United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.R., Appellant
and
U.S. POSTAL SERVICE, BULK MAIL
CENTER, Philadelphia, PA, Employer
__________________________________________

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

Docket No. 10-1919
Issued: June 20, 2011

Case Submitted on the Record

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

JURISDICTION
On July 19, 2010 appellant filed a timely appeal from the June 15, 2010 merit decision of
the Office of Workers’ Compensation Programs (OWCP), which denied waiver of an
overpayment. 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 OWCP properly denied waiver of the recovery of an $8,788.39
overpayment of workers’ compensation benefits from October 27, 2007 to January 19, 2008.
FACTUAL HISTORY
On August 3, 1985 appellant, a 34-year-old mail handler, sustained a low back injury in
the performance of duty while lifting and unloading 30-pound boxes. He was diagnosed with a
herniated lumbar disc and left sciatica with back spasm, though radiology on August 13, 1985
1

5 U.S.C. § 8101 et seq.

was negative except for a slightly diminished stature of T12 and L1, probably the result of an old
childhood osteochondritis. OWCP accepted appellant’s claim for low back strain.
An orthopedic surgeon noted on September 4, 1985 that x-rays were within normal limits
except for what appeared to be a preexisting unilateral spondylolysis at L5-S1. Nonetheless, he
found that appellant probably had a herniated disc, “the level of which I [a]m not sure.” A
computerized axial tomography scan obtained on October 1, 1985 revealed no evidence of disc
herniation from L3 and below. There was a minimal bulge at L5-S1. A dozen years later, on
January 29, 1998, a magnetic resonance imaging scan demonstrated a mildly bulging disc at
L3-4 and a small central protrusion at L4-5 with mild bilateral facet degenerative change and a
small right foraminal disc protrusion, which did not appear to contact the exiting nerve root. At
L5-S1 there was a small central disc protrusion.
On August 27, 2007 Dr. Bong S. Lee, an orthopedic surgeon, reported that appellant
sustained disc injuries at L4-5 and L5-S1 as a result of his August 3, 1985 employment injury.
Appellant complained of intermittent pain radiating to the left leg with pins and needle feelings
in both feet, left greater than right. Dr. Lee found that appellant had reached maximum medical
improvement from his injuries with a very stable condition, although appellant still had a
minimal sensory deficit of the left foot and weakness of the lower extremities. On the basis of
those findings, he determined that appellant had “about” a 15 percent impairment of the lower
extremities.
OWCP’s medical adviser noted that Dr. Lee did not properly apply the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides) (5th
ed. 2001). Using the grading scheme and procedure set forth in Table 15-15, page 424, he
determined that appellant had a 1.5 percent left lower extremity impairment due to an L5 sensory
loss and a 1.5 percent impairment due to an S1 sensory loss, for a total impairment of 3 percent.
On June 25, 2008 OWCP issued a schedule award for a three percent impairment of
appellant’s left lower extremity. This entitled appellant to 8.64 weeks of compensation. The
period of the award ran from August 27 to October 26, 2007.
OWCP’s hearing representative found that neither Dr. Lee nor OWCP’s medical adviser
provided rationale to support that appellant’s impairment was causally related to the 1985 work
injury, which was accepted only for low back strain. There was no rationale to support that the
herniated disc noted at L4-5 in 1998 and 2003 had any relationship to the 1985 work injury.
OWCP’s medical adviser agreed that the accepted condition was lumbar strain and not a
herniated disc. Nonetheless, he did not recommend any change in his previous impairment
rating because “the extremity is taken the way it is presented.”
In a decision dated March 6, 2009, OWCP denied an increased award.
On April 29, 2010 OWCP issued a preliminary determination that appellant received an
overpayment of $8,788.39 because it continued to pay appellant schedule award benefits after
the period of the award expired. It explained how it calculated the amount of the overpayment.
OWCP found appellant without fault in creating the overpayment.

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Appellant completed an overpayment recovery questionnaire on May 3, 2010. He listed
no monthly income. Appellant listed $4,257.00 in monthly household expenses plus $4,375.00
in monthly debt payments. He listed no other valuable property or real estate, no cash on hand,
no checking account balance, no savings account balance, no stocks or bonds and no personal
property or other funds.
On May 11, 2010 OWCP asked appellant to complete each item on the questionnaire and
itemize “other expenses” and utilities. It also asked for documentation of utilities and mortgage
payments.
Appellant responded on May 18, 2010. He listed $9,395.00 in monthly income.
Appellant listed his son as a dependent.2 He listed $4,757.00 in monthly household expenses
plus $2,175.00 in monthly debt payments or a total of $6,932.00 in monthly expenses. Appellant
listed $200.00 cash on hand, an $8,000.00 checking account balance, a $1,000.00 savings
account balance, $600,000.00 held in individual retirement accounts, for a total of $609,200.00
in assets.
In a decision dated June 15, 2010, OWCP finalized its preliminary determination. It
found that appellant received an $8,788.39 overpayment of compensation when OWCP
continued to pay schedule award benefits after the period of the award expired on
October 26, 2007. OWCP denied waiver on the grounds that appellant’s $2,463.00 in
discretionary monthly income and his assets established that he would not suffer severe financial
hardship in trying to repay the debt. Further, there was no evidence that he gave up a valuable
right or suffered a financial loss as a result of receiving the overpayment. OWCP asked
appellant to forward a check in the amount of $8,788.39.3
On appeal, appellant argues that Dr. Lee reported a 15 percent disability “and they paid
me.” He stated that years later OWCP found that he had only three percent impairment. Dr. Lee
argued that it was no fault of his if OWCP made a mistake.
LEGAL PRECEDENT
Section 8129(a) of FECA provide that when an overpayment of compensation has been
made because of an error of fact or law, adjustment shall be made under regulations prescribed
by the Secretary of Labor by decreasing later payments to which an individual is entitled.4
OWCP may consider waiving an overpayment only if the individual to whom it was made was
not at fault in accepting or creating the overpayment.5 If OWCP finds that the recipient of an
overpayment was not at fault, repayment will still be required unless: (1) adjustment or recovery

2

The record indicates that appellant was married.

3

Appellant was not in receipt of continuing compensation payments.

4

5 U.S.C. § 8129(a).

5

20 C.F.R. § 10.433(a).

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of the overpayment would defeat the purpose of FECA; or (2) adjustment or recovery of the
overpayment would be against equity and good conscience.6
Recovery of an overpayment will defeat the purpose of OWCP if such recovery would
cause hardship to a currently or formerly entitled beneficiary because: (a) the beneficiary from
whom OWCP seeks recovery needs substantially all of his current income (including
compensation benefits) to meet current ordinary and necessary living expenses; and (b) the
beneficiary’s assets do not exceed the resource base of $8,000.00 for an individual with a spouse
or one dependent, plus $960.00 for each additional dependent.7
An individual is deemed to need substantially all of his current income to meet current
ordinary and necessary living expenses if monthly income does not exceed monthly expenses by
more than $50.00. In other words, the amount of monthly funds available for debt repayment is
the difference between current income and adjusted living expenses (i.e., ordinary and necessary
living expenses plus $50.00).8
Recovery of an overpayment is considered to be against equity and good conscience
when any individual, in reliance on such payments or on notice that such payments would be
made, gives up a valuable right or changes his position for the worse.9 Conversion of the
overpayment into a different form, such as food, consumer goods, real estate, etc., from which
the claimant derived some benefit, is not to be considered a loss.10
ANALYSIS
OWCP accepted that appellant sustained only a low back strain in the performance of
duty on August 3, 1985. Nonetheless, it issued a schedule award for a three percent impairment
of his left lower extremity. Section 8107 of FECA provides 288 weeks of compensation of the
total loss of a leg, as with amputation at the hip.11 Partial losses or impairments are compensated
proportionately.12 So the June 25, 2008 schedule award provided appellant 8.64 weeks of
compensation for the three percent impairment of his left lower extremity (0.03 times 288 equals
8.64).
The period of the award was thus limited. As the June 25, 2008 award stated, the period
of the award ran from August 27, 2007 (which was the date Dr. Lee advised that appellant had
6

Id. at § 10.434.

7

Id. at § 10.436; Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions,
Chapter 6.200.6.a(1)(b) (October 2004).
8

Federal (FECA) Procedure Manual, id.

9

20 C.F.R. § 10.437(b).

10

Federal (FECA) Procedure Manual, supra note 7, Chapter 6.200.6.b(3) (October 2004).

11

5 U.S.C. § 8107(c)(2).

12

Id. at § 8107(19).

