that her employment injury caused
a thoracic and lumbar herniated disc and resubmitted evidence including a September 10, 2001
work status report and one page of a June 11, 2001 progress note by Dr. James W. Markworth, a
treating Board-certified orthopedic surgeon; an August 29, 2001 magnetic resonance imaging
(MRI) scan diagnosing a small T5-TG disc protrusion and a September 27, 2004 acceptance of
her disability claim by the Social Security Administration. She informed the Office that the
offered job was impossible for her to perform and she did not want to lose her social security
benefits and money. Appellant also refused the position as she had not been placed back on the
periodic rolls for temporary total disability and “[s]ocial [s]ecurity says I can[not] do the job with
herniated disc [t]horacic and lumbar.”
In a February 15, 2006 letter, the Office reviewed appellant’s reasons for refusing the
position and found that they were not acceptable.
By decision dated February 16, 2006, the Office terminated appellant’s compensation
effective that date on the grounds that she refused an offer of suitable work.
On February 22, 2006 appellant requested an oral hearing before an Office hearing
representative and a telephonic hearing was held on February 6, 2007.
Subsequent to the hearing appellant submitted additional evidence. On February 5, 2007
Dr. Glen R. Liesegang, a treating Board-certified orthopedic surgeon, diagnosed a ruptured
thoracic disc and cervical disc injury due to the 2001 employment injury. He noted that
appellant was referred for a functional capacity evaluation to get “a more accurate determination
of her incapacity.” In concluding, Dr. Liesegang stated that his training did not “permit a precise
3

determination of [appellant]’s present limitations to perform various jobs” and recommended
referral to a trained examiner/therapist to make this determination. In an attached work capacity
evaluation (Form OWCP-5c), he stated that appellant was capable of working part time with
restrictions. Dr. Liesegang noted that appellant was on pain and muscle spasm medication which
“may interfere with judgment, coordination.”
On April 30, 2007 the Office hearing representative affirmed the termination of
appellant’s compensation based on her refusal of an offer of suitable work.
LEGAL PRECEDENT
It is well settled that, once the Office accepts a claim, it has the burden of justifying
termination or modification of compensation benefits.5 As the Office in this case terminated
appellant’s compensation under 5 U.S.C. § 8106(c), the Office must establish that appellant
refused to work after suitable work was found for her. Section 8106(c) of the Federal
Employees’ Compensation Act6 provides that a partially disabled employee who refuses or
neglects to work after suitable work is offered to, procured by or secured for the employee is not
entitled to compensation.7 Section 10.517 of the applicable regulations8 provides that an
employee who refuses or neglects to work after suitable work has been offered or secured for the
employee has the burden of showing that such refusal or failure to work was reasonable or
justified and shall be provided with the opportunity to make such showing before a determination
is made with respect to termination of entitlement to compensation.9 To justify termination of
compensation, the Office must show that the work offered was suitable and must inform
appellant of the consequences of refusal to accept such employment.10
Section 10.516 of the implementing regulations11 provides in pertinent part:
“[The Office] shall advise the employee that it has found the offered work to be
suitable and afford the employee 30 days to accept the job or present any reasons
to counter [the Office’s] finding of suitability. If the employee presents such
reasons and [the Office] determines that, the reasons are unacceptable, it will
notify the employee of that determination and that he or she has 15 days in which
to accept the offered work without penalty. At that point in time, [the Office]’s
5

K.H., 58 ECAB ___ (Docket No. 06-832, issued November 30, 2006); Cary S. Brenner, 55 ECAB 739 (2004);
Mohamed Yunis, 42 ECAB 325, 334 (1991).
6

5 U.S.C. § 8106(c)(2).

7

See M.S., 58 ECAB ___ (Docket No. 06-797, issued January 31, 2007).

8

20 C.F.R. § 10.517.

9

See T.T., 58 ECAB ___ (Docket No. 06-1674, issued January 29, 2007).

10

Bryan O. Crane, 56 ECAB 713 (2005); Kathy E. Murray, 55 ECAB 288 (2004); Arthur C. Reck, 47 ECAB
339 (1995).
11

