United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, INDIAN HEALTH SERVICES,
Phoenix, AZ, Employer
__________________________________________

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Appearances:
Edward Daniels, for the appellant
Office of Solicitor, for the Director

Docket No. 09-1168
Issued: March 12, 2010

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 31, 2009 appellant, through her representative, filed a timely appeal from
August 27, 2008 and February 26, 2009 merit decisions of the Office of Workers’ Compensation
Programs granting her a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the schedule award decisions.
ISSUE
The issue is whether appellant has more than a 59 percent permanent impairment of the
right upper extremity and a 42 percent permanent impairment of the left upper extremity, for
which she received schedule awards.
FACTUAL HISTORY
On September 30, 1996 appellant, then a 47-year-old computer programmer/analyst, filed
an occupational disease claim alleging that she sustained stress, anxiety and carpal tunnel
syndrome due to factors of her federal employment. She stopped work on August 14, 1996 and

returned to work on January 6, 1997. Appellant stopped work again on May 28, 1997 and did
not return. The Office accepted her claim for bilateral wrist tendinitis, bilateral carpal tunnel
syndrome, bilateral lesions of the ulnar nerve and adhesive capsulitis of the bilateral shoulders.
It also accepted that appellant sustained a consequential depressive disorder.
Appellant underwent a right carpal tunnel release on June 18, 1997 and a left carpal
tunnel release on August 6, 1997.
On June 21, 2001 she underwent a subacromial
decompression of the right shoulder and on December 19, 2001 she underwent a subacromial
decompression of the left shoulder.
On April 21, 2008 appellant filed a claim for a schedule award.1 In an impairment
evaluation dated March 24, 2008, Dr. John W. Ellis, an osteopath who is Board-certified in
family practice, discussed her complaints of pain and loss of range of motion of the bilateral
shoulders, elbows and wrists worse on the right upper extremity. He diagnosed bilateral
impingement syndrome of the shoulders, status post surgery, bilateral radial tunnel syndrome and
bilateral carpal and cubital tunnel syndrome status post surgery. Dr. Ellis found diminished two
point discrimination in the radial, ulnar and median nerves bilaterally and a positive Tinel’s test.
Citing the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides) (5th ed. 2001), he found a 41 percent impairment of the right upper extremity
and a 36 percent permanent impairment of the left upper extremity due to loss of range of motion
of the wrists, elbows and shoulders.2 Dr. Ellis found that, according to Tables 16-10 and 16-15
on pages 482 and 492 of the A.M.A., Guides, appellant had a bilateral impairment of 12 percent
of the median nerve, 3 percent of the ulnar nerve and 1 percent of the radial nerve due to sensory
loss. In evaluating appellant’s impairment due to motor loss of the affected nerves on the right
side, he utilized Tables 16-11 and 16-15 on pages 484 and 492 to find a 6 percent impairment of
the median nerve, an 18 percent impairment of the ulnar nerve and a 4 percent impairment of the
radial nerve. For the left side, Dr. Ellis determined that appellant had a 3 percent impairment due
to motor loss of the median nerve, a 12 percent impairment due to motor loss of the ulnar nerve
and a 4 percent impairment due to motor loss of the median nerve. He combined the
impairments due to motor loss and pain to find a 37 percent impairment on the right side and a
32 percent impairment on the left side. In determining appellant’s total right upper extremity
impairment, Dr. Ellis combined the 37 percent impairment due to peripheral nerve roots with the
41 percent impairment due to loss of range of motion to find a 63 percent permanent impairment.
For the left upper extremity, he combined the 32 percent impairment due to peripheral nerve
roots with the 36 percent impairment due to loss of range of motion to find a 57 percent
permanent impairment.
On July 28, 2008 an Office medical adviser reviewed the findings of Dr. Ellis. Citing the
A.M.A., Guides, he found that appellant had a 12 percent permanent impairment of the right
wrist and a 10 percent impairment of the left wrist due to loss of motion3 and a 5 percent bilateral

1

On September 27, 2004 appellant filed a claim for a schedule award.

2

A.M.A., Guides at 469, 472, 476, 477, 479, Figures 16-28, 16-31, 16-34, 16-40, 16-43, 16-46.

3

Id. at 467, 469, Figures 16-28, 16-31.

2

impairment due to residual carpal tunnel.4 The Office medical adviser determined that appellant
had a 28 percent impairment due to loss of range of motion for the right elbow, a 15 percent
impairment due to loss of range of motion of the left elbow, a 26 percent impairment for loss of
range of motion of the right shoulder and a 15 percent impairment due to loss of range of motion
of the left shoulder.5 He applied Table 16-10 on page 482 in finding that she had a four percent
impairment due to sensory loss of the ulnar nerve bilaterally and a one percent impairment due to
sensory loss of the radial nerve bilaterally. The Office medical adviser combined the 28 percent
impairment due to loss of elbow motion with the 4 percent impairment due to sensory loss to
find a 31 percent right elbow impairment. He then combined the 15 percent impairment due to
loss of elbow motion on the left side with the 4 percent impairment due to sensory loss to find an
18 percent left elbow impairment. The medical adviser combined the 16 percent right wrist
impairment, the 31 percent right elbow impairment, the 26 percent right shoulder impairment
and the 1 percent impairment for loss of sensation of the radial nerve to find a 58 percent right
upper extremity impairment. He combined the 15 percent left wrist impairment, the 18 percent
left elbow impairment, the 15 percent left shoulder impairment and the 1 percent impairment of
the radial nerve to find a 42 percent left upper extremity impairment. The Office medical adviser
stated:
“It should be noted that there were some differences in the impairment calculated
by myself and Dr. Ellis, most notably with regard to [appellant’s] residual carpal
tunnel symptoms. In discussing impairment for residual carpal tunnel symptoms
status post carpal tunnel release, the A.M.A., Guides do not discuss impairment
for [claimants] with residual symptoms that have normal electrodiagnostic studies
[EMGs]. It is noted that preoperatively, [appellant] did have normal [EMG]
studies and has not had [EMG] studies to document objective evidence of residual
carpal tunnel symptoms. As such, the A.M.A., Guides, do not provide a clear cut
description of impairment for patients who have residual symptoms following
carpal tunnel release with abnormal physical findings without positive [EMG]
studies, such is the case in this claimant.”
The Office medical adviser found that a five percent impairment bilaterally “for residual
symptoms following carpal tunnel release would be appropriate.”
By decision dated August 27, 2008, the Office granted appellant schedule awards for a 58
percent right upper extremity impairment and a 42 percent left upper extremity impairment. The
period of the awards ran for 312 weeks from August 31, 2008 to August 23, 2014.
On October 29, 2008 appellant, through her representative, requested reconsideration. In
a report dated October 15, 2008, Dr. Ellis concurred with the Office medical adviser’s finding
that she had a 27 percent impairment due to loss of right elbow flexion for a total impairment of

4

Id. at 495.

5

Id. at 472, 476, 477, 479, Figures 16-34, 16-40, 16-43, 16-46.

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the right elbow due to loss of range of motion of 29 percent.6 Dr. Ellis disagreed with the Office
medical adviser’s finding that appellant did not sustain motor loss of the nerves. He stated:
“[The Office medical adviser] has made some incorrect assumptions. He has not
examined [appellant]. [The Office medical adviser] cannot go retroactively back
to preoperative EMGs and determine that only sensory loss has occurred. He has
ignored the motor loss of the impingement of the nerves in her upper extremities.
Ignoring them does not make them go away. Obviously, my examination after
the surgeries, with time and the scarring that occurs after the surgeries is going to
be more accurate than a physician arbitrarily ignoring motor loss and changing
sensory loss. [The Office medical adviser] cannot change sensory loss unless he
examines [appellant].”
Dr. Ellis further found that appellant had three percent impairment for radial deviation of
the wrist rather then four percent. He stated:
“In the second paragraph on page 4, [the Office medical adviser] states [that
appellant] only has [five percent] impairment of having a satisfactory result
following carpal tunnel release. Based on my examination of [appellant] and not
an arbitrary review of records, it is obvious that she has not had a satisfactory
result and does not have normal sensory and motor latencies and, therefore, does
not fit into [category] [two] carpal tunnel syndrome, page 495. One would have
to get another EMG to put her in that status. You cannot use the EMG before
surgery and then the physical findings on my examination to show non
satisfactory results. Instead, one would use Table 16-15, Maximum Upper
Extremity Impairment due to Unilateral Sensory or Motor Deficits or to Major
Peripheral Nerves, page 492. It goes into great detail about how to use the
specific nerves, such as the median nerve at the wrist, ulnar nerve at the elbow
and radial nerve at the arm.”
On February 14, 2009 the Office medical adviser reviewed Dr. Ellis’ October 15, 2008
report. He noted that Dr. Ellis found that appellant had a 29 percent impairment due to loss of
motion of the right elbow as well as additional impairment for muscle weakness in both upper
extremities resulting from problems with the radial nerve, ulnar nerve and medial nerve. The
Office medical adviser concurred with Dr. Ellis’ finding of a 29 percent loss of motion for the
right elbow and modified her total right upper extremity impairment to 59 percent. He found
that appellant had pain and limited range of motion of the shoulders, elbows, hands and wrists.
The Office medical adviser determined that under the A.M.A., Guides at page 508, decreased
strength could not be rated in the presence of decreased motion or painful conditions. He also
noted that a December 1, 2007 report from a second opinion examiner found normal muscle

