United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF THE ARMY, HEALTH
SERVICES COMMAND, Fort Gordon, GA,
Employer
__________________________________________

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

Docket No. 11-517
Issued: December 1, 2011

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 December 20, 2010 appellant filed a timely appellant from a July 23, 2010 merit
decision of the Office of Workers’ Compensation Programs (OWCP) concerning the denial of an
increased schedule award. Pursuant to the Federal Employees’ Compensation Act (FECA)1 and
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established more than six percent permanent
impairment of the left leg for which she received a schedule award.
FACTUAL HISTORY
This case has previously been before the Board. In a decision of October 1, 1999, the
Board set aside a September 24, 1997 OWCP decision on the grounds that it improperly denied
1

5 U.S.C. § 8101 et seq.

further merit review regarding a schedule award.2 The Board noted that the claimant may seek
an increased schedule award if the evidence establishes that she sustained an increased
impairment at a later date causally related to her employment injury. The Board found that she
submitted medical evidence regarding the extent of impairment at a date subsequent to the prior
schedule award decision. The case was remanded for further review. In a second appeal, the
Board issued a March 1, 2001 decision affirming a November 16, 1999 OWCP decision on the
grounds that appellant had not established permanent impairment to any of her extremities.3
The Board next issued a decision on September 17, 2003 which affirmed OWCP
decisions dated October 24, 2002, January 16 and March 7, 2003.4 The Board found that OWCP
met its burden of proof to rescind a schedule award for a 12 percent impairment of the left leg as
the record supported a 5 percent impairment of that member. The Board also found that
appellant was not entitled to a schedule award for more than a 25 percent permanent impairment
of her leg and did not meet her burden of proof to establish a recurrence of disability on
November 15, 1993 causally related to her August 20, 1992 employment injury.
By decision dated July 16, 2004, the Board set aside a January 30, 2004 OWCP decision
denying further merit review of her claim.5 The Board again found that OWCP had improperly
considered her request for an increased schedule award as a request for reconsideration. The
case was remanded for development of the increased schedule award. The Board issued a
decision on June 1, 2005 affirming OWCP decisions dated October 6 and 14, 2004.6 The Board
found that appellant had not established more than six percent left lower extremity impairment.
The Board issued an order remanding case on May 15, 2009.7 The Board set aside a May 19,
2008 OWCP decision on the grounds that its decision was unclear as to whether it was denying
appellant’s claim for a recurrence of disability as it contained no discussion of the medical
evidence other than noting it was insufficient. The facts and circumstances of the case as set
forth in the Board’s prior decisions are incorporate herein by reference.8
On January 10, 2010 appellant filed a claim for a schedule award.

2

51 ECAB 115 (1999).

3

Docket No. 00-845 (issued March 1, 2001).

4

Docket Nos. 03-1068 and 03-1342 (issued September 17, 2003). OWCP issued a schedule award for a 25
percent right leg permanent impairment on January 16, 2003 and a 5 percent left leg permanent impairment on
March 7, 2003.
5

Docket No. 04-919 (issued July 16, 2004).

6

Docket No. 05-354 (issued June 1, 2005).

7

Docket No. 08-1623 (issued May 15, 2009).

8

On August 23, 1992 appellant, then a 46-year-old food service worker, filed a traumatic injury claim alleging
that on August 20, 1992 she injured her back while picking up a large mixing bowl. OWCP accepted the claim for
sciatica, which was subsequently expanded to include the conditions of lumbar spinal stenosis, acquired
spondylolisthesis and lumbosacral spondylosis without myelopathy. Appellant resigned from the employing
establishment effective February 13, 1994 and is currently not working.

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On February 2, 2010 OWCP referred appellant for a second opinion examination by
Dr. Bright McConnell, III, a Board-certified orthopedic surgeon, who was asked to assess her
impairment in accordance with the sixth edition of the A.M.A., Guides and was provided a
permanent impairment worksheet. In a March 3, 2010 report, Dr. McConnell noted his review of
the medical evidence and provided findings on physical examination. He diagnosed lumbar
spondylosis, L4-5 degenerative disc disease, lumbar stenosis and spondylolisthesis.
Dr. McConnell completed the permanent impairment worksheet and advised that appellant’s
primary diagnosis was lumbar degenerative disc disease with subsidiary diagnoses of L4-5
spondylolisthesis and lumbar stenosis which, under Table 17-4, page 572, was class 2. He found
no peripheral nerve impairment and applied the adjustment modifiers, finding a grade modifier
of two for Functional History (GMFH), a grade modifier of zero for Physical Examination
(GMPE) and a grade modifier of zero for Clinical Studies (GMCS), for a grade E or a 14 percent
left lower extremity impairment.
On March 23, 2010 OWCP’s medical adviser reviewed Dr. McConnell’s report. He
advised that Dr. McConnell’s impairment rating was based on lumbar spine impairment which is
not accepted by OWCP. OWCP’s medical adviser concluded that the final impairment rating for
the left lower extremity remained six percent, as this rating was based on residuals, sensory
and/or motor loss resulting from lumbar spine conditions.
By decision dated April 2, 2010, OWCP found the medical evidence was insufficient to
establish that appellant had greater impairment of her left leg.
On April 18, 2010 appellant requested review of the written record by OWCP’s hearing
representative.
By decision dated July 23, 2010, OWCP’s hearing representative affirmed the April 2,
2010 decision denying appellant’s request for an additional schedule award for the left lower
extremity.
LEGAL PRECEDENT
The schedule award provision of FECA9 and its implementing regulations10 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.11 Effective May 1, 2009, OWCP adopted

9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

11

Id.

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the sixth edition of the A.M.A., Guides as the appropriate edition for all awards issued after that
date.12
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under FECA for injury to the spine.13 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.14
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
and Health (ICF).15 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on GMFH, GMPE
and GMCS.16 The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS CDX).17
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through its 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.18
ANALYSIS
The record reveals that OWCP granted appellant a schedule award for a six percent
impairment of the left lower extremity. The issue is whether appellant has established greater
impairment due to her August 20, 1992 employment injury.

12

Federal (FECA) Procedure Manual, Part 3 -- Claims, Schedule Awards, Chapter 3.700, Exhibit 1
(January 9, 2010).
13

D.N., 59 ECAB 576 (2008); Tommy R. Martin, 56 ECAB 273 (2005); Pamela J. Darling, 49 ECAB
286 (1998).
14

D.H., 58 ECAB 358 (2007); Veronica Williams, 56 ECAB 367 (2005); Thomas J. Engelhart, 50 ECAB
319 (1999).
15

A.M.A., Guides (6th ed., 2009), page 3, section 1.3, The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.
16

Id. at page 383-419.

17

Id at page 411.

18

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (January 2010). See Frantz Ghassan, 57 ECAB 349 (2006); C.K., Docket No. 09-2371 (issued
August 18, 2010).

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In an impairment evaluation dated March 3, 2010, Dr. McConnell determined that
appellant had 14 percent permanent impairment of the left lower extremity using Table 17-4 of
the sixth edition of the A.M.A., Guides. Table 17-4, however, is relevant in determining
impairments of the lumbar spine. FECA specifically excludes the back as an organ; therefore,
the back or spine does not come under the provisions for payment of a schedule award.19
OWCP’s medical adviser reviewed Dr. McConnell’s report and advised that
Dr. McConnell’s impairment rating was based on lumbar spine impairment, noting the rating for
the lumbar spine was not accepted by OWCP. He concluded, however, that the final impairment
rating for the left lower extremity remained six percent as this rating had been based on residuals
sensory and/or motor loss resulting from lumbar spine conditions; but he did not reference any
tables in the sixth edition of the A.M.A., Guides or provide further elaboration for the conclusion
reached.
The Board finds that the medical evidence does not contain a sufficiently reasoned
medical opinion as to the degree of permanent impairment to a scheduled member or function of
the body under the sixth edition of the A.M.A., Guides. When OWCP refers a claimant for a
second opinion evaluation and the report does not adequately address the relevant issues, it
should secure an appropriate report on the relevant issues.20
The case will be remanded to OWCP for further development of the medical evidence on
whether appellant has established entitlement to an additional schedule award for her left lower
extremity. After such further development as it deems necessary, it should issue an appropriate
decision.
CONCLUSION
The Board finds that the case is not in posture for decision with respect to entitlement to
an additional schedule award for the left lower extremity and the case is remanded for further
development of the medical evidence.