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reached maximum medical improvement, thus making his impairment permanent) to
October 26, 2007. But OWCP mistakenly continued to pay appellant to January 19, 2008, thus
creating an overpayment of compensation.
In its preliminary determination, OWCP explained how it calculated the amount of the
overpayment. Appellant received $15,041.59 in schedule award benefits from August 27, 2007
to January 19, 2008. He was entitled to $6,253.20 for the period August 27 to October 27, 2007:
a weekly pay rate of $534.77 times a compensation rate of 75 percent, the product of which was
increased to $723.75 after cost-of-living increases, times 8.64 weeks of compensation for the 3
percent impairment of his left lower extremity. The difference, $8,788.39, was the overpayment.
The Board will affirm OWCP’s June 15, 2010 decision on the issues of fact and amount
of the overpayment.
OWCP found that appellant was not at fault in creating the overpayment. Indeed, it
appears that the fault lay with OWCP. But that does not mean he is entitled to keep money that
does not belong to him. Indeed, the law requires OWCP to recover the overpayment if recovery
would not defeat the purpose of FECA and would not be against equity and good conscience, as
those clauses are defined.
Recovery is not established to be against equity and good conscience, as there is no
allegation and no evidence to support that appellant gave up a valuable right or changed his
position for the worse in reliance on the overpaid amount. So whether OWCP must recover the
overpayment depends on whether recovery would defeat the purpose of FECA.
Appellant’s amended overpayment recovery questionnaire shows that his monthly
income exceeds monthly expenses by $2,463.00. Such an amount, far more than the $50.00
specified by OWCP procedures, establishes that appellant does not need substantially all of his
current income to meet current ordinary and necessary living expenses. It establishes that he has
sufficient monthly funds available for debt repayment that recovery of the overpayment will not
cause hardship and therefore will not defeat the purpose of FECA.13
Accordingly, the Board finds that OWCP properly denied waiver of the recovery of the
overpayment. The Board will affirm OWCP’s June 15, 2010 decision on the issue of waiver.
Appellant must repay the debt.
The Board’s jurisdiction to review the collection of an overpayment is limited to cases of
adjustment, where OWCP decreases later payments of compensation to which the individual in
entitled.14 Because collection of the overpayment in this case cannot be made by adjusting later
payments, as appellant is not in receipt of continuing workers’ compensation payments, but must
be recovered by other means, the Board lacks jurisdiction to review the issue.

13

Further, the assets appellant listed on his amended overpayment recovery questionnaire exceed the minimum
resource base specified, another indication that recovery will not cause hardship.
14

5 U.S.C. § 8129; Levon H. Knight, 40 ECAB 658 (1989).

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Appellant argues that Dr. Lee reported a 15 percent disability “and they paid me.” No,
they did not. OWCP paid a schedule award for only a three percent impairment of appellant’s
left lower extremity. This is clearly indicated on the June 25, 2008 award. Appellant may
disagree with the percentage awarded, but Dr. Lee did not properly apply the A.M.A., Guides.
OWCP’s medical adviser properly applied the A.M.A., Guides.
Indeed, as appellant argues, it was no fault of his that OWCP made a mistake. But it was
a mistake, not a gift. Appellant is not entitled to a windfall. He must repay the money that does
not belong to him. Equity and the law, demand it.
CONCLUSION
The Board finds that OWCP properly denied waiver of recovery of an $8,788.39
overpayment of workers’ compensation benefits from October 27, 2007 to January 19, 2008.
ORDER
IT IS HEREBY ORDERED THAT the June 15, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 20, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lemont, IL, Employer
__________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0186
Issued: March 13, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On November 3, 2016 appellant, through counsel, filed a timely appeal from a
September 12, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that he sustained a cervical spine condition
in the performance of duty on or about December 6, 2012.
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.

FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are set forth below.
On June 16, 2013 appellant, then a retired letter carrier, claimed an occupational disease
(Form CA-2) alleging that he developed cervical radiculopathy on or before December 6, 2012
while performing his federal employment duties. He retired from federal employment on
April 1, 2013. Appellant attributed the claimed condition to repetitive neck and upper body
motion while delivering mail. In support of his claim, he submitted a March 6, 2013 report from
Dr. John Panozzo, an attending Board-certified family practitioner, diagnosing severe nerve
impingement at C4 and C6, with right-sided radicular pain and weakness.
OWCP informed appellant on August 19, 2013 that Dr. Panozzo’s opinion was
insufficient to meet his burden of proof to establish his claim. Appellant then submitted March
and April 2013 treatment notes from Dr. Asad A. Cheema, an attending Board-certified
anesthesiologist, diagnosing cervicalgia, degenerative cervical disc disease, and right C6
radiculopathy.
Appellant also submitted additional reports from Dr. Panozzo and
Dr. M. Kamran Khan, an osteopath, opining that repetitive motions on the job exacerbated
appellant’s cervical degenerative disc disease and increased his symptoms.
By decision dated October 4, 2013, OWCP denied appellants claim. It accepted that his
job duties required repetitive upper extremity and neck motions as alleged, but found that the
medical evidence of record was insufficient to establish causal relationship between those factors
and the claimed cervical condition. Appellant, through counsel, filed a request for a hearing on
October 24, 2013.
Following the hearing, held on March 31, 2014, appellant provided additional reports
from Dr. Khan and Dr. Panozzo, generally supporting his contention that repetitive neck and
upper extremity motions at work aggravated his cervical degenerative disc disease. By decision
dated May 9, 2014, a representative of OWCP’s Branch of Hearings and Review affirmed
OWCP’s October 4, 2013 decision denying the claim, finding that the additional medical
evidence submitted into the record failed to establish a causal relationship between his diagnosed
cervical condition and the accepted employment factors.
On June 2, 2014 appellant, through counsel, requested reconsideration and submitted a
May 19, 2014 report from Dr. Cheema, which noted that appellant “probably” had underlying
cervical disc disease. He opined that constant upper extremity motions on the job, as well as
twisting and turning his neck, aggravated underlying cervical degenerative disc disease to the
point of producing foraminal stenosis.
By decision dated September 3, 2014, OWCP reviewed the merits of the claim, but
denied modification of the hearing representative’s May 9, 2014 decision. Appellant then
appealed to the Board.

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By decision dated March 9, 2015,3 the Board affirmed OWCP’s September 3, 2014
decision, finding that the medical evidence of record was insufficiently rationalized to establish
causal relationship between the diagnosed cervical degenerative disc disease and the implicated
factors of his federal employment. The Board noted that Dr. Cheema’s May 19, 2014 report was
speculative, as he opined that appellant “probably” had underlying cervical degenerative disc
disease.
On March 9, 2016 counsel requested reconsideration and submitted a February 23, 2016
report from Dr. Cheema. He asserted that this new report presented sufficient medical rationale
to establish causal relationship between accepted employment factors and the claimed cervical
spine condition.
In his report Dr. Cheema diagnosed “cervical degenerative disc disease with foraminal
stenosis causing radicular symptoms in the right upper extremity.” He explained that because
appellant’s cervical stenosis was “beyond the normal aging process,” it was “most likely caused
by repetitive movements (overuse) of the right upper extremity and neck.” Dr. Cheema added
that repetitive motion at work definitely contributed to appellant’s cervical degenerative disc
disease, but may not have caused it. He emphasized that overuse of the right arm and constant
turning or twisting of the neck caused appellant’s C5-6 disc bulge with osteophytes, producing
“foraminal stenosis impinging the right C6 nerve root which produces the radiculopathy.”
By decision dated September 12, 2016, OWCP considered the merits of appellant’s
claim, but denied modification as Dr. Cheema’s February 23, 2016 report did not cite objective
medical findings supporting his opinion. It found that Dr. Cheema did not provide sufficient
medical rationale explaining how and why the accepted work factors would be sufficient to cause
the diagnosed C5-6 disc bulge with osteophytes.
LEGAL PRECEDENT
A claimant seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence, including that an injury was sustained in the performance of duty as alleged and that
any specific condition or disability claimed is causally related to the employment injury.5
To establish that an injury was sustained in the performance of duty, a claimant must
submit: (1) medical evidence establishing the presence or existence of the disease or condition
3

Docket No. 15-0082 (issued March 9, 2015).

4

Supra note 2.

