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

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

Docket No. 16-1817
Issued: April 14, 2017

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 September 12, 2016 appellant filed a timely appeal from an August 18, 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.
ISSUE
The issue is whether appellant has established more than five percent permanent
impairment of her right upper extremity, for which she has previously received a schedule award.
FACTUAL HISTORY
On February 21, 2014 appellant, then a 58-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that she sustained an injury to her right shoulder as a result of
slipping and falling on ice while loading mail into her vehicle. By decision dated June 5, 2014,
1

5 U.S.C. § 8101 et seq.

OWCP accepted the claim for scapulohumeral fibrositis/impingement of the right shoulder and a
right rotator cuff tear.
Appellant sought treatment with Dr. Peter J. Anderson, a Board-certified orthopedic
surgeon, and underwent an arthroscopic acromioplasty, open distal clavicle excision, and rotator
cuff debridement and repair on October 10, 2014. Dr. Anderson noted that he minimally
debrided the bursa as most of the rotator cuff was intact. On December 15, 2014 he released
appellant to return to work with restrictions of sedentary work and no use of the right arm.
In a letter dated February 3, 2015, addressed to the employing establishment,
Dr. Anderson noted that appellant had reached maximum medical improvement (MMI) from her
conditions of a rotator cuff tear and acromioclavicular joint arthrosis. He noted that her final
impairment rating was 20 percent.
On August 24, 2015 appellant filed a claim for a schedule award (Form CA-7).
By letter dated September 14, 2015, OWCP informed appellant of the evidence required
to support her claim for a schedule award.
In a report dated October 19, 2015, Dr. Anderson noted that appellant had reached MMI
and related that she had 15 percent permanent impairment of the upper extremity based on her
rotator cuff surgery complicated by stiffness and pain.
By decision dated November 13, 2015, OWCP denied appellant’s claim for a schedule
award, noting that she failed to submit sufficient medical evidence to establish a permanent
impairment. It noted that the report of Dr. Anderson dated October 19, 2015 failed to explain
how he arrived at the figure of 15 percent with reference to the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides
2009).
On January 19, 2016 appellant requested reconsideration of OWCP’s November 13, 2015
decision. With her request, she attached a letter from Dr. Anderson, dated December 15, 2015.
Dr. Anderson wrote that he had rated appellant’s impairment pursuant to the A.M.A., Guides
sixth edition. He opined that she had 13 percent upper extremity impairment due to a class 1
injury for a rotator cuff repair with residual symptoms and some loss of motion. Dr. Anderson
noted that appellant had some modifiers, including her loss of motion and residual functional
loss. He related that he had rated her impairment pursuant to the A.M.A., Guides at page 405 for
the upper extremity, 403 for the upper extremity, as well as page 417.
OWCP routed the case file, a statement of accepted facts, and medical reports of
Dr. Anderson to a district medical adviser (DMA) on April 6, 2016. On May 8, 2016 the DMA
rendered a report, finding that appellant’s final right upper extremity impairment was five
percent. The DMA explained that he rated her right upper extremity impairment using the
diagnosis-based impairment (DBI) method as the physical examinations did not denote range of
motion (ROM) measurements. He noted that both diagnoses for appellant’s shoulder impairment
yielded the same impairment rating, so he chose to rate the partial rotator cuff tear. The DMA
then explained that partial rotator cuff tear with residual loss was a class 1 impairment. A default
grade C corresponded to three percent impairment rating (Table 15-5, page 402). The Functional
2

History (GMFH) was grade modifier 1 for a mild problem (Table 15-7, page 406). The Physical
Examination (GMPE) was a grade modifier 1 for a mild problem (Table 15-8). The Clinical
Studies (GMCS) was a grade modifier 4 as it showed rotator cuff tear and biceps tendon
pathology (Table 15-9, page 410). The net modifier was +3 (0+0+3). This moved the grade 2
spaces to the right to a grade E which corresponded to five percent permanent impairment of the
right upper extremity.
The DMA further noted that he had reviewed Dr. Anderson’s report and was unclear as to
how he arrived at a rating of 13 percent for a rotator cuff tear, as the pages referenced by
Dr. Anderson did not correspond to the evaluation of impairment for that condition. He
observed that the date of MMI was February 3, 2015.
By decision dated May 16, 2016, OWCP concluded that the new evidence warranted
modification of its November 13, 2015 decision. Consequently, it vacated its prior schedule
award decision, and granted a schedule award of five percent permanent impairment of the right
upper extremity. The date of MMI was noted as February 3, 2015. The award covered a period
of 15.6 weeks from July 4 through October 21, 2015.
On August 2, 2016 appellant requested reconsideration of OWCP’s May 16, 2016
decision. With her request, she attached notes from a physical therapist regarding a work
conditioning reevaluation. Appellant also submitted a letter dated July 18, 2016 from
Dr. Anderson, in which he noted that he agreed with the “evaluation regarding the percentage of
job demands she is able to do, her ROM, and her pain level.”
By decision dated August 18, 2016, OWCP reviewed the merits of appellant’s case and
denied modification of its prior decision of May 16, 2016. It noted that Dr. Anderson’s letter of
July 18, 2016 did not clarify how he arrived at his earlier impairment rating.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.2 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.3 FECA, 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. Through its implementing
regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for evaluating
schedule losses.4
2

See 20 C.F.R. §§ 1.1-1.4.

3

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
4

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

3

5 U.S.C.

The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).5 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.6
ANALYSIS
OWCP accepted appellant’s claim for scapulohumeral fibrositis/impingement of the right
shoulder and a right rotator cuff tear. The issue is whether appellant sustained more than five
percent permanent impairment of the upper right extremity, for which she had previously
received a schedule award. The Board finds that the case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the ROM
methodology when assessing the extent of permanent impairment for schedule award purposes.7
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.8 In T.H., the Board concluded that OWCP physicians are
at odds over the proper methodology for rating upper extremity impairment, having observed
attending physicians, evaluating physicians, second opinion physicians, impartial medical
examiners, and district medical advisers use both DBI and ROM methodologies interchangeably
without any consistent basis.
Furthermore, the Board has observed that physicians
interchangeably cite to language in the first printing or the second printing when justifying use of
either ROM or DBI methodology. Because OWCP’s own physicians are inconsistent in the
application of the A.M.A., Guides, the Board finds that OWCP can no longer ensure consistent
results and equal justice under the law for all claimants.9
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
5

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 2.808.5(a) (February 2013).
6

Isidoro Rivera, 12 ECAB 348 (1961).

7

T.H., Docket No. 14-0943 (issued November 25, 2016).

8

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

9

Supra note 7.

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extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the August 18, 2016
decision. Following OWCP’s development of a consistent method for calculating permanent
impairment for upper extremities to be applied uniformly, and such other development as may be
deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper
extremity schedule award.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 18, 2016 decision of the Office of
Workers’ Compensation Programs is set aside and this case is remanded for further proceedings
consistent with this opinion.
Issued: April 14, 2017
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.H., Appellant
and
U.S. POSTAL SERVICE, APPALACHIAN
PERFORMANCE CLUSTER, Charleston, WV,
Employer
__________________________________________

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

Docket No. 18-1727
Issued: May 6, 2019

Case Submitted on the Record

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

JURISDICTION
On September 13, 2018 appellant, through counsel, filed a timely appeal from a July 13,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

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.

