United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Battle Creek, MI, Employer
__________________________________________

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

Docket No. 16-1671
Issued: October 4, 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 August 15, 2016 appellant filed a timely appeal from a July 27, 2016 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant received an overpayment of compensation in the
amount of $16,511.37 for the period September 1, 2010 through September 19, 2015;
(2) whether OWCP properly denied waiver of recovery of the overpayment; and (3) whether
OWCP properly withheld $125.00 every 28 days from appellant’s continuing compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
Appellant, a 73-year-old office automation clerk, has an accepted claim for major
depressive disorder -- single episode, which arose on or about November 2, 1998.2 She has
received wage-loss compensation for temporary total disability dating back to April 13, 2000.3
Appellant reached full retirement age in September 2010 and was eligible to receive age-related
retirement benefits from the Social Security Administration (SSA).
On May 4, 2015 an SSA representative provided OWCP a breakdown of appellant’s
monthly SSA retirement benefits dating back to September 2010. The figures showed monthly
SSA benefit rates that both included and excluded these portions attributable to her federal
service. Based on the information provided, OWCP calculated that appellant received an
overpayment of compensation in the amount of $16,511.37 for the period September 1, 2010
through September 19, 2015.4
On September 24, 2015 OWCP notified appellant of its preliminary determination that
she was overpaid compensation for the period September 1, 2010 to September 19, 2015 in the
amount of $16,511.37 as she had been receiving benefits for regular retirement under social
security and also receiving benefits as an injured worker under FECA. Appellant was advised
that a portion of these benefits was a prohibited dual benefit. OWCP found that she was without
fault in creating the overpayment. It informed appellant of her right to challenge the amount of
the overpayment or request a waiver of the overpayment by one of three methods including a
request for a telephone conference, a request for a written review of the record, or a request for a
prerecoupment hearing. If she wished a waiver of the overpayment, she was specifically directed
to submit financial information by completing an overpayment recovery questionnaire (Form
OWCP-20). Appellant was allotted 30 days to submit the requested information.
Appellant requested a prerecoupment hearing, which was held on June 16, 2016. She
submitted documentation regarding her income, assets, and expenses following the hearing.
Appellant’s monthly income totaled $2,706.00 ($1,331.00 SSA benefits and $1,375.00 FECA
benefits). She reported monthly household expenses totaling $1,400.00, which included taxes
($30.00), food ($400.00), clothing ($40.00), utilities ($218.00), cellular/landline telephone
service ($83.00), homeowner’s insurance ($88.00); grooming/hair ($15.00), prescription drugs
($160.00), automobile insurance/fuel/maintenance ($286.00); and lawn care ($80.00). Appellant
also had monthly installment debt of $730.00, which included her car payment ($474.00) and
one other loan (One Main -- $256.00).
2

Appellant previously worked as a psychiatric nursing assistant. On January 3, 1998 she sustained a workrelated lumbar condition which OWCP accepted for left L5-S1 disc herniation (OWCP File No. xxxxxx856). In
November 1998, appellant began working as an office automation clerk. She filed the current occupational disease
claim (Form CA-2) on August 14, 2000.
3

By decision dated October 8, 2002, OWCP terminated compensations benefits pursuant to 5 U.S.C. § 8106(c).
However, on February 4, 2003, the Branch of Hearings and Review reversed the termination of benefits and
reinstated appellant to the periodic rolls retroactive to October 9, 2002.
4

Effective September 20, 2015, OWCP adjusted appellant’s 28-day periodic rolls payment to offset the portion of
her SSA age-related retirement benefits that were attributable to her federal service.

2

By decision dated July 27, 2016, an OWCP hearing representative finalized the
overpayment in the amount of $16,511.37 for the period September 1, 2010 to September 19,
2015, for which appellant was without fault, determined that she was not entitled to waiver of
recovery of the overpayment because she had a monthly income surplus of $576.00, and found
that she could repay $125.00 every 28 days, which would be withheld from her continuing
FECA wage-loss compensation.
LEGAL PRECEDENT -- ISSUE 1
A FECA beneficiary may not receive wage-loss compensation concurrently with a
federal retirement or survivor annuity.5 To avoid payment of a dual benefit, FECA wage-loss
compensation benefits shall be reduced by the amount of Social Security Act benefits
attributable to the employee’s federal service.6 However, an offset is not required where the
employee beneficiary is covered under the Civil Service Retirement System and/or her SSA agerelated benefits are attributable to private sector employment.7
ANALYSIS -- ISSUE 1
The evidence of record establishes that appellant received FECA wage-loss compensation
as well as SSA benefits from September 1, 2010 to September 15, 2015. The portion of
appellant’s SSA age-related retirement benefits attributable to her federal service is a prohibited
dual benefit under FECA.8 SSA notified OWCP of the applicable SSA rates and their effective
date as they pertained to appellant. Based on these rates, OWCP was able to calculate the dual
benefit appellant had received from September 1, 2010 to September 15, 2015, which resulted in
an overpayment of compensation in the amount of $16,511.37. The record includes an
overpayment worksheet explaining the overpayment calculation and she does not contest the
amount of overpayment. The Board has reviewed OWCP’s calculations of the dual benefit
appellant received for the period September 1, 2010 to September 15, 2015 and finds that OWCP
properly determined that she received a dual benefit totaling $16,511.37 for that period, thus
creating an overpayment in compensation in that amount. Fact of overpayment is therefore
established and undisputed.
LEGAL PRECEDENT -- ISSUE 2
An individual who is without fault in creating or accepting an overpayment is nonetheless
subject to recovery of the overpayment unless adjustment or recovery would defeat the purpose
of FECA or would be against equity and good conscience.9 Recovery of an overpayment will
5

See 5 U.S.C. § 8116(a), (d); 20 C.F.R. § 10.421(a).

6

Id. at § 8116(d)(2); id. at § 10.421(d).

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Periodic Review of Disability Claims, Chapter
2.812.9c (May 2012); id. Part 2 -- Claims, Dual Benefits, Chapter 2.1000.4e(2) (January 1997).
8

See supra notes 5 and 6.

9

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

3

defeat the purpose of FECA if such recovery would cause hardship to a current or former
beneficiary because the beneficiary from whom OWCP seeks recovery needs substantially all of
his or her current income, including compensation benefits, to meet current ordinary and
necessary living expenses, and the beneficiary’s assets do not exceed a specified amount as
determined by OWCP.10 Additionally, recovery of an overpayment is considered to be against
equity and good conscience when an individual who received an overpayment would experience
severe financial hardship in attempting to repay the debt or when an individual, in reliance on
such payment or on notice that such payments would be made, relinquished a valuable right, or
changed his or her position for the worse.11
The individual who received the overpayment is responsible for providing information
about income, expenses, and assets as specified by OWCP.12 This information is necessary for
determining whether a waiver of recovery of the overpayment is warranted.13 The information is
also used to determine an appropriate repayment schedule, if necessary.14 Failure to submit the
requested information within 30 days of the request shall result in denial of waiver.15
ANALYSIS -- ISSUE 2
OWCP found that appellant was not at fault in creating the overpayment of
compensation, and thus, properly considered whether she was entitled to waiver of recovery of
the overpayment. Waiver is only possible if recovery would defeat the purpose of FECA or
would be against equity and good conscience. In order to establish that repayment of the
overpayment would defeat the purpose of FECA, appellant must show that she requires
substantially all of her income to meet current ordinary and necessary living expenses and that
her assets do not exceed the established limit as determined by OWCP’s procedures.16
Based on the financial information submitted, the hearing representative properly
calculated that appellant’s monthly income totaled $2,706.00 and that her average usual
household expenses of $1,400.00 plus a monthly installment debt of $730.00, totaled expenses of
$2,130.00. The hearing representative found that the monthly income of $2,706.00 minus the
monthly expenses of $2,130.00 represented a monthly surplus of $576.00. As appellant’s
monthly income exceeded her monthly expenses by more than $50.00, the Board finds that
10

20 C.F.R. § 10.436(a), (b). For an individual with no eligible dependents the asset base is $4,800.00. The base
increases to $8,000.00 for an individual with a spouse or one dependent, plus $960.00 for each additional dependent.
Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions, Chapter
6.200.6a(1)(b) (June 2009).
11

Id. at § 10.437(a), (b).

