United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
U.S. POSTAL SERVICE, ELMIRA POST
OFFICE, Elmira, NY, Employer
__________________________________________

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

Docket No. 20-0552
Issued: May 14, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On January 13, 2020 appellant, through counsel, filed a timely appeal from a November 12,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of her left lower extremity, warranting a schedule award.

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.

FACTUAL HISTORY
On August 8, 2011 appellant, then a 42-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that on that date she injured her left ankle when she stepped into a hole
covered with grass while in the performance of duty. On the reverse side of the claim form, the
employing establishment indicated that she stopped work on August 8, 2011 and did not return.
OWCP accepted the claim for left ankle sprain.
A December 10, 2011 x-ray of appellant’s left foot was interpreted by Dr. John
Chotkowski, a Board-certified radiologist, as normal.
A January 28, 2012 magnetic resonance imaging (MRI) scan of appellant’s left ankle
revealed a mild sprain of the talofibular ligament, mild tendinopathy of the peroneus longus and
brevis tendon without a tear with associated edema in the overlying peroneal retinaculum, and
sequela of mild inversion-type injury.
In a June 27, 2012 report, Dr. Beth Dollinger, a Board-certified orthopedic surgeon,
indicated that appellant injured her ankle at work on August 8, 2011. Appellant presented with
left ankle pain and swelling. Dr. Dollinger conducted a physical examination and diagnosed
peroneal tendinitis. She opined that appellant’s peroneal tendinitis was causing pain and prevented
appellant from returning to work, which required ascending and descending stairs, and walking on
uneven ground.
On September 21, 2012 appellant filed a schedule award claim (Form CA-7).
In a December 17, 2012 narrative report Dr. Karen Garvey, Board-certified in preventive
and occupational medicine, indicated that she reviewed appellant’s medical records and history of
injury. Appellant presented with left ankle pain, swelling, and weakness and indicated that she
could not perform everyday activities. Physical examination of her left ankle revealed a restricted
range of motion (ROM), decreased sensation, and tenderness upon palpation. Using the diagnosisbased impairment method (DBI) of the sixth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (A.M.A., Guides),3 Dr. Garvey indicated that she used
the ankle sprain diagnosis and assigned a class of diagnosis (CDX) of 3, a grade modifier for
functional history (GMFH) of 1, a grade modifier for physical examination (GMPE) of 0, and a
grade modifier for clinical studies (GMCS) of 1, finding 14 percent permanent impairment of
appellant’s left ankle. Using the ROM method, she indicated that appellant’s mild plantar flexion
impairment correlated with 7 percent impairment and appellant’s mild extension impairment
correlated with 7 percent impairment, totaling 14 percent permanent impairment. Dr. Garvey also
calculated a sural periphery nerve impairment of 3 percent, and calculated a total of 17 percent left
lower extremity permanent impairment. She indicated that appellant reached maximum medical
improvement (MMI) on February 9, 2012.
In a July 31, 2013 report, Dr. Henry Magliato, a Board-certified orthopedic surgeon serving
as OWCP’s district medical adviser (DMA), reviewed appellant’s history of injury and medical

3

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

2

records. He indicated that she reached MMI on December 17, 2012 and sustained 14 percent left
lower extremity impairment based on Dr. Garvey’s calculations.
On March 4, 2014 OWCP requested that Dr. Magliato clarify his report as he had indicated
that appellant sustained 14 percent left lower extremity impairment, but had not explained the
discrepancy with Dr. Garvey’s calculation that she sustained 17 percent left lower extremity
permanent impairment.
In a March 10, 2014 letter, Dr. Andrew Merola, a Board-certified orthopedic surgeon
serving as a DMA, indicated that Dr. Magliato failed to take into consideration Dr. Garvey’s three
percent sural peripheral nerve impairment rating. He stated that he reviewed appellant’s file, and
that, within a reasonable degree of medical certainty, Dr. Garvey’s calculations were correct and
appellant sustained 17 percent left lower extremity permanent impairment.
In a development letter dated December 9, 2015, OWCP informed appellant that additional
evidence was needed to establish her schedule award claim. It advised her of the type of additional
medical evidence needed to establish her claim.
By decision dated June 16, 2016, OWCP denied appellant’s schedule award claim, finding
that the evidence of record was insufficient to establish permanent impairment of a scheduled
member or function of the body.
On June 24, 2016 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review.
By decision dated January 9, 2017, the hearing representative vacated OWCP’s June 16,
2016 decision and instructed OWCP to refer a statement of accepted facts (SOAF) and appellant’s
medical records to another DMA to determine if her left lower extremity permanent impairment
was causally related to her accepted left ankle sprain and to clarify whether a second opinion
examination was needed to determine if her left lower extremity permanent impairment was
causally related to her accepted left ankle sprain.
In a February 12, 2017 report, Dr. Jovito Estaris, a Board-certified occupational medicine
physician serving as OWCP’s DMA, indicated that he reviewed appellant’s medical records and
SOAF. He reviewed her history of injury and indicated that her condition was accepted for a left
ankle sprain. Dr. Estaris opined that Dr. Garvey incorrectly applied the A.M.A., Guides to
calculate appellant’s permanent impairment rating. Utilizing the DBI method of the A.M.A.,
Guides, he used her diagnosis of an ankle strain and peroneal tendinitis and assigned a CDX of 1
and the default value of 5 because she had mild motion deficits. Dr. Estaris assigned a GMFH of
1, a GMPE of 1, and he calculated a total five percent permanent impairment of appellant’s ankle.
In a separate calculation he used the diagnosis of medial or lateral plantar peripheral nerve
impairment and assigned CDX 1 due to mild sensory deficit, a GMFH of 1 due to pain with
strenuous activity, a GMPE of 1 due to decreased sensation, and a GMCS of zero due to no clinical
studies supporting sensory deficit. Dr. Estaris calculated a one percent peripheral nerve permanent
impairment and then calculated a total of six percent permanent impairment of appellant’s left
lower extremity. He indicated that the ROM method was not available for her diagnosis.

3

On March 8, 2017 OWCP requested clarification from Dr. Estaris regarding whether
appellant’s permanent impairment was due to her accepted ankle sprain or due to peroneal
tendinitis and whether a second opinion examination was needed. It specifically asked him to
review Dr. Dollinger’s June 27, 2012 report.
In a March 28, 2017 report, Dr. Estaris reviewed appellant’s history of injury including
Dr. Dollinger’s report and indicated that appellant was initially diagnosed with peroneal tendinitis
on March 1, 2012 based on persistent symptoms of pain, swelling, and tenderness over the
peroneal tendon. He indicated that the diagnosis was supported by appellant’s January 28, 2012
left ankle MRI scan which showed peroneal tendinopathy. Dr. Estaris stated that the typical
duration of a mild ankle sprain was four to six weeks when appropriately treated, and peroneal
tendinitis was added to explain persistent symptoms. He indicated that, since he provided an
impairment rating for the unaccepted conditions of tendinitis of peroneal tendons and plantar
peripheral nerve impairment, a reevaluation by an independent medical examiner (IME) was
indicated.
In an August 5, 2017 DMA report, Dr. Estaris indicated that he reviewed Dr. Shuler’s
June 8, 2017 medical report. He explained that appellant’s injury started as an ankle sprain,
however, her pain persisted, and when pain persists over six weeks, there is a complicating
condition like tendinitis or ankle instability. Dr. Estaris opined that her resulting tendinitis was
causally related to her accepted ankle sprain.
In a November 24, 2017 letter, OWCP sought clarification from Dr. Garvey. It requested
that Dr. Garvey review the reports by Dr. Estaris and Dr. Shuler and provide comments on areas
of agreement and disagreement.
On December 8, 2017 counsel asserted that Dr. Garvey had retired and would be unable to
provide additional information. He requested that OWCP proceed with a schedule award decision.
By decision dated December 13, 2017, OWCP denied appellant’s schedule award claim,
finding that the evidence of record was insufficient to establish permanent impairment of a
scheduled member or function of the body.
On December 19, 2017 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. A hearing was held on June 4, 2018.
By decision dated July 25, 2018, the hearing representative vacated OWCP’s December 13,
2017 decision. He expanded acceptance of appellant’s claim to include tendinitis and instructed
OWCP to return her case to the second opinion examiner to determine if she sustained a permanent
impairment of her left lower extremity due to her newly accepted condition. The hearing
representative noted that Dr. Shuler’s second opinion examination stated that a SOAF referred to
medical records that he was unable to review, and it instructed for OWCP to provide him with
appellant’s medical records, including DMA opinions, impairment ratings, and diagnostic studies.
On August 24, 2018 OWCP officially updated her list of accepted conditions to include left ankle
tendinitis.
On February 15, 2019 OWCP requested an addendum report from Dr. Shuler. It informed
him that appellant’s claim had additionally been accepted for left ankle tendinitis and requested
4