19

Patricia J. Horney, 56 ECAB 256 (2005); Francesco C. Veneziani, 48 ECAB 572 (1997).

20

See Robert Kirby, 51 ECAB 474, 476 (2000); Mae Z. Hackett, 34 ECAB 1421 (1983).

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 23, 2010 is set aside and the case remanded for further
proceedings consistent with the above opinion.
Issued: December 1, 2011
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
BORDER PATROL, San Diego, CA, Employer
__________________________________________
Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 19-0602
Issued: March 26, 2020

Case Submitted on the Record

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

On January 22, 2019 appellant, through counsel, filed a timely appeal from a December 10,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of
the Appellate Boards docketed the appeal as No. 19-0602.
On September 23, 2016 appellant, then a 26-year-old border patrol agent, filed an
occupational disease claim (Form CA-2) alleging that she sustained an emotional condition due to
factors of her federal employment. She stopped work on April 3, 2013. Appellant also indicated
that she became aware of her emotional condition and its relation to her employment on
April 3, 2013. OWCP assigned this claim File No. xxxxxx673.
Under OWCP File No. xxxxxx881, OWCP had denied appellant’s prior emotional
condition claim, which allegedly arose on or about April 3, 2014 due to managerial harassment.
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.

The factual history of that claim appears to be part of the basis of the current claim, however, the
relevant evidence and decisions referenced in that case are not accessible by Board.
By decision dated March 29, 2017, OWCP denied her emotional condition claim.
Appellant subsequently requested reconsideration and OWCP denied modification by decisions
dated December 19, 2017 and December 10, 2018. In the December 10, 2018 decision denying
modification, the claims examiner specifically referenced appellant’s prior emotional claim in
OWCP File No. xxxxxx881 and found that appellant’s statement of alleged factors in the current
claim were inconsistent with the factual history presented in OWCP File No. xxxxxx881. While
the current record contains a medical report and a narrative statement prepared by appellant from
OWCP File No. xxxxxx881, the evidence and a copy of the relevant decision(s) issued by OWCP
under File No. xxxxxx881 are not currently accessible by the Board.
The Board finds that this case is not in posture for decision. Pursuant to 20 C.F.R.
§ 501.2(c)(1), the Board’s review of a case is limited to the evidence in the case record that was
before OWCP at the time of its final decision. Decisions on claims are based on the written record,
which may include forms, reports, letters, and other evidence of various types such as photographs,
videotapes or drawings.2 Evidence may not be incorporated by reference. A copy of that evidence
should be placed into the case file being adjudicated.3 All evidence that forms the basis of a
decision must be in that claimant’s case record.4
In adjudicating appellant’s current emotional claim, OWCP specifically referenced
information and decisions obtained from her other OWCP claim, File No. xxxxxx881, to discredit
her statement of alleged factors. However, it has not administratively combined the abovereferenced case records.5 The Board is therefore not in a position to make an informed decision
regarding whether OWCP properly denied appellant’s current emotional condition claim.6 The
Board finds that this case must be remanded to be administratively combined with File No.
xxxxxx881. After this and other such further development as deemed necessary, OWCP shall
issue a de novo decision.

2
Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5a
(June 2011).
3

Id.

4

Id.

5
See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8c
(February 2000) (cases should be combined when correct adjudication of the issues depends on frequent crossreference between files).
6
See T.C., Docket No. 19-1013 (issued December 31, 2019); L.H., Docket No. 17-1960 (issued August 16, 2018);
K.P., Docket No. 15-1945 (issued February 10, 2016).

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IT IS HEREBY ORDERED THAT the December 10, 2018 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: March 26, 2020
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.H., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Northport, NY, Employer
__________________________________________

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Appearances:
Paul Kalker, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-0488
Issued: September 12, 2017

Case Submitted on the Record

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

JURISDICTION
On January 3, 2017 appellant, through counsel, filed a timely appeal from November 3
and December 1, 2016 merit decisions 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.

ISSUES
The issues are: (1) whether appellant met her burden of proof to expand the accepted
conditions to include mild-to-moderate degenerative disc disease, degenerative changes of L5-S1
with mild facet arthrosis, cervical herniation, and lumbar sprain; and (2) whether appellant
established that she was totally disabled, beginning December 13, 2015, due to the accepted
December 10, 2015 employment injury.
On appeal counsel asserts that the medical evidence submitted supports that the
employment injury caused additional medical conditions and supported entitlement to disability
compensation.
FACTUAL HISTORY
On January 8, 2016 appellant, then a 59-year-old nursing assistant, filed a traumatic
injury claim (Form CA-1) alleging that on December 10, 2015 she injured her head and back
when she fell while assisting a patient. She stated that she “saw stars” and lost consciousness.
The employing establishment reported that appellant furnished differing stories regarding the
circumstances of the December 10, 2015 employment incident. Appellant stopped work on
December 13, 2015 and did not return.
By letter dated January 28, 2016, OWCP informed appellant of the evidence needed to
establish her claim and asked for additional information from appellant and the employing
establishment.
On a December 10, 2015 report from the employing establishment health unit,
Dr. Nicholas E. Sakellarios, an osteopath, provided a history that appellant reported that a patient
pushed her and she fell backward landing on her upper back with minimal head contact with the
floor and no loss of consciousness. Examination demonstrated no neurological deficits, no neck
tenderness, and some back tenderness. Dr. Sakellarios advised that appellant could return to
light duty. A cervical spine x-ray that day demonstrated no compression fracture or
spondylolisthesis, and mild to moderate degenerative disc disease.
On January 11, 2016 Dr. Elizabeth A. Werns, Board-certified in family medicine who
worked at the employing establishment, noted that appellant elected occupational health at the
employing establishment for her workers’ compensation injury of December 10, 2015.
Appellant related a history of attempting to help a patient stand when he pushed her, causing her
to fall, that she then hit her head on the wall and lost consciousness. She reported that she had
seen her private physician on December 14, 2015 who ordered a cervical spine magnetic
resonance imaging (MRI) scan. Dr. Werns reported that the scan showed straightening of
cervical lordosis, no vertebral body compression fracture or aggressive marrow lesion, a normal
spinal cord, unremarkable paraspinal soft tissues, and a congenital narrowing of the spinal canal.
In the same report she advised that the scan also demonstrated C6-7 uncovertebral and facet
hypertrophy that contributed to severe right and moderate left foraminal stenosis. Appellant
reported burning pain in the neck, bilateral shoulders, and low back. On examination, bending
backward reproduced burning from the right shoulder down and difficulty raising the right arm
above the head. There was no sign of discomfort in the lower back with a negative straight leg

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test bilaterally. A lumbar spine x-ray that day demonstrated findings consistent with
degenerative changes at L5-S1 and mild facet arthrosis. Right shoulder x-ray demonstrated
degenerative changes. Dr. Werns diagnosed neck sprain caused by the employment injury. She
advised that other conditions found were not related to the employment injury.
On January 14, 2016 appellant was seen by Dr. Lois S. Saltzman, a Board-certified
physiatrist at the employing establishment. Dr. Saltzman reported that the December 16, 2015
cervical MRI scan showed a C3-4 small central disc herniation without compression and no
foraminal stenosis, a C4-5 shallow broad-based central disc herniation with mild ventral spinal
cord flattening, a C5-6 broad-based left posterolateral disc herniation with mild ventral spinal
cord flattening and severe foraminal stenosis, a C7 broad-based central disc herniation, a C7-T1
small central disc herniation, and a T1-2 small noncompressive central disc herniation.
Dr. Saltzman noted that appellant did not bring the report to the appointment. She indicated that
appellant could not flex or abduct the right shoulder without assistance. Dr. Saltzman indicated
that, because she did not have access to all of appellant’s records, she could not correlate
appellant’s findings with the December 10, 2015 work injury. In a January 28, 2016 report, she
advised that appellant had been noncompliant regarding diagnostic tests ordered, physical
therapy, and occupational therapy. Examination was unchanged. Dr. Saltzman noted that she
was referring appellant back to employee health. On January 28, 2016 she advised that
employee health had recommended that appellant obtain examination from a primary care
physician.
In a February 11, 2016 statement, appellant reported a history of being hit by a patient,
who weighed approximately 260 pounds, and landing at an angle on the wall upside down with
loss of consciousness. She indicated that when she saw her private physician on December 15,
2015 he told her to stay home until January 29, 2016, and that she was still in pain.
The employing establishment controverted the claim. It noted that there were
inconsistent reports regarding the facts of the December 10, 2015 incident. A nursing note on
December 10, 2015 indicated that both the patient involved and his roommate reported that
appellant tripped over the patient’s feet and fell, and that no one pushed her. Also attached were
counseling notes in which the nurse manager counseled appellant regarding abuse of leave and
leaving work early without permission.
By decision dated March 4, 2016, OWCP accepted neck sprain due to the December 10,
2015 employment injury. It advised appellant to file a claim for compensation (Form CA-7) if
she wanted to claim wage loss.
In a second decision dated March 4, 2016, OWCP found that the medical evidence of
record was insufficient to establish that additional conditions of mild-to-moderate degenerative
disc disease, degenerative changes of L5-S1 with mild facet arthrosis, cervical herniation, and
lumbar sprain were caused by the December 10, 2015 employment injury.
Appellant was referred to a medical management nurse in March 2016. She did not
appear at an April 1, 2016 scheduled appointment with an orthopedic surgeon at the employing
establishment. The nurse noted that appellant was noncompliant in communicating with her.

