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

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

Docket No. 20-0137
Issued: June 22, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 22, 2019 appellant filed a timely appeal from an August 27, 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.3

1

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

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 27, 2019 decision, OWCP received additional evidence. However,
the Boards Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a medical condition
causally related to the accepted May 21, 2019 employment incident.
FACTUAL HISTORY
On May 22, 2019 appellant, then a 59-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on May 21, 2019 she experienced pain in her right arm when she
stepped from the street to the sidewalk, tripped over a curb, and fell on her right shoulder while in
the performance of duty. She stopped work on May 21, 2019. On the reverse side of the claim
form, appellant’s supervisor noted that appellant was in the performance of duty when injured.
Appellant was treated in the emergency room by Dr. Alexander T. Limkakeng, Boardcertified in emergency medicine, on May 21, 2019 for a right shoulder injury. Dr. Limkakeng
recommended x-rays and pain medicine. Meera Gandhi, a certified physician assistant working in
the emergency room, also treated appellant on May 21, 2019 for a right shoulder injury status post
mechanical fall. Appellant reported that, at 10:00 a.m., she stepped onto a curb and fell on her
right shoulder with her entire body weight. X-rays of the right shoulder and right humerus revealed
a small area of cortical angulation at the transition of the right humeral head which may be chronic
or reflect a subtle impaction fracture. Ms. Gandhi immobilized appellant’s right arm in a sling and
recommended decreased activities until seen by an orthopedist.
On May 29, 2019 Dr. Tally E. Lassiter, Jr., a Board-certified orthopedist, treated appellant
for acute right shoulder pain which began on May 21, 2019. Appellant reported delivering mail at
work when she slipped on a curb and fell directly onto her right shoulder. Right shoulder imaging
revealed cystic changes at greater tuberosity and a possible compressed fracture of greater
tuberosity. Dr. Lassiter diagnosed acute pain of the right shoulder due to trauma and opined that
the injury was consistent with the described mechanism at work. He recommended continued use
of a sling and advised that appellant was unable to work. In separate note dated May 29, 2019,
Dr. Lassiter advised that she was totally disabled from work from May 29 to June 29, 2019. In a
duty status report (Form CA-17) dated June 5, 2019, he diagnosed acute pain of the right shoulder
due to trauma and noted that appellant continued to be disabled.
By development letter dated June 11, 2019, OWCP informed appellant of the deficiencies
of her claim. It advised her of the type of factual and medical evidence needed and afforded her
30 days to submit the necessary evidence.
OWCP received a May 21, 2019 note from Ms. Gandhi who treated appellant and indicated
that appellant would be disabled from work from May 22 to 24, 2019.
On May 22, 2019 the employing establishment executed an authorization for examination
and/or treatment (Form CA-16) dated May 22, 2019, authorizing appellant to receive treatment
from Duke Hospital for a right shoulder and arm injury.
In response to OWCP’s development letter appellant submitted a note from an unidentified
health care provider who reported treating appellant on May 21 and 29 2019 and diagnosed acute
right shoulder pain.
2

By decision dated July 15, 2019, OWCP accepted that the May 21, 2019 incident occurred
as alleged. However, it denied appellant’s traumatic injury claim because she had not submitted
any evidence containing a medical diagnosis in connection with the accepted employment incident.
Consequently, OWCP found that the requirements had not been met to establish an injury as
defined by FECA.
OWCP received x-rays of the right shoulder and humerus dated May 21, 2019, reports from
Dr. Limkakeng and Ms. Gandhi dated May 21, 2019, and a May 29, 2019 report from Dr. Lassiter,
all previously of record.
In a July 2, 2019 Form CA-16, the employing establishing authorized appellant to seek
medical care at Duke Orthopedics. In the attending physician’s report, Part B of the Form CA-16,
Dr. Lassiter reported that appellant slipped over a curb and fell directly on her right shoulder. He
noted findings of possible compressed fracture of greater tuberosity. Dr. Lassiter noted that
appellant was placed in a sling and referred for a magnetic resonance imaging (MRI) scan.
An August 8, 2019 Form CA-17 from Dr. Lassiter indicated that an MRI scan revealed a
rotator cuff tear of the right shoulder. He noted that appellant remained totally disabled from work.
In an August 12, 2019 report, Dr. Lassiter reviewed the MRI scan of the right shoulder dated
July 31, 2019 which revealed a complete insertional supraspinatus and infraspinatus tendon tear
of the right shoulder, retracted to the lateral edge of the glenoid, mild-to-moderate muscle atrophy,
partial tear of the intra-articular long head of biceps tendon, and asymmetric increased edema in
the distal clavicle suggestive of repetitive microtrauma superimposed on mild acromioclavicular
joint osteoarthrosis. He diagnosed acute pain of the right shoulder, traumatic complete tear of the
right rotator cuff, and biceps tendinitis of right upper extremity. Dr. Lassiter noted that appellant
fell onto her right shoulder and sustained an injury to the shoulder. He opined that “the mechanism
of action for the injury was the fall onto her shoulder which occurred at work.” Dr. Lassiter further
opined that with “[G]reater than 50 percent degree of certainty this is the cause of the patient’s
injury which is a rotator cuff tear of the supraspinatus infraspinatus, as well as biceps tendon.” He
recommended physical therapy and possible arthroscopic repair of the right rotator cuff.
On August 14, 2019 appellant requested reconsideration.
By decision dated August 27, 2019, OWCP denied modification of the July 15, 2019
decision, finding that, although appellant had established a medical diagnosis, she had not
established that it was causally related to the accepted May 21, 2019 employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA,5 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
4

Id.

5

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).

3

employment injury.6 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.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. The second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.8
The medical evidence required to establish a causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.9 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.10
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted May 21, 2019 employment incident.
In an August 12, 2019 report, Dr. Lassiter diagnosed acute pain of the right shoulder,
traumatic complete tear of the right rotator cuff, and biceps tendinitis of right upper extremity. He
related that appellant sustained an injury to the shoulder and “the mechanism of action for the
injury was the fall onto [appellant’s] shoulder which occurred at work.” Dr. Lassiter opined that
with “[G]reater than 50 percent degree of certainty this is the cause of [appellant’s] injury which
is a rotator cuff tear of the supraspinatus infraspinatus, as well as biceps tendon.” While he
indicated that appellant’s right shoulder condition was work related, he failed to provide medical
rationale explaining the basis of his opinion. Without explaining, physiologically, how the specific
employment incident or employment factors caused or aggravated the diagnosed condition,
Dr. Lassiter’s opinion on causal relationship is of limited probative value and insufficient to
establish appellant’s claim.11

6
L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
7

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
8

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
9

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
10
T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).
11

Id.; J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

4

In his May 29, 2019 report, Dr. Lassiter noted treating appellant for acute right shoulder
pain which began on May 21, 2019 after she slipped on a curb and fell directly onto her right
shoulder. He diagnosed acute pain of the right shoulder due to trauma. The Board has held that
pain is a symptom and not a compensable medical diagnosis.12 Accordingly, Dr. Lassiter’s
May 29, 2019 report is insufficient to satisfy appellant’s burden of proof.
In a separate note dated May 29, 2019, Dr. Lassiter found that appellant was disabled from
work from May 29 to June 29, 2019. However, he provided no medical diagnosis in connection
with accepted employment incident and offered no opinion regarding the cause of the disability.
Medical evidence that does not offer an opinion regarding the cause of an employee’s condition
or disability is of no probative value on the issue of causal relationship.13
In Form CA-17s dated June 5 and August 8, 2019, Dr. Lassiter diagnosed acute pain of the
right shoulder due to trauma and noted that appellant continued to be disabled. As noted
previously, pain is a symptom, not a specific medical diagnosis.14 Therefore, these reports are
insufficient to meet appellant’s burden of proof.
Appellant also submitted a May 21, 2019 emergency room note from Dr. Limkakeng who
treated her for a right shoulder injury. Lacking a firm diagnosis and rationalized medical opinion
regarding causal relationship, this report is of no probative value.15 Accordingly, this report is
insufficient to satisfy appellant’s burden of proof to establish her claim.16
OWCP received medical evidence from Ms. Gandhi, a certified physician assistant, dated
May 21, 2019. Certain healthcare providers such as physician assistants are not considered
“physician[s]” as defined under FECA.17 Consequently, this report will not suffice for purposes
of establishing entitlement to FECA benefits.18
Finally, appellant submitted x-rays of the right shoulder and right humerus and an MRI
scan of the right shoulder dated July 31, 2019. However, diagnostic studies standing alone lack
12

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

13

A.S., Docket No. 19-0915 (issued November 22, 2019); see L.B., Docket No. 18-0533 (issued August 27, 2018);
D.K., Docket No. 17-1549 (issued July 6, 2018).
14

Supra note 11. Findings of pain or discomfort alone do not satisfy the medical aspect of the fact of injury medical
determination. Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803.4a(6)
(August 2012).
15

P.C., Docket No. 18-0167 (issued May 7, 2019).

