United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, FCI MEMPHIS,
Memphis, TN, Employer
__________________________________________

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Appearances:
Daniel DeCiccio, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 21-0301
Issued: March 3, 2022

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 December 24, 2020 appellant, through counsel, filed a timely appeal from a
December 3, 2020 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
ISSUES
The issues are: (1) whether appellant has met his burden of proof to expand the acceptance
of the claim to include additional conditions of left knee primary osteoarthritis and a right medial
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 3, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

meniscus tear causally related to the accepted August 23, 2019 employment injury; and
(2) whether OWCP abused its discretion by denying appellant’s requests for authorization of a left
knee injection and right knee surgery.
FACTUAL HISTORY
On August 23, 2019 appellant, then a 49-year-old corrections officer, filed a traumatic
injury claim (Form CA-1) alleging that on that date he sustained injuries to his knees as a result of
a partial floor cave-in while in the performance of duty. OWCP accepted the claim for bilateral
knee contusions.
In a report dated September 5, 2019, Dr. Robert H. Miller, a Board-certified orthopedic
surgeon, diagnosed bilateral knee contusions. He noted that on August 23, 2019 appellant was
walking on an elevated floor when his right leg fell through the floor. Appellant landed on his
kneecaps. Since that time, he had significant pain in both knees, left worse than right. Appellant
told Dr. Miller that he had previous intermittent pain and swelling in the left knee requiring him
to use a cane and that he had been given a cane several years prior “for preexisting knee arthritis.”
A magnetic resonance imaging (MRI) scan of the left knee obtained on September 26, 2019
demonstrated a small free edge tear in the body of the lateral meniscus and mild and moderate
patellofemoral compartment osteoarthritis.
In a follow-up report dated January 30, 2020, Dr. Miller noted that an MRI scan of the left
knee demonstrated a small free edge tear in the body of the lateral meniscus and low -grade
chondral loss in the lateral compartment. He advised that appellant should treat his arthritis with
continued therapy, anti-inflammatories, a cortisone injection, and he would attempt to obtain
approval for a hyaluronic acid injection.
An MRI scan of appellant’s right knee obtained on February 13, 2020 demonstrated a
horizontal tear of the posterior horn and body of the medial meniscus and mild tricompartmental
osteoarthritis. It was also noted that the medial collateral ligament was thickened proximally
consistent with a remote injury.
In a follow-up report dated March 5, 2020, Dr. Miller noted that the MRI scan of
appellant’s right knee demonstrated a horizontal tear of the posterior horn body of the medial
meniscus and mild tricompartmental osteoarthritis. He recommended right knee surgery and a
hyaluronic acid injection to the left knee, to which appellant agreed.
On March 9, 2020 appellant requested authorization for right knee surgery.
In a development letter dated March 11, 2020, OWCP advised appellant that, at that time,
the proposed right knee surgery could not be approved. It found that the request for surgery did
not match his approved condition of right knee contusion. OWCP requested that appellant submit
a narrative report from his physician explaining how the new diagnosis of right knee meniscus tear
was causally related to the accepted traumatic injury. It afforded him 30 days to submit the
requested evidence.
On April 2, 2020 appellant requested authorization for a left knee injection.
2

In a development letter dated April 8, 2020, OWCP advised appellant that, at that time the
proposed left knee injections could not be approved. It found that the request for a left knee
injection did not match his approved condition of left knee contusion. OWCP requested that
appellant submit a narrative report from his physician explaining how the new diagnosis of left
knee osteoarthritis was causally related to the accepted traumatic injury. It afforded him 30 days
to submit the requested evidence. No response was received within the time allotted.
By decision dated May 18, 2020, OWCP denied appellant’s request to expand the
acceptance of his claim to include left knee primary osteoarthritis as causally related to the
accepted August 23, 2019 employment injury and denied his request for authorization for a left
knee injection.
By separate decision also dated May 18, 2020, OWCP denied appellant’s request to expand
the acceptance of his claim to include a right knee medial meniscus tear as causally related to the
accepted employment injury and denied his request for authorization for right knee surgery.
On June 2, 2020 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
On October 5, 2020, counsel submitted the results of a May 12, 2015 MRI scan, which
demonstrated minimal lateral compartment chondromalacia and minimal chondromalacia of the
patella and minimal signal in the posterior horn of the medial meniscus, likely reflecting
intrasubstance degeneration. He also enclosed a note dated September 30, 2020 from Dr. Miller
in which he described the results of the May 12, 2015 MRI scan.
A hearing was held on October 8, 2020. The hearing representative afforded appellant 30
days to submit additional medical evidence.
In a narrative report dated November 5, 2020, Dr. Miller noted that appellant’s claim was
currently accepted for bilateral knee contusions. He opined that the acceptance of the claim should
be expanded to include an aggravation of left knee primary osteoarthritis and a left la teral meniscus
tear, as well as a right horizontal tear of the posterior horn and body of the medial meniscus, which
was “possibly caused by the accident” and right knee osteoarthritis “possibly aggravated by the
accident.” Dr. Miller noted that, when appellant fell on August 23, 2019, he twisted his knees and
slammed into the floor, which due to appellant’s height and weight could have created sufficient
torque and force to tear the menisci in his knees and possibly aggravate his preexisting
degenerative arthritis. He noted that an MRI scan from 2015 did not show any tears in the menisci,
though there was a minimal signal in the posterior horn of the right medial meniscus. Dr. Miller
noted that there were no injuries between the 2015 MRI scan and the August 23, 2019 incident,
and no injuries after that incident. He stated that medical literature supported that trauma like the
type appellant experienced could make preexisting arthritis worse. Dr. Miller opined that the left
knee injections were necessary to avoid surgery.
By decision dated December 3, 2020, the hearing representative affirmed the May 18, 2020
decisions.

3

LEGAL PRECEDENT -- ISSUE 1
When an employee claims that a condition not accepted or approved by OWCP was due to
an employment injury, he or she bears the burden of proof to establish that the condition is causally
related to the employment injury.3
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 4 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and an accepted injury must be based on a complete factual and
medical background. 5 Additionally, the physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale which, explains
the nature of the relationship between the diagnosed condition and the accepted employment
injury.6
Section 8103 of FECA provides that the United States shall furnish to an employee who is
injured while in the performance of duty, the services, appliances, and supplies prescribed or
recommended by a qualified physician, which OWCP considers likely to cure, give relief, reduce
the degree, or the period of disability, or aid in lessening the amount of the monthly compensation. 7
In interpreting this section of FECA, the Board has recognized that OWCP has broad discretion in
approving services provided under FECA. 8 OWCP has the general objective of ensuring that an
employee recovers from his or her injury to the fullest extent possible in the shortest amount of
time. It, therefore, has broad administrative discretion in choosing means to achieve this goal.
The only limitation on OWCP’s authority is that of reasonableness.9 Abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment, or
actions taken which are contrary to both logic and probable deductions from established facts. It
is not enough to merely show that the evidence could be construed so as to produce a contrary
factual conclusion.10

3

A.A., Docket No. 19-1165 (issued December 16, 2019); M.B., Docket No. 19-0485 (issued August 22, 2019); R.J.,
Docket No. 17-1365 (issued May 8, 2019); Jaja K. Asaramo, 55 ECAB 200 (2004).
4

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

5

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

6

Id.

