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

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)
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)
)

Appearances:
Jaspal Singh, for the appellant
Office of Solicitor, for the Director

Docket No. 16-0273
Issued: July 14, 2016

Case Submitted on the Record

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

JURISDICTION
On November 30, 2015 appellant, through his representative, filed a timely appeal of an
October 6, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant had more than nine percent permanent impairment of her
left upper extremity for which she received a schedule award.
On appeal appellant’s representative argued that appellant was also entitled to a schedule
award due to work-related impairment of her right upper extremity

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 23, 1991 appellant, then a 47-year-old flat sorter, filed a traumatic injury
(Form CA-1) alleging on that date a coworker struck her on the left side of her body with a mail
transporter. She alleged left elbow pain. Appellant returned to work on March 7, 1991 as a
manual distribution clerk. The claim was assigned OWCP File No. xxxxxx449. OWCP
accepted the claim for contusion of the left arm on March 15, 1991. Appellant underwent a
magnetic resonance imaging (MRI) scan of the cervical spine on May 13, 1991 which was
normal. On September 19, 1991 her electromyography (EMG) and motor and sensory
conduction studies of the left shoulder girdle and the paraspinal muscles of the cervical region
were normal.
Appellant filed a notice of recurrence of disability (Form CA-2a) on November 2, 1991
alleging that she sustained a recurrence of disability in July 1991 due to her February 23, 1991
employment injury. She stated that she was unable to perform her regular duties and that she
developed pain and swelling in her neck and left shoulder.
Appellant filed a second Form CA-1 on May 19, 1992 alleging that, on that date, a shelf
fell from her machine hitting her head, nose, neck, and right forearm. The claim was assigned
OWCP File No. xxxxxx774. Appellant underwent a right shoulder MRI scan on June 15, 1992
which demonstrated a complete tear of the distal supraspinatus tendon as well as a sloping distal
acromion impinging the supraspinatus tendon. Her cervical MRI scan of the same date
demonstrated early degenerative changes at C4-5 and C5-6 with reversal of the curvature.
OWCP accepted cervical strain and laceration of the nose as well as right shoulder contusion on
July 13, 1992.
It later approved right shoulder rotator cuff tear surgical repair on
August 26, 1992. Appellant underwent right shoulder rotator cuff repair, with acromioplasty,
and release of the coracoacromial ligament on September 22, 1992. She returned to duty on
March 22, 1993.
On December 13, 1993 appellant underwent a left shoulder MRI scan which
demonstrated mild acromioclavicular (AC) joint arthropathy without significant impingement of
the rotator cuff with a partial tear along the under surface of the supraspinatus tendon. Her
cervical MRI scan of the same date demonstrated mild spondylosis unchanged as compared to
prior studies.
In a letter dated June, 17, 1994, OWCP informed appellant that her claim in OWCP File
No. xxxxxx449 had not been accepted for a right arm condition. Appellant underwent left
shoulder arthroscopy and debridement of the rotator cuff on June 30, 1994 with arthroscopic
acromioplasty and release of the coracoacromial ligament. OWCP accepted her claim for
additional conditions of left shoulder impingement and arthroscopy on June 30, 1994. Appellant
returned to limited-duty work on February 21, 1996.
In a decision dated January 9, 1997, OWCP determined that appellant had sustained a
loss of wage-earning capacity when she returned to modified work on July 13, 1996.
Appellant underwent left rotator cuff repair on January 5, 2006 with superior labral tear,
anterior inferior instability with ligament tear, and shoulder impingement.

2

On January 21, 2008 appellant underwent a right shoulder MRI scan which demonstrated
supraspinatus tendon tear and retraction. OWCP authorized right shoulder arthroscopy and
rotator cuff repair on October 16, 2008.
Appellant underwent a second right shoulder rotator cuff repair, with right shoulder
superior labral tear, anterior labral repair, and subacromial decompression of the bursa on
November 11, 2008.
Appellant underwent a left shoulder MRI scan on September 15, 2009 which
demonstrated retorn supraspinatus tendon and a chronic complete tear of the infraspinatus tendon
with muscle and tendon edge atrophy. She also exhibited chronic intracapsular rupture of the
long biceps tendon.
Appellant retired from the employing establishment on October 31, 2009 and elected
retirement benefits effective that date. She requested a schedule award (Form CA-7) on
February 10, 2011. By letter dated February 15, 2011, OWCP requested that appellant provide a
medical report in support of her claim for a schedule award.
In a March 7, 2011 report, Dr. David L. Higgins, an orthopedic surgeon, found a 35
percent permanent impairment of the left shoulder.
Appellant underwent a right shoulder MRI scan on March 14, 2011 which demonstrated
atrophy of the supraspinatus tendon with partial thickness tear at the insertion. Her left shoulder
MRI scan of the same date demonstrated attenuation of the distal supraspinatus tendon and
chronic intrasubstance tear of the biceps tendon.
In a report dated March 30, 2011, Dr. Higgins found that appellant had reached
maximum medical improvement in regard to both shoulders. He found decreased range of
motion in the right shoulder including loss of forward flexion at 90 degrees, abduction of
40 degrees, and loss of external rotation at 15 degrees. Dr. Higgins reported weakness of the
internal rotators, external rotators, and supraspinatus. He noted that appellant had atrophy of the
rotator cuff, the anterior third deltoid muscle, mid-third deltoid muscle, posterior third deltoid
muscle, biceps, pectoralis major, and scapular stabilizers. Appellant’s left shoulder had
20 degrees of external rotation, and 95 degrees of forward flexion. Dr. Higgins found crepitus at
the glenohumeral joint, tendinitis of the biceps, as well as weakness of the internal rotators,
external rotators, and supraspinatus muscles. He noted atrophy of the rotator cuff, anterior third
deltoid muscle, mid-third deltoid muscle, and posterior third deltoid as well as atrophy of the
biceps, pectoralis major, and scapular stabilizers. Appellant reported aching, atrophy, a burning
sensation, clicking, and catching. Dr. Higgins concluded that she had reached maximum medical
improvement and that she had 35 percent permanent impairment of each shoulder, but that the
left shoulder was more symptomatic.
Dr. Higgins completed a report on August 25, 2010 and opined that appellant had 35
percent permanent impairment of both shoulders and neck due to pain, weakness, rotator cuff
tears, and degenerative joint disease.
Appellant underwent a left shoulder MRI scan on January 7, 2013 which demonstrated
biceps tendinitis, degenerative joint disease of the glenohumeral joint, full thickness tear of the
3