16

T.G., Docket No. 19-0904 (issued November 25, 2019); L.D., Docket No. 17-1581 (issued January 23, 2018);
Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).
17

5 U.S.C. § 8101(2); 20 C.F.R. § 10.5(t).

18
Section 8101(2) of FECA provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law.”
5 U.S.C. § 8101(2). See also supra note 14 at Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316,
320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not competent to
render a medical opinion under FECA); R.J., Docket No. 19-0179 (issued May 26, 2020) (a physician assistant is not
a physician as defined under FECA); K.W., 59 ECAB 271, 279 (2007).

5

probative value as they do not address whether an employment incident caused the diagnosed
condition.19
OWCP received a note from an unidentified health care provider indicating that appellant
received treatment on May 21 and 29, 2019. A report that is unsigned or bears an illegible
signature, however, lacks proper identification and cannot be considered probative medical
evidence as the author cannot be identified as a physician.20
There is no rationalized medical evidence of record that establishes a medical condition
causally related to the accepted May 21, 2019 employment incident. Consequently, appellant has
failed to meet her burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted May 21, 2019 employment incident.21

19

F.S., Docket No. 19-0205 (issued June 19, 2019).

20

See I.M., Docket No. 19-1038 (issued January 23, 2020); Thomas L. Agee, 56 ECAB 465, 468 (2005).

21

The Board notes that the employing establishment issued a Form CA-16. A completed Form CA-16 authorization
may constitute a contract for payment of medical expenses to a medical facility or physician, when properly executed.
The form creates a contractual obligation, which does not involve the employee directly, to pay for the cost of the
examination or treatment regardless of the action taken on the claim. See 20 C.F.R. § 10.300(c); J.G., Docket No.
17-1062 (issued February 13, 2018); Tracy P. Spillane, 54 ECAB 608 (2003).

6

ORDER
IT IS HEREBY ORDERED THAT the August 27, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 22, 2020
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
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and
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U.S. POSTAL SERVICE, POST OFFICE,
)
Pittsburgh, PA, Employer
)
___________________________________________ )
N.J., Appellant

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

Docket No. 09-2331
Issued: September 3, 2010

Case Submitted on the Record

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

JURISDICTION
On September 23, 2009 appellant filed a timely appeal from the July 7, 2009 schedule
award decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than 23 percent impairment of her right arm and
10 percent impairment of her left arm, for which she received schedule awards.
FACTUAL HISTORY
On May 25, 2001 appellant, then a 42-year-old small parcel and bundle sorter clerk, filed
an occupational disease claim alleging carpal tunnel syndrome to both wrists related to her work
duties. She did not stop work. The Office accepted appellant’s claim for bilateral carpal tunnel
syndrome. Appellant underwent left carpal tunnel release on December 12, 2001 and right
carpal tunnel release on March 13, 2002. She returned to full duty on August 7, 2002. On
July 22, 2003 appellant filed a claim for a recurrence of her bilateral carpal tunnel condition.

The Office accepted the recurrence claim as a new occupational disease under case file number
xxxxxxx409 and doubled the claims under this master file number.
Appellant underwent a second left carpal tunnel release on April 16, 2004 and a second
right carpal tunnel release on October 1, 2004. She returned to limited duty in December 2004,
but stopped work again in January 2005. In November 2007, appellant began working as a
family advocate for Head Start. The Office reduced wage-loss compensation based on her actual
earnings. Appellant then elected to receive retirement benefits through the Office of Personnel
Management in lieu of benefits under the Federal Employees’ Compensation Act.
On October 29, 2008 appellant filed a claim for a schedule award.
In a June 10, 2008 report, Dr. David Weiss, an osteopath, reviewed a history of
appellant’s condition and medical treatment. He provided an impairment rating using the
American Medical Association, Guides to the Evaluation of Permanent Impairment, (5th ed.
2001) (hereinafter A.M.A., Guides). Dr. Weiss advised that appellant’s activities of daily living
were affected by her accepted condition and she had difficulty with self-care, grasping objects,
pushing and pulling. He noted that appellant’s work as a family advocate exacerbated her pain.
Dr. Weiss examined her right wrist and hand and noted a well-healed mid-palmar surgical scar
and some tenderness. He determined that there was no thenar or hypothenar atrophy. Dr. Weiss
examined the left wrist and hand and noted a well-healed mid-palmar surgical scar with
extension over the flexor retinaculum of the wrist joint with some tenderness and thenar atrophy
and flattening noted. On range of motion for both wrists, he found dorsiflexion of “0-75/75
degrees,” palmar-flexion of “0-75/75 degrees,” radial deviation of “0-20/20 degrees” and ulnar
deviation of “0-35/35 degrees.” Dr. Weiss performed grip strength testing performed with the
Jamar hand dynamometer and noted that appellant had 20 kilograms of force strength on the
right versus 24 kilograms of force strength on the left. He determined that lateral pinch key
testing revealed five kilograms in the right hand versus six kilograms in the left hand. The lower
arm circumference measured 26 centimeters on the right versus 25 centimeters on the left.
Dr. Weiss also determined that Semmes-Weinstein monofilament testing revealed a diminished
light touch sensibility at 3.6l milligrams over the median nerve distribution of the right hand and
a diminished light touch sensibility at 2.83 milligrams over the median nerve distribution of the
left hand. He also found two-point discrimination of 6 centimeters on the right over the median
nerve versus 10 centimeters on the left over the median nerve distribution. Dr. Weiss referred
generally to Tables 16-10 and 16-15 of the A.M.A., Guides and advised that, for the right arm, a
Grade 2 sensory deficit for the right median nerve resulted in 31 percent impairment.1 He
referred to Tables 16-33 and 16-34 of the A.M.A., Guides and determined that appellant had
impairment of 10 percent for her right lateral pinch deficit.2 Dr. Weiss combined these values to
find 38 percent impairment of the right arm. For the left arm, he determined that a Grade 4
sensory deficit of the left median nerve represented 10 percent impairment.3 Dr. Weiss opined
that appellant reached maximum medical improvement on June 10, 2008.
1

A.M.A., Guides 482, 492.

2

Id. at 509.

3

See supra note 1.

2

In a December 1, 2008 report, an Office medical adviser reviewed the medical evidence
of record. He agreed with the 10 percent sensory impairment rating provided by Dr. Weiss for
the left arm. The Office medical adviser noted that under Table 16-15, page 492, the maximum
percentage of permanent impairment for sensory loss involving the median nerve below the
forearm was 39 percent. He concurred with the classification of the extent of sensory deficit
under Table 16-10 as Grade 4, or 25 percent. Multiplying the maximum 39 percent times 25
percent equaled 9.75, rounded to 10 percent sensory loss.
For the right arm, the Office medical adviser stated that two-point discrimination testing
was 6 millimeters on the right as opposed to 10 millimeters on the left that “would actually be
the opposite of what would be expected based upon the other studies.” He referred to section
16.8a, Principles Of Strength Evaluation,4 and noted that decreased strength cannot be rated in
the presence of painful conditions. The Office medical adviser advised that the right side
showed no thenar or hypothenar atrophy, the basis for an objective assessment of grip strength
and pinch deficit and recommended against including grip or pinch deficit in the determination
of impairment. As to the extent of sensory deficit under Table 16-10, he disagreed with the
Grade 2 (80 percent) classification by Dr. Weiss. The Office medical adviser stated that the
findings on examination did not support this grade for decreased protective sensibility.5 He
noted that this had not been demonstrated. The Office medical adviser advised that classification
of Grade 3 would apply since appellant had diminished light touch and two-point discrimination.
He explained that a Grade 3 represented a 60 percent sensory deficit which, when multiplied by
39 percent maximum loss, equaled 23 percent impairment for pain or discomfort.
In a December 16, 2008 decision, the Office granted appellant schedule awards for 23
percent impairment of the right arm and 10 percent impairment of the left arm. The awards
covered 102.96 weeks from June 10, 2008 to May 31, 2010.
On December 24, 2008 appellant’s representative requested a hearing, which was held on
May 19, 2009. He contended that decreased strength could be rated in the presence of pain if the
pain did not prohibit the application of maximum effort. Appellant’s representative questioned
the validity of the Office medical adviser’s report and suggested a conflict may have been
created.
By decision dated July 7, 2009, the hearing representative affirmed the December 16,
2008 decision.