3
The Board notes that following the July 13, 2018 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective November 30, 2017, due to
her refusal of an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
FACTUAL HISTORY
On November 21, 2013 appellant, then a 39-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on November 20, 2013, she twisted and sprained her left ankle
when she stepped in a hole while in the performance of duty. She stopped work on the date of
injury. OWCP accepted the claim for left ankle and knee sprains, and subsequently expanded
acceptance of the claim to include left foot tendon rupture. Appellant returned to modified
sedentary work on May 28, 2014, but stopped work again on June 2, 2014. By decision dated
March 3, 2015, OWCP accepted her claim for a recurrence of disability beginning June 2, 2014.
It paid appellant wage-loss compensation on the periodic rolls beginning June 2, 2014.
On February 24, 2014 appellant came under the care of Dr. Kevin Brown, a podiatric
surgeon, who diagnosed peroneal tendinitis and calcaneofibular sprain. OWCP subsequently
received a number of progress reports from Dr. Brown diagnosing a left foot ruptured tendon and
plantar fasciitis and in which he related that appellant was unable to work.
In progress notes dated June 10, 2015 and subsequent reports, Dr. Brown provided a
history of injury and examination findings. He diagnosed plantar fasciitis and left lower limb
reflex sympathetic dystrophy.
On October 14, 2016 OWCP prepared a statement of accepted facts (SOAF) which noted
the accepted conditions and diagnostic test results.
In a letter dated October 26, 2016, OWCP referred appellant, the medical record, and the
SOAF to Dr. Anbu K. Nadar, a Board-certified orthopedic surgeon, for a second opinion
evaluation.
In a report dated November 16, 2016, Dr. Nadar noted his review of the SOAF and medical
records. He provided examination findings regarding appellant’s left ankle, foot, and knee.
Dr. Nadar noted no significant swelling, erythema, warmth, or discoloration on examination of the
left ankle. The left foot joint was stable to inversion and anterior Drawer test, appellant was able
to extend her toes, and she was able to flex her forefoot. Dr. Nadar observed that appellant
ambulated without assistance, but with a limp. A review of an August 8, 2016 magnetic resonance
imaging (MRI) scan revealed small posterior foot effusions and ankle articulations, but otherwise
no focal abnormality. Diagnoses included left ankle and foot sprain and left foot ruptured tendon.
Dr. Nadar opined that appellant’s left knee condition had completely resolved based on the lack of
physical findings. He found no objective abnormality with her left foot and ankle, only her
subjective complaints. Dr. Nadar opined appellant was capable of returning to work with
restrictions and required no additional treatment. In an attached work capacity evaluation form
(Form OWCP-5c), he provided work restrictions, including no more than two hours of walking
and standing, and three hours of pushing, pulling, or lifting up to 20 pounds.

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In reports dated January 1 and May 8, 2017, Dr. Brown provided examination findings and
diagnosed plantar fasciitis and left lower limb reflex sympathetic dystrophy. He indicated that
appellant was to continue with her restrictions.
In a May 8, 2017 disability note, Dr. Brown opined that appellant was disabled from work
until July 6, 2017.
On May 23, 2017 the employing establishment offered appellant the position of a modified
city carrier, effective June 10, 2017. The duties of the position included: up to two hours of casing
mail with the use of a rest bar, intermittent; two hours of delivering partial route, interment; two
to three hours of updating case labels; and approximately one to two hours of driving carriers to
assigned routes/express mail delivery. The employing establishment noted that the physical
requirements included: intermittent standing up to two hours per day; intermittent walking up to
two hours per day; up to three hours of intermittent pushing, pulling, and lifting up to 20 pounds;
and up to eight hours of intermittent reaching, driving, stooping/bending, and twisting.
On June 1, 2017 Dr. Brown opined that appellant was unable to wear regular shoes which
confined her left ankle due to her ankle tendinitis.
On June 2, 2017 appellant rejected the job offer as her physician restricted her from
wearing regular shoes.
In a letter dated June 23, 2017, OWCP advised appellant that it found the job offer suitable
and in accordance with the medical limitations provided by Dr. Nadar. It further noted that the
employing establishment had confirmed that the position remained open and available to her.
OWCP explained that the diagnoses of plantar fasciitis and complex regional pain syndrome had
not been accepted and that Dr. Brown had not provided a rationalized opinion explaining how the
diagnosed conditions were caused or aggravated by the accepted employment injury. It afforded
appellant 30 days to accept the position or provide her reasons for refusal. OWCP advised her that
an employee who refuses an offer of suitable work, without reasonable cause, is not entitled to
further compensation for wage loss or a schedule award. Appellant, however, continued to refuse
to report to duty for the offered position.
On July 28, 2017 Dr. Brown reported that appellant continued to experience pain and
swelling and some plantar fascial changes. He opined that she appeared to have developed
complex regional pain syndrome/reflex sympathetic dystrophy based on her numbness, weakness
extending up the left knee, pitting edema, and color changes. Dr. Brown opined that appellant
could return to a sedentary job with limited walking and standing and ability to elevate and rest
her left lower extremity.
In a letter dated September 25, 2017, OWCP advised appellant that her refusal of the
offered position was not justified. It afforded her an additional 15 days to accept the offered
position.4
By decision dated November 30, 2017, OWCP terminated appellant’s entitlement to wageloss compensation and entitlement to schedule award benefits, effective that date, finding that she
4

The Board notes that OWCP issued a notice dated November 7, 2017 referencing a September 25, 2017 job offer
from the employing establishment and affording appellant 30 days to accept the position.

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had refused an offer of suitable work. It found that Dr. Nadar’s report constituted the weight of
the medical evidence regarding appellant’s work tolerances and limitations.
In a letter postmarked December 29, 2017, received by OWCP on January 2, 2018,
counsel, requested a telephonic hearing before an OWCP hearing representative.
A January 2, 2018 MRI scan of the left ankle revealed no acute fracture, anterior talofibular
ligament remote tearing, and peroneus brevis tendon split tearing.
Dr. Brown, in a March 2, 2018 report, detailed the injury history and examination findings.
He diagnosed small joint effusions and tendinitis, which limited her ability to walk, stand, and
deliver mail. Dr. Brown reported that appellant periodically experienced lower extremity
numbness. He further noted that a January 2018 MRI scan revealed anterior talofibular ligament
remote tear and peroneus brevis tendon split tear, which he opined explained her instability when
standing and walking, as well as her endurance and balancing issues. Dr. Brown concluded that
appellant was capable of working a sedentary position which required limited walking and
standing, and which would allow appellant to elevate her left lower extremity to prevent worsening
her tendon tear.
In progress notes dated March 12 and May 9, 2018, Dr. Brown provided examination
findings and reviewed diagnostic tests. He diagnosed left peroneal tendon tear, plantar fasciitis,
left lower limb complex regional pain syndrome, and left ankle anterior talofibular ligament sprain.
Dr. Brown noted that appellant was not working at that time.
A telephonic hearing was held before an OWCP hearing representative on May 30, 2018.
In a June 13, 2018 report, Dr. Brown noted that appellant had been his patient since 2014
and had a history of complex regional pain syndrome/reflex sympathetic dystrophy and left ankle
ligament injury. Due to her severe pain, sensitivity, and swelling, he instructed her to refrain from
wearing closed-toed shoes. Dr. Brown indicated this was likely a permanent restriction.
By decision dated July 13, 2018, OWCP’s hearing representative affirmed the
November 30, 2017 termination decision. He found that reports from Dr. Brown were insufficient
to outweigh the well-rationalized opinion of Dr. Nadar.
LEGAL PRECEDENT
Section 8106(c)(2) of FECA provides that a partially disabled employee who refuses to
seek suitable work or refuses or neglects to work after suitable work is offered to, procured by, or
secured for him or her is not entitled to compensation.5 Once OWCP accepts a claim, it has the
burden of justifying termination or modification of compensation benefits under section 8106(c)
for refusing to accept or neglecting to perform suitable work.6 The Board has recognized that

5

5 U.S.C. § 8106(c)(2).

6

M.W., Docket No. 17-1205 (issued April 26, 2018); Howard Y. Miyashiro, 51 ECAB 253 (1999).

4

section 8106(c) serves as a penalty provision as it may bar an employee’s entitlement to future
compensation and, for this reason, will be narrowly construed.7
To justify termination, OWCP must show that the work offered was suitable and that
appellant was informed of the consequences of her refusal to accept such employment.8 According
to its procedures, a job offer must be in writing and contain a description of the duties to be
performed and the specific physical requirements of the position.9 20 C.F.R. § 10.51610 provides
that an employee who refuses or neglects to work after suitable work has been offered or secured
for the employee has the burden of establishing that such refusal or failure to work was reasonable
or justified, and shall be provided with the opportunity to make such showing before a
determination is made with respect to termination of entitlement to compensation.11
The determination of whether an employee is capable of performing modified-duty
employment is a medical question that must be resolved by probative medical opinion evidence.12
All medical conditions, whether work related or not, must be considered in assessing the suitability
of an offered position.13
ANALYSIS
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective November 30, 2017, due to
her refusal of an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
Initially, OWCP accepted the claim for left ankle and knee sprains, and subsequently
expanded acceptance of the claim to include left foot tendon rupture. In subsequent progress notes
appellant’s treating physician, Dr. Brown, diagnosed the additional conditions of plantar fasciitis
and complex regional pain syndrome/reflex sympathetic dystrophy.
On October 14, 2016 OWCP prepared a statement of accepted facts for the second opinion
physician, Dr. Nadar, which listed appellant’s accepted conditions of left ankle, knee sprains, and
left foot tendon rupture. It requested that Dr. Nadar address whether the accepted conditions had
resolved and whether appellant could return to work in the offered position for which there was a
job description provided. Dr. Nadar opined that the accepted conditions had completely resolved
and that she was capable of returning to work.

