United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.B., Appellant
and
U.S. POSTAL SERVICE, CONWAY POST
OFFICE, Conway, SC, Employer
__________________________________________

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

Docket No. 18-1535
Issued: April 3, 2019

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISCHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On August 8, 2018 appellant, through counsel, filed a timely appeal from a July 10, 2018
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The most recent
merit decision was a Board decision dated September 20, 2017, which became final after 30 days
and is not subject to further review.2 As there was no merit decision by OWCP within 180 days
of the filing of this appeal, pursuant to the Federal Employees’ Compensation Act3 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.
1

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

20 C.F.R. § 501.6(d).

3

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances of the case
as set forth in the prior Board decision are incorporated herein by reference. The relevant facts are
as follows.
On July 24, 2015 appellant, then a 52-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that on March 17, 2014 she sustained, neck, arm, and back
injuries as a result of a motor vehicle accident while she was on her way to work in the morning
using her personal vehicle. On the back of the form the employing establishment challenged the
claim asserting that it had not occurred while in the performance of duty. Appellant stopped work
on the date of the incident and has not returned.
In a July 31, 2015 development letter, OWCP informed appellant that the documentation
received in her claim had been reviewed and was insufficient to establish her claim. It instructed
her to provide additional factual and medical documentation and complete an enclosed
questionnaire. OWCP afforded appellant 30 days to respond.
On August 4, 2015 OWCP received a statement from D.F., postmaster, and G.G.,
appellant’s supervisor at the time of the accident, noting that appellant was not in the performance
of duty at the time of the motor vehicle accident. They explained that she was scheduled to deliver
mail that day on route 20, which had an assigned motor vehicle for the delivery route. As there
was an assigned employing establishment vehicle, appellant’s personal vehicle was not “hired for
delivery” of mail that day.
In a September 4, 2015 memorandum of conference between an OWCP claims
examiner and C.J., an employing establishment human relations specialist, the claims examiner
sought clarification from the employing establishment regarding the issue of performance of duty
as appellant’s work shift began at 7:00 a.m. and the accident occurred at 8:30 a.m. C.J. reiterated
that she was scheduled to drive an employing establishment vehicle that day and not her personal
vehicle. He further noted that shifts for rural carriers could differ daily, but that appellant had not
clocked into work at the time of the accident, and was on her way to work.
By decision dated September 4, 2015, OWCP denied appellant’s claim, finding that she
was not in the performance of duty at the time of the alleged injury. In support of its finding, it
noted that the motor vehicle accident occurred while she was on her way to work in her personal
motor vehicle, she had been scheduled to use an employment vehicle to deliver mail, and that the
incident occurred before her tour of duty began.

4

Docket No. 16-1839 (issued September 20, 2017).

2

On October 4, 2015 appellant, through counsel, requested a telephonic hearing before an
OWCP hearing representative, which was held on May 23, 2016.
During the hearing counsel alleged that appellant had to use her personal vehicle to deliver
mail approximately 95 percent of the time. On the day in question, appellant was filling in for a
coworker and was uncertain whether she was required to use her personal vehicle to deliver mail.
On November 3, 2015 D.F. responded to two questions posed by OWCP. He noted that
rural carrier associate employees were given a weekly schedule by close of business on the
Wednesday prior to the upcoming week. Employees were therefore aware of whether they would
be using an employing establishment vehicle or their own vehicle to deliver mail. In case of an
emergency, the employing establishment would contact the employee the morning of the
emergency to advise that they were being called in on an unscheduled day, and whether their motor
vehicle or employing establishment vehicle was to be used. Therefore, D.F. concluded that
employees were aware in advance as to whether their personal vehicle would be rented/hired that
day for employing establishment business.
By decision dated June 24, 2016, OWCP’s hearing representative affirmed the denial of
appellant’s claim. He found that the evidence of record was insufficient to establish that she was
in the performance of duty at the time of the March 17, 2014 motor vehicle accident. The hearing
representative also found that the record was devoid of any evidence supporting her contention
that appellant was only informed after the motor vehicle accident that the employing establishment
scheduled her for use of a postal vehicle that day.
On October 4, 2016 appellant, through counsel, appealed to the Board.
By decision dated September 20, 2017, the Board affirmed OWCP’s hearing
representative’s June 24, 2016 decision affirming the denial of her claim. The Board noted
counsel’s argument that appellant used her personal vehicle 95 percent of the time and did not
know whether she would be using her vehicle to deliver mail on the day in question, however,
found that this argument was not corroborated. The Board concluded that she was not in the
performance of duty when injured on March 17, 2014.
On March 22, 2018 appellant, through counsel, requested reconsideration. Counsel again
asserted that she was in the performance of duty as 95 percent of the time she used her own personal
vehicle to deliver mail, she was injured on her way into work, and her random assignment to cover
for an absent employee was irrelevant to whether she was in the performance of duty. OWCP did
not receive additional evidence.
By decision dated July 10, 2018, OWCP denied appellant’s request for reconsideration of
the merits of her claim.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation. The Secretary of Labor may review an award
for or against payment of compensation at any time on his or her own motion or on application.

3

The Secretary, in accordance with the facts found on review, may end, decrease or increase the
compensation awarded or award compensation previously refused or discontinued.5
A claimant seeking reconsideration of a final decision must present arguments or provide
evidence that: (1) shows that OWCP erroneously applied or interpreted a specific point of law;
(2) advances a relevant legal argument not previously considered by OWCP; or (3) constitutes
relevant and pertinent new evidence not previously considered by OWCP.6 If OWCP determines
that at least one of these requirements is met, it reopens and reviews the case on its merits.7 If the
request is timely, but fails to meet at least one of the requirements for reconsideration, OWCP will
deny the request for reconsideration without reopening the case for review on the merits.8
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
The Board finds that appellant did not show that OWCP erroneously applied or interpreted
a specific point of law or advance a relevant legal argument not previously considered by OWCP.
Counsel contended that she was in the performance of duty at the time of the March 17, 2014
motor vehicle accident as she used her personal motor vehicle 95 percent of the time, was injured
on her way into work, and her random assignment to cover for an absentee employee should have
no bearing on the issue of performance of duty. This contention, however, was previously raised
and addressed by the June 24, 2016 OWCP hearing representative’s decision and the Board in its
September 20, 2017 decision. Evidence or argument that repeats or duplicates evidence previously
of record has no evidentiary value and does not constitute a basis for reopening a case.9 Because
this argument has been previously considered, it was insufficient to require OWCP to conduct a
merit review. Accordingly, appellant is not entitled to a review of the merits of her claim based
on the first and second above-noted requirements under section 10.606(b)(3).
The Board further finds that appellant has failed to submit relevant and pertinent new
evidence not previously considered by OWCP in support of her request for reconsideration. The
underlying issue in this case is whether appellant submitted sufficient factual evidence to establish
that she was in the performance of duty on March 17, 2014, as alleged. She did not submit factual
evidence in support of her request for reconsideration. Thus, appellant is also not entitled to a
review of the merits of her claim based on the third above-noted requirement under section
10.606(b)(3).

5

5 U.S.C. § 8128(a).

6
20 C.F.R. § 10.606(b)(3); see also K.B., Docket No. 18-1392 (issued January 15, 2019); M.S., Docket No. 18-1041
(issued October 25, 2018); C.N., Docket No. 08-1569 (issued December 9, 2008).
7

Id. at § 10.608(a); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

8

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

9

B.C., Docket No. 17-0388 (issued June 15, 2017); J.P., 58 ECAB 289 (2007).

