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

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

Docket No. 13-1857
Issued: February 5, 2014

Case Submitted on the Record

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

JURISDICTION
On August 6, 2013 appellant filed a timely appeal from a May 29, 2013 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of the case.
ISSUE
The issue is whether appellant has more than two percent permanent impairment of the
right leg for which she received a schedule award.
FACTUAL HISTORY
On January 4, 2009 appellant, then a 38-year-old mail handler, was injured when a
bundle of magazines fell on her right foot. OWCP accepted the claim for contusion of the right
foot; contusion of the right toe; a bone cyst, right side; other disorders of the bone and cartilage
1

5 U.S.C. §§ 8101-8193.

on the right; ganglion and cyst of synovium, tendon and bursae on the right; right tarsal tunnel
syndrome; and temporary aggravation of intervertebral disc disease. Appellant stopped work on
January 5, 2009 and returned to full-time limited duty on August 2, 2009.2
A February 11, 2009 right foot magnetic resonance imaging (MRI) scan revealed osseous
contusion on the dorsal medial aspect of the first metatarsal head without gross cortical offset
and no fracture through the shaft of the metatarsal. Appellant was treated by Dr. Jesse Plasencia,
a podiatrist, from February 26 to May 21, 2009, for right foot pain in the anterior joint space
medial to the tibialis anterior tendon after a work-related injury. Dr. Plasencia noted lateral
x-rays revealed joint space narrowing and no obvious fracture with bone cysts. On May 11,
2009 he performed an authorized excision of cystic bone, first metatarsal head of the right foot
and diagnosed bone cyst, first metatarsal with hypertrophic first metatarsal head of the right foot.
Dr. Malcolm Herzog, a podiatrist, also treated appellant for the work injury. He noted
appellant had a compensatory gait, but excellent range of motion dorsally and plantarly of the
first metatarsophalangeal joint. On July 14, 2009 Dr. Herzog noted a cystic lesion on the plantar
aspect of the first metatarsal head of the right foot and diagnosed fibroma, ganglion cyst. On
February 25, 2010 he performed an authorized excision of a mass on the plantar aspect of the
right foot.
Appellant came under the treatment of Dr. Robert J. Fink, a Board-certified orthopedic
surgeon, from July 31, 2010 to August 11, 2011. Dr. Fink diagnosed tarsal tunnel syndrome and
recommended surgery to release the serpiginous varicosities around the medial plantar nerve and
tarsal tunnel of the right ankle. On December 16, 2010 he performed an authorized tarsal tunnel
release of the right ankle and ligation of varicose veins of the right ankle and diagnosed tarsal
tunnel syndrome of the right foot and varicose veins of the right foot.3
Appellant was treated by Dr. Anatoly Rozman, a Board-certified physiatrist, on
September 24, 2012 and February 1, 2013 for low back pain radiating into her legs which
developed while she was working. Dr. Rozman noted that appellant had surgery for a foot cyst,
ganglion cyst and tarsal tunnel syndrome. He opined that the MRI scan revealed sciatica and
2

On June 29, 2010 appellant injured her right foot which was accepted for right tarsal tunnel syndrome, File No.
xxxxxx075. On September 18, 2005 she injured her right shoulder which was accepted for right shoulder strain, File
No. xxxxxx216. These claims are consolidated with the current claim before the Board.
3

Also submitted were reports of diagnostic testing. A July 1, 2010 right ankle MRI scan revealed serpiginous
varicosities in the tarsal tunnel consistent with early tarsal tunnel syndrome. A July 1, 2010 electrophysiologic study
of the peroneal nerves on both sides were normal, findings suggest mild focal entrapment of the right tibial nerve
above the tarsal ligament with no evidence of peripheral neuropathy. An August 5, 2010 electromyogram (EMG)
and nerve conduction studies revealed of bilateral superficial and sural nerves revealed spared peak latencies and
reduce amplitude, more on the left side. Motor nerve conduction studies of bilateral common peroneal and tibial
nerves were normal. The EMG revealed mild spontaneous denervating activity in the bilateral gastrocnemius
muscles and mild spontaneous denervating activity at L5-S1 bilaterally. A July 29, 2011 nerve conduction study
revealed right lower lumbar radiculopathy at L5-S1, left lower lumbar radiculopathy at L5, decreased amplitude of
the tibial nerve, right tarsal tunnel syndrome, no response on stimulation of the medial plantar nerve and decreased
amplitude of the lateral plantar nerve on the same side and mild to moderate left tarsal tunnel syndrome. A
December 27, 2010 lumbar MRI scan showed lumbar spondylosis, mild bilateral neural foramen stenosis due to a
disc bulge at L4-5 and L5-S1.

2

L5-S1 radiculopathy which he opined was related to repetitive lifting and physical stress to her
back performing her job as a mail clerk. Dr. Rozman stated that appellant reached maximum
medical improvement.
On April 11, 2013 appellant filed a claim for a schedule award.
On April 18, 2013 OWCP requested that appellant submit a rating of permanent
impairment pursuant to the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment4 (A.M.A., Guides).
In a March 25, 2013 report, Dr. Rozman advised that appellant reached maximum
medical improvement on February 25, 2013. He noted pain on palpation of the first metatarsal
joint with deformities, positive Tinel’s sign, right tarsal tunnel syndrome with decreased
sensation in the distribution of the median and plantar nerve, no significant motor deficit,
positive straight leg testing bilaterally, decreased sensation at L4-5 with antalgic gait on the right
side due to tarsal tunnel syndrome. Dr. Rozman referenced Table 17-4, page 570, Lumbar Spine
Regional Grid, of the A.M.A., Guides and noted appellant was a class 2 with intervertebral disc
herniation for 12 percent whole person impairment. He applied grade modifiers and used the net
adjustment formula to find 14 percent whole person impairment. For the bone cyst, Dr. Rozman
rated appellant pursuant to Table 16-2, page 501, Foot and Ankle Regional Grid, noting
appellant was a class 1 with a default value C, for one percent impairment of the lower
extremity. He noted applying the grade modifiers, pursuant to Table 16-6, he found a grade
modifier 2 for moderate problems for Functional History (GMFH), grade modifier 2 for Physical
Examination (GMPE), pursuant to Table 16-7, and grade modifier 1 for Clinical Studies
(GMCS), pursuant to Table 16-8. Dr. Rozman utilized the adjustment formula to find a net
adjustment of 2 which yielded three percent permanent impairment of the leg. He noted the
impairment rating for right tarsal tunnel syndrome, Table 16-12, page 536, Peripheral Nerve
Impairment -- Lower Extremity Impairment, appellant was a class 1, with a default value C for
two percent impairment of the lower extremity. Dr. Rozman noted no significant motor deficit.
He noted applying grade modifiers, he found GMCS of one, a GMFH of two and a GMPE of two
(moderate problems). Dr. Rozman utilized the net adjustment formula to find a net adjustment
of two, which yielded a grade E impairment of four percent right lower extremity impairment.
In an April 28, 2013 report, OWCP’s medical adviser reviewed Dr. Rozman’s report. He
noted that appellant underwent a tarsal tunnel release and a ganglion cyst removal on
December 16, 2010. The surgical report noted the ganglion cyst was in reality a varicose vein
which could have contributed to the tarsal tunnel syndrome and was routinely removed during
the tunnel release. Therefore, the medical adviser noted that the ganglion cyst would not be
rated. He noted that, while Dr. Rozman rated impairment due to degeneration of the
lumbar/lumbosacral intervertebral disc, whole person spinal impairment was not permissible
under OWCP regulations. The medical adviser noted that the contusions of the right toe and foot
resolved and were class zero diagnoses with no permanent impairment. He noted that appellant
had right ankle pain and functional deficits with sensory losses in the branches of the posterior
tibial nerve distribution. On examination, appellant had full range of motion of the ankle with
4

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

3

slightly decreased sensation along the posterior tibial nerve distribution, positive Tinel’s sign
over the tarsal tunnel and increasing antalgic gait. The medical adviser noted that, under Table
16-12, A.M.A., Guides, Peripheral Nerve Impairment -- Lower Extremity Impairments, appellant
had a class 1 diagnoses, tibial nerve entrapment with mild sensory deficit, which yielded a
default grade C impairment of two percent. He applied grade modifiers, finding GMFH of 1,
pursuant to Table 16-6, (for a limp) for a mild problem; and a GMPE of 1 at Table 16-7, for a
mild problem (neutral alignment, full range of motion with minimal palpatory findings). He
advised that clinical studies were not applicable. The medical adviser utilized the net adjustment
formula to find a net adjustment of zero correlated to two percent impairment of the right leg.
On May 29, 2013 appellant was granted a schedule award for two percent impairment of
the right leg. The period of the award was March 10 to April 19, 2013.
LEGAL PRECEDENT
The schedule award provision of FECA5 and its implementing federal regulations6 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.7 For decisions after
February 1, 2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.8
For decisions issued beginning May 1, 2009, the sixth edition of the A.M.A., Guides will be
used.9
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).10 Under the sixth edition, for lower extremity impairments the evaluator
identifies the impairment class for the diagnosed condition (CDX), which is then adjusted by
grade modifiers based on GMFH, GMPE and GMCS.11 The net adjustment formula is (GMFH CDX) + (GMPE - CDX) + (GMCS - CDX).12 The grade modifiers are used on the net
adjustment formula described above to calculate a net adjustment. The final impairment grade is
5

5 U.S.C. § 8107.

6

20 C.F.R. § 10.404.

7

Id. at § 10.404(a).

