United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.R., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
CUSTOMS & BORDER PROTECTION,
Imperial, CA, Employer
__________________________________________

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

Docket No. 21-0346
Issued: July 1, 2021

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On January 4, 2021 appellant filed a timely appeal from a December 22, 2020 merit
decision of the Office of Workers’ Compensation Programs. 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 his burden of proof to establish greater than 15
percent permanent impairment of the left lower extremity for which he previously received
schedule award compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 27, 2015 appellant, then a 56-year-old supervisory border patrol agent, filed
a traumatic injury claim (Form CA-1) alleging that on that date he injured his left knee kneeling
on the ground during firearms training while in the performance of duty.2 OWCP accepted the
claim for a strain of the left knee and leg. On May 20, 2015 appellant underwent an OWCPauthorized left knee arthroscopy with removal of loose bodies and a chondroplasty of the patellar
trochlea. He returned to modified employment on May 23, 2015 and to his regular work duties on
July 29, 2015.
In an impairment evaluation dated August 25, 2015, Dr. Christopher T. Behr, a Boardcertified orthopedic surgeon, found that appellant had 10 percent permanent impairment of the left
knee due to a loss of patellofemoral cartilage interval, according to the fifth edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).3
On October 17, 2015 Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as
a district medical adviser (DMA), applied the provisions of the sixth edition of the A.M.A., Guides4
to Dr. Behr’s findings. He used the diagnosis-based impairment (DBI) rating method to find that
appellant had 10 percent permanent impairment of the lower left extremity due to joint space
narrowing of the patellofemoral joint, according to Table 16-3, the Knee Regional Grid, on page
511 of the A.M.A., Guides.
By decision dated March 1, 2016, OWCP granted appellant a schedule award for 10
percent permanent impairment of the left lower extremity.
On August 8, 2017 OWCP expanded acceptance of the claim to include a loose body in
the left knee and an aggravation of left knee unilateral tricompartmental osteoarthritis.
In a report dated August 25, 2017, Dr. Stuart C. Marshall, a Board-certified orthopedic
surgeon, opined that appellant had seven percent permanent impairment of the left lower extremity
due to patellar subluxation pursuant to the fifth edition of the A.M.A., Guides.
On October 4, 2017 appellant filed a claim for an increased schedule award.
By decision dated November 15, 2017, OWCP denied appellant’s claim for an increased
schedule award.
In an impairment evaluation dated December 2, 2017, Dr. Marshall advised that appellant
had reduced motion and crepitation of the left patellofemoral joint with tenderness and mild

2

Appellant indicated that the injury occurred on February 27, 2014 instead of February 27, 2015; however, this
appears to be a typographical error.
3

A.M.A., Guides (5th ed. 2001).

4

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

2

swelling. He found 14 percent permanent impairment of the left lower extremity according to
Table 16-3 of the A.M.A., Guides due to patellar subluxation and patellofemoral degeneration.
On December 6, 2017 appellant requested a review of the written record by a representative
of OWCP’s Branch of Hearings and Review.
Following a preliminary review, by decision dated March 6, 2018, OWCP’s hearing
representative vacated the November 15, 2017 decision. She instructed OWCP to refer
Dr. Marshall’s December 2, 2017 impairment evaluation to a DMA for review.
On March 29, 2018 OWCP authorized a left knee arthroscopy. On May 25, 2018 appellant
underwent a left patella release of the lateral capsule, transverse retinacular ligament, and
synovium, and a synovectomy of the anterior and lateral compartments.
In a report dated June 4, 2019, Dr. Marshall found full range of motion (ROM) of the left
knee with mild crepitation and swelling of the patellofemoral joint with tenderness. He opined
that appellant had reached maximum medical improvement (MMI). Dr. Marshall identified the
class of diagnosis (CDX) as a class 2 patellar subluxation with moderate instability, which yielded
a default value of 16 percent according to Table 16-3 on page 510 of the A.M.A., Guides. He
applied a grade modifier for functional history (GMFH) of 1, a grade modifier for physical
examination (GMPE) of 1, and a grade modifier for clinical studies (GMCS) of 2, which yielded
a net adjustment of negative two and 14 percent permanent impairment of the left lower extremity.
Appellant, on June 27, 2019, filed a claim for an increased schedule award.
On July 15, 2019 Dr. Michael M. Katz, a Board-certified orthopedic surgeon serving as a
DMA, identified the CDX as class 2 patellofemoral arthritis with a one millimeter (mm) cartilage
interval, which he found yielded a default value of 16 percent according to Table 16-3 on page
511.5 He applied a GMFH of 1, a GMPE of 1, and GMCS of 2, which yielded a net adjustment of
negative two and 14 percent permanent impairment of the left lower extremity. Dr. Katz opined
that appellant had reached MMI on May 20, 2019.
On August 13, 2019 OWCP requested that Dr. Katz clarify whether the 14 percent
permanent impairment included the prior 10 percent award for permanent impairment of the left
lower extremity.
In a supplemental report dated August 15, 2019, Dr. Katz advised that his finding of 14
percent permanent impairment included the prior award for 10 percent permanent impairment of
the left lower extremity. He opined that appellant had an additional four percent permanent
impairment of the left lower extremity.

5
The default value for class 2 patellofemoral arthritis with a one mm cartilage interval is 15 percent rather than 16
percent.

3

By decision dated April 14, 2020, OWCP granted appellant a schedule award for an
additional four percent permanent impairment of the left lower extremity. The period of the award
ran for 11.52 weeks from May 20 to August 8, 2019.
In a report dated June 8, 2020, Dr. Michael R. Lenihan, a Board-certified orthopedic
surgeon, discussed appellant’s complaints of moderate left knee pain. He found an antalgic gait
on the left with left knee effusion, crepitation of the patellofemoral joint, and left calf and thigh
atrophy. Dr. Lenihan measured ROM of the knee three times, finding that appellant had a loss of
10 degrees extension and had 80 degrees of flexion. He indicated that x-rays revealed one mm of
joint space with “significant residual lateral subluxation of the patella.” Dr. Lenihan diagnosed
arthritis, sprain, loose bodies, and internal derangement of the left knee.
In an addendum dated July 19, 2020, Dr. Lenihan found that appellant had 20 percent
permanent impairment of the left lower extremity due to loss of motion of the knee. Using the
DBI rating method, he identified the CDX as class 2 patellofemoral arthritis with a one mm
cartilage interval, which yielded a default value of 15 percent using Table 16-3 on page 511 of the
A.M.A., Guides. Dr. Lenihan found that applying a GMFH and a GMPE yielded a net adjustment
of zero, and that a GMCS was not applicable as it was used to define the CDX. He concluded that
appellant had 15 percent permanent impairment of the left lower extremity using the DBI method.
Dr. Lenihan asserted that using the ROM to rate the impairment was more appropriate.
On August 6, 2020 Dr. Katz identified the CDX as class 2 patellofemoral arthritis with one
mm cartilage interval, which yielded a default value of 15 percent. He applied a GMFH and a
GMPE of two and found that a GMCS was not applicable as it was used to assign the CDX.
Dr. Katz found no change from the default value after applying the net adjustment formula. He
concluded that appellant had 15 percent permanent impairment of the left lower extremity.
Dr. Katz noted that Table 16-3 did not provide ROM as an alternative rating method for the
diagnosed impairing condition. He opined that appellant had reached MMI on June 8, 2020.
Dr. Katz advised that the 15 percent impairment rating included the prior 14 percent permanent
impairment rating. He, thus, found that appellant was entitled to a schedule award for an additional
one percent permanent impairment of the left lower extremity.
On September 4, 2020 OWCP requested that Dr. Lenihan review the DMA’s August 6,
2020 report and discuss the difference in the impairment rating.
In a supplemental report dated September 27, 2020, Dr. Lenihan opined that Dr. Katz’
report was consistent with the A.M.A., Guides. He noted that, while he felt that using the ROM
method better reflected appellant’s left lower extremity impairment, the A.M.A., Guides provided
that ROM was only used when the DBI method was not available. Dr. Lenihan concurred with
Dr. Katz’ finding of 15 percent permanent impairment of the left lower extremity and a net
additional award of 1 percent “due to the prior overlapping 14 [percent] left lower extremity
impairment.”6

6
In a handwritten note dated October 3, 2020, Dr. Lenihan indicated that appellant should be informed that using
ROM was not allowed in appellant’s case and that he should accept the DMA’s findings.