that he determine whether she sustained a permanent impairment due to her newly accepted
condition.
In a supplemental report dated February 25, 2019, Dr. Shuler indicated that he did not
reexamine appellant. He stated that additional documents reviewed included OWCP’s
February 15, 2019 SOAF and Dr. Estaris’ February 12, March 28, and August 5, 2017 medical
reports. Dr. Shuler indicated that the acceptance of the additional condition of tendinitis did not
change his previous assessment that appellant sustained zero percent permanent impairment based
on his physical examination from his June 8, 2017 report that indicated that she had no significant
abnormal findings of a muscle or tendon injury at MMI. He stated that, if there was a need for
further objective evaluation of her, an additional examination by a qualified examiner would be
appropriate.
In an April 7, 2019 report, DMA Dr. Estaris indicated that he reviewed the SOAF and
appellant’s medical records. He reviewed her history of injury and using the DBI method of the
A.M.A., Guides, he referred to Table 16-2 on page 501 and assigned the diagnosis of ankle sprain
with tendinitis. Dr. Estaris assigned CDX zero due to no significant abnormalities at MMI, and he
stated that appellant’s pain questionnaire answers were inconsistent with physical findings. He
calculated a zero percent left lower extremity permanent impairment. Using the ROM method,
Dr. Estaris stated that Dr. Shuler’s physical findings indicated that appellant’s ankle ROM were
symmetric, and therefore she had zero percent left lower extremity permanent impairment. He
indicated that she reached MMI on June 8, 2017.
By decision dated May 9, 2019, OWCP denied appellant’s schedule award claim, finding
that the evidence of record was insufficient to establish a permanent impairment of a scheduled
member or function of the body.
On May 15, 2019 appellant, through counsel, requested an oral hearing before a
representative of OWCP’s Branch of Hearings and Review. A hearing was held on
August 26, 2019.
By decision dated November 12, 2019, an OWCP hearing representative affirmed OWCP’s
May 9, 2019 decision.
LEGAL PRECEDENT
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 for all claimants, OWCP has adopted the A.M.A.,
Guides as the uniform standard applicable to all claimants and the Board has concurred in such

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

5

adoption.6 As of May 1, 2009, the sixth edition of the A.M.A., Guides, published in 2009, is used
to calculate schedule awards.7
The sixth edition of the A.M.A., Guides provides the DBI method of evaluation utilizing
the World Health Organization’s International Classification of Functioning, Disability and Health
(ICF).8 Under the sixth edition, the evaluator identifies the impairment for the diagnosed condition
CDX, which is then adjusted by grade modifiers of GMFH, GMPE, and GMCS. The net
adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).9 Evaluators are
directed to provide reasons for their impairment rating choices, including the choices of diagnosis
from regional grids and calculations of modifier scores.10
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to a DMA for an opinion concerning the percentage of permanent impairment
using the A.M.A., Guides.11
FECA provides that, if there is disagreement between an OWCP-designated physician and
the employee’s physician, OWCP shall appoint a third physician who shall make an examination.12
For a conflict to arise, the opposing physicians’ viewpoints must be of virtually equal weight and
rationale.13 Where OWCP has referred the case to an impartial medical examiner to resolve a
conflict in the medical evidence, the opinion of such a specialist, if sufficiently well-reasoned and
based upon a proper factual background, must be given special weight.14
ANALYSIS
The Board finds that this case is not in posture for decision as there remains an unresolved
conflict in medical opinion with regard to the nature and extent of appellant’s left lower extremity
impairment.

6

Id. at § 10.404(a); see also T.T., Docket No. 18-1622 (issued May 14, 2019); Jacqueline S. Harris, 54 ECAB
139 (2002).
7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); id. at Chapter 3.700.2 and Exhibit 1 (January 2010).
8
A.M.A., Guides, page 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF):
A Contemporary Model of Disablement.
9

Id. at 494-531

10

Supra note 7; see R.V., Docket No. 10-1827 (issued April 1, 2011).

11

Supra note 7 at Chapter 2.808.6(f) (March 2017); B.B., Docket No. 18-0782 (issued January 11, 2019).

12

5 U.S.C. § 8123(a); 20 C.F.R. § 10.321; see also C.B., Docket No. 19-0464 (issued May 22, 2020); Shirley L.
Steib, 46 ECAB 309, 317 (1994).
13

R.N., Docket No. 19-1685 (issued February 26, 2020); Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

14
Y.I., Docket No. 20-0263 (issued November 30, 2020); R.S., Docket No. 10-1704 (issued May 13, 2011); S.T.,
Docket No. 08-1675 (issued May 4, 2009); Gary R. Sieber, 46 ECAB 215, 225 (1994).

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Section 8123(a) of FECA provides, in pertinent part: “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.”15 This is called a referee
examination and OWCP will select a physician who is qualified in the appropriate specialty and
who has no prior connection with the case.16 Where a 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 on a proper factual background, must be given special weight.17
In a December 17, 2012 narrative report, Dr. Garvey, noted that appellant presented with
left ankle pain, swelling, and weakness and indicated that appellant could not perform everyday
activities. A physical examination of her left ankle revealed a restricted ROM, decreased
sensation, and tenderness upon palpation. Using the DBI of the sixth edition of the A.M.A.,
Guides, Dr. Garvey indicated that appellant used the ankle sprain diagnosis and assigned a CDX
of 3, a GMFH of 1, a GMPE of 0, and a GMCS of 1, finding 14 percent permanent impairment of
appellant’s left ankle. Using the ROM method, she indicated that appellant’s mild plantar flexion
impairment correlated with 7 percent impairment rating and appellant’s mild extension impairment
correlated with 7 percent impairment rating, for a total of 14 percent permanent impairment.
Dr. Garvey also calculated a sural periphery nerve impairment of 3 percent, for a total of 17 percent
left lower extremity permanent impairment.
Dr. Shuler, OWCP’s referral physician, in a June 8, 2017 report, noted that he conducted a
physical examination which revealed nonantalgic gait, full strength, and no swelling in the left
ankle, and symmetrical ankle ROM and reflexes. He indicated that appellant did not have peroneal
tendinitis of the left ankle, and he stated that he found no objective findings of ongoing symptoms
related to her accepted August 8, 2011 employment injury. Dr. Shuler opined that her accepted
condition of an ankle sprain was no longer existent, and noted that her pain disability questionnaire
results were inconsistent with his objective findings. Using the DBI method of the A.M.A.,
Guides, he utilized the ligament section of the Foot and Ankle Regional Grid and assigned a CDX
of 0 due to no significant objective abnormal findings of the muscle or tendon injury at MMI.
Dr. Shuler stated that appellant’s functional history was considered invalid because it grossly
deviated from his observable objective findings and her history. He further indicated that there
was no need for a GMFH, GMCS, and GMPE and, therefore, she sustained zero percent permanent
impairment of her left lower extremity. Dr. Shuler additionally noted that there was no evidence
of peripheral nerve impairment. He further noted that, according to the ROM method, appellant
also sustained zero percent left lower extremity permanent impairment. In a supplemental report
dated February 25, 2019, Dr. Shuler noted that the acceptance of the additional condition of the
left lower extremity did not change his previous assessment that she sustained zero percent
permanent impairment based on his physical examination from his June 8, 2017 report that
indicated that she had no significant abnormal findings of a muscle or tendon injury at MMI. He

15

5 U.S.C. § 8123(a).

16

T.J., Docket No. 20-0721 (issued November 17, 2020).

