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

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

Docket No. 13-1475
Issued: December 18, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

JURISDICTION
On June 10, 2013 appellant, through his attorney, filed a timely appeal from the
February 19, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish more than seven
percent permanent impairment of his right leg, for which he received a schedule award.
FACTUAL HISTORY
OWCP accepted that on April 20, 2010 appellant, then a 44-year-old letter carrier,
sustained partial rupture of his right Achilles tendon, right tarsal tunnel syndrome and temporary
contraction of his right tendon sheath due to stepping down from a truck at work.
1

5 U.S.C. §§ 8101-8193.

The findings of the May 10, 2010 magnetic resonance imaging (MRI) scan testing of
appellant’s right ankle showed small interstitial partial thickness tear of the distal Achilles
tendon and retrocalcaneal bursitis with a Haglund’s deformity of the calcaneous. MRI scan
testing of his right ankle on September 29, 2010 demonstrated focal tenosynovitis of the flexor
hallucis longus tendon, (just below the level of the subtalar joint) and focal collection contiguous
with the flexor hallucis longus tendon sheaths extending to the adjacent soft tissues close to the
tibial neurovascular bundle (possibly associated with tarsal tunnel syndrome). The findings also
showed distal Achilles tendinopathy, mild partial intrasubstance tear at the Achilles insertion and
partial tearing of the deep fibers of the deltoid ligament with remote appearing evulsion fragment
in the region.
On November 2, 2010 Dr. William Newcomb, an attending Board-certified orthopedic
surgeon, performed a right foot tenolysis of the flexor hallucis longus tendon and right ankle
release of the tarsal tunnel. The procedure was authorized by OWCP.
In a January 13, 2012 report, Dr. Arthur F. Becan, an attending Board-certified
orthopedic surgeon, determined that appellant sustained 15 percent permanent impairment of his
right leg under the standards of the sixth edition of the American Medical Association, Guides to
the Evaluation of Permanent Impairment (A.M.A., Guides) (6th ed. 2009). He indicated that
physical examination of appellant’s right foot and ankle revealed tenderness of the medial
malleolus, subtalar joint, posterior tibial tendon, distal Achilles tendon, retrocalcaneal bursae
right tarsal tunnel. Dr. Becan observed that appellant had a mild limp due to right hind foot pain
and reported range of motion findings for his right ankle. Appellant exhibited dorsiflexion of
0 to 5 out of 15 degrees, plantar flexion of 0 to 50 out of 50 degrees, inversion of 0 to 30 out of
30 degrees and eversion of 0-30 out of 30 degrees with manual muscle strength dorsiflexion of
5/5, plantar flexion of 4/5, inversion of 4/5 and eversion of 5/5. There was decreased sensation
along his instep and involving his right great toe. Dr. Becan indicated that Semmes-Weinstein
Monofilaments revealed a decreased sensation along the instep area of the right foot and
involving the right great toe with a minimum of 6.6 milligrams using Semmes-Weinstein
Monofilaments on the right and 3.3 milligrams on the left.
Dr. Becan explained how he calculated appellant’s right leg impairment under the
A.M.A., Guides. He stated that, using Table 16-2 (Foot and Ankle Regional Grid) on page 501,
the diagnosed-based impairment of partial Achilles tendon rupture fell under class 1 with a
default value (mild motion deficit) of five percent impairment. Dr. Becan determined that, per
Table 16-6 on page 516, the functional history modifier fell under grade modifier 1 (mild
problem); per Table 16-7 on page 517, the physical examination modifier was grade modifier 2
(moderate problem); per Table 16-8 on page 519, the clinical studies modifier fell under grade
modifier 1 (mild problem). Dr. Arnold T. Berman, a Board-certified orthopedic surgeon, applied
the net adjustment formula on page 521 to find that there was a +1 net adjustment from the
default rating of five percent, which meant that moving one space to the right under Table 16-2
yielded a six percent impairment of the right leg due to the Achilles tendon rupture. Dr. Becan
noted that appellant had severe sensory deficits of the right tibial nerve and therefore his
condition, under Table 16-12 (Peripheral Nerve Impairment -- Lower Extremity Impairments) on
page 536, fell under class 1 with a default value of 10 percent. He indicated that appellant’s
functional history modifier, physical examination modifier and clinical studies modifiers all fell
under grade modifier 1 and therefore, after application of the net adjustment formula, there was

2

no adjustment from the default value of 10 percent. Therefore, appellant had 10 percent
impairment due to his tibial nerve condition. Using the Combined Values Chart on page 604, the
6 percent impairment combined with the 10 percent impairment equaled a total right leg
impairment of 15 percent.2
On April 13, 2012 appellant claimed a schedule award.
In a July 10, 2012 report, Dr. Berman, serving as an OWCP medical adviser, found that
appellant sustained a seven percent permanent impairment of his right leg under the standards of
the sixth edition of the A.M.A., Guides. Dr. Berman stated that, using Table 16-2 (Foot and
Ankle Regional Grid) on page 501, the diagnosed-based impairment of partial Achilles rupture
fell under class 1 with a default value (mild motion deficit) of five percent impairment. He
determined that, per Table 16-6 on page 516, the functional history modifier fell under grade
modifier 1 (mild problem); per Table 16-7 on page 517, the physical examination modifier was
grade modifier 1 (mild problem); and per Table 16-8 on page 519, the clinical studies modifier
fell under grade modifier 1 (mild problem). Dr. Berman applied the net adjustment formula on
page 521 to find that there was zero net adjustment from the default rating of five percent.
Dr. Berman indicated that appellant’s tarsal tunnel syndrome involved a branch of the
tibial nerve. He stated that Dr. Becan improperly found that appellant’s tibial nerve condition
was “severe” with a class 1 default value of 10 percent under Table 16-12 on page 536.
Dr. Berman felt that the findings of Dr. Becan’s January 13, 2012 examination fell under the
category of mild motor and moderate sensory tarsal deficits per Table 16-12 and therefore
appellant’s tarsal condition fell under the Class 1 default value of two percent. He noted that the
grade modifiers did not warrant an adjustment modification and concluded that appellant’s tarsal
condition equaled two percent impairment of his right leg. Dr. Berman indicated that, using the
Combined Values Chart on page 604, the five percent impairment due to the Achilles tear
combined with the two percent impairment due to the tibial nerve condition equaled a total right
leg impairment of seven percent.
In a July 19, 2012 decision, OWCP granted appellant a schedule award for seven percent
permanent impairment of his right leg. The award ran for 20.16 weeks from January 13 to
June 2, 2012. The award was based on the July 10, 2012 report of Dr. Berman, the medical
adviser.
Appellant requested a video hearing before an OWCP hearing representative. During the
November 29, 2012 hearing, counsel argued that there was a conflict in the medical opinion
evidence regarding the extent of his right leg impairment between Dr. Becan and Dr. Berman.
In a February 19, 2013 decision, the hearing representative affirmed OWCP’s July 19,
2012 schedule award decision. She found that the weight of the medical evidence regarding
appellant’s right leg impairment rested with the opinion of Dr. Berman.

2

Dr. Becan found a date of maximum medical improvement of January 13, 2012.