4

By decision dated December 4, 2020, OWCP vacated in part its April 14, 2020 decision,
finding that appellant had 15 percent permanent impairment of the left lower extremity.
By decision dated December 22, 2020, OWCP granted appellant a schedule award for an
additional one percent permanent impairment of the left lower extremity. The period of the award
ran for 2.88 weeks from June 8 to 28, 2020.
LEGAL PRECEDENT
The schedule award provisions of FECA,7 and its implementing federal regulations,8 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. FECA,
however, does not specify the manner in which the percentage loss of a member shall be
determined. The method used in making such a determination is a matter which rests in the
discretion of OWCP. For consistent results and to ensure equal justice, the Board has authorized
the use of a single set of tables so that there may be uniform standards applicable to all claimants.
OWCP evaluates the degree of permanent impairment according to the standards set forth in the
specified edition of the A.M.A., Guides, published in 2009.9 The Board has approved the use by
OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of a
member of the body for schedule award purposes.10
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning Disability
and Health (ICF).11 Under the sixth edition, the evaluator identifies the CDX, which is then
adjusted by a GMFH, GMPE, and/or GMCS.12 The net adjustment formula is (GMFH - CDX) +
(GMPE - CDX) + (GMCS - CDX).13 Evaluators are directed to provide reasons for their
impairment choices, including the choices of diagnoses from regional grids and calculations of
modifier scores.14
It is well established that benefits payable under 5 U.S.C. § 8107(c) are reduced by the
period of compensation paid under the schedule for an earlier injury if: (1) compensation in both
7

Supra note 1.

8

20 C.F.R. § 10.404.

9

For decisions issued after May 1, 2009 the sixth edition of the A.M.A., Guides is used. A.M.A., Guides, (6th ed.
2009); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6 (March 2017); see also Chapter 3.700, Exhibit 1 (January 2010).
10

P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro Rivera, 12 ECAB 348 (1961).

11
A.M.A., Guides (6th ed. 2009), p.3, section 1.3, International Classification of Functioning, Disability and Health
(ICF): A Contemporary Model of Disablement.
12

Id. at 494-531.

13

Id. 411.

14

R.R., Docket No. 17-1947 (issued December 19, 2018); R.V., Docket No. 10-1827 (issued April 1, 2011).

5

cases is for impairment of the same member or function or different parts of the same member or
function; and (2) the latter impairment in whole or in part would duplicate the compensation
payable for the preexisting impairment.15
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish greater than 15
percent permanent impairment of the left lower extremity for which he previously received
schedule award compensation.
In a June 8, 2020 report, Dr. Lenihan found that appellant had an antalgic gait on the left
side, left knee effusion, crepitation of the left patellofemoral joint, and atrophy of the left thigh and
calf. He measured ROM and found 20 percent permanent impairment of the left lower extremity
due to reduced motion. However, Table 16-3 does not provide the ROM impairment rating method
as an alternative to the DBI method for appellant’s impairment condition.16 Consequently,
appellant is not entitled to a schedule award for loss of ROM of the left lower extremity.
Dr. Lenihan noted that x-rays revealed one mm of joint space with patella subluxation. He
identified the CDX as class 2 patellofemoral arthritis with one mm of joint space, which yielded a
default value of 15 percent. Dr. Lenihan found no change from the default value after applying a
GMFH and a GMPE, and found that a GMCS was not applicable as it was used to identify the
diagnosis.
Dr. Katz, the DMA, reviewed Dr. Lenihan’s report on August 6, 2020 and concurred with
his finding of 15 percent permanent impairment of the left lower extremity using the DBI method.
He properly advised that ROM was not an alternative method for rating the condition, according
to Table 15-3, as there was no asterisk next to the diagnosis in the Knee Regional Grid.17 Dr. Katz
opined that the 15 percent impairment duplicated the prior award for 14 percent permanent
impairment. When the prior impairment is due to a previous work-related injury and a schedule
award has been granted for such prior impairment, the percentage already paid is subtracted from
the total percentage of impairment.18 Thus, Dr. Katz properly found that appellant was entitled to
a schedule award for an additional one percent permanent impairment of the left lower extremity.
Dr. Lenihan reviewed Dr. Katz’ opinion on September 7, 2020 and concurred with his
finding that appellant had 15 percent permanent impairment of the left lower extremity. There is
no medical evidence in conformance with the sixth edition of the A.M.A., Guides establishing that

15
20 C.F.R. § 10.404(d). See D.P., Docket No .19-1514 (issued October 21, 2020); S.M., Docket No. 17-1826
(issued February 26, 2018).
16

Table 16-3, p. 511. See A.K., Docket No. 19-1927 (issued March 31, 2021).

17

Id. See D.L., Docket No. 20-0059 (issued July 8, 2020); D.M., Docket No. 20-1146 (issued December 18, 2020).

18

Supra note 15.

6

he has greater than 15 percent permanent impairment and, thus, he has not established that he is
entitled to additional schedule award compensation.19
Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish greater than 15
percent permanent impairment of the left lower extremity for which he received schedule awards.
ORDER
IT IS HEREBY ORDERED THAT the December 22, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 1, 2021
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

19

See K.H., Docket No. 20-1198 (issued February 8, 2021).

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.G., Appellant
and
DEPARTMENT OF HEALTH & HUMAN
SERVICES, CENTER FOR MEDICARE &
MEDICAID SERVICES, Washington, DC,
Employer
__________________________________________

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

Docket No. 21-1098
Issued: March 28, 2022

Case Submitted on the Record

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

JURISDICTION
On July 14, 2021 appellant filed a timely appeal from a January 21, 2021 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP). 1 As more than 180 days elapsed
from OWCP’s last merit decision dated October 9, 2019, to the filing of this appeal, pursuant to

1

Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the
Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In
support of appellant’s oral argument request, appellant asserted that oral argument should be granted because OWCP’s
decisions were based on inaccurate and incorrect information and the decisions failed to provide reasons why her
arguments and evidence submitted were insufficient to modify OWCP’s denial of her claim. The Board, in exercising
its discretion, denies appellant’s request for oral argument because the arguments on appeal can adequately be
addressed in a decision based on a review of the case record. Oral argument in this appeal would further delay issuance
of a Board decision and not serve a useful purpose. As such, the oral argument request is denied , and this decision is
based on the case record as submitted to the Board.

the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board lacks jurisdiction over the merits of the claim.
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. 3 The facts and circumstances as set forth
in the Board’s prior decisions and orders are incorporated herein by reference. The relevant facts
are as follows.
On June 9, 2005 appellant, then a 50-year-old management analyst, filed an occupational
disease claim (Form CA-2) indicating that years of repetitive typing, writing, and use of the adding
machine and computer caused or aggravated cervical spine arthritis and bilateral carpal tunnel
syndrome (CTS) while in the performance of duty. She first became aware of her claimed
conditions and its relationship to her federal employment on March 30, 2005. OWCP accepted
the claim for bilateral CTS, bilateral lesion of the ulnar nerve, and non-disabling mild dysthymic
disorder. Appellant underwent OWCP-approved left carpal tunnel and cubital tunnel release on
January 11, 2007 and right carpal tunnel and cubital tunnel release on June 7, 2007. She returned
to full-duty work with use of voice-activated software on February 14, 2008. OWCP paid
appellant intermittent wage-loss compensation on the supplemental rolls commencing
March 30, 2005.4
On June 22, 2010 appellant filed a notice of recurrence (Form CA-2a) claiming a
recurrence of the need for medical treatment due to a change or worsening of her accepted workrelated conditions. She noted that she received several accommodations, but she had been doing
“an overwhelming amount of keyboarding and using [her] hands to lift, turn pages, write, etc. at
work,” which aggravated her approved bilateral carpal and cubital tunnel syndrome conditions,
and caused stress and depression. Appellant indicated that the shooting finger and arm pain caused
her to take more daily pain medications, including prescription pain medications. She also
indicated that her doctors advised her to retire as she was totally disabled from performing her job.
In a July 12, 2010 letter, OWCP advised that, since appellant did not claim any lost time from

2

5 U.S.C. § 8101 et seq.

3

Docket No. 15-548 (issued May 13, 2015).

4

By decision dated October 22, 2008 and corrected on November 14, 2008, OWCP issued a schedule award for 25
percent permanent impairment of the right upper extremity and 26 percent permanent impairment of the left upper
extremity for which appellant received a requested lump-sum award on January 13, 2009. Appellant requested
increased schedule awards, which OWCP denied in decisions dated October 30, 2009 and February 17, 2010.