6

Dr. Ellis noted that the Office medical adviser combined appellant’s right elbow impairments due to loss of
range of motion to find a 28 percent impairment rather than adding the impairments to find a 29 percent impairment.

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testing and sensation on examination.7 The Office medical adviser found that Dr. Ellis had not
documented muscle weakness. He concluded:
“Based on the above, I do not wish to change any previously expressed opinions,
other than to increase the claimant’s right upper extremity impairment to 59
percent, as I would agree with Dr. Ellis that the claimant is entitled to an
additional 1 percent impairment for loss of elbow motion.
“If this report does not adequately resolve this matter, then I would recommend
the claimant be referred to a physician not previously connected to the case for
evaluation of residual problems with both upper extremities and documentation of
physical examination.”
By decision dated February 26, 2009, the Office modified its August 27, 2008 decision to
find that appellant was entitled to an additional 1 percent right upper extremity impairment, for a
total right upper extremity impairment of 59 percent. It found that she had no additional left
upper extremity impairment.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act8 and its
implementing federal regulations,9 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, the Act 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, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all
claimants.10 Office procedures direct the use of the fifth edition of the A.M.A., Guides, issued in
2001, for all decisions made after February 1, 2001.11
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.12 The implementing regulations state that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
7

In a report dated December 1, 2007, Dr. Paul F. Howard, a Board-certified internist who provided a second
opinion examination on the issue of appellant’s current condition and work restrictions, found no gross weakness or
loss of motor strength and normal sensation to light touch.
8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id. at § 10.404(a).

11

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

12

5 U.S.C. § 8123(a).

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a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.13
ANALYSIS
The Office accepted that appellant sustained bilateral wrist tendinitis, bilateral carpal
tunnel syndrome, bilateral lesions of the ulnar nerve and adhesive capsulitis of both shoulders
due to factors of her federal employment. Appellant underwent bilateral carpal tunnel releases in
1997 and bilateral subacromial decompressions of the shoulders in 2001. On April 21, 2008 she
filed a claim for a schedule award.
In a March 24, 2008 impairment evaluation, Dr. Ellis found that appellant had a
63 percent permanent impairment of the right upper extremity and a 57 percent permanent
impairment of the left upper extremity. He calculated her bilateral impairment of the upper
extremities by combining impairments due to loss of range of motion of the wrists, elbows and
shoulders with impairments due to sensory and motor loss of the median, ulnar and radial nerves.
On July 28, 2008 an Office medical adviser reviewed Dr. Ellis’ findings. He opined that
appellant had a 58 percent right upper extremity impairment and a 42 percent left upper
extremity impairment. The Office medical adviser explained that the primary difference
between his impairment determination and the findings of Dr. Ellis was the evaluation of her
impairment due to residual carpal tunnel syndrome. He found that appellant was not entitled to
sensory or motor loss of the median nerve as she did not have EMG studies postoperatively. The
Office medical adviser further found that she was not entitled to an additional award for motor
loss.
In a report dated October 15, 2008, Dr. Ellis disagreed with the Office medical adviser’s
finding that appellant had no impairment due to motor loss. He asserted that, under the A.M.A.,
Guides, abnormal sensory and motor latencies following carpal tunnel releases should be
evaluated by using the tables and pages relevant to determining impairments of peripheral
nerves.14
On February 14, 2009 an Office medical adviser reviewed the October 15, 2008 report of
Dr. Ellis. He found that decreased strength could not be rated in the presence of decreased
motion. The Office medical adviser cited section 16.8(a) of the A.M.A., Guides, which limits
grip strength evaluations except in rare cases and states that decreased strength cannot be rated in
the presence of decreased motion or other condition that prevents the application of maximal
force in the evaluated region.15 This section, however, would not preclude a motor deficit for an
identified peripheral nerve.16 The Office medical adviser further questioned Dr. Ellis’ findings

13

20 C.F.R. § 10.321.

14

A.M.A., Guides at 495.

15

Id. at 508.

16

See A.M., Docket No. 06-1962 (issued February 2, 2007).

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of loss of sensory and motor deficits in view of the discrepancies between his findings on
examination and those of other examining physicians.
The Board finds a conflict in medical opinion between Dr. Ellis and the Office medical
adviser regarding the extent of appellant’s permanent impairment of the bilateral upper
extremities. Section 8123(a) of the Act provides that if there is a disagreement between the
physician making the examination for the Unites States and the physician of the employee, the
Secretary shall appoint a third physician who shall make an examination.17 Accordingly, the
case must be remanded for further development. On remand, the Office should refer appellant
for an impartial medical examination to determine the extent of her bilateral upper extremity
impairment. After such further development as it deems necessary, the Office shall issue a de
novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 26, 2009 and August 27, 2008 are set aside and the case
is remanded for further proceedings consistent with this opinion of the Board.
Issued: March 12, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

17

5 U.S.C. § 8123(a); see also Raymond A. Fondots, 53 ECAB 637 (2002).

7


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

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

Docket No. 13-342
Issued: May 6, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 27, 2012 appellant timely appealed the June 5, 2012 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the schedule award claim.
ISSUE
The issue is whether appellant has greater than one percent impairment of both upper
extremities.
FACTUAL HISTORY
Appellant, a 63-year-old letter carrier, has an accepted claim for bilateral carpal tunnel
syndrome (CTS) and right trigger finger (ring/fourth) (acquired), which arose on or about
January 1, 2010. Dr. Bruce S. Schlafly, a Board-certified hand surgeon, performed a right carpal
1

5 U.S.C. §§ 8101-8193 (2006).

tunnel release and right trigger finger (ring/fourth) release on November 12, 2010. He also
performed a left carpal tunnel release on February 10, 2011. OWCP approved all three surgical
procedures. On March 29, 2011 appellant resumed her regular letter carrier duties. Dr. Schlafly
released her from his care effective May 20, 2011, noting that she had reached maximum
medical improvement (MMI).
On December 14, 2011 appellant filed a claim for a schedule award (Form CA-7).
In his May 20, 2011 report, Dr. Schlafly noted it had been three and a half months since
appellant’s latest surgery and she was working full time delivering mail, with two hours of office
work each day. Appellant reportedly had good range of motion in her hands and there was good
relief of numbness. Also, her two-point discrimination was normal at the fingertips and the first
dorsal interosseous and abductor pollicis brevis muscles were working in both hands.
Dr. Schlafly also provided range of motion and grip strength measurements for both wrists and
forearms. He further noted that there was no triggering in the fingers of appellant’s hands and
that she was not taking any hand-related medications. Dr. Schlafly also reported that she
dropped letters somewhat with her left hand. He described appellant’s condition as satisfactory
and indicated that no additional surgery was required. Accordingly, Dr. Schlafly found that she
reached MMI and he discharged her from his care, but he did not provide a specific impairment
rating under the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides) (6th ed. 2008).
OWCP prepared a statement of accepted facts and referred the case record, including
Dr. Schlafly’s May 20, 2011 report, to its district medical adviser (DMA) for review. In a
May 22, 2012 report, the DMA found one percent impairment of both upper extremities under
Table 15-23, Entrapment/Compression Neuropathy Impairment, A.M.A., Guides 449
(6th ed. 2008). Based on Dr. Schlafly’s finding of “no triggering,” the DMA found zero percent
impairment under Table 15-2, Digit Regional Grid, A.M.A., Guides 392 (6th ed. 2008).
On June 5, 2012 OWCP granted a schedule award for one percent impairment of each
upper extremity. The award covered a period of 6.24 weeks from May 21 through July 3, 2011.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.2 It, however,
does not specify the manner by which the percentage loss of a member, function or organ shall
be determined. To ensure consistent results and equal justice under the law, good administrative
practice requires the use of uniform standards applicable to all claimants. The implementing
regulations have adopted the A.M.A., Guides as the appropriate standard for evaluating schedule

2

For a total or 100 percent loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).