7

5 U.S.C. § 8103.

8

M.C., Docket No. 17-1615 (issued August 23, 2018).

9

Id.

10

Id.

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ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to expand the acceptance of
the claim to include additional conditions of left knee primary osteoarthritis and a right medial
meniscus tear as causally related to the accepted August 23, 2019 employment injury.
In his September 5, 2019 report, Dr. Miller diagnosed bilateral knee contusions, and noted
that appellant had related he had been given a cane some years prior for preexisting left knee
arthritis. This report merely diagnosed the accepted bilateral knee contusions, but did not offer
Dr. Miller’s diagnosis of any other bilateral knee conditions. The Board has held that a medical
report lacking a firm diagnosis and a rationalized medical opinion that the medical condition is
causally related to the employment incident is of no probative value. 11 Therefore, Dr. Miller’s
report is insufficient to establish appellant’s request for expansion of the claim.
In a narrative report dated November 5, 2020, Dr. Miller noted that appellant’s claim was
currently approved for bilateral knee contusions. He opined that the acceptance of the case should
be expanded to include an aggravation of left knee primary osteoarthritis and a left lateral meniscus
tear, as well as a right horizontal tear of the posterior horn and body of the medial meniscus, which
was “possibly caused by the accident” and right knee osteoarthritis “possibly aggravated by the
accident.” Dr. Miller noted that, when appellant fell on August 23, 2019, he twisted his knees and
slammed into the floor, which due to appellant’s height and weight could have created sufficient
torque and force to tear the menisci in his knees and possibly aggravate his preexisting
degenerative arthritis. He noted that an MRI scan from 2015 did not show any tears in the menisci,
though there was a minimal signal in the posterior horn of the right medial meniscus. Dr. Miller
noted that there were no injuries between the 2015 MRI scan and the August 23, 2019 incident,
and no injuries after that incident. He stated that medical literature supported that trauma like the
type appellant experienced could make preexisting arthritis worse. Dr. Miller opined that the left
knee injections were necessary and could avoid surgery. The Board finds that Dr. Miller’s
November 5, 2020 report is insufficient to establish appellant’s request for expansion of the claim.
Dr. Miller’s explanation that appellant’s left knee osteoarthritis and right knee meniscal tear were
“possibly” secondary to the August 23, 2019 incident is speculative in nature. The Board has held
that medical opinions that are speculative or equivocal are of diminished probative value. 12 While
Dr. Miller provided a possible explanation as to how the incident of August 23, 2019 caused or
aggravated appellant’s left knee primary osteoarthritis and a right medial meniscus tear, his
opinion was couched in speculative terms, and did not fully address appellant’s history and
preexisting bilateral knee conditions. In any case where a preexisting condition involving the same
part of the body is present and the issue of causal relationship, therefore, involves aggravation,
acceleration or precipitation, the physician must provide a rationalized medical opinion that
differentiates between the effects of the work-related injury or disease and the preexisting

11

J.P., Docket No. 20-0381 (issued July 28, 2020); R.L., Docket No. 20-0284 (issued June 30, 2020).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.5(c)(3); D.S., Docket No. 20-0384 (issued October 8, 2020); H.A., Docket No. 18-1455 (issued
August 23, 2019).

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condition.13 In addition, while Dr. Miller noted that medical literature supported a finding that
appellant’s diagnosed conditions could have been caused by the type of trauma he experienced,
the Board has held that reliance on medical literature has little probative value in resolving medical
questions unless a physician shows the applicability of the general medical principles discussed in
the articles to the specific factual situation at issue in the case. 14 Therefore, Dr. Miller’s
November 5, 2020 report is insufficient to meet appellant’s burden of proof. 15
OWCP also received MRI scan reports. The Board, however, has held that diagnostic tests,
standing alone, lack probative value as they do not provide a physician’s opinion on whether there
is a causal relationship between appellant’s accepted employment incident/exposure and a
diagnosed condition.16 This evidence is, therefore, insufficient to establish expansion of his claim.
As the evidence of record is insufficient to establish causal relationship between his
additional diagnosed medical conditions and the accepted employment injury, appellant has not
met his burden of proof to expand the acceptance of his claim.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA 17 provides that the United States shall furnish to an employee
who is injured while in the performance of duty, the services, appliances, and supplies prescribed
by or recommended by a qualified physician, which OWCP considers likely to cure, give relief,
reduce the degree or the period of disability, or aid in lessening the amount of the monthly
compensation. 18 While OWCP is obligated to pay for treatment of employment-related conditions,
the employee has the burden of proof to establish that the expenditure is incurred for treatment of
the effects of an employment-related injury or condition. 19
Section 10.310(a) of OWCP’s implementing regulations provide that an employee is
entitled to receive all medical services, appliances, or supplies which a qualified physician
prescribes or recommends and which OWCP considers necessary to treat the work-related injury.20
13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3e (January 2013);
M.B., Docket No. 20-1275 (issued January 29, 2021); see R.D., Docket No. 18-1551 (issued March 1, 2019).
14

S.J., Docket No. 20-0896 (issued January 11, 2021); R.G., Docket No. 18-0917 (issued March 9, 2020); T.S.,
Docket No. 18-1518 (issued April 17, 2019); K.U., Docket No. 15-1771 (issued August 26, 2016); Roger D. Payne,
55 ECAB 535 (2004).
15

See C.B., Docket No. 20-0464 (issued July 21, 2020).

16

See P.A., Docket No. 18-0559 (issued January 29, 2020); A.P., Docket No. 18-1690 (issued December 12, 2019);
R.M., Docket No. 18-0976 (issued January 3, 2019).
17

Supra note 1 at § 8103(a).

18

Id.; see D.S., Docket No. 18-0353 (issued May 18, 2020); L.D., 59 ECAB 648 (2008); Thomas W. Stevens, 50
ECAB 288 (1999).
19

M.P., Docket No. 19-1557 (issued February 24, 2020); M.B., 58 ECAB 588 (2007).

20

20 C.F.R. § 10.310(a); see D.W., Docket No. 19-0402 (issued November 13, 2019).

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In interpreting section 8103 of FECA, the Board has recognized that OWCP has broad
discretion in approving services provided, with the only limitation on OWCP’s authority being
that of reasonableness.21 OWCP has the general objective of ensuring that an employee recovers
from his or her injury to the fullest extent possible, in the shortest amount of time. It therefore has
broad administrative discretion in choosing means to achieve this goal. 22
Abuse of discretion is shown through proof of manifest error, clearly unreasonable exercise
of judgment, or actions taken which are contrary to both logic and probable deductions from
established facts. It is not enough to merely show that the evidence could be construed so as to
produce a contrary factual conclusion.23
ANALYSIS -- ISSUE 2
The Board finds that OWCP did not abuse its discretion by denying appellant’s request
for authorization for a left knee injection and right knee surgery.
On March 9, 2020 appellant requested authorization for right knee surgery. On April 2,
2020 appellant requested authorization for a left knee injection.
In a January 30, 2020 report, Dr. Miller noted that an MRI scan of the left knee
demonstrated a small free edge tear in the body of the lateral meniscus and low-grade chondral
loss in the lateral compartment. He advised that appellant should treat his arthritis with continued
therapy, anti-inflammatories, a cortisone injection, and he would attempt to obtain approval for a
hyaluronic acid injection.
In a follow-up report dated March 5, 2020, Dr. Miller noted that the MRI scan of
appellant’s right knee demonstrated a horizontal tear of the posterior horn body of the medial
meniscus and mild tricompartmental osteoarthritis. He recommended right knee surgery and a
hyaluronic acid injection to the left knee, to which appellant agreed.
In a narrative report dated November 5, 2020, Dr. Miller opined that the left knee
injections were necessary to avoid surgery.
As noted, the only restriction on OWCP’s authority to authorize medical treatment is one
of reasonableness. 24 In the instant case, appellant did not submit evidence to support that the
requested left knee injection and right knee surgery were medically necessary to treat his accepted
conditions. The Board thus finds that OWCP did not abuse its discretion by denying her request
21

