United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.T., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
ALEXANDRIA MEDICAL CENTER,
Pineville, LA, Employer
__________________________________________

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

Docket No. 21-0583
Issued: February 2, 2022

Case Submitted on the Record

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

JURISDICTION
On December 21, 2020 appellant, through counsel, filed a timely appeal from a
November 23, 2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met his burden of proof to establish an injury in the
performance of duty on May 6, 2020, as alleged.
FACTUAL HISTORY
On May 29, 2020 appellant, then a 57-year-old nurse, filed a traumatic injury claim (Form
CA-1) alleging that on May 7, 2020 he injured his left shoulder, upper arm, and back when
repositioning a patient in bed and pulling a draw sheet while in the performance of duty. He
explained that he had been repositioning the patient in bed every two hours and began experiencing
excruciating pain in his left shoulder. Appellant noted that the following day he had pain radiating
down his neck and mid back. On the reverse side of the claim form the employing establishment
controverted appellant’s claim noting that he was not scheduled to work on May 7, 2020 at the
time of the injury. Supervisor E.R. also challenged the claim, contending that appellant initially
reported that he sustained a non-work-related injury, but then subsequently reported that the injury
was in fact work related.
In a June 9, 2020 development letter, OWCP informed appellant of the deficiencies of his
claim. It advised him of the type of factual and medical evidence needed and provided a factual
questionnaire for his completion. OWCP afforded appellant 30 days to submit the necessary
evidence.
In a May 7, 2020 report, Jeremy Wiley, a nurse practitioner, diagnosed left shoulder joint
pain.
In a May 12, 2020 medical note, Dr. Gregory Bevels, Board-certified in family practice,
noted that appellant was under his care and provided work restrictions of no lifting or pulling over
20 pounds for two weeks. In a medical report of even date, he noted that appellant experienced
bilateral shoulder pain and muscle stiffness for a week. Dr. Bevels diagnosed left shoulder pain
and left shoulder muscle spasm.
May 18, 2020 x-rays of the left and right shoulder revealed normal results.
In a May 18, 2020 report of employee’s emergency treatment, Judy Jameson, an advanced
practice registered nurse, indicated that appellant developed a non -work-related illness and
provided work restrictions. In a progress report of even date, she indicated that he had stopped
work beginning May 9, 2020 due to concerns over having COVID-19. Appellant reported that he
developed muscle aches along his trapezius muscles and back. Ms. Jameson noted that he sought
medical care for muscle pain on May 12, 2020 with Dr. Bevels, who opined that it was possibly
pain radiating down from his shoulder due to arthritis. She also indicated that appellant denied
any significant shoulder injury, but mentioned that he had been working with a heavy patient, who
needed to be turned over every two hours.
In a May 27, 2020 medical note, Dr. Bevels repeated his previous work restrictions.
In a June 10, 2020 letter, the employing establishment again controverted appellant’s
claim.
2

In an undated response to OWCP’s development questionnaire, appellant clarified his date
of injury as May 6, 2020. He explained that he had previously provided an incorrect date of injury
due to numerous changes that occurred with his assignment and work location. Appellant further
noted that he initially believed that his condition was a symptom of the COVID -19, but
subsequently tested negative for COVID-19. He again contended that, at the time of his injury, he
was assisting a patient in bed. Appellant explained that he was pulling the draw sheet when he felt
severe pain in his left shoulder that felt like a muscle sprain or a pulled muscle. He noted that his
pain initially decreased, but later returned.
In a June 14, 2020 injury report, appellant reported that he sustained a work -related left
shoulder injury on May 6, 2020. He explained that the date of injury was previously reported
incorrectly as May 7, 2020.
In a June 15, 2020 work status report, Dr. Bevels provided work restrictions.
In a June 30, 2020 attending physician’s report (Form CA-20), Dr. Robert C. Smith,
Board-certified in family practice, indicated that appellant’s date of injury was May 7, 2020. He
noted that appellant injured his left shoulder while repositioning a patient in bed. Dr. Smith
diagnosed incomplete rotator cuff tear or rupture of left shoulder, unspecified rotator cuff tear or
rupture of left shoulder, and left shoulder impingement.
By decision dated July 10 2020, OWCP denied appellant’s traumatic injury claim, finding
that the medical evidence of record was insufficient to establish a diagnosis in connection with the
accepted May 7, 2020 employment incident. It concluded, therefore, that the requirements had
not been met to establish an injury as defined under FECA.
In a June 30, 2020 medical report, Dr. Smith noted May 7, 2020 as appellant’s date of
injury. He noted that appellant was performing his daily work duties, including repositioning one
of his patients and pulling the draw sheet, when he experienced excruciating pain in his left
shoulder. Dr. Smith diagnosed incomplete left shoulder rotator cuff tear/rupture, left shoulder
impingement syndrome, and unspecified lef t shoulder rotator cuff tear/rupture. He opined that
continuous repositioning of a patient over two hours while in a lying position directly caused
appellant’s diagnosed conditions. In a work capacity evaluation (Form OWCP-5c) of even date,
Dr. Smith diagnosed left shoulder rotator cuff tear and impingement syndrome.
In a July 16, 2020 medical report, Dr. Smith reiterated his findings and diagnoses. In a
Form OWCP-5c of even date, he reiterated his diagnoses and noted that appellant could not
perform his work duties.
In a July 27, 2020 letter, Dr. Smith reiterated appellant’s history of injury and diagnosed a
left shoulder rotator cuff tear, a supraspinatus tear, and impingement syndrome.
In a July 31, 2020 medical report, Dr. Smith reiterated his findings and diagnoses. In a
Form OWCP-5c of even date, Dr. Smith again noted that appellant could not perform his work
duties.
In an August 10, 2020 medical report, Dr. Smith reiterated his findings and diagnoses. In
a Form OWCP-5c of even date, he again noted that appellant could not perform his work duties.
3

On August 12, 2020 appellant requested reconsideration. By decision dated August 19,
2020, OWCP denied modification of the July 10, 2020 decision.
In an August 20, 2020 Form OWCP-5c of even date, Dr. Smith noted that appellant was
still unable to perform his work duties.
In an August 21, 2020 statement, appellant contended that he sustained his injury on
May 6, 2020 while assisting and repositioning a bedbound patient and pulling the draw sh eet when
he experienced severe pain. He again explained that he initially rep orted the date of injury as
May 7, 2020, which was in error.
On August 25, 2020 appellant requested reconsideration.
On September 15, 2020 OWCP received an August 31, 2020 notification of personnel
action (Form SF-50).
In a September 15, 2020 Form OWCP-5c, Dr. Smith reiterated his diagnoses.
In an October 6, 2020 letter, the employing establishment controverted appellant’s claim.
In an undated statement, appellant asserted that he woke up with pain in his left shoulder
and neck on May 7, 2020 after his shift ended on May 6, 2020 at 7:15 a.m. In another undated
statement, appellant reiterated that, although he initially reported May 7, 2020 as the date of injury,
he sustained his work-related injury on May 6, 2020.
By decision dated November 23, 2020, OWCP modified the August 19, 2020 decision to
find that appellant had not established that the May 7, 2020 employment incident occurred as
alleged, noting that appellant provided inconsistent statements regarding his injury.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, 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 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

3

Supra note 2.

4

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

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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
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time and place, and in the manner alleged. The second component is whether the employment
incident caused a personal injury and can be established only by medical ev idence.7
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.8 The employee has not met his or her burden of proof of 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 Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast serious doubt on an employee’s statements
in determining whether a case has been established. An employee ’s statement alleging 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.10
ANALYSIS
The Board finds that appellant has met his burden of proof to establish that the May 7, 2020
employment incident occurred while in the performance of duty, as alleged.
To establish a claim for compensation in a traumatic injury claim, an employee must submit
a statement that explains how the claimed injury occurred. 11 Appellant has provided a detailed
description on the claim form, an undated response to OWCP’s development questionnaire, and
subsequent statements explaining how the alleged employment incident occurred. His claim form
and subsequent statements were consistent in describing that an injury occurred on May 7, 2020
when repositioning a patient pulling a draw sheet while in the performance of duty. Thus, the
5

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
6

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
7

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
8

See J.M., Docket No. 19-1024 (issued October 18, 2019); M.F., Docket No. 18-1162 (issued April 9, 2019).

9

See V.J., Docket No. 19-1600 (issued March 13, 2020); E.C., Docket No. 19-0943 (issued September 23, 2019).

10

See M.C., Docket No. 18-1278 (issued March 7, 2019); D.B., 58 ECAB 464, 466-67 (2007).

11

B.L., Docket No. 20-0394 (issued July 17, 2020); R.B., Docket No. 19-1026 (issued January 14, 2020).

