United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.J., Appellant
and
U.S. POSTAL SERVICE, HOUSTON
PERFORMANCE CLUSTER, Houston, TX,
Employer
__________________________________________

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

Docket No. 11-1610
Issued: February 9, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 29, 2011 appellant filed a timely appeal from the June 6, 2011 merit decision of
the Office of Workers’ Compensation Programs (OWCP) granting her 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 merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish that she has more than
a seven percent permanent impairment of her left leg, for which she received a schedule award.
FACTUAL HISTORY
OWCP accepted that on November 7, 2003 appellant, then a 43-year-old letter carrier,
sustained bilateral knee effusion and a tear of the right medial meniscus when she fell to her
1

20 C.F.R. § 8101 et seq.

knees at work. Appellant received compensation for periods of disability and filed a claim for a
schedule award due to her work injuries.
In a June 16, 2010 report, Dr. Ernest Roman, an attending Board-certified internist,
discussed appellant’s medical history, including the November 7, 2003 work injury. He
indicated that appellant complained of constant, dull, deep, aggravating ache in her left knee as
well as crepitus on range of motion. Appellant described sharp, stabbing pain associated with
activities that primarily involved the medial compartment. Dr. Roman noted that appellant
described a reduction in the activities of her daily living profile due to knee pain. He reported
examination findings for appellant’s left knee,2 noting the fact that no effusion discoloration was
seen on visual inspection and that the vascular stress test was positive. Palpable tenderness was
appreciated over the lateral aspect of the left knee involving the patella and range of motion
revealed 100 degrees of flexion and 0 degrees of extension lag. Dr. Roman stated that the
Lachman test and the anterior drawer sign were negative, but that the Apley/McMurray test was
positive involving the left lateral meniscus. Dr. Roman diagnosed sprain/strain, tendinitis and
osteoarthritis of appellant’s left knee. With respect to the permanent impairment of her left leg
under the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (6th ed. 2009), Dr. Roman stated:
“The examinee falls in the region and Table 16-3 knee. Her criteria is
strain/sprain, tendinitis, or ruptured tendon with mild range of motion deficits
placing her in class 1 with a mid-range default value of seven percent. Functional
history and physical exam[ination] do not add to or take away from the seven
percent impairment rating involving the left knee. The examinee is assessed a
seven percent lower extremity impairment for left knee findings.”
In a May 27, 2011 report, Dr. Ronald Blum, a Board-certified internist serving as an
OWCP medical adviser, stated that he had been asked to review the June 16, 2010 report of
Dr. Roman for the purpose of determining the permanent impairment of appellant’s left leg.
Dr. Blum noted that maximum medical improvement was achieved on June 16, 2010, the date of
Dr. Roman’s examination. He stated that appellant’s condition under Table 16-3 fell under the
class 1 diagnostic category for knee strain and equaled the default value of seven percent found
on that table. Dr. Roman concluded that appellant had a seven percent impairment of her left
leg.
In a June 6, 2011 decision, OWCP granted appellant a schedule award for a seven
percent permanent impairment of her left leg. The award ran for 20.16 weeks from June 16 to
November 4, 2011 and was based on the June 21, 2010 report of Dr. Roman and the May 27,
2011 report of Dr. Blum.

2

Dr. Roman also provided findings for appellant’s right knee, but the present appeal concerns appellant’s left leg
impairment.

2

LEGAL PRECEDENT
The schedule award provision of FECA3 and its implementing regulations4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.5 For OWCP decisions issued on or after
May 1, 2009, the sixth edition of the A.M.A., Guides (6th ed. 2009) is used for evaluating
permanent impairment.6
In determining impairment for the lower extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the lower
extremity to be rated. With respect to the knee, the relevant portion of the leg for the present case,
reference is made to Table 16-3 (Knee Regional Grid) beginning on page 509.7 After the Class of
Diagnosis (CDX) is determined from the Knee Regional Grid (including identification of a
default grade value), the net adjustment formula is applied using the grade modifier for
Functional History (GMFH), grade modifier for Physical Examination (GMPE) and grade
modifier for Clinical Studies (GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE
- CDX) + (GMCS - CDX).8 Under Chapter 2.3, evaluators are directed to provide reasons for
their impairment rating choices, including choices of diagnoses from regional grids and
calculations of modifier scores.9
ANALYSIS
OWCP accepted that on November 7, 2003 appellant sustained bilateral knee effusion
and a tear of her right medial meniscus and she later filed a claim for a schedule award due to her
work injuries. On June 6, 2011 it granted appellant a schedule award for a seven percent
permanent impairment of her left leg. The award was based on the June 21, 2010 report of
Dr. Roman, an attending Board-certified internist, and the May 27, 2011 report of Dr. Blum, a
Board-certified internist serving as an OWCP medical adviser.