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losses.3 Effective May 1, 2009, schedule awards are determined in accordance with the sixth
edition of the A.M.A., Guides (2008).4
ANALYSIS
OWCP accepted appellant’s claim for bilateral CTS and right trigger finger (ring/fourth).
Appellant underwent bilateral carpal tunnel releases and a right trigger finger release.
Approximately three months after her latest surgery, Dr. Schlafly found that appellant had
reached MMI. Although appellant’s surgeon did not provide a specific impairment rating, the
DMA was able to provide an upper extremity rating based on Dr. Schlafly’s most recent
examination findings.5
Relying on the May 20, 2011 examination findings, the DMA found zero percent
impairment under Table 15-2, A.M.A., Guides 392 (6th ed. 2008). Dr. Schlafly noted that there
was no triggering in the fingers of appellant’s hands. Accordingly, there is no upper extremity
impairment for digital stenosing tenosynovitis (trigger digit) under Table 15-2.
Regarding residuals of appellant’s CTS, the DMA properly found one percent bilateral
upper extremity impairment under Table 15-23, A.M.A., Guides 449 (6th ed. 2008). He
explained that her March 18, 2010 abnormal electrodiagnostic studies represented a grade 1
modifier (test findings) under Table 15-23. The DMA also indicated that appellant had a grade 0
modifier for both history and physical findings. Appellant was reportedly asymptomatic when
Dr. Schlafly examined her on May 20, 2011. The DMA also considered Dr. Schlafly’s
examination findings as essentially normal.6 The average grade modifier based on test findings
(1), history (0) and physical findings (0) was .33 (1 + 0 + 0 ÷ 3 .33), which when rounded-up
represented a grade 1 modifier with a default upper extremity impairment of two percent.7 With
respect to functional scale, the DMA noted that appellant had been working without limitations
according to Dr. Schlafly. As such, this represented a normal functional scale and a
corresponding grade 0 modifier. Because the functional scale grade modifier (0) was less than
the grade assigned for the condition (1), the DMA properly reduced appellant’s upper extremity
rating from one to two percent, bilaterally.

3

20 C.F.R. § 10.404.

4

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.6a (January 2010).
5

Before a case can be referred to the DMA, the attending physician should describe the impairment in sufficient
detail to permit clear visualization of the impairment and the restrictions and limitations which have resulted. Supra
note 5 at Chapter 3.700.3a(2).
6

Dr. Schlafly’s grip strength measurements varied to such an extent that the DMA considered them unreliable for
purposes of assigning a higher grade modifier for physical findings.
7

Under Table 15-23, a grade 1 modifier has an upper extremity impairment range from one to three percent.

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The DMA’s May 22, 2012 impairment rating is in accordance with the A.M.A., Guides
(6 ed. 2008) and thus, represents the weight of the medical evidence with respect to appellant’s
entitlement to a schedule award under FECA.
th

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
Appellant has not established that she has greater than one percent impairment of each
upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the June 5, 2012 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 6, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.V., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Wilmington, DE,
Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0947
Issued: March 4, 2019

Case Submitted on the Record

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

JURISDICTION
On April 6, 2018 appellant, through counsel, filed a timely appeal from an October 27,
2017 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 this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden to establish cervical conditions causally
related to the accepted factors of her federal employment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On November 15, 2014 appellant, then a 44-year-old machine operator/delivery bar code
sorter clerk, filed an occupational disease claim (Form CA-2) alleging that, on November 15, 2014,
she first realized that her claimed neck strain was due to her federal employment duties. In a
supplemental statement dated November 15, 2014, she related feeling neck pain on October 15,
2014 while processing outgoing mail which included many trays with large envelopes. Appellant
related feeling neck pain immediately after throwing heavy trays, as well as after twisting her neck
to clear jams in a machine. She stopped work on November 15, 2014.
By decision dated January 22, 2015, OWCP denied appellant’s claim. It found that the
evidence submitted was insufficient to establish that the claimed medical condition was causally
related to her employment duties which included handling flat-sized mail and heavy trays.
In a February 9, 2015 report, Dr. Scott M. Fried, a treating Board-certified osteopath
specializing in orthopedic surgery, noted appellant’s employment duties, her medical history, and
her recitation that on November 15, 2014 she dealt with a lot of jams in a machine which required
turning her neck and head and stretching her arm to yank the mail free of the jam. While
performing this work appellant felt acute pain and tightness in her right neck, plexus, and upper
trapezius and her left side was also symptomatic. An examination of the cervical spine revealed
tenderness in the left C2-7 cervical paravertebral musculature, the occipital region, left trapezius
muscle, and left superior medial scapular border; left cervical and trapezius muscle spasms;
positive Phalen’s and Tinel’s tests; and synovitis. Dr. Fried diagnosed bilateral median
neuropathy, left radial neuropathy, right ulnar neuropathy, left brachial plexopathy/cervical
radiculopathy with long thoracic neuritis and grade 2 scapular winging; and carpal tunnel median
neuropathy, which he attributed to appellant’s work activities. He also diagnosed C4-5, C5-6, and
C6-7 disc bulges, pain syndrome, and left side posterior occipital neuralgia with cervical plexus
symptoms. Dr. Fried recommended electromyography (EMG)/nerve conduction velocity studies
be performed to assist in evaluating appellant’s nerve complaints.
On April 13, 2015 appellant, through counsel, requested reconsideration.
In reports dated February 26 and March 2, 2015, Dr. Fried diagnosed: bilateral upper
extremity sympathetically mediated pain syndrome; C4-5, C5-6, and C6-7 disc bulges with
radiculopathy; posterior occipital neuralgia with cervical plexus symptoms; bilateral median
neuropathy; left radial neuropathy; right ulnar neuropathy; left brachial plexopathy/cervical
3

Docket No. 16-0349 (issued November 25, 2016).

2

radiculopathy with long thoracic neuritis and grade 2 scapular winging; and bilateral carpal tunnel
median neuropathy, which were all due to appellant’s work activities. In his February 26, 2015
report, he noted physical examination findings of negative Tinel’s sign, bilateral negative Phalen’s
test, limited cervical spine range of movement and spasm. Dr. Fried also noted that appellant had
been out of work since her November 14, 2014 work injury, she remained symptomatic and was
unable to perform her usual job duties.
By decision dated June 1, 2015, OWCP denied the claim, finding that the evidence then of
record was insufficient to establish the factual element of appellant’s claim. It noted that she had
been asked to provide a statement explaining the basis for her claim and to complete the attached
questionnaire. However no statement or completed questionnaire had been submitted. Thus,
OWCP found appellant failed to establish the factual part of her claim.
In a letter dated and received by OWCP on July 7, 2015, counsel requested reconsideration.
On August 14, 2015 OWCP received a letter from the employing establishment providing
information regarding appellant’s duties as a sweeper. The position required a team of two mail
processors working to set up and dispatch mail. As a sweeper, appellant’s duties required her to
load several trays of mail into the feed table. If a tray was too heavy to lift, the sweeper could
move smaller amounts of mail until the tray could be lifted safely. It acknowledged that there
were 200 stackers and that sweepers were required to work continuously, but denied that frequent
turning of the neck was required.
In an August 27, 2015 report, Dr. Fried again noted appellant’s extensive diagnoses. He
related that her physical examination revealed positive Phalen’s test for median nerve distribution
dysesthesias, limited cervical range of motion, tenderness over the bilateral elbows and forearms,
positive bilateral median nerve Tinel’s sign, positive left elbow radial nerve Tinel’s sign, and
positive Roos and Hunter’s tests. Dr. Fried explained that appellant’s positive Roos and Hunter’s
tests were indicative of brachial plexus inflammation and scarring at the thoracic outlet level.
On September 21, 2015 OWCP referred appellant for a second opinion evaluation with
Dr. Robert A. Smith, a Board-certified orthopedic surgeon, to determine whether appellant
sustained a diagnosed medical condition causally related to the identified employment factors.
In an October 5, 2015 report, Dr. Smith noted appellant’s medical history included bilateral
carpal tunnel syndrome, right carpal tunnel surgery in 2009, a neck injury in 2009, and an upper
extremity and neck injury in January 2015. Appellant’s physical examination was negative for
cervical spasm, atrophy, deformity or trigger points, and allodynia. Essentially, she had normal
upper extremity range of motion, no signs of upper extremity instability or derangement, no
scapular winging, negative Phalen’s and Tinel’s tests, and no evidence of thoracic outlet syndrome.
Dr. Smith noted an April 2014 magnetic resonance imaging (MRI) scan showed a small C6-7 disc
herniation, but it was not in the record OWCP provided for his review. He also noted that Dr. Fried
conducted a number of diagnostic tests including ultrasounds and electrodiagnostic tests, but that
these test results were not available for review. There was no mention of record regarding findings
from these tests. Dr. Smith opined that there was no clinical or objective evidence of a diagnosis
due to appellant’s identified employment factors by aggravation, direct cause or precipitation. He
reported appellant had a significant preexisting history of carpal tunnel and cervical injuries.

