United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.S., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Sanford, FL, Employer
__________________________________________

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

Docket No. 17-1257
Issued: December 21, 2017

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 19, 2017 appellant, through counsel, filed a timely appeal from a February 6,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant met her burden of proof to establish permanent
impairment of a scheduled member, warranting a schedule award.
On appeal counsel asserts that OWCP’s medical adviser did not properly read and
evaluate the report of appellant’s attending physician.
FACTUAL HISTORY
On April 25, 2011 appellant, then a 45-year-old transportation security officer (screener)
filed a traumatic injury claim (Form CA-1) alleging that she injured her mid to lower back when
pulling and loading luggage on April 23, 2011. On June 13, 2011 OWCP accepted sprain of
back, lumbar region, and lumbosacral spondylosis without myelopathy. Appellant missed
intermittent periods of work thereafter and was paid appropriate compensation. On June 18,
2012 she filed a claim for compensation (Form CA-7) for total disability beginning June 3, 2012.
Appellant was then placed on the periodic compensation rolls.
A March 25, 2013 magnetic resonance imaging (MRI) scan of the thoracic spine
demonstrated disc degeneration at multiple levels of the mid and upper thoracic sine.
Appellant began treatment with Dr. Samy F. Bishai, an orthopedic surgeon, on
March 26, 2013.
Following examination, he diagnosed lumbosacral spondylosis and
degenerative disc disease of the cervical spine and recommended additional studies.
An April 4, 2013 electromyography (EMG) and nerve conduction velocity (NCV) study
of the lower extremities was abnormal with findings suggestive of L2-3 radiculopathy. An
April 15, 2013 cervical spine MRI scan showed osteophyte complexes associated with disc
degeneration, facet arthropathy, and hypertrophy at C5-6 and C6-7 with bilateral neural
foraminal narrowing. April 30, 2013 EMG/NCV studies of the arms were essentially normal.
OWCP referred appellant to Dr. Jonathan D. Black, a Board-certified orthopedic surgeon,
for a second opinion examination. In an August 27, 2013 report, Dr. Black noted his review of
the medical evidence and found that she was neurologically intact on examination. He
diagnosed lumbar degenerative disc disease and opined that appellant’s subjective complaints
outweighed objective findings. Dr. Black concluded that she had no employment-related
disability and could return to work as a transportation security officer.
November 6, 2013 upper extremity EMG/NCV studies demonstrated mild right carpal
tunnel syndrome. On December 23, 2013 appellant began treatment with Dr. Robert Reppy, an
osteopath and an associate of Dr. Bishai. Dr. Reppy provided examination findings and
diagnosed lumbosacral spondylosis, spinal stenosis of the cervical spine, and degenerative disc
disease of the cervical and lumbar spines. Appellant also began pain management in
March 2014 with Dr. Padmaja Yatham, an anesthesiologist.
OWCP determined that a conflict in medical evidence had been created between the
opinions of Dr. Reppy and Dr. Black regarding the accepted conditions and whether appellant

2

continued to be totally disabled. It referred her to Dr. Emmanuel D. Scarlatos, a Board-certified
orthopedic surgeon, for an impartial evaluation.
In an April 29, 2014 report, Dr. Scarlatos noted physical examination findings and
diagnosed cervicalgia with multilevel degenerative arthrosis and disc disease at C5-6 and C6-7,
preexisting and unrelated; multi-level degenerative disc disease and lumbosacral spondylosis at
L3 through S1 without spinal stenosis or nerve root impingement, preexisting, and acute
lumbosacral myofascial strains, resolved. He opined that objective examination findings
supported that appellant had a soft tissue low back injury on April 23, 2011 that had resolved and
noted some degree of symptom magnification. Dr. Scarlatos indicated that any disabling
residuals were not employment related and that the preexisting degenerative disc disease was not
totally disabling. He concluded that appellant was physically capable of resuming her former
duties as a transportation security officer with no restrictions.
In an April 29, 2014 report, Dr. Richard M. Blecha, a Board-certified orthopedic surgeon,
noted diagnoses of lumbar spondylosis, foraminal stenosis at L4-5 and L5-S1, moderate to
severe, cervical spondylosis, cervical stenosis at C5-6 and C6-7, and cervical degenerative disc
disease at C5-6.
On June 3, 2014 OWCP proposed to terminate appellant’s wage-loss compensation and
medical benefits. It found that the special weight of the medical evidence rested with the referee
opinion of Dr. Scarlatos.
In correspondence dated May 28, 2014, received by OWCP on June 5, 2014, appellant
maintained that additional conditions of foraminal stenosis at L4, L5, and S1, moderate to severe
cervical spondylosis, cervical stenosis at C5, C6, and C7, and cervical degenerative disc disease
at C5 and C6 should be accepted. On June 16, 2014 she disagreed with the proposed termination
of benefits.
Dr. Reppy also responded to the proposed termination. In a June 16, 2014 report, he
disagreed with the findings and conclusions of Dr. Black and Dr. Scarlatos and reiterated
diagnoses of lumbar disc disease with radiculopathy, sacroiliitis, cervical stenosis, and
degenerative disc disease of the cervical spine.
In a supplemental report dated August 14, 2014, Dr. Scarlatos reiterated his prior findings
and conclusions.
Dr. Yatham and Dr. Reppy continued to treat appellant.
On August 29, 2014 OWCP again proposed to terminate appellant’s wage-loss
compensation and medical benefits. Appellant again disagreed with the proposed termination
and submitted copious medical evidence. This included a September 15, 2014 report in which
Dr. Harvey Bishow, an orthopedic surgeon, advised that appellant’s many cervical and lumbar
diagnoses were caused by the April 23, 2011 employment injury. Dr. Reppy also again
disagreed with the proposed termination in a September 19, 2014 report.

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On October 2, 2014 OWCP finalized the termination of wage-loss compensation and
medical benefits effective October 3, 2014. Appellant, through counsel, timely requested a
hearing with OWCP’s Branch of Hearings and Review.
In reports dated October 21, 2014 and May 27, 2015, Dr. Reppy reiterated his findings
and conclusions.
A hearing was held on May 12, 2015 regarding the termination of appellant’s wage-loss
compensation and medical benefits.
In an impairment evaluation dated June 9, 2015, Dr. Reppy advised that, for diagnoses of
radiculopathy of the upper and lower extremities and degenerative spondylosis, in accordance
with the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (hereinafter A.M.A., Guides),3 appellant had 22 percent whole person
impairment. He specifically indicated that, regarding her lower extremities, in accordance with
Table 16-11 she had class 1 impairments for motor and sensory loss. Dr. Reppy found modifiers
of 1 for functional history and clinical studies, and applied the net adjustment formula, finding a
class C sciatic nerve impairment. He determined that, under Table 16-12, Peripheral Nerve
Impairment, a class C impairment yielded nine percent permanent impairment of each leg.
Dr. Reppy also found that, under Table 15-21, Peripheral Nerve Impairment, appellant had 13
percent permanent impairment of each arm. He further found that, in accordance with Table
17-4, Lumbar Spine Regional Grid, she had a class 1 impairment for the diagnosis of
degenerative spondylosis, she had nine percent whole person impairment. Dr. Reppy then
converted all impairment to whole person impairment, concluding that appellant had a total 22
percent whole person impairment.
On July 28, 2015 an OWCP hearing representative affirmed the October 2, 2014
termination decision.
In correspondence dated September 28, 2016, counsel inquired about appellant’s
impairment evaluation. By letter dated November 2, 2016, OWCP notified him that it had no
record of receiving a schedule award claim. On December 1, 2016 appellant submitted one page
only of a schedule award claim (Form CA-7). On January 24, 2017 OWCP notified her of the
evidence needed to support her claim for permanent impairment.
By report dated January 25, 2017, Dr. Arthur S. Harris, a Board-certified orthopedic
surgeon and OWCP medical adviser, reviewed the record including Dr. Reppy’s June 9, 2015
report and found that maximum medical improvement had been reached that day. OWCP’s
medical adviser noted that a September 2, 2010 MRI scan of the lumbar spine demonstrated
lumbar disc protrusion at L5-S1. He concluded that, in accordance with the A.M.A., Guides,
appellant had zero percent permanent impairment of the right lower extremity and zero percent
impairment of the left lower extremity. The medical adviser explained that Dr. Reppy did not
rate her spinal nerve impairments in accordance with the approach outlined in The Guides
Newsletter July/August 2009 and, instead, utilized the charts for peripheral nerve impairments.

