United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
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and
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DEPARTMENT OF HEALTH & HUMAN
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SERVICES, Falls Church, VA, Employer
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___________________________________________ )
C.S., Appellant

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

Docket No. 06-2128
Issued: February 6, 2007

Case Submitted on the Record

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

JURISDICTION
On September 21, 2006 appellant filed a timely appeal of a June 20, 2006 decision of the
Office of Workers’ Compensation Programs, which denied her request for reconsideration.
Because more than one year has elapsed between the most recent merit decision dated
January 11, 1996 and the filing of this appeal, the Board lacks jurisdiction to review the merits of
appellant’s claim pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d)(2). The only decision properly
before the Board is the Office’s June 20, 2006 decision denying appellant’s request for
reconsideration.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that her request was untimely filed and failed to
demonstrate clear evidence of error.

FACTUAL HISTORY
On June 21, 1995 appellant, then a 41-year-old analyst, filed a traumatic injury claim
alleging that her neck “popped” on June 15, 1995 when she was reaching for a telephone at
work. She alleged that she was unable to move her neck without turning her entire body in her
swivel chair to the left. Appellant experienced pain in her left shoulder, neck, arm, wrist and
headaches with blurry vision in her left eye. She stopped work on June 27, 1995.1
After the Office advised appellant of the evidence needed to establish her claim, she
submitted an October 19, 2005 response alleging that she notified her immediate supervisor and
that the employing establishment did not properly assist her with her claim. Appellant referred
to a September 5, 1990 traumatic injury, alleging that she never stopped receiving treatment for
this injury. Appellant stated that repetitive use of the computer and the constant positioning of
her body at work exacerbated her previous injury and caused new problems. She enclosed
another copy of a Form CA-1, alleging injury on June 15, 1995. The Office also received the
receipt portion of a Form CA-2 indicating that Margaret Meyer, a supervisory attorney, received
notice of appellant’s condition on June 21, 1995.2 In an October 10, 1995 statement,
Carolyn Goodwin, a supervisor, advised that since January 1992 appellant had experienced
difficulty walking, bending, stooping and lifting claim files. Ms. Goodwin indicated that
appellant’s complaints continued until she left for a detail in October 1994.
In a November 16, 1995 decision, the Office denied appellant’s claim for compensation,
finding that the medical evidence did not establish that the June 15, 1995 employment incident
caused an injury.
By letter dated November 20, 1995, appellant requested reconsideration. She contended
that the Office did not consider the report of her treating physician, Dr. William Truly, a Boardcertified family practitioner. Appellant enclosed a copy of an October 27, 1995 report in which
Dr. Truly noted that appellant was seen on June 29, 1995. She related complaints of “pain in her
left eye, shoulder, arm, elbow, hand, wrist and neck with an acute exacerbation on
June 15, 1995.” Appellant described having symptoms of headaches and pain in her neck as
early as March 1995 and having “chronic pain in her left lower back and hip with pain radiating
into her left lower extremity since an on[-]the[-]job injury in 1990.” Dr. Truly conducted an
examination and diagnosed chronic cervical strain with radicular pain in the left upper extremity,
chronic lumbosacral pain with radiculopathy into the left lower extremity, fibromyositis for low
back, scar tissue, left cervical and scapula with trigger zone in the left rib cage at lower border of
the trapezius, L5 sacralization on the left side, facet disease at L5-S1, lumbar spondylosis,
degenerative changes of the right foot, both knees, wrist and greater trochanter bursitis at T7 and
thoracolumbar. Dr. Truly opined that repetitive motion activities prolonged standing, walking or
sitting or any activity that would involve constant positioning of the neck “such as using

1

The record reflects that appellant has an accepted claim for a fall at work on September 5, 1990. The Office
accepted the claim for a left arm strain, left hip contusion, left leg strain and chronic lumbosacral strain.
2

No other portions of a CA-2 form were submitted to the record by appellant. Ms. Meyer advised appellant on
June 21, 1995 that she should file an occupational disease claim if she alleged progressive symptoms.

2

computers or excessive writing” would aggravate any preexisting injuries sustained in the fall
of 1990.
By decision dated December 15, 1995, the Office found that the evidence was
insufficient to warrant modification of the November 16, 1995 decision. The Office found that
the medical reports submitted on reconsideration were insufficient as they did not address the
employment factor of June 15, 1995, which appellant described as reaching for a telephone or
provide an opinion as to how her conditions were caused or aggravated by the June 15, 1995
incident.
By letter dated January 4, 1996, appellant requested reconsideration.
In a January 4, 1996 report, Dr. Truly opined that computer operators “suffer all types of
physical problems to include eye strain with headaches and dizziness, neck, shoulder, hand, wrist
(computeritis) and back problems produced by improper posture, a result of having to maintain
the same position and work where the ergonomic considerations have not been worked out.” He
stated that answering the telephone on June 15, 1995 involved reaching and twisting. Dr. Truly
noted that appellant repeated this activity up to 30 times a day and that this aggravated her
condition. He stated that, “when ergonomic problems have not been addressed, as in this case, a
strain is placed on the muscles, tendons and joints which can be attributed to a poorly designed
workplace. When one has to also lift heavy claims folders and reference text’s weighing up to
15 to 20 pounds; the problem is aggravated further.” Dr. Truly opined that appellant’s
preexisting workplace injury was worsened by having to perform job duties.
By decision dated January 11, 1996, the Office denied modification of the June 15, 1995
decision. It found that the medical evidence was insufficient to establish the fact that the
employee sustained a traumatic injury on June 15, 1995.3
On March 29, 2006 appellant’s attorney requested reconsideration. He contended that
she was actually filing a claim for an occupational disease. Counsel referenced the reports of
Dr. Truly, stating that they suggested a new occupational injury or an aggravation of her
September 15, 1990 injury due to the repetitive activities of her position. He argued that the
Office’s development of the claim should have included development for an occupational
disease. Counsel noted that Dr. Truly’s January 4, 1996 report addressed the June 15, 1995
incident and, when read in conjunction with the October 27, 1995 report, supported a history of a
traumatic injury on June 15, 1995. He argued that the Office should have developed the claim
through a second opinion examination as appellant made a prima facie case for an occupational
disease claim. The Office also received physical therapy notes, a copy of Dr. Truly’s
October 27, 1995 report and another copy of Ms. Goodwin’s October 10, 1995 statement.
In a decision dated June 20, 2006, the Office denied appellant’s request for
reconsideration finding that it was not timely filed and failed to establish clear evidence of error.

3

The Office also noted that appellant was previously advised that if she wished to file an occupational disease
claim, she should file a separate claim. However, the Office noted that appellant did not file an occupational disease
but rather, she continued to indicate that her injury occurred on June 15, 1995.

3

LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act4 vests the Office with
discretionary authority to determine whether it will review an award for or against compensation:
“The Secretary of Labor may review an award for or against payment of
compensation at any time on his own motion or on application. The Secretary, in
accordance with the facts found on review may -(1) end, decrease, or increase the compensation awarded; or
(2) award compensation previously refused or discontinued.”5
The Office’s imposition of a one-year time limitation within which to file an application
for review as part of the requirements for obtaining a merit review does not constitute an abuse
of discretionary authority granted the Office under section 8128(a).6 This section does not
mandate that the Office review a final decision simply upon request by a claimant.
The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a). Section 10.607(a) of the implementing regulation
provides that an application for reconsideration must be sent within one year of the date of the
Office decision for which review is sought.7
Section 10.607(b) states that the Office will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by the Office in its most recent
merit decision. The reconsideration request must establish that the Office’s decision was, on its
face, erroneous.8
To establish clear evidence of error, a claimant must submit evidence relevant to the issue
that 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 that does not raise a substantial
question concerning the correctness of the Office’s decision is insufficient to establish clear
evidence of error. 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.9 To show clear
evidence of error, the evidence submitted must not only be of sufficient probative value to create
4

5 U.S.C. §§ 8101-93.

5

5 U.S.C. § 8128(a).

6

Diane Matchem, 48 ECAB 532, 533 (1997); citing Leon D. Faidley, Jr., 41 ECAB 104, 111 (1989).

7

20 C.F.R. § 10.607(a).

8

20 C.F.R. § 10.607(b).

9

Steven J. Gundersen, 53 ECAB 252, 254-55 (2001).