2

work, she had not experienced a true recurrence. It noted her claim remained open for medical
treatment of her accepted conditions. 5
On December 2, 2010 appellant submitted a Form CA-2a claiming a recurrence of
disability and the need for medical treatment, wherein she listed the date of recurrence as June 22,
2010 and related that she had stopped work on July 27, 2010. By decision dated January 12, 2012,
OWCP denied the alleged recurrence of June 22, 2010. The weight of the medical evidence was
accorded to Dr. Stuart J. Gordon, a Board-certified orthopedic surgeon and OWCP second opinion
physician. The claim remained open for medical treatment of the accepted co nditions.
On January 30, 2012 appellant requested an oral hearing before a representative of
OWCP’s Branch of Hearings and Review. By decision dated May 23, 2012, an OWCP hearing
representative vacated the January 12, 2012 decision and remanded the case for further
development, including the issuance of an updated statement of accepted facts (SOAF) and referral
to a Board-certified psychiatrist for examination and evaluation.
Following further development, appellant underwent a second opinion psychiatric
examination on December 19, 2012 by Dr. Dennis M. Young, a Board-certified psychiatrist, who
provided reports dated December 22, 2012 and February 7, 2013. Dr. Young opined that
appellant’s depression was not the result of pain associated with the work injury.
By decision dated March 28, 2013, OWCP denied appellant’s recurrence claim as she had
not established that she was disabled due to a material change/worsening of her accepted workrelated conditions. It also found that her diagnosed depression was not causally related to the
original occupational conditions, but rather was self-generated as a result of her perception that
she was an undervalued and marginalized employee.
On March 14, 2014 appellant, through counsel, requested reconsideration based on new
evidence from Dr. John R. Lion, a Board-certified psychiatrist. OWCP subsequently declared a
conflict in medical opinion between Dr. Young and Dr. Lion, who opined, in his February 3, 2014
report, that appellant’s depression was the result of her work injury.
OWCP referred appellant to Dr. Bruce M. Smoller, a Board-certified psychiatrist, for an
impartial medical examination and evaluation as to whether her employment-related conditions
contributed to or caused a psychiatric condition. In a July 27, 2014 report, Dr. Smoller, serving as
the impartial medical examiner (IME), reviewed a SOAF, examined appellant’s medical record
and appellant, and noted the history of injury. He recounted interview findings and provided an
impression of mild dysthymia on a fair to good level of functioning. Dr. Smoller opined that
appellant’s dysthymia did not need further medical treatment, that she had reached maximum
medical improvement, and that no further therapy treatment was required. He reiterated his
opinion that she was not disabled from work due to the psychiatric condition.

5

On July 31, 2010 appellant voluntarily retired.

3

By decision dated August 22, 2014, OWCP accepted the additional condition of nondisabling mild dysthymic disorder. Further treatment for the newly accepted condition was not
authorized based on Dr. Smoller’s July 27, 2014 impartial medical report.
Also, by decision dated August 22, 2014, OWCP affirmed the March 28, 2013 decision in
part to reflect that appellant had not established her recurrence claim due to a material change or
worsening of her accepted work-related conditions.
Appellant appealed to the Board on January 15, 2015. By decision dated May 13, 2015,
the Board affirmed OWCP’s August 22, 2014 decision. The Board found that Dr. Smoller’s
opinion was entitled to the weight of the medical evidence as an IME as he provided a rationalized
medical opinion, which established that while there was psychological component to appellant’s
work-related condition it did not disable her from working on July 27, 2010. The Board further
found that there was no probative medical opinion evidence, which established that appellant had
a material change in her medical condition such that she was totally disabled as a result of her
accepted work-related conditions beginning July 27, 2010.6
Appellant subsequently filed a series of requests for reconsideration. In decisions dated
April 10, 2017, August 10, 2018, and October 9, 2019, OWCP denied modification of the merits
of the claim. The decisions detailed appellant’s legal and factual arguments and found no error or
evidence to support the allegations raised. The decisions further found that the medical evidence
of record remained unsupported by rationalized medical evidence to demonstrate that the accepted
conditions prevented appellant from working on or after July 27, 2010 causally related to the
accepted March 30, 2005 employment injury.
On September 9, 2020 appellant requested reconsideration. In an accompanying letter also
dated September 2, 2020, she requested reconsideration and a “face to face hearing.” Appellant
contended that OWCP’s merit reviews were based on inaccurate and incorrect information and
that OWCP had failed to review the evidence and arguments she provided in all her reconsideration
requests. She argued that Dr. Young’s opinion was relevant and supported her disability claim,
the opinion of Dr. Lion, her physician, supported Dr. Young’s opinion, and Dr. Smoller’s report
was vague and speculative. Appellant also wanted to know why OWCP did not find certain facts,
circumstances and evidence relevant to the fact that she had to retire on disability. She alleged
that her supervisor and the employing establishment ignored her initial accommodation requests
only to grant the same request over a year later. The delay of such accommodation by appellant’s
supervisor and the employing establishment violated the law and the ineffective accommodations
caused appellant excruciating physical pain and mental anxiety, continued use of addicting drugs,
and having to perform repetitive motion that caused her recurrence. The only evidence submitted
in support of her reconsideration request was a petition for writ of certiorari in the Supreme Court
of the United States.
In November 18 and December 8, 2020 letters, OWCP informed appellant that, as her
September 2, 2020 letter indicated that she was requesting both a reconsideration and “face to face
hearing,” she could only request one method of appeal. Appellant was informed of her appeal
6

Supra note 3.

4

rights and provided 10 days to respond to the request. On December 11, 2020 she advised that she
was requesting reconsideration.
By decision dated January 21, 2021, OWCP denied appellant’s request for reconsideration
of the merits of her claim pursuant to 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 7
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or argument which: (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. 8
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 9 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits. 10 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. 11
ANALYSIS -- ISSUE 1
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).
Preliminarily, the Board notes that it is unnecessary for the Board to consider the evidence
appellant submitted prior to the issuance of OWCP’s August 22, 2014 merit decision. The Board
considered that evidence in its May 13, 2015 decision. Findings made in prior Board decisions

7

5 U.S.C. § 8128(a); see T.K., Docket No. 19-1700 (issued April 30, 2020); L.D., Docket No. 18-1468 (issued
February 11, 2019); W.C., 59 ECAB 372 (2008).
8

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
9

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (February 2020). 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.
10

Id. at § 10.608(a); F.V., Docket No. 18-0230 (issued May 8, 2020); see also M.S., 59 ECAB 231 (2007).

11

Id. at § 10.608(b); B.S., Docket No. 20-0927 (issued January 29, 2021); E.R., Docket No. 09-1655 (issued
March 18, 2010).

5

are res judicata absent further review by OWCP under section 8128 of FECA. 12 The Board,
therefore, will not review the evidence or arguments addressed in its prior appeal.
Appellant’s request for reconsideration neither alleged nor demonstrated that OWCP
erroneously applied or interpreted a specific point of law. Additionally, the Board finds that it did
not advance a relevant legal argument not previously considered by OWCP. Appellant’s
September 2, 2020 letter contained variations of legal and factual arguments previously
considered, which revolved around the conflict in medical evidence with Dr. Young and the fact
Dr. Smoller’s opinion was accorded the special weight provided an IME. The Board previously
reviewed the record, detailed the medical evidence as to how the conflict in medical arose and
discussed why the reports from appellant’s physicians were not sufficient to establish her
recurrence claim. The Board also specifically found that OWCP properly afforded the special
weight of the medical opinion evidence to Dr. Smoller who found that appellant had a nondisabling
dysthymic disorder. As noted above, the findings made in prior Board decisions are res judicata
absent further review by OWCP under section 8128 of FECA. 13 In its previous decisions OWCP
also addressed appellant’s contentions with regard to the employing establishment’s
accommodations, testimony, and alleged violations under other statues and found no evidence of
error as it related to the subject recurrence claim. Thus, appellant has not raised any new or
relevant legal and factual arguments not previously considered. Consequently, she is not entitled
to further review of the merits of her claim based on either the first or second above -noted
requirements under 20 C.F.R. § 10.606(b)(3).
The Board further finds that appellant did not submit relevant and pertinent new evidence
in support of her reconsideration request. The Board has held that the submission of evidence or
argument which does not address the particular issue involved does not constitute a basis for
reopening a case. 14 Appellant submitted a petition for writ of certiorari in the Supreme Court of
the United States. This evidence does not address the subject recurrence claim and, thus, does not
constitute a basis for reopening the claim. 15 No other evidence was submitted. As appellant failed
to provide relevant and pertinent new evidence, she is not entitled to a merit review based on the
third requirement under 20 C.F.R. § 10.606(b)(3).
The Board, accordingly, finds that appellant did not meet 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.
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).

12

K.K., Docket No. 20-1394 (issued July 26, 2021); Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

13

Id.

14

L.M., Docket No. 20-0315 (issued October 8, 2021); A.J., Docket No. 20-0926 (issued January 26, 2021);
Jimmy O. Gilmore, 37 ECAB 257 (1985); Edward Matthew Diekemper, 31 ECAB 224 (1979).
15

Id.

6

ORDER
IT IS HEREBY ORDERED THAT the January 21, 2021 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 28, 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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
EDITH NORSE ROGERS MEMORIAL
VETERANS HOSPITAL, Bedford, MA,
Employer
__________________________________________

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Appearances:
Daniel B. Shapiro, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-0769
Issued: March 15, 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 February 22, 2019 appellant, through counsel, filed a timely appeal from an August 28,
2018 merit decision of the Office of Workers’ Compensation Programs (OWCP). 2 Pursuant to the

1

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

Appellant timely requested oral argument before the Board. By order dated July 20, 2020, the Board exercised
its discretion and denied the request as the matter could be adequately addressed based on a review of the case record.
Order Denying Request for Oral Argument, Docket No. 19-0769 (issued July 20, 2020).

