United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Midway, KY, Employer
__________________________________________

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

Docket No. 08-2160
Issued: May 7, 2009

Case Submitted on the Record

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

JURISDICTION
On August 6, 2008 appellant filed a timely appeal from a December 3, 2007 merit
decision of the Office of Workers’ Compensation Programs denying her emotional condition
claim and a May 27, 2008 nonmerit decision finding that she abandoned her request for a
hearing. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case and over the May 27, 2008 nonmerit decision.
ISSUES
The issues are: (1) whether appellant has established that she sustained an emotional
condition in the performance of duty; and (2) whether the Office properly determined that she
abandoned her request for a telephonic hearing.
FACTUAL HISTORY
On August 23, 2007 appellant, then a 43-year-old clerk, filed an occupational disease
claim alleging that she sustained stress due to factors of her federal employment. She stopped
work on August 6, 2007.

In a statement received September 21, 2007, appellant indicated that she was unaware
that she could file a workers’ compensation claim. She used sick leave to try to recover.
Brenda Slusher, the postmaster, telephoned her three times a week for medical information. She
told appellant that the information was for the medical unit but it was actually for the workers’
compensation unit. Appellant transferred to her current work station in the spring 2005 to escape
sexual harassment by Bob Crowdis. Mr. Crowdis and Ms. Slusher spoke about appellant by
telephone and in electronic mail messages. Ms. Slusher taped her without her knowledge, issued
her suspensions and cut her work hours so she was unable to take family and medical leave.
Appellant filed Equal Employment Opportunity (EEO) complaints. On June 4, 2007 Ms. Slusher
yelled at her. Appellant went to the bathroom and stated that she was sick. She told Ms. Slusher
that she wanted to go home. Appellant stated:
“I said I had to go home I can’t quit throwing up (I was crying while I talked to
her) and I said it’s because of you, you’re yelling at me in front of everybody,
you’re always angry at me and I can’t keep taking it. Ms. Slusher said she didn’t
to let me go but she would allow it, but I needed a doctor’s note to return to work.
Ms. Slusher has yelled at me and made me feel like squashed by her. I can’t take
her meaness, anger, rath, harassment, torture anymore. Ms. Slusher even held my
annual leave from me. In 4 weeks of being off sick I received 14 del
confirmations and certif from Ms. Slusher, telling me I might be repremanded.
When I went back to work on June 10, 2007....”
Ms. Slusher told appellant to bring in a doctor’s note on August 2, 2007 when she called
in sick. Appellant felt threatened by Ms. Slusher, who allegedly had coworkers spy on her,
threatened her job and retaliated against her.1
In a statement dated October 4, 2007, Angela Creech, a coworker, related that she had
witnessed Ms. Slusher “yell at [appellant] on a few occasions. The last time [Ms. Slusher] yelled
at [her] about some marks, [she] refused to let [appellant] speak in her defense.” Appellant went
to the restroom and then left for home.
On November 6, 2007 Ms. Slusher related that appellant transferred to the current work
location on May 14, 2005. She performed the full duties of a clerk without complaint.
Ms. Slusher learned that appellant had previously worked restricted duty due to an accepted
employment-related ankle injury. She requested that she bring in a release showing that she
could perform full duty. Appellant provided a report indicating that she had permanent work
restrictions but the restrictions were not specified. She missed some work due to her ankle
condition. Ms. Slusher issued appellant a letter of warning on March 30, 2006 for incorrectly
processing registered mail. On August 3, 2006 she issued a seven-day suspension because
appellant incorrectly processed registered mail and returned to work after stating that she had a
possible work injury without providing the postmaster with her restrictions. On January 11,
1

On October 4, 2007 appellant filed a claim for a traumatic injury occurring on June 4, 2007 when Ms. Slusher
yelled at her in front of co-workers. In a telephone call of November 1, 2007, she specified that she was claiming
ongoing events at work caused her condition and that “June 4, 2007 was her breaking point.”

2

2007 Ms. Slusher gave appellant a seven-day suspension for failing to follow instructions. The
suspension was later reduced to a letter of warning. Ms. Slusher gave appellant a 14-day
suspension on April 4, 2007 for misdelivering parcels. She denied screaming at appellant but
related that “[h]er continual disregard for instructions has forced me to speak to her sternly to get
her to listen.” On June 4, 2007 Ms. Slusher questioned appellant regarding why she had not
dispatched a package. She stated:
“[Appellant] started giving me excuses, so I told her that we would discuss the
matter later. [She] continued to give me excuses why she had not dispatched the
parcel. Again, I told her we would discuss it later. After [appellant] continued to
offer up excuses for the third time, I spoke to her using a stern voice and firmly
said we will discuss this later in private. I walked off to avoid any additional
discussion.”
Appellant told her a few minutes later that she was sick and needed to go home.
Ms. Slusher did not refuse her request and did not call her at home or request protected
information. Appellant telephoned in the afternoon and stated that she would not be at work the
next day because she was sick. Ms. Slusher advised her to obtain a doctor’s statement. After she
received a doctor’s statement on August 9, 2007, Ms. Slusher telephoned appellant to tell her that
it did not contain all of the required information. Ms. Slusher denied having coworkers spy on
appellant or threatening her job. She stated, “The only thing threatening [appellant’s] job is her
continual inability to perform the duties of it, which is solely in her control.” Ms. Slusher denied
that Ms. Creech had heard her yell at appellant. She stated, “She possibly has heard me get firm
with [appellant] because she will not do as instructed and always argues. I have never yelled at
any employee.” On July 14, 2007 Ms. Creech drove with appellant on a route but they “deviated
from the route. They went driving around another neighborhood. They malingered from one to
two hours. After a thorough investigation, Ms. Creech was issued discipline for her actions.”
Ms. Slusher stated that when appellant returned to work she faced possible discipline “for the
part she played in this incident.”
By decision dated December 3, 2007, the Office denied appellant’s claim on the grounds
that she did not establish an injury in the performance of duty. It found that she had not
established any compensable employment factors.
On December 31, 2007 appellant requested an oral hearing. On February 11, 2008 the
Office informed her that her case was in posture for an oral hearing which would occur within
six to eight months. On March 25, 2008 it advised appellant that her telephonic hearing would
be held April 29, 2008 at 3:00 p.m., Eastern Time. The Office instructed appellant to call the
provided toll free number a few minutes before the hearing time and enter the pass code to gain
access to the conference call. It mailed the March 25, 2008 letter to appellant’s address of
record.
By decision dated May 27, 2008, the Office found that appellant had abandoned her
request for a hearing. It determined that appellant received a written notice of the hearing 30
days before the scheduled hearing but did not appear and did not explain her absence either
before or after the scheduled hearing.

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LEGAL PRECEDENT -- ISSUE 1
Workers’ compensation law is not applicable to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or an
illness has some connection with the employment, but nevertheless does not come within the
concept or coverage of workers’ compensation. When the disability results from an emotional
reaction to regular or specially assigned work duties or a requirement imposed by the
employment, the disability comes within the coverage of the Federal Employees’ Compensation
Act.2 On the other hand, there are situations when an injury has some connection with the
employment, but nonetheless does not come within the coverage of workers’ compensation
because it is not considered to have arisen in the course of the employment.3
Administrative and personnel matters, although generally related to the employee’s
employment are administrative functions of the employer rather than the regular or specially
assigned work duties of the employee and are not covered under the Act.4 However, the Board
has held that where the evidence establishes error or abuse on the part of the employing
establishment in what would otherwise be an administrative matter, coverage will be afforded.5
In determining whether the employing establishment has erred or acted abusively, the Board will
examine the factual evidence of record to determine whether the employing establishment acted
reasonably.6
For harassment or discrimination to give rise to a compensable disability under the Act,
there must be evidence introduced which establishes that the acts alleged or implicated by the
employee did, in fact, occur. Unsubstantiated allegations of harassment or discrimination are not
determinative of whether such harassment or discrimination occurred.7 A claimant must
establish a factual basis for his or her allegations with probative and reliable evidence.
Grievances and EEO complaints, by themselves, do not establish that workplace harassment or
unfair treatment occurred.8 The issue is whether the claimant has submitted sufficient evidence
under the Act to establish a factual basis for the claim by supporting his or her allegations with
probative and reliable evidence.9 The primary reason for requiring factual evidence from the
claimant in support of his or her allegations of stress in the workplace is to establish a basis in

2

5 U.S.C. § 8101-8193; Trudy A. Scott, 52 ECAB 309 (2001); Lillian Cutler, 28 ECAB 125 (1976).

3

Gregorio E. Conde, 52 ECAB 410 (2001).

4

See Matilda R. Wyatt, 52 ECAB 421 (2001); Thomas D. McEuen, 41 ECAB 387 (1990); reaff’d on recon., 42
ECAB 556 (1991).
5

See William H. Fortner, 49 ECAB 324 (1998).

6

Ruth S. Johnson, 46 ECAB 237 (1994).

7

See Michael Ewanichak, 48 ECAB 364 (1997).

8

See Charles D. Edwards, 55 ECAB 258 (2004); Parley A. Clement, 48 ECAB 302 (1997).

9

See James E. Norris, 52 ECAB 93 (2000).