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In April 26, 2016 correspondence, the employing establishment notified OWCP that it
had been unable to contact appellant since mid-March 2016. It attached a letter sent to her on
March 28, 2016, reminding her of the April 1, 2016 orthopedic appointment. In an April 26,
2016 letter to appellant, the employing establishment informed her of the need to contact her
supervisor and schedule a medical appointment to assess her condition.
On May 3, 2016 the employing establishment notified OWCP that, while it had a limitedduty position available for appellant, since she did not keep the April 1, 2016 medical
appointment, it could not finalize the position. A job description for the position was attached.
The duties involved assisting with feeding patients.
On August 1, 2016 appellant filed a Form CA-7 claim for compensation for wage loss
during the period December 13, “2016” to July 22, 2016. The employing establishment
indicated that she had not returned to work and had been on leave without pay since
December 13, 2015.
Appellant, through counsel, requested reconsideration on August 5, 2016. Counsel
maintained that the December 10, 2015 employment injury additionally caused aggravation of
degenerative disc disease, degenerative changes of L5-S1 with facet arthrosis, disc herniations at
C3-4, C4-5, and C5-6, right shoulder rotator cuff tear, and concussion/head injury.
Counsel submitted an April 14, 2016 report in which Dr. Rasheed U. Jafar, an attending
Board-certified internist, advised that appellant had been his patient since August 10, 2015. He
indicated that she reported that she was injured on December 10, 2015 when a patient stood from
his wheelchair, leaned into her, and pushed her into a corner, causing her to fall and lose
consciousness. Dr. Jafar advised that appellant had been medically unable to work since the
employment injury which resulted in additional conditions of aggravation of degenerative
changes at L5-S1 with facet arthrosis, cervical herniation, lumbar sprain, disc herniations at C34, C4-5, and C5-6, right shoulder torn supraspinatus, infraspinatus and subscapularis tendons,
and possible concussion/head injury with dysarthria and change of mental status.
In an August 3, 2016 report, Dr. Jonathan Finkelstein, who practices pain medicine, noted
a chief complaint of neck pain. He reported a history that appellant was pushed into a wall by a
patient where she injured her head, neck, and back. Dr. Finkelstein described the December 16,
2015 cervical MRI scan findings, noting multilevel degenerative changes superimposed on a
congenitally narrow spinal canal, left posterolateral disc herniation at C5-6 with mild ventral
spinal cord flattening and severe left foraminal stenosis, shallow broad-based central disc
herniation at C4-5 with mild ventral spinal cord flattening, and small noncompressive central
disc herniations at C3-4, C6-7, C7-T1, and T1-2. He also noted that an April 8, 2016 cervical
computerized tomography (CT) scan showed moderate to marked degenerative disc narrowing
and hypertrophic spurring at C4-5, C5-6, and C6-7, and mild bony compromise of the neural
foramen at these levels bilaterally. Cervical spine examination demonstrated painful decreased
range of motion, no spasm, and tenderness on examination. Right shoulder examination revealed
painful restricted range of motion. Dr. Finkelstein diagnosed cervical herniated disc, right
shoulder pain, facet hypertrophy, and foraminal stenosis of the cervical region. He opined that
appellant’s neck pain complaints were consistent with her mechanism of injury secondary to the
employment injury as reported by her. Dr. Finkelstein advised that she had been rated totally

4

disabled by her primary care physician, Dr. Jafar. He recommended cervical epidural injections,
topical medication, and a right shoulder MRI scan.
In a November 3, 2016 merit decision, OWCP found that the medical evidence submitted
was insufficiently rationalized to establish additional employment-related conditions.
Dr. Finkelstein again treated appellant on October 19, 2016 for worsening neck pain that
radiated to both arms. Appellant had decreased neck and right shoulder range of motion with
tenderness to palpation. Dr. Finkelstein noted his diagnoses and advised that she was totally
disabled. On October 25, 2016 he provided lumbar epidural injections.
In a December 1, 2016 decision, OWCP denied appellant’s claim for disability
compensation for the period December 13, 2015 and continuing. It found that the medical
evidence of record did not contain a rationalized explanation on causal relationship.
LEGAL PRECEDENT -- ISSUE 1
An employee has the burden of proof to establish that any specific condition for which
compensation is claimed is causally related to the employment injury.3 Causal relationship is a
medical issue, and the medical evidence required to establish a causal relationship is rationalized
medical evidence.4 The opinion of the physician must be based on a complete factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the employee.5 Neither the mere
fact that a disease or condition manifests itself during a period of employment, nor the belief that
the disease or condition was caused or aggravated by employment factors or incidents is
sufficient to establish causal relationship.6
It is well established that where employment factors cause an aggravation of an
underlying physical condition, the employee is entitled to compensation for periods of disability
related to the aggravation. Where the medical evidence supports an aggravation or acceleration
of an underlying condition precipitated by working conditions or injuries, such disability is
compensable. However, the normal progression of untreated disease cannot be stated to
constitute “aggravation” of a condition merely because the performance of normal work duties
reveal the underlying condition. For the conditions of employment to bring about an aggravation
of preexisting disease, the employment must cause acceleration of the disease or precipitate
disability.7

3

Kenneth R. Love, 50 ECAB 276 (1999).

4

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

5

Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler, 45 ECAB 365 (1994).

6

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

7

A.C., Docket No. 08-1453 (issued November 18, 2008).

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ANALYSIS -- ISSUE 1
OWCP accepted that a December 10, 2015 employment incident caused neck sprain.
The Board finds that appellant has not met her burden of proof to establish that additional
conditions were caused by the December 10, 2015 employment incident.
The opinion of a physician supporting causal relationship must be based on a complete
factual and medical background, supported by affirmative evidence, must address the specific
factual and medical evidence of record, and must provide medical rationale explaining the nature
of the relationship between the diagnosed condition and the established incident or factor of
employment.8 No physician did so in this case.
The Board notes that the record does not contain a report of the December 16, 2015
cervical MRI scan referenced by Dr. Werns, Dr. Saltzman, and Dr. Friedman. Likewise, a record
of the cervical CT scan completed on April 8, 2016 is not in the case record. Dr. Werns provided
two interpretations in her January 11, 2016 report. She initially related that the study showed
straightening of cervical lordosis, no vertebral body compression fracture or aggressive marrow
lesion, a normal spinal cord, unremarkable paraspinal soft tissues, and a congenital narrowing of
the spinal canal. On the same report, Dr. Werns also advised that the cervical MRI scan also
demonstrated C6-7 uncovertebral and facet hypertrophy that contributed to severe right and
moderate left foraminal stenosis. Dr. Saltzman, who reported on January 14, 2016 that appellant
did not bring a copy of the December 16, 2015 MRI scan with her, related that it showed a C3-4
small central disc herniation without compression and no foraminal stenosis, a C4-5 shallow
broad-based central disc herniation with mild ventral spinal cord flattening, a C5-6 broad-based
left posterolateral disc herniation with mild ventral spinal cord flattening and severe foraminal
stenosis, a C7 broad-based central disc herniation, a C7-T1 small central disc herniation, and a
T1-2 small noncompressive central disc herniation.
Dr. Finkelstein reported that the
December 16, 2015 study demonstrated noting multilevel degenerative changes superimposed on
a congenitally narrow spinal canal, left posterolateral disc herniation at C5-6 with mild ventral
spinal cord flattening and severe left foraminal stenosis, shallow broad-based central disc
herniation at C4-5 with mild ventral spinal cord flattening, and small noncompressive central
disc herniations at C3-4, C6-7, C7-T1, and T1-2. He also noted that the April 8, 2016 cervical
CT scan demonstrated moderate-to-marked degenerative disc narrowing and hypertrophic
spurring noted at C4-5, C5-6, and C6-7, and mild bony compromise of the neural foramen at
these levels bilaterally.
The Board has long held that medical evidence such as a diagnostic study report that does
not offer an opinion regarding the cause of a diagnostic condition is of limited probative value on
the issue of causal relationship.9 Furthermore, in the case at hand, without the actual scan reports
and, because the physicians above offered differences in interpretation of the December 16, 2015
MRI scan, the Board finds that their interpretations are of diminished probative value and
insufficient to establish additional employment-related conditions.