Federal Employees’ Compensation Act3 (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 an injury in the
performance of duty on October 1, 2015, as alleged.
FACTUAL HISTORY
On October 8, 2015 appellant, then a 61-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging on October 1, 2015 that she fell to her knee and twisted her ankle while in
the performance of duty. On the reverse side of the claim form, the employing establishment
acknowledged that she was injured in the performance of duty. Appellant stopped work on the
date of injury.
In support of her claim, appellant provided an October 1, 2015 note from Dr. Ryan A.
Secan, a Board-certified internist, noting that she fell after her legs gave way for an unknown
reason. Dr. Secan recounted that she did not walk well due to back issues and used a scooter to
cover long distances. He reviewed x-rays and diagnosed a spiral fracture through the distal left
fibula.
A note of even date from Linda Gaudet, a registered nurse, indicated that appellant was
walking out of her office using her cane when her knees collapsed and she fell, landing on her right
knee.
In an October 2, 2015 report, Dr. Brock Drapkin, a Board-certified internist, noted that
appellant fell forward when walking home from work and was unable to get up due to severe left
leg pain. He relayed that, over the past several months, she had experienced frequent falls for
uncertain reasons. Dr. Drapkin related that appellant experienced a feeling of generalized
weakness when she fell, but no loss of consciousness, and was generally unable to get up by
herself. He diagnosed preexisting morbid obesity, gout, hyperlipidemia, depression, neuropathy,
and found that she had sustained a nondisplaced oblique distal fibular fracture on the left.
Dr. Drapkin found that appellant had experienced an unexplained fall without loss of
consciousness which resulted in a distal left fibular fracture. He reported, “The mechanism of this
and other recent recurrent falls is not clear.”
On October 2, 2015 Dr. Eric Holstein, a Board-certified orthopedic surgeon, examined
appellant and noted her history of morbid obesity and severe knee degenerative joint disease. He
reported that she ambulated with a cane and that she sustained a syncopal episode at work.
Dr. Holstein found that appellant did not slip, but fell after passing out. He noted that she was
unclear as to why this occurred, and that she awoke with pain in her left leg. Dr. Holstein
diagnosed nondisplaced distal fibula fracture.

3

5 U.S.C. § 8101 et seq.

2

On October 2, 2015 the employing establishment provided appellant with an authorization
for examination and/or treatment (Form CA-16).
Dr. Jasper Ngomba, a Board-certified internist, examined appellant on October 3, 2015 and
noted that she had fallen 20 times in the past six months. He found that she had been diagnosed
with optic neuritis.
In an October 4, 2015 report, Dr. Stacie Perlman, a Board-certified surgeon, noted that, on
October 2, 2015, appellant fell on the sidewalk while walking home from work and sustained a
nondisplaced left fibular fracture.
On October 4, 2015 Dr. Jonathan Moray, a Board-certified neurologist, examined
appellant due to her frequent falls. He noted that she reported falls beginning 23 years earlier.
Dr. Moray noted that appellant had fallen recently and was experiencing increasing pain in her low
back as well as weakness and numbness in the right leg. He indicated that she had chronic neck
and back pain. Dr. Moray noted that appellant experienced frequent falling with an unknown
etiology. He reported that she had a history of a possible central nervous system disease, that her
examination was consistent with peripheral neuropathy or spinal stenosis, and questionable
regarding lumbar radiculopathy with myelopathy.
On October 5, 2015 appellant underwent a brain magnetic resonance imaging (MRI) scan
which demonstrated minimal scattering of white matter signal abnormalities with bilateral frontal
predominance differential including microangiopathic change, Lyme disease, the effects of
hypertension or migraine, demyelinating disease, and other entities.
In a December 10, 2015 development letter, OWCP advised appellant of the deficiencies
of her claim. It requested additional factual and medical evidence and provided a questionnaire
for her completion. OWCP afforded appellant 30 days to respond.
In an October 1, 2015 note, Jessica G. Sprangers, a physician assistant, reported that
appellant described appellant’s fall as resulting from a slip, and that she had no preceding
symptoms. She recounted that appellant used a cane due to chronic back pain. Appellant denied
feeling dizzy or weak just prior to falling. Ms. Sprangers noted that appellant was unsure of
exactly what made her fall, but that appellant had asserted that her legs did not “give out.” She
noted that appellant had experienced frequent falls in the past due to balance problems.
In a December 16, 2015 letter, appellant denied syncopal episodes. She asserted that on
October 1, 2015 she was feeling well, did not have dizziness, and that her gait was steady.
Appellant alleged that she informed her physicians that she did not know why she fell. She
described the events surrounding her fall as walking toward the restroom at the employing
establishment at approximately 3:55 p.m. and as she was walking in the corridor she suddenly had
fallen onto the hard surface of the corridor. Appellant noted pain in her left foot and indicated that
she sought medical treatment. She asserted that she did not strike any objects on the way down to
the immediate supporting surface. Appellant denied any history of fainting. She noted that her
back was arthritic. Appellant reported that she had experienced more falls as she had aged, but
that the falls were not serious and usually caused by an uneven surface or due to objects, ice, or

3

fluids on the floor. She did not notice any substance on the floor on October 1, 2015 and did not
know what caused her fall.
In a December 24, 2015 note, Dr. Mythily Meda, an internist, reported that appellant had
a history of dizziness, but no syncope. She recounted that appellant reported no syncopal episode
at the time of her fall on October 1, 2015.
By decision dated January 14, 2016, OWCP denied appellant’s claim, finding that the
factual evidence was insufficient to support that she actually experienced the alleged employment
incident as a result of her work duties, as well as that the medical evidence did not substantiate
that the diagnosis provided was caused or aggravated by a work injury. It noted that she reported
that she did not know what caused her fall and did not strike any object as she was falling. OWCP
also noted that Dr. Holstein reported that appellant had sustained a syncopal episode at work.
On February 5, 2016 appellant requested reconsideration of the January 14, 2016 decision.
She provided a February 5, 2016 note from Dr. Holstein in which he reported that she used a cane
or walker due to severe knee degenerative joint disease. Dr. Holstein reported that there had been
a discrepancy between appellant’s history of injury, experiencing an mechanical fall, and his
reports suggesting a syncopal episode. He noted that she reported no loss of consciousness and
that medically there were no abnormalities. Dr. Holstein also reported that physicians had found
no diagnosis of syncope in appellant’s medical history, and that therefore her history was
“consistent with a mechanical fall at work.” He diagnosed closed fracture of the lateral malleolus.
In a March 10, 2016 narrative statement, appellant again asserted that she had not ever
experienced syncope including immediately prior to her fall on October 1, 2015. She noted that
she did have a history of dizziness due to medications prior to October 1, 2015 and that this was
addressed through dosage adjustment before her fall on October 1, 2015. Appellant surmised that
she likely slipped on liquid left on the floor by a patient. She submitted nurses’ notes, as well as
physical and occupational therapy notes.
By decision dated April 11, 2016, OWCP denied modification.
On February 8, 2017 appellant, through counsel, requested reconsideration of the April 11,
2016 decision. She submitted additional medical and factual evidence and asserted that OWCP
had not established that her fall on October 1, 2015 was idiopathic, rather than an unexplained fall
which would be considered to have occurred in the performance of duty.
In a February 7, 2017 affidavit, appellant asserted that the corridor where she fell on
October 1, 2015 was busy and traveled by hundreds of people on a daily basis. She noted that
there had been numerous floods and water leaks on the floor as well as water drips from people
using the restrooms, spills of liquids including coffee and other beverages, and water tracks from
inclement weather. Appellant alleged that there were cracks, grooves, depressions, and pits in the
floor surface in which water or other liquids often collected. She repeated her statement that, on
October 1, 2015, as she walked to the restroom, she was feeling well, her gait was stead y and that
she was not weak or dizzy in any way. Appellant suddenly slipped and fell on the floor. She did
not know the cause of her slip, but asserted that it felt like she slipped due to water on the floor.
In a January 16, 2017 report, Matthias J. Mulvey, a professional building safety and code