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a conflict in the medical opinion 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. 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.10
ANALYSIS
In its June 10, 2006 decision, the Office properly determined that appellant failed to file a
timely application for review. The Office rendered its most recent merit decision on
January 11, 1996. Appellant’s March 29, 2006 request for reconsideration was submitted more
than one year after the January 11, 1996 merit decision and was, therefore, untimely.
In accordance with internal guidelines and with Board precedent, the Office properly
proceeded to perform a limited review to determine whether appellant’s application for review
showed clear evidence of error, which would warrant reopening appellant’s case for merit review
under section 8128(a) of the Act, notwithstanding the untimeliness of his application. The Office
reviewed the evidence submitted by appellant in support of his application for review, but found
that it did not clearly show that the Office’s prior decision was in error.
The Board finds that the evidence submitted by appellant in support of her application for
review does not raise a substantial question as to the correctness of the Office’s decision and is
insufficient to demonstrate clear evidence of error. In its merit decision of January 11, 1996, the
Office found that appellant did not establish that she sustained a traumatic injury on
June 15, 1995. It accepted the incident at work that day but found deficiencies in the medical
evidence.
On March 29, 2006 appellant’s representative requested reconsideration. He contended
that her claim should have been developed as an occupational disease claim. The Board finds
that this argument does not establish clear evidence of error in the January 11, 1996 decision
rejecting her traumatic injury claim. The Office indicated that appellant could file a separate
claim for an occupational disease claim. The Office did not make any findings regarding
whether appellant sustained an occupational disease but instead adjudicated the claim as one for
a traumatic injury. Counsel also argued that the Office erred in failing to further develop the
claim through a second opinion examination as appellant made a prima facie case for an
occupational disease claim. However, the record indicates that the Office acted reasonably in its
development of the claim and appellant was aware that she could pursue an occupational disease
claim if she wished.11 These allegations do not establish clear evidence of error.
10

Id.

11

Even where a prima facie claim is established, there is no requirement that the Office make a medical referral.
Instead, the Office has the responsibility to take the next step, either of notifying the claimant of what additional
evidence is needed to establish the claim fully or of developing the evidence in order to reach a decision. See
Robert P. Bourgeois, 45 ECAB 745 (1994). In the present case, the Office acted reasonably in notifying appellant
of the deficiencies in her claim after the claim was initially filed and also in each decision in which it denied her
claim.

5

Counsel referenced the previously received reports of Dr. Truly dated October 27, 1995
and January 4, 1996, noting that they suggested a new occupational injury or an aggravation of
her September 15, 1990 injury due to the repetitive activities of her position. Appellant’s
representative also alleged that Dr. Truly’s January 4, 1996 report, when read in conjunction
with the October 27, 1995 report, supported a history of a traumatic injury on June 15, 1995.
However, appellant has not shown how the Office’s prior consideration of these reports was
clearly erroneous. There is no evidence that these reports were not properly considered by the
Office in reaching its denial of her claim. The assertions regarding Dr. Truly’s reports do not
raise a substantial question concerning the correctness of prior Office decisions. Office
procedures provide that the term “clear evidence of error” is intended to represent a difficult
standard. The claimant must present evidence which on its face shows that the Office made an
error (for example, proof of a miscalculation in a schedule award). Evidence such as a detailed,
well-rationalized report, which if submitted prior to the Office’s denial, would have created a
conflict in medical opinion requiring further development, is not clear evidence of error and
would not require a review of a case.12
The Office also received physical therapy notes. However, a physical therapist is not a
physician as defined under the Act. Thus, their reports do not constitute probative medical
opinion and have no weight or probative value.13 The Office also received a copy of the
October 10, 1995 statement from Ms. Goodwin. However, the underlying issue is medical in
nature and there is otherwise no evidence or argument addressing how such a statement from a
layperson raises a substantial question regarding the correctness of the Office’s January 11, 1996
decision.
Appellant has not met her burden to establish clear evidence of error on the part of the
Office such that the Office erred in denying merit review. The Board finds that the Office
properly performed a limited review of appellant’s arguments to ascertain whether clear evidence
of error was established. It properly denied appellant’s untimely request for reconsideration.14
CONCLUSION
The Board finds that the Office properly refused to reopen appellant’s claim for
reconsideration of the merits on the grounds that it was untimely filed and failed to show clear
evidence of error.

12

Annie L. Billingsley, 50 ECAB 210 (1998).

13

Jan A. White, 34 ECAB 515, 518 (1983).

14

Nancy Marcano, 50 ECAB 110 (1998).

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ORDER
IT IS HEREBY ORDERED THAT the June 20, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issues: February 6, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.J., Appellant
and
DEPARTMENT OF THE NAVY, LONG
BEACH NAVAL SHIPYARD, Long Beach, CA,
Employer
__________________________________________

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

Docket No. 10-1427
Issued: March 16, 2011

Case Submitted on the Record

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

JURISDICTION
On April 29, 2010 appellant filed a timely appeal from the December 17, 2009 and
April 14, 2010 schedule award decisions of the Office of Workers’ Compensation Programs.
Pursuant to the Federal Employees’ Compensation Act1 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 a 59 percent impairment of his left leg or
more than a 5 percent impairment of his right leg.
FACTUAL HISTORY
On July 6, 1981 appellant, then a 27-year-old sheet metal worker, injured his left knee in
the performance of duty when he fell off a step ladder and landed on his left knee at the base of a
1

5 U.S.C. §§ 8101-8193.

large metal antenna. The Office accepted his claim for contusion, traumatic patellar tendinitis,
torn medial meniscus, consequential right knee aggravation of osteoarthritis and gait alteration
affecting the left ankle, and consequential adjustment disorder with mixed anxiety and
depression.
Appellant underwent a total left knee replacement on October 4, 2004. He received
schedule awards reflecting a 50-percent impairment of his left leg.
On August 25, 2009 appellant requested a schedule award for his left ankle and right
knee.
Dr. John D. Kaufman, a Board-certified orthopedic surgeon, examined him on
September 22, 2009. He complained of bilateral pain, intermittent swelling, popping and
clicking, and occasional locking. The left knee showed no swelling, erythema or tenderness.
Range of motion was 15 to 110 degrees. Ligaments were stable. There was slight-to-moderate
patellofemoral crepitus.
The right knee showed no swelling or erythema but slight-to-moderate tenderness
medially and laterally. Range of motion was full. Ligaments were stable and there was slight
patellofemoral crepitus.
Dr. Kaufman diagnosed status post left total knee replacement and right knee
derangement based on a March 6, 2007 magnetic resonance imaging (MRI) scan.2 Using the
American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed.
2001), he estimated a 60 percent impairment of the left lower limb based on total knee
replacement and decreased motion. Dr. Kaufman estimated a seven percent impairment of the
right lower limb based on a two-millimeter cartilage loss.3
An Office medical consultant reviewed Dr. Kaufman’s findings and used the sixth edition
of the A.M.A., Guides to evaluate appellant’s impairment. Noting that left knee motion of 15 to
110 degrees was a moderate motion deficit under Table 16-23, page 549 of the A.M.A., Guides,
he determined that appellant had a poor result from his knee replacement. Adjusting for
moderate functional problems and moderate findings on physical examination, he determined
that appellant had a 59 percent impairment of his left lower limb under Table 16-3, page 511.
Using Table 16-3, page 511, the Office medical consultant found that patellofemoral
arthritis of the right knee was a three percent impairment of the lower limb. He saw no clear-cut
documentation of roentgenographic narrowing of any compartment of the right knee. Using the
same table at page 509, the Office medical consultant found two percent impairment for partial
medial meniscectomy. Appellant’s functional history and physical examination revealed a mild
problem, which clinical studies confirmed, so he made no adjustment to the percentages.
Dr. Kaufman combined the three and two percent impairments for a total right leg impairment of
five percent.
2

The MRI scan showed both medial and lateral meniscus tears. Appellant underwent an authorized right partial
medial meniscectomy on November 10, 2008.
3

On March 26, 2009 Dr. Kaufman diagnosed mild osteoarthritis of the right knee. X-rays obtained at that time
showed “narrowing of the joint spaces.” X-rays of the left knee showed satisfactory position of the knee
replacement.

2

On December 17, 2009 the Office issued a schedule award for a 59 percent impairment of
the left lower extremity and a 5 percent impairment of the right. It awarded 46.08 weeks of
compensation.
Appellant requested a review of the written record. He argued that he should be paid a
schedule award for his consequential adjustment disorder with mixed anxiety and depression.
Appellant objected the five percent rating for his right knee, as the claims examiner had informed
him he would be receiving seven percent.
In an April 14, 2010 decision, an Office hearing representative affirmed the impairment
ratings. The hearing representative found that the opinion of the Office medical consultant
represented the weight of the medical evidence.
On appeal, appellant argues that the hearing representative did not address the issues he
raised.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act4 authorizes the payment of
schedule awards for the loss or loss of use of specified members, organs or functions of the body.
Such loss or loss of use is known as permanent impairment. The Office evaluates the degree of
permanent impairment according to the standards set forth in the specified edition of the A.M.A.
Guides.5
For the total loss of a leg, as with amputation at the hip, the Act pays a maximum of 288
weeks of compensation.6 Partial losses are compensated proportionately.7
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.8
ANALYSIS
Dr. Kaufman, the orthopedic surgeon who examined appellant’s knees, estimated
impairment ratings using the older fifth edition of the A.M.A., Guides. Physicians must now use
the sixth edition.9 Because Dr. Kaufman based his impairment ratings on the outdated edition of
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

5 U.S.C. § 8107(c)(2).

7

Id. at § 8107(c)(19).