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Board finds that appellant has established that an employment incident occurred on May 7, 2020,
as alleged.
Consequently, the question becomes whether this incident caused an injury. 12 Thus, the
Board will set aside OWCP’s November 23, 2020 decision and remand the case for consideration
of the medical evidence. 13 Following this and other such further development as deemed
necessary, OWCP shall issue a de novo decision addressing whether appellant has met his burden
of proof to establish a diagnosed medical condition causally related to the accepted May 7, 2020
employment incident.
CONCLUSION
The Board finds that appellant has met his burden of proof to establish that the May 7, 2020
employment incident occurred while in the performance of duty, as alleged. The Board further
finds that this case is not in posture for decision with regard to whether he has established a medical
condition causally related to the accepted May 7, 2020 employment incident.

12

C.H., Docket No. 19-1781 (issued November 13, 2020); A.C., Docket No. 18-1567 (issued April 9, 2019).

13

S.V., Docket No. 21-0027 (issued April 29, 2021); W.R., Docket No. 17-0287 (issued June 8, 2018).

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ORDER
IT IS HEREBY ORDERED THAT the November 23, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: February 2, 2022
Washington, DC

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

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

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.J., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
NORTH TEXAS HEALTH CARE SYSTEM,
Dallas, TX, Employer
__________________________________________

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Appearances:
Michael E. Woods, for the appellant
Office of Solicitor, for the Director

Docket No. 15-1797
Issued: April 7, 2016

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 August 31, 2015 appellant, through his representative, filed a timely appeal of an
August 19, 2015 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP).
As more than 180 days has elapsed from the last merit decision, dated July 30, 2014, and the
filing of this appeal, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3 the Board lacks jurisdiction to review the merits of the claim.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of
the merits pursuant to 5 U.S.C. § 8128(a).
On appeal appellant’s representative contends that the impartial medical adviser was
improperly selected because his primary location was outside appellant’s zip code cluster and
beyond the 200 mile maximum radius allowed. He also asserts that the only documents
1

5 U.S.C. § 8101 et seq.

establishing the use of the medical management system is a Form ME023 on such evidence is
insufficient.
FACTUAL HISTORY
On May 24, 2005 appellant, then a 24-year-old medical support assistant, filed an
occupational disease claim (Form CA-2) alleging that he developed right cervical disc bulge and
right arm pain due to his employment duties. His attending physician, Dr. Douglas S. Won, a
Board-certified orthopedic surgeon, found that appellant was totally disabled through
May 12, 2005. On July 7, 2005 OWCP accepted his claim for right carpal tunnel syndrome.
Appellant’s attending physician, Dr. Ronald J. Washington, an internist, completed a
series of reports diagnosing right carpal tunnel syndrome beginning on September 12, 2005. He
noted that appellant was disabled on June 1, 2005 as he was unable to perform his light-duty
position as it worsened his symptoms. By decision dated October 17, 2006 OWCP authorized
compensation benefits beginning June 1, 2005.
OWCP referred appellant for a second opinion evaluation with Dr. Robert M. Chouteau,
a Board-certified orthopedic surgeon on June 29, 2007. In a report dated July 17, 2007,
Dr. Chouteau noted that his examination of appellant was normal and that appellant showed no
evidence of disability based on the accepted diagnosis of right carpal tunnel. He opined that
appellant could return to full duty with no restrictions.
Dr. Washington disagreed with Dr. Chouteau’s conclusions on August 16, 2007 and
noted that appellant’s electrodiagnostic studies supported his ongoing carpal tunnel syndrome
condition.
Due to the conflict of medical opinion evidence, OWCP referred appellant to Dr. James
Hood, a Board-certified orthopedic surgeon on September 6, 2007. In his October 3, 2007
report, Dr. Hood found positive median compression test, positive Phalen’s test, and decreased
two-point discrimination. He found that appellant could return to light-duty work, but
recommended carpal tunnel release and decompression of the right shoulder.
Appellant underwent a right carpal tunnel surgical release on November 16, 2007.
Following this surgery, Dr. Washington provided work restrictions. Beginning on January 15,
2009 Dr. Washington removed the work restrictions.
On August 3, 2009 OWCP referred appellant for a second opinion evaluation with
Dr. Arthur Sarris, a Board-certified orthopedic surgeon, to determine the nature and extent of
appellant’s disability. In a report dated August 27, 2009, Dr. Sarris opined that appellant
continued to experience residuals and disability due to his accepted right carpal tunnel syndrome.
He found that appellant was totally disabled.
Dr. Washington continued to diagnose right carpal tunnel syndrome and indicate that
appellant was totally disabled throughout 2009, 2010, and 2011. Appellant’s surgeon,
Dr. Olayinka Ogunro, a Board-certified orthopedic surgeon, also supported appellant’s continued
carpal tunnel syndrome and disability for work on June 30, 2011.

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On September 28, 2011 OWCP referred appellant for a second opinion report with
Dr. Marvin E. Van Hal, a Board-certified orthopedic surgeon, to determine the nature and extent
of appellant’s disability. In a report dated December 13, 2011, Dr. Van Hal found that the
Phalen’s test and Tinel’s sign were negative. He noted that appellant’s two-point discrimination
was normal. Dr. Van Hal opined that appellant was not disabled due to his accepted condition of
carpal tunnel syndrome. He found no objective evidence of residuals.
Dr. Washington reviewed Dr. Van Hal’s report on February 9 and March 8, 2012 and
disagreed with his findings and conclusions.
To resolve the conflict in medical opinion, OWCP selected Dr. Charles Kennedy, a
Board-certified orthopedic surgeon, to serve as the impartial medical examiner through an
ME023 dated December 3, 2012. There was also a screen capture of his selection. On
December 5, 2012 OWCP referred appellant for an impartial medical examination with
Dr. Kennedy.
In a report dated December 28, 2012, Dr. Kennedy found that appellant was not disabled
and no longer exhibited right carpal tunnel syndrome. He opined that appellant could return to
his regular-duty position.
By letter dated March 14, 2013, OWCP proposed to terminate appellant’s wage-loss
compensation based on Dr. Kennedy’s report. It afforded appellant 30 days to respond.
By decision dated April 24, 2013, OWCP terminated appellant’s wage-loss benefits
effective April 7, 2013 based on Dr. Kennedy’s report.
Dr. Washington continued to support appellant’s diagnosis of right carpal tunnel
syndrome and his disability for work.
On July 30, 2014 OWCP granted appellant a schedule award for five percent permanent
impairment of the right upper extremity.
Dr. Washington continued to support appellant’s diagnosis of right carpal tunnel
syndrome and his disability for work throughout 2014. Appellant sought treatment from
Dr. Ronnie D. Shade, a Board-certified orthopedic surgeon beginning February 19, 2015. He
noted that appellant underwent right shoulder surgery on January 19, 2015. Dr. Shade diagnosed
impingement syndrome right shoulder surgically treated, cervical radiculopathy C5-6, bilateral
carpal tunnel syndrome, and bilateral cubital tunnel syndrome.
OWCP issued a decision dated May 7, 2015 accepting the additional conditions of
brachial neuritis or radiculitis, and a right shoulder condition. Appellant completed a claim for
compensation (Form CA-7) requesting wage-loss compensation from April 7, 2013 through
May 14, 2015. In a letter dated May 19, 2015, OWCP informed appellant that the additional
conditions were accepted in error and requested that appellant submit a new claim.
Dr. Shade completed an attending physician’s report (Form CA-20) on May 13, 2015 and
opined that appellant was totally disabled. He diagnosed right carpal tunnel syndrome, brachial
neuritis or radiculitis, and condition of the right shoulder. Dr. Shade indicated with a checkmark
3

“yes” that appellant’s conditions were due to his employment. In a separate narrative report, he
attributed appellant’s diagnosed conditions to his employment duties of eight hours of computer
repetitive keying, telephone usage, repetitive motions, inserting data in the computer, simple
grasping, and prolonged sitting. Dr. Shade continued to diagnose carpal tunnel syndrome,
brachial neuritis, and right shoulder condition.
In a letter dated June 15, 2015, appellant’s representative requested a copy of documents
showing the bypass and selection process for referee physician Dr. Kennedy. In a letter dated
June 16, 2015, OWCP provided the requested information.
On June 29, 2015 appellant’s representative requested reconsideration of the April 24,
2013 termination decision. He argued that Dr. Kennedy was improperly selected as the impartial
medical adviser. In support of this request, the representative submitted Dr. Kennedy’s
physician profile from the Texas medical board. He also alleged that appellant was allowed less
than 30 days to respond to the pretermination notice.
Appellant continued to submit reports from Dr. Shade dated June 18 through
July 24, 2015. Dr. Shade listed appellant’s diagnosed conditions of right carpal tunnel
syndrome, brachial neuritis, and right shoulder impingement. He did not address appellant’s
disability for work.
By decision dated August 19, 2015, OWCP declined to reopen appellant’s claim on the
merits. It noted that he disagreed with the selection of Dr. Kennedy. OWCP asserted that the
Medical Management Application system was appropriately utilized in selecting Dr. Kennedy. It
further noted that appellant contended that the effective date of termination was prior to the
issuance of the termination decision, that OWCP granted appellant compensation benefits
through May 4, 2014, and that therefore appellant’s compensation benefits should not have
terminated until May 5, 2013. OWCP declined to reopen appellant’s claim for consideration of
the merits.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
it will review an award for or against compensation. The Secretary of Labor may review an
award for or against payment of compensation at any time on his own motion or on application.2
OWCP, through regulations, has imposed limitations on the exercise of its discretionary
authority under 5 U.S.C. § 8128(a). As one such limitation, 20 C.F.R. § 10.607(a) provides that
an application for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.3
OWCP procedures require a review of the file to determine whether the application for
reconsideration was received within one year of a merit decision. The one-year period begins on
2