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LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 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 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 the
appropriate standard for evaluating schedule losses.5 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.6
In determining impairment for the lower extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the lower
extremity to be rated. With respect to the foot and ankle, the relevant portion of the leg for the
present case, reference is made to Table 16-2 (Foot and Ankle Regional Grid) beginning on page
501.7 After the Class of Diagnosis (CDX) is determined from the Foot and Ankle Regional Grid
(including identification of a default grade value), the net adjustment formula is applied using the
grade modifier for Functional History (GMFH), grade modifier for Physical Examination
(GMPE) and grade modifier for Clinical Studies (GMCS). The net adjustment formula is
(GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).8 Table 16-12 (Peripheral Nerve
Impairment -- Lower Extremity Impairments) is used to evaluate peripheral nerve impairments
of the legs.9
Section 8123(a) of FECA provides in pertinent part: “If there is disagreement between
the physician making the examination for the United States and the physician of the employee,
the Secretary shall appoint a third physician who shall make an examination.”10 When there are
opposing reports of virtually equal weight and rationale, the case must be referred to an impartial
medical specialist, pursuant to section 8123(a) of FECA, to resolve the conflict in the medical
evidence.11

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

6

FECA Bulletin No. 09-03 (issued March 15, 2009).

7

See A.M.A., Guides (6th ed. 2009) 501-08.

8

Id. at 515-21.

9

Id. at 536.

10

5 U.S.C. § 8123(a).

11

William C. Bush, 40 ECAB 1064, 1975 (1989).

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ANALYSIS
OWCP accepted that appellant sustained partial rupture of his right Achilles tendon, right
tarsal tunnel syndrome and temporary contraction of his right tendon sheath on April 20, 2010.
On November 2, 2010 appellant underwent OWCP-authorized surgery, including a right foot
tenolysis of the flexor hallucis longus tendon and right ankle release of the tarsal tunnel. In a
July 19, 2012 decision, OWCP granted him a schedule award for a seven percent permanent
impairment of his right leg. The award was based on the July 10, 2012 impairment rating
calculation of Dr. Berman, a Board-certified orthopedic surgeon serving as an OWCP medical
adviser. He had evaluated the medical evidence of record, including the January 13, 2012
examination findings of Dr. Becan, an attending Board-certified orthopedic surgeon. On
February 19, 2013 an OWCP hearing representative affirmed OWCP’s July 19, 2012 decision.
The Board finds that there is a conflict in the medical opinion evidence regarding the
extent of appellant’s right leg impairment between Dr. Berman and Dr. Becan.12 In the July 10,
2012 report, Dr. Berman found that appellant sustained seven percent permanent impairment of
his right leg under the standards of the sixth edition of the A.M.A., Guides. In contrast,
Dr. Becan found, in his January 13, 2012 report, that appellant had 15 percent permanent
impairment of his right leg under the standards of the sixth edition of the A.M.A., Guides.
Both physicians used Table 16-2 (Foot and Ankle Regional Grid) beginning on page 501,
with associated Table 16-6 through Table 16-8 and Table 16-12 (Peripheral Nerve Impairment -Lower Extremity Impairments) on page 536 to evaluate appellant’s right leg impairment.13
However, the physicians disagreed about how to apply the medical findings of record to the
standards of the tables. For example, Dr. Becan felt that appellant’s condition warranted a grade
modifier 2 for physical examination per Table 16-7 on page 517, whereas Dr. Berman believed it
warranted a grade modifier 1. In addition, he found that appellant’s tibial nerve condition
represented a severe sensory deficit with a class 1 default value of 10 percent under Table 16-12
on page 536. However, Dr. Berman felt that the medical findings of record showed that
appellant’s tibial nerve condition fell under the category of mild motor and moderate sensory
deficits per Table 16-12 and therefore appellant’s tibial nerve condition fell under the class 1
default value of two percent.
Due to the outstanding conflict in the medical opinion evidence regarding appellant’s
right leg impairment between Dr. Becan and Dr. Berman, the case must be referred to an
impartial medical specialist to resolve the conflict.14 On remand, OWCP should refer appellant,
along with the case file and the statement of accepted facts, to an appropriate specialist for an
impartial medical evaluation and report including a rationalized opinion on this matter. After
such further development as it deems necessary, it should issue an appropriate decision regarding
appellant’s schedule award claim.

12

See supra note 10.

13

See supra notes 7 through 9.

14

See supra note 11.

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CONCLUSION
The Board finds that the case is not in posture for decision regarding whether appellant
he has more than seven percent impairment of his right leg. The case is remanded to OWCP for
further development.
ORDER
IT IS HEREBY ORDERED THAT the February 19, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this decision.
Issued: December 18, 2013
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bridgeview, IL, Employer
__________________________________________

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Appearances:
Claudia M. Howe, for the appellant
Office of Solicitor, for the Director

Docket No. 14-1370
Issued: October 1, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On May 30, 2014 appellant, through his representative, timely appealed the April 16,
2014 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). The latest
merit decision is dated March 12, 2013, which is more than 180 days prior to the filing of the
instant appeal. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board’s jurisdiction extends only to the April 16, 2014 nonmerit
decision.
ISSUE
The issue is whether OWCP properly determined that appellant’s request for
reconsideration was untimely filed and did not establish clear evidence of error.

1

5 U.S.C. §§ 8101-8193 (2006).

FACTUAL HISTORY
On November 21, 2007 appellant, then a 53-year-old mail carrier, injured his left knee in
a work-related fall. OWCP initially accepted the claim for left knee contusion. The claim was
later expanded to include left knee unspecified internal derangement. Appellant received wageloss compensation for temporary total disability (TTD) and OWCP placed him on the periodic
compensation rolls effective June 8, 2008. In June 2010, OWCP added left leg reflex
sympathetic dystrophy (RSD) as an accepted condition.
On November 9, 2011 OWCP issued a preliminary notice of proposed termination of
compensation. By decision dated December 30, 2011, it terminated wage-loss compensation and
medical benefits effective that same day. OWCP based its decision on the opinion of
Dr. Shing I. Yen, a Board-certified orthopedic surgeon and impartial medical examiner (IME).
Dr. Yen examined appellant on May 17, 2010. He provided several reports and, in his most
recent supplemental report dated October 13, 2011, Dr. Yen advised that appellant was capable
of working full duty. He further commented that if appellant is capable of working full duty,
then further treatment would be unnecessary.
Appellant requested reconsideration and, in a decision dated March 12, 2013, OWCP
modified the December 30, 2011 decision to reflect appellant’s entitlement to ongoing medical
treatment. OWCP found Dr. Yen’s opinion insufficient to establish that appellant’s RSD had
resolved. However, Dr. Yen’s opinion remained the weight of the evidence regarding injuryrelated disability.
Consequently, OWCP did not reinstate entitlement to wage-loss
compensation.
In a letter dated March 10, 2014, appellant questioned how OWCP could reinstate
medical benefits for his November 21, 2007 employment injury, but decline to pay wage-loss
compensation for total disability due to the same injury. He asked that his letter serve as a
request for reconsideration of the March 12, 2013 decision. OWCP received appellant’s request
for reconsideration on March 13, 2014.
In an April 16, 2014 decision, OWCP denied appellant’s request because it was untimely
and he failed to establish clear evidence of error with respect to OWCP’s March 12, 2013 merit
decision.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of an OWCP decision as a
matter of right.2 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.3 One such limitation is that the application for
reconsideration must be received by OWCP within one year of the date of the decision for which

2

This section provides in pertinent part: “[t]he Secretary of Labor may review an award for or against payment
of compensation at any time on his own motion or on application.” 5 U.S.C. § 8128(a).
3