8

Id. at § 8123(a).

9

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

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the A.M.A., Guides, the Office cannot use those percentages to award compensation. The Office
properly asked a medical adviser to review the medical findings of Dr. Kaufman under the
impairment criteria found in the sixth edition.
Diagnosis-based impairment is the primary method of evaluating the lower limb under
the sixth edition. In most cases, only one diagnosis in a region, such as the knee, will be
appropriate. If a patient has two significant diagnoses, the examiner should use the diagnosis
with the highest impairment rating in that region that is causally related for the impairment
calculation.10
For the left lower limb, Dr. Kaufman diagnosed status post left knee replacement. Such a
surgery can have a good, fair or poor result depending on position, stability, motion or chronic
infection. Dr. Kaufman recorded range of motion from 15 to 110 degrees. Flexion to 110
degrees is normal and represents no deficit in motion. A flexion contracture of 15 degrees,
however, or an inability to straighten out the leg completely, is considered a moderate motion
deficit.11 Even a moderate motion deficit in a total knee replacement is considered a poor result
under Table 16-3, page 511. Because appellant’s functional history12 and physical examination13
revealed only moderate problems,14 appellant’s left lower limb impairment under Table 16-3,
page 511, is 59 percent, which the Office awarded. This was 9 percent more than appellant
previously received. The Board will affirm the Office’s December 17, 2009 and April 14, 2010
decisions on the impairment rating of appellant’s left lower limb.
For the right lower limb, Dr. Kaufman diagnosed derangement based on the March 6,
2007 MRI scan. The MRI scan showed both medial and lateral meniscal tears, for which
appellant underwent an authorized partial medial meniscectomy. This is considered a mild
problem under Table 16-3, page 509, with a default impairment value of 10 percent.
Dr. Kaufman also found a two-millimeter cartilage loss, presumably from the x-rays he
obtained on March 26, 2009, which, he reported at the time, showed narrowing of the joint
spaces. The Office medical consultant disagreed. He saw no clear-cut documentation of
roentgenographic narrowing of any compartment of the right knee. The Board therefore finds a
conflict between appellant’s physician and the Office physician on whether appellant has a
roentgenographic narrowing of any compartment of the right knee.
The resolution of this conflict is necessary to determine the extent of impairment to the
right lower limb. When a patient has two significant diagnoses, such as meniscal injury and
arthritis, the examiner should use the diagnosis with the highest impairment rating in that region
that is causally related. The Office accepted an aggravation of osteoarthritis in the right knee and
10

A.M.A., Guides 497.

11

Id. at 549 (Table 16-23).

12

Id. at 516 (Table 16-6).

13

Id. at 517 (Table 16-7).

14

The March 26, 2009 x-ray showed satisfactory position of the knee replacement.

4

authorized the partial medial meniscectomy. It has an obligation to resolve the conflict on the
roentgenographic findings for the purpose of determining the extent of appellant’s impairment.
The Board will set aside the Office’s December 17, 2009 and April 14, 2010 decisions on
the issue of right leg impairment. The Board will remand the case to the Office for further
development of the medical evidence. After such further development deemed necessary, the
Office shall issue an appropriate schedule award for the right leg.
Appellant argues that the hearing representative did not address certain issues raised
when he requested a review of the written record. These included a schedule award for his
consequential adjustment disorder with mixed anxiety and depression.
The schedule award provisions of the Act and implementing regulations15 authorize the
Office to pay schedule awards for specified members, functions or organs of the body. The list
of body parts includes the arm, leg, hand, foot, eye, thumb, various fingers and toes, and loss of
hearing. It includes the breast, kidney, larynx, lung, penis, testicle, tongue, ovary and uterus. A
claimant may receive a schedule award for permanent impairment to any of the members,
functions or organs listed.
There is no listing for the brain or for psychological conditions such as adjustment
disorder with mixed anxiety and depression. There is no provision under the Act or regulations
for such a schedule award. The Office may pay compensation for disability or medical expenses
resulting from an accepted psychological condition, but it may not pay a schedule award.
Appellant’s psychological condition does not appear on the schedule award list.
As to the extent of impairment of his right leg, the case is being remanded for further
medical development to an impartial medical specialist.
CONCLUSION
The Board finds that appellant has no more than a 59 percent impairment of his left lower
extremity. The Board finds that this case is not in posture for decision on the right lower
extremity. Further development of the medical evidence is warranted.

15

20 C.F.R. § 10.404.

5

ORDER
IT IS HEREBY ORDERED THAT the April 14, 2010 and December 17, 2009
decisions of the Office of Workers’ Compensation Programs are affirmed on the issue of left leg
impairment but are set aside on the issue of right leg impairment. The case is remanded for
further action in conformance with this decision.
Issued: March 16, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Grand Rapids, MI, Employer
__________________________________________

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Appearances:
Thomas P. Nelson, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 15-0785
Issued: August 11, 2015

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 February 24, 2015 appellant, through counsel, filed a timely appeal from an
August 28, 2014 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has met her burden of proof to establish an injury in the
performance of duty.

1
2

5 U.S.C. § 8101 et seq.

The record contains additional evidence following the August 28, 2014 decision. The Board, under 20
C.F.R. § 501.2(c), is precluded from reviewing new evidence that was not before OWCP at the time it rendered its
decision.

FACTUAL HISTORY
On July 14, 2014 appellant, then a 56-year-old city carrier, filed a traumatic injury claim
alleging that on July 10, 2014 she sustained a right knee injury. She alleged that while walking
downstairs she missed a step causing her right knee to swell. Appellant stopped work on
July 13, 2014.
In a July 11, 2014 disability status report, Dr. Lisa Forrest, Board-certified in emergency
medicine, advised that appellant was unable to work. In a July 14, 2014 disability status report,
Dr. Zbigniew Srodulski, Board-certified in emergency medicine, diagnosed traumatic right knee
effusion and internal derangement.
Also submitted were June 23, 2014 diagnostic and hospital reports for an unrelated
incident where appellant injured her right knee. In the June 23, 2014 report, Dr. Devin
Woelzlein, a specialist in emergency medicine, advised that appellant was experiencing right
knee pain after jumping off a small ledge while delivering mail. He further advised that she had
a history of right knee problems and had undergone right knee surgery twice previously.
Dr. Devin noted that on examination appellant had normal range of motion, edema, tenderness
along the medial and lateral joint line, right knee swelling, and effusion. An x-ray of the right
knee revealed joint effusion, but no evidence of fracture, dislocation, or soft tissue swelling.
Dr. Woelzlein diagnosed a right knee sprain.
By letter dated July 25, 2014, OWCP notified appellant that evidence was insufficient to
establish that she actually experienced the incident alleged to have caused the injury. Appellant
was advised to complete a questionnaire establishing the factual element of her claim and advise
of the type of medical evidence needed.
In a July 11, 2014 hospital report, Dr. Forrest, advised that appellant’s daughter related
that appellant missed a step at work and fell onto her right knee. She further advised that
appellant continued to work that day, but the next day the pain and swelling worsened.
Dr. Forrest noted that appellant was seen a month prior for right knee pain, but the symptoms
were worse with this incident. She also noted that appellant had two previous meniscus tears
both requiring an arthroscopy. On examination Dr. Forrest noted right knee swelling with
obvious effusion and pain over the medial and lateral joint line. She assessed internal
derangement of the right knee joint. An accompanying July 11, 2014 x-ray report advised that a
right knee x-ray revealed patellar spurring, no evidence of fracture, and joint effusion.
In a July 14, 2014 report, Dr. Zbigniew Srodulski, Board-certified in emergency
medicine, advised that appellant was injured at work when she missed a step and landed on her
foot while hyperextending her right knee. He noted that, although she did not fall completely,
she was experiencing moderate aching pain. Physical examination revealed decreased range of
motion, pain medially and laterally with valgus and varus stress, and tenderness along the medial
and lateral joint line. Dr. Srodulski noted that there was no ecchymosis, deformity, laceration,
erythema, bony tenderness, patellar tendon tenderness, restrictions on patellar mobility, or
medial collateral ligament (MCL) laxity. He further noted that appellant had a history of two
prior meniscus tears requiring surgery. A July 17, 2014 magnetic resonance imaging (MRI) scan
report stated that appellant had a tear of the anterior cruciate ligament (ACL), fracture of the