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The Board accordingly finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.10
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of her claim pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated July 10, 2018 is affirmed.
Issued: April 3, 2019
Washington, DC

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

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

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

10
See D.R., Docket No. 18-0357 (issued July 2, 2018); A.K., Docket No. 09-2032 (issued August 3, 2010); M.E., 58
ECAB 694 (2007); Susan A. Filkins, 57 ECAB 630 (2006).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.C., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY, ARNOLD AIR
FORCE BASE, TN, Employer
__________________________________________
Appearances:
Victor A. Walker, for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1153
Issued: February 14, 2022

Case Submitted on the Record

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

On July 23, 2021 appellant, through his representative, filed a timely appeal from a June 3,
2021 merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of
the Appellate Boards docketed the appeal as No. 21-1153.
On July 12, 2018 appellant, then a 30-year-old meat cutter helper, filed a traumatic injury
claim (Form CA-1) alleging that on June 13, 2018 he cut his right hand index finger on the blade
of a boneless saw which became infected while in the performance of duty. He stopped work on
July 12, 2018 and has not returned. OWCP assigned the claim OWCP File No. xxxxxx310. On
September 21, 2018 it accepted laceration and bacterial skin infection of the right index finger.
On October 19, 2018 OWCP expanded the acceptance of the claim to include boutonniere
deformity of the right finger. It paid appellant wage-loss compensation on the supplemental rolls,
effective September 2, 2018. On February 12, 2019 appellant underwent authorized extensor
1

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

tendon repair of the right index finger. He underwent OWCP-authorized removal of hardware
from the right index finger on June 4, 2019.2
On September 13, 2019 OWCP obtained a second opinion medical report from Dr. Stanley
Askin, a Board-certified orthopedic surgeon regarding appellant’s residuals and ability to return to
work. Dr. Askin opined that the accepted June 13, 2018 employment injury had caused
arthrofibrosis of the right index digit, proximal interphalangeal joint. He further opined that the
accepted conditions of boutonniere deformity and bacterial skin infection of the right index finger
had not resolved. In a work capacity evaluation (Form OWCP-5c) dated September 13, 2019,
Dr. Askin opined that appellant was unable to perform his usual job, however, he advised that
appellant could work eight hours per day with restrictions which included pushing, pulling, lifting,
squatting, kneeling, and climbing up to 50 pounds, and no forceful gripping and grasping with his
right index finger.
On February 4, 2020 OWCP authorized right index proximal interphalangeal joint surgery.
On February 27, 2020 it expanded the acceptance of appellant’s claim to include athrofibrosis of
the right index proximal interphalangeal joint.
On May 15, 2020 based on Dr. Askin’s September 13, 2019 restrictions, the employing
establishment offered appellant a full-time, temporary modified sales store checker position, which
included customer service and cashier duties. Appellant was required to adhere to his physician’s
20-pound lifting restriction.
The employing establishment subsequently revised its May 15, 2020 job offer to reflect
new work hours and the physical requirements of limited forceful gripping and grasping with the
right index finger.
By letter dated June 17, 2020, OWCP informed the employing establishment that the
offered position was not suitable because the medical evidence of record established that appellant
remained unable to perform forceful gripping and grasping with his right index finger. It advised
that he was right-hand dominant and requested that the employing establishment clarify whether
he would be required to grip and grasp with his right index finger.
In responses dated June 17 and 25, and August 18, 2020, the employing establishment
noted that following appellant’s employment-related back injury he was released to return to fullduty work in June 2019 and was later placed back on restrictions in August 2019. Appellant was
in the process of being assigned the sales store checker position, but on the same day that he was
to report to the assignment, he filed the present claim under OWCP File No. xxxxxx310 for his
June 13, 2018 right index finger injury.
On September 14, 2020 Dr. Askin reviewed a description of the offered sales store checker
position and opined that appellant could perform the duties of the position.

2

Appellant previously filed a claim for a May 31, 2017 traumatic injury under OWCP File No. xxxxxx005. OWCP
accepted that claim for aggravation of intervertebral disc disorder, lumbar region. Appellant’s claims have not been
administratively combined.

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A supplemental rolls payment record dated October 9, 2020 reflects that OWCP authorized
payment of wage-loss compensation for the period September 13 through 26, 2020.
On October 12, 2020 appellant filed a claim for compensation (Form CA-7) for disability
during the period September 27 to October 10, 2020.
In a letter dated October 14, 2020, OWCP informed appellant that the record established
that he had declined to accept an offered position. It informed him that under 20 C.F.R. § 10.500(a)
compensation or total wage-loss compensation was not payable to claimants who declined an
offered position within their work restrictions for the duration of the assignment. OWCP informed
appellant that he was expected to accept the position and report for work. It afforded him 30 days
to report to the assigned position or show that his refusal was justified.
On October 19 and 27 and November 3, 2020 appellant maintained that he was totally
disabled from work due to his accepted employment-related back injury.
By decision dated November 19, 2020, OWCP denied appellant’s September 30, 2020
claim for wage-loss compensation for disability from work commencing September 27, 2020.3 I
noted that he had declined an offer of temporary light duty, which it found to be suitable as it
accommodated his work restrictions provided by Dr. Askin.
On December 10, 2020 appellant, through his representative, requested an oral hearing
before a representative of OWCP’s Branch of Hearings and Review.
In a decision dated February 11, 2021, OWCP accepted that appellant sustained a
recurrence of disability effective December 26, 2020 due to his accepted right index finger
conditions.
By decision dated June 3, 2021, OWCP’s hearing representative affirmed the
November 19, 2020 decision. The hearing representative found that OWCP had met its burden of
proof to terminate appellant’s monetary benefits.
The Board, having duly considered the matter, concludes that this case is not in posture for
decision.
OWCP’s regulation at 20 C.F.R. § 10.500(a) specifically provides that an employee is not
entitled to compensation for any wage-loss claimed on a Form CA-7 to the extent that evidence
contemporaneous with the period claimed on a Form CA-7 establishes that an employee had
medical work restrictions in place, that light duty within those work restrictions was available, and
that the employee was previously notified in writing that such light duty was available.

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Although the November 19, 2020 decision reflects that OWCP denied appellant’s claim for disability commencing
September 13, 2020, it paid him compensation for disability for the period September 13 through 26, 2020. Following
the November 19, 2020 decision, appellant continued to submit Form CA-7s claiming compensation for intermittent
periods of disability.

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In its November 19, 2020 decision, OWCP denied appellant’s claim for wage-loss
compensation. At the time of the November 19, 2020 decision, appellant was not on the periodic
rolls for temporary total disability, he filed CA-7 forms claiming wage-loss compensation for
disability from work, and had been receiving intermittent wage-loss compensation on the
supplemental rolls.
The hearing representative phrased the underlying issue as whether OWCP had properly
terminated wage-loss compensation under section 10.500(a). As noted above, OWCP did not
terminate appellant’s wage-loss compensation under section 10.500(a), but instead denied his
claim for wage-loss compensation commencing September 27, 2020 4 and continuing because
appellant had not accepted the offered temporary position for eight hours of work per day with
restrictions. In deciding matters pertaining to a given claimant’s entitlement to compensation
benefits, OWCP is required by statute and regulation to make proper findings of fact. 5 Its
procedure further specifies that a final decision of OWCP should be clear and detailed so that the
reader understands the reasons for the disallowance of the benefit. 6 Accordingly, the case must be
remanded for OWCP to make findings of facts and provide reasons for its decision pursuant to the
standards set forth in 20 C.F.R. §§ 10.500(a) and 10.126.
The case is also remanded to OWCP to administratively combine all of appellant’s claims.
In adjudicating appellant’s present claim, OWCP File No. xxxxxx310, the hearing representative
specifically referenced factual and medical evidence obtained from an earlier claim, OWCP File
No. xxxxxx005. 7 All evidence that forms the basis of a decision must be in that claimant’s case
record.8 OWCP’s procedures provide that cases should be administratively combined when
correct adjudication of the issues depends on frequent cross-referencing between files. 9 Therefore,
on remand, OWCP shall administratively combine OWCP File Nos. xxxxxx005 and xxxxxxx310.
Following this and other such further development as deemed necessary, it shall issue a de novo
decision regarding appellant’s claim for wage-loss compensation for disability from work
commencing September 27, 2020.

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Id.

5

5 U.S.C. § 8124(a) provides that OWCP shall determine and make a finding of facts and make an award for or
against payment of compensation. 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP shall
contain findings of fact and a statement of reasons.
6

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Disallowances, Chapter 2.1400.5 (February 2013).

7

See D.B., Docket No. 19-0262 (issued December 31, 2019).

8

Id.; R.L., Docket No. 20-0901 (issued July 27, 2021).

9

Federal (FECA) Procedure Manual, Claims, File Maintenance and Management, Chapter 2.400.8(c)
(February 2000).