7

P.C., Docket No. 18-0956 (issued February 8, 2019); H. Adrian Osborne, 48 ECAB 556 (1997).

8

M.W., supra note 6; T.S., 59 ECAB 490 (2008); Ronald M. Jones, 52 ECAB 190 (2000).

9

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to Work, Chapter 2.814.4(a)
(June 2013).
10

20 C.F.R. § 10.516.

11

See P.C., supra note 7; Camillo R. DeArcangelis, 42 ECAB 941 (1991).

12

See M.W., supra note 6; Gloria J. Godfrey, 52 ECAB 486 (2001); Robert Dickerson, 46 ECAB 1002 (1995).

13

See M.E., Docket No. 18-0808 (issued December 7, 2018); S.Y., Docket No. 17-1032 (issued November 21,
2017); Mary E. Woodward, 57 ECAB 211 (2005).

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The Board has held that all conditions, whether work related or not, must be considered in
assessing the suitability of an offered position.14 Although the SOAF neglected to list the
unaccepted concurrent conditions of plantar fasciitis and complex regional pain syndrome/reflex
sympathetic dystrophy, both were specifically addressed by Dr. Nadar. Upon his review of
appellant’s history, the medical record, and his examination, he indicated that the appellant had
been treated for plantar fasciitis, but opined citing diagnostic testing, that it had since resolved. He
also referenced the complex regional pain syndrome/reflex sympathetic dystrophy due to
appellant’s subjective complaints. He opined, however, that he could not identify that diagnosis
during his physical examination and that there was no supportive objective testing and therefore
he concluded that he did not agree that appellant had complex regional pain syndrome/reflex
sympathetic dystrophy. The Federal (FECA) Procedure Manual provides that an OWCP referral
physician’s findings, be it a second opinion or impartial medical evaluation, must be based on the
factual underpinnings of the claim.15 Despite the fact that OWCP did not include the concurrent
diagnoses in the SOAF, the second opinion physician, Dr. Nadar had been provided with the prior
medical evidence of record and therefore he had knowledge of and fully addressed the two
concurrent conditions, finding the plantar fasciitis resolved and that complex regional pain
syndrome/reflex sympathetic dystrophy was non-existent. As such, his opinion relative to the
appellant’s ability to return to work contemplated these concurrent conditions.16
Subsequent reports were submitted from Dr. Brown regarding his length of treatment and
a reiteration a history of plantar fasciitis and complex regional pain syndrome/reflex sympathetic
dystrophy. The Board finds that these reports are insufficient to outweigh the well-rationalized
report of Dr. Nadar who addressed both the accepted and concurrent conditions.
The Board finds that OWCP properly accorded the weight of medical opinion with
Dr. Nadar who reported that appellant no longer had residuals or disability as a result of the
November 20, 2013 employment injury. Dr. Nadar based his opinion on a proper factual and
medical history and physical examination findings and provided medical rationale for his opinion
that she did not have a current residual injury or work limitations and could return to work. The
Board finds that Dr. Nadar provided a well-rationalized opinion based on medical evidence
regarding her November 20, 2013 employment injury. Accordingly, OWCP properly relied on his
November 16, 2016 second opinion relative to work tolerances and limitations in terminating
appellant’s entitlement to wage-loss compensation and schedule award compensation benefits
effective the date she refused an offer of suitable work.17

14

E.G., Docket No. 12-1011 (issued November 28, 2012)

15
Federal (FECA) Procedure Manual, Part 2 -- Claims, Statement of Accepted Facts, Chapter 2.810.11a
(September 2019).
16

Compare S.Y., Docket No. 17-1032 (issued November 21, 2017).

17

See A.F., Docket No. 16-0393 (issued June 24, 2016).

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CONCLUSION
The Board finds that OWCP has met its burden of proof to terminate appellant’s wage-loss
compensation and entitlement to schedule award benefits, effective November 30, 2017, due to
her refusal of an offer of suitable work pursuant to 5 U.S.C. § 8106(c)(2).
ORDER
IT IS HEREBY ORDERED THAT the July 13, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: May 6, 2019
Washington, DC

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

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

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

7


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

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

Docket No. 07-581
Issued: May 31, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 26, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ September 27, 2006 merit decision denying her schedule award claim
and a November 22, 2006 nonmerit decision denying her request for further review of the merits
of her claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over these
decisions.1
ISSUES
The issues are: (1) whether appellant sustained any permanent impairment of her arms
which would entitle her to schedule award compensation; and (2) whether the Office properly
denied her request for further review of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

1

The record also contains a September 1, 2006 Office decision regarding appellant’s wage-earning capacity.
Appellant did not appeal this decision to the Board and the matter is not currently before the Board.

FACTUAL HISTORY
On January 20, 2006 appellant, then a 43-year-old mail handler, filed an occupational
disease claim alleging that she sustained injury to her arms and hands due to the repetitive duties
of her job. The Office accepted that she sustained bilateral radial styloid tenosynovitis and
enthesopathy of the left wrist and carpus. Appellant first stopped work on December 30, 2005
and received compensation from the Office for periods of disability.2
The findings of February 9, 2006 nerve conduction studies of both arms revealed normal
results. The findings of May 20, 2006 magnetic resonance imaging scan testing of the left wrist
showed no occult osseous injury, intact ligamentous structures and normal tendinous structures.
Beginning in early 2006, appellant complained of pain in her wrists, including pain in the first
dorsal compartments, left greater than right. Her attending physicians indicated that they did not
see any significant swelling and that carpal tunnel tests were normal.
On July 25, 2006 Dr. Jeffrey Beane, an attending Board-certified orthopedic surgeon,
stated that on examination appellant had symptoms in the volar and radial aspects of the right
wrist, including tenderness over the dorsal compartment of the right wrist and in the palmar
aspect of the right hand. He diagnosed bilateral wrist pain and tenosynovitis and indicated that
appellant had reached maximum medical improvement. Dr. Beane noted that surgery would not
be beneficial. He stated, “I would recommend an impairment rating of three percent for each
hand, left and right given the persistence of her symptoms.”
Appellant filed a claim for schedule award compensation due to her accepted
employment injuries. On September 21, 2006 an Office medical adviser stated that Dr. Beane
did not explain his permanent impairment rating. His review of the medical evidence did not
otherwise show that appellant had any permanent impairment of her arms which would entitle
her to schedule award compensation.
In a September 27, 2006 decision, the Office denied appellant’s claim that she had
permanent impairment of her arms. The Office noted that Dr. Beane’s report was of limited
probative value because he did not explain how his impairment rating that appellant had a three
percent permanent impairment in each arm was supported by the standards of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed. 2001).
In an undated letter received by the Office on October 24, 2006, appellant requested
reconsideration of her claim and contended that her physician properly used the A.M.A., Guides.
She indicated that she did not understand how a physician who did not examine her could rate
her impairment.
In a November 22, 2006 decision, the Office denied appellant’s request for further review
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).

2

In May 2006, appellant returned to work as a modified mail handler for the employing establishment. In a
September 1, 2006 decision, the Office determined that her wages as a modified mail handler fairly and reasonably
represented her wage-earning capacity.