20 C.F.R. § 10.607 (2012).

2

review is sought.4 When a request for reconsideration is untimely, OWCP will undertake a
limited review to determine whether the application presents clear evidence of error on the part
of OWCP in its most recent merit decision.5
ANALYSIS
Appellant’s request for reconsideration is dated March 10, 2014, and OWCP received it
on March 13, 2014. The last merit decision was issued on March 12, 2013. For the request to
have been timely, OWCP should have received it on or before March 12, 2014. On appeal
appellant alleges that U.S. Postal Service tracking information reportedly showed that appellant’s
request was delivered on March 12, 2014, but the referenced tracking information was not part of
the record before OWCP, and the Board is precluded from reviewing it.6 Moreover, timeliness is
determined based on the iFECS “received date,” which in this case was March 13, 2014.7
Because appellant’s request for reconsideration was untimely, he must demonstrate clear
evidence of error on the part of OWCP.8
OWCP previously terminated wage-loss compensation and medical benefits effective
December 30, 2011. Medical benefits were reinstated based on OWCP’s determination that
appellant’s RSD had not fully resolved. On reconsideration, appellant questioned how OWCP
could reinstate medical benefits, but continue to deny wage-loss compensation.
A recognized need for ongoing medical treatment is not a finding that the claimant cannot
work. Appellant’s latest reconsideration request did not include additional medical evidence that
showed of ongoing injury-related disability. Accordingly, he failed to establish clear evidence of
error on the part of OWCP. As such, there is no justification for further merit review. The
Board finds that OWCP properly declined to reopen appellant’s case under 5 U.S.C. § 8128(a).
4

20 C.F.R. § 10.607(a). The one-year period begins on the date of the original decision, and an application for
reconsideration must be received by OWCP within one year of OWCP’s decision for which review is sought for
merit decisions issued on or after August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (October 2011). Timeliness is determined by the document receipt date of the
request for reconsideration as indicated by the “received date” in the Integrated Federal Employees’ Compensation
System (iFECS). Id. at Chapter 2.1602.4b.
5

20 C.F.R. § 10.607(b).

6

20 C.F.R. § 501.2(c)(1).

7

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4b.

8

20 C.F.R. § 10.607(b). To establish clear evidence of error, a claimant must submit evidence relevant to the
issue that was decided by OWCP. See Dean D. Beets, 43 ECAB 1153 (1992). The evidence must be positive,
precise and explicit and it must be apparent on its face that OWCP committed an error. See Leona N. Travis, 43
ECAB 227 (1991). It is not enough to merely show that the evidence could be construed to produce a contrary
conclusion. Id. Evidence that does not raise a substantial question concerning the correctness of OWCP’s decision
is insufficient to establish clear evidence of error. See Jesus D. Sanchez, 41 ECAB 964 (1990). The evidence
submitted must not only be of sufficient probative value to create a conflict in medical opinion or establish a clear
procedural error, but must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision. Thankamma Mathews, 44
ECAB 765, 770 (1993).

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CONCLUSION
Appellant’s request for reconsideration was untimely, and he failed to demonstrate clear
evidence of error. Therefore, he is not entitled to further merit review.
ORDER
IT IS HEREBY ORDERED THAT the April 16, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 1, 2014
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

4


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

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

Docket No. 11-1731
Issued: June 12, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

JURISDICTION
On July 20, 2011 appellant, through his attorney, filed a timely appeal from an April 14,
2011 schedule award 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 established that he sustained greater than 25 percent
impairment to the left upper extremity, for which he received a schedule award.
On appeal, appellant, through counsel, contends: that the opinion of the impartial
medical examiner was not entitled to special weight as he previously examined appellant; that
the statement of accepted facts provided OWCP’s medical adviser did not mention the fact that
appellant had adhesive capsulitis to the left shoulder as an accepted injury and therefore the
medical adviser did not have an accurate medical history; and that the impartial medical
1

5 U.S.C. § 8101 et seq.

examiner did not properly apply the American Medical Association, Guides to the Evaluation of
Permanent Impairment. Appellant’s counsel contends that there remains an unresolved conflict
in the medical evidence and that the April 14, 2011 decision must be vacated and the matter
remanded for further development.
FACTUAL HISTORY
This case has been before this Board twice previously.2 The facts of the case as set forth
in the Board’s prior Order Remanding Case dated June 10, 2010 from its second appeal are
hereby incorporated into the facts of this case.3 The relevant facts are set forth below.
On February 24, 1994 appellant, then a 44-year-old maintenance technician, filed a
traumatic injury claim alleging that on that date while he was pushing down on a bar to move a
scissor lift onto a truck, he had a sharp pain in his upper left arm and his arm went numb.
OWCP accepted his claim for left shoulder strain and cervical disc syndrome and adhesive
capsulitis, left shoulder.
Appellant requested a schedule award. A conflict in medical opinion arose between
Dr. David Weiss, appellant’s treating osteopath, and Dr. Charles A. Lefebure, a Board-certified
orthopedic surgeon, regarding the extent and degree of any permanent impairment. On
October 2, 2006 OWCP issued a schedule award for 20 percent permanent impairment of the left
upper extremity. It based its opinion on the report of the impartial medical examiner,
Dr. Joseph A. Snead, a Board-certified orthopedic surgeon. However, in a decision dated
January 5, 2007, OWCP’s hearing representative determined that the impartial medical examiner
had not properly resolved the conflict in medical opinion and accordingly another impartial
medical examination was necessary.
On remand, OWCP further developed the medical evidence. This included referring
appellant to a new impartial medical examiner, Dr. Lucas J. Pavlovich, a Board-certified
orthopedic surgeon, and having OWCP’s medical adviser review and comment on this report. In
a decision dated May 12, 2008, OWCP issued a schedule award for 25 percent impairment of the
left upper extremity based on the opinion of the medical adviser. This decision was affirmed by
the hearing representative in a decision dated December 17, 2008.
In the June 10, 2010 order, this Board found that OWCP’s medical adviser exceeded his
role. The Board noted that the impairment ratings utilized by OWCP were based on the reports
of the medical adviser rather than those of the impartial medical specialist, Dr. Pavlovich. For
this reason, the Board found that the conflict in medical opinion remained unresolved and
remanded the case to OWCP for further development of the medical evidence.

2

In the first appeal, the Board issued a March 4, 2003 decision finding that OWCP did not abuse its discretion by
denying appellant’s request for reconsideration of his claim for a recurrence of disability. Docket No. 03-294
(issued March 4, 2003).
3

Docket No. 09-1465 (issued June 10, 2010).

2

Following the Board’s remand, OWCP referred appellant to Dr. Peter K. Thrush, a
Board-certified orthopedic surgeon, for an impartial medical examination. In a report dated
August 13, 2010, Dr. Thrush, after noting that he had previously evaluated appellant on April 19,
2000, opined that appellant had a 17 percent upper extremity impairment under the American
Medical Association, Guides to the Evaluation of Permanent Impairment (6th edition 2009)
(A.M.A., Guides), and was accordingly not entitled to a greater schedule award. OWCP referred
appellant’s case to the medical adviser, Dr. Christopher R. Brigham, a Board-certified
physiatrist. In a report dated September 29, 2010, Dr. Brigham opined that appellant had a 15
percent left upper extremity impairment and that the current impairment did not exceed the
amount previously awarded. In addition, appellant’s treating osteopath, Dr. Weiss, updated his
August 23, 2004 evaluation on February 11, 2011 to apply the sixth edition of the A.M.A.,
Guides, and concluded that appellant had a 29 percent impairment of the left upper extremity.
In a decision dated October 1, 2010, OWCP denied appellant’s claim for an additional
schedule award. Appellant requested a hearing and the hearing was held on February 15, 2011.
In a decision dated April 14, 2011, an OWCP hearing representative affirmed the October 1,
2010 OWCP decision. In both OWCP’s decision of October 1, 2010 and in the decision of
OWCP’s hearing representative dated April 14, 2011, OWCP treated Dr. Thrush as a second
opinion physician and not as an impartial medical examiner as he previously evaluated
appellant.4 However, OWCP determined that the opinions of Dr. Thrush and Dr. Brigham, as
Board-certified physicians, were of more probative value than those of appellant’s treating
physician, Dr. Weiss, as he was not Board certified. It further noted that the reports of
Drs. Thrush and Brigham were based on more current medical examinations than those of
Dr. Weiss.
LEGAL PRECEDENT
A claim for an increased schedule award may be based on new exposure.5 Absent any
new exposure to employment factors, a claim for an increased schedule award may be based on
medical evidence indicating that the progression of an employment-related condition has resulted
in a greater permanent impairment than previously calculated.6
In determining entitlement to a schedule award, preexisting impairment to the schedule
member should be included.7 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