rotator cuff, and rotator cuff arthropathy. An MRI scan of her cervical spine on the same date
demonstrated herniated disc, spinal stenosis, and spondylosis.
Dr. Higgins examined appellant on May 20, 2015 and found in the left shoulder weakness
of the external rotators, and supraspinatus. He listed her range of motion as 60 degrees of active
abduction and 115 degrees of forward flexion. Dr. Higgins also found rotator cuff atrophy,
deltoid atrophy, bicep atrophy, pectoralis major atrophy, and atrophy of the scapular stabilizers.
In regard to appellant’s right shoulder, he found tenderness in the rotator cuff, weakness of the
external rotators and supraspinatus muscles, and abduction of 70 degrees, with forward flexion
of 125 degrees. Dr. Higgins also noted atrophy of the rotator cuff, deltoid muscle, biceps,
pectoralis major, and scapular stabilizers.
OWCP referred the medical evidence to its medical adviser on August 3, 2015. It
included a statement of accepted facts, which noted that appellant had a separate right shoulder
claim accepted for contusion of the face, scalp, and neck, open wound of the face, sprain of the
neck, and right rotator cuff sprain. OWCP described her left shoulder condition as adhesive
capsulitis of the left shoulder, AC joint sprain, and surgery on January 5, 2006.
In a report dated August 3, 2015, Dr. Arnold T. Berman, OWCP’s medical adviser
reviewed Dr. Higgins’ March 7, 2011 and May 20, 2015 reports and found that he failed to
correctly utilize the American Medical Association, Guides of the Evaluation of Permanent
Impairment (A.M.A., Guides) in determining appellant’s impairment rating. He applied the
A.M.A., Guides to Dr. Higgins’ findings for the left arm and noted that, while the
diagnosis-based estimate would equate to seven percent impairment due to a full thickness
rotation cuff tear,2 a schedule award based on appellant’s loss of range of motion would result in
a total of nine percent impairment. OWCP’s medical adviser combined the finding of forward
flexion of 115 degrees, three percent impairment,3 with abduction of 60 degrees, six percent
impairment,4 to reach his rating under the A.M.A., Guides. He determined that a schedule award
was appropriate for only the left shoulder not both shoulders.
By decision dated October 6, 2015, OWCP granted appellant a schedule award for nine
percent permanent impairment of the left upper extremity.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing regulations6 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss of use of scheduled members or functions of the body. FECA, however, does not specify
2

A.M.A., Guides, 403, Table 15-5.

3

Id. at 475, Table 15-34.

4

Id.

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

4

the manner in which the percentage loss of a member shall be determined. The method used in
making such determination is a matter which rests in the discretion of OWCP. For consistent
results and to ensure equal justice, the Board has authorized the use of a single set of tables so
that there may be uniform standards applicable to all claimants. OWCP evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.7
The protocol and formula of the sixth edition of the A.M.A., Guides requires that the
physician determine the Class of Diagnosis (CDX) for the lower extremity and apply the
appropriate grade modifiers for functional history (GMFH), physical examination (GMPE), and
clinical studies (GMCS) and apply the following formula (GMFH - CDX) + (GMPE - CDX) +
(GMCS - CDX) to reach the appropriate grade within the class of diagnosis.8
It is well established that, when the attending physician fails to provide an estimate of
impairment conforming to the A.M.A., Guides, his or her opinion is of diminished probative
value in establishing the degree of permanent impairment and OWCP may rely on the opinion of
its medical adviser to apply the A.M.A., Guides to the findings of the attending physician.9
ANALYSIS
The Board finds that this case is not in posture for a decision.
It is unclear from the record whether an OWCP medical adviser reviewed all of the
surgical and narrative reports supporting appellant’s diagnosed upper extremity conditions. The
statement of accepted facts presented to him by OWCP did not include appellant’s accepted right
shoulder rotator cuff repair, with acromioplasty and release of the coracoacromial ligament on
September 22, 1992 or the right shoulder rotator cuff repair, with right shoulder superior labral
tear, anterior labral repair, and subacromial decompression of the bursa on November 11, 2008.
The statement of accepted facts also listed only appellant’s January 5, 2006 left shoulder surgery
and failed to include appellant’s left shoulder arthroscopy and debridement of the rotator cuff on
June 30, 1994 with arthroscopic acromioplasty and release of the coracoacromial ligament.
Neither, the statement of accepted facts nor the OWCP medical adviser mentioned the March 14,
2011 MRI scans, which demonstrated atrophy of the supraspinatus tendon with partial thickness
tear at the insertion in the right shoulder and attenuation of the distal supraspinatus tendon and
chronic intrasubstance tear of the biceps tendon in the left shoulder. OWCP also failed to
mention January 7, 2013 left shoulder MRI scan which demonstrated biceps tendinitis,
degenerative joint disease of the glenohumeral joint, full thickness tear of the rotator cuff, and
rotator cuff arthropathy. Appellant has accepted claims for both right and left shoulder
conditions, which have been consolidated under OWCP File xxxxxx449, serving as the master
7

For new decisions issued after May 1, 2009, OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, (6th ed. 2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.5a (February 2013); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
8

A.M.A., Guides, 521.

9

Linda Beale, 57 ECAB 429 (2006).

5

file number. She has received extensive electrodiagnostic and surgical treatment for both
shoulders. The medical adviser limited his impairment rating to just the left upper extremity
without explanation. He further limited his application of the A.M.A., Guides to the diagnosis of
full thickness tear of the rotator cuff, without discussion of appellant’s documented injuries AC
joint capsule and coracoclavicular ligaments can result in impairment ratings from 8 to 24
percent of the arms.10
OWCP may undertake to develop either factual or medical evidence for determination of
the claim. It is well established that proceedings under FECA are not adversarial in nature and
that while the claimant has the burden to establish entitlement to compensation, OWCP shares
responsibility in the development of the evidence. OWCP has an obligation to see that justice is
done.11 The Board finds that OWCP undertook development of the medical aspect of appellant’s
schedule award claim, but failed to provide a complete statement of accepted facts12 or review of
the record to the medical adviser. On remand OWCP should fully development a statement of
accepted facts and refer her appellant for a second opinion examination to determine the extent
of the permanent impairment of both her right and left upper extremities for schedule award
purposes. After such further development, it should issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for a decision regarding the extent of
appellant’s bilateral upper extremity impairment. On remand OWCP should prepare a
comprehensive statement of accepted facts and refer appellant for a second opinion evaluation.

10

A.M.A., Guides, 403, Table 15-5.

11

John J. Carlone, 41 ECAB 354, 358-60 (1989).

12

As the Board has had, a medical opinion based on an incomplete statement of accepted facts is of reduced
probative value. See E.O., Docket No. 12-517 (issued July 6, 2012). Moreover, OWCP procedures specify that the
statement of accepted facts must include all accepted conditions. Id. Federal (FECA) Procedures Manual, Part 3 -Medical, Requirements for Medical Reports, Chapter 3.600(a)(4) (October 1990).