5

20 C.F.R. § 10.115(e),(f); see Jacquelyn L. Oliver, 48 ECAB 232 (1996). Causal relationship is a medical
question, which generally requires rationalized medical opinion evidence to resolve the issue. See Robert G. Morris,
48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between the diagnosed
condition and the implicated employment factors must be based on a complete factual and medical
background. Victor J. Woodhams, 41 ECAB 345 (1989). Additionally, the physician’s opinion must be expressed
in terms of a reasonable degree of medical certainty, and must be supported by medical rationale, explaining the
nature of the relationship between the diagnosed condition and appellant’s specific employment factors. Id.

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for which compensation is claimed; (2) a factual statement identifying employment factors
alleged to have caused or contributed to the presence or occurrence of the disease or condition;
and (3) medical evidence establishing that the diagnosed condition is causally related to the
identified employment factors.6
Where there is medical evidence of a preexisting condition involving the same part of the
body as the claimed employment injury, the issue of causal relationship invariably requires
inquiry into whether there was employment-related aggravation, acceleration, or precipitation of
the underlying condition.7 Accordingly, the physician must provide a rationalized medical
opinion which differentiates between the effects of the work-related injury or disease and the
preexisting condition.8 Such evidence will permit the proper kind of acceptance, such as whether
the employment-related aggravation was temporary or permanent.9
ANALYSIS
Appellant alleged that he developed cervical radiculopathy causally related to accepted
factors of his federal employment. In support of his claim, he submitted medical evidence
including a February 23, 2016 report from Dr. Cheema, an attending Board-certified
anesthesiologist. OWCP denied the claim by decision issued September 12, 2016, finding that
Dr. Cheema’s report was insufficient to establish causal relationship.
Dr. Cheema opined that repetitive upper extremity and neck motion at work caused a
C5-6 disc bulge and foraminal stenosis impinging the right C6 nerve root, and contributed to
cervical degenerative disc disease. However, he did not explain the medical reasoning
supporting this conclusion. Dr. Cheema did not identify specific clinical findings, test results, or
imaging studies that supported a pathophysiological causal relationship between the implicated
work factors and cervical radiculopathy. Similarly, he opined that repetitive motion “most
likely” caused cervical stenosis because it was “beyond the normal aging process.” Dr. Cheema
did not explain the objective findings that demonstrated an acceleration of a disease process. In
the absence of such rationale, his opinion is insufficient to meet appellant’s burden of proof to
establish causal relationship.10 The probative value of Dr. Cheema’s opinion is further
diminished by its speculative tone, as he commented that work factors “most likely” caused
cervical stenosis.11 Therefore, OWCP’s September 12, 2016 decision denying the claim was
appropriate under the circumstances of the case.
On appeal counsel contends that Dr. Cheema’s February 23, 2016 report is sufficiently
accurate and well rationalized to meet appellant’s burden of proof, citing to the Board’s holding
6

Victor J. Woodhams, id.

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013).

8

Id.

9

Id.

10

Deborah L. Beatty, 54 ECAB 340 (2003).

11

D.D., 57 ECAB 734 (2006).

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in James Mack.12 However, Dr. Cheema did not explain the pathophysiologic relationship
between repetitive upper extremity and neck motion and cervical radiculopathy. His opinion was
not well rationalized. Additionally, counsel notes the well-established principle that an appellant
is not required to provide evidence eliminating all doubt regarding causal relationship, only
evidence necessary to draw a rational, logical conclusion. He cites to the Board’s holdings in
Elizabeth Maypother,13 Kenneth J. Deerman,14 Robert P. Bourgeois,15 and Mary E. Balderston16
in support of this doctrine. As explained above, Dr. Cheema’s opinion was speculative and
conclusory in nature. It is not the type of positive, persuasive evidence needed to formulate a
rational conclusion.
Finally, counsel contends that Dr. Cheema’s opinion is uncontroverted in the record and
of sufficient quality to require additional development. He cites to Kimper Lee17 and the FECA
procedure manual18 in support of this argument. Counsel is correct that there is no medical
evidence of record contrary to Dr. Cheema’s opinion. However, the mere lack of controversion
does not obligate OWCP to develop a medical opinion. Rather, the medical evidence must be
sufficiently accurate, detailed, and rationalized to warrant additional development. As explained
above, Dr. Cheema’s February 23, 2016 report was speculative and insufficiently rationalized.
Therefore, OWCP properly denied the claim without additional development of his opinion.
CONCLUSION
The Board finds that appellant has not established that he sustained a cervical spine
condition in the performance of duty on or about December 6, 2012.

12

43 ECAB 321 (1991).

13

5 ECAB 604 (1953).

14

34 ECAB 641 (1983).

15

45 ECAB 745 (1994).

16

Docket No. 98-1396 (issued March 7, 2000).

17

45 ECAB 565 (1994).

18

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.5 (January 2013).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 12, 2016 is affirmed.
Issued: March 13, 2018
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Norwich, CT Employer
__________________________________________

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

Docket No. 15-0467
Issued: September 23, 2016

Case Submitted on the Record

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

JURISDICTION
On December 22, 2014 appellant filed a timely appeal of an October 22, 2014 merit
decision of the Office of Workers’ Compensation Programs’ (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than 36 percent impairment of his left upper
extremity and 2 percent impairment of his right upper extremity for which he has received
schedule awards.
FACTUAL HISTORY
On May 1, 2009 appellant, then a 52-year-old letter carrier, filed a traumatic injury claim
alleging that on April 29, 2009 he was attacked by two pit-bulls while delivering mail. He stated
1

5 U.S.C. § 8101 et seq.

that the attack dislocated his right shoulder, broke his left wrist, and inflicted puncture wounds.
Appellant underwent surgical repair of 16 complex lacerations on the right forearm and 5
complex lacerations on his posterior neck on April 30, 2009. On April 30, 2009 an x-ray of the
right shoulder demonstrated an anterior dislocation of the humeral head relative to the glenoid as
well as a divot in the right humeral head that may be in contact with the inferior glenoid rim
diagnosed as a large Hill-Sachs defect. Appellant’s left wrist x-ray on April 30, 2009
demonstrated a nondisplaced radial styloid fracture with comminution and joint involvement.
OWCP accepted his claim on May 4, 2009 for right shoulder dislocation, left forearm
fracture, multiple bilateral leg lacerations and multiple bilateral arm lacerations, and neck
lacerations.
Appellant underwent a right shoulder magnetic resonance imaging (MRI) scan on
May 27, 2009 which demonstrated a Hill-Sachs fracture with inferior and anterior glenoid labral
tears as well as a tear of the infraspinatus tendon entering the subacromial subdeltoid bursa.
On June 18, 2009 OWCP accepted that appellant sustained a right rotator cuff tear due to
his April 29, 2009 employment injury. On June 24, 2009 appellant underwent a right shoulder
arthroscopy, labral repair, rotator cuff repair, and hemiarthroplasty.
On June 8, 2009 appellant filed a claim for a schedule award.
Appellant underwent an MRI scan of left wrist on August 26, 2009 which demonstrated a
radial styloid fracture with arthritic changes and a likely scapholunate ligament tear and probable
dorsal intercalated segment instability. A left wrist scaphoid excision, four corner wrist fusion
with a bone graft, and posterior interosseous nerve neurectomy were performed.
On June 2, 2010 OWCP accepted that appellant sustained secondary renovascular
hypertension as a result of his accepted employment.
Appellant underwent a computerized axial tomography (CAT) scan of his left wrist on
May 27, 2010 which demonstrated significant arthritic changes with erosive changes between the
lunate and capituate, lunate, harnate, and triquetrum. The CAT scan also demonstrated a
possible unhealed fracture through the dorsal distal radius. A second surgical revision of the left
wrist four corner fusion with iliac crest bone graft, and posterior interosseous nerve neurectomy
was performed on June 28, 2010.
Dr. Tarik Kardestuncer, a Board-certified orthopedic surgeon, provided results on
examination on June 7, 2011 and reported that appellant had significant motion limitation in the
left wrist and some paresthesia and numbness on the dorsum of the left hand. Appellant also had
numbness on the ulnar side of the right hand and wrist. Dr. Kardestuncer found 10 degrees of
left wrist flexion and 20 degrees of wrist extension. He stated that appellant had 15 percent
impairment of the left wrist and 3 percent impairment of the right hand.
Dr. Duffield Ashmead, a Board-certified plastic surgeon, provided examination results on
October 3, 2011 and noted the history of injury. He reported that appellant had constant
numbness on right forearm along the ulnar border. Appellant experienced hand numbness and
tingling on the left with significant loss of range of motion of the left wrist. Dr. Ashmead listed
2