17

Id.

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stated that, if there was a need for further objective evaluation of appellant, an additional
examination by a qualified examiner would be appropriate.
The Board, therefore, finds that there is a conflict in the medical opinions between
Drs. Garvey and Shuler as to the extent of appellant’s left lower extremity permanent impairment.
As there is a conflict in the medical evidence as to the extent of disability, the case must be
remanded to OWCP for referral to an IME for resolution of the conflict in accordance with
5 U.S.C. § 8123(a).18
On remand, OWCP shall refer appellant, along with the case file and an SOAF, to an
appropriate specialist for an impartial medical evaluation and a report including a rationalized
opinion as to whether she sustained permanent impairment of her left lower extremity, warranting
a schedule award. Following this and other such further development as deemed necessary,
OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the November 12, 2019 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: May 14, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees' Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge
Employees' Compensation Appeals Board
18

Supra note 12-13; see also R.K., Docket No. 19-0247 (issued August 1, 2019).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.S., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Carol Stream, IL,
Employer
__________________________________________

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

Docket No. 14-525
Issued: June 5, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 2, 2014 appellant, through his representative, filed a timely appeal from the
September 30, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP),
which denied modification of its loss of wage-earning capacity (LWEC) determination. Pursuant
to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to review the merits of this case.
ISSUE
The issue is whether appellant met his burden to establish that OWCP’s August 21, 2009
LWEC determination should be modified.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On the prior appeal,2 the Board found that OWCP properly denied modification of its
August 21, 2009 LWEC determination. The relevant facts are set forth below.
Appellant, a 54-year-old mail processing clerk, sustained an occupational disease as a
result of repetitive movement while casing mail. OWCP accepted his claim for right rotator cuff
sprain. In another claim,3 it accepted left shoulder tendinitis. On August 15, 2008 appellant
accepted a modified assignment reworking mail at a nixie table for eight hours per day. About a
year later, in an August 21, 2009 decision, OWCP determined that his actual earnings in this
modified assignment fairly and reasonably represented his wage-earning capacity.
OWCP denied modification of its LWEC determination on February 5, June 22 and
July 23, 2010. On February 16, 2011 an OWCP hearing representative affirmed, finding, among
other things, that the original LWEC determination was not, in fact, erroneous. The Board
affirmed on March 23, 2012, finding that appellant had failed to establish one of the criteria for
modifying the determination.
On November 6, 2012 appellant, through his representative, requested reconsideration
before OWCP. “This request for reconsideration is regarding LWEC and is based on the
decision of M.V. and Department of Homeland Security, Transportation Security Administration,
et al. Docket No. 10-1642, June 15, 2011.” He argued that, based on this information, the
decision should be vacated and the previous decision should be overturned.
In a decision dated September 30, 2013, OWCP denied modification of its LWEC
determination.
LEGAL PRECEDENT
FECA provides compensation for the disability of an employee resulting from personal
injury sustained while in the performance of his duty.4 “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.5
Once the loss of wage-earning capacity is determined, a modification of such
determination is not warranted unless there is a material change in the nature and extent of the
injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated,

2

Docket No. 11-1791 (issued March 23, 2012). The facts of this case as set forth in the Board’s prior decision
are hereby incorporated by reference.
3

OWCP File No. xxxxxx453 (subsidiary file).

4

5 U.S.C. § 8102(a).

5

20 C.F.R. § 10.5(f).

2

or the original determination was, in fact, erroneous. The burden of proof is on the party
attempting to show modification of the award.6
ANALYSIS
Appellant requested modification of OWCP’s August 21, 2009 LWEC determination
based on the case of M.V.,7 which the Board decided in 2011. In M.V., a transportation security
screener injured his back lifting army field packs. He completed a vocational rehabilitation
training program to provide him the skills to obtain an entry-level job as a budget analyst. Based
on state labor market statistics, the vocational rehabilitation specialist found that budget analyst
positions were reasonably available to the claimant in his commuting area. OWCP reduced the
claimant’s wage-loss compensation accordingly.
The Board reversed the LWEC determination on the grounds that the state labor market
statistics did not show how many of available positions for a budget analyst were entry level
positions and therefore suitable to the claimant’s vocational training. The Board found that
OWCP did not meet its burden to justify the reduction of the claimant’s wage-loss compensation.
Appellant offered no argument to explain how the Board’s holding in M.V. warranted
modification of the August 21, 2009 LWEC determination. He did not argue a material change
in the nature and extent of his injury-related condition and retraining or vocationally
rehabilitation does not apply. Appellant did not establish one of the criteria for modification; the
case of M.V. must establish, on its face, that the August 21, 2009 LWEC determination was, in
fact, erroneous.
In M.V., OWCP reduced the claimant’s wage-loss compensation based on a constructed
position, or a position the claimant did not actually hold. In doing so, it had the burden of
establishing that such positions were reasonably available to the claimant within his commuting
area. OWCP did not meet that burden, as the record did not establish how many of the available
positions were suitable to his vocational training.
Appellant’s case is distinguishable. OWCP reduced his wage-loss compensation based
on his actual earnings in a position he held. Appellant had successfully performed the duties of
this position for some period of time, demonstrating that the position was, in fact, suitable. As
the Board noted on the prior appeal, the wage-earning capacity of an employee is determined by
the employee’s actual earnings if the employee’s actual earnings fairly and reasonably represent
his or her wage-earning capacity. OWCP found that appellant’s demonstrated capacity to earn
wages in this position fairly and reasonably represented his or her wage-earning capacity, and
that he or she was therefore no longer entitled to compensation for total disability.
As the circumstances of this case are readily distinguishable from the case of M.V., the
Board finds that appellant has not met his burden to establish that OWCP’s August 21, 2009
LWEC determination was, in fact, erroneous. As his November 6, 2012 request failed to
6

Daniel J. Boesen, 38 ECAB 556 (1987).

7

Docket No. 10-1642 (issued June 15, 2011).

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establish one of the criteria for modifying the LWEC determination, the Board will affirm
OWCP’s September 30, 2013 decision denying modification.
Appellant may request modification of the wage-earning capacity determination,
supported by new evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that appellant has not met his burden to establish that OWCP’s
August 21, 2009 LWEC determination should be modified.
ORDER
IT IS HEREBY ORDERED THAT the September 30, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 5, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.G., Appellant
and
DEPARTMENT OF THE NAVY, FLEET
READINESS CENTER SOUTHEAST,
Jacksonville, FL, Employer
__________________________________________

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Appearances:
Lenin V. Perez, for the appellant
Office of Solicitor, for the Director

Docket No. 15-0862
Issued: September 2, 2015

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On March 9, 2015 appellant, through his representative, filed a timely appeal from a
January 29, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP).1
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.
ISSUE
The issue is whether appellant has more than seven percent permanent impairment of the
right upper extremity.