6

ORDER
IT IS HEREBY ORDERED THAT the October 6, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: July 14, 2016
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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D.D., Appellant
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and
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DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORTATION SECURITY
)
ADMINISTRATION, San Jose, CA, Employer
)
___________________________________________ )

Docket No. 13-858
Issued: August 14, 2013

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

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On February 26, 2013 appellant, through counsel, filed a timely appeal of a January 25,
2013 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from the most recent merit decision of December 22, 2011 to the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s case for further
review of the merits under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 27, 2011 appellant, then a 36-year-old transportation security officer, filed a
traumatic injury claim alleging that on October 2, 2011 she injured her left arm when she
stumbled on a curb while coming into work. She stopped work on October 2, 2011. The
1

5 U.S.C. § 8101 et seq.

employing establishment controverted the claim and noted that the injury did not occur in the
work area or work premises, as she had not reported for duty.
On November 16, 2011 OWCP advised appellant that additional evidence was needed to
establish her claim and allowed her an opportunity to submit such evidence. It noted that the
evidence was insufficient to establish that she experienced the incident as alleged or that she was
in the performance of duty.
Appellant and the employing establishment submitted photographs and maps of the area
around the employing establishment premises, e-mail correspondence and medical progress
notes.
In a letter dated November 25, 2011, Maria Camareno-Aragon, an administrative
assistant, controverted the claim as the injury did not occur in the performance of duty. She
stated that the employing establishment did not own, lease or subsidize any of the parking areas,
or any of the airport grounds. Ms. Camareno-Aragon noted that the closest available parking
was in the Terminal A employee garage parking. However, she explained that she verified that
appellant did not maintain a valid parking pass for the employee parking lots. Ms. CamarenoAragon also indicated that the parking lot ticket booths and the location of the employing
establishment were approximately 800 feet apart, and appellant’s work area was 900 feet away.
She noted that appellant was late for work and running when the injury occurred.
In a November 29, 2011 report, Dr. Josiah Ambrose, a Board-certified neurologist, noted
that appellant sustained a left humerus fracture in a fall on October 2, 2011. He advised that
appellant developed a radial nerve palsy from the injury. In a December 7, 2011 report,
Dr. Liliana C. Sackett, Board-certified in occupational medicine, noted appellant’s history of
injury that she was rushing to get to work when she fell outside the airport terminal. She
diagnosed a closed fracture of the left humerus, a left radial nerve injury and a left wrist drop.
Dr. Sackett noted that appellant underwent open reduction internal fixation of the humerus and
exploration/decompression of the radial nerve on October 4, 2011. Other medical records were
also received.
By decision dated December 22, 2011, OWCP denied appellant’s claim. It found that her
injury on October 2, 2011 was not sustained in the performance of duty. It determined that the
employing establishment did not maintain or monitor the parking facility where appellant parked
and that it was open to the public. Furthermore, she did not park in the employee lot but rather
chose to find her own parking instead of utilizing the employee parking area.
On October 30, 2012 appellant’s representative requested reconsideration. He submitted
copies of medical progress notes, diagnostic test reports, the November 29, 2011 report from
Dr. Ambrose and a copy of the December 7, 2011 report from Dr. Sackett.
In a decision dated January 25, 2013, OWCP denied appellant’s request for
reconsideration finding that the evidence submitted was insufficient to warrant review of its prior
decision.

2

LEGAL PRECEDENT
Under section 8128(a) of FECA,2 OWCP may reopen a case for review on the merits in
accordance with the guidelines set forth in section 10.606(b)(2) of the implementing federal
regulations, which provides that a claimant may obtain review of the merits if the written
application for reconsideration, including all supporting documents, sets forth arguments and
contains evidence that:
“(i) Shows that [OWCP] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by [OWCP];
or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [OWCP].”3
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
OWCP without review of the merits of the claim.4
ANALYSIS
Appellant disagreed with the December 22, 2011 denial of her claim for an injury in the
performance of duty. She requested reconsideration on October 30, 2012. As noted, the Board
does not have jurisdiction over the merits of her claim.
In support of her request, her representative submitted medical evidence. The Board
finds that the new medical evidence is not relevant to the issue in the present case, i.e., whether
appellant was in the performance of duty when injured. The underlying issue involves whether
the claimed injury occurred on the employing establishment premises such that it would be
considered in the performance of duty. The new medical evidence is not relevant to this issue.
The other medical evidence submitted was previously of record and considered. The Board has
held that the submission of evidence or argument which repeats or duplicates that already in the
case record does not constitute a basis for reopening a case.5
On reconsideration, appellant did not show that OWCP erroneously applied or interpreted
a specific point of law or advance a relevant legal argument not previously considered by
OWCP. Consequently, the evidence submitted by appellant on reconsideration does not satisfy

2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.606(b).

4

Id. at § 10.608(b).

5

Edward W. Malaniak, 51 ECAB 279 (2000).

3

any of the regulatory criteria for reopening a claim for a merit review. Therefore, OWCP
properly denied his request for reconsideration.
CONCLUSION
The Board finds that OWCP properly refused to reopen appellant’s case for further
review of the merits of her claim under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the January 25, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 14, 2013
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


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

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)
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)
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)
)
)

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

Docket No. 16-0214
Issued: March 11, 2016

Case Submitted on the Record

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

JURISDICTION
On November 16, 2015 appellant filed a timely appeal from an October 26, 2015
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). Because more
than 180 days elapsed from December 8, 2014, the date of the most recent merit decision of
OWCP, to the filing of this appeal, pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of
appellant’s claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for further merit review
of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On October 7, 2014 appellant, then a 44-year-old customer service supervisor, filed an
occupational disease claim (Form CA-2) alleging that he developed congestive heart failure as a
1

5 U.S.C. § 8101 et seq.

result of stress in the course of his federal employment. He first became aware of his condition
and of its relationship to his federal employment on October 1, 2014.
The employing establishment controverted appellant’s claim on October 15, 2014. It
noted that he had not submitted rationalized medical evidence causally linking his medical
condition to duties of his federal employment.
On October 20, 2014 OWCP advised appellant of the evidence needed to establish his
claim. It afforded him 30 days to submit additional evidence. On the same date, OWCP also
requested information from the employing establishment with regard to appellant’s claimed
injury.
Appellant submitted several unsigned diagnostic reports dated October 2, 2014.
In an operative report dated October 2, 2014, Dr. Justin Haynie, a Board-certified
internist, stated that on that date, appellant underwent heart surgery.
In a discharge summary dated October 5, 2014, Dr. Prashanth J. Kamath, a Boardcertified internist, diagnosed appellant with combined systolic/diastolic nonischemic congestive
heart failure of unknown etiology, but potentially secondary to a viral cause; hypertension;
hyperlipidemia; obesity; and possible sleep apnea. Appellant also submitted a report from a
physician assistant dated October 5, 2014.
In an undated statement received on December 1, 2014, appellant stated that during the
week of September 12, 2014, he was required to work late on several occasions, and that
thereafter, he had to arrive more than one hour before his scheduled arrival time. He noted that
his work was physical in nature. On September 15, 2014 appellant noted that he had worked
nearly 10 hours without lunch and purchased a ham and cheese sandwich for his evening meal.
The next day, he awoke early due to stomach cramps and diarrhea. Appellant stated that these
symptoms caused dehydration and a flare-up of gout.
He returned to work on
September 29, 2014. That night appellant awoke at 3:00 a.m. feeling short of breath and weak.
The next day, he also felt short of breath and weak. Appellant went to the hospital, where he was
observed with bigeminy. He stayed overnight at the hospital and was released with an external
defibrillator and heart monitor. Appellant noted that he was currently on leave until his next
appointment on January 22, 2015.
By decision dated December 8, 2014, OWCP denied appellant’s claim. It found that he
had not submitted sufficient medical evidence to establish causal relationship between his
condition and duties of his federal employment. OWCP noted that appellant had several
nonwork-related factors that predisposed him to heart disease.
On October 7, 2015 appellant requested reconsideration of OWCP’s December 8, 2014
decision. With his request, he submitted a mid-year evaluation from a supervisor and time
sheets.
In a report dated September 1, 2015, Dr. Alan Thomley, a Board-certified internist,
diagnosed combined systolic/diastolic nonischemic, premature ventricular contraction-induced
congestive heart failure. He noted that appellant was stable from a cardiac standpoint. At that
time Dr. Thomley stated that appellant remained disabled.
2