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fact for the contentions made, as opposed to mere perceptions of the claimant, which in turn may
be fully examined and evaluated by the Office and the Board.10
In cases involving emotional conditions, the Board has held that, when working
conditions are alleged as factors in causing a condition or disability, the Office, as part of its
adjudicatory function, must make findings of fact regarding which working conditions are
deemed compensable factors of employment and are to be considered by a physician when
providing an opinion on causal relationship and which working conditions are not deemed
factors of employment and may not be considered.11 If a claimant does implicate a factor of
employment, it should then determine whether the evidence of record substantiates that factor.
When the matter asserted is a compensable factor of employment and the evidence of record
establishes the truth of the matter asserted, the Office must base its decision on an analysis of the
medical evidence.12
ANALYSIS -- ISSUE 1
Appellant alleged that she sustained an emotional condition as a result of a number of
employment incidents and conditions. The Office denied her emotional condition claim on the
grounds that she did not establish any compensable employment factors. The Board must
initially review whether these alleged incidents and conditions of employment are covered
employment factors under the terms of the Act.
Appellant asserted that the postmaster, Ms. Slusher, harassed and discriminated against
her by telephoning her three times a week requesting medical information, secretly taping her,
issuing her suspensions, having coworkers’ spy on her, threatening her job and retaliating against
her. She also related that Ms. Slusher spoke about her to Mr. Crowdis, a man who had sexually
harassed her at work. Harassment and discrimination by supervisors and coworkers, if
established as occurring and arising from the performance of work duties, can constitute a
compensable work factor.13 A claimant, however, must substantiate allegations of harassment
and discrimination with probative and reliable evidence.14 Ms. Slusher denied taping appellant,
spying on her, and threatening her job. She explained the reasons for the disciplinary actions.
Ms. Slusher related that she requested medical documentation from appellant after she stopped
work in June 2007. She again requested documentation in August 2007 because the medical
information received was insufficient. Appellant did not submit any factual evidence in support
of her allegations of harassment and discrimination, such as witness’ statements and thus has not
established a compensable work factor.

10

Beverly R. Jones, 55 ECAB 411 (2004).

11

Dennis J. Balogh, 52 ECAB 232 (2001).

12

Id.

13

Doretha M. Belnavis, 57 ECAB 311 (2006).

14

Robert Breeden, 57 ECAB 622 (2006).

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With regard to appellant’s allegations that management at the employing establishment
erroneously denied her leave requests and issued disciplinary action, the Board finds that these
allegations relate to administrative or personnel matters unrelated to the employee’s regular or
specially assigned work duties and do not fall within coverage of the Act absent evidence
showing error or abuse on the part of the employing establishment.15 Although generally related
to the employment, they are administrative functions of the employer and not duties of the
employee.16 Mere perceptions of error or abuse are not sufficient to establish entitlement to
compensation. Ms. Slusher related that she disciplined appellant on multiple occasions for
incorrectly processing mail, failing to follow instructions and misdelivering parcels. She noted
that a seven-day suspension was later reduced to a letter of warning. However, the Board has
held that the mere fact that personnel actions are later modified or rescinded does not, in and of
itself, establish error or abuse on the part of the employing establishment.17 Appellant has not
submitted any evidence that the employing establishment erred in matters involving her use of
leave or in issuing disciplinary action; consequently, she has not established a compensable work
factor.
Appellant primarily attributed her emotional condition to verbal abuse by Ms. Slusher on
June 4, 2007. She asserted that she became ill after Ms. Slusher yelled at her in front of
coworkers. The Board has held that, while verbal abuse may constitute a compensable factor of
employment, not every statement uttered in the workplace will be covered by the Act.18 While
appellant alleged that Ms. Slusher yelled at her in front of coworkers on June 4, 2007, she did not
submit sufficient evidence to establish a factual basis for her allegation. Ms. Creech generally
related that she heard Ms. Slusher yell at appellant at various times but did not specifically
address the June 4, 2007 incident or provide details of the conversations and thus her statement is
of diminished probative value. On June 4, 2007 Ms. Slusher asked appellant why she had not
dispatched a package. When appellant began to make excuses, Ms. Slusher informed her that
they would talk later. She attempted to continue the conversation and Ms. Slusher spoke to her
in a stern voice. Appellant has not submitted sufficient evidence to support that Ms. Slusher
yelled at her on June 4, 2007. Further, a raised voice in the course of a conversation does not, in
and of itself, warrant a finding of verbal abuse.19
On appeal, appellant contends that the Office failed to consider that her physicians
diagnosed her with employment-related post-traumatic stress disorder. The Board finds that, as

15

Jeral R. Gray, 57 ECAB 611 (2006) (disciplinary actions are administrative functions of the employer and not
duties of the employee and, unless the evidence discloses error or abuse on the part of the employing establishment,
are not compensable employment factors); Judy L. Kahn, 53 ECAB 321 (2002) (matters involving the use of leave
are generally not considered compensable factors of employment as they are administrative functions of the
employer and not duties of the employee).
16

Id.

17

Paul L. Stewart, 54 ECAB 824 (2003).

18

David C. Lindsey, Jr., 56 ECAB 263 (2005). See also Marguerite J. Toland, 52 ECAB 294 (2001).

19

Karen K. Levene, 54 ECAB 671 (2003).

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she failed to establish any compensable factors of employment, the Office properly denied her
claim without reviewing the medical evidence.20
Appellant further maintained that she “won her discrimination case” and could submit
supporting evidence. She may submit such evidence to the Office with a request for
reconsideration under section 8128.
LEGAL PRECEDENT -- ISSUE 2
The statutory right to a hearing under 5 U.S.C. § 8124(b)(1) follows the initial final merit
decision of the Office. Section 8124(b) provides as follows: “Before review under section
8128(a) of this title, a claimant for compensation not satisfied with a decision of the Secretary [of
Labor] under subsection (a) of this section is entitled, on request made within 30 days after the
date of the issuance of the decision, to a hearing on [her] claim before a representative of the
Secretary.”
With respect to abandonment of hearing requests, Chapter 2.1601.6(e) of the Office’s
procedure manual provides in relevant part:
“(1) A hearing can be considered abandoned only under very limited
circumstances. All three of the following conditions must be present: the
claimant has not requested a postponement, the claimant has failed to appear at a
scheduled hearing and the claimant has failed to provide any notification for such
failure within 10 days of the scheduled date of the hearing. Under these
circumstances, [the Branch of Hearings and Review] will issue a formal decision
finding that the claimant has abandoned his or her request for a hearing and return
the case to the [district] Office.”21
ANALYSIS -- ISSUE 2
By decision dated December 3, 2007, the Office denied appellant’s emotional condition
claim. Appellant timely requested an oral hearing. In a March 25, 2008 letter, the Office
notified her that a telephonic hearing was scheduled for April 29, 2008 at 3:00 p.m. Eastern
Time. It instructed appellant to telephone a toll free number and enter a provided pass code to
connect with the hearing representative. Appellant did not telephone at the appointed time. She
did not request a postponement of the hearing or explain her failure to appear at the hearing
within 10 days of the scheduled hearing date of April 29, 2008.22 The Board therefore finds that
she abandoned her request for a hearing.
On appeal, appellant contends that she did not receive notice of the scheduled hearing.
The record reflects that a copy of the March 25, 2008 hearing notice was mailed to her address of
20

See Hasty P. Foreman, 54 ECAB 427 (2003).

21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter
2.1601.6(e) (January 1999); see also G. J., 58 ECAB ___ (Docket No. 07-1028, issued August 16, 2007).
22

Id.

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record and was not returned as undeliverable. The Board has found that, in the absence of
evidence to the contrary, a letter properly addressed and mailed in the due course of business,
such as in the course of the Office’s daily activities, is presumed to have arrived at the mailing
address in due course.23 This is known as the mailbox rule. As the Office properly mailed a
hearing notice of appellant’s address of record, it is presumed to have arrived at her mailing
address.
CONCLUSION
The Board finds that appellant has not established that she sustained an emotional
condition in the performance of duty. The Board further finds that she abandoned her request for
an oral hearing.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated May 27, 2008 and December 3, 2007 are affirmed.
Issued: May 7, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

23

Jeffrey M. Sagrecy, 55 ECAB 724 (2004); James A. Gray, 54 ECAB 277 (2002).