4

consultant, noted that on November 4, 2016 he inspected the corridor where appellant fell on
October 1, 2015. He found deep erosion marks, pitting, and water stains from heavy pedestrian
traffic and water damage. Mr. Mulvey reported 20 feet of erosion marks and water staining
running in a line from the bathroom exit toward appellant’s office door. He noted that the depth
of the erosion and pitting was sufficient to allow for the pooling of liquid and that the existing
surface marks were consistent with liquid historically collecting and pooling in the pits and
depressions of the floor’s surface.
Appellant also resubmitted Ms. Sprangers’ October 1, 2015 note in which appellant
described a fall at work which resulted from a slip. She also provided discharge notes in which
Dr. Meda diagnosed a fracture of the distal fibular shaft and noted that she had a fall at work.
Appellant submitted Dr. Drapkin’s October 2, 2015 note describing her frequent falls for uncertain
reasons.
In a January 17, 2017 report, Dr. George P. Whitelaw, a Board-certified orthopedic
surgeon, reviewed appellant’s medical records and affidavit. He noted that syncope was a
temporary loss of consciousness or fainting due to other medical conditions. Dr. Whitelaw found
that there was no medical evidence that appellant had a diagnosis of a syncopal event and that
Dr. Meda explicitly denied that appellant had a history of syncope. He opined that appellant had
experienced a mechanical fall as her incident was consistent with slipping.
By decision dated July 7, 2017, OWCP denied modification of its prior decisions.
On July 5, 2018 appellant, through counsel, requested reconsideration and submitted
additional factual evidence.
In an October 1, 2015 incident report, the employing establishment described appellant’s
fall as losing her balance while trying to exit the building, striking both knees on the floor, and
complaining of left ankle pain.
Appellant’s husband completed a narrative statement on November 8, 2017 explaining that
appellant fell on October 1, 2015 in the basement of a building on the employing establishment’s
premises, approximately 25 feet from her office
K.H., the acting director of performance management at the employing establishment,
completed a statement on November 14, 2017 and reported that on October 1, 2015 he was
informed that appellant had fallen in a tunnel.
On November 24, 2017 K.S., patient safety officer at the employing establishment,
reported on October 1, 2015 appellant informed her that she had fallen and did not know how or
why. Appellant denied hitting her head or losing consciousness at any time. K.S. and K.H. helped
appellant onto her scooter and directed her to urgent care.
In a November 30, 2017 statement, J.W., an employing establishment nurse, reported that
she found appellant on her knees on October 1, 2015 outside her office and next to the exit door.
Appellant indicated that she had injured her left leg and discussed seeking treatment at urgent care.
J.W. noted that appellant did not fall on her face, but was on her knees in a sitting position holding
on to a railing.
5

On June 15, 2018 Dr. Whitelaw provided a correction to his January 17, 2017 report and
again opined that appellant’s incident was consistent with slipping and suffering a mechanical fall.
He noted that a review of the medical records established that she denied dizziness or weakness
prior to the fall. Dr. Whitelaw concluded that there was no syncopal event invo lved in the
October 1, 2015 fall.
By decision dated August 28, 2018, OWCP denied appellant’s claim, finding that the
evidence of record established that she sustained an idiopathic fall outside of the performance of
duty. It found that the medical record was consistent in reporting that she had a long history of
falling with a recent increase in frequency of falls, difficulty ambulating, and balance problems.
OWCP concluded that the mere fact that the etiology of appellant’s falls both past and present
remained undiagnosed does not make the fall sustained at work on October 1, 2015 unexplained.
It determined that both the medical and factual evidence clearly establish ed that a physical
condition preexisted and resulted in the fall on October 1, 2015. OWCP concluded that appellant’s
fall on October 1, 2015 was explained as it was one of a series of 20 falls sustained over the
preceding 6-month period resulting from preexisting pathology and must therefore be considered
as idiopathic.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 4 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. 5 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. 6
It is a well-settled principle of workers’ compensation law, and the Board has so held, that
an injury resulting from an idiopathic fall -- where a personal, nonoccupational pathology causes
an employee to collapse and to suffer injury upon striking the immediate supporting surface, and
there is no intervention or contribution by any hazard or special condition of employment -- is not
within coverage of FECA. 7 Such an injury does not arise out of a risk connected with the
employment and is therefore not compensable. The Board has made equally clear, the fact that

4

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
5

J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
6

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

M.R., Docket No. 19-0341 (issued July 10, 2019); H.B., Docket No. 18-0278 (issued June 20, 2018); see Carol A.
Lyles, 57 ECAB 265 (2005).

6

the cause of a particular fall cannot be ascertained or that the reason it occurred cannot be
explained, does not establish that it was due to an idiopathic condition.8
This follows from the general rule that an injury occurring on the industrial premises during
working hours is compensable unless the injury is established to be within an exception to such
general rule.9 OWCP has the burden of proof to submit medical evidence showing the existence
of a personal, nonoccupational pathology if it chooses to make a finding that a given fall is
idiopathic in nature. 10 If the record does not establish that the particular fall was due to an
idiopathic condition, it must be considered as merely an unexplained f all, one which is
distinguishable from a fall in which it is definitely proved that a physical condition preexisted and
caused the fall. 11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish an injury in the
performance of duty on October 1, 2015, as alleged.
In determining whether appellant’s injury occurred in the performance of duty, the Board
must first consider factors to determine whether the October 1, 2015 incident was caused by an
idiopathic fall. Factors to be considered include whether there is evidence of a predisposed
condition that caused appellant to collapse, whether there were any intervening circumstances or
conditions that contributed to her fall, and whether appellant struck any part of her body against a
wall, piece of equipment, furniture, or similar object as she fell. 12
The Board finds that the medical evidence establishes that appellant’s fall on October 1,
2015 was due to a personal, nonoccupational pathology without employment contribution. On
October 1, 2015 Dr. Secan reported that appellant did not walk well due to back issues.
Dr. Ngomba examined appellant on October 3, 2015 noting that she had fallen 20 times in the past
six months, and she had been diagnosed with optic neuritis. On October 2, 2015 Dr. Holstein
reported that appellant used a cane or walker due to severe knee degenerative joint disease.
Dr. Moray found on October 4, 2015 that her examination was consistent with peripheral
neuropathy or spinal stenosis. The Board, therefore, finds that the evidence of record is sufficient
to establish that appellant’s fall was caused by appellant’s preexisting conditions and thus, was
idiopathic.

8

M.R. and H.B., id.

9

H.B., id.; Dora J. Ward, 43 ECAB 767, 769 (1992); Fay Leiter, 35 ECAB 176, 182 (1983).

10

A.B., Docket No. 17-1689 (issued December 4, 2018); P.P., Docket No. 15-0522 (issued June 1, 2016); see also
Jennifer Atkerson, 55 ECAB 317 (2004).
11

M.R., supra note 7; P.N., Docket No. 17-1283 (issued April 5, 2018); John R. Black, 49 ECAB 624 (1998); Judy
Bryant, 40 ECAB 207 (1988); Martha G. List, 26 ECAB 200 (1974).
12

D.T., Docket No. 19-1486 (issued January 17, 2020); A.B., Docket No. 17-1689 (issued December 4, 2018); P.P.,
Docket No. 15-0522 (issued June 1, 2016); see also Jennifer Atkerson, 55 ECAB 317 (2004).

7

Further, the Board finds that the evidence of record is insufficient to show that appellant
experienced an intervention or contribution by any hazard or special condition of employment.
Appellant did not allege that she struck any object related to her employment when she fell to the
ground.13 The Board, therefore, finds that appellant’s fall on October 1, 2015, without any further
intervention or contribution by the employing establishment, is considered idiopathic and is
therefore noncompensable.14
Accordingly, appellant has not met her burden of proof to establish that she sustained an
injury in the performance of duty on October 1, 2015, as alleged.
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 an injury in the
performance of duty on October 1, 2015, as alleged.15

13

P.N., supra note 11.

14

Id.

15

The Board notes that where an employing establishment properly executes a Form CA-16 authorizing medical
treatment related to a claim for a work injury, the form creates a contractual obligation, which does not involve the
employee directly, to pay for the cost of the examination/treatment regardless of the action taken on the claim.
Tracy P. Spillane, 54 ECAB 608 (2003). The period for which treatment is authorized by a Form CA-16 is limited to
60 days from the date of issuance, unless terminated earlier by OWCP. See 20 C.F.R. § 10.300(c).