B.I., Docket No. 18-0988 (issued March 13, 2020); see also Daniel J. Perea, 42 ECAB 214, 221 (1990) (holding
that abuse of discretion by OWCP is generally shown through proof of manifest error, clearly unreasonable exercise
of judgment, or administrative actions which are contrary to both logic, and probable deductions from established
facts).
22

D.S., Docket No. 18-0353 (issued May 18, 2020).

23

Id.; P.L., Docket No. 18-0260 (issued April 14, 2020); L.W., 59 ECAB 471 (2008).

24

Supra note 22; see also A.W., Docket No. 14-0708 (issued January 2, 2015).

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for authorization for physical therapy. 25 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 his burden of proof to expand the acceptance of
the claim to include additional conditions of left knee primary osteoarthritis a nd a right medial
meniscus tear as causally related to the accepted August 23, 2019 employment injury. The Board
further finds that OWCP did not abuse its discretion by denying appellant’s requests for
authorization of a left knee injection and right knee surgery.
ORDER
IT IS HEREBY ORDERED THAT the December 3, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 3, 2022
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

25

D.C., Docket No. 18-0080 (issued May 22, 2018); B.J., Docket No. 17-1825 (issued February 23, 2018).

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE
Plainfield, IL, Employer
__________________________________________

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

Docket No. 18-0777
Issued: November 13, 2018

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 28, 2018 appellant, through counsel, filed a timely appeal from a February 1,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish more than five
percent permanent impairment of her right lower extremity, for which she previously received
schedule award compensation.
FACTUAL HISTORY
On December 9, 2009 appellant, then a 46-year-old rural carrier associate, filed an
occupational disease claim (Form CA-2) alleging that she sustained a right knee injury due to
“repetitive motion” at work. She noted that she first became aware of her claimed condition in
September 2009 and realized its relationship to her federal employment on December 8, 2009.
Appellant did not stop work.
On January 6, 2010 OWCP accepted the claim for right knee medial meniscus tear. It
authorized right knee arthroscopy with debridement of medial and lateral patellofemoral
compartment chondromalacia performed on January 21, 2011, and right knee arthroscopy with
debridement of distal medial femoral condyle chondromalacia and patellofemoral compartment
chondromalacia and partial medial meniscectomy performed on April 21, 2014. Both surgeries
were performed by Dr. William J. Farrell, a Board-certified orthopedic surgeon.
In a letter dated July 5, 2016, appellant, through counsel, requested a schedule award.
OWCP received a June 8, 2016 medical report from Dr. Neil Allen, a physician Board-certified in
internal medicine and neurology, in which he found that appellant had 26 percent permanent
impairment of the right lower extremity pursuant to the sixth edition of the American Medical
Association, Guides to the Evaluation of permanent Impairment (A.M.A., Guides).3 Dr. Allen
diagnosed grade 3 chondromalacia of the weight-bearing surface of the femur. He utilized the
diagnosis-based impairment (DBI) method to determine impairment and found 26 percent right
lower extremity permanent impairment under the sixth edition of the A.M.A., Guides. Under
Table 16-3, Knee Regional Grid, page 511 of the A.M.A., Guides, Dr. Allen identified the
diagnosis of grade 3 chondromalacia of the weight-bearing of the femur as a class 3 impairment
with a default value of 30 percent. He assigned a grade modifier 2 for functional history (GMFH)
under Table 16-6, page 516 due to appellant’s standardized score of 60 on a lower limb
questionnaire, antalgic gait, and regular use of knee orthosis. Under Table 16-7, page 517,
Dr. Allen assigned a grade modifier 2 for physical examination (GMPE) due to moderate palpatory
ﬁndings, consistently documented with observed abnormalities, grade 1 Lachman’s, stability, no
motion deﬁcit per page 549, negative for deformity compared to unaffected side, positive for
muscle atrophy, and 1.0 centimeters at the thigh. Under Table 16-8, page 519, he assigned a grade
modifier 3 for clinical studies (GMCS) for several reasons. A right knee magnetic resonance
imaging (MRI) scan revealed grade 2 to 3 tricompartmental chondrosis, most advanced in the
patellofemoral and medial compartments, postoperative changes related to partial medial
meniscectomy, and no evidence of recurrent meniscal tear, and moderate-sized joint effusion and
Baker’s cyst. An operative report revealed grade 3 chondromalacia of the weight-bearing region
of the distal femur and within the patellofemoral compartment. Another right knee MRI scan
3

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

2

revealed a small joint effusion with tiny Baker’s cyst, an abnormal linear signal in the posterior
horn of the medial meniscus, which probably represented degenerative grade 2 signal, an
intrameniscal tear with limited surface extension could not be totally excluded, findings consistent
with popliteus strain, and mild chondromalacia patella. Using the net adjustment formula of
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), Dr. Allen calculated that appellant had a net
adjustment of (2-3) + (2-3) + (3-3) = -2, which equated to a grade C impairment (30 percent default
value), which was reduced to a grade A impairment, 26 percent permanent impairment of the right
lower extremity. He advised that appellant had reached maximum medical improvement (MMI)
as of the date of his evaluation.
On August 17, 2016 OWCP received appellant’s claim for a schedule award (Form CA-7)
dated June 24, 2016.
On August 22, 2016 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as
an OWCP district medical adviser (DMA), reviewed a statement of accepted facts (SOAF) and the
medical record, including Dr. Allen’s June 8, 2016 report. He related that appellant had reached
MMI on June 8, 2016, the date of Dr. Allen’s evaluation, however he disagreed with Dr. Allen’s
impairment rating. Dr. Harris determined that, under Table 16-3 on page 511 of the sixth edition
of A.M.A., Guides, appellant’s diagnosis of arthroscopic evidence of grade 3 chondromalacia of
the patellofemoral joint represented a class 1 diagnosis with a default value of E, resulting in five
percent permanent impairment of the right lower extremity. He noted that, Dr. Allen determined
that appellant had 26 percent right lower extremity permanent impairment due to residual problems
with post-traumatic chondromalacia of the patellofemoral joint. Dr. Harris further noted that,
Dr. Allen’s finding was based on arthroscopic evidence of grade 3 chondromalacia of the
patellofemoral joint. He advised that the DBI impairment method for patellofemoral arthritis
required documented joint space narrowing before the impairment could be rated beyond a class
1, five percent permanent impairment. However, Dr. Allen had not provided any findings
substantiating joint space narrowing.
By decision dated May 17, 2017, OWCP granted appellant a schedule award for five
percent permanent impairment of the right lower extremity. The award ran from June 8 to
September 16, 2016, for a total of 14.4 weeks of compensation.
In a letter received on May 30, 2017, appellant, through counsel, requested a telephone
hearing before an OWCP hearing representative, which was held on November 17, 2017.
By decision dated February 1, 2018, an OWCP hearing representative affirmed the
May 17, 2017 decision. He found that the weight of the medical evidence rested with the opinion
of Dr. Harris and supported a finding that appellant had five percent permanent impairment of the
right lower extremity.

