United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.D., Appellant
and
U.S. POSTAL SERVICE, WICHITA GENERAL
MAIL FACILITY, Wichita, KS, Employer
__________________________________________

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

Docket No. 07-438
Issued: June 12, 2007

Case Submitted on the Record

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

JURISDICTION
On December 6, 2006 appellant filed a timely appeal from a May 10, 2006 merit decision
of the Office of Workers’ Compensation Programs which denied her claim and a June 16, 2006
decision which denied her request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over this case.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish that she was
totally disabled for the period May 25 through June 24, 2005; and (2) whether the Office
properly refused to reopen appellant’s claim for further review of the merits pursuant to 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On February 16, 2005 appellant, then a 54-year-old clerk, filed a Form CA-1, traumatic
injury claim, alleging that she injured her right knee that day when she tripped. She did not
immediately stop work. By decision dated April 8, 2005, the Office denied the claim, but

following the submission of additional medical evidence on December 23, 2005, accepted that
she sustained a right medial meniscal tear and approved surgical repair that had been performed
by Dr. Robert P. Cusick, a Board-certified orthopedic surgeon, on June 27, 2005. On August 15,
2005 Dr. Cusick released her to work for half a day the first week and then to full-time work.
On March 6, 2006 appellant filed a Form CA-7, claim for compensation, for the period
April 11 to September 2, 2005, leave analysis information and a list of appointments.1 In a
March 14, 2005 report, Captain Mocha L. Robinson, physical therapy flight commander, advised
that appellant should be off work for two weeks because of knee pain and in an undated report,
Sergeant Tanya C. Evans of the physical therapy department, advised that appellant had
restrictions of no walking, squatting, jumping or kneeling, 10 minutes standing and should have
a sit down job only. On April 26, 2005 Sharon Allen, plant manager, denied appellant’s request
for light duty, stating that there was “no productive light duty available within your restrictions at
this time.”
By letter dated March 24, 2006, the Office advised appellant that there was no medical
evidence to support disability for 1.82 hours on April 11, 2005, 24 hours from May 25 through
27, 2005, 40 hours from May 30 through June 10, 2005, 40 hours from June 13 through 17, 2005
and 40 hours from June 20 through 24, 2005. Appellant received wage-loss compensation for
the additional times claimed. In an April 12, 2006 letter, she informed the Office that she was at
physical therapy on April 11, 2005 and that no light duty was available for the period
May 25 through June 20, 2005. By decision dated May 10, 2006, the Office authorized payment
for April 11, 2005 but denied the claim for compensation for the period May 25 through June 24,
2005 because the record did not include a report from her physician which established that
limited-duty work was required.
On an undated Office form, received by the Office on June 2, 2006, appellant requested
reconsideration. In a June 6, 2006 decision, the Office denied appellant’s reconsideration
request.
LEGAL PRECEDENT -- ISSUE 1
Under the Federal Employees’ Compensation Act2 the term “disability” is defined as
incapacity, because of employment injury, to earn the wages that the employee was receiving at
the time of injury.3 Disability is thus not synonymous with physical impairment which may or
may not result in incapacity to earn the wages. An employee who has a physical impairment
causally related to a federal employment injury but who nonetheless has the capacity to earn
wages he or she was receiving at the time of injury has no disability as that term is used in the

1

Appellant also submitted an attending physician’s report in which Dr. Daniel J. Prohaska, a Board-certified
orthopedic surgeon, advised that she had been seen on April 14, 2005, February 6 and 7, 2006 attending physician’s
reports in which Dr. Cusick and Dr. Kathleen Ankers, a Board-certified family physician, did not provide treatment
dates and physical therapy notes.
2

5 U.S.C. §§ 8101-8193.

3

See Prince E. Wallace, 52 ECAB 357 (2001).

2

Act4 and whether a particular injury causes an employee disability for employment is a medical
issue which must be resolved by competent medical evidence.5 Whether a particular injury
causes an employee to be disabled for work and the duration of that disability, are medical issues
that must be proved by a preponderance of the reliable, probative and substantial medical
evidence.6
The Board will not require the Office to pay compensation for disability in the absence of
any medical evidence directly addressing the specific dates of disability for which compensation
is claimed. To do so would essentially allow employees to self-certify their disability and
entitlement to compensation.7
ANALYSIS -- ISSUE 1
On December 23, 2005 the Office accepted that on February 16, 2005 appellant sustained
an employment-related torn medial meniscus and authorized the surgical repair that she had on
June 27, 2005. Appellant received intermittent compensation for the period prior to her surgery
and wage-loss compensation for the period beginning June 27, 2005 until her return to work on
August 30, 2005 and intermittently thereafter. She, however, did not receive wage-loss
compensation for the period May 25 through June 24, 2005. The Office noted that appellant
submitted no medical documentation to support that she could only work light duty, which the
employing establishment had found to be unavailable.
There is no competent medical evidence to support that appellant had restrictions to her
physical activity for the period May 25 through June 24, 2005, which would require light duty.
The only report that covers the relevant period and which contains restrictions to appellant’s
physical activity is an undated report signed by Sergeant Evans who is in the physical therapy
department at a military hospital. Whether a particular injury causes an employee to be disabled
for work and the duration of that disability, are medical issues that must be proved by a
preponderance of the reliable, probative and substantial medical evidence.8 While it is unclear
whether Sergeant Evans is a physical therapist, a physical therapist is not a “physician” within
the meaning of section 8101(2) of the Act and cannot render a medical opinion.9 To constitute
competent medical opinion evidence, the medical evidence submitted must be signed by a
qualified physician.10 Even though the employing establishment advised appellant that no light
duty was available within her restrictions, there is no medical evidence in this case to support

4

Cheryl L. Decavitch, 50 ECAB 397 (1999); Maxine J. Sanders, 46 ECAB 835 (1995).

5

Donald E. Ewals, 51 ECAB 428 (2000).

6

Tammy L. Medley, 55 ECAB 182 (2003); see Donald E. Ewals, id.

7

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

8

Tammy L. Medley, supra note 6; see Donald E. Ewals, supra note 5.

9

Vickey C. Randall, 51 ECAB 357 (2000).

10

Id.

3

that, because of her employment injury, she could only perform light duty for the period May 25
through June 24, 2005. Consequently, the Office properly denied her claim for compensation for
this period.
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 or against compensation, either under its own authority or on
application by a claimant.11 Section 10.606(b)(2) of Office regulations provides that a claimant
may obtain review of the merits of the claim by either: (1) showing that the Office erroneously
applied or interpreted a specific point of law; (2) advancing a relevant legal argument not
previously considered by the Office; or (3) constituting relevant and pertinent new evidence not
previously considered by the Office.12 Section 10.608(b) provides that, when an application for
reconsideration does not meet at least one of the three requirements enumerated under section
10.606(b)(2), the Office will deny the application for reconsideration without reopening the case
for a review on the merits.13 Evidence or argument that repeats or duplicates evidence
previously of record has no evidentiary value and does not constitute a basis for reopening a
case.14 Likewise, evidence that does not address the particular issue involved does not constitute
a basis for reopening a case.15
ANALYSIS -- ISSUE 2
On her form requesting reconsideration, appellant merely checked that she was
requesting reconsideration. She, therefore, did not allege or demonstrate that the Office
erroneously applied or interpreted a specific point of law or advance a relevant legal argument
not previously considered by the Office. Consequently, appellant is not entitled to a review of
the merits of her claim based on the first and second above-noted requirements under section
10.606(b)(2).16
With respect to the third above-noted requirement under section 10.606(b)(2), appellant
also submitted no evidence. The merit issue in this case is whether she established that she was
totally disabled for the period May 25 through June 24, 2005. This requires the submission of
medical evidence establishing that appellant was unable to perform her light-duty job or that the
light-duty job was not available. Appellant submitted no such evidence. As she did not submit

11

5 U.S.C. § 8128(a).

12

20 C.F.R. § 10.606(b)(2).

13

20 C.F.R. § 10.608(b).

14

Helen E. Paglinawan, 51 ECAB 591 (2000).

15

Kevin M. Fatzer, 51 ECAB 407 (2000).