4

Dr. Thrush could not serve as impartial medical examiner as Board precedent does not allow a physician
previously connected with the claim to serve as an impartial medical examiner. R.G., Docket No. 11-79 (issued
September 9, 2011).
5

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

6

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

7

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

3

previous work-related injury, in which case the percentage already paid is subtracted from the
total percentage of impairment.8
The schedule award provision of FECA and its implementing regulations9 set forth the
number of weeks of compensation payable to employee sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.10 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.11 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.12
ANALYSIS
When OWCP referred appellant’s case to its medical adviser, Dr. Brigham, there was an
unresolved conflict between Dr. Weiss, appellant’s treating physician, and Dr. Lefebure, a
second opinion physician, as to the extent and degree of appellant’s impairment to his left upper
extremity under the sixth edition of the A.M.A., Guides as found by the Board on prior appeal.
On remand, although OWCP referred appellant to Dr. Thrush to resolve the conflict, the doctor
himself noted that he had previously examined appellant and thus could not serve as an impartial
medical examiner,13 but upon conducting the evaluation was properly referred to by OWCP as a
second opinion physician.
OWCP asked Dr. Brigham to review appellant’s file in his capacity as an OWCP medical
adviser. Following this review, however, it improperly found that no conflict in medical opinion
was ever created and afforded the weight of the medical evidence to Drs. Brigham’s and
Thrush’s opinions that appellant was not entitled to an increased schedule award.
If there is disagreement between the physician making the examination for the United
States and the physician of the employee, OWCP shall appoint a third physician who shall make
an examination.14 Although OWCP’s medical adviser may review an opinion of a second
8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.7(a)(2) (January 2010).
9

20 C.F.R. § 10.404.

10

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

11

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

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
13

Supra note 3.

14

K.C., Docket No. 11-172 (issued September 29, 2011).

4

opinion physician or an impartial medical examiner, the resolution of the conflict is solely the
responsibility of the impartial medical examiner.15 The Board finds that OWCP’s hearing
representative improperly concluded that no conflict in medical evidence existed regarding the
extent and degree of appellant’s permanent impairment. As noted above, this finding was
contrary to that of this Board’s on prior appeal. Further, as Dr. Thrush had previously examined
appellant, he was properly referred to as a second opinion physician and not as an impartial
medical examiner. As such, OWCP did not refer appellant for an impartial medical examination.
The Board finds, therefore, that the conflict in medical opinion remains unresolved. The case
will be remanded to OWCP for referral of appellant to an impartial medical examination
pursuant to 5 U.S.C. § 8123(a). Following this and any necessary further development of the
medical evidence, OWCP shall issue an appropriate decision regarding appellant’s claim for an
increased schedule award.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated April 14, 2011 is set aside and the case is remanded for further
action consistent with this decision of the Board.
Issued: June 12, 2012
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board
15

K.P., Docket No. 11-1012 (issued January 13, 2012).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.L., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Kahului, HI, Employer
__________________________________________

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

Docket No. 21-0224
Issued: February 22, 2022

Case Submitted on the Record

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

JURISDICTION
On December 1, 2020 appellant filed a timely appeal from an October 26, 2020 merit
decision of the Office of Workers’ Compensation Programs (OWCP). 1 Pursuant to the Federal
Employees’ Compensation Act2 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction
over the merits of this case. 3

1

To the extent that appellant’s appeal may be construed as a timely petition for reconsideration of the Board’s
July 7, 2020 Order Remanding Case in Docket No. 19-1397, the Board notes that its order became final upon the
expiration of 30 days from the date of issuance. See 20 C.F.R. § 501.6(d). Further, as appellant did not file her
disagreement with the Board’s July 7, 2020 order until December 1, 2020, this submission may not be deemed as a
timely petition for reconsideration as it was filed in excess of 30 days from the date of issuance of the Board’s order.
See id. at § 501.7(a). Thus, the petition for reconsideration of the July 7, 2020 Board order must be dismissed as
untimely filed.
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the October 26, 2020 decision, OWCP received additional evidence. However,
the Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record
that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the
Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this
additional evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to expand the acceptance of her
claim to include additional conditions as a consequence of her accepted June 29, 2016 employment
injury.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances set forth in
the Board’s prior order are incorporated herein by reference. The relevant facts are as follows.
On June 29, 2016 appellant, then a 43-year-old transportation security officer, filed a
traumatic injury claim (Form CA-1) alleging that, on that date, she injured her left upper and lower
extremities when she fell down stairs while in the performance of duty. OWCP accepted the claim
for strain of the fascia and tendon of the posterior muscle group of the left thigh, left hip contusion,
left shoulder contusion, and strain of the fascia and tendon at the shoulder and upper arm level of
the left arm. It paid appellant wage-loss compensation on the supplemental rolls commencing
August 14, 2016 and on the periodic rolls commencing January 8, 2017.
On December 12, 2016 OWCP prepared a statement of accepted facts (SOAF) and referred
appellant for a second opinion examination with Dr. Richard Y. Kimura, a Board-certified
orthopedic surgeon, to assess her employment-related conditions and disability status. In a report
dated February 1, 2017, Dr. Kimura reviewed her history of injury and medical treatment. He
noted appellant’s current physical examination findings and found that the magnetic resonance
imaging (MRI) scan of her left shoulder revealed degenerative changes of the glenohumeral joint
and acromioclavicular joint and partial tears in the subscapularis supraspinatus, and infraspinatus.
Dr. Kimura opined that the partial tears of the rotator cuff and the calcific tendinitis in her left
shoulder could have been caused by her fall. He diagnosed cervical strain, which was
superimposed on prior degenerative disc disease and stenosis, and which he explained was
probably strained by the bump during her fall. Dr. Kimura also diagnosed bilateral carpal tunnel
syndrome and explained that, while appellant had right wrist symptoms prior to the fall, she did
not have left carpal tunnel symptoms until after the fall; therefore, her left carpal tunnel syndrome
could also have been precipitated by the fall. He opined that she was disabled from her date-ofinjury position.
By letter dated March 2, 2017, OWCP requested that Dr. Kimura clarify his February 1,
2017 report, to provide definitive evidence establishing that appellant’s cervical strain, carpal
tunnel syndrome, and partial rotator cuff tears were caused by her fall on June 29, 2016.
In a supplemental report dated March 31, 2017, Dr. Kimura explained, with regard to the
diagnoses of partial rotator cuff tears, that “in cases like this you cannot show definitive evidence
to show that these problems were caused by the injury you can only go by the presence of
symptoms which occurred after the injury.” With regard to appellant’s cervical strain, aggravation
of her preexisting cervical conditions, and left carpal tunnel syndrome, he provided a similar
response, noting that she had a positive nerve conduction velocity test, which was an objective
finding, and that the time relationship of the injury to the subsequent symptoms would lead to these
diagnoses. Dr. Kimura also noted that, aggravation of her preexisting cervical conditions should
4

Order Remanding Case, Docket No. 19-1397 (issued July 7, 2020).