3

LEGAL PRECEDENT
The schedule award provisions of FECA4 and its implementing federal regulations5 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members, functions, and organs of the body.
FECA, however, does not specify the manner by which the percentage loss of a member, function,
or organ shall be determined. To ensure consistent results and equal justice for all claimants under
the law, good administrative practice requires the use of uniform standards applicable to all
claimants.6 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.7 As of May 1, 2009, schedule awards are
determined in accordance with the sixth edition of the A.M.A., Guides (2009).8 The Board has
approved the use by OWCP of the A.M.A., Guides for the purpose of determining the percentage
loss of use of a member of the body for schedule award purposes.9 It is well established that in
determining the amount of a schedule award for a member of the body that sustained an
employment-related permanent impairment, preexisting impairments are to be included.10
In determining impairment for the lower extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the lower extremity
to be rated. With respect to the knee, the relevant portion of the leg for the present case, reference
is made to Table 16-3 (Knee Regional Grid) beginning on page 509.11 After the class of diagnosis
(CDX) is determined from the Knee Regional Grid (including identification of a default grade
value), the net adjustment formula is applied using the grade modifier for functional history
(GMFH), grade modifier for physical examination (GMPE), and grade modifier for clinical studies
(GMCS). The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).12
Under Chapter 2.3, evaluators are directed to provide reasons for their impairment rating choices,
including choices of diagnoses from regional grids and calculations of modifier scores.13

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

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

7

Id.

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5a (March 2017); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
9

Isidoro Rivera, 12 ECAB 348 (1961).

10
See Dale B. Larson, 41 ECAB 481, 490 (1990); supra note 8 at Part 3 -- Medical, Schedule Awards, Chapter
3.700.3.a.3 (January 2010). This portion of OWCP procedures provides that the impairment rating of a given
scheduled member should include any preexisting permanent impairment of the same member or function.
11

See A.M.A., Guides 509-11 (6th ed. 2009).

12

Id. at 515-22.

13

Id. at 23-28.

4

In some instances, OWCP’s medical adviser’s opinion can constitute the weight of the
medical evidence.14 This occurs in schedule award cases where an opinion on the percentage of
permanent impairment and a description of physical findings is on file from an examining
physician, but the percentage estimate by this physician is not based on the A.M.A., Guides.15 In
this instance, a detailed opinion by OWCP’s medical adviser may constitute the weight of the
medical evidence as long as the medical adviser explains his or her opinion, shows values and
computation of impairment based on the A.M.A., Guides, and considers each of the reported
findings of impairment, his or her opinion may constitute the weight.16 If the attending physician
misapplied the A.M.A., Guides, no conflict would exist because the attending physician’s report
would have diminished probative value and the opinion of OWCP’s medical adviser would
constitute the weight of medical opinion.17
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish more than five
percent permanent impairment of the right lower extremity for which she previously received
schedule award compensation.
OWCP accepted appellant’s claim for right knee medial meniscus tear. On January 21,
2011 appellant underwent an authorized right knee arthroscopy with debridement of medial and
lateral patellofemoral compartment chondromalacia. She underwent an authorized right knee
arthroscopy with debridement of distal medial femoral condyle chondromalacia and
patellofemoral compartment chondromalacia and partial medial meniscectomy on April 21, 2014.
On May 17, 2017 OWCP awarded five percent permanent impairment of the right lower extremity.
This decision was affirmed by an OWCP hearing representative on February 1, 2018.
In a June 8, 2016 report, Dr. Allen, appellant’s treating physician, found that appellant had
26 percent permanent impairment of her right lower extremity due to grade 3 chondromalacia of
the weight-bearing surface of the femur. Dr. Allen utilized the DBI method for rating appellant’s
permanent impairment. Under Table 16-3 on page 511 of the A.M.A., Guides, he identified the
diagnosis of grade 3 chondromalacia of the weight-bearing of the femur as a class 3 impairment
with a default value of 30 percent. Dr. Allen applied a grade modifier of 2 for GMFH and GMPE
and a grade modifier of 3 for GMCS, resulting in a net adjustment of -2, which equaled 26 percent
permanent impairment of the right lower extremity.
On August 22, 2016 Dr. Harris, OWCP’s DMA, reviewed the SOAF and medical record,
including the clinical findings of Dr. Allen. Dr. Harris disagreed with Dr. Allen’s 26 percent right
lower extremity permanent impairment rating and found that appellant had 5 percent permanent
impairment of the right lower extremity. He found that, under Table 16-3, page 511 of the sixth
14
M.P., Docket No. 14-1602 (issued January 13, 2015); supra note 8 at Part 2 -- Claims, Developing and Evaluating
Medical Evidence, Chapter 2.810.8j (September 2010).
15

Id.

16

Id.

17

Id.

5

edition of A.M.A., Guides, appellant’s diagnosis of arthroscopic evidence of grade 3
chondromalacia of the patellofemoral joint was a class 1 diagnosis with a default value of E,
resulting in five percent permanent impairment of the right lower extremity. Dr. Harris noted that
while Dr. Allen’s impairment rating was based on arthroscopic evidence of grade 3
chondromalacia of the patellofemoral joint, the DBI impairment method for patellofemoral
arthritis required documented joint space narrowing before providing impairment greater than five
percent. The Board notes that Dr. Allen did not provide radiograph findings, which were required
under Table 16-3, to support his impairment determination.18 Thus, Dr. Allen failed to properly
utilize the A.M.A., Guides in assessing appellant’s right lower extremity permanent impairment
and is of diminished probative value.
The Board finds that the August 22, 2016 impairment rating from Dr. Harris represents the
weight of the medical evidence in this case as he properly applied the appropriate provisions of
the A.M.A., Guides to the clinical findings of record.19 Accordingly, as the record contains no
other probative, rationalized medical opinion which indicates that appellant has greater impairment
based on her accepted right knee condition pursuant to the A.M.A., Guides, appellant has not met
her burden of proof to establish greater than five percent right knee permanent impairment, for
which she received a schedule award.
On appeal counsel contends that appellant “proved she had a 26 percent permanent
impairment of the lower extremity.” As previously explained, however, Dr. Allen’s opinion is of
diminished probative value as he failed to properly utilize the sixth edition of the A.M.A., Guides
to support an award greater than the five percent.20 There is no current medical evidence, in
conformance with the A.M.A., Guides, which supports any greater impairment.
Counsel further contends on appeal that “OWCP’s DMA did not properly consider all
conditions of the lower extremity and improperly reduced the percentage.” Such vague
contentions without supporting arguments are inadequate and do not mitigate favorably in the
quest for an approbative finding. As stated above, Dr. Harris reviewed the SOAF and medical
record, and properly applied the A.M.A., Guides to determine that appellant has no more than five
percent permanent impairment of the right lower extremity.
Appellant may request a schedule award or an increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.