12

20 C.F.R. § 10.438(a).

13

Id.

14

Id.

15

Id. at § 10.438(b).

16

Id. at § 10.436.

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OWCP properly determined that recovery of the overpayment would not defeat the purpose of
FECA.17
The evidence of record also demonstrates that repayment of the overpayment would not
be against equity and good conscience. Appellant submitted no evidence that she had relied
upon the incorrect payments to her detriment or that she would experience severe financial
hardship attempting to repay the debt. Consequently, OWCP properly denied waiver of recovery
of the overpayment.
Because appellant has failed to establish that recovery of the overpayment would defeat
the purpose of FECA or be against equity and good conscience, the Board finds that she failed to
show that OWCP abused its discretion by refusing to waive the $16,511.37 overpayment.
LEGAL PRECEDENT -- ISSUE 3
When an overpayment has been made to an individual who is entitled to further
payments, OWCP shall decrease later payments of compensation, taking into account the
probable extent of future payments, the rate of compensation, the financial circumstances of the
individual, and any other relevant factors, so as to minimize any hardship.18
ANALYSIS -- ISSUE 3
OWCP reduced appellant’s future compensation benefits by $125.00 every 28 days. If a
claimant is being paid compensation or is due accrued benefits, the debt should be recovered as
quickly as possible.19 The Board finds that OWCP did not abuse its discretion in this matter.
OWCP took into consideration the financial information submitted by appellant, which resulted
in a monthly surplus of $576.00, as well as the factors set forth 20 C.F.R. § 10.441(a) and found
that this method of recovery would minimize any resulting hardship on her. Therefore, it
properly required repayment of the overpayment by deducting $125.00 from her compensation
payments every four weeks.
CONCLUSION
The Board finds that appellant received an overpayment of compensation in the amount
of $16,511.37 for the period September 1, 2010 through September 19, 2015, for which she was
not at fault. The Board further finds that OWCP properly denied waiver of recovery of the
overpayment and properly withheld $125.00 from her continuing compensation payments.

17

An individual is deemed to need substantially all of her income to meet current ordinary and necessary living
expenses if her monthly income does not exceed monthly expenses by more than $50.00. Desiderio Martinez, 55
ECAB 245, 250 (2004).
18

20 C.F.R. § 10.441(a).

19

See Frederick Arters, 53 ECAB 397 (2002).

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ORDER
IT IS HEREBY ORDERED THAT the July 27, 2016 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 4, 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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newark, NJ, Employer
__________________________________________

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

Docket No. 12-812
Issued: August 22, 2012

Case Submitted on the Record

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

JURISDICTION
On February 29, 2012 appellant filed a timely appeal from an October 17, 2011 Office of
Workers’ Compensation Programs’ (OWCP) decision, which denied his request for
reconsideration. Because more than 180 days elapsed between the last merit decision of
March 2, 2011 to the filing of this appeal on February 29, 2012, the Board lacks jurisdiction to
review the merits of his case pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly refused to reopen appellant’s claim for further
review of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On January 6, 2011 appellant, then a 48-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he sustained right knee pain in the performance of duty on
January 5, 2011. He stopped work that day.

By decision dated March 2, 2011, OWCP denied the claim finding that appellant did not
submit sufficient medical evidence to establish a diagnosis in connection with the January 5,
2011 employment incident.
On July 27, 2011 appellant requested reconsideration. He submitted a July 26, 2011
narrative statement advising that he was sending new medical evidence to OWCP.
In an August 16, 2011 letter, OWCP acknowledged appellant’s reconsideration request
and notified him that the medical evidence was not received with the request. It afforded him 30
days to submit additional evidence. Appellant did not respond.
By decision dated October 17, 2011, OWCP denied appellant’s request for
reconsideration of the merits finding that he did not meet any of the criteria for timely
reconsideration requests.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to a review of an OWCP decision as
a matter of right; it vests OWCP with discretionary authority to determine whether it will review
an award for or against compensation.1 OWCP, through regulations, has imposed limitations on
the exercise of its discretionary authority under section 8128(a).2
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,
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.3 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.4 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.5
ANALYSIS
The Board finds that appellant has not shown that OWCP erroneously applied or
interpreted a specific point of law; he has not advanced a relevant legal argument not previously
considered by OWCP; and he has not submitted relevant and pertinent new evidence not
previously considered by OWCP.
1

5 U.S.C. § 8101 et seq. Under section 8128 of FECA, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).
2

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

3

20 C.F.R. § 10.606(b)(2). See A.L., Docket No. 08-1730 (issued March 16, 2009).

4

Id. at § 10.607(a).

5

Id. at § 10.608(b).

2

In support of his July 27, 2011 reconsideration request, appellant submitted a July 26,
2011 narrative statement. The Board notes that submission of this statement did not require
reopening his case for merit review. OWCP denied appellant’s claim based on the lack of
supportive medical evidence and his narrative statement merely noted that he was sending new
medical evidence to OWCP. Appellant’s statement is not relevant and pertinent to the issue in
his case and is not sufficient to require OWCP to reopen his claim for consideration of the
merits.6
Appellant did not submit any evidence to show that OWCP erroneously applied or
interpreted a specific point of law, or advances a relevant legal argument not previously
considered by OWCP. As he did not meet any of the necessary requirements, he is not entitled
to further merit review.
The Board notes that, following issuance of the October 17, 2011 decision and on appeal,
appellant submitted new medical evidence. The Board is precluded from reviewing evidence
which was not before OWCP at the time it issued its final decision.7
The Board finds that appellant failed to submit relevant and pertinent new evidence, a
relevant legal argument not previously considered by OWCP or evidence or argument which
shows that OWCP erroneously applied or interpreted a specific point of law. Therefore, OWCP
properly refused to reopen his claim for further consideration of the merits of his claim under 5
U.S.C. § 8128.

6

See James W. Scott, 55 ECAB 606 (2004).

7

See 20 C.F.R. § 501.2(c)(1).