2

have healed in approximately 8 to 10 months, however, she had not returned to her preexisting
baseline condition. He explained that appellant’s current medical restrictions were due to the fall
of June 29, 2016.
Appellant returned to modified-duty work effective March 27, 2017. As of April 16, 2017,
she claimed compensation for or intermittent disability from work. Appellant returned to work at
four hours per day as of June 26, 2017, claiming compensation for four hours per day for disability
from work. OWCP paid her compensation on the supplemental rolls for the claimed four hours
per day.
As of March 23, 2018, appellant continued to claim compensation for total disability from
work through March 2, 2019. OWCP continued to pay her compensation on the supplemental
rolls for four hours per day, pending development of her claim for the four h ours remaining on
each claimed date.
By letter dated March 19, 2018, Dr. Diane Nagasaka, a family practitioner, requested that
the acceptance of appellant’s claim be expanded to include the additional conditions of chronic
neck pain and cervical spondylosis without myelopathy. She indicated that recent diagnostics
demonstrated severe changes from appellant’s traumatic fall at work on June 29, 2016. Appellant
continued to treat with Dr. Nagasaka through 2018 and 2019.
By letter dated April 26, 2018, Dr. Jon F. Graham, a neurosurgeon, requested that the
acceptance of appellant’s traumatic injury claim be expanded to include diagnoses of cervical
radiculopathy and cervical spondylosis without myelopathy or radiculopathy.
On August 30, 2018 Dr. Nagasaka requested authorization for cervical surgery.
By letter dated December 24, 2018, Dr. Nagasaka stated, “It is evident that left arm
symptoms were present at initial visit a cervical neck complaint. May not be addressed because
the pain from other areas may be focused on the cervical osteophytes preceded the injury, but the
chronicity bulge cannot be determined and may have been caused by [appellant’s] fall.” She
advised that appellant’s condition warranted surgery.
On January 9, 2019 OWCP forwarded the case record, along with a SOAF, to Dr. Todd
Fellars, a Board-certified orthopedic surgeon serving as district medical adviser (DMA), to
determine whether appellant’s cervical condition arose as a consequence of the accepted workrelated injury and whether it had caused total disability since March 2018. It requested that he
review specific reports from Dr. Nagasaka.
In a report dated January 15, 2019, Dr. Fellars reviewed the SOAF and the case record. He
opined that it was medically probable that the work event did not cause appellant’s radicular
symptoms, but that she simply had a progression of her degenerative condition as her July 2016
MRI scan of the cervical spine showed degenerative disc disease and multiple levels of diffuse
degenerative change, with no acute findings. Dr. Fellars further opined that her radicular
symptoms and findings of degenerative disc disease were not related to the work in jury, as these
conditions likely preexisted her fall.
By decision dated March 18, 2019, OWCP denied expansion of the acceptance of
appellant’s claim to include cervical herniated disc, incomplete tear of the rotator cuff, numbness
of the upper extremity, and bilateral spondylosis of the cervical spine with myelopathy.
3

Consequently, it also denied her claim for total disability from work for the period March 23, 2018
through March 2, 2019, as well as her request for authorization for surgery, as they were based
upon the denied conditions. OWCP based its decision on the January 15, 2019 report of
Dr. Fellars.
On June 11, 2019 appellant appealed the March 18, 2019 decision of OWCP to the Board.
By order dated July 7, 2020, the Board set aside the March 18, 2019 decision and remanded the
case for further development with regard to the issues of expansion, disability, and denial of
surgical authorization. 5 The Board noted that Dr. Fellars’ January 15, 2019 report contained no
reference to previous medical development on the part of OWCP and that he had not been asked
to review the second opinion reports of Dr. Kimura dated February 1 and March 31, 2017, despite
the fact that Dr. Kimura had in general, but insufficiently rationalized terms, supported that
appellant’s cervical conditions, including cervical strain and aggravation of her preexisting
cervical conditions, left shoulder conditions including partial rotator cuff tear, and left carpal
tunnel syndrome were causally related to her accepted June 29, 2016 employment injury.
On remand, OWCP requested that Dr. Fellars review the February 1 and March 31, 2017
reports of Dr. Kimura and provide an opinion as to the relationship between appellant’s accepted
work-related injury of June 29, 2016 and any additional work-related conditions. It further
requested that Dr. Fellars provide an opinion as to whether, if a cervical condition had arisen as a
consequence of the accepted work-related injury, it were of such a degree to create total disability
since March 23, 2018.
In a report dated September 15, 2020, Dr. Fellars reviewed the SOAF and the case record,
including the second opinion reports of Dr. Kimura. He noted that he had reviewed appellant’s
treating physician’s opinion that appellant had developed cervical radiculopathy as a consequence
of appellant’s accepted work-related injury, and opined that the factual basis of medical records,
including the reports of Dr. Kimura, did not support this. Dr. Fellars observed that Dr. Kimura’s
examination demonstrated that appellant did not have radicular symptoms, but had a neck strain.
He opined that, as there was no evidence that she developed cervical radiculopathy as a
consequence of her work-related injury, the question regarding disability as a result of such a
cervical condition was not applicable.
OWCP again requested clarification from Dr. Fellars on October 8, 2020. It noted that
Dr. Kimura had diagnosed consequential injuries of the left shoulder including partial rotator cuff
tear and left carpal tunnel syndrome as a result of the accepted June 29, 2016 work-related injury.
OWCP requested that he provide an opinion regarding the relationship between the work injury
and the additional left upper extremity conditions.
In a supplemental report dated October 23, 2020, Dr. Fellars noted that, previously, he had
opined that there was no evidence of work-related cervical radiculopathy, but that he did not
comment as to whether carpal tunnel syndrome or rotator cuff tear were likely related to the work
injury of June 29, 2016. He noted that carpal tunnel syndrome was not typically caused by this
type of event, but that a left rotator cuff tear certainly is caused by this kind of event. Dr. Fellars
opined that appellant likely had a permanent aggravation of her preexisting degenerative partial
thickness rotator cuff tear as a result of the accepted work-related injury. He further opined that

5

Id.

4

her carpal tunnel syndrome was not a work-related condition, as it was bilateral, whereas her injury
was to her left side, and as such, it would not be consistent with the facts of the case.
By decision dated October 26, 2020, OWCP expanded the acceptance of appellant’s claim
to include the condition of aggravation of incomplete rotator cuff tear or rupture of the left
shoulder.
By separate decision of even date, OWCP denied expansion of the acceptance of
appellant’s claim to include cervical conditions, left carpal tunnel syndrome, numbness of the
upper extremity, and bilateral spondylosis of the cervical spine with myelopathy.
LEGAL PRECEDENT
When an employee claims that, a condition not accepted or approved by OWCP was due
to an employment injury, he or she bears the burden of proof to establish that the condition is
causally related to the employment injury.6
Causal relationship is a medical question that requires rationalized medical opinion
evidence to resolve the issue. 7 A physician’s opinion on whether there is causal relationship
between the diagnosed condition and an accepted injury must be based on a complete factual and
medical background. 8 Additionally, the physician’s opinion must be expressed in terms of a
reasonable degree of medical certainty and must be supported by medical rationale which, explains
the nature of the relationship between the diagnosed condition and the accepted employment
injury.9
ANALYSIS
The Board finds that appellant has not met her burden of proof to expand the acceptance
of her claim to include additional conditions as a consequence of her accepted June 29, 2016
employment injury.
On remand, OWCP properly requested that Dr. Fellars, serving as a DMA, review and
comment as to the second opinion reports of Dr. Kimura dated February 1 and March 31, 2017, in
which Dr. Kimura opined that appellant’s cervical conditions and left carpal tunnel syndrome
could have been precipitated by the accepted work injury of June 29, 2016.
In a report dated September 15, 2020, Dr. Fellars noted that he had reviewed appellant’s
treating provider’s opinion that appellant had developed cervical radiculopathy as a consequence
of appellant’s accepted work-related injury, and opined that the factual basis of medical records,
including the reports of Dr. Kimura, did not support this, as Dr. Kimura’s examination
demonstrated that she did not have radicular symptoms.