1

The record also contains a September 30, 2014 overpayment decision. Appellant has not appealed this decision
and thus it is not before the Board at this time. See 20 C.F.R. § 501.3; see also S.C., Docket No. 10-1706 (issued
May 9, 2011).
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 6, 2012 appellant, then a 35-year-old plastic fabricator, filed a traumatic injury
claim alleging that on March 22, 2011 he injured his right shoulder while sanding the bottom
wing of an aircraft. OWCP accepted the claim for an articular cartilage disorder of the right
rotator cuff and right shoulder impingement. Appellant stopped work on March 22, 2012 and
returned to modified employment on September 17, 2012.
On July 25, 2012 Dr. Patrick J. Hutton, a Board-certified orthopedic surgeon, performed
a repair of a torn rotator cuff, a debridement, and a subacromial decompression of the right
shoulder. On December 14, 2012 he performed a repair of a recurrent right rotator cuff tear, a
debridement, and removal of a suture anchor of the right subacromial bursa. On October 3, 2013
Dr. Aaron Bates, a Board-certified orthopedic surgeon, performed a revision of a right rotator
cuff repair with a limited debridement.3
In a report dated February 25, 2014, Dr. Bates noted that appellant continued to
experience shoulder pain. He diagnosed status post a rotator cuff repair of the right shoulder and
found that he had reached maximum medical improvement. Dr. Bates advised that appellant had
eight percent permanent impairment of the right shoulder under the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).
On March 11, 2014 appellant filed a claim for a schedule award.
On March 17, 2014 an OWCP medical adviser reviewed Dr. Bates’ report and identified
the diagnosis as a full-thickness rotator cuff tear using the shoulder regional grid set forth at
Table 15-5 on page 403 of the A.M.A., Guides. He found that appellant was entitled to the
maximum allowed for the diagnosis, which yielded seven percent permanent impairment of the
right upper extremity. The medical adviser opined that Dr. Bates’ finding of eight percent
impairment appeared to be a typographical error.
By decision dated April 1, 2014, OWCP granted appellant a schedule award for seven
percent permanent impairment of the right upper extremity. The period of the award ran for
21.84 weeks from March 26 to August 25, 2014.
On April 8, 2014 appellant requested a telephone hearing.
In a report dated July 16, 2014, Dr. Rahul V. Deshmukh, a Board-certified orthopedic
surgeon, evaluated appellant for bilateral shoulder pain greater on the right following a
March 22, 2012 work injury. He diagnosed shoulder pain and shoulder internal derangement,
osteoarthritis, and synovitis. Dr. Deshmukh requested authorization for a right arthrogram to
rule out an infection or tearing of the rotator cuff and labral.

3

On August 13, 2013 OWCP referred appellant to Dr. George C. Hochreiter, an osteopath, for a second opinion
examination. In a report dated September 4, 2013, Dr. Hochreiter diagnosed a recurrent rotator cuff tear. He
advised that it was difficult to answer when appellant would reach maximum medical improvement given that large
tears were hard to repair and that it appeared that his “tissue quality is such that a retear can certainty occur….”

2

A July 22, 2014 magnetic resonance imaging (MRI) scan study of the right shoulder
revealed a recurrent tear of the distal supraspinatus tendon.
In an impairment evaluation dated July 30, 2014, Dr. Samy F. Bishai, an orthopedic
surgeon, discussed appellant’s history of a March 22, 2012 work injury and his continued
difficulty using his shoulder even after three surgeries. He measured range of motion of the
shoulders bilaterally. Dr. Bishai diagnosed right shoulder internal derangement, right shoulder
impingement syndrome, a torn right rotator cuff status post three surgeries, and rotator cuff
syndrome of the left shoulder. He found that appellant reached maximum medical improvement
on July 30, 2014. Dr. Bishai determined that appellant had a 24 percent permanent impairment
of the right upper extremity due to loss of motion using Table 15-34 on page 475 of the A.M.A.,
Guides. He explained that he used range of motion to calculate the extent of impairment as
appellant’s “most severe disabling problem is the severe restriction in his range of motion of the
right shoulder….”
On August 6, 2014 Dr. Deshmukh requested authorization for additional shoulder
surgery.
By decision dated September 16, 2014, OWCP denied authorization for additional right
shoulder surgery and left shoulder surgery. It found that Dr. Deshmukh had not explained why
the requested procedures were related to appellant’s March 22, 2014 employment injury.
In a report dated October 2, 2014, Dr. Deshmukh advised that he was treating appellant
for a right shoulder injury. He stated:
“I have submitted a request for authorization for a right shoulder arthroscopy
including revision [of a] rotator cuff repair with double row repair, subacromial
decompression, distal clavicle excision with possible augment/stem cell injection.
Current finding of rotator cuff re-tear is demonstrated [by a] lack of healing of his
original injury, despite prior surgery by another surgeon. The requested
procedure is to address the originally accepted pathology which remains
damaged.”
A telephone hearing was held on November 12, 2014. At the hearing, appellant’s
representative requested that OWCP disregard the initial impairment evaluation by Dr. Bates as
he did not cite the tables and pages of the A.M.A., Guides. He related that Dr. Bishai explained
his use of range of motion in rating the extent of impairment.
On December 12, 2014 the employing establishment noted that the July 22, 2014 MRI
scan study showed additional tearing and that Dr. Deshmukh had requested authorization for an
additional surgery. It further asserted that the A.M.A., Guides indicated that range of motion
should only be used if a diagnosis-based impairment rating was not available.
By decision dated January 29, 2015, the hearing representative affirmed the April 1, 2014
decision. She found that Dr. Bishai did not provide a rating using the diagnosis-based
impairment method preferred by the A.M.A., Guides. The hearing representative additionally
determined that the evidence submitted after the schedule award decision indicated that appellant

3

may not be at maximum medical improvement. She cited FECA Bulletin No. 96-174 that
indicates that the medical adviser should compute the percentage of the schedule award.
On appeal appellant’s representative contends that the hearing representative should have
sent Dr. Bishai’s report to an OWCP medical adviser for review. He also maintains that she
cited a FECA Bulletin applicable to the fourth edition of the A.M.A., Guides.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing federal regulations6 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 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the medical adviser for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale
for the percentage of impairment specified.9
ANALYSIS
OWCP accepted that appellant sustained impingement syndrome of the right shoulder
and an injury to the right rotator cuff as the result of a March 22, 2011 employment injury.
Appellant underwent shoulder surgeries for rotator cuff tears on July 24 and December 14, 2012,
and October 3, 2013.
On March 11, 2014 appellant filed a claim for a schedule award. In an impairment
evaluation dated February 25, 2014, Dr. Bates opined that appellant had reached maximum
medical improvement. He concluded that appellant had eight percent permanent impairment of
the right upper extremity under the sixth edition of the A.M.A., Guides. Dr. Bates did not,
however, reference the tables and pages of the A.M.A., Guides that he used to calculate
4

FECA Bulletin No. 96-17 (issued September 20, 1996).

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); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
9

See id. at Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter 2.808.6(f)
(February 2013).