By decision dated October 26, 2015, OWCP denied appellant’s request for
reconsideration without reviewing the merits of his case. It noted that he had not submitted
relevant new evidence sufficient to require reconsideration of his claim.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a), OWCP’s
regulations provide that the evidence or argument submitted by a claimant must: (1) show that
OWCP erroneously applied or interpreted a specific point of law; (2) advance a relevant legal
argument not previously considered by OWCP; or (3) constitute relevant and pertinent new
evidence not previously considered by OWCP.2 Section 10.608(b) of OWCP’s regulations
provide that when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.3
ANALYSIS
OWCP issued a December 8, 2014 decision finding that appellant had not established a
heart condition related to factors of his federal employment. On October 7, 2015 appellant
requested reconsideration of this decision. With his request, he submitted a mid-year
performance evaluation, time sheets, and a September 1, 2015 report from Dr. Thomley.
As noted above, the Board does not have jurisdiction over the merits of the December 8,
2014 decision. The issue presented on appeal is whether appellant met any of the requirements
of 20 C.F.R. § 10.606(b)(3), requiring OWCP to reopen the case for review of the merits of his
claim. In his October 7, 2015 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, or advance a new and relevant legal
argument not previously considered. He merely listed the documents he was submitting on
reconsideration. Thus, appellant is not entitled to a review of the merits of his claim based on the
first and second above-noted requirements under section 10.606(b)(3).
The underlying issue is whether appellant met his burden of proof to establish an
occupational disease, and specifically whether he had submitted sufficient medical evidence to
establish a causal relationship between his congestive heart failure and duties of his federal
employment. A claimant may be entitled to a merit review by submitting pertinent new and
relevant evidence, but appellant did not submit any such evidence in this case. With his request,
appellant submitted a mid-year performance evaluation and time sheets. These documents, while
not previously considered by OWCP, are irrelevant to the underlying issue of his burden of proof
to provide rationalized medical evidence addressing the cause of his condition. As such, they are
insufficient to warrant reconsideration of appellant’s claim.
Appellant submitted a medical report from Dr. Thomley dated September 1, 2015. This
report, not previously considered by OWCP, was also irrelevant to the underlying issue of causal
relationship, because it does not contain an opinion on the causal relationship between duties of
2

20 C.F.R. § 10.606(b)(2); D.K., 59 ECAB 141, 146 (2007).

3

Id. at § 10.608(b); see K.H., 59 ECAB 495, 499 (2008).

3

appellant’s federal employment and his congestive heart failure. Dr. Thomley did not offer an
opinion as to the cause of appellant’s heart failure other than to say that it was “premature
ventricular contraction-induced,” which is a biomechanical description of what occurred to his
heart, not an opinion on what outside factors may have caused the condition. As such, this
report, while not previously considered, was irrelevant to the basis upon which OWCP denied
appellant’s claim on December 8, 2014.
The Board accordingly finds that appellant did not meet any of the requirements of 20
C.F.R. § 10.606(b)(3). Appellant did not show that OWCP erroneously applied or interpreted a
specific point of law, advance a relevant legal argument not previously considered by OWCP, or
submit relevant and pertinent new evidence not previously considered. Pursuant to 20 C.F.R.
§ 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for review of the merits
of his claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated October 26, 2015 is affirmed.
Issued: March 11, 2016
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS HEALTH ADMINISTRATION,
Tucson, AZ, Employer
__________________________________________

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Appearances:
Johnny Gallego, for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1700
Issued: September 25, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 23, 2016 appellant, through his representative, filed a timely appeal from
March 9 and April 12, 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 his burden of proof to establish additional
work-related conditions due to his March 3, 2011 employment injury; (2) whether appellant met
his burden of proof to establish a recurrence of disability due to his March 3, 2011 employment
injury; and (3) whether OWCP met its burden of proof to terminate appellant’s eligibility for
wage-loss compensation and medical benefits effective April 12, 2016 because he had no
residuals of his March 3, 2011 employment injury after that date.
FACTUAL HISTORY
On August 15, 2011 appellant, then a 56-year-old mason, filed a traumatic injury claim
(Form CA-1) alleging that on March 3, 2011 he sustained a lumbar sprain when he climbed a
ladder to a confined area and repaired a firewall.3 He did not stop work, but rather continued in
his regular position for the employing establishment. OWCP accepted that appellant sustained a
lumbar sprain on March 3, 2011.4
In an August 19, 2011 report, Dr. Carol Hutchinson, an attending osteopath and Boardcertified occupational medicine physician, noted that appellant complained of sharp pain in his
back after the March 3, 2011 work injury and that the pain had worsened to include intermittent
pain in both legs. Appellant had reported that he engaged in weight training once a week and
cardiovascular training twice per week. Dr. Hutchinson diagnosed back pain, but suspected that
he might also have spinal stenosis. With respect to her diagnosis of back pain, she noted, “I
cannot determine with medical certainty whether this condition has been caused by or aggravated
by the injury as described above or by the nature of the work or conditions of the workplace.”
In an August 23, 2011 report, Dr. Abraham R. Byrd, III, an attending Board-certified
family practitioner, noted that appellant reported feeling low back pain at the time of the
March 3, 2011 work injury and developing sharp pain radiating from his low back into his
buttocks approximately four months after March 3, 2011. He indicated that he suspected that
appellant sustained a lumbar sprain due to the March 3, 2011 work injury and that this condition
improved until July 2011 when he developed “an apparent bilateral sciatica or sciatic nerve
irritation” without significant neurological deficit. On October 31, 2011 Dr. Byrd noted that
appellant continued to report lumbar pain, but that his condition was slowly improving.
The findings of a January 17, 2012 magnetic resonance imaging (MRI) scan revealed that
appellant had severe canal stenosis with degenerative changes and small broad-based disc
herniation at L3-4, moderate canal narrowing, mild bilateral foraminal narrowing, and annular

3

Appellant later explained that he had to twist his back, balance himself, lift materials, and crawl/pull himself for
an extended period in order to perform this task.
4

Under different claim files, OWCP had previously accepted that appellant sustained a fractured right calcaneus
(resolved) on October 14, 2007 (claim File No. xxxxxx984) and left lateral and medial meniscus tears on
December 9, 2008 (File No. xxxxxx370).