2

LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act3 and its
implementing regulation4 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 to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulation as the appropriate standard for evaluating schedule losses.5
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained bilateral radial styloid tenosynovitis and
enthesopathy of the left wrist and carpus. She claimed entitlement to schedule award
compensation for permanent impairment of her arms.
On July 25, 2006 Dr. Beane, an attending Board-certified orthopedic surgeon, stated that
on examination appellant had symptoms in the volar and radial aspects of the right wrist,
including tenderness over the dorsal compartment of the right wrist and in the palmar aspect of
the right hand. He diagnosed bilateral wrist pain and tenosynovitis, indicated that appellant had
reached maximum medical improvement and stated, “I would recommend an impairment rating
of three percent for each hand, left and right given the persistence of appellant’s symptoms.”
This report, however, is of limited probative value on the relevant issue of the present
case in that it does not contain adequate medical rationale in support of Dr. Beane’s opinion on
appellant’s permanent impairment.6 He failed to provide any explanation of how his assessment
of permanent impairment was derived in accordance with the standards of the A.M.A., Guides.7
Dr. Beane posited that appellant had an impairment rating of three percent for each hand but did
not cite any portion of the A.M.A., Guides to support his opinion. He generally indicated that
this rating was supported by appellant’s symptoms but provided a very limited description of her
symptoms and did not explain how they showed the existence of permanent impairment of the
hands or arms.
Appellant exhibited limited findings on examination and diagnostic testing. The Board is
not otherwise able to determine from the medical evidence that she has any permanent
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

6

See George Randolph Taylor, 6 ECAB 986, 988 (1954) (finding that a medical opinion not fortified by medical
rationale is of little probative value).
7

See James Kennedy, Jr., 40 ECAB 620, 626 (1989) (finding that an opinion which is not based upon the
standards adopted by the Office and approved by the Board as appropriate for evaluating schedule losses is of little
probative value in determining the extent of a claimant’s permanent impairment).

3

impairment of the upper extremities which would entitle her to a schedule award. Moreover, the
Office medical adviser stated on September 21, 2006 that the medical evidence, including the
report of Dr. Beane, did not show that appellant had permanent impairment of her arms which
would entitle her to schedule award compensation.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a) of the Act,8
the Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.9 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file her
application for review within one year of the date of that decision.10 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.11 The Board has held that the submission of evidence
or argument which does not address the particular issue involved does not constitute a basis for
reopening a case.12
ANALYSIS -- ISSUE 2
In support of her October 24, 2006 reconsideration request, appellant argued that she
believed that her physician properly used the A.M.A., Guides. The advancement of this
argument would not require reopening of her claim for further review of the merits because her
argument would not be relevant to the main issue of the present case, i.e., whether the medical
evidence showed that appellant had permanent impairment entitling her to schedule award
compensation. Appellant’s mere opinion regarding the sufficiency of the medical evidence is not
relevant as the main issue of this case can only be resolved by medical evidence. She did not
submit any new medical evidence in connection with her reconsideration request.
In the present case, appellant has not established that the Office improperly denied her
request for further review of the merits of its September 27, 2006 decision under section 8128(a)
of the Act, because the argument she submitted did not show that the Office erroneously applied
or interpreted a specific point of law, advance a relevant legal argument not previously
considered by the Office or constitute relevant and pertinent new evidence not previously
considered by the Office.
8

Under section 8128 of the Act, “[t]he 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).
9

20 C.F.R. § 10.606(b)(2).

10

20 C.F.R. § 10.607(a).

11

20 C.F.R. § 10.608(b).

12

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

4

CONCLUSION
The Board finds that the Office properly determined that appellant did not have any
permanent impairment of her arms which would entitle her to schedule award compensation.
The Board further finds that the Office properly denied appellant’s request for further review of
the merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
November 22 and September 27, 2006 decisions are affirmed.
Issued: May 31, 2007
Washington, DC

David S. Gerson, 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
__________________________________________
G.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PATROL,
Harlingen, TX, Employer
__________________________________________

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

Docket No. 19-1249
Issued: November 22, 2019

Case Submitted on the Record

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

JURISDICTION
On May 16, 2019 appellant filed a timely appeal from an April 11, 2019 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.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the April 11, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id

ISSUE
The issue is whether appellant has met his burden of proof to establish a right ear condition
causally related to the accepted February 20, 2019 employment incident.
FACTUAL HISTORY
On February 25, 2019 appellant, then a 43-year-old border patrol agent, filed a traumatic
injury claim (Form CA-1) alleging that on February 20, 2019 he developed constant ringing and a
“plugged feeling” in his right ear due to a loud high radio frequency in his service vehicle while
in the performance of duty. On the reverse side of the claim form the employing establishment
indicated that appellant was injured in the performance of duty.
In a development letter dated March 5, 2019, OWCP noted that no evidence had been
submitted with his claim. It advised him of the type of factual and medical evidence required to
establish his claim. OWCP afforded appellant 30 days to provide the necessary evidence.
The record contains duty status forms (Form CA-17) dated March 5 and 14, 2019, noting
a date of injury of February 20, 2019 and diagnoses of acoustic right ear trauma and tinnitus.3
In a March 6, 2019 report, Dr. Thomas Martens, an osteopathic physician specializing in
family medicine, diagnosed right ear tinnitus and noise effects due to a February 20, 2019
employment incident. He noted that on February 20, 2019 appellant was in a work vehicle when
the radio blasted into his right ear after it had been turned on, which caused immediate discomfort
and ringing in the right ear. Dr. Martens noted that, since February 20, 2019, appellant had
experienced right ear vibration, difficulty hearing low-pitched noises and sounds, and constant
ringing in his right ear, including when going to sleep and waking up.
By decision dated April 11, 2019, OWCP accepted that the alleged incident occurred, as
alleged, but denied appellant’s claim, finding that the medical evidence was insufficient to
establish a diagnosis causally related to the accepted incident. It noted that tinnitus was not a
medical diagnosis.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation of FECA,5 that an injury was sustained in the performance of duty as alleged, and
that any disability or medical condition for which compensation is claimed is causally related to

3

The signatures of the providers on the forms are illegible.

4

Supra note 1.

5
J.P., Docket No. 19-0129 (issued April 26, 2019); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).

2

the employment injury.6 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.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether fact of injury has been established.8 First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time, place, and in the manner alleged.9 Second, the employee must
submit sufficient evidence, generally in the form of medical evidence, to establish that the
employment incident caused a personal injury.10
Causal relationship is a medical issue and the medical evidence required to establish causal
relationship is rationalized medical evidence.11 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.12
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.13
Regarding tinnitus, the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) provides that tinnitus is not a disease, but
rather a symptom that may be the result of a disease or injury.14
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a right ear
condition causally related to the accepted February 20, 2019 employment incident.

6

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

R.R., Docket No. 19-0048 (issued April 25, 2019); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
8
R.B., Docket No. 17-2014 (issued February 14, 2019); B.F., Docket No. 09-0060 (issued March 17, 2009);
Bonnie A. Contreras, 57 ECAB 364 (2006).
9

S.F., Docket No. 18-0296 (issued July 26, 2018); D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

10

A.D., Docket No. 17-1855 (issued February 26, 2018); C.B., Docket No. 08-1583 (issued December 9, 2008);
D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra note 8.
11

L.D., Docket No. 17-1581 (issued January 23, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

12

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

13

T.H., Docket No. 18-1736 (issued March 13, 2019); Dennis M. Mascarenas, 49 ECAB 215 (1997).

14

D.L., Docket No. 19-0987 (issued October 23, 2019); A.M.A., Guides 249 (6th ed. 2009).

3

In his March 6, 2019 report, Dr. Martens noted that appellant experienced tinnitus and
noise effects in his right ear. He indicated that appellant developed right ear discomfort and ringing
due to being subjected to the radio blasting into his right ear after turning it on in a work vehicle.
However, a medical report is of no probative value if it does not provide a firm diagnosis of a
particular medical condition, or offer a specific opinion as to whether the accepted employment
incident caused or aggravated the claimed condition.15 The Board has previously explained that
tinnitus is not a disease, but rather is a symptom that may be the result of a disease or injury. As
Dr. Martens did not offer a rationalized medical opinion establishing a diagnosed condition
causally related to the accepted employment incident, his report is insufficient to establish
appellant’s claim.16
Appellant also submitted CA-17 forms dated March 5 and 14, 2019, which contained an
illegible signature. The Board has held that reports that bear illegible signatures cannot be
considered probative medical evidence because they lack proper identification that the author is a
physician.17 Therefore, this evidence is of no probative value.
As appellant has not submitted rationalized medical evidence establishing a diagnosed right
ear condition causally related to the February 20, 2019 employment incident, he has not met his
burden of proof to establish his claim.18
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 his burden of proof to establish a right ear
condition causally related to the accepted February 20, 2019 employment incident.