8

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

9

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

10

A.M.A., Guides, 3, section 1.3, The International Classification of Functioning, Disability and Health (ICF): A
Contemporary Model of Disablement.
11

Id. at 494-531.

12

Id. at 521.

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determined by adjusting the grade up or down the default value C, by the calculated net
adjustment.13
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical consultant for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides with the medical consultant
providing rationale for the percentage of impairment specified.14
ANALYSIS
The sixth edition of the A.M.A., Guides provides that lower extremity impairments be
classified by diagnosis which is then adjusted by grade modifiers according to the formula noted
above.15 Appellant’s accepted conditions include contusion of the right foot, contusion of the
right toe, cyst of bone, right side, other disorders of the bone and cartilage on the right, ganglion
and cyst of synovium tendon and bursae on the right, right tarsal tunnel syndrome and temporary
aggravation of intervertebral disc disease. OWCP authorized a May 11, 2009 excision of cystic
bone, first metatarsal head of the right foot and a December 16, 2010 tarsal tunnel release of the
right ankle and ligation of varicose veins of the right ankle. On May 29, 2013 appellant was
granted a schedule award for two percent permanent impairment of the right lower extremity
using the sixth edition of the A.M.A., Guides.
The Board has carefully reviewed Dr. Rozman’s report of March 25, 2013 and notes that
he did not adequately explain how his rating was reached in accordance with the relevant
standards of the A.M.A., Guides.16 Dr. Rozman noted that appellant had 14 percent whole
person impairment due to her lumbar spine condition. However, for rating impairment of the
upper or lower extremities caused by a spinal injury, lower extremity impairments are generally
rated as provided in Exhibit 4 of section 3.700 of OWCP’s procedures which identifies proposed
Table 2 of The Guides Newsletter, July/August 2009 which is to be used in rating lower
extremity impairments caused by spinal nerve injury.17 Dr. Rozman provided a spinal
impairment rating for the whole person, however, such impairment is not allowed under FECA.18
He rated appellant for a ganglion bone cyst pursuant to Table 16-2, page 501, Foot and Ankle
Regional Grid, noting she was a class 1 with a default value C, for one percent impairment of the
lower extremity. Dr. Rozman noted applying the grade modifier for functional history, physical
examination and clinical studies which yielded three percent permanent impairment of the lower
13

Id. at 497.

14

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
15

Supra notes 11, 12.

16

See Tonya R. Bell, 43 ECAB 845, 849 (1992).

17

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4
(January 2010).
18

N.D., 59 ECAB 344 (2008).

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extremity. However, the Board notes that the December 16, 2010 surgical report notes the
ganglion cyst was a varicose vein and therefore it was inappropriate to rate appellant under Table
16-2, Foot and Ankle Grid, for a ganglion cyst. Dr. Rozman also rated a right tarsal tunnel
syndrome under Table 16-12, page 536, peripheral nerve. Appellant was class 1, with a default
value C for 2 percent impairment of the lower extremity. He noted no significant motor deficit.
Dr. Rozman noted applying grade modifiers, he found clinical studies modifier of 1, a functional
history modifier of 2 and a physical examination modifier of 2 (moderate problems) to conclude
that appellant had four percent impairment. However, he failed to adequately explain how he
determined she had a functional history and physical examination modifier of two for a moderate
problem. Although appellant had a reported antalgic limp, it was not in the presence of
objectively defined significant pathology and she had no reported external orthotic device,
routine use of a single gait aid or positive Trendelenburg’s test. Therefore, the selected modifier
was inappropriate. Further, Dr. Rozman noted a physical examination modifier of 2 but he failed
to explain his determination in light of findings of neutral alignment, full range of motion and
minimal palpatory findings. Therefore the Board finds that he did not adequately follow the
A.M.A., Guides and his report is of diminished probative value where the A.M.A., Guides were
not properly followed.19
On April 28, 2013 OWCP’s medical adviser reviewed Dr. Rozman’s report. He noted
that appellant underwent a tarsal tunnel release and a ganglion cyst removal on
December 16, 2010. The medical adviser explained that the operative report noted the ganglion
cyst was in reality a varicose vein such that the ganglion cyst would not be rated as it was an
incorrect diagnosis. While Dr. Rozman rated whole person impairment for appellant’s lumbar
condition, the medical adviser explained that this was not ratable under OWCP standards. He
noted that the contusions of the right toe and foot had resolved and thus were not ratable. For
right tarsal tunnel syndrome, the medical adviser noted that appellant had right ankle pain and
functional deficits with sensory losses in the branches of the posterior tibial nerve distribution.
He noted on physical examination, she had full range of motion of the ankle with slightly
decreased sensation along the posterior tibial nerve distribution, positive Tinel’s sign over the
tarsal tunnel and increasing antalgic gait. Under Chapter 16 of the sixth edition of the A.M.A.,
Guides, appellant had two percent impairment of the right leg. Using the A.M.A., Guides, the
medical adviser properly found that, in accordance with Table 16-12, A.M.A., Guides, for
peripheral nerve impairment, appellant had a class 1 diagnosis, tibial nerve entrapment with mild
sensory deficit, which yielded a default grade C impairment of two percent. He applied the
modifiers for functional history, physical examination and clinical studies found in Table 16-6,
Table 16-7 and Table 16-8.20 The medical adviser applied grade modifiers, finding a grade 1 for
functional history, pursuant to Table 16-6, (for a limp) for a mild problem; a grade 1 for physical
examination at Table 16-7, for a mild problem (neutral alignment, full range of motion with
minimal palpatory findings) and with clinical studies not applicable. The medical adviser
utilized the net adjustment formula to find a net adjustment of zero which yielded a grade C
modifier or two percent impairment of the right lower extremity.
19

See Paul R. Evans, Jr., 44 ECAB 646 (1993); John Constantin, 39 ECAB 1090 (1988) (medical report not
explaining how the A.M.A., Guides are utilized is of little probative value).
20

Id. at 516-19.

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OWCP’s medical adviser properly utilized and explained his calculations under the sixth
edition of the A.M.A., Guides. The Board finds that the weight of medical evidence establishes
two percent permanent impairment of appellant’s right leg. This rating was based on the
applicable protocols and tables of the sixth edition of the A.M.A., Guides. There is no evidence
in accordance with the A.M.A., Guides which supports that appellant sustained a higher
impairment.
On appeal, appellant argues that she sustained a greater impairment than that determined
by OWCP’s medical adviser. She asserts that Dr. Rozman properly calculated a higher
impairment of the lower extremity. However, as noted above, Dr. Rozman failed to adequately
explain how his determination was reached in accordance with the relevant standards of the
A.M.A., Guides.21 Additionally, as noted, the record does not contain any probative medical
evidence to establish greater impairment under the sixth edition of the A.M.A., Guides.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has two percent impairment of the right lower extremity,
for which she received a schedule award.

21

See Tonya R. Bell, 43 ECAB 845, 849 (1992).

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ORDER
IT IS HEREBY ORDERED THAT the May 29, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 5, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Richmond, VA, Employer
__________________________________________

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

Docket No. 19-1209
Issued: November 20, 2019

Case Submitted on the Record

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

JURISDICTION
On May 9, 2019 appellant filed a timely appeal from a November 19, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty on April 27, 2018, as alleged.