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ORDER
IT IS HEREBY ORDERED THAT the October 17, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 22, 2012
Washington, DC

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

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Newark, NJ, Employer
__________________________________________

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

Docket No. 10-950
Issued: November 26, 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 February 24, 2010 appellant, through his representative, filed a timely appeal from the
November 24, 2009 merit decision of the Office of Workers’ Compensation Programs. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether appellant has more than an eight percent impairment of his right leg.
FACTUAL HISTORY
On October 16, 2004 appellant, then a 52-year-old welder, sustained an injury in the
performance of duty when, while unloading a skid from a forklift, he lost balance and fell to the
ground. The Office accepted his claim for a closed fracture of the lower end of the right
humerus, a closed fracture of the right radius head and a closed peritrochanteric fracture of the
right femur neck.
Appellant received a schedule award for a three percent pain-related impairment of his
right lower extremity. An Office hearing representative later found a conflict in medical opinion

on the extent of appellant’s impairment. Dr. David Weiss, appellant’s osteopath, found one
centimeter right calf atrophy while Dr. David Rubinfeld, a second-opinion orthopedic surgeon,
found no atrophy. The Office referred appellant, together with the medical record and a
statement of accepted facts, to Dr. Lawrence I. Livingston, a Board-certified orthopedic surgeon,
for an impartial medical evaluation.1
Dr. Livingston examined appellant on March 3, 2009 and described his findings on
physical examination. He provided measurements and stated: “These measurements indicated
that there was atrophy of the right calf which was no more than 1 centimeter….” Dr. Livingston
concluded that appellant had impairment as a result of an avulsion fracture of the greater
trochanter of the right hip. “The patient has calf atrophy of the right side which is noted to be
mild and is approximately one [centimeter] and, therefore, correlates to an eight percent partial
disability relative to the right lower extremity....” He added that appellant also appeared to have
three percent pain-related impairment. “The total disability relative to the right lower extremity,
therefore, appears to be 11 percent.”
An Office medical adviser reviewed Dr. Livingston’s findings and determined that
appellant had a five percent impairment of the right lower extremity due to loss of right hip
external rotation, which Dr. Livingston did not rate, as well as a three percent pain-related
impairment. He explained that the lower extremity impairment due to one centimeter calf
atrophy was three percent and that appellant could not receive a schedule award for both atrophy
and loss of hip motion. The Office medical adviser concluded that appellant should receive no
greater than five percent impairment plus the three percent impairment for pain.
On April 7, 2009 the Office issued a schedule award for an eight percent right lower
extremity impairment, representing a five percent increase over appellant’s previous award. In a
decision dated November 24, 2009, an Office hearing representative affirmed, finding that
Dr. Livingston’s report was entitled to special weight in resolving the conflict.
On appeal, appellant’s representative argues that the Office medical adviser essentially
changed the opinion of the impartial medical specialist and that the Office erred by failing to
seek clarifying information from Dr. Livingston. Appellant’s representative suggests in the
alternative that Dr. Livingston’s opinion was well reasoned and established an 11 percent
impairment of the right lower extremity.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act2 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of

1

Questions for Dr. Livingston included: “Please determine the extent of permanent impairment to the claimant’s
right lower extremity as per the American Medical Association, Guides to the Evaluation of Permanent Impairment,
fifth edition, due to the claimant’s accepted condition(s).”
2

5 U.S.C. § 8107.

2

permanent impairment according to the standards set forth in the specified edition of the A.M.A.,
Guides.3
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.4 When there exist opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.5
When the Office secures an opinion from an impartial medical specialist for the purpose
of resolving a conflict in the medical evidence and the opinion from the specialist requires
clarification or elaboration, the Office has the responsibility to secure a supplemental report from
the specialist for the purpose of correcting a defect in the original report. When the impartial
medical specialist’s statement of clarification or elaboration is not forthcoming or if the specialist
is unable to clarify or elaborate on the original report or if the specialist’s supplemental report is
also vague, speculative, or lacks rationale, the Office must submit the case record together with a
detailed statement of accepted facts to a second impartial specialist for a rationalized medical
opinion on the issue in question.6 Unless this procedure is carried out by the Office, the intent of
section 8123(a) of the Act will be circumvented when the impartial specialist’s medical report is
insufficient to resolve the conflict of medical evidence.7
ANALYSIS
The Office referred appellant to Dr. Livingston, the orthopedic surgeon and impartial
medial specialist, to resolve the extent of right lower extremity impairment. According to
Dr. Livingston’s clinical findings, appellant’s left calf measured 41 centimeters at a point 10
centimeters below the patella, and 40 centimeters at a point 15 centimeters before the patella.
Appellant’s right calf measured 40.5 and 39 centimeters at those same levels respectively.
Table 17-6, page 530 of the fifth edition of the A.M.A. Guides, states that Dr. Livingston
was to measure the maximum circumference on the normal (left) side and compare that
measurement to the circumference at the same level of the affected side. Dr. Livingston did not
explicitly measure the maximum circumference on the left. Instead, he provided measurements
at two points below the patella. These measurements might accurately reflect the circumference

3

20 C.F.R. § 10.404. For impairment ratings calculated on and after May 1, 2009, the Office should advise any
physician evaluating permanent impairment to use the sixth edition. Federal (FECA) Procedure Manual, Part 2 -Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6.a (January 2010).
4

5 U.S.C. § 8123(a).

5

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

6

See Nathan L. Harrell, 41 ECAB 402 (1990).

7

Harold Travis, 30 ECAB 1071 (1979).

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of appellant’s left calf, and if they do, it is the larger measurement -- 41 centimeters at a point 10
centimeters below the patella -- that should be used for comparison.
Using the larger circumference for comparison, appellant would have less than one
centimeter calf atrophy on the right.8 This would be nonratable under Table 17-6.
An issue has arisen over the range of values Table 17-6 provides for mild atrophy. For
atrophy of 1 to 1.9 centimeter, the table offers impairment values from three to eight percent.
Dr. Livingston rated the lowest ratable measurement (one centimeter) by selecting the highest
impairment value in the range (eight percent). The Office medical adviser selected the lowest
impairment value in the range (three percent). Example 17-4, page 530, addresses this issue
directly. In the example, physical examination revealed one centimeter calf muscle atrophy.
Discussing the proper impairment rating, the A.M.A. Guides indicates that the one centimeter
calf atrophy represents a three percent lower extremity impairment. So it would appear that in
the absence of medical rationale to the contrary, the lowest ratable measurement extrapolates to
the lowest impairment value within the given range.
A second issue has arisen over loss of hip motion. Dr. Livingston recorded 30 degrees
external rotation of the right hip but did not rate a resulting impairment. The Office medical
adviser correctly noted that this represents a mild lower extremity impairment of five percent
under Table 17-9, page 537. If appellant has any impairment due to calf atrophy, it may not be
combined with impairment for range of motion.9
Given these outstanding issues, the Board finds that further development of the medical
evidence is warranted. The Board will set aside the Office’s November 24, 2009 decision and
remand the case for a supplemental report from Dr. Livingston clarifying the extent of
appellant’s right lower extremity impairment. Dr. Livingston should be asked to address the
issue of right calf atrophy and comment on the issue of external rotation in the right hip. After
such further development as may become necessary, the Office shall issue an appropriate final
decision on the extent of appellant’s right lower extremity impairment.10
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of the
medical evidence is warranted.

8

Dr. Livingston wrote that there was atrophy of the right calf that was “no more than one centimeter.” He also
wrote that appellant had calf atrophy on the right side that was “approximately one centimeter.”
9

A.M.A., Guides 526 (Table 17-2).

10

Supra note 3.

