United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.H., Appellant
and
DEPARTMENT OF THE NAVY, NAVAIR
DEPOT, Jacksonville, FL, Employer
__________________________________________

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

Docket No. 06-213
Issued: January 31, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 7, 2005 appellant filed a timely appeal from decisions of the Office of
Workers’ Compensation Programs dated August 10 and October 11, 2005 reducing his wageloss compensation. 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 the Office properly reduced appellant’s compensation based on his
failure to continue to participate in a vocational rehabilitation program without good cause.
FACTUAL HISTORY
On May 29, 2003 appellant, then a 50-year-old pipe fitter, filed an occupational disease
claim alleging that he developed pleural plaque asbestosis as a result of factors of his federal
employment. On September 11, 2003 his claim was accepted by the Office for bilateral
asbestosis. Appellant stopped work on September 30, 2003 and received appropriate
compensation benefits.

On March 12, 2004 appellant was referred for vocational rehabilitation. The Office noted
that he had a compensable pulmonary disability and that the employing establishment was
unable to accommodate his restrictions. A rehabilitation counselor met with appellant on
April 29, 2004 and reported that he had completed high school with no further formal education
but with course work over a four-year span as an apprentice pipe fitter. Appellant began work as
a pipe fitter apprentice at the Charleston Navy Yard in 1973 and worked up to the position of
pipe fitter mechanic in 1976. In 1985, he became a submarine test director and subsequently
worked from 1992 through August, 1995 as a design technician for systems on submarines. In
1995, he moved to the naval air station in Jacksonville and worked as a wastewater treatment
plant operator.
Testing was conducted to determine appellant’s ability to perform certain jobs. As a
result of the testing and based upon his education, medical restrictions and a labor market survey,
the vocational rehabilitation counselor identified two sedentary clerical positions that would
accommodate appellant’s physical limitations, as a receptionist or office clerk.
The
rehabilitation counselor conducted a labor market survey to determine that the positions were
reasonably available within appellant’s commuting area. Information was obtained from a local
community college pertaining to certificate programs in office training. On August 11, 2004 the
Office-approved training for one year to prepare appellant for employment in office management
and software applications. It was noted that an active job search would commence at the end of
the training program and that a wage-earning capacity determination would be made.
Appellant attended training until April 1, 2005.
He subsequently advised the
rehabilitation counselor that he had injured his back in a nonwork-related accident and was
unable to attend classes. Appellant was requested to submit medical evidence pertaining to his
inability to attend class. In a May 4, 2005 report, the rehabilitation counselor noted that he met
with appellant at his home on May 2, 2005. Appellant was again advised to provide medical
documentation regarding his inability to attend training classes as of April 1, 2005. He informed
the counselor that his back injury made it impossible for him to attend training or to leave his
home.
By letter dated May 6, 2005, the Office advised appellant that, if he failed to undergo the
approved training program or show good cause for not undergoing the program within 30 days,
action would be initiated to reduce his compensation to reflect his probable wage-earning
capacity had he completed the training program.
Appellant submitted a copy of a June 2, 2005 magnetic resonance imaging (MRI) scan
which listed a diagnosis of a left paracentral disc herniation at L5-S1 with stenosis of the left
lateral recess. No other disc herniation was seen. On the report, appellant made a notation:
“Will be having back surgery.” A note from Stevens Family Practice dated June 7, 2005 bearing
an illegible signature stated that he was unable to work or go to school until he was seen by a
neurosurgeon.
On June 27, 2005 the Office proposed to reduce appellant’s compensation, noting that he
was not totally disabled and had the capacity to earn the wages of a receptionist or office clerk.
The Office informed him that Dr. Stuart A. Millstone, a Board-certified internist, had advised

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that appellant could work limited duty with restrictions as had his family physician in June 2004.
Appellant had enrolled in a one-year certificate program but stopped attending courses after
spring break in March 2005. He was advised to submit medical documentation of his inability to
continue the training course work as of April 1, 2005. The Office advised that appellant’s
notation on the MRI scan and the June 7, 2005 note from the Stephen’s Family Practice was
insufficient to establish his total disability. The Office determined that the positions of
receptionist and office clerk were medically and vocationally suitable for him and were
reasonably available in his commuting area. The Office requested that appellant submit
additional evidence or argument within 30 days if he disagreed with the proposed action.
In response, appellant submitted a July 1, 2005 letter expressing disagreement with the
proposed reduction of compensation. He stated that he had undergone back surgery on June 21,
2005 and was unable to walk. Appellant stated that he had been unable to attend training classes
due to back pain and depression over his mother’s recent death. He submitted a June 16, 2005
note from Dr. Mark A. Spatola, a Board-certified neurological surgeon, stating: “[Appellant]
here today for office visit. Surgery scheduled for June 21, 2005.” In a July 8, 2005 letter to the
rehabilitation counselor, appellant reiterated that he was unable to work following back surgery
and requested additional time to “get well enough to get a job or go back to school.” On July 24,
2005 he submitted a claim for compensation (CA-7) stating: “Was going back to school for
rehab[ilitation]. My back went out on April 1, 2005 leaving school. Eventually I had to have
back surgery….”
By decision dated August 10, 2005, the Office reduced appellant’s compensation benefits
effective August 7, 2005, finding that he was capable of performing the constructed positions of
receptionist and office clerk. The Office determined that the medical evidence did not support
that he was disabled from attending school or cooperating with his rehabilitation counselor from
April 2 through June 2, 2005.
Appellant submitted an unsigned report from Dr. Spatola dictated on June 21, 2005 on
appellant’s admission to Orange Park Medical Center. The report noted a history that he “has
had low back pain since April. Difficulty walking.” An unsigned June 21, 2005 operative report
reflected that Dr. Spatola performed an L5 hemilaminotomy and discectomy at L5-S1. An
August 15, 2005 note signed by Dr. David C. Pearson, a plastic surgeon, indicated that appellant
could not speak and that his vocal cords were paralyzed. In a note dated August 12, 2005,
Dr. Spatola stated that appellant was to “continue to be out of work/school [until]
September 16, 2005.”
On August 15, 2005 appellant requested reconsideration. In an October 2, 2005 letter, he
stated that he had been physically unable to attend training. Appellant noted: “I think classes at
school resume again in January 2006. I would not have a problem attending school.”
By decision dated October 11, 2005, the Office denied modification of its August 10,
2005 decision. It found that the medical evidence submitted was insufficient to support that
appellant could not participate in training as of April 1, 2004 due to the accepted pulmonary
condition.

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LEGAL PRECEDENT
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.1 An injured employee who is either unable to return to
the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on a loss of wageearning capacity.2
Section 8113(b) of the Federal Employees’ Compensation Act provides:
“If an individual without good cause fails to apply for and undergo vocational
rehabilitation when so directed under 8104 of this title, the Secretary, on review under section
8128 of this title and after finding that in the absence of the failure the wage-earning capacity of
the individual would probably have substantially increased, may reduce prospectively the
monetary compensation of the individual in accordance with what would probably have been his
wage-earning capacity in the absence of the failure, until the individual in good faith complies
with the direction of the Secretary.”3
The Office’s implementing federal regulations address failure to undergo vocational
rehabilitation, stating in pertinent part:
“Under 5 U.S.C. § 8104(a), [the Office] may direct a permanently disabled
employee to undergo vocational rehabilitation…. If an employee without good
cause fails or refuses to apply for, undergo, participate in, or continue to
participate in a vocational rehabilitation effort when so directed, [the Office] will
act as follows:
(a) Where a suitable job has been identified, [the Office] will reduce the
employee’s future monetary compensation based on the amount which
would likely have been his or her wage-earning capacity had he or she
undergone vocational rehabilitation. [The Office] will determine this
amount in accordance with the job identified through the vocational
rehabilitation planning process which includes meetings with [the Office]
nurse and the employer. The reduction will remain in effect until such
time as the employee acts in good faith to comply with the direction of the
[the Office].”4

1

James B. Christenson, 47 ECAB 775, 778 (1996); Patricia A. Keller, 45 ECAB 278 (1993); Wilson L. Clow, Jr.,
44 ECAB 157 (1992).
2