6

A.A., Docket No. 19-1165 (issued December 16, 2019); M.B., Docket No. 19-0485 (issued August 22, 2019); R.J.,
Docket No. 17-1365 (issued May 8, 2019); Jaja K. Asaramo, 55 ECAB 200 (2004).
7

E.M., Docket No. 18-1599 (issued March 7, 2019); Robert G. Morris, 48 ECAB 238 (1996).

8

M.V., Docket No. 18-0884 (issued December 28, 2018); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

9

Id.

5

In a supplemental report dated October 23, 2020, Dr. Fellars noted that a left rotator cuff
tear certainly is caused by this kind of event. He opined that carpal tunnel syndrome was not
typically caused by this type of event, and that appellant’s carpal tunnel syndrome was not a workrelated condition, as it was bilateral, whereas her injury was to her left side, and as such, it would
not be consistent with the facts of the case. The Board finds that the September 15 and October 23,
2020 reports of Dr. Fellars are well-rationalized, representing a complete review of the relevant
medical evidence of record, and constitute the weight of the medical evidence in this case. 10
In March 19 and December 24, 2018 letters, Dr. Nagasaka did not offer any rationale as to
how diagnosed conditions were related to the work injury of June 29, 2016. The March 19, 2018
letter merely stated that chronic neck pain and cervical spondylosis without myelopathy were
related to the June 29, 2016 work injury without elaboration. The December 24, 2018 letter
contained qualifying language such as “may,” indicating that the opinion was speculative in nature.
The Board has held that reports which lack rationale are insufficient to meet appellant’s burden of
proof to establish a claim. 11 The Board has also held that, while the opinion of a physician
supporting causal relationship need not be one of absolute medical certainty, it must not be
speculative or equivocal. The opinion should be expressed in terms of a reasonable degree of
medical certainty. 12 As such, these letters are insufficient to establish that the acceptance of
appellant’s claim should be expanded to include the requested additional conditions.
The remainder of the medical evidence from Drs. Nagasaka and Graham did not include
any opinion as to whether these conditions are related to the accepted work injury of June 29, 2016.
Medical evidence that does not offer an opinion regarding the cause of an employee’s condition is
of no probative value on the issue of causal relationship. 13 As such, the remainder of the medical
evidence from Drs Nagasaka and Graham is insufficient to establish that the acceptance of
appellant’s claim should be expanded to include the requested additional conditions.
As appellant has not submitted rationalized medical evidence establishing that the
acceptance of her claim should be expanded to include left carpal tunnel syndrome, numbness of
the upper extremity, and additional cervical conditions, including bilateral spondylosis of the
cervical spine with myelopathy as causally related to the accepted June 29, 2016 employment
injury, the Board finds that she has not met her burden of proof.
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.

10

See R.J., Docket No. 17-1365 (issued May 8, 2019).

11

See K.T., Docket No. 17-1717 (issued March 27, 2018).

12

L.S., Docket No. 18-1494 (issued April 12, 2019); Ricky S. Storms, 52 ECAB 349 (2001).

13

See J.H., Docket No. 19-0838 (issued October 1, 2019); S.G., Docket No. 19-0041 (issued May 2, 2019); L.B.,
Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

6

CONCLUSION
The Board finds that appellant has not met her burden of proof to expand the acceptance
of her claim to include additional conditions as a consequence of her accepted June 29, 2016
employment injury.
ORDER
IT IS HEREBY ORDERED THAT the October 26, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 22, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.Y., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Coppell, TX, Employer
__________________________________________

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Appearances:
Michael Frye, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 09-2214
Issued: May 13, 2010

Case Submitted on the Record

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

JURISDICTION
On August 24, 2009 appellant filed a timely appeal from the February 27, 2009 merit
decision of the Office of Workers’ Compensation Programs denying her claim for periods of
disability. Pursuant to 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
total disability for various periods between August 2007 and March 2008 due to her March 14,
2007 employment injury.
FACTUAL HISTORY
The Office accepted that on March 14, 2007 appellant, then a 35-year-old mail handler,
sustained a right ankle sprain while performing her work duties.1 Appellant did not stop work at
1

Diagnostic testing from March 2007 did not show any fracture of the right foot.

the time of her injury. She began working in limited-duty positions for the employing
establishment. In May 2007, appellant began working in a position which required her to
intermittently lift up to 40 pounds for eight hours per day, stand for one hour per day, walk for
one hour per day and bend/stoop for one hour per day.
Appellant periodically stopped work and filed claims alleging she sustained disability for
certain periods between August 2007 and March 2008 due to her March 14, 2007 employment
injury.2
In support of her claims, appellant submitted medical documents, including brief
disability certificates and work restriction reports completed by Dr. Louis D. Zegarelli, an
attending osteopath and Board-certified family practitioner. The disability certificates indicated
that appellant was “medically incapacitated” from work or “medically unable” to work for
various periods.3 The periods of disability included August 5, 16, 26 to 27, 29 to 30,
September 5, 9, 12 to 18, 25 to 26, October 7, 15 to 16, 18 and November 9, 2007 to
April 30, 2008.
Dr. Zegarelli listed the date of injury as March 14, 2007, listed the diagnosed condition
due to injury as right foot or ankle sprain and indicated that the listed restrictions were
necessitated by the work injury. In an August 30, 2007 work restrictions form, Dr. Zegarelli
advised that appellant could only intermittently lift, push or pull up to 40 pounds for eight hours
a day and could only stand for one hour a day, walk for one hour a day and bend/stoop for one
hour a day. He stated that appellant could not walk up stairs. Dr. Zegarelli produced similar
work restrictions reports on September 25, October 25 and December 13, 2007, again generally
noting that appellant could only lift up to 10 pounds.4
Dr. Zegarelli provided some findings on physical examination. In a September 28, 2007
report, he noted that appellant complained of significant pain in her right ankle and foot.
Dr. Zegarelli stated that there did not appear to be significant swelling in her right ankle and foot
and noted that she was neurologically intact. He diagnosed chronic mechanical pain/dysfunction
of the right foot and ankle, right lower extremity paresthesias and calcaneal bone spur.
Dr. Zegarelli produced similar reports from examination every month or so.
In November 2007 appellant began to wear a controlled ankle motion boot on her right
foot based on the recommendation of an orthopedic specialist. On November 9, 2007
Dr. Zegarelli stated that appellant was placed off work as it was his understanding that she would
not be able to work while wearing this type of boot. In a December 20, 2007 letter, the president
of appellant’s union stated that on December 14, 2007 management sent appellant home from
2

Appellant filed Forms CA-7 alleging disability for the periods August 5 to October 18, 2007, November 11
to 29, 2007, December 2, 2007 to January 8, 2008 and January 6 to March 28, 2008.
3

In some of the reports, Dr. Zegarelli indicated that the disability was due to a “work injury.”

4

Dr. Zegarelli also produced Forms CA-20 (attending physician reports) in which he listed the date of injury as
March 14, 2007, listed the diagnosed condition due to injury as right foot or ankle sprain and indicated that the work
injury caused various periods of disability. The listed periods of disability generally corresponded to the periods
listed in the disability certificates he produced.