30 degrees of extension and 10 degrees of flexion as well as ulnar and radial deviation of 5
degrees each. He stated that appellant had sensory nerve involvement in the medial antebrachial
cutaneous nerve of the right forearm2 and found this was three percent impairment under the
A.M.A., Guides. Dr. Ashmead found 20 percent impairment of the left upper extremity due to
limited wrist arthrodesis with profound loss of wrist mobility.3
On November 29, 2011 Dr. Kardestuncer found that appellant’s left wrist demonstrated
10 degrees of flexion and 30 degrees of extension.
By letter dated June 20, 2012, OWCP forwarded the record to OWCP’s medical adviser
for an impairment rating. On August 31, 2012 OWCP’s medical adviser found that appellant
had moderate sensory deficit of his right medial antebrachial cutaneous nerve, which he
correlated to medial brachial cutaneous nerve with a class 1 impairment of two percent of the
right forearm or right upper extremity.4 He also noted that this rating corresponded with a mild
impairment of the peripheral nerve with retained protective sensation and some pain.5 The
medical adviser stated that a history of right shoulder joint dislocation with no residual findings
following surgical treatment resulted in no impairment.6 He evaluated the surgical fusion of
appellant’s wrist bones due to nonoptimal positioning7 based on range of motion.8 The medical
adviser found 30 degrees of left wrist extension was 3 percent impairment, 10 degrees of flexion
was 9 percent impairment, 5 degrees of radial deviation was 12 percent impairment and 5
degrees of ulnar deviation was also 12 percent impairment, totaling 36 percent impairment of the
left upper extremity. OWCP’s medical adviser stated that Dr. Ashmead had not provided
sufficient rationale for his impairment rating in accordance with the A.M.A., Guides.
By decision dated October 22, 2014, OWCP granted appellant a schedule award for 36
percent impairment of his left wrist/upper extremity due to range of motion and 2 percent
impairment for the right forearm/right upper extremity due to nerve deficit.
LEGAL PRECEDENT
The schedule award provision of FECA9 and its implementing regulations10 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
2

A.M.A., Guides, 432, Figure 15-8.

3

Id. at 473, Table 15-32.

4

Id. at 437, Table 15-21.

5

Id. at 429, Table 15-18.

6

Id. at 403, Table 15-5.

7

Id. at 397, Table 15-3.

8

Id. at 473, Table 15-32.

9

5 U.S.C. §§ 8101-8193, 8107.

10

20 C.F.R. § 10.404.

3

loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.11
ANALYSIS
OWCP accepted multiple injuries as the result of a dog attack on April 29, 2009
including right shoulder dislocation, left forearm fracture, multiple bilateral leg lacerations,
multiple bilateral arm lacerations, neck lacerations, right rotator cuff tear, and secondary
renovascular hypertension.
The A.M.A., Guides generally provide for impairment values of the upper extremities to
be calculated using the diagnosis-based impairment method.12 On June 24, 2009 appellant
underwent a right shoulder arthroscopy, labral repair, rotator cuff repair, and hemiarthroplasty.
Appellant was later evaluated by Dr. Ashmead on October 2, 2011. Utilizing the A.M.A.
Guides, he opined “that given all factors considered” appellant’s condition would support a 3
percent impairment to the right upper extremity referable to sensory losses, and a 20 percent
permanent impairment to the left upper extremity on the basis of limited arthrodesis with a
profound loss of wrist mobility.
Subsequently, on August 31, 2012 OWCP’s medical adviser reviewed the findings of
Dr. Ashmead. OWCP’s medical adviser found a moderate sensory deficit and assigned a default
CDX as class 1 impairment of the right extremity corresponding to a two percent impairment of
the right upper extremity. This corresponded with page 429, Table 15-18 a “mild” impairment
of the peripheral nerve. With respect to the left, he found that, according to page 403, Table 15-5
for a history of shoulder joint dislocation with no residual finding, with surgical treatment he
assigned a class 0 with no residual impairment. For a surgical fusion for the bones involved
using page 397, Table 15-3 he referred to page 47, Table 15-32. Doing so, he found that 30
degrees of wrist extension corresponds to 3 percent impairment, 10 degrees of flexion
corresponds to 9 percent impairment, 5 degrees of ulnar deviation to 12 percent impairment, and
5 degrees of radial deviation to 12 percent, equaling a sum of 36 percent impairment to the left
upper extremity.
OWCP’s medical adviser indicated that Dr. Ashmead had not provided a rationale in the
A.M.A., Guides for his impairment assignment.
11

For new decisions issued after May 1, 2009 OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); and Part 3 -- Medical, Schedule Awards, Chapter
3.700, Exhibit 1 (January 2010).
12

A.M.A., Guides, 385, Chapter 15.1, Principles of Assessment.

4

The Board finds that OWCP’s medical adviser represents the weight of the medical
evidence. It is appellant’s burden of proof to establish an increased schedule award.13 The
evidence of record given the absence of rationale by appellant’s treating physician does not
establish more than 36 percent impairment to his left upper extremity and a 2 percent impairment
of his right upper extremity.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.14
CONCLUSION
The Board finds that appellant has not established more than 36 percent impairment to his
left upper extremity and a 2 percent impairment of his right upper extremity for which he
received a schedule award for permanent impairment to his right lower extremity.
ORDER
IT IS HEREBY ORDERED THAT the October 22, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.15
Issued: September 23, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees' Compensation Appeals Board

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

13

Edward W. Spohr, 54 ECAB 806, 810 (2003).

14

See Linda T. Brown, 51 ECAB 115 (1999).

15

James A. Haynes, Alternate Judge, participated in the original decision but was no longer a member
of the Board effective November 16, 2015.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.R., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND, Norfolk, VA, Employer
__________________________________________

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

Docket No. 16-0606
Issued: June 3, 2016

Case Submitted on the Record

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

JURISDICTION
On February 10, 2016 appellant, through counsel, filed a timely appeal from an
August 19, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant met his burden of proof to establish an injury causally
related to the November 23, 2014 employment incident.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following issuance of OWCP’s August 19, 2015 decision, appellant submitted new
evidence to OWCP. The Board is precluded from reviewing evidence which was not before OWCP at the time it
issued its final decision. Thus, the Board may not review this evidence on appeal. See 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
On December 11, 2014 appellant, then a 59-year-old first assistant engineer, filed a
traumatic injury claim (Form CA-1) alleging that on November 23, 2014 he experienced a
sudden wrenching in his low back as a result of slipping on fuel oil that had spilled on a deck at
work. He stated that this caused nerve pinching and subsequent pain in his right side, hip, back
of the thigh, loss of strength in his left knee, toe dragging, and difficulty with sleep, sitting, and
standing. Appellant stopped work on November 25, 2014.
Appellant submitted medical records from the employing establishment’s health unit. A
November 24, 2014 medical repatriation message contained an illegible signature and diagnosed
sciatica.
In a medical summary form also dated November 24, 2014, Dr. Paul E. Zakowich, an
employing establishment physician, noted that appellant complained of lumbar back pain
radiating down the leg. He provided examination findings and diagnosed low back (lumbar)
pain radiating down the leg, sciatica, and obesity. Dr. Zakowich concluded that appellant was
not fit to perform his ship duties due to pain which prevented him from lifting, crawling, or
kneeling.
In a December 15, 2014 industrial work status report, Dr. Peter B.T. Lum, a Boardcertified physiatrist, noted November 23, 2014 as the date of injury. He diagnosed lumbar
radiculopathy, lumbosacral joint sprain, lumbar muscle strain, and neck sprain. Dr. Lum placed
appellant off work through January 9, 2015 due to incapacitating injury or pain. In a physical
rehabilitation prescription dated December 15, 2014, he ordered physical therapy and
massage/manual therapy to treat appellant’s previously diagnosed conditions and assessment of
neck muscle strain and lumbosacral vertebral subluxation at L5-S1.
The employing establishment controverted the claim. A supervisor’s January 2, 2015
statement indicated that appellant had been treated for a chronic condition and did not inform the
supervisor about the alleged incident until several weeks later when he left his ship and filed a
Form CA-1.
By letter dated January 14, 2015, OWCP notified appellant of the deficiencies of his
claim and afforded him 30 days to submit additional medical and factual evidence.
In a January 14, 2015 narrative statement, appellant described the November 23, 2014
incident. At the time of injury, he was walking around the engine room supervising maintenance
jobs. Appellant stepped and slipped on fuel that had leaked from an engine. Third assistant
engineer, Ola A. Lassley, heard his cry and asked if he needed assistance. Appellant waved him
off and cleaned up the fuel oil. Although he was in considerable pain, he felt that he could walk
it off. Appellant completed his daily routine by the close of business. Since he did not see his
supervisor, George A. Bentley, IV, during the day, he did not mention his injury on that day.
Appellant did not have an opportunity to mention his injury to Mr. Bentley on the next morning
because he had a previously arranged appointment for a physical examination. He was examined
by Dr. Zakowich who diagnosed sciatica and found him unfit for duty. Dr. Zakowich attempted
to call Ariel Quicho, a medical services officer, but could not reach him. When appellant