5 U.S.C. §§ 8101-8193; 5 U.S.C. § 8106(c)(2).

4

notification need not state the reasons for finding that the employee’s reasons are
not acceptable.”12
If possible, the employer should offer suitable reemployment in the location where the
employee currently resides. If this is not practical, the employer may offer suitable
reemployment at the employee’s former duty station or other location.13
ANALYSIS
The Board finds that the Office properly terminated appellant’s compensation and
schedule award benefits under 5 U.S.C. § 8106(c)(2) for refusing an offer of suitable work.
In second opinion reports dated August 31, 2004 and June 1, 2005, Dr. Habashi, a Boardcertified orthopedic surgeon, reported the history of appellant’s May 20, 2001 injury and her
medical treatment since that time. He indicated that appellant did not have any range of motion
deficits in her upper extremities, but had limited range of motion in her cervical spine.
Dr. Habashi concluded that appellant was capable of working with restrictions of no lifting more
than 20 pounds and no “excessive repeated bending, excessive reaching above shoulder level and
heavy pushing and pulling.” The Board finds that the weight of medical evidence is represented
by his reports, which were thorough and well rationalized. Dr. Habashi provided a
comprehensive review of the factual and medical evidence, detailed his findings on physical
examination of appellant and provided discussion for the conclusions he reached. The Board
notes that there is no other contemporaneous medical evidence of record relevant to the issue of
appellant’s ability to perform the duties of the position offered by the employing establishment.
On the basis of Dr. Habashi’s report, the employing establishment properly identified a
temporary, limited-duty assignment in appellant’s original commuting area citing that there were
“no Defense Commissary Agency commissaries in the commuting area of Bowling Rock, NC.”14
Physical requirements of the job required no lifting more than 20 pounds and no reaching above
shoulder level, excessive repeated bending and heavy pulling or pushing, which were well within
appellant’s work restrictions. Furthermore, the offer was in writing, included a description of the
duties of the position, the physical requirements of those duties and the date by which appellant
was to either accept the offer or submit her reasons for refusal.15 The Board finds that the Office
met its burden to establish that the position was suitable.
The issue of whether an employee has the physical ability to perform the duties of a
modified position offered by the employing establishment is primarily a medical question that

12

Sandra K. Cummings, 54 ECAB 493 (2003); Camillo R. DeArcangelis, 42 ECAB 941 (1991).

13

20 C.F.R. § 10.508. This regulation applies to both those employees who are no longer on agency rolls and
those employees who continue on the agency rolls.
14

See 20 C.F.R. § 10.508. Compare, Sharon L. Dean, 56 ECAB 175 (2004) (where the employing establishment,
among other things, did not attempt to determine whether suitable employment was available where appellant
resided. The Board reversed the Office’s termination of benefits).
15

See 20 C.F.R. § 10.507.

5

must be resolved by the medical evidence.16 In this case, the medical evidence provided by
Dr. Habashi establishes the suitability of the offered position, in that the job offered satisfied his
physical limitations.
Appellant also submitted a decision from the Social Security Administration. However,
the findings of other administrative agencies are not determinative of appellant’s disability under
the Act.17 The Social Security Act and the Federal Employees’ Compensation Act have different
standards of medical proof on the question of disability.18 Thus, this evidence is not relevant
with regard to appellant’s claim under the Federal Employees’ Compensation Act.
Appellant submitted a February 5, 2005 report and work capacity evaluation form by
Dr. Liesegang who diagnosed a ruptured thoracic disc and cervical disc injury due to the 2001
employment injury. However, Dr. Liesegang did not discuss the offered position or provided a
reasoned opinion on the issue presented. Moreover, he related that he believed he was unable to
provide a determination on appellant’s ability to perform a limited-duty job based on his training
and recommended referral to a trained examiner/therapist to make this determination. As
Dr. Liesegang stated that he believed he was not qualified to provide an opinion as to appellant’s
work capability, his opinion is speculative and of decreased probative value.19 The Board finds
that appellant has submitted no probative medical evidence providing support for her refusal of
suitable work. Therefore, she has not established a reasonable basis for refusing the offered
position.
In light of the foregoing, the Board finds that the job offered was medically and
vocationally suitable and the Office followed its procedures prior to termination of
compensation. Accordingly, the Board finds that the Office met its burden of proof to terminate
compensation.
CONCLUSION
The Board finds that the Office met its burden of proof to terminate appellant’s
compensation benefits effective February 16, 2006 for refusing a suitable job offer.

16

See Maurissa Mack, 50 ECAB 498, 502 (1999).

17

Joseph R. Santos, 57 ECAB 554 (2006); Raj B. Thackurdeen, 54 ECAB 396 (2003).

18

Dona M. Mahurin, 54 ECAB 309 (2003).