16

20 C.F.R. § 10.606(b)(2).

4

relevant and pertinent new evidence not previously considered by the Office, the Office properly
denied her reconsideration request.17
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she was
entitled to wage-loss compensation for the period May 25 through June 24, 2005 causally related
to her employment injury and that the Office properly denied her request for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 16 and May 10, 2006 be affirmed.
Issued: June 12, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

17

The Board notes that appellant submitted additional evidence subsequent to the June 16, 2006 decision of the
Office and with her appeal to the Board. The Board, however, cannot consider this evidence as its review of the
case is limited to that evidence which was before the Office at the time of its final decision. 20 C.F.R. § 501.2(c).
Appellant retains the right to submit a valid request for reconsideration with the Office.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.T., Appellant
and
U.S. POSTAL SERVICE, MAIN POST OFFICE,
Brooksville, FL, Employer
__________________________________________

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

Docket No. 07-1565
Issued: November 14, 2007

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 May 22, 2007 appellant timely appealed the December 21, 2006 and March 7, 2007
decisions of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUES
The issues are: (1) whether appellant sustained an injury in the performance of duty on
May 13, 2006; and (2) whether the Office properly denied further merit review of appellant’s
claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On May 13, 2006 appellant, a 57-year-old part-time flexible clerk, filed a traumatic injury
claim alleging that he injured his lower back that day when he bent over to pick up a tray from an
upright. According to him, the injury occurred at 2:30 a.m. However, appellant’s regular tour of
duty was scheduled to begin at 3:00 a.m. The employing establishment challenged the claim on

the basis that he stated that he injured himself at 2:30 a.m., but did not clock in for work until
3:00 a.m.1
Appellant was treated in the Oak Hill Hospital emergency room on the morning of
May 13, 2006 for complaints of low back pain after picking up a container earlier that morning.
He was diagnosed with acute myofascial lumbar strain and low back pain. Appellant received an
injection of Toradol for pain and was discharged from the emergency room at 4:50 a.m. On
May 24, 2006 he was seen by a neurologist, who diagnosed lumbago with left-side
radiculopathy. Appellant was placed on light duty, with restrictions of no bending and no lifting
or pushing in excess of 20 pounds. On June 5, 2006 he was placed on bed rest, retroactive to
May 24, 2006.
A June 8, 2006 lumbar magnetic resonance imaging (MRI) scan revealed degenerative
disc disease at L2-3 through L4-5, multilevel facet joint atrophy, Grade 1 spondylolisthesis at
L4, and diffuse annular bulges at L3-4 and L4-5, with foraminal narrowing and encroachment at
the L3 and L4 nerve roots.
In a decision dated July 7, 2006, the Office denied appellant’s claim because he failed to
establish fact of injury. The Office found that, while appellant claimed to have been injured at
2:30 a.m., the record indicated that he did not clock in until 3:00 a.m. on May 13, 2006. Thus,
there was no evidence to support his allegation that he was at work at 2:30 a.m. The injury did
not arise in the performance of duty.
On July 26, 2006 appellant requested a review of the written record. In a statement
accompanying the request, he explained that, on May 13, 2006, he arrived at work at 2:53 a.m.
and used his badge card to access the building’s rear entrance. Appellant further stated that the
injury occurred at approximately 3:30 a.m., when he bent over to retrieve a tray of mail from an
upright. He said he immediately notified the supervisor, Adam Morris, who gave him a Form
CA-1 to fill out before going to the hospital. Appellant explained that his earlier representation
that the injury occurred at 2:30 a.m. was inadvertent. He assumed responsibility for this error
and surmised that it was likely due to his inability to think straight because of the pain he was
experiencing at the time.
By decision dated December 21, 2006, the Office hearing representative found that on
May 13, 2006 at approximately 3:00 a.m., appellant bent over to pick up a tray from an upright.
However, the hearing representative found that appellant failed to establish that the May 13,
2006 employment incident caused or contributed to any medical condition. Therefore, the claim
was again denied because of appellant’s failure to establish fact of injury.
On February 22, 2004 appellant requested reconsideration.2 He argued about the prior
discrepancy regarding the timing of the May 13, 2006 employment incident. However, appellant
1

In subsequent correspondence with the Office, the employing establishment characterized appellant as a
disgruntled employee with a history of questionable veracity. It was also noted that he received a 14-day suspension
less than 48 hours prior to the alleged May 13, 2006 injury. According to the employing establishment, appellant
reported his injury to an acting supervisor at approximately 3:15 a.m. on May 13, 2006.
2

Appellant had earlier requested an appeal before the Board, which he withdrew by letter dated February 7, 2007.
Docket No. 2007-685 (issued March 15, 2007).

2

did not submit any new medical evidence or raise any particular arguments regarding the
adequacy of the medical evidence. In a decision dated March 7, 2007, the Office denied his
request for reconsideration.
LEGAL PRECEDENT
A claimant seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his claim by the weight of the reliable, probative
and substantial evidence, including that an injury was sustained in the performance of duty as
alleged and that any specific condition or disability claimed is causally related to the
employment injury.4
To determine if an employee sustained a traumatic injury in the performance of duty, the
Office begins with an analysis of whether “fact of injury” has been established. Generally, fact
of injury consists of two components that must be considered in conjunction with one another.
The first component to be established is that the employee actually experienced the employment
incident that is alleged to have occurred.5 The second component is whether the employment
incident caused a personal injury.6 An employee may establish that an injury occurred in the
performance of duty as alleged but fail to establish that the disability or specific condition for
which compensation is being claimed is causally related to the injury.7
ANALYSIS
Despite the accuracy of appellant’s account of the May 13, 2006 employment incident,
the Office accepted that appellant bent over to pick up a tray from an upright at approximately
3:00 a.m. This finding, however, only satisfied one prong of the “fact of injury” analysis. The
remaining question was whether the May 13, 2006 employment incident caused a personal
injury. Upon reviewing the medical evidence, the hearing representative found that appellant did
not establish an employment-related medical condition. The Board disagrees with this finding.

3

5 U.S.C. §§ 8101-8193 (2000).

4

20 C.F.R. § 10.115(e), (f) (2007); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996). Causal relationship is
a medical question that can generally be resolved only by rationalized medical opinion evidence. See Robert G.
Morris, 48 ECAB 238 (1996). A physician’s opinion on the issue of whether there is a causal relationship between
the claimant’s diagnosed condition and the implicated employment factors must be based on a complete factual and
medical background of the claimant. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, in order to be
considered rationalized, the opinion must be expressed in terms of a reasonable degree of medical certainty and must
be supported by medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factors. Id.
5

Elaine Pendleton, 40 ECAB 1143 (1989).

6

John J. Carlone, 41 ECAB 354 (1989).

7

Shirley A. Temple, 48 ECAB 404, 407 (1997). The fact that the etiology of a disease or condition is unknown or
obscure does not relieve an employee of the burden of establishing a causal relationship by the weight of the medical
evidence nor does it shift the burden of proof to the Office to disprove an employment relationship. Judith J.
Montage, 48 ECAB 292, 294-295 (1997).

3

Within an hour of the May 13, 2006 employment incident appellant sought treatment for
his back injury at the Oak Hill Hospital emergency room. He provided the emergency room
medical staff with a history of injury consistent with what he reported on his May 13, 2006 Form
CA-1. The emergency room physical examination revealed evidence of muscle spasms and
appellant complained of sharp pain in the lower left portion of his back, with pain radiating to his
left leg. Dr. Kenneth M. DeGraaf, Board-certified in emergency medicine, examined appellant
that morning and diagnosed acute myofascial lumbar strain and low back pain. The emergency
room records identified the mechanism of injury as “lifting” and the initial onset of symptoms
was noted as “[one to two] hours ago.”8 The medical evidence is sufficient, based on the
emergency room examination results, to find that appellant sustained a lumbar strain as a result
of the May 13, 2006 employment incident. Accordingly, the hearing representative’s
December 21, 2006 decision will be modified to reflect the acceptance of appellant’s claim for a
lumbar strain.
Less than a month after the May 13, 2006 employment injury, a lumbar MRI scan
revealed multilevel degenerative disc disease, spondylolisthesis and diffuse annular bulges at
L3-4 and L4-5. However, there is no medical evidence of record that attributes these conditions,
either directly or by way of aggravation, to appellant’s May 13, 2006 employment injury. As
such, appellant’s low back conditions as represented on the June 8, 2006 lumbar MRI scan,
cannot be accepted as employment related based on the current record.
CONCLUSION
Appellant sustained a lumbar strain in the performance of duty on May 13, 2006. The
hearing representative’s December 21, 2006 decision is modified to reflect acceptance of the
claim for lumbar strain only.

8

This information was obtained and recorded at 4:34 a.m. on May 13, 2006.

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ORDER
IT IS HEREBY ORDERED THAT the December 21, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.9
Issued: November 14, 2007
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

9

In view of the Board’s disposition on the merits of the claim, the Office’s March 7, 2007 nonmerit decision is
rendered moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Paramus, NJ, Employer
__________________________________________

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Appearances:
Aaron B. Aumiller, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 18-0393
Issued: July 25, 2018

Case Submitted on the Record

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

JURISDICTION
On December 18, 2017 appellant, through counsel, timely filed an appeal from a June 19,
2017 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the

1

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

Under the Board’s Rules of Procedure, an appeal must be filed within 180 days from the date of issuance of an
OWCP decision. An appeal is considered filed upon receipt by the Clerk of the Appellate Boards. See 20 C.F.R.
§ 501.3(e)-(f). One hundred and eighty days from OWCP’s June 19, 2017 decision was Saturday, December 16, 2017.
Because the last day of the 180 day filing period fell on a Saturday, the filing period is extended until the close of the
next business day, which was Monday, December 18, 2017. Accordingly, the appeal is timely filed pursuant to
20 C.F.R. § 501.3(f)(2).