8

Robert Broome, 55 ECAB 339 (2004).

9

Willie M. Miller, 53 ECAB 697 (2002).

6

While appellant reported to Dr. Werns that she lost consciousness at the time of the
December 10, 2015 employment injury, Dr. Werns diagnosed employment-related neck sprain
and advised that any other conditions were not due to the work injury.
Dr. Jafar indicated in his April 14, 2016 report that appellant reported that she was
injured on December 10, 2015 when a patient stood from his wheelchair, leaned into her, and
pushed her into a corner, causing her to fall and lose consciousness. He advised that the
December 10, 2015 injury also caused aggravation of degenerative changes at L5-S1 with facet
arthrosis, cervical herniation, lumbar sprain, disc herniations at C3-4, C4-5, and C5-6, right
shoulder torn supraspinatus, infraspinatus, and subscapularis tendons, and possible
concussion/head injury with dysarthria, and change of mental status. As to his August 3, 2016
report, Dr. Finkelstein reported a history that appellant was pushed into a wall by a patient and
injured her head, neck, and back. He diagnosed cervical herniated disc, right shoulder pain, facet
hypertrophy, and foraminal stenosis of the cervical region. Dr. Finkelstein related that it was his
professional opinion that appellant’s neck pain complaints were consistent with her mechanism
of injury secondary to the employment injury as reported by her.
While the opinion supporting causal relationship does not have to reduce the cause or
etiology of a disease or condition to an absolute certainty, the opinion must be one of reasonable
medical certainty, and not speculative or equivocal in character. A medical opinion not fortified
by medical rationale is of diminished probative value.10 Moreover, an opinion that a condition is
causally related because the employee was asymptomatic before the injury is insufficient,
without sufficient rationale, to establish causal relationship.11
Neither Dr. Jafar nor
Dr. Finkelstein offered sufficient rationale explaining how the December 10, 2015 employment
injury caused or aggravated their diagnosed conditions. Their reports, therefore, are insufficient
to meet appellant’s burden of proof.
Rationalized medical evidence is evidence which relates a work incident or factors of
employment to a claimant’s condition, with stated reasons of a physician. The opinion must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship of the diagnosed condition and the specific employment factors or
employment injury.12 The Board finds that appellant has not submitted sufficient rationalized
medical evidence supporting causal relationship between any of the claimed additional
conditions and the October 21, 2011 employment injury.13

10

W.W., Docket No. 09-1619 (issued June 2, 2010).

11

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

12

C.O., Docket No. 10-0189 (issued July 15, 2010).

13

As to appellant’s assertion that she also established right shoulder and neurological conditions, the Board’s
jurisdiction is limited to review of final adverse OWCP decisions issued within 180 days from the filing of the
appeal. 20 C.F.R. § 501.3; see J.B., Docket No. 09-2191 (issued May 14, 2010). The record does not contain an
OWCP decision on this matter within the Board’s jurisdiction.

7

LEGAL PRECEDENT -- ISSUE 2
Under FECA the term “disability” means the incapacity, because of an employment
injury, to earn the wages that the employee was receiving at the time of injury. Disability is thus
not synonymous with physical impairment, which may or may not result in an incapacity to earn
wages. An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the
time of injury, has no disability as that term is used in FECA.14 Furthermore, whether a
particular injury causes an employee to be disabled from employment and the duration of that
disability are medical issues which must be proved by a preponderance of the reliable, probative
and substantial medical evidence.15 Causal relationship is a medical issue, and the medical
evidence required to establish causal relationship is rationalized medical evidence.16
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish that she had
employment-related disability beginning December 13, 2015 causally related to the accepted
December 10, 2015 neck sprain.
The issue of disability from work can only be resolved by competent medical evidence.17
The issue of whether a claimant’s disability is related to an accepted condition is a medical
question which must be established by a physician who, on the basis of a complete and accurate
factual and medical history, concludes that the disability is causally related to employment
factors and supports that conclusion with sound medical reasoning.18 A physician’s opinion on
causal relationship between a claimant’s disability and an employment injury is not dispositive
simply because it is rendered by a physician. To be of probative value, the physician must
provide rationale for the opinion reached. Where no such rationale is present, the medical
opinion is of diminished probative value.19
On the date of injury, December 10, 2015, following his examination, Dr. Sakellarios
advised that appellant could return to light duty. Although appellant reported on February 11,
2016 that she saw her private physician on December 15, 2015, and he told her to stay home
until January 29, 2016, there is no report of record from a physician dated December 15, 2015.
Dr. Werns, Dr. Saltzman, and Dr. Friedman did not comment on appellant’s work capacity.
In his April 14, 2016 report, Dr. Jafar advised that appellant had been medically unable to
work since the December 10, 2015 employment injury due to aggravation of degenerative
14

See 20 C.F.R. § 10.5(f); Cheryl L. Decavitch, 50 ECAB 397 (1999).

15

Fereidoon Kharabi, 52 ECAB 291 (2001).

16

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

17

R.C., 59 ECAB 546 (2008).

18

See Sandra D. Pruitt, 57 ECAB 126 (2005).

19

Thaddeus J. Spevack, 53 ECAB 474 (2002).

8

changes at L5-S1 with facet arthrosis, cervical herniation, lumbar sprain, disc herniations at C34, C4-5, and C5-6, right shoulder torn supraspinatus, infraspinatus and subscapularis tendons,
and possible concussion/head injury with dysarthria and change of mental status. These
conditions have not been accepted as causally related to the December 10, 2015 employment
injury and Dr. Jafar did not relate any disability to the accepted neck sprain. Other than his
generalized explanation that appellant was medically unable to work, he failed to offer any
rationale for his opinion. The issue of whether a claimant’s disability is related to an accepted
condition is a medical question, which must be established by a physician who, on the basis of a
complete and accurate factual and medical history, concludes that the disability is causally
related to employment factors and supports that conclusion with sound medical reasoning.20
Medical conclusions unsupported by rationale are of diminished probative value and insufficient
to establish causal relationship.21 None of the medical reports of record explain with sufficient
rationale how appellant’s accepted neck sprain caused her to be disabled from work as of
December 13, 2015.22
As appellant did not submit sufficient rationalized medical opinion evidence to establish
that she was disabled for work beginning December 13, 2015 due to accepted cervical strain, she
has failed to establish that the claimed disability was employment related. She was thus not
entitled to wage-loss compensation for the period claimed.23
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that additional
conditions were causally related to the December 10, 2015 employment injury, and further finds
that she has not met her burden of proof to establish that she was totally disabled beginning
December 13, 2015 due to the accepted December 10, 2015 employment injury.

20

Supra note 18.

21

See Albert C. Brown, 52 ECAB 152 (2000).

22

See S.B., Docket No. 13-1162 (issued December 12, 2013).

23

N.R., Docket No. 14-0114 (issued April 28, 2014).