2

degeneration at L4-5, and tiny paracentral disc protrusion with some mild mass effect on the
traversing left S1 nerve root at L5-S1.5
In an August 27, 2013 report, Dr. Byrd diagnosed periodic back pain with positive
findings on prior MRI scan for severe stenosis and disc protrusion traversing the S1 nerve root.
He noted that appellant’s symptoms, although described by him as intense when they occurred,
were not disabling.
On September 6, 2013 appellant filed a notice of recurrence (Form CA-2a) alleging that
he sustained a recurrence of disability due to his March 3, 2011 employment injury. He did not
stop work around the time he filed the claim and listed the date of injury, March 3, 2011, as the
date he sustained a recurrence of disability. Appellant indicated that he continued to experience
pain from the March 3, 2011 injury.6
In a September 12, 2013 letter, OWCP requested that appellant submit additional factual
and medical evidence in support of his recurrence of disability claim. Appellant resubmitted a
copy of the August 19, 2011 report of Dr. Hutchinson.
By decision dated December 4, 2013, OWCP denied appellant’s claim for a recurrence of
disability due to his March 3, 2011 employment injury. It noted that he had continued to work in
his regular-duty position after the March 3, 2011 employment injury and that he had not missed
any time from work due to the employment injury. OWCP determined that appellant had failed
to submit medical evidence containing a rationalized medical opinion that he sustained disability
due to the condition for which the March 3, 2011 injury was accepted, i.e., lumbar sprain. It
indicated that Dr. Byrd’s reports contained diagnoses of low back conditions other than lumbar
sprain, such as severe lumbar stenosis and disc protrusion, but that appellant had not provided a
rationalized medical opinion establishing that these conditions were related to the March 3, 2011
work injury or that they caused disability.
The findings of a September 9, 2014 MRI scan showed left para-midline protrusion with
mild central canal stenosis and likelihood of left nerve root impingement at L3-4, broad bulging
annulus with moderate central canal stenosis at L4-5, and left para-midline protrusion with
likelihood of left nerve root impingement at L5-S1. In a September 22, 2014 report, Dr. Byrd
noted that appellant now reported that his pain generally did not run down his legs but “stays in
low back.” He diagnosed progressive low back pain and noted, “[Patient’s] main concern is that
he someday may need surgery and wants to be covered.”

5

The record also contains the findings of January 19, 2012 electromyogram (EMG) testing of appellant’s lower
extremities.
6

Appellant noted on the Form CA-2a that he had no work restrictions from the March 3, 2011 employment
injury.

3

In a November 23, 2014 report, Dr. Byrd discussed his treatment of appellant’s medical
condition since August 23, 2011, recommended that he continue with conservative treatment,
and indicated that his current diagnosis was lumbar spinal stenosis and herniated nucleus
pulposus of the lumbar spine. He noted:
“This patient sustained a work-related injury on March 3, 2011. His initial
symptoms are temporally related to that injury, and there is no evidence of any
other cause. [The patient] only sought care when his symptoms persisted, and
even then has tried [to] use every conservative means possible to get himself
better, without resorting to more medical therapy. Indeed, his ‘absence’ of
treatment in the intervening time simply reflects the fact that he had gotten
himself better to a point that he could live with it, and only now comes because of
some worsening of symptoms, leading him to have concern he may require
further therapy in the future.”
On December 3, 2014 OWCP received an undated letter in which appellant requested
reconsideration of its December 4, 2013 decision. Appellant argued that he sustained a more
severe condition on March 3, 2011 than the accepted lumbar sprain and that he, in fact, sustained
several additional low back conditions that Dr. Byrd identified on the MRI scan findings of
record. He indicated that the nature of the conditions sustained on March 3, 2011 was the issue
that concerned him and noted, “I have not become further disable[d], nor has my pain
changed/worsened.”
In a December 3, 2014 letter received by OWCP on that date, a workers’ compensation
program manager for the employing establishment argued that medical reports of Dr. Byrd do
not show that the degenerative conditions of appellant’s low back were related to the March 3,
2011 employment injury or other work factors.
In December 2015 OWCP referred appellant to Dr. Michael A. Steingart, an osteopath
and Board-certified orthopedic surgeon, for an examination and evaluation of the nature and
extent of residuals from the March 3, 2011 employment injury.
In a February 5, 2016 report, Dr. Steingart discussed appellant’s factual and medical
history and reported the findings of the physical examination he performed on that date. He
discussed the mechanism of the March 3, 2011 employment injury and noted that appellant
currently reported having low back pain which occasionally radiated into his legs. Appellant
reported that his general pain level was 2 out of 10 and indicated that he worked out in the gym
five days a week and could bench press at least 130 pounds. Dr. Steingart reported that, upon
physical examination of his back and lower extremities, appellant exhibited no evidence of
muscle spasm or tenderness to palpation/percussion, but that there was some limitation of back
motion. Straight-leg raising in the sitting and supine positions was negative. Dr. Steingart
indicated that appellant had 5/5 motor strength in his knees, ankles, and feet, and that sensation
was fully intact in his lower extremities. He posited that appellant exhibited no objective
findings of the lumbar sprain sustained on March 3, 2011 and that he had not sustained any
additional medical condition due to the mechanism of the March 3, 2011 injury or the treatment
provided for the lumbar sprain. Dr. Steingart determined that appellant could return to his
regular work as a mason without work restrictions, but noted that his nonwork-related

4

conditions, such as spinal stenosis, would cause appellant to “have challenges performing all the
tasks needed.” He further noted:
“The claimant’s MRI scans performed on two separate occasions do report spinal
stenosis especially noted at the L3-4 level with a chronic neuropathic condition as
noted on the EMG. This can prevent the claimant’s ability to work. This
condition is congenital and not related to a lumbar sprain. The clinical pain that
the claimant has today is strictly in the low back, pointing to the sacrum. There
are no objective findings that he would not recover from a lumbar sprain. Based
on the official disability guidelines, the claimant would have resolved the
symptoms after approximately six to eight weeks. The lumbar sprain/strain that
he did have at the time of injury did not contribute in any manner or form to any
of the above issues, as that is completely resolved by this time. Additionally,
there was a hiatus as noted in the medical records from 2012 to 2014. The
claimant reported having further back issues. However, his activities level, the
fact that his working out in the gym (weights, bending, squatting, kneeling), does
indicate that any further symptoms are more related to his workout routine and his
activity level rather than a lumbar sprain/strain that was noted at the time of the
original injury.”7
By decision dated March 9, 2016, OWCP denied modification of its December 4, 2013
decision denying appellant’s claim for recurrence of disability due to his March 3, 2011
employment injury. It also indicated that it was considering appellant’s claim, as expressed in
his reconsideration letter received on December 3, 2014, that he sustained a more severe
condition on March 3, 2011 than the accepted lumbar sprain. OWCP found that appellant had
not submitted rationalized medical evidence showing that he sustained any work-related
condition other than a lumbar sprain on March 3, 2011. It explained that, although Dr. Byrd
identified several additional low back conditions as seen on the MRI scan findings of record, he
failed to provide a rationalized medical opinion that they were related to the March 3, 2011
employment injury or other work factors. OWCP also determined that the well-rationalized
February 5, 2016 report of Dr. Steingart showed that appellant’s claimed additional work-related
conditions were not related to the March 3, 2011 employment injury.
In a letter dated March 10, 2016, OWCP advised appellant that it proposed to terminate
his eligibility for wage-loss compensation and medical benefits because he ceased to have
residuals of his March 3, 2011 employment injury after that date. It informed him that the
proposed termination action was justified by the well-rationalized February 5, 2016 report of
Dr. Steingart, OWCP’s referral physician. OWCP provided appellant 30 days to submit
evidence and argument challenging the proposed termination action.
Appellant did not submit any evidence or argument in the period allotted by OWCP’s
March 10, 2016 letter.