8


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

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

Docket No. 11-286
Issued: August 16, 2011

Case Submitted on the Record

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

JURISDICTION
On November 16, 2010 appellant, through her representative, filed a timely appeal from a
September 14, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to terminate compensation for wageloss and medical benefits effective April 29, 2010.
FACTUAL HISTORY
The case was before the Board on a prior appeal. By decision dated April 5, 2010, the
Board found that the medical evidence required clarification on the issue of termination of
1

5 U.S.C. § 8101 et seq.

compensation.2 The Board noted that the accepted conditions, according to the statement of
accepted facts provided to the second opinion and referee physicians, were bilateral wrist
extensor tendinitis and right hand dorsal ganglion cyst. The April 15, 2008 pretermination letter,
however, included as accepted conditions a right exostosis (site unspecified) and enthesopathy of
the right wrist and carpus. The case was remanded to determine whether Dr. Michael Vender,
the referee orthopedic surgeon, was provided with an accurate background. The history of the
case as reported in the Board’s prior decision is incorporated herein by reference.
In a memorandum dated April 13, 2010, OWCP stated that the only accepted conditions
were the bilateral wrist tendinitis (international classification of diseases, ninth revision No.
727.05) and the right ganglion cyst (ICD9 727.41). According to OWCP, it had also entered the
ICD9 codes for 726.91 (exostosis) and 726.4 (enthesopathy of wrist and carpus) to “facilitate the
payment of bills” for the two accepted conditions.
By decision dated April 29, 2010, OWCP terminated compensation for wage-loss and
medical benefits. It stated that Dr. Vender was provided an accurate background and it had
mistakenly referred to exostosis and enthesopathy as accepted conditions.
Appellant requested a telephonic hearing before OWCP’s hearing representative, which
was held on July 26, 2010. At the hearing she argued that, if the added conditions were included
in the claim to pay the bills, this would at least imply that they were accepted conditions.
By decision dated September 14, 2010, OWCP’s hearing representative affirmed the
April 29, 2010 OWCP decision. OWCP’s hearing representative found the weight of the
evidence rested with Dr. Vender.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his employment, it may not terminate compensation without establishing that the disability had
ceased or that it was no longer related to the employment.3
It is well established that, when a case is referred to a referee specialist for the purpose of
resolving a conflict, the opinion of such specialist, if sufficiently well rationalized and based on a
proper factual and medical background, must be given special weight.4
ANALYSIS
As the Board noted in its prior decision, there was confusion as to the accepted conditions
in this case that required clarification. If the conditions of ecstasies and enthesopathy were
accepted conditions, then clearly referee physician, Dr. Vender, did not have an accurate
2

S.A., Docket No. 09-1627 (issued April 5, 2010).

3

Elaine Sneed, 56 ECAB 373 (2005); Patricia A. Keller, 45 ECAB 278 (1993); 20 C.F.R. § 10.503.

4

Harrison Combs, Jr., 45 ECAB 716, 727 (1994).

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background for an opinion as to whether the accepted employment-related conditions had
resolved. Dr. Vender had been advised that only the conditions of bilateral wrist tendinitis and
the right ganglion cyst were employment related.
In this regard, OWCP stated that the accepted conditions were bilateral wrist tendinitis
and right wrist ganglion cyst. The exostosis (ICD9 726.91) and enthesopathy (726.4) codes were
listed in the “ICD9” heading of the case record, but were not accepted conditions. The Board
notes that there was no reference prior to the April 15, 2008 pretermination letter to the
conditions of exostosis or enthesopathy as accepted conditions. In addition, there was no
probative evidence establishing that the conditions were employment related. The attending
physician, Dr. John McClellan, referred to “carpal bossing” in an April 14, 2004 report and in
subsequent reports he diagnosed ICD9 code 726.91, which he described as “carpal bossing
second carpal metacarpal joint”. He did not provide a rationalized opinion on causal relationship
with employment. It is also noted that Dr. McClellan did not discuss an enthesopathy condition.
The Board accordingly finds that OWCP properly found that exostosis and enthesopathy
were not accepted employment-related conditions. The ICD9 codes for these conditions had
been entered into the case record, but the conditions were not established as accepted
employment injuries. Even if OWCP had authorized payment for these conditions, this does not
itself establish that the conditions are employment related.5
Therefore the statement of accepted facts provided to Dr. Vender accurately noted that
the accepted conditions were bilateral wrist tendinitis and right hand ganglion cyst. In his
September 5, 2007 report, Dr. Vender stated that electrodiagnostic studies did not demonstrate
“any significant neuropathy to explain appellant’s complaints of numbness and tingling or
explain her other subjective complaints. [Appellant’s] physical examination was also very
unremarkable. There were no significant objective findings to substantiate her subjective
complaints. The cover letter for today’s evaluation indicates acceptance of the claim for bilateral
wrist extensor tendinitis and a dorsal ganglion cyst of the right hand. Any complaints and
problems related to these diagnoses appear to have treated and resolved satisfactorily.”
Dr. Vender stated that he did not believe appellant’s current complaints regarding the shoulder
were related to the employment activities and she could return to work as a machine operator. In
a February 7, 2008 report, he opined that he did not believe there is any on-going activity of the
accepted conditions causing disability. Dr. Vender stated that he did not believe appellant has
any significant residuals from the work-related injury, as recovery after that type of surgical
procedure would be essentially complete within two to three months postoperative. He
concluded, “I do not believe [she] continues to suffer from upper extremity work-related
conditions dating back to [October 2003].”
As noted above, a rationalized opinion from a referee physician is entitled to special
weight. The Board finds that Dr. Vender provided a rationalized opinion that the accepted
employment-related conditions had resolved. Dr. Vender’s opinion constituted the weight of the
medical evidence in this case. OWCP met its burden of proof to terminate compensation as of
April 29, 2010.
5

See Glen E. Shriner, 53 ECAB 165, 169 (2001).

3

Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds OWCP met its burden of proof to terminate compensation effective
April 29, 2010.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 14, 2010 is affirmed.
Issued: August 16, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.P., Appellant
and
DEPARTMENT OF THE AIR FORCE, NELLIS
AIR FORCE BASE, NV, Employer
__________________________________________

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

Docket No. 20-1330
Issued: February 19, 2021

Case Submitted on the Record

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

JURISDICTION
On June 8, 2020 appellant filed a timely appeal from an April 9, 2020 merit decision of the
Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal Employees’
Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.3

1
The Board notes that, during the pendency of this appeal, OWCP issued a December 14, 2020 decision, which
denied appellant’s claim for a schedule award. The Board and OWCP may not simultaneously exercise jurisdiction
over the same issue(s). 20 C.F.R. §§ 501.2(c)(3), 10.626; see J.C., Docket No. 19-1849, n.2 (issued November 17,
2020); Arlonia B. Taylor, 44 ECAB 591 (1993) (Member, Groom concurring in part and dissenting in part); Russell E.
Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 ECAB 880 (1990). Consequently, OWCP’s December 14,
2020 decision is set aside as null and void.
2

5 U.S.C. § 8101 et seq.

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

ISSUE
The issue is whether appellant has met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.
FACTUAL HISTORY
This case has previously been before the Board on different issues.4 The facts and
circumstances as set forth in the Board’s prior decisions are incorporated herein by reference. The
relevant facts are as follows.
On December 16, 1987 appellant, then a 32-year-old intermittent store worker, filed a
traumatic injury claim (CA-1) alleging that on November 7, 1987 she injured her low back while
lifting a case of vinegar while in the performance of duty.5 She stopped work on November 8,
1987 and returned-to-modified duty on December 15, 1987. OWCP accepted appellant’s claim
for low back strain. Appellant filed claims for intermittent periods of disability for which OWCP
paid her wage-loss compensation on the supplemental rolls beginning December 23, 1987.
On October 20, 1993 appellant accepted a modified-position job offer as a store worker on
an intermittent work schedule. By decision dated November 10, 1993, OWCP reduced her wageloss compensation benefits to zero based on her actual wages as a store worker. It reissued the
decision on January 31, 1994.
Appellant resigned from federal employment, effective January 3, 1994.6
On February 3, 2020 appellant filed a claim for a schedule award (Form CA-7).
In a March 6, 2020 development letter, OWCP requested that appellant’s treating physician
submit an impairment evaluation report in accordance with the sixth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).7 It
afforded her 30 days to submit additional medical evidence in support of her schedule award claim.
In an April 9, 2020 decision, OWCP denied appellant’s schedule award claim, finding that
the medical evidence of record was insufficient to establish that she sustained a permanent
impairment due to her accepted employment-related low back sprain.

4

Docket No. 92-1253 (issued March 23, 1993); Docket No. 97-2321 (issued December 14, 1999); Docket No.
12-1364 (issued September 12, 2012), petition for recon. denied, Docket No. 12-1364 (issued February 19, 2013).
5

OWCP assigned the present claim OWCP File No. xxxxxx263. Appellant has a prior claim for an April 12, 1987
alleged low back injury which OWCP assigned OWCP File No. xxxxxx649. On April 7, 1988 OWCP
administratively combined OWCP File No. xxxxxx263 with OWCP File No. xxxxxx649, designating OWCP File No.
xxxxxx263 as the master file.
6

Appellant continued to receive medical treatment and filed several notices of recurrences (Form CA-2a) claiming
that she sustained recurrences of disability on October 11, 1996, February 23, 2001, and August 24, 2009. OWCP
subsequently denied these claims.
7

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

2

LEGAL PRECEDENT
The schedule award provision of FECA8 and its implementing federal regulations,9 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. FECA,
however, does not specify the manner in which the percentage of loss of a member shall be
determined. For consistent results and to ensure equal justice, the Board has authorized the use of
a single set of tables so that there may be uniform standards applicable to all claimants.10 For
schedule awards after May 1, 2009, the impairment is evaluated under the sixth edition of the
A.M.A., Guides, published in 2009.11 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.12
A claimant has the burden of proof under FECA to establish permanent impairment of a
scheduled member or function of the body as a result of his or her employment injury entitling
him or her to a schedule award.13 OWCP procedures provide that, to support a schedule award,
the file must contain competent medical evidence which shows that the impairment has reached a
permanent and fixed state and indicates the date on which this occurred (date of maximum medical
improvement), describes the impairment in sufficient detail so that it can be visualized on review,
and computes the percentage of impairment in accordance with the A.M.A., Guides.14 Its
procedures further provide that, if a claimant has not submitted a permanent impairment
evaluation, it should request a detailed report that includes a discussion of how the impairment
rating was calculated.15 If the claimant does not provide an impairment evaluation, and there is no
indication of permanent impairment in the medical evidence of file, the claims examiner may
proceed with a formal denial of the award.16
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

10

Id. at § 10.404(a).