3

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

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OWCP requested that Dr. Harris further explain his impairment opinions. In a
February 6, 2007 report, Dr. Harris advised that, in accordance with The Guides Newsletter, for
the disc protrusion at L5-S1, based on Dr. Reppy’s report that appellant had mild symptoms
which interfered with activity, she had a functional history modifier of 1 bilaterally. He found
that, with no evidence of either right or left lower extremity neurologic deficit, the physical
examination modifier was 0, and with no electrodiagnostic testing demonstrating lumbar
radiculopathy, clinical studies were also consistent with a 0 modifier bilaterally. OWCP medical
adviser then applied the net adjustment formula and concluded that appellant had zero percent
permanent impairment of each lower extremity.
In a decision dated February 6, 2017, OWCP denied appellant’s schedule award claim,
finding the medical evidence of record insufficient to establish lower extremity permanent
impairment in accordance with the sixth edition of the A.M.A., Guides.
LEGAL PRECEDENT
It is the claimant’s burden of proof to establish permanent impairment of a scheduled
member or function of the body as a result of any employment injury.4
The schedule award provision of FECA,5 and its implementing federal regulations,6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions issued
after May 1, 2009, the sixth edition will be used.8
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, under FECA a schedule award is not payable for injury to the spine.9 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a

4

See Tammy L. Meehan, 53 ECAB 229 (2001).

5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.5a (February 2013); id. at Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010).
9

Pamela J. Darling, 49 ECAB 286 (1998).

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schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.10
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
alternative approach to rating spinal nerve impairments.11 OWCP has adopted this approach for
rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures, which memorializes proposed tables outlined in the
July/August 2009, The Guides Newsletter.12
ANALYSIS
OWCP accepted sprain of back, lumbar region, and lumbosacral spondylosis without
myelopathy. Dr. Reppy, an attending physician, submitted an impairment evaluation dated
June 9, 2015. This was reviewed by Dr. Harris, OWCP’s medical adviser on January 25 and
February 1, 2017. The medical adviser advised that Dr. Reppy did not properly follow the
July/August 2009, The Guides Newsletter. The Board finds that appellant has not established
permanent impairment of a scheduled member of her body.
In his June 9, 2015 impairment evaluation, Dr. Reppy concluded that appellant had 22
percent whole person impairment. However, whole person impairment is not permitted under
FECA.13 Furthermore, Dr. Reppy also rated appellant for a diagnosis of degenerative
spondylosis under Table 17-4, found in The Spine and Pelvis chapter of the A.M.A., Guides.14
As noted, under FECA a schedule award is not payable for injury to the spine.15 Dr. Reppy also
provided an upper extremity impairment rating based on cervical diagnoses which have not been
accepted. Therefore, his ratings for the upper extremity and that specifically for the cervical
spine will be disregarded.16 Dr. Reppy, however, did rate appellant’s lower extremities, finding
nine percent permanent impairment of both legs based on lower extremity radiculopathy. He
reported that, under Table 16-11, she had a mild motor deficit of each lower extremity for a class
1 impairment, identified modifiers of 1 for functional history and clinical studies, and applied the
net adjustment formula. However, rather than utilizing proposed Table 2, he rated appellant
under Table 16-12, Peripheral Nerve Impairment, finding a class 1 impairment of the sciatic
nerve, for nine percent permanent impairment of both legs lower extremities.
10

Thomas J. Engelhart, 50 ECAB 319 (1999).

11

Rozella L. Skinner, 37 ECAB 398 (1986).

12

FECA Transmittal Docket No. 10-0004 (issued January 9, 2010); supra note 8 at Chapter 3.700, Exhibit 1, note
5 (January 2010); The Guides Newsletter is included as Exhibit 4.
13

B.P., Docket No. 08-1457 (issued February 2, 2009).

14

A.M.A., Guides, supra note 3 at 557-601.

15

Supra note 9.

16

See Veronica Williams, 56 ECAB 367 (2005) (a schedule award can be paid only for a condition related to an
employment injury).

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The Board has long held that an opinion which is not based upon the standards adopted
by OWCP and approved by the Board as appropriate for evaluating schedule losses is of little
probative value in determining the extent of a claimant’s impairment.17 Thus, Dr. Reppy’s
opinion is of limited probative value regarding impairment due to the accepted lumbar
conditions.
Dr. Harris, OWCP’s medical adviser, utilized the proposed table and identified a lumbar
disc protrusion at L5-S1 for a class 1 impairment. He then followed the process identified in The
Guides Newsletter and applied grade modifiers, concluding that appellant had no impairment of
either lower extremity based on no electrodiagnostic evidence of radiculopathy and mild
symptoms which did not interfere with activity.18 The Board concludes that appellant has not
established permanent impairment due to the accepted conditions.19
Contrary to counsel’s assertion on appeal, the Board finds that Dr. Harris properly
applied the appropriate portions of The Guides Newsletter as reflected in OWCP procedures, to
Dr. Reppy’s physical findings. There is no probative medical evidence of record to establish
permanent impairment. Therefore, OWCP’s February 6, 2017 decision finding that appellant
had not established permanent impairment to a scheduled member was proper under the facts and
circumstances of this case.20
Appellant may request a schedule award or increased schedule award at any time based
on evidence of a new exposure or medical evidence showing progression of an employmentrelated condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has failed to establish permanent impairment of a
scheduled member, warranting a schedule award.

17

Carl J. Cleary, 57 ECAB 563 (2006).

18

The Board notes that the record contains an April 4, 2013 EMG/NCV study that demonstrated L2-3
radiculopathy. However, The Guides Newsletter instructs that, to be of rating value, electrodiagnostic testing must
be done when a claimant is near maximum medical improvement. The April 4, 2013 study was done more than two
years before Dr. Reppy’s evaluation on June 9, 2015, when Dr. Harris found appellant to be a maximum medical
improvement.
19

See supra note 16.

20

See H.S., Docket No. 16-1624 (issued January 13, 2017).

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ORDER
IT IS HEREBY ORDERED THAT the February 6, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 21, 2017
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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
U.S. POSTAL SERVICE, Tampa, FL, Employer
__________________________________________

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Appearances:
Capp Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1846
Issued: November 21, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 6, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ April 11, 2007 nonmerit decision denying his request for further merit
review of his claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2), the Board has
jurisdiction over this nonmerit decision. The last merit decision of record was the Office’s
March 31, 2004 decision. Because more than one year has elapsed between the last merit
decision and the filing of this appeal on June 6, 2007, the Board lacks jurisdiction to review the
merits of this claim.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
review of the merits of his claim on the grounds that his request was untimely filed and failed to
demonstrate clear evidence of error.
FACTUAL HISTORY
On December 4, 2002 appellant, then a 44-year-old tractor trailer operator, filed a
traumatic injury claim alleging that on the same day a tow motor ran into the upright he was