7

Appellant received wage-loss compensation for hours lost from work on February 5, 2016 for attending the
OWCP referral examination conducted by Dr. Steingart on that date.

5

In an April 12, 2016 decision, OWCP terminated appellant’s eligibility for wage-loss
compensation and medical benefits effective April 12, 2016 because he had no residuals of his
March 3, 2011 employment injury after that date. It found that the weight of the medical opinion
evidence regarding appellant’s work-related disability and need for medical treatment rested with
the February 5, 2016 report of Dr. Steingart.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under FECA 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 period of FECA, that an injury was sustained in the performance of duty as
alleged and that any specific condition for which compensation is claimed are causally related to
the employment injury.8 The medical evidence required to establish a causal relationship
between a claimed medical condition and an employment injury is rationalized medical opinion
evidence. The opinion of the physician must be based on a complete and accurate factual and
medical background of the claimant, must be one of reasonable medical certainty, and must be
supported by medical rationale explaining the nature of the relationship between the diagnosed
condition and the specific employment factors identified by the claimant.9
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a lumbar sprain on March 3, 2011. Appellant
did not stop work but rather continued in his regular position at the employing establishment.
On September 6, 2013 he filed a Form CA-2a alleging that he sustained a recurrence of disability
due to his March 3, 2011 employment injury. By decision dated December 4, 2013, OWCP
denied appellant’s claim for a recurrence of disability due to his March 3, 2011 employment
injury. On December 3, 2014 it received an undated letter in which he requested reconsideration
of its December 4, 2013 decision. Appellant argued that he had sustained a more severe
condition on March 3, 2011 than simply the accepted lumbar sprain and that he, in fact, sustained
several additional low back conditions found on the MRI scan findings of record. By decision
dated March 9, 2016, OWCP denied modification of its earlier December 4, 2013 decision. It
also found that appellant had failed to establish any additional work-related condition on
March 3, 2011.
The Board finds that appellant failed to meet his burden of proof to establish additional
work-related conditions due to his March 3, 2011 employment injury.
Appellant submitted reports in which Dr. Byrd, an attending physician, provided
diagnoses of low back conditions other than lumbar sprain, such as severe lumbar stenosis and
disc protrusion traversing the S1 nerve, but he did not provide a rationalized medical opinion
establishing how these conditions were related to the March 3, 2011 employment injury.

8

J.F., Docket No. 09-1061 (issued November 17, 2009).

9

See E.J., Docket No. 09-1481 (issued February 19, 2010).

6

In an August 23, 2011 report, Dr. Byrd indicated that he suspected that appellant
sustained a lumbar sprain due to the March 3, 2011 work injury and that this condition improved
until July 2011 when he developed “an apparent bilateral sciatica or sciatic nerve irritation”
without significant neurological deficit. On August 27, 2013 he diagnosed periodic back pain
with positive findings on prior MRI scan for severe stenosis and disc protrusion traversing the S1
nerve root. In a report dated November 23, 2014 report, Dr. Byrd indicated that appellant’s
current diagnosis was lumbar spinal stenosis and herniated nucleus pulposus of the lumbar spine.
He noted, “This patient sustained a work-related injury on March 3, 2011. Dr. Byrd initial
symptoms are temporally related to that injury, and there is no evidence of any other cause.”
The Board notes that Dr. Byrd’s reports do not contain a clear opinion that appellant
sustained any medical condition other than a lumbar sprain due to the March 3, 2011 work
injury. The Board has held that medical evidence which does not offer a clear opinion regarding
the cause of an employee’s condition is of limited probative value on the issue of causal
relationship.10 Dr. Byrd did not discuss the March 3, 2011 employment injury in any detail or
explain the medical process through which it could have been responsible for medical conditions
other than a lumbar sprain. Therefore, appellant did not meet his burden of proof to establish
additional work-related conditions due to his March 3, 2011 employment injury.11
LEGAL PRECEDENT -- ISSUE 2
An individual who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable and probative
evidence that the disability for which compensation is claimed is causally related to the accepted
injury.12 This burden includes the necessity of furnishing rationalized medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that
the disabling condition is causally related to the employment injury, and supports that conclusion
with sound medical rationale.13 Where no such rationale is present, medical evidence is of
diminished probative value.14
ANALYSIS -- ISSUE 2
As noted above, appellant filed a Form CA-2a on September 6, 2013 alleging that he
sustained a recurrence of disability due to his March 3, 2011 employment injury and OWCP
10

See Charles H. Tomaszewski, 39 ECAB 461 (1988).

11

On appeal appellant argued that Dr. Byrd’s reports show that he sustained medical conditions other than a
lumbar sprain due to the March 3, 2011 work injury, but the Board has explained why Dr. Byrd’s reports do not
establish such additional conditions.
12

Charles H. Tomaszewski, 39 ECAB 461, 467 (1988); Dominic M. DeScala, 37 ECAB 369, 372 (1986). Under 20
C.F.R. § 10.5(x), a recurrence of disability is defined, in part, as “an inability to work after an employee has returned
to work, caused by a spontaneous change in a medical condition which had resulted from a previous injury or illness
without an intervening injury or new exposure to the work environment that caused the illness.”
13

L.F., Docket No. 15-1069 (issued August 12, 2015); Mary S. Brock, 40 ECAB 461, 471-72 (1989).

14

Michael Stockert, 39 ECAB 1186, 1187-88 (1988).

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denied this claim in decisions dated December 4, 2013 and March 9, 2016. The Board finds that
appellant failed to meet his burden of proof to establish a recurrence of disability due to his
March 3, 2011 employment injury.
The Board notes that appellant continued to work in his regular-duty position after the
March 3, 2011 employment injury and that he did not miss any time from work due to the
employment injury, other than a few hours of wage loss due to his participation in a second
opinion examination on February 5, 2016.15 The Board finds that appellant failed to establish
disability due to the condition for which the March 3, 2011 employment injury was accepted,
i.e., lumbar sprain. As explained above, the medical evidence of record, including the reports of
Dr. Byrd, do not show that he sustained any medical condition other than a lumbar sprain due to
the March 3, 2011 work injury. The Board finds that none of the medical reports of Dr. Byrd
contain an opinion that appellant had disability due to the only accepted medical condition in this
case, i.e., a lumbar sprain. Appellant has not submitted a rationalized medical report establishing
that he sustained a recurrence of disability due to his March 3, 2011 employment injury and,
thus, appellant has failed to meet his burden of proof.
LEGAL PRECEDENT -- ISSUE 3
Under FECA, once OWCP has accepted a claim it has the burden of proof to justify
termination or modification of compensation benefits.16 OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the
employment.17 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.18
ANALYSIS -- ISSUE 3
The Board finds that OWCP met its burden of proof to terminate eligibility for wage-loss
compensation and medical benefits effective April 12, 2016 because he had no residuals of his
March 3, 2011 employment injury after that date. The Board finds that the weight of the medical
evidence with respect to residuals of the March 3, 2011 employment injury is represented by the
thorough, well-rationalized opinion of Dr. Steingart, OWCP’s referral physician.
The
February 5, 2016 report of Dr. Steingart establishes that appellant had no residuals of his
March 3, 2011 employment injury after April 12, 2016.
In his February 5, 2016 report, Dr. Steingart reported that, upon physical examination of
his back and lower extremities, appellant exhibited no evidence of muscle spasm or tenderness to
palpation/percussion, but that there was some limitation of back motion. Straight-leg raising in
the sitting and supine positions was negative. Dr. Steingart indicated that appellant had 5/5
15