Federal Employees’ Compensation Act3 (FECA) 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 has met his burden of proof to establish that his lumbar
condition was causally related to the accepted May 30, 2014 employment incident.
FACTUAL HISTORY
On June 2, 2014 appellant, then a 40-year-old city carrier assistant, filed a traumatic injury
claim (Form CA-1) alleging that, while delivering mail on May 30, 2014, the step upon which he
was standing gave way, causing the immediate onset of lumbar pain with left-sided radiculopathy.
The employing establishment issued an authorization for examination and treatment (Form CA16) on June 2, 2014 to evaluate the lumbar sprain sustained on May 30, 2014. Appellant stopped
work shortly thereafter on June 2, 2014 and returned to work on June 3, 2014.
In a report dated June 12, 2014, Dr. Kenneth Citak, an attending Board-certified
neurologist, provided a history of injury and treatment. He noted that a June 3, 2014 magnetic
resonance imaging scan showed mild disc degeneration and a broad-based disc herniation at L45, and a left paracentral disc herniation at L3-4. Dr. Citak diagnosed a lumbar disc herniation with
left-sided radiculopathy and a left foot drop.
In a report dated June 18, 2014, Dr. Faisal Mahmood, an attending Board-certified
orthopedic surgeon, provided a history of the May 30, 2014 employment incident and the onset of
left-sided lumbar radiculopathy. On examination of the left lower extremity, he found severe
weakness in the tibialis anterior and extensor hallucis longus, with diminished sensation in the L4
and L5 dermatomes. Dr. Mahmood diagnosed “severe weakness secondary to multilevel disc
herniations at L4-5 and L5-S1 in the left lower extremity” with a demonstrable left foot drop. He
recommended L3-4 and L4-5 microdiscectomies with decompression of the L4 and L5 nerve roots.
Dr. Mahmood prescribed a left ankle foot orthotic brace.
By development letter dated June 30, 2014, OWCP notified appellant of the deficiencies
of his claim and afforded him 30 days to submit additional medical and factual evidence.
Appellant was also provided a list of questions for his physician regarding how the alleged
employment incident would have caused or aggravated the claimed injuries. OWCP emphasized
that a detailed, well-rationalized opinion from appellant’s treating physician on causal relationship
was crucial to his claim.
Appellant provided June 18 and July 7, 2014 duty status reports (Form CA-17) from
Dr. Peter Berger, a chiropractor, who diagnosed “peroneal neuropathy and dropped foot.”
OWCP received a July 14, 2014 progress note and physical therapy prescription from
Dr. Mahmood.

3

5 U.S.C. § 8101 et seq.

2

By decision dated August 5, 2014, OWCP denied the claim, finding that causal relationship
had not been established. It accepted that the May 30, 2014 employment incident occurred at the
time, place, and in the manner alleged. However, OWCP denied the claim as the medical evidence
of record contained insufficient rationale to establish causal relationship between the accepted
employment incident and the claimed lumbar condition.
On July 30, 2015 appellant, through counsel, requested reconsideration. He submitted
additional medical reports from Dr. Mahmood.
In a report dated June 26, 2014, Dr. Mahmoud described performing a left L3-4
microdiscectomy with partial foraminotomy, facetectomy, and laminectomy, a partial L4-5
laminectomy with nerve root decompression, and a partial L4-5 right partial laminectomy with
decompression. He noted that appellant sustained an “injury while at work at which time he began
to have progressive paresthesias and motor weakness in his left lower extremity.” Dr. Mahmood
provided progress notes dated August 26, 2014 and July 21, 2015, and an August 26, 2014
physical therapy prescription.
Dr. Mahmoud provided a July 22, 2015 narrative report in which he related appellant’s
account of the accepted May 30, 2014 incident, with the onset of lumbar pain and significant left
lower extremity weakness and paresthesias. He opined that the May 30, 2014 incident, which he
described as a fall, damaged “neurologic structures secondary to disc herniations at L3-4 and L45.” Dr. Mahmood also opined that “despite surgical intervention [appellant] will continue to have
weakness in the left lower extremity” that would require permanent use of an ankle-foot orthotic.
By decision dated March 25, 2016, OWCP denied modification of its prior decision as the
additional evidence submitted contained insufficient medical rationale to establish causal
relationship. It also found that Dr. Mahmoud’s description of a May 30, 2014 “fall” did not
conform to appellant’s account of events. Therefore, Dr. Mahmood’s medical opinion on
causation was inaccurate.
On March 27, 2017 appellant, through counsel, requested reconsideration. Counsel
contended that the totality of the medical evidence of record was sufficient to meet appellant’s
burden of proof in establishing causal relationship. Alternatively, he asserted that Dr. Mahmood’s
opinion was of sufficient probative quality to require further development by OWCP. Counsel
provided additional medical evidence.
In a March 27, 2017 report, Dr. Mahmood noted that, during the accepted May 30, 2014
employment incident, appellant “was walking on a resident’s steps during a mail delivery, and
unfortunately the step gave way, causing him to fall.” Appellant had no lumbar pain or neurologic
involvement prior to the May 30, 2014 incident. Dr. Mahmood opined that “the injuries which
[appellant] sustained as a result of a work-related injury resulted in damage to neurologic structures
secondary to disc herniations at L3-4 and L4-5.” He also opined that “with a high degree of
medical probability that these injuries are directly and causally related to” the accepted May 30,
2014 employment incident.
By decision dated June 19, 2017, OWCP denied modification of its prior decision, finding
that Dr. Mahmood’s March 27, 2017 report did not explain how and why the accepted May 30,

3

2014 incident would cause the diagnosed herniated discs and neurologic injury affecting the left
lower extremity. It found that, in the absence of such rationale, Dr. Mahmood’s opinion was
insufficient to meet appellant’s burden of proof to establish a causal relationship between the
accepted employment incident and the claimed lumbar injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability or specific condition for which compensation is claimed is causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To determine whether an employee sustained a traumatic injury in the performance of duty,
OWCP must determine whether fact of injury has been established. First, an employee has the
burden of proof to demonstrate the occurrence of an injury at the time, place, and in the manner
alleged, by a preponderance of the reliable, probative, and substantial evidence.7 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.8 An employee may establish that the employment
incident occurred as alleged, but fail to show that his or her disability and/or condition relates to
the employment incident.9
Causal relationship is a medical question that generally requires rationalized medical
opinion evidence to resolve the issue.10 A physician’s opinion on whether there is a causal
relationship between the diagnosed condition and the implicated employment factor(s) must be
based on a complete factual and medical background.11 Additionally, the physician’s opinion must
be expressed in terms of a reasonable degree of medical certainty, and must be supported by

4

Id.

5

Alvin V. Gadd, 57 ECAB 172 (2005); Anthony P. Silva, 55 ECAB 179 (2003).

6

See Elizabeth H. Kramm (Leonard O. Kramm), 57 ECAB 117 (2005); Ellen L. Noble, 55 ECAB 530 (2004).

7

David Apgar, 57 ECAB 137 (2005); Delphyne L. Glover, 51 ECAB 146 (1999).

8

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

9

D.J., Docket No. 17-0364 (issued April 13, 2018); K.B., Docket No. 17-1363 (issued February 14, 2018), Gary J.
Watling, id.
10

Robert G. Morris, 48 ECAB 238 (1996).

11

Victor J. Woodhams, 41 ECAB 345, 352 (1989).

4

medical rationale, explaining the nature of the relationship between the diagnosed condition and
appellant’s specific employment factor(s).12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that his lumbar
condition was causally related to the accepted May 30, 2014 employment incident.
The determination of whether an employment incident caused an injury is generally
established by medical evidence.13 Dr. Citak, an attending Board-certified neurologist, diagnosed
a lumbar disc herniation with left-sided radiculopathy and a left foot drop, but did not address
causal relationship. Medical evidence that does not offer any opinion regarding the cause of an
employee’s condition is of diminished probative value on the issue of causal relationship.14
Dr. Mahmood, an attending Board-certified orthopedic surgeon, opined that appellant
sustained an employment injury with “progressive paresthesias and motor weakness in his left
lower extremity.” In a July 22, 2015 report, he opined that the May 30, 2014 incident damaged
neurologic structures from L3 to L5. On March 27, 2017 Dr. Mahmood again opined that the
accepted May 30, 2014 employment incident “directly and casually” damaged neurologic
structures secondary to the L3-4 and L4-5 disc herniations. He, however, did not provide his
medical reasoning as to how and why the accepted employment incident would result in herniated
discs. Without explaining how, physiologically, the movements involved in the employment
incident caused or contributed to the diagnosed condition, Dr. Mahmood’s opinion on causal
relationship is equivocal in nature and of limited probative value.15
OWCP also received June 18 and July 7, 2014 duty status reports (Form CA-17) from
Dr. Berger, a chiropractor, who diagnosed “peroneal neuropathy and dropped foot.” As there is
no evidence of record that Dr. Berger diagnosed a spinal subluxation by x-ray, he is not considered
a physician under FECA for the purposes of this case, and his reports are of no probative medical
value.16
In order to establish causal relationship, a physician must provide an opinion that the injury
or condition for which compensation is claimed is causally related to federal employment and such
12

Id.

13

Lois E. Culver (Clair L. Culver), 53 ECAB 412 (2002).