3

By decision dated October 5, 2015, OWCP granted modification of the prior decision as it
found appellant had established the factual portion of her claim. However, it denied the claim as
it found that the medical evidence submitted was insufficient to establish causal relationship
between the diagnosed medical conditions and the accepted factors of her federal employment.
On December 18, 2015 appellant, through counsel, appealed to the Board. By decision
dated November 25, 2016,4 the Board set aside the October 5, 2015 decision and remanded the
case to OWCP for it to provide the reports of the MRI scans and EMG tests performed by Dr. Fried
to Dr. Smith and to obtain from him a supplemental report.
On February 8, 2017 OWCP referred appellant for an updated second opinion evaluation
with Dr. Smith to determine whether she sustained a diagnosed medical condition causally related
to the accepted employment factors. It informed Dr. Smith that it was forwarding a complete copy
of the medical record, including diagnostic tests not previously provided. Dr. Smith was asked to
comment as to whether the diagnosed conditions were caused or aggravated by the accepted
employment factors set forth in the statement of accepted facts.
In a March 17, 2017 report, Dr. Smith reviewed the additional diagnostic tests provided by
OWCP and detailed medical treatment provided, appellant’s complaints, results of diagnostic tests,
and diagnoses found by Dr. Fried. He observed that appellant had a history of back and neck
injuries from 2009. Dr. Smith described the incident occurring on November 15, 2014 when
appellant was trying to pull thick parcels of mail out of a machine. He noted that the
contemporaneous medical evidence when appellant filed her claim did not mention acute
neurologic symptoms or findings. Dr. Smith also explained that when appellant sought treatment
with Dr. Fried he offered numerous diagnoses of appellant’s condition, however, his diagnostic
test findings did not comport with his multiple diagnoses. He noted: appellant’s current physical
examination revealed no cervical spasm; no atrophy, deformity, or trigger points; no shoulder
deformity, scapular winging, or atrophy; full shoulder joint range of motion with no signs of
instability, impingement, or crepitation; negative Phalen’s signs and mild positive Tinel’s signs at
the wrist; negative Tinel’s signs at the elbows and over the cubital tunnels; and no muscle atrophy
or upper extremity dystrophic signs. Dr. Smith noted that appellant had neck pain (cervicalgia)
and back pain (lumbago), attributable to the November 15, 2014 employment incident, which had
ceased as of December 12, 2014. On April 3, 2017 OWCP forwarded an April 4, 2014 MRI scan
for review by Dr. Smith.
In an April 10, 2017 supplemental report, Dr. Smith reported that appellant attributed her
neck, extremity, and back pain to her work activities. Based on his March 17, 2017 physical
examination, he found no objective findings to support neurological or musculoskeletal injuries or
conditions due to her employment duties or her employment duties on November 15, 2014.
Dr. Smith attributed the findings from the April 2014 cervical MRI scan to age-related
degenerative disease.

4

Id.

4

In a letter dated April 17, 2017, OWCP requested clarification of Dr. Smith’s March 17,
2017 report and April 10, 2017 addendum report. It noted that under FECA pain is considered a
symptom and not a diagnosis.
Dr. Smith, in an April 25, 2017 addendum, explained that he found no confirmation
clinically for the diagnoses of neuropathy, cervical radiculopathy, long thoracic neuritis, or
brachial plexopathy, and, thus found no causal relationship between these conditions and a
November 15, 2014 work incident.
By decision dated May 16, 2017, OWCP denied appellant’s claim, finding the medical
evidence of record was insufficient to establish causal relationship between the diagnosed medical
conditions and the accepted factors of her federal employment. It found the weight of the medical
opinion evidence rested with Dr. Smith’s opinion.
In a letter dated May 23, 2017 and received May 23, 2017, counsel requested an oral
hearing before an OWCP hearing representative, which was held on August 17, 2017.
By decision dated October 27, 2017, an OWCP hearing representative affirmed the
May 16, 2017 decision denying the claim. He found that Dr. Fried’s diagnoses were based upon
appellant’s subjective complaints and that he had not provided a rationalized medical opinion
causally relating the diagnosed conditions to appellant’s employment duties. The hearing
representative concluded that Dr. Smith’s opinion constituted the weight of the medical evidence.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 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 filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.6 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.7
OWCP’s regulations define the term “occupational disease or illness” as a condition
produced by the work environment over a period longer than a single workday or shift.”8 To
establish that an injury was sustained in the performance of duty in an occupational disease claim,
a claimant must submit the following: (1) medical evidence establishing the presence or existence
of the disease or condition for which compensation is claimed; (2) a factual statement identifying
5

Supra note 2.

6

See E.B., Docket No. 17-0164 (issued June 14, 2018); Alvin V. Gadd, 57 ECAB 172 (2005); Bonnie A. Contreras,
57 ECAB 364 (2006).
7

See P.S., Docket No. 17-0939 (issued June 15, 2018); Ellen L. Noble, 55 ECAB 530 (2004); Joe D. Cameron, 41
ECAB 153 (1989).
8

20 C.F.R. § 10.5(ee).

5

employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally
related to the employment factors identified by the claimant.
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue.9 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and the implicated employment factors(s) must be based on a
complete factual and medical background.10 Additionally, the physician’s opinion must be
expressed in terms of a reasonable degree of medical certainty, and must be supported by medical
rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s
specific employment factor(s.)11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish cervical
conditions causally related to the accepted factors of her federal employment.
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s October 5, 2015 decision because the Board
considered that evidence in its November 25, 2016 decision and found that it was insufficient to
establish her claim. Findings made in prior Board decisions are res judicata absent any further
review by OWCP under section 8128 of FECA.12
Following the Board’s remand, OWCP provided Dr. Smith with additional medical records
and scheduled a follow up evaluation. In his March 17, 2017 supplemental report, Dr. Smith
explained that while appellant had a history of back and neck injuries from 2009, contemporaneous
medical evidence at the time appellant filed her occupational disease claim did not mention acute
neurologic symptoms or findings, rather only subjective findings and pain complaints were
recorded. He explained that his own physical examination of appellant found no objective findings
supporting neurological or musculoskeletal injuries or conditions due to appellant’s employment
duties. Dr. Smith attributed the findings from the April 2014 cervical MRI scan to age-related
degenerative disease. He also reviewed Dr. Fried’s reports and noted that his multitude of
diagnoses were not corroborated by objective findings.
The Board has reviewed the opinion of Dr. Smith and finds that it has reliability, probative
value, and a convincing quality with respect to its conclusions regarding the issue presented on
appeal.13 Dr. Smith’s opinion is based on a proper factual and medical history and he thoroughly
9

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
10
J.J., Docket No. 09-0027 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006); Victor J.
Woodhams, 41 ECAB 345, 352 (1989).
11

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, id.

12

See B.R., Docket No. 17-0294 (issued May 11, 2018).