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IT IS HEREBY ORDERED THAT the June 3, 2021 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this order of the Board.
Issued: February 14, 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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.C., Appellant
and
U.S. POSTAL SERVICE, MOUNT
WASHINGTON POST OFFICE,
Baltimore, MD, Employer
__________________________________________

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

Docket No. 21-1416
Issued: March 1, 2022

Case Submitted on the Record

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

JURISDICTION
On September 26, 2021 appellant filed a timely appeal from an August 18, 2021 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 met her burden of proof to establish a medical condition
causally related to the accepted factors of her federal employment.
FACTUAL HISTORY
On May 17, 2021 appellant, then a 47-year-old city carrier, filed an occupational disease
claim (Form CA-2) alleging that she developed tarsal tunnel syndrome due to factors of her federal
employment. She indicated that her ankle would hurt while she worked, but did not hurt if she
1

5 U.S.C. § 8101 et seq.

avoided walking, standing, or ascending and descending stairs. Appellant noted that she first
became aware of her condition on February 1, 2021 and realized its relationship to her federal
employment on March 16, 2021. She stopped work on March 12, 2021.
In a progress note dated March 18, 2021, Dr. Pardeep Paul Singh Dhanoa, a Board-certified
family medicine specialist, noted that appellant complained of right plantar foot pain for the past
three months, followed by left foot pain which she attributed to overcompensation. He noted that
she asserted that the pain was the worst at the end of the day and for the past few weeks it had
spread to her heels. Dr. Dhanoa diagnosed bilateral foot pain and bilateral bunion and
recommended rest, ice, stretching, a referral to podiatry, and that appellant remain off work until
March 20, 2021.
In a medical note dated April 16, 2021, Dr David A. Wood, a podiatrist, recounted
appellant’s complaints of chronic foot pain, right worse than left, which was constant and
worsened with weight bearing. He noted that his physical examination was remarkable for a
positive Tinel’s sign with tibial nerve percussion, and that her x-rays revealed inferior heel spur,
bunion deformity, and hammertoes. Dr. Wood suspected tarsal tunnel syndrome and
recommended that appellant undergo a magnetic resonance imaging (MRI) scan and a nerve
conduction velocity (NCV) study.
In an after visit summary dated May 6, 2021, Dr. Syed A. Salahuddin, a Board-certified
neurologist, examined appellant and diagnosed tarsal tunnel syndrome.
In a note of even date, Dr. Wood advised appellant that the NCV study had confirmed tarsal
tunnel syndrome. He again recommended an MRI scan to determine the specific cause of the
condition.
In a May 14, 2021 note, Dr. Wood noted that he had reviewed an MRI scan and observed
varicosities distal to the port pedis, which he opined that were likely contributing to tarsal tunnel
syndrome. He recommended surgical release of the tarsal tunnel and porta pedis and ligation of
varicose veins. Dr. Wood explained that tarsal tunnel syndrome was a loose diagnosis without a
definitive mass and that chronic swelling was a potential complication. In a separate note of even
date, he indicated that appellant was unable to work, and that she would be undergoing surgery for
her diagnosed conditions.
In an attending physician’s report (Form CA-20) dated May 25, 2021, Dr. Wood diagnosed
right tarsal tunnel syndrome and varicose veins. He checked a box marked “Yes” indicating that
the conditions were caused or aggravated by an employment activity, which he described as
“overuse of extremities.” Dr. Wood noted that appellant continued to be disabled from working.
In a June 28, 2021 development letter, OWCP informed appellant of the deficiencies of her
claim. It advised her of the type of factual and medical evidence needed to establish her claim and
provided a questionnaire for her completion. By separate development letter of even date, OWCP
requested additional information from the employing establishment, including comments from a
knowledgeable supervisor on the accuracy of appellant’s statements. It afforded both parties 30
days to submit the necessary evidence.

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OWCP thereafter received a form report by Dr. Wood dated April 12, 2021, which noted
chronic foot pain with an onset of March 18, 2021.
Appellant submitted a completed response to OWCP’s development questionnaire dated
July 2, 2021. She attributed her claimed conditions to repetitive walking, bending, stooping,
lifting, and climbing stairs while carrying mail between 8 to 12 hours per day for the past 18 years.
In a letter dated July 21, 2021, Dr. Wood noted that appellant was unable to work due to
her inability to stand or walk for any length of time secondary to tarsal tunnel syndrome.
In a narrative report dated July 27, 2021, Dr. Wood outlined his visits with appellant and
the results of the NCV study and MRI scan. He diagnosed right tarsal tunnel syndrome and
varicosities and indicated that conservative treatments and time off from work had failed to resolve
her conditions. Dr. Wood noted that appellant would be undergoing surgery to include release of
the tarsal tunnel and ligation of varicosities. When asked to describe her specific employment
duties/activities, he indicated that she was unable to stand or walk for any substantial time. When
asked to provide a medical explanation for how appellant’s federal employment duties caused,
contributed to or aggravated her medical condition, Dr. Wood responded that she was unable to
work at that time.
By decision dated August 18, 2021, OWCP denied appellant’s occupational disease claim,
finding that the evidence of record was insufficient to establish causal relationship between her
diagnosed medical conditions and the accepted employment factors. Consequently, it found that
she had not met the requirements to establish an injury or medical condition causally related to the
accepted employment factors.
LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an emplo yee of the United
States within the meaning of FECA, that the claim was timely filed within the applicable time
limitation of FECA, 3 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 5
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) a factual statement identifying employment factors
2

Id.

3

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).

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alleged to have caused or contributed to the presence or occurrence of the disease o r condition;
(2) medical evidence establishing the presence or existence of the disease or condition for which
compensation is claimed; and (3) medical evidence establishing that the diagnosed condition is
causally related to the employment factors identified by the employee.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 7 The opinion of the physician must be based upon a complete factual
and medical background, must be one of reasonable medical certainty, and must be supported by
medical rationale explaining the nature of the relationship between the diagnosed condition and
the specific employment factors. 8
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.
In his July 27, 2021 narrative report, Dr. Wood diagnosed right tarsal tunnel syndrome and
varicosities and discussed appellant’s upcoming surgery. He did not, however, provide an opinion
on causal relationship between her diagnosed conditions and the accepted factors of federal
employment. The Board has held that a medical report lacking an opinion on causal relationship
is of no probative value. 9 Therefore, the Board finds that Dr. Wood’s January 27, 2021 report is
insufficient to establish appellant’s burden of proof.
In his additional reports and notes dated April, May, and July 2021, Dr. Wood diagnosed
right tarsal tunnel syndrome and varicosities, but did not provide an opinion on causal relationship.
Similarly, in his March 18, 2021 note, Dr. Dhanoa diagnosed bilateral foot pain and bunions, but
did not provide an opinion on causal relationship. As noted, the Board has held that a medical
report lacking an opinion on causal relationship is of no probative value. 10 Therefore, these reports
are also insufficient to establish appellant’s burden of proof.
As appellant has not submitted rationalized medical evidence sufficient to establish a
medical condition causally related to the accepted employment factors, the Board finds that she
has not met her burden of proof.

6

P.L., Docket No. 19-1750 (issued March 26, 2020); R.G., Docket No. 19-0233 (issued July 16, 2019); L.M.,
Docket No. 13-1402 (issued February 7, 2014); Dolores C. Ellyett, id.
7

I.J., Docket No. 19-1343 (issued February 26, 2020); T.H., 59 ECAB 388 (2008); Robert G. Morris, 48 ECAB
238 (1996).
8

D.C., Docket No. 19-1093 (issued June 25, 2020); see L.B., Docket No. 18-0533 (issued August 27, 2018).

9

L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

10

Id.

4

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 appellant has not met her burden of proof to establish a medical
condition causally related to the accepted factors of her federal employment.
ORDER
IT IS HEREBY ORDERED THAT the August 18, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 1, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
K.G., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Coppell, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-0050
Issued: March 9, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On October 15, 2015 appellant filed a timely appeal from an August 6, 2015 merit
decision of the Office of Workers’ Compensation Programs (OWCP).1 Pursuant to the Federal
Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she sustained an
injury to her lower back on June 8, 2015 in the performance of duty.

1

OWCP’s August 6, 2015 decision is contained in subsidiary file number xxxxxx007. The rest of the case record
is contained in master file number xxxxxx903.
2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 11, 2015 appellant, then a 56-year-old transportation security officer, filed an
occupational disease claim (Form CA-2) alleging that she sustained low back pain primarily on
the left side due to factors of her federal employment. She advised that her pain began after
working with oversize luggage for four hours.3 Appellant stopped work on June 8, 2015. She
became aware of her condition on June 8, 2015 and attributed it to her employment on
June 9, 2015.
Later, on June 23, 2015 appellant filed a traumatic injury claim (Form CA-1) alleging
that on June 8, 2015 she experienced low back pain due to continually lifting heavy bags.
By letter dated June 29, 2015, OWCP requested additional factual and medical evidence
regarding appellant’s occupational disease claim, including a detailed report from her attending
physician addressing the relationship between any diagnosed condition and the identified work
factors.
Appellant provides a June 10, 2015 report from Dr. Robert Contreras, Board-certified in
family medicine. Dr. Contreras had evaluated appellant for a “[s]elf-reported” low back injury,
noting that she worked in transportation security at the employing establishment. Appellant
obtained a history of back pain primarily on the left side after “lifting heavy suitcases and golf
bags all day” on June 8, 2010. Dr. Contreras diagnosed lumbar sprain and pain, a lumbar
paraspinal muscle spasm, and “[o]verexertion from lifting with repetitive movement.”
Additional reports from Dr. Contreras, dated June 10 and 12, 2015, reported that the
condition was caused or aggravated by employment. He listed the history of injury as lifting
suitcases and golf bags. Dr. Contreras referenced that he was rechecking appellant for low back
strain and noted that she had intended to speak with her supervisor but had not yet filed an injury
claim. He diagnosed lumbar pain, lumbar sprain, lumbar paraspinal muscle spasm, and
overexertion from repetitive motion. Dr. Contreras found that she could perform limited-duty
employment lifting up to 10 pounds. He noted that appellant “admits to keeping her back
aligned with a chiropractor that she has been using for over 30 years.” Dr. Contreras referred
appellant for physical therapy. In the form report of June 10, 2015, he checked a box marked
“yes” that the condition was caused or aggravated by employment.
In a June 10, 2015 statement of workplace injury form, appellant related that she was
working in the oversize area lifting gun cases and full golf bags. She reported that on June 8,
2015 at around 10:00 a.m. her back began hurting but she thought it would go away when she
stopped lifting. Appellant related that she reported the injury when the pain worsened.
Cornelious Roddy, appellant’s supervisor, acknowledged that on June 10, 2015 appellant
advised him that her back hurt but that she had told him that she did not believe that it was work
related. After he advised her to see her personal physician, she told him that the back pain was
due to her employment.
3