4

impairment. His opinion, consequently, is of diminished probative value as he did not clearly
explain his application of the A.M.A., Guides.10
On March 17, 2014 the medical adviser applied the provisions of the A.M.A., Guides to
the findings by Dr. Bates. He identified the diagnosis as a full-thickness rotator cuff tear
pursuant to Table 15-5, the shoulder regional grid. The medical adviser determined that
appellant was entitled to the maximum allowed for the diagnosed condition under Table 15-5 of
seven percent. He opined that Dr. Bates’ finding of eight percent impairment may have been a
typographical error.
Based on the medical adviser’s report, OWCP granted appellant a schedule award for
seven percent permanent impairment of the right upper extremity. The Board finds that the
evidence does not establish that he has more than seven percent right upper extremity
impairment, the maximum allowed under the A.M.A., Guides using the diagnosis-based estimate
for the diagnosed condition of a rotator cuff tear.
Subsequent to OWCP’s decision, appellant requested a hearing and submitted a July 30,
2014 impairment evaluation from Dr. Bishai finding that he had 24 percent permanent
impairment of the right upper extremity as a result of reduced range of motion under Table 15-34
on page 475 of the A.M.A., Guides. However, an MRI scan study of the right shoulder obtained
on July 22, 2014, prior to the impairment evaluation by Dr. Bishai, showed that appellant had a
recurrent tear of the distal supraspinatus tendon. While Dr. Bishai opined that appellant had
reached maximum medical improvement on July 30, 2014, he did not address the July 22, 2014
diagnostic study showing evidence of a recurrent distal supraspinatus tendon tear or its effect on
his impairment evaluation.11 Consequently, his report does not show that appellant is entitled to
a greater schedule award.
On appeal appellant’s representative alleges that OWCP should have referred
Dr. Bishai’s report to an OWCP medical adviser. As discussed, however, Dr. Bishai did not
sufficiently explain his impairment rating given the findings on the July 22, 2014 MRI scan
study of a recurrent tear, and thus his opinion is of diminished probative value.
Appellant’s representative also contends that the hearing representative cited an expired
FECA Bulletin. The hearing representative cited FECA Bulletin No. 96-1712 which was issued
under the fourth edition of the A.M.A., Guides and indicates that the medical adviser should
compute the percentage of the schedule award. Any error in citing an expired FECA Bulletin,
however, is harmless as current OWCP procedures similarly provide that, after obtaining all
necessary medical evidence, the file should be routed to the medical adviser for an opinion
concerning the nature and percentage of impairment in accordance with the A.M.A., Guides,
10

See R.B., Docket No. 14-2038 (issued May 5, 2015).

11

It is well established that the period covered by a schedule award commences on the date that the employee
reaches maximum medical improvement. See J.C., 58 ECAB 258 (2007). Maximum medical improvement means
that the physician condition of the injured member of the body has stabilized and will not improve further. See V.C.,
Docket No. 14-1230 (issued December 29, 2014); Adela Hernandez-Piris, 35 ECAB 839 (1984).
12

FECA Bulletin No. 96-17 (issued September 20, 1996).

5

with the medical adviser providing rationale for the percentage of impairment specified.13 Such
procedures were followed in this claim.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has no more than seven percent permanent impairment of
the right upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the January 29, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 2, 2015
Washington, DC

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

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

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

13

See supra note 9.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.O., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Chicago, IL, Employer
__________________________________________

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

Docket No. 20-0156
Issued: May 13, 2020

Case Submitted on the Record

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

JURISDICTION
On October 25, 2019 appellant filed a timely appeal from an August 14, 2019 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180 days
elapsed from the last merit decision dated August 2, 2018, to the filing of this appeal, pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction to review the merits of appellant‘s claim.2

1
2

5 U.S.C. § 8101 et seq.

The record transmitted to the Board includes evidence received after OWCP issued its August 14, 2019 decision.
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 properly denied appellant‘s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has been previously before the Board. The facts and circumstances of the case
as set forth in the Board‘s prior decision are incorporated herein by reference.3 The relevant facts
are as follows.
On June 20, 2016 appellant, then a 56-year-old workers’ compensation claims examiner,
filed an occupational disease claim (Form CA-2) alleging that she suffered injuries to her hands
and arms due to factors of her federal employment. She noted that she first became aware of her
condition and first realized that it was caused or aggravated by her federal employment on
June 2, 2016. Appellant explained that as she was typing a decision, her left hand began to cramp
and her little finger, middle finger and thumb locked up. She was unable to unlock them, so one
of her coworkers accompanied her to the nurse. Appellant did not stop work.
In a development letter dated June 22, 2016, OWCP informed appellant that she submitted
no evidence to establish that she actually experienced the employment factors alleged to have
caused her injury. It advised her of the type of factual and medical evidence necessary to establish
her claim and attached a questionnaire for her completion. OWCP also requested narrative medical
report from appellant’s physician, providing a firm diagnosis of a condition and a rationalized
opinion on how her employment duties caused or aggravated her condition. It afforded appellant
30 days to provide the necessary information.
In response to OWCP’s questionnaire, appellant submitted a July 19, 2016 statement in
which she explained she had been a claims examiner at the employing establishment for 18 years
and that over the years she had experienced problems with her hands due to the repetitive motions
and activities of typing more than eight hours per day, writing, pushing and lifting case files. She
recounted that in the past year she had experienced an unusual and excessive volume of work that
had caused her to use her hands for an excessive amount of time. As a result, appellant experienced
sharp pains, cramping and locking in both of her hands and forearms, though she ignored her
symptoms and continued to work until her most recent incident.
In a July 20, 2016 letter, Dr. Michael Ward, Board-certified in family medicine, noted
sharp shooting pain and paresthesia of the hands and fingers radiating to her forearms, as well as
locking of the thumbs, and the third and fifth digits for the past month. Appellant described her
duties as manual typing and writing and informed Dr. Ward that she felt her workload had
increased and contributed to her symptoms. Upon evaluation, Dr. Ward diagnosed bilateral
de Quervain’s tenosynovitis in the right third and fifth trigger fingers and opined that the condition
“can occur with the work duties as described” to him. He referred her to occupational therapy to
treat her condition.
3

Docket No. 17-0443 (issued May 24, 2017).

2

By decision dated July 27, 2016, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record failed to establish that her diagnosed condition was causally
related to the accepted factors of her federal employment.
On September 6, 2016 appellant requested reconsideration of OWCP’s July 27, 2016
decision.
By decision dated September 14, 2016, OWCP denied appellant’s request for
reconsideration.
OWCP continued to receive evidence. In a July 20, 2016 letter, Dr. Ward again diagnosed
bilateral de Quervain’s tenosynovitis in the right third and fifth trigger fingers and opined that it
was “likely caused by the extreme and repetitive responsibilities such as excessive typing and other
manual responsibilities required of her with her work duties.”
In an October 4, 2016 witness statement, B.B., appellant’s coworker, explained that on
June 2, 2016 he heard appellant say that she could not move her left arm and fingers and that she
was typing when all of a sudden her fingers locked up. He escorted her to the nurse on the third
floor and indicated that when she returned, she was unable to use her left hand for the rest of the
day.
In an October 29, 2016 electromyography and nerve conduction velocity study of
appellant’s upper extremities, Dr. Ziad Alaani, a Board-certified neurologist, diagnosed appellant
with bilateral moderate carpal tunnel syndrome and bilateral ulnar neuropathy.
In a November 18, 2016 medical report, Dr. Edward Joy, a Board-certified orthopedic
surgeon, noted that appellant presented with left wrist and hand pain, as well as left carpal tunnel
syndrome. He provided appellant with a splint for her left wrist and instructed her to follow up in
four weeks.
On November 28, 2016 appellant appealed to the Board. By decision dated May 24, 2017,4
the Board affirmed OWCP’s September 14, 2016 decision, finding that the medical evidence of
record was insufficient to establish bilateral hand, finger and arm conditions caused or aggravated
by appellant’s accepted work factors. The Board further found that OWCP properly denied her
request for reconsideration of the merits of her claim.
Upon return of the case record, appellant submitted a June 9, 2017 medical report, wherein
Dr. Joy noted that she presented with worsening bilateral hand and wrist pain. Dr. Joy diagnosed
carpal tunnel syndrome of the left upper limb and a lesion of the ulnar nerve in the left upper limb,
and opined that repetitive typing and desk work aggravated her conditions. He discussed
performing an open left carpal tunnel release and left ulnar nerve transposition to treat her
condition.
On July 22, 2017 appellant requested reconsideration and submitted a July 3, 2017 letter
from Dr. Ward in which he provided a history of his treatment for appellant related to the sharp
4

Id.