2

work because she was wearing a controlled ankle motion boot on her right foot. He indicated
that this type of footwear was not permitted because it had an open toe. In a January 30, 2008
report, Dr. Zegarelli advised that appellant was sent home from the workplace because she was
wearing a controlled ankle motion boot. He indicated that appellant would remain disabled until
the employing establishment changed its policy.
In an April 15, 2008 decision, the Office denied appellant’s claims for intermittent
disability on the grounds that she did not submit sufficient medical evidence to establish
disability between August 2007 and March 2008 due to her March 14, 2007 employment injury.
In a January 29, 2009 letter, a nurse case manager at the employing establishment stated
that appellant was not permitted to work on December 14, 2007 because she was wearing a
controlled ankle motion boot. The employing establishment was now able to provide appellant
with modified work which allowed her to wear the boot.5 Dr. Zegarelli provided disability
certificates and reports from examination findings which found that appellant remained disabled
due to her March 14, 2007 employment injury. In a May 12, 2008 report, he advised that
appellant needed to continue wearing her controlled ankle motion boot to maintain stability of
the right ankle.
Appellant requested reconsideration of her claim arguing that she had residuals of her
March 14, 2007 work injury which caused disability. She stated that the injury required her to
wear a controlled ankle motion boot which caused management to send her home from work.
In a February 27, 2009 decision, the Office affirmed its April 15, 2008 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act6 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 the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained 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 employment injury.7 The medical
evidence required to establish a causal relationship between a claimed period of disability and an
employment injury is rationalized medical opinion evidence. Rationalized medical opinion
evidence is medical evidence which includes a physician’s rationalized opinion on the issue of
whether there is a causal relationship between the claimant’s diagnosed condition and the
compensable employment factors. The opinion of the physician must be based on a complete
factual and medical background of the claimant, must be one of reasonable medical certainty,

5

In a July 15, 2008 letter, the chief representative of appellant’s union asserted that on December 14, 2007
management sent appellant home from work because she was wearing a controlled ankle motion boot on her right
foot.
6

5 U.S.C. §§ 8101-8193.

7

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

3

and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.8
ANALYSIS
The Office accepted that on March 14, 2007 appellant sustained a right ankle sprain
while performing her work duties. Appellant did not stop work at the time of her injury, but
began working in limited-duty positions for the employing establishment.9 She intermittently
stopped work and filed claims alleging disability between August 2007 and March 2008 due to
her accepted employment injury.
The Board finds that appellant did not submit sufficient medical evidence to establish that
her disability between August 2007 and March 2008 was due to her March 14, 2007 employment
injury.
Appellant submitted disability certificates and work restriction reports from Dr. Zegarelli,
an attending osteopath and Board-certified family practitioner, who indicated that appellant was
“medically incapacitated” from work or “medically unable” to work for various periods
beginning in August 2007.10 This evidence does not establish appellant’s claim of total disability
for periods between August 2007 and March 2008 because Dr. Zegarelli did not provide
adequate medical rationale addressing how her disability related to the accepted injury.
Dr. Zegarelli did not describe the March 14, 2007 employment injury in any detail or explain
how such a right ankle sprain caused or contributed to her disability for the periods claimed.
The documentation submitted by Dr. Zegarelli in August 2007 listed the date of injury as
March 14, 2007, listed the diagnosed condition due to injury as right foot or ankle sprain and
advised that restrictions were necessitated by the work injury. Dr. Zegarelli listed that appellant
could lift up to 10 pounds. These reports are of limited probative value because Dr. Zegarelli did
not provide sufficient explanation of how the work restrictions were necessitated by the
March 14, 2007 employment injury.
In attending physician reports, Forms CA-20, Dr. Zegarelli listed the date of injury as
March 14, 2007, listed the diagnosed condition as right foot or ankle sprain and that the work
injury caused various periods of disability. He listed periods of disability in the disability
certificates he produced. However, Dr. Zegarelli failed to provide medical rationale explaining
how the listed periods of disability were work related. He submitted some findings on
examination. These reports note that appellant reported pain to her right ankle and foot but
provide limited findings. For example, Dr. Zegarelli generally noted that there was no
significant swelling to appellant’s right ankle and foot and that she was neurologically intact.

8

See Donna Faye Cardwell, 41 ECAB 730, 741-42 (1990).

9

In May 2007 appellant began working in a position which required her to intermittently lift up to 40 pounds for
eight hours per day, stand for one hour per day, walk for one hour per day and bend/stoop for one hour per day.
10

In some of the reports, Dr. Zegarelli indicated that the disability was due to a “work injury.”

4

When the reports advised that appellant became disabled due to her March 14, 2007 employment
injury, Dr. Zegarelli failed to discuss the specific findings giving rise to this determination.
The record indicates that on December 14, 2007 management sent appellant home from
work because she wore a controlled ankle motion boot on her right foot. In several reports,
Dr. Zegarelli indicated that this circumstance caused appellant to be disabled from work.
However, he did not provide a rationalized medical opinion explaining how residuals of the
March 14, 2007 employment injury necessitated that appellant wear this type of boot.
For these reasons, appellant has not established that she sustained intermittent disability
between August 2007 and March 2008 due to her March 14, 2007 employment injury.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained intermittent total disability between August 2007 and March 2008 due to her
March 14, 2007 employment injury.
ORDER
IT IS HEREBY ORDERED THAT the February 27, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: May 13, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
I.J, Appellant
and
DEPARTMENT OF THE ARMY, U.S. CORPS
OF ENGINEERS, Memphis, TN, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket Nos. 21-0467 &
20-0812
Issued: March 24, 2022

Case Submitted on the Record

ORDER DISMISSING APPEAL IN DOCKET NO. 21-0467 AND
DISMISSING PETITION FOR RECONSIDERATION
IN DOCKET NO. 20-0812
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

On February 4, 2021 appellant sought an appeal from a purported October 19, 2020
decision of the Office of Workers’ Compensation Programs. The Clerk of the Appellate Boards
assigned Docket No. 21-0467.
The Board has duly considered the matter and notes that its jurisdiction is limited to the
review of final adverse OWCP decisions issued under the Federal Employees’ Compensation Act
(FECA).1 This jurisdiction encompasses any final decision issued by OWCP within 180 days of
the date appellant filed his appeal. 2 As of the filing of the current appeal, the most recent OWCP
decision was dated February 11, 2020. However, by an October 19, 2020 decision in Docket No.
20-0812, the Board affirmed OWCP’s February 11, 2020 decision, finding that OWCP properly
denied appellant’s request for reconsideration as it was untimely filed and failed to demonstrate

1

5 U.S.C. § 8149; 20 C.F.R. §§ 501.2(c) and 501.3(a).

20 C.F.R. § 501.3(e) provides in pertinent part: “Any notice of appeal must be filed within 180 days from the
date of issuance of a decision of the OWCP.”
2

clear evidence of error.3 As there is no final adverse decision issued by OWCP within 180 days
of the filing of this appeal4 over which the Board may properly exercise jurisdiction, the Board
concludes that the appeal docketed as No. 21-0467 must be dismissed.
To the extent that appellant’s February 4, 2021 appeal may be construed as a timely petition
for reconsideration of the Board’s October 19, 2020 decision in Docket No. 20-0812, the Board
notes that its decision became final upon the expiration of 30 days from the date of issuance. 5
Further, as appellant did not file his disagreement with the Board’s October 19, 2020 decision until
February 4, 2021, this submission may not be deemed as a timely petition for reconsideration as it
was filed in excess of 30 days from the date of issuance. 6 Thus, the petition for reconsideration of
the October 19, 2020 Board decision must be dismissed as untimely filed. Accordingly,
IT IS HEREBY ORDERED THAT the appeal docketed as No. 21-0467 is dismissed.
IT IS FURTHER ORDERED THAT the petition for reconsideration in Docket No.
20-0812 is dismissed as untimely filed. 7

3

Docket No. 20-0812 (issued October 19, 2020).

4

Supra note 2.

5

20 C.F.R. § 501.6(d).

6

See id. at § 501.7(a).