Appellant did not stop work around the time he filed his recurrence of disability claim on September 6, 2013.
On the Form CA-2a, he listed the date of injury, March 3, 2011, as the date he sustained a recurrence of disability.
16

I.J., 59 ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541, 546 (1986).

17

Charles E. Minniss, 40 ECAB 708, 716 (1989).

18

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

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motor strength in his knees, ankles, and feet, and that sensation was fully intact in his lower
extremities. He posited that appellant exhibited no objective findings of the lumbar sprain
sustained on March 3, 2011 and that he had not sustained any additional medical condition due
to the mechanism of the March 3, 2011 injury or the treatment provided for the lumbar sprain.
Dr. Steingart determined that appellant could return to his regular work as a mason without work
restrictions, but noted that his nonwork-related conditions, such as spinal stenosis, would cause
appellant to “have challenges performing all the tasks needed.” He further indicated that
appellant’s spinal stenosis was congenital and not related to the March 3, 2011 lumbar sprain,
that the lumbar sprain resolved in six to eight weeks, and that the lumbar sprain did not
contribute in any manner to another medical condition. Dr. Steingart noted, “[Appellant’s]
activities level, the fact that his working out in the gym (weights, bending, squatting, kneeling),
does indicate that any further symptoms are more related to his workout routine and his activity
level rather than a lumbar sprain/strain that was noted at the time of the original injury.”
The Board has reviewed the opinion of Dr. Steingart and notes that it has reliability,
probative value, and convincing quality with respect to its conclusions regarding the relevant
issue of the present case. Dr. Steingart provided a thorough factual and medical history and
accurately summarized the relevant medical evidence.19 He provided medical rationale for his
opinion by explaining that appellant ceased to have objective residuals of his March 3, 2011
employment injury. Dr. Steingart also explained that appellant’s continuing back symptoms
were related to the progression of his nonwork-related back conditions and his workout routine
in the gym.
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 failed to meet his burden of proof to establish additional
work-related conditions due to his March 3, 2011 employment injury or to establish a recurrence
of disability due to his March 3, 2011 employment injury. The Board further finds that OWCP
met its burden of proof to terminate eligibility for wage-loss compensation and medical benefits
effective April 12, 2016 because he had no residuals of his March 3, 2011 employment injury
after that date.

19

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1957).

9

ORDER
IT IS HEREBY ORDERED THAT the April 12 and March 9, 2016 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: September 25, 2017
Washington, DC

Colleen Duffy Kiko, 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
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 13-1677
Issued: February 4, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 3, 2013 appellant filed a timely appeal from March 1 and June 20, 2013 merit
decisions of the Office of Workers’ Compensation Programs 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 this case.
ISSUE
The issue is whether appellant has more than a 27 percent impairment of each upper
extremity, for which she received schedule awards.
FACTUAL HISTORY
This case has previously been before the Board. In a decision dated June 14, 2006, the
Board set aside an August 10, 2005 decision granting appellant a schedule award for a four

1

5 U.S.C. § 8101 et seq.

percent permanent impairment of each upper extremity.2 The Board found that the medical
opinions from her attending physician and an OWCP medical adviser failed to conform to the
provisions of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (5th ed. 2001) (A.M.A., Guides). The case was remanded for further development to
determine the extent of any permanent impairment of the upper extremities. By decision dated
February 19, 2010, the Board affirmed a March 20, 2009 decision finding that appellant had no
more than a 27 percent permanent impairment of each upper extremity.3 In a December 12, 2012
order, the Board set aside a January 19, 2012 decision denying her request for reconsideration as
untimely and insufficient to establish clear evidence of error.4 The Board determined that
OWCP erred in denying appellant’s request for reconsideration under the clear evidence of error
standard instead of adjudicating her request for an increased schedule award. The facts and the
circumstances as set forth in the prior decisions and order are hereby incorporated by reference.
On remand, OWCP referred the October 3, 2011 report from Dr. Weerasak W. Lima, a
Board-certified orthopedic surgeon, to an OWCP medical adviser for review. In an October 3,
2011 report, Dr. Lima measured supination of 0 degrees, pronation of 90, flexion of 5 degrees
and extension of 20 degrees of the right wrist. He found a “fixed varus deformity of the wrist
about 10 degrees” and atrophy of the interossei muscles of the dorsum of the hand. For the left
wrist, Dr. Lima measured supination to 30 degrees, pronation of 90 degrees, radial deviation of
15 degrees and ulnar deviation of 5 degrees with a slight varus deformity of 10 degrees. He
diagnosed advanced arthritis of the wrists bilaterally confirmed by x-ray and a history of wrist
sprain.
In a report dated February 26, 2013, Dr. Morlet Slutsky, an OWCP medical adviser,
reviewed Dr. Lima’s report and found that he did not provide valid range of motion
measurements for the upper extremity as he documented only one motion per joint movement.
He determined that appellant had no impairment due to cubital tunnel syndrome as
electrodiagnostic testing obtained on April 30, 2009 showed only a relatively mild slowing.
Dr. Slutsky found that the results were insufficient to meet the criteria of the A.M.A., Guides for
rating ulnar nerve impairment due to compression neuropathy. Utilizing the wrist regional grid
at Table 15-3 on page 397 of the sixth edition of the A.M.A., Guides, he identified the diagnosis
as class 1 bilateral post-traumatic degenerative joint disease of the wrists based on x-ray
evidence. Dr. Slutsky utilized a grade modifier of 1 for functional history based on appellant’s
symptoms. He found a grade modifier of 0 for physical examination as the range of motion
measurements did not conform to the A.M.A., Guides and as the muscle atrophy was unrelated
2

Docket No. 05-1920 (issued June 14, 2006). On April 30, 1999 appellant, then a 47-year-old flat sorting
machine operator, filed an occupational disease claim alleging that she sustained tendinitis due to factors of her
federal employment. OWCP accepted her claim for bilateral tendinitis of the wrists. Appellant stopped work on
April 22, 1999 and returned to modified work on July 6, 1999. By decision dated November 28, 2001, OWCP
determined that she had no loss of wage-earning capacity based on its finding that her actual earnings as a modified
flat sorting machine operator effective July 6, 1999 fairly and reasonably represented her wage-earning capacity.
3

Docket No. 09-1167 (issued February 19, 2010). In a decision dated October 3, 2006, OWCP granted appellant
schedule awards for 27 percent impairment of the right and left upper extremity, minus the 4 percent previously paid
for each extremity.
4

Order Remanding Case, Docket No. 12-1341 (issued December 12, 2012).