11
Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also id. at Chapter 3.700.2 and Exhibit 1 (January 2010).
12

D.S., Docket No. 18-1140 (issued January 29, 2019); Isidoro Rivera, 12 ECAB 348 (1961).

13

See M.G., Docket No. 19-0823 (issued September 17, 2019); D.F., Docket No. 18-1337 (issued February 11,
2019); Tammy L. Meehan, 53 ECAB 229 (2001).
14

Supra note 11 at Chapter 2.808.5 (March 2017).

15

Id. at Chapter 2.808.6(a) (March 2017).

16

Id. at Chapter 2.808.6(c) (March 2017).

3

On February 3, 2020 appellant filed a claim for a schedule award. No medical evidence
was received in support of her schedule award claim. In a March 6, 2020 development letter,
OWCP requested a medical opinion from her treating physician regarding the extent of her
permanent impairment in accordance with the A.M.A., Guides. Appellant, however, did not
submit the requested evidence.
As noted above, if the claimant does not provide an impairment evaluation and there is no
indication of permanent impairment in the medical evidence of file, the claims examiner may
proceed with a formal denial of the award.17 Because appellant did not submit medical evidence
to establish permanent impairment of a scheduled member or function of the body, in accordance
with the sixth edition of the A.M.A., Guides, she has not met her burden of proof to establish her
schedule award claim.18
On appeal, appellant argues that OWCP erroneously closed her claim and denied her
multiple recurrence of disability claims. The Board notes, however, that it only has jurisdiction to
review the April 9, 2020 OWCP decision denying her request for a schedule award.19 As explained
above, the medical evidence of record is insufficient to establish permanent impairment of a
scheduled member or function of the body causally related to the accepted November 7, 1987
employment injury, warranting a schedule award.
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish permanent
impairment of a scheduled member or function of the body, warranting a schedule award.

17

Id.

18

See T.M., Docket No. 19-1126 (issued September 22, 2020).

19

The Board notes that the appellant has filed occupational disease and recurrence of disability claims on
February 19, 2020, however, as OWCP has not adjudicated these claims, the Board does not have jurisdiction to
review these claims. 5 U.S.C. § 8101; 20 C.F.R. §§ 501.2(c) and 501.3.

4

ORDER
IT IS HEREBY ORDERED THAT the April 9, 2020 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 19, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.P., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Salisbury, NC, Employer
__________________________________________

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

Docket No. 21-1163
Issued: March 30, 2022

Case Submitted on the Record

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

JURISDICTION
On April 16, 2021 appellant filed a timely appeal from a December 14, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2
ISSUES
The issues are: (1) whether OWCP has met its burden of proof to terminate appellant’s
wage-loss compensation and medical benefits, effective December 3, 2020, as she no longer had
1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 14, 2020 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
evidence for the first time on appeal. Id.

disability or residuals causally related to her accepted February 21, 2006 employment injury;
(2) whether appellant has established that she had continuing disability or residuals on or after
December 3, 2020 causally related to her accepted February 21, 2006 employment injury.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The relevant facts are as
follows.
On March 22, 2006 appellant, then a 41-year-old nursing assistant, filed an occupational
disease claim (Form CA-2) alleging that she developed bilateral carpal tunnel syndrome (CTS)
due to factors of her federal employment, including pushing, pulling, transporting, and lifting
patients. She noted that she first became aware of her condition and its relationship to her federal
employment on February 21, 2006. Appellant underwent a right carpal tunnel release on
July 12, 2006. OWCP accepted appellant’s claim for bilateral CTS on January 15, 2009.
On July 22, 2020 OWCP referred appellant, along with a statement of accepted facts
(SOAF) and a series of questions, for a second opinion examination and evaluation with
Dr. Chason Hayes, a Board-certified orthopedic surgeon. It requested that Dr. Hayes evaluate
whether appellant continued to have residuals or disability due to the accepted February 21, 2006
employment injury.
In an August 19, 2020 report, Dr. Hayes discussed appellant’s factual and medical history
and reported his findings on physical examination. He noted that appellant had last undergone an
electromyogram/nerve conduction velocity (EMG/NCV) study on October 10, 2014, which was
consistent with severe bilateral peripheral polyneuropathy, probably related to her insulin dependent diabetes. On physical examination Dr. Hayes observed that appellant’s wrists had no
abnormal findings, that her scar was well healed, she had no swelling, and full range of motion.
He also observed that she was uncooperative with the sensory examination. Dr. Hayes opined that
appellant’s work-related CTS had resolved following surgery and that she had no residuals. He
further opined that appellant was capable of working her date -of-injury position. Dr. Hayes
explained that appellant had residuals from unrelated medical conditions such as cervical
radiculopathy and peripheral neuropathy from diabetes, but that, with regard to the accepted work
condition, there was no medical contraindication to her returning to full-duty employment.
On October 23, 2020 OWCP issued a notice proposing to terminate appellant’s wage-loss
compensation and medical benefits based on Dr. Hayes’ opinion that the February 21, 2006
accepted condition had ceased without residuals or disability. It afforded her 30 days to submit
additional evidence of argument challenging the proposed termination.
In a response dated November 11, 2020, appellant replied to OWCP’s notice of proposed
termination, stating that she did not understand why her claim was being terminated when she still
had medical problems. In an attached letter dated March 5, 2020, Dr. Katherine Butler, an
3

Docket No. 10-1201 (issued January 4, 2011); Docket No. 09-2166 (issued May 12, 2010); Docket No. 07-1559
(issued November 7, 2007).

2

orthopedic surgeon, opined that appellant had recurrent bilateral CTS, noting that she had
previously been treated by another physician for bilateral CTS due to repetitive work activities.
She explained that appellant’s recurrence was likely due to scar tissue formation at the surgical
site and, therefore, could be considered related to her initial injury. In a letter dated June 24, 2020,
Dr. Butler explained that she had begun seeing appellant as a patient in 2020. She diagnosed
bilateral carpal tunnel syndrome, noting that it was supported by physical examination, NCV
studies, and medical reports. Dr. Butler stated that appellant’s symptoms appeared to be consistent
and that she had reached maximum medical improvement (MMI). She noted that appellant had
previously undergone bilateral CTS surgery, but continued to have numbness, burning, pain, and
weakness in her hands, which prevented her from returning to employment. Dr. Butler opined that
it was reasonable to assume, based on documentation, that appellant had bilateral CTS attributable
to work and that she has been persistently unable to return to work due to this injury.
In a letter dated July 15, 2020, Dr. Benjamin Ott, a Board-certified family practitioner,
opined that appellant had chronic bilateral CTS due to repetitive work activities in her federal
employment as of February 21, 2006. He explained that her persistent symptoms were likely due
to scar tissue formation related to previous treatment and that she was permanently disabled from
all occupations due to this injury.
Appellant also attached a progress report from Dr. William Mason, a Board-certified
orthopedic surgeon, dated November 29, 2006, in which he opined she was unable to work.
In a note dated November 27, 2020, Dr. Ott indicated that he had seen appellant regularly
every three to four months since prior to 2011. He noted that he regularly discussed her ongoing
issues with CTS and nerve damage at her appointments, including in 2019 and 2020.
By decision dated December 2, 2020, OWCP terminated appellant’s wage-loss
compensation and medical benefits, effective December 3, 2020, based on Dr. Hayes’ second
opinion report.
On December 10, 2020 appellant requested reconsideration.
submitted an EMG/NCV study dated March 3, 2020.

With her request, she

By decision dated December 14, 2020, OWCP denied modification the of the December 2,
2020 decision.
LEGAL PRECEDENT -- ISSUE 1
Once OWCP accepts a claim and pays compensation, it has the burden of proof to justify
termination or modification of an employee’s benefits.4 After it has determined that, an employee
has disability causally related to his or her federal employment, OWCP may not terminate
compensation without establishing that the disability has ceased or that it is no longer related to

4

See R.P., Docket No. 17-1133 (issued January 18, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB
197 (2005); Paul L. Stewart, 54 ECAB 824 (2003).