1
2

5 U.S.C. § 8101 et seq.

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

FACTUAL HISTORY
On April 27, 2018 appellant, then a 59-year-old city carrier, filed a traumatic injury claim
(Form CA-1) alleging that he sustained a left arm injury, and possibly a torn rotator cuff on that
day while in the performance of duty. In an accompanying statement dated April 27, 2018
appellant related a history of injury that he “[w]as rolling my cart of mail out to load in van. There
was a wire con in the way of loading dock. Pushed it up on left and pulled something in my upper
left arm.” On the reverse side of the claim form, the employing establishment indicated that
appellant stopped work on the date of injury.
In reports dated April 27, and May 10, 2018, Allyson Hudson, a physician assistant,
examined appellant and diagnosed left rotator cuff tear and left shoulder pain. She indicated that
appellant injured his shoulder when he was pushing something heavy up a ramp and it fell
backward hitting his shoulder.
In a development letter dated May 23, 2018, OWCP noted that appellant’s case had been
reopened for consideration because he had not returned to work in a full-time capacity. It advised
him of the deficiencies of his claim, requested that he provide additional factual and medical
evidence to establish his claim, and provided a questionnaire for his completion. OWCP afforded
appellant 30 days to submit the necessary evidence.
Appellant submitted a series of physical therapy reports dated May 10, 16, 18, 21, 23, and
June 1, 4, 8, and 12, 2018. The initial report dated May 10, 2018 noted a history of injury that
appellant was trying to stop a heavy cart at work which caused him to wrench his left shoulder.
In a report June 6, 2018, Dr. Paul Kiritis, a Board-certified orthopedic surgeon, noted
appellant’s history of injury as: “left shoulder injury which occurred on April 27, 2018 when he
was pushing a 300[-]pound postal cart.” Based on x-ray imaging, Dr. Kiritis diagnosed adhesive
capsulitis of the left shoulder.
OWCP received a second handwritten statement from appellant dated April 27, 2018 in
which he explained that he “was pushing wire con out of way so I could load my mail and wire
con jammed on something and it pulled my left arm.”
By decision dated June 25, 2018, OWCP denied appellant’s claim finding that the evidence
of record was insufficient to establish that the injury and/or events occurred in the performance of
duty on April 27, 2018, as alleged. It also noted that he had not submitted evidence to establish
that his diagnosed medical condition was causally related to the alleged employment incident.
In a second traumatic injury claim (Form CA-1) dated June 25, 2018, appellant alleged that
on April 27, 2018 he sustained a left shoulder injury when he pushed a “wire con” onto a lift gate
while in the performance of duty. A witness statement on the claim form related that a coworker
heard appellant “holler” on April 27, 2018 and saw him holding his left shoulder and tremble in
pain.
On July 16, 2018 appellant requested a review of the written record by an OWCP hearing
representative, and submitted additional evidence.

2

In a report dated May 9, 2018, received by OWCP on July 19, 2018, Dr. Kiritis noted that
appellant reported that, while he pushed a heavy postal cart up a ramp, it stuck to a hinge, and
jarred his shoulder. He diagnosed adhesive capsulitis of the left shoulder and a tear of the left
rotator cuff.
In a report dated June 19, 2018, Dr. Kiritis indicated that appellant returned for a followup examination regarding his diagnosed left shoulder adhesive capsulitis. He noted that appellant
requested to proceed with a manipulation of the left glenohumeral joint with a concomitant
injection of steroid. In a duty status report (Form CA-17) of the same date, Dr. Kiritis diagnosed
adhesive capsulitis and noted that the injury occurred when appellant was pushing equipment while
in the performance of duty. He indicated that he was able to return to work full time with
restrictions.
OWCP continued to receive physical therapy reports.
In a report dated July 30, 2018, Dr. Kiritis indicated that, on July 17, 2018, appellant
underwent left shoulder arthroscopy which involved manipulation with injection of glenohumeral
joint.
By decision dated November 19, 2018, an OWCP hearing representative affirmed the
June 25, 2018 decision.
LEGAL PRECEDENT
A claimant seeking benefits under FECA3 has the burden of proof to establish the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including 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, that an injury was sustained
in the performance of duty as alleged, and that any specific condition or disability claimed is
causally related to the employment injury.4 These are the essential elements of each and every
compensation claim, regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.5
To determine if an employee sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. Fact of injury
consists of two components that must be considered in conjunction with one another. The first

3

Supra note 1.

4

20 C.F.R. § 10.115(e), (f); see Jacquelyn L. Oliver, 48 ECAB 232, 235-36 (1996).

5
D.T., Docket No. 18-0035 (issued May 10, 2019); 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).

3

component is whether the employee actually experienced the employment incident that allegedly
occurred.6 The second component is whether the employment incident caused a personal injury.7
An employee’s statement that an injury occurred at a given time and in a given manner is
of great probative value and will stand unless refuted by strong or persuasive evidence.8 Moreover,
an injury does not have to be confirmed by eyewitnesses. The employee’s statement, however,
must be consistent with the surrounding facts and circumstances and his subsequent course of
action. An employee has not met his or her burden of proof to establish 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
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish an injury in the
performance of duty on April 27, 2018, as alleged.
The Board finds that there are inconsistencies in the evidence of record surrounding
appellant’s allegations regarding the manner in which the alleged incident occurred which cast
serious doubt on appellant’s description of the alleged incident. While the evidence supports that
appellant pushed a wire con on April 27, 2018, the evidence is inconsistent regarding the
mechanism of injury. Appellant did not provide the detailed account of the alleged incident,
specific enough to establish a mechanism of injury, as required in a claim for traumatic injury.10
In his initial notes accompanying his April 27, 2018 Form CA-1, appellant indicated that
he pulled something in his left shoulder causing an injury when he pushed a wire con out of the
way. In a second April 27, 2018 statement, he related that he was pushing a wire con out of the
way when the wire con jammed and pulled his left arm. In a second traumatic injury claim form
(Form CA-1) dated June 25, 2018, appellant explained that he had sustained a left shoulder injury
when he pushed a “wire con” onto a lift gate. Appellant’s statements indicate that in one version,
he was simply pushing the wire con when he injured his left shoulder, while in another version he
alleged that the wire con jammed and pulled his left arm. His allegations are inconsistent and do
not relate with specificity the mechanics of how he had sustained the claimed injury.11
The history of injury appellant provided to his medical providers further related
inconsistent descriptions of the mechanism of injury. Ms. Hudson’s report, dated April 27, 2018,
related that while appellant was pushing a cart up a ramp, it fell backward and injured his shoulder.
Dr. Kiritis’ report, dated June 6, 2018, related that as appellant pushed a heavy postal cart up a
6

D.T., id.; Elaine Pendleton, 40 ECAB 1143 (1989).

7

D.T., id.; John J. Carlone, 41 ECAB 345 (1989).

8

M.S., Docket No. 18-0059 (issued June 12, 2019); D.B., 58 ECAB 464, 466-67 (2007).

9

See E.C., Docket No. 19-0943 (issued September 23, 2019).

10

Id.

11

See A.M., Docket No. 08-1835 (issued February 9, 2009).

4

ramp, it stuck to a hinge, and jarred his shoulder. Furthermore, the initial history of injury provided
in the physical therapy reports related that appellant wrenched his left shoulder when he was trying
to stop a heavy cart. The medical record therefore reflects that appellant did not report a consistent
history of injury to his medical providers. The Board finds that appellant has not established that
he sustained an injury in the performance of duty on April 27, 2018 as alleged because he did not
submit sufficient evidence to establish that he actually experienced the incident in the manner
alleged.12 As appellant did not provide a consistent description of the alleged employment incident
and the mechanism by which he sustained an injury, he has not met his burden of proof.13
The Board finds that appellant has not met his burden of proof to establish that the April 27,
2018 incident occurred in the performance of duty, as alleged. Consequently, it is unnecessary to
address the medical evidence of record regarding causal relationship.14
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 his burden of proof to establish an injury in the
performance of duty on April 27, 2018, as alleged.

12

Id.

13

H.D., Docket No. 15-1698 (issued May 4, 2016).

14
J.C., Docket No. 19-0542 (issued August 14, 2019); see M.P., Docket No. 15-0952 (issued July 23, 2015); Alvin
v. Gadd, 57 ECAB 172 (2005).

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ORDER
IT IS HEREBY ORDERED THAT the November 19, 2018 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: November 20, 2019
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
D.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Philadelphia, PA, Employer
___________________________________________

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

Docket No. 10-397
Issued: January 26, 2011

Case Submitted on the Record

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

JURISDICTION
On November 30, 2009 appellant filed a timely appeal from an October 29, 2009 decision
of the Office of Workers’ Compensation Programs which found that she abandoned her request
for a hearing and from an October 23, 2009 merit decision which denied her claim for disability
compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
these issues.
ISSUES
The issues on appeal are: (1) whether appellant met her burden of proof to establish that
she was disabled for the period September 9 to December 30, 2008; and (2) whether the Office
properly found that appellant abandoned her request for a hearing.
FACTUAL HISTORY
On October 26, 2007 appellant, then a 32-year-old letter carrier, sustained injury to her
right foot and toe while in the performance of duty. She did not immediately stop work but

continued to work with restrictions.1 On December 18, 2008 the Office accepted the claim for
contusion of the right foot.
In a December 31, 2008 report, Dr. Gene Shaffer, a Board-certified orthopedic surgeon,
noted appellant’s history of injury and treatment that included the use of a cam walker boot,
limited weight bearing and physical therapy. He found evidence of tendinitis and noted that a
generalized ankle dysfunction was difficult to rule out. A December 31, 2008 right ankle x-ray
revealed mild spurring at the distal fibula. A December 31, 2008 right foot x-ray revealed mild
hallux valgus deformity with associated osteoarthritis of the first metatarsophalangeal (MTP)
joint. The Office also received physical therapy reports.
In a letter dated January 3, 2009, appellant requested assistance with regard to her left
foot and her limited-duty position.
In a letter dated January 5, 2009, Katherine Howard, a customer services supervisor,
controverted the claim. She noted that appellant was presently alleging an injury to her left foot
as a result of over compensating for the right foot. Ms. Howard noted that appellant’s physician
cleared her from her right foot injury in December 2007.
On February 2, 2009 appellant filed a claim for wage-loss compensation for total
disability from August 30, 2008 through January 30, 2009.
By letter dated February 11, 2009, the Office informed appellant of the type of evidence
needed to support her claim. It requested that she submit additional medical evidence within 30
days. The Office noted that appellant had returned to regular duty on December 11, 2007.2
In a December 19, 2007 treatment note, Dr. Marks related that appellant continued to
have pain and spasm in her foot. He noted a left foot crush injury. On March 10, 2009
Dr. Marks diagnosed a crushed right foot. He advised that the original injury was not a
contusion, but a crush. Dr. Marks noted that appellant was on crutches for two weeks and unable
to return to full duty. He advised that despite her restrictions she was able to work full time.
Dr. Marks advised that appellant was on maternity leave from April 20 to September 9, 2008.
He opined that she could return to work and resume her restrictions, which included that she not
exceed the two-hour restriction of standing, climbing, walking, running or anything else that
caused physical activity or pressure on her right foot. A February 26, 2009 magnetic resonance
imaging (MRI) scan of the right foot was unremarkable. A March 16, 2009 MRI scan of the