8

ORDER
IT IS HEREBY ORDERED THAT the August 28, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 15, 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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.B., Appellant
and
DEPARTMENT OF JUSTICE, BUREAU OF
PRISONS, METROPOLITAN DETENTION
FACILITY, Brooklyn, NY, Employer
__________________________________________

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

Docket No. 15-1461
Issued: October 9, 2015

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 June 29, 2015 appellant filed a timely appeal from a January 5, 2015 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 a cervical spine injury
in the performance of duty.
FACTUAL HISTORY
On July 30, 2013 appellant, then a 45-year-old engineering technician, filed a traumatic
injury claim (Form CA-1) alleging that on July 29, 2013 he injured the left side of his neck, with

1

5 U.S.C. § 8101 et seq.

pain radiating into his left shoulder and upper extremity, when he attempted to lift a case of
paper. He stopped work on July 30, 2013.
Dr. Neal Smith, an attending Board-certified orthopedic surgeon, provided July 30 and
August 5, 2013 work absence slips diagnosing left cervical radiculitis with a possible cervical
disc herniation. He prescribed medication.2 Dr. Smith held appellant off work from July 30 to
September 2, 2013.
In an August 22, 2013 letter, OWCP advised appellant of the additional evidence needed
to establish his claim, including a description of the work factors believed to have caused the
claimed injury, and a narrative report from his attending physician explaining how and why the
work factors would cause the diagnosed injury.
In response, appellant provided his September 3, 2013 statement explaining that on
July 29, 2013 the case of paper he was lifting fell forward, causing a “pull and pain” in his neck.
The pain worsened overnight, radiating into the left shoulder and arm.
Appellant also provided new treatment notes.3 In a July 30, 2013 report, Dr. Smith
related appellant’s account of left-sided neck pain after lifting a case of paper at work. On
examination he found limited, painful cervical motion. Dr. Smith obtained x-rays demonstrating
a normal cervical alignment. He diagnosed acute left-sided cervical radiculitis with a possible
herniated disc. On August 5, 2013 Dr. Smith diagnosed persistent left-sided cervical radiculitis.
He prescribed physical therapy.4 As appellant’s symptoms improved as of September 6, 2013,
Dr. Smith released him to light duty. He diagnosed persistent left-sided cervical radiculitis, a
small central disc herniation at C4-5, and a left-sided disc herniation at C5-6.5
By decision dated October 4, 2013, OWCP denied the claim, finding that appellant did
not establish causal relationship. It accepted that the July 29, 2013 lifting incident occurred at
the time, place, and in the manner alleged. OWCP found, however, that appellant did not
provide medical evidence supporting that the incident caused the diagnosed cervical radiculitis or
herniated cervical discs.
Appellant disagreed and, in a November 3, 2013 letter, requested a telephonic hearing
before an OWCP hearing representative. He provided a September 10, 2013 light-duty job offer
from the employing establishment, which appellant accepted on September 12, 2013. Appellant
also submitted copies of Dr. Smith’s reports previously of record.
By decision dated April 15, 2014, an OWCP hearing representative set aside the
October 4, 2013 decision, and remanded the case to obtain a supplemental report from Dr. Smith
2

OWCP assigned a medical management nurse to appellant’s case on August 20, 2013. In an August 22, 2013
closure report, the nurse reported that Dr. Smith referred appellant to a pain management specialist for an epidural
injection.
3

Appellant also submitted an August 27, 2013 treatment note lacking a legible signature.

4

Appellant submitted physical therapy notes dated from August 8 to 29, 2013.

5

An August 12, 2013 magnetic resonance imaging scan showed a mild central disc protrusion at C4-5 and a leftsided C5-6 paracentral and foraminal disc protrusion mildly compressing the spinal cord and left lateral recess.

2

addressing any causal relationship between the accepted July 29, 2013 lifting incident and the
claimed cervical spine injury.
In an April 28, 2014 letter, OWCP requested that Dr. Smith provide a “supplemental
report with a detailed well-rationalized opinion regarding any causal relationship” between the
July 29, 2013 lifting incident and the claimed injury. In response, Dr. Smith submitted a
May 13, 2014 report diagnosing a herniated intervertebral disc. He opined that the July 29, 2013
lifting incident was “the competent cause of the injury. [Appellant’s] complaints [were]
consistent with the injury. [His] history of the injury is consistent with [the doctor’s] objective
findings.”
By decision dated May 27, 2014, OWCP denied the claim as causal relationship was not
established. It found that the medical evidence did not include “medical rationale which explains
how lifting a case of paper caused or aggravated the diagnosed condition of herniated cervical
intervertebral disc.”
Appellant disagreed and, in a June 3, 2014 letter, requested a review of the written
record. He also submitted a duplicate copy of Dr. Smith’s May 13, 2014 report.
By decision dated January 5, 2015, an OWCP hearing representative affirmed the
May 27, 2014 decision, finding that causal relationship was not established. He found that
Dr. Smith failed to explain “how and why lifting a case of paper caused or contributed to the
diagnosed cervical condition.”
LEGAL PRECEDENT
An employee seeking benefits under FECA 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
employment injury.6 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.7
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, OWCP begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered
conjunctively. First, the employee must submit sufficient evidence to establish that he or she
actually experienced the employment incident that is alleged to have occurred.8 An employee
has not met his or her burden of proof in establishing the occurrence of an injury when there are
such inconsistencies in the evidence as to cast serious doubt upon the validity of the claim.9
6

Joe D. Cameron, 41 ECAB 153 (1989).

7

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999).

8

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

9

S.N., Docket No. 12-1222 (issued August 23, 2013); Tia L. Love, 40 ECAB 586, 590 (1989).

3

Second, the employee must submit sufficient evidence, generally only in the form of medical
evidence, to establish that the employment incident caused a personal injury.10
The medical evidence required to establish causal relationship is generally 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 implicated employment factors. The
opinion of the physician must be based on a complete factual and medical background of the
claimant, must be one of reasonable medical certainty, and must be supported by medical
rationale explaining the nature of the relationship between the diagnosed condition and the
specific employment factors identified by the claimant.11
ANALYSIS
Appellant claimed that he sustained a cervical spine injury with left upper extremity
symptoms when he tried to lift a case of paper on July 29, 2013. OWCP accepted that the
July 29, 2013 incident occurred as alleged, but denied the claim as the medical evidence did not
establish a causal relationship between those factors and the claimed neck injury.
In support of his claim, appellant submitted reports from Dr. Smith, an attending Boardcertified orthopedic surgeon. In reports from July 30 to August 5, 2013, Dr. Smith diagnosed
left-sided cervical radiculitis. On September 6, 2013 he also diagnosed a left-sided disc
herniation at C5-6. Dr. Smith provided a May 13, 2014 supplemental report noting that the
July 29, 2013 incident caused the claimed injury, that appellant’s presentation was consistent
with the injury, and that the history of injury was consistent with clinical findings. While
Dr. Smith consistently opined that the accepted July 29, 2013 employment incident caused
cervical radiculitis or a herniated cervical disc, he did not provide his medical reasoning
supporting his opinion. Dr. Smith did not set forth the medical mechanics whereby attempting to
lift a case of paper would cause a herniated cervical disc or cervical radiculitis. Because he did
not provide such rationale, Dr. Smith’s opinion is insufficient to establish causal relationship in
this case.12
OWCP advised appellant by August 22, 2013 letter of the necessity of providing a
narrative report from his attending physician with medical rationale supporting causal
relationship. It also requested a supplemental report from Dr. Smith addressing causal
relationship. As appellant did not provide such evidence, OWCP’s January 5, 2015 decision
denying the claim is proper under the law and facts of the case.
On appeal appellant contends that he had supplied the requested documentation to the
best of his ability. He asserts that Dr. Smith’s May 13, 2014 report contained sufficient medical
rationale to establish causal relationship. Appellant notes that Dr. Smith’s staff advised him that
a more detailed report would cost more than $1,000.00. He claimed, and OWCP accepted, that
10

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

11

Solomon Polen, 51 ECAB 341 (2000).

12

Supra note 10.

4

he attempted to lift a case of paper at work on July 29, 2013. However, it remains appellant’s
burden to provide medical evidence establishing that this incident caused the claimed cervical
spine injury. In his multiple reports, Dr. Smith generally supported causal relationship, but did
not set forth his medical reasoning as to why lifting a case of paper would cause the diagnosed
herniated intervertebral disc. Therefore, appellant did not provide sufficient medical evidence to
establish his claim.13
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 did not meet his burden of proof to establish that he
sustained a cervical spine injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 5, 2015 is affirmed.
Issued: October 9, 2015
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

13

Appellant also submitted an August 27, 2013 treatment note lacking a legible signature. As this form lacks an
identifiable physician’s signature, it does not constitute medical evidence. See Merton J. Sills, 39 ECAB 572,
575 (1988).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.E., Appellant
and
DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, Marion, IL, Employer
__________________________________________

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

Docket No. 06-2068
Issued: April 20, 2007

Case Submitted on the Record

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

JURISDICTION
On September 11, 2006 appellant, filed a timely appeal of a March 21, 2006 merit
decision of an Office of Workers’ Compensation Programs’ hearing representative, finding that
he had no more than an eight percent impairment of the left upper extremity, for which he
received a schedule award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this schedule award case.
ISSUE
The issue is whether appellant has more than an eight percent impairment to the left
upper extremity, for which he received a schedule award.
FACTUAL HISTORY
On September 8, 2003 appellant, then a 41-year-old senior correctional officer, filed a
traumatic injury claim. He alleged that on September 6, 2003 he hit the corner of a security
cabinet door with his left shoulder and sustained a possible fracture of the left shoulder blade and
swelling of the arm. Appellant stopped work on September 6, 2003. By letter dated October 30,