4

A.M.A., Guides 508.

5

Id. at 482.

3

LEGAL PRECEDENT
The schedule award provision of the Act6 and its implementing regulations7 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, the Act 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.8
The Board has found that the fifth edition of the A.M.A., Guides provides that
impairment for carpal tunnel syndrome be rated on motor and sensory deficits only.9 The fifth
edition of the A.M.A., Guides, regarding impairment due to carpal tunnel syndrome, provides
that, if, after an optimal recovery time following surgical decompression, an individual continues
to complain of pain, paresthesias or difficulties in performing certain activities, three possible
scenarios can be present: 1. Positive clinical findings of median nerve dysfunction and electrical
conduction delays: the impairment due to residual carpal tunnel syndrome is rated according to
the sensory and/or motor deficits in Tables 16-10a and 16-11a. 2. Normal sensibility and
opposition strength with abnormal sensory and/or motor latencies or abnormal electromyogram
testing of the thenar muscles: a residual carpal tunnel syndrome is still present and an
impairment rating not to exceed five percent of the upper extremity may be justified. 3. Normal
sensibility (two-point discrimination and Semmes-Weinstein monofilament testing), opposition
strength and nerve conduction studies: there is no objective basis for an impairment rating.10
ANALYSIS
The Office accepted appellant’s claim for bilateral carpal tunnel syndrome for which she
underwent surgery. The schedule awards granted by the Office pertain to findings of sensory
loss to her right and left arms due to residuals of her accepted conditions.
Dr. Weiss rated the extent of impairment for sensory deficit to appellant’s left arm at 10
percent. The Office medical adviser concurred with this rating. Under Table 16-15 the
maximum impairment for sensory loss involving the median nerve below the forearm is 39
percent. Dr. Weiss classified the extent of sensory deficit under Table 16-10 as Grade 4, which
is described as distorted superficial tactile sensibility (diminished light touch), for which 25
percent deficit is allowed.11 Multiplying the 39 percent maximum percentage by 25 percent
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

A.M.A., Guides (5th ed. 2001).

9

B.P., 60 ECAB ___ (Docket No. 08-1457, issued February 2, 2009).

10

T.A., 59 ECAB ___ (Docket No. 07-1836, issued November 20, 2007). See A.M.A., Guides 495.

11

A.M.A., Guides 482.

4

sensory deficit totaled 9.75 percent which was rounded to 10 percent.12 The Board will affirm
the determination that appellant sustained 10 percent impairment to her left arm due to sensory
loss.
As to the extent of impairment to appellant’s right arm, Dr. Weiss found 38 percent
impairment based on 31 percent sensory loss and right lateral pinch deficit of 10 percent.
The Office medical adviser rejected the motor strength weakness impairment rating of
Dr. Weiss. The Board notes that Dr. Weiss rated 10 percent impairment for right lateral pinch
deficit with reference to Tables 16-33 and 16-34 of the A.M.A., Guides.13 In providing this
rating, Dr. Weiss’ report does not address the limitations found in the A.M.A., Guides at section
16.8a. Under principles applicable to rating grip and pinch strength, the A.M.A., Guides do not
assign a large role to measurements of weakness based on manual muscle testing because they
are functional tests influenced by subjective factors that are difficult to control. Loss of strength
may be rated separately in rare cases if the examiner believes the individual’s loss of strength
represents an impairing factor that has not been considered adequately by other methods in the
chapter. Even then, impairment due to loss of strength could be combined with other
impairments only if it is based on unrelated etiologic or pathomechanical causes. Otherwise,
impairment ratings based on objective anatomic findings take precedence. The A.M.A., Guides
caution that decreased strength cannot be rated in the presence of decreased motion, painful
conditions, deformities or absence of parts that prevent effective application of maximal force in
the region being evaluated. Dr. Weiss provided a general reference to Table 16-34 in rating loss
of strength to appellant’s left arm. He did not provide any discussion of those factors or
circumstances in this case that warranted measuring loss of grip or pinch strength in view of the
cautionary language in the A.M.A., Guides.14 For this reason, Dr. Weiss’ rating does not fully
comply with the A.M.A., Guides and is of diminished probative value.15
The Board notes that, for the right upper extremity, Dr. Weiss referred to Tables 16-10
and 16-15 of the A.M.A., Guides. He classified the extent of sensory deficit under Table 16-10
as Grade 2 or 80 percent. Dr. Weiss multiplied the 80 percent sensory deficit in the distribution
of the median nerve by the 39 percent maximum impairment value for sensory deficit, which
totaled 31 percent impairment.16 The Office medical adviser, however, explained that a Grade 2
classification was not appropriate. Grade 2 is described as decreased superficial cutaneous pain
and tactile sensibility (decreased protective sensibility) which was not supported by the findings
made on examination by Dr. Weiss.17 The Office medical adviser explained that this had not
12

The Office rounds the calculated percentage of impairment to the nearest whole point. Federal (FECA)
Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(b) (June 2003).
13

A.M.A., Guides 509.

14

Id. at 507-08. See J.G., 61 ECAB ___ (Docket No. 09-1128, issued December 7, 2009); K.W., 59 ECAB ___
(Docket No. 07-1547, issued December 19, 2007).
15

See J.G., supra note 14 (an attending physician’s report is of diminished probative value where the A.M.A.,
Guides are not properly followed).
16

A.M.A., Guides 482, 492.

17

Id. at 482.

5

been demonstrated in appellant’s case. He noted that Grade 3 was applicable since appellant had
diminished light touch and two-point discrimination. Grade 3 classified sensory deficit as 60
percent which, when multiplied by 39 percent, totals 23 percent impairment. The Board finds
that Dr. Weiss did not adequately explain the elements that went into classifying sensory deficit
as Grade 2 or 80 percent. As noted, the Office medical adviser’s report supports diminished light
touch with two-point discrimination. For this reason, the Board finds that his explanation as to
how he used the A.M.A., Guides is more probative. It is well settled that, when an attending
physician’s report gives an estimate of impairment but does not address how the estimate is
based upon the A.M.A., Guides, the Office may follow the advice of a medical adviser or
consultant as to the proper application of the A.M.A., Guides.18 The weight of probative medical
evidence supports 23 percent impairment of the right arm for sensory impairment of the median
nerve. The Board will affirm the schedule award based on impairment to appellant’s right arm.
Counsel contends that the A.M.A., Guides provides that decreased strength can be rated
in the presence of pain if the pain does not prohibit the application of maximum effort.
Dr. Weiss, however, did provide an explanation addressing appellant’s pain and how it affected
her effort in strength testing.
CONCLUSION
The Board finds that appellant has 23 percent permanent impairment of the right arm and
10 percent permanent impairment of the left arm, for which she received schedule awards.

18

J.Q., 59 ECAB ___ (Docket No. 06-2152, issued March 5, 2008); Laura Heyen, 57 ECAB 435 (2006).

6

ORDER
IT IS HEREBY ORDERED THAT the July 7, 2009 decision of the Office of Workers’
Compensation Programs be affirmed.
Issued: September 3, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
DEPARTMENT OF THE AIR FORCE,
MAINTENANCE WORKING CAPITAL FUND,
RANDOLPH AIR FORCE BASE, TX, Employer
__________________________________________

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

Docket No. 15-1023
Issued: August 13, 2015

Case Submitted on the Record

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

JURISDICTION
On April 2, 2015 appellant filed a timely appeal from a March 9, 2015 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). Because more than 180 days
elapsed between the last merit decision dated July 9, 2014 to the filing of this appeal, the Board
lacks jurisdiction to review the merits of this case. 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 nonmerit issue.2
ISSUE
The issue is whether OWCP properly found that appellant abandoned his request for a
hearing.
1
2

5 U.S.C. §§ 8101-8193.

Appellant submitted new arguments on appeal. The Board’s review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision. See 20 C.F.R. § 501.2(c).