Appellant related that she became aware of her condition on June 9, 2015 after working in the oversize area;
however, the claim form indicated that she stopped work on June 8, 2015.

2

An employing establishment workers’ compensation official, Edward Schauer, related
that on June 11, 2015 appellant provided him with a medical report claiming that she had been
injured working oversize baggage. Appellant maintained that the injury occurred on June 8,
2015 but that she had not informed her supervisor on that date. Mr. Schauer advised that the
traumatic injury claim form was being developed as an occupational disease claim as the date of
injury was not known.
Dr. Contreras, in additional reports dated June 19 and July 7, 2015, diagnosed lumbar
pain, lumbar sprain, lumbar paraspinal muscle spasm, and overexertion due to lifting repetitively.
He found that appellant could perform modified employment lifting and pushing up to 30
pounds, but on July 7, 2015 he found that she could perform her usual employment and released
her from treatment.
On June 26, 2015 Dr. Richard Virgilio, an osteopath, diagnosed lumbar sprain that had
improved after a back injury and found that appellant could try her usual work duties and on
July 1, 2015 he noted that her back injury was improving and that she could try performing her
usual work duties.
The employing establishment controverted appellant’s claims and summarized the
statements made by appellant, Mr. Roddy, and Mr. Schauer.
The employing establishment again controverted appellant’s claim, by e-mail dated
July 23, 2015, as her allegations were not clear and as she initially told Mr. Roddy that her
condition was not work related. It further denied her assertion that she performed continuous
lifting, as the position provided for rotations every 30 minutes.
By decision dated August 6, 2015, OWCP denied appellant’s occupational disease claim.
It found that she had established that the work event occurred as alleged but that the medical
evidence failed to contain a diagnosis causally related to the claimed event. OWCP noted that
Dr. Virgilio diagnosed back pain on June 26, 2015 but found that pain was not a diagnosis under
FECA.
On appeal appellant argues that her physicians diagnosed lumbar sprain and spasms in
addition to pain. Her physicians also prescribed medication and placed her on modified duty.
LEGAL PRECEDENT
An employee seeking benefits under FECA4 has the burden of establishing the essential
elements of his or her claim, including the fact that the individual is an “employee of the United
States” within the meaning of FECA; that the claim was filed within the applicable time
limitation; that an injury was sustained while in the performance of duty as alleged; and that any
disability and/or specific condition for which compensation is claimed are causally related to the

4

5 U.S.C. § 8101 et seq.

3

employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To determine whether an employee sustained a traumatic injury in the performance of
duty, OWCP must determine whether “fact of injury” is established. First, an employee has the
burden of demonstrating the occurrence of an injury at the time, place, and in the manner
alleged, by a preponderance of the reliable, probative, and substantial evidence.7 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.8 An employee may establish that the employment
incident occurred as alleged, but fail to show that his or her disability and/or condition relates to
the employment incident.9
ANALYSIS
Appellant filed an occupational disease claim alleging that she sustained low back pain
due to lifting heavy bags for four hours. She also filed a traumatic injury claim contending that
she experienced pain in her lower back after lifting heavy bags on June 8, 2015. OWCP
adjudicated appellant’s claim as an occupational disease; however, it appears from appellant’s
June 10, 2015 statement that she attributed her condition to working in the oversize area on
June 8, 2015 lifting heavy luggage. As appellant alleged an injury due to events occurring over
the course of a single workday, her claim is properly characterized as a claim for a traumatic
injury.10
OWCP accepted the occurrence of the identified work factor of appellant lifting oversize
luggage for four hours. The issue, consequently, is whether the medical evidence establishes that
she sustained an injury as a result of lifting heavy luggage on June 8, 2015.
The Board finds that the medical evidence is insufficient to establish that appellant
sustained a low back condition as a result of the June 8, 2015 employment incident. In his
June 10, 2015 report, Dr. Contreras evaluated her for a back injury that he indicated was selfreported. He noted that on June 8, 2010 appellant felt pain mostly in the left side of her back
after she lifted suitcases and golf bags. Dr. Contreras diagnosed a lumbar paraspinal muscle
spasm, lumbar sprain, lumbar pain, and overexertion from repetitive lifting. While he obtained a
5

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

6

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

7

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

8

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

9

Id.

10

A traumatic injury is defined as a “condition of the body caused by a specific event or incident, or series of
events or incidents, within a single workday or shift.” 20 C.F.R. § 10.5(ee). An occupational disease is defined as a
condition produced by the work environment over a period longer than a single workday or shift.” 20 C.F.R.
§ 10.5(q).

4

history of the June 8, 2015 work incident, he did not directly attribute the diagnosed conditions
to that incident. Consequently, Dr. Contreras’ report is of diminished probative value on the
issue of causal relationship.11
In the form report that same date, Dr. Contreras diagnosed lumbar strain and checked
“yes” that the condition was caused or aggravated by employment. The Board has held,
however, that when a physician’s opinion on causal relationship consists only of checking “yes”
to a form question, without explanation or rationale, that opinion has little probative value and is
insufficient to establish a claim.12
On June 12, 2015 Dr. Contreras evaluated appellant for low back strain and indicated that
she had not filed an injury claim but intended to speak with her supervisor. He diagnosed lumbar
pain, lumbar sprain, lumbar paraspinal muscle spasm, and overexertion from repetitive lifting.
Dr. Contreras listed work restrictions and noted that appellant had used a chiropractor for 30
years. He did not, however, specifically address the cause of the diagnosed conditions or relate
the conditions to her lifting on June 8, 2015.13 A report from a physician addressing causation
and well supported by medical rationale is particularly necessary given appellant’s long history
of chiropractic treatment for her back.14
In his June 19, 2015 report, Dr. Contreras again diagnosed lumbar pain, lumbar sprain,
lumbar paraspinal muscle spasm, and overexertion from repetitive lifting. He found that
appellant could perform modified employment lifting and pushing up to 30 pounds. In reports
dated June 26 and July 1, 2015, Dr. Virgilio diagnosed lumbar sprain that had improved after a
back injury and found that she could try her usual work duties. Again, however, the physicians
do not address causation. As discussed, medical evidence which does not offer any opinion
regarding the cause of an employee’s condition is of limited probative value on the issue of
causal relationship.15
On appeal appellant maintains that her physicians diagnosed lumbar sprain and spasms in
addition to pain, and thus provided a diagnosed condition. She also notes that her physicians
placed her on limited duty and prescribed medication. OWCP found that appellant’s physician
diagnosed pain rather than a specific medical condition. Appellant has not met her burden to
submit a well-reasoned medical report explaining how the work incident caused a diagnosed
medical condition.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128 and
20 C.F.R. §§ 10.605 through 10.607.
11

See J.B., Docket No. 15-0201 (issued October 6, 2015); S.E., Docket No. 08-2214 (issued May 6, 2009).

12

Deborah L. Beatty, 54 ECAB 340 (2003).

13

See supra note 11.

14

See H.J., Docket No. 15-0705 (issued November 2, 2015).

15

See M.B., Docket No. 14-635 (issued June 12, 2014); Michael E. Smith, 50 ECAB 313 (1999).