18

M.G., Docket No. 10-1771 (issued May 4, 2011).

19

W.M., Docket No. 11-1156 (issued January 27, 2012).

20
M.P., Docket No. 13-1225 (issued October 23, 2013); Linda Beale, 57 ECAB 429, 434 (2006). See also James
Kennedy, Jr., 40 ECAB 620, 627 (1989).

6

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than five
percent permanent impairment of her right lower extremity, for which she previously received
schedule award compensation.
ORDER
IT IS HEREBY ORDERED THAT the February 1, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 13, 2018
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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Guilford, CT, Employer
__________________________________________

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Appearances:
Ron Watson, for the appellant
Office of Solicitor, for the Director

Docket No. 08-2163
Issued: May 14, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On August 1, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated April 12, 2008 regarding a schedule award.
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 a two percent permanent impairment to his
left leg.
FACTUAL HISTORY
On January 31, 2005 appellant, then a 29-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a left knee injury in the performance of duty on
that date when he hyperextended his left knee while walking on ice. The Office accepted the
claim for a sprain/strain of the left medial collateral ligament.

In a report dated February 6, 2006, Dr. Richard Diana, an orthopedic surgeon, advised
that appellant underwent a partial lateral meniscectomy to repair a lateral meniscal tear.
Appellant returned to a light-duty position. By report dated February 16, 2007, Dr. Diana stated
that appellant had reached maximum medical improvement. He opined that under the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) appellant had a seven percent “permanent partial disability of the
left knee related to his meniscectomy.”
The Office referred the evidence to an Office medical adviser for review. On July 10,
2007 an Office medical adviser opined that appellant had a two percent permanent impairment to
his left leg under the A.M.A., Guides for a partial lateral meniscectomy. The date of maximum
medical improvement was reported as February 16, 2007.
By decision dated July 20, 2007, the Office issued a schedule award for a two percent left
leg permanent impairment. The period of the award was 40.32 days commencing February 16 to
March 28, 2007.1
Appellant requested a hearing before an Office hearing representative, which was held on
February 6, 2008. He submitted a January 15, 2008 report from Dr. Diana, who stated that the
distinction in the A.M.A., Guides between partial and full meniscectomies was “somewhat
debatable” because a partial could be 5 percent or 95 percent. Dr. Diana stated that appellant had
a posterior tear, which was worse than an anterior tear, and few people had a full meniscectomy.
He concluded that the impairment rating should be a continuum from two to seven percent,
depending on the severity of the tear.
An Office medical adviser again reviewed the medical evidence. In a report dated
March 15, 2008, he disagreed with Dr. Diana. The medical adviser opined that under the
A.M.A., Guides the leg impairment for a partial lateral meniscectomy was two percent, while a
total meniscectomy has a different rating because of the potential complication of this procedure.
By decision dated April 12, 2008, the Office reviewed the case on its merits and found
that appellant did not have more than two percent impairment.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act provides that, if there is
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member
or function.2 Neither the Act nor the regulations specify the manner in which the percentage of
impairment for a schedule award shall be determined. For consistent results and to ensure equal

1

The decision reported the period of the award as 5.16 weeks, but 40.32 days is 5.76 weeks of compensation.

2

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

2

justice for all claimants the Office has adopted the A.M.A., Guides as the uniform standard
applicable to all claimants.3
ANALYSIS
At issue in this case is the application of Table 17-33 of the A.M.A., Guides. On
February 6, 2006 appellant underwent a partial lateral meniscectomy of the left knee.
Table 17-33 provides impairment ratings for certain lower extremity impairments based on the
diagnosis.4 Under Table 17-33, a partial medial or lateral meniscectomy is two percent leg
impairment. The Office medical adviser found that appellant had two percent leg impairment.
The attending orthopedic surgeon, Dr. Diana, opined that, in a February 16, 2007 report,
appellant had seven percent impairment. He referred to an impairment of the left knee, but
presumably he was referring to leg impairment. Under Table 17-33, a total meniscectomy is
seven percent leg impairment.
On appeal, appellant’s representative argues that Table 17-33 should be interpreted as
providing a range of impairment from two to seven percent, depending on the severity of the
meniscal tear. He cites the discussion of “diagnosis-based estimates” in the A.M.A., Guides,
which notes that for most estimates, “the ranges of impairment are broad and the estimate will
depend on the clinical manifestations and their impact on the ability to perform activities of daily
living.”5 But in reviewing Table 17-33, the Board notes that the “ranges” are specifically
identified. For example, there are a range of points that may be assigned to a hip or knee
replacement and healed fractures have a range of degrees. The actual impairment percentage to
the leg, however, is not provided as a range, but is given a specific number based on the
diagnosed condition. Where the impairment is based on degrees of a healed fracture, the table
provides specific instructions, such as an additional two percent leg impairment “per degree” for
a displaced plateau fracture with angulations of more than 20 degrees. In no instance does
Table 17-33 offer the examiner a range of impairment ratings for a specific condition.
The impairment ratings regarding meniscectomies are clearly stated in Table 17-33:
partial medial or lateral meniscectomy is two percent leg impairment. There is no range of
impairment rating and no indication in Table 17-33 or the accompanying discussion that
establishes a range of impairment ratings based on the severity of the meniscal tear. There are
certain knee conditions, such as cruciate or collateral ligament laxity, that are identified under
Table 17-33 as “mild, moderate or severe” and are given a corresponding impairment rating.
Table 17-33 does not provide a similar method for meniscectomies.
The Board finds that the Office medical adviser properly applied the A.M.A., Guides
based on the medical evidence of record. Appellant underwent a partial lateral meniscectomy
and under Table 17-33 he has two percent leg impairment. Dr. Diana’s opinion in his
3

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

4

A.M.A., Guides 546, Table 17-33.

5

Id. at 545.

3

January 15, 2008 report that there should be a range of ratings from two to seven percent is not
supported by the A.M.A., Guides. The weight of the probative medical evidence does not
establish more than two percent leg impairment in this case.
The Board notes that the number of weeks of compensation for a schedule award is
determined by the compensation schedule at 5 U.S.C. § 8107(c). For complete loss of use of the
leg, the maximum number of weeks of compensation is 288 weeks. Since appellant’s
impairment was two percent, he is entitled to two percent of 288 weeks or 5.76 weeks of
compensation. It is well established that the period covered by a schedule award commences on
the date that the employee reaches maximum medical improvement from residuals of the
employment injury.6 In this case, the Office medical adviser properly concluded that the date of
maximum medical improvement was the date of examination by Dr. Diana. The award therefore
properly runs for 5.76 weeks commencing on February 16, 2007.
CONCLUSION
The probative medical evidence does not establish more than a two percent left leg
impairment, for which appellant received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 12, 2008 is affirmed.
Issued: May 14, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Michael E. Groom, Alternate Judge
Employees’ Compensation Appeals Board
6

Albert Valverde, 36 ECAB 233, 237 (1984).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Jose, CA, Employer
__________________________________________