unloading knocking him into some pallets injuring his back and right arm. On November 13,
2003 the Office denied his claim on the grounds that he did not establish fact of injury or submit
sufficient medical evidence to establish his claim. On December 12, 2003 appellant requested a
review of the written record. On March 31, 2004 the Branch of Hearings and Review issued a
decision affirming the prior decision but modifying the decision finding that appellant had
established the factual aspect of his claim, that the incident occurred as alleged, and that he had a
diagnosed condition but that appellant had failed to establish the causal relationship between the
two. On May 27, 2004 appellant’s counsel submitted additional medical records but did not
request reconsideration
In a January 4, 2007 letter, appellant, through his counsel, requested reconsideration and
stated that enclosures consisting of a December 24, 2006 report from Dr. John Amann and a
statement from appellant were included. Appellant’s letter was addressed to “William Plunkett,
Claims Examiner, ESA/OWCP, P.O. Box 8300, London, KY.” In a February 14, 2007 nonmerit
decision, the Office denied appellant’s request for reconsideration on the grounds that the request
was untimely and that the evidence did not establish clear evidence of error. The decision noted
that the December 24, 2006 letter from Dr. Amann and appellant’s written statement that were
referenced in the request letter, were not submitted into the record.
In a February 22, 2007 letter, appellant, through his attorney, requested reconsideration
stating that the previous enclosures, Dr. Amann’s report and appellant’s statement, were
enclosed with the letter. Appellant’s letter was addressed to “William Plunkett, Claims
Examiner, ESA/OWCP, P.O. Box 8300, London, KY.” By an April 11, 2007 nonmerit decision,
the Office denied appellant’s request for reconsideration on the grounds that it was untimely and
that there was no clear evidence of error. The Office noted that Dr. Amann’s report and
appellant’s written statement were not enclosed with the request letter.
In appellant’s June 6, 2006 appeal to the Board, his attorney stated that he personally
enclosed the attachments and mailed them with the February 22, 2007 request for reconsideration
to the Office.
LEGAL PRECEDENT
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a) of the Federal Employees’ Compensation Act.1
The Office will not review a decision denying or terminating a benefit unless the application for
review is filed within one year of the date of that decision.2 When an application for review is
untimely, the Office undertakes a limited review to determine whether the application presents
clear evidence that the Office’s final merit decision was in error.3 The Office procedures state
that the Office will reopen a claimant’s case for merit review, notwithstanding the one-year filing
limitation set forth in 20 C.F.R. § 10.607, if the claimant’s application for review shows clear

1

5 U.S.C. §§ 8101-8193.

2

20 C.F.R. § 10.607; see also Alan G. Williams, 52 ECAB 180 (2000).

3

Veletta C. Coleman, 48 ECAB 367 (1997).

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evidence of error on the part of the Office.4 In this regard, the Office will limit its focus to a
review of how the newly submitted evidence bears on the prior evidence of record.5
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
which was decided by the Office. The evidence must be positive, precise and explicit and must
manifest on its face that the Office committed an error. Evidence which does not raise a
substantial question concerning the correctness of the Office’s decision is insufficient to establish
clear evidence of error.6 It is not enough merely to show that the evidence could be construed so
as to produce a contrary conclusion. This entails a limited review by the Office of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of the Office. To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
a conflict in medical opinions or establish a clear procedural error, but must be of sufficient
probative value to prima facie shift the weight of the evidence in favor of the claimant and raise
a substantial question as to the correctness of the Office’s decision.7 The Board makes an
independent determination of whether a claimant has submitted clear evidence of error on the
part of the Office such that the Office abused its discretion in denying merit review in the face of
such evidence.8
ANALYSIS
The Office properly determined that appellant failed to file a timely application for
review. The Office’s procedures provide that the one-year time limitation period for requesting
reconsideration begins on the date of the original Office decision. A right to reconsideration
within one year also accompanies any subsequent merit decision on the issues.9 In this case,
appellant’s January 4, 2007 letter requesting reconsideration was submitted more than one year
after the last merit decision of record, March 31, 2003, and thus, it was untimely. Consequently,
he must demonstrate clear evidence of error by the Office in denying his claim for
compensation.10
The issue of whether appellant established clear evidence of error is not in posture for a
decision at this time. Appellant requested reconsideration and submitted enclosures on
4

See Gladys Mercado, 52 ECAB 255 (2001). Section 10.607(b) provides: [The Office] will consider an
untimely application for reconsideration only if the application demonstrates clear evidence of error on the part of
[it] in its most recent decision. The application must establish, on its face, that such decision was erroneous.
20 C.F.R. § 10.607(b).
5

See Nelson T. Thompson, 43 ECAB 919 (1992).

6

Leon J. Modrowski, 55 ECAB 196 (2004); Dorletha Coleman, 55 ECAB 143 (2003).

7

Id.

8

Pete F. Dorso, 52 ECAB 424 (2001); John Crawford, 52 ECAB 395 (2001).

9

Veletta C. Coleman, 48 ECAB 367 (1997).

10

20 C.F.R. § 10.607(b); Donna M. Campbell, 55 ECAB 241 (2004).

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January 4, 2007. The Office stated that it did not receive the enclosures therefore it did not
review the evidence to determine whether it met the clear evidence of error standard. Appellant
requested reconsideration again on February 22, 2007 and included the same enclosures. The
Office claimed to not receive the enclosures and denied appellant’s claim without reviewing the
new evidence.
The Board has found that, in the absence of evidence to the contrary, a letter properly
addressed and mailed in the due course of business, such as in the course of appellant’s counsel’s
practice, is presumed to have arrived at the mailing address in due course.11 The Board has held
that the presumption of receipt under the mailbox rule must apply equally to claimants and the
Office alike.12 Provided that the conditions which give rise to the presumption remain the same,
namely, evidence of a properly addressed letter together with evidence of proper mailing, the
mailbox rule may be used to establish receipt by the Office.13 Appellant’s attorney stated that he
mailed the enclosures with his February 22, 2004 letter. Counsel addressed the letters to
“OWCP, P.O. Box 8300, London, KY 40742.” The identical address used by the Office on its
decisions dated March 31, 2003, February 22 and April 11, 2007. The Office received the letters
requesting reconsideration as decisions were issued in response. As the mailbox rule applies it is
presumed that the Office received the enclosures listed in the letters, Dr. Amann’s December 24,
2006 report and appellant’s written statement. As the Office has not reviewed the evidence that
is presumed to have been received, the case is remanded in order for the Office to review this
new evidence.
CONCLUSION
The Board finds this case to not be in posture for a decision and should be remanded for
further development consistent with this order.

11

Dorothy Yonts, 48 ECAB 549 (1997); see Jeff Micono, 39 ECAB 617 (1988).

12

Larry L. Hill, 42 ECAB 596 (1991).

13

Id.

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ORDER
IT IS HEREBY ORDERED THAT the April 11, 2007 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded to the Office for further
proceedings consistent with this opinion.
Issued: November 21, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Altoona, PA, Employer
__________________________________________

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

Docket No. 07-85
Issued: April 5, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On October 10, 2006 appellant, through counsel, filed a timely appeal from a
September 27, 2006 merit decision of the Office of Workers’ Compensation Programs, which
granted a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the schedule award decision.
ISSUE
The issue is whether appellant has established he has more than a 31 percent impairment
of the right upper extremity, for which he received a schedule award.
FACTUAL HISTORY
On May 4, 2004 appellant, then a 54-year-old carrier technician, filed a traumatic injury
claim alleging that on that date he injured his right shoulder while lifting flats. The Office
accepted the claim for unspecified disorders of the right shoulder bursae and tendons. The
Office authorized right shoulder reconstruction, which was performed on March 22, 2005.
Appellant filed a claim for a schedule award on July 19, 2005 and April 11, 2006.