On appeal, appellant contends that he was 15 minutes late in making the telephone
conference call and that he called several times, but was unable to get through. He also stated
that he left three messages with his claims examiner explaining the situation, but never received
any response.
FACTUAL HISTORY
On March 26, 2014 appellant, then a 57-year-old aircraft mechanical parts repairman,
filed an occupational disease claim alleging that the continued use of a supplied air hood caused
a neck strain. He first realized that his condition was caused or aggravated by his employment
on March 10, 2014.
Following the development of the evidence, by decision dated July 9, 2014, OWCP
denied the claim as the medical component of fact of injury was not established.
On July 28, 2014 OWCP received appellant’s July 22, 2014 request for a telephonic
hearing before OWCP’s Branch of Hearings and Review.
By letter dated January 7, 2015, OWCP’s Branch of Hearings and Review notified
appellant that a telephone hearing was scheduled for February 10, 2015 at 1:00 p.m. eastern
standard time (EST). It instructed him to call the provided toll-free number a few minutes before
the hearing time and enter in a pass code when prompted.
By decision dated March 9, 2015, OWCP’s Branch of Hearings and Review found that
appellant abandoned his requested hearing. It found that he received written notification of the
hearing 30 days in advance, but failed to appear. The Branch of Hearings and Review further
determined that nothing in the record established that appellant contacted, or attempted to
contact, OWCP, either prior to or subsequent to the scheduled hearing to explain his failure to
participate. It concluded that he had abandoned his hearing request.
LEGAL PRECEDENT
Under FECA and its implementing regulations, a claimant who has received a final
adverse decision by OWCP is entitled to receive a hearing upon writing to the address specified
in the decision within 30 days of the date of the decision for which a hearing is sought.3 Unless
otherwise directed in writing by the claims examiner, OWCP’s hearing representative will mail a
notice of the time and place of the hearing to the claimant and any representative at least 30 days
before the scheduled date.4 OWCP has the burden of proving that it mailed notice of a scheduled
hearing to a claimant.5

3

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.616(a).

4

20 C.F.R. § 10.617(b).

5

See Michelle R. Littlejohn, 42 ECAB 463 (1991).

2

A hearing before the Branch of Hearings and Review can be considered abandoned only
under very limited circumstances.6 With respect to abandonment of hearing requests, Chapter
2.1601.6(g) of OWCP’s procedure manual provides in relevant part that failure of the claimant to
appear at the scheduled hearing, failure to request a postponement, and failure to request in
writing within 10 days after the date set for the hearing that another hearing be scheduled shall
constitute abandonment of the request for a hearing. Under these circumstances, the Branch of
Hearings and Review will issue a formal decision finding that the claimant has abandoned his or
her request for a hearing and return the case to the district office.7
ANALYSIS
Following OWCP’s July 9, 2014 decision denying his claim, appellant requested a
telephonic hearing before an OWCP hearing representative. On January 7, 2015 OWCP notified
appellant that his hearing was scheduled for February 10, 2015 at 1:00 p.m., EST. It provided a
toll-free number and a pass code to use at the time of the hearing. Appellant did not request a
postponement, failed to call in at the scheduled hearing, and failed to provide any notification for
such failure to OWCP within 10 days of the scheduled date of the hearing.
On appeal, appellant contends that he was 15 minutes late in making the telephone
conference call. He later stated that he called several times, but was unable to get through.
Appellant also stated that he left three messages with his claims examiner explaining the
situation, but never received a response. There is no evidence of record that he provided this
information to OWCP within 10 days of the scheduled date of the hearing. The Board finds that
appellant abandoned his request for an oral hearing.8
CONCLUSION
The Board finds that appellant abandoned his request for an oral hearing before an
OWCP hearing representative on February 10, 2015.

6

Claudia J. Whitten, 52 ECAB 483 (2001).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Review of the Written Record, Chapter
2.1601.6(g) (October 2011).
8

C.H., Docket No. 14-620 (issued June 25, 2014).

3

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 9, 2015 is affirmed.
Issued: August 13, 2015
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.V., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF INVESTIGATION, Chicago, IL,
Employer
__________________________________________

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

Docket No. 07-718
Issued: July 2, 2007

Case Submitted on the Record

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

JURISDICTION
On January 22, 2007 appellant filed a timely appeal from a November 6, 2006 merit
decision of the Office of Workers’ Compensation Programs granting him a schedule award for a
47 percent monaural hearing loss of the left ear. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3,
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he has greater than a 47 percent
hearing loss in his left ear, for which he received a schedule award.
FACTUAL HISTORY
On August 18, 1982 appellant, then a 26-year-old special agent, filed a traumatic injury
claim alleging that he ruptured his left eardrum and sustained a hearing loss while participating
in a work-related firearms class. On May 26, 1984 and April 20, 1992, he perforated his left
eardrum in two work-related accidents. Appellant’s claim was accepted for perforation of the

left tympanic membrane, a total perforation of the tympanic membrane of the left ear and air
conductive hearing loss of the left ear. He underwent surgeries related to his accepted conditions
on February 7 and November 22, 1988, May 19, 1992 and September 22, 1995.
On August 30, 2002 appellant requested a schedule award. The Office referred him,
together with the entire medical record and a statement of accepted facts, to Dr. Charles L.
Cassady, a Board-certified otolaryngologist, for an evaluation of the hearing loss related to his
accepted conditions.
Dr. Cassady evaluated appellant and obtained an audiogram on
August 10, 2004. In a report dated August 10, 2004, he thoroughly reviewed appellant’s history
of injury and medical history. Examination of appellant revealed that the left tympanic
membrane had a large perforation, extending from the anterior-inferior border toward the
posterior part of the tympanum. The audiogram revealed a fairly normal hearing pattern in the
right ear, with high frequency sensorineural-type hearing loss of 40 decibels at 4,000 cycles per
second (cps). Testing of the left ear showed an air conductive hearing loss, with a significant
airborne gap at all frequencies tested. Speech discrimination scores were very good bilaterally.
Dr. Cassady provided a diagnosis of a perforated left tympanic membrane, with air conductive
hearing loss, service incurred. He also found a mild to high frequency sensorineural-type
hearing loss at 4,000 cps in the right ear.
The Office referred the case to the district medical adviser for review. In a report dated
September 27, 2004, the district medical adviser concurred with Dr. Cassady’s opinion that
appellant’s hearing loss was work related. After reviewing the August 10, 2004 audiogram
report and in accordance with the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th edition), the medical adviser found that testing of the right ear at
frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed decibel losses of 15, 10, 5 and 15,
respectively and in the left ear decibel losses of 70, 55, 50 and 50, respectively. Appellant’s
decibel losses for the right ear were totaled at 45 and divided by 4 to obtain the average hearing
loss per cycle of 11.25. The average of 11.25 was then reduced by the 25 decibel fence to equal
0 decibels for the right ear. The 0 was then multiplied by 1.25, resulting in a 0 percent loss for
the right ear. Accordingly, the medical adviser found that appellant had no ratable loss in the
right ear. Appellant’s decibel losses for the left ear were totaled at 225 and divided by 4 to
obtain the average hearing loss per cycle of 56.25. The average of 56.25 was then reduced by
the 25 decibel fence to equal 31.25 decibels for the left ear. The 31.25 was then multiplied by
1.5, resulting in a 46.87 percent loss for the left ear. The medical adviser found that appellant
had a 7.8 percent binaural loss pursuant to Table 11-2 of the A.M.A., Guides. He opined that the
date of maximum medical improvement was August 10, 2004 and recommended that a hearing
aid should be authorized for appellant’s left ear.
By decision dated October 29, 2004, the Office granted appellant a schedule award for a
7.8 percent binaural hearing loss. The award ran for 15.6 weeks from August 10 to
November 27, 2004.
On November 4, 2004 appellant requested an oral hearing. On June 22, 2005 an Office
hearing representative issued a decision reversing the October 10, 2004 decision and awarding
compensation for a 47 percent monaural hearing loss in the left ear. The hearing representative
found that the Office should not have addressed a right ear hearing loss, in that no work-related

2

right ear condition had been alleged or accepted by the Office. The case was returned to the
district Office for an appropriate decision.
By decision dated November 6, 2006, the Office granted appellant a schedule award for a
47 percent monaural hearing loss in the left ear. The award ran for 24.44 weeks from August 10
to January 28, 2005, to be offset by the prior schedule award payment.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 provides
for compensation to employees sustaining permanent loss or loss of use, of specified members of
the body. The Act, however, does not specify the manner in which the percentage loss of a
member shall be determined. The method used in making such determination is a matter in the
sound discretion of the Office. For consistent results and to ensure equal justice, the Board has
authorized the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the Office for evaluating schedule losses
and the Board has concurred in such adoption.2
The Office evaluates industrial hearing loss in accordance with the standards contained in
the A.M.A., Guides.3 Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at
each frequency are added up and averaged.4 The average is then reduced by the 25 decibel
fence.5 The remaining amount is multiplied by a factor of 1.5 to arrive at the percentage of
monaural hearing loss.6 The binaural loss is determined by calculating the loss in each ear using
the formula for monaural loss; the lesser loss is multiplied by five, then added to the greater loss
and the total is divided by six to arrive at the amount of the binaural hearing loss.7 The Board
has concurred in the Office’s adoption of this standard for evaluating hearing loss.8

1

5 U.S.C. §§ 8101-8193.

2

See 20 C.F.R. § 10.404; Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

3

A.M.A., Guides 250.