19

D.D., 57 ECAB 734 (2006) (medical opinions that are speculative or equivocal in character are of diminished
probative value).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 30, 2007 is affirmed.
Issued: June 2, 2008
Washington, DC

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

Colleen Duffy Kiko, 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
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-1642
Issued: November 9, 2015

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 July 29, 2015 appellant filed a timely appeal from a February 27, 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.
ISSUES
The issues are: (1) whether appellant met her burden of proof to expand her claim to
include additional condition; and (2) whether OWCP properly denied her claim for schedule
award compensation.
FACTUAL HISTORY
On May 29, 2008 appellant filed a traumatic injury claim (Form CA-1) alleging that on
May 24, 2008 she sustained injury to her neck, low back, and thigh due to moving an all-purpose
1

5 U.S.C. § 8101 et seq.

mail container and throwing telephone books at work.2 She stopped work on May 27, 2008.
OWCP accepted that appellant sustained sprains of her neck, thoracic region, and lumbar region
and she received disability compensation on the daily rolls beginning July 12, 2008.
In a report dated June 11, 2008, Dr. Melinda-Ann Roth, an attending Board-certified
physical medicine and rehabilitation physician, noted appellant’s chief complaint was upper back
pain and left-sided low back pain extending into her left buttock due to her May 24, 2008 work
injury.3 Appellant also complained of pain in her neck, shoulders, and left proximal thigh.
Dr. Roth diagnosed cervicodorsal musculoligamentous strain/sprain, left greater than right, and
left sacroiliac joint restriction which caused pain to radiate into the left proximal thigh and
occasionally around the left lateral pelvis.4
On February 18, 2009 appellant filed a claim for a schedule award (Form CA-7) due to
her accepted work injuries.
OWCP referred appellant for further evaluation of her medical condition to Dr. Stuart J.
Gordon, a Board-certified orthopedic surgeon. Dr. Gordon was asked to provide an impairment
rating under the standards of the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (6th ed. 2009) and to indicate whether any additional
medical conditions should be accepted as work related either as directly related to the May 24,
2008 injury/incident or by way of a work-related aggravation of any preexisting condition.
In a December 6, 2010 report, Dr. Gordon reported the findings of his physical
examination on that date, noting that appellant had intact sensation and motor strength in her
upper and lower extremities. He calculated two percent permanent impairment of her cervical
spine, two percent permanent impairment of her thoracic spine, and two percent permanent
impairment of her lumbar spine.5 Dr. Gordon noted that he did not believe that any diagnosis
beyond neck sprain, thoracic sprain, or lumbar sprain should be added to the currently accepted
diagnoses. He noted that appellant could work full duty and did not require any additional
treatment. In a supplemental report dated December 22, 2010, Dr. Gordon noted that, if he were
to only consider the permanent impairment of appellant’s upper extremities, she would have zero
percent permanent impairment of her upper extremities under the standards of the sixth edition of
the A.M.A., Guides and The Guides Newsletter.6

2

Appellant indicated that she felt something “pop” when she was throwing telephone books. She initially
claimed that the injury occurred on May 26, 2008 but later changed the date to May 24, 2008.
3

Appellant noted that, upon standing, she would experience pain that radiated into her left proximal thigh and
would occasionally have pain that wrapped around her left lateral pelvis. She indicated that she did not have any
lower extremity numbness, tingling, or weakness.
4

Dr. Roth provided a similar assessment of appellant’s condition in a June 26, 2008 report.

5

In calculating these impairment ratings, Dr. Gordon referenced portions of Chapter 17 (The Spine and Pelvis) of
the sixth edition of the A.M.A., Guides.
6

See infra notes 19 through 21.