2

posterior tibia, tear of the medial meniscus, full-thickness chondral loss over the posterior
portion of the medial tibial plateau, and large joint effusion.
On July 18, 2014 Dr. Forrest advised that the swelling improved, but appellant was still
experiencing pain and instability even without weight bearing. She advised that appellant would
remain off work and that a surgery referral would be made. Appellant submitted July 18
and 22, 2014 disability status reports advising her of inability to return to work.
In a July 23, 2014 report, Dr. Robert Lee Highhouse, Board-certified in orthopedic
surgery and sports medicine, advised that appellant injured herself at work on June 23 and
July 10, 2014 and that on both occasions she missed a step and fell. He noted that following the
first incident her symptoms were mild and she was able to return to work; however, her injuries
were more significant following the second incident. Dr. Highhouse further noted that appellant
had a history of knee problems, but she was able to perform the duties of her position. He
reiterated the MRI scan findings and diagnosed right knee pain, tibial plateau fracture, ACL tear,
and medial meniscus tear. Dr. Highhouse recommended bracing and estimated that appellant
would need three to five months out of work to recover.
In an August 3, 2014 statement, appellant advised that while she was delivering mail she
missed a step. She noted that her right leg did not land normally and that the pressure from the
missed step caused her right knee to feel as though it was smashed from her lower leg and upper
thigh. Appellant advised that she experienced a burning sensation in her knee and that the next
day her knee was swollen. She submitted hospital reports related to the June 23, 2014 right knee
injury.
By decision dated August 28, 2014, OWCP denied appellant’s claim because medical
evidence was insufficient to establish that the diagnosed conditions were causally related to the
work incident.3
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his or her claim by the weight of reliable, probative, and substantial
evidence,4 including that he or she is an “employee” within the meaning of FECA and that he or
she filed his or her claim within the applicable time limitation.5 The employee must also

3

Appellant continued to submit medical evidence and requested review of the written record on
September 22, 2014. By letter dated April 9, 2015, OWCP advised her that, although the request was timely, it no
longer retained jurisdiction to conduct a review of the written record because she had filed an appeal of the
August 28, 2014 decision to ECAB. It explained that ECAB and OWCP could not have simultaneous jurisdiction
over the same issue. See Douglas E. Billings, 41 ECAB 880 (1990).
4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 57 (1968).

5

R.C., 59 ECAB 427 (2008).

3

establish that she sustained an injury in the performance of duty as alleged and that her disability
for work, if any, was causally related to the employment injury.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.
There are two components involved in establishing fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place, and in the manner alleged. Second, the employee must submit medical evidence
to establish that the employment incident caused a personal injury.7
Rationalized medical opinion evidence is generally required to establish causal
relationship. The opinion of the physician must be based on a complete factual and medical
background, 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.8
ANALYSIS
OWCP has accepted the July 10, 2014 incident. The Board finds that the medical
evidence is insufficient to establish that the employment incident on July 10, 2014 caused
appellant’s right knee conditions.
In his July 14, 2014 report, Dr. Srodulski, advised that appellant was injured at work
when she missed a step and landed on her foot while hyperextending her right knee. He noted
that she did not fall completely, but she experienced moderate aching pain. Although
Dr. Srodulski described the incident, he did not provide medical rationale explaining how the
incident caused or contributed to appellant’s torn ACL, fractured posterior tibia, torn medial
meniscus, full-thickness chondral loss, and large joint effusion. As noted, rationalized medical
opinion evidence is generally required to establish causal relationship.
In his July 23, 2014 report, Dr. Highhouse advised that appellant injured herself at work
on June 23 and July 10, 2014 when she misstepped and fell. He noted that she had a history of
knee problems and reiterated the MRI scan findings. Although Dr. Highhouse advised that
appellant was injured at work, he failed to explain how the work incident caused or contributed
to the diagnosed conditions. Given that appellant has a history of right knee injuries, the need
for medical rationale is particularly important.
In her July 11, 2014 hospital report, Dr. Forrest, advised that appellant sustained a right
knee injury. She advised that appellant’s daughter related that she missed a step at work and fell
onto her right knee. Although she provides a history of the incident as relayed by appellant,

6

Id.; Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

7

T.H., 59 ECAB 388 (2008).

8

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

4

Dr. Forrest does not provide an opinion on causal relationship. The Board has held that a report
without an opinion as to causal relationship is of little probative value.9
Disability status and diagnostic reports are also insufficient to discharge appellant’s
burden of proof as they do not offer a physician’s opinion on causal relationship between the
diagnosed conditions and the July 10, 2014 work incident.10
Other reports including the June 23, 2014 hospital and diagnostic reports are insufficient
to discharge appellant’s burden of proof because they predate and are unrelated to the July 10,
2014 work incident in question.11
Consequently, appellant has submitted insufficient medical evidence to establish her
claim. As noted, causal relationship is a medical question that must be established by probative
medical opinion from a physician.12 The physician must accurately describe appellant’s work
duties and medically explain the pathophysiological process by which these duties would have
caused or aggravated her condition. The need for medical reasoning or rationale is particularly
important where the record indicates that appellant had a previous condition to the same area of
the body. Because appellant has not provided such medical opinion evidence in this case, she
has failed to meet her burden of proof.
Counsel asserts that appellant was denied due process as the employing establishment
took or threatened negative actions against her because of her claimed injury. The Board notes
that it has no jurisdiction over internal personnel matters of the employing establishment.13
Furthermore, there is no provision in FECA or its implementing regulations for payment of a
claimant’s attorney’s fees.14
Appellant may submit or resubmit new evidence or argument as part of a formal 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. More specifically, she may request
reconsideration and in support thereof the medical evidence which she attempted to submit
following OWCP’s August 28, 2014 merit decision.

9

See Jaja K. Asaramo, 55 ECAB 200 (2004) (medical evidence that does not offer an opinion regarding the cause
of an employee’s condition is of limited probative value on the issue of causal relationship).
10

Id.

11

Matters pertaining to the June 23, 2014 incident are not before the Board on the present appeal.

12

See supra note 7.

13

See V.B., Docket No. 12-114 (issued June 13, 2012). The Board only has jurisdiction over final decisions of
OWCP arising under FECA; see 20 C.F.R. § 501.2(c).
14

Linda D. Perren (Larry P. Perren), 49 ECAB 246 (1997).

5

CONCLUSION
The Board finds that appellant has not established a traumatic injury in the performance
of duty.
ORDER
IT IS HEREBY ORDERED THAT the August 28, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 11, 2015
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


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.R., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Oakland, CA, Employer
__________________________________________

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

Docket No. 07-1769
Issued: April 28, 2008

Case Submitted on the Record

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

JURISDICTION
On June 20, 2007 appellant filed a timely appeal from a May 18, 2007 nonmerit decision
of the Office of Workers’ Compensation Programs which denied his request for reconsideration.
He also appealed from the June 28 and November 29, 2006 merit decisions denying his claim for
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the appeal.
ISSUES
The issues are: (1) whether appellant established entitlement to compensation
commencing February 24, 2003; and (2) whether the Office properly denied his reconsideration
request without further merit review under 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case was previously before the Board. By decision dated September 19, 2005, the
Board found that the Office properly terminated appellant’s wage-loss compensation as of

February 23, 2003 based on his refusal of an offer of suitable work.1 The Board noted that the
work restrictions set forth by Dr. Carlton J. Wong, an attending Board-certified family
practitioner, had been approved by Dr. Satish K. Sharma, an attending internist. It also found
that appellant did not establish that he had a preexisting psychological condition which prevented
him from performing the duties of the offered position. The facts and history of the case are set
forth in the Board’s prior decision and incorporated herein by reference.
On September 29, 2005 appellant requested reconsideration before the Office, contending
that working the mail weight scale would cause a recurrence of a psychological condition which
came to light when he was initially offered the position. He addressed medical reports
previously of record and reiterated arguments concerning the legitimacy of the offered position.
Appellant contended that the Office violated its implementing federal regulations at section
10.515(c) and (d), which pertain to the employee’s responsibility in advising a treating physician
of alternative available positions or accommodations at the employing establishment. He did not
submit any new medical evidence.
By decision dated November 29, 2005, the Office denied appellant’s reconsideration
request, finding that his contentions were insufficient to require further merit review.
On December 12, 2005 appellant requested reconsideration, stating that he was restricted
from repetitive motions at shoulder level and that the job offer involved repetitive movements he
could not perform. He submitted a copy of a September 27, 2002 duty status report, previously
of record. In a December 6, 2005 note, Dr. Eric Wang, a Board-certified internist, stated that
appellant had been a patient since April 2003 and had a long history of shoulder problems. He
advised that appellant could not do any repetitive motions involving either shoulder. Dr. Wang
stated that he had reviewed appellant’s chart, noting that his shoulder problems had existed for at
least five years and were present on November 11, 2002.2
In a March 8, 2006 decision, the Office denied modification of its prior decisions. It was
noted that Dr. Wang provided insufficient rationale to overcome the report of Dr. Sharma, who
found that appellant was capable of performing the work duties subject to weight restrictions on
lifting and no overhead work.
Appellant again requested reconsideration on April 20, 2006. In an April 14, 2006 report,
Dr. Sharma advised that appellant reached a permanent and stationary status as of December 28,
2001 with restrictions of lifting no more than two pounds with the right arm and no overhead
lifting. He addressed his previous review of the modified job offer, noting that appellant was
now seen by Dr. Wang. Dr. Sharma reviewed the note of Dr. Wang, stating: “I initially sent you
a letter on January 15, 2003 that [appellant] can do the modified job as you described in your

1

Docket No. 05-892 (issued September 19, 2005). The Office accepted that appellant sustained a left rib
contusion and right shoulder sprain on September 6, 2000 after he was struck by a mail container. The employing
establishment offered appellant a position as a limited duty monitor working at postal scales.
2

On November 20, 2002 the Office advised appellant that it found the offered position to be medically suitable
based on his work capacity and currently available.