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

5

Id.

6

See FECA Bulletin No. 9-03 (issued March 15, 2009). For OWCP decisions issued before May 1, 2009, the
fifth edition of the A.M.A., Guides (5th ed. 2001) is used.
7

See A.M.A., Guides (6th ed. 2009) 509-11.

8

Id. at 515-22.

9

Id. at 23-28.

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The Board notes that OWCP properly relied on the reports of Dr. Roman and Dr. Blum
when granting appellant a schedule award for a seven percent permanent impairment of her left
leg. Appellant has not submitted medical evidence showing that she has a higher left leg
impairment under the standards of the sixth edition of the A.M.A., Guides.10
In his May 27, 2011 report, Dr. Roman indicated that, under Table 16-3 (Knee Regional
Grid) of the sixth edition of the A.M.A., Guides, appellant fell under a class 1 diagnostic category
for strain, tendinitis or ruptured tendon which meant that she had a default rating of seven percent
for her left leg under this table.11 Dr. Roman further evaluated appellant’s left knee condition
under the grade modifier scheme, but found that assessment of the functional history and physical
examination grade modifiers did not decrease or increase the default rating of seven percent
derived from Table 16-3.12 The Board notes that Dr. Roman’s assessment of appellant’s grade
modifiers is consistent with the relevant findings of record, including the findings Dr. Roman
reported during his June 21, 2010 examination. Dr. Roman properly concluded that appellant
had a seven percent permanent impairment of her left leg. In a May 27, 2011 report, Dr. Blum
indicated that he agreed with Dr. Roman’s rating methodology and also found that under Table
16-3 appellant had a seven percent permanent impairment of her left leg.
The record does not contain any other report that evaluates appellant’s left leg
impairment under the sixth edition of the A.M.A., Guides. Appellant has not submitted evidence
showing that she has more than a seven percent permanent impairment of her left leg.
On appeal, appellant indicated that she also sustained a work-related injury to her right
leg and questioned why she had not received a schedule award determination regarding her right
leg. The only OWCP decision within the Board’s jurisdiction is the June 6, 2011 schedule award
decision concerning appellant’s left leg and the matter of appellant’s entitlement to a schedule
award for her right leg is not currently before the Board. Appellant may request a schedule
award or increased schedule award before OWCP 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 that she has
more than a seven percent permanent impairment of her left leg, for which she received a
schedule award.

10

The sixth edition of the A.M.A., Guides became effective on May 1, 2009 and therefore it was appropriate to
apply the standards of this edition. See supra note 6.
11

See A.M.A., Guides 509, Table 16-3 (Knee Regional Grid).

12

Id. at 516-17, Tables 16-6 and 16-7.

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ORDER
IT IS HEREBY ORDERED THAT the June 6, 2011 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 9, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 20-1187
Issued: November 18, 2021

Case Submitted on the Record

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

JURISDICTION
On May 12, 2020 appellant filed a timely appeal from a February 20, 2020 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.2
ISSUES
The issues are: (1) whether appellant has met her burden of proof to establish more than
13 percent permanent impairment of her left upper extremity and 10 percent permanent impairment
of her right upper extremity, for which she previously received schedule award compensation; and
1
2

5 U.S.C. § 8101 et seq.

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

(2) whether appellant has met her burden of proof to establish permanent impairment of her lower
extremities due to her accepted lumbar conditions.
FACTUAL HISTORY
This case has previously been before the Board. 3 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On December 1, 2009 appellant, then a 53-year-old sales and service distribution associate,
filed a traumatic injury claim (Form CA-1) alleging that on November 30, 2009 she sustained a
lower back and left shoulder injury while in the performance of duty. OWCP accepted the claim,
assigned OWCP File No. xxxxxx704, for lumbar sprain and left shoulder and rotator cuff sprain.
Appellant underwent OWCP-authorized left shoulder rotator cuff repair, acromioplasty, and distal
clavicle resection on April 14, 2010.4 She retired effective April 21, 2011.
On June 26, 2012 under the current claim, appellant filed a claim for compensation (Form
CA-7) for a schedule award due to her accepted left shoulder and lumbar conditions.
By decision dated January 2, 2014, OWCP granted appellant a schedule award for 10
percent permanent impairment of her left upper extremity. The award ran 31.2 weeks for the
period July 28, 2013 to March 3, 2014 and was based on the impairment rating of Dr. David H.
Garelick, a Board-certified orthopedic surgeon serving as an OWCP district medical adviser
(DMA) who had reviewed the second opinion reports of Dr. Allan Brecher, a Board-certified
orthopedic surgeon, for permanent impairment based upon appellant’s distal clavicle resection.
Following further development, the DMA, Dr. Garelick, concluded that appellant had 13
percent permanent impairment of the left upper extremity, which consisted of 7 percent permanent
impairment due to her left shoulder rotator cuff condition, and 6 percent permanent impairment of
her left carpal tunnel.
By decision dated June 19, 2015, OWCP granted her a schedule award for an additional 3
percent permanent impairment of the left upper extremity, for 13 percent total impairment, but
denied entitlement to an additional schedule award for the right upper extremity greater than the
10 percent right upper extremity permanent impairment previously awarded under OWCP File No.
xxxxxx845. The period of the additional award ran for 9.36 weeks from March 24 to
3

Docket No. 17-1949 (issued October 16, 2018).