5 U.S.C. § 8128(a).

3

20 C.F.R. § 10.607(a).

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the date of the original decision. However, a right to reconsideration within one year
accompanies any subsequent merit decision on the issues. This includes any hearing or review
of the written record decision, any denial of modification following reconsideration, any merit
decision by the Board, and any merit decision following action by the Board, but does not
include prerecoupment hearing decisions.4 Timeliness is determined by the document receipt
date of the reconsideration request (the received date in the Integrated Federal Employees
Compensation System (iFECS)). If the request for reconsideration has a document received date
greater than one year, the request must be considered untimely.5
OWCP will consider an untimely application only if the application demonstrates clear
evidence of error on the part of it in its most recent merit decision. The application must
establish, on its face, that such decision was erroneous.6
The term clear evidence of error is intended to represent a difficult standard. If clear
evidence of error has not been present, OWCP should deny the application by letter decision,
which includes a brief evaluation of the evidence submitted and a finding made that clear
evidence of error has not been shown.7
ANALYSIS
The most recent adverse decision reviewing the merits of appellant’s case was OWCP’s
April 24, 2013 decision. The appeal rights attached to that decision explained that appellant had
one calendar year from the date of that decision, or until April 24, 2014, to submit to OWCP a
reconsideration request.
OWCP received appellant’s request for reconsideration on June 29, 2015. As the
received date was more than one year after April 24, 2013, appellant’s request must be
considered untimely. The proper standard of review for an untimely reconsideration request is
the clear evidence of error standard.
In denying appellant’s reconsideration request, OWCP did not determine whether
appellant’s reconsideration request was untimely filed and did not review the request under the
clear evidence of error standard. Rather, it applied the standard of review for timely requests for
reconsideration. As OWCP applied the inappropriate standard of review to the untimely request
for reconsideration, the Board will set aside OWCP’s August 19, 2015 decision and remand the
case for proper review under the clear evidence of error standard as required by regulations.8

4

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4b (October 2011).

5

Id.

6

20 C.F.R. § 10.607.

7

Supra note 4 at Chapter 2.1602.5.a (October 2011).

8

See 20 C.F.R. § 10.607(b). See W.L., Docket No. 15-1842 (issued January 14, 2016); L.D., Docket No. 15-0865
(issued October 6, 2015).

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CONCLUSION
The Board finds that OWCP improperly denied appellant’s June 29, 2015 reconsideration
request under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 19, 2015 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further review under
the clear evidence of error standard.
Issued: April 7, 2016
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
__________________________________________
M.J., Appellant
and
DEPARTMENT OF THE AIR FORCE,
McGUIRE AIR FORCE BASE, NJ, Employer
__________________________________________

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Appearances:
Thomas R. Uliase, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-1339
Issued: December 14, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On June 14, 2016 appellant, through counsel, filed a timely appeal from a March 31,
2016 nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more
than 180 days elapsed from the last merit decision dated November 25, 2015 to 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 over the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration
pursuant to 5 U.S.C. § 8128(a).

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has been previously before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference.
OWCP accepted that on March 12, 1990 appellant, then a 32-year-old sheet metal
mechanic, sustained a lumbar contusion when he stumbled on uneven ground and fell against the
corner of a steel plate that was protruding from a truck bed. Following a period of light duty,
appellant stopped work on July 29, 1990 and did not return. He received wage-loss
compensation on the daily and periodic compensation rolls. Appellant remained under medical
care.
On June 7, 1993 OWCP obtained a second opinion from Dr. Stanley Askin, a Boardcertified orthopedic surgeon, who opined that appellant’s symptoms and lumbar disc bulges were
due to idiopathic degenerative disc disease and not the accepted contusion. Dr. Askin found
appellant able to perform full-time light duty.
Appellant’s physicians submitted reports from September 1993 through May 2012,
finding appellant totally disabled for work due to lumbar pain.
On August 3, 2012 OWCP obtained an updated second opinion report from Dr. Askin,
who diagnosed age-related degenerative lumbar disc disease, unrelated to the accepted lumbar
contusion. Dr. Askin opined that the accepted contusion had resolved as of the June 7, 1993
examination and required no further treatment. He found appellant able to perform full-time
work, with restrictions attributable only to age-related changes.
By notice dated November 30, 2012 and finalized December 31, 2012, OWCP terminated
appellant’s wage-loss compensation and medical benefits, based on Dr. Askin’s opinion as the
weight of the medical evidence.
In a January 9, 2013 letter, counsel requested a hearing before an OWCP hearing
representative, held on April 10, 2013 by video link. At the hearing, he asserted that Dr. Askin
did not fully consider the medical record. Following the hearing, counsel submitted an April 10,
2013 report from Dr. Laura E. Ross, an attending osteopathic physician Board-certified in
orthopedic surgery. Dr. Ross opined that the L4-5 herniated disc was related to the accepted
March 12, 1990 lumbar contusion because it was visible on a June 19, 1990 computerized
tomography (CT) scan.
By decision dated June 12, 2013, an OWCP hearing representative affirmed OWCP’s
December 31, 2012 decision, finding that the additional evidence submitted was insufficient to
outweigh Dr. Askin’s report.
In September 9 and 16, 2013 letters, counsel requested reconsideration. He asserted that
new medical evidence established a conflict of opinion with Dr. Askin. Counsel provided an
August 5, 2013 report from Dr. Steven J. Valentino, an attending osteopathic physician Board3

Docket No. 14-0990 (issued July 20, 2015).

2

certified in orthopedic surgery, who opined that appellant’s condition was related to the
March 12, 1990 employment injury, based on appellant’s history and clinical presentation. He
also provided a September 11, 2013 report from Dr. William C. Murphy, an osteopath Boardcertified in physiatry. Dr. Murphy noted that, on March 12, 1990, appellant “fell off a truck and
his back hit a metal manhole cover,” causing multiple herniated cervical and lumbar discs.
By decision dated December 6, 2013, OWCP denied modification, finding that the
additional medical evidence submitted was insufficient to establish residuals of the accepted
injury on and after December 31, 2012. It found that Dr. Murphy’s report was based on an
inaccurate history as he reported that appellant fell off a truck. Therefore, Dr. Askin’s opinion
continued to represent the weight of the medical evidence. Appellant then appealed to the
Board.
By decision issued July 20, 2015, the Board affirmed OWCP’s December 6, 2013
decision, finding that OWCP met its burden of proof to terminate benefits.4 The Board found
that OWCP properly accorded Dr. Askin’s opinion the weight of the medical evidence, as it was
based on the complete medical record, a statement of accepted facts, and detailed clinical
examinations. The Board further found that appellant did not meet his burden of proof to
establish that he was disabled for work on and after December 31, 2012.
On August 31, 2015 counsel again requested reconsideration and submitted reports from
Dr. Murphy. He asserted that Dr. Askin’s report contained “no reasoned opinion” and failed to
discuss imaging studies confirming lumbar disc herniations. Alternatively, counsel argued that
there was a conflict of medical opinion between appellant’s physicians and Dr. Askin, requiring
referral to an impartial medical examiner.
In an April 9, 2014 report, Dr. Murphy found tenderness to palpation of the cervical and
lumbar paraspinal muscles, bilateral L5-S1 paraspinal spasm, greater on the right, tenderness
over the right greater sciatic notch, bilaterally positive straight leg raising tests, bilaterally
positive sitting root signs, a positive Bragard’s test on the right, and limited lumbar motion. He
diagnosed subacute to chronic bilateral L5 radiculopathy, worse on the right. Dr. Murphy opined
that, based on appellant’s history, findings on examination, and significant magnetic resonance
imaging (MRI) scan and electromyography (EMG) and nerve conduction velocity (NCV)
findings,5 appellant’s “lumbar contusion, strain, sprain, multilevel lumbar disc herniation L3-4
through L5-S1 and bilateral L5 radiculopathy, are all directly attributable to his work-related
incident of March 12, 1990.” He prescribed medication and activity restrictions. Dr. Murphy
obtained EMG/NCV test results, demonstrating bilateral L5 radiculopathy, worse on the right.

4

Id.