13

See R.W., Docket No. 12-0375 (issued October 28, 2013).

6

reviewed the factual and medical history by accurately summarizing the relevant medical
evidence.14 Thus, his opinion is entitled to the weight of the medical evidence and establishes that
appellant’s cervical condition was not caused or aggravated by the accepted employment duties.15
Appellant submitted a series of reports from Dr. Fried in which he diagnosed: bilateral
upper extremity sympathetically mediated pain syndrome; C4-5, C5-6, and C6-7 disc bulges with
radiculopathy; posterior occipital neuralgia with cervical plexus symptoms; bilateral median
neuropathy; left radial neuropathy; right ulnar neuropathy; left brachial plexopathy/cervical
radiculopathy with long thoracic neuritis and grade 2 scapular winging; and bilateral carpal tunnel
median neuropathy. Dr. Fried has not explained how these diagnoses correlated with objective
findings. Dr. Fried noted appellant’s description of her work duties and the November 15, 2014
incident, which he indicated required stretching her arm to yank mail from jams and turning her
neck and head a lot while working with machine jams. He attributed the diagnosed conditions to
her work activities and opined that she was disabled and unable to perform her usual job duties.
Dr. Fried did not provide a rationalized medical explanation as to how appellant’s daily
employment duties physiologically caused her numerous diagnosed conditions. While he provided
an affirmative opinion on causal relationship, his conclusory opinion, is insufficient to establish
causal relationship.16 The Board has held that a report is of limited probative value regarding
causal relationship if it does not contain medical rationale explaining how a given medical
condition/disability was related to employment factors.17 Dr. Fried failed to provide an
explanation pertaining to the mechanism of injury to establish that appellant’s cervical conditions
were work related. Without explaining how physiologically the movements involved in
appellant’s employment duties caused or contributed to the diagnosed conditions Dr. Fried’s
opinion on causal relationship is equivocal in nature and of limited probative value.18
The mere fact that work activities may produce symptoms revelatory of an underlying
condition does not raise an inference of an employment relation.19 Such a relationship must be
shown by rationalized medical evidence of causal relation based upon a specific and accurate
history of employment conditions which are alleged to have caused or exacerbated a disabling
condition.20 As appellant has not submitted such rationalized medical evidence in this case, the
Board finds that she has not met her burden of proof to establish her occupational disease claim.

14

See Melvina Jackson, 38 ECAB 443 (1987).

15

See R.T., Docket No 17-2019 (issued August 24, 2018).

16

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

17

See Y.D., Docket No. 16-1896 (issued February 10, 2017).

18

See M.E., Docket No. 18-1135 (issued January 4, 2019).

19

See M.B., Docket No. 17-1999 (issued November 13, 2018); P.D., Docket No. 17-1885 (issued
September17, 2018).
20

Id.

7

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 cervical
conditions causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the October 27, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 4, 2019
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.F., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, White Deer, PA, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1435
Issued: September 6, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On June 29, 2016 appellant, through counsel, filed a timely appeal from a May 16, 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 this case.
ISSUE
The issue is whether appellant established more than eight percent permanent impairment
of the right lower extremity for which he previously received schedule awards.

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.

On appeal counsel contends that there is an unresolved conflict in the medical opinion
evidence with regard to the extent of permanent impairment.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts as set forth in the prior Board
decision are incorporated herein by reference.
The relevant facts are as follows. OWCP accepted that on May 16, 2013 appellant, then
a 44-year-old correctional officer, sustained a right medial meniscus tear and right lower leg
other joint derangement (patella subluxation) when his knee buckled and gave out while he was
descending an incline. It authorized right knee arthroscopic surgery, which was performed on
January 20, 2014.
Appellant continued to submit progress reports from his treating physician, Dr. Brian
Batman, a Board-certified orthopedic surgeon. In a report dated February 11, 2014, Dr. Batman
found appellant’s lateral retinacular release defect was palpable, but he found minimal swelling,
and no intra-articular effusion. He also found that appellant’s arthroscopic portals had healed
and he had full range of motion. In a report dated March 14, 2014, Dr. Batman noted that
appellant was still struggling with pain, had some swelling in the lateral aspect of his patella, had
quadriceps weakness and atrophy, but had good patella mobility. He also related that on
examination he was able to take appellant’s right knee gently through the range of motion. On
April 25, 2014 Dr. Batman related that appellant had tenderness to palpation along the lateral
release region and weakness in the quadriceps, but full range of motion. In another report dated
August 12, 2014, he related that appellant’s right knee continued to bother him, especially when
he tried to run or exercise. On examination appellant still had a palpable lateral retinacular
defect, with peripatellar pain, and some synovial thickening. Dr. Batman also found upon
examination that appellant had full range of motion of the right knee, and no instability.
In a report dated October 6, 2014, Dr. Michael J. Platto, an examining Board-certified
physiatrist, applied the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2009) used the range of motion
(ROM) method of rating impairment, and found 20 percent permanent impairment of the right
lower extremity. He reported that appellant had 97 degrees right knee flexion and 0 degrees
right knee extension, no definite right knee crepitus, and tenderness on palpation over the lateral
and medial right knee aspects. Dr. Plato further found that motor strength was 5/5 in both legs,
and right knee sensation was decreased diffusely upon pinpoint testing. He noted that, under
Table 16-23, page 549 of the sixth edition of the A.M.A., Guides, 97 degrees flexion would be
considered a mild impairment, but as appellant also lacked 18 degrees extension this would be
considered a moderate impairment, resulting in 20 percent permanent right lower extremity
impairment. Using Table 16-17 on page 545, Dr. Platto noted that the grade modifier of 2 under
the functional history matched the finding of a moderate impairment based on range of motion.
He concluded that appellant had 20 percent permanent impairment of the right lower extremity.
On October 9, 2014 appellant filed a claim for a schedule award (Form CA-7).

3

Docket No. 15-0664 (issued January 8, 2016).

2

On October 27 and 28, 2014 a district medical adviser (DMA), Dr. Morley Slutsky,
Board-certified in occupational medicine, reviewed the medical evidence including Dr. Platto’s
report and noted that accepted conditions were right knee patella subluxation and right medial
meniscal tear. He recommended that, due to the inconsistent examination findings by treating
physicians Dr. Platto and Dr. Batman, a second opinion examination should be obtained prior to
consideration of a schedule award. In his October 28, 2014 report, Dr. Slutsky noted that
Dr. Platto’s examination findings differed greatly from the other physicians’ examination
findings. He noted that the differences in Dr. Platto’s examination findings could be explained
by a temporary aggravation. Dr. Slutsky, using a diagnosis-based impairment (DBI) method of
evaluation, concluded that appellant had two percent permanent impairment of the right lower
extremity.
In a January 8, 2015 decision, OWCP granted appellant a schedule award for two percent
permanent impairment of the right lower extremity. Appellant subsequently appealed to the
Board.
By decision dated January 9, 2016, the Board found that OWCP should have followed the
DMA’s recommendation to refer appellant for a second opinion examination. The Board
remanded the case for a second opinion examination to determine appellant’s right knee range of
motion and whether the degree of impairment should be evaluated under the DBI or ROM
method.4
On February 5, 2016 OWCP referred appellant to Dr. Robert F. Draper, Jr., a Boardcertified orthopedic surgeon, for a second opinion evaluation. In a March 14, 2016 report,
Dr. Draper, based upon a review of the medical evidence, statement of accepted facts, and
physical examination, diagnosed right patella subluxation, right knee patellar chondromalacia,
and reported appellant’s status post right knee lateral retinacular release and patella
chondroplasty. A physical examination of the right knee revealed that appellant lacked 20
degrees of extension and flexes limited to 105 degrees, that he exhibited no instability, that
anterior and posterior drawer signs and Lachman’s sign were negative and that he exhibited
crepitus on flexion and extension of the patellofemoral joint. Dr. Draper also reported that
appellant had 2.5 centimeters of right-side quadriceps atrophy.
Dr. Draper calculated his impairment rating using the DBI method of evaluation pursuant
to Table 16-3 of Knee Regional Grid, Lower Extremity Impairments of the sixth edition of the
A.M.A., Guides.5 He explained that, based on examination findings and factors set forth in
Table 16-7, page 517 of the A.M.A., Guides, the DBI method would best determine appellant’s
permanent impairment. Dr. Draper selected Class of Diagnosis (CDX) as patella subluxation
and assigned a default grade of C or seven percent, for a class 1 mild problem.6 He assigned a
grade modifier of 1 for Functional History (GMFH),7 a grade modifier of 2 due to muscle

4

Id.