15

See L.E., Docket No. 19-0470 (issued August 12, 2019).

16

M.B., Docket No. 19-0828 (issued September 17, 2019); K.L., Docket No. 18-1029 (issued January 9, 2019).

17

J.P., Docket No. 19-0197 (issued June 21, 2019).

18

K.L., supra note 16.

4

ORDER
IT IS HEREBY ORDERED THAT the April 11, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: November 22, 2019
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
St. Louis, MO, Employer
__________________________________________

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

Docket No. 12-921
Issued: February 4, 2013

Case Submitted on the Record

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

JURISDICTION
On March 19, 2012 appellant filed a timely appeal of a February 15, 2012 decision of the
Office of Workers’ Compensation Programs (OWCP), which affirmed as modified OWCP’s
July 21, 2011 decision, which denied appellant’s request for disability for the period August 19,
2010 through March 29, 2011. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof in establishing that she was
disabled for intermittent times from August 19, 2010 through March 29, 2011 as a result of her
employment-related conditions.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 8, 2010 appellant, then a 45-year-old letter clerk, filed an occupational
disease claim alleging that standing as well as pushing heavy equipment caused chronic left
plantar fasciitis and tarsal tunnel syndrome in the performance of duty. Appellant became aware
of her condition on June 24, 2009. She did not stop work. The employing establishment noted
that she was working her regular-job assignment seven hours a day instead of eight hours.
OWCP accepted the claim for plantar fasciosis, heel spur and posterior tarsal tunnel syndrome
(TTS) on the left.
Appellant submitted CA-7 forms requesting wage-loss compensation for intermittent
disability for the periods: August 5 through 7, 2009, August 4 through 20, 2010, September 20
through 22, 2010, October 4 through 5, 2010, December 22 through 31, 2010, January 17 and
February 14, 2011 and March 24 through 25, 2011.
In an August 18, 2010 disability certificate, Dr. Vincent Sollecito, a podiatrist, noted
treating appellant for a tarsal tunnel release and plantar fasciitis since March 12, 2010.2 He
advised that she could only work four hours per day. On September 8, 2010 Dr. Sollecito
indicated that appellant could work up to six hours a day. In a September 22, 2010 disability
certificate, he noted that appellant could return to work on September 23, 2010. Dr. Sollecito
asked that she be excused from work on September 20 and 21, 2010 due to “intolerable” left foot
pain. He continued to treat appellant.
On October 5, 2010 Dr. David Wu, a Board-certified diagnostic radiologist, noted that on
October 4, 2010 he administered a calcaneocuboid joint injection. An October 5, 2010 return to
work note, signed by an office manager, indicated that appellant could return to work on
October 5, 2010 without restrictions. Dr. Wu provided another note on December 30, 2010
indicating that appellant could return to work on January 3, 2011 with no restrictions.
In a January 17, 2011 return to work note, Dr. Sollecito stated that appellant could work
seven hours per day five days per week. In a January 29, 2011 report, he advised that he treated
appellant on dates that included: August 4, 18, September 8, 30, October 21, November 20,
December 27, 2010 and January 17, 2011. Appellant’s symptoms included a painful left heel,
aggravated by walking and numbness on the dorsum of her feet. July 13, 2010 nerve conduction
studies revealed left lateral plantar neuropathy secondary to entrapment of the posterior tibial
nerve. Dr. Sollecito diagnosed left foot plantar fasciitis, heel spur and superior posterior tunnel
syndrome. He stated that appellant could only work seven hours per day because “her foot
hurts.” Dr. Sollecito explained that, despite release of the inferior and superior tarsal tunnel and
Baxter’s nerve by removal of the heel spur, she had continued weight-bearing pain on hard
surfaces. He stated that “[appellant] does not have this level of discomfort when she is at home
or shopping. It is possible that her particular occupation can aggravate an existing tarsal tunnel
syndrome or with the continued weight bearing on hard surfaces create an environment where
the tarsal tunnel syndrome occurs.” Dr. Sollecito opined that “[i]t is impossible for me to state
with any certainty that her job caused the tarsal tunnel syndrome or plantar fasciitis.” He noted
2

OWCP authorized the March 12, 2010 left foot surgery performed by Dr. Sollecito.

2

that appellant did not have the symptoms prior to working. Dr. Sollecito stated that she could
work for seven hours, but had pain. He advised that appellant’s condition could recur as the
nerve can become scarred and recommended that she seek work that would not require standing
for prolonged periods on hard surfaces. Dr. Sollecito opined that her continued responsibilities
on the hard surfaces and the prolonged weight bearing would cause additional pain. A
February 14, 2011 disability slip from him revealed that appellant was under his care for left
tarsal tunnel surgery and she could return to work on February 15, 2011.
In a March 24, 2011 e-mail, the employing establishment, in response to an inquiry from
OWCP regarding whether appellant lost time from work due to the employment injury, noted
that she continued to work regular duty.
In a March 28, 2011 report, Dr. Sollecito indicated that appellant “had to leave work on
Thursday, after three hours. [Appellant’s] foot did hurt on Wednesday, but on Thursday she
actually had to leave because of the pain. [She] denies any trauma. [Appellant] believes [that]
her pain may be related to the cold weather.” Reported findings included a positive Tinel’s sign.
Dr. Sollecito diagnosed postoperative tarsal tunnel decompression and possible entrapment of
lateral branch of calcaneal nerve left foot. He performed a trigger point injection. In a
March 28, 2011 return to work note, Dr. Sollecito stated that he saw appellant that day for pain
related to tarsal tunnel decompression. Appellant was not able to work from March 24
to 29, 2011. In a March 29, 2011 return to work note, Dr. Sollecito indicated that the she could
work seven hours a day five days a week. He repeated this in an April 11, 2011 return to work
note.
In April 5 and 19, 2011 letters, OWCP notified appellant of the type of evidence needed
to support her claims for intermittent compensation. In particular, it noted that Dr. Sollecito
should provide a rationalized medical opinion to explain why she was not able to do full-time
full duty but was able to shop.
In an April 28, 2011 report, Dr. Jeffrey R. Aschenbrenner, a podiatrist, noted caring for
appellant from December 8, 2009 through February 8, 2010. He indicated that she was placed in
a cast on December 17, 2009 for a left foot plantar fascial tear. Dr. Aschenbrenner stated that
when appellant returned to light work on December 21, 2009 she was informed that she could
not work with a cast and was off work until January 5, 2010. On appellant’s next visit to his
office, he placed her off work from January 25 through February 9, 2010 pending results of
nerve studies. Dr. Aschenbrenner stated that appellant’s care was then transferred to another
physician.
By decision dated July 21, 2011, OWCP issued a revised decision and denied appellant’s
claim for compensation for disability for the period December 21, 2009 through April 8, 2011 on
the grounds that the evidence did not contain sufficient rationalized medical evidence showing
work-related disability on the dates and hours claimed.3

3

OWCP issued decisions on May 11, 24 and 25 and June 17, 2011 denying the various dates of compensation for
disability for the period December 21, 2009 through April 8, 2011.