1

On December 26, 2007 appellant accepted a modified assignment comprised of casing mail with no lifting over
10 pounds for more than an hour, no standing for more than an hour and no walking for more than an hour. In a
December 18, 2008 memorandum of telephone call, the Office confirmed that she returned to limited duty on
December 26, 2007 and continued in that capacity until March 2008, when she was placed off work due to
pregnancy complications. Appellant returned to the limited-duty position on September 4, 2008.
2

The Office processed appellant’s claim for 142.98 hours from September 9 to December 30, 2008. On
February 25, 2009 it determined that an overpayment occurred because the medical evidence did not support
payment for this period. In a letter dated February 26, 2009, the Office advised appellant that she must return the
check as it was paid in error. On March 20, 2009 the check was returned and cancelled.

2

right ankle revealed a small osteochondral defect in the posterolateral corner of the talar dome
with no features of instability.
In a March 18, 2009 report, Dr. Shaffer noted that the diagnostic reports revealed an
osteochondral lesion in the talar dome with some subchondral bone edema. He noted that
appellant was treated with an injection. In an April 15, 2009 report, Dr. Shaffer noted that she
had right ankle pain and requested authorization for arthroscopic surgery.
In a May 14, 2009 decision, the Office denied authorization for ankle arthroscopy and
surgery. It found that the medical evidence did not support a crush injury.
On June 10, 2009 appellant requested a telephonic hearing on the denial of surgery. The
hearing was set for October 8, 2009.
In a letter dated June 11, 2009, appellant indicated that her original injury was initially
diagnosed as a contusion of her foot; however, it was later determined to be crushed. When she
returned to work, although it was documented as full duty, she was still on crutches. Appellant
noted that she had to stop physical therapy while she was pregnant.
In a July 27, 2009 report, Dr. Shaffer, diagnosed right talar osteochondral lesion and left
ankle instability. The Office also received a July 16, 2009 report from a physician’s assistant.
On August 26, 2009 the Office provided appellant notice of the telephonic hearing
scheduled for October 8, 2009, advising her of the time of the hearing, the telephone number to
be called and the pass code to be entered.
In an October 8, 2009 telephone memorandum, the Office noted that appellant called
regarding the hearing number and passcode for the hearing, which was set for that day.
Appellant explained that she did not have “the paper with her.” The Office provided her with the
time of the hearing, 9:45 a.m., the telephone number and passcode.
In a memorandum of telephone call dated October 23, 2009, appellant inquired about her
claim for compensation for the period September 9 to December 30, 2008. The Office explained
that it would issue a formal decision and noted that it had only accepted a right foot contusion.
By decision dated October 23, 2009, the Office denied appellant’s claim for
compensation from September 9 to December 30, 2008. It found that the claim was accepted for
a foot contusion and that appellant failed to submit sufficient medical evidence to establish any
additional injuries or show disability for the claimed period.

3

By decision dated October 29, 2009, the Office found that appellant abandoned her oral
hearing request as she failed to appear at the hearing and did not contact the Office prior to or
subsequent to the hearing date to explain her absence.3
LEGAL PRECEDENT -- ISSUE 1
The Board notes that the term “disability,” as used in the Federal Employees’
Compensation Act means incapacity, because of an employment injury, to earn the wages that
the employee was receiving at the time of injury.4 For each period of disability claimed, the
employee has the burden of establishing that he or she was disabled for work as a result of the
accepted employment injury. Whether a particular injury causes an employee to become
disabled for work and the duration of that disability are medical issues that must be proved by a
preponderance of probative and reliable medical opinion evidence.5 The fact that a condition
manifests itself during a period of employment does not raise an inference that there is a causal
relationship between the two.6 The Board will not require the Office to pay compensation for
disability in the absence of medical evidence directly addressing the specific dates of disability
for which compensation is claimed. To do so would essentially allow an employee to self-certify
her disability and entitlement to compensation.7
ANALYSIS -- ISSUE 1
Appellant sustained a right foot contusion on October 6, 2007. She continued at work
under restrictions and performed limited-duty work until March 2008 when she stopped work
due to her pregnancy. She returned to limited-duty work on September 4, 2008 and thereafter
claimed wage-loss compensation from September 9 to December 30, 2008.
On December 31, 2008 Dr. Shaffer noted appellant’s history of injury and treatment. He
noted that the ankle appeared to have evidence of tendinitis or possible generalized ankle
dysfunction. The Board notes that Dr. Shaffer did not provide any opinion that appellant was
disabled from work for the claimed period and is of limited probative value. The other reports of
Dr. Shaffer did not address whether appellant’s work injury caused disability during the claimed
period. In a March 10, 2009 report, Dr. Marks diagnosed a crushed right foot. He noted that
appellant was on crutches for two weeks and unable to return to full duty but was able to work
full time. Dr. Marks noted her maternity leave from April 20 to September 9, 2008 and advised
3

In a letter postmarked November 24, 2009, appellant requested a review of the written record from the
October 23, 2009 decision. On December 9, 2009 the Office denied the request for a review of the written record.
Appellant filed her appeal with the Board on November 30, 2009. The December 9, 2009 decision is null and void
as the Board and the Office may not simultaneously have jurisdiction over the same case. The Office may not issue
a decision granting or denying a request for a hearing or review of the written record regarding the same issue on
appeal before the Board. See Arlonia B. Taylor, 44 ECAB 591 (1993).
4

Patricia A. Keller, 45 ECAB 278 (1993).

5

Fereidoon Kharabi, 52 ECAB 291 (2001).

6

Manuel Garcia, 37 ECAB 767 (1986).

7

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, supra note 5.

4

that she was subsequently able to resume her work with restrictions. His report did not offer any
opinion finding appellant was disabled for work due to the accepted right foot contusion for the
period at issue. Instead, Dr. Marks supported that appellant could work within restrictions. His
other treatment notes did not address disability for the claimed period.
Appellant also submitted other medical reports including several diagnostic reports.
However, these reports did not contain any discussion of whether she was disabled for the period
commencing from September 9 to December 30, 2008 or if so, whether the disability was
causally related to her accepted employment injury. The Board has long held that medical
evidence which does not offer any opinion regarding the cause of an employee’s condition is of
limited probative value on the issue of causal relationship.8
The record also contains a report from a physician’s assistant and physical therapy
reports. However, these reports are of no probative value as they are not physicians as defined
under the Act and, therefore, not competent to provide a medical opinion.9
Although appellant alleged that she was disabled for the period September 9 to
December 30, 2008, due to her accepted employment injury, the medical evidence of record does
not establish that her claimed disability during the time frame was related to her accepted right
foot contusion.
LEGAL PRECEDENT -- ISSUE 2
A claimant who has received a final adverse decision by the Office may obtain a hearing
by writing to the address specified in the decision within 30 days of the date of the decision for
which a hearing is sought.10 Unless otherwise directed in writing by the claimant, the Office
hearing representative will mail a notice of the time and place of the hearing to the claimant and
any representative at least 30 days before the scheduled date.11 It has the burden of proving that
it mailed to appellant and his representative a notice of a scheduled hearing.12

8

Michael Smith, 50 ECAB 313 (1999).

9

See David P. Sawchuk, 57 ECAB 316 (2006) (lay individuals such as physicians assistants, nurses and physical
therapists are not competent to render a medical opinion under the Act); Charley V.B. Harley, 2 ECAB 208 (1949)
(the Board held that medical opinion, in general, can only be given by a qualified physician). See also 5 U.S.C.
§ 8101(2).
10

20 C.F.R. § 10.616(a).

11

Id. at § 10.617(b). Office procedure also provides that notice of a hearing should be mailed to the claimant and
the claimant’s authorized representative at least 30 days prior to the scheduled hearing. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Hearings and Reviews of the Written Record, Chapter 2.1601.6(a) (January 1999).
12

See Michelle R. Littlejohn, 42 ECAB 463, 465 (1991).