4

Id.

5

The decibel “fence” is subtracted as it has been shown that the ability to hear everyday sounds under everyday
listening conditions is not impaired when the average of the designated hearing levels is 25 decibels or less. See
supra note 3.
6

See supra note 3.

7

Id.

8

See David W. Farrall, 56 ECAB _____ (Docket No. 04-2142, issued February 23, 2005). See also Donald E.
Stockstad, 53 ECAB 301 (2002); petition for recon., granted (modifying prior decision), Docket No. 01-1570
(issued August 13, 2002); Reynaldo R. Lichtenberger, 52 ECAB 462 (2001).

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ANALYSIS
In a June 22, 2005 decision, the Office hearing representative correctly found that
appellant should not have received an award for a binaural hearing loss, in that no work-related
right ear condition had been alleged or accepted by the Office. Reversing the October 10, 2004
decision and awarding compensation for a 47 percent monaural hearing loss in the left ear, the
hearing representative returned the case to the district Office for an appropriate decision.
The district medical adviser applied the correct sections of the fifth edition of the A.M.A.,
Guides and properly applied the Office’s standardized procedures to the August 10, 2004
audiogram in determining the degree of permanent impairment secondary to hearing loss in
appellant’s left ear. Testing for the left ear revealed decibel losses of 70, 55, 50 and 50,
respectively. These decibel losses were totaled at 225 and divided by four to obtain the average
hearing loss per cycle of 56.25. The average of 56.25 was then reduced by the 25 decibel fence
to equal 31.25 decibels for the left ear. The 31.25 was then multiplied by 1.5, resulting in a
46.87 percent loss for the left ear. In its November 6, 2006 decision, the Office properly rounded
up to find a 47 percent monaural loss for the left ear.9
The Board finds that the district medical adviser applied the proper standards to the
findings stated in Dr. Cassady’s August 10, 2004 report and properly relied upon the August 10,
2004 audiogram, as it was part of Dr. Cassady’s evaluation and met all the Office’s standards.10
The Board further finds that the medical adviser properly found that the date of maximum
medical improvement was August 10, 2004, the date of Dr. Cassady’s examination.
The schedule award provision of the Act specifies the number of weeks of compensation
to be awarded for loss of hearing. For total loss of hearing in one ear, the Act provides for 52
weeks of compensation. Any loss less than a total loss is compensated at a proportionate rate;
therefore, a 47 percent monaural hearing loss equals 24.44 weeks of compensation.
On appeal, appellant objects to the finding that he reached maximum medical
improvement, stating that his damaged left eardrum is a “continual problem requiring attention
and eventually a hearing aid.” The Board notes that a finding that appellant has reached
maximum medical improvement does not preclude continuing medical benefits, to which he is
still entitled. On September 27, 2004 the district medical adviser recommended that a hearing
aid should be authorized for appellant’s left ear. Appellant may submit a request to the Office
for a hearing aid pursuant to section 8103 of the Act.11

9

The Office rounds the calculated percentage of impairment to the nearest whole point. Federal (FECA)
Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(b) (June 2003).
10

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Requirement for Medical Reports, Chapter
3.600.8(a)(2) (September 1994).
11

5 U.S.C. § 8103(a).

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CONCLUSION
The Board finds that appellant has failed to establish that he sustained more than a 47
percent loss of hearing in the left ear for which he received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 6, 2006 is affirmed.
Issued: July 2, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.B., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, West Palm Beach, FL,
Employer
__________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1646
Issued: January 10, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 1, 2013 appellant, through counsel, filed a timely appeal from a February 28,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether OWCP properly terminated appellant’s compensation for
wage-loss and medical benefits effective March 25, 2011 on the grounds that she no longer had
any residuals or disability causally related to her accepted employment-related injury; and
(2) whether she had any continuing employment-related residuals or disability after
March 25, 2011.

1

5 U.S.C. § 8101 et seq.

On appeal appellant’s counsel argued that OWCP erred in failing to follow the Board’s
remand instructions. Appellant contends that OWCP failed to consider the new evidence
submitted with her reconsideration request.
FACTUAL HISTORY
This case has previously been before the Board. In an October 23, 2012 decision, the
Board set aside an October 7, 2011 OWCP decision denying reconsideration.2 The Board found
that appellant submitted pertinent new and relevant evidence and advanced a relevant legal
argument not previously considered. The Board remanded the case to OWCP to conduct a merit
review as to whether it met its burden of proof to terminate appellant’s compensation and to
consider the new evidence that had been submitted with her request. The facts of the case as set
forth in the Board s prior decision are incorporated herein by reference.3
In progress notes and treatment reports submitted following appellant’s placement on the
periodic rolls, Dr. James Clancy, a treating podiatrist, listed physical findings and diagnosed left
foot complex regional pain syndrome. He concluded that appellant was totally disabled for work
due to her employment injuries.
On August 20, 2009 appellant was referred for a second opinion evaluation with Dr. Peter
Millheiser, a Board-certified orthopedic surgeon, to determine her work capability. On
September 2, 2009 Dr. Millheiser found that appellant no longer had any residuals or disability
due to the accepted conditions. He noted the lack of supporting objective evidence.
On October 7, 2009 Dr. Gary Richman, a treating physician, conducted an initial
consultation and diagnosed left foot and ankle neuritis and possible left foot complex regional
pain syndrome type 1. In subsequent reports, he found that appellant had sensitivity to light
touch over the lateral aspect of her left foot, no edema or skin color changes. On February 3 and
March 25, 2010 Dr. Richman diagnosed left foot complex regional pain syndrome type 1 and left
ankle and foot neuritis.
OWCP found a conflict in medical opinion between Dr. Millheiser, an OWCP referral
physician, and Drs. Clancy and Richman, appellant’s treating physicians, on the issue of whether
her accepted employment injury had resolved. On February 5, 2010 it referred appellant to
Dr. Steven E. Naide, a Board-certified orthopedic surgeon, selected as the impartial medical
referee.
In a March 15, 2010 report, Dr. Naide reviewed the medical record, a statement of
accepted facts and the list of submitted questions. He provided findings on physical examination
2

Docket No. 12-1057 (issued October 23, 2012).

3

On October 27, 2006 appellant, then a 46-year-old transportation screener, filed a traumatic injury claim
alleging that on October 5, 2006 she injured her left foot when another employee lost his footing, fell backwards and
landed on appellant’s left foot. OWCP accepted the claim for left foot and ankle crushing injury, which was
subsequently expanded to include left lower limb reflex sympathetic dystrophy. Appellant stopped work on
October 15, 2006 and has not returned. By letter dated September 9, 2008, OWCP placed appellant on the periodic
rolls for temporary total disability.