3

Appellant requested a telephonic hearing that was held on December 9, 2011. At the
hearing, she explained that Dr. Aschenbrenner indicated that she could work light duty using a
walking boot but, when she returned to work on December 21, 2009 with a boot, her supervisors
advised that she could not work with the boot and sent her home. Appellant gradually increased
to seven hours per day of light duty in September 2010 and then regular duty. In
November 2010, she could do seven hours regular and one hour light duty and returned to
regular duty in August 2011. Appellant stated that she was denied light duty. She explained
Dr. Sollecitio’s shopping remark pertained to limited grocery shopping and quick trips to Target.
Appellant’s representative noted that appellant’s walking boot did not conform to the employer’s
footwear policy. OWCP received a copy of the employee handbook regarding the employer’s
footwear policy. It also received a copy of a June 22, 2010 letter from the employing
establishment denying appellant’s request for light duty.
In a February 15, 2012 decision, an OWCP hearing representative modified in part and
affirmed in part the July 21, 2011 decision. He found that appellant was entitled to wage-loss
compensation for periods claimed when no light duty was available beginning July 7, 2010. The
hearing representative found that there was insufficient medical evidence to show that she was
either being treated for her accepted condition or was totally disabled due to it on August 19 and
20, September 20, 21 and 22, October 5, 2010 and December 22 through 31, 2010. Appellant
also did not establish entitlement to compensation for the periods January 17, February 14 and
March 24 through 29, 2011.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his claim by the weight of the evidence.4 For each period of disability
claimed, the employee has the burden of establishing that he was disabled for work as a result of
the accepted employment injury.5 Whether a particular injury causes an employee to become
disabled for work and the duration of that disability, are medical issues that must be proved by a
preponderance of probative and reliable medical opinion evidence.6 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 their disability and entitlement to compensation.7
The medical evidence required to establish a causal relationship, generally, is rationalized
medical opinion evidence.8 Rationalized medical opinion evidence is medical evidence which
4

See Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986); Joseph M.
Whelan, 20 ECAB 55 (1968).
5

See Amelia S. Jefferson, supra note 4. See also David H. Goss, 32 ECAB 24 (1980).

6

See Edward H. Horton, 41 ECAB 301 (1989).

7

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

8

See Viola Stanko (Charles Stanko), 56 ECAB 436 (2005); see also Naomi A. Lilly, 10 ECAB 560, 57273 (1959).

4

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,9 must be one of reasonable medical certainty10 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.11
Under FECA, the term disability means the incapacity, because of an employment injury,
to earn the wages that the employee was receiving at the time of injury.12 Disability is thus not
synonymous with physical impairment, which may or may not result in incapacity to earn wages.
An employee who has a physical impairment causally related to a federal employment injury, but
who nevertheless has the capacity to earn the wages he or she was receiving at the time of injury,
has no disability as that term is used in FECA.13
With respect to claimed disability for medical treatment, section 8103 of FECA provides
for medical expenses, along with transportation and other expenses incidental to securing
medical care, for injuries.14 Appellant would be entitled to compensation for any time missed
from work due to medical treatment for an employment-related condition.15 However, OWCP’s
obligation to pay for medical expenses and expenses incidental to obtaining medical care, such
as loss of wages, extends only to expenses incurred for treatment of the effects of any
employment-related condition. Appellant has the burden of proof, which includes the necessity
to submit supporting rationalized medical evidence.16
OWCP’s procedure manual provides that wages lost for compensable medical
examination or treatment may be reimbursed.17 It notes that a claimant who has returned to work
following an accepted injury or illness may need to undergo examination or treatment and such
employee may be paid compensation for wage loss while obtaining medical services and for a
reasonable time spent traveling to and from the medical provider’s location.18 As a rule, no more
than four hours of compensation or continuation of pay should be allowed for routine medical

9

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

10

Id.

11

See William E. Enright, 31 ECAB 426, 430 (1980).

12

20 C.F.R. § 10.5(f).

13

Cheryl L. Decavitch, 50 ECAB 397, 401 (1999).

14

5 U.S.C. § 8103(a).

15

Vincent E. Washington, 40 ECAB 1242 (1989).

16

Dorothy J. Bell, 47 ECAB 624 (1996); Zane H. Cassell, 32 ECAB 1537 (1981).

17

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16
(December 1995).
18

See also Daniel Hollars, 51 ECAB 355 (2000); Jeffrey R. Davis, 35 ECAB 950 (1984).

5

appointments. Longer periods of time may be allowed when required by the nature of the
medical procedure and/or the need to travel a substantial distance to obtain the medical care.19
ANALYSIS
The Board notes that OWCP found that appellant was entitled to wage-loss/disability
compensation for time in which the employing establishment did not provide appropriate light
duty or when she attended medical appointments with the exception of the following periods:
August 19 and 20, September 20, 21, 22, October 5 and December 22 through 31, 2010,
January 17, February 14 and March 24 through 29, 2011.20
Regarding the dates of August 19 and 20, 2010, the most relevant report includes an
August 18, 2010 disability certificate from Dr. Sollecito, advising that appellant could only work
four hours per day. The Board notes that she received compensation for this routine medical
appointment on August 18, 2010. The Board notes that there are no medical reports pertaining to
the dates of August 19 and 20, 2010 and there is no rationalized medical evidence explaining the
relationship between the accepted condition and total disability on these specific dates. For
September 20, 21 and 22, 2010 appellant submitted a September 22, 2010 disability certificate
from Dr. Sollecito who indicated that she could return to work on September 23, 2010. He
requested that she be excused from work on September 20 and 21, 2010 due to “intolerable” left
foot pain. The Board notes that appellant’s claim is accepted for left plantar fasciosis, left heel
spur and left posterior tarsal tunnel syndrome. However, Dr. Sollecito does not indicate that he
treated her on September 22, 2010, but merely provided a work excuse. Thus appellant is not
entitled to four hours of compensation for a medical appointment on September 22, 2010, as it
does not indicate that he treated her on that date for her accepted condition. The Board also finds
that the medical evidence is insufficient to establish total disability due to the accepted
conditions on September 20 and 21, 2010. Dr. Sollecito did not provide a rationalized
explanation regarding why appellant was unable to work on those dates due to her accepted
conditions. Although he related that she indicated that her foot pain was intolerable, the Board
has held that when a physician’s statements regarding an employee’s ability to work consist only
of repetition of the employee’s complaints that she hurt too much to work, without objective
findings of disability being shown, the physician has not presented sufficient medical opinion on
the issue of disability or a basis for payment of compensation.21 As noted, appellant’s burden of
proof, includes the necessity to submit supporting rationalized medical evidence.22

19

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8
(November 1998).
20

As indicated, the hearing representative’s February 15, 2012 decision found entitlement to wage-loss
compensation for hours of work that she missed, beginning July 7, 2010, because the employing establishment did
not make appropriate light duty available. This decision does not affect those periods but only dates where appellant
claimed compensation for total disability or where the evidence indicates that she received medical treatment for her
accepted conditions.
21

S.F., 59 ECAB 525 (2008).

22

See supra note 8.

6

Regarding October 5, 2010, Dr. Wu, noted that on October 4, 2010, he performed a
calcaneocuboid joint injection on October 4, 2010. The Board notes that appellant received four
hours of compensation for her routine medical appointment on October 4, 2010. There is no
indication that she was unable to work on October 5, 2010 due to her accepted condition. The
Board also notes that the office manager’s notes cannot be considered as competent medical
evidence as medical opinion evidence may only be provided by a qualified physician.23
For the dates of December 22 to 31, 2010, Dr. Sollecito’s January 29, 2011 report
confirmed that appellant was seen on December 27, 2010 for a painful left heel with burning and
pain aggravated by walking. The Board notes that the accepted conditions include plantar
fasciosis, heel spur and posterior TTS on the left. Dr. Sollecito indicated that he was treating
appellant for her plantar fasciosis, heel spur and posterior TTS. Thus, appellant is entitled to up
to four hours of compensation on December 27, 2010 for the medical appointment. For other
times in this period, Dr. Sollecito did not provide sufficient medical explanation regarding why
appellant was unable to work on specific dates within this period. He noted that she presented
with a painful left heel that was aggravated by walking and numbness on the dorsum of her feet.
While Dr. Sollecito generally noted that appellant could not work for more than seven hours
daily, he did not explain why she was unable to work at all on any particular dates during this
period. As noted, 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.24
Dr. Sollecito also indicated that appellant was seen on January 17, 2011 for the accepted
conditions of plantar fasciosis, heel spur and posterior TTS on the left and thus she is entitled to
compensation for up to four hours on this date. For February 14, 2011, the record contains a
disability slip from Dr. Sollecito. However, Dr. Sollecito merely indicated that appellant was
under his care for the accepted condition. He did not indicate that she was seen on this date for
treatment of an accepted condition. Thus, appellant is not entitled to compensation for lost
wages incidental to a medical appointment. For the date of March 28, 20011, Dr. Sollecito
indicated that she was seen on that date for pain related to her tarsal tunnel decompression. As
this was related to her foot condition, appellant would be entitled to compensation for up to four
hours on this date. The Board notes that these medical records do not offer a rationalized
opinion that she was totally disabled such that she was unable to work for the period March 24
through 29, 2011. Medical evidence which does not offer any opinion regarding the cause of an
employee’s condition is of limited probative value on the issue of causal relationship.25
Other reports submitted by appellant, did not address whether appellant’s accepted
condition caused total disability or whether she was seen for treatment of her accepted conditions
on the aforementioned dates.