20 C.F.R. §§ 10.402, 10.403 (2002). See Alfred R. Hafer, 46 ECAB 553, 556 (1995).

3

5 U.S.C. § 8113(b).

4

20 C.F.R. § 10.519; see Sam S. Wright, 56 ECAB ___ Docket No. 04-1903 (issued February 18, 2005).

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ANALYSIS
The Board finds that the Office properly reduced appellant’s compensation based on his
failure to continue participation in a rehabilitation training program without good cause.
Appellant’s claim was accepted for bilateral asbestosis. He stopped work and was placed on the
periodic rolls. On March 12, 2004 appellant was referred for vocational rehabilitation. Based on
his education and work experience, a rehabilitation plan was approved under which appellant
enrolled in a certificate program at a local community college for one year to prepare for
employment in the field of office management and software applications. He began his course
studies in August 2004, taking nine hours and completing the fall term. On January 3, 2005
appellant enrolled in two courses for nine hours of study. He attended the training program until
April 1, 2005, when he stopped attending class.5 By doing so, he failed to continue participating
in the program authorized as part of his vocational rehabilitation efforts. As a result, the Office
applied section 8113(b) to reduce his monetary compensation to reflect his probable wageearning capacity in the absence of such failure.
When he stopped work on April 1, 2005, appellant did not promptly notify his
rehabilitation counselor. The rehabilitation records note that the counselor did not learn that
appellant had stopped the academic program until a conversation with appellant’s wife on
April 15, 2005. On several occasions the counselor requested that appellant submit medical
evidence establishing that he could not attend class. The rehabilitation counselor met with
appellant on May 2, 2005 and advised him again of the need to submit medical documentation
that he was disabled for his course work as of April 1, 2005.
The medical evidence submitted by appellant does not address his disability commencing
April 1, 2005. Appellant submitted a copy of a June 2, 2005 MRI scan of his lower back with a
handwritten note that he would be having back surgery. However, this does not constitute
probative medical evidence relevant to his capacity to continue in the rehabilitation program as
of April 1, 2005. The June 7, 2005 note from Stevens Family Practice stated only that appellant
was unable to work or go to school until he received treatment from a neurosurgeon. The note
provided no discussion of his inability to attend classes at the community college on or after
April 1, 2005. Appellant was advised by the Office that this medical evidence was insufficient to
establish good cause for failing to continue in the rehabilitation training program and to submit
additional medical reports.
Appellant responded on July 1, 2005 contending that he was unable to continue course
work due to back pain and depression following his mother’s death. He submitted a June 16,
2005 note from Dr. Spatola who indicated only that appellant was seen in an office visit that day
and that surgery was scheduled for June 21, 2005. The report of Dr. Spatola did not provide any
diagnosis of appellant’s condition or address his inability to continue in the approved course
work as of April 1, 2005. The Office properly reduced his monetary compensation under section
8113(b) on August 7, 2005. The Board finds that the medical evidence submitted does not
establish that appellant was disabled from attending his course work commencing April 1
5

The rehabilitation counselor noted that appellant missed three days of school following his mother’s death in
February 2005. The Office subsequently approved tutoring and software recommended to assist him in his course
work.

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through June 2, 2005. Appellant contends that the reason he dropped out of the rehabilitation
program was due to a back injury and anticipation of surgery. However, as of April 1, 2005
surgery had not yet been scheduled and the medical evidence submitted did not address any
incapacity to continue in his studies due to his back condition. The Board finds that appellant
has not provided medical evidence sufficient to establish that he stopped the approved academic
program for good cause due to any necessity pertaining to treatment of his back. At the time of
the Office’s August 10, 2005 decision the evidence of record did not include adequate medical
evidence to establish his disability commencing April 1, 2005.
Following the Office’s decision, appellant submitted unsigned treatment records dated
June 21, 2005 dictated upon his admission to a local hospital for surgery. However, it is well
established that an unsigned medical report is not considered as probative medical evidence.6
These reports are not sufficient to establish good cause for appellant’s failure to continue in the
approved rehabilitation training courses as of April 1, 2005. The only record signed by
Dr. Spatola, dated August 12, 2005, is a brief note stating that appellant was to be out of school
until September 16, 2005. The Board finds that the medical evidence submitted by appellant is
insufficient to establish good cause for his failure to continue participation in rehabilitation
training commencing April 1, 2005.7 Based on the evidence of record, the Office properly
reduced appellant’s compensation based on its finding that he failed to show good cause for his
failure to participate in the vocational rehabilitation program.8
CONCLUSION
The Board finds that the Office met its burden of proof to justify reduction of appellant’s
compensation to reflect his capacity to earn wages in the constructed positions of receptionist
and/or office clerk had he completed the rehabilitation training program.

6

See Merton J. Sills, 39 ECAB 572, 575 (1988).

7

Appellant noted his willingness to resume course work in January 2006 in an October 2, 2005 letter to the
Office.
8

Compare Mary Ann J. Aanenson, 53 ECAB 761 (2002) (the employee was found to have supported her failure
to continue a directed vocational training program for good cause based on medical evidence from a treating
physician); Yusuf D. Amin, 47 ECAB 804 (1996) ( the employee provided medical evidence establishing his
inability to participate in vocational rehabilitation and good cause for his failure to cooperate); Demetrius Beverly,
53 ECAB 305 (2002) (the employee’s refusal to complete vocational training was without good cause); Howard L.
Miller, Docket No. 04-2183, issued August 19, 2005 (the employee did not submit medical evidence to establish
good cause for failing to continue in the academic program approved by vocational rehabilitation).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 11 and August 10, 2005 be affirmed.
Issued: January 31, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
DEPARTMENT OF THE AIR FORCE, HILL
AIR FORCE BASE, UT, Employer
__________________________________________

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

Docket No. 12-1894
Issued: February 19, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On September 13, 2012 appellant filed a timely appeal of a May 21, 2012 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 the case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
occupational disease while in the performance of duty.
FACTUAL HISTORY
On January 4, 2012 appellant, then a 47-year-old aircraft electrician, filed an
occupational disease claim alleging that he sustained thoracic outlet syndrome while operating
wire braiding machinery. He became aware of his condition on September 1, 2011 and its
1

5 U.S.C. § 8101 et seq.

relationship to his employment on October 27, 2011. OWCP informed appellant in a January 11,
2012 letter that additional evidence was needed to establish his claim. It gave him 30 days to
submit a report from a qualified physician explaining how work factors caused or contributed to
a diagnosed injury.
In an October 27, 2011 report, Dr. Douglas C. Fuller, an employing establishment
physician Board-certified in occupational medicine, related that appellant experienced left upper
extremity numbness and paresthesia for approximately two months as a result of pulling wire
harnesses and bundling Kevlar sleeves repetitively at work. On examination, he observed
diminished left arm sensation to tactile stimulation. Dr. Fuller diagnosed thoracic outlet
syndrome.2 In a November 29, 2011 report, he remarked, “[Appellant’s] symptoms of numbness
and tingling may be aggravated by his work, but the thoracic outlet syndrome is not work
related.”
December 17, 2011 cervical spine x-rays obtained by Dr. Keith W. Hunsaker, a Boardcertified diagnostic radiologist, exhibited C5-C6 spondylosis while December 28, 2011 left
shoulder x-rays obtained by Dr. Matthew T. Warren, a Board-certified diagnostic radiologist,
showed mild left acromioclavicular joint degeneration.3
By decision dated May 21, 2012, OWCP denied appellant’s claim, finding the medical
evidence insufficient to establish that the accepted employment activity caused or contributed to
a diagnosed condition.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation period, that an injury was sustained in the performance of duty as alleged and that any
disabilities and/or specific conditions for which compensation is claimed are causally related to
the employment injury.4 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.5
Whether an employee actually sustained an injury in the performance of duty begins with
an analysis of whether fact of injury has been established.6 To establish fact of injury in an
occupational disease claim, an employee must submit: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
2

Subsequent records from Dr. Fuller for the period November 14, 2011 to January 10, 2012 essentially restated
the content of his earliest report.
3

Appellant also provided work status forms for the period October 27, 2011 to January 10, 2012.

4

Elaine Pendleton, 40 ECAB 1143 (1989).

5

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

6

See S.P., 59 ECAB 184, 188 (2007).