3

pain she was experiencing in both of her hands and forearms. Dr. Ward repeated his diagnosis of
bilateral de Quervain’s tenosynovitis in the right third and fifth trigger fingers and reasoned that
her conditions were caused and aggravated by the extreme and repetitive responsibilities of typing
and other manual responsibilities required of her at work.
By decision dated November 2, 2017, OWCP denied modification finding that the
submitted medical evidence did not provide a probative, rationalized opinion regarding whether
appellant’s accepted work factors caused her claimed injury.
In a February 2, 2018 return to work form, Dr. Joy diagnosed a superior glenoid labrum
lesion of the left shoulder, a complete rotator cuff tear or rupture of the left shoulder, cervical disc
disorder with radiculopathy, an incomplete rotator cuff tear or rupture of the left shoulder, primary
osteoarthritis of the left shoulder and carpal tunnel syndrome of the left and right upper limbs. He
provided work restrictions for appellant in relation to her conditions. In an unsigned March 5,
2018 return to work order form, appellant was provided additional restrictions related to her
diagnosed conditions.
On April 30, 2018 appellant requested reconsideration of OWCP’s November 2, 2017
decision. In an attached March 28, 2018 report, Dr. Ward reviewed appellant’s symptoms and his
evaluation of her conditions. He opined that repetitive typing, lifting grasping caused appellant’s
bilateral carpal tunnel syndrome, de Quervain’s tenosynovitis and bilateral index and long trigger
fingers were the proximate cause of her conditions. Dr. Ward further explained that there may be
other causes for her conditions, “but one of the causes is clearly the activities described by
[appellant] and described by me.”
By decision dated August 2, 2018, OWCP denied modification of the November 2, 2017
decision. It found that Dr. Ward “failed to support his opinion with a detailed medical explanation
for how/why [appellant’s] bilateral hand and finger injuries were directly caused by the typing,
and lifting duties” appellant performs at work.
On July 26, 2019 appellant requested reconsideration of OWCP’s August 2, 2018 decision.
She asserted that Dr. Ward’s March 28, 2018 opinion was sufficient to establish causal
relationship.
By decision dated August 14, 2019, OWCP denied appellant’s request for reconsideration
of the merits of her claim.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.5

5
5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

4

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.6
A request for reconsideration must be received by OWCP within one year of the date of
OWCP‘s decision for which review is sought.7 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.8 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.9
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
Appellant filed a timely request for reconsideration on July 26, 2019, but she did not
establish that OWCP erroneously applied or interpreted a specific point of law, or advance a
relevant legal argument not previously considered by OWCP. She contended that Dr. Ward’s
March 28, 2018 opinion was sufficient to establish causal relationship, this argument was
previously raised and considered by OWCP in its prior decisions. Evidence or argument that
repeats or duplicates evidence previously of record has no evidentiary value and does not constitute
a basis for reopening a case.10 As such, appellant is not entitled to a review of the merits of her
claim based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).
Appellant also failed to submit relevant and pertinent new evidence in support of her
July 26, 2019 request for reconsideration. The underlying issue on reconsideration was whether
appellant had met her burden of proof to establish that her medical conditions were causally related
to the accepted factors of her federal employment. This is a medical question that requires
rationalized medical opinion evidence to resolve the issue.11 However, appellant did not submit
any additional evidence with her request for reconsideration. Because she did not provide any
6

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
7
Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of the merit decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2016). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the received date in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
8

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

9

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

10

See M.G., Docket No, 18-0654 (issued October 17, 2018); D.K., 59 ECAB 141 (2007).

11

E.T., Docket No. 14-1087 (issued September 5, 2014).

5

relevant and pertinent new evidence, she is not entitled to a review of the merits based on the third
requirement under 20 C.F.R. § 10.606(b)(3).12
The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 14, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 13, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

12

20 C.F.R. § 10.606(b)(3)(iii).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
H.L., Appellant
and
TENNESSEE VALLEY AUTHORITY,
DIVISION OF NATURAL RESOURCE
OPERATIONS, Norris, TN, Employer
__________________________________________

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Appearances:
Capp P. Taylor, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1969
Issued: April 24, 2018

Case Submitted on the Record

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

JURISDICTION
On September 21, 2017 appellant, through counsel, filed a timely appeal from an
August 29, 2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUES
The issues are: (1) whether OWCP met its burden of proof to terminate appellant’s wageloss compensation effective November 18, 2016; and (2) whether appellant met his burden of
proof to establish continuing disability after November 18, 2016.
FACTUAL HISTORY
On July 20, 1981 appellant, then a 37-year-old biological associate, filed a traumatic injury
claim (Form CA-1) alleging that, on July 1, 1981, he sustained lower back and left leg injuries
while loading lumber in the performance of duty. He stopped work on the date of injury. OWCP
initially accepted the claim for herniated L5-S1 disc, which was subsequently changed to
acceptance of lumbar intervertebral disc disorder without myelopathy. Appellant underwent
authorized left L5 lumbar discectomy, on August 4, 1981. He returned to limited-duty work as an
order clerk on September 9, 1982.
Appellant’s August 4, 1981 surgery and subsequent medical care were provided by
Dr. William S. Reid, an attending neurosurgeon.
In work restriction evaluation forms (Form OWCP-5) dated April 15 and July 25, 1983,
Dr. Edward L. Tauxe, an OWCP referral physician, indicated that appellant was capable of
working with restrictions.
By decision dated October 5, 1983, OWCP issued a loss of wage-earning capacity
determination reducing appellant’s wage-loss compensation based on his actual earnings in the
position of order clerk. It found that the restrictions of the order clerk position were within the
work restrictions found by Dr. Tauxe. Appellant stopped work again in 1986.
In reports dated March 28, 2012, March 14, 2013, May 14, 2014, and March 19, 2015,
Dr. Reid opined that appellant’s condition remained unchanged.
On May 8, 2015 OWCP referred appellant to Dr. Nicholas A. Grimaldi, a Board-certified
orthopedic surgeon, for a second opinion evaluation on whether appellant’s accepted condition
had resolved and whether he was capable of returning to his date-of-injury position.
In a June 8, 2015 report, Dr. Grimaldi, based upon a review of the medical evidence, the
statement of accepted facts (SOAF), and appellant’s physical examination diagnosed L5-S1
degenerative disc disease and subjective radiculitis. He noted appellant was under the care of
Dr. Reid and was seen annually. A physical examination revealed negative bilateral straight leg
raising, tenderness on palpation of the lower back, and no muscle spasms. Dr. Reid reported that
appellant ambulated without any assistance. Based on his review of the position description, he
concluded that appellant would be capable of performing his date-of-injury position. Dr. Reid
noted the lack of any significant medical treatment since appellant’s surgery. He further observed
that appellant’s L5-S1 arthritis was not severe enough to limit or preclude work. Dr. Grimaldi
opined that appellant was unable to perform his date-of-injury position due to appellant’s nonworkrelated conditions of radiation from prostate cancer treatment and age-related arthritis.