By decision dated June 6, 2006, the Office denied appellant’s claim on the grounds that
the medical evidence did not establish that he had any permanent impairment causally related to
his accepted right shoulder condition.
In a report dated September 5, 2006, Dr. Michael J. Platto, a Board-certified physiatrist,
provided findings on physical examination. He found a 3 percent impairment for abduction of
111 degrees and a 2 percent impairment for adduction 111 degrees according to Figure 16-43,
page 477; a 7 percent impairment for flexion of 82 degrees, a 0 percent impairment for extension
of 67 degrees using Figure 16-40, page 476; and 2 percent impairment for 64 degrees internal
rotation and 0 percent for 82 degrees external rotation using Figure 16-46, page 479. Dr. Platto
added these loss of range of motion impairments to find a total 14 percent impairment for the
right upper extremity. He opined that appellant had an additional 241 percent impairment of the
right upper extremity for right shoulder arthroplasty implant according to Table 16-27, page
506.2 Dr. Platto then used the Combined Values Chart to determine that a 14 percent impairment
for loss of motion and a 24 percent impairment for right shoulder implant arthroplasty resulted in
a 34 percent impairment of the right upper extremity.3
On September 21, 2006 the Office referred the medical record to an Office medical
adviser for review. In a September 21, 2006 report, the Office medical adviser reviewed the
medical record and opined that appellant had reached maximum medical improvement as of
September 5, 2006. Referring to the fifth edition of the A.M.A., Guides, the Office medical
adviser found a seven percent impairment of the left shoulder for diminished flexion according to
Figure 16-40, page 476, three percent impairment for limited abduction according to Figure
16-43, page 477, a two percent impairment for limited adduction according to Figure 16-43, page
477 and a two percent impairment for diminished internal rotation according to Figure 16-46,
page 479. The medical adviser added these impairments to total 14 percent upper extremity
impairment for loss of motion. He opined that appellant had an additional 20 percent impairment
of the right upper extremity for a hemiarthroplasty implant according to Table 16-27, page 506.
The medical adviser then used the Combined Values Chart to determine that a 14 percent
impairment for loss of motion and 20 percent impairment for hemiarthroplasty implant resulted
in a 31 percent impairment of the right upper extremity.
By decision dated September 27, 2006, the Office granted appellant a schedule award the
period September 5, 2006 to July 13, 2008 based on a 31 percent impairment of the right upper
extremity.

1

Dr. Platto included an additional 20 percent impairment in his report. However, this appears to be a
typographical error as Dr. Platto used 24 percent when using the Combined Values Chart.
2

Table 16-27, page 506 of the fifth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides) is entitled Impairment of the Upper Extremity After Arthroplasty of
Specific Bones or Joints. According to Table 16-27, total implant arthroplasty of the shoulder equals a 24 percent
impairment of the upper extremity.
3

The Board notes combining 24 and 14 pursuant to the Combined Values Chart results in a 35 percent
impairment of the right upper extremity.

2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing federal regulation,5 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides (5th ed. 2001) as the uniform standard
applicable to all claimants.6 Effective February 1, 2001, the fifth edition of the A.M.A., Guides
is used to calculate schedule awards.7
ANALYSIS
The Office accepted that, on June 13, 1998, appellant sustained injury to the right
shoulder bursae and tendons requiring right shoulder reconstruction surgery.
The Office found that appellant had a 31 percent impairment of the right upper extremity
based on the Office medical adviser’s September 21, 2006 report. Both Dr. Platto and the Office
medical adviser found a 14 percent impairment for loss of motion in the right upper extremity
using 3 percent impairment for loss of abduction and a 2 percent impairment for loss of
adduction according to Figure 16-43, page 477, a 7 percent impairment for loss of flexion using
Figure 16-40, page 476 and 2 percent impairment for internal rotation loss using Figure 16-46,
page 479. They both added these impairments to equal 14 percent impairment for the right upper
extremity. Regarding the use of Table 16-27 for right shoulder arthroplasty implant, Dr. Platto
and the Office medical adviser agreed that appellant had 20 percent impairment. However, in
using the Combined Values Chart to determine appellant’s total impairment, Dr. Platto used a 24
percent impairment for right shoulder implant arthroplasty, the maximum allowable at Table 1627. This totals a 35 percent impairment of the right upper extremity when combining the 14
percent impairment for loss of motion with the 24 percent for right shoulder implant arthroplasty.
The Office medical adviser used the Combined Values Chart to determine that 14 percent
impairment for loss of motion and 20 percent impairment for arthroplasty implant resulted in a
31 percent impairment of the right upper extremity.
Both Dr. Platto and the Office medical adviser concluded that appellant had a 14 percent
impairment of the right upper extremity based upon range of motion loss. However, the Office
medical adviser rated appellant at 20 percent impairment for his March 22, 2005 arthroplasty in
accordance with Table 16-27 of the A.M.A., Guides fifth edition, without explanation as to why
he reduced the percentage of impairment allowed by the attending physician. In this regard,
Dr. Platto had assigned a 24 percent impairment for arthroplasty in calculating appellant’s right
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404

6

Id. at § 10.404(a).

7

Id. See Thomas P. Lavin, 57 ECAB ___ (Docket No. 05-1229, issued February 3, 2006); Jesse Mendoza,
54 ECAB 802 (2003).

3

upper extremity impairment. The Board notes that Table 16-27 provides a 30 percent
impairment for “Total Shoulder Resection Arthroplasty and a 24 percent impairment for “Total
Shoulder Implant Arthroplasty. The record is unclear whether the 20 percent impairment
awarded by the Office medical adviser is a typographical error or a miscalculation on his part.
Moreover, as Table 16-27 defines “resection” as a surgical replacement, it is possible the Office
medical adviser might have intended a 30 percent impairment for the arthroplasty. As it is
unclear how the Office medical adviser’s report arrived at the 20 percent impairment rating, the
case must be remanded for the Office medical adviser to explain his impairment rating for
appellant’s right hemiarthroplasty implant. Following this and such necessary further
development, the Office shall issue a de novo decision regarding the percentage of impairment of
appellant’s right upper extremity.
CONCLUSION
The Board finds that this case is not in posture for decision. Further development of the
medical evidence is warranted.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 27, 2006 is set aside and the case is remanded for
further proceedings consistent with the above opinion.
Issued: April 5, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.A., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ORLANDO VA MEDICAL CENTER,
Orlando, FL, Employer
_________________________________________
Appearances:
Alan J. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1090
Issued: March 21, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL
Before:
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On July 12, 2021 appellant through counsel, filed a timely appeal from a July 1, 2021,
merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the
Appellate Boards assigned Docket No. 21-1090.
In a letter dated March 8, 2022, appellant, through counsel requested that the appeal be
dismissed.
The Board has duly considered the matter and concludes that counsel’s request for the
dismissal of the appeal should be granted. Accordingly,

1

In all cases in which a representative has been authorized in a matter before the Board, no cla im f or a f ee f or
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 b y t he B oard .
Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeano r,
subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment o f
fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

IT IS HEREBY ORDERED THAT appellant’s request for the dismissal of the appeal
is granted. The appeal docketed as No. 21-1090 is dismissed.
Issued: March 21, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

2


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF AGRICULTURE, OFFICE
OF THE INSPECTOR GENERAL, Temple, TX,
Employer
__________________________________________

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

Docket No. 10-867
Issued: January 5, 2011

Case Submitted on the Record

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

JURISDICTION
On February 17, 2010 appellant filed a timely appeal from the February 5, 2010 merit
decision of the Office of Workers’ Compensation Programs, which reaffirmed its determination
of wage-earning capacity. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to review the merits of the case.
ISSUE
The issue is whether the Office properly reduced appellant’s compensation to reflect a
capacity to earn wages in the constructed position of contract clerk.
FACTUAL HISTORY
The facts of this case, as set out in the prior appeal, are hereby incorporated by
reference.1 Appellant, a special agent, injured his back on February 21, 1986 while moving
1

Docket No. 09-1241 (issued January 14, 2010) (holding that the Office improperly denied appellant’s request
for reconsideration).