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disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.7
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, 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.8
ANALYSIS
The case record supports that appellant operated wire braiding machinery at work, which
entailed pulling wire harnesses and bundling Kevlar sleeves. In addition, Dr. Fuller diagnosed
thoracic outlet syndrome following a physical examination. The Board finds, however, that
appellant failed to establish his occupational disease claim because the medical evidence did not
sufficiently prove that the accepted employment activity caused or contributed to the diagnosed
condition.
Dr. Fuller opined in reports from October 27, 2011 to January 10, 2012 that appellant
sustained thoracic outlet syndrome due to his job. He further specified in a November 29, 2011
However, Dr. Fuller did not
report that appellant’s work aggravated the condition.9
pathophysiologically explain how pulling wire harnesses and bundling Kevlar sleeves led to an
injury.10 The need for rationalized medical opinion evidence is particularly important in this
case because he indicated that thoracic outlet syndrome was a preexisting condition.
The remaining evidence, including Dr. Hunsaker’s December 17, 2011 cervical spine
x-rays, Dr. Warren’s December 28, 2011 left shoulder x-rays and various work status notes,
offered limited probative value on the issue of causal relationship because none of these records
addressed whether appellant’s federal employment caused or contributed to a diagnosed
condition.11 In the absence of rationalized medical opinion evidence, appellant failed to meet his
burden of proof.
Appellant may submit new evidence or argument as part of a formal 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.

7

See R.R., Docket No. 08-2010 (issued April 3, 2009); Roy L. Humphrey, 57 ECAB 238, 241 (2005).

8

I.J., 59 ECAB 408 (2008); Woodhams, supra note 5.

9

See Arnold Gustafson, 41 ECAB 131 (1989) (a preexisting condition that becomes disabling because of an
aggravation directly attributable to work is compensable regardless of the degree of such aggravation).
10

Joan R. Donovan, 54 ECAB 615, 621 (2003); Ern Reynolds, 45 ECAB 690, 696 (1994).

11

J.F., Docket No. 09-1061 (issued November 17, 2009); S.E., Docket No. 08-2214 (issued May 6, 2009).

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CONCLUSION
The Board finds that appellant did not establish that he sustained an occupational disease
in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the May 21, 2012 merit decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: February 19, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.B., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Eatontown, NJ,
Employer
__________________________________________

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

Docket No. 07-1533
Issued: December 17, 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 May 16, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated December 11, 2006. 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 a permanent impairment to a scheduled member of the
body entitling her to a schedule award pursuant to 5 U.S.C. § 8107.
FACTUAL HISTORY
On February 22, 2001 appellant, then a 27-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that on that date she sustained back and neck injuries while pulling tubs of
mail. On June 4, 2001 the Office accepted the claim for cervical, thoracic and lumbosacral
strains.

Appellant was referred for a second opinion examination by Dr. David Rubinfeld, an
orthopedic surgeon. In a report dated March 17, 2003, Dr. Rubinfeld diagnosed lumbar
radiculopathy and indicated that appellant could work eight hours with restrictions. He opined
that the lumbar radiculopathy was employment related in an April 16, 2003 report. By decision
dated November 19, 2003, the Office determined that appellant’s actual earnings in a light-duty
job since October 2002 fairly and reasonably represented her wage-earning capacity.
In a report dated March 17, 2005, Dr. Nicholas Diamond, an osteopath, provided a
history and results on examination. With respect to the degree of permanent impairment to the
legs under the American Medical Association, Guides to the Evaluation of Permanent
Impairment, he opined that appellant had a 12 percent right leg impairment. Dr. Diamond found
that appellant had a motor deficit in the right deltoid and an additional impairment for pain.1 For
the left leg, he found a 31 percent impairment, based on motor deficit in the knee, ankle and
great toe, as well as an impairment for pain.2
An Office medical adviser reviewed the medical evidence and indicated that in a
November 9, 2005 report that it was not clear whether lumbar radiculopathy was an accepted
condition. The Office advised the medical adviser that lumbar radiculopathy was an accepted
condition. By report dated December 21, 2005, the medical adviser opined that appellant had a
four percent impairment to the left leg and a three percent impairment of the right leg. The
medical adviser indicated that he reviewed both Dr. Rubinfeld and Dr. Diamond’s reports. For
the right leg, the medical adviser identified Table 17-6 and found a three percent impairment for
a one centimeter atrophy in the right calf. For the left leg, the medical adviser opined that there
was a two percent impairment for sensory deficit of the S1 nerve root,3 and two percent for
muscle weakness in great toe extension.4
The Office determined that a conflict in the medical evidence existed with respect to the
degree of lower extremity permanent impairment. Appellant was referred to Dr. Ian Fries, a
Board-certified orthopedic surgeon selected as a referee examiner. In a report dated April 14,
2006, Dr. Fries provided a history and results on examination. With respect to permanent
impairment, he indicated that he disagreed with Dr. Diamond and the Office medical adviser.
Dr. Fries stated, “While [appellant] may have had neurologic findings in the past, she now has no
objective neurological abnormalities. In particular, she does not have weakness in her lower
extremities. Thigh and calf circumferences are equal bilaterally, appellant’s gait is normal
bilaterally and reflexes clearly are symmetrical. Her global left lower extremity sensory claim
does not conform to a dermatomal pattern.” Dr. Fries stated that, while appellant contended that
she had severe back pain, she had no affective or physical evidence of such remarkable pain and
she did not qualify for an impairment based on pain. He stated that it was inappropriate to
determine her impairment based on neurological findings in the lower extremities, as did
Dr. Diamond and the Office medical adviser. Dr. Fries concluded that appellant’s presentation
1

Dr. Diamond cited Tables 16-15 and 16-11 of the A.M.A, Guides, which are tables for the upper extremities.

2

Table 17-8 was cited, along with Figure 18-1 for pain.

3

A.M.A., Guides 424, Table 15-18.

4

Id. at 532, Table 17-8.

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met the criteria for Category II of the lumbar spine diagnosis-related estimates provided under
Table 15-3, for a six percent whole person impairment.5
In a report dated May 4, 2006, an Office medical adviser opined that appellant had no
permanent impairment to the lower extremities. The medical adviser noted that Dr. Fries had
found no objective neurological findings.
By decision dated May 15, 2006, the Office determined that appellant was not entitled to
a schedule award pursuant to 5 U.S.C. § 8107. Appellant requested an oral hearing before an
Office hearing representative, which was held on October 17, 2006. In a decision dated
December 11, 2006, the hearing representative affirmed the May 15, 2006 decision.
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.6 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
justice for all claimants the Office has adopted the American Medical Association, Guides to the
Evaluation of Permanent Impairment as the uniform standard applicable to all claimants.7
It is well established that when a case is referred to a referee specialist for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a
proper factual and medical background, must be given special weight.8
ANALYSIS
In the present case, there was a conflict in the medical evidence with respect to a
permanent impairment to the lower extremities between Dr. Diamond and an Office medical
adviser. Pursuant to 5 U.S.C. § 8123 the case was referred to Dr. Fries as a referee examiner.9
Dr. Fries provided a rationalized medical opinion that resolved the conflict. He clearly found
5

Id. at 384, Table 15-3.

6

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).
7

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

8

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

9

5 U.S.C. § 8123(a) provides that, if there is a disagreement between the physician making the examination for
the United States and the physician of the employee, the Secretary shall appoint a third physician who shall make
the examination. The implementing regulations states that, if a conflict exists between the medical opinion of the
employee’s physician and the medical opinion of either a second opinion physician or an Office medical adviser, the
Office shall appoint a third physician to make an examination. This is called a referee examination and the Office
will select a physician who is qualified in the appropriate specialty and who has no prior connection with the case.
20 C.F.R. § 10.321 (1999).