5

The authority governing abandonment of hearings rests with the Office’s procedure
manual,13 which provides as follows:
“A hearing can be considered abandoned only under very limited circumstances.
All three of the following conditions must be present: the claimant has not
requested a postponement; the claimant has failed to appear at a scheduled
hearing; and the claimant has failed to provide any notification for such failure
within 10 days of the scheduled date of the hearing.
“Under these circumstances, [the Branch of Hearings and Review] will issue a
formal decision finding that the claimant has abandoned his or her request for a
hearing and return the case to the [district Office].”14
ANALYSIS -- ISSUE 2
In a May 14, 2009 decision, the Office denied authorization for ankle arthroscopy and
surgery. On June 10, 2009 appellant requested a telephonic hearing, which was set for
October 8, 2009. On August 26, 2009 the Office mailed an appropriate notice of the scheduled
October 8, 2009 telephonic hearing. The Board notes that the notice was sent more than 30 days
prior to the hearing and that there is no contention that she did not receive it. The issue is, thus,
whether the Office properly found that appellant abandoned the hearing request.
The record establishes that appellant failed to participate at the scheduled October 8,
2009 hearing as instructed and that she did not request a postponement prior to that date.
Although she called the Office on October 8, 2009, she noted that she did not have her “paper”
with her. Appellant merely requested the hearing number, passcode and was advised of the time
of the hearing. She did not indicate that she desired a postponement. The record confirms that
appellant did not participate in the scheduled telephonic hearing. The record contains no
evidence that she contacted the Office within 10 days to reschedule the hearing or explain her
failure to participate in the scheduled telephonic hearing.
As the circumstances of this case meet the criteria for abandonment as provided in
Chapter 2.1601.6(e) of the Office’s procedure manual, the Board finds that appellant abandoned
her request for an oral hearing.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she was
disabled for the period September 9 to December 30, 2008. The Board also finds that the Office
properly found that she abandoned her request for a hearing.

13

See Claudia J. Whitten, 52 ECAB 483 (2001).

14

Federal (FECA) Procedure Manual, supra note 11.

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ORDER
IT IS HEREBY ORDERED THAT the October 29 and 23, 2009 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: January 26, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
New York, NY, Employer
__________________________________________

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Appearances:
James Muirhead, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-3
Issued: April 10, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On October 2, 2013 appellant, through her attorney, filed a timely appeal from the
July 24, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an employmentrelated disability or condition on or after December 1, 2010.
FACTUAL HISTORY
This case has previously been before the Board.2 In a September 26, 2011 decision, the
Board affirmed a September 17, 2010 OWCP decision which denied her claim for a schedule
award. In a May 10, 2012 decision, the Board found that OWCP met its burden of proof to
1
2

5 U.S.C. § 8101 et seq.

Docket No. 11-1827 (issued May 10, 2012); Docket No. 11-211 (issued September 26, 2011). Appellant has
claims accepted by OWCP for a cervical sprain and left rhomboid sprain.

terminate appellant’s compensation benefits effective December 1, 2010. The Board found that
a second opinion physician, Dr. Robert Orlandi, a Board-certified orthopedic surgeon, provided a
rationalized medical opinion that appellant did not have residuals of her accepted employment
injuries. The Board found that his opinion constituted the weight of the medical evidence and
established that she ceased to have any disability or condition causally related to her employment
injuries. The facts and history contained in the prior appeals are incorporated by reference.3
On March 27, 2012 appellant requested reconsideration. She contended that she had
ongoing residuals of her accepted conditions and could not perform full-duty work. Appellant
contended that Dr. Orlandi’s credentials were not credible. She provided an article about
Dr. Orlandi, which indicated that he was arrested on November 29, 2011 after urinating in front
of a police officer.
Appellant submitted additional evidence. A February 10, 2011 cervical spine magnetic
resonance imaging (MRI) scan by Dr. Leon Rybak, a Board-certified diagnostic radiologist,
noted mild straightening and minimal multilevel degenerative changes and small disc bulges at
C3-4, C4-5 and C5-8 levels, but no evidence of significant central stenosis or neural foraminal
narrowing. In a September 30, 2011 disability certificate, Dr. Joshua S. Dines, a Board-certified
orthopedic surgeon, diagnosed a left rotator cuff tear and indicated that appellant could work
limited duty. He saw her on October 3, 2011 and noted that she was still having pain that was
emanating from the neck.
In an October 6, 2011 report, Dr. Dines noted treating appellant since January 24, 2011.
Appellant was a right-hand dominant postal worker who initially injured her left shoulder while
lifting heavy bags at work in December 2004. She was initially diagnosed with a rotator cuff and
rhomboid strain, which was treated conservatively with therapy and medication. Dr. Dines noted
that appellant had a long-standing history of upper extremity, neck and radicular pain that was
caused by her job-related injury. He explained that, when he saw her on January 24, 2011, she
related that her right shoulder was bothering her and progressively worsened over the prior few
months. The initial examination revealed good motion and slight weakness in the rotator cuff.
An MRI scan revealed bursitis and rotator cuff tendinitis with no significant tearing.
Dr. Dines noted that, when he had seen appellant in June, she stated that she did not
receive significant relief from a right shoulder cortisone injection. He explained that the
majority of her symptoms appeared to be emanating from her neck. Dr. Dines opined that it
appeared that “the right shoulder [was] a consequential injury from the limited use of the
patient’s left shoulder and arm.” He related that, based upon “the MRI [scan] and her physical
exam[ination], [appellant] clearly has some pathology intrinsic to the shoulders which is likely
related to overuse and repetitive lifting and movements, but I believe the majority of her
symptoms are coming from the neck, as a result of another job-related injury she had on
May 16, 2007. At this point she is getting pain even with limited duty due to the repetitive
movements even in the absence of heavy lifting.” He advised that appellant might need surgery
3

OWCP subsequently issued a January 12, 2012 decision that denied modification of its June 28, 2011 decision.
As noted in its May 10, 2012 decision in appeal No. 11-1827, the Board found this decision to be null and void as it
pertained to the same issue over which the Board had jurisdiction. See Docket No. 11-1827 (issued May 10, 2012)
at note 2. See also Noe L. Flores, 49 ECAB 344 (1998); Douglas E. Billings, 41 ECAB 880 (1990).

2

on both shoulders. In an October 26, 2011 treatment note, Dr. Dines advised that he was treating
her for a rotator cuff tear and placed her on limited duty. He continued to submit status reports.
Dr. Gary Starkman, a Board-certified neurologist, also treated appellant. In an April 21,
2011 report, he noted that she injured her neck at work in 2007, while lifting a heavy object.
Dr. Starkman advised that appellant “had neck pain ever since.” He advised that the pain was on
and off, worse with physical activity and during cold weather. Dr. Starkman advised that the
electrodiagnostic study revealed evidence of left, C6-C7 radiculopathy and diagnosed cervical
radiculopathy and cervicalgia. He repeated the diagnosis in his May 9 and September 14, 2011
reports. On October 12, 2011 Dr. Starkman noted that appellant was seen on April 21, 2011 for
a work-related injury sustained on May 16, 2007. He advised that she was pushing and lifting
heavy objects repetitively at work and injured her neck. Dr. Starkman indicated that appellant
was diagnosed with cervical radiculopathy and cervicalgia from doing her job assignment at
work. He explained that “[s]ince then, she has been experiencing neck pain radiating to her left
shoulder and left arm.” Dr. Starkman opined that her “symptoms are related to her injury at
work on May 16, 2007.”
In a March 11, 2012 report, Dr. Starkman noted appellant’s history and treatment. On
examination appellant had neck tenderness and muscle spasm in paravertebral and upper
trapezius, and positive Spurling’s test. She also had positive spasticity, more in the left than the
right sternocleidomastoid, paravertebral, trapezius, and scalene muscles with the head tilt to the
left and rotation to the right. Neurological testing was normal. Dr. Starkman advised that
appellant should not lift over three pounds, with no excessive pushing and pulling as long as
weakness and pain persist due to her disc herniation at C4, C5 and C6. He advised that she had
some degree of weakness and sensory and reflex changes supporting the diagnosis and that she
should avoid repetitive work to prevent worsening of symptoms. Dr. Starkman noted that
appellant’s mail handler duties required that she lift, push, and pull heavy equipment and
transport mail for eight hours per day. He explained that this exposed her to repetitive motion to
her upper extremities (arm and hand), which caused chronic cervical pain and weakness to the
upper extremities and cervical spine. Dr. Starkman stated that chronic pain was not an
underlying disorder but was a “well-established independent disorder by itself.” He noted that
the diagnosis was assigned a diagnosis code accepted by the American Medical Association,
Guides to the Evaluation of Permanent Impairment. Dr. Starkman opined that there was no
documentation of any preexisting conditions and opined that appellant’s condition was work
related. He opined that the cervical muscles dystonia was causally related to the injuries she
sustained during her work hours. Dr. Starkman also indicated that the condition was chronic and
likely to require ongoing chronic treatment.
OWCP received a February 6, 2012 statement from David McNeil, a friend of appellant,
who noted that he had accompanied her to the appointments with Dr. Orlandi. Mr. McNeil noted
that her June 7, 2010 examination lasted about two minutes. On the second visit appellant’s
appointment lasted about three to four minutes.
On July 8, 2012 appellant reiterated her reconsideration request. She argued that her
physicians provided sufficient evidence to support her claim.