5

CONCLUSION
The Board finds that appellant has not met her burden of proof to establish an injury to
her lower back causally related to a June 8, 2015 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 6, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed, as modified.
Issued: March 9, 2016
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board

___________________________________________
)
)
)
and
)
)
DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORTATION SECURITY
)
ADMINISTRATION, Charleston, SC, Employer
)
___________________________________________ )
W.W., Appellant

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

Docket No. 10-1922
Issued: July 11, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On July 19, 2010 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ (OWCP) decision dated March 10, 2010, which affirmed the denial of
her claim for a recurrence of disability. Pursuant to the Federal Employees’ Compensation Act1
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish a recurrence of
disability from June 30 to July 2, 2009 causally related to her July 12, 2007 employment injury.
FACTUAL HISTORY
On July 12, 2007 appellant, then a 43-year-old, transportation security screener, injured
her right thigh and hip when she was looking under seats during a security sweep. OWCP
1

5 U.S.C. § 8101 et seq.

accepted her claim for right hip and right thigh sprains and enthesopathy of the hip region.
Appellant returned to a full-time permanent limited-duty position on July 13, 2007.2 She
received appropriate compensation benefits.
In an October 8, 2007 report, Dr. Charles Hughes, a radiologist, noted that appellant was
seen for a follow-up evaluation following a magnetic resonance imaging (MRI) scan of the right
hip, which revealed acetabular labral changes with a probable acetabular labral tear and mild
iliopsoas tendon insertion strain. A June 11, 2008 report from Dr. Bright McConnell, a Boardcertified orthopedic surgeon and treating physician, revealed that appellant stepped from her
porch at home over the weekend and experienced an increase in her groin pain. In a
September 29, 2008 report, Dr. James K. Aymond, a Board-certified orthopedic surgeon,
recommended modified duty and noted that appellant had a preexisting condition that was
aggravated by the work-related injury in July 2007. In a December 23, 2008 report, he noted that
she was treated for L5-S1 neural foraminal stenosis that was aggravated by her twisting injury on
July 12, 2007. Dr. Aymond indicated that appellant continued to have right-sided high and thigh
pain and radiculopathy at L5.
OWCP referred appellant for a second opinion examination with Dr. Douglas Hein, a
Board-certified orthopedic surgeon. In an April 6, 2009 report, Dr. Hein noted her history of
injury and treatment and opined that the work incident caused a hip strain and iliopsoas strain
which had resolved. He indicated that appellant had a small labral tear with intermittent hip pain
which was related to the July 12, 2007 injury. Dr. Hein opined that she would experience
intermittent groin pain and recurrent labral pain in the groin. He further determined that the
nonwork-related slip in the grocery store in December 2007 caused an increase in the
aggravation of appellant’s lumbar condition. Dr. Hein indicated that she could perform limited
duties which included no lifting over 40 pounds.
In a June 5, 2009 treatment note, Dr. McConnell diagnosed bursitis and tendinitis in the
hip region and lumbar stenosis. He indicated that appellant was at maximum medical
improvement and had permanent restrictions. Dr. McConnell also noted that she had some
residuals of lumbosacral disc disease with intermittent S1 neuropathy. He opined that these
conditions were aggravated by appellant’s work injury of July 12, 2007. In a June 30, 2009
treatment note, Dr. McConnell diagnosed right hip and thigh pain. He placed appellant off work
and indicated that she could return to modified duty on July 2, 2009. Dr. McConnell saw her on
July 2, 2009 and recommended limited duty effective July 2, 2009 with restrictions including no
lifting over 40 pounds, ground level work only, no ladder, no heights, no continuous standing,
sitting and minimum walking or climbing. He continued to treat appellant and recommend light
duty.
On July 9, 2009 appellant filed a notice of recurrence of disability alleging that she
sustained a recurrence of her July 12, 2007 injury. She noted that, after the injury, she was
restricted from bending, squatting, stooping and lifting of more than 10 to 30 pounds. Appellant
2

On August 1, 2007 appellant was released from care; however, on August 10, 2007, she returned to restricted
duty. The record reflects that appellant slipped in a grocery store on December 12, 2007 and reaggravated her right
hip and thigh. OWCP did not accept any conditions resulting from the fall in the grocery store. On June 18, 2009
OWCP denied appellant’s claim for a low back condition.

2

indicated that she had major groin/hip pain, stabbing pain into her groin while walking and pain
on the outside of her hip at night. The employing establishment explained that she was on
limited duty since the initial injury and continued to be accommodated. It also indicated that
appellant stopped work on June 30, 2009 and returned on July 3, 2009.
In a letter dated July 21, 2009, OWCP advised appellant of the additional factual and
medical information needed to establish her claim.
In a July 27, 2009 statement, appellant indicated that her manager advised her that she
should file a claim whenever her injury was “reaggravated.” In an August 7, 2009 physical
therapy note, she advised that she drove to New York and it was “very painful.”
In a decision dated August 25, 2009, OWCP denied appellant’s claim for a recurrence of
disability. It found that the evidence did not establish that she was unable to perform restrictedduty work due to a material worsening of the accepted work injury. OWCP noted that the
medical evidence did not establish that the claimed recurrence resulted from the accepted injury.
On September 8, 2009 appellant requested a telephonic hearing, which was held on
December 11, 2009. During the hearing, she indicated that she experienced difficulty with
walking due to her groin pain, which she attributed to her 2007 injury. Appellant continued to
assert that her symptoms were work related.3
In a September 2, 2009 report, Dr. McConnell diagnosed bursitis, tendinitis and lumbar
stenosis. He advised that appellant may have aggravated her underlying iliopsoas strain.
Additionally, Dr. McConnell noted that there was a question about the involvement of the L5-S1
disc which was not currently accepted. However, he noted that appellant could return to work
and continued his restrictions.
In reports dated October 26, 2009, January 7 and 25, 2010, Dr. J. Edward Nolan, a
Board-certified anesthesiologist and pain management specialist, reported that appellant was
treated for chronic hip, groin and leg pain, associated with her July 2007 work injury. Regarding
appellant’s lumbar spine, he noted that, the claim was denied; however, he believed that she
aggravated her spine during the work injury of July 2007. Dr. Nolan addressed her incident at
the grocery store on December 12, 2007. He noted that appellant slipped but did not fall to the
ground and reported no difference in the location of her pain after the event. Dr. Nolan opined
that it was “only a reaggravation of the existing injury from July 2007.”
In a March 10, 2010 decision, OWCP’s hearing representative affirmed the August 25,
2009 decision.

3

On October 23, 2009 OWCP reduced appellant’s wage-loss compensation to zero, effective July 13, 2007,
finding that her actual earnings as a transportation security screener fairly and reasonably represented her wageearning capacity.

3

LEGAL PRECEDENT
Section 10.5(x) of OWCP’s regulations provide that a recurrence of disability means an
inability to work after an employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness without an intervening
injury or new exposure to the work environment that caused the illness. The term also means an
inability to work that takes place when a light-duty assignment made specifically to
accommodate an employee’s physical limitations due to his or her work-related injury or illness
is withdrawn (except when such withdrawal occurs for reasons of misconduct, nonperformance
of job duties or a reduction-in-force) or when the physical requirements of such an assignment
are altered so that they exceed his or her established physical limitations.4
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantive evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the light-duty job requirements.5
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship, generally, is rationalized medical evidence.6 This consists of a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors.7 The physician’s
opinion must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.8
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.9
ANALYSIS
Appellant’s claim was accepted for right hip and right thigh sprains and enthesopathy of
the hip region. She subsequently alleged a recurrence of disability on June 30, 2009. Appellant
4

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

5

Richard E. Konnen, 47 ECAB 388 (1996); Terry R. Hedman, 38 ECAB 222, 227 (1986).

6

Elizabeth Stanislav, 49 ECAB 540, 541 (1998).

7

Duane B. Harris, 49 ECAB 170, 173 (1997).

8

Gary L. Fowler, 45 ECAB 365, 371 (1994).

9

Walter D. Morehead, 31 ECAB 188 (1986).