office furniture in the performance of duty. The Office accepted his claim for low back strain
and herniated discs at L3-4 and L4-5. Appellant received compensation for temporary total
disability on the periodic rolls.
On July 11, 2007 the Office reduced appellant’s compensation, effective that date, to
reflect his capacity to earn wages in the constructed position of contract clerk, a sedentary job. It
found that the weight of the medical opinion evidence rested with Dr. William D. Smith, a
Board-certified orthopedic surgeon and Office referral physician.
On October 19, 2007 an Office hearing representative found a conflict in medical opinion
arose between Dr. Smith and Dr. Sidney Schultz, an attending Board-certified orthopedic
surgeon, on whether the position of contract clerk was medically suitable to appellant’s disabled
condition. In a June 29, 2007 report, Dr. Schultz found appellant permanently and totally
disabled from performing any type of gainful employment. The hearing representative set aside
the July 11, 2007 decision and remanded the case for further development of the medical
evidence. As the Office met its burden of proof at the time it issued its decision to reduce
compensation, appellant was not entitled to reinstatement of his compensation benefits.
The Office referred appellant, together with the record and a statement of accepted facts,
to Dr. Sami R. Framjee, a Board-certified orthopedic surgeon, for an impartial medical
evaluation. Dr. Framjee examined appellant on January 9, 2008 and concluded that appellant’s
symptoms were indicative of low back pain with some radiculitis but no true radiculopathy. “In
order to better delineate the patient’s clinical picture, an MRI [magnetic resonance imaging] scan
of the lumbar spine is indicated.” He added: “I strongly feel that an MRI scan will be extremely
helpful to determine the patient’s current medical picture.”
Dr. Framjee attributed appellant’s physical limitations to obesity and poor physical
conditioning unrelated to any employment injury. Asked to review the job description for the
selected position of contract clerk and to indicate if appellant was capable of performing the
duties as described, he responded: “I have reviewed the description of the special agent duties.
It is my opinion that at the present time the above[-]mentioned patient is unable to be gainfully
employed as a special agent, however, it is my opinion the above-mentioned patient could work
at a sedentary desk job but not lifting more than 10 [to] 20 pounds.” He completed the physical
limitations section of a work capacity evaluation.2
On February 5, 2008 the Office requested clarification. It explained that the duties of a
special agent was not an issue, and that the Office wanted Dr. Framjee to clarify his opinion on
the duties of the contract clerk position.
On June 9, 2008 Dr. Framjee reported that an April 2, 2008 MRI scan revealed the
presence of multilevel lumbar spondylosis, primarily at L4-5 but also suggested that he had
severe central canal stenosis. He reevaluated appellant’s history and physical examination, as
performed on April 2, 2008. Dr. Framjee stated that it was his initial impression that appellant’s
symptoms were indicative of pseudoclaudication in the lower extremities that was suggesting
2

Limitations included sitting for eight hours intermittently, walking intermittently for 30 minutes, and standing
intermittently to stretch. Dr. Framjee imposed no restriction on operating a motor vehicle to or from work.

2

spinal stenosis. Dr. Framjee advised: “My plans are to reexamine the patient and determine if
his clinical picture correlates with the MRI scan findings. I will thereafter send you a
supplemental report with my final opinion.” He completed a work capacity evaluation stating:
“Patient at the present time can work at sedate desk job only.”
On August 14, 2008 the Office reduced appellant’s compensation to reflect his capacity
to earn wages in the constructed position of contract clerk. On the following day, it received a
copy of Dr. Framjee’s April 2, 2008 report. Dr. Framjee obtained an MRI scan on April 2, 2008
and examined appellant that same day. He complained of severe low back pain and
pseudoclaudication in both lower extremities with numbness and tingling on the left.
Dr. Framjee found that his symptoms were clearly suggestive of spinal stenosis, and the MRI
scan confirmed that diagnosis. “If the patient’s symptoms are unbearable, then the procedure of
choice would be a lumbar decompression at the L4-L5 level with stabilization.” In the
meantime, he stated that appellant remained temporarily totally disabled.
The Office again asked Dr. Framjee for clarification. On September 15, 2008
Dr. Framjee responded that appellant was unable to return to his date-of-injury job as a special
agent but could work at a sedate desk job lifting no more than 10 to 20 pounds, as he previously
found. He explained that the accepted disc pathology was a contributing factor to appellant’s
spinal stenosis at the L4-5 level.
Appellant requested reconsideration, which the Office denied. The Board subsequently
remanded the case for a merit review.
In a decision dated February 5, 2010, the Office reviewed the merits of appellant’s claim
and reaffirmed the reduction of appellant’s compensation to reflect his capacity to earn wages as
a contract clerk. It found that, while Dr. Framjee advised that appellant was totally disabled in
an April 2, 2008 report, he reported that appellant was capable of working limited duty with a
diagnosis of spinal stenosis.
On appeal, appellant contends that the Office did not meet its burden of proof. He also
argues that the constructed position is not suitable, as Dr. Framjee found him temporarily totally
disabled after reviewing the April 2, 2007 MRI scan.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of his duty.3
“Disability” means the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury. It may be partial or total.4
In determining compensation for partial disability, the wage-earning capacity of an
employee is determined by actual earnings, if actual earnings fairly and reasonably represent his
3

5 U.S.C. § 8102(a).

4

20 C.F.R. § 10.5(f).

3

wage-earning capacity. If the actual earnings of the employee do not fairly and reasonably
represent his wage-earning capacity or if the employee has no actual earnings, his wage-earning
capacity as appears reasonable under the circumstances is determined with due regard to the
nature of his injury, the degree of physical impairment, his usual employment, his age, his
qualifications for other employment, the availability of suitable employment, and other factors or
circumstances which may affect his wage-earning capacity in his disabled condition.5
Once the Office accepts a claim, it has the burden of proof to justify termination or
modification of compensation benefits.6
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, the Secretary shall appoint a third physician who shall
make an examination.7 When there exist opposing medical reports of virtually equal weight and
rationale, and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.8
When the Office secures an opinion from an impartial medical specialist for the purpose
of resolving a conflict in the medical evidence and the opinion from the specialist requires
clarification or elaboration, the Office has the responsibility to secure a supplemental report from
the specialist for the purpose of correcting a defect in the original report. When the impartial
medical specialist’s statement of clarification or elaboration is not forthcoming or if the specialist
is unable to clarify or elaborate on the original report or if the specialist’s supplemental report is
also vague, speculative, or lacks rationale, the Office must submit the case record together with a
detailed statement of accepted facts to a second impartial specialist for a rationalized medical
opinion on the issue in question.9 Unless this procedure is carried out by the Office, the intent of
section 8123(a) will be circumvented when the impartial specialist’s medical report is
insufficient to resolve the conflict of medical evidence.10
ANALYSIS
The Office hearing representative found a conflict between Dr. Smith, the Office referral
orthopedic surgeon, and Dr. Schultz, appellant’s attending orthopedic surgeon, on whether the
selected contract clerk position was medically suitable. Appellant argues that this conflict
existed at the time the Office issued its July 11, 2007 decision to reduce his compensation. The
Office received the last of Dr. Smith’s reports into the record on September 9, 2006. It entered
5

5 U.S.C. § 8115(a).

6

Harold S. McGough, 36 ECAB 332 (1984).

7

5 U.S.C. § 8123(a).

8

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

9

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

10

Harold Travis, 30 ECAB 1071 (1979).

4

Dr. Schultz’s report into the record on July 10, 2007. It was on the next day, July 11, 2007, that
the Office issued its decision to reduce appellant’s compensation.
The hearing representative explained that the Office had met its burden of proof on
July 11, 2007, as the conflict arose subsequent to the wage-earning capacity determination. She
found that appellant was not entitled to reinstatement of his compensation benefits. The Office
did not support the reduction in his compensation because there existed, at the time of its
decision, an unresolved conflict in medical opinion on whether the selected position was
medically suitable.
The Office selected Dr. Framjee, a Board-certified orthopedic surgeon, to resolve this
conflict, but his several reports do not adequately address the issue submitted. It does not appear
that he ever reviewed the position description of the selected position, notwithstanding the
Office’s requests that he do so. When the Office asked him to address whether appellant was
capable of performing the duties of a contract clerk as described, Dr. Framjee instead reviewed
the description of appellant’s position as a special agent and found that he was unable to be
gainfully employed in that position. He did state that appellant could work at a sedentary desk
job not lifting more than 10 to 20 pounds, but he strongly cautioned that an MRI scan was
indicated to adequately determine appellant’s current status.
Dr. Framjee obtained an MRI scan and had an opportunity to reexamine appellant. He
concluded that appellant was temporarily totally disabled with a diagnosis of spinal stenosis.
Two months later, however, Dr. Framjee appeared to change his mind. On June 9, 2008 he
reevaluated the history and physical examination he reported on April 2, 2008. Dr. Framjee was
of the opinion that appellant was not temporarily totally disabled but could return to work in a
sedentary desk job. He did not explain the basis for this change in medical opinion but he again
indicated that he was offering only an interim opinion. Dr. Framjee advised the Office that he
planned to reexamine appellant once more to determine if the clinical picture correlated with the
recent MRI scan findings: “I will thereafter send you a supplemental report with my final
opinion.”
Dr. Framjee never reexamined appellant or adequately clarified his April 2 and June 9,
2008 reports. When the Office asked for further clarification, he simply reported on
September 15, 2008 that appellant was unable to return to his date-of-injury job as a special
agent but could work at a desk job lifting no more than 10 to 20 pounds.
The Board finds that Dr. Framjee’s reports are of diminished probative value and are
insufficient to resolve the conflict between Dr. Smith and Dr. Schultz. His reports were not
responsive to whether appellant had the capacity to perform the duties of the selected position.
Dr. Framjee’s report lacks sound medical rationale. His opinion is not entitled to special weight.
The Board finds that the Office did not meet its burden of proof to reduce appellant’s
compensation. The Board therefore will reverse the Office’s February 5, 2010 decision.