2

and diagnosed status post crush left foot injury, rule out complex regional pain syndrome and
healed left 2nd and 3rd metatarsal fractures. In response to the questions posed by OWCP, he
noted the accepted diagnoses of metatarsal fractures, foot and ankle reflex sympathetic
dystrophy, foot and ankle pain and left foot crush injury. Dr. Naide found that the metatarsal
fractures and crush injury had clearly healed and there was no objective continuing evidence to
support a diagnosis of reflex sympathetic dystrophy. He found that appellant had no disability or
residuals due to her accepted employment conditions based on the lack of objective findings.
Dr. Naide noted that appellant’s subjective complaints of pain outweighed the objective findings.
The examination showed no evidence of any continuing residuals of left lower extremity reflex
sympathetic dystrophy. Dr. Naide related that there were no signs of any atrophy, skin color or
temperature changes on physical examination and a magnetic resonance imaging (MRI) scan
showed no patchy osteoporosis. A December 2008 bone scan was equivocal for reflex
sympathetic dystrophy.
In a supplemental November 22, 2010 report, Dr. Naide reviewed an August 4, 2010
bone scan. He stated that it was not consistent with reflex sympathetic dystrophy. Dr. Naide
determined that appellant did not have any ongoing left foot reflex sympathetic dystrophy.
On February 11, 2011 Dr. Richman provided physical findings and diagnosed left foot
complex regional pain syndrome type 1 and left ankle and foot neuritis. Appellant was released
to sedentary work with activities as tolerated.
By decision dated March 24, 2001, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective March 25, 2011. It found that her employmentrelated conditions resolved without residuals.
On September 16, 2011 appellant’s counsel requested reconsideration and submitted a
medical report in support of her request. He contended that OWCP erred in relying on
Dr. Naide’s opinion as it was speculative and unsupported by objective evidence.
On September 11, 2011 Dr. Richman reviewed Dr. Naide’s report and disagreed with his
conclusions. He stated that the physical findings of Dr. Naide were not representative of
appellant’s condition as it was conducted shortly after appellant had the third in a series of
lumbar sympathetic nerve blocks. Dr. Richman stated that patients with complex regional pain
syndrome had lesser symptomology after such blocks. He noted this was consistent with his
findings on examination following the blocks. Dr. Richman related that the negative bone scans
did not rule out complex regional pain syndrome while a positive triple phase bone scan had
indicated the possibility of such a condition. He stated that appellant continued to exhibit
findings consistent with complex regional pain syndrome including discoloration, restricted
motion and swelling. As a result of her condition appellant was restricted to sedentary work.
By decision dated February 28, 2013, OWCP denied modification of the termination
decision. It found that Dr. Naide’s opinion supported termination of her benefits. OWCP
reviewed Dr. Richman’s report, which it found to be speculative and insufficient to outweigh the
special weight accorded to Dr. Naide as the impartial medical examiner.

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LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of justifying
modification or termination of an employee’s benefits.4 After it has determined that an
employee has disability causally related to her federal employment, it may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.5 OWCP’s burden of proof includes the necessity of furnishing rationalized
medical opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability.7 To terminate authorization for medical treatment, OWCP must
establish that appellant no longer has residuals of an employment-related condition, which would
require further medical treatment.8
Section 8123(a) of FECA provides in pertinent part: if there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.9 Where a case is
referred to an impartial medical specialist for the purpose of resolving a conflict, the opinion of
such specialist, if sufficiently well rationalized and based on a proper factual and medical
background must be given special weight.10
ANALYSIS
OWCP accepted the claim for left foot and ankle crushing injury and left lower limb
reflex sympathetic dystrophy. On March 24, 2011 it terminated appellant’s compensation
benefits effective March 25, 2011 based on the opinion of the impartial medical examiner,
Dr. Naide. The issue to be determined is whether OWCP met its burden of proof to terminate
appellant’s compensation benefits.
OWCP relied on the August 20, 2010 medical opinion of Dr. Naide, a Board-certified
orthopedic surgeon, who was selected to resolve the conflict in the medical opinion evidence
between Dr. Millheiser, an OWCP referral physician, and Drs. Clancy and Richman, appellant’s
treating physicians. Drs. Clancy and Richman, appellant’s treating physicians, opined that
appellant continued to suffer from residuals from her accepted October 5, 2006 employment
injury. Dr. Millheiser, an OWCP referral physician, disagreed with Drs. Clancy and Richman
4

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

5

I.J., 59 ECAB 524 (2008); Elsie L. Price, 54 ECAB 734 (2003).

6

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

7

T.P., 58 ECAB 524 (2007); Kathryn E. Demarsh, 56 ECAB 677 (2005).

8

Kathryn E. Demarsh, supra note 7; James F. Weikel, 54 ECAB 660 (2003).

9

5 U.S.C. § 8123(a); R.C., 58 ECAB 238 (2006); Darlene R. Kennedy, 57 ECAB 414 (2006).

10

V.G., 59 ECAB 635 (2008); Sharyn D. Bannick, 54 ECAB 537 (2003); Gary R. Sieber, 46 ECAB 215 (1994).

4

and opined that appellant no longer had any residuals or disability due to the accepted
employment injury. Thus, there was a conflict of medical opinion evidence between appellant’s
physicians and OWCP’s referral physician on the issues of medical residuals and disability.
OWCP properly referred appellant to Dr. Naide to resolve the conflict in the medical opinion
evidence, pursuant to 5 U.S.C. § 8123(a).
On March 15, 2010 Dr. Naide, based upon a physical examination, statement of accepted
facts and review of the medical and factual histories, concluded that appellant no longer had any
residuals from her accepted employment injury. He stated that the metatarsal fractures and crush
injury had clearly healed and there was no objective evidence supporting a diagnosis of reflex
sympathetic dystrophy. Dr. Naide found appellant had no disability or residuals due to her
accepted employment conditions based on the lack of any objective findings. He stated that his
examination showed no evidence of any continuing residuals of left lower extremity reflex
sympathetic dystrophy. In support of this conclusion, Dr. Naide related that there were no signs
of any atrophy, skin color or temperature changes on physical examination, an MRI scan showed
no patchy osteoporosis and a December 2008 bone scan was equivocal for reflex sympathetic
dystrophy. In a supplemental November 22, 2010 report, he reviewed an August 4, 2010 triple
phase bone scan, which he related was not consistent with reflex sympathetic dystrophy. Thus,
Dr. Naide opined that appellant did not have any ongoing left foot reflex sympathetic dystrophy.
The Board finds Dr. Naide had full knowledge of the relevant facts and evaluated the
course of appellant’s condition. Dr. Naide is a specialist in the appropriate field. At the time
benefits were terminated, he clearly opined that appellant had no work-related reason for
disability. Dr. Naide’s opinion as set forth in his report of March 15, 2010 and November 22,
2010 supplemental report found to be probative evidence and reliable. The Board finds that
Dr. Naide’s opinion constitutes the special weight of the medical evidence and is sufficient to
justify OWCP’s termination of benefits for the accepted conditions of left foot and ankle
crushing injury and left lower limb reflex sympathetic dystrophy had ceased.
Prior to the termination of her compensation benefits, appellant submitted a February 11,
2011 report from Dr. Richman diagnosing left foot complex regional pain syndrome type 1 and
left ankle and foot neuritis. No rationale was given by Dr. Richman for continued employmentrelated residuals and disability. As he was on one side of a conflict which was resolved by
Dr. Naide and his report does not otherwise provide new findings or medical rationale,
Dr. Richman’s February 11, 2011 report is insufficient to establish that there are any continuing
conditions or residuals due to the accepted October 5, 2006 work injury.11
LEGAL PRECEDENT -- ISSUE 2
As OWCP met its burden of proof to terminate appellant’s compensation benefits, the
burden shifted to her to establish that she had any disability causally related to her accepted
injury.12
11

See I.J., 59 ECAB 408 (2008); Michael Hughes, 52 ECAB 387 (2001); Howard Y. Miyashiro, 43 ECAB 1101,
1115 (1992); Dorothy Sidwell, 41 ECAB 857 (1990).
12

See Joseph A. Brown, Jr., 55 ECAB 542 (2004); Manuel Gill, 52 ECAB 282 (2001).