The Board’s decisions and orders are “final upon the expiration of 30 days from the date of their issuance.”
20 C.F.R. § 501.6(d).
7

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Issued: March 24, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.V., Appellant
and
DEPARTMENT OF THE NAVY, FLEET
READINESS CENTER SOUTHWEST,
San Diego, CA, Employer
__________________________________________

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

Docket No. 10-1321
Issued: February 7, 2011

Case Submitted on the Record

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

JURISDICTION
On April 12, 2010 appellant filed a timely appeal from a February 17, 2010 merit
decision of the Office of Workers’ Compensation Programs that denied his claim. Pursuant to 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 his burden of proof to establish that he has an
employment-related noise-induced hearing loss.
On appeal, appellant asserts that he attended a scheduled appointment on
February 16, 2010.
FACTUAL HISTORY
On November 3, 2009 appellant, then a 65-year-old aircraft machinist, filed an
occupational disease claim alleging that noise levels at work caused a hearing loss. He was first
aware of his condition on August 19, 1992 and its relationship to his employment on

September 28, 1995. The employing establishment advised that appellant was still working and
exposed to noise. Appellant submitted employing establishment audiograms dated April 13,
1984 to March 30, 2006 and the employer submitted noise exposure information.
The Office accepted that appellant had normal hearing when he began federal
employment and had occupational noise exposure at levels above 85 decibels commencing in
1984. By letters dated November 30, 2009, appellant was informed that appointments had been
made with Dr. Theodore Mazer, a Board-certified otolaryngologist, on December 18, 2009, at
10:00 a.m. for hearing testing and at 11:00 a.m. with him. Before the scheduled appointments,
he called Dr. Mazer’s office to cancel because he would be traveling to Florida on
December 18, 2009. The appointments were cancelled, and appellant was informed that the
appointments were rescheduled for January 19, 2010 at 10:00 a.m. and 11:00 a.m. respectively.
The record next indicates that the appointments were rescheduled to February 16, 2010.
On February 17, 2010 QTC Medical Services, Inc., the medical appointment scheduler,
informed the Office that appellant had not appeared for the appointments scheduled on
February 16, 2010.
By decision dated February 17, 2010, the Office denied appellant’s claim. It noted that
the initial appointments of November 19, 2009 were rescheduled for January 19, 2010 but, a
scheduling mix-up occurred. Although appellant appeared for the appointments, the audiologist
could not see him; and he was rescheduled for February 16, 2010 but did not appear for the
appointments that day. Because appellant did not appear for the February 16, 2010
appointments, the Office was unable to determine if his claimed hearing loss was caused by
employment factors, because the medical evidence did not contain a physician’s opinion
establishing causal relationship.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 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 the Act, that the claim
was timely filed within the applicable time limitation period of the Act, that an injury was
sustained 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 employment injury. Regardless of
whether the asserted claim involves traumatic injury or occupational disease, an employee must
satisfy this burden of proof.2
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit the following: (1) medical evidence establishing the
presence or existence of the disease or condition for which compensation is claimed; (2) a factual
statement identifying employment factors alleged to have caused or contributed to the presence
or occurrence of the disease or condition; and (3) medical evidence establishing that the
1

5 U.S.C. §§ 8101-8193.

2

Gary J. Watling, 52 ECAB 278 (2001).

2

diagnosed condition is causally related to the employment factors identified by the claimant.
The medical opinion 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.3
An employee shall submit to examination by a medical officer of the United States, or by
a physician designated or approved by the Secretary of Labor, after the injury and as frequently
and at the times and places as may be reasonably required.4 If an employee refuses to submit to
or obstructs an examination, his or her right to compensation is suspended until the refusal or
obstruction stops. Compensation is not payable while a refusal or obstruction continues and the
period of the refusal or obstruction is deducted from the period for which compensation is
payable to the employee.5
To invoke this provision of the law, the Office must ensure that the claimant has been
properly notified of his or her responsibilities with respect to the medical examination scheduled.
Either the claims examiner or the medical management scheduling assistant may contact the
physician directly and make an appointment for examination. The claimant and representative, if
any, must be notified in writing of the name and address of the physician to whom he or she is
being referred as well as the date and time of the appointment. The notification of the
appointment must contain a warning that benefits may be suspended under 5 U.S.C. § 8123(d)
for failure to report for examination. The claimant must have a chance to present any objections
to the Office’s choice of physician, or any reasons for failure to appear for the examination,
before the Office acts to suspend compensation.6
If the claimant does not report for a scheduled appointment, he or she should be asked in
writing to provide an explanation within 14 days.7 If good cause is not established, entitlement
to compensation should be suspended in accordance with section 8123(d) of the Act until the
date on which the claimant agrees to attend the examination. Such agreement may be expressed
in writing or by telephone, as documented on an Office (Form CA-110). When the claimant
actually reports for examination, payment retroactive to the date on which the claimant agreed to
attend the examination may be made. The claimant’s statement that he or she will not appear for
an examination is not sufficient to invoke the penalty. Refusal to schedule an examination at the
direction of the Office is also insufficient to invoke section 8123(d).8 The action of the
employee’s representative is considered the action of the employee for the purpose of

3

Solomon Polen, 51 ECAB 341 (2000).

4

5 U.S.C. § 8123(a); 20 C.F.R. § 10.320.

5

Id. at § 8123(d); Id. at § 10.323.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence, Chapter
2.810.14 (July 2000).
7

E.B., 59 ECAB 298 (2008).

8

Id.

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determining whether the employee refused to submit to or in any way obstructed an examination
required by the Office.9
ANALYSIS
The Board finds that this case is not in posture for decision. As noted, the Office has
developed procedures for processing hearing loss claims, noting that they require a specialized
medical opinion before adjudication.10 Appellant was initially referred for audiological testing
and to Dr. Mazur on December 18 2009. When notified of the appointments, he immediately
called to reschedule because he would be traveling. The appointments were rescheduled for
January 19, 2010. Appellant appeared on January 19, 2010, but due to a scheduling mix-up,
audiological testing could not be performed that day. The appointments were then rescheduled
for February 16, 2010 and, contrary to his assertion on appeal, the record indicates that he did not
appear for these appointments.
When a claimant fails to appear for a scheduled appointment, the principles of section
8123 of the Act are applicable.11 While the Act and the Office’s regulations provide that a
claimant must submit to examination by a qualified physician as often and at such time and
places as the Office considers reasonably necessary,12 the Board has held that if the claimant
does not report for a schedule appointment, he or she should be asked in writing to provide an
explanation within 14 days.13 In this case, one day after appellant did not show for the scheduled
February 16, 2010 appointment, the Office denied his claim. He was not given an opportunity to
explain why he did not appear for the scheduled evaluation of his hearing. The Office did not
properly adjudicate this case. Upon remand, it shall ask appellant to provide an explanation in
writing within 14 days as to why he did not attend the appointments scheduled for
February 16, 2010. After such further development as it deems necessary, it should issue an
appropriate decision.14
CONCLUSION
The Board finds that this case is not in posture for decision regarding whether appellant
established that he sustained a hearing loss causally related to his federal employment.

9

20 C.F.R. § 10.323.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Evidence Needed, Chapter 2.805.3 (July 2000), Part 3 -Medical, Specific Conditions, Chapter 3.600.8 (September 1995).
11

5 U.S.C. § 8123.

12

Supra note 9.

13

E.B., supra note 7.

14

The Board notes that appellant submitted medical evidence with his appeal to the Board. The Board cannot
consider this evidence as its review of the case is limited to the evidence that was before the Office at the time it
rendered its final decision. 20 C.F.R. § 501.2(c)(1); M.B., 60 ECAB ___ (Docket No. 09-176, issued
September 23, 2009).

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ORDER
IT IS HEREBY ORDERED THAT the February 17, 2010 decision of the Office of
Workers’ Compensation Programs be set aside. The case is remanded to the Office for
proceedings consistent with this opinion of the Board.
Issued: February 7, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5