9

ORDER
IT IS HEREBY ORDERED THAT the December 1 and November 3, 2016 decisions
of the Office of Workers’ Compensation Programs are affirmed.
Issued: September 12, 2017
Washington, DC

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

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

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

10


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

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

Docket No. 16-0589
Issued: February 3, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On February 8, 2016 appellant, through counsel, filed a timely appeal from a January 7,
2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the 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 established permanent impairment for more than one
percent permanent impairment of the left lower extremity, for which he had received a schedule
award.
On appeal counsel argues the decision is contrary to law and fact.
FACTUAL HISTORY
On December 24, 2010 appellant, then a 31-year-old rural carrier associate, filed a
traumatic injury claim (Form CA-1) alleging that on that day he injured his left lower leg when
he slipped on ice. OWCP accepted the claim for left knee and lower leg contusion, left ligament,
leg, and knee sprain, left chondromalacia, except patella, and pain lower leg joint. Appellant
received wage-loss compensation benefits on the supplemental and periodic rolls from
February 11, 2011 until June 29, 2013. She underwent authorized left knee arthroscopic surgery
on February 21, 2013. Appellant was released to return to work with no restrictions effective
June 19, 2013.
On September 19, 2013 appellant filed a claim for a schedule award. OWCP thereafter
received a December 11, 2013 report from Dr. Neil Allen, a Board-certified internist and
neurologist. Dr. Allen noted that he had examined appellant on November 6, 2013, provided a
history of employment injury, and reviewed the medical evidence. He reported that his
examination of appellant’s left knee revealed reduced knee extension, antalgic gait, and severe
tenderness on palpation of the medial joint and joint line. The range of motion for the left knee
was 125 degrees flexion and 0 degree extension, with the right knee at 140 degrees flexion
and -5 degrees extension. A review of a January 19, 2011 magnetic resonance imaging (MRI)
scan of the left knee revealed subchondral fractures on the anteriomedial medial tibial plateau
and anterior medial tibial plateau chronic cystic changes/geodes. Dr. Allen also reviewed a
May 17, 2011 MRI scan which was unchanged from the earlier MRI scan of January 19, 2011
that showed joint space narrowing and loss of joint cartilage.
Referring to the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (hereinafter A.M.A., Guides), he noted a class 1 for
primary knee arthritis according to Table 16-3 for a diagnosis-based impairment with a default
value of grade C or seven percent.3 Dr. Allen found a grade modifier of one for Functional
History (GMFH) according to Table 16-64 for lower limb score of 60 and an antalgic gait. He
noted a grade modifier of one for findings on Physical Examination (GMPE) due to severe
tenderness according to Table 16-7.5 Dr. Allen noted that no grade modifier was assessed for
Clinical Studies (GMCS) as he used the studies to determine class placement. Applying the net
adjustment formula of (GMFH-CDX) + GMPE-CDX) or 1-1 + 1-1 = 0, he found no adjustment

3

A.M.A., Guides 511, Table 16-3.

4

Id. at 516, Table 16-6.

5

Id. at 517, Table 16-7.

2

in the default grade C impairment of seven percent.6 Dr. Allen concluded that appellant had a
seven percent left lower extremity permanent impairment.
On March 18 and September 24, 2014 OWCP referred the case to an OWCP medical
adviser for review. In a report dated September 29, 2014, the medical adviser reviewed the
medical record and performed an impairment rating. He asserted that Dr. Allen had misapplied
the A.M.A., Guides in reaching seven percent impairment as it was unsupported by the objective
evidence as there was no evidence to establish the cartilage interval necessary for the seven
percent rating. A review of the medical record showed appellant had responded well to his
surgery and had been released to full-duty work with no restrictions on June 19, 2013.
Examination findings by appellant’s treating physician showed residual medial joint line pain, no
instability at the collateral or cruciate ligament, and knee range of motion was 0 to 125 degrees.
Using Table 16-3,7 the medical adviser found one percent impairment for class 1 for a diagnosis
of plica resection with significant palpatory findings. He found no change using the net
adjustment formula. The medical adviser determined June 19, 2013 to be the date of maximum
medical improvement because this was the date appellant returned to work with no restrictions.
By decision dated February 23, 2015, OWCP granted appellant a schedule award for a
one percent permanent impairment of the left lower extremity. The award ran from June 30 to
July 20, 2013.
In a letter dated October 23, 2015, counsel requested reconsideration and submitted an
August 26, 2015 report by Dr. Allen.
In an August 26, 2015 addendum, Dr. Allen noted that he based his opinion on a
January 19, 2011 MRI scan which showed subchondral fractures on the anteriomedial tibial
plateau and chronic anterior tibial plateau cystic changes/geodes. He explained that the cartilage
interval was not necessary if there was a presence of subchondral fractures. Dr. Allen reiterated
his finding of a default value of seven percent under Table 16-3, page 511 for the diagnosis of
primary knee joint arthritis.
On December 14, 2015 OWCP referred the case to an OWCP medical adviser for review
and an impairment determination. In a December 21, 2015 report, the medical adviser reviewed
the medical evidence. He asserted that Dr. Allen had misapplied the A.M.A., Guides and his
recommendation was inconsistent with orthopedic surgical principles. The medical adviser
noted that neither the January 19 nor the May 17, 2011 MRI scans showed any aggravation of
appellant’s preexisting osteoarthritis and patella chondromalacia due to the December 24, 2010
employment injury as there were no signs of acute injury or internal derangement. In addition,
the February 21, 2013 arthroscopic surgery reported no evidence of any acute injury of
appellant’s preexisting patella chondromalacia. Using Table 16-3, the medical adviser found a
class one for contusion history with a default grade C or one percent impairment. He found a net
adjustment of zero for one percent left lower extremity permanent impairment.

6

Id. at 521.

7

Id. at 509, Table 16-3.

3

By decision dated January 7, 2016, OWCP denied modification of its prior decision.
LEGAL PRECEDENT
Under section 8107 of FECA8 and section 10.404 of the implementing federal
regulations,9 schedule awards are payable for permanent impairment of specified body members,
functions, or organs. FECA, however, does not specify the manner in which the percentage of
impairment shall be determined. For consistent results and to ensure equal justice under the law
for all claimants, good administrative practice necessitates the use of a single set of tables so that
there may be uniform standards applicable to all claimants. The A.M.A., Guides has been
adopted by the implementing regulations as the appropriate standard for evaluating schedule
losses.10 The sixth edition of the A.M.A., Guides provides a diagnosis-based method of
evaluation utilizing the World Health Organization’s International Classification of Functioning,
Disability and Health (ICF).11 Under the sixth edition, the evaluator identifies the impairment
for the Class of Diagnosis (CDX) condition, which is then adjusted by grade modifiers based on
GMFH, GMPE, and GMCS.12 The net adjustment formula is (GMFH-CDX) + (GMPE - CDX)
+ (GMCS - CDX).13 It is well established that in determining the amount of a schedule award
for a member of the body that sustained an employment-related permanent impairment,
preexisting impairments of the body are to be included.14
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with an OWCP medical
adviser providing rationale for the percentage of impairment specified.15

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404

10

D.J., 59 ECAB 620 (2008); Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

11

A.M.A., Guides 3 (6th ed., 2009), section 1.3, The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.
12

Id. at 383-419.

13

Id. at 411.

14

See B.M., Docket No. 09-2231 (issued May 14, 2010); Beatrice L. High, 57 ECAB 329 (2006); Dale B. Larson,
41 ECAB 481 (1990); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter
3.700.3(a)(3) (January 2010). This portion of OWCP’s procedure provides that the impairment rating of a given
scheduled member should include any preexisting permanent impairment of the same member or function.
15

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013). See C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57
ECAB 349 (2006).