2

returned to his ship, he informed Mr. Quicho about his injury and intent to file a Form CA-1.
Mr. Quicho told him that he was being paid off the ship due to his work status. Appellant
presumed that Mr. Quicho would relay this information to Mr. Bentley. He left the ship as
instructed and dedicated the remainder of the day to seeking medical attention, transportation,
and nearby lodging because he was not comfortable with flying in excess of 10 hours in his
current condition. Appellant was treated by Dr. James H. Pardis, a chiropractor, on a daily basis
for approximately 10 days. He subsequently flew home and sought medical treatment from
Dr. Lum. Appellant believed that his low back injury was a precursor to his cervical pain. He
stated that he had no other type of injury on or off duty or any prior symptoms.
In a December 15, 2014 cervical x-ray report, Dr. John H. Sanico, a Board-certified
radiologist, noted no acute osseous injury. Degenerative changes were present. In a
December 15, 2014 lumbosacral spine x-ray report, Dr. Sanico also found no acute osseous
injury. He found minimal retrolisthesis at L2-3 and L4-5 and degenerative changes.
In a December 19, 2014 report, appellant’s physical therapist provided a history that on
November 23, 2014 appellant injured his back when he slipped and fell. She provided
examination findings, assessed appellant’s condition, and addressed his treatment plan.
In reports and prescriptions, Dr. Lum reiterated his prior diagnoses of lumbar
radiculopathy, lumbosacral joint sprain, lumbar muscle strain, neck sprain, neck muscle strain,
lumbosacral vertebral subluxation at L5-S1, and cervical vertebral subluxation. In a
December 15, 2014 progress note, he provided a history that appellant slipped in an engine room
at work, landed on his left knee, and held himself up on engine parts. Dr. Lum also provided his
medical and occupational history, reviewed cervical and lumbar x-ray results, and reported
examination findings. He opined that based on appellant’s history, mechanism of injury, and his
examination, appellant’s injury was more than likely caused by the alleged work injury and,
therefore, he sustained an industrial-related injury. In a December 19, 2014 report and an
undated physical rehabilitation prescription, Dr. Lum ordered physical therapy and massage/
manual therapy to treat appellant’s diagnosed lumbar and neck conditions. In a January 27, 2015
industrial work status report, he noted diagnoses and placed appellant off work through
February 27, 2015 due to incapacitating injury or pain. In an undated attending physician’s
report (Form CA-20), Dr. Lum reiterated appellant’s history of injury. He checked a box marked
“yes” as to whether the diagnosed lumbar and cervical conditions were caused or aggravated by
work activity. Dr. Lum advised that appellant was totally disabled from December 15, 2014
through February 27, 2015.
By decision dated February 20, 2015, OWCP denied appellant’s claim, finding that he
did not establish a factual basis for his claim and had not provided medical evidence sufficient to
establish that the November 23, 2014 incident caused a diagnosed medical condition.
On March 25, 2015 appellant requested a review of the written record by an OWCP
hearing representative.
In progress notes dated January 27 to June 17, 2015, Dr. Lum reiterated appellant’s
history of injury, his lumbar and cervical diagnoses, and his opinion that these conditions were
more than likely caused by the employment incident. In a February 12, 2015 Form CA-20

3

report, he checked a box marked “yes” as to whether the diagnosed conditions were caused or
aggravated by work activity. Dr. Lum found appellant totally disabled from December 15, 2014
to January 19, 2015. In a March 9, 2015 work status report, he advised that appellant could
perform modified activity through April 17, 2015. On March 17, 2015 Dr. Lum opined that
appellant sustained lumbar and cervical spine injuries due to the November 23, 2014 incident. In
work status reports dated April 6 and June 17, 2015, he placed appellant off work on intermittent
dates from April 6 to July 24, 2015 due to incapacitating injury or pain.
In a March 3, 2015 letter, Dr. Zakowich advised that appellant was examined on
November 24, 2014 and that he complained of having intense lumbar back pain radiating down
his leg. According to appellant, his back pain resulted from an unfortunate slip on the previous
day. Dr. Zakowich diagnosed sciatica and declared him unfit for duty to work as a first assistant
engineer, which involved kneeling, crouching, and lifting on a ship, due to pain.
In a March 11, 2015 letter, Dr. Pardis certified that appellant had chiropractic sessions
from December 1 to 10, 2014 for spinal injuries suffered when he slipped at work on
November 23, 2014.
By letter dated March 19, 2015, Dr. Joseph G. Morelli, a chiropractor, provided a history
that on November 23, 2014 appellant slipped and fell on engine fuel oil while working on a
military vessel. He noted his lower back, right leg, and neck complaints. Dr. Morelli provided
appellant’s medical, social and family background. He reported findings on examination and
found that appellant suffered from a significant sprain/strain syndrome of the spine. The most
significant symptomatic area was the thoracolumbar/lumbopelvic spines and to a lesser extent
the cervicothoracic spine. Appellant had radicular-like symptoms throughout the right sciatic
trajectory, most notably through the calf. Dr. Morelli ruled out lumbar disc herniation. He
indicated that appellant presented with significant muscle spasms in the thoracolumbar
paraspinal musculature and multiple spinal segmental dysfunctions in the lumbosacral,
thoracolumbar, and cervicothoracic spines. Dr. Morelli expected him to continue to be totally
disabled for the next 60 to 90 days depending on his response to care.
In progress notes March 18 and April 1 and 4, 2015, appellant’s physical therapists
addressed the treatment of his lumbar and cervical conditions.
In a July 16, 2015 progress note, Dr. Mark D. Shaieb, a Board-certified orthopedic
surgeon, provided a history that appellant fell on his right knee and twisted his leg. He reported
findings on physical examination and assessed obesity and mild-to-moderate degenerative
arthritis in the patellofemoral and medial compartment with reported locking.
In an undated witness statement, Coworker Lassley related that at approximately 10:30
a.m. on November 23, 2014 he heard a cry of pain, surprise, or both while cleaning a ship. He
left his task to investigate and found appellant on the deck with one leg out in front of him and
the other leg behind him. Appellant looked to be in pain and in an uncomfortable position.
Coworker Lassley offered to help him get up, but he motioned that he would be alright.
In an August 19, 2015 decision, an OWCP hearing representative affirmed the
February 20, 2015 denial decision as modified. She found that appellant had established that the

4

November 23, 2014 incident occurred as alleged, but he had not established that the employment
incident caused a diagnosed medical condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence3 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability for work for which he or she claims compensation is causally
related to that employment injury.4
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.5
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he actually experienced the employment incident at
the time, place, and in the manner alleged.6
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.7 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.8 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.9
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that he
sustained a traumatic injury caused by the November 23, 2014 employment incident. Appellant
failed to submit sufficient medical evidence to establish that he had a back injury causally related
to the accepted employment incident.
Appellant submitted series of reports from Dr. Lum. In his March 17, 2015 report,
Dr. Lum opined that appellant sustained lumbar and cervical spine injuries due to the accepted
November 23, 2014 employment incident. His report is unsupported by rationale and is
3

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

4

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

5

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

6

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

7

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(ee), 10.5(q)
(traumatic injury and occupational disease defined, respectively).
8

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

9

Kathryn Haggerty, 45 ECAB 383, 389 (1994).