4

ORDER
IT IS HEREBY ORDERED THAT the November 24, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action
consistent with this opinion.
Issued: November 26, 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

5


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

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

Docket No. 18-0399
Issued: October 16, 2018

Case Submitted on the Record

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

JURISDICTION
On December 20, 2017 appellant filed a timely appeal from merit decisions of the Office
of Workers’ Compensation Programs (OWCP) dated June 30 and August 23, 2017. 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 this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish a recurrence
of disability during the period April 27 to June 9, 2017; and (2) whether appellant has established

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 23, 2017 decision, OWCP received additional evidence. Appellant
also submitted additional evidence on appeal. However, the Board’s jurisdiction is limited to the evidence that was
in the record at the time OWCP issued its final decision. Thus, the Board is precluded from reviewing this evidence
for the first time on appeal. See 20 C.F.R. § 501.2(c)(1).

that the acceptance of her claim should be expanded to include additional right hip conditions
causally related to her accepted August 1, 2016 employment injury.
FACTUAL HISTORY
On August 4, 2016 appellant, then a 74-year-old part-time sales and services distribution
associate, filed a traumatic injury claim (Form CA-1) alleging that on August 1, 2016 she sustained
injuries to her right shoulder, right hip, left arm, and head while in the performance of duty when
she fell off a step ladder. She stopped work on August 1, 2016 and returned to her part-time job
on August 4, 2016 working four hours per day six days per week until April 27, 2017.
OWCP accepted the claim for concussion without loss of consciousness, head contusion,
scalp laceration, cervical strain of muscles and tendons, right shoulder contusion, and right hip
contusion.
In an April 5, 2017 report, Dr. David L. Samani, an examining Board-certified orthopedic
surgeon, noted that appellant was seen for right hip complaints following her August 1, 2016 fall.
He noted that appellant continued to work and had not missed much work since the August 1, 2016
work injury. A physical examination of the right hip revealed some posterior gluteal region
atrophy, tenderness with external and internal rotation and flexion, and mild positive straight leg
sign. Dr. Samani diagnosed various conditions including muscle spasms, right hip pain, and
cervical muscle pain. He recommended a magnetic resonance imaging (MRI) scan as he suspected
appellant had piriformis syndrome.
Dr. Samani, in an April 5, 2017 duty status report (Form CA-17), diagnosed piriformis
syndrome, which he attributed to the accepted August 1, 2016 work injury. He indicated that
appellant could return to work on April 3, 2017.
An April 11, 2017 MRI scan of the right hip revealed irregular tearing and maceration of
the posterosuperior right acetabular labrum with paralabral and intra-labral cystic change, focal
chronic hematoma from a Morel Lavallee-type injury, and bursitis.
In an April 24, 2017 follow-up note, Dr. Samani reviewed the MRI scan, which he noted
was significant for right hip regular tearing, maceration, posterior screw to acetabular labrum,
adventitious bursitis, paralabral and intralabral cystic changes, six millimeters (MM) rounded
loose body, and Morel Lavallee-type injury. A physical examination revealed right hip tenderness
on the posterior and lateral aspects.
In a May 10, 2017 duty status report, Dr. Samani noted an injury date of August 1, 2016
and checked a box marked “no” to the question of whether appellant had been advised to resume
work.
Dr. Samani, in a follow-up evaluation and report dated May 10, 2017, explained that as a
result of the fall at work she sustained a contusion to the right hip and a cranium laceration. He
noted that a right hip MRI scan showed irregular tearing and maceration of the right acetabular
posterior superior aspect. Dr. Samani reported appellant also had a right gluteus maximum cyst,
which he observed may be due to a chronic focal hematoma.

2

Appellant submitted claims for wage-loss compensation (Form CA-7) for the period
April 27 to June 9, 2017.
In a May 23, 2017 development letter, OWCP informed appellant that the evidence of
record was insufficient to establish her claim for compensation beginning April 27, 2017, noting
that it appeared that she was claiming a recurrence of disability due to a material change/worsening
of her accepted work-related conditions. It noted that she had been a part-time employee working
four to five hours per day and that she claimed temporary total disability as of April 27, 2017.
OWCP noted the accepted conditions and advised appellant regarding the medical evidence
required to establish her claim. It afforded her 30 days to submit the requested evidence.
In a December 8, 2016 duty status report, Kelli Kodad, a physician assistant, indicated that
appellant was capable of working four to five hours with restrictions and noted an August 1, 2016
injury date. Under diagnose(s) due to injury, she diagnosed persistent right hip pain,
radiculopathy, low back pain, and probable right gluteal tear.
In duty status reports dated April 24, May 10, and June 7, 2017, Dr. Samani noted an
August 1, 2016 injury date and checked a box marked “no” to the question of whether appellant
was capable of working. On the April 24, 2017 form, he reported clinical findings of inflamed
right hip labral tear.
In a June 14, 2017 statement, appellant indicated that she stopped work because her
physician restricted her from lifting or rotating her hip and these restrictions prevented her from
performing her job duties. She also related that prior to the accepted August 1, 2016 employment
injury she had no right hip problems.
By decision dated June 30, 2017, OWCP denied appellant’s claim for recurrent disability.
It noted that she was a part-time worker who stopped work on April 27, 2017. OWCP determined
that none of the medical evidence appellant submitted established an increased disability due to
her accepted conditions or a change/worsening of the accepted conditions.
By decision dated July 5, 2017, OWCP denied appellant’s request to expand the acceptance
of her claim to include additional right hip conditions.
Subsequent to the June 30 and July 5, 2017 decisions, OWCP received additional medical
evidence from Dr. Samani. Dr. Samani, on a June 5, 2017 correction to his April 24, 2017 office
note, attributed appellant’s posterosupral labral tear to the accepted August 1, 2016 employment
injury. In a June 7, 2017 follow-up evaluation note, he provided examination findings and noted
the injury history. Dr. Samani reported that appellant complained of significant right hip pain and
discomfort when last seen on May 10, 2017. He diagnosed greater trochanteric bursitis, which he
explained was consistent with appellant’s complaints. Dr. Samani related that her right hip and
right shoulder contusions had resolved and that he did not believe she had significant right hip
arthritis.

3

In a June 29, 2017 duty status report, Dr. Samani advised that appellant was capable of
returning to work on July 5, 2017.3 He diagnosed right hip bursitis, which he attributed to the
accepted August 1, 2016 employment injury.
On July 17, 2017 appellant requested reconsideration of the July 5, 2017 decision.
On July 20, 2017 OWCP received a July 12, 2017 duty status report from Dr. Benjamin R.
Gelber, an examining Board-certified neurosurgeon, indicating that appellant was disabled from
work. Dr. Gelber noted the date of injury as August 1, 2016 and diagnosed gluteal nerve injury,
right C2 fracture, and positional vertigo.
On August 1, 2017 OWCP received a July 12, 2017 note from Dr. Gelber. He diagnosed
neck pain, trapezius spasm, and greater occipital nerve headache.
OWCP received a July 12, 2017 report by Todd Sorensen, a certified physician assistant,
diagnosing possible right C2 laminar fracture, possible right gluteal nerve injury, and neck pain
with trapezius spasm and greater occipital nerve headaches after a fall. Under history of injury,
Mr. Todd noted that appellant fell backwards off a stool at work in August 2016 and hit her head
and right hip. Following the injury appellant temporarily went back to work before stopping in
April 2017. Appellant stated that since the fall she noticed a right gluteal indentation. A physical
examination revealed a right gluteal indentation, normal gait, trapezius spasm with greater
occipital nerve tenderness on palpation and limited range of motion.
In an August 7, 2017 disability note, Dr. Gelber placed appellant off work until
August 23, 2017.
By decision dated August 23, 2017, OWCP denied modification of the July 5, 2017
decision denying appellant’s request for expansion of the accepted conditions for her claim.
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability is defined as the 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.4 The Board has held that whether a particular injury causes an employee
to be disabled for work is a medical question that must be resolved by competent and probative
medical evidence.5 The weight of medical opinion is determined on the report of a physician, who

3

The date July 3, 2017 is handwritten under the typewritten June 29, 2017 date.