4

ANALYSIS
OWCP accepted appellant’s claim for left knee and lower leg contusion, left ligament,
leg, and knee sprain, left chondromalacia, except patella, and pain lower leg joint. It authorized
left knee arthroscopic surgery for chondroplasty. By decision dated February 23, 2015, OWCP
granted appellant a schedule award for a one percent permanent impairment of the left lower
extremity. Counsel requested reconsideration. On January 7, 2016 OWCP denied modification
of its schedule award determination. The issue on appeal is whether appellant established more
than one percent permanent impairment.
The Board finds that this case is not in posture for a decision.
In support of his request for an increased schedule award, appellant submitted
impairment ratings from Dr. Allen dated December 11, 2013 and August 26, 2015. Referring to
Table 16-3, page 511 of the A.M.A., Guides, Dr. Allen found seven percent diagnosis-based
impairment of the left lower extremity based on class 1, presumably for primary knee arthritis,
with a default value of seven percent.16 In the August 26, 2014 addendum, he noted that his
impairment rating was based upon a January 19, 2011 MRI scan which noted subchondral
fractures. Dr. Allen explained that, according to Table 16-3, page 511, appellant qualified for a
class 1 impairment (for primary knee arthritis with osteochondral fracture) with a default value
of seven percent permanent impairment.
In a report dated September 29, 2014, OWCP’s medical adviser reviewed the medical
record and performed an impairment rating. He asserted that Dr. Allen, in his December 11,
2013 impairment rating, had misapplied the A.M.A., Guides in assessing seven percent
impairment as the recommendation was unsupported by the objective evidence. Using Table 163, page 509, the medical adviser found one percent impairment for plica resection with
significant palpatory findings. He found no change using the net adjustment formula and
determined the date of maximum medical improvement as June 19, 2013. In a December 21,
2015 report, the medical adviser reviewed Dr. Allen’s August 6, 2015 addendum and asserted
that Dr. Allen had again misapplied the A.M.A., Guides. He explained that the preexisting
chondromalacia was not affected by the work injury. The medical adviser found a class 1 for
contusion history with a default grade C or one percent impairment using Table 16-3, page 516.
He found a net adjustment of zero for one percent left lower extremity permanent impairment.
The medical adviser noted that the January and May 2011 MRI scans both showed
preexisting degenerative arthritis and chondromalacia of the patella. He further noted that the
work-related injury had not aggravated the preexisting osteoarthritis. In determining the amount
of a schedule award for a member of body that sustained an employment-related impairment,
preexisting impairments of the same member are to be included if the work injury affected any
residual usefulness in whole or in part.17

16

A.M.A., Guides 511, Table 16-3.

17

See supra note 14.

5

In denying modification of the February 23, 2015 schedule award determination, OWCP
relied on the medical adviser’s reports dated September 29, 2014 and December 21, 2015. In
both reports, the medical adviser asserted that Dr. Allen had improperly applied the A.M.A.,
Guides in his impairment determination, and that Dr. Allen’s recommendation was inconsistent
with orthopedic surgical principles. The medical adviser however did not explain whether
appellant’s preexisting condition had been considered or whether it should be considered in the
impairment rating. The lack of a well-rationalized opinion and generalization in discounting
Dr. Allen’s impairment determination is insufficient to deny an increased schedule award claim.
As noted above, OWCP procedures provide that impairment ratings for schedule awards
include those conditions accepted by OWCP as employment related and any preexisting
permanent impairment of the same member or function. If the work-related injury has affected
any residual usefulness in whole or in part, a schedule award may be appropriate as there is no
apportionment.18 The Board is unable to determine from the current record whether Dr. Allen or
OWCP’s medical adviser appropriately applied the A.M.A., Guides in determining appellant’s
permanent impairment for schedule award purposes, therefore this case must be remanded for
further development and appropriate impairment rating under the A.M.A., Guides.19
The Board will remand the case to OWCP for further medical development. OWCP
should refer appellant to a second opinion specialist to properly determine the impairment to
appellant’s left lower extremity based on the accepted employment injuries and utilizing the
proper tables and figures of the A.M.A., Guides. The referral physician should give
consideration to the impact of the accepted employment injuries on appellant’s preexisting left
knee condition when determining the impairment rating. After such further development as
necessary, OWCP shall issue a de novo decision on the extent of impairment to appellant’s left
lower extremity.
CONCLUSION
The Board finds that this case is not in posture for a decision.

18

B.K., 59 ECAB 228 (2007). See also Federal (FECA) Procedure Manual, supra note 15 at Chapter 2.808.5(d)
(February 2013) (schedule awards may include preexisting impairments as there is no apportionment under FECA).
19

See C.S., Docket No. 14-1085 (issued August 27, 2014) (finding that when the medical adviser does not
provide sufficient explanation for his rating that his report is not entitled to constitute the weight of the medical
opinion evidence).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 7, 2016 is set aside and the case remanded for further
development consistent with the above opinion.
Issued: February 3, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Tucson, AZ, Employer
__________________________________________

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

Docket No. 12-482
Issued: July 20, 2012

Case Submitted on the Record

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

JURISDICTION
On January 4, 2012 appellant filed a timely appeal from August 17 and December 22,
2011 merit decisions 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 schedule award issue.
ISSUE
The issue is whether appellant sustained a ratable impairment entitling him to a schedule
award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 26, 2008 appellant, then a 60-year-old customs and border protection officer,
injured his lower back while in the performance of duty.2 A January 14, 2009 magnetic
resonance imaging (MRI) scan obtained by Dr. Lawrence D. Buadu, a Board-certified diagnostic
radiologist, confirmed significant degenerative changes at L4-5 and L5-S1. Appellant underwent
bilateral L4-5 laminectomy for decompression on March 3, 2009.3 OWCP accepted his
traumatic injury claim for permanent aggravation of L4-5 stenosis and degenerative disc disease
resulting in L4-5 intervertebral disc displacement and radiculitis. Appellant received disability
compensation accordingly.4
A July 2, 2010 MRI scan obtained by Dr. Nicholas C. Fraley, a Board-certified diagnostic
radiologist, exhibited L4-5 facet arthropathy, degenerative disc disease and central stenosis, inter
alia. On September 22, 2010 appellant underwent L4-5 posterolateral and posterior lumbar
interbody fusion and decompressive laminectomy.
Postoperative x-rays conducted on
September 26, 2010 by Dr. Jae K. Kim, a Board-certified diagnostic radiologist, showed
satisfactory alignment without complications.
Dr. Stephen L. Curtin, a Board-certified orthopedic surgeon, remarked in a March 22,
2011 report that appellant, who complained of residual right leg numbness, was otherwise “doing
quite well” after his recent lumbar surgery. On examination, he observed a well-healed surgical
scar as well as normal bilateral extremity strength and sensation. X-rays demonstrated good
lumbar alignment and early consolidation of fusion. Dr. Curtin opined that appellant reached
maximum medical improvement and recommended an impairment examination.
In an April 21, 2011 report, Dr. Caryl S. Brailsford-Gorman, a Board-certified
occupational physician, examined appellant and found limited lumbar range of motion and
diffuse muscle pain. She also observed the absence of Achilles reflex, nonreactive toes, poor
balance and a “sensory deficit in wheel in a stocking formation through [appellant’s] lower
extremity mid calf.” Following a review of the medical file, including Dr. Fraley’s July 2, 2010
MRI scan and Dr. Curtin’s March 22, 2011 report, Dr. Brailsford-Gorman diagnosed
work-related lumbar spondylosis spinal stenosis and post-laminectomy syndrome. Applying
Table 17-4 (Lumbar Spine Regional Grid) of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides),5 she assigned an impairment class
(CDX) of 2 for lumbar stenosis based on evidence of motion segment instability, facet
hypertrophy and neurogenic claudication.6 Dr. Brailsford-Gorman calculated a 12 percent

2

Appellant previously filed a claim concerning an April 23, 1998 thoracic spine injury, which OWCP accepted as
employment related. OWCP File No. xxxxxx171.
3

The foregoing information was incorporated into the June 11, 2009 statement of accepted facts.

4

Appellant retired effective June 30, 2011.

5

A.M.A., Guides (6th ed. 2008).

6

Id. at 571.

2

impairment rating of the whole person and determined that no further adjustments were
warranted.
Appellant filed a claim for a schedule award on May 5, 2011.
In a July 28, 2011 report, Dr. Christopher R. Brigham, OWCP’s medical adviser and a
Board-certified occupational physician, reviewed Dr. Brailsford-Gorman’s April 21, 2011 report
and disagreed with her opinion. He indicated that a schedule award could not be issued for
permanent impairment of the spine or the whole person. Because Dr. Brailsford-Gorman
identified neurological symptoms involved the lower extremities, Dr. Brigham commented that
she should have based her impairment rating on the supplemental publication “Rating Spinal
Nerve Extremity Impairment Using the Sixth Edition” (The Guides Newsletter).7 After he
reviewed the June 11, 2009 statement of accepted facts and medical file, he pointed out that
Dr. Brailsford-Gorman’s findings conflicted with Dr. Curtin’s March 22, 2011 report, which
documented full lower extremity strength and motor function notwithstanding appellant’s
subjective complaint of residual right leg numbness. In addition, Dr. Brailsford-Gorman’s view
that the sensory deficit was in a stocking formation “does not follow a dermatomal distribution
and cannot be rated.” In the absence of consistent evidence showing sensory or motor deficits in
the distribution of a specific spinal nerve root, Dr. Brigham concluded that appellant did not
sustain a ratable lower extremity impairment.
By decision dated August 17, 2011, OWCP denied appellant’s schedule award claim,
finding that the medical evidence did not sufficiently demonstrate permanent impairment of a
scheduled member.
Appellant requested reconsideration on October 7, 2011 and submitted new medical
evidence. In a September 26, 2011 report, Dr. Curtin advised that appellant was taking
medication for leg cramps and numbness, but was “clinically doing well” one year after L4-5
decompression fusion. On examination, he observed full strength motor function and light touch
sensation of the lower extremities. Dr. Curtin noted blunted bilateral ankle jerk reflexes, but
could not elicit bilateral knee reflexes. X-rays exhibited solid L4-5 fusion. Citing Table 17-4 of
the A.M.A., Guides, Dr. Curtin assigned a CDX of 1 for resolved radiculopathy with loss of
motion segment.
In a November 11, 2011 report, Dr. Brigham reviewed Dr. Curtin’s September 26, 2011
report and disagreed with his opinion. He reiterated that a schedule award could not be issued
for permanent impairment of the spine and that the impairment rating should be based on
The Guides Newsletter. Dr. Brigham determined that appellant did not sustain a ratable lower
extremity impairment, pointing out that Dr. Curtin found appellant’s motor function and
sensation intact.
On December 22, 2011 OWCP denied modification of the August 17, 2011 decision.