4

returned to work on July 3, 2009. On July 21, 2009 OWCP advised her of the type of medical
and factual evidence needed to establish her claim for a recurrence of disability.10
Appellant has not alleged a change in the nature and extent of her light-duty job
requirements. She must thus provide medical evidence establishing that she was disabled due to
a worsening of her accepted work-related conditions.11 This is especially important in
appellant’s case, as there are several nonwork incidents subsequent to her injury to which her
disability and symptoms could be attributed. They include the slip in the grocery store on
December 12, 2007, stepping off her porch on June 11, 2008 and driving from South Carolina to
New York in August 2009.
In a June 30, 2009 treatment note, Dr. McConnell diagnosed right hip and thigh pain. He
placed appellant off work and indicated that she could return to modified duty on July 2, 2009.
A physician’s mere diagnosis of pain, without more by way of an explanation, does not
constitute a basis for payment of compensation.12 The Board notes that Dr. McConnell did not
offer any opinion to explain why appellant was unable to perform her modified employment for
eight hours per day for the period June 30 to July 2, 2009 or explain why this was related to the
July 12, 2007 employment injury. Dr. McConnell continued to place her on modified duty in his
subsequent reports and he did not offer any opinion that she was disabled due to her July 12,
2007 employment injury. Thus, they are of limited probative value.
In reports dated October 26, 2009, January 7 and 25, 2010, Dr. Nolan, advised that he
believed that appellant aggravated her spine during the work injury of July 2007. He also
dismissed the grocery store incident on December 12, 2007 noting that she slipped but did not
fall to the ground and reported no difference in the location of her pain after the event. However,
Dr. Nolan did not appear to be aware of the incident when appellant stepped off her porch in
June 2008 nor did he offer an opinion that she was disabled on or after June 30, 2009 due to her
July 12, 2007 employment injury. Likewise, he did not offer any opinion explaining why she
was unable to perform her modified employment for eight hours per day for the period June 30
to July 2, 2009 and how this was related to the July 12, 2007 employment injury.
Other reports submitted by appellant did not address her recurrence claim on or after
June 30, 2009. Appellant has not met her burden of proof in establishing that there was a change
in the nature or extent of the injury-related condition or a change in the nature and extent of the
light-duty requirements which would prohibit her from performing the light-duty position she
assumed after she returned to work.

10

Although OWCP reduced appellant’s compensation to zero pursuant to an October 23, 2009 wage-earning
capacity decision, she filed her claim for a recurrence of disability prior to issuance of the October 23, 2009
decision. Furthermore, OWCP is not precluded from adjudicating a limited period of employment-related disability
when a formal wage-earning capacity determination has been issued. Sandra D. Pruitt, 57 ECAB 126 (2005). See
Katherine T. Kreger, 55 ECAB 633 (2004).
11

Jackie D. West, 54 ECAB 158 (2002); Terry R. Hedman, 38 ECAB 222 (1986).

12

Robert Broome, 55 ECAB 493 (2004).

5

On appeal, appellant made arguments regarding the employing establishment’s
procedures related to obtaining physician’s notes. She also alleged that the grounds for her
request were that she had a chronic acute condition. However, the issue is medical in nature. As
noted above, appellant did not meet her burden of proof to submit medical evidence establishing
that she was unable to perform her light-duty condition from June 30 to July 2, 2009 due to a
spontaneous change in her accepted condition.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish a recurrence
of disability beginning June 30, 2009 causally related to her July 12, 2007 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the March 10, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 11, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.T., Appellant
and
U.S. POSTAL SERVICE, CHICAGO
NETWORK DISTRIBUTION CENTER,
Forest Park, IL, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-0864
Issued: October 9, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On March 14, 2018 appellant filed a timely appeal from a February 21, 2018 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 established a permanent impairment of either upper
extremity entitling her to a schedule award.
FACTUAL HISTORY
On August 1, 2015 appellant, then a 49-year-old clerk, filed a traumatic injury claim (Form
CA-1) alleging that on that date, while at work, she sustained swelling and tingling of the left
1

5 U.S.C. § 8101 et seq.

shoulder throwing sacks down from a keying station.2 She stopped work the next day on
August 2, 2015. OWCP accepted the claim for a sprain of the left rotator cuff capsule, a sprain of
the cervical spine ligaments, cervical radiculopathy, unspecified cervical disc displacement,
cervical spinal stenosis, and left shoulder and upper arm acromioclavicular sprain. It paid appellant
wage-loss compensation for total disability beginning September 15, 2015 as the employing
establishment was unable to accommodate her work restrictions.
On January 3, 2017 Dr. Kern Singh, a Board-certified orthopedic surgeon, performed a
cervical discectomy and fusion at C5-6.
Appellant underwent a functional capacity evaluation (FCE) on August 17, 2017. The
evaluator determined that she provided variable efforts on the evaluation and that as a result he
was unable to determine her exact work abilities.
In a report dated September 14, 2017, Dr. Singh reviewed the result of the FCE and found
that appellant had full motor strength of the upper extremity. He diagnosed status post anterior
cervical discectomy and fusion at C5-6. Dr. Singh released appellant to resume work without
restrictions, noting that she provided inconsistent effort on the FCE. He opined that she had
reached maximum medical improvement (MMI).3
Appellant, on October 3, 2017, filed a claim for a schedule award (Form CA-7). On
October 5, 2017 OWCP requested that she submit an impairment evaluation from her attending
physician addressing the extent of any permanent impairment using the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides).4
On October 17, 2017 appellant advised OWCP that her physician did not provide
impairment ratings and requested a second opinion examination.5
By decision dated February 21, 2018, OWCP denied appellant’s claim for a schedule
award. It found that she had not submitted any medical evidence demonstrating that she had a
permanent impairment.
On appeal, appellant asserts that she has not reached MMI.

2

OWCP previously accepted that appellant sustained tendinitis of the left arm due to an August 21, 2002 work
injury under File No. xxxxxx762, and right lateral epicondylitis due to an October 12, 2013 work injury under File
No. xxxxxx822.
3

Appellant resumed her usual employment on September 15, 2017.

4

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

5

On October 25, 2017 appellant telephoned OWCP and indicated that her physician would perform a permanent
impairment rating; however, on October 27, 2017 she related that he would not evaluate her impairment and again
requested a second opinion examination.

2

LEGAL PRECEDENT
The schedule award provision of FECA,6 and its implementing federal regulations,7 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.8 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.9
A claimant has the burden of proof under FECA to establish a permanent impairment of a
scheduled member or function as a result of his or her employment injury entitling him or her to a
schedule award.10 Before the A.M.A., Guides can be utilized a description of impairment must be
obtained from his physician. In obtaining medical evidence required for a schedule award, the
evaluation made by the attending physician must include a description of the impairment
including, where applicable, the loss in degrees of active and passive motion of the affected
member or function, the amount of any atrophy or deformity, decrease in strength or disturbance
of sensation or other pertinent descriptions of the impairment. This description must be in
sufficient detail so that the claims examiner and others reviewing the file will be able to clearly
visualize the impairment with its resulting restrictions and limitations.11
OWCP’s procedures provide that, if a claimant has not submitted an impairment
evaluation, it should request a detailed report that “includes history of clinical presentation,
physical findings, functional history, clinical studies or objective tests, analysis of findings, and
the appropriate impairment based on the most significant diagnosis, as well as a discussion of how
the impairment rating was calculated.”12 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.”13
ANALYSIS
The Board finds that appellant has not established a permanent impairment entitling her to
a schedule award. OWCP accepted that she sustained a sprain of the left rotator cuff capsule, a
6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404.

8

Id. at § 10.404(a).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1 (January 2010).
10

See D.H., 58 ECAB 358 (2007); Annette M. Dent, 44 ECAB 403 (1993).

11

D.M., Docket No. 11-0775 (issued October 11, 2011); Peter C. Belkind, 56 ECAB 580 (2005).

12

Supra note 9 at Chapter 2.808.6(a) (February 2013).

13

Id. at Chapter 2.808.6(c).

3

sprain of the cervical spine ligaments, cervical radiculopathy, unspecified cervical disc
displacement, cervical spinal stenosis, and a left shoulder and upper arm acromioclavicular sprain
due to an August 1, 2015 employment injury. Appellant underwent a cervical discectomy and
fusion at C5-6 on January 3, 2017. Her attending physician, Dr. Singh, found on September 14,
2017 that she had reached MMI and released her to return to her usual employment without
restrictions.
On October 3, 2017 appellant filed a schedule award claim. OWCP, on October 5, 2017,
requested that she submit an impairment evaluation from her physician addressing the extent of
any employment-related permanent impairment using the A.M.A., Guides. Appellant did not,
however, submit an impairment evaluation or other medical evidence establishing permanent
impairment. Appellant failed to submit any medical evidence establishing a permanent
impairment due to her accepted employment injury and thus has not met her burden of proof.14
She requested that OWCP schedule a second opinion examination, however, as there was no
indication of permanent impairment in the record, OWCP denied her claim in accordance with its
procedures.15
On appeal, appellant contends that she has not reached MMI. MMI means that the physical
condition of the injured member of the body has stabilized and will not improve further.16 As
noted, Dr. Singh found that appellant had obtained MMI in his September 14, 2017 report. Once
an impairment has reached MMI, a permanent impairment rating may be performed.17 A schedule
award is not payable until MMI has been attained.18
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 established a permanent impairment of either upper
extremity entitling her to a schedule award.

14

See P.L., Docket No. 13-1592 (issued January 7, 2014).

15

See supra note 13.