14

See S.E., Docket No. 08-2214 (issued May 6, 2009); Conard Hightower, 54 ECAB 796 (2003).

15

See L.B., Docket No. 17-1600 (issued March 9, 2018).

16

Section 8101(2) of FECA provides that medical opinion, in general, can only be given by a qualified physician.
5 U.S.C. § 8101(2). This section defines a physician as surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined by stated law.
Section 8101(3) of FECA, which defines services and supplies, limits reimbursable chiropractic services to treatment
consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist and subject
to regulation by the Secretary. 5 U.S.C. § 8101(3). See Thomas W. Stevens, 50 ECAB 288 (1999); George E.
Williams, 44 ECAB 530 (1993).

5

relationship must be supported with affirmative evidence, explained by medical rationale, and be
based upon a complete and accurate medical and factual background of the claimant.17 Appellant
was provided an opportunity to submit evidence to establish how the claimed herniated discs
occurred. By development letter dated June 30, 2014, OWCP requested that appellant obtain an
opinion from his attending physician with medical rationale addressing causal relationship.
Appellant has not submitted a medical report sufficient to show that the diagnosed multilevel
intervertebral disc herniations with left-sided nerve damage were causally related to the accepted
May 30, 2014 employment incident, and thus did not meet his burden of proof.18
On appeal, counsel asserts that OWCP’s June 19, 2017 decision is erroneous as the medical
evidence of record is sufficient to meet appellant’s burden of proof to establish causal relationship.
He contends that there was no contradictory opinion of record. As set forth above, the medical
evidence of record contained insufficient medical rationale to meet appellant’s burden of proof to
establish causal relationship. Alternatively, counsel argues that the quality of medical opinion
expressed by Dr. Mahmood required OWCP to conduct further development. However, the lack
of medical rationale in Dr. Mahmood’s reports diminishes their probative quality.19 Such opinion
lacks the persuasive, convincing quality that would require additional development.
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 and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that his lumbar
conditions were causally related to the accepted May 30, 2014 employment incident.

17

See J.W., Docket No. 17-0870 (issued July 12, 2017).

18

K.B., supra note 9.

19

Supra note 14.

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated June 19, 2017 is affirmed.20
Issued: July 25, 2018
Washington, DC

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

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

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

20

The Board also notes that the case record includes a June 2, 2014 CA-16 form. When the employing
establishment properly executes a Form CA-16 which authorizes medical treatment as a result of an employee’s claim
for an employment-related injury, the Form CA-16 creates a contractual obligation, which does not involve the
employee directly, to pay for the cost of the examination or treatment regardless of the action taken on the claim. The
period for which treatment is authorized by a Form CA-16 is limited to 60 days from the date of issuance, unless
terminated earlier by OWCP. See 20 C.F.R. § 10.300(c); Tracy P. Spillane, 54 ECAB 608 (2003).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.B., Appellant
and
DEPARTMENT OF THE NAVY, NAVY
PUBLIC WORKS DEPARTMENT,
San Diego, CA, Employer
__________________________________________

)
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)
)
)
)

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

Docket No. 09-2183
Issued: May 4, 2010

Case Submitted on the Record

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

JURISDICTION
On September 1, 2009 appellant filed a timely appeal from a June 29, 2009 decision of
the Office of Workers’ Compensation Programs denying his request for reconsideration.
Because more than 180 days has elapsed from the Office’s last merit decision dated January 14,
2009 to 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.
ISSUE
The issue is whether the Office abused its discretion in denying appellant’s request for
reconsideration.
FACTUAL HISTORY
On January 28, 2004 appellant, then a 48-year-old painter leader, sustained an open right
wrist distal radial fracture, aggravation of a herniated disc at L4-5, left-sided sciatica, internal
complication of an orthopedic right wrist implant, traumatic tenosynovitis of the right wrist and
left wrist osteoarthritis in the performance of duty when he was knocked off a ladder. He

underwent right wrist surgery on January 28 and December 10, 2004. Appellant underwent back
surgery on September 27, 2004 and October 30, 2006.
Appellant subsequently sought authorization for treatment of neck, left shoulder, left
thigh and calf, buttocks and bilateral foot conditions, alleging causal relationship to the
January 28, 2004 employment injury.
By decisions dated November 28, 2007, January 9, 2008 and January 14, 2009, the Office
denied appellant’s claim for additional medical conditions on the grounds that the medical
evidence failed to establish that they were causally related to his January 28, 2004 employment
injury.
On April 7, 2009 appellant requested reconsideration. In a January 30, 2008 report,
Dr. Steven R. Garfin, a Board-certified orthopedic surgeon, provided findings on physical
examination and noted that appellant began experiencing left shoulder pain and numbness and
tingling in his left arm and hand over the previous week and began having neck pain on
July 3, 2007. He diagnosed cervical instability at C1-2 with concomitant central stenosis.
Dr. Garfin noted that the only trauma appellant reported was his employment injury in
January 2004. On February 10, 2009 Dr. Robert M. Maywood, a Board-certified orthopedic
surgeon, reviewed the medical history and provided findings on physical examination. He
provided an evaluation and impairment rating of appellant’s accepted back and wrist conditions.
On March 10, 2009 Dr. Maywood provided findings on physical examination and diagnosed
status post lumbar surgery with bilateral hip greater trochanteric bursitis and status post bilateral
wrist surgery. He did not provide an opinion as to the cause of appellant’s hip condition. On
April 21, 2009 Dr. Maywood diagnosed bilateral lower extremity radiculopathy but did not opine
as to the cause of the condition. In reports dated January 26 to May 26, 2009, Dr. William L.
Wilson, a Board-certified anesthesiologist specializing in pain medicine, provided findings on
physical examination and diagnosed status post lumbar discectomy and fusion at L4-5, status
post left wrist fusion, status post cervical C1-2 fusion, probable left chronic L5 radicular pain,
right ankle pain and reactive depression and anxiety secondary to pain. He did not provide an
opinion on the cause of the conditions. In a February 19, 2009 memorandum of a telephone call
to the Office, Elizabeth Stimson, a nurse practitioner, noted that appellant sought treatment for
pain in his feet. She indicated that this condition was the result of his accepted spine injury.
By decision dated June 29, 2009, the Office denied appellant’s request for
reconsideration on the grounds that the evidence was not sufficient to warrant further merit
review.1
LEGAL PRECEDENT
Section 8128(a) of the Federal Employees’ Compensation Act2 does not entitle a claimant
to a review of an Office decision as a matter of right. This section vests the Office with
discretionary authority to determine whether it will review an award for or against
1

Subsequent to the June 29, 2009 Office decision, additional evidence was associated with the file. The Board’s
jurisdiction is limited to the evidence that was before the Office at the time it issued its final decision. See 20 C.F.R.
§ 501.2(c). The Board may not consider this evidence for the first time on appeal.
2

5 U.S.C. §§ 8101-8193.

2

compensation.3 The Office, through regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).4
To require the Office to reopen a case for merit review under section 8128(a) of the Act,5
the Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.6 To be entitled to a merit
review of an Office decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.7 When a claimant fails to
meet one of the above standards, the Office will deny the application for reconsideration without
reopening the case for review on the merits.8
ANALYSIS
With his request for reconsideration of the January 14, 2009 merit decision, appellant
submitted medical reports from Dr. Garfin, Dr. Maywood and Dr. Wilson. None of the reports
addresses the issue of whether appellant’s neck, left shoulder, left thigh and calf, buttocks and
bilateral foot conditions are causally related to the January 28, 2004 employment injury.
Therefore, these reports do not constitute relevant and pertinent new evidence not previously
considered by the Office. Appellant submitted a February 19, 2009 telephone memorandum
from a nurse practitioner. A nurse practitioner does not qualify as a physician under the Act.9
Registered nurses, licensed practical nurses, physicians’ assistants and physical therapists are not
physicians as defined under the Act and their opinions are of no probative value.10
Consequently, the nurse practitioner’s memorandum does not constitute relevant and pertinent
new evidence not previously considered by the Office. Because appellant did not show that the
Office erroneously applied or interpreted a specific point of law, advance a relevant legal
argument not previously considered or submit relevant and pertinent new evidence not
previously considered by the Office, the Office properly denied her request for reconsideration.
On appeal appellant contends that the Office did not consider a January 27, 2009
electromyogram (EMG) report suggesting his lower extremity pain and numbness could be the
3

Id. at § 8128(a).

4

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

5

Under section 8128(a) of the Act, “[t]he Secretary of Labor may review an award for or against payment of
compensation at any time on [his or her] own motion or on application.” 5 U.S.C. § 8128(a).
6

20 C.F.R. § 10.606(b)(2).

7

Id. at § 10.607(a).

8

Id. at § 10.608(b).

9

See 5 U.S.C. § 8101(2) which provides: “‘physician’ includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by state law;” see also Roy L. Humphrey, 57 ECAB 238 (2005); Jennifer L. Sharp, 48 ECAB 209 (1996).
10

Id.