5

CONCLUSION
The Board finds that the Office improperly reduced appellant’s compensation to reflect a
capacity to earn wages in the constructed position of contract clerk. There remains a conflict in
medical opinion.
ORDER
IT IS HEREBY ORDERED THAT the February 5, 2010 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: January 5, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.M., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, FEDERAL CORRECTIONAL
INSTITUTE TERMINAL ISLAND,
San Pedro, CA, Employer
__________________________________________

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

Docket No. 14-602
Issued: July 29, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 16, 2014 appellant filed a timely appeal of a December 3, 2013 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of the case.
ISSUE
The issue is whether appellant has more than 34 percent impairment of his right upper
extremity for which he received a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On January 27, 2012 appellant, then a 39-year-old correctional officer, filed a traumatic
injury claim alleging that he injured his right arm on January 26, 2012 when performing selfdefense training in the performance of duty. The medical evidence indicates that he had a severe
fracture and dislocation of his right wrist in 2000 resulting in surgical open reduction with
internal fixation and an external fixation at the right distal forearm and wrist. A magnetic
resonance imaging (MRI) scan on March 2, 2012 demonstrated severe post-traumatic
osteoarthritis of the distal radius and ulna as well as the first and second row of carpal bones and
a severe degeneration of the triangular fibrocartilage. Appellant underwent nerve conduction
velocity and electromyogram (EMG) on March 14, 2012 which demonstrated left carpal tunnel
syndrome and dysesthesia. OWCP accepted appellant’s claim for sprain of the elbow and
forearm, wrist sprain and temporary aggravation of osteoarthritis of the right wrist on
March 26, 2012.
On May 24, 2012 appellant underwent right wrist fusion due to very severe traumatic
osteoarthritis due to trauma and previous surgery. OWCP accepted the additional conditions of
right carpal tunnel syndrome on August 15, 2012. Appellant underwent a right carpal tunnel
release on September 17, 2012.
Appellant requested a schedule award on July 31, 2013. Appellant’s attending physician,
Dr. Saeed Malekafzali, a Board-certified orthopedic surgeon, completed a report dated July 29,
2013 finding that appellant had reached maximum medical improvement. He noted appellant’s
nonemployment-related wrist injury in 2000, his employment injury on January 26, 2012 and the
wrist fusion on May 24, 2012. Dr. Malekafzali found that appellant had a normal cervical spine,
full range of motion of his shoulders with mild impingement syndrome and strong muscles
around the shoulder girdles with no evidence of muscle atrophy in his arms. Appellant
demonstrated full range of motion of his elbows. His right wrist demonstrated 10 degrees of
extension, negative 10 degrees of volar flexion and radial deviation of negative 5 degrees, ulnar
deviation of 10 degrees and 10 degrees of dorsiflexion. Appellant’s radial carpal, ulnar carpal
and radial and ulnar joints were completely fused with mild tenderness at the ulnar carpal joint.
He also demonstrated grip strength of 50 pounds on the right, his dominant hand and 80 on the
left. Appellant’s hand examination was normal. X-rays of his wrist demonstrated a completely
fused right wrist with a good quality of bone. Dr. Malekafzali found complete ankylosis of the
right wrist in a functional position with one centimeter muscle atrophy of the right forearm
compared to the left and 40 pounds of measurable weakness of the right forearm and hand
compared to the left due to wrist fusion.
Dr. Malekafzali stated that he was applying the fifth and sixth editions of the American
Medical Association, Guides to the Evaluation of Permanent Impairment. He determined that
appellant had one percent impairment due to loss of pronation and three percent impairment due
to loss of supination. Dr. Malekafzali found 30 percent impairment due to ankylosing of his
right wrist. He found upper extremity weakness of 10 percent due to atrophy and loss of grip
strength. Dr. Malekafzali concluded that appellant had 44 percent impairment of the upper
extremity and provided two pages of the fifth edition of the A.M.A., Guides in support of his
conclusion.

2

OWCP referred this report to OWCP’s medical adviser on August 16, 2013. On
August 23, 2013 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon and OWCP medical
adviser, reviewed the medical records and found appellant had 10 degrees of dorsiflexion and 5
degrees of ulnar deviation. He determined that appellant had 34 percent impairment of the right
upper extremity based on his right wrist arthrodesis and carpal tunnel syndrome and reached
maximum medical improvement on July 29, 2013 based on Table 15-3 of the sixth edition of the
A.M.A., Guides.2
By decision dated December 3, 2013, OWCP granted appellant a schedule award for 34
percent impairment of his right upper extremity.
LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment for
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. OWCP evaluates the
degree of permanent impairment according to the standards set forth in the specified edition of
the A.M.A., Guides.5
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).6
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the medical consultant for an opinion concerning the nature and percentage
of impairment in accordance with the A.M.A., Guides with the medical consultant providing
rationale for the percentage of impairment specified.7

2

A.M.A., Guides 397, Table 15-3.

3

5 U.S.C. §§ 8101-8193, 8107.

4

20 C.F.R. § 10.404.

5

For new decisions issued after May 1, 2009, OWCP began using the sixth edition of the A.M.A., Guides.
A.M.A., Guides, 6th ed. (2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and
Permanent Disability Claims, Chapter 2.808.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
6

A.M.A., Guides 411.

7

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).

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ANALYSIS
Appellant’s attending physician, Dr. Malekafzali found that he had 44 percent
impairment of the right upper extremity due to his accepted employment injuries. However, he
applied the fifth edition of the A.M.A., Guides rather than the appropriate edition the sixth. The
sixth edition of the A.M.A., Guides was in effect as of May 1, 2009.8 Dr. Malekafzali’s report is
of limited probative value in determining appellant’s permanent impairment for schedule award
purposes.
OWCP properly referred the medical evidence of record to Dr. Harris for application of
the sixth edition of the A.M.A., Guides. Dr. Harris concluded that appellant had 34 percent
impairment of his right upper extremity based on wrist arthrodesis and carpal tunnel syndrome.
He cited to Table 15-3 of the A.M.A., Guides.9 This table provides that wrist arthrodesis results
in a default impairment of 30 percent with a function position. Dr. Harris did not provide any
explanation of how he reached his impairment rating of 34 percent. He did not address the grade
modifiers or any factors which led him to increase the impairment rating from the default. In
regard to appellant’s carpal tunnel syndrome, Dr. Harris did not reference the correct section of
the A.M.A., Guides, Table 15-21, or in any way calculate this impairment. The Board is unable
to determine how Dr. Harris reached his impairment rating under the sixth edition of the A.M.A.,
Guides.
The Board finds that the case is not in posture for decision as neither of the physicians
properly explained how he arrived at the impairment rating. The Board will thus remand the
case for proper application of the A.M.A., Guides regarding the extent of appellant’s permanent
impairment of the right upper extremity. After such development as it deems necessary, OWCP
shall issue a de novo decision on the extent of the permanent impairment of appellant’s right
upper extremity.
CONCLUSION
The Board finds that this case is not in posture for decision and requires additional
development of the medical evidence by OWCP.

8

An opinion which is not based upon the standards adopted by OWCP and approved by the Board as appropriate
for evaluating schedule losses is of diminished probative value in determining the extent of permanent impairment.
I.F., Docket No. 08-2321 (issued May 21, 2009).
9

A.M.A., Guides 397, Table 15-3.