16

See D.Y., Docket No. 16-0987 (issued September 8, 2016).

17

See G.G., Docket No. 16-1170 (issued November 14, 2016); Patricia J. Penny-Guzman, 55 ECAB 757 (2004).

18

See A.M.A., Guides 20, Table 2-1; see also Orlando Vivens, 42 ECAB 303 (1991).

4

ORDER
IT IS HEREBY ORDERED THAT the February 21, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 9, 2018
Washington, DC

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

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

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

5


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

)
)
)
)
)
)
)
)

Appearances:
Sylvia R. Johnson, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-361
Issued: September 10, 2012

Case Submitted on the Record

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

JURISDICTION
On December 6, 2011 appellant, through her attorney, filed a timely appeal from a July 7,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying her
claim for an increased schedule award. 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 the
claim.
ISSUE
The issue is whether appellant has more than 28 percent permanent impairment of the left
arm for which she previously received a schedule award.
FACTUAL HISTORY
On April 4, 2005 appellant, then a 57-year-old modified limited-duty window clerk,
injured her left wrist and hand when she slipped and fell in a bathroom at work. OWCP accepted
1

5 U.S.C. §§ 8101-8193.

the claim for fracture of lower end of radius (left wrist), scapholunate ligament injury, ulnar
styloid fracture and left carpal tunnel syndrome. On July 26, 2005 appellant had an osteotomy of
distal radial fracture, internal fixation osteotomy with a volar fixed angle plate, proximal ulna
bone grafting to osteotomy site, open distal radial ulnar joint relocation and intraoperative
fluoroscopy. She stopped work on the date of injury and did not return. Appellant elected
retirement benefits as of June 11, 2006. The record reflects that, under case File No. xxxxxx877,
OWCP accepted the conditions of: left lateral epicondylitis, left tenosynovitis, left ulnar nerve
lesion and complications of surgery left arm/elbow. On April 12, 2004 appellant received five
percent permanent impairment of the left upper extremity.2
By decision dated March 22, 2007, OWCP granted appellant a schedule award for a total
of 28 percent permanent impairment of the left arm. The award was due to loss of wrist range of
motion and loss of strength and sensory deficit due to impairment of the median nerve. This
award represented an additional 23 percent impairment from the previous determination of 5
percent made under case File No. xxxxxx877.
On February 10, 2010 appellant requested an increased schedule award. In a March 16,
2010 report, Dr. Edward Diao, an orthopedic surgeon, declared her permanent and stationary. In
a March 16, 2010 permanent impairment worksheet of the upper extremity based on the sixth
edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment, (A.M.A., Guides), he opined that the deformity of appellant’s wrist amounted to 10
percent impairment.
On May 19, 2010 OWCP’s medical adviser, Dr. Ellen Pichey, Board-certified in family
and occupational medicine, reviewed both claim files affecting the left arm. She noted the date
of maximum improvement was March 16, 2010, but that Dr. Diao did not use the sixth edition of
the A.M.A., Guides in calculating impairment. Using his March 16, 2010 report, Dr. Diao
opined that appellant had four percent left arm impairment. Under Table 15-2, page 394, class 2
impairment for left index finger metacarpal joint arthrodesis was 20 percent digit impairment.
Under Table 15-9, page 410, a grade modifier 1 was provided for Clinical Studies (GMCS);
under Table 15-8, page 408, a grade modifier 1 was provided for Physical Examination (GMPE);
under Table 15-7, page 406, a grade modifier 1 was provided for Functional History (GMFH).
Using the net adjustment formula under page 411, the medical adviser found zero net adjustment.
Under Table 15-12, page 421, she found the 20 percent left index finger impairment converted to
4 percent hand impairment and 4 percent arm impairment. The medical adviser concluded that
appellant had no additional impairment in view of her previous schedule awards.
By decision dated May 27, 2010, OWCP denied the claim for additional permanent
impairment of the left upper extremity as the 4 percent impairment rated under the sixth edition
of the A.M.A., Guides was less than the previously awarded 28 percent impairment.
Appellant requested a review of the written record. In a July 2, 2010 report, Dr. Diao
stated that her impairment was based on the descriptions in his March 16, 2010 report. He found
residual carpal boss on the left wrist that was post incision of carpal boss and tenolysis. There
2

The record reflects that appellant has other claims, including claim number xxxxxx281, accepted for right arm
conditions. Claim File Nos. xxxxxx281 and xxxxxx877 are combined with the present claim.

2

was also mild radial sensory nerve irritation. Dr. Diao noted appellant’s surgery was performed
March 30, 2009 with left first dorsal compartment tendinitis and pain and left carpometacarpal
joint second digit carpal boss with osteophytes. He indicated that her incisions were well healed,
tendinitis was significantly improved and the first dorsal compartment problem was completely
resolved. Dr. Diao stated that appellant had current difficulty to some activities of daily living
secondary to the radial sensory nerve irritation over the carpal boss area and some tenderness.
He opined that based on Table 15-11 her moderate discomfort with palpable joint swelling and
radial sensory nerve irritation equated to 20 percent hand impairment, which converted to 18
percent arm impairment and 11 percent whole person impairment.
By decision dated September 22, 2010, OWCP’s hearing representative affirmed the
May 27, 2010 decision.
On October 18, 2010 appellant contacted OWCP to obtain a schedule award evaluation.
She noted that her physician, Dr. Richard Nolan, a Board-certified orthopedic surgeon, referred
her to Dr. Joel Weddington, an orthopedic surgeon, for an impairment evaluation. OWCP
approved the referral and sent a letter on the same date indicating such. In a November 15, 2010
report, Dr. Weddington noted examination findings for both the right and left arms and
diagnosed lateral epicondylitis, right elbow; medial epicondylitis and cubital tunnel syndrome,
status post release and ulnar nerve transposition; and peripheral ulnar neuropathy in the right
upper extremity. Examination of the left elbow demonstrated range of motion of 0 to 120
degrees, appellant had satisfactory range of motion of the left wrist and impaired sensation in the
ulnar nerve distribution.
Dr. Weddington opined that she was at maximum medical
improvement. He rated appellant’s impairment for the right arm.
In a September 29, 2010 report, Dr. Diao indicated that appellant had left elbow surgery
by Dr. Nolan for medial epicondylitis in April 2010. He noted that her grip strength was 18
kilograms bilaterally. Dr. Diao indicated that the radial deviation of 15 degrees and ulnar
deviation of 20 degrees equated to one and two percent upper extremity impairment respectively
for a total three percent impairment.
In a December 19, 2010 report, the medical adviser, Dr. Pichey, noted the accepted
conditions under the current file as well as File No. xxxxxx877. She reviewed the additional
reports from Dr. Weddington and Dr. Diao and found six percent impairment due to loss of range
of motion based on Dr. Weddington’s findings. For the elbow, under Table 15-33, page 474, the
medical adviser stated that loss of flexion was three percent impairment. For the wrist, under
Table 15-32, page 473, she stated that loss of radial deviation was one percent impairment and
loss of ulnar deviation was two percent impairment. The medical adviser indicated that
functional history grade modification was zero under Table 15-36, page 477. Thus, appellant
had total six percent impairment of the left arm, which resulted in no additional impairment for
that arm. The medical adviser noted that, while Dr. Diao’s July 2, 2010 report listed 11 percent
whole person impairment, this would still be less than the 28 percent left arm impairment
previously found. She further noted that Dr. Weddington rated only the right arm, but gave
range of motion measurements for the left arm.
By decision dated February 3, 2011, OWCP denied appellant’s claim for an additional
schedule award.