2

On June 29, 2015 OWCP issued a notice proposing to terminate appellant’s wage-loss
compensation. It found that Dr. Grimaldi’s opinion that appellant could perform his date-of-injury
job constituted the weight of the medical opinion evidence.
In a letter dated August 6, 2015, appellant disagreed with the proposal to terminate his
wage-loss compensation.
By decision dated August 14, 2015, OWCP finalized the termination of appellant’s wageloss compensation.
On August 24, 2015 OWCP received appellant’s request for a telephone hearing before an
OWCP hearing representative, which was held on April 7, 2016.
By decision dated June 6, 2016, OWCP’s hearing representative reversed the termination
of appellant’s wage-loss compensation. She found that the SOAF did not contain an adequate
description of the physical demands and specific levels of physical activities required for the
biological associate position he held on the date of his injury. In addition, the hearing
representative found Dr. Grimaldi’s opinion was not based upon a review of the entire medical
record and he failed to provide sufficient rationale for his opinion. The hearing representative
instructed OWCP to provide a revised SOAF and all the medical records to Dr. Grimaldi for
review.
Pursuant to the hearing representative’s instructions, OWCP revised and updated the
SOAF, which it forward to Dr. Grimaldi for review along with a position description for biological
associate and relevant medical records not previously provided.
In an updated report dated August 31, 2016, Dr. Grimaldi, based upon a review of the
revised SOAF, the additional medical records, and a new physical examination, concluded
appellant continued to have residuals from his L5-S1 degenerative disc disease, which correlated
with his accepted work injury. He noted x-ray findings confirmed lumbar degenerative disc
disease with facet spondylosis. Dr. Grimaldi again concluded that appellant was capable of
performing the biological associate duties from his L5-S1 disc disease perspective. In support of
his conclusion, he noted that the pain caused by appellant’s degenerative disc disease was not
severe enough to preclude appellant from performing the physical requirement of the position.
Dr. Grimaldi opined that any disability appellant had was due to undergoing prostate cancer
radiation. In support of this conclusion, he observed that appellant’s symptoms and pain with his
feet, legs, and hips developed after undergoing radiation to treat his prostate cancer.
On September 30, 2016 OWCP issued a notice proposing to terminate appellant’s wageloss compensation based upon Dr. Grimaldi’s August 31, 2016 opinion that appellant was capable
of performing his date-of-injury job as a biological associate.
By decision dated November 18, 2016, OWCP finalized the termination of appellant’s
wage-loss compensation, effective that date, as it found that he had no disability due to the accepted
work condition and was capable of performing the duties of his date-of-injury job as a biological
associate.

3

On November 29, 2016 OWCP received appellant’s request for a telephonic hearing before
an OWCP hearing representative, which was held on June 15, 2017.
In December 29, 2016 report, Dr. Alan L. Whiton, a treating physician, noted appellant’s
medical and employment injury history. Appellant reported low back pain since the date of injury,
July 1, 1981. Physical examination findings including ambulating without assistance, decreased
left lower extremity sensation, L5 spinous process tenderness, normal lumbar spine alignment,
tenderness at the sacroiliac joint, tenders on palpation of the left iliolumbar region, and limited
active range of motion. Diagnoses included lumbar spinal stenosis and prolapsed lumbar
intervertebral disc.
In an August 24, 2017 report, Dr. Whiton reviewed the job description for biological
associate and opined that residuals from appellant’s accepted work injury precluded his ability to
perform this position. He disagreed with Dr. Grimaldi’s opinion that appellant’s leg problems
were due to diabetes as no definitive diagnosis of diabetes had been made by a treating physician.
Dr. Whiton observed that examination findings from his December 29, 2016 evaluation including
decreased left lower extremity sensation were consistent with L5-S1 degeneration and continuing
employment-related residuals.
By decision dated August 29, 2017, the hearing representative affirmed the termination of
appellant’s wage-loss compensation. She found the medical evidence of record, as represented by
Dr. Grimaldi’s August 31, 2016 opinion established that appellant no longer had any disability due
to his accepted work condition. The hearing representative further found Dr. Whiton failed to
provide any medical rationale supporting his opinion that appellant continued to be totally disabled
due to the accepted work condition. Thus, she found no conflict in the medical opinion evidence
and the weight of the medical evidence rested with the well-rationalized opinion of Dr. Grimaldi.
The hearing representative also found that appellant failed to meet his burden of proof to establish
disability on and after November 18, 2016.
LEGAL PRECEDENT
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
modification or termination of an employee’s benefits.3 After it has determined that an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to
the employment.4 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.5

3

S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

4

I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 ECAB 734 (2003).

5

See J.M., 58 ECAB 478 (2007); Del K. Rykert, 40 ECAB 284 (1988).

4

ANALYSIS
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation benefits because the medical evidence of record fails to establish that he
was no longer disabled from work as a result of his accepted July 1, 1981 employment injury.
Dr. Grimaldi, in August 31, 2016 supplemental report, reviewed appellant’s history of
injury, an updated SOAF, the biological associate position description. He described appellant’s
physical examination findings and noted objective residuals based on x-ray findings and physical
examination findings. Dr. Grimaldi further explained that, although appellant had residuals from
his work injury, they were not disabling to prevent him from performing his usual duties as a
biological associate as described in the updated SOAF and position description. He noted that
appellant’s lumbar pain was not sufficiently disabling and that any disability was due to feet, leg
and hip symptoms which appellant developed after undergoing radiation for prostate cancer.
Dr. Grimaldi opined that appellant was able to return to his date-of-injury position. The
Board finds that he did not adequately explain with medical rationale why appellant was no longer
disabled from this position. Dr. Grimaldi did not provide any rationalized medical explanation as
to why he found that appellant still had residuals from his herniated L5-S1 disc and lumbar
intervertebral disc disorder without myelopathy, which now correlated with his L5-S1
degenerative disc disease, but that these conditions were not disabling. According to him,
appellant’s disability from performing the biological associate position was attributable to
symptoms and pain in the hips, legs, and knees after undergoing prostate cancer treatment. The
Board has held that medical evidence that states a conclusion, but does not offer any rationalized
medical explanation is of limited probative value.6 Dr. Grimaldi did not provide any medical
reasoning, or otherwise detailed analysis, to support his conclusory statements about appellant’s
ability to perform the duties of a biological associate.7 Because he does not support his opinion
with medical rationale, his report is insufficient to justify termination of appellant’s wage-loss
compensation benefits.
The weight of medical evidence is determined by its reliability, its probative value, and its
convincing quality.8 The factors that, comprise the evaluation of medical opinion evidence include
the opportunity for and thoroughness of examination, the employing establishment or
completeness of the physician’s knowledge of the facts and medical history, the care of analysis
manifested, and the medical rationale expressed in support of the physician’s opinion.9 In this
case, the Board finds that Dr. Grimaldi’s opinion is lacking in medical rationale. Accordingly, his
opinion has diminished probative value and is not entitled to the weight of medical evidence
sufficient to justify termination of appellant’s wage-loss compensation.

6

J.F., Docket No. 09-1061 (issued November 17, 2009); A.D., 58 ECAB 149 (2006).

7

See A.R., Docket No. 12-0443 (issued October 9, 2012).

8

See Nicolette R. Kelstrom, 54 ECAB 570 (2003).

9

See M.D., 59 ECAB 211 (2007).

5

CONCLUSION
The Board finds that OWCP failed to meet its burden of proof to terminate appellant’s
wage-loss compensation, effective November 18, 2016.10
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated August 29, 2017 is reversed.
Issued: April 24, 2018
Washington, DC

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

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

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

10

In light of the above findings and conclusion, the second issue is rendered moot.

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Youngstown, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 16-1879
Issued: March 27, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On September 22, 2016 appellant, through counsel, filed a timely appeal from an
August 1, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has more than one percent permanent impairment of each
upper extremity for which he previously received a schedule award.
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.