5

January 15, 2013 EMG and NCV testing of the lower extremities was normal, without “clear evidence of a
radiculopathy or neuropathy at this time.” January 17, 2013 lumbar and cervical MRI scans showed underlying
developmental central canal stenosis with exacerbating multilevel cervical spondylosis,” severe central canal
stenosis at C4-5, C5-6, and C6-7 with spinal cord impingement and spinal cord deformity, disc bulges at L3-4 and
L4-5, a small central disc protrusion at L5-S1, and T9-10, and degenerative disc disease at L4-5 with a prominent
disc bulge and annular tear causing mild-to-moderate bilateral neural foraminal stenosis and central canal stenosis.

3

In a July 23, 2014 report, Dr. Murphy related appellant’s symptoms of right-sided lumbar
radiculopathy, and left-sided cervical radiculopathy. He opined that the March 12, 1990
employment injury remained symptomatic and appellant had “never fully recovered.”
Dr. Murphy explained that appellant’s prognosis was poor. He remained permanently disabled
from his date-of-injury position. Dr. Murphy found appellant’s condition unchanged in periodic
reports through August 12, 2015.6 He reiterated that appellant remained “symptomatic from his
work[-]related spinal injuries of March 12, 1990 and has never fully recovered.”
In an August 25, 2015 report, Dr. Murphy related appellant’s account of a March 12,
1990 work injury, when he “stepped off of a truck into a tire rut and fell backwards, striking his
back against a steel plate/manhole cover which was being held by several soldiers. He had just
cut the manhole plate and the soldiers were holding it when he stepped down, lost his balance
and fell backwards injuring his low back.” Dr. Murphy opined that the March 12, 1990
occupational injury remained symptomatic and that appellant had not fully recovered. He
disagreed with Dr. Askin’s assessment of a lumbar contusion only, as appellant required
extensive treatment, “and the supporting diagnostic studies including MRI and EMG testing
identifying his spinal related injuries from that incident. Dr. Askin has minimized the injuries
that [appellant] sustained in that incident and it is my opinion that his description of the injury is
inaccurate and that his conclusions are based on a diagnosis of a lumbar contusion only.”
By decision dated November 25, 2015, OWCP denied modification of its prior decision,
finding that Dr. Murphy’s reports were insufficiently rationalized to meet appellant’s burden of
proof to establish continuing disability, or to create a conflict with Dr. Askin’s opinion.
On January 4, 2016 appellant, through counsel, again requested reconsideration. Counsel
asserted that an enclosed December 20, 2015 report from Dr. Murphy provided sufficient
medical rationale to meet appellant’s burden of proof. He also contended that Dr. Murphy’s
opinion was sufficient to create a conflict of medical opinion with Dr. Askin, requiring
appointment of an impartial medical specialist under 5 U.S.C. § 8123(a).
In a December 20, 2015 report, Dr. Murphy noted reviewing the Board’s July 20, 2015
decision. He related that, on March 12, 1990, appellant fell backwards onto the corner of a metal
manhole cover, striking his lower back. Appellant was taken to a hospital, where he presented
with hematuria. Dr. Murphy provided a complete treatment history, emphasizing that appellant
had been followed continuously since the March 12, 1990 employment injury. He opined that a
June 1990 computerized tomography (CT) scan showed L4-5 and L5-S1 disc herniations,
correlating “exactly with his abnormal findings on EMG testing for radiculopathy at the
associated levels where the injuries occurred in the lumbar spine.” Dr. Murphy found that the
March 12, 1990 incident caused “thoracic and lumbar contusion, lumbar disc herniation at L4-5
and L5-S1, lumbar radiculopathy.”
In a March 8, 2016 report, Dr. Murphy reiterated that appellant’s lumbar disc herniations,
lumbar radiculopathy, and aggravation of degenerative lumbar disc disease remained “directly
related to the work-related incident of March 12, 1990.”
6

On April 7, 2015 appellant underwent a right L4-5 and L5-S1 transforaminal epidural steroid injection

4

By decision dated March 31, 2016, OWCP denied reconsideration of the merits, finding
that counsel’s letter and accompanying medical reports did not constitute new, relevant evidence.
It found that his assertion of a conflict of medical opinion between Dr. Askin and Dr. Murphy
was repetitive of his prior arguments. OWCP further found that Dr. Murphy’s December 20,
2015 and March 8, 2016 reports were cumulative, as they were highly similar to his opinions
previously of record.
LEGAL PRECEDENT
To require the office to reopen a case for merit review under section 8128(a) of FECA,7
section 10.606(b)(3) of Title 20 of the Code of Federal Regulations provides that a claimant
must: (1) show OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.8 Section 10.608(b) provides that
when an application for review of the merits of a claim does not meet at least one of the three
requirements enumerated under section 10.606(b)(3), OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.9
In support of a request for reconsideration, an appellant is not required to submit all
evidence which may be necessary to discharge his or her burden of proof.10 He or she need only
submit relevant, pertinent new evidence not previously considered by OWCP.11 When reviewing
an OWCP decision denying a merit review, the function of the Board is to determine whether
OWCP properly applied the standards set forth at section 10.606(b)(3) to the claimant’s
application for reconsideration and any evidence submitted in support thereof.12
ANALYSIS
In the prior appeal, the Board issued a July 20, 2015 decision affirming OWCP’s
December 6, 2013 merit decision, finding that appellant had not established continued disability
from work commencing December 31, 2012 due to an accepted March 12, 1990 lumbar
contusion.
Counsel requested reconsideration on August 25, 2015, contending that reports from
Dr. Murphy, an attending osteopathic physician Board-certified in emergency medicine, coupled
with January 2013 electrodiagnostic and imaging studies, were sufficient to meet appellant’s
burden of proof in establishing continuing disability. Alternatively, he contended that there was
7

5 U.S.C. § 8128(a).

8

20 C.F.R. § 10.606(b)(3).

9

Id. at § 10.608(b). See also D.E., 59 ECAB 438 (2008).

10

Helen E. Tschantz, 39 ECAB 1382 (1988).

11

See 20 C.F.R. § 10.606(b)(3). See also Mark H. Dever, 53 ECAB 710 (2002).

12

Annette Louise, 54 ECAB 783 (2003).

5

a conflict of medical opinion between Dr. Murphy and Dr. Askin, a Board-certified orthopedic
surgeon and second opinion physician.
In reports from April 9, 2014 to August 25, 2015, Dr. Murphy opined that appellant
sustained herniated lumbar discs and bilateral L5 radiculopathy in the March 12, 1990 incident,
and these conditions continued to be active and totally disabling. He asserted that January 15,
2013 electrodiagnostic studies, which were negative for lumbar radiculopathy or neuropathy, and
a January 17, 2013 MRI scan that demonstrated multilevel lumbar disc herniations, supported
that these diagnoses were occupationally related.
OWCP denied modification by decision dated November 25, 2015, finding that
Dr. Murphy’s reports were insufficiently rationalized to meet appellant’s burden of proof or to
conflict with Dr. Askin’s opinion.
Counsel again requested reconsideration on January 4, 2016, asserting that additional
reports from Dr. Murphy were sufficient either to meet appellant’s burden of proof or to create a
conflict with Dr. Askin’s opinion. He provided a December 20, 2015 report from Dr. Murphy,
opining that the March 12, 1990 employment incident caused herniated lumbar discs and lumbar
radiculopathy, as supported by electrodiagnostic and imaging studies. Counsel reiterated this
opinion on March 8, 2016. OWCP denied reconsideration on March 31, 2016, finding that
counsel’s letter and accompanying documents were either repetitious or irrelevant.
The Board finds that OWCP appropriately denied reconsideration. Counsel’s assertion of
a conflict between Dr. Askin and Dr. Murphy was duplicative of his August 25, 2015 request for
reconsideration. Dr. Murphy’s December 20, 2015 and March 8, 2016 reports are repetitive of
his April 9 and July 23, 2014, and August 25, 2015 reports previously of record. Evidence
which is duplicative, cumulative, or repetitive in nature is insufficient to warrant reopening a
claim for merit review.13 Counsel’s argument and Dr. Murphy’s additional reports are therefore
insufficient to warrant reconsideration of the merits.
Appellant did not meet any of the three criteria to warrant further merit review of his
case. Therefore, pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
On appeal, counsel contends that Dr. Askin’s opinion cannot represent the weight of the
medical evidence as it is insufficiently rationalized, equivocal, and does not discuss imaging
studies. This argument pertains to the merits of the claim, which are not before the Board on the
present appeal.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration
pursuant to 5 U.S.C. § 8128(a).

13

Denis M. Dupor, 51 ECAB 482 (2000).