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that appellant had no objective evidence of any neurological abnormalities. Accordingly,
Dr. Fries indicated that he did not find any peripheral nerve impairments to the lower
extremities, unlike Dr. Diamond and the Office medical adviser. In addition, he did not find any
impairment for calf atrophy, as his physical findings did not show calf atrophy. As to pain,
Dr. Fries found no evidence to warrant an additional impairment for pain.
The only impairment found by Dr. Fries was a lumbar spine impairment under
Table 15-3. It is well established that this table does not support a schedule award under the Act,
as it represents an impairment to the spine, which is not a scheduled member of the body, and is
expressed as a whole person impairment, which is not applicable under the Act.10 An Office
medical adviser confirmed that the report of Dr. Fries did not establish a permanent impairment
to a scheduled member of the body.
The Board finds that Dr. Fries provided a report with a rationalized medical opinion,
based on a complete background, that appellant did not have a permanent impairment to the
lower extremities under the A.M.A., Guides. His report is entitled to special weight and
represents the weight of the evidence in this case.
CONCLUSION
The weight of the medical evidence did not establish an employment-related permanent
impairment to a scheduled member of the body.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 11, 2006 is affirmed.
Issued: December 17, 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
10

See Tania R. Keka, 55 ECAB 354 (2004); Guiseppe Aversa, 55 ECAB 164 (2003).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Titusville, FL, Employer
__________________________________________

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

Docket Nos. 17-1578 &17-1651
Issued: April 26, 2018

Case Submitted on the Record

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

JURISDICTION
On July 13, 2017 appellant filed a timely appeal from a May 12, 2017 merit decision and
a June 19, 2017 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish an emotional
condition in the performance of duty on March 17, 2017; and (2) whether OWCP properly denied
appellant’s request for reconsideration of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes additional evidence received after OWCP issued its June 19, 2017
decision. The Board’s jurisdiction is limited to the evidence that was before OWCP at the time of its final decision.
Therefore, the Board lacks jurisdiction to review this new evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

FACTUAL HISTORY
On March 20, 2017 appellant, then a 53-year-old city letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that on March 17, 2017 she sustained a panic attack at work.3 She
claimed that she had a hostile interaction with a supervisor, G.T., regarding a work estimate, and
noted that this interaction triggered a panic attack. Appellant advised that G.T. disregarded her
March 17, 2017 request for assistance with her work, which placed her in an impossible situation.
While attempting to calmly discuss the situation, G.T. allegedly spoke to appellant in a harsh and
demeaning manner. The discussion occurred in the presence of coworkers and district route
examiners. Appellant also claimed that G.T. gave her an order that would only result in her failing,
and he refused to listen to her reason for requesting assistance.
Appellant noted that on March 17, 2017 she was required to work an eight-hour day and
asserted that, when she told G.T. that she needed an extra hour to finish her mail delivery, he
indicated 45 minutes was all the help he was going to give her. G.T. then ordered appellant to
leave the first part of her mail (which would require 45 minutes to deliver) for another carrier to
deliver. Appellant asserted that doing so would have required her to unload mail from her truck
and then load other mail into it, requiring an extra 75 minutes of work. She indicated that she then
requested that G.T. provide her with an extra 75 minutes to complete her work and asserted that
G.T. blamed her for the situation by making statements like “It is n[o]t my fault you did n[o]t get
eight hours yesterday,” “It is n[o]t my fault you did n[o]t see your flats,” and “stop creating a
hostile work environment.” Appellant indicated that G.T.’s actions and statements on March 17,
2017 directly caused her to suffer a panic attack, which resulted in her leaving the workplace for
the day.
On the Form CA-1, B.T., appellant’s immediate supervisor, indicated that the employing
establishment would be submitting a challenge to appellant’s claim. She advised that appellant
stopped work on March 17, 2017, and had not yet returned.
In a March 31, 2017 development letter, OWCP requested that appellant submit additional
evidence in support of her claim. It requested that she complete and return a questionnaire which
posed various questions regarding the circumstances of the events of March 17, 2017. OWCP also
requested that appellant submit a physician’s opinion supported by a medical explanation as to
how the reported events of March 17, 2017 caused or aggravated a medical condition. On
March 31, 2017 it also requested that the employing establishment respond to appellant’s claims.
In an April 25, 2017 statement, appellant noted that the claimed March 17, 2017 incident
was what “spurred her [Form] CA-1.”4 She indicated that she had been unable to get management
to fill out a duty status report (Form CA-17) in connection with the present claim. Appellant noted
that, as soon as G.T. told her on March 17, 2017 that she would only get 45 extra minutes, rather
than the 60 minutes requested, her hands began to tremble and the room started spinning. She
3

Appellant indicated that this panic attack included and/or resulted in trembling, difficulty catching her breath,
dizziness, uncontrolled crying, confusion, fear, and depression.
4
Appellant asserted that this incident was the apex of years of attacks by G.T. and asserted that she started the
process to file a claim in 2012, but did not file a claim then.

2

asserted that a coworker gave the same time call she gave, i.e., the estimated time that mail delivery
would be completed, but that he received the requested help without being questioned by
management. Appellant asserted that requesting an extra hour on March 17, 2017 was appropriate
given her mail volume and claimed that her mail delivery route took an hour more time to deliver
than had been officially acknowledged. She noted that she initially overlooked about 20 or so flats
that she would have to deliver that day. Appellant indicated that G.T.’s request for her to unload
a portion of her mail for another carrier to deliver (mail that would take 45 minutes to deliver) was
an example of him wasting her time and “flexing” his authority. She indicated that she intended
to file an Equal Employment Opportunity (EEO) claim against G.T. for discrimination. Appellant
noted that that she was sad when her father passed way in November 2016 and that she had some
stress outside of work due to her financial situation.5
Appellant submitted a number of documents dated between 2012 and 2016, i.e., a period
prior to the claimed March 17, 2017 incident, including copies of disciplinary actions, grievances
and EEO complaints, personal journals of events at work, and requests for leave usage. She
submitted an April 11, 2017 document, signed by her immediate supervisor, B.T., and a union
official, noting that leave without pay would be converted to continuation of pay in resolution of
a grievance. In a March 21, 2017 e-mail, a Florida workers’ compensation official advised
appellant that any complaint about the March 17, 2017 incident should be filed with some federal
body, rather than with the Florida workers’ compensation program.
Appellant submitted a number of documents concerning the treatment for her psychiatric
conditions, including reports of Dr. Rex A. Birkmire, an attending Board-certified psychiatrist and
neurologist.6 She also submitted reports of a mental health counselor who saw her regarding her
emotional problems.
On April 18, 2017 OWCP received an undated statement from B.T., appellant’s immediate
supervisor, who indicated that the employing establishment was controverting appellant’s claim.
B.T. noted that on the morning of March 17, 2017 appellant came to her crying and repeating the
phrase, “I cannot do this anymore.” She asked appellant what was wrong and she explained that
a supervisor, G.T., had challenged her call time. Appellant advised that she had told G.T. that she
would be an hour over her allotted time to finish her mail delivery and that G.T. told her he could
only approve 45 minutes. B.T. indicated that appellant then reported that G.T. wanted to pull off
the mail from the first part of her delivery route and give it to someone else to deliver. Appellant
told G.T. that, because she had already loaded the first part of the mail in her truck, pulling the
mail would mean that she would be 75 minutes over the time limit for delivering her mail route.
B.T. indicated that she explained to appellant that G.T. was doing his job and that it was part of

5

With respect to her prior treatment for emotional problems, appellant indicated that in 2012 she was forced to
seek treatment for depression and general anxiety due to harassment by a supervisor at a different employing
establishment workplace in Altamonte, Florida.
6

The reports of Dr. Birkmire are dated between 2012 and 2017. Some of the reports Dr. Birkmire produced prior
to March 17, 2017 contained diagnoses such as depression and anxiety disorder and, a number of the reports he
produced after March 17, 2017 contained diagnoses such as depression, anxiety disorder, and post-traumatic stress
disorder.

3

her job to make an accurate call time. Appellant started repeating, “I cannot do this job anymore,
I cannot be put under the pressure to make a daily call.”
In a March 17, 2017 statement, G.T. noted that on March 17, 2017 appellant was assigned
to an eight-hour day on her mail delivery route (number 9618). He asked what her call time would
be for the day and she responded 5:45 p.m. G.T. indicated that, when he asked appellant the reason
for her call time, she responded that if she was to have an eight-hour day she would need additional
help. Based on appellant’s mail volume and the fact that all mail was available a half hour before
his conversation with appellant, G.T. denied her request for an extra hour, but he approved an extra
45 minutes. He asked appellant to leave part of her mail on the workroom floor for another carrier
to deliver. Appellant insisted on having a carrier help her later in the day because she was not sure
that the extra time allotted to her would be enough to allow her to finish her mail delivery on time.
G.T. indicated that he instructed appellant to comply with his original instructions and told her
that, if the original amount of help provided was not enough, she should contact him no later than
2:30 p.m. to arrange for additional help. He advised that appellant continued to challenge his
instructions and demanded a 3996 form for a request of overtime. Appellant repeatedly demanded
that her conditions for assistance be granted and, when G.T. declined yet again, she stated “Here,
I will do one better for you!” and threw her keys at G.T.’s desk. G.T. indicated that appellant
proceeded to fill out a 3971 form requesting sick leave for the day per the Family and Medical
Leave Act. Appellant advised him that she objected to being tracked, monitored, and provided
with timeframes to perform her duties.
By decision dated May 12, 2017, OWCP denied appellant’s claim that she sustained an
emotional condition due to factors of her federal employment on March 17, 2017. It found that
she failed to establish any compensable employment factors noting that she did not show
wrongdoing by management on March 17, 2017 in the administrative functions of managing work
assignments and monitoring work performance. OWCP also found that appellant had not shown
that she was subjected to harassment on March 17, 2017.
On June 12, 2017 appellant requested reconsideration. She submitted the appeal request
form that accompanied OWCP’s May 12, 2017 decision. In a separate handwritten note dated
June 7, 2017, appellant asked that OWCP reconsider her claim. She indicated that she had
enclosed the doctor’s narrative report that he failed to do in a timely manner.
Subsequent to its May 12, 2017 decision, OWCP received several duty status (Form CA17) reports dated April 12, May 2, 5, 25, and 30, 2017.
By decision dated June 19, 2017, OWCP denied appellant’s request for reconsideration. It
found that the evidence she submitted in support of her reconsideration request was not relevant
to the main issue of the present case because her emotional condition claim was denied on a factual
basis, i.e., her failure to submit factual evidence establishing a compensable employment factor.
LEGAL PRECEDENT -- ISSUE 1
To establish that she sustained an emotional condition causally related to factors of her
federal employment, appellant must submit: (1) factual evidence identifying and supporting
employment factors or incidents alleged to have caused or contributed to her condition;