FACTUAL HISTORY
On May 23, 2013 appellant, then a 47-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that on that date he experienced bilateral shoulder pain after lifting a package.
OWCP accepted the claim for bilateral shoulder sprains and bilateral shoulder impingement and
paid compensation for disability beginning July 27, 2013. Appellant returned to his usual
employment on January 13, 2014.
On December 22, 2014 appellant filed a claim for a schedule award (Form CA-7). By
letter dated January 12, 2015, OWCP requested that he submit an impairment evaluation from
his attending physician in accordance with the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).
In an impairment evaluation dated March 4, 2015, Dr. Catherine Watkins-Campbell,
Board-certified in family practice, discussed appellant’s history of an injury to his shoulders at
work on May 23, 2013. She diagnosed a shoulder and upper arm sprain and affections of the
shoulder region, not otherwise classified. Dr. Watkins-Campbell measured range of motion
(ROM) for the shoulders bilaterally three times. For the right shoulder, she measured 155, 160,
and 155 degrees flexion, 66, 67, and 68 degrees extension, 60, 65, and 67 degrees internal
rotation, 84, 78, and 80 degrees external rotation, 150, 145, and 140 degrees abduction, and 37,
36, and 36 degrees adduction. For the left shoulder, Dr. Watkins-Campbell measured 150, 150,
and 157 degrees flexion, 78, 72, and 74 degrees extension, 60, 62, and 68 degrees internal
rotation, 70, 76, and 76 degrees external rotation, 145, 140, and 140 degrees abduction, and 25,
28, and 30 degrees adduction. On examination of the shoulders, she found normal sensation, no
tenderness, negative signs of impingement, no instability, a negative Yergason’s test, and normal
reflexes. Dr. Watkins-Campbell identified the ratable diagnosis as class 1 impingement
syndrome using Table 15-5 on page 402 of the A.M.A., Guides. She found that the ROM
methodology should be used to rate appellant’s impairment instead of the diagnosis-based
impairment (DBI) method.
Dr. Watkins-Campbell averaged the ROM measurements and found that, for the right
shoulder, 157 degrees flexion yielded 3 percent impairment, 66 degrees extension, 36 degrees
adduction, and 81 degrees external rotation yielded no impairment, 145 degrees abduction
yielded 3 percent impairment, and 64 degrees internal rotation yielded 2 percent impairment, for
a total permanent impairment due to reduced right upper extremity motion of 8 percent. She
averaged ROM measurements for the left shoulder and found 152 degrees of flexion yielded 3
percent impairment, 75 degrees extension and 74 degrees external rotation yielded no
impairment, 142 degrees abduction yielded 3 percent impairment, 28 degrees adduction yielded
1 percent impairment, and 63 degrees internal rotation yielded 2 percent impairment, for a total
left upper extremity permanent impairment due to motion loss of 9 percent. Dr. WatkinsCampbell advised that appellant had a QuickDASH (Disabilities of the Arm, Shoulder, and
Hand) score of 14, which yielded a grade modifier of zero for functional history. She applied a
grade modifier of one for physical examination for mild motion loss of the shoulders.
Dr. Watkins-Campbell concluded that appellant had eight percent permanent impairment of the
right upper extremity and nine percent permanent impairment of the left upper extremity.

2

Dr. Morley Slutsky, a physician Board-certified in occupational medicine and an OWCP
medical adviser, reviewed the evidence on May 17, 2015. He noted that appellant had no current
symptoms of impingement syndrome. Dr. Slutsky advised that Dr. Watkins-Campbell did not
use the DBI impairment rating methodology, the preferred method under the A.M.A., Guides.
He also noted that she averaged the ROM measurements to determine the impairment rather than
using the maximum observed measurements as required by the A.M.A., Guides. Dr. Slutsky
identified the diagnosis as a class 1 shoulder strain under Table 15-5 on page 401 of the A.M.A.,
Guides. He applied a grade modifier of zero for functional history as appellant could perform
self-care activities, a grade modifier of zero for clinical studies, and a grade modifier of one for
physical examination for some motion loss. Utilizing the net adjustment formula, Dr. Slutsky
found a net adjustment of negative one and one percent permanent impairment of each upper
extremity.
OWCP, in a letter dated June 3, 2015, requested that Dr. Watkins-Campbell review the
opinion of Dr. Slutsky and opine whether she concurred or disagreed with his permanent
impairment rating. It advised that the ROM methodology should only be used if there was no
other way to rate the impairment.
Dr. Watkins-Campbell, in an addendum dated June 11, 2015, indicated that she used the
diagnosis of other affections of the shoulder not otherwise classified in rating appellant’s
permanent impairment. She related:
“In this case, the other affections of the shoulder as noted in the medical records
reviewed involved bilateral impingement from hypertrophy of the subacromial
bursa and tendinosis. The injections administered significantly resolved the
symptoms but not completely. With impingement that has not been treated with
surgery, the symptoms are likely to reoccur again at some point. [Appellant’s]
QuickDASH score was low at 14. Functionally, as long as he is not raising his
arm repeatedly which would aggravate impingement or perpetuate impingement
symptoms, he functions without a lot of problems.”
Dr. Watkins-Campbell disagreed with OWCP’s medical adviser’s finding that appellant’s
sprain was his “most impairing diagnosis.” She noted that the A.M.A., Guides allowed use of
ROM methodology and advised that he did not “fit well into the classes assigned for
impingement syndrome.”
On July 3, 2015 Dr. Slutsky again opined that appellant had one percent permanent
impairment of each upper extremity. He explained that his rating differed from that of
Dr. Watkins-Campbell as he used the DBI impairment rating methodology. Dr. Slutsky noted
that appellant had no impingement syndrome symptoms at the time of Dr. Watkins-Campbell’s
evaluation. Dr. Slutsky reiterated that Dr. Watkins-Campbell’s ROM measurements were not
valid as she used the average measurements rather than the maximum value obtained. He
asserted that the A.M.A., Guides indicated that ROM was used primarily as an adjustment factor
and should only be used as a stand-alone rating method there was no other method available.
Dr. Slutsky again identified the diagnosis as a bilateral strain and, after applying the same grade
modifiers, found one percent permanent impairment of each arm.

3

By decision dated September 17, 2015, OWCP granted appellant a schedule award for
one percent permanent impairment of each upper extremity.3 The period of the award ran for
6.24 weeks from January 15 to February 27, 2015.
Counsel on September 25, 2015 requested a telephone hearing. At the telephone hearing
held on May 17, 2016 he maintained that OWCP sent schedule awards to Dr. Slutsky, an out of
district physician, because he always found a lower percentage of permanent impairment.
Counsel asserted that Dr. Watkins-Campbell rebutted OWCP’s medical adviser’s opinion and
questioned why the medical adviser who created the dispute resolved it in his favor. He
maintained that a conflict existed between Dr. Watkins-Campbell and the medical adviser.
In a decision dated August 1, 2016, OWCP’s hearing representative affirmed the
September 17, 2015 decision. She found that the opinion of the medical adviser was reasoned
and consistent with the A.M.A., Guides. The hearing representative further noted that
Dr. Watkins-Campbell found no objective evidence of impingement syndrome and failed to
explain how appellant’s current symptoms differed from symptoms of a strain.
On appeal counsel contends that Dr. Slutsky is not an impartial physician.
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.4 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.5 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.6
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
3

OWCP determined that a conflict existed between Dr. Watkins-Campbell and the medical adviser regarding the
extent of appellant’s permanent impairment of the upper extremities. It referred him for an impartial medical
examination. On August 27, 2015 OWCP advised appellant that it had cancelled his appointment with the referral
physician.
4

See 20 C.F.R. §§ 1.1-1.4.

5

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
6

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

4

5 U.S.C.

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).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
ANALYSIS
The issue on appeal is whether appellant has more than one percent permanent
impairment of each upper extremity for which he previously received a schedule award.
The Board finds that this 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.9
The purpose of the use of uniform standards is to ensure consistent results and to ensure equal
justice under the law to all claimants.10 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.11
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
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 1, 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
7

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
8

Isidoro Rivera, 12 ECAB 348 (1961).

9

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

10

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

11

Supra note 9.

5

deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper
extremity schedule award.
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the August 1, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: March 27, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6