2003, the Office accepted appellant’s claim for left shoulder tear. In a letter dated
November 5, 2003, the Office subsequently authorized left shoulder arthroscopic surgery, which
was performed on December 3, 2003 by Dr. William P. Thorpe, a Board-certified orthopedic
surgeon, who indicated that the surgery consisted of partial excision anterior labrum, inferior
labrum and posterior labrum, suture repair of labrum, lavage of humerus and glenoid, shaving of
humerus and glenoid, debridement of humerus and glenoid, total synovectomy, repair of capsule,
removal of cartilage loose body, bursectomy, division of C-A ligament and acromioplasty.
Appellant’s postoperative diagnosis included multi-directional anterior, inferior and posterior
instability, rotator cuff tear with impingement, superior labial anterior posterior (SLAP) Type II
lesion of the left shoulder.
In a February 19, 2004 treatment note, Dr. Thorpe reported that appellant’s left shoulder
had 150 degrees of flexion, 110 degrees of abduction, 65 degrees of external rotation and
70 degrees of internal rotation. Appellant complained of burning pain anteriorly but it was
getting better. Dr. Thorpe reported no sign of muscle weakness, hypoesthesia in the long, ring
and middle fingers of the left hand and a positive Tinel’s sign at the elbow. He noted a history of
the September 6, 2003 employment injury and opined that this injury was consistent with ulnar
nerve compression. Dr. Thorpe recommended an electromyogram/nerve conduction study
(EMG/NCS). A March 16, 2004 EMG/NCS was normal.
In an April 15, 2004 treatment note, Dr. Thorpe reported on physical examination that,
appellant’s arm moved freely and fully passively, there was some diffuse weakness and no
sensory deficit. He noted the medical opinion of Dr. Paul B. Juergens, a pain management
specialist, that appellant had diffuse hypesthesia and that he did not provide any explanation of
his opinion. Dr. Thorpe opined that appellant had healed from his left shoulder surgery and
recommended no use of the left arm as a permanent restriction.
On May 7, 2004 appellant underwent a functional capacity evaluation (FCE), which
found that his subjective reports of pain and associated disability were considered reasonable and
reliable. He could perform light physical work regarding his left upper extremity and activities
with no limitations with regard to his right upper extremity.
In a May 13, 2004 treatment, Scott Peterson, a physician’s assistant, stated that appellant
complained of pain which he characterized as 7 on a scale of 0 to 10 where 0 was no pain and 10
was the worst pain imaginable. On physical examination, he reported some discoloration of the
left palm and mild edema of the left knuckles. Appellant also experienced left shoulder pain and
neuropathic pain of the left upper extremity, which Mr. Peterson suspected was of a sympathetic
origin. Mr. Peterson stated that appellant had limited range of motion of the left upper extremity.
He concluded that he agreed with the FCE work restrictions.
In a May 26, 2004 treatment note, Dr. Juergens indicated that, among other things,
appellant complained of a burning sensation in his fingers and pain in his arm and shoulder that
he characterized as 7 on a scale of 0 to 10. He reported his findings on physical examination and
diagnosed complex regional pain syndrome (CRPS) of the left upper extremity. Dr. Juergens
stated that appellant was also developing reflex sympathetic dystrophy (RSD) of the left upper
extremity. Dr. Juergens’ June 22, 2004 treatment note stated that, therapy had increased
appellant’s pain and he was having trouble with cognitive functions at work and handing people

2

the wrong equipment.1 Appellant complained of pain, swelling, discoloration and temperature
changes in his left upper extremity. On physical examination, Dr. Juergens reported pain of
10 on a scale of 0 to 10. Appellant’s arm had significant modeling, his fingers were held in mild
flexion and there was no allodynia to light touch or palpation. Dr. Juergens diagnosed CRPS I of
the left upper extremity. He opined that, in the absence of a trial of sympathetic blocks or trial
spinal cord stimulation, appellant was at maximum medical improvement. Dr. Juergens further
opined that appellant sustained permanent loss of use of his left upper extremity in his present
employment.
By letter dated July 15, 2004, the Office requested that Dr. Thorpe determine the extent
of appellant’s permanent impairment of the left upper extremity due to the September 6, 2003
employment-related injury based on the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001).
By letter dated July 28, 2004, the Office referred appellant, along with a statement of
accepted facts, the case record and a list of questions to be addressed, to Dr. Raymond A. Ritter,
Jr., a Board-certified orthopedist, for a second opinion medical examination. It requested that
Dr. Ritter provide his orthopedic diagnoses and address whether the diagnosed conditions were
causally related to the accepted employment injury and whether appellant was totally disabled
for work due to his conditions.
On August 2, 2004 the Office received Dr. Juergens’ July 27, 2004 treatment note.
Dr. Juergen stated that appellant complained of severe dysthetic pain of the left upper extremity
with burning pain of the left fourth and fifth fingers and proximal forearm. On physical
examination, he reported pain as 6 to 7 on a scale of 0 to 10. Dr. Juergens stated that appellant
had 60 degrees of forward elevation, minimal backward elevation, 45 degrees of abduction,
60 degrees of internal rotation and 40 degrees of external rotation. He further stated that
appellant had decreased strength of his left hand grip and left triceps’ strength was four out of
five. His shoulder abduction was three out of five and he had mild mottling discoloration of the
left upper extremity. Dr. Juergens concluded that appellant sustained CRPS I of the left upper
extremity.
On August 2, 2004 Dr. Thorpe reported that appellant sustained loss of function due to
pain, discomfort, sensory alteration and RSD. He stated that appellant experienced increased
pain with movement or use of his left upper extremity. Dr. Thorpe indicated that he had burning
dysthetic pain in the anterior shoulder and severe pain in the fourth and fifth fingers. He
provided the same range of motion measurements for appellant’s left shoulder as set forth by
Dr. Juergens in his July 27, 2004 treatment note.
On August 2, 2004 appellant filed a claim for a schedule award.
In a September 23, 2004 report, Dr. Ritter provided a history of appellant’s September 6,
2003 employment-related injury and medical treatment. He noted appellant’s complaint of
severe pain and diminished sensation of the left upper extremity but not in a dermatomal
1

The record reflects that effective June 8, 2004 appellant returned to limited-duty work on a full-time basis. He
stopped work on June 24, 2004.

3

distribution. Dr. Ritter stated that the pain interfered with daily function to the point that
appellant essentially had no use of the left shoulder because of the alleged discomfort. He
reported weakness of the left upper extremity but no atrophy. Appellant had a weak grip and
significant weakness of any ability to move his shoulder in abduction, extension or flexion. He
also had marked restriction of motion as indicated in his range of motion chart. Dr. Ritter stated
that appellant had symptoms of causalgia but there were no objective findings to verify such
symptoms. He diagnosed chronic pain in the left shoulder causally related to the September 6,
2003 employment injury and resultant surgery, possible causalgia, depression and panic disorder.
Dr. Ritter opined that appellant could not perform his regular work duties but that he could
perform the duties of his June 2004 limited-duty job. He opined that it was impossible to
provide an impairment rating based on the A.M.A., Guides, due to the complexity of appellant’s
symptoms. Dr. Ritter stated that he not only had restricted motion, but also his pain pattern had
symptoms of significant pain that seemed to limit his activities, depression, anxiety, weakness
and numbness. Based on a combination of the factors set forth in his report, Dr. Ritter
determined that appellant had a 50 percent impairment of the left upper extremity.
The Office found a conflict in the medical opinion evidence between Drs. Juergens and
Ritter as to whether appellant sustained a work-related injury and if so, whether he had any
continuing residuals of his September 6, 2003 employment injury and whether he could perform
the duties of his date-of-injury job. By letters dated March 10 and 16, 2005, the Office referred
appellant, along with a statement of accepted facts, the case record and a list of questions to be
addressed, to Dr. John J. Sheridan, a Board-certified orthopedic surgeon, for an impartial medical
examination.
In an April 20, 2005 report, Dr. Sheridan provided a history of appellant’s September 6,
2003 employment-related injury and medical treatment. On physical examination, he reported
that light palpation around appellant’s shoulder resulted in some grimacing, withdrawal and
generalized expression of discomfort. He could only weakly initiate abduction, flexion and
external rotation again with grimacing and posturing throughout his body. Dr. Sheridan stated
that his attempts to assist with passive motion were also met with restriction, grimacing and
expression of pain. He could not document any reproducible neurologic deficit in appellant’s
arm. Appellant had no alteration of heat, color or moisture in the left upper extremity. Based on
his examination and medical evidence of record, Dr. Sheridan opined that appellant sustained a
SLAP lesion of the left shoulder although there were numerous other abnormalities that were
presumably identified at the time of surgery. Regarding whether the diagnosed condition was
causally related to the September 6, 2003 employment injury, he stated that there was
documentation of some type of contusion involving the left shoulder, but he seriously doubted
the relationship of Dr. Thorpe’s findings at the time of surgery to the mechanism of injury
reported. Dr. Sheridan stated that appellant continued to complain of residuals related to the
accepted employment injury but noted that there was very little objective evidence to support his
complaints and restricted function. He opined that appellant could not return to his senior
correctional officer position based on a review of his job requirements. Dr. Sheridan stated that
any physical activity or encounter with hostile individuals would put him at medical risk.
Appellant could return to a clerical job that did not require vigorous physical use of his left upper
extremity which restricted pushing, pulling and overhead activities. In a work capacity