5

ANALYSIS -- ISSUE 2
Following OWCP’s March 24, 2011 decision terminating her compensation benefits,
appellant’s counsel requested reconsideration and submitted a September 11, 2011 report from
Dr. Richman. In his report, Dr. Richman noted his disagreement with Dr. Naide’s conclusion
and opined that appellant continued to have residuals and disability due to her complex regional
pain syndrome. The Board has long held that reports from a physician, who was on one side of a
medical conflict that an impartial specialist resolved, are generally insufficient to overcome the
weight accorded to the report of the impartial medical examiner or to create a new conflict.13
Dr. Richman had been on one side of the conflict resolved by Dr. Naide.
Thus, the Board finds that appellant submitted insufficient rationalized medical evidence
to establish a causal relationship between her condition on and after March 25, 2011 and the
accepted left foot and ankle crushing injury and left lower limb reflex sympathetic dystrophy.
Therefore, appellant has failed to meet her burden of proof.
On appeal appellant’s counsel argues that OWCP did not follow the Board’s instructions
on remand and failed to consider the new evidence submitted with her reconsideration request.
Contrary to appellant’s contentions, OWCP reviewed both her argument and the September 11,
2011 report from Dr. Richman. It found Dr. Richman’s report to be speculative and insufficient
to create a new conflict with Dr. Naide. OWCP also addressed and rejected appellant’s
arguments that Dr. Naide’s report was speculative and insufficient to constitute the weight of the
evidence.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP met its burden of proof to terminate appellant’s
compensation benefits and that appellant has failed to meet her burden of proof in establishing
any continuing disability or medical residuals on or after March 25, 2011.

13

See supra note 11.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 28, 2013 is affirmed.
Issued: January 10, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.S., Appellant
and
U.S. POSTAL SERVICE, DOMINICK V.
DANIELS PROCESSING & DISTRIBUTION
CENTER, Kearney, NJ, Employer
__________________________________________

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Appearances:
Robert D. Campbell, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1972
Issued: January 24, 2014

Case Submitted on the Record

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

JURISDICTION
On August 26, 2013 appellant, through his attorney, filed a timely appeal from a
February 27, 2013 nonmerit decision of the Office of Workers’ Compensation Programs
(OWCP) denying his untimely request for reconsideration. Because more than 180 days elapsed
from the most recent merit decision dated January 23, 2012 to the filing of this appeal, the Board
lacks jurisdiction to review the merits of the case pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.
On appeal, counsel contends that a January 29, 2013 medical report of Dr. Robin R.
Innella, an orthopedic surgeon, is sufficient to establish that appellant sustained a left knee injury
causally related to the accepted July 31, 2010 employment incident. He further contends that
1

5 U.S.C. § 8101 et seq.

appellant’s request for reconsideration was timely filed and, thus, a merit review of his claim
should have been conducted.
FACTUAL HISTORY
This case has previously been before the Board.2 In a January 23, 2012 decision, the
Board affirmed OWCP’s April 12, 2011 denial of appellant’s traumatic injury claim on the basis
that the medical evidence did not establish that the accepted employment incident, being hit in
the left knee by a registry mail cage door on July 31, 2010, caused or contributed to a left knee
condition.3 Following this decision, counsel, by letter dated January 23, 2013 and received on
January 29, 2013, requested reconsideration before OWCP and submitted new evidence.
In a December 4, 2012 report, Dr. Innella noted that appellant presented with a two and
one-half-year history of left knee pain after an injury at that time. A magnetic resonance
imaging scan performed at that time showed meniscal tears in both menisci of the left knee and
chondromalacia patella. Appellant currently complained about worsening knee pain and
stiffness in the morning and grinding within the knee. He denied any instability. Dr. Innella
listed findings on physical and x-ray examination of the left knee. He diagnosed osteoarthritis
that was localized primarily in the lower leg. On January 29, 2013 Dr. Innella reviewed
appellant’s medical records. He advised that appellant was status post contusion of the left knee
with exacerbation of degenerative changes. Appellant had an exacerbation of a torn medial
meniscus and a tear of the lateral meniscus of the left knee. His prognosis was fair. Dr. Innella
opined that the above-noted injuries were causally related to the July 31, 2010 employment
incident and were permanent in nature. He noted that appellant had a preexisting medial
meniscal tear and chondromalacia; however, appellant was functioning and able to work with
this condition. Dr. Innella concluded that he had developed progressive symptomatology since
that time.
In a February 27, 2013 decision, OWCP denied appellant’s request for reconsideration,
without a merit review. It found that the request was not filed within one year of the Board’s
January 23, 2012 decision and did not otherwise establish clear evidence of error.4
LEGAL PRECEDENT
To be entitled to a merit review of OWCP’s decision denying or terminating a benefit, a
claimant must file his or her application for review within one year of the date of that decision.5
2

Docket No. 11-1577 (issued January 23, 2012).

3

This case was previously on appeal before the Board with respect to appellant’s emotional condition claim
under OWCP File No. xxxxxx798. In a July 14, 2009 decision, the Board set aside OWCP’s July 28, 2008 decision
on the grounds that appellant filed a timely request for reconsideration of the denial of his emotional condition claim
and remanded the case to OWCP for review under the proper standard for a timely reconsideration request. Docket
No. 09-184 (issued July 14, 2008). In a February 22, 2011 decision, the Board affirmed a September 25, 2009
OWCP decision denying appellant’s claim. Docket No. 10-1189 (issued February 22, 2011).
4

The Board notes that OWCP stated that the decision for which appellant sought review was dated January 22,
2012 rather than January 23, 2012.
5

20 C.F.R. § 10.607(a).

2

The Board has found that the imposition of the one-year time limitation does not constitute an
abuse of the discretionary authority granted OWCP under section 8128(a) of FECA.6
OWCP, however, may not deny an application for review solely on the grounds that the
application was not timely filed. When an application for review is not timely filed, it must
nevertheless undertake a limited review to determine whether the application establishes clear
evidence of error.7 OWCP regulations and procedures provide that OWCP will reopen a
claimant’s case for merit review, notwithstanding the one-year filing limitation set forth in
20 C.F.R. § 10.607(a), if the claimant’s application for review shows clear evidence of error on
the part of OWCP.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by OWCP.9 The evidence must be positive, precise and explicit and must
manifest on its face that OWCP committed an error.10 Evidence which does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.11 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.12 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.13 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinion or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of OWCP’s decision.14
OWCP procedures were changed effective August 29, 2011. Section 10.607 of the
applicable regulations provide that the date of the reconsideration request for timeliness purposes
was changed from the date the request was mailed to the date the request was received by
OWCP.15
6

5 U.S.C. § 8128(a); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

7

See 20 C.F.R. § 10.607(b); Charles J. Prudencio, 41 ECAB 499, 501-02 (1990).

8

Id.; Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3d (January 2004).
OWCP procedures further provide that the term clear evidence of error is intended to represent a difficult standard.
The claimant must present evidence which on its face shows that OWCP made an error (for example, proof that a
schedule award was miscalculated). Evidence such as a detailed well-rationalized medical report which, if
submitted before the denial was issued, would have created a conflict in medical opinion requiring further
development, is not clear evidence of error. Id. at Chapter 2.1602.3c.
9

See Dean D. Beets, 43 ECAB 1153, 1157-58 (1992).

10

See Leona N. Travis, 43 ECAB 227, 240 (1991).

11

See Jesus D. Sanchez, 41 ECAB 964, 968 (1990).

12

See Leona N. Travis, supra note 10.

13

See Nelson T. Thompson, 43 ECAB 919, 922 (1992).

14

Leon D. Faidley, Jr., supra note 6.

15

20 C.F.R. § 10.607.

3

ANALYSIS
The Board finds that appellant filed an untimely request for reconsideration. The most
recent merit decision in this case was issued by the Board on January 23, 2012. While
appellant’s request for reconsideration was dated January 23, 2013, it was not received by
OWCP until January 29, 2013. Because more than one year elapsed from the January 23, 2012
merit decision to the filing of his request on January 29, 2013, the Board finds that his request
was not timely filed.
The Board also finds that appellant’s untimely request failed to demonstrate clear
evidence of error. In its January 23, 2012 decision, the Board affirmed OWCP’s April 12, 2011
denial of his traumatic injury claim on the grounds that the medical evidence did not establish
that the accepted July 31, 2010 employment incident caused or contributed to a left knee
condition. Thereafter, counsel submitted reports from Dr. Innella. As noted, the question of
whether a claimant has established clear evidence of error entails a limited review of how the
evidence submitted with the reconsideration request bears on the evidence previously of record.
None of Dr. Innella’s reports, however, manifested on its face that an error was made in the
denial of appellant’s claim. In a December 4, 2012 report, he found that appellant had
osteoarthritis that was localized primarily in the lower leg, but he did not provide any medical
opinion addressing how being hit in the left knee by a registry mail cage door on July 31, 2010
caused or contributed to the diagnosed condition.16 Dr. Innella’s January 29, 2013 report found
that appellant was status post contusion of the left knee with exacerbation of degenerative
changes, and he had an exacerbation of a torn medial meniscus and a tear of the lateral meniscus
of the left knee due to the accepted employment incident. He noted appellant’s capacity to
function and work while having a preexisting medial meniscal tear and chondromalacia and that
his symptomatology had progressed. A detailed, well-rationalized medical report which could
have created a conflict in medical opinion requiring further development if submitted prior to
issuance of the denial decision, does not constitute clear evidence of error.17 The Board notes
that, while Dr. Innella’s January 29, 2013 report is generally supportive of appellant’s claim, it is
not sufficiently probative to prima facie shift the weight of the evidence in appellant’s favor.
Although it might be construed to produce a contrary result, it does not demonstrate clear error
on the part of OWCP in denying his traumatic injury claim. Dr. Innella offered no medical
rationale to explain how appellant’s diagnosed left knee condition was causally related to the
July 31, 2010 employment incident.18 Since his reports did not address the issue of whether the
diagnosed conditions were caused by the July 31, 2010 employment incident or raise a
substantial question as to the correctness of the denial of appellant’s claim, the Board finds that
appellant’s untimely request failed to establish clear evidence of error.19