2

letter, but now when I review the notes by Dr. Wang and also my previous notes, I do not think
that he could do that job as it required repetitive motion of his arms.”
On June 28, 2006 the Office denied modification of the March 8, 2006 decision. It found
that Dr. Sharma did not sufficiently explain why he was changing his opinion as provided on
January 15, 2003, noting that the job required appellant to insert one ounce tags approximately
20 times a day in an eight-hour day.
On September 8, 2006 appellant requested reconsideration. In a September 1, 2006
report, Dr. Sharma reiterated his April 14, 2006 report, noting that appellant was followed by
Dr. Wang at a different Kaiser Permanente facility. He stated:
“I do not think [appellant] could do that job because his job involves inserting a
piece of paper of less than one ounce into a date-stamper several times a day and
waiting for printouts to be generated. This job involves repeated motion of his
shoulder and he has problems with both his shoulders. As I was reviewing his
records, his shoulders [sic] pain was persistent and he did not improve to the
extent that he could do any range of motion of the shoulder….”
By decision dated November 29, 2006, the Office denied modification of the June 28,
2006 decision. It found that the September 1, 2006 letter of Dr. Sharma was largely repetitive of
his April 16, 2006 letter. The Office stated that, as to the medical evidence, Dr. Sharma did not
provide a sufficient explanation for changing his medical opinion, noting that his description of
appellant’s duties was inadequate or why inserting a one ounce tag into a machine 20 times
during an eight-hour day was considered repetitive motion.
On February 16, 2007 appellant requested reconsideration, submitting an undated report
from Dr. Sharma. Appellant noted that he filed a grievance against Dr. Sharma and was seeking
a recovery “equal to my benefit compensation that I should have received from February 24,
2003 to present.” The report from Dr. Sharma reiterated his prior statement that inserting a one
ounce tag into a date stamp machine approximately 20 times in an eight-hour day required
repetitive motion of the shoulder. He stated that he was “wrong” in giving the decision that
appellant could do the job.
By decision dated May 18, 2007, the Office denied appellant’s reconsideration request,
finding the evidence submitted to be duplicative and repetitious.
LEGAL PRECEDENT -- ISSUE 1
Once the Office meets its burden of proof to terminate an employee’s compensation
benefits, the burden of proof shifts to the employee to establish that he or she has disability
causally related to the accepted injury.3 Causal relationship is a medical issue and the medical
evidence generally required to establish causal relationship is rationalized medical opinion from
a physician, based on a complete and accurate factual and medical background, supported by an

3

See Kathryn E. Demarsh, 56 ECAB 677 (2005).

3

explanation of the relationship between the diagnosed condition and the factors of employment.4
A medical opinion is of limited probative value if it contains a conclusion regarding causal
relationship that is unsupported by medical rationale.5
ANALYSIS -- ISSUE 1
Appellant’s claim was accepted for a left rib contusion and right shoulder sprain/strain.
In the prior appeal, the Board found that the employing establishment offered suitable work
based on the physical restrictions set forth by Dr. Wong, an attending physician. Dr. Sharma
also reviewed the job description and approved the work restrictions set forth by Dr. Wong. It
was determined that appellant refused an offer of suitable work and his wage-loss benefits were
terminated as of February 23, 2003.
Appellant sought reconsideration of the termination decision, contending that the
requirements of the position exceed the physical limitations imposed by his physicians. He
provided a December 6, 2005 note from Dr. Wang, who advised that appellant had a long history
of shoulder problems and could not do repetitive motions involving either shoulder. Dr. Wang
stated that he reviewed appellant’s chart and that his shoulder problems had existed as of
November 11, 2002, prior to the Office decision terminating compensation. The Board finds that
the note of Dr. Wang is insufficient to establish that appellant was incapable of performing the
duties of the offered position when offered in November 2002. The note consists of a brief
recitation of appellant’s shoulder problems. Dr. Wang does not indicate any knowledge of
appellant’s accepted conditions or otherwise discuss appellant’s medical treatment
contemporaneous with the job offer. He did not address the reports of Dr. Wong or Dr. Sharma
or the physical limitations imposed prior to the job offer being made. The note does not provide
any description of the requirements of the job offer or explain how the work activities proposed
in the modified position would require repetitive motion of the shoulder. The job description
provided that appellant would have to push a button on a data processing machine that was not
higher than his shoulder level. The note of Dr. Wang does not provide any medical rationale in
support of the physician’s stated conclusion that appellant was unable to perform any repetitive
motion involving the shoulders. In fact, as written, the note does not go so far as to say that
appellant was unable to perform the duties of the position when offered; only that appellant’s
shoulder problems existed in November 2002 at the time the job offer was being made. As
noted, Dr. Wong provided physical limitations pertaining to appellant’s use of his shoulder in the
modified-duty position. The opinion of Dr. Wang is of diminished probative value and does not
establish that the suitable work offered by the employing establishment violated appellant’s
physical limitations.
Appellant also submitted additional medical evidence from Dr. Sharma. On April 14,
2006 Dr. Sharma reiterated that appellant had reached permanent and stationary status as of
December 28, 2001 with restrictions of lifting no more than two pounds with the right arm and
4

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

5

See Conrad Hightower, 54 ECAB 796 (2003) (noting that contemporaneous evidence may be entitled to greater
probative evidence than that submitted later.) Accord Eileen R. Kates, 46 ECAB 573 (1995); Katherine A.
Williamson, 33 ECAB 1696 (1982); Arthur N. Meyers, 23 ECAB 111 (1971).

4

no overhead lifting. He noted that he had not recently treated appellant, who was now seen by
Dr. Wang. After reviewing Dr. Wang’s note, Dr. Sharma stated: “I do not think that he could do
that job as it required repetitive motion of his arms.” The Board notes that he did not offer any
medical rationale for this stated conclusion other than noting that he relied on the note of
Dr. Wang. As noted, however, there are serious deficiencies in the rationale provided by
Dr. Wang. Dr. Sharma gave no other reason for stating that he did not feel that appellant could
do the job. There is no evidence of record that he examined appellant in 2006, some four years
after the job offer. Dr. Sharma did not provide any description of the job duties under the
suitable work offer, to assure an accurate recollection of the lifting involved. Moreover, he does
not reconcile his comment that appellant had been permanent and stationary since December,
2001 with a right arm lifting restriction of two pounds with any discussion as to when or how
appellant’s condition changed such that he was precluded from performing the job when offered
in November 2002. In the prior appeal, the Board noted that the restrictions were set by
Dr. Wong. Dr. Sharma did not address the reports of Dr. Wong to explain why he was changing
his mind four years after the fact.
In a September 8, 2006 report, Dr. Sharma referenced his April 14, 2006 comments,
again noting that appellant was followed at a different Kaiser Permanente facility. He described
the job as involving insertion of a piece of paper of less than one ounce into a date stamp
machine several times a day. Dr. Sharma stated that this involved repetitive motion and that
“[appellant] did not improve to the extent that he could do any range of motion of the shoulder.”
This explanation by him is not well rationalized. Dr. Sharma does not report on any physical
examination of appellant or otherwise explain what findings he was relying on in 2006 to
conclude that appellant was not capable of any range of motion of the shoulder in 2002. He did
not attempt to explain the inherent inconsistency between his previous statements that appellant
was permanent and stationary as of December 2001 with a two-pound lifting restriction, with the
job requirement that appellant insert a one ounce piece of paper into a machine located at a
height that did not require overhead lifting. Again, there is no indication that the opinion was
based on any examination of appellant or a discussion of the medical opinion from Dr. Wong,
who provided the work restriction with which Dr. Sharma previously agreed. There was no
attempt to reconcile Dr. Sharma’s current conclusion with the evidence contemporaneous to the
time of the job offer and appellant’s refusal. His reports contain, at best, contradictory opinions
regarding appellant’s employability. For these reasons, the Board finds that the medical
evidence contemporaneous with the 2002 job offer is entitled to greater probative value.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of the Act vests the Office with discretionary authority to determine
whether it will review an award for against compensation, either under its own authority or on
the application of a claimant.6 Section 10.608(a) of the Office’s implementing federal
regulations provides that timely requests for reconsideration may be granted if the Office
determines that the employee has presented evidence or argument that meets at least one of the
standards described in section 10.606(b)(2).7 This section provides that the application for
6