5

A.M.A., Guides 510, Table 16-3.

6

Id. at 511.

7

Id. at 516, Table 16-9.

3

atrophy for Physical Examination (GMPE),8 and a grade modifier of 1 for Clinical Studies
(GMCS).9 Applying the net adjustment formula, or (GMFH-CDX) + (GMPE-CDX) + (GMCSCDX), or (1-1) + (2-1) + (1-1) resulted in a modifier of +1, moving the default rating from C to
D, equaling eight percent impairment of the right lower extremity.
OWCP subsequently referred the medical record to Dr. Arthur S. Harris, Board-certified
in orthopedic surgery, another DMA for review of Dr. Draper’s impairment rating.10 In an
April 8, 2016 report, Dr. Harris reviewed and concurred with Dr. Draper’s impairment
determination. In an April 22, 2016 report, he again concurred with Dr. Draper’s impairment
determination and noted that appellant had previously been granted a schedule award for two
percent permanent impairment of the right lower extremity and was, therefore, entitled to an
additional six percent right lower extremity impairment award. Dr. Harris found March 14,
2016, the date of Dr. Draper’s report, to be the date of maximum medical improvement.
By decision dated May 16, 2016, OWCP granted appellant a schedule award for an
additional six percent permanent impairment of the right lower extremity, resulting in a total
award of eight percent right lower extremity permanent impairment. The award ran for 17.28
weeks from March 14 to July 12, 2016.
LEGAL PRECEDENT
Under section 8107 of FECA11 and section 10.404 of the implementing federal
regulations,12 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.13
The sixth edition of the A.M.A., Guides provides a DBI method of evaluation utilizing
the World Health Organization’s International Classification of Functioning, Disability and
Health (ICF).14 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition, which is then adjusted by grade modifiers based on functional history,
8

Id. at 517, Table 16-7.

9

Id. at 519, Table 16-8.

10

In both referral letters, the DMA was asked to explain “if applicable” the method chosen to rate the impairment,
(e.g., DBI vs ROM).
11

5 U.S.C. § 8107.

12

20 C.F.R. § 10.404

13

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

14

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.

4

physical examination, and clinical studies.15 The net adjustment formula is (GMFH-CDX) +
(GMPE-CDX) + (GMCS-CDX).16
Chapter 16 of the sixth edition of the A.M.A., Guides, pertaining to the lower extremities,
provides that DBI is the method of choice for calculating impairment. Range of motion is
primarily used as a physical examination adjustment factor.17 Range of motion is only used to
determine actual impairment values when it is not possible to otherwise define impairment.18
The A.M.A., Guides provide a regional grid at Table 16-3 for knee impairments.19 The
CDX is determined based on the specific diagnosis and the default value for the identified CDX
is determined. The default value (grade C) may be adjusted by using grade modifiers for
functional history Table 16-6, physical examination Table 16-7, and clinical studies Table 16-8.
The adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).20
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed through a DMA for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides, with a DMA providing rationale for the
percentage of impairment specified.21
ANALYSIS
OWCP accepted that appellant sustained a right medial meniscus tear and right lower leg
other joint derangement/patella subluxation. By decision dated January 8, 2015, appellant was
granted a schedule award for two percent permanent impairment of the right lower extremity.
The Board previously found that the record contained permanent impairment evaluations
by appellant’s treating physicians, Drs. Platto and Batman. However, neither evaluation
constituted the weight of the medical evidence. The Board explained that OWCP should have
followed the DMA’s recommendation and referred appellant for a second opinion evaluation as
Dr. Platto’s examination findings were inconsistent with examination findings made by
appellant’s other treating physician, Dr. Batman. The case was remanded for referral to a second
opinion physician to determine appellant’s right knee range of motion and whether the degree of
impairment should be evaluated using the DBI or the ROM method.

15

A.M.A., Guides (6th ed. 2009), pp. 495-96.

16

Id.

17

Id. at 543.

18

Id. at 497.

19

The A.M.A., Guides note that the DBI is the primary method of evaluation for the leg. Id. at 497.

20

The net adjustment is up to +2 (grade E) or -2 (grade A).

21

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

5

On remand OWCP referred appellant to Dr. Draper for a second opinion examination and
impairment rating as instructed by the Board. In a March 14, 2016 report, Dr. Draper diagnosed
right patella subluxation, right knee patellar chondromalacia, and status post right knee lateral
retinacular release and patella chondroplasty. He determined the impairment rating using the
DBI method of evaluation and Table 16-3 of Knee Regional Grid, Lower Extremity Impairments
of the A.M.A., Guides.22 Dr. Draper explained that the DBI method was chosen as it provided a
more accurate impairment rating. He selected the diagnosis of patella subluxation and assigned a
default grade of C or seven percent, for a class 1 mild problem.23 Applying the net adjustment
formula, or (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX), or (1-1) + (2-1) + (1-1), resulting
in a modifier of +1, moving the default C to D, equaling an eight percent impairment of the right
lower extremity.
In his April 8 and 22, 2016 reports, the DMA concurred with the permanent impairment
rating calculated by Dr. Draper.
The Board finds that Dr. Draper properly applied the A.M.A., Guides and determined that
appellant had an eight percent right lower extremity permanent impairment of extremity.
Dr. Draper explained that he rated appellant’s permanent impairment as a DBI for
patellar subluxation as it best described appellant’s impairment. He properly rated appellant’s
lower extremity impairment using the diagnosis-based tables and referenced the appropriate
tables in evaluating examination findings.24 Dr. Draper also provided medical rationale for the
percentage of impairment in accordance with the A.M.A., Guides. As appellant previously
received a schedule award for two percent permanent impairment of his right lower extremity, he
was entitled to an additional schedule award for six percent permanent impairment.
On appeal counsel contends that there remains a conflict in the medical opinion evidence
between appellant’s treating physicians and Dr. Draper with respect to the application of the
A.M.A., Guides and examination findings. The Board, in the prior appeal, noted inconsistency
in physical examination findings between appellant’s treating physicians, Dr. Platto and
Dr. Batman, such that neither could constitute the weight of the medical evidence.
While Dr. Platto rated appellant’s impairment using the ROM methodology, he explained
that he did so because, while appellant’s accepted diagnosis was patellar subluxation, appellant
currently did not have instability of the knee. The Board notes that patellar subluxation can be
rated as a DBI if no instability is present. However, it would be rated as a class 0 impairment.25
ROM can be used as the most appropriate mechanism for grading impairment when grids refer to
ROM as an alternate grading mechanism or no other DBI grading mechanism is applicable.26
22

Supra note 5.

23

Supra note 6.

24

The A.M.A., Guides explain at page 497 that lower extremity impairments are evaluated as DBI. Alternative
approaches are also provided for calculating impairment for peripheral nerve deficits, complex regional pain
syndrome, amputation, and range of motion. ROM is primarily used as a physical examination adjustment factor
and is only used to determine actual impairment values when it is not possible to otherwise define impairment.

25

A.M.A., Guides 510.

26

Id. at 543.

6

The grid for evaluating permanent impairment of the knee, and specifically patellar subluxation
does not refer to ROM as an alternate grading mechanism. Furthermore, a DBI grading
mechanism is applicable for the accepted diagnosis of patellar subluxation.27 The opinion of
Dr. Platto was, therefore, insufficient to establish more than eight percent permanent impairment
of the right lower extremity as the rationale he offered to rate appellant’s impairment was not
sufficiently rationalized.28
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that that appellant has not established more than eight percent permanent
impairment of the right lower extremity for which he previously received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 16, 2016 is affirmed.
Issued: September 6, 2017
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board
27

See D.D., Docket No. 11-1053 (issued April 12, 2012).