16

See F.R., Docket No. 09-575 (issued January 4, 2010) (evidence that is not germane to the issue on which the
claim was denied is insufficient to demonstrate clear evidence of error).
17

Joseph R. Santos, 57 ECAB 554 (2006).

18

Medical conclusions unsupported by rationale are of little probative value. Willa M. Frazier, 55 ECAB
379 (2004).
19

John Crawford, 52 ECAB 395 (2001); Linda K. Cela, 52 ECAB 288 (2001).

4

On appeal, appellant’s attorney contended that Dr. Innella’s January 29, 2013 report was
sufficient to establish that appellant sustained a left knee injury causally related to the accepted
July 31, 2010 employment incident. As discussed, his report was not sufficient to prima facie
shift the weight of the evidence in appellant’s favor and raise a substantial question as to the
correctness of OWCP’s decision denying appellant’s traumatic injury claim.
Counsel further contended that appellant’s request for reconsideration was timely filed
and, thus, a merit review of his claim should have been conducted by OWCP. He stated that
OWCP’s assertion that the request was not timely could only be explained as a failure in its
receiving and filing system. As discussed above, the evidence establishes that appellant’s
reconsideration request was filed after the one-year time period had elapsed.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration on
the basis that it was untimely filed and did not establish clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the February 27, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 24, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


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

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

Docket No. 12-1295
Issued: December 14, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 29, 2012 appellant, through her attorney, filed a timely appeal from an Office of
Workers’ Compensation Programs’ (OWCP) decision dated April 16, 2012. Pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that OWCP’s October 12, 2011 loss of wageearning capacity (LWEC) determination should be modified.
FACTUAL HISTORY
Appellant, a 41-year-old letter carrier, slipped on a patch of ice on January 5, 1994 and
injured her neck and back. OWCP accepted her claim for cervical and thoracic sprains and an
occipital contusion. On August 27, 1996 appellant filed a claim for benefits after twisting her
1

5 U.S.C. § 8101 et seq.

back. OWCP accepted the claim for parathoracic muscle strain. On July 2, 1998 appellant filed a
Form CA-2a claim for benefits, alleging a recurrence of disability causally related to her accepted
conditions. OWCP accepted an exacerbation of cervical, thoracic and lumbar myofascitis and
aggravation of degenerative disc disease of the lumbar spine.
On March 25, 1999 appellant accepted a job as a modified letter carrier and began work
on April 10, 1999. The position was tailored to her physical restrictions and allowed her to work
for eight hours a day, with no pushing, pulling or lifting over 25 pounds and no repetitive
climbing.
By decision dated February 1, 2000, OWCP issued a wage-earning capacity decision. It
found that appellant worked more than 60 days in the modified position and the actual wages she
earned in the position of modified letter carrier, $635.90 per week, fairly and reasonably
represented her wage-earning capacity.
Appellant worked at her modified job until July 2, 2011, when the employing
establishment withdrew the job under the National Reassessment Program (NRP). On July 18,
2011 she filed CA-7 forms for a wage-loss compensation claim beginning that date. The
employing establishment indicated on the form that it no longer had work available for appellant
within her medical restrictions.
By letter dated July 26, 2011, OWCP advised appellant that she could either appeal the
LWEC decision or submit evidence sufficient to warrant modification of the decision.
By decision dated October 12, 2011, OWCP denied modification of the February 1, 2000
LWEC decision. It found that appellant failed to submit evidence sufficient to establish one of
the three criteria required for modification.
By letter dated November 4, 2011, appellant’s attorney requested a hearing, which was
held on February 7, 2012.
By decision dated April 16, 2012, an OWCP hearing representative affirmed the
October 12, 2011 decision.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of duty.2 When an employee cannot return to the dateof-injury job because of disability due to work-related injury or disease, but does return to
alternative employment with an actual wage loss, OWCP must determine whether the earnings in
the alternative employment fairly and reasonably represent the employee’s loss of wage-earning
capacity.3
2

5 U.S.C. § 8102(a).

3

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.7 (October 2009).

2

Once the wage-earning capacity of an injured employee is determined, a modification of
such determination is not warranted unless there is a material change in the nature and extent of
the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated or the original determination was, in fact, erroneous.4 The burden of proof is on the
party attempting to show a modification of the wage-earning capacity determination.5
FECA Bulletin No. 09-05, however, outlines OWCP procedures when limited-duty
positions are withdrawn pursuant to NRP. If, as in the present case, a formal wage-earning
capacity decision has been issued, OWCP must develop the evidence to determine whether a
modification of that decision is appropriate.6
ANALYSIS
OWCP accepted that appellant sustained the conditions of cervical and thoracic sprain,
occipital contusion, parathoracic muscle strain and lumbar myofascitis. On February 1, 2000 it
found that her actual earnings as a modified letter carrier fairly and reasonably represented her
wage-earning capacity and reduced her wage-loss compensation to zero. On July 18, 2011
appellant filed a claim for wage loss beginning July 2, 2011 due to the withdrawal of her
modified-duty assignment as part of NRP.
OWCP issued a formal wage-earning capacity decision on October 12, 2011. The
employing establishment reassessed appellant’s rated position under NRP, resulting in a
withdrawal of limited duty and a claim for wage-loss compensation beginning July 2, 2011.
OWCP analyzed the case under the customary criteria for modifying a loss of wage-earning
capacity determination. It’s decision did not acknowledge FECA Bulletin No. 09-05 or fully
follow the procedures outlined therein for claims, such as this, in which modified-duty positions
are withdrawn pursuant to NRP.
When a loss of wage-earning capacity decision has been issued, FECA Bulletin No.
09-05 requires OWCP to develop the evidence to determine whether a modification of the
decision is appropriate.7 FECA Bulletin No. 09-05 asks OWCP to confirm that the file contain
documentary evidence supporting that the position was an actual bona fide position. It requires it
to review whether a current medical report supports work-related disability and to further
develop the evidence from both the claimant and the employing establishment if the case lacks
current medical evidence.8
FECA Bulletin No. 09-05 states that OWCP, in an effort to proactively manage these
types of cases, may undertake further nonmedical development, such as requiring the employing
4

Harley Sims, Jr., 56 ECAB 320 (2005); Tamra McCauley, 51 ECAB 375 (2000).

5

Id.

6

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

7

A position that is makeshift in nature is not appropriate for a wage-earning capacity determination. See
Selden H. Swartz, 55 ECAB 272 (2004).
8

Id. at §§ I.A.1-2

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establishment to address in writing whether the position on which the loss of wage-earning
capacity determination was based was a bona fide position at the time of the rating and to direct a
review of its files for contemporaneous evidence concerning the position.9
As OWCP failed to follow the guidelines in FECA Bulletin No. 09-05, the Board will set
aside the April 16, 2012 decision and remand the case for further consideration. After proper
compliance with FECA Bulletin No. 09-05 guidelines, OWCP shall issue an appropriate de novo
decision on appellant’s entitlement to wage-loss compensation beginning July 2, 2011.10
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 16, 2012 decision of the Office of
Workers Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: December 14, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

9

Id. at § I.A.3.

10

See M.E., Docket No. 11-1416 (issued May 17, 2012).

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