23

See 5 U.S.C. § 8101(2). This subsection defines the term “physician.” See also Charley V.B. Harley, 2 ECAB
208, 211 (1949) (where the Board held that medical opinion, in general, can only be given by a qualified physician).
24

See supra note 7.

25

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

7

The Board finds that appellant has failed to submit rationalized medical evidence
establishing that her disability on the remaining dates was causally related to her accepted
employment injury and thus, she has not met her burden of proof.
On appeal, appellant indicated that she did not believe that the hearing representative had
all available documentation. The Board has reviewed the record and there is no evidence to
suggest that the record is incomplete.
Appellant may submit evidence or argument with a written request for reconsideration
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 established entitlement to compensation for her medical
treatment on December 27, 2010 and January 17 and March 28, 2011. However, she did not
establish that she was totally disabled for other specific dates in the periods from August 19,
2010 through March 29, 2011 as a result of her employment-related conditions.
ORDER
IT IS HEREBY ORDERED THAT the February 15, 2012 decision of the Office of
Workers’ Compensation Programs is modified in part and affirmed in part.
Issued: February 4, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Hollywood, FL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 19-1793
Issued: August 7, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On August 27, 2019 appellant, through counsel, filed a timely appeal from a May 22, 2019
merit decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish greater than
one percent permanent impairment of his left upper extremity, for which he previously received a
schedule award; and (2) whether appellant has met his burden of proof to establish any permanent
impairment of his right lower extremity or greater than one percent permanent impairment of his
left lower extremity, for which he previously received a schedule award.
FACTUAL HISTORY
On December 14, 2015 appellant, then a 44-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that on December 12, 2015 he sustained injuries to
his left side and back when his right foot caught and he fell when dismounting from his stool while
in the performance of duty. On February 1, 2016 OWCP accepted the claim for left shoulder joint
sprain, lower back and pelvis contusion, and strain of the muscle, fascia, and tendons of the lower
back.
In a report dated January 5, 2018, Dr. Stuart B. Krost, Board-certified in physical medicine
and rehabilitation, reviewed appellant’s history of injury and the medical record, noting that a
magnetic resonance imaging (MRI) scan had demonstrated mild narrowing at L2-3, central
herniation with mild spondylosis, mild facet arthropathy with mild lateral recess narrowing at L2-3
and L3-4, central herniation with annular fissure at L4-5, and central canal and lateral recess
stenosis. On examination of the lower extremities, he noted decreased sensory function at the left
lower extremity at the L5 dermatomal distribution. On examination of the upper extremities,
Dr. Krost observed mild palpable tenderness at the left shoulder girdle, guarding of the left
shoulder on internal and external rotation secondary to pain, and motor control at 4+/5 of the left
proximal upper extremity secondary to pain.
Referring to the sixth edition American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides),3 Table 15-5, Dr. Krost determined that the diagnosis of
left shoulder sprain, resulted in a default permanent impairment rating of 1 percent. He noted that
the class of diagnosis (CDX) of the shoulder diagnosis was 1. Dr. Krost noted a grade modifier
for functional history (GMFH) of 1 based on a mild problem of pain with vigorous activity, a grade
modifier for physical examination (GMPE) of 1, and a grade modifier for clinical studies (GMCS)
of 1. The net adjustment was zero, resulting in the default permanent impairment rating of 1
percent for the left shoulder condition. Referring to Table 17-4 of the A.M.A., Guides, Dr. Krost
determined that the diagnosis of lumbar disc herniation with chronic left L5 radiculopathy, which
resulted in a default permanent impairment of 12 percent. He then noted that the CDX for the
lumbar diagnosis was 2, with a GMFH of 2 for a moderate pain with normal activity, a GMPE of
2 for diminished sensory examinations in appropriate distributions interfering with activity, and
an inapplicable GMCS. The net adjustment for was zero, resulting in 12 percent permanent
impairment of the lumbar spine.
On February 28, 2018 appellant filed a claim for a schedule award (Form CA-7).
3

A.M.A., Guides (6th ed. 2009).

2

In a development letter dated March 5, 2018, OWCP informed appellant that the medical
evidence of record was insufficient to support his claim because a schedule award could not be
paid for permanent impairment of the spine. It explained, however, that such award could be made
for permanent impairment of the upper or lower extremities caused by an injury to a spinal nerve.
OWCP requested that appellant submit additional medical evidence to support his schedule award
claim pursuant to the A.M.A., Guides4 and The Guides Newsletter, Rating Spinal Nerve Extremity
Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter). It afforded him
30 days to submit this evidence.
On March 30, 2018 OWCP referred the record to Dr. Arthur S. Harris, a Board-certified
orthopedic surgeon serving as a district medical adviser (DMA), and requested that he evaluate
appellant’s permanent impairment under the sixth edition of the A.M.A., Guides. In a report dated
March 29, 2018, Dr. Harris reviewed the medical record, including the report of Dr. Krost. He
found that diagnoses of left shoulder contusion and strain, disc herniation at L4-5, and lumbar
radiculopathy had been established. Using the diagnosis-based impairment (DBI) method with
reference to appellant’s left shoulder condition, Dr. Harris found that, under the sixth edition of
the A.M.A., Guides, Table 15-5, page 401, appellant had one percent upper extremity impairment
for residual problems from a shoulder strain injury. He noted that, as there was no documented
loss of range of motion (ROM), appellant would have zero percent impairment based on the ROM
method, and that as such the DBI method resulted in greater impairment. With reference to
appellant’s right lower extremity condition, Dr. Harris referred to The Guides Newsletter. He
noted that, as appellant had no neurologic deficit in the right lower extremity consistent with
lumbar radiculopathy, appellant had zero percent permanent impairment of the right lower
extremity. With reference to appellant’s left lower extremity, Dr. Harris referred again to The
Guides Newsletter, finding that appellant had one percent impairment of the left lower extremity
for residual problems with mild pain/impaired sensation from his left L5 lumbar radiculopathy.
He explained that his figures differed from Dr. Krost as Dr. Krost had calculated impairment
ratings based on spinal pain, which was not permitted under FECA. Dr. Harris opined that the
date of maximum medical improvement was January 5, 2018.
In a letter dated April 10, 2018, OWCP forwarded the DMA’s March 29, 2018 report to
appellant and requested that Dr. Krost review the report and respond whether he agreed with the
DMA’s calculations, or that he provide an opinion citing to the A.M.A., Guides tables to determine
a calculation in disagreement. Appellant was afforded 30 days for submission of additional
evidence.
By decision dated September 25, 2018, OWCP granted appellant a schedule award for one
percent permanent impairment of the left upper extremity and one percent permanent impairment
of the left lower extremity. The award ran for six weeks from January 5 through
February 15, 2018.
On October 25, 2018 appellant, through counsel, requested a telephonic hearing before a
representative of OWCP’s Branch of Hearings and Review. The hearing was held on
March 12, 2019.

3

On April 15, 2019 OWCP received an electromyogram and nerve conduction velocity
study dated October 31, 2017 which was an essentially normal study, with chronic neuropathic
changes in the musculature commonly innervated by L5 on the left with no ongoing denervation.
By decision dated May 22, 2019, a hearing representative affirmed the September 25, 2018
decision.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA4 and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss of a member 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 has adopted the A.M.A., Guides as the
appropriate standard for evaluating schedule losses.6 As of May 1, 2009, schedule awards are
determined in accordance with the sixth edition of the A.M.A., Guides (2009).7 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.8
In addressing impairment for the upper extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity
to be rated.9 After a CDX is determined (including identification of a default grade), the
impairment class is then adjusted by grade modifiers based on GMFH, GMPE, and GMCS.10 The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).11
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

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

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also id. Chapter 3.700.2 and Exhibit 1 (January 2010).
8

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

9

T.T., Docket No. 18-1622 (issued May 14, 2019).