3

result of chronic bilateral L4-5 radiculopathies. There is no January 27, 2009 EMG report of
record. Appellant contends that the January 28, 2004 employment injury aggravated a
preexisting left hip injury sustained at work on December 9, 2003. He contends that the fact that
he reported neck pain to physicians at the time of the January 28, 2004 employment injury
establishes that his neck condition was work related. Lay individuals such as appellant are not
competent to render a medical opinion.11 Therefore, his opinion that his January 28, 2004
employment injury aggravated a left hip condition and caused a neck condition is of no probative
value. The issue on appeal is whether the Office abused its discretion in denying his request for
reconsideration of its January 14, 2009 merit decision. As noted, he failed to provide evidence
or argument meeting any of the three requirements for reopening a case for further merit review.
Therefore, the Office did not abuse its discretion in denying his request for reconsideration.
CONCLUSION
The Board finds that the Office did not abuse its discretion in denying appellant’s request
for reconsideration.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 29, 2009 is affirmed.
Issued: May 4, 2010
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

11

See Robert J. Krstyen, 44 ECAB 227 (1992).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.D., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
LOUIS STOKES VETERANS
ADMINISTRATION MEDICAL CENTER,
Cleveland, OH, Employer
__________________________________________

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)
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)
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)

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

Docket No. 19-0628
Issued: November 5, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
JANICE B. ASKIN, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On January 31, 2019 appellant, through counsel, filed a timely appeal from a December 14,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the

1

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

Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3
ISSUE
The issue is whether appellant has met her burden of proof to establish that she was disabled
during the period June 26 through August 18, 2017 causally related to her accepted employment
conditions.
FACTUAL HISTORY
On November 20, 2013 appellant, then a 50-year old lead medical records technician, filed
a notice of traumatic injury (Form CA-1) alleging that she injured her left shoulder and neck on
November 15, 2013 when she slipped and fell while ascending stairs following a fire drill while in
the performance of duty. OWCP assigned this claim File No. xxxxxx713 and accepted the claim
for contusion of the left shoulder, closed fracture of the left humerus, closed dislocation of the left
shoulder, and sprain of the left shoulder. Appellant received intermittent wage-loss compensation
on the supplemental roll for the period December 31, 2013 through May 30, 2014.
On February 24, 2017 appellant filed an occupational disease claim (Form CA-2) alleging
that she sustained bilateral carpal tunnel syndrome due to factors of her federal employment
including years of typing. She noted that she first became aware of the condition on December 8,
2008, and its relationship to factors of her federal employment on November 14, 2016. Appellant
did not indicate that she had stopped work. OWCP assigned this claim File No. xxxxxx437, and
on June 15, 2017 accepted for the condition of bilateral carpal tunnel syndrome as work related.
The record reflects that appellant received wage-loss compensation on the supplemental rolls from
May 5 to 22, 2017. OWCP administratively combined the case records with OWCP File No.
xxxxxx437 serving as the mater file.
In an employing establish work capacity evaluation form dated June 26, 2017, Dr. Vladlen
Kim, a Board-certified internist, indicated that appellant was to be off work on temporary total
disability until July 6, 2017 due to left shoulder and arm pain. On July 3, 2017 Dr. Kim completed
another work capacity evaluation form and noted that appellant was to be off work on temporary
total disability until August 1, 2017.
On July 7, 2017 appellant filed a claim for wage-loss compensation (Form CA-7) for leave
without pay for the period June 26 to July 7, 2017.

2

5 U.S.C. § 8101 et seq.

3

The Board notes that following the December 14, 2018 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

2

In a development letter dated July 11, 2017, OWCP requested additional medical evidence
supporting appellant’s claim for wage-loss compensation for the period alleged. Appellant was
afforded 30 days to submit the necessary evidence.
In reports dated May 5, 15, 22, and 31, June 6, 16, 20, 26, and 30, and July 17, 2017,
Dr. Kim noted complaints including bilateral numbness and tingling in appellant’s hands, left
shoulder pain, pain radiating up to her left arm and shoulder, back pain, neck pain, and sharp pains
in the palm of her right hand. In the May 15 and 22, 2017 reports, he diagnosed bilateral carpal
tunnel syndrome and noted that she could return to work on May 23, 2017 full time, with
restrictions.
In his June 26, 2017 report, Dr. Kim diagnosed left arm pain, left arm weakness, numbness
and tingling in both hands, and cervicalgia, and related that appellant was to be off work until
July 5, 2017. In his June 30 and July 17, 2017 reports, he diagnosed bilateral carpal tunnel
syndrome, and related that she was to be off work until August 22, 2017. In his July 17, 2017
report, Dr. Kim related that appellant had been off work due to severe pain and weakness in her
hands bilaterally, and that even limited duty would be impossible to perform without use of hands
and with significant pain.
On August 15, 2017 Dr. Kim reported that appellant was to remain off work until
September 14, 2017.
On August 18, 2017 OWCP received a Form CA-7 claiming compensation for leave
without pay for the period August 7 through 18, 2017.
By decision dated August 28, 2017, OWCP denied appellant’s claim for disability
compensation for the period June 26, 2017 and continuing finding that the evidence of record did
not establish that she was disabled as a result of her accepted employment-related medical
condition.4
OWCP thereafter received a June 26, 2017 hospital record signed by Dr. Stephanie Gaines,
a specialist in emergency medicine, who related that appellant was seen that day for chronic left
arm pain. Dr. Gaines noted that appellant had no obvious injury or deformity to her left arm, she
had full range of motion and no significant sensory deficit. She also noted that appellant had
recently undergone magnetic resonance imaging (MRI) scans all of which were “reassuring.”
On September 7, 2017 appellant, through counsel, requested a telephonic hearing before
an OWCP hearing representative.
OWCP continued to receive continuing medical evidence regarding appellant’s current
medical status.

4

The Board notes that appellant continued to file CA-7 forms for periods of claimed wage-loss compensation
following OWCP’s August 28, 2017 decision. OWCP paid appellant wage-loss compensation on the supplemental
rolls for periods of intermittent disability commencing September 12, 2017.

3

On February 7, 2018 a telephonic hearing was held before an OWCP hearing
representative. At the hearing, appellant indicated that she was taken off work commencing
June 26, 2017 by her physician due to shoulder and arm pain related to her accepted bilateral carpal
tunnel syndrome.
By decision dated March 28, 2018, an OWCP hearing representative affirmed OWCP’s
August 28, 2017 decision finding that the evidence of record was insufficient to establish that
appellant was disabled as of June 26, 2017, causally related to the accepted medical conditions.
On May 2, 2018 appellant, through counsel, requested reconsideration of OWCP’s hearing
representative’s March 28, 2018 decision. OWCP continued to receive medical progress reports.
In a report dated April 12, 2018, Dr. Kim indicated that appellant was admitted to the
emergency room on June 26, 2017, and was diagnosed with neuropathic pain of her left upper
extremity. He noted that after release from the hospital, he evaluated her on that day, and she
complained of severe pain in her left shoulder with radiation down to her left hand, pain in her
wrists bilaterally, numbness and weakness in her left hand, and sharp pain in the palm of her right
hand. Dr. Kim related that physical examination revealed tenderness over the left shoulder, left
elbow, left wrist, right wrist, and neck. He diagnosed left arm pain, left arm weakness, numbness
and tingling in both hands, and cervicalgia at that time. Dr. Kim subsequently recommended that
appellant stay off work until July 6, 2017. He opined that the pain in her left arm was directly
related to the diagnosed carpal tunnel syndrome.
By decision dated July 11, 2018, OWCP denied modification of the March 28, 2018
decision.
On September 18, 2018 appellant, through counsel, requested reconsideration of OWCP’s
July 11, 2018 decision. OWCP continued to receive medical progress reports.
By decision dated December 14, 2018, OWCP denied modification of its July 11, 2018
decision. It found that the medical evidence of record was insufficient to establish that appellant’s
accepted condition prevented her from working during the claimed period of disability.
LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden proof to establish the essential
elements of his or her claim by the weight of the evidence.6 For each period of disability claimed
the employee has the burden of proof to establish that he or she was disabled from work as a result
of the accepted employment injury.7 Whether a particular injury caused an employee to become

5

Supra note 2.

6

B.F., Docket No. 19-0123 (issued May 13, 2019); M.D., Docket No. 18-0474 (issued October 3, 2018); see
Amelia S. Jefferson, 57 ECAB 183 (2005); see also Nathaniel Milton, 37 ECAB 712 (1986).
7

Id.