7

Christopher R. Brigham, M.D., “Rating Spinal Nerve Extremity Impairment Using the Sixth Edition,” The
Guides Newsletter (July and August 2009).

3

LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss of or loss of use of scheduled members or functions of the body.8 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.9
Although the A.M.A., Guides presents methods for estimating impairment to the spine
and to the whole person,10 FECA does not authorize schedule awards for loss of use of the back
or the body as a whole.11 Amendments to FECA, however, modified the schedule award
provision to allow for an award for permanent impairment to a member of the body covered by
the schedule regardless of whether the cause of the impairment originated in a scheduled or
nonscheduled member. As the schedule award provisions of FECA include the extremities, a
claimant may be entitled to a schedule award for permanent impairment to a limb even though
the cause of the impairment originated in the spine.12
The A.M.A., Guides provides a diagnosis-based method of evaluation utilizing the World
Health Organization’s International Classification of Functioning, Disability and Health (ICF).
For lower extremity impairments, the evaluator identifies the impairment class for the diagnosed
condition (CDX), which is then adjusted by grade modifiers based on Functional History
(GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS). The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX). Evaluators are directed to
provide reasons for their impairment rating choices, including the choices of diagnoses from
regional grids and calculations of modifier scores.13
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as impairments of the extremities. Recognizing that FECA allows ratings
for extremities and precludes ratings for the spine, The Guides Newsletter offers an approach to

8

5 U.S.C. § 8107; 20 C.F.R. § 10.404. No schedule award is payable for a member, function or organ of the
body not specified under FECA or the implementing regulations. J.Q., 59 ECAB 366 (2008).
9

K.H., Docket No. 09-341 (issued December 30, 2011).

10

See B.M., Docket No. 09-2231 (issued May 14, 2010); Janae J. Triplette, 54 ECAB 792 (2003).

11

J.Q., supra note 8. FECA expressly defines “organ” as “a part of the body that performs a special function and
for purposes of this subchapter excludes the brain, heart and back.” 5 U.S.C. § 8101(19). Also, a description of
impairment in terms of “whole person” or “whole body” is not probative as to the extent of loss of use of a specific
scheduled member of the body under section 8107 of FECA. R.I., Docket No. 09-1559 (issued August 23, 2010).
12

W.D., Docket No. 10-274 (issued September 3, 2010); Rozella L. Skinner, 37 ECAB 398 (1986).

13

R.V., Docket No. 10-1827 (issued April 1, 2011).

4

rating spinal nerve impairments consistent with sixth edition methodology.14 OWCP has
adopted this approach for rating impairment to the upper or lower extremities caused by a spinal
injury.15
ANALYSIS
The Board finds that appellant did not sustain a ratable impairment.
OWCP accepted that appellant sustained permanent aggravation of L4-5 stenosis and
degenerative disc disease resulting in L4-5 intervertebral disc displacement and radiculitis, for
which he had a L4-5 laminectomy for decompression on March 3, 2009, as a result of an
August 26, 2008 work injury. Thereafter, he filed a claim for a schedule award and furnished
medical evidence. Dr. Brailsford-Gorman calculated a 12 percent impairment rating of the
whole person in an April 21, 2011 report. Dr. Curtin also diagnosed a lumbar impairment due to
resolved radiculopathy and loss of motion in a September 26, 2011 report. As noted, FECA does
not permit schedule awards for impairment of the back or the body as a whole. Furthermore, as
Dr. Brigham correctly pointed out, neither Dr. Brailsford-Gorman nor Dr. Curtin used the
appropriate scheme set forth in The Guides Newsletter for rating extremity impairment resulting
from an injury to the spine. Therefore, these reports were insufficient to establish permanent
impairment of a scheduled body member.16
On the other hand, the Board finds that Dr. Brigham’s opinion constitutes the weight of
the medical evidence. The weight of the medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.17 In his July 28 and November 11, 2011 reports,
Dr. Brigham comprehensively reviewed the June 11, 2009 statement of accepted facts and the
medical file. He found that the totality of the evidence showed full lower extremity strength,
motor function and sensation as well as the absence of any sensory or motor deficits in the
distribution of a specific spinal nerve root. Thereafter, Dr. Brigham concluded that a schedule
award was not warranted under The Guides Newsletter. In view of this rationalized medical
opinion, the Board finds that OWCP properly denied appellant’s claim.
Appellant contends on appeal that the mere fact that he has undergone fusion surgery and
has four screws in his lower back sufficiently establishes permanent impairment. The Board has
held that an employee’s entitlement to a schedule award must be supported by the medical

14

L.J., Docket No. 10-1263 (issued March 3, 2011).

15

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit
4 (January 2010).
16

The Board further notes that notwithstanding their citations to Table 17-4 of the A.M.A., Guides, neither
Dr. Brailsford-Gorman nor Dr. Curtin offered a rationalized opinion as to the percentage of permanent impairment.
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.6(a)-(c) (January 2010).
17

I.R., Docket No. 09-1229 (issued February 24, 2010); James Mack, 43 ECAB 321, 329 (1991).

5

evidence, not his personal belief.18 Appellant also asserts that Dr. Curtin’s impairment rating
sufficiently established his claim. The Board has already addressed the deficiencies of his report.
Appellant may request a schedule award based on evidence of a new exposure or medical
evidence showing progression of an employment-related condition resulting in permanent
impairment.
CONCLUSION
The Board finds that appellant has not established that he sustained a ratable impairment
to a scheduled member of the body.
ORDER
IT IS HEREBY ORDERED THAT the December 22 and August 17, 2011 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: July 20, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

18

See, e.g., D.W., Docket No. 11-940 (issued October 18, 2011); J.J., Docket No. 10-1758 (issued May 16,
2011); K.D., Docket No. 07-1584 (issued December 14, 2007).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.W., Appellant
and
DEPARTMENT OF THE NAVY, NORFOLK
NAVAL SHIPYARD, Portsmouth, VA, Employer
__________________________________________

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

)
)
)
)
)
)
)
)

Docket No. 21-0337
Issued: May 12, 2021

Case Submitted on the Record

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

On January 12, 2021 appellant filed an appeal from a March 28, 2017 merit decision of the
Office of Workers’ Compensation Programs (OWCP).1 The Clerk of the Appellate Boards
assigned Docket No. 21-0337.
The Board has duly considered the matter and notes that the Board has jurisdiction to
review final adverse decisions of OWCP issued under the Federal Employees’ Compensation Act.2
For final adverse decisions of OWCP issued on or after November 19, 2008, the Board’s review
authority is limited to appeals which are filed within 180 days from the date of issuance of OWCP’s
decision.3
The 180th day following the March 28, 2017 decision was September 24, 2017. As
appellant did not file an appeal with the Board until January 12, 2021, more than 180 days after
1

The Board notes that appellant’s application for review (Form AB-1) requests an appeal from a purported
December 9, 2020 decision. The case record as transmitted to the Board, however, does not contain a decision of that
date. The last OWCP decision of record was the March 28, 2017 decision.
2

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a) (2009).