5 U.S.C. § 8128(a). See Freddie Mosley, 54 ECAB 255 (2002).

7

20 C.F.R. § 10.608(a).

5

reconsideration must be submitted in writing and set forth arguments and contain evidence that
either: (i) shows that the Office erroneously applied or interpreted a specific point of law; or
(ii) advances a relevant legal argument not previously considered by the Office; or (iii)
constitutes relevant and pertinent new evidence not previously considered by the Office.8
Section 10.608(b) provides that, when a request for reconsideration is timely but fails to meet at
least one of these requirements, the Office will deny the application for reconsideration without
reopening the case for a review on the merits.9
ANALYSIS -- ISSUE 2
In support of his February 16, 2007 reconsideration request, appellant noted that he had
filed a grievance against Dr. Sharma and submitted an undated report from the physician, who
reiterated his prior statements. He did not allege or demonstrate that the Office erroneously
applied or interpreted a point of law or advance a relevant legal argument not previously
considered by the Office. The report of Dr. Sharma noted his previous letters of April and
September 2006 addressing appellant’s incapacity to perform the duties of the suitable work job
offer and his present treatment by Dr. Wang. The Board notes that this evidence is duplicative of
the physician’s April and September 2006 reports and stated conclusion. It is well established
that evidence which repeats or duplicates that already of record and considered by the Office
does not constitute a basis for reopening a claim for further merit review.10 The opinion
provided in Dr. Sharma’s undated report addresses the same material as that previously
considered by the Office. Appellant did not submit evidence sufficient to warrant further merit
review of his claim.
CONCLUSION
The Board finds that appellant did not establish that he was unable to perform the duties
of the 2002 suitable work job offer; therefore, he has not established entitlement to compensation
after February 23, 2003. The Office properly determined that appellant was not entitled to
further merit review of his claim.

8

20 C.F.R. § 10.606(b).

9

20 C.F.R. § 10.608(b).

10

See Edward W. Malaniak, 51 ECAB 279 (2000).

6

ORDER
IT IS HEREBY ORDERED THAT the May 18, 2007 and November 29 and June 28,
2006 decisions of the Office of Workers’ Compensation Programs be affirmed.
Issued: April 28, 2008
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Minerva, OH, Employer
__________________________________________

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

Docket No. 11-773
Issued: October 14, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On February 8, 2011 appellant filed an appeal of a December 22, 2010 decision of the
Office of Workers’ Compensation Programs (OWCP) denying a claimed period of disability.
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 the claim.
ISSUE
The issue is whether appellant established that she was disabled for work on and after
February 20, 2010 due to accepted left wrist, elbow and hip injuries.
On appeal, counsel asserts that OWCP’s December 22, 2010 decision was “contrary to
fact and law.”

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 19, 2010 appellant, then a 39-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging injuries to her left arm, left hip and lower back sustained that day
when she slipped and fell down icy steps while delivering mail. She stopped work that day and
sought emergency room treatment.2 Appellant submitted claims for wage-loss compensation
(Form CA-7) from February 20 to 26, 2010.
In February 19, 2010 reports, Dr. Brad S. Goldman, a physician Board-certified in
emergency medicine, diagnosed left hip and elbow abrasions due to the fall that day, with a
history of preexisting fibromyalgia. X-rays of the left elbow and left hip were normal.
On March 3, 2010 appellant sought emergency room treatment for left thumb pain.
X-rays of the left thumb and hand were normal. Dr. Candice Zeisler, a physician specializing in
emergency medicine, diagnosed a left thumb sprain and left thumb pain. Appellant was given a
splint for her left thumb.
In a March 16, 2010 report, Dr. Mark J. Pellegrino, an attending Board-certified
physiatrist, opined that appellant’s left thumb pain was caused by a median nerve stretch injury
sustained in the February 19, 2010 incident. On examination, appellant exhibited hyperesthesia
in the left thumb and palm. Dr. Pellegrino diagnosed a left thumb sprain and aggravation of
preexisting fibromyalgia of the left thumb and hip. He held appellant off work through
May 1, 2010.
On April 2, 2010 OWCP accepted abrasions of the left elbow and hip. In April 2 and 28
and May 17, 2010 letters, it advised appellant to submit additional information regarding the
causal relationship of the left thumb and fibromyalgia conditions to the accepted February 19,
2010 slip and fall.
Appellant submitted a March 1, 2010 report from Dr. Pellegrino, noting generalized
musculoskeletal pain on palpation and a scab on the left elbow. He diagnosed left elbow and hip
contusions and aggravation of preexisting fibromyalgia of the left arm, thumb and hip. In
April 20 and 29, 2010 reports, Dr. Pellegrino diagnosed a possible left thumb dislocation, left
wrist pain and left carpal tunnel syndrome due to the February 19, 2010 injury.3 He held
appellant off work through August 1, 2010 and recommending imaging studies.
By decision dated June 23, 2010, OWCP denied appellant’s claim for wage-loss
compensation on the grounds that the medical evidence did not establish total disability for work
from February 20, 2010 onward due to the accepted February 19, 2010 accident. It further found
that the medical evidence was insufficient to establish left thumb and wrist injuries.
2

On February 22, 2010 appellant claimed a schedule award. There is no final decision of record regarding a
schedule award. The schedule award issue is not before the Board on the present appeal.
3

An April 12, 2010 electromyography (EMG) and nerve conduction velocity (NCV) study showed mild left
carpal tunnel syndrome “most likely due to stretch injury involving the left elbow and wrist when she fell on
February 19, 2010.” The study showed subclinical carpal tunnel syndrome on the right.

2

Appellant requested an oral hearing held on October 5, 2010. At the hearing, she asserted
that she could not use her left arm and had difficulty with activities of daily living. Appellant
submitted reports from Dr. Pellegrino dated from June 11 to November 24, 2010 noting
unchanged left upper extremity symptoms without objective findings. On July 13, 2010
Dr. Pelligrino released appellant to restricted duty with limitations on lifting and grasping. On
November 24, 2010 he held appellant off work through April 1, 2011.
In a June 22, 2010 report, Dr. Ira Richterman, an attending Board-certified orthopedic
surgeon to whom appellant was referred by Dr. Pellegrino, provided a history of injury with
preexisting fibromyalgia. He noted limited left elbow motion. Dr. Richterman diagnosed
unspecified sprains and strains of the left forearm. He stated that appellant’s “subjective
complaints far outweigh[ed] her objective findings.”
Appellant claimed compensation for total disability through September 24, 2010.
By decision dated December 22, 2010, OWCP’s hearing representative affirmed
OWCP’s June 23, 2010 decision as modified. OWCP accepted that appellant sustained a left
thumb sprain and mild acute left carpal tunnel syndrome due to the February 19, 2010 accident.
It further found that the medical evidence was insufficiently rationalized to establish that
appellant was disabled for work on and after February 20, 2010.
LEGAL PRECEDENT
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his claim by the weight of the reliable, probative and substantial evidence.4
To establish a causal relationship between a claimed period of disability and the accepted
employment injury, an employee must submit rationalized medical evidence based on a complete
medical and factual background, supporting such a causal relationship.5 Causal relationship is a
medical issue and the medical evidence required to establish a causal relationship is rationalized
medical evidence.6 Rationalized medical evidence is evidence which includes a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.7

4

Donna L. Miller, 40 ECAB 492, 494 (1989); Nathaniel Milton, 37 ECAB 712, 722 (1986).

5

Manuel Gill, 52 ECAB 282 (2001).