6

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated March 31, 2016 is affirmed.
Issued: December 14, 2016
Washington, DC

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

Patricia H. Fitzgerald, Deputy Chief 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
__________________________________________
G.R., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
LOGISTICS AGENCY, HILL AIR FORCE
BASE, UT, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 15-1265
Issued: February 3, 2016

Case Submitted on the Record

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

JURISDICTION
On May 20, 2015 appellant filed a timely appeal from an April 23, 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 501.3,2 the Board has jurisdiction
over the merits of the case.3

1

5 U.S.C. § 8101 et seq.

2

The Board notes that appellant submitted evidence with her appeal to the Board. The Board cannot consider this
evidence as its jurisdiction is limited to the evidence of record that was before OWCP at the time it issued its final
decision. 20 C.F.R. § 501.2(c)(1); P.W., Docket No. 12-1262 (issued December 5, 2012).
3

Appellant timely requested oral argument pursuant to section 501.5(b) of Board procedures. 20 C.F.R.
§ 501.5(b). By order dated November 25, 2015, the Board denied the request, finding that the arguments on appeal
could adequately be addressed based on the case record. Order Denying Request for Oral Argument, Docket No.
15-1265 (issued November 25, 2015). The Board’s Rules of Procedure provide that any appeal in which a request
for oral argument is not granted by the Board will proceed to a decision based on the case record and any pleadings
submitted. 20 C.F.R. § 505.5(b).

ISSUE
The issue is whether appellant met her burden of proof to establish permanent
impairment due to the accepted lumbar conditions.
On appeal appellant asserts that she is entitled to full compensation due to her
employment injury. She also questions whether she was entitled to receive FECA wage-loss or
schedule award compensation in addition to Office of Personnel Management (OPM) retirement
compensation.
FACTUAL HISTORY
On August 28, 2013 appellant, then a 58-year-old supply technician, filed a traumatic
injury claim (Form CA-1) alleging that on August 13, 2013 she injured her lower back when
lifting heavy boxes. She returned to work in a modified-duty status.4 On October 30, 2013
OWCP accepted lumbar back sprain.
Appellant came under the care of Dr. William Brandt, a Board-certified physiatrist, in
November 2013. A November 19, 2013 magnetic resonance imaging (MRI) scan of the lumbar
spine demonstrated minor degenerative disc disease at L4-5 and L5-S1 with no evidence of
herniation or extruded fragment.
Appellant voluntarily resigned from the employing establishment, effective
November 29, 2013. She noted that she had a graduate degree and was resigning because she
had been given no opportunity to advance.5
In February 2014, OWCP referred appellant to Dr. Michael E. Callahan, a Board-certified
orthopedic surgeon, for a second-opinion evaluation. In a March 13, 2014 report, Dr. Callahan
described the history of injury and noted his review of the medical record and appellant’s
complaints of intermittent muscle spasms and constant back pain, aggravated by activity. He
performed a physical examination, noting that appellant recently had lower extremity vein
surgery. Back range of motion was diminished, with guarding present. Strength examination
was normal in both lower extremities. Dr. Callahan diagnosed temporary acute exacerbation of
preexisting degenerative disc disease and degenerative joint disease of the lumbar spine. He
advised that she had not reached maximum medical improvement, and provided restrictions in
lifting, bending, stooping, twisting, pushing, and pulling for a 12-month period. Dr. Callahan
advised that walking and standing were limited to two hours.
On March 21, 2014 appellant filed a Form CA-7 claim for a schedule award. In
correspondence dated March 31, 2014, OWCP noted that Dr. Callahan advised that she had not
reached maximum medical improvement and informed her of the evidence needed to establish
spinal nerve extremity impairments.
4

The modified assignment was for sedentary work only and required no lifting, carrying, pushing, or pulling over
10 pounds; no bending, twisting, squatting, stooping, kneeling, or crawling; no climbing ladders; no overhead
shoulder lifting; and no back lifting.
5

Appellant also indicated that she had an accepted claim and was also a disabled veteran. The record indicates
that she receives Department of Veterans Affairs (VA) benefits for asthma and sleep apnea.

2

Appellant filed a second schedule award claim on April 6, 2014. She submitted an
April 24, 2014 report in which Dr. Michael M. Hess, a Board-certified orthopedic surgeon, noted
the history of injury and appellant’s complaint of nonradiating back pain. Dr. Hess advised that
her physical examination was not reliable because she demonstrated three of five Waddell signs
in that she had a negative sitting straight leg raise and a positive lying supine straight leg raise
which would be a positive distraction sign; a positive simulation sign and a compression on her
head that caused pain in her low back; and a positive regional sign in that she had sensory loss
that was not in the dermatome distribution. He indicated that, in accordance with Table 17-4 of
the American Medical Association, Guides to the Evaluation of Permanent Impairment
(hereinafter A.M.A., Guides),6 appellant had three percent whole person impairment, noting no
clinical studies, a zero physical examination grade modifier based on inconsistent examination
findings, and a functional history modifier of two.
On April 30, 2014 appellant filed a Form CA-7, claims for compensation, for the period
December 1, 2013 to April 19, 2014. The employing establishment noted that appellant had
voluntarily resigned on November 29, 2013.
On May 12, 2014 OWCP additionally accepted temporary aggravation of degeneration of
lumbar disc L4-5 and L5-S1. In a May 12, 2014 letter, it informed appellant of the evidence
needed to support her claims for compensation.
By decision dated July 16, 2014, OWCP denied appellant’s claims for compensation for
the period December 1, 2013 to April 19, 2014. It noted that she submitted no evidence to
explain why she could not perform the duties of the modified position from which she resigned.7
On October 6, 2014 OWCP informed Dr. Hess that under FECA, awards for permanent
impairment could not be paid for the spine and could not be given for a whole person
impairment. OWCP advised that if a spinal nerve caused an extremity impairment, it was proper
to use the July/August 2009 The Guides Newsletter to rate an extremity impairment. Dr. Hess
was asked to submit an impairment rating in accordance with The Guides Newsletter, found in
Exhibit 4, Chapter 3.700, of OWCP procedures. He was asked to indicate a date of maximum
medical improvement.
In an October 28, 2014 report, Dr. Hess advised that appellant would have reached
maximum medical improvement on November 13, 2013. He reported that, because appellant’s
physical examination was unreliable, as noted in his prior report, he could not give an effective
extremity impairment, indicating that appellant had no objective evidence of spinal nerve
involvement.8
In a January 23, 2015 report, Dr. Morley Slutsky, an OWCP medical adviser who is
Board-certified in occupational medicine, noted his review of the medical record including
6

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

7

Appellant did not file an appeal with the Board from the July 16, 2014 decision. For final adverse OWCP
decisions issued on and after November 19, 2008, a claimant has 180 days to file an appeal with the Board. See 20
C.F.R. § 501.3(e); D.G., Docket No. 12-770 (issued April 20, 2012).
8

Dr. Brandt continued to submit treatment notes. He did not provide an impairment rating.

3

Dr. Hess’ reports. He advised that maximum medical improvement was reached on
November 13, 2013. The medical adviser noted that multiple doctors, including Dr. Hess, did
not find objective evidence of lower extremity sensory, motor, or reflex changes related to the
accepted low back conditions and, as such, there was no basis for a lower extremity impairment
rating using July/August 2009 The Guides Newsletter.
By decision dated April 23, 2015, OWCP denied appellant’s claim for a schedule award
because the medical evidence did not demonstrate measurable impairment in accordance with the
A.M.A., Guides.9
LEGAL PRECEDENT
The schedule award provision of FECA,10 and its implementing federal regulations,11 set
forth the number of weeks of compensation payable to employees sustaining permanent
impairment from loss, or loss of use, of scheduled members or functions of the body. However,
FECA does not specify the manner in which the percentage of loss shall be determined. For
consistent results and to ensure equal justice under the law for all claimants, OWCP has adopted
the A.M.A., Guides as the uniform standard applicable to all claimants.12 For decisions issued
after May 1, 2009, the sixth edition of the A.M.A., Guides is to be used.13
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, under FECA a schedule award is not payable for injury to the spine.14 In
1960, amendments to FECA modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of FECA include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.15
The sixth edition of the A.M.A., Guides does not provide a separate mechanism for rating
spinal nerve injuries as extremity impairment. The A.M.A., Guides for decades has offered an
alternative approach to rating spinal nerve impairments.16 OWCP has adopted this approach for
9

The decision was initially issued on April 15, 2015. Because it was mailed to an incorrect address, the decision
was reissued on April 23, 2015.
10

5 U.S.C. § 8107.

11

20 C.F.R. § 10.404.

12

Id. at § 10.404(a).

13

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.803.5a (February 2013) and Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exihibit 1
(January 2010).
14

Pamela J. Darling, 49 ECAB 286 (1998).

15

Thomas J. Engelhart, 50 ECAB 319 (1999).

16

Rozella L. Skinner, 37 ECAB 398 (1986).