5

conclusory. Medical opinions which contain no rationale or explanation are of little probative
value.10 Dr. Lum included progress notes dated December 15, 2014 to June 17, 2015 in which
he found that appellant had lumbar radiculopathy, lumbosacral joint sprain, lumbar muscle
strain, neck sprain, neck muscle strain, lumbosacral vertebral subluxation at L5-S1, and cervical
vertebral subluxation. He provided a history of the accepted November 23, 2014 employment
incident, reviewed the medical record, and reported findings on physical examination. Dr. Lum
opined that appellant sustained an injury that was more than likely caused by the accepted work
incident. The Board notes that this opinion is speculative in nature.11 Dr. Lum did not explain
how appellant’s slip at work on November 23, 2014 caused or aggravated the diagnosed
conditions.
In an undated and a February 12, 2015 Form CA-20 reports, Dr. Lum also supported
causal relationship simply by checking a box marked “yes” that appellant’s diagnosed lumbar
and cervical conditions were work related. However, the Board has held that an opinion on
causal relationship which consists only of a physician checking yes on a medical form report,
without further explanation or rationale, is of little probative value.12 Dr. Lum did not explain
the medical reasoning providing the basis for his opinion.
Other reports from Dr. Lum did not provide an opinion supporting that the diagnosed
conditions and disability were caused or aggravated by the accepted November 23, 2014 work
incident. Medical evidence that does not offer any opinion regarding the cause of an employee’s
condition is of limited probative value.13
Similarly, reports from Dr. Zakowich, Dr. Sanico, and Dr. Shaieb did not provide a
medical opinion on whether the diagnosed conditions were caused or aggravated by the accepted
employment incident. Dr. Zakowich provided appellant’s history of injury but he did not
provide a medical opinion supporting that the diagnosed conditions and disability were caused or
aggravated by the accepted November 23, 2014 employment incident. While Dr. Shaieb
reported a history of the November 23, 2014 employment incident, he offered no medical
opinion on the causal relationship between the diagnosed conditions and accepted work incident.
The remaining reports of record are of no probative value on the issue of causal
relationship. The March 11 and 9, 2015 reports from appellant’s chiropractors, Dr. Pardis and
Dr. Morelli, which addressed appellant’s history of injury, spinal condition, and treatment, are of
no probative medical value as neither chiropractor diagnosed spinal subluxation or documented
10

F.T., Docket No. 09-919 (issued December 7, 2009) (medical opinions not fortified by rationale are of
diminished probative value); Sedi L. Graham, 57 ECAB 494 (2006) (medical form reports and narrative statements
merely asserting causal relationship generally do not discharge a claimant’s burden of proof).
11

Ricky S. Storms, 52 ECAB 349 (2001) (while the opinion of a physician supporting causal relationship need not
be one of absolute medical certainty, the opinion must not be speculative or equivocal. The opinion should be
expressed in terms of a reasonable degree of medical certainty).
12

Alberta S. Williamson, 47 ECAB 569 (1996).

13

See K.W., 59 ECAB 271 (2007); A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004);
Michael E. Smith, 50 ECAB 313 (1999).

6

whether x-rays were taken.14 The reports dated December 19, 2014 to April 4, 2015 from
appellant’s physical therapists are of no probative medical value as a physical therapist is not
considered a physician as defined under FECA.15 The November 24, 2014 medical repatriation
message that contained an illegible signature and provided a diagnosis of sciatica has no
probative medical value as it is not clear whether a physician as defined under FECA prepared
the report. It is well established that medical evidence lacking proper identification is of no
probative medical value.16
Appellant has not submitted medical evidence from a physician explaining how the
November 23, 2014 work incident caused or contributed to a back injury. Therefore, the Board
finds that there is insufficient medical evidence to establish that appellant sustained a back injury
causally related to the accepted November 23, 2014 employment incident.
On appeal, counsel contends that OWCP’s August 19, 2015 decision is contrary to fact
and law. For the reasons stated above, the Board finds that counsel’s arguments are not
substantiated.
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 failed to meet his burden of proof to establish an
injury causally related to the November 23, 2014 employment incident.

14

5 U.S.C. § 8101(2). 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. See Roy L. Humphrey, 57 ECAB 238 (2005). The term physician includes chiropractors only
to the extent that their reimbursable services are limited to treatment consisting of manual manipulation of the spine
to correct a subluxation as demonstrated by x-ray to exist. See Mary A. Ceglia, 55 ECAB 626 (2004) (in assessing
the probative value of chiropractic evidence, the initial question is whether the chiropractor is a physician as defined
under 5 U.S.C. § 8101(2); a chiropractor is not considered a physician under FECA unless it is established that there
is a spinal subluxation as demonstrated by x-ray to exist).
15

5 U.S.C. § 8101(2); A.C., Docket No. 08-1453 (issued November 18, 2008).

16

C.B., Docket No. 09-2027 (issued May 12, 2010); R.M., 59 ECAB 690, 693 (2008); Thomas L. Agee, 56 ECAB
465 (2005); Richard F. Williams, 55 ECAB 343 (2004); Merton J. Sills, 39 ECAB 572 (1988).

7

ORDER
IT IS HEREBY ORDERED THAT the August 19, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 3, 2016
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Palatine, IL, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 11-1243
Issued: May 23, 2012

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On April 26, 2011 appellant filed an application for review of a November 18, 2010
decision of the Office of Workers’ Compensation Programs (OWCP), claim number xxxxxx907,
which affirmed a July 8, 2010 decision denying her claim for an occupational disease filed on
May 24, 2010.1 The appeal was docketed as number 11-1243.
The November 18, 2010 decision referenced two other back and hip injury claims filed
by appellant, claim number xxxxxx265, which was accepted for fibromyalgia involving the low
back, hips, knees, shoulders and legs;2 and claim number xxxxxx315, which was accepted for

1

Appellant alleged that she developed back and bilateral shoulder pain which she attributed to performing her
modified job since 2005. She realized her condition was related to her employment on November 17, 2005.
Appellant retired on October 31, 2009.
2

Appellant filed a claim for an occupational disease alleging that on March 13, 1998 she was exposed to cold air
from a work vent and experienced pain in her neck, back and hips.

internal derangement of the knees, bilateral hip strains, bilateral ankle sprains, bilateral foot
sprains, pelvis strain and derangement of lateral meniscus.3
The Board has duly considered the matter and notes that the case is not in posture for a
decision. While the claim before the Board, No. xxxxxx907 pertains to claim for an
occupational disease which appellant became aware of on November 17, 2005, involving back
and bilateral shoulder pain caused by prolonged walking and standing in her job as security
attendant, OWCP’s November 18, 2010 decision, as noted above, also references claims from
other injuries related to appellant’s neck, back and hips in claim No. xxxxxx265, and claim
No. xxxxxx315 in which appellant alleged that she developed derangement of the knees, bilateral
hip strains, bilateral ankle sprains, bilateral foot sprains, pelvis strain and derangement of lateral
meniscus on November 17, 2005. In the November 18, 2010 decision, an OWCP hearing
representative also noted reviewing findings in claim file numbers xxxxxx265 and xxxxxx315,4
specifically noting that on September 1, 2009 in claim No. xxxxxx265, OWCP terminated
appellant’s compensation and medical benefits for the condition of fibromyalgia and that on
July 11, 2007, in claim No. xxxxxx315, OWCP issued a loss of wage-earning capacity
determination based on the job offer of security attendant effective April 27, 2007. OWCP’s
hearing representative further noted that reports from Dr. Jacob Salomon from August 17, 2009
to July 16, 2010, advised that appellant’s current medical conditions were job related, and had
been present since the 1990’s and that she had been misdiagnosed with fibromyalgia under claim
No. xxxxxx265 and that her condition was a composition of bilateral shoulder tendinitis and
rotator cuff tears and lumbar disc disease which were attributed to her November 17, 2005 injury
in claim No. xxxxxx315.
Pursuant to OWCP procedures, OWCP has determined that cases should be combined
where correct adjudication depends on cross-referencing between files. In the instant appeal, it
appears that, for a full and fair adjudication, OWCP claims pertaining to appellant’s bilateral
shoulder tendinitis and rotator cuff tears and lumbar disc disease should be combined pursuant to
OWCP procedures.5 This will allow OWCP to consider all relevant claim files in developing
appellant’s claim. Moreover, to consider appellant’s appeal at this stage would involve a
piecemeal adjudication of the issues in this case and raise the possibility of inconsistent results.
It is the Board’s policy to avoid such an outcome.6
The case will be remanded to OWCP to combine case file numbers xxxxxx907,
xxxxxx265 and xxxxxx315. Following this and such other development as deemed necessary,
OWCP shall issue an appropriate merit decision on appellant’s claim.
3

Appellant filed an occupational disease claim alleging that she developed pain in her feet, knees, hips and ankles
due to prolonged standing and walking at work as a security attendant. She became aware of her condition on
November 17, 2005 and underwent right knee surgery on July 3, 2006.
4

The complete medical records and factual information pertaining to these claims are not in the record before the
Board.
5

Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).
6

See William T. McCracken, 33 ECAB 1197 (1982).