10

A.M.A., Guides 383-492; see M.P., Docket No. 13-2087 (issued April 8, 2014).

11

Id. at 411.

4

determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).”12
The FECA Bulletin advises:
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM); and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)13
The Bulletin further advises:
“If the medical evidence of record is [in]sufficient for the DMA to render a rating
on ROM where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available
evidence.14
“Upon receipt of such a report, and if the impairment evaluation was provided from
the claimant’s physician, the CE should write to the claimant advising of the
medical evidence necessary to complete the impairment assessment and provide 30
days for submission. Any evidence received in response should then be routed back
to the DMA for a final determination. Should no evidence be received within 30
days of the date of the CE’s letter, the CE should proceed with a referral for a second
opinion medical evaluation to obtain the medical evidence necessary to complete
the rating. After receipt of the second opinion physicians evaluation, the CE should
route that report to the DMA for a final determination.”15
ANALYSIS -- ISSUE 1
The Board finds that the case is not in posture for decision regarding permanent impairment
of appellant’s left upper extremity.
In a report dated January 5, 2018, Dr. Krost indicated that he had utilized the sixth edition
A.M.A., Guides to determine that appellant’s left shoulder sprain resulted in one percent
permanent impairment based upon the DBI rating method. He noted that, regarding ROM of the
left shoulder, appellant had guarding of the left shoulder on internal and external rotation
12

FECA Bulletin No. 17-06 (May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018).

13

Id.

14

E.P., Docket No. 19-1708 (issued April 15, 2020); id.

15

Id.

5

secondary to pain, however, he did not provide ROM measurements. OWCP properly referred
Dr. Krost’s report to its DMA, Dr. Harris. Using the DBI method with reference to appellant’s
left shoulder condition, Dr. Harris found that, under the sixth edition of the A.M.A., Guides, Table
15-5, page 401, appellant had one percent permanent impairment of the left upper extremity for
residual problems from his left shoulder strain, concurring with Dr. Krost’s findings. He noted
that, as there was no documented loss of motion, appellant would have zero percent impairment
based on the ROM method, and that, as such, the DBI method resulted in greater impairment.
Pursuant to FECA Bulletin No. 17-06, if the ROM method of rating permanent impairment
is allowed, after review of the DBI rating, and the ROM findings are incomplete, the DMA should
advise as to the medical evidence necessary to complete the ROM method of rating if the medical
evidence of record is insufficient to rate appellant’s impairment using ROM.
Herein, OWCP did not follow the procedures outlined in FECA Bulletin No. 17-06 after
the DMA advised that there were no documented ROM findings of record to rate appellant’s
permanent impairment utilizing the ROM methodology.16 While OWCP did forward the DMA’s
report to appellant, it did not ask that Dr. Krost clarify whether appellant had a loss of ROM on an
organic basis and if so to provide three measurements of appellant’s left shoulder ROM.
On remand OWCP should obtain the necessary evidence as required under FECA Bulletin
No. 17-06.17 After it obtains the evidence necessary to complete the rating as described above, the
case should be referred to a DMA to independently calculate impairment to the right upper
extremity using both ROM and DBI methods and identify the higher rating.18 If Dr. Krost does
not provide the necessary evidence, OWCP should refer appellant for a second opinion evaluation.
Following this and such further development as deemed necessary, OWCP shall issue a de novo
decision.19
LEGAL PRECEDENT -- ISSUE 2
Neither FECA nor its implementing regulations provide for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole.20 However, a
schedule award is permissible where the employment-related spinal condition affects the upper
and/or lower extremities.21 The sixth edition of the A.M.A., Guides (2009) provides a specific
methodology for rating spinal nerve extremity impairment in The Guides Newsletter. It was
16

See C.T., Docket No. 18-1716 (issued May 16, 2019).

17

J.S., Docket No. 19-0483 (issued October 10, 2019).

18

See J.V., Docket No. 18-1052 (issued November 8, 2018); M.C., Docket No. 18-0526 (issued
September 11, 2018).
19

J.F., Docket No. 17-1726 (issued March 12, 2018).

20

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see B.W., Docket No. 18-1415 (issued March 8, 2019); J.M.,
Docket No. 18-0856 (issued November 27, 2018); N.D., 59 ECAB 344 (2008); Tania R. Keka, 55 ECAB 354 (2004).
21
Id. at § 8107(c); id. at § 10.404(a) and (b); see A.G., Docket No. 18-0815 (issued January 24, 2019); Jay K.
Tomokiyo, 51 ECAB 361, 367 (2000).

6

designed for situations where a particular jurisdiction, such as FECA, mandated ratings for
extremities and precluded ratings for the spine. FECA-approved methodology is premised on
evidence of radiculopathy affecting the upper and/or lower extremities. The appropriate tables for
rating spinal nerve extremity impairment are incorporated in the Federal (FECA) Procedure
Manual.22
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish any permanent
impairment of his right lower extremity or more than one percent permanent impairment of the
left lower extremity, for which he previously received schedule award compensation.
Referring to Table 17-4 of the A.M.A., Guides, Dr. Krost determined that the diagnosis
was lumbar disc herniation with chronic left L5 radiculopathy, which resulted in a default
impairment of 12 percent. He did not provide a specific permanent impairment rating of
appellant’s left lower extremity.
In accordance with its procedures, OWCP properly routed the case record to its DMA,
Dr. Harris, who indicated that he had reviewed Dr. Krost’s January 5, 2018 report. With reference
to appellant’s lumbar spine condition, in his March 29, 2018 report, Dr. Harris correctly noted that
FECA does not allow a schedule award for the spine, though it does allow for schedule awards for
spinal nerve injuries resulting in impairment of the extremities.23 With reference to appellant’s
left lower extremity condition, he referred to The Guides Newsletter, finding that he had one
percent impairment of the left lower extremity for residual problems with mild pain/impaired
sensation from his left L5 lumbar radiculopathy. Dr. Harris found that, with regard to appellant’s
right lower extremity, as appellant had no neurologic deficit in the lower extremity consistent with
lumbar radiculopathy, he would have a zero percent impairment of the right lower extremity.
The Board finds that the DMA properly applied the standards of the A.M.A., Guides and
The Guides Newsletter to the physical examination findings of Dr. Krost. The DMA accurately
summarized the relevant medical evidence including findings on examination, and reached
conclusions about appellant’s conditions which comported with these findings.24 He noted that
the A.M.A., Guides did not allow for an impairment rating based on ROM for this diagnosis. The
DMA properly referred to The Guides Newsletter in calculating appellant’s percentage of
permanent impairment of the lower extremities based on a spinal condition. As his report is
detailed, well rationalized, and based on a proper factual background, his opinion represents the
weight of the medical evidence.25 There is no medical evidence of record utilizing the appropriate
tables of the sixth edition of the A.M.A., Guides or The Guides Newsletter demonstrating a greater
percentage of permanent impairment of the left lower extremity or a ratable permanent impairment
22

Supra note 7 at Chapter 3.700, Exhibit 4 (January 2010).

23

Supra note 21.

24

M.S., Docket No. 19-1011 (issued October 29, 2019); W.H., Docket No. 19-0102 (issued June 21, 2019); J.M.,
Docket No. 18-1387 (issued February 1, 2019).
25

See M.S., id.; D.S., Docket No. 18-1816 (issued June 20, 2019).

7

of the right lower extremity. Accordingly, the Board finds that, as appellant has not submitted
medical evidence establishing greater than one percent impairment of the left lower extremity, or
establishing ratable permanent impairment of the right lower extremity, he has not met his burden
of proof to establishment entitlement to additional schedule award compensation for the lower
extremities.
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.
CONCLUSION
The Board finds that the case is not in posture for decision regarding appellant’s left upper
extremity schedule award. The Board further finds, however, that he has not met his burden of
proof to establish any permanent impairment of his right lower extremity or greater than one
percent permanent impairment of the left lower extremity, for which he previously received a
schedule award.

8

ORDER
IT IS HEREBY ORDERED THAT the May 22, 2019 decision of the Office of Workers’
Compensation Programs is affirmed in part and set aside in part, and the case is remanded for
further proceedings consistent with this decision of the Board.
Issued: August 7, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

9