4

(2) rationalized medical evidence establishing that she has an emotional condition or psychiatric
disorder; and (3) rationalized medical opinion evidence establishing that her emotional condition is
causally related to the identified compensable employment factors.7
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to one’s employment. There are situations where an injury or illness has some
connection with the employment, but nevertheless does not come within the purview of workers’
compensation. When disability results from an emotional reaction to regular or specially assigned
work duties or a requirement imposed by the employment, the disability is deemed compensable.8
However, disability is not compensable when it results from factors such as an employee’s fear of
a reduction-in-force or frustration from not being permitted to work in a particular environment or
hold a particular position.9
An employee’s emotional reaction to administrative or personnel matters generally falls
outside FECA’s scope.10 Although related to the employment, administrative and personnel
matters are functions of the employer rather than the regular or specially assigned duties of the
employee.11 However, to the extent the evidence demonstrates that the employing establishment
either erred or acted abusively in discharging its administrative or personnel responsibilities, such
action will be considered a compensable employment factor.12
Perceptions and feelings alone are not compensable. To establish entitlement to benefits,
a claimant must establish a basis in fact for the claim by supporting her allegations with probative
and reliable evidence.13 When the matter asserted is a compensable factor of employment and the
evidence of record establishes the truth of the matter, OWCP must base its decision on an analysis
of the medical evidence.14
ANALYSIS -- ISSUE 1
Appellant alleged that she sustained an emotional condition due to a March 17, 2017
incident involving a supervisor, G.T. The Board must initially review whether this incident is a
covered employment factor under the terms of FECA. The Board notes that appellant’s claim does

7

See Kathleen D. Walker, 42 ECAB 603 (1991).

8

Pamela D. Casey, 57 ECAB 260, 263 (2005); Lillian Cutler, 28 ECAB 125, 129 (1976).

9

Lillian Cutler, id.

10

Andrew J. Sheppard, 53 ECAB 170, 171 (2001); Matilda R. Wyatt, 52 ECAB 421, 423 (2001).

11

David C. Lindsey, Jr., 56 ECAB 263, 268 (2005).

12

Id.

13

Supra note 7.

14
See Norma L. Blank, 43 ECAB 384, 389-90 (1992). Unless a claimant establishes a compensable factor of
employment, it is unnecessary to address the medical evidence of record. Garry M. Carlo, 47 ECAB 299, 305 (1996).

5

not directly relate to her regular or specially assigned duties under Lillian Cutler.15 Rather,
appellant primarily claimed that on March 17, 2017 management committed error and abuse with
respect to the administrative functions of managing work assignments and monitoring work
performance. She also claimed that she was subjected to harassment on March 17, 2017.
Appellant alleged that a supervisor, G.T., committed wrongdoing with respect to her
March 17, 2017 work assignment. She claimed that G.T. did not provide her with enough extra
time and carrier support to complete her mail delivery route on time, despite her repeated requests
for such help. Appellant asserted that G.T. would not listen to her reasons for requesting and that
his instructions made it inevitable that she would not be able to successfully complete her
March 17, 2017 work tasks.
The Board notes that assigning work tasks and monitoring work performance are
administrative functions of a supervisor.16 Administrative and personnel matters, although
generally related to the employment, are functions of the employer rather than the regular or
specially assigned work duties of the employee and are not covered under FECA.17 However, the
Board has held that, where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.18
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.19
The Board notes that appellant has not provided any probative evidence to support her
claim that G.T. committed any error or abuse with respect to assigning work or monitoring her
work performance on March 17, 2017. Appellant did not submit supporting evidence, such as the
final finding of a formal grievance or complaint, showing that G.T. or other management officials
committed wrongdoing in connection with the events of March 17, 2017.20 The Board has held
that mere dislike or disagreement with certain supervisory actions will not be compensable absent
error or abuse on the part of the supervisor.21 The record contains statements from G.T. and
15

See Lillian Cutler, supra note 8.

16

Beverly R. Jones, 55 ECAB 411, 416 (2004).

17

Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990), reaff’d on recon., 42 ECAB
556 (1991).
18

William H. Fortner, 49 ECAB 324 (1998).

19

Ruth S. Johnson, 46 ECAB 237 (1994).

20

Appellant submitted a number of documents dated between 2012 and 2016, i.e., a period prior to the March 17,
2017 incident, including copies of disciplinary actions, grievances and EEO complaints, personal journals of events
at work, and requests for leave usage. However, these documents would not be relevant to her claim of error and
abuse by G.T. on March 17, 2017. Appellant submitted an April 11, 2017 document signed by her immediate
supervisor, B.T., and a union official noting that leave without pay would be converted to continuation of pay in
resolution of a grievance. The one-page document does not indicate the individual it pertains to or otherwise provide
any context about the grievance.
21

T.C., Docket No. 16-0755 (issued December 13, 2016).

6

appellant’s immediate supervisor, B.T., explaining why management’s actions on March 17, 2017
were reasonable and in the service of the work mission. Appellant has not substantiated any error
or abuse committed by the employing establishment, and therefore, has not established a
compensable employment factor with respect to administrative or personnel matters.
Appellant also claimed that G.T.’s actions on March 17, 2017 constituted harassment in
that he spoke harshly to her on that date. To the extent that disputes and incidents alleged as
constituting harassment and discrimination by supervisors and coworkers are established as
occurring and arising from appellant’s performance of her regular duties, these could constitute
employment factors.22
The Board notes, however, that appellant did not submit evidence showing that G.T.
harassed her on March 17, 2017. The Board has held that unfounded perceptions of harassment
do not constitute a compensable employment factor.23 Mere perceptions are not compensable
under FECA and harassment can constitute a factor of employment if it is shown that the incidents
constituting the claimed harassment actually occurred.24 The employing establishment denied that
appellant was subjected to harassment on March 17, 2017 and she did not submit probative
evidence, such as witness statements of individuals present on March 17, 2017, to establish her
claim of harassment. Appellant has not established that G.T.’s statements and actions on
March 17, 2017 constituted harassment under FECA, and therefore, she has not established a
compensable employment factor with respect to the claimed harassment.25
For these reasons, the Board finds that appellant has not established any compensable
employment factors. In light of the Board’s finding on the factual aspect of her case, it is not
necessary to consider the medical evidence of record.26
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.27 OWCP has discretionary authority in this regard and has imposed certain
22

David W. Shirey, 42 ECAB 783, 795-96 (1991).

23

See F.K., Docket No. 17-0179 (issued July 11, 2017).

24

Id.

25

See generally C.T., Docket No. 08-2160 (issued May 7, 2009) (finding that some statements may be considered
abusive and constitute a compensable factor of employment, but that not every statement uttered in the workplace will
be covered by FECA). On appeal appellant argues that she established harassment and error/abuse in administrative
matters by management on March 17, 2017. However, the Board has explained why she failed to establish her
allegations.
26

Garry M. Carlo, supra note 14.