2

IT IS HEREBY ORDERED THAT the November 18, 2010 decision be set aside and
the matter remanded to the Office of Workers’ Compensation Programs for further proceedings
consistent with this order.
Issued: May 23, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lynn, MA, Employer
__________________________________________

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

Docket No. 07-1076
Issued: August 22, 2007

Case Submitted on the Record

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

JURISDICTION
On March 13, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decisions dated November 27, 2006 and February 26, 2007
denying appellant’s occupational disease claim. 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 met his burden of proof in establishing that he
sustained an injury in the performance of duty.
FACTUAL HISTORY
On September 3, 2006 appellant, a 47-year-old letter carrier, filed an occupational disease
claim alleging that he developed advanced degenerative arthritis as a result of federal
employment activities, including walking and climbing hills and stairs for five to seven hours per
day, six days per week. He stated that he first became aware that his condition was caused or

aggravated by his employment in December 2002, but that the pain had been tolerable with
medication until recently.1
In a statement dated July 2, 2006, appellant indicated that he began experiencing joint
pain in his right knee in October 1993, after carrying mail six days per week for seven years,
having spent six hours of “street time” per day, walking and climbing hills and stairs. He
underwent arthroscopic knee surgery on May 17, 1994. Appellant filed claims for work-related
injuries which occurred on December 5, 1994 and November 26, 2002. Both claims were
accepted for right knee sprain. In June 2005 appellant’s “knee started to really hurt.” He
expressed his belief that his job as a letter carrier for 20 years, combined with two on-the-job
right knee injuries, caused or aggravated his right knee condition to the point that a total right
knee replacement was his only option.
Appellant submitted an August 21, 2006 report from Dr. John A. Kazes, a treating
physician, who provided a diagnosis of severe degenerative arthritis of the right knee. Dr. Kazes
noted that he had treated appellant for work-related injuries in 1994 and 2002, he stated that
appellant’s advanced arthritic changes had led to a varus deformity of the knee that required knee
arthroplasty. He opined that appellant’s arthritis was “certainly aggravated,” if not caused, by
his injuries.
Appellant submitted treatment notes from Dr. Kazes for the period November 19, 1990
through April 19, 2006. On November 10, 1993 Dr. Kazes noted that appellant had experienced
progressive right knee pain, noting that his duties as a mailman required him to walk great
distances during the day. X-rays showed medial joint arthritis. On May 9, 1994 Dr. Kazes
indicated that appellant had a history of right knee pain, as a result of an injury at age 16.
Appellant underwent arthroscopic surgery for medial meniscectomy. On May 19, 2004 and
June 20, 2005 Dr. Kazes diagnosed degenerative joint disease. X-rays revealed advanced
arthritis of the right knee and examination showed a large Baker’s cyst. On February 15, 2006
appellant reported that, while at a cheerleading meet with his daughter, the pain in his right knee
became so severe that he could no longer bear weight. Dr. Kazes stated that he had a varus knee
due to severe arthritis. On April 19, 2006 he stated that appellant’s pain had progressively
worsened and that he desired a total knee replacement.
Additional medical reports submitted by appellant included a May 17, 1994 operative
report of an arthroscopy and partial medial and lateral meniscectomies performed by Dr. Kazes;
an April 18, 1994 report of a magnetic resonance imaging (MRI) scan of the right knee; and a
November 26, 2002 report from Dr. Dieter Affeln, Board-certified in the field of preventive
medicine, reflecting that appellant sustained a right knee injury at work on November 25, 2002
and was suffering from mild osteoarthritis.
By letter dated September 13, 2006, the Office informed appellant that the information
submitted was insufficient to establish his claim. The Office advised him to submit a
rationalized medical report from his physician, providing a diagnosis, history of treatment and an

1

Appellant filed two previous traumatic injury claims in December 1994 (File No. 012036978) and
November 2002 (File No. 012013002) that were accepted for right knee strain.

2

opinion with medical reasons as to how his diagnosed condition was causally related to factors of
his employment.
By decision dated November 27, 2006, the Office denied appellant’s claim, finding that
the medical evidence of record did not demonstrate that his claimed condition was causally
related to the established work-related events.
On November 28, 2006 appellant, requested reconsideration.
He submitted a
November 21, 2006 report from Dr. Kazes, who stated that appellant had suffered from
degenerative arthritis of the knees since 1993. At that time an MRI scan showed evidence of an
old tear of appellant’s anterior cruciate ligament, degenerative changes and a torn medial
meniscus. He ultimately underwent arthroscopic surgery. Appellant continued to work, bearing
weight. Dr. Kazes noted that appellant “ambulate[d] great distances and applie[d] three to five
times their body weight across the knee joint, and this exacerbated his symptoms of degenerative
arthritis of the knee.” He stated that he did not believe that appellant’s condition was caused by
his employment as a mail carrier, but opined that his many years of weight bearing with an
arthritic knee exacerbated his symptoms.
By decision dated February 26, 2007, the Office denied modification of its November 27,
2006 decision. The Office found that the medical evidence was insufficient to establish a causal
relationship between appellant’s diagnosed condition and established work-related events.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act2 has the
burden of establishing the essential elements of his claim including the fact that the individual is
an employee of the United States within the meaning of the Act, that the claim was timely filed
within the applicable time limitation period of the Act, that an injury was sustained in the
performance of duty as alleged, and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.3 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.4
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
employment factors identified by the claimant were the proximate cause of the condition for
which compensation is claimed or, stated differently, medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the claimant.
2

5 U.S.C. §§ 8101-8193.

3

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

3

The medical evidence required to establish causal relationship, generally, is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. 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 diagnosed condition and the specific employment factors
identified by the claimant.5
An award of compensation may not be based on appellant’s belief of causal relationship.
Neither the mere fact that a disease or condition manifests itself during a period of employment
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish a causal relationship.6
ANALYSIS
The Board finds that this case is not in posture for decision regarding whether appellant
sustained an injury in the performance of duty.
An employee who claims benefits under the Act has the burden of establishing the
essential elements of his or her claim. The claimant has the burden of establishing by the weight
of reliable, probative and substantial evidence that the condition for which compensation is
sought is causally related to a specific employment incident or to specific conditions of the
employment. As part of this burden, the claimant must present rationalized medical opinion
evidence, based upon a complete and accurate factual and medical background, establishing
causal relationship.7 However, it is well established that proceedings under the Act are not
adversarial in nature and, while the claimant has the burden of establishing entitlement to
compensation, the Office shares responsibility in the development of the evidence to see that
justice is done.8
Dr. Kazes opined that appellant’s work activities as a mail carrier, which included
ambulating great distances and weight bearing with an arthritic knee for many years, exacerbated
his symptoms of degenerative arthritis of the knee. Having treated appellant since 1993,
Dr. Kazes gave a complete history of appellant’s condition. He reflected an understanding of
appellant’s job requirements and the nature of his job duties. Dr. Kazes addressed results of MRI
scans and x-rays, discussed previous arthroscopic surgery and opined that appellant’s advanced
arthritic changes had led to a varus deformity of the knee that required knee arthroplasty.
5

Id.

6

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

7

See Virginia Richard, claiming as executrix of the estate of Lionel F. Richard, 53 ECAB 430 (2002); see also
Brian E. Flescher, 40 ECAB 532, 536 (1989); Ronald K. White, 37 ECAB 176, 178 (1985).
8

Phillip L. Barnes, 55 ECAB 426 (2004); see also Virginia Richard, claiming as executrix of the estate of
Lionel F. Richard, supra note 7; Dorothy L. Sidwell, 36 ECAB 699 (1985); William J. Cantrell, 34 ECAB
1233 (1993).