4

disabled from work and the duration of that disability, are medical issues that must be proven by
a preponderance of probative and reliable medical opinion evidence.8
OWCP’s procedures discuss the evidence necessary if recurrent disability for work is
alleged within 90 days of return to duty.9 It is noted that the focus is on disability rather than
causal relationship of the accepted condition to the employment injury.10
The Board has held that, if recurrent disability from work is claimed within 90 days or less
from the first return to duty, the attending physician should describe the duties which the employee
cannot perform and demonstrate objective medical findings that form the basis for the renewed
disability for work.11
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his or her disability and
entitlement to compensation.12
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish disability during
the period June 26, through August 18, 2017 causally related to her accepted employment
conditions.
Appellant has submitted a number of reports to the record from Dr. Kim. Dr. Kim initially
related that appellant was off work from May 5, 2017 due to her bilateral hand condition, but that
she could return to full-time work with restriction on May 23, 2017. The record reflects that
appellant received wage-loss compensation during that initial period of disability and that she
returned to limited-duty work on or about May 23, 2017.
Appellant was then seen in an emergency room on June 26, 2017 for left arm complaints,
however Dr. Gaines reported normal examination findings.
Dr. Kim thereafter continued to submit reports noting appellant’s diagnoses and indicating
that appellant was unable to work as of June 26, 2017. In his progress notes during the relevant
time period Dr. Kim noted appellant’s subjective complaints, but offered no medical explanation
8

B.F., supra note 6; M.D., supra note 6; see Edward H. Horton, 41 ECAB 301 (1989).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.5 (June 2013); see B.R., Docket
No. 18-0339 (issued January 24, 2019).
10

Id.

11

A.B., Docket No. 18-0978 (issued September 6, 2019); J.W., Docket No. 17-0715 (issued May 29, 2018); G.P.,
Docket No. 14-1150 (issued September 15, 2014); J.F., 58 ECAB 124 (2006).
12
V.B., Docket No. 18-1273 (issued March 4, 2019); see William A. Archer, 55 ECAB 674 (2004); see also
Fereidoon Kharabi, 52 ECAB 291 (2001).

5

regarding appellant’s inability to return to work, based upon objective medical evidence. As
previously noted, if inability to work is claimed within 90 days after the initial return to work the
focus is on disability, rather than causal relationship. However, the treating physician must
describe the duties which the employee cannot perform and demonstrate objective medical
findings that form the basis for the renewed disability for work.13
In his July 17, 2017 report, Dr. Kim related that appellant had been off work due to severe
pain and numbness in her hands and he indicated that even light duty would be impossible for her
to perform. Although Dr. Kim opined that appellant was totally disabled for work, his opinion
was conclusory in nature and failed to explain how the accepted bilateral carpal tunnel syndrome
was responsible for her disability and why she could not perform her light-duty assignment during
the period claimed.14
In his narrative report dated April 12, 2018, Dr. Kim related that appellant was admitted to
the emergency room on June 26, 2017 for neuropathic upper extremity pain. He examined
appellant on that day, after she was released from the hospital. Appellant’s physical examination
findings included tenderness over the left shoulder, left elbow, left wrist, right wrist and neck. She
also reported left arm pain and weakness, numbness and tingling in both hands, and cervicalgia.
Dr. Kim related that he had recommended that appellant stay off work. The Board finds that while
Dr. Kim, in this report as in his others, consistently noted appellant’s subjective symptoms, he
again did not relate any objective findings of disability. Furthermore, Dr. Kim did not address
why appellant could not perform the duties of the light-duty position she returned to on
May 23, 2017. When a physician’s statements regarding an employee’s ability to work consist
only of recitation of the employee’s complaints that she was in too much pain to work, without
objective findings of disability being shown, the physician has not presented a medical opinion on
the issue of disability.15 A mere conclusion without the necessary rationale is insufficient to meet
a claimant’s burden of proof.16 Without medical rationale supporting disability, Dr. Kim’s reports
are insufficient to meet appellant’s burden of proof.17 His reports, do not establish that appellant
was disabled from work during the claimed period due to her accepted conditions.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

13

A.B., Docket No. 18-0978 (issued September 6, 2019); J.W., Docket No. 17-0715 (issued May 29, 2018); G.P.,
Docket No. 14-1150 (issued September 15, 2014); J.F., 58 ECAB 124 (2006).
14

See S.K., Docket No. 18-1537 (issued June 20, 2019).

15

B.F., Docket No. 19-0123 (issued May 13, 2019); P.D., Docket No. 14-0744 (issued August 6, 2014); G.T., 59
ECAB 447 (2008).
16

B.F., id.; E.L., Docket No. 17-1632 (issued January 3, 2018).

17

A.T., Docket No. 19-0410 (issued August 13, 2019).

6

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish that she was
disabled during the period June 26 through August 18, 2017 causally related to her accepted
employment conditions.
ORDER
IT IS HEREBY ORDERED THAT the December 14, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 5, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Burlington, NJ, Employer
__________________________________________

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

Docket No. 08-523
Issued: November 18, 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 December 11, 2007 appellant filed a timely appeal from June 5, 2007 schedule award
decisions of the Office of Workers’ Compensation Programs and August 29, 2007 decisions that
denied her requests for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over this case.
ISSUES
The issues are: (1) whether appellant has more than a 37 percent impairment of the left
upper extremity and no impairment of the right upper extremity; (2) whether the Office used a
proper pay rate in determining appellant’s schedule award compensation; and, (3) whether the
Office properly refused to reopen her claims for further review of the merits under 5 U.S.C.
§ 8128(a).
FACTUAL HISTORY
On February 22, 1989 appellant, then a 22-year-old letter carrier, sustained an
employment-related right index finger injury. The claim was adjudicated by the Office under

file number xxxxxx936. The Office accepted right carpal tunnel syndrome and, on April 9,
1991, she underwent right median nerve decompression and right index finger surgery.
Appellant stopped work that day and returned to limited duty on July 15, 1991. Her pay rate was
$14.67 per hour or $517.92 per week.
On March 2, 1996 appellant filed a Form CA-1, traumatic injury claim, alleging that she
fell while delivering mail and hurt her left hand, wrist, arm and shoulder. She returned to work
on March 4, 1996. This claim was adjudicated under file number xxxxxx876 and accepted for
lumbosacral strain, left wrist sprain and neck sprain.
On December 23, 1997 under file number xxxxxx809, the Office accepted that appellant
sustained an employment-related left shoulder brachial plexopathy. Appellant’s pay rate at that
time was $701.14 a week. She missed intermittent periods thereafter, and on October 17, 1998
sustained a recurrence of disability. Appellant was placed on the periodic rolls effective
March 20, 1999 at a pay rate of $727.20. She underwent left shoulder surgery on April 27, 1999,
and left wrist surgery on September 4, 2001. Appellant returned to modified duty in 2003.
On January 25, 2005 appellant filed a schedule award claim. In an October 28, 2004
report, Dr. Nicholas Diamond, an osteopath, noted the histories of injury and that appellant was
working permanent light duty. Dr. Diamond reported appellant’s complaints of weakness of the
right wrist and constant left shoulder pain and that she had difficulties with activities of daily
living. He provided findings on physical examination including normal range of motion of the
right hand and wrist and bilateral decreased sensation to pinprick and light touch, which was at
the C8 level on the left. Dr. Diamond diagnosed carpal tunnel syndrome; right index finger
stenosing tenosynovitis; status post carpal tunnel release; status post release of A1 metacarpal
pulley of the right index finger; left thoracic outlet syndrome; status post left total anterior
scalenectomy; post-traumatic left wrist ligament partial tear, ulnar ligament partial tear, synovitis
chondromalacia; status post left wrist arthroscopy. He advised that, in accordance with the fifth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (hereinafter A.M.A., Guides),1 appellant had a 55 percent impairment of the left
upper extremity and a 31 percent impairment of the right arm.
In a March 15, 2005 report, an Office medical adviser reviewed Dr. Diamond’s report
and found that maximum medical improvement (MMI) was reached on October 28, 2004. He
concluded that, under the A.M.A., Guides, appellant had a 23 percent left upper extremity
impairment and no right upper extremity impairment. Office file numbers xxxxxx936,
020710876 and 020733809 were combined, with the former becoming the master file.
The Office determined that a conflict in medical evidence arose between the opinions of
Dr. Diamond and the Office medical adviser. On December 1, 2005 it referred appellant to
Dr. David A. Bundens, a Board-certified orthopedic surgeon, for an impartial evaluation. By
report dated December 29, 2005, Dr. Bundens noted the history of appellant’s injuries and his
review of the medical record. He provided findings on physical examination and advised that, in
accordance with the fifth edition of the A.M.A., Guides, appellant had a 69.8 percent left upper
extremity impairment.
1

A.M.A., Guides (5th ed. 2001); Joseph Lawrence, Jr., 53 ECAB 331 (2002).