3

By decision dated July 13, 2012, OWCP denied modification of its prior decision. It
found that the report from Dr. Orlandi, the second opinion physician, carried the weight of the
medical evidence. OWCP noted that the treating physician did not provide sufficient rationale to
support further disability from work
On May 2, 2013 appellant’s attorney requested reconsideration of the July 13, 2012
OWCP decision. He enclosed an article on Dr. Orlandi, which he asserted demonstrated that he
engaged in “bizarre” behavior and was arrested for a driving while intoxicated and urinating in
front of a police officer. Counsel argued that the physician took mere minutes to examine
appellant. He argued that the report of Dr. Orlandi was insufficient to meet OWCP’s burden of
proof to terminate her compensation. Counsel also argued that the previous second opinion
physician, Dr. Katz, provided a rationalized report and was sufficient to create a conflict with the
report of Dr. Orlandi. He further argued that appellant was not aware that her benefits could be
terminated as a result of her examination with Dr. Orlandi. Appellant submitted copies of
previously submitted medical reports.
By decision dated July 24, 2013, OWCP denied modification of the July 13, 2012
decision.
LEGAL PRECEDENT
After termination or modification of compensation benefits, clearly warranted on the
basis of the evidence, the burden for reinstating compensation shifts to appellant. In order to
prevail, appellant must establish by the weight of the reliable, probative and substantial evidence
that she had an employment-related disability, which continued after termination of
compensation benefits.4
The medical evidence required to establish a causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on the issue of whether there is a causal relationship between
appellant’s diagnosed condition and the implicated employment factors. The opinion of the
physician must be based on a complete factual and medical background of appellant, 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 appellant.5
ANALYSIS
The Board notes that OWCP accepted appellant’s claim for a cervical sprain on May 16,
2007 and a left rhomboid sprain on December 9, 2004. In a December 10, 2010 decision,
OWCP terminated appellant’s compensation benefits effective that date finding that she no
longer had any disability or residuals of her employing injury. This decision was affirmed by

4

Talmadge Miller, 47 ECAB 673, 679 (1996); Wentworth M. Murray, 7 ECAB 570, 572 (1955).

5

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

4

OWCP on June 28, 2011 and by the Board in a May 10, 2012 decision.6 The Board found that
the weight of the medical evidence rested with the second opinion report of Dr. Orlandi.
Appellant continued to submit medical evidence in support of her claim. In the
October 6, 2011 report, Dr. Dines opined that it appeared that “the right shoulder is a
consequential injury from the limited use of the patient’s left shoulder and arm.” He related that
based upon “the MRI scan and her physical examination, she clearly has some pathology
intrinsic to the shoulders which is likely related to overuse and repetitive lifting and movements,
but I believe the majority of her symptoms are coming from the neck, as a result of another jobrelated injury she had on May 16, 2007.” The Board has found that, while the medical opinion
of a physician supporting causal relationship does not have to reduce the cause or etiology of a
disease or condition to an absolute certainty, neither can such opinion be speculative or
equivocal. The opinion of a physician supporting causal relationship must be one of reasonable
medical certainty that the condition for which compensation is claimed is causally related to
federal employment and such relationship must be supported with affirmative evidence,
explained by medical rationale and be based upon a complete and accurate medical and factual
background of the claimant.7 Dr. Dines’ opinion on causal relationship is of diminished
probative value as he couched his support in speculative terms and he did not provide medical
reasoning explaining the basis of his opinion on causal relationship.
OWCP also received several reports from Dr. Starkman. In his April 21, 2011 report,
Dr. Starkman noted that appellant was injured at work in 2007, when she injured her neck while
lifting a heavy object. He advised that she “had neck pain ever since.” In an October 12, 2011
report, Dr. Starkman opined that, since performing work duties, “[appellant] has been
experiencing neck pain radiating to her left shoulder and left arm” and that her “symptoms are
related to her injury at work on May 16, 2007.” In his March 11, 2012 report, he noted findings
and advised that her duties as a mail handler required that she lift, push, and pull heavy
equipment and transport mail for eight hours per day. Dr. Starkman stated that this exposed
appellant to repetitive motion to her upper extremities (arm and hand), which caused chronic
cervical pain and weakness to the upper extremities and cervical spine. He indicated that chronic
pain was not an underlying disorder, but it was a “well-established independent disorder by
itself.” Dr. Starkman opined that there was no documentation of any preexisting conditions and
opined that appellant’s condition was work related. He also indicated that her cervical muscles
dystonia was causally related to the injuries she sustained during her work hours. However, the
Board finds that these reports are of limited probative value. A medical opinion that states that a
condition is causally related to an employment injury because the employee was asymptomatic
before the injury but symptomatic after is insufficient, without supporting rationale, to establish
causal relationship.8 Dr. Starkman did not sufficiently explain the reasoning behind his
conclusion on causal relationship; he did not address how particular work incidents or duties
caused or contributed to appellant’s diagnosed conditions. Thus, these reports are insufficient to
establish continued disability or to create a conflict with Dr. Orlandi’s opinion.
6

See supra note 2.

7

Thomas A. Faber, 50 ECAB 566 (1999); Samuel Senkow, 50 ECAB 370 (1999).

8

Id.

5

Other medical reports submitted by appellant are insufficient to establish her claim
because they do not support that she continues to have residuals of her work injuries.9 Thus, the
reports provided by appellant are insufficient to create conflict with the opinion of Dr. Orlandi or
to establish an ongoing work-related condition or disability.
Appellant made arguments on reconsideration, which were reiterated by her attorney on
appeal. They included that the second opinion physician, Dr. Orlandi, only took a few minutes
to conduct the physical examination. Additionally, it was argued that he never reviewed her
diagnostic test results that she brought to the examination. The Board notes that these arguments
were previously considered. Appellant also provided an article pertaining to Dr. Orlandi’s arrest
on November 29, 2011 for public urination was more than a year after her June 7, 2010 second
opinion examination. However, this evidence and argument does not negate Dr. Orlandi’s
qualification to render an opinion on appellant’s condition in 2010. As to the due process
argument, the record documents that appellant was given a pretermination notice on October 28,
2010, and an opportunity to submit evidence supporting her claim.
Appellant may submit evidence or argument with a written request for reconsideration
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 her burden of proof to establish that she had
any work-related disability or residuals after December 1, 2010.

9

Medical evidence that does not offer any opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship. S.E., Docket No. 08-2214 (issued May 6, 2009).

6

ORDER
IT IS HEREBY ORDERED THAT the July 24, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 10, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 16-0604
Issued: August 18, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 10, 2016 appellant filed a timely appeal from a December 23, 2015
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP)1. As more than
one year has elapsed from the last OWCP merit decision dated August 29, 1997 and the filing of
this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of his claim.3

1

For final adverse OWCP decisions issued prior to November 19, 2008, a claimant had up to one year to file an
appeal with the Board. See 20 C.F.R. § 501.3(d)(2) (2008).
2
3

5 U.S.C. § 8101 et seq.

The Board notes that, following the December 23, 2015 decision, additional evidence was received. However,
the Board may only review evidence that was in the record at the time OWCP issued its final decision. See
20 C.F.R. § 501.2(c)(1); M.B., Docket No. 09-0176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008);
G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
FACTUAL HISTORY
This case has previously been before the Board. The facts and circumstances
surrounding the prior appeal are incorporated by reference. Those relevant to the instant appeal
will be set forth.
OWCP accepted that on December 22, 1995 appellant, then a 34-year-old motor vehicle
operator, sustained cervical and lumbosacral strain in a motor vehicle accident in the
performance of duty. He resumed his usual employment on January 8, 1996.
On July 26, 1996 appellant underwent a lumbar medial branch neurotomy at L2-3, L3-4,
L4-5, and L5-S1 to treat a bilateral herniated disc.
On October 17, 1996 appellant filed a recurrence of disability claim (Form CA-2a)
beginning July 24, 1996 causally related to his December 22, 1995 employment injury. He
indicated that he was scheduled for another surgery on his disc in two weeks. Appellant
underwent a repeat lumbar medial neurotomy at L2 through S1 on January 9, 1997.
In a decision dated August 29, 1997, OWCP found that appellant’s January and July 1996
bilateral lumbar medial branch neurotomies at L2-3, L3-4, and L4-S1 were not medically
necessary due to his December 22, 1995 employment injury.
On November 6, 1997 appellant requested reconsideration. In a decision dated
November 18, 1997, OWCP denied his request as he had not submitted evidence or raised an
argument sufficient to warrant reopening his case for further merit review under 5 U.S.C.
§ 8128(a). Appellant again requested reconsideration on December 2, 1997. By decision dated
December 9, 1997, OWCP denied his request to reopen his case for further merit review under
section 8128(a).
Appellant appealed to the Board. In a decision dated April 18, 2000, the Board affirmed
the November 18 and December 9, 1997 OWCP decisions denying his request to reopen his case
for further review of the merits of his claim under section 8128(a).4 The Board found that the
medical evidence was insufficient to show a causal relationship between the lumbar surgeries or
that he had sustained a recurrence of disability due to his December 22, 1995 employment injury.
On June 30, 2000 OWCP noted that appellant had received a third-party recovery in the
amount of $350,000.00. It advised him that the recovery would be used to offset any further
medical expenses or disability.
4

Docket No. 99-0149 (issued April 18, 2000). On October 30, 2000 the Board denied appellant’s petition for
reconsideration of its April 18, 2000 decision. Order Denying Petition for Reconsideration, Docket No. 99-0149
(issued October 30, 2000).