4

The Board notes that, while none of the reports submitted by appellant is completely
rationalized, they are consistent in indicating that he sustained a knee condition that was
aggravated by conditions of his employment. Moreover, they are not contradicted by any
substantial medical or factual evidence of record. While the reports are not sufficient to meet
appellant’s burden of proof to establish his claim, they raise an uncontroverted inference between
his claimed condition and the accepted employment factors and are sufficient to require the
Office to further develop the medical evidence and the case record.9
On remand the Office should prepare a statement of accepted facts and refer appellant,
along with his medical records, for a second opinion examination, in order to obtain a
rationalized opinion as to whether his current diagnosed condition is causally related to factors of
his employment, either directly or through aggravation, precipitation or acceleration.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether or not appellant
sustained an injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the February 26, 2007 and November 27, 2006
decisions of the Office of Workers’ Compensation Programs are set aside and remanded for
further development consistent with this decision.
Issued: August 22, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board
9

See Virginia Richard, claiming as executrix of the estate of Lionel F. Richard, supra note 7; see also Jimmy A.
Hammons, 51 ECAB 219 (1999); John J. Carlone, 41 ECAB 354 (1989).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.J., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 11-765
Issued: January 20, 2012

Case Submitted on the Record

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

JURISDICTION
On February 8, 2011 appellant, through her attorney, filed a timely appeal of the Office
of Workers’ Compensation Programs’ (OWCP) November 30, 2010 merit decision denying a
schedule award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than 11 percent impairment to each lower
extremity, for which she received schedule awards.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 In a July 20, 2010 decision, the Board
set aside an August 17, 2009 OWCP decision which found that appellant did not have more than
11 percent impairment to each lower extremity. The Board found that Dr. Jack C. Tippett, a
Board-certified orthopedic surgeon and OWCP referral physician, did not adequately explain
why he excluded impairment due to chronic pain. The Board remanded the case to OWCP to
obtain a supplemental medical report from Dr. Tippett addressing whether appellant had
impairment to her lower extremities due to sensory loss or pain under the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides). The facts
and history as set forth in the Board’s prior decision are incorporated by reference.3 The facts
relevant to the present appeal are set forth.
On September 16, 2010 OWCP was informed that Dr. Tippett no longer had a treating
practice. By letter dated October 20, 2010, it referred appellant, together with a statement of
accepted facts and the case record, to Dr. Richard T. Katz, a Board-certified physiatrist, for a
second opinion.
In a November 2, 2010 report, Dr. Katz reviewed a history of appellant’s medical
background. He noted her symptoms of chronic foot pain that she rated as 7 out of 10.
Appellant complained about arthritis, swelling and tingling in her feet. She had a hyperpronated
and pes planus foot and secondary scar tissue. Appellant could not wear hard bottom shoes,
dress shoes or heels. On physical examination of her bilateral feet, Dr. Katz reported essentially
normal findings with the exception of decreased range of motion and sensory function. He
advised that appellant reached maximum medical improvement on August 31, 2006 regarding
her Morton’s neuroma. Appellant reached maximum medical improvement on August 27, 2007
regarding her employment-related tarsal tunnel condition. She had nonspecific lower extremity
complaints. Appellant also had reduced sensory function in both lower extremities which
Dr. Katz suspected as being peripheral neuropathy. This would be corroborated by the inability
of prior electromyogram/nerve conduction studies (EMG/NCS) to obtain the medial or lateral
plantar nerve responses bilaterally. The EMG/NCS was read as consistent with tarsal tunnel
syndrome, but it was more likely consistent with mild peripheral neuropathy sensory only.
Dr. Katz stated that, since he could not prove the presence of peripheral neuropathy without
performing another EMG/NCS, he assumed the diagnosis of tarsal tunnel syndrome and lesion of
the plantar nerves was correct based on the statement of accepted facts. Under Table 16-11, he
determined that appellant had a mild problem as there was no motor involvement. Dr. Katz
further determined that she had two percent impairment each of the left and right tibial nerve
(left and right lower extremities) under Table 16-12, page 536.
2

Docket No. 10-35 (issued July 20, 2010).

3

OWCP accepted that appellant sustained bilateral plantar nerve lesions and tarsal tunnel syndrome as a result of
frequent standing and walking while working as a supervisor at the employing establishment. On February 24 and
April 21, 2006 appellant underwent surgery on her left and right lower extremities, respectively, for excision of
neuromas. On December 20, 2006 she underwent a left tarsal tunnel release. On December 10, 2007 appellant filed
a claim for a schedule award. In a May 15, 2008 decision, OWCP granted her a schedule award for 11 percent
impairment to each lower extremity. Appellant retired from the employing establishment on September 30, 2008.

2

On November 5, 2010 Dr. Daniel O. Zimmerman, an OWCP medical adviser, reviewed
the report of Dr. Katz. Although Dr. Katz did not specifically state that his impairment ratings
were based on the sixth edition of the A.M.A., Guides, it could be inferred from the tables and
page numbers he cited. Dr. Zimmerman advised that Dr. Katz’s two percent impairment rating
for each lower extremity was acceptable based on the sixth edition of the A.M.A., Guides. He
noted that Dr. Tippett’s finding that appellant had 11 percent impairment to each lower extremity
was based on range of motion limitations that affected the right and left ankles due to the
accepted tarsal tunnel syndrome condition. Dr. Zimmerman stated that both Dr. Tippett and
Dr. Katz found no residuals of Morton’s neuromas. He subtracted the 11 percent range of
motion impairment rating from the 2 percent sensory impairment rating to calculate a -9 percent
impairment rating which resulted in no additional bilateral lower extremity impairment.
In a November 30, 2010 decision, OWCP denied modification of its schedule award
decision, finding that the medical evidence was insufficient to establish that appellant had more
than 11 percent impairment to each lower extremity.
LEGAL PRECEDENT
The schedule award provision of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law 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.6 Effective May 1, 2009, OWCP adopted the
sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that
date.7
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).8 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on Functional

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. See Billy B. Scoles, 57 ECAB 258 (2005); C.M., Docket No. 09-1268 (issued January 22, 2010).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
8

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

3

History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).9
adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).10

The net

OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
proving rationale for the percentage of impairment specified.11
ANALYSIS
By decision dated July 20, 2010, the Board remanded the case for OWCP to obtain
clarification from its referral physician, Dr. Tippett, regarding appellant’s entitlement to a
schedule award beyond the 11 percent permanent impairment to each lower extremity previously
award. The Board found that he did not explain why she was not entitled to impairment due to
sensory loss or pain. On remand, OWCP discovered that Dr. Tippett no longer performed
referral examinations. Consequently, it properly referred appellant to Dr. Katz for a second
opinion.12
In a November 2, 2010 report, Dr. Katz reviewed the medical evidence and statement of
accepted facts. He set forth his examination findings which included decreased sensory function
that was due to the accepted conditions of tarsal tunnel syndrome and plantar nerve lesions.
Dr. Katz determined that appellant had a mild problem as there was no motor involvement under
Table 16-11, page 531. He concluded that she had two percent impairment of each lower
extremity under Table 16-12, page 536.
The file was then properly routed to Dr. Zimmerman, an OWCP medical adviser, for an
opinion concerning the nature or percentage of permanent impairment in accordance with the
A.M.A., Guides.13 On November 5, 2010 he utilized Dr. Katz’s findings, referenced the sixth
edition of the A.M.A., Guides and concurred with his finding that appellant had two percent
impairment to each lower extremity. Dr. Zimmerman indicated that, although Dr. Katz did not
specifically state that his impairment ratings were based on the sixth edition of the A.M.A.,
Guides, it could be inferred that they were derived from this edition based on the tables and page
numbers cited by Dr. Katz. He noted Dr. Tippett’s finding that appellant had 11 percent range of
motion impairment to each lower extremity due to the accepted tarsal tunnel syndrome condition.
Dr. Zimmerman further noted that Dr. Tippett and Dr. Katz found no residuals of Morton’s
neuromas. He subtracted the 11 percent range of motion impairment rating from the 2 percent
9

Id. at 383-419.

10

Id. at 411.

11

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
12

See Ayanle A. Hashi, 56 ECAB 234 (2004) (when OWCP refers a claimant for a second opinion evaluation and
the report does not adequately address the relevant issues, OWCP should secure an appropriate report on the
relevant issues).
13

See supra note 11.

4

sensory impairment rating to calculate a -9 percent impairment rating which resulted in no
additional bilateral lower extremity impairment.
Based on the reports from Dr. Katz and Dr. Zimmerman, which were rendered in
conformance with the applicable figures and tables of the A.M.A., Guides, the Board finds that
appellant has no more than 11 percent impairment to each lower extremity for which she
previously received schedule awards.
On appeal, appellant contends that OWCP’s decision is contrary to fact and law. As
stated, the weight of the medical evidence does not establish that appellant sustained more than
11 percent impairment to each lower extremity, for which she received a schedule award.
Dr. Katz properly applied the sixth edition of A.M.A., Guides to his clinical findings, which was
supported by Dr. Zimmerman who agreed with his impairment assessment utilizing the same
edition of the A.M.A., Guides. There is no other medical evidence of record addressing the
extent of appellant’s permanent impairment under the sixth edition of the A.M.A., Guides.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than 11 percent impairment to each lower
extremity, for which she received a schedule award.

5

ORDER
IT IS HEREBY ORDERED THAT the November 30, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 20, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

6