3

the employment. 5 Its burden of proof includes the necessity of furnishing rationalized medical
opinion evidence based on a proper factual and medical background.6
The right to medical benefits for an accepted condition is not limited to the period of
entitlement for disability compensation.7 To terminate authorization for medical treatment, OWCP
must establish that appellant no longer has residuals of an employment-related condition, which
require further medical treatment. 8
ANALYSIS -- ISSUE 1
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective December 3, 2020.
In his August 19, 2020 report, Dr. Hayes discussed appellant’s factual and medical history
and reported the findings of his physical examination. On physical examination of appellant’s
wrists, he observed normal findings, including that appellant’s scar was well healed, she had no
swelling, and full range of motion. Dr. Hayes opined that appellant’s work-related CTS had
resolved after surgery and that she had no residuals. He related that he had reviewed appellant’s
October 10, 2014 EMG study, which he related was consistent with severe bilateral peripheral
polyneuropathy. While he opined that this finding was “probably” related to appellant insulindependent diabetes, Dr. Hayes offered no rationale in support of his opinion. His opinion regarding
the cause of appellant’s severe bilateral peripheral polyneuropathy was speculative in nature. The
Board has held that speculative and equivocal medical opinions regarding causal relationship have
no probative value. 9 The Board also notes that, while Dr. Hayes found that the 2014 EMG revealed
severe bilateral median nerve studies, he did not obtain further diagnostic studies to confirm
whether appellant’s condition had resolved. Dr. Hayes concluded that appellant had residuals from
unrelated medical conditions such as cervical radiculopathy and peripheral neuropathy from
diabetes, but he offered no medical rationale, supported by objective findings, regarding the cause
of appellant’s continued residuals. The Board has held that a medical opinion is of limited
probative value if it contains a conclusion regarding a given medical matter, which is unsupported
by medical rationale. 10

5

See R.P., id.; Jason C. Armstrong, 40 ECAB 907 (1989); Charles E. Minnis, 40 ECAB 708 (1989); Vivien L.
Minor, 37 ECAB 541 (1986).
6

See R.P., supra note 4; Del K. Rykert, 40 ECAB 284, 295-96 (1988).

7

See R.P., supra note 4; Kathryn E. Demarsh, 56 ECAB 677 (2005); A.P., Docket No. 08-1822 (issued
August 5, 2009). Furman G. Peake, 41 ECAB 361, 364 (1990).
8

See R.P., supra note 4; James F. Weikel, 54 ECAB 660 (2003); Pamela K. Guesford, 53 ECAB 727 (2002);
Furman G. Peake, id.
9

M.G., Docket No. 21-0747 (issued October 15, 2021).

10

See P.C., Docket No. 20-0371 (issued January 26, 2021); L.G., Docket No. 19-0142 (issued August 8, 2019);
E.R., Docket No. 15-1046 (issued November 12, 2015); C.M., Docket No. 14-0088 (issued April 18, 2014).

4

As Dr. Hayes’ August 19, 2020 report was insufficiently rationalized and of diminished
probative medical value in establishing that appellant’s accepted bilateral carpal tunnel conditions
had resolved, OWCP improperly determined that it constituted the weight of the medical evidence.
The Board therefore finds that OWCP did not meet its burden of proof to terminate appellant’s
compensation benefits.11
CONCLUSION
The Board finds that OWCP did not meet its burden of proof to terminate appellant’s wageloss compensation and medical benefits, effective December 3, 2020.
ORDER
IT IS HEREBY ORDERED THAT the December 14, 2020 decision of the Office of
Workers’ Compensation Programs is reversed.
Issued: March 30, 2022
Washington, DC

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

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

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

11

In light of the Board’s disposition of Issue 1, Issue 2 is rendered moot.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.F., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Providence, RI, Employer
__________________________________________

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Appearances:
Damon Williams, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-479
Issued: November 27, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On December 27, 20111 appellant, through his attorney, filed a timely appeal of the
June 30, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

Under the Board’s Rules of Procedure, the 180-day time period for determining jurisdiction is computerized
beginning on the day following the date of OWCP’s decision. See 20 C.F.R. § 501.3(f)(2). As OWCP’s merit
decision was issued on June 30, 2011, the 180-day computation begins July 1, 2011. One hundred eighty days from
June 30, 2011 was December 27, 20101. Since using January 3, 2012, the date the appeal was received by the Clerk
of the Board, would result in the loss of appeal rights, the date of the postmark is considered the date of filing. The
date of the U.S. Postal Service postmark is December 27, 2011, which renders the appeal timely filed. See 20
C.F.R. § 501.3(f)(1).
2

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective August 31, 2008 on the grounds that he no longer had any residuals or
disability causally related to his accepted employment-related injury.
On appeal, counsel contends that there is a conflict in the medical opinion evidence
which requires a referee opinion. He further contends that appellant was not provided due
process as OWCP reversed the Board’s prior decision in this case and erroneously issued a de
novo decision without a pretermination notice.
FACTUAL HISTORY
This case has previously been on appeal before the Board. In a January 26, 2011
decision, the Board set aside OWCP decisions dated September 10 and November 19, 2009
which denied appellant’s requests for reconsideration and remanded the case to OWCP for
consideration of the merits of his claim.3 The Board found that an August 12, 2009 medical
report of Dr. Glenn Nuttall, an attending Board-certified internist, which stated that appellant had
left knee symptoms directly related to his accepted employment-related right knee injury
constituted relevant and pertinent new evidence not previously considered with regards to the
issue of whether OWCP properly terminated his compensation for wage loss and medical
benefits on the grounds that he did not have any continuing employment-related residuals or
disability. Accordingly, the Board remanded the case to OWCP to address the merits of his
request for reconsideration of the August 29, 2008 termination of his compensation. The facts
from the Board’s prior decision are hereby incorporated by reference. The relevant facts follow.
OWCP accepted that on August 15, 2007, appellant, then a 50-year-old mechanic,
sustained temporary aggravation of loose bodies in his right knee while putting down a large
monitor at work. He stopped work on the date of injury. Appellant returned to full-time regularduty work on August 22, 2007.
In terminating appellant’s compensation on August 29, 2008, OWCP relied on the
June 16, 2008 report of Dr. Stanley Hom, a Board-certified orthopedic surgeon and OWCP
referral physician, who obtained a history of the August 15, 2007 employment injury and
appellant’s medical treatment, family and social background. Dr. Hom reviewed the medical
record and statement of accepted facts. He noted appellant’s complaints of constant pain in the
right knee which was exacerbated by walking. Dr. Hom also complained about intermittent falls
which he attributed to loose bodies. Appellant had intermittent pain in the left knee and used
Canadian crutches. On examination of the right knee, Dr. Hom reported a four and one-half inch
transverse surgical scar centered over the mid portion of the patella. The knee joint was boggy
without any obvious clinical effusion. Dr. Hom noted recurvatum of the proximal tibia and
medial and lateral joint line tenderness to palpation. There was also crepitus about the medial
compartment and patellofemoral joint, with manipulation and motion of the knee. Instability of
the medial collateral ligament to stress was demonstrated. Anterior instability was also
3

Docket No. 10-838 (issued January 26, 2011).

2

demonstrated. The knee had 95 degrees of flexion with approximately a 10-degree flexion
contracture. Neurovascular status of the right lower extremity was intact. On examination of the
left knee, Dr. Hom reported no obvious knee joint effusion. There was diffuse medial joint line
tenderness. The ligaments appeared stable to stress. There was no pain in the region of the pes.
There was mild crepitus, but minimal pain with compression of the patellofemoral joint. The
knee had 110 degrees of flexion. There was no flexion contracture and the neurovascular status
of the left lower extremity was intact. Dr. Hom advised that appellant had underlying
post-traumatic degenerative joint disease of the right and left knee and a degenerative tear of the
medial meniscus of the left knee. He opined that appellant no longer had any residuals of his
August 15, 2007 employment injury. This injury represented a temporary exacerbation of his
underlying post-traumatic right knee condition which ceased approximately 8 to 12 weeks
following his injury. Dr. Hom advised that the accepted injury was not the cause of appellant’s
current right knee condition and need for treatment. He concluded that appellant was unable to
perform his regular work duties due to his underlying bilateral knee conditions, but could work
eight hours a day with restrictions.
In his August 12, 2009 report, Dr. Nuttall provided a history of the August 15, 2007
employment injury and appellant’s medical treatment. He noted the findings of a January 22,
2008 magnetic resonance imaging (MRI) scan of the right knee and findings on physical
examination. Dr. Nuttall stated that appellant was in severe pain and had difficulty standing for a
period greater than 10 minutes. He reported severe crepitus in the bilateral knees. Mild
effusions were present, but there was no overlying erythema. Range of motion was extremely
limited with flexion and extension. Appellant had difficulty standing. He walked with a crutch
with frequent periods needed to rest due to pain. Appellant could not walk more than 50 feet.
Dr. Nuttall noted the findings of a February 6, 2008 MRI scan of the left knee and opined that
appellant’s symptoms were directly due to the added stress and change in gait caused by the
August 15, 2007 employment-related right knee injury. He concluded that due to the degree of
damage to and pain in his bilateral knees, appellant was totally and permanently disabled for
work. Dr. Nuttall further concluded that his chronic bilateral knee pain was a residual of his
August 15, 2007 employment injury.
Following the issuance of the Board’s January 26, 2011 decision, OWCP, in a letter dated
March 1, 2011, requested that Dr. Hom review an updated statement of accepted facts and
Dr. Nuttall’s August 12, 2009 report. Dr. Hom was asked to provide a rationalized medical
opinion as to whether appellant had any residuals of his accepted right knee injury and sustained
a left knee condition as a consequence of the accepted condition.
In a June 16, 2011 report, Dr. Hom reviewed appellant’s medical record. He stated that
the right knee had an extensive history of severe trauma requiring emergent surgical treatment
related to a 1983 motor vehicle accident. Appellant had documented postinjury deformity and
extensive degenerative changes with associated meniscal and ligamentous findings as
demonstrated by an MRI scan. Dr. Hom advised that these conditions represented chronic
post-traumatic changes and were not related to the August 15, 2007 injury. He further advised
that these conditions represented indications for any proposed knee reconstructive surgery.
Dr. Hom related that appellant’s left knee condition also presented with a history of significant
trauma and medical treatment related to the 1983 accident. Additionally, he had documented
preexisting chronic tricompartmental degenerative joint disease as noted on the February 6, 2008