6

Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

7

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

3

ANALYSIS
OWCP accepted that appellant sustained abrasions of the left elbow and hip, a left thumb
sprain and mild left carpal tunnel syndrome on February 19, 2010 when she slipped and fell on
icy steps. Appellant stopped work on February 19, 2010 and did not return. She claimed wageloss compensation for total disability through September 24, 2010. By decisions dated June 23
and December 22, 2010, OWCP denied appellant’s claims for monetary compensation on the
grounds that the medical evidence did not establish that the accepted injuries totally disabled
appellant for work for the claimed period.
Dr. Pellegrino, an attending Board-certified physiatrist, submitted reports from March 16
through November 24, 2010 diagnosing contusions of the left elbow and hip, left carpal tunnel
syndrome and a left thumb sprain. OWCP accepted these conditions as related to the
February 19, 2010 slip and fall. Initially, Dr. Pellegrino held appellant off work through
August 1, 2010. He then released her to limited duty on July 13, 2010. On November 24, 2010
Dr. Pellegrino found appellant totally disabled for work through April 1, 2011. He did not
explain how and why the accepted conditions would totally disable her for work at any time.
Dr. Pellegrino did not provide rationale explaining why he released appellant to light duty in
July 2010 but then found her disabled for work in the absence of objective findings. Also, he
attributed some of her symptoms to an aggravation of preexisting fibromyalgia, a condition
OWCP did not accept as work related. Therefore, Dr. Pellegrino’s opinion is insufficient to meet
appellant’s burden of proof.8
Appellant also submitted a June 22, 2010 report from Dr. Richterman, an attending
Board-certified orthopedic surgeon, who diagnosed left forearm sprains and strains, with
subjective complaints far outweighing objective findings. As Dr. Richterman did not find her
disabled for work for any period, his opinion is insufficient to meet appellant’s burden of proof.
The Board notes that OWCP advised appellant by April 2 and 28 and May 17, 2010
letters of the additional evidence needed to establish her claim, including rationalized medical
evidence supporting that the accepted injuries totally disabled her for the clamed period. As
appellant did not submit such evidence, she failed to meet her burden of proof.
On appeal, counsel asserts that OWCP’s December 22, 2010 decision was “contrary to
fact and law.” As stated, the medical evidence is insufficiently rationalized to establish total
disability for work on and after February 20, 2010.
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.

8

Manuel Gill, supra note 5.

4

CONCLUSION
The Board finds that appellant has not established that her claimed disability for work on
and after February 20, 2010 is causally related to the accepted left hip and upper extremity
injuries.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated December 22, 2010 is affirmed.
Issued: October 14, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.J., Appellant
and
DEPARTMENT OF THE ARMY, WOMACK
ARMY MEDICAL CENTER, Fort Bragg, NC,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket Nos. 19-1651 & 20-0199
Issued: June 22, 2020

Case Submitted on the Record

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

JURISDICTION
On July 31, 2019 appellant filed a timely appeal from a July 5, 2019 merit decision of the
Office of Workers’ Compensation Programs (OWCP). This appeal was docketed as 19-1651. On
November 4, 2019 appellant filed a timely appeal from an August 15, 2019 merit decision of
OWCP. This appeal was docketed as 20-0199. Pursuant to the Federal Employees’ Compensation
Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
this case.2

1
2

5 U.S.C. § 8101 et seq.

The Board notes that following the July 5 and August 15, 2019 decisions, OWCP received additional evidence.
Appellant also submitted additional evidence with his appeal to the Board. 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.

ISSUES
The issues are: (1) whether appellant has met his burden of proof to establish more than
16 percent permanent impairment of the right upper extremity, for which he previously received a
schedule award; and (2) whether appellant has met his burden of proof to establish more than six
percent permanent impairment of the right lower extremity, for which he previously received a
schedule award.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On April 26, 1994 appellant, then a 51-year-old nursing assistant, filed a traumatic injury
claim (Form CA-1) alleging an injury on April 23, 1994 when he struck his right elbow against a
piece of equipment while in the performance of duty. OWCP assigned OWCP File No. xxxxxx556
and accepted the claim for right elbow contusion. It authorized right lateral humeral tendon
debridement with exploration, which occurred on February 21, 1995. Appellant returned to
limited-duty work on April 15, 1995.
On July 20, 1995 appellant filed a Form CA-1 alleging that on July 13, 1995 he injured his
right hip when he tripped and fell in the performance of duty. OWCP assigned this claim, OWCP
File No. xxxxxx141, and accepted the claim for right hip contusion, right trochanteric bursitis, and
right lateral epicondylitis. Appellant stopped work on the date of injury. OWCP paid appellant
compensation on the supplemental rolls beginning August 28, 1995 and the periodic rolls
beginning June 16, 2002. OWCP File Nos. xxxxxx556 and xxxxxx141 have been administratively
combined with the latter serving as the master file.
By decision dated December 23, 1999, OWCP granted appellant a schedule award for 16
percent permanent impairment of the right upper extremity, under OWCP File No. xxxxxx141.
On August 3, 2018 appellant filed a claim for an additional schedule award (Form CA-7).
In a development letter dated October 9, 2018, OWCP advised appellant that additional
medical evidence was necessary to establish his schedule award claim. Appellant was requested
to submit a report from his treating physician which provided a permanent impairment rating
pursuant to the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (A.M.A., Guides).4
Memorandum of telephone calls (Form CA-110) dated November 21 and December 21,
2018 indicate that appellant informed OWCP that he could not obtain a rating report from his

3

Docket No. 19-1103, Order Dismissing Appeal (issued May 28, 2019).

4

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

2

treating physician. Appellant requested that OWCP schedule a second opinion evaluation to assist
with the development of his schedule award claim.
On February 19, 2019 OWCP referred appellant for a second opinion evaluation with
Dr. Robert M. Moore, a Board-certified orthopedic surgeon, to determine the extent of his
permanent impairment, if any, due to the accepted conditions.
In a March 12, 2019 report, Dr. Moore noted appellant’s history of injury and medical
treatment. He reported that examination of appellant’s right upper extremity revealed full active
range of motion (ROM) of his elbow, wrist, and hand. Dr. Moore related three ROM findings of
appellant’s right elbow noting that appellant had flexion of 140 degrees, extension of 0 degrees,
pronation of 80 degrees, and supination of 80 degrees. Appellant had no elbow swelling, no
sensory deficit, no atrophy, intact right upper extremity motor strength, and exacerbated right
elbow pain with restricted wrist extension. Dr. Moore applied the diagnosis-based impairment
(DBI) rating methodology of the A.M.A., Guides. Using Table 15-4,5 he noted a default value for
the accepted right lateral epicondylitis of five percent.6 Dr. Moore then assigned a grade modifier
for functional history (GMFH) of 2, a grade modifier for physical examination (GMPE) of 0, and
a grade modifier for clinical studies (GMCS) of 0.7 Application of the net adjustment formula8
resulted in movement one space to the left of the default value on Table 15-4 to the value of four
percent permanent impairment. Therefore, Dr. Moore concluded that appellant had four percent
permanent impairment of the right upper extremity due to the accepted condition of right lateral
epicondylitis.
Regarding the right hip, Dr. Moore indicated that appellant’s examination revealed right
trochanteric tenderness, no visible swelling or atrophy. He conducted right hip ROM examinations
three times and found the maximum ROM to be 10 degrees of flexion contracture, 90 degrees
flexion, 20 degrees internal rotation, 30 degrees external rotation, 30 degrees abduction, and 10
degrees adduction. Appellant reported right lumbar pain at the end ranges of right hip motion. A
review of appellant’s right hip x-ray showed no abnormality and no evidence of dislocation, joint
cartilage space narrowing, fracture, soft tissue calcification, osteophyte formation or lytic lesion.
Dr. Moore applied the DBI method for rating permanent impairment as it provided a greater
impairment rating than using ROM. Using Table 16-4,9 he noted a default value for the accepted
right hip trochanteric bursitis with document chronically abnormal gait of seven percent.
Dr. Moore then assigned a grade modifier for GMPE of 1 and a grade modifier for GMCE of 0.10
He found GMFH was not applicable because gait abnormality was used for primary placement in

5

Id. at 399, Table 15-4.

6

Id.

7

Id. at 406, Table 15-7; 408, Table 15-8; 410, Table 15-9.

8

Id. at 411.

9

Id. at 512.

10

Id. at 516, Table 16-7; 519, Table 16-8.

3

the regional grid and, thus was not used in adjusting impairment.11 Application of the net
adjustment formula12 resulted in movement one space to the left of the default value on Table 164 to the value of six percent permanent impairment. Therefore, Dr. Moore concluded that appellant
had six percent permanent impairment of the right lower extremity due to the accepted condition
of right hip trochanteric bursitis.13
On April 17, 2019 OWCP referred the claim to a district medical adviser (DMA) for a
review of the medical evidence of record and an opinion regarding the extent of appellant’s
permanent impairment.
On April 20, 2019 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as a
DMA, reviewed the medical evidence of record and concluded that appellant had four percent
permanent impairment of the right upper extremity and six percent permanent impairment of the
right lower extremity. He found, using the ROM methodology for rating permanent impairment
of the right upper extremity, that appellant had zero percent permanent impairment as he had full
range of motion. The DMA concurred with Dr. Moore’s application of the A.M.A., Guides in
determining appellant’s permanent impairment pursuant to the DBI methodology and affirmed
that appellant had four percent permanent impairment of the right upper extremity. Regarding
permanent impairment of appellant’s right lower extremity, the DMA noted that the ROM method
for rating permanent impairment could only be used as a stand-alone rating when the impairment
could not be rated under the DBI method or if a severe injury resulted in a passive ROM or
amputation. However, appellant’s permanent impairment could be rated using the DBI method.
He concurred that appellant had six percent permanent impairment of the right lower extremity
pursuant to Table 16-4, page 512 of the A.M.A., Guides for the diagnosis of trochanteric bursitis.
On May 21, 2019 OWCP requested that the DMA clarify whether appellant’s current
4 percent permanent impairment of the right upper extremity was in addition to the 16 percent
permanent impairment, for which he had previously received a schedule award. In a report dated
May 25, 2019, the DMA clarified that appellant’s current four percent permanent impairment
rating was not an additional impairment.
By decision dated July 5, 2019, OWCP denied appellant’s request for an additional
schedule finding that the medical evidence did not warrant an increase from the prior schedule
award. It noted that he was previously awarded 16 percent permanent impairment of the right
upper extremity. OWCP found that the medical evidence of record was insufficient to establish
that he was entitled to an additional schedule award as a result of his accepted lateral epicondylitis.
By decision dated August 15, 2019, OWCP granted appellant a schedule award for six
percent permanent impairment of the right lower extremity. The award ran for 17.28 weeks for
the period March 12 to July 10, 2019.