2

On January 3, 2011 Dr. Christopher R. Brigham, a Board-certified occupational medicine
physician serving as an OWCP medical adviser, reviewed the medical evidence, including the
December 6 and 22, 2010 reports of Dr. Gordon, and concluded that appellant did not have any
permanent impairment of her upper or lower extremities under the sixth edition of the A.M.A.,
Guides. He acknowledged that a schedule award is not payable for the spine under FECA and
that the medical evidence of record did not show that appellant had permanent impairment
extending from her spine into her extremities.
By decision dated January 18, 2011, OWCP denied appellant’s claim for schedule award
compensation. It noted that the medical evidence of record, including the reports of Dr. Gordon
and Dr. Brigham, showed that appellant had not established a permanent impairment.
In mid-2014, appellant again filed a claim for a schedule award due to her accepted work
injuries. She was provided an opportunity to submit an impairment rating from an attending
physician, but no such rating was received.7
In November 2014 appellant submitted a request for authorization of x-ray testing of her
left shoulder and hips. OWCP advised that the requested treatment did not appear to be
medically necessary for her accepted conditions. In various communications sent to OWCP,
including letters originally sent to a congressional representative, appellant asserted that she
sustained injuries other than the accepted cervical, thoracic, and lumbar sprains due to the
May 24, 2008 work injury, including injuries to her shoulders, hips, and left leg.
OWCP referred appellant for further evaluation of her medical condition to Dr. Kevin F.
Hanley, a Board-certified orthopedic surgeon. Dr. Hanley was asked to indicate whether
additional conditions should be accepted and whether appellant was entitled to schedule award
compensation.
In a December 5, 2014 report, Dr. Hanley detailed appellant’s factual and medical history
and reported findings on physical examination. He found mild limitation of cervical motion, that
the sensory and muscle strength examinations of appellant’s extremities were normal and he
diagnosed degenerative disc disease of the cervical and lumbar spines. Dr. Hanley noted that
there was no doubt that appellant had pathology in the spinal axis, but he did not see any
evidence in the medical record that a “significant element of injury” occurred at the time of the
incident described on May 24, 2008. He noted that a substantive material change to the spinal
axis did not occur as a consequence of the May 24, 2008 exposure. Dr. Hanley noted that
appellant’s original incident caused her to feel a pop in the neck and short-term pain. It was only
later that she developed widespread symptomatology and it was difficult to attribute those
findings to that incident. Dr. Hanley opined:
“With regard to impairment, it has been determined in the past that she does not
have signs of extremity impairment, and I would agree at this time. Taking into
account the [A.M.A., Guides] as well as [The Guides Newsletter] written by
7

On August 12, 2014 OWCP received a handwritten notation in which Dr. Lynn Staggs, an attending physical
medicine and rehabilitation physician, noted that she would not be providing an impairment rating because she felt
that such ratings should be provided by nontreating physicians.

3

Dr. Brigham that describes the methodology for rating extremity difficulties
secondary to spinal nerve injury, there is no impairment whatsoever in either the
upper or lower extremities. [Appellant’s] subjective complaints tend more to her
spinal axis degenerative disease than anything else, and her objective findings
relative to that include radiographic evidence of degenerative disease, limitation
of motion of the spine, and subjective symptomatology. Therefore, she has zero
percent impairment of the upper and lower extremities from this work injury.”
By decision dated February 27, 2015, OWCP found that appellant had not established
work-related conditions other than those already accepted. It also determined that she was not
entitled to schedule award compensation for permanent impairment.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim including the fact that the individual is an “employee of the United
States” within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury was sustained in the performance of duty as alleged,
and that any specific condition and/or disability for which compensation is claimed are causally
related to the employment injury.8
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.9 The medical evidence required to establish a causal
relationship between a claimed condition and employment factors is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete factual and medical
background of the claimant, must be one of reasonable medical certainty, and must be supported
by medical rationale explaining the nature of the relationship between the claimed condition and
the specific employment factors identified by the claimant.10
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained sprains of her neck, thoracic region, and lumbar
region due to moving an all-purpose mail container and throwing telephone books at work on
May 24, 2008. Appellant later claimed that she sustained injuries other than the accepted
cervical, thoracic, and lumbar sprains due to the May 24, 2008 work injury, including injuries to
her shoulders, hips, and left leg.
The Board finds that appellant has not established additional work-related conditions.
On appeal appellant claimed that June 11 and 16, 2008 reports of Dr. Roth showed that
she had sustained injuries to her shoulders, hips, and left leg due to the work injury. She noted
8

J.F., Docket No. 09-1061 (issued November 17, 2009).

9

Jaja K. Asaramo, 55 ECAB 200 (2004).

10

See E.J., Docket No. 09-1481 (issued February 19, 2010).

4

that appellant had complained of pain in her neck, shoulders, and left proximal thigh. Dr. Roth
diagnosed cervicodorsal musculoligamentous strain/sprain, left greater than right, and left
sacroiliac joint restriction (with pain radiating into the left proximal thigh and occasionally
around the left lateral pelvis).11 The Board notes, however, that while these reports indicate that
appellant reported symptoms in areas other than the cervical, thoracic, and lumbar spines, they
do not contain an opinion clearly relating these additional conditions to the May 24, 2008 injury.
Appellant has not submitted a rationalized medical report showing that she sustained
work-related conditions other than those already accepted. On the contrary, the record contains
several medical reports containing opinions that she did not sustain injuries on May 24, 2008
other than the accepted cervical, thoracic, and lumbar sprains. In Dr. Gordon’s December 6,
2010 report, he did not believe that any diagnosis beyond neck sprain, thoracic sprain, or lumbar
sprain should be added to the current accepted diagnoses. He noted that appellant could work
full duty and did not require any additional treatment. In a December 5, 2014 report, Dr. Hanley
indicated that the sensory and muscle strength examinations of appellant’s extremities were
normal. He noted that a substantive material change to the spinal axis did not occur as a
consequence of the May 24, 2008 work factors and he did not find that any injury occurred on
that date beyond the cervical, thoracic, and lumbar spines.
The Board finds that OWCP properly denied appellant’s claim to expand the accepted
conditions.
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.
LEGAL PRECEDENT -- ISSUE 2
The schedule award provision of FECA12 and its implementing regulations13 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law 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.14

11

Dr. Roth provided a similar assessment of appellant’s condition in a June 26, 2008 report.