3

MRI scan. Dr. Hom advised that a recommended knee replacement represented severe
preexisting chronic degenerative changes unrelated to the August 15, 2007 injury. He concluded
that appellant’s left knee condition did not represent a consequential injury with regards to his
accepted right knee condition.
In a June 30, 2011 decision, OWCP noted that it had carried out evidentiary development
as instructed by the Board and found that it had determined that the evidence did not support
reinstatement of appellant’s claim for wage loss or medical benefits under FECA for his claimed
disability. It found that the weight of the medical evidence rested with Dr. Hom’s reports and
supported its prior decision terminating appellant’s wage-loss compensation and medical
benefits.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of justifying termination or modification
of compensation. After it has been determined that an employee has disability causally related to
his or her employment, OWCP may not terminate compensation without establishing that the
disability had ceased or that it was no longer related to the employment.4 OWCP’s burden of
proof includes the necessity of furnishing rationalized medical opinion evidence based on a
proper factual and medical background.5 Furthermore, the right to medical benefits for an
accepted condition is not limited to the period of entitlement for disability. To terminate
authorization for medical treatment, OWCP must establish that a claimant no longer has
residuals of an employment-related condition that requires further medical treatment.6
ANALYSIS
The Board finds that OWCP met its burden of proof to terminate appellant’s wage-loss
compensation and medical benefits as of August 31, 2008. OWCP accepted that appellant
sustained temporary aggravation of loose bodies in the right knee while in the performance of
duty. It subsequently referred him to Dr. Hom for a second opinion evaluation.
Dr. Hom’s June 16, 2008 report reviewed a history of appellant’s bilateral knee
conditions and medical treatment. He found that although the August 15, 2007 employment
injury exacerbated appellant’s underlying post-traumatic degenerative joint disease of the
bilateral knees, he did not have any residuals of the accepted injury. Dr. Hom advised that the
temporary aggravation ceased approximately 8 to 12 weeks following the accepted injury. He
found that appellant had a degenerative tear of the medial meniscus of the left knee, but did not
attribute this condition to the accepted right knee condition. Dr. Hom opined that while
appellant could not perform his regular work duties as a mechanic, he could work eight hours a
day with restrictions. His physical findings regarding the right knee revealed a knee joint that
was boggy without any obvious clinical effusion, recurvatum of the proximal tibia and medial
4

Jason C. Armstrong, 40 ECAB 907 (1989).

5

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

6

Mary A. Lowe, 52 ECAB 223 (2001); Wiley Richey, 49 ECAB 166 (1997).

4

and lateral joint line tenderness to palpation, crepitus about the medial compartment and
patellofemoral joint with manipulation and motion of the knee, instability of the medial collateral
ligament to stress, anterior instability and limited range of motion. On examination of the left
knee, Dr. Hom found essentially normal findings with the exception of diffuse medial joint line
tenderness, mild crepitus, but minimal pain with compression of the patellofemoral joint and
limited range of motion.
After reviewing the August 12, 2009 report of Dr. Nuttall, an attending physician, which
found that appellant had residuals and permanent total disability due to the August 15, 2007
employment injury, Dr. Hom opined in a June 16, 2011 supplemental report that appellant’s
extensive preexisting degenerative changes of the bilateral knees and deformity of the right knee
were status post the 1983 car accident and not causally related to the accepted August 15, 2007
employment injury. He stated that these preexisting conditions as documented by MRI scan
results represented chronic post-traumatic changes.
While Dr. Nuttall opined that the damage to and pain in appellant’s bilateral knees and
his permanent total disability were due to the August 15, 2007 employment injury, he failed to
provide sufficient medical rationale explaining how residuals of the accepted temporary
aggravation of loose bodies in the right knee continued and were disabling.7 Further, the Board
has consistently held that pain is a symptom, not a compensable medical diagnosis.8
The Board finds that Dr. Hom’s reports represent the weight of the medical evidence and
that OWCP properly relied on his reports in terminating appellant’s wage-loss compensation and
medical benefits for the accepted condition on June 30, 2011. Dr. Hom’s opinion is based on a
proper factual and medical history as he reviewed the statements of accepted facts and
appellant’s prior medical treatment. He also related his comprehensive examination findings in
support of his opinion that appellant no longer had any residuals or disability causally related to
the accepted temporary aggravation of loose bodies in the right knee.
On appeal, appellant’s attorney contended that there was a conflict in the medical
evidence which requires a referee opinion. Contrary to appellant’s contention there is no
unresolved conflict in the medical opinion evidence. As stated, Dr. Nuttall did not provide
sufficient medical rationale explaining how appellant’s residuals and disability were
employment-related while Dr. Hom provided a thorough report including sufficient rationale to
support his opinion that appellant no longer had any residuals or disability causally related to the
accepted August 15, 2007 employment injury. Thus, his report is insufficient to create a conflict.
Counsel further contended that OWCP erred in failing to issue a pretermination notice
before terminating appellant’s compensation in its June 30, 2011 decision. The record, however,
indicates that OWCP issued a pretermination notice by letter dated April 26, 2011. Further, the
Board, in its January 26, 2011 decision, had jurisdiction only over OWCP’s September 10 and
November 19, 2009 nonmerit decisions denying appellant’s requests for reconsideration of the
August 29, 2008 merit termination decision. Because of its limited jurisdiction, the Board did
7

Dean E. Pierce, 40 ECAB 1249 (1989).

8

C.F., Docket No. 08-1102 (issued October 10, 2008); Robert Broome, 55 ECAB 339 (2004).

5

not address the merit termination decision and its findings remained intact. Thus, there was no
need for OWCP to issue another pretermination notice prior to its June 30, 2011 decision.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation and
medical benefits effective August 31, 2008 on the grounds that he no longer had any residuals or
disability causally related to his accepted employment-related temporary aggravation of loose
bodies of the right knee.
ORDER
IT IS HEREBY ORDERED THAT the June 30, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 27, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.R., Appellant
and
DEPARTMENT OF THE INTERIOR,
VOLCANOES NATIONAL PARK, Volcano, HI,
Employer
__________________________________________

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Appearances:
Christopher R. Evans, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-489
Issued: December 8, 2009

Case Submitted on the Record

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

JURISDICTION
On December 10, 2008 appellant, through his attorney, filed a timely appeal from a
December 21, 2007 decision of the Office of Workers’ Compensation Programs and an
October 22, 2008 merit decision granting him a schedule award. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award issue.
ISSUE
The issue is whether appellant has more than a 29 percent permanent impairment of the
right lower extremity and a 20 percent permanent impairment of the left lower extremity.
FACTUAL HISTORY
On January 18, 1994 appellant, then a 46-year-old maintenance worker, filed a claim
alleging that he sustained an injury to his right ankle on January 17, 1994 while stepping on lava
rock. The Office accepted the claim for a right ankle and right knee sprain and a consequential
injury of left ankle Achilles tendinitis.

On July 19, 1994 appellant underwent a debridement of the Achilles tendinitis and tendon
sheath and a splitting of the Achilles tendon. On July 11, 1995 he underwent an arthroscopy of
the right ankle joint with a synovectomy and a right knee partial medial meniscectomy. On
April 8, 1995 appellant underwent a right ankle arthroscopy and ligament reconstruction with
excision of the lateral ankle varicosity.1
By letter dated October 25, 2006, the Office informed appellant that he could request a
schedule award for impairment to his lower extremities and requested a report from his attending
physician in accordance with the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2001) (A.M.A., Guides). On November 1, 2006 appellant
notified the Office that he was unable to find a physician to perform an impairment evaluation.
On November 7, 2006 the Office referred appellant to Dr. Maureen E. Mackey, a Boardcertified physiatrist, for an impairment evaluation. On December 5, 2006 Dr. Mackey reviewed
his physical complaints and history of surgeries. On physical examination of ankles, she
measured dorsiflexion of 0 degrees on the right and 10 degrees on the left, plantar flexion of 30
degrees on the right and 20 degrees on the left, inversion of 10 degrees on the right and 25
degrees on the left and eversion of 0 degrees on the right and 20 degrees on the left. Dr. Mackey
measured weakness of the peroneus muscles of 4/5 bilaterally on dorsiflexion and bilateral
unmeasurable atrophy. She found normal range of motion of the toes bilaterally. Dr. Mackey
diagnosed chronic plantar fasciitis and noted that it represented an additional factor of disability.
For the right knee, she noted that appellant had significant knee pain which interfered with the
activities of daily living. Dr. Mackey measured range of motion of the right knee as 130 degrees
flexion and 0 degrees extension. She found no anklylosis but atrophy of four centimeters and 4/5
quadriceps weakness. Dr. Mackey opined that appellant’s partial meniscectomy represented an
additional impairment and listed a valgus deformity of 11 degrees. She found that he had a 25
percent loss of lower extremity strength. Dr. Mackey indicated that appellant reached maximum
medical improvement in 1998.
On January 30, 2007 the Office medical adviser noted that appellant experienced bilateral
ankle pain interfering with activity. He graded the pain as 70 percent and multiplied the graded
pain by 5 percent, the maximum impairment of the L5 and S1 nerve roots, to find a 7 percent
impairment of each lower extremity.2 The Office medical adviser further found that, for the right
ankle, 0 degrees dorsiflexion and 30 degrees plantar flexion constituted a mild impairment, or 7
percent, and that inversion of 10 degree constitute a mild, or 2 percent impairment under the
A.M.A., Guides, for a total impairment of the right ankle of 11 percent.3 For the left ankle, he
found that 10 degrees dorsiflexion constituted 7 percent impairment, 20 degrees plantar flexion
constituted 7 percent impairment and that there was no impairment for 25 degrees inversion and
1