4

20 C.F.R. § 10.5(x). See S.F., 59 ECAB 525 (2008); Albert C. Brown, 52 ECAB 152 (2000); Terry R. Hedman,
38 ECAB 222 (1986).
5

See R.C., 59 ECAB 546 (2008); Carol A. Lyles, 57 ECAB 265 (2005); Donald E. Ewals, 51 ECAB 428 (2000).

4

provides a complete and accurate factual and medical history, explains how the claimed disability
is related to the employee’s work, and supports that conclusion with sound medical reasoning.6
In order to establish that a claimant’s alleged recurrence of the condition was caused by the
accepted injury, medical evidence of bridging symptoms between her present condition and the
accepted injury must support the physician’s conclusion of a causal relationship.7
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish a recurrence of
disability for the period April 27 to June 9, 2017.
OWCP accepted the claim for concussion without loss of consciousness, right hip
contusion, head contusion, cervical strain of muscles and tendons, right shoulder contusion, and
scalp laceration. At the time of her injury appellant was a part-time employee working four hours
per day. She stopped work on the date of injury, returned to work on August 4, 2016, and
continued working her part-time job until April 27, 2017.
In support of her recurrence claim, appellant submitted several duty status reports and an
April 24, 2017 office visit note from her attending physician, Dr. Samani indicating that she was
totally disabled from work beginning April 24, 2017. Dr. Samani diagnosed greater trochanteric
bursitis, inflamed right hip labral tear, piriformis syndrome, right hip and cranium laceration,
irregular tearing and maceration of the right acetabular posterior superior aspect, and a right
gluteus maximum cyst, which he observed may be due to a chronic focal hematoma. He provided
examination findings in his reports. While he indicated that the diagnosed conditions were due to
appellant’s accepted August 1, 2016 employment injury and that she was temporarily totally
disabled, Dr. Samani failed to offer a medical opinion specifically addressing how her disability
was causally related to the accepted employment conditions. A mere conclusion without the
necessary rationale is insufficient to meet a claimant’s burden of proof.9 While appellant related
that she stopped work on April 27, 2017 because her physician restricted her from rotating her
right hip, appellant did not submit any medical evidence from her treating physician which
substantiated that this restriction was due to the accepted right hip contusion. The record does not
contain any bridging evidence of disability from August 4, 2016 to April 27, 2017.10 For these
6

See C.S., Docket No. 08-2218 (issued August 7, 2009); Sandra D. Pruitt, 57 ECAB 126 (2005).

7

Mary A. Ceglia, 55 ECAB 626, 629 (2004).

8

See C.K., Docket No. 17-1853 (issued August 27, 2018).

9

See E.L., Docket No. 17-1632 (issued January 3, 2018).

10

Supra note 7.

5

reasons, the medical opinion reports of Dr. Samani are insufficient to establish a recurrence of total
disability or work-related disability during the claimed period.
OWCP also received July 12, 2017 reports from Dr. Gelber, who noted that appellant was
disabled from work. Dr. Gelber did not, however, relate that appellant was disabled during the
specific time period in question, due to the accepted employment conditions.11
It is appellant’s burden of proof to establish the claim for compensation. The Board finds
that appellant did not meet her burden of proof in this case.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
An employee seeking benefits under FECA12 has the burden of proof to establish the
essential elements of his or her claim, including the fact that he or she 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.13
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.14 To establish 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.15 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.16 The weight of medical evidence is determined by its reliability, its probative value,

11

Supra note 8.

12

Supra note 1.

13
C.W., Docket No. 17-1636 (issued April 25, 2018); Tracey P. Spillane, 54 ECAB 608 (2003); Elaine Pendleton,
40 ECAB 1143 (1989).
14

See V.B., Docket No. 12-0599 (issued October 2, 2012); Jaja K. Asaramo, 55 ECAB 200 (2004).

15

See M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

16

See John W. Montoya, 54 ECAB 306 (2003).

6

its convincing quality, the care of analysis manifested, and the medical rationale expressed in
support of the physician’s opinion.17
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met her burden of proof to establish additional right
hip conditions causally related to the accepted August 1, 2016 work injury.
If a claimant alleges that a condition not accepted or approved by OWCP was due to
appellant’s employment injury, he or she bears the burden of proof to establish that the condition
is causally related to the employment injury through the submission of rationalized medical
evidence.18
The record contains several reports from Dr. Samani diagnosing various right hip
conditions. The only accepted right hip condition was hip contusion. In an April 5, 2017 report,
Dr. Samani diagnosed right hip and cervical muscle pain, muscle spasms, and possible piriformis
syndrome. On April 24, 2017 he, based upon a review of a right hip MRI scan, reported right hip
regular tearing, maceration, posterior screw to acetabular labrum, adventitious bursitis, paralabral
and intralabral cystic changes, six MM rounded loose body, and Morel Lavallee-type injury.
Dr. Samani, in an April 24, 2017 duty status report diagnosed inflamed right hip labral tear and he
noted clinical findings of inflamed right hip labral tear. On a May 10, 2017 report, Dr. Samani
noted a right hip MRI scan showed irregular tearing and maceration of the right acetabular
posterior suspect, and right gluteus maximum cyst. In a June 7, 2017 note, he diagnosed greater
trochanteric bursitis. Dr. Samani, however, offered no opinion in these reports as to the cause of
the diagnosed conditions. Medical evidence that does not offer any opinion regarding the cause
of an employee’s condition is of no probative value on the issue of causal relationship.19 These
reports are therefore of no probative value in establishing that appellant’s claim should be
expanded to include additional right hip conditions as causally related to the accepted August 1,
2016 employment injury.
The record also contains a June 29, 2017 duty status report from Dr. Samani diagnosing
right hip bursitis, which he attributed to the August 1, 2016 work injury and a June 5, 2017
correction attributing the posterosuperal labral tear to the August 1, 2016 work injury. However,
Dr. Samani did not provide any medical rationale explaining how the accepted August 1, 2016
employment injury caused, aggravated, or contributed to the diagnosed right hip bursitis or
posterosuperal labral tear.20 The Board has found that medical evidence is of limited probative
value if it contains a conclusion regarding causal relationship, but does not offer any rationalized

17

See H.H., Docket No. 16-0897 (issued September 21, 2016); James Mack, 43 ECAB 321 (1991).

18

Jaja K. Asaramo, supra note 14.

19

See D.S., Docket No. 15-1930 (issued January 20, 2016); see also Jaja K. Asaramo, id.