2

On January 19, 2001 appellant requested reconsideration of OWCP’s August 29, 1997
decision. He argued that he required multiple surgeries as a result of his December 22, 1995
work injury. Appellant maintained that he had disc problems at the time he resumed his regular
work on January 8, 1996.
OWCP, by decision dated February 13, 2001, denied appellant’s request for
reconsideration as it was untimely filed and failed to demonstrate clear evidence of error.5
In a letter dated June 25, 2015, appellant advised that he was not receiving workers’
compensation. He requested back pay.
Appellant resubmitted an October 12, 1998 report from Dr. K.E. Vogel, a Board-certified
neurosurgeon. Dr. Vogel attributed his lumbar surgeries in July 1996, January 1997, and
February 1998 to his December 22, 1995 work injury.
On August 6, 2015 appellant filed a claim (Form CA-7) requesting compensation from
December 22, 1995 to May 5, 2004. In an August 12, 2015 response, OWCP informed him of
the evidence required to establish a recurrence of disability.
On August 18, 2015 Dr. Jacques Whitecloud, a Board-certified physiatrist, discussed
appellant’s history of back surgeries and indicated that his office provided pain management for
his lumbosacral neuritis.
Dr. Vogel, in an undated report received August 26, 2015, reviewed appellant’s history of
lumbosacral, cervical, left leg, and left arm pain after a December 22, 1995 motor vehicle
accident. He noted that appellant did not have an intervening injury and related, “In all medical
probability [appellant’s] signs and symptoms are causally related to the incident of
December 1995.” Dr. Vogel further opined that appellant’s need for surgery resulted from the
December 22, 1995 employment injury.
By letter dated August 26, 2015, OWCP advised appellant to follow the appeal rights
from its prior decisions. It noted that it had previously denied his request for compensation
based on its finding that his surgeries and resulting disability from employment were not related
to his December 22, 1995 work injury.
Appellant, on August 26, 2015, requested reconsideration. He related that the physician
who released him to return to work was not a specialist. Dr. Vogel examined appellant
subsequent to his return to work and found that he had to have three surgeries due to his work
injury. Appellant maintained that he was totally disabled from 1995 to May 5, 2000 as a result
of his employment injury.
On September 22, 2915 appellant submitted an August 26, 2003 report from Dr. Roberta
Bell, a neuropsychologist. She obtained a history which revealed appellant’s inability to
function cognitively after the December 22, 1995 employment injury, such that he missed a
filing deadline to apply for retirement benefits. Dr. Bell found that appellant had an intellectual
5

On May 4, 2004 the Office of Personnel Management approved appellant’s application for disability retirement.

3

and academic disability severe enough “to interfere with his ability to complete an application
for retirement in a timely manner.”
In a letter received by OWCP on September 28, 2015, appellant again requested
reconsideration. He related that he had submitted clear evidence that he could not timely file for
his workers’ compensation benefits as a result of a mental handicap. Appellant advised that his
counsel did not tell him about appeals.
In a report dated September 28, 2015, Dr. Karita Kewalramani, a Board-certified
internist, discussed appellant’s history of a motor vehicle accident on December 22, 1995, two
medial branch neurotomies, and a cage fusion at L3-4. She diagnosed lumbar disc syndrome,
lumbar mechanical dysfunction at L5-S1, and right L4 and S1 lumbar radiculopathy.
Dr. Kewalramani indicated in November 9, 2015 note that appellant was totally and permanently
disabled from employment.
On November 18, 2015 Dr. Vogel examined appellant for lumbosacral pain. He
reviewed his history of surgeries in 1996, 1997, and 1998. Dr. Vogel related, “In all medical
probability, [appellant’s] signs and symptoms at that time and the three subsequent surgeries
were necessitated by the motor vehicle injury while at work on December 22, 1995. He reports
[that] he has been unable to return to work since the December 22, 1995 injury.”
By decision dated December 23, 2015, OWCP denied appellant’s request for
reconsideration as it was untimely filed and failed to demonstrate clear evidence of error.
On appeal appellant contends that he timely filed for workers’ compensation as he had
appointments with Dr. Bell prior to February 27, 2002.
LEGAL PRECEDENT
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a) of FECA.6 As once such limitations, 20 C.F.R. § 10.607
provides that an application for reconsideration must be received within one year of the date of
OWCP decision for which review is sought.7 OWCP will consider an untimely application only
if the application demonstrates clear evidence of error on the part of OWCP in its most recent
merit decision. The application must establish, on its face, that such decision was erroneous.8
The term “clear evidence of error” is intended to represent a difficult standard. The
claimant must present evidence which on its face shows that OWCP made an error (for example,
proof of a miscalculation in a schedule award). Evidence such as a detailed, well-rationalized
6

Supra note 2.

7

Id. at § 10.607(a). The one-year period begins on the date of the original decision, and an application for
reconsideration must be received by OWCP within one year of the OWCP’s decision for which review is sought for
merit decisions issued on or after August 29, 2011. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Reconsiderations, Chapter 2.1602.4 (October 2011).
8

20 C.F.R. § 10.607(b).

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medical report which, if submitted prior to the denial, would have created a conflict in medical
opinion requiring further development, is not clear evidence of error and would not require a
review of the case on the Director’s own motion.9 To demonstrate clear evidence of error, a
claimant must submit evidence relevant to the issue which was decided by OWCP. The evidence
must be positive, precise, and explicit and must manifest on its face that it committed an error.10
ANALYSIS
OWCP properly determined that appellant failed to file a timely application for review.
Its procedures provide that the one-year time limitation period for requesting reconsideration
begins on the date of the original OWCP decision.11 A right to reconsideration within one year
also accompanies any subsequent merit decision on the issues.12 As appellant’s August 26, 2015
request for reconsideration was submitted more than one year after the last merit decision of
record dated August 29, 1997, it was untimely.13 Consequently, he must demonstrate clear
evidence of error by OWCP in denying his claim for compensation.14
On appeal appellant argues that he obtained medical treatment from Dr. Bell prior to
February 27, 2002. The issue, however, is whether he requested reconsideration within one year
of the last merit decision dated August 29, 1997. Appellant contended that he was not competent
to file a timely request for reconsideration. The time limitation provisions of FECA do not run
against an individual while he is incompetent and has no duly appointed legal representative.15
In a report dated August 26, 2003, Dr. Bell noted that appellant complained that he was not able
to cognitively function after his work injury. She advised that he was intellectually and
academically disabled such that it would impact his ability to timely submit an application for
retirement. Dr. Bell did not, however, specifically address the period of the impairment or find
that he was incapable of requesting reconsideration within the relevant time period. Appellant,
therefore, has not submitted sufficient medical evidence to meet his burden of proof to establish
mental incompetence.16
The Board further finds that appellant has not demonstrated clear evidence of error.
Appellant contended that he initially saw a physician who was not a specialist. Dr. Vogel, who
9

Supra note 7 at Chapter 2.1602.5(a) (February 2016).

10

Robert F. Stone, 57 ECAB 292 (2005); Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman,
55 ECAB 143 (2003).
11

20 C.F.R. § 10.607(a).

12

Robert F. Stone, supra note 10.

13

For OWCP decisions issued before August 29, 2011, a request for reconsideration had to be sent within one
year of the date of the OWCP decision. 20 C.F.R. § 10.607(a) (1999).
14

Id. at § 10.607(b); see Debra McDavid, 57 ECAB 149 (2005).

15

5 U.S.C. § 8122(d)(2); supra note 7 at Time, Chapter 2.801.8(b) (March 1993).

16

See Alicia Kelly, 53 ECAB 244 (2001) (mental incompetence must be established through the submission of
medical evidence).