2

to the wrist arthritis. Dr. Slutsky determined that appellant had no modifier for clinical studies as
x-rays were used to identify the correct diagnosis and class. He applied the net adjustment
formula to find that appellant had a three percent impairment of each upper extremity due to her
wrist arthritis. Dr. Slutsky then applied the elbow regional grid at Table 15-4 on page 398, to the
diagnosis of class 1 nonspecific bilateral elbow pain, which yielded a default value of one. He
found a grade modifier of 1 for Functional History (GMFH), a grade modifier of 2 for Physical
Examination (GMPE) findings of interosseous atrophy and no grade modifier for Clinical
Studies (GMCS) as electrodiagnostic studies were used to reach the diagnosis and class.
Dr. Slutsky applied the net adjustment formula and found a one percent impairment of each
upper extremity due to appellant’s elbow impairment, which he combined with the three percent
wrist impairment to total four percent impairment to each arm.
By decision dated March 1, 2013, OWCP denied appellant’s claim for an increased
schedule award. On March 7, 2013 appellant requested a review of the written record by an
OWCP hearing representative.
In a report dated March 13, 2013, Dr. Margit L. Bleecker, a neurologist, discussed
appellant’s work history and current symptoms of pain in the wrists and fingers with difficulty
performing activities of daily living. She provided detailed findings on examination.
Dr. Bleecker noted that she obtained electrodiagnostic studies that were normal. She also noted
that appellant requested that she become her treating physician.
In a decision dated June 20, 2013, an OWCP hearing representative affirmed the
March 1, 2013 decision. She noted that Dr. Bleecker did not provide any impairment rating.
On appeal appellant questioned why OWCP relied upon the medical adviser rather than
Dr. Lima’s October 3, 2011 report. She advised that she wished to change physicians to
Dr. Bleecker. Appellant questioned whether OWCP used Dr. Bleecker’s finding in its denial and
noted that she had not received payment.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing federal regulations,6 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

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

3

the A.M.A., Guides as the uniform standard applicable to all claimants.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on GMFH, GMPE and GMCS.9 The
net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
ANALYSIS
OWCP accepted that appellant sustained bilateral tendinitis of the wrists. In a decision
dated October 3, 2006, it granted her a schedule award for permanent impairment to each upper
extremity of 27 percent. The period of the awards ran from April 28, 2005 to January 27, 2008.
In a report dated October 3, 2011, Dr. Lima measured range of motion of the wrists
bilaterally and found a 10-degree fixed varus deformity of the right wrist and a 10-degree slight
varus deformity of the left wrist. He found atrophy of the interossei muscles of the right hand.
Dr. Lima diagnosed a history of bilateral wrist sprain and advanced bilateral wrist arthritis, worse
on the right.
On February 26, 2013 Dr. Slutsky, a medical adviser, applied the provisions of the
A.M.A., Guides to Dr. Lima’s clinical findings. He found that Dr. Lima’s range-of-motion
measurements did not conform to the A.M.A., Guides as he did not provide more than one joint
movement. The A.M.A., Guides indicates that to evaluate an impairment using range of motion,
the examiner should obtain “the active measurements from [three] separate range of motion
efforts.”10 The medical adviser determined that appellant had a class 1 impairment due to x-ray
evidence of bilateral post-traumatic degenerative joint disease of the wrists using the wrist
regional grid set forth in Table 15-3 on page 397, which yielded a default value of one percent.
He found a grade modifier of 1 for functional history based on appellant’s symptoms and a grade
modifier of 0 for physical examination as the range of motion measurements were invalid and as
the interossei atrophy was due to the elbow condition rather than the wrist. Dr. Slutsky further
determined that there was no grade modifier for clinical studies as the x-rays were used to select
the correct class of diagnosis. Utilizing the net adjustment formula, (GMFH-CDX) + (GMPECDX) + (GMCS-CDX), or (1-1) + (0-1) = -1, moved the grade one over to the left, for a final
upper extremity impairment of each wrist of three percent.11
Dr. Slutsky determined that appellant had no ratable impairment due to cubital tunnel
syndrome based on the finding of only mild slowing of the muscles under Appendix 15-B, page
7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.5(a) (February 2013); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
9

A.M.A., Guides 494-531.

10

Id. at 464.

11

Id. at 397, Table 15-3.

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488, but found that he could rate the elbows using the diagnostic-based criteria. He used the
diagnosis of class 1 nonspecific bilateral elbow pain, which yielded a default value of one under
the elbow regional grid.12 Dr. Slutsky applied a grade modifier of 1 for functional history, 2 for
physical examination findings of interosseous atrophy and none for clinical studies as
electrodiagnostic studies were used to reach the diagnosis and class. He applied the net
adjustment formula, (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), or (1-1) + (2-1) = 1,
which moved the grade one over to the right for a final impairment of each upper extremity
based on the elbow impairment of one percent. Dr. Slutsky combined the elbow and wrists
impairment to find a total impairment of each extremity of four percent.
There is no evidence of record conforming to the A.M.A., Guides to establish that
appellant has more than the 27 percent impairment of each upper extremity as previously
awarded for sensory loss at the ulnar nerve of the elbows and loss of range of motion of the
wrists. On March 13, 2013 Dr. Bleecker evaluated appellant, who wanted to have her as an
attending physician. She listed findings on examination but did not provide any impairment
evaluation. Consequently, Dr. Bleecker’s opinion is insufficient to establish that appellant has a
greater upper extremity impairment.
On appeal appellant asserted that OWCP should rely on the findings of Dr. Lima. As
discussed, however, Dr. Lima’s report did not fully conform to the provisions of the A.M.A.,
Guides and is of diminished probative value.13 Appellant also requested that Dr. Bleecker
became her attending physician. The Board’s jurisdiction, however, is limited to reviewing final
decisions of OWCP.14 OWCP has not issued a final decision on this issue. Thus, it is not before
the Board.
Appellant also inquired into whether OWCP used Dr. Bleecker’s finding in its denial. As
discussed, OWCP used the impairment rating provide by the medical adviser based on his review
of Dr. Lima’s clinical findings.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than a 27 percent impairment of each upper
extremity, for which she received schedule awards.

12

Id. at 398, Table 15-4.

13

See Carl J. Cleary, 57 ECAB 563 (2006) (an opinion which is not based upon the standards adopted by the
Board as appropriate for evaluating schedule losses is of little probative value in determining the extent of
permanent impairment).
14

20 C.F.R. § 501.2(c).

5

ORDER
IT IS HEREBY ORDERED THAT the June 20 and March 1, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: February 4, 2014
Washington, DC

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

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6