20
K.W., Docket No. 10-0098 (issued September 10, 2010); A.D., 58 ECAB 149 (2006); Linda I. Sprague, 48 ECAB
386 (1997).

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medical explanation on the issue of causal relationship.21 The Board also notes that Dr. Samani
did not explain why the evidence of record lacked bridging evidence between the accepted injury
and the subsequently diagnosed conditions.22 Accordingly, these reports from Dr. Samani are also
insufficient to establish that appellant sustained right hip bursitis or posterosuperal labral tear as a
result of the accepted August 1, 2016 employment injury.
The record also contains a note and Form CA-17 dated July 12, 2017 from Dr. Gelber
diagnosing gluteal nerve injury. Dr. Gelber offered no opinion as to the cause of the diagnosed
conditions in the July 12, 2017 note. As noted above, medical evidence offering no opinion
regarding the cause of an employee’s condition is of diminished probative value on the issue of
causal relationship.23 On the duty status report Dr. Gelber attributed the gluteal nerve injury to the
accepted August 1, 2016 work injury. However, he provided no supporting rationale explaining
how the diagnosed condition was caused or aggravated by the accepted August 1, 2016 work
injury. As discussed above, the Board has found medical evidence containing a conclusion
regarding causal relationship without any rationalized medical explanation on the issue of causal
relationship is of limited probative value.24 For these reasons, the medical evidence from
Dr. Gelber is insufficient to establish an additional right hip condition causally related to the
accepted August 1, 2016 employment injury.
Appellant also submitted reports from Ms. Kodad and Mr. Sorensen, physician assistants.
A physician assistant, however, is not considered a physician as defined by section 8101(2) of
FECA.25 Consequently, these reports have no probative value.
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical evidence.26 Appellant failed to provide
reasoned medical evidence demonstrating that she sustained an additional right hip condition
causally related to the accepted August 1, 2016 employment injury. Accordingly, the Board finds
that she has failed to meet her burden of proof to establish expansion of the acceptance of her
claim.27

21

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., id.; Mary E. Marshall, 56 ECAB 420 (2005). See
also Franklin D. Haislah, 52 ECAB 457 (2001); Jimmie H. Duckett, 52 ECAB 332 (2001).
22

Supra note 7.

23

See D.S., Docket No. 15-1930 (issued January 20, 2016); see also Jaja K. Asaramo, supra note 14.

24

J.F., supra note 21; A.D., supra note 20; Mary E. Marshall, supra note 21; see also Franklin D. Haislah, supra
note 21; Jimmie H. Duckett, supra note 21.
25

See V.J., Docket No. 17-0358 (issued July 24, 2018); see also David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006)
(lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical
opinion under FECA); Charley V.B. Harley, 2 ECAB 208 (1949) (the Board held that medical opinion, in general, can
only be given by a qualified physician). See also 5 U.S.C. § 8101(2).
26

See E.P., Docket No. 16-0153 (issued August 25, 2016); D.I., 59 ECAB 158 (2007).

27

See E.P., id.

8

On appeal appellant corrected what she alleged were discrepancies and inaccuracies in
medical evidence submitted, particularly the August 1, 2016 emergency room report document.
She notes that the injury occurred to her left arm, not her right arm as noted in the emergency room
report. Appellant further argues that her right butt cheek is deformed as it never healed properly
following the accepted August 1, 2016 work injury. As discussed above, none of the medical
evidence she submitted contains a rationalized opinion explaining why the acceptance of her claim
should be expanded to include additional conditions.
CONCLUSION
The Board finds that appellant has not established that she sustained a recurrence of a
disability during the period April 27 to June 9, 2017 causally related to her accepted employment
injury or that the acceptance of her claim should be expanded to include additional right hip
conditions causally related to her accepted August 1, 2016 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 23 and June 30, 2017 are affirmed.
Issued: October 16, 2018
Washington, DC

Christopher J. Godfrey, 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

9


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

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

Docket No. 10-200
Issued: August 3, 2010

Case Submitted on the Record

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

JURISDICTION
On October 26, 2009 appellant filed a timely appeal from an September 28, 2009 merit
decision of the Office of Workers’ Compensation Programs that denied his claim. Pursuant to 20
C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established that he sustained an injury in the performance
of duty causally related to his federal employment.
FACTUAL HISTORY
On November 26, 2008 appellant, a 57-year-old delivery and retail analyst, filed an
occupational disease claim (Form CA-2) for degenerative disc disease. He alleged that his back
condition was aggravated by employment tasks he performed during a route inspection.
Appellant first realized that his condition was caused by his federal employment on
November 3, 2008. He submitted medical notes, dated November 4 and 11, 2008, bearing
illegible signatures.

In a December 1, 2008 form report, Dr. Richard D. Snyder, a chiropractor, presented
findings on examination and diagnosed sciatica. He stated that appellant “claim[ed] [his
condition] was aggravated by extensive driving in a vehicle or walking.” In a December 8, 2008
note, Dr. Snyder diagnosed sciatica neuralgia and reported that x-rays revealed multilevel lumbar
spine disc degeneration.
By decision dated February 23, 2009, the Office denied the claim. It accepted that
appellant established the employment factors he deemed responsible for his condition, but the
medical evidence did not establish that his work activities caused his back condition.
On March 1, 2009 appellant, through his attorney, requested an oral hearing that was held
on July 14, 2009. He provided testimony concerning his employment duties, medical history and
treatment. Appellant also described the employment tasks he performed during a route
inspection and how they aggravated his back condition.
In a report dated August 6, 2009, Dr. Hadijatou Jarra, Board-certified in family medicine,
reviewed appellant’s history of injury. He advised that he had treated appellant for two years
and noted a history of cervical and lumbar degenerative disease, which was aggravated by
prolonged sitting. Dr. Jarra stated that appellant’s employment duties “cause[d] and will
continue to cause progressive worsening of his [degenerative joint disease]/subluxation.”
By decision dated September 28, 2009, an Office hearing representative affirmed the
February 23, 2009 decision. She found that the evidence of record did not establish that
appellant’s work duties caused his back condition or worsened his degenerative disc disease.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of proof to establish the essential elements of his claim by the weight of the evidence,2
including that he sustained an injury in the performance of duty and that any specific condition
or disability for work for which he claims compensation is causally related to that employment
injury.3 As part of his burden, the employee must submit rationalized medical opinion evidence
based on a complete factual and medical background showing causal relationship.4 The weight
of medical evidence is determined by its reliability, its probative value, its convincing quality,
the care of the analysis manifested and the medical rationale expressed in support of the
physician’s opinion.5

1

5 U.S.C. §§ 8101-8193.

2

J.P., 59 ECAB ___ (Docket No. 07-1159, issued November 15, 2007); Joseph M. Whelan, 20 ECAB 55,
58 (1968).
3

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Elaine Pendleton, 40 ECAB 1143,
1145 (1989).
4

Id.; Nancy G. O’Meara, 12 ECAB 67, 71 (1960).

5

Jennifer Atkerson, 55 ECAB 317, 319 (2004); Naomi A. Lilly, 10 ECAB 560, 573 (1959).

2

To establish that an injury was sustained in the performance of duty in a claim for
occupational disease, an employee must submit: (1) a factual statement identifying employment
factors alleged to have caused or contributed to the presence or occurrence of the disease or
condition; (2) medical evidence establishing the presence or existence of the disease or condition
for which compensation is claimed; and (3) medical evidence establishing that the diagnosed
condition is causally related to the employment factors identified by the employee.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence, which includes a physician’s rationalized opinion on
whether there is a causal relationship between the employee’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.
ANALYSIS
The Office accepted that appellant performed work duties monitoring computer systems,
telephone calls and route inspections. Appellant’s burden is to demonstrate that these
employment factors caused the claimed back condition. Causal relationship is a medical issue
that can only be established by probative, rationalized medical opinion evidence. The Board
finds that appellant has not submitted sufficient medical opinion evidence to establish that he
sustained an injury in the performance of duty causally related to his employment.
The medical notes bearing illegible signatures are not probative evidence. Absent a
legible signature, they cannot be identified as having been prepared by a “physician” as defined
under the Act.7 This evidence is not adequate to establish a causal relationship between the
accepted employment factors and appellant’s back condition.
Dr. Snyder, a chiropractor, provided reports that are of no probative medical value. A
chiropractor is not a “physician” under the Act unless it is established that his or her
reimbursable services are limited to treatment consisting of manual manipulation of the spine to
correct a subluxation as demonstrated by x-ray to exist.8 Dr. Snyder noted that x-rays showed
lumbar disc degeneration and diagnosed sciatica neuralgia. Because he did not diagnose a spinal
subluxation, he does not qualify as a “physician” for purposes of the Act and, therefore, his
reports are not probative on the issue of causal relationship.