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ORDER
IT IS HEREBY ORDERED THAT the December 3, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and remanded for further development consistent
with this decision of the Board.
Issued: July 29, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.A., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATION & CUSTOMS
ENFORCEMENT, San Francisco, CA, Employer
__________________________________________

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

Docket No. 15-1937
Issued: January 8, 2016

Case Submitted on the Record

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

JURISDICTION
On September 28, 2015 appellant filed a timely appeal from a July 14, 2015 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from December 8, 2014, the most recent OWCP merit decision, to the filing of this
appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.2
ISSUE
The issue is whether OWCP properly denied appellant’s request for an oral hearing as
untimely filed pursuant to 5 U.S.C. § 8124.
1
2

5 U.S.C. § 8101 et seq.

After issuance of OWCP’s July 14, 2015 decision and also on appeal, appellant submitted new evidence. The
Board, however, is precluded from reviewing evidence which was not before OWCP at the time it issued its final
decision. 20 C.F.R. § 501.2(c).

On appeal, appellant contends that his claim was improperly denied based on a response
from his former supervisor.
FACTUAL HISTORY
On June 10, 2014 appellant, then a 41-year-old technical enforcement officer, filed an
occupational disease claim (Form CA-2) alleging that on May 21, 2014 he first became aware of
his anxiety and stress, and first realized that his conditions were caused or aggravated by his
work duties.
In a May 27, 2014 letter, Dr. Tenessa M. Mackenzie, an attending Board-certified family
practitioner, recommended that appellant be off work for two weeks due to stress and anxiety.
She also recommended medications and counseling. Dr. Mackenzie advised that appellant
should be able to return to work on June 9, 2014.
By letter dated July 3, 2014, OWCP informed appellant of the deficiencies of his claim
and requested additional medical and factual evidence. It also requested that the employing
establishment respond to appellant’s allegations and submit medical evidence, if he had been
treated at its medical facility.
In an August 1, 2014 letter, Jeffrey W. Spada, an acting assistant special agent-in-charge,
responded that, among other things, appellant shared responsibilities with two other positions in
the immediate office and with other employees who all worked to cover the programmatic area.
He was not exposed to stressors beyond the standard level of stress routine for a law enforcement
agency or position. Mr. Spada submitted a copy of appellant’s technical enforcement officer
position.
By decision dated December 8, 2014, OWCP denied appellant’s occupational disease
claim as the evidence failed to establish the factual component of fact of injury.
In an appeal request form dated June 12, 2015, postmarked on June 15, 2015, and
received by OWCP’s Branch of Hearings and Review on June 18, 2015, appellant requested a
telephone hearing with an OWCP hearing representative.
By decision dated July 14, 2015, the Branch of Hearings and Review denied appellant’s
request for an oral hearing as it was untimely filed. It found that the request was not postmarked
within 30 days of the issuance of the December 8, 2014 OWCP merit decision. After exercising
its discretion, the Branch of Hearings and Review further found that the issue in the case could
equally well be addressed through the reconsideration process.
LEGAL PRECEDENT
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his or her claim before a representative of the
Secretary.3 Sections 10.617 and 10.618 of the federal regulations implementing this section of
3

5 U.S.C. § 8124(b)(1).

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FECA provide that a claimant shall be afforded a choice of an oral hearing or a review of the
written record by a representative of the Secretary.4 A claimant is entitled to a hearing or review
of the written record as a matter of right only if the request is filed within the requisite 30 days as
determined by postmark or other carrier’s date marking and before the claimant has requested
reconsideration.5 Although there is no right to a review of the written record or an oral hearing if
not requested within the 30-day time period, OWCP may within its discretionary powers grant or
deny appellant’s request and must exercise its discretion.6 OWCP procedures require that it
exercise its discretion to grant or deny a hearing when the request is untimely or made after
reconsideration under section 8128(a).7
ANALYSIS
The Board finds that OWCP properly determined that appellant’s request for an oral
hearing was untimely filed as it was made more than 30 days after the issuance of OWCP’s
December 8, 2014 merit decision. The June 12, 2015 form, on which appellant requested the
hearing, was postmarked on June 15, 2015. The time limitation to request an oral hearing from
OWCP’s Branch of Hearings and Review expired 30 days after OWCP’s December 8, 2014
decision.8 OWCP, therefore, properly denied appellant’s hearing as a matter of right.
Although appellant’s request for a hearing was untimely, OWCP has the discretionary
authority to grant the request and it must exercise such discretion. In its July 14, 2015 decision,
it properly exercised its discretion by notifying appellant that it had considered the matter in
relation to the issue involved and that additional argument and evidence could be submitted with
a request for reconsideration. The Board has held that the only limitation on OWCP’s authority
is reasonableness. An abuse of discretion is generally shown through proof of manifest error, a
clearly unreasonable exercise of judgment, or actions taken which are contrary to both logic and
probable deductions from established facts.9 In this case, there is no evidence of record that
OWCP abused its discretion by denying appellant’s hearing request. Accordingly, the Board
finds that OWCP properly denied appellant’s request for an oral hearing.
On appeal, appellant contends that his claim was improperly denied based on a response
from his former supervisor who was aware of his condition. As explained, however, the Board
lacks jurisdiction to review the merits of the December 8, 2014 denial. The only decision
properly before the Board on this appeal is the July 14, 2015 nonmerit decision which denied
appellant’s request for an oral hearing as untimely filed.

4

20 C.F.R. §§ 10.616, 10.617.

5

Id. at § 10.616(a).

6

Eddie Franklin, 51 ECAB 223 (1999); Delmont L. Thompson, 51 ECAB 155 (1999).

7

See R.T., Docket No. 08-408 (issued December 16, 2008).

8

The 30-day period for determining the timeliness of an employee’s request for an oral hearing or review
commences the day after the issuance of OWCP’s decision. See Donna A. Christley, 41 ECAB 90 (1989).
9

Samuel R. Johnson, 51 ECAB 612 (2000).

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CONCLUSION
The Board finds that OWCP properly denied appellant’s request for an oral hearing as
untimely filed pursuant to 5 U.S.C. § 8124.
ORDER
IT IS HEREBY ORDERED THAT the July 14, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 8, 2016
Washington, DC

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

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, SOUTHWEST
CARRIER ANNEX, Chicago, IL, Employer
__________________________________________

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

Docket No. 11-1237
Issued: December 5, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On April 26, 2011 appellant, through his attorney, filed a timely appeal of the March 25,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant established a left knee injury in the performance of duty
on March 1, 2010, as alleged.
On appeal, counsel contends that OWCP’s decision is contrary to fact and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 12, 2010 appellant, then a 55-year-old city carrier, filed a traumatic injury
claim (Form CA-1) alleging that on March 1, 2010 he sustained a left knee injury when he fell
while descending steps. In a narrative statement dated August 12, 2010, he related that he
slipped on ice while coming down steps. Appellant sought medical treatment on March 3, 2010
for his swollen left knee.
On the reverse of the Form CA-1, the employing establishment stated that appellant was
in the performance of duty at the time of the March 1, 2010 incident.
In a May 22, 2010 report, Dr. Amaar Malik, a radiologist, stated that a magnetic
resonance imaging (MRI) scan of appellant’s left knee showed moderate to large knee joint
effusion. There was also evidence of osteoarthritis within the patellofemoral and medial femoral
tibial compartments with an associated degenerative tear of the posterior horn of the medial
meniscus.
A July 26, 2010 report from Edward Medical Group contained an illegible signature and
stated that appellant had been treated for left knee pain since March 3, 2010. His preoperative
office visits were related to left knee surgery.
Postoperative left knee arthroscopic discharge instructions dated July 28, 2010 and signed
by a registered nurse and Dr. David M. Burt, a Board-certified orthopedic surgeon, addressed
appellant’s physical therapy.
In an August 24, 2010 form report, Dr. Zaid W. Jabbar, a Board-certified internist, listed
March 3, 2010 as the date of injury. He obtained a history that appellant fell down while
delivering mail at work one week prior to March 3, 2010. Dr. Jabbar advised that he had a left
knee meniscus tear. He indicated with an affirmative mark that the diagnosed condition was
caused or aggravated by an employment activity. It was undetermined as to when appellant
could return to work.
By letter dated September 2, 2010, OWCP advised appellant that the evidence submitted
was insufficient to establish his claim. It requested that he submit factual and medical evidence,
including a rationalized medical opinion from an attending physician which described a history
of injury and provided dates of examination and treatment, findings, test results, a diagnosis
together with medical reasons on why the diagnosed condition was caused or aggravated by the
March 1, 2010 incident.
In an undated form report, Dr. Burt provided a history that on March 10, 2010 appellant
fell down stairs at work. He diagnosed left knee medial meniscus tear and indicated with an
affirmative mark that the diagnosed condition was caused or aggravated by an employment
activity. In an operative report dated July 28, 2010, Dr. Burt indicated that he had performed
arthroscopic partial medial meniscectomy and chondroplasty of the patella, trochlea and medial
femoral condyle to repair appellant’s left knee medial meniscus tear. In reports dated
September 7, 2010, Dr. Burt noted appellant’s July 28, 2010 left knee surgery. He advised that
appellant was totally disabled for work and listed his physical restrictions.