12

5 U.S.C. § 8107.

13

20 C.F.R. § 10.404.

14

W.B., Docket No. 14-1982 (issued August 26, 2015). For OWCP decisions issued after May 1, 2009, the sixth
edition of the A.M.A., Guides is used. B.M., Docket No. 09-2231 (issued May 14, 2010).

5

Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.15 A
schedule award is not payable for the loss or loss of use, of a part of the body that is not specifically
enumerated under FECA.16 Moreover, neither FECA nor its implementing regulations provide for a
schedule award for impairment to the back or to the body as a whole. Furthermore, the back is
specifically excluded from the definition of organ under FECA.17
In 1960, amendments to FECA modified the schedule award provisions to provide for an
award for permanent impairment to a member of the body covered by the schedule regardless of
whether the cause of the impairment originated in a scheduled or nonscheduled member.
Therefore, as the schedule award provisions of FECA include the extremities, a claimant may be
entitled to a schedule award for permanent impairment to an extremity even though the cause of
the impairment originated in the spine.18
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides
Newsletter, “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition”
(July/August 2009) is to be applied.19 The Board has long recognized the discretion of OWCP to
adopt and utilize various editions of the A.M.A., Guides for assessing permanent impairment.20
In particular, the Board has recognized the adoption of this methodology for rating extremity
impairment, including the use of The Guides Newsletter, as proper in order to provide a uniform
standard applicable to each claimant for a schedule award for extremity impairment originating
in the spine.21
ANALYSIS -- ISSUE 2
Appellant filed a claim for a schedule award due to her accepted work injuries. The
Board finds that the medical evidence of record does not establish any permanent impairment.
On appeal, appellant claims that the December 6, 2010 report of Dr. Gordon was
sufficient to establish two percent permanent impairment of her cervical spine, two percent
permanent impairment of her thoracic spine, and two percent impairment of her lumbar spine.
15

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

16

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

17

James E. Mills, 43 ECAB 215, 219 (1991); James E. Jenkins, 39 ECAB 860, 866 (1990).

18

Supra note 16.

19

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual,
Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is
included as Exhibit 4.
20

D.S., Docket No. 14-12 (issued March 18, 2014).

21

See E.D., Docket No. 13-2024 (issued April 24, 2014); D.S., Docket No. 13-2011 (issued February 18, 2014).

6

However, a schedule award is not payable under FECA for injury to the spine. Neither FECA
nor its implementing regulations provide a schedule award for impairment to the back and the back
is specifically excluded from the definition of organ under FECA.22
Appellant has not submitted medical evidence establishing that she is entitled to schedule
award compensation for permanent impairment. In a report dated December 22, 2010,
Dr. Gordon noted that, if he were to only consider the permanent impairment of her upper
extremities, she would have zero percent permanent impairment of her upper extremities under
the standards of the sixth edition of the A.M.A., Guides and The Guides Newsletter.23 On
January 3, 2011 Dr. Brigham, a Board-certified occupational medicine physician serving as an
OWCP medical adviser, reviewed the medical evidence, including the reports of Dr. Gordon. He
concluded that appellant did not have any permanent impairment of her upper or lower
extremities under the sixth edition of the A.M.A., Guides because a schedule award was not
payable for the spine under FECA and the medical evidence did not show that she had permanent
impairment extending from her spine into her extremities. In his December 5, 2014 report,
Dr. Hanley stated that, taking into account the sixth edition of the A.M.A., Guides and The
Guides Newsletter, appellant did not have any permanent impairment in her upper or lower
extremities. As noted above, he did not find that she sustained a work-related condition on
May 24, 2008 which extended beyond her cervical, thoracic, or lumbar spines.
The Board finds that OWCP properly denied appellant’s claim for schedule award
compensation.
Appellant may request a 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 meet her burden of proof to expand her claim to
include additional conditions. The Board further finds that OWCP properly denied appellant’s
claim for schedule award compensation.

22

See supra notes 16 through 18.

23

See supra notes 20 through 22.

7

ORDER
IT IS HEREBY ORDERED THAT the February 27, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 9, 2015
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

8