27

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment

7

limitations in exercising its authority.28 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.29
A timely application for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (i) shows that OWCP erroneously applied or
interpreted a specific point of law; (ii) advances a relevant legal argument not previously
considered by OWCP; or (iii) constitutes relevant and pertinent new evidence not previously
considered by OWCP.30 When a timely application for reconsideration does not meet at least one
of the above-noted requirements, OWCP will deny the request for reconsideration without
reopening the case for a review on the merits.31
The submission of evidence or argument that repeats or duplicates evidence or argument
already in the case record,32 and the submission of evidence or argument that does not address the
particular issue involved does not constitute a basis for reopening a case.33
ANALYSIS -- ISSUE 2
OWCP issued a decision on May 12, 2017 finding that appellant had not established a
compensable employment factor. Appellant timely requested reconsideration on June 12, 2017.
The issue on appeal is whether appellant satisfied any of the criteria under 20 C.F.R.
§ 10.606(b)(3), thereby requiring OWCP to reopen the case for review of the merits of the claim.
Appellant submitted the appeal request form that accompanied OWCP’s decision, as well
as a handwritten note advising that she had enclosed a narrative report from her physician. Her
June 12, 2017 request for reconsideration neither alleged nor demonstrated that OWCP
erroneously applied or interpreted a specific point of law. Additionally, the Board finds that
appellant did not advance a relevant legal argument not previously considered by OWCP.
Consequently, appellant is not entitled to further review of the merits of her claim based on the
first and second above-noted requirements under section 10.606(b)(3).
In support of her June 12, 2017 reconsideration request, appellant reportedly submitted a
narrative report from her physician. However, OWCP did not receive a new or additional narrative
of compensation at any time on [his] own motion or on application.” 5 U.S.C. § 8128(a).
28

20 C.F.R. § 10.607.

29
Id. at § 10.607(a). For merit decisions issued on or after August 29, 2011, a request for reconsideration must be
“received” by OWCP within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the
document receipt date of the request for reconsideration as indicated by the “received date” in the Integrated Federal
Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
30

20 C.F.R. § 10.606(b)(3).

31

Id. at § 10.608(a), (b).

32

Eugene F. Butler, 36 ECAB 393, 398 (1984); Jerome Ginsberg, 32 ECAB 31, 33 (1980).

33

Edward Matthew Diekemper, 31 ECAB 224, 225 (1979).

8

report from Dr. Birkmire prior to issuing its June 19, 2017 decision.34 It received several duty
status reports (Form CA-17), only two of which were newly submitted (May 25 and 30, 2017).
Although new, this evidence is insufficient to warrant reopening the record for further merit
review. The latest duty status reports are neither relevant nor pertinent to the issue on
reconsideration, which was whether appellant established a compensable employment factor. As
noted above, the submission of evidence or argument which does not address the particular issue
involved does not constitute a basis for reopening a case.35 Appellant’s emotional condition claim
was denied on a factual basis, i.e., her failure to submit factual evidence establishing a
compensable employment factor. Therefore, the submitted medical evidence is not relevant or
pertinent to the basis of the denial of her emotional condition claim. A claimant may be entitled
to a merit review by submitting relevant and pertinent new evidence, but appellant did not submit
any such evidence, and thus, she failed to satisfy the third requirement under section 10.606(b)(3).
The Board finds that appellant did not meet any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied further merit
review.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she
sustained an emotional condition in the performance of duty on March 17, 2017. The Board
further finds that OWCP properly denied appellant’s request for reconsideration of the merits of
her claim pursuant to 5 U.S.C. § 8128(a).

34

See supra note 2.

35

See supra note 33.

9

ORDER
IT IS HEREBY ORDERED THAT the June 19 and May 12, 2017 decisions of the Office
of Workers’ Compensation Programs are affirmed.
Issued: April 26, 2018
Washington, DC

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

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

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

10


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Orlando, FL, Employer
__________________________________________

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

Docket No. 18-1656
Issued: October 23, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
CHRISTOPHER J. GODFREY, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 30, 2018 appellant, through counsel, filed a timely appeal from a June 26, 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 his burden of proof to establish that his left shoulder
condition was causally related to the accepted April 27, 2015 employment incident.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On May 6, 2015 appellant, then a 63-year-old baggage screener, filed a traumatic injury
claim (Form CA-1) alleging that on April 27, 2015 he sustained left shoulder pain when he moved
a bag from a table to a conveyor belt while in the performance of duty. He indicated that he
experienced left shoulder pain. Appellant stopped work following this incident.
In a May 28, 2015 narrative report, Dr. Patrick F. Emerson, a Board-certified orthopedic
surgeon, noted that on February 27, 2015 appellant was trying to slide a bag and felt a tearing and
popping sensation in his left shoulder at work. Examination of appellant’s left shoulder
demonstrated significant weakness with resistance to internal rotation on the left side and pain
with cross-body adduction. Dr. Emerson diagnosed full-thickness rotator cuff tear with left
acromioclavicular (AC) arthritic change and biceps tendinopathy. He continued to treat appellant
for his left shoulder symptoms and provided a June 22, 2015 report and work restriction note.
In a June 9, 2015 development letter, OWCP noted that when appellant’s claim was
received it appeared to be a minor injury that resulted in minimal or no lost time from work and
was therefore administratively approved for a payment of a limited amount of medical expenses.
It reported that the medical evidence addressing appellant’s claim had not been formally
considered and that additional factual and medical evidence was necessary to establish his claim.
OWCP requested additional factual and medical evidence to establish his claim and also provided
a questionnaire for completion. It afforded appellant 30 days to provide the necessary information.
On June 25, 2015 appellant accepted a limited-duty assignment job offer.
By decision dated July 20, 2015, OWCP denied appellant’s claim. It accepted that the
April 27, 2015 employment incident occurred as alleged and that a left shoulder condition had
been diagnosed. However, OWCP found that appellant had failed to establish causal relationship.
On August 10, 2015 appellant, through counsel, requested a telephonic hearing, before an
OWCP hearing representative. The hearing was held on March 17, 2016.
OWCP received reports dated May 8 and 26, 2015 by Dr. Jeffrey A. Deren, a Boardcertified orthopedic surgeon. Dr. Deren described the April 27, 2015 employment incident and
reviewed appellant’s history, including diagnostic studies. He conducted an examination and

3

Docket No. 16-1545 (issued April 26, 2017).

2

diagnosed a full-thickness tear of the supraspinatus and subscapularis tendons of the left shoulder
and partial tearing of the infraspinatus tendon of the left shoulder.
By decision dated May 27, 2016, an OWCP hearing representative affirmed the July 20,
2015 decision. She found that the medical evidence of record was insufficient to establish causal
relationship between appellant’s diagnosed left shoulder condition and the accepted April 27, 2015
employment incident.
Appellant filed an appeal to the Board.
By decision dated April 26, 2017, the Board affirmed the May 27, 2016 decision. The
Board determined that the medical evidence then of record was insufficient to establish that
appellant’s left shoulder rotator cuff tear was causally related to the accepted April 27, 2015
employment incident.4 The Board found that none of the medical evidence submitted contained a
medical opinion that was sufficiently rationalized to explain whether the accepted employment
incident was sufficient to have caused his diagnosed left shoulder medical conditions.
On April 10, 2018 OWCP received appellant’s request, through counsel, for
reconsideration.5
In support of the reconsideration request, OWCP received an April 5, 2018 report by
Dr. Neil Allen, a Board-certified internist and neurologist, who indicated that he spoke with
appellant via telephone. Dr. Allen noted that appellant sustained a left shoulder injury while in the
performance of his regular duties as a screener with the employing establishment on
April 27, 2015. He reported that appellant reached outward with his left arm to catch a bag,
weighing approximately 75 pounds, from falling off a table when he felt a “pull” in his left
shoulder. Dr. Allen noted that diagnostic studies confirmed a full-thickness rotator cuff tear in
appellant’s left shoulder. He opined that appellant’s case should be updated to include the
additional diagnosed condition of rotator cuff rupture of the left shoulder. Dr. Allen explained that
the “compromised lifting position … combined with exposure to an antagonist force, even
minimal, resulted in the overstretching of muscles, ligaments, and tendons, beyond their normal
physiologic range and subsequent rupture of the rotator cuff muscles and tendons.” He concluded
that appellant’s injury resulted from the April 27, 2015 work-related incident, based upon the
mechanism described and objective findings documented within appellant’s prior medical records.
By decision dated June 26, 2018, OWCP denied modification of the April 27? (see the
above 26th date), 2017 decision. It found that Dr. Allen’s April 5, 2018 medical report was
insufficient to establish causal relationship between appellant’s diagnosed left shoulder condition
and the accepted April 27, 2015 employment incident.