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

Docket No. 09-455
Issued: September 3, 2009

Case Submitted on the Record

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

JURISDICTION
On December 4, 2008 appellant filed a timely appeal from an October 24, 2008 merit
decision of the Office of Workers’ Compensation Programs that denied modification of a
July 30, 2007 merit decision. 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 met her burden of proof to establish that she sustained an
injury in the performance of duty on June 14, 2007.
FACTUAL HISTORY
On June 18, 2007 appellant, a 47-year-old mail handler, filed a traumatic injury claim
(Form CA-1) for right shoulder pain. She attributed her injury to lifting heavy tubs all night,
every day of the week, without help. Appellant alleged her injury occurred on June 14, 2007.
Appellant’s supervisor controverted appellant’s claim and her entitlement to continuation
of pay. He alleged that on June 14, 2007 appellant told him that she hurt her neck when she fell

out of a chair at her other job, and that lifting tubs and moving equipment all week made it
worse.
Appellant submitted a June 14, 2007 report signed by Dr. Beth Keegstra, Board-certified
in emergency medicine, who reported that physical examination revealed mild soft tissue
tenderness in the right side of her neck. Dr. Keegstra diagnosed acute cervical strain.
On June 22, 2007 Dr. George Frank diagnosed neck sprain and released her to full duty,
but limited activities involving lifting, pulling and pushing to no more than 10 pounds. He
offered no opinion regarding the cause of appellant’s condition.
Appellant submitted a July 6, 2007 report signed by Dr. Keegstra, who noted that
appellant had a history of intervertebral disc disease and neck injury. Dr. Keegstra reported that
a computerized tomography (CT) scan of her cervical spine revealed a disc protrusion at C4-5
with mild central stenosis. The CT scan also revealed a cervical spinal fusion from C5-7 and
degenerative changes resulting in a component of bony central spinal stenosis, but no acute
fracture or dislocation. Physical examination revealed mild soft tissue tenderness in the right
mid neck and left mid neck area. It also revealed mild vertebral tenderness of the mid cervical
spine. Dr. Keegstra diagnosed appellant with cervical radiculopathy.
By decision dated July 30, 2007, the Office denied appellant’s claim because the
evidence of record did not demonstrate that her claimed medical condition was related to the
established work-related event.
Appellant disagreed and requested reconsideration.
Appellant submitted reports dated July 24 and 25, 2007 from Dr. Sherman Tran, a Boardcertified physiatrist, and Dr. James T. Luu, who diagnosed her neck sprain. In a separate report
also dated July 25, 2007, Dr. Tran reported findings upon examination, a review of her medical
history and diagnosed postcervical fusion at C5-6 and C6-7 as well as central canal stenosis at
the C5-6 level. He opined that, appellant’s cervical pain was most likely secondary to the
foraminal stenosis and central canal stenosis. Dr. Tran noted that appellant appeared to have
radicular symptoms to the upper left extremity and a burning sensation in the right hand, which
he opined may be secondary to C6 radiculitis. He released appellant to full duty with no
restrictions. Dr. Tran opined that appellant’s condition arose out of and was caused by her
industrial exposure on June 14, 2007.
Appellant submitted a July 9, 2008 report signed by Dr. Vladimir Oykhman, Boardcertified in family practice, who reported findings upon examination and a review of her medical
history. Dr. Oykhman noted that he had previously diagnosed her with thoracic strain,
myofascial pain syndrome and right wrist tendinitis. He reported that appellant had a history of
cervical spine surgery which was the result of an injury she sustained on March 1, 1999.
Dr. Oykhman noted that appellant reported that she sustained an injury to the same area on
March 9, 2006 and June 14, 2007 which she told him was work related. He opined that
appellant’s prior injuries made her very susceptible to injuries and that her current injuries were
definitely in some way related to her preexisting injuries. Dr. Oykhman opined that the incident
of June 4, 2007, when appellant fell out of a chair, played a role in her current medical problems.

2

By decision dated October 24, 2008, the Office denied modification of its July 30, 2007
decision because the evidence submitted failed to establish causal relationship between the
alleged injury and the alleged employment factor.
LEGAL PRECEDENT
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the 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.1 Second, the employee must submit
evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.2
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. 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 the specific employment factors identified by the employee.
ANALYSIS
Appellant identified lifting heavy tubs on June 14, 2007 as the employment incident that
caused her injury. Her burden is to establish, through production of substantive, probative,
rationalized medical evidence, that her alleged injury is causally related to this identified
employment incident. The Board finds that the evidence of record is insufficient to establish the
claim as none of the medical evidence contains a rationalized medical opinion explaining causal
relationship between appellant’s alleged injury and the identified employment incident.
Therefore, she has not met her burden of proof.
The relevant evidence of record consisted of reports and notes from Drs. Frank, Keegstra,
Luu, Oykhman and Tran. The Board notes initially that Drs. Frank, Keegstra and Luu offered no
opinion causally relating appellant’s diagnosed condition to the employment incident on
June 14, 2007. Dr. Oykhman commented on appellant’s prior injuries, including her June 4,
2007 injury, as they related to her current diagnosis, but he offered no explanation for the
relationship between her diagnosis and her June 14, 2007 employment duties. Dr. Tran opined
that appellant’s current condition could be apportioned between her injuries did not provide an
explanation as to how her employment duties on June 14, 2007 physiologically caused or
aggravated her current condition. Therefore none of these physicians proffered a probative
1

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

2

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).

3

rationalized medical opinion concerning the causal relationship between appellant’s condition
and the identified employment-related incident. The Board has held that medical opinions
lacking a rationalized opinion on causal relationship are of diminished probative value.3
Accordingly, appellant has not established her claim.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor her belief that her condition was aggravated by her employment is sufficient to
establish causal relationship.4 Because she failed to submit such evidence,5 she has not met her
burden of proof and therefore the Office properly denied her claim.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an injury in the performance of duty on June 14, 2007.
ORDER
IT IS HEREBY ORDERED THAT the October 24, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 3, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

3

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal relationship
have little probative value). See also, Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB
457 (2001).
4

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688, 691 (1965).

5

See Edgar G. Maiscott, 4 ECAB 558 (1952) (holding appellant’s subjective symptoms and self-serving
declarations do not, in the opinion of the Board, constitute evidence of a sufficiently substantial nature).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.G., Appellant
and
DEPARTMENT OF COMMERCE, CENSUS
BUREAU, Woodbridge, NJ, Employer
__________________________________________

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

Docket No. 09-521
Issued: November 17, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 15, 2008 appellant filed a timely appeal from a June 3, 2008 merit decision
of the Office of Workers’ Compensation Programs and an October 22, 2008 decision denying
merit review. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUES
The issues are: (1) whether appellant established that she sustained a permanent
impairment to a scheduled member due to her employment injury; and (2) whether the Office
properly denied merit review pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that she sustained permanent injuries from her accident
and experiences constant numbness, tingling and pain in her hands, fingers and arms. Further,
she argued that her claim was supported by a July 22, 2008 medical report from Dr. Rehman.