28

See John D. Jackson, 55 ECAB 465 (2004) (a simple disagreement between two physicians does not, of itself,
establish a conflict. To constitute a conflict of medical opinion, the opposing physician’s reports must be of
virtually equal weight and rationale).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
DEPARTMENT OF THE INTERIOR,
BLACKFEET AGENCY, Browning, MT,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-1552
Issued: December 8, 2015

Case Submitted on the Record

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

JURISDICTION
On July 13, 2015 appellant filed a timely appeal from a January 21, 2015 merit decision
and a June 11, 2015 nonmerit decision of the Office of Workers’ Compensation
Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly suspended appellant’s compensation for
failing to properly complete a Form CA-1032, as requested; and (2) whether OWCP properly
denied his request for an oral hearing as untimely under 5 U.S.C. § 8124.
1
2

5 U.S.C. § 8101 et seq.

By decision dated March 30, 2015, OWCP finalized the reduction of appellant’s compensation benefits effective
April 5, 2015 based on his capacity to earn wages as a van driver. As appellant has not appealed OWCP’s
March 30, 2015 decision, the Board will not review that decision. See 20 C.F.R. § 501.3.

FACTUAL HISTORY
On August 23, 1994 appellant, then a 33-year-old firefighter, filed a traumatic injury
claim (Form CA-1) alleging that he injured his left knee in the performance of duty. OWCP
accepted the claim for derangement of medial meniscus, left knee and paid benefits, including a
left knee arthroscopy of October 1994 and a left total knee replacement. Appellant was placed
on the periodic rolls to receive wage-loss benefits.3
On May 15, 2014 OWCP informed appellant that federal regulations required him to
make an affidavit relative to any earnings or employment during the previous year and that a
Form CA-1032 was enclosed for that purpose. It notified him that he had to fully answer all
questions on the Form CA-1032 and return the statement within 30 days or his benefits would be
suspended. The letter was sent to appellant’s last known address.
On June 13, 2014 OWCP received a partially completed Form CA-1032 from appellant
dated June 2, 2014.4 On June 25, 2014 it notified him of the deficiencies in his form and
afforded him 10 days from the date of the letter to make the corrections and return the form to
OWCP. OWCP further notified appellant that any failure on his part to comply would result in
suspension of his benefits pursuant to 20 C.F.R. § 10.528. Appellant did not respond.
By decision dated January 21, 2015, OWCP suspended appellant’s compensation
benefits, effective February 8, 2015, for failing to submit the Form CA-1032 as requested. It
noted that if he completed and returned an enclosed copy of the Form CA-1032 his
compensation benefits would be restored retroactively to the date they were suspended.
On May 19, 2015 OWCP received appellant’s May 13, 2015 request for a telephonic
hearing before an OWCP hearing representative. The request was postmarked May 13, 2015.
By decision dated June 11, 2015, OWCP denied appellant’s request for an oral hearing
without a merit review as it was untimely. It considered his request within its discretion, but
found that his case could be addressed equally well by a request for reconsideration and the
submission of evidence showing that he completed and submitted the Form CA-1032 as
requested by OWCP.

3

By decision dated November 18, 1996, OWCP issued appellant a schedule award for 16 percent permanent
impairment of the left leg. By decision dated March 12, 1998, it issued an award for an additional 10 percent
permanent impairment of the left leg. On December 5, 2003 the Board affirmed OWCP’s November 18, 2002
decision which found that the position of deli clerk represented appellant’s wage-earning capacity. By decision
dated April 10, 2007, OWCP found appellant had a total 38 percent left lower extremity permanent impairment.
Appellant filed a claim for recurrence of total disability on February 22, 2008. This recurrence claim was accepted
on September 29, 2008 and appellant again received temporary total disability benefits as of September 29, 2008 on
the periodic rolls. By decision dated March 30, 2015, OWCP reduced appellant’s wage-earning capacity on the
basis that he had the capacity to earn wages as a van driver. Appellant has not appealed the March 30, 2015
decision to the Board.
4

Appellant failed to answer whether he had worked for any employer during the past 18 months; whether he was
self-employed or involved in any business enterprise in the past 15 months; and had only partially completed the
questions under Part D -- Other Federal Benefits or Payments.

2

LEGAL PRECEDENT -- ISSUE 1
FECA authorizes the Secretary of Labor to require a partially disabled employee to report
his or her earnings from employment or self-employment, by affidavit or otherwise, in the
manner and at the times the Secretary specifies.5
Under section 10.528 of OWCP’s implementing federal regulations, an employee in
receipt of compensation benefits must complete an affidavit as to any work or activity indicating
an ability to work which the employee has performed for the prior 15 months.6 If an employee
who is required to file such a report fails to do so within 30 days of the date of the request, his or
her right to compensation for wage loss is suspended until OWCP receives the requested report.
At that time, OWCP will reinstate compensation retroactive to the date of suspension if the
employee remains entitled to compensation.7
ANALYSIS -- ISSUE 1
On October 7, 2014 OWCP provided appellant with a Form CA-1032. It notified him
that federal regulations required him to complete the form and answer all questions concerning
his employment or earnings. OWCP properly notified him that if he did not completely answer
all questions and return the statement within 30 days, his benefits would be suspended. The
record reflects that OWCP’s letter was properly sent to appellant’s last known address.8 The
record does not establish that he responded prior to the January 21, 2015 OWCP decision
suspending his benefits. Based on the evidence of record, the Board finds that OWCP properly
suspended appellant’s compensation benefits effective February 8, 2015 pursuant to 20 C.F.R.
§ 10.528.9
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b) of FECA provides that a claimant not satisfied with a decision of the
Secretary is entitled, on request made within 30 days after the date of the issuance of the
decision, to a hearing on his claim before a representative of the Secretary.10 Section 10.615 of
the federal regulations implementing this section of FECA provides that a claimant shall be
afforded a choice of an oral hearing or a review of the written record.11 The request must be sent
within 30 days (as determined by postmark or other carrier’s date marking) of the date of the

5

5 U.S.C. § 8106(b).

6

20 C.F.R. § 10.528.

7

Id.; see also id. at § 10.525.

8

See J.J., Docket No. 13-1067 (issued September 20, 2013).

9

J.J., Docket No. 09-1724 (issued March 1, 2010). See also James A. Igo, 49 ECAB 189 (1997).

10

5 U.S.C. § 8124(b)(1).

11

20 C.F.R. § 10.615.

3

decision for which a hearing is sought.12 A claimant is entitled to a hearing or review of the
written record as a matter of right if the request is filed within 30 days.13
While a claimant may not be entitled to a hearing or review of the written record as a
matter of right if the request is untimely, OWCP has the discretionary authority to grant the
request and must properly exercise such discretion.14
ANALYSIS -- ISSUE 2
In a decision dated January 21, 2015, OWCP suspended appellant’s compensation
benefits as of February 8, 2015 as he had not fully completed the Form CA-1032. The record
indicates that appeal rights accompanied the decision. Appellant requested an oral telephonic
hearing in an appeal form postmarked May 13, 2015. By decision dated June 11, 2015, OWCP
denied his request for an oral hearing as untimely under section 8124 of FECA.
The 30-day time period for determining the timeliness of appellant’s request for oral
hearing began on January 22, 2015 and ended 30 days later. As appellant’s request for an oral
hearing was postmarked May 13, 2015, he was not entitled to an oral hearing as a matter of right
as his request was untimely.
OWCP has the discretionary power to grant a hearing or review of the written record
when a claimant is not entitled to a hearing or review as a matter of right. It properly exercised
its discretion by stating that it had considered the matter in relation to the issue involved and
denied appellant’s request for an oral hearing because the case could be resolved by submitting
additional evidence to OWCP with a reconsideration request. The Board has held that the only
limitation on OWCP’s discretionary authority is reasonableness. An abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment, or
actions taken which are contrary to both logic and probable deduction from established facts.15
In this case, the evidence of record does not establish that OWCP committed any action in
connection with its denial of appellant’s request for an oral hearing which could be found to be
an abuse of discretion. Consequently, OWCP properly denied his request for an oral hearing as
untimely under section 8124 of FECA.
CONCLUSION
The Board finds that OWCP properly suspended appellant’s compensation benefits for
failing to submit information on a Form CA-1032, as required. Furthermore, the Board finds that
OWCP properly denied appellant’s request for an oral hearing as untimely.

12

Id. at § 10.616(a).

13

See Leona B. Jacobs, 55 ECAB 753 (2004).

14

20 C.F.R. § 10.616(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the
Written Record, Chapter 2.1601.4(a) (October 2011).
15

See L.W., 59 ECAB 471 (2008).