4

Supra note 3.

Although counsel claimed to be filing a request for reconsideration from the Board’s April 26, 2017 decision,
OWCP is not authorized to review Board decisions. The decisions and orders of the Board are final as to the subject
matter appealed, and such decisions and orders are not subject to review, except by the Board. 20 C.F.R. § 501.6(d).
Although the April 26, 2017 Board decision was the last merit decision, the hearing representative’s May 27, 2016
decision is the appropriate subject of possible modification by OWCP.
5

3

LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,7 that an injury was sustained in the performance of duty, as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to
the employment injury.8 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.9
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established.10 Fact of injury
consists of two components that must be considered in conjunction with one another. The first
component is whether the employee actually experienced the employment incident that allegedly
occurred.11 The second component is whether the employment incident caused a personal injury.12
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.13 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factor(s) must be based on a
complete factual and medical background.14 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 factor(s).15

6

Id.

7

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
8

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
9

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
10

D.B., Docket No. 18-1348 (issued January 4, 2019); T.H., 59 ECAB 388, 393-94 (2008).

11

D.S., Docket No. 17-1422 (issued November 9, 2017); Elaine Pendleton, 40 ECAB 1143 (1989).

12

B.M., Docket No. 17-0796 (issued July 5, 2018); John J. Carlone, 41 ECAB 354 (1989).

13

T.H., supra note 10; Robert G. Morris, 48 ECAB 238 (1996).

14

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

15

Id.

4

The Board has previously held that the absence of a physical examination by a physician
may affect the weight to be given a medical report, but does not render it incompetent as medical
evidence.16
ANALYSIS
The Board finds that the case is not in posture for decision.
On prior appeal17 the Board held that the medical evidence then of record did not contain
an opinion from a physician on the issue of causal relationship that was sufficiently rationalized to
establish the narrow question of whether the accepted employment incident of April 27, 2015
caused the diagnosed conditions.18 There was no dispute as to whether appellant had a diagnosed
medical condition, a need for medical treatment, or a dispute as to the conditions which diagnostic
testing had clearly established as a tear of his supraspinatus and subscapularis tendons of the left
shoulder and partial tearing of the infraspinatus tendon of the left shoulder. Thus, the sole issue
remaining in the case is whether the accepted incident can, physiologically, result in the diagnosed
conditions as identified by two attending physicians and memorialized within diagnostic testing
results. The Board has held that a physiologic explanation is akin to explaining the mechanism of
an injury, i.e., how it was possible for the injury to have actually occurred due to the incident.19
To answer that physiologically-based question, appellant submitted a medical report from
Dr. Allen, an appropriate specialist who is Board-certified in both internal medicine and
neurology. The report was specifically obtained to answer that remaining, limited issue by
providing a rationalized medical explanation on causation, not for purposes such as recommending
further treatment or to diagnose additional conditions.
In an April 5, 2018 report, Dr. Allen noted his review of appellant’s medical records and
accurately described the history of the accepted employment incident. He indicated that on
April 27, 2015 appellant suffered a left shoulder injury while in the performance of his regular
duties. Dr. Allen recounted that appellant was pushing a bag weighing 75 pounds from a table to
a conveyer belt when he reached out to prevent it from falling. He opined that appellant’s diagnosis
of a full-thickness rotator cuff tear was directly related to the accepted employment incident. In
support of his opinion, Dr. Allen explained that when appellant reached outward to catch the
weight of the bag, the downward force was exerted through a fully extended limb. He explained
that the compromised lifting position combined with exposure to an antagonist force, even
minimal, resulted in the overstretching of muscles, ligaments, and tendons, beyond their normal
16

See W.C., Docket No. 18-1386 (issued January 22, 2019); M.M., Docket No. 17-0438 (issued March 13, 2018);
C.B., Docket No. 17-0726 (issued July 3, 2017); Melvina Jackson, 38 ECAB 443, 447-52 (1987).
17

Preliminarily, the Board notes that it is unnecessary to consider the evidence that was previously considered in
its April 26, 2017 decision. Findings made in prior Board decisions are res judicata, absent any further review by
OWCP under section 8128 of FECA (5 U.S.C. § 8128(a)). See C.D., Docket No. 19-1973 (issued May 21, 2020);
M.D., Docket No. 20-0007 (issued May 13, 2020).
18

Supra note 3.

19
See D.B. Docket No. 19-1543 (issued March 6, 2020); R.B., Docket No. 16-0691 (issued July 20, 2016);
William J. Shall, Docket No. 03-1973 (issued December 8, 2003).

5

physiologic range and subsequent rupture of the rotator cuff muscles and tendons. Dr. Allen noted
that often individuals will report “pulling” sensations or sounds at the time of the injury as
documented in the appellant’s medical records. He concluded that appellant’s injury resulted from
the April 27, 2015 work-related incident, based upon the mechanism described and objective
findings documented within his medical records.
The Board finds that the April 5, 2018 report of Dr. Allen is sufficient for appellant to meet
his burden of proof to establish a prima facie case, which is the standard long-articulated by both
the Board and OWCP regulations as necessary to require further development of the medical
evidence to see that justice is done within the nonadversarial FECA program.20 Dr. Allen is a
Board-certified physician who is qualified in his field of medicine to render rationalized opinions
on the issue of causal relationship and he provided a comprehensive and convincing review of the
medical record and case history. The Board further finds that he provided a comprehensive and
convincing pathophysiological explanation as to how the mechanism of the accepted employment
incident was sufficient to cause the undisputed diagnosed left shoulder conditions.21 The
explanation provided by Dr. Allen is based upon his medical training and expertise on the limited
medical issue of causal relationship, not his own observations of appellant because no such
observations were relevant or necessary in rendering his opinion. There is no other evidence of
record contradicting his opinion on causation.
The Board has long held that it is unnecessary that the evidence of record in a case be so
conclusive as to suggest causal connection beyond all possible doubt.22 Rather, the Board has held
that the evidence required of an appellant is only that necessary to convince the adjudicator that
the conclusion drawn is rational, sound, and logical.23 Following review of Dr. Allen’s April 5,
2018 report, the Board finds that his medical opinion contained therein is well rationalized and
logical and is thus sufficient to require further development of appellant’s claim.24

20
Id.; see also D.S., Docket No. 17-1359 (issued May 3, 2019); X.V., Docket No. 18-1360 (issued April 12, 2019);
C.M., Docket No. 17-1977 (issued January 29, 2019); William J. Cantrell, 34 ECAB 1223 (1983); Federal (FECA)
Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.8.c (June 2011).
21

While the dissent finds that Dr. Allen’s report is per se insufficient or altogether lacking probative value, minus
“a conversation coupled with a visualized examination” as a new “minimal requirement”, it fails to articulate what
Dr. Allen would have actually examined upon meeting face-to-face with appellant prior to issuing his causation
opinion. The majority is not convinced that requiring Dr. Allen, in the regular course, to observe appellant’s bare
shoulder would add anything of value to his ability to articulate a rationalized explanation as to whether the undisputed
employment incident was sufficient to have physiologically caused the diagnosed conditions. Further, Dr. Allen
indicated his review of the diagnostic testing reports which, in fact, provide the best possible “illustration” of the
internal damage within appellant’s left shoulder. Further, the majority clearly is not equating the role of Dr. Allen for
appellant with the specialized role of an OWCP district medical adviser (DMA) within the nonadversarial process of
developing the medical evidence in a disputed claim.
22

Id.

23

W.M., Docket No. 17-1244 (issued November 7, 2017); E.M., Docket No. 11-1106 (issued December 28, 2011);
Kenneth J. Deerman, 34 ECAB 641, 645 (1983).
24
The majority notes that the future potential cost of further medical development in a claim is of no consideration
to the Board in weighing the sufficiency of the evidence submitted by appellant.

6

It is well established that proceedings under FECA are not adversarial in nature and, while
appellant has the burden of proof to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence.25
On remand OWCP shall refer appellant to a specialist in the appropriate field of medicine,
along with the case record and a statement of accepted facts. Its referral physician shall provide a
well-rationalized opinion as to whether appellant’s diagnosed left shoulder conditions are causally
related to the accepted April 27, 2015 employment incident. If the physician opines that the
diagnosed conditions are not causally related to the employment incident, he or she must explain
with rationale how or why their opinion differs from that articulated by Dr. Allen. After such
further development of the case record as OWCP deems necessary, it shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

25
See supra note 12. See also A.P., Docket No. 17-0813 (issued January 3, 2018); Jimmy A. Hammons, 51 ECAB
219, 223 (1999).