FACTUAL HISTORY
On June 13, 2000 appellant, then a 24-year-old enumerator, filed a traumatic injury claim
alleging that on May 5, 2000 she was sitting on a flower planter in a parking lot, waiting for her
crew leader, when she stood up and hit her head, full force, on a metal sign. She claimed that she
sustained a sprained neck, pain in her arms, back and jaw, severe headaches, ear and mouth pain
and ringing in her ears. Appellant stopped working and did not return. On August 23, 2000 the
Office accepted the claim for cervical strain. On September 1, 2000 it placed appellant on the
periodic rolls.
On July 22, 2002 appellant filed a claim for a schedule award (Form CA-7).
In a progress note dated May 11, 2000, Dr. Michael D. Merkin, a Board-certified
neurologist, stated that he treated appellant in July 1999 with neck and back pain and extremity
paresthesias. Appellant had a normal electromyography (EMG) scan of the right arm and leg
and her symptoms went away. Dr. Merkin stated that on May 5, 2000 appellant hit the top of her
head on a billboard; did not lose consciousness, but was taken to the emergency room, where she
obtained a normal computerized tomography (CT) brain scan. He reported appellant’s
complaints of ringing in the left ear, left facial pain, neck pain, headaches, pain into both arms
and numbness in the left thumb and index finger. Appellant did not report lower back pains but
stated that sometimes her legs hurt.
By letter dated August 26, 2002, the Office notified appellant that she was not entitled to
a schedule award for injury to the spine, but, if she believed she had impairment to her
extremities due to the spinal injury, she should provide supporting medical evidence.
In a September 1, 2002 letter, appellant contended that she did not have a spinal injury
but that she had horrible, debilitating headaches, abnormal brain activity, jaw pain, mouth pain,
facial twitching, blurred vision, trembling of the tips, numbness of the nose, ear pain and
problems with chewing. She requested that the Office again review her schedule award request.
In a medical report dated May 4, 2005, Dr. Mohammad Fouladvand, a Board-certified
neurologist, stated that appellant complained of daily, severe headaches preventing her from
performing her daily activities. The headaches developed two days after she hit her head and
was diagnosed with post-traumatic or postconcussion headaches. Dr. Fouladvand also noted
appellant’s complaints of progressively worsening forgetfulness and decreased hearing in her
right ear. Appellant denied any double or blurry vision, unstable gait, weakness, numbness or
tingling. Neurological and physical examinations revealed normal muscle tone, bulk and
strength, symmetrical deep tendon reflexes, intact pinprick, position, vibration and light touch
sensations, normal gait and normal finger-to-nose and heel-to-knee tests. Dr. Fouladvand
diagnosed chronic daily headache, cognitive decline related to attention deficit disorder,
subjective hearing decline and attention deficit disorder.
In a May 4, 2005 medical report, Dr. Elena Kaznatcheeva, a Board-certified neurologist,
reported appellant’s complaints of headaches after a mild head injury five years ago for which
she was diagnosed with post-traumatic or postconcussion headache. Appellant also relayed
increasing forgetfulness and decreased hearing in her right ear. Physical and neurological

2

examinations revealed normal muscle tone, bulk and strength, symmetrical deep tendon reflexes,
intact pinprick, position, vibration and light touch sensations, normal finger-to-nose and heel-toknee tests and normal gait. Appellant denied any double vision, blurry vision, unstable gait,
weakness, numbness or tingling. Dr. Kaznatcheeva diagnosed chronic daily headache, cognitive
impairment and subjective hearing decline.
Appellant further submitted progress notes dated January 12 and March 16, 2001, a
medical report dated March 16, 2001 related to her complaints of postconcussion headaches and
a January 18, 2001 work capacity evaluation signed by Dr. Merkin indicating that appellant
could not return to work.
On May 21, 2007 appellant returned to work in a private-sector position.
In a December 31, 2007 medical report, Dr. Michael G. Nosko, a Board-certified
neurologist, stated that appellant presented on December 10, 2007 with postconcussive syndrome
and complained of headaches, intermittent visual blurriness and intermittent hearing difficulties.
He stated that appellant reached maximum medical improvement.
On January 10, 2008 appellant filed another request for a schedule award.
By letter dated January 23, 2008, the Office notified appellant that she was not entitled to
a schedule award for her back, but, if she believes she had a resulting impairment to an
extremity, she should submit supporting medical evidence.
In an undated note, appellant contended that she hurt her head, neck and arms and
requested an appropriate form.
In a March 6, 2008 letter, the Office advised appellant that it had received her note but
that she did not provide any evidence to substantiate an injury to her arms. It requested she
provide supporting medical evidence in accordance with the A.M.A., Guides.1
On April 9, 2008 the Office notified appellant that it had not received any medical
evidence establishing that her strained neck impacted her arms. It provided a letter to present to
her physician requesting a permanent impairment rating. Appellant did not submit any
additional medical evidence.
By decision dated June 3, 2008, the Office denied appellant’s claim for a schedule award.
It stated that her claim was accepted for strain of neck but that she did not provide any medical
evidence supporting a permanent impairment to a scheduled member that would entitle her to a
schedule award.
On September 22, 2008 appellant filed a request for reconsideration.
In an April 2, 2002 medical report, Dr. Smita Modi, a Board-certified neurologist, stated
that she saw appellant for a neurological consultation and that her history of present trouble
1

American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001).

3

started after she hit the top of her head on a metal sign in 2000. Since the accident, appellant
experienced frequent, devastating pounding headaches with light and sound sensitivity, nausea
and occasional vomiting and pains in her face lasting for weeks. Dr. Modi diagnosed posttraumatic and postconcussion syndrome with intractable devastating chronic frequent cephalgia
of migraine type.
In a July 22, 2008 medical report, Dr. Farooq Rehman, a Board-certified neurologist,
reported appellant’s complaints that after hitting her head in 2000 she experienced various
symptoms, including persistent headaches and accompanying dizziness. Appellant also
complained of intermittent numbness in her hands and feet. She stated that she had these
symptoms since 1999 and was previously treated. Dr. Rehman diagnosed cerebral concussion,
post-traumatic headaches, post-traumatic dizziness and anxiety. He also diagnosed paresthesias
in the extremities, which he stated was chronic for several years and previously treated with
various medications.
Appellant also submitted illegible chart notes dated July 22, 2008 and a duplicate copy of
Dr. Nosko’s December 31, 2007 medical report.
By decision dated October 22, 2008, the Office denied merit review on the grounds that
appellant did not present any relevant evidence or legal contentions not previously considered. It
stated that the medical reports submitted were not relevant because they did not address how
appellant’s neck strain resulted in an impairment of her extremities.
LEGAL PRECEDENT -- ISSUE 1
Under section 8107 of the Federal Employees’ Compensation Act2 and section 10.404 of
the implementing federal regulations,3 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by the Office, and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.4
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under the Act for injury to the spine.5 In
1960, however, amendments to the Act modified the schedule award provisions to provide for an
award for permanent impairment to a member of the body covered by the schedule regardless of
whether the case of the impairment originated in a scheduled or nonscheduled member.
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

See Joseph Lawrence, Jr., 53 ECAB 331 (2002); James Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40
ECAB 1287 (1989); Francis John Kilcoyne, 38 ECAB 168 (1986).
5