4

rating impairment of the upper or lower extremities caused by a spinal injury, as provided in
section 3.700 of its procedures, which memorializes proposed tables outlined in a JulyAugust 2009 The Guides Newsletter.17
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.18
ANALYSIS
The Board finds that appellant did not meet her burden of proof to establish permanent
impairment due to the accepted lumbar conditions, which are lumbar strain and temporary
aggravation of degeneration of lumbar disc L4-5 and L5-S1.
The only physician who provided an impairment rating was appellant’s treating
physician, Dr. Hess. In an April 24, 2014 report, Dr. Hess explained that appellant’s physical
examination was unreliable at that time, noting three of five positive Waddell signs. He
indicated that, under Table 17-4 of the A.M.A., Guides, appellant had three percent whole person
impairment.
As noted above, under FECA a schedule award is not payable for injury to the spine.19
However, a claimant may be entitled to a schedule award for permanent impairment to an
extremity even though the cause of the impairment originated in the spine.20 Chapter 17 of the
A.M.A., Guides in entitled “The Spine and Pelvis.”21 Table 17-4 is used to rate the lumbar
spine.22
Following a request by OWCP for Dr. Hess to submit an impairment rating in accordance
with The Guides Newsletter, in an October 28, 2014 report, Dr. Hess advised that appellant
reached maximum medical improvement on November 13, 2013. He reported that, because
appellant’s physical examination was unreliable, he could not give an effective extremity
impairment, indicating that she had no objective evidence of spinal nerve involvement.23 On
January 23, 2015 Dr. Slutsky, OWCP medical adviser, reviewed the record, including Dr. Hess’
reports. He concluded that, as appellant had no lower extremity sensory of motor impairments,
she would not be entitled to a lower extremity schedule award under The Guides Newsletter.
17

FECA Transmittal No. 10-04 (issued January 9, 2010); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
18

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
19

Supra note 14.

20

Supra note 15.

21

Supra note 6 at 557-601.

22

Id. at 570.

23

Dr. Brandt continued to submit treatment notes. He did not provide an impairment rating.

5

The Board finds that OWCP medical adviser, Dr. Slutsky, properly reviewed the medical
record and evaluated appellant’s condition in accordance with OWCP procedures found in the
July/August 2009 The Guides Newsletter, using Proposed Table 2.24 There is no medical
evidence in conformance with the A.M.A., Guides showing any lower extremity impairment.
The Board finds that, as the medical adviser properly applied the A.M.A., Guides to Dr. Hess’
clinical findings, his opinion represents the weight of the medical evidence in this case.25
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 did not meet her burden of proof to establish permanent
impairment due to the accepted lumbar conditions.
ORDER
IT IS HEREBY ORDERED THAT the April 23, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: February 3, 2016
Washington, DC

Patricia H. Fitzgerald, Deputy 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

24

Supra note 14.

25

See N.B., Docket No. 15-1390 (issued November 6, 2015).

6


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, BUREAU OF
)
PRISONS, Toledo, OH, Employer
)
___________________________________________ )
T.H., Appellant

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

Docket No. 10-140
Issued: August 4, 2010

Case Submitted on the Record

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

JURISDICTION
On October 19, 2009 appellant filed a timely appeal from an Office of Workers’
Compensation Programs’ decision dated September 30, 2009, which affirmed the denial of his
recurrence of disability claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a recurrence of
disability on January 14, 2009 causally related to his November 28, 2005 employment injury.
FACTUAL HISTORY
On November 28, 2005 appellant, then a 29-year-old corrections officer was securing
utensils in the kitchen at work when he slipped on chicken grease and injured his right knee. He
stopped work on November 28, 2005.

In a December 16, 2005 report, Dr. Harvey R. Manes, a Board-certified orthopedic
surgeon, determined that appellant had a torn lateral meniscus and diagnosed right knee
derangement. He recommended an arthroscopy.
The Office accepted the claim for “derangement of the posterior horn” and “torn medial
meniscus of the right knee.” Appellant received wage-loss compensation benefits. The Office
authorized arthroscopic surgery on both January 4, 2007 and October 31, 2008. However,
appellant did not proceed with the authorized surgery.
On June 3, 2006 appellant began a part-time, four-hour, limited-duty job. He received
compensation for the four hours daily that he did not work. In a June 7, 2006 duty status report,
Dr. James L. Marzec, a Board-certified orthopedic surgeon, advised that appellant was partially
disabled and could continue light duty for no more than four hours a day. The restrictions
included that he perform desk duty with no lifting or standing. Dr. Marzec continued to restrict
appellant to desk work for four hours daily.
After development of the claim and finding a conflict of medical opinion between
appellant’s treating physician, who allowed him to work four hours a day and the Office’s
referral physician, who found appellant could return to his full work duties, appellant was seen
by Dr. William A. Healy, III, a Board-certified orthopedic surgeon and impartial medical
examiner. In a report dated June 4, 2007, Dr. Healy noted appellant’s history of injury and
medical treatment. He diagnosed preexisting osteoarthritis with medial and lateral meniscal tear.
Dr. Healy determined that appellant had not recovered from the accepted conditions of
derangement of the right posterior horn lateral meniscus and torn right meniscus. He explained
that appellant had preexisting osteoarthritis, which was aggravated by the fact that appellant did
not undergo the arthroscopic intervention as recommended by his attending physician. Without
the recommended treatment, appellant’s meniscal tears and preexisting arthritic processes would
progress. Dr. Healy also noted the delay in appellant’s recovery was due to other factors which
were unrelated to the injury at work and included: appellant’s unwillingness to proceed with the
arthroscopic intervention; his preexisting degenerative process that was aggravated by the fall;
and the fact that at 5 feet, 10 inches and 322 pounds, he was obese and subjected his knees to
significant pressures. He opined that appellant should undergo the arthroscopic intervention that
was recommended by his physician. Dr. Healy advised that appellant could not return to full
duty.
The record reflects that appellant did not undergo surgery, but continued to work in his
limited-duty position.
On January 20, 2009 appellant filed a recurrence of total disability claim commencing
January 14, 2009. He had been performing light-duty work for a year and a half. Appellant
advised that he was preparing for surgery and his right knee was locking up again. He stopped
work on January 14, 2009. The employing establishment noted that appellant had been working
at a limited-duty position for fours a day since October 3, 2006.
By letters dated February 20 and March 6, 2009, the Office informed appellant of the
evidence needed to support his claim for a recurrence of disability. It requested that he submit
such evidence within 30 days.

2

Appellant submitted a statement on February 25, 2009. He noted that in the weeks prior
to 2009 while at work, his right knee began locking up when he walked from one building to
another. The locking became constant and his knee painful during extended periods of walking,
sitting and even while sleeping.
The Office received treatment reports from Dr. Marzec dated March 2006 to
October 14, 2008. Dr. Marzec noted that appellant’s physical examination and complaints
remained unchanged in the right knee. Dr. Marzec advised that appellant was currently working
four hours a day and did not feel that he could tolerate more than that. Dr. Marzec found that
appellant could continue working four hours a day. He requested authorization for an
arthroscopic partial medial meniscectomy of the right knee.
In January 14, 2009 disability report, Dr. Marzec advised that appellant was totally
disabled and requested authorization for surgery, which would be in February. He advised that
x-rays of the bilateral knees showed very mild medial arthritis, with the right equal to the left.
Dr. Marzec noted that appellant’s physical examination remained unchanged in the right knee
and advised that an arthroscopic partial medial meniscectomy was planned for February 4, 2009.
Appellant was found totally disabled and would be in physical therapy three times a week.
Dr. Marzec noted that he was out of work because his right knee was locking up and to prepare
for surgery.
In an April 17, 2009 decision, the Office denied appellant’s claim for a recurrence of
disability on January 14, 2009. It found that his claim was accepted for a torn medial meniscus
and derangement of the posterior horn of the right knee. The Office noted that appellant was
working a limited-duty position within his medical restrictions and that there was insufficent
evidence to establish that appellant was working outside his restrictions. It also noted that the
requested surgical intervention had been approved on more than one occasion.
On April 20, 2009 appellant requested a hearing, which was held on August 17, 2009.
He noted that he did not undergo surgery in February 2009. Appellant alleged that he was made
to work outside his restrictions because he had to walk back and forth between two buildings.
In a July 2, 2009 treatment note, Dr. Marzec advised that appellant was last seen on
January 14, 2009. He noted that surgery was denied on February 4, 2009. Dr. Marzec examined
appellant and noted that there was no change. He advised that appellant had continued
complaints of locking and pain. Dr. Marzec indicated that appellant was totally disabled;
however, he could perform desk duty for four hours a day.
In a decision dated September 30, 2009, an Office hearing representative affirmed the
April 17, 2009 decision.
LEGAL PRECEDENT
The Office’s regulations define the term recurrence of disability as follows: “Recurrence
of disability means an inability to work after an employee has returned to work, caused by a
spontaneous change in a medical condition, which had resulted from a previous injury or illness
without an intervening injury or new exposure to the work environment that caused the illness.