4

ORDER
IT IS HEREBY ORDERED THAT the June 11 and January 21, 2015 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 8, 2015
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE ARMY,
)
Picatinny Arsenal, NJ, Employer
)
___________________________________________ )
R.R., Appellant

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

Docket No. 08-776
Issued: August 26, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On January 18, 2008 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ June 25, 2007 merit decision which denied his claim for a traumatic
injury. He also appealed a December 10, 2007 decision which denied merit review. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUES
The issues on appeal are: (1) whether appellant has met his burden of proof in
establishing that he sustained a right wrist injury on May 4, 2007; and (2) whether the Office
properly denied his request for reconsideration.
FACTUAL HISTORY
On May 15, 2007 appellant, then a 47-year-old mechanical engineering technician, filed a
traumatic injury claim alleging that on May 4, 2007 he sustained a right wrist injury when he
tripped and fell when unloading a truck while in the performance of duty. He did not stop work.

By letter dated May 22, 2007, the Office asked appellant to submit additional information
including a comprehensive medical report from his treating physician which included a reasoned
explanation as to how the specific work factors or incidents identified by appellant had
contributed to his claimed injury.
Appellant submitted a sick slip prepared by an employing establishment emergency
medical technician who noted that appellant fell on his right wrist and was subsequently referred
to the local emergency room because no doctor was present in the clinic.
In a decision dated June 25, 2007, the Office denied appellant’s claim on the grounds that
the medical evidence was not sufficient to establish that his condition was caused by factors of
his employment.
On October 30, 2007 appellant requested reconsideration and submitted additional
evidence. He submitted employing establishment clinic notes prepared by a medical technician
dated May 4, 2007 who treated him for a right wrist injury. Appellant reported falling and
landing on his right wrist. The medical technician noted findings upon physical examination of
no swelling or bruising. She referred appellant to the emergency room for treatment. On
June 13, 2007 appellant was treated at the employing establishment clinic by Dr. James F.
Bilello, a Board-certified family practitioner, who indicated that appellant related that he injured
his right wrist on May 4, 2007. Appellant reported joint pain localized in the wrist. Dr. Bilello
noted findings upon physical examination of mild decrease in range of motion on extension and
flexion with no swelling or tenderness. The x-ray of the right wrist revealed no fracture or
dislocation. Dr. Bilello noted appellant’s accident occurred on industrial premises. He
diagnosed wrist sprain and recommended a wrist splint and released appellant to work without
restrictions. In an emergency room note dated May 4, 2007, Dr. Hardik C. Soni, an emergency
room physician, treated appellant for an injury to the right wrist. He diagnosed right wrist sprain
and prescribed Motrin.
In a decision dated December 10, 2007, the Office denied appellant’s reconsideration
request on the grounds that his letter neither raised substantive legal questions nor included new
and relevant evidence and was insufficient to warrant review of the prior decision.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim including the fact that the
individual is an employee of the United States within the meaning of the Act, that the claim was
filed within the applicable time limitation of the Act, that an injury was sustained in the
performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.2
1

5 U.S.C. §§ 8101-8193.

2

Gary J. Watling, 52 ECAB 357 (2001).

2

In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.3 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability, claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.4
Rationalized medical opinion evidence is medical evidence which includes a physician’s
rationalized opinion on the issue of whether there is a causal relationship between the claimant’s
diagnosed condition and the implicated employment factors. The opinion of the physician must
be based on a complete factual and medical background of the claimant, must be one of
reasonable medical certainty, and must be supported by medical rationale explaining the nature
of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5 The weight of 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.6
ANALYSIS -- ISSUE 1
The Office properly found that on May 4, 2007 appellant tripped and fell when unloading
a pick-up truck at work as alleged. However, appellant has not submitted sufficient medical
evidence to support that a condition has been diagnosed in connection with the employment
factors or that any alleged right wrist injury is causally related to the employment factors or
conditions.
On May 22, 2007 the Office advised appellant of the type of medical evidence needed to
establish his claim. Appellant did not submit a rationalized medical report from an attending
physician addressing how specific employment factors may have caused or aggravated his
claimed condition.
Appellant submitted an individual sick slip prepared by an employing establishment
emergency medical technician who noted appellant fell on his right wrist and was subsequently
referred to the emergency room to be treated by a physician. However, an emergency medical
technician is not a physician under the Act and, consequently, the report of an emergency

3

Michael E. Smith, 50 ECAB 313 (1999).

4

Id.

5

Leslie C. Moore, 52 ECAB 132 (2000).

6

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).

3

medical technician cannot be considered as medical opinion evidence.7 As noted above, part of
appellant’s burden of proof includes the submission of rationalized medical opinion evidence,
based on a complete factual and medical background, supporting such a causal relationship
between the employment and the diagnosed condition. Therefore, this note is insufficient to
meet appellant’s burden of proof.
The record contains no other medical evidence received prior to the issuance of the
Office’s June 25, 2007 decision. Because appellant has not submitted a reasoned medical
opinion explaining how and why his right wrist sprain is employment related, he has not met his
burden of proof.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated or aggravated by her employment is
sufficient to establish causal relationship. Causal relationships must be established by
rationalized medical opinion evidence.8 Appellant failed to submit such evidence and the Office
therefore properly denied appellant’s claim for compensation.
LEGAL PRECEDENT -- ISSUE 2
Under section 8128(a) of the Act,9 the Office has the discretion to reopen a case for
review on the merits. The Office must exercise this discretion in accordance with the guidelines
set forth in section 10.606(b)(2) of the implementing federal regulation,10 which provides that a
claimant may obtain review of the merits of his or her written application for reconsideration,
including all supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
“(ii) Advances a relevant legal argument not previously considered by the
[Office]; or
“(iii) Constitutes relevant and pertinent new evidence not previously considered
by [the Office].”

7

See 5 U.S.C. § 8101(2) (this subsection defines a “physician” as surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined
by State law. See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held that a medical
opinion, in general, can only be given by a qualified physician).
8

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

9

5 U.S.C. § 8128(a).

10

20 C.F.R. § 10.606(b).

4

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
the Office without review of the merits of the claim.11
ANALYSIS -- ISSUE 2
Appellant’s October 30, 2007 request for reconsideration neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, he did not advance a relevant legal argument not previously considered by the
Office. Consequently, 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)(2).
With respect to the third requirement, submitting relevant and pertinent new evidence not
previously considered by the Office, appellant submitted employing establishment clinic notes
prepared by a medical technician dated May 4, 2007 who treated him for a right wrist injury
sustained in a fall and referred appellant to the emergency room for treatment. However, the
underlying issue in the case is medical in nature and documents from a medical technician
cannot be considered as medical evidence.12 Appellant also submitted a June 13, 2007 report
from Dr. Bilello who noted that appellant reported sustaining a right wrist injury on industrial
premises on May 4, 2007. He diagnosed wrist sprain and released appellant to work without
restrictions. However, Dr. Bilello’s report, while new, is not relevant because he did not provide
his any opinion regarding whether the May 4, 2007 incident caused the diagnosed condition.
Likewise, Dr. Soni noted on May 4, 2007 that appellant presented with complaints of a right
wrist injury but Dr. Soni did not address whether the May 4, 2007 employment incident caused a
diagnosed condition. Therefore, the Office properly determined that this evidence did not
constitute a basis for reopening the case for a merit review.
Appellant neither showed that the Office erroneously applied or interpreted a point of
law; advanced a point of law or fact not previously considered by the Office; nor did he submit
relevant and pertinent evidence not previously considered by the Office.”13 Therefore, the Board
finds that the Office properly denied appellant’s requests for reconsideration without reviewing
the merits of the claim.
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a right wrist injury causally related to his May 4, 2007 employment incident and that

11

20 C.F.R. § 10.608(b).

12

As noted above, treatment notes signed by an emergency medical technician are not considered medical
evidence as an emergency medical technician is not a physician under the Act; see supra note 7.
13

20 C.F.R. § 10.606(b).

5

the Office properly denied appellant’s requests for reconsideration without conducting a merit
review of the claim.14
ORDER
IT IS HEREBY ORDERED THAT the December 10 and June 25, 2007 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: August 26, 2008
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

14

Subsequent to the December 10, 2007 Office decision, appellant submitted additional evidence. However, the
Board may not consider new evidence on appeal; see 20 C.F.R. § 501.2(c).

6