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was a specialist, found that appellant’s surgeries were due to his work injury. Appellant argued
that he was totally disabled from 1995 to 2000 due to his December 22, 1995 employment injury.
His lay opinion on his condition and need for surgery is not is not relevant as the Board has held
that lay individuals are not competent to render a medical opinion.17 Consequently, appellant’s
contentions are insufficient to demonstrate clear evidence of error by OWCP.
On reconsideration appellant submitted new reports from Dr. Vogel. In a report received
August 26, 2015, Dr. Vogel discussed appellant’s complaints of lumbar, cervical, left leg, and
left arm pain after a December 22, 1995 work injury. He opined that appellant’s symptoms and
need for surgery resulted from the accepted employment injury. On November 18, 2015
Dr. Vogel attributed appellant’s condition and back surgeries to the December 22, 1995 work
injury. He asserted that appellant was totally disabled from the date of his employment injury.
While Dr. Vogel’s reports provide some support for causal relationship, the standard is whether
the evidence is sufficient to show clearly that OWCP erred in finding that he his surgeries were
unrelated to his work injury. Evidence such as a detailed, well-rationalized report, which if
submitted prior to OWCP’s denial, would have created a conflict in medical opinion requiring
further development, is not clear evidence of error.18 Dr. Vogel’s reports are insufficient to shift
the weight of the evidence in favor of appellant and thus do not raise a substantial question as to
the correctness of OWCP’s decision.
On August 18, 2015 Dr. Whitecloud indicated that he was treating appellant for
lumbosacral neuritis. He did not address the relevant issue of the causal relationship between
appellant’s surgeries and resulting disability and his work injury. In order to demonstrate clear
evidence of error, a claimant must submit evidence relevant to the issue which was decided by
OWCP.19
Dr. Kewalramani, in a report dated September 28, 2015, discussed appellant’s history of
the December 22, 1995 employment-related motor vehicle accident and subsequent surgeries.
She diagnosed lumbar disc syndrome, lumbar mechanical dysfunction at L5-S1, and right L4 and
S1 lumbar radiculopathy. On November 9, 2015 Dr. Kewalramani found that appellant was
totally disabled. She did not address causation, the relevant issue in this case, and thus her report
is not pertinent to the issue at hand.
Appellant additionally resubmitted an October 12, 1998 report from Dr. Vogel relating
his surgeries in 1996, 1997, and 1998 to his December 22, 1995 employment injury. He did not,
however, explain how the resubmission of the report was positive, precise, and explicit in
manifesting on its face that OWCP had committed an error in its merit decision.20 Repetitive or

17

Gloria J. McPherson, 51 ECAB 441 (2000).

18

See D.G., 59 ECAB 455 (2008).

19

Howard Y. Miyashiro, 51 ECAB 253 (1999).

20

See B.C., Docket No. 15-0550 (issued January 28, 2016).

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cumulative evidence is insufficient to shift the weight of evidence in claimant’s favor and
demonstrate clear evidence of error.21
To demonstrate clear evidence of error, it is insufficient merely to show that the evidence
could be construed so as to produce a contrary conclusion. The term clear evidence of error is
intended to represent a difficult standard. None of the evidence submitted manifests on its face
that OWCP committed an error in denying appellant’s claim.22 Appellant has not provided
evidence of sufficient probative value to raise a substantial question as to the correctness of
OWCP’s decision. Thus, the evidence is insufficient to demonstrate clear evidence of error.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration as it
was untimely filed and failed to demonstrate clear evidence of error.
ORDER
IT IS HEREBY ORDERED THAT the December 23, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 18, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

21

See D.E., 59 ECAB 438 (2008).

22

See J.R., Docket No. 13-1284 (issued September 16, 2013).

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
Washington, DC, Employer
__________________________________________

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Appearances:
Stephen D. Scavuzzo, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 07-1989
Issued: January 8, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 23, 2007 appellant filed an appeal of August 24, 2006 and April 24, 2007 merit
decisions of the Office of Workers’ Compensation Programs denying his claim for a schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule
award issue in this case.
ISSUE
The issue is whether appellant is entitled to a schedule award for loss of the sense of
smell or taste.
FACTUAL HISTORY
On December 14, 2005 appellant filed a traumatic injury claim alleging that, on
December 12, 2005, he injured his lower back and head when he slipped and fell on the ice in the
employing establishment parking lot. The Office accepted the claim for postconcussion

headache syndrome and postconcussion tinnitus.
schedule award.

On May 25, 2006 appellant requested a

The record contains a June 9, 2006 attending physician’s report from Dr. Talbot Smith, a
treating physician, who stated that appellant’s December 12, 2005 work-related injury resulted in
cranial nerve injuries, which lead to permanent loss of smell. In an August 14, 2006 report,
Dr. Smith opined that appellant’s loss of his sense of smell should be considered permanent as of
June 9, 2006.
By decision dated August 24, 2006, the Office denied appellant’s request for a schedule
award, on the grounds that the evidence was insufficient to establish that he had sustained a
permanent impairment to a scheduled member due to his accepted condition.
On September 15, 2006 appellant, through his representative, requested an oral hearing.
At the March 7, 2007 hearing, his representative stated that appellant had lost not only his sense
of smell as a result of the accepted injury, but also his sense of taste. He contended that, since
the tongue is a covered member under the Federal Employees’ Compensation Act, appellant was
entitled to a schedule award for his loss of the sense of taste.
Appellant submitted an April 9, 2007 report from Dr. Smith, who stated that appellant
had a 70 percent loss of the sense of taste due to his December 12, 2005 head injury. Dr. Smith
based his conclusion on the “commonly accepted medical guidelines” that the sense of taste is
provided by the sense of smell, which appellant lost as a result of his head injury.
By decision dated April 24, 2007, the hearing representative affirmed the denial of a
schedule award, finding that there was no provision under the Act or its implementing
regulations for a schedule award for loss of the senses of taste or smell.
LEGAL PRECEDENT
The schedule award provision of the Act1 provides for compensation to employees
sustaining permanent impairment from loss or loss of use, of specified members, functions and
organs of the body. The Act does not, however, specify the manner by which the percentage loss
shall be determined. The method used in making such a determination is a matter that rests in
the sound discretion of the Office.2 For consistent results and to ensure equal justice under the
law to all claimants, good administrative practice necessitates the use of a single set of tables so
that there may be uniform standards applicable to all claimants.3
No schedule award is payable for a member, function or organ of the body not specified
in the Act or in the implementing regulations.4 The Act identifies members such as the arm, leg,
1

5 U.S.C. § 8107 et seq.

2

Arthur E. Anderson, 43 ECAB 691, 697 (1992); Danniel C. Goings, 37 ECAB 781, 783 (1986).

3

Arthur E. Anderson, supra note 2 at 697; Henry L. King, 25 ECAB 39, 44 (1973).

4

George E. Williams, 44 ECAB 530, 533 (1993); William Edwin Muir, 27 ECAB 579, 581 (1976).

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hand, foot, thumb and finger; functions such as loss of hearing and loss of vision; and organs to
include the eye. Section 8107(c)(22) of the Act provides for the payment of compensation for
permanent loss of any other important external or internal organ of the body as determined by the
Secretary of Labor5 who has made such a determination and pursuant to the authority granted in
section 8107(c)(22), added the breast, kidney, larynx, lung, penis, testicle, ovary, uterus and
tongue to the schedule.6
ANALYSIS
Appellant’s claim was accepted for postconcussion headache syndrome and
postconcussion tinnitus. Dr. Smith indicated that his cranial nerve injuries led to permanent loss
of smell and that his loss of smell, in turn, resulted in a loss of the sense of taste. However, he
made no mention of any facial disfigurement or loss of the use of the tongue. The Board finds
that appellant is not entitled to a schedule award for loss of the sense of smell or taste.
As noted, no schedule award is payable for a member, function or organ of the body not
specified in the Act or in the implementing regulations.7 If there is permanent disability
involving the loss, or loss of use, of a member or function of the body so specified, or involving
disfigurement, the employee is entitled to basic compensation for the disability.8 The Act does
not identify the nose as a member warranting compensation. Further, there is no medical
evidence indicating that appellant had a loss of the use of his tongue. The Secretary has not
determined, pursuant to the discretionary authority granted in section 8107(c)(22) of the Act, that
the nose or sense of smell or taste constitutes any other important external or internal organ of
the body. Section 8107(c)(22) provides no statutory basis for the payment of a schedule award
for loss of the sense of smell or taste.9
CONCLUSION
The Board finds that appellant is not entitled to a schedule award for loss of the sense of
smell or taste.

5

5 U.S.C. § 8107(c)(22).

6

20 C.F.R. § 10.404; Henry B. Floyd, III, 52 ECAB 220 (2001).

7

See supra note 4.

8

5 U.S.C. § 8107(a).

9

See Leroy M. Terska, 53 ECAB 247 (2001); see also Billie Sue Barnes, 47 ECAB 478, 480 (1996).

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ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated April 24, 2007 and August 24, 2006 are affirmed.
Issued: January 8, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

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