3

On May 11, 2011 appellant requested reconsideration. She argued that the medical
adviser did not include her impairments to her index finger (20 percent) and hand (4 percent) as
part of her previous schedule award for her left arm of 28 percent. In an undated letter to
OWCP, appellant stated that Dr. Nolan had not declared her stationary from her left elbow
surgery. She also asserted that the matter was confusing as she sought a schedule award for her
left arm, not her right arm.
In a June 6, 2011 report, Dr. Arthur S. Harris, a Board-certified orthopedic surgeon and
an OWCP medical adviser, reviewed appellant’s claim files to determine appellant’s left arm
impairment. He diagnosed: (1) malunion left distal radius; (2) status post left distal radius
osteotomy, internal fixation, bone grafting, open distal radioulnar joint relocation, July 26, 2005;
(3) status post left extensor retinacular release, tenolysis abductor pollicis longus, extensor
pollicis brevis and extensor pollicis longus, second digit carpometacarpal joint arthroplasty,
extensor carpi radialis longus and brevis tenosynovectomy, March 30, 2009; and (4) status post
left cubital tunnel exploration, mobilization of the ulnar nerve, transposition of the ulnar nerve
and subtotal medial epicondylectomy, April 23, 2010. Appellant reached maximum medical
improvement on November 15, 2010 and, under the sixth edition of the A.M.A., Guides, had 12
percent impairment of the left arm. Under Table 15-3, page 449, she had five percent
impairment for residual problems with the left wrist after surgery for malunion. Under Table 153, page 395, appellant had one percent impairment for residual problems after left de Quervain’s
release. Under Table 15-23, page 449, she had two percent impairment for residual problems
with mild cubital tunnel symptoms after cubital tunnel surgery. Under Table 15-2, page 399,
appellant had 20 percent left index digit impairment for metacarpal phalangeal joint arthroplasty,
which converted to 4 percent arm impairment. Dr. Harris combined the impairment values to
find a total 12 percent left upper extremity impairment. He further concluded that appellant was
not entitled to an additional impairment beyond the 28 percent left arm impairment previously
awarded.
By decision dated July 7, 2011, OWCP denied modification of its previous decision. It
found that, although appellant established 12 percent impairment to the left upper extremity, this
was less than the 28 percent impairment previously awarded.
LEGAL PRECEDENT
A claim for an increased schedule award may be based on new exposure.3 Absent any
new exposure to employment factors, a claim for an increased schedule award may also be based
on medical evidence indicating that the progression of an employment-related condition has
resulted in a greater permanent impairment than previously calculated.4
The schedule award provision of FECA and its implementing regulations5 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
3

A.A., 59 ECAB 726 (2008); Tommy R. Martin, 56 ECAB 273 (2005); Rose V. Ford, 55 ECAB 449 (2004).

4

James R. Hentz, 56 ECAB 573 (2005); Linda T. Brown, 51 ECAB 115 (1999).

5

20 C.F.R. § 10.404; see 5 U.S.C. § 8107.

4

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 shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.6 For
consistent results and to ensure equal justice under the law to all claimants, good administrative
practice necessitates the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.7 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.8
In determining entitlement to a schedule award, preexisting impairment to the scheduled
member should be included.9 Any previous impairment to the member under consideration is
included in calculating the percentage of loss except when the prior impairment is due to a
previous work-related injury, in which case the percentage already paid is subtracted from the
total percentage of impairment.10
In addressing upper extremity impairments, the sixth edition requires identification of the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on GMFH, GMPE and GMCS. The net adjustment formula is (GMFH - CDX) + (GMPE CDX) + (GMCS - CDX).11 The A.M.A., Guides also provide that, if motion loss if present,
some impairments may alternatively be assessed12 using section 15.7, range of motion
impairment.13
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to the medical adviser for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides, with the medical adviser providing rationale
for the percentage of impairment specified.14

6

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

7

Ronald R. Kraynak, 53 ECAB 130 (2001).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards,
Chapter 3.700.2 and Exhibit 1 (January 2010).
9

Carol A. Smart, 57 ECAB 340 (2006); Michael C. Milner, 53 ECAB 446 (2002).

10

Federal (FECA) Procedure Manual, supra note 8 at, Chapter 2.808.7(a)(2) (January 2010).

11

A.M.A., Guides 411.

12

Id. at 405.

13

Id. at 461.

14

See Federal (FECA) Procedure Manual, supra note 8 at, Chapter 2.808.6(d) (August 2002).

5

ANALYSIS
The Board finds that appellant has not established that she sustained more than 28 percent
impairment to the left arm for which she previously received schedule awards. On February 10,
2010 she filed a claim for an additional schedule award.
It is appellant’s burden to submit sufficient evidence to establish the extent of permanent
impairment.15 The accepted conditions are fracture of lower end of radius (left wrist),
scapholunate ligament injury, ulnar styloid fracture, left carpal tunnel syndrome, left lateral
epicondylitis, left tenosynovitis, left ulnar nerve lesion and complications of surgery left
arm/elbow.
Appellant submitted reports from Dr. Diao addressing her left arm impairment.
However, these reports are not sufficient to establish that she has more than 28 percent left arm
impairment, for which she previously received schedule awards. The Board notes that none of
Dr. Diao’s reports clearly explain how he calculated appellant’s impairment under the sixth
edition of the A.M.A., Guides. For example, he did not note how he applied grade modifiers to
particular diagnoses under specific tables in the A.M.A., Guides.16 Thus, Dr. Diao’s reports are
of diminished probative value regarding appellant’s permanent impairment under the sixth
edition of the A.M.A., Guides.17 The Board notes that, in any event, he did not indicate in any
report that appellant had greater than 28 percent impairment of the left arm for which she
previously received schedule awards. Other reports submitted by appellant do not specifically
address permanent impairment of the left arm pursuant to the sixth edition of the A.M.A.,
Guides.
On May 19, 2010 Dr. Pichey, an OWCP medical adviser, reviewed Dr. Diao’s March 16,
2010 report and found that appellant had four percent upper extremity impairment under the
sixth edition of the A.M.A., Guides. In her December 19, 2010 report, she reviewed additional
reports from Dr. Diao and Dr. Weddington and recalculated the left upper extremity impairment
under the sixth edition of the A.M.A., Guides to be six percent. The medical adviser noted that
Dr. Diao had provided a whole-person impairment of 11 percent, which is not acceptable under
FECA.18 She noted that, even with errors in Dr. Diao’s report, the impairment rating under the
sixth edition of the A.M.A., Guides would be less than the 28 percent impairment previously
found for the left upper extremity. Using the range of motion findings of the left arm contained
in Dr. Weddington’s report, the medical adviser calculated six percent impairment. She supplied
complete measurements, citations and calculations to support her impairment rating under the
sixth edition of the A.M.A., Guides. Since appellant previously received a schedule award for 28
percent permanent impairment of the left upper extremity, the medical evidence of record did not
support an increase in the impairment already compensated.
15

See Annette M. Dent, 44 ECAB 403 (1993).

16

See supra note 11.

17

See Richard A. Neidert, 57 ECAB 474 (2006) (an attending physician’s report is of little probative value where
the A.M.A., Guides are not properly followed).
18

See Tommy R. Martin, 56 ECAB 273 (2005).

6

Following appellant’s request for reconsideration, OWCP referred her case file to another
medical adviser, Dr. Harris, for an opinion on left arm permanent impairment. Dr. Harris
reviewed the medical evidence in both of her claims and opined that, under the sixth edition of
the A.M.A., Guides, she had 12 percent left upper extremity impairment. He cited appropriate
tables and properly discussed his calculations within the A.M.A., Guides in finding that appellant
had five percent impairment based on malunion of the left wrist status post surgery, one percent
impairment for residuals problems status post left de Quervain’s release, two percent impairment
for residual problems with mild cubital tunnel symptoms status post cubital tunnel surgery and
four percent impairment for left index digit metacarpal phalangeal joint arthroplasty. Dr. Harris
opined that there was currently no increased impairment.
There is no probative medical evidence of record, in conformance with the sixth edition
of the A.M.A., Guides, establishing that appellant has more than 28 percent impairment of the
left arm. As explained, both OWCP medical advisers found that she currently had less
impairment than that for which she previously received a schedule award. Accordingly,
appellant has not established that she is entitled to a schedule award greater than those previously
received.19
On appeal and before OWCP, appellant argued the impairment for her index finger and
hand was not included in the schedule award. The Board notes that Dr. Harris considered her
index finger impairment and properly converted this to arm impairment under Table 15-11, page
430 of the A.M.A., Guides.20 Contrary to appellant’s assertion on appeal, OWCP’s request that
Dr. Harris review the matter does not amount to physician shopping. As noted, its procedures
contemplate that OWCP medical advisers play a role in determining impairment ratings.21 It was
not improper for OWCP to request an opinion from its medical adviser.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not established entitlement to an additional schedule
award for his left upper extremity greater than the 28 percent previously received.

19

FECA provides for reduction of compensation for subsequent injury to the same body member. It provides that
schedule award compensation is reduced by the compensation paid for an earlier injury where the compensation in
both cases are for impairment of the same member or function and where it is determined that the compensation for
the later disability in whole or part would duplicate the compensation payable for the preexisting disability.
5 U.S.C. § 8108; 20 C.F.R. § 10.404(c).
20

See Dennis R. Stark, 57 ECAB 306 (2006) (where the residuals of an injury to a scheduled member of the body
extend into an adjoining area of a member also enumerated in the schedule, such as an injury of a finger into a hand,
or a hand into the arm, or of a foot into the leg, the schedule award should be made on the basis of the percentage
loss of use of the larger member).
21

See supra note 14.

7

ORDER
IT IS HEREBY ORDERED THAT the July 7, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 10, 2012
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

8