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A report from a physical therapist addressed appellant’s medical treatment on
September 7, 2010.
In an October 15, 2010 decision, OWCP denied appellant’s claim, finding that the
evidence was sufficient to establish that the March 1, 2010 incident occurred as alleged, but the
medical evidence was insufficient to establish an injury causally related to the accepted
employment incident.
By letter dated October 21, 2010 appellant, through his attorney, requested a telephone
hearing.
In a July 22, 2010 report, Dr. Burt noted appellant’s complaint of worsening left knee
pain. He obtained a history of the March 1, 2010 employment incident. Dr. Burt listed his
findings on physical examination of the left knee and reviewed MRI scan results. He diagnosed
a medial meniscus tear and recommended arthroscopic surgery.
Appellant submitted anesthesia records for his left knee surgery.
In a decision dated March 25, 2011, an OWCP hearing representative affirmed the
October 15, 2010 decision. He found that the medical evidence was insufficient to establish that
appellant sustained a left knee injury causally related to the accepted March 1, 2010 employment
incident.2
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an employee of the United
States within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.4 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury of an occupational disease.5
In order to determine whether an employee actually sustained an injury in the
performance of duty, OWCP begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components, which must be considered in
conjunction with one another. The first component to be established is that the employee
2

Following the issuance of the March 25, 2011 OWCP decision, OWCP received additional evidence. However,
the Board cannot consider evidence that was not before OWCP at the time of the final decision. See 20 C.F.R.
§ 501(c)(1); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005);
Rosemary A. Kayes, 54 ECAB 373 (2003).
3

5 U.S.C. §§ 8101-8193.

4

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

5

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 4.

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actually experienced the employment incident or exposure, which is alleged to have occurred.6
In order to meet his burden of proof to establish the fact that he sustained an injury in the
performance of duty, an employee must submit sufficient evidence to establish that he actually
experienced the employment injury or exposure at the time, place and in the manner alleged.7
The second component is whether the employment incident caused a personal injury and
generally can be established only by medical evidence.8 The evidence required to establish
causal relationship is rationalized medical opinion evidence, based upon complete factual and
medical background, showing a causal relationship between the claimed condition and the
identified factors.9 The belief of the claimant that a condition was caused or aggravated by the
employment is insufficient to establish a causal relationship.10
ANALYSIS
OWCP accepted that appellant fell down steps on March 1, 2010 while working as a city
carrier. The Board finds that the medical evidence of record is insufficient to establish that his
left knee condition was caused or aggravated by the March 1, 2010 employment incident.
In an undated form report, Dr. Burt provided a history that on March 10, 2010 appellant
fell down stairs at work. The Board notes that the accepted incident occurred on March 1, 2010
and not March 10, 2010. Moreover, Dr. Burt’s opinion on causal relationship solely consisted of
a “yes” checkmark in response to a question regarding whether appellant’s left knee meniscus
tear was employment related. The Board finds that his report is of diminished probative value
because he failed to provide medical rationale explaining how falling down steps caused the
injury.11 A checkmark response, without further explanation or rationale, is insufficient to meet
this standard.12 None of Dr. Burt’s other reports provided a medical opinion addressing the
causal relationship between appellant’s left knee condition and the accepted employment
incident. He merely addressed his postoperative medical treatment, physical restrictions and
total disability. Medical evidence which does not offer any opinion regarding the cause of an

6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803(2)(a) (June 1995).

7

Linda S. Jackson, 49 ECAB 486 (1998).

8

John J. Carlone, 41 ECAB 354 (1989); see 5 U.S.C. § 8101(5) (injury defined); 20 C.F.R. §§ 10.5(eel), 10.5(q)
(traumatic injury and occupational disease defined).
9

Lourdes Harris, 45 ECAB 545 (1994); see Walter D. Morehead, 31 ECAB 188 (1979).

10

Charles E. Evans, 48 ECAB 692 (1997).

11

See Gloria J. McPherson, 51 ECAB 441 (2000) (the opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty and must be supported
by medical rationale explaining the nature of the relationship between the diagnosed condition and the specific
employment factors identified by the claimant).
12

See Alberta S. Williamson, 47 ECAB 569 (1996); Frederick H. Coward, Jr., 41 ECAB 843 (1990); Lillian M.
Jones, 34 ECAB 379 (1982).

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employee’s condition is of limited probative value.13 For the stated reasons, the Board finds that
Dr. Burt’s reports are insufficient to establish appellant’s claim.
The Board finds that Dr. Jabber’s August 24, 2010 form report provided an inconsistent
and inaccurate history of injury, stating that March 3, 2010 was the date of injury and then
stating that appellant fell down while delivering mail at work one week prior to March 3, 2010.
In addition, the accepted employment incident occurred on March 1, 2010 rather than
March 3, 2010. The Board further finds that Dr. Jabber’s opinion on causal relation is of
diminished probative value. While he indicated with a checkmark that appellant’s left knee
meniscus tear was employment related, he failed to provide any medical rationale explaining
how falling down steps caused the injury.14 As stated, a checkmark response, without further
explanation or rationale, is insufficient to meet this standard.15 The Board finds that Dr. Jabber’s
report is insufficient to meet appellant’s burden of proof.
The May 22, 2010 diagnostic test results of Dr. Malik did not provide a medical opinion
addressing whether the diagnosed left knee conditions were causally related to the March 1, 2010
employment incident. Similarly, the anesthesia records related to appellant’s left knee surgery
did not provide an opinion on causal relation. The Board finds, therefore, that Dr. Malik’s report
and the hospital records are insufficient to establish appellant’s claim.16
The July 26, 2010 report from Edward Medical Group which contained an illegible
signature has no probative value, as it is not established that the author is a physician.17
The September 7, 2010 report signed by a physical therapist cannot constitute competent
medical evidence as a physical therapist is not a “physician” as defined under FECA.18
The Board finds that there is insufficient rationalized medical evidence of record to
establish that appellant sustained a left knee injury causally related to the accepted March 1,
2010 employment incident. He did not meet his burden of proof.
On appeal, appellant’s attorney contended that OWCP’s decision is contrary to fact and
law. For reasons stated above, the Board finds that appellant did not submit sufficient evidence
establishing that he sustained an injury due to the accepted March 1, 2010 employment incident.
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.
13

A.D., 58 ECAB 149 (2006); Jaja K. Asaramo, 55 ECAB 200 (2004); Michael E. Smith, 50 ECAB 313 (1999).

14

See Gloria J. McPherson, supra note 11.

15

See cases cited supra note 12.

16

See cases cited supra note 13.

17

See D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988).

18

See 5 U.S.C. § 8101(2); A.C., Docket No. 08-1453 (issued November 18, 2008).

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CONCLUSION
The Board finds that appellant has failed to establish that he sustained a left knee injury
in the performance of duty on March 1, 2010, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the March 25, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 5, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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