6

See Roy L. Humphrey, 57 ECAB 238, 241 (2005); Ruby I. Fish, 46 ECAB 276, 279 (1994).

7

Vickey C. Randall, 51 ECAB 357 (2000); Merton J. Sills, 39 ECAB 572 (1988) (reports not signed by a
physician lack probative value)
8

The term physician includes chiropractors only to the extent that their reimbursable services are limited to
treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist
and subject to regulation by the Secretary. 5 U.S.C. § 8101(2); see also Jack B. Wood, 40 ECAB 95 (1988);
Mary A. Ceglia, 55 ECAB 626 (2004).

3

Dr. Jarra provided a brief August 6, 2009 report noting his treatment of appellant and a
history of degenerative disease. On the issue of causal relationship, his report fails to provide a
rationalized opinion explaining how the accepted employment factors caused or contributed to
the diagnosed condition.9 Dr. Jarra did not provide a full medical history or report findings on
examination. The weight of a medical opinion is determined by the opportunity for and
thoroughness of examination, the accuracy and completeness of physicians knowledge of the
facts of the case, the medical history provided, the care of analysis manifested and the medical
rationale expressed in support of the stated conclusions.10 The Board finds that Dr. Jarra’s note
is insufficient to establish causal relationship between appellant’s degenerative disease his work
as a delivery and retail analyst.
An award of compensation may not be based on surmise, conjecture or speculation.11
Neither the fact that the claimed condition became apparent during a period of employment nor
appellant’s belief that his condition was aggravated by his employment is sufficient to establish
causal relationship.12 The fact that a condition manifests itself or worsens during a period of
employment13 or that work activities produce symptoms revelatory of an underlying condition14
does not raise an inference of causal relationship between a claimed condition and accepted work
factors.
Appellant has not submitted sufficient medical opinion evidence containing a reasoned
discussion of causal relationship, one that soundly explains how the established employment
factors caused or aggravated his diagnosed medical condition. The Board finds that he has not
established the essential element of causal relationship.
CONCLUSION
The Board finds that appellant has not established that he sustained a back condition
causally related to his federal employment.

9

See Mary E. Marshall, 56 ECAB 420 (2005) (medical reports that do not contain rationale on causal relationship
have little probative value).
10

See Anna C. Leanza, 48 ECAB 115 (1996).

11

Edgar G. Maiscott, 4 ECAB 558.

12

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

13

E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393, 395 (1960).

14

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155, 157 (1960).

4

ORDER
IT IS HEREBY ORDERED THAT the September 28, 2009 decision of the Office of
Workers’ Compensation Programs be affirmed.
Issued: August 3, 2010
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Lancaster, CA, Employer
__________________________________________

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

Docket No. 19-0865
Issued: November 14, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 15, 2019 appellant, through counsel, filed a timely appeal from a January 14,
2019 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 of proof to establish a permanent
impairment of a scheduled member entitling her to a schedule award.
FACTUAL HISTORY
On June 8, 2015 appellant, then a 58-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on June 4, 2015 she twisted her left ankle when driving her delivery
route while in the performance of duty. She stopped work on June 5, 2015. Following a period
of modified-duty work commencing in mid-August 2015, appellant returned to full-duty work.
In a report dated June 25, 2015, Dr. Sheryl A. Haggerty, a general practitioner, noted a
history of a resolved left ankle fracture in 1960, a resolved occupational left ankle sprain in 2001,
a 2014 dog bite to the left ankle, and the June 4, 2015 employment incident. She diagnosed a left
ankle strain.
By decision dated October 28, 2015, OWCP accepted the claim for left ankle sprain.
In a report dated November 23, 2015, Dr. Haggerty found that appellant had attained
maximum medical improvement (MMI). In a December 17, 2015 report, she found full range of
left ankle motion without pain and discharged appellant from care.
On April 20, 2016 appellant filed a claim for a schedule award (Form CA-7).
In support of her claim, appellant submitted a June 15, 2016 impairment rating from
Dr. Mesfin Seyoum, a family medicine specialist. Dr. Seyoum noted a fracture to the left fourth
toe in February 2015, with no other left foot or ankle injuries prior to the June 4, 2015 employment
incident. He provided findings on physical examination, noting a slightly guarded gait, minimal
tenderness of the lateral aspect of the left ankle, full range of left ankle motion in all planes, and a
normal sensory examination and reflexes throughout both lower extremities. Appellant scored 28
on the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides) Pain Disability Questionnaire (PDQ),3 and obtained a minimal score on the
American Academy of Orthopedic Surgeons (AAOS) lower limb questionnaire. Dr. Seyoum
diagnosed left ankle sprain as the accepted condition and opined that based on the information
available it appeared that her left ankle condition was caused by the accepted employment injury
of June 4, 2015, which occurred while she was working as a mail carrier. He further opined that
appellant had reached MMI on November 23, 2015.
Referring to the Table 16-2 of the A.M.A., Guides, foot and ankle regional grid,
Dr. Seyoum calculated a rating of one percent permanent impairment of the left lower extremity
for left ankle sprain.4 He determined that this diagnosis resulted in a class 1 impairment with a

3

A.M.A., Guides, (6th ed. 2009) at Appendix 3-1.

4

Id. at 501.

2

default value of grade C, equaling one percent permanent impairment of the left lower extremity.5
Dr. Seyoum assigned a grade modifier of 1 for functional history (GMFH) based on appellant’s
AAOS and PDQ questionnaire scores,6 a grade modifier of 1 for physical examination (GMPE),7
and no applicable modifier for clinical studies (GMCS).8 Applying the net adjustment formula,
(GMFH - CDX) + (GMPE - CDX), he subtracted 1, the numerical value of the class, from the
numerical value of the grade modifiers, (1-1) + (1-1), and then combined those values, resulting
in a net adjustment of zero.9 This resulted in a final permanent impairment rating of one percent
of the left lower extremity.
On April 18, 2017 OWCP routed Dr. Seyoum’s report, a statement of accepted facts, and
the case record to Dr. Todd Fellars, a Board-certified orthopedic surgeon serving as an OWCP
district medical adviser (DMA), for review and evaluation of appellant’s permanent impairment
pursuant to the A.M.A., Guides. It also asked Dr. Fellars to provide a date of MMI.
In a May 18, 2017 report, the DMA reviewed the case file and determined that appellant
had reached MMI on December 17, 2015. He disagreed with Dr. Seyoum’s permanent impairment
rating as she had a completely normal examination at her final medical visit with her treating
provider on December 17, 2015. The DMA opined that, according to Table 16-2 at page 501 of
the A.M.A., Guides,10 appellant had a class 0 impairment resulting in zero percent left lower
extremity permanent impairment.
By decision dated May 19, 2017, OWCP denied appellant’s claim for a schedule award as
the evidence of record was insufficient to establish permanent impairment to a member or function
of the body.
On May 25, 2017 appellant, through counsel, requested a telephonic oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
By decision dated October 5, 2017, an OWCP hearing representative found that the case
was not in posture for decision. He set aside the May 19, 2017 decision and remanded the case to
OWCP as further development was warranted. The hearing representative explained that as
Dr. Seyoum was the only physician who provided an impairment rating, a second opinion
examination was warranted.