3

This term also means an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.”1
When an employee, who is disabled from the job he or she held when injured on account
of employment related residuals, returns to a light-duty position or the medical evidence
establishes that the employee can perform the light-duty position, the employee has the burden to
establish by the weight of the reliable, probative and substantive evidence, a recurrence of total
disability and to show that he or she cannot perform such light duty. As part of this burden, the
employee must show a change in the nature and extent of the injury related condition or a change
in the nature and extent of the light-duty job requirements.2
Causal relationship is a medical issue and the medical evidence required to establish a
causal relationship, generally, is rationalized medical evidence.3 This consists of a physician’s
rationalized medical opinion on the issue of whether there is a causal relationship between the
claimant’s diagnosed condition and the implicated employment factors.4 The physician’s
opinion must be based on a complete factual and medical background of the claimant, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the claimant.5
An award of compensation may not be based on surmise, conjecture or speculation.
Neither, the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that his condition was aggravated by his employment is sufficient to
establish causal relationship.6
ANALYSIS
Appellant’s claim was accepted for derangement of the posterior horn and torn medial
meniscus of the right knee. The Office authorized arthroscopic surgery for the right knee on
January 4, 2007 and October 31, 2008. Appellant did not proceed to surgery. He subsequently
alleged a recurrence of total disability on January 14, 2009. On February 20 and March 6, 2009
the Office advised appellant of the medical and factual evidence needed to establish his claim for
a recurrence of disability. Appellant did not submit sufficient medical evidence providing a
rationalized opinion from a physician, on the basis of a complete and accurate factual and
1

J.F., 58 ECAB 124 (2006); Elaine Sneed, 56 ECAB 373, 379 (2005); 20 C.F.R. § 10.5(x).

2

Shelly A. Paolinetti, 52 ECAB 391 (2001); Terry R. Hedman, 38 ECAB 222 (1986).

3

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

4

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

5

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

6

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

4

medical history, concluded that his disability beginning January 14, 2009 was causally related to
a spontaneous change in the accepted injury.7
On January 14, 2009 Dr. Marzec advised that appellant was totally disabled and
requested authorization for surgery. Generally, findings on examination are needed to justify a
physician’s opinion that an employee is disabled for work.8 In this case, Dr. Marzec noted that
appellant’s physical examination and complaints remained unchanged in the right knee. He did
not explain how appellant’s employment-related condition had worsened such that he was no
longer able to perform his limited-duty work during this time frame. However, it appears
Dr. Marzec found disability based on the fact that appellant would soon undergo surgery in
February 2009. This does not establish that his disability was due to a spontaneous change in the
employment-related condition.9 These reports are of limited probative value.
On July 2, 2009 Dr. Marzec examined appellant and noted that there was no change in his
findings and that he had continued complaints of locking and pain. He indicated that appellant
was totally disabled, but also found that he could perform desk duty for four hours a day. The
record reflects that surgery was not performed as anticipated. This report does not establish that
appellant was disabled such that he could not perform his light-duty position.
The record also contains reports that either predated or postdated appellant’s alleged
recurrence on January 14, 2009 and do not render any opinion on causal relationship. These
reports do not establish appellant’s claim for a recurrence of disability.
During his hearing and on appeal, appellant alleged that the requirements of his light-duty
position changed as he had to walk back and forth between two buildings. The Board notes that
the light-duty position was based on Dr. Marzec’s restrictions of desk work for no more than
four hours per day with no lifting or standing. Dr. Marzec’s restrictions did not specifically
address walking. The employing establishment noted that it had provided appellant four hours of
limited duty daily since October 3, 2006 and on his January 20, 2009 recurrence of disability
claim, he indicated that he had been working desk duty for four hours daily. There is insufficient
evidence to establish that he was required to work outside of his physical restrictions.
Consequently, he has not established a change in the nature and extent of the light duty job.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a recurrence
of disability on January 14, 2009 causally related to his accepted November 28, 2005
employment injury.

7

See Helen K. Holt, 50 ECAB 279 (1999).

8

See Dean E. Pierce, 40 ECAB 1249 (1989); Paul D. Weiss, 36 ECAB 720 (1985).

9

See Charles H. Tomaszewski, 39 ECAB 461, 467-68 (1988) (finding 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).

5

ORDER
IT IS HEREBY ORDERD THAT the decision of the Office of Workers’ Compensation
Programs dated September 30, 2009 is affirmed.
Issued: August 4, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.D., Appellant
and
U.S. POSTAL SERVICE, MONMOUTH
PROCESSING & DISTRIBUTION CENTER,
Eatontown, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 07-1210
Issued: October 9, 2007

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 April 3, 2007 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated October 17, 2006 with respect to her claim for
aggravation of an emotional condition. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she sustained an emotional condition
causally related to a compensable work factor on April 8, 2005.

FACTUAL HISTORY
On May 1, 2005 appellant filed a recurrence of disability claim (Form CA-2a), alleging
that her emotional condition had worsened.1 She identified the date of recurrence of disability as
April 8, 2005. In a brief undated statement, appellant stated, “I was doing my job and people
around me started talking about guns and detectives.” The Office advised appellant by letter
dated November 17, 2005, that it was developing her claim as a new injury.
In a narrative statement received by the Office on March 13, 2006, appellant stated that
the conversation regarding guns and detectives had brought back memories of the
December 2000 incident. She stated that she wanted to go home but was told she had to wait for
a supervisor.
By decision dated April 4, 2006, the Office denied the claim for compensation. It found
that the April 8, 2005 incident did not constitute a compensable work factor.
Appellant requested a hearing before an Office hearing representative which was held on
August 16, 2006. She stated that on December 16, 2000 employees were told that, “somebody
was coming back to harm somebody with a gun.” On April 8, 2005 appellant indicated that there
were three or four coworkers sitting near her while she was sitting at her workstation. She stated
that the coworkers “were talking about FBI’s in the building” and “talking and talking about
guns.” According to appellant she began to cry and she went home.
By decision dated October 17, 2006, the hearing representative affirmed the prior Office
decision. He found that appellant had not established a compensable work factor.
LEGAL PRECEDENT
Appellant has the burden of establishing by the weight of the reliable, probative and
substantial evidence that the condition for which she claims compensation was caused or adversely
affected by factors of her federal employment.2 This burden includes the submission of detailed
description of the employment factors or conditions which appellant believes caused or adversely
affected the condition or conditions for which compensation is claimed.3 A claimant must also
submit rationalized medical opinion evidence establishing a causal relationship between the
claimed condition and the established, compensable work factors.4
Workers’ compensation law does not apply to each and every injury or illness that is
somehow related to an employee’s employment. There are situations where an injury or illness has
1

The record indicated that appellant had a prior claim accepted for post-traumatic stress disorder, based on a
December 2000 incident involving a threat by a former coworker to return to the employing establishment and harm
employees.
2

Pamela R. Rice, 38 ECAB 838 (1987).

3

Roger Williams, 52 ECAB 468 (2001); Anna C. Leanza, 48 ECAB 115 (1996).

4

See Bonnie Goodman, 50 ECAB 139, 141 (1998).

2

some connection with the employment but nevertheless does not come within the coverage of
workers’ compensation. These injuries occur in the course of the employment and have some kind
of causal connection with it but nevertheless are not covered because they are found not to have
arisen out of the employment. Disability is not covered where it results from an employee’s
frustration over not being permitted to work in a particular environment or to hold a particular
position, or secure a promotion. On the other hand, where disability results from an employee’s
emotional reaction to his or her regular or specially assigned work duties or to a requirement
imposed by the employment, the disability comes within the coverage of the Federal Employees’
Compensation Act.5
ANALYSIS
The allegation in this case, is that on April 8, 2005 appellant, while sitting at her
workstation, heard a conversation among several coworkers. She did not provide a detailed
discussion of the actual conversation. According to appellant, there was a reference to detectives
or FBI agents in the building, as well as talk about guns. As noted above, her burden of proof
includes the submission of a detailed statement regarding the employment incident.
There is no evidence in the record to substantiate the allegation as a compensable work
factor. While appellant was at work during the April 8, 2005 incident, the alleged conversation
did not relate to the performance of her job duties. There is no evidence that there were any FBI
agents in the building or that appellant had any contact with an FBI agent, a law enforcement
officer or any weapon. It appears that appellant is alleging that the conversation referring to
guns brought memories of a prior December 2000 incident. That incident, however, involved a
threat from a former coworker. There is no indication that the conversation on April 8, 2005
involved any reference to the prior incident. Although appellant may not have liked the subject
matter of the conversation, it is well established that not every statement uttered in the workplace
will give rise to coverage under the Act.6
The Board finds that the record does not substantiate a compensable work factor on
April 8, 2005. Appellant did not provide a detailed factual statement and the incident alleged
does not relate to her day-to-day duties, specially assigned duties or any other requirement
imposed by her employment. Since appellant has not established a compensable work factor, the
Board will not address the medical evidence.7
CONCLUSION
The evidence of record does not substantiate a compensable work factor on April 8, 2005
and, therefore, appellant did not meet her burden of proof.

5

Lillian Cutler, 28 ECAB 125 (1976).

6

Charles D. Edwards, 55 ECAB 258, 271 (2004).

7

See Margaret S. Krzycki, 43 ECAB 496 (1992).