By decision dated March 16, 2001, the Office reduced appellant’s compensation benefits based on his earnings
as a teacher. In a decision dated August 22, 2002, a hearing representative affirmed the March 16, 2001 decision.
He found, however, that appellant’s temporary teaching position had ended and instructed the Office to further
develop whether appellant had the capacity to earn wages as a teacher. On December 22, 2002 the Office set aside
the March 16, 2001 decision and reinstated compensation. By decision dated November 1, 2006, it reduced
appellant’s compensation benefits based on its finding that his actual earnings as a teacher effective August 29, 2006
fairly and reasonably represented his wage-earning capacity.
2

A.M.A., Guides 424, Tables 15-18, 15-15.

3

Id. at 537, Tables 17-11, 17-12.

2

20 degrees eversion, for a total left ankle impairment of 14 percent.4 The Office medical adviser
further determined that 4/5 weakness in dorsiflexion constituted a 12 percent impairment of the
left lower extremity.5 He noted that impairments for weakness or atrophy could not be combined
with impairments for loss of motion. The Office medical adviser stated:
“One would select the value that gives the highest to [appellant]. For the right
lower extremity there would be 7 percent for pain combined with 11 percent for
limitation of motion, or a 17 percent impairment of the right lower extremity for
the ankle pathology -- symptoms and findings. For the left lower extremity there
would be a 14 percent impairment for limitation of ankle range of motion
combined with 7 percent for pain factors to arrive at a 20 percent impairment of
the left lower extremity or leg.”
For the right knee, the Office medical adviser graded pain as 70 percent as it interfered
with the activities of daily living. He multiplied the 70 percent graded pain by the maximum
impairment due to pain for the femoral nerve of 7 percent to find a 4.9, or rounded 5 percent
impairment of the right knee.6 The Office medical adviser opined that 4 percent atrophy for the
right thigh constituted a 13 percent impairment7 and that 4/5 quadriceps weakness constituted a
12 percent impairment.8 He noted that weakness could not be combined with atrophy and
selected the impairment due to atrophy as it was the greater impairment. The Office medical
adviser found that 11 degrees of valgus was mild, or 10 percent impairment.9 He asserted that an
impairment due to atrophy or weakness could not be combined with a loss of range of motion.
The Office medical adviser thus selected the impairment due to valgus of 10 percent and
combined this impairment with the 5 percent loss of pain to find 15 percent right knee
impairment. He did not provide an impairment for bilateral plantar fasciitis as it was not
accepted as employment related. For the right lower extremity, the Office medical adviser
combined the 15 percent knee impairment and the 17 percent ankle impairment to find 29
percent impairment. He further opined that appellant had a 20 percent impairment of the left
lower extremity.
By decision dated April 17, 2007, the Office granted appellant a schedule award for a 29
percent permanent impairment of the right lower extremity and a 20 percent permanent

4

Id.

5

Id. at 532, Table 17-8.

6

Id. at 482, 552, Tables 16-10, 17-37.

7

Id. at 530, Table 17-6.

8

Id. at 532, Table 17-8.

9

Id. at 537, Table 17-10.

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impairment of the left lower extremity.10 The period of the award ran for 141.12 weeks from
April 15, 2007 to December 27, 2008.11
On May 14, 2007 appellant requested an oral hearing. On September 6, 2007 his attorney
requested a telephone conference.
In a report dated August 31, 2007, Dr. Charles L. Quilty, Board-certified in family
practice, found that appellant “recently had to withdraw from a teaching position when
accommodations for his impairments were not made.”
A telephonic hearing was held on September 27, 2007. Appellant’s attorney contended
that he was entitled to compensation for his current condition and disability. The hearing
representative explained the difference between disability and impairment and informed
appellant that he would need to request disability compensation and submit medical evidence
showing that his present condition was work related.
By decision dated December 21, 2007, the Office hearing representative affirmed the
April 17, 2007 decision.
On March 3, 2008 appellant, through his attorney, requested reconsideration. He argued
that the hearing representative did not give sufficient weight to Dr. Quilty’s opinion and
appellant’s assertion that working in his private employment worsened his condition. Counsel
argued that the hearing representative should have found appellant totally disabled. He
submitted a report dated November 25, 2007 from a physician’s assistant, who found that
appellant was not able to work.
By decision dated October 22, 2008, the Office denied modification of its December 21,
2007 decision.
On appeal appellant, through his attorney, contends that working in private employment
exacerbated his condition and resulted in an increased impairment.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act,12 and its
implementing federal regulations,13 set forth the number of weeks of compensation payable to
employees sustaining permanent impairment from loss, or loss of use, of scheduled members or
functions of the body. However, the Act does not specify the manner in which the percentage of
loss shall be determined. For consistent results and to ensure equal justice under the law for all
claimants, the Office has adopted the A.M.A., Guides as the uniform standard applicable to all

10

On April 17, 2007 the Office finalized its finding that appellant received an overpayment of $339.11 for which
he was at fault. It deducted the amount from his first schedule award payment.
11

The Office moved the date of maximum medical improvement from April 8, 1998 to April 15, 2007 as he was
receiving compensation for total disability until April 14, 2007.
12

5 U.S.C. § 8107.

13

20 C.F.R. § 10.404.

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claimants.14 For decisions after February 1, 2001, the fifth edition of the A.M.A., Guides is used
to calculate schedule awards.15
ANALYSIS
The Office accepted that appellant sustained a sprain of the right ankle and right knee on
January 17, 1994 and a consequential injury of left ankle Achilles tendinitis. In 2006 he
requested a schedule award. In a report dated November 7, 2006, Dr. Mackey, an Office referral
physician, provided detailed findings on examination. For the bilateral ankles, she provided
impairment factors to be calculated distressing ankle pain, loss of range of motion, and 4/5
weakness in dorsiflexion of the foot. For the left foot and toes, Dr. Mackey found uncomfortable
foot pain and plantar fasciitis. She measured range of motion for the right knee and noted that
appellant experienced distressing knee pain which interfered with activity. Dr. Mackey further
found four centimeters of left knee atrophy, 4/5 weakness of the right quadriceps, 11 degrees of
valgus and a 50 percent loss of shock absorption. She provided detailed clinical findings but did
not refer to the A.M.A., Guides or calculate the extent of appellant’s bilateral lower extremity
impairment. Consequently, the Office properly referred the record to an Office medical
adviser.16
On January 30, 2007 an Office medical adviser reviewed Dr. Mackey’s report and
applied the A.M.A., Guides to her findings. For the bilateral ankle, he applied Table 15-15 and
15-18 on page 424 of the A.M.A., Guides and graded appellant’s pain as 70 percent and
multiplied the 70 percent graded pain by 5 percent, the maximum impairment of the L5 and S1
nerve roots, to find a 7 percent impairment of the right and left lower extremity. The Board
notes, however, that these provisions of the A.M.A., Guides are relevant to determining the
extent of a spinal nerve root impairment affecting the lower extremity. Appellant sustained an
injury to his bilateral ankles and right knee. There is no evidence that he has a spinal nerve root
impairment causing impairment of the lower extremity.
The Office medical adviser further determined that appellant was not entitled to an
additional award for plantar fasciitis because it was not causally related to his work injury. He
did not, however, consider whether appellant’s plantar fasciitis preexisted his work injury.17 It is
well established that, in determining the amount of a schedule award for a member of the body
that sustained an employment-related impairment, preexisting impairments are to be included.18

14

Id. at § 10.404(a).

15

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).
As of May 1, 2009, the sixth edition will be used. FECA Bulletin No. 09-03 (issued March 15, 2008).
16

Tommy R. Martin, 56 ECAB 273 (2005) (after obtaining all necessary medical evidence, the file should be
routed to an Office medical adviser for an opinion concerning the nature and extent of impairment in accordance
with the A.M.A., Guides).
17

On February 5, 1998 a second opinion physician referred to a report in September 1995 describing appellant’s
problems with plantar fasciitis.
18

See Clary J. Cleary, 57 ECAB 563 (2006); Mike E. Reid, 51 ECAB 543 (2000); Federal (FECA) Procedure
Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.3(a)(3) (June 2003).