5

Dr. Seyoum’s June 15, 2016 impairment rating notes a class 2, grade C diagnosis-based impairment (DBI),
equaling one percent left lower extremity impairment. However, he noted a class of diagnosis (CDX) of 1 in his
application of the net adjustment formula. Therefore, the Board finds that Dr. Seyoum’s initial reference to a class 2
CDX was a typographical error.
6

Supra note 3 at 516, Table 16-6.

7

Id. at 517, Table 16-7.

8

Id. at 519, Table 16-8.

9

Id. at 521.

10

Id. at 501, Table 16-2.

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On December 6, 2017 OWCP referred appellant for a second opinion examination with
Dr. Mark D. Bernhard, an osteopathic physician Board-certified in physiatry, to determine whether
her accepted left ankle sprain caused permanent impairment of the left lower extremity.
In a January 19, 2018 report, Dr. Bernhard noted appellant’s history of injury, medical
treatment, and physical examination findings, including her complaints of occasional dull aching
and stiffness of the left ankle. He determined that she reached MMI as of June 15, 2016, the date
of Dr. Seyoum’s examination. Appellant scored a nine on the AAOS lower limb questionnaire,
indicating a minimal impairment according to Table 16-6.11 On examination, Dr. Bernhard
observed full range of motion (ROM) of both ankles in all planes, with no atrophy in either lower
extremity. He referred to Table 16-2 of the A.M.A., Guides to diagnose a left ankle strain CDX.
Dr. Bernhard found a GMFH of zero as appellant had a minimal questionnaire result and no gait
derangement, a GMPE of zero as she had no consistent findings, no palpatory findings, and normal
ROM. He applied the net adjustment formula, (GMFH - CDX) + (GMPE - CDX), to calculate
zero percent permanent impairment of the left lower extremity. Dr. Bernhard noted that utilizing
the ROM rating method also resulted in zero percent impairment of the left lower extremity.
On March 7, 2018 the DMA reviewed Dr. Bernhard’s second opinion evaluation and
concurred with his rating methodology and application of the A.M.A., Guides. He opined that
appellant had zero percent permanent impairment of the left lower extremity. The DMA confirmed
that appellant attained MMI on December 17, 2015, the date of Dr. Haggerty’s examination.
In a March 14, 2018 report, Dr. Seyoum noted his disagreement with Dr. Bernhard’s
January 19, 2018 impairment rating. He contended that appellant had one percent permanent
impairment of the left lower extremity according to Table 16-2,12 based on a CDX of 1, grade C
left ankle sprain, equal to one percent lower extremity impairment. Dr. Seyoum assessed a GMFH
of one for a PDQ score of 28, and a GMPE of zero according to Table 16-7.13 He noted that there
was no applicable GMCS as there were no relevant clinical studies of record. Applying the net
adjustment formula, (GMFH - CDX) + (GMPE - CDX), or (1-1) + (0-1), resulted in a net
adjustment of negative one, which lowered the default CDX grade of C one position to the left,
equal to a one percent permanent impairment of the left lower extremity. Dr. Seyoum opined that
the ROM rating methodology was not applicable as appellant had a full range of left ankle motion
at the time of his June 15, 2016 examination.
By decision dated July 25, 2018, OWCP denied appellant’s claim for a schedule award as
the evidence of record was insufficient to establish permanent impairment to a scheduled member
or function of the body.
On July 31, 2018 appellant, through counsel, requested a telephonic oral hearing before a
representative of OWCP’s Branch of Hearings and Review. At the hearing, held December 11,
2018, appellant asserted that she had minimal symptoms with weather changes.
11

Id. at 516, Table 16-6.

12

Id. at 501, Table 16-2.

13

Id. at 517, Table 16-7.

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By decision dated January 14, 2019, an OWCP hearing representative affirmed the July 25,
2018 decision denying appellant’s schedule award claim.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body.14 However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.15
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).16 The Board has approved the use by OWCP of the A.M.A., Guides
for the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.17
The A.M.A., Guides provide a DBI method of evaluation utilizing the World Health
Organization’s International Classification of Functioning, Disability, and Health (ICF). For lower
extremity impairments, the evaluator identifies the impairment CDX condition, which is then
adjusted by GMFH, GMPE, and GMCS.18 The net adjustment formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).19 Evaluators are directed to provide reasons for their
impairment rating choices, including choices of diagnoses from regional grids and calculations of
modifier scores.20

14

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

15

Id. at § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

16

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 and Permanent Disability
Claims, Chapter 2.808.5a (March 2017).
17
L.N., Docket No. 18-0156 (issued August 21, 2019); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro
Rivera, 12 ECAB 348 (1961).
18

A.M.A., Guides (6th ed. 2009) at 493-531.

19

Id. at 521.

20

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

5

A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.21
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP DMA for an opinion concerning the nature and percentage of
permanent impairment in accordance with the A.M.A., Guides, with the DMA providing rationale
for the percentage of impairment specified.22
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a permanent
impairment of a scheduled member entitling her to a schedule award.
Appellant filed a claim for a schedule award and submitted a June 15, 2016 impairment
rating and March 14, 2018 supplemental report from Dr. Seyoum in support of her claim.
Dr. Seyoum’s reports are the only evidence of record that she has submitted providing an opinion
as to her permanent functional impairment. He calculated appellant’s permanent impairment
rating for the condition of left ankle sprain, the accepted condition, and he opined that she had
reached MMI on November 23, 2015. Dr. Seyoum discussed his impairment calculations. Citing
Table 16-2, Foot and Ankle Regional Grid, of the A.M.A., Guides, he calculated one percent
permanent impairment of the left lower extremity for left ankle sprain with mild pain symptoms.
The Board has previously explained that the medical evidence of record must establish that
the accepted employment injury contributed to the permanent impairment for which schedule
award compensation is alleged.23 Although Dr. Seyoum attributed appellant’s subjective
symptoms to the accepted June 4, 2015 left ankle sprain, he found no objective signs of the
resolved employment injury.24 Additionally, he did not mention the 1960 right ankle fracture and
2001 right ankle sprain noted by Dr. Haggerty in her June 25, 2015 report. As such, Dr. Seyoum’s
reports are based on an incomplete history and are insufficient to establish appellant’s claim.25
Therefore, the Board finds that his opinions are insufficient for her to meet her burden of proof to
establish that her left ankle permanent impairment is causally related to her accepted July 4, 2015
employment injury.

21

See T.O., Docket No. 18-0659 (issued August 8, 2019); Tammy L. Meehan, 53 ECAB 229 (2001).

22

See supra note 16 at Chapter 2.808.6(f) (March 2017).

23

Supra note 21.

24

See V.S., Docket No. 16-0464 (issued June 1, 2016).

25

The Board has held that medical reports must be based on a complete and accurate factual and medical
background and medical opinions based on an incomplete or inaccurate history are of limited probative value. H.A.,
Docket No. 18-1466 (issued August 23, 2019); J.R., Docket No. 12-1099 (issued November 7, 2012); Douglas M.
McQuaid, 52 ECAB 382 (2001).

6

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 employment-related
condition resulting in permanent impairment or increased impairment.26
On appeal counsel contends that OWCP failed to give due deference to the findings of
appellant’s physicians. As found above, Dr. Seyoum provided insufficient medical rationale to
meet her burden of proof.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a permanent
impairment of a scheduled member entitling her to a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the January 14, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 14, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

26

See W.H., Docket No. 19-0102 (issued June 21, 2019); Linda T. Brown, 51 ECAB 115 (1999).

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