2

In a February 8, 2006 report, a second Office medical adviser reviewed the medical
record including Dr. Bundens’ report. He agreed that the date of MMI was October 28, 2004,
and that appellant had no right upper extremity impairment. The Office medical adviser found
Dr. Bundens’ report insufficient and agreed with the first Office medical adviser that appellant
had a 23 percent right (sic) upper extremity impairment.
On April 10, 2006 appellant was granted a schedule award for a 23 percent right upper
extremity impairment, for a total of 71.76 weeks, to run from October 28, 2004 to March 14,
2006, at the augmented compensation rate of $387.99, based on her April 9, 1991 pay rate of
$517.32.
By letter dated April 9, 2006, appellant’s attorney requested a schedule award for the left
upper extremity and on April 18, 2006 requested a hearing. By decision dated July 17, 2006, an
Office hearing representative found that it was unclear if Dr. Bundens followed the A.M.A.,
Guides and that the schedule award should have been issued for appellant’s left upper extremity,
not the right. He remanded the case to the Office to prepare a new statement of accepted facts
that identified all accepted injuries to be referred to an Office medical adviser who should be
asked to comment on Dr. Bundens’ method of calculating appellant’s left upper extremity
impairment. Regarding appellant’s right upper extremity, he found Dr. Diamond’s report
insufficient and found that on remand appellant should be referred for a second opinion
evaluation regarding the degree of her right upper extremity impairment.
On February 8, 2007 an Office medical adviser noted his review of medical records
regarding appellant’s upper extremity impairments and advised that she had a 37 percent left
upper extremity impairment.
The Office referred appellant to Dr. Zohar Stark, a Board-certified orthopedic surgeon,
for a second opinion evaluation to provide an impairment rating for appellant’s right upper
extremity. By report dated March 8, 2007,2 Dr. Stark noted findings on physical examination of
the right upper extremity. He concluded that appellant had reached maximum medical
improvement and had no right upper extremity impairment, noting that she had no residual
findings except for a scar from right index finger surgery and right carpal tunnel syndrome
repair.
In an April 3, 2007 report,3 the Office medical adviser again concluded that appellant had
a 37 percent left upper extremity impairment.
On June 5, 2007 appellant was granted a schedule award for an additional 14 percent left
upper extremity impairment, for 46.80 weeks of compensation, to run from March 15, 2006 to
January 14, 2007, at an augmented compensation rate of $387.99, based on the April 9, 1991 pay
2

Dr. Stark initially stated that he rated appellant’s impairment in accordance with the first edition of the A.M.A.,
Guides. On April 30, 2007 he corrected page 3 of his report to indicate that he rated appellant’s impairment in
accordance with the fifth edition of the A.M.A., Guides.
3

Although the signatures are illegible, it appears that this Office medical adviser is the physician who provided
the February 8, 2006 and February 8, 2007 reviews.

3

rate. In a separate June 5, 2007 decision, the Office determined that appellant was not entitled to
a schedule award for her right upper extremity.
On August 10, 2007 appellant, through her attorney, requested reconsideration of the
June 5, 2007 decisions. The attorney stated that he had not been sent copies of the June 7, 2007
decisions and had thus been precluded from timely requesting a hearing, and argued that a
conflict existed between the reports of Dr. Diamond and Dr. Stark regarding appellant’s right
upper extremity and that a conflict remained regarding appellant’s left upper extremity. He
further argued that a recurrent pay rate should have been used in calculating appellant’s schedule
award.
In two decisions dated August 29, 2007, the Office addressed each June 5, 2007 decision
separately and denied appellant’s reconsideration requests.
LEGAL PRECEDENT -- ISSUE 1
Under section 8107 of the Federal Employees’ Compensation Act4 and section 10.404 of
the implementing federal regulation,5 schedule awards are payable for permanent impairment of
specified body members, functions or organs. The Act, however, does not specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice under the law for all claimants, good administrative practice necessitates the use of
a single set of tables so that there may be uniform standards applicable to all claimants. The
A.M.A., Guides has been adopted by the Office, and the Board has concurred in such adoption,
as an appropriate standard for evaluating schedule losses.6
The standards for evaluating the percentage of impairment of extremities under the
A.M.A., Guides are based primarily on loss of range of motion. In determining the extent of loss
of motion, the specific functional impairments, such as loss of flexion or extension, should be
itemized and stated in terms of percentage loss of use of the member in accordance with the
tables in the A.M.A., Guides. However, all factors that prevent a limb from functioning
normally should be considered, together with the loss of motion, in evaluating the degree of
permanent impairment.7 Chapter 16 provides the framework for assessing upper extremity
impairments.8 Section 16.5b of the A.M.A., Guides describes the methods for evaluating upper
extremity impairments due to peripheral nerve disorders and provides that the severity of the
sensory or pain deficit and motor deficit should be classified according to Tables 16-10a and
16-11a respectively. The impairment is evaluated by multiplying the grade of severity of the
sensory or motor deficit by the respective maximum upper extremity value resulting from

4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404.

6

See Joseph Lawrence, Jr., supra note 2; James J. Hjort, 45 ECAB 595 (1994); Leisa D. Vassar, 40 ECAB 1287
(1989); Francis John Kilcoyne, 38 ECAB 168 (1986).
7

Robert V. Disalvatore, 54 ECAB 351 (2003).

8

A.M.A., Guides, supra note 2 at 433-521.

4

sensory or motor deficits of each nerve structure involved. When both sensory and motor
functions are involved, the impairment values derived for each are combined.9
Chapter 16 of the fifth edition of the A.M.A., Guides provides the framework for
assessing upper extremity impairments.10 Section 16.4 provides that in evaluating abnormal
motion both active and passive motion measurements are necessary to evaluate the joint motion
under the appropriate charts, and these should be added to obtain the total motion impairment.11
Section 16.8a of the A.M.A., Guides provides that, in a rare case, if the examiner believes the
individual’s loss of strength represents an impairing factor that has not been considered
adequately by other methods, the loss of strength may be rated separately. An example of such
situation would be loss of strength due to a severe muscle tear that healed leaving a palpable
muscle defect. Decreased strength cannot be rated in the presence of decreased motion, painful
conditions, deformities or absence of parts that prevent effective application of maximal force in
the region being evaluated.12
Section 8123(a) of the Act provides that, 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.13
ANALYSIS -- ISSUE 1
The Board initially finds that the August 29, 2007 decision addressing appellant’s right
upper extremity is a decision on the merits of appellant’s schedule award claim as the Office
both addressed appellant’s arguments and weighed the medical evidence. The Office therefore
conducted merit review.
The Board finds that appellant has no right upper extremity impairment that would entitle
her to a schedule award. In an October 28, 2004 report, Dr. Diamond advised that, in accordance
with the A.M.A., Guides, under Table 16-10, appellant had a sensory deficit of the median nerve
of 31 percent on the right. An Office medical adviser reviewed Dr. Diamond’s report and found
that appellant had no right upper extremity impairment. While Dr. Diamond advised that
appellant had diminished sensation to pinprick and light touch, he did not follow the procedures
outlined in Table 16-10 of the A.M.A., Guides.14 In his March 8, 2007 report, Dr. Stark advised
that examination of the right shoulder, elbow and wrist revealed no tenderness or atrophy, that
range of motion was normal, and impingement, apprehension, Phalen’s and Tinel’s tests were
negative. A well-healed scar was present on the volar aspect of the right wrist. Dr. Stark
concluded that appellant had reached maximum medical improvement and had no right upper
9

Id. at 481; Kimberly M. Held, 56 ECAB 670 (2005).

10

Id. at 433-521.

11

Id. at 451-52.

12

Id. at 508.

13

5 U.S.C. § 8123(a).

14

A.M.A., Guides, supra note 2 at 482.

5

extremity impairment, noting that she had no residual findings except for scars from surgery for
the right index finger injury and right carpal tunnel syndrome repair. Because Dr. Diamond’s
report does not comport with the A.M.A., Guides,15 the Board finds that the weight of the
medical evidence regarding appellant’s right upper extremity rests with the opinion of Dr. Stark
who provided a well-reasoned report in which he concluded that appellant had no permanent
impairment of her right upper extremity.16
The Board finds this case is not in posture for decision regarding appellant’s left upper
extremity impairment. The Office found that a conflict in medical evidence had been created
between the opinions of Dr. Diamond and the Office medical adviser and referred appellant to
Dr. Bundens for an impairment evaluation. The Board finds that a conflict remains.
In a December 29, 2005 report, Dr. Bundens advised that appellant had permanent
symptoms of thoracic outlet syndrome, left wrist instability, traumatic arthritis, and persistent
dysesthesias in the left arm which she was unable to use normally due to weakness and loss of
motion. He advised that grip strength testing performed three times with the Jamar
dynamometer demonstrated a 55.7 percent loss of strength on the left, and that, under Figures 1628 and 16-31, she had left wrist flexion of 40 degrees for a 3 percent loss, and extension of 38
degrees for a 4 percent loss with normal radial deviation of 20 degrees and ulnar deviation of 35
degrees, for a 7 percent wrist impairment.17 Regarding the left shoulder, Dr. Bundens advised
that, under Figure 16-40, flexion of 150 degrees equaled a 2 percent impairment, and extension
of 25 degrees equaled a 1.5 percent impairment, that, under Figure 16-43, abduction of 85
degrees equaled a 4.5 percent impairment and adduction of 15 degrees equaled a 1 percent
impairment, that, under Figure 16-46, 38 degrees of external rotation equaled a 1 percent
impairment, with normal internal of 85 degrees, for a total 10 percent left shoulder impairment.18
He also advised that appellant had a Grade 3 brachial plexus. Dr. Bundens stated that he had “no
real firm guidelines” on how to calculate the impairment but gave half for pain and sensation and
half for strength, or impairments of 25 percent and 27.8 percent respectively, for 52.8 percent
shoulder impairment. He then added all impairments for a total 69.8 percent left upper extremity
impairment.
In a February 8, 2007 report, an Office medical adviser reviewed Dr. Bundens’ report and
advised that, under Figures 16-40, 16-43 and 16-46, appellant had shoulder impairments of 2
percent for flexion of 150 degrees, 2 percent for extension of 25 degrees, 5 percent for abduction
of 85 degrees, 1 percent for adduction of 15 degrees, 1 percent for external rotation of 38 degrees
and no impairment for internal rotation of 38 degrees for a total 11 percent left shoulder
impairment due to loss of motion.19 Regarding the left wrist, he found that, under Figures 16-28
and 16-31, appellant had impairments of 3 percent for 40 degrees of flexion, 4 percent for
15

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

16

James R. Taylor, 56 ECAB 537 (2005).