3

ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated October 17 and April 4, 2006 are affirmed.
Issued: October 9, 2007
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

4


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
U.S. POSTAL SERVICE, POST OFFICE,
)
Callahan, FL, Employer
)
___________________________________________ )
S.L., Appellant

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

Docket No. 10-2230
Issued: July 14, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On September 1, 2010 appellant filed a timely appeal from the July 27, 2010 Office of
Workers’ Compensation Programs’ (OWCP) merit decision which affirmed a schedule award.
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the schedule award determination.
ISSUE
The issue is whether appellant has a permanent impairment to a scheduled member of the
body entitling her to a schedule award.
FACTUAL HISTORY
On December 13, 2006 appellant, then a 51-year-old clerk, filed a traumatic injury claim
alleging that on April 10, 2006 she sustained injuries to her back, legs and feet in the
performance of duty. She stopped work on September 15, 2006. OWCP accepted the claim for
lumbar sprain and displacement of the disc at L5-S1 without myelopathy. It approved surgical
1

5 U.S.C. § 8101 et seq.

discectomy and low back fusion which was performed on January 8, 2007. Appellant received
compensation benefits.
OWCP referred appellant for a second opinion examination with Dr. Steven J. Lancaster,
a Board-certified orthopedic surgeon, regarding her ability to work and whether she sustained
permanent impairment.2 In an October 8, 2008 report, Dr. Lancaster noted appellant’s history of
injury and treatment. He advised that appellant had no permanent impairment. Dr. Lancaster
noted that, while appellant’s physician had found seven percent impairment of the spine, she had
no ratable impairment of any extremity under the American Medical Association, Guides to the
Evaluation of Permanent Impairment (5th ed. 2001) (A.M.A., Guides).
On September 23, 2009 appellant filed a claim for a schedule award. In a September 29,
2009 letter, OWCP notified her that schedule awards were not payable for impairment to the
back. Appellant was asked to identify the extremity for which she claimed impairment.
In a letter dated November 2, 2009, appellant’s representative provided OWCP with an
impairment rating from Dr. Arkam Rehman, a Board-certified physiatrist. In an August 10, 2008
report, Dr. Rehman referred to the fifth edition of the A.M.A., Guides. He opined that appellant
had an impairment of 10 to 13 percent of the whole person under the lumbar DRE category 3
classification. Dr. Rehman opined that under the Florida “PIR” appellant had an impairment of
seven percent.
By letter dated November 6, 2009, OWCP sought an opinion on impairment of the lower
extremities under the sixth edition of the A.M.A., Guides. In a January 4, 2010 report,
Dr. Rehman reiterated the findings contained in his August 10, 2008 report. He opined that
appellant had an impairment of 10 to 13 percent of the whole person.
On January 12, 2010 OWCP referred the case file to the Office medical adviser. In a
report dated January 12, 2010, the medical adviser noted that Dr. Lancaster had found no lower
extremity impairment. Furthermore, he noted that Dr. Rehman opined that appellant had an
impairment of 10 to 13 percent but did not explain the basis for the determination.
By letter dated January 19, 2010, OWCP again wrote to Dr. Rehman to request
clarification regarding his impairment rating. In a February 1, 2010 report and February 11,
2010 impairment worksheet, Dr. Rehman repeated his rating.
In a February 18, 2010 report, OWCP’s medical adviser determined that appellant had no
impairment of the lower extremities. While Dr. Rehman provided a whole person rating of 13
percent, the Office did not base schedule awards on impairment of the spine or to the whole
person. The medical adviser opined that there was no objective basis to support any impairment
to either leg.
By decision dated February 22, 2010, OWCP denied appellant’s claim for a schedule
award. It found that the medical evidence did not establish permanent impairment to either leg
based on the accepted lumbar condition.

2

Appellant’s physicians previously stated that appellant had spine or whole person impairment.

2

By letter dated March 3, 2010, appellant’s representative requested a telephonic hearing,
which was held on June 8, 2010.
In the May 20, 2010 report, Dr. William Grant, a Board-certified internist, noted
appellant’s history of injury and treatment and explained that he conducted a telephone interview
but did not examine appellant. He reported bilateral leg weakness and numbness. Dr. Grant
diagnosed lumbar strain and herniated disc at the L5-S1 levels. He referred to Table 16-12 and
opined that appellant had an impairment of 23 percent of the right and left lower extremities. In
the May 27, 2010 report, Dr. Grant reiterated the findings provided in his May 20, 2010 report.
As to a physical examination, he noted that appellant related that she had limited range of motion
of the lumbar spine. Dr. Grant diagnosed L5-S1 postlaminectomy syndrome, low back pain and
bilateral sciatica. He opined that appellant had 23 percent impairment of the right and left lower
extremities.
By decision dated July 27, 2010, OWCP’s hearing representative affirmed the
February 22, 2010 decision.
LEGAL PRECEDENT
The schedule award provision of FECA,3 and its implementing federal regulations,4 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.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
Although the A.M.A., Guides includes guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under the Act for injury to the spine.7 In
1960, amendments to the Act modified the schedule award provisions to provide for an award for
permanent impairment to a member of the body covered by the schedule regardless of whether
the cause of the impairment originated in a scheduled or nonscheduled member. Therefore, as
the schedule award provisions of the Act include the extremities, a claimant may be entitled to a
schedule award for permanent impairment to an extremity even though the cause of the
impairment originated in the spine.8

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
7

Pamela J. Darling, 49 ECAB 286 (1998).

8

Thomas J. Engelhart, 50 ECAB 319 (1999).

3

ANALYSIS
The Board finds that appellant is not entitled to a schedule award. OWCP accepted her
claim for lumbar sprain and displacement of the disc at L5-S1 without myelopathy. It approved
surgical discectomy and low back fusion which was performed on January 8, 2007. Appellant
failed to establish any permanent impairment of her legs in accordance with the sixth edition of
the A.M.A., Guides.
In an October 8, 2008 report, Dr. Lancaster, the second opinion physician, reviewed
appellant’s history, examined her and rated permanent impairment. He determined that appellant
had no ratable impairment to either extremity based on her accepted condition.
The reports from Dr. Rehman dated August 10, 2008 and January 4, 2010 provided an
impairment rating of 10 to 13 percent of the whole person. The Board notes that appellant is not
entitled to a schedule award based on impairment to her back or a whole person rating. Neither
FECA nor the implementing federal regulations provide for a schedule award for impairment to
the back or to the body as a whole. The back is specifically excluded from the definition of
“organ” under the Act.9 Thus, Dr. Rehman’s finding that appellant has whole person impairment
is insufficient to warrant an impairment finding under the statute.
The Office medical adviser properly reviewed the medical record and found no basis for
rating impairment to a scheduled member of the body.10 He noted that Dr. Rehman’s whole
person rating, which was based on appellant’s spinal impairment, was not in reference to a
scheduled member of the body.11 The medical adviser found that there was no objective basis to
rate impairment to either lower extremity resulting from the accepted lumbar conditions.
Therefore, there was no ratable impairment.
Prior to the hearing representative’s July 27, 2010 decision, appellant also submitted
May 20 and 27, 2010, reports from Dr. Grant who opined that appellant had 23 percent
impairment of each leg. Although Dr. Grant referenced the sixth edition of the A.M.A., Guides
and rated impairment to appellant’s legs, his report is of diminished probative value as he did not
actually examine appellant but based his opinion on a telephone interview. He also did not
address, if any, medical reports he reviewed or considered in reaching his impairment rating.
Unlike a situation where OWCP’s medical adviser, consistent with OWCP procedures, applies
the findings of an examining physician to the A.M.A., Guides,12 it is not clear how Dr. Grant
arrived at his findings relative to appellant’s condition other than from his telephone interview.
The Board notes that the A.M.A., Guides contemplate that a rating physician shall review
medical records reflecting the past medical history along with the patient’s presentation of the
current history. It is contemplated that the physician shall also conduct a physical examination.13
9

Terry E. Mills, 47 ECAB 309 (1996); see 5 U.S.C. § 8101(19).

10

The Board notes that it is appropriate for an OWCP medical adviser to review the clinical findings of the
treating physician to determine the permanent impairment. See Federal (FECA) Procedure Manual, Part 3 -Medical, Schedule Awards, Chapter 3.700.3 (January 2010).
11

Id.

12

See supra note 10.

13

See A.M.A., Guides 28.

4

As Dr. Grant did not conduct an impairment evaluation consistent with the A.M.A., Guides, his
opinion is of diminished probative value and insufficient to establish that appellant has ratable
impairment of a scheduled body member causally related to her accepted conditions.14
Appellant did not submit any other medical evidence to support that she sustained
permanent impairment. The Board finds that she has not established entitlement to a schedule
award.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish entitlement to
a permanent impairment to a scheduled member of the body entitling her to a schedule award.
ORDER
IT IS HEREBY ORDERED THAT the July 27, 2010 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 14, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

14

See J.G., Docket No. 09-1128 (issued December 7, 2009) (an attending physician’s report is of little probative
value where the A.M.A., Guides are not properly followed).

5