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

4

Therefore, a claimant may be entitled to a schedule award for permanent impairment to an
extremity even though the cause of the impairment originates in the spine.6
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained a cervical strain as a result of hitting her
head on a sign during work. The issue is whether appellant sustained a ratable impairment due to
her employment injury. As stated above, the Act precludes payment of a schedule award for a
spinal impairment. Appellant may be entitled to a schedule award if she establishes that she
sustained a permanent impairment to her extremities as a result of her cervical strain.7 The
Board further notes that the brain is not a scheduled member and appellant is not entitled to a
schedule award for headaches, loss of memory or cognitive dysfunction as a result of her
employment injury.8
Prior to the application of the A.M.A., Guides, appellant must establish entitlement to a
schedule award by showing a permanent impairment to a scheduled member causally related to
her accepted injury.9 The Board finds that appellant did not submit sufficient medical evidence
to establish a permanent impairment to her extremities due to the accepted cervical strain.
In a progress note dated May 11, 2000, Dr. Merkin relayed appellant’s history of
paresthesias in the extremities and neck and back pain in July 1999. He also reported appellant’s
complaints of pain in her legs and arms and numbness in the left thumb and index finger after
hitting her head on a billboard on May 5, 2000. Although Dr. Merkin noted that appellant
sustained pain and numbness in her extremities, he did not assert that these conditions resulted in
a permanent, functional impairment.10 Further, he did not opine as to the cause of the pain and
numbness in appellant’s extremities. Dr. Merkin did not explain whether the condition was
related to the preexisting extremity paresthesias in 1999 or caused by the accepted cervical
strain. The fact that he noted that the condition started after the May 5, 2000 injury is not
dispositive on the issue of causation.11 Dr. Merkin did not provide a rationalized medical
opinion explaining that appellant sustained a permanent impairment to her extremities as a result

6

Thomas J. Engelhart, 50 ECAB 322 (1999).

7

See id.

8

There is no provision under the Act for adding organs to the compensation schedule on a case-by-case basis.
The terms of the Act are specific as to the method and amount of payment of compensation; neither the Office nor
the Board has the authority to enlarge the terms of the Act or to award benefits under any terms other than those
specified in the statute. See Gary M. Goul, 54 ECAB 702 (2003).
9

See Michael S. Mina, 57 ECAB 379 (2006).

10

Schedule awards are only payable for permanent impairment to scheduled members. J.P., 60 ECAB ___
(Docket No. 08-832, issued November 13, 2008).
11

The fact that a condition arises after an employment injury and was not present prior to the injury is not
sufficient to support causal relationship. See id.

5

of her accepted cervical strain. Thus, this report is not sufficient to establish entitlement to a
schedule award.12
The Board notes that both Dr. Fouladvand and Dr. Kaznatcheeva, in May 4, 2005
medical reports, described the results of normal physical and neurological examinations.
Drs. Fouladvand and Dr. Kaznatcheeva found normal muscle tone, bulk and strength,
symmetrical deep tendon reflexes, normal gait and intact pinprick, positional, vibrational and
light touch sensations. Further, they relayed appellant’s denial of any unstable gait, weakness,
numbness or tingling. This report suggests that appellant did not sustain any permanent
impairment to her extremities as a result of the May 5, 2000 work injury.
None of the other medical evidence addressed any permanent impairment to a scheduled
member from the May 5, 2000 injury or the resulting permanent effects of her cervical strain.
Therefore, the Board finds that appellant did not submit sufficient medical evidence to establish
that she sustained a permanent impairment to her extremities as a result of her accepted cervical
strain. Without the necessary rationalized medical opinion evidence showing a causal
relationship between the accepted cervical strain and a resulting impairment to a scheduled
member, she has failed to establish entitlement to a schedule award.13
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act14 does not entitle a claimant to a review of an Office decision
as a matter of right. This section vests the Office with discretionary authority to determine
whether it will review an award for or against compensation.15 The Office, through regulations,
has imposed limitations on the exercise of its discretionary authority under section 8128(a).16 To
require the Office to reopen a case for merit review under section 8128(a) of the Act,17 the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.18 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.19 When a claimant fails to
12

Medical evidence which does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship. See Michael E. Smith, 50 ECAB 313 (1999).
13

See Veronica Williams, 56 ECAB 397 (2005).

14

5 U.S.C. §§ 8101-8193.

15

Id. at § 8128(a).

16

Annette Louise, 54 ECAB 783, 789-90 (2003).

17

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
18

20 C.F.R. § 10.606(b)(2).

19

Id. at § 10.607(a).

6

meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.20
ANALYSIS -- ISSUE 2
Appellant did not advance a relevant legal argument or argue that the Office erroneously
applied or interpreted a specific point of law. Thus, the issue is whether she submitted pertinent
new evidence, relevant to the issue of whether she sustained a permanent impairment to her
extremities as a result of her accepted cervical strain.
In support of her claim for reconsideration, appellant submitted a medical report from
Dr. Modi dated April 2, 2002. There, Dr. Modi stated that appellant hit her head on a metal sign
in 2000 and was presenting for a neurological consultation. She reported appellant’s complaints
of headaches, nausea with occasional vomiting and facial pains and diagnosed post-traumatic
and postconcussion syndrome. The Board finds this report is irrelevant to the instant issue.
Dr. Modi did not mention the accepted cervical strain or opine that appellant sustained any
permanent impairment to her extremities as a result of the injury. The submission of evidence
which does not address the particular issue involved does not constitute a basis for reopening a
case.21 Thus, this report is not sufficient to require further merit review.
Appellant also provided a July 22, 2008 medical report from Dr. Rehman, who stated that
appellant complained of headaches and dizziness after hitting her head in 2000. Appellant also
relayed that she had intermittent numbness in her hands and feet since 1999, for which she was
previously treated. Dr. Rehman diagnosed paresthesias in the extremities, which he stated was
chronic for several years and previously treated with various medications. The Board finds this
report is also an insufficient basis for further merit review. Although Dr. Rehman asserted that
appellant had paresthesias in the extremities, he attributed the symptoms to a preexisting and
chronic condition. He did not address any permanent impairment as a result of the accepted
cervical strain or the May 5, 2000 work injury. Thus, this report is not relevant to the issue of
whether appellant’s cervical strain caused a permanent impairment entitling her to a schedule
award.22
Finally, appellant submitted a chart note dated July 22, 2008 and a duplicate copy of
Dr. Nosko’s December 31, 2007 medical report. As the record already contained a copy of
Dr. Nosko’s medical report, this evidence is repetitive and does not constitute a basis for merit
review.23 Further, the July 22, 2008 chart note is largely illegible. It is not clear whether it

20

Id. at § 10.608(b).

21

See Arlesa Gibbs, 53 ECAB 204 (2001).

22

See id.

23

The Board has held that evidence which repeats or duplicates evidence already in the case record and
considered by the Office has no evidentiary value and does not constitute a basis for reopening a claim for merit
review. James E. Norris, 52 ECAB 93 (2000).

7

addressed the relevant issue, nor is it obvious whether the note was signed by a physician.24
Therefore, this evidence is not sufficient to require the Office to conduct a further merit review.
CONCLUSION
The Board finds that appellant did not establish that she sustained a permanent
impairment to a scheduled member due to her employment injury. The Board also finds that the
Office properly denied merit review pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the October 22 and June 3, 2008 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: November 17, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

24

Medical evidence not signed by a physician is generally not probative evidence. See Joseph N. Fassi, 42
ECAB 231 (1991). See also 5 U.S.C. § 8101(2) (which defines physician as including surgeons, podiatrists,
dentists, clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their
practice as defined by State law).

8