5

For the right knee, the Office medical adviser determined that appellant had a 10 percent
impairment due to mild valgus, a 5 percent impairment due to pain as well as a 4 percent
impairment due to atrophy of the right thigh and a 12 percent impairment due to 4/5 quadriceps
weakness. He properly noted that impairments due to atrophy and weakness could not be
combined with each other or with an impairment due to loss of motion. The Office medical
adviser did not, however, determine whether appellant had any additional impairment due to his
partial medial meniscectomy.
The case will be remanded for the Office medical adviser to reevaluate the percentage of
impairment to appellant’s bilateral lower extremities in accordance with the applicable tables and
sections of the A.M.A., Guides. After such further development as the Office deems necessary,
it shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 22, 2008 and December 21, 2007 are set aside and the
case is remanded for further proceedings consistent with this opinion of the Board.
Issued: December 8, 2009
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

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

Docket No. 13-1703
Issued: March 5, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION
On June 28, 2013 appellant filed a timely appeal from an April 24, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has more than a 21 percent impairment of each upper
extremity for which he received schedule awards.
FACTUAL HISTORY
This case has previously been before the Board. In a June 2, 2003 order, the Board
granted the Director’s motion to set aside an October 29, 2001 decision and remand the case for
additional development of the medical evidence on the issue of the extent of appellant’s
1

5 U.S.C. § 8101 et seq.

permanent impairment of the right upper extremity.2 On August 1, 2003 the Board reversed a
January 17, 2002 loss of wage-earning capacity determination.3
By decision dated
November 22, 2005, the Board set aside February 4 and November 5, 2004 decisions granting
appellant a schedule award for a nine percent right upper extremity impairment.4 The Board
determined that OWCP failed to follow its medical adviser’s request for a supplemental medical
report addressing the extent of appellant’s permanent impairment. In a decision dated
October 19, 2006, the Board affirmed in part and set aside in part a February 1, 2006 decision
finding that appellant had a 13 percent permanent impairment of the right upper extremity.5 The
Board noted that the medical evidence addressed the left rather than right upper extremity
impairment. The Board found that appellant had a 13 percent left upper extremity impairment
but remanded the case for further development to determine the extent of any permanent
impairment of the right upper extremity. By order dated December 31, 2007, the Board affirmed
in part and set aside in part January 12 and May 23, 2007 decisions granting appellant a schedule
award for a 13 percent left upper extremity and offsetting compensation from the schedule award
to recover an amount paid to him in error for his right upper extremity.6 The Board found that
OWCP had not adequately explained why appellant received an overpayment which should be
recovered by withholding a portion of his schedule award. In a decision dated December 12,
2008, the Board set aside June 25, 2007 and March 14, 2008 decisions finding that appellant
received an overpayment of compensation because it erroneously paid him a schedule award for
more than a nine percent permanent impairment of the right upper extremity.7 The Board
determined that OWCP failed to properly adjudicate the extent of his permanent impairment of
the right upper extremity and remanded the case for further development of the medical
evidence. By decision dated April 4, 2011, the Board set aside an April 19, 2010 decision
finding that appellant had no more than a nine percent permanent impairment of the right upper
extremity.8 The Board determined that neither the second opinion physician nor the medical
adviser appropriately rated his impairment of the extremity resulting from a spinal nerve
impairment under the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (6th ed. 2009) (A.M.A., Guides). The Board remanded the
case for OWCP to obtain a medical opinion regarding the extent of appellant’s right upper
extremity impairment consistent with the July/August 2009 edition of The Guides Newsletter. In
2

Order Granting Remand and Cancelling Oral Argument, Docket No. 02-1225 (issued June 2, 2003). On
March 19, 1999 appellant, then a 48-year-old mail handler, filed an occupational disease claim alleging that he
sustained a back condition due to factors of his federal employment. OWCP accepted the claim for an acceleration
of cervical spine disease. Appellant underwent bilateral posterior foraminotomies at C3-4 and C4-5 on January 27,
1999 and an anterior discectomy and fusion at C6-7 on July 2, 1999. He further underwent bilateral foraminotomies
and fusion at C4-5, C5-6 and C6-7 on December 10, 2004.
3

Docket No. 02-1072 (issued August 1, 2003).

4

Docket No. 05-1726 (issued November 22, 2005).

5

Docket No. 06-122 (issued October 19, 2006).

6

Order Remanding Case, Docket No. 07-1753 (issued December 31, 2007).

7

Docket No. 08-1247 (issued December 12, 2008).

8

Docket No. 10-1562 (issued April 4, 2011).

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an order remanding case dated August 24, 2012, the Board set aside a November 30, 2011
decision granting him an increased schedule award.9 The Board noted that OWCP had referred
appellant to Dr. Michael D. Plooster, a Board-certified orthopedic surgeon, for a second opinion
examination. The Board found, however, that Dr. Plooster and the medical adviser did not apply
The Guides Newsletter in determining the extent of appellant’s impairment caused by the injury
to his cervical spine. The facts and the circumstances as set forth in the prior decisions and
orders are hereby incorporated by reference.
On April 8, 2013 an OWCP medical adviser reviewed appellant’s history of a herniated
cervical disc. He stated:
“[Appellant] continues to have subjective complaints of neck and bilateral
shoulder pain as well as numbness in the entire left upper extremity as well as
numbness in the index finger and thumb of the right hand. The neurological
examination demonstrated diminished sensation to pinprick in all four extremities
in a nonanatomic distribution consistent with a nonphysiologic cause for the
condition. There was weakness in the small muscles of the right hand. Deep
tendon reflexes were described as symmetric at 1+. No focal muscular weakness
was described. X-rays have demonstrated the fusion to be stable without
evidence for pseudoarthrosis.”
The medical adviser identified the diagnosis as a class 3 disc herniation with multiple
levels of radiculopathy using Table 17-2 on page 564 of the A.M.A., Guides, relevant to
determining impairments of the cervical spine. He found that appellant had a whole person
impairment of 13 percent, which he converted to a 21 percent impairment of each upper
extremity using Table 15-11 on page 420. The medical adviser stated, “This award would
replace previous awards as it was based on [The Guides] Newsletter describing the appropriate
manner in which to rate PPI [permanent partial impairments] for spinal conditions.”
By decision dated April 24, 2013, OWCP granted appellant a schedule award for a total
of 21 percent impairment of each upper extremity, less the previous award of 13 percent for the
right upper extremity and 20 percent for the left upper extremity.
On appeal appellant asserts that he experiences constant shoulder pain, difficulty reaching
and loss of sleep. He maintains that the employing establishment did not provide light duty and
that he has to pay for snow shoveling.
LEGAL PRECEDENT
The schedule award provision of FECA,10 and its implementing federal regulations,11 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
9

Order Remanding Case, Docket No. 12-661 (issued August 24, 2012).

10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

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FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.12 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.13
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on Functional History (GMFH),
Physical Examination (GMPE) and Clinical Studies (GMCS).14 The net adjustment formula is
(GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. For peripheral nerve impairments to the upper or
lower extremities resulting from spinal injuries, OWCP’s procedures indicate that The Guides
Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth Edition
(July/August 2009) is to be applied.15
ANALYSIS
In an order dated August 24, 2012, the Board determined that neither Dr. Plooster, who
provided a second opinion, nor the medical adviser applied the provisions of The Guides
Newsletter in determining the extent of appellant’s impairment of the upper extremities resulting
from his cervical spine injury. The Board remanded the case for OWCP to obtain an opinion
regarding the extent of any upper extremity impairment consistent with The Guides Newsletter.
On remand, OWCP’s medical adviser reviewed the evidence of record and indicated that
he was applying the provisions of The Guides Newsletter. Utilizing the cervical spine regional
grid set forth at Table 17-2 on page 564, he identified the diagnosis as a herniated disc at
multiple levels with radiculopathy, which yielded a whole person impairment of 13 percent. The
medical adviser converted the 13 percent whole person impairment to a 21 percent right and left
upper extremity impairment. The Guides Newsletter, however, provides a specific method for
determining impairments such as radiculopathy from a spinal nerve injury. It explains that, in
the sixth edition, impairment for radiculopathy is reflected in the diagnosis-based impairment for
the spinal region. Consequently, OWCP’s medical adviser improperly used Chapter 17 to
determine appellant’s impairment.16 In rating a spinal nerve impairment of the upper extremity,
the proper table to use is Proposed Table l, Spinal Nerve Impairment: Upper Extremity
Impairments, which is set forth in The Guides Newsletter. As the record does not contain an
12

Id. at § 10.404(a).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
2.808.5(a) (February 2013); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700.2 and Exhibit 1 (January 2010).
14

A.M.A., Guides 494-531.

15

See G.N., Docket No. 10-850 (issued November 12, 2010); see also Federal (FECA) Procedure Manual, supra
note 7 at Chapter 3.700, Exhibit 1, note 5 (January 2010). The Guides Newsletter is included as Exhibit 4.
16

See T.R., Docket No. 12-988 (issued February 22, 2013).

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opinion consistent with the sixth edition methodology rating appellant’s upper extremity
impairment, the case requires further clarification. The case is remanded to OWCP for this
purpose. After such further development as it deems necessary, it should issue a de novo
decision.
CONCLUSION
The Board finds that the case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 24, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: March 5, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5