11

Id. at 512, 516.

12

Supra note 8.

13
Dr. Moore determined that the date of maximum medical improvement (MMI) was March 12, 2019 the date of
the physical examination he conducted.

4

LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA,14 and its implementing regulations,15 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.16 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.17 As of May 1, 2009, the sixth edition of the
A.M.A., Guides is used to calculate schedule awards.18 The sixth edition requires identifying the
class of diagnosis (CDX), which is then adjusted by grade modifiers GMFH, GMPE, and GMCS.
The net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).19
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No. 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).
“Upon initial review of a referral for upper extremity impairment evaluation, the
DMA should identify (1) the methodology used by the rating physician (i.e., DBI
or ROM) and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the
[A.M.A.,] Guides allow for the use of both the DBI and ROM methods to calculate
an impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)
***
“If the rating physician provided an assessment using the DBI method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA

14

5 U.S.C. § 8107.

15

20 C.F.R. § 10.404.

16

Id.

17

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Award and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2
and Exhibit 1 (January 2010).
18

Id.

19

Supra note 4 at 411.

5

should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.
“If the medical evidence of record is not sufficient for the DMA to render a rating
on ROM where allowed, the DMA should advise as to the medical evidence
necessary to complete the rating. However, the DMA should still render an
impairment rating using the DBI method, if possible, given the available
evidence.”20
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish more than 16
percent permanent impairment of the right upper extremity, for which he previously received a
schedule award.
Regarding appellant’s right upper extremity, has OWCP accepted that appellant sustained
the conditions of right elbow contusion and right lateral epicondylitis. OWCP authorized right
lateral tendon debridement with exploration, which was performed on February 21, 1995.
OWCP referred appellant for a second opinion evaluation with Dr. Moore and in his
March 12, 2019 report, he found that appellant had reached MMI due to his accepted conditions.
He determined that, under the DBI method for rating permanent impairment, utilizing Table 154,21 appellant had a default value of five percent for the accepted right lateral epicondylitis.22
Dr. Moore then assigned a GMFH of 2, a GMPE of 0, and a GMCS of 0.23 After applying the net
adjustment formula,24 he concluded, that the net adjustment value would move one space to the
left of the default value on Table 15-4, resulting in a permanent impairment finding of four percent.
He also provided three ROM measurements of appellant’s right elbow, which did not record any
loss of ROM.
In accordance with its procedures, OWCP properly referred the evidence of record to
Dr. Harris, a DMA, who reviewed the clinical findings of Dr. Moore on April 20, 2019 and
determined that appellant had four percent permanent impairment of the right upper extremity
based upon Dr. Moore’s report and the A.M.A., Guides. Dr. Harris explained that appellant had
no permanent impairment based upon his ROM findings and therefore his permanent impairment
was rated utilizing the DBI method. He found that appellant had reached MMI as of March 12,
2019, the date of Dr. Moore’s report.

20

FECA Bulletin No. 17-06 (May 8, 2017).

21

Id. at 399, Table 15-4.

22

Id.

23

Id. at 406, Table 15-7; 408, Table 15-8; 410, Table 15-9.

24

Id. at 411.

6

The Board finds that the DMA discussed how he arrived at his conclusion by listing
specific tables and pages in the A.M.A., Guides. He accurately summarized the relevant medical
evidence, provided detailed findings on examination, and reached conclusions about appellant’s
conditions which comported with his findings.25 The DMA properly utilized the DBI method and
ROM method to rate appellant’s right shoulder condition pursuant to FECA Bulletin No. 17-06.
The Board finds that the DMA’s report is detailed, well rationalized, and based on a proper factual
background.26 Therefore, his opinion is afforded the weight of the medical evidence and supports
that appellant does not have a greater right upper extremity impairment than the 16 percent
previously awarded.27
There is no current medical evidence of record, in conformance with the sixth edition of
the A.M.A., Guides, establishing that appellant has greater than the 16 percent permanent
impairment of the right upper extremity previously awarded. Accordingly, appellant has not met
his burden of proof to establish that he is entitled to an additional schedule award.
LEGAL PRECEDENT -- ISSUE 2
In determining permanent impairment of the lower extremities under the sixth edition of
the A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the
lower extremity to be rated. With respect to the hip, the relevant portion of the leg for the present
case, reference is made to Table 16-4 (Hip Regional Grid) beginning on page 512.28 After the
CDX is determined from the Hip Regional Grid (including identification of a default grade value),
the net adjustment formula is applied using the GMFH, GMPE, and GMCS. The net adjustment
formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).29
ANALYSIS -- ISSUE 2
The Board finds that appellant has not met his burden of proof to establish more than six
percent permanent impairment of his right lower extremity, for which he previously received a
schedule award.
As noted above, OWCP referred appellant for a second opinion evaluation with Dr. Moore
to determine the degree of appellant’s permanent impairment for schedule award purposes.
Dr. Moore applied the DBI method for rating permanent impairment, as it provided a greater rating
of permanent impairment than the ROM method. Using Table 16-4,30 he noted a default value for
the accepted right hip trochanteric bursitis with documented chronically abnormal gait of seven

25

M.D., Docket No. 20-0007 (issued May 13, 2020).

26

M.S., Docket No. 19-1011 (issued October 29, 2019).

27

R.R., Docket No. 17-1947 (issued December 19, 2018).

28

Supra note 4 at 509-11.

29

Id. at 515-22.

30

Id. at 512.

7

percent. Dr. Moore then assigned a GMPE of 1 and a GMCE of 0.31 He found that a GMFH was
not applicable because gait abnormality was used for primary placement in the regional grid and,
thus was not to be used in adjusting impairment.32 Application of the net adjustment formula33
resulted in movement one space to the left of the default value on Table 16-4 to the value of six
percent permanent impairment. Thus, Dr. Moore concluded that appellant had six percent
permanent impairment of the right lower extremity due to the accepted condition of right hip
trochanteric bursitis.
In accordance with its procedures, OWCP referred the evidence of record to a DMA,
Dr. Harris, who reviewed the clinical findings of Dr. Moore and determined appellant had six
percent permanent impairment of the right lower extremity. He further determined that appellant’s
date of MMI was March 12, 2019, the date of Dr. Moore’s examination upon which his impairment
rating was based. Dr. Harris concurred with Dr. Moore that appellant’s most impairing diagnosis
was chronic trochanteric bursitis. He also explained that the A.M.A., Guides did not allow a ROM
stand-alone rating if an appropriate DBI could be rated, and the injury was not severe and did not
result in amputation. Therefore appellant’s permanent impairment was rated under the DBI
method. The Board finds that as the DMA’s report is detailed, well rationalized, and based on a
proper factual background, his opinion represents the weight of the medical evidence.34 Thus, the
Board finds that appellant has not met his burden of proof to establish greater right lower extremity
permanent impairment.
The Board finds that there is no current medical evidence of record, in conformance with
the sixth edition of the A.M.A., Guides, establishing that appellant has more than six percent
permanent impairment of the right lower extremity. Accordingly, appellant has not met his burden
of proof to establish entitlement to a schedule award greater than that previously awarded.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish more than 16
percent permanent impairment of his right upper extremity, for which he previously received a
schedule award. The Board further finds that he has not met his burden of proof to establish more
than six percent permanent impairment of his right lower extremity, for which he previously
received a schedule award.

31

Id. at 516, Table 16-7; 519, Table 16-8.

32

Id. at 512, 516.

33

Supra note 8.

34

Supra note 26.

8

ORDER
IT IS HEREBY ORDERED THAT the August 15 and July 5, 2019 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: June 22, 2020
Washington, DC

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

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

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

9