7

ORDER
IT IS HEREBY ORDERED THAT the June 26, 2018 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: October 23, 2020
Washington, DC

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

Christopher J. Godfrey, Deputy Chief 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
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DELIVERY CENTER, Bellmawr, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-1192
Issued: February 21, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On April 19, 2011 appellant filed a timely appeal from a January 3, 2011 merit decision
of the Office of Workers’ Compensation Programs (OWCP) denying her claim for an increased
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 the case.
ISSUE
The issue is whether appellant has more than a 23 percent impairment of the left arm for
which she received a schedule award.
On appeal, appellant contends that the impartial medical examiner was unprofessional
and not impartial. She alleged that he barked at his assistant in front of her, told her that he was
paid “quite handsomely” for his services, accused her of being a liar, did not have a working
blood pressure cuff, was rude and was biased.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. On April 20, 2005 appellant, then a 51year-old mail processing clerk, filed an occupational disease claim alleging bilateral carpal
tunnel syndrome and stenosing tenosynovitis of the right third and fourth fingers. On October 6,
2005 OWCP accepted her claim for bilateral carpal tunnel syndrome. Appellant underwent
surgery for right carpal tunnel release on November 18, 2005. On January 6, 2006 she
underwent surgery for left carpal tunnel release and exploration of the right palm. By decision
dated May 28, 2008, OWCP granted appellant a schedule award for a 10 percent impairment of
the right upper extremity and a 23 percent impairment of the left upper extremity. It denied her
request for reconsideration on April 6, 2009, and she appealed this determination to the Board.
In a decision dated August 18, 2010, the Board affirmed OWCP’s determination that appellant
had a 10 percent impairment of the right arm.2 The Board found that there was an unresolved
conflict in the medical evidence with regards to the impairment to her left arm. Dr. David Weiss,
appellant’s osteopath, determined that appellant had a 37 percent impairment of the left upper
extremity while an OWCP medical adviser disagreed, finding a 23 percent impairment. Both
Dr. Weiss and the medical adviser applied the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (5th ed. 2001) in reaching their conclusions.
The Board remanded the case to refer appellant to an impartial medical examiner. The facts as
set forth in the Board’s prior decision are hereby incorporated by reference.
On October 13, 2010 OWCP referred appellant to Dr. George P. Glenn, Jr., a Boardcertified orthopedic surgeon, to resolve the conflict as to the impairment to her left arm. In an
October 28, 2010 report, Dr. Glenn determined that her impairment rating was significantly
lower than the 23 percent impairment to the left upper extremity for which she received a prior
schedule award. He applied Table 15-23 of the sixth edition of the A.M.A., Guides,3 and found
that, with respect to test findings, the electrodiagnostic studies would rate appellant a grade
modifier of one as there was no evidence of motor conduction block or axon loss. In terms of
history, Dr. Glenn noted that she described what would appear to be significant intermittent
symptoms and that as a consequence would equate to a grade modifier of two. In terms of
physical findings, he noted that appellant reported the isolated decreased sensation involving the
index digit and that he graded as a modifier two. Dr. Glenn stated that the A.M.A., Guides
instructed him to add the modifiers, which equaled 5 and divide that by 3, which would equal 1.6
which rounded up to 2. The A.M.A., Guides also provided that he should apply the functional
scale, and that appellant’s QuickDash score indicated severe involvement. Dr. Glenn noted that
the numbers of the pain disability questionnaire and the QuickDash questionnaire were “off the
chart.” Based upon the physical examination, impairment to the left hand was significantly less
that would be indicated by the two scores. Dr. Glenn noted that, even accepting appellant’s
functional score, this would place the upper extremity impairment value from the default
impairment of five percent to six percent of the left upper extremity. He discussed the findings
of Dr. Weiss and the medical adviser. Although Dr. Glenn was more in agreement with the

2

Docket No. 09-1364 (issued August 18, 2010).

3

A.M.A., Guides 449.

2

opinion of the medical adviser, both Dr. Weiss and the medical adviser had applied the fifth
edition of the A.M.A., Guides, while the sixth edition of the A.M.A., Guides was appropriate.
On December 9, 2010 OWCP referred the case for review by a new OWCP medical
adviser. On December 13, 2010 its medical adviser agreed with Dr. Glenn’s rating of six percent
impairment of the left upper extremity.
By decision dated January 3, 2011, OWCP denied appellant an additional schedule award
as the impartial medical examiner found that she had six percent impairment to left upper
extremity, which was less than the 23 impairment rating previously received.
LEGAL PRECEDENT
The schedule award provision 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 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 for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.6 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.7
For decisions issued after May 1, 2009, the sixth edition will be used.8
Section 15.4 of the sixth edition of the A.M.A., Guides describes the methods used for
evaluation of upper extremity nerve impairments.9 Impairment due to carpal tunnel syndrome is
evaluated under the scheme found in Table15-23 (Entrapment/Compression Neuropathy
Impairment) and accompanying relevant text.10 In Table 15-23, grade modifiers levels (ranging
from 0 to 4) are described for the categories of test findings, history and physical findings. The
grade modifier levels are averaged to arrive at the appropriate overall grade modifier level and to
identify a default rating value. The default rating value may be modified up or down by one
percent based on functional scale, an assessment of impact on daily living activities.11
Section 8123(a) of FECA provides that, if there is disagreement between the physician
making the examination for the United States and the physician of the employee, the Secretary

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

Id. at § 10.404(a).

7

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.

8

FECA Bulletin 09-03 (issued March 15, 2009).

9

A.M.A., Guides, supra note 3 at 419-50.

10

Supra note 3.

11

Id. at 448-50.

3

shall appoint a third physician who shall make the examination.12 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 OWCP’s medical adviser providing rationale for the percentage of
impairment specified.13 In situations where there exist opposing medical reports of virtually
equal weight and rationale and the case is referred to an impartial medical specialist for the
purpose of resolving the conflict, the opinion of such specialist, if sufficiently well rationalized
and based upon a proper factual background, must be given special weight.14
ANALYSIS
OWCP accepted appellant’s claim for bilateral carpal tunnel syndrome. The Board
previously affirmed its determination that she had a 10 percent impairment to her right arm due
to her accepted employment condition. However, the Board remanded the case for referral to an
impartial medical examiner to resolve the conflict between appellant’s treating physician,
Dr. Weiss and OWCP’s medical adviser with regards to the extent of impairment to appellant’s
left arm.
The Board notes that both Dr. Weiss and the first medical adviser applied the fifth edition
of the A.M.A., Guides. However, for all decisions issued after May 1, 2009, the sixth edition of
the A.M.A., Guides is used. Accordingly, Dr. Glenn, when conducting the impartial medical
examination, properly applied the sixth edition of the A.M.A., Guides. He properly applied
Table 15-23 of the A.M.A., Guides.15 Dr. Glenn determined that, based on test findings,
appellant had a grade modifier of one, that, based on history, she had a grade modifier of two and
based on physical findings, she had a grade modifier of two and that the average of these
modifiers was 1.6 or 2.0. Table 15-23 lists the default impairment grade for a grade modifier of
two as five. Dr. Glenn modified this upward by two based upon appellant’s functional scale,
resulting in an impairment to her upper left extremity of six percent. He properly applied the
A.M.A., Guides and explained his application thereof. The medical adviser concurred in
Dr. Glenn’s assessment. The calculations of the impartial medical examiner are entitled to
special weight16 and establish that appellant had no more than a 23 percent impairment of the left
upper extremity for which she received a schedule award.
The Board further notes that no physician found that appellant was entitled to a greater
rating while applying the sixth edition of the A.M.A., Guides. Although appellant alleges
irregularities in the conduct of the impartial medical examiner, the Board finds that her

12

5 U.S.C. § 8123(a); see Geraldine Foster, 54 ECAB 435 (2003).

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
14

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

15

Supra note 3.

16

Jacqueline Brasch, supra note 14.

4

unsupported allegations are insufficient to overcome the special weight given to the opinion of
the impartial medical examiner.
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 not established that she is entitled to a schedule award
of greater than 23 percent of the left upper extremity for which she received a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 3, 2011 is affirmed.
Issued: February 21, 2012
Washington, DC

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

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

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

5