17

A.M.A., Guides, supra note 2 at 467, 469.

18

Id at 476-77, 479.

19

Id.

6

extension of 38 degrees, and no impairment for radial and ulnar deviation of 20 and 35 degrees
respectively for a 7 percent left wrist impairment due to loss of motion.20 The Office medical
adviser also found that appellant’s left brachial plexopathy affected her grip strength and award
her a 20 percent deficit.
The Board notes that, while Dr. Bundens’ findings of a 7 percent impairment for loss of
wrist motion and a 10 percent impairment for loss of shoulder motion conform to the A.M.A.,
Guides,21 he also found a 52.8 percent shoulder impairment due to loss of shoulder impairment
due to sensory and motor deficits. The fifth edition of the A.M.A., Guides provides, that loss of
strength should be rated separately only if it is based on an unrelated cause or mechanism,22 and
only if the examiner believes the individual’s loss of strength represents an impairing factor that
has not been considered adequately by other methods. Furthermore, decreased strength is not to
be rated in the presence of decreased motion, painful conditions, deformities or absence of parts
that prevent effective application of maximal force in the region being evaluated.23 Both
Dr. Bundens and the Office medical adviser explained that appellant’s left brachial plexopathy
affected her grip strength, with Dr. Bundens finding 27.8 impairment and the Office medical
adviser 20 percent impairment. Neither, however, explained why this should be given in
addition to the objective anatomic findings described above.
Regarding Dr. Bundens’ finding of 25 percent impairment for pain and loss of sensation,
in an April 3, 2007 report, the Office medical adviser stated that Dr. Bundens’ method of
calculating appellant’s sensory deficit was very vague and not in accordance with the A.M.A.,
Guides. The A.M.A., Guides provide that when an impairment results strictly from a peripheral
nerve lesion, in the absence of complex regional pain syndrome, motion impairment values
found in section 16.4 are not to be used to avoid duplication or an unwarranted increase in the
impairment determination.24
Dr. Bundens did not explain why appellant should be granted an additional impairment
rating for her loss of grip strength or why her brachial plexus condition yielded a 25 percent
sensory deficit.25 The Board finds that the conflict in medical evidence remains regarding
appellant’s left upper extremity impairment. When the Office secures an opinion from an
impartial medical specialist for the purpose of resolving a conflict in the medical evidence and
the opinion from the specialist requires clarification or elaboration, the Office has the
20

Id. at 467, 469.

21

It is proper Office policy to round the calculated percentage of impairment to the nearest whole number. J.Q.,
59 ECAB ___ (Docket No. 06-2152, issued March 5, 2008). Fractions are rounded down from 0.49 and up from
0.50. Carl J. Cleary, supra note 16. As explained in Figure 16-53b of the A.M.A., Guides, regional impairments
due to loss of motion are to be combined. A.M.A., Guides, supra note 2 at 517.
22

A.M.A., Guides, supra note 2 at 508; James R. Taylor, supra note 17.

23

Id. at 508.

24

Id. at 480.

25

Section 16.5c of the A.M.A., Guides provides an explanation for an impairment determination for brachial
plexus injuries. Id. at 489.

7

responsibility to secure a supplemental report from the specialist for the purpose of correcting a
defect in the original report.26 The case will therefore be remanded to the Office for appropriate
further development.
LEGAL PRECEDENT -- ISSUE 2
Section 8107 of the Act provides that compensation for a schedule award shall be based
on the employee’s monthly pay.27 Section 8105(a) provides: “If the disability is total, the
United States shall pay the employee during the disability monthly monetary compensation equal
to 66 2/3 percent of his monthly pay, which is known as his basic compensation for total
disability.”28 Section 8101(4) defines monthly pay for purposes of computing compensation
benefits as follows: The monthly pay at the time of injury or the monthly pay at the time
disability begins or the monthly pay at the time compensable disability recurs, if the recurrence
begins more than six months after the injured employee resumes regular full-time employment
with the United States, whichever is greater.29 Office regulations provide that a recurrence of
disability means an inability to work after an employee has returned to work, caused by a
spontaneous change in a medical condition resulting from a previous injury or illness without a
new or intervening injury.30
In applying section 8101(4), the statute requires the Office to determine monthly pay by
determining the date of the greater pay rate, based on the date of injury, date of disability, or the
date of recurrent disability. The Board has held that rate of pay for schedule award purposes is
the highest rate which satisfies the terms of section 8101(4).31
It is well established that the period covered by a schedule award commences on the date
that the employee reaches MMI from the residuals of the accepted employment injury. The
Board has explained that MMI means that the physical condition of the injured member of the
body has stabilized and will not improve further. The determination of whether MMI has been
reached is based on the probative medical evidence of record and is usually considered to be the
date of the evaluation by the attending physician, which is accepted as definitive by the Office.32
The Board has held that the date of injury is the date of last exposure to the work factors
causing injury. This necessarily occurs prior to the medical examination relied upon for
determining the extent of permanent impairment. The Board has found that the date of injury is
the date of the last exposure which adversely affects the impairment because every exposure
26

Nancy Keenan, 56 ECAB 687 (2005).

27

5 U.S.C. § 8107.

28

5 U.S.C. § 8105(a).

29

5 U.S.C. § 8101(4).

30

20 C.F.R. § 10.5(x).

31

Patricia K. Cummings, 53 ECAB 623 (2002).

32

D.R., 57 ECAB 720 (2006).

8

which has an adverse effect (an aggravation) constitutes an injury.33 In the usual case, the
claimant has either retired or is no longer being exposed to any injurious work factors prior to the
date of the medical examination and, as a result, there is a clearly defined date of last exposure.
Where exposure to work factors continues, the date of injury is the date of relevant medical
evaluation, i.e., the date of the medical examination upon which the extent of permanent
impairment has been determined.34
ANALYSIS -- ISSUE 2
On April 10, 2006 and June 5, 2007, appellant was granted schedule awards for a left
upper extremity impairment totaling 37 percent. Her schedule award compensation was based
on an April 19, 1991 weekly pay rate of $517.32. The Board notes that the Office used an
incorrect pay rate for schedule award compensation purposes.
Appellant’s initial injury to her right index finger occurred in 1989 and she sustained a
recurrence of disability on April 9, 1991 when she underwent corrective right upper extremity
surgery. The schedule awards granted in this case are for appellant’s left upper extremity. Left
shoulder brachial plexopathy was not accepted until December 23, 1997, and appellant did not
stop work for this condition until October 17, 1998. Her weekly pay rate at that time was
$727.20.
Monthly pay for compensation purposes is defined as the monthly pay at the time of
injury, or the monthly pay at the time disability begins, or the monthly pay at the time
compensable disability recurs, if the recurrence begins more than six months after the injured
employee resumes regular full-time employment with the United States, whichever is greater.35
In this case, the proper weekly pay rate to be used in calculating appellant’s schedule award
compensation is the pay rate in effect the date the disability for her left upper extremity injury
began, or October 17, 1998. Appellant’s weekly pay rate at that time was $727.20. Assuming
arguendo that she stopped work on October 17, 1998 due to her right upper extremity condition,
a recurrent pay rate would then apply, which would also be $727.20. The case must also be
remanded to the Office for determination of appellant’s correct pay rate for schedule award
compensation.
CONCLUSION
The Board finds that appellant has not established that she has a permanent impairment of
the right upper extremity. The Board further finds that the case is not in posture for decision
regarding appellant’s left upper extremity impairment, and that the Office used an incorrect pay

33

R.S., 58 ECAB ___ (Docket No. 06-1346, issued February 16, 2007).

34

Id.

35

5 U.S.C. § 8101(4).

9

rate for schedule award compensation purposes. In light of the Board’s findings regarding issues
1 and 2, Issue 3 need not be addressed.36
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated August 29 and June 5, 2007 regarding appellant’s right upper
extremity are affirmed. The decisions dated August 29 and June 5, 2007 regarding appellant’s
left upper extremity are vacated and the case is remanded to the Office for proceedings
consistent with this opinion of the Board.
Issued: November 18, 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

36

Appellant has asserted that her attorney did not receive the June 7, 2007 Office decisions. In the absence of
evidence to the contrary, correspondence properly addressed and mailed in the due course of business is presumed to
have arrived at the mailing address in due course. W.P., 59 ECAB ___ (Docket No. 08-202, issued May 8, 2008).
The record in this case indicates that the June 7, 2007 decisions were mailed to appellant’s attorney.

10