3

Id. at § 501.3(e).

the March 28, 2017 OWCP decision, the Board finds that the appeal docketed as No. 21-0337 is
untimely filed. The Board is without jurisdiction to review the appeal. Appellant has not offered
a reason to explain the failure to timely file an appeal with supporting documentation sufficient to
establish compelling circumstances.
The Board’s decisions and orders are “final upon the expiration of 30 days from the date
of their issuance.”4
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0337 is dismissed.
Issued: May 12, 2021
Washington, DC

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

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

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

4

Id. at § 501.6(d).

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.C., Appellant
and
U.S. POSTAL SERVICE, LANSING VEHICLE
MAINTENANCE FACILITY, Lansing, MI,
Employer
__________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

)
)
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)
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)
)

Docket No. 19-1940
Issued: February 10, 2021

Case Submitted on the Record

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

On September 23, 2019 appellant, through counsel, filed a timely appeal from an
August 12, 2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). The
Clerk of the Appellate Boards docketed the appeal as No. 19-1940.
On May 16, 2018 appellant, then a 53-year-old vehicle maintenance facility (VMF)
technician, filed a traumatic injury claim (Form CA-1) alleging that at 7:30 a.m. on April 26, 2018
he hyperextended his left knee when he tripped on a ground rod and wire in a dark parking lot of

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.

the Grand Ledge Post Office (Grand Ledge) while in the performance of duty.2 On the reverse
side of the claim form, the employing establishment, Lansing VMF, indicated that appellant was
injured in the performance of duty on April 26, 2018 and stopped work on that date. It stated that
it received notice of appellant’s injury on April 26, 2018, and it listed his regular work schedule
as Monday through Friday from 6:00 a.m. to 2:30 p.m. The employing establishment indicated
that its knowledge of the facts about appellant’s injury agreed with appellant’s statements. On
May 17, 2018 appellant’s supervisor C.V. signed the claim form and certified that the information
given by the employing establishment and appellant was true to the best of his knowledge.
On May 17, 2018 the employing establishment controverted the claim and noted that
appellant’s job consisted of traveling to different employing establishment facilities to work on
vehicles in need of repair. It indicated that appellant’s supervisor C.V. provided a timeline of
appellant’s duties for the date of April 26, 2018 which it alleged was evidence that appellant had
not conducted vehicle repairs in Grand Ledge on April 26, 2018. The employing establishment
also noted that appellant submitted medical records which indicated that he was injured on
April 23, 2018.3 It concluded that appellant therefore had not established fact of injury,
performance of duty, or causal relationship.
A May 17, 2018 e-mail from appellant’s supervisor, C.V., indicated that on April 26, 2018
appellant only worked at the Holt, Eaton Rapids, and the employing establishment. C.V. noted
that on April 26, 2018 appellant drove an employing establishment vehicle to the Holt VMF where
he checked the oil of another employing establishment vehicle. Appellant then shuttled an
employing establishment vehicle to the Eaton Rapids VMF where he checked the transmission
fluid in another employing establishment vehicle. C.V. noted that appellant then repaired a
window regulator and attended a meeting at the employing establishment.
By decision dated July 9, 2018, OWCP denied appellant’s traumatic injury claim finding
that the evidence of record was insufficient to establish the factual component of fact of injury. It
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.
On June 26, 2019 appellant, through counsel, requested reconsideration.
In support of his reconsideration request, appellant submitted an undated work order for a
preventative maintenance inspection for postal truck 8204426. The start date for the inspection

2

On April 23, 2018 appellant filed an additional traumatic injury claim, assigned OWCP File No. xxxxxx228,
alleging that he sustained a left knee strain while in the performance of duty on November 24, 2017. OWCP’s
procedures provide that cases should be administratively combined when correct adjudication of the issues depends
on frequent cross-referencing between files. See Federal (FECA) Procedure Manual, Part 2 -- Claims, File
Maintenance and Management, Chapter 2.400.8(c) (February 2000). For example, if a new injury case is reported for
an employee who previously filed an injury claim for a similar condition or the same part of the body, doubling is
required. Id.; D.C., Docket No. 19-0100 (issued June 3, 2019); N.M., Docket No. 18-0833 (issued April 18, 2019);
K.T., Docket No. 17-0432 (issued August 17, 2018). The Board therefore concludes that the case records for OWCP
File Nos. xxxxxx228 and xxxxxx682 should be administratively combined upon return of the case record.
3

Id.

2

was noted as April 19, 2018 and the end date was noted as April 30, 2018. The “VPO [Village
Post Office]” was listed as “488379998-Grand Ledge-263900.”
Appellant also submitted a vehicle pick/up return sheet dated April 19, 2018 which
indicated that he had picked up and returned vehicles in Grand Ledge.
By decision dated August 12, 2019, OWCP modified its July 9, 2018 decision finding that
the evidence of record established that the incident occurred as alleged. It therefore found that
appellant had established that he hyperextended his left knee over a ground rod while climbing
into a vehicle in the Grand Ledge parking lot on April 26, 2018 at 7:30 a.m. OWCP however also
found that appellant had not established that the incident occurred in the performance of duty as
appellant had not established why he was at the Grand Ledge facility at 7:30 a.m. on
April 26, 2018.
The Board has duly considered the matter and finds that the case is not in posture for
decision and must be remanded to OWCP for further development.
The phrase “while in the performance of duty” has been interpreted by the Board to be the
equivalent of the commonly found prerequisite in workers’ compensation law of “arising out of
and in the course of employment.” In addressing this issue, the Board has stated: “In the
compensation field, to occur in the course of employment, in general, an injury must occur: (1) at
a time when the employee may reasonably be [stated] to be engaged in his or her master’s business;
(2) at a place where he or she may reasonably be expected to be in connection with the
employment; and (3) while he or she was reasonably fulfilling the duties of his or her employment
or engaged in doing something incidental thereto.”6 In deciding whether an injury is covered by
FECA, the test is whether, under all the circumstances, a causal relationship exists between the
employment itself, or the conditions under which it is required to be performed, and the resultant
injury.4
OWCP’s procedures explain that certain categories of employees work on employing
establishment premises for part of the day, and are required to travel for other parts of the working
day. Claims for these employees when the alleged injury occurs on premises will be adjudicated
in accordance with principles for all-on-premises injuries.5 These procedures further provide that
if the injury occurs on employing establishment premises, the alleged injury will be considered in
the performance of duty if the employee was performing assigned duties, or was engaged in an
activity reasonably incidental to the employment.6 An affirmative response by the official superior
on the claim form is sufficient to establish that the employee was in the performance of duty, unless
the facts or other evidence indicate that the answer may not be correct. OWCP’s procedures also

4

C.C., Docket No. 18-0445 (issued August 14, 2018); Mark Love, 52 ECAB 490 (2001).

5

Federal (FECA) Procedure Manual, Part 2 -- Claims, Performance of Duty, Chapter 2.804.5(c) (August 1992).

6

Id. at Chapter 2.804.4(a).

3

provide that if conflicting statements are obtained from the official superior as to whether appellant
was performing regular work at the time of the injury, a conference should be held.7
While OWCP has accepted that the incident occurred as alleged and the employing
establishment contemporaneously provided an affirmative response from appellant’s supervisor
that the incident occurred in the performance of duty, the employing establishment subsequently
controverted the claim, by appellant’s supervisor’s statement indicating that appellant had not
established that he was required to be at the Grand Ledge facility on the morning of April 26, 2018
to perform work duties. Appellant has however submitted evidence that a work order existed for
vehicle maintenance work at the Grand Ledge facility from April 19 to 30, 2018. Since the
evidence of record contains conflicting statements as to whether appellant was required to be at
the Grand Ledge facility on April 26, 2018 to perform work activities, and that he was therefore
in the performance of duty at the time of the accepted incident, this case will be remanded.
On remand OWCP shall properly consider all the evidence submitted at the time of the
August 12, 2019 decision and to schedule a conference to clarify whether appellant sustained an
injury in the performance of duty on April 26, 2018. Following such further development as
OWCP deems necessary, it shall issue a de novo decision on the claim. Accordingly,
IT IS HEREBY ORDERED THAT the August 12, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.8
Issued: February 10, 2021
Washington, DC

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

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

7

Supra note 5 at Chapter 2.804.4(c); see also O.L., Docket No. 16-0840 (issued August 28, 2017).

8
Christopher J. Godfrey, Deputy Chief Judge, who participated in the preparation of the order, was no longer a
member of the Board after January 20, 2021.

4