4

evaluation form dated March 31, 2005, Dr. Sheridan stated that appellant could perform limitedduty work eight hours per day with restrictions.2
On May 12, 2005 the Office requested that Dr. David Garelick, an Office medical
adviser, review Dr. Juergens’ July 27, 2004 findings and provide a permanent impairment rating
for appellant’s left upper extremity based on the A.M.A., Guides, as well as, the date he reached
maximum medical improvement.
On May 16, 2005 Dr. Garelick reviewed appellant’s medical records including,
Dr. Juergens’ July 27, 2004 findings. He stated that it was going to be very difficult, if not
impossible, to provide an impairment rating based on the A.M.A., Guides. Dr. Garelick
determined that appellant had a Class 4 severe impairment due to a pain disorder (A.M.A.,
Guides 575, Table 18-3). He stated that the only appropriate award at that time would be a five
percent impairment of the left upper extremity for Grade 0 pain in the distribution of the
suprascapular nerve. (A.M.A., Guides 482, 492, Tables 16-10, 16-15). Dr. Garelick found that
appellant had an additional three percent impairment for pain (A.M.A., Guides, 574,
Figure 18-1) because the pain-related impairment appeared to increase the burden of his
condition substantially. He combined the five percent and three percent impairments for pain to
determine that appellant had an eight percent impairment of the left upper extremity (A.M.A.,
Guides 604, Combined Values Chart). Dr. Garelick estimated that the date of maximum medical
improvement occurred one year postoperatively, on December 3, 2004.
By decision dated June 27, 2005, the Office granted appellant a schedule award for an
eight percent impairment of the left upper extremity based on Dr. Garelick’s May 12, 2005
opinion. In a July 25, 2005 letter, appellant requested an oral hearing before an Office hearing
representative.
In a decision dated March 21, 2006, an Office hearing representative affirmed the
June 27, 2005 decision. He found that Dr. Garelick properly utilized the A.M.A., Guides in
determining that appellant had an eight percent impairment of the left upper extremity.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees Compensation Act3 and its
implementing regulation4 set forth the number of weeks of compensation to be paid for
permanent loss or loss of use of the members of the body listed in the schedule. Where the loss
of use is less than 100 percent, the amount of compensation is paid in proportion to the
percentage of loss of use.5 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure

2

Appellant returned to limited-duty work as an assistant control room officer effective May 15, 2005.

3

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

4

20 C.F.R. § 10.404.

5

5 U.S.C. § 8107(c)(19).

5

equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.6
The standards for evaluation the permanent impairment of an extremity under the
A.M.A., Guides are based on loss of range of motion, together with all factors that prevent a limb
from functioning normally, such as pain, sensory deficit and loss of strength. All of the factors
should be considered together in evaluating the degree of permanent impairment.7 Chapter 16 of
the fifth edition of the A.M.A., Guides provides a detailed grading scheme and procedure for
determining impairments of the upper extremities due to pain, discomfort, loss of sensation or
loss of strength.8
It is well established that, when the attending physician fails to provide an estimate of
impairment conforming to the protocols of the A.M.A., Guides, his opinion is of diminished
probative value in establishing the degree of any permanent impairment. In such cases, the
Office may rely on the opinion of its medical adviser to apply the A.M.A., Guides to the findings
reported by the attending physician.9
ANALYSIS
The Office accepted that appellant sustained a left shoulder tear in the performance of
duty on September 6, 2003. The Office found a conflict in the medical opinion evidence
between Dr. Juergens, a treating physician, and Dr. Ritter, an Office referral physician, as to
whether appellant sustained a work-related injury and if so, whether he had any continuing
residuals of his September 6, 2003 employment injury. In a July 27, 2004 treatment note,
Dr. Juergens opined that appellant sustained CRPS I of the left upper extremity. He reported his
range of motion findings which included 60 degrees of forward elevation, minimal backward
elevation, 45 degrees of abduction, 60 degrees of internal rotation and 40 degrees of external
rotation. Dr. Juergens also reported decreased strength of the left hand grip, left triceps’ strength
that was four out of five, shoulder abduction that was three out of five and mild mottling
discoloration of the left upper extremity. In a September 23, 2004 report, Dr. Ritter opined that
appellant sustained employment-related chronic left shoulder pain, possible causalgia, depression
and panic disorder. He opined that it was difficult to determine the extent of his permanent
impairment based on the A.M.A., Guides due to the complexity of his symptoms, noting that he
not only had restricted motion, but also his pain pattern had symptoms of significant pain that
seemed to limit his activities, depression, anxiety, weakness and numbness. Dr. Ritter, however,
opined that he sustained 50 percent impairment of the left upper extremity. He further opined
that appellant could perform limited-duty work with restrictions.

6

Supra note 4.

7

See Paul A. Toms, 28 ECAB 403 (1987).

8

A.M.A., Guides, Chapter 16, The Upper Extremities, pp. 433-521 (5th ed. 2001).

9

See John L. McClanic, 48 ECAB 552 (1997); see also Paul R. Evans, 44 ECAB 646, 651 (1993).

6

The Office properly referred appellant to Dr. Sheridan, selected as the impartial medical
examiner, to resolve the conflict in the medical opinion evidence. In an April 25, 2005 report, he
stated that appellant sustained a SLAP lesion of the left shoulder but doubted that it was
employment related. Dr. Sheridan found that appellant’s complaint of continuing residuals of his
September 6, 2003 employment-related injury were not supported by objective evidence. He
opined that appellant could not return to his date-of-injury position as a correctional officer
because any physical activity or encounter with hostile individuals would put him at medical
risk. Dr. Sheridan, however, opined that he could perform limited-duty work in a clerical
position, eight hours per day with restrictions.10
On May 16, 2005 Dr. Garelick an Office medical adviser, reviewed appellant’s medical
records, including Dr. Juergens’ July 27, 2004 findings. He stated that it was going to be very
difficult, if not impossible, to determine the extent of permanent impairment of appellant’s left
upper extremity without providing any rationale for his opinion. Dr. Garelick determined that
appellant had a Class 4 severe impairment due to a pain disorder (A.M.A., Guides 575,
Table 18-3). He further determined that appellant had five percent impairment of the left upper
extremity for Grade 0 pain in the distribution of the suprascapular nerve. (A.M.A., Guides 482,
492, Tables 16-10 and 16-15). Dr. Garelick found that he had an additional three percent
impairment for pain (A.M.A., Guides, 574, Figure 18-1) because the pain-related impairment
appeared to increase the burden of his condition substantially. However, according to section
18.3b, page 571 of the A.M.A., Guides, examiners should not use Chapter 18 to rate pain-related
impairments for any condition that can be adequately rated on the basis of the body and organ
rating systems found in the other chapters.11 Office procedures provide that Chapter 18 is not to
be used in combination with other methods to measure impairment due to sensory pain (Chapters
13, 16 and 17).12 Thus, Dr. Garelick did not properly justify this additional allocation of three
percent for appellant’s pain. He utilized the Combined Values chart on page 604 of the A.M.A.,
Guides to determine that appellant had an eight percent impairment of the left upper extremity.
However, as noted, appellant was not entitled to the three percent impairment under Chapter 18.
Moreover, Dr. Garelick failed to apply the tables and figures of the A.M.A., Guides to
Dr. Juergens’ range of motion measurements for appellant’s left upper extremity. Thus, the
hearing representative’s March 21, 2006 decision must be set aside and the case remanded to the
Office. Upon remand, the Office will refer the case to an Office medical adviser to determine
appellant’s left upper extremity impairment by including the range of motion measurements
provided by Dr. Juergens. Following this and any other development deemed necessary, the
Office shall issue an appropriate decision regarding appellant’s entitlement to a schedule award
for permanent impairment of his left upper extremity.

10

The Board notes that the Office did not ask Dr. Sheridan to determine whether appellant sustained any
permanent impairment based on the A.M.A., Guides due to his September 6, 2003 employment-related injury and he
did not offer an opinion regarding this issue.
11

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(June 2003); Philip A. Norulak, 55 ECAB 690 (2004).
12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

7

CONCLUSION
The Board finds that this case is not in posture for decision as to whether appellant has
more than an eight percent impairment of the left upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the March 21, 2006 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this decision of the Board.
Issued: April 20, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

8