4

OWCP previously accepted that appellant sustained a sprain of lumbosacral (joint) (ligament), displacement of
lumbar intervertebral disc at L4-5 without myelopathy; and thoracic or lumbosacral left-sided neuritis or radiculitis
due to a September 3, 1991 employment injury, under OWCP File No. xxxxxx544. It also previously accepted that
she sustained bilateral carpal tunnel syndrome (CTS) due to a September 2, 1991 employment injury, under OWCP
File No. xxxxxx845. In October 1995, OWCP granted appellant a schedule award for 10 percent permanent
impairment of the right upper extremity, under OWCP File No. xxxxxx845. On May 26, 2012 appellant filed a claim
for compensation (Form CA-7) for a schedule award due to her accepted bilateral CTS under OWCP File No.
xxxxxx845. OWCP File Nos. xxxxxx704, xxxxxx544, and xxxxxx845 have been administratively combined by
OWCP, with file xxxxxx704 serving as the master file.

2

May 28, 2014. The rating was based upon evidence in master OWCP File No. xxxxxx704 and
subsidiary OWCP File Nos. xxxxxx544 and xxxxxx845.
On July 3, 2015 appellant requested an oral hearing before a representative of OWCP’s
Branch of Hearings and Review, which was held telephonically on October 28, 2015. OWCP
received additional evidence.
By decision dated January 14, 2016, the hearing representative affirmed OWCP’s June 19,
2015 decision, finding that appellant had not established additional permanent impairment of the
upper or lower extremities.
On December 19, 2016 appellant requested reconsideration. By decision dated April 6,
2017, OWCP denied modification of its January 14, 2016 decision.
On May 31, 2017 appellant requested reconsideration. By decision dated August 25, 2017,
OWCP denied her request for reconsideration, finding that the evidence submitted was either
repetitious or irrelevant.
On September 18, 2017 appellant appealed to the Board. By decision dated October 16,
2018, the Board set aside OWCP’s April 6 and August 25, 2017 decisions. 5 The Board found that
OWCP had inconsistently applied Chapter 15 of the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (A.M.A., Guides)6 regarding the
proper use of either the diagnosis-based impairment (DBI) or range of motion (ROM)
methodologies in assessing the extent of permanent impairment. The Board remanded the case
for OWCP to issue a de novo decision following development of a consistent method for
calculating permanent impairment of the upper extremities. The Board also found that OWCP
failed to develop the evidence regarding whether she had established permanent impairment of her
lower extremities as a result of her accepted lumbar conditions. The Board remanded the case for
OWCP to obtain a second opinion impairment evaluation followed by a proper analysis under the
A.M.A., Guides to determine the extent of appellant’s lower extremity impairment, if any.
Appellant’s treating physician, Dr. Samuel J. Chmell, a Board-certified orthopedic
surgeon, continued to submit progress reports regarding appellant’s conditions. In a February 28,
2019 report, he reported that a February 6, 2019 magnetic resonance imaging (MRI) scan
demonstrated significant multi-level degenerative changes in the lumbar spine, most notably at
L4-5.7
On remand, OWCP referred appellant to Dr. Kanayo K. Odeluga, a Board-certified
occupational medicine physician, for a second opinion impairment evaluation of both upper and
lower extremities due to her accepted work-related injuries. A November 29, 2018 statement of
accepted facts (SOAF) noted the accepted conditions under OWCP File Nos. xxxxxx704,
xxxxxx544, xxxxxx845, and xxxxxx514. OWCP also noted that appellant previously received
5

Supra note 3.

6

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

7

The results of a left hip MRI scan, also performed on February 6, 2019 were also discussed.

3

schedule awards for 13 percent permanent impairment of the left upper extremity and 10 percent
permanent impairment of the right upper extremity.
In a March 26, 2019 report, Dr. Odeluga reviewed the November 29, 2018 SOAF and set
forth his examination findings. He opined that appellant reached maximum medical improvement
(MMI) on March 26, 2019. Regarding the upper extremities, Dr. Odeluga found an essentially
normal examination with full ROM in each joint, grade 5/5 strength in all major muscle groups,
and normal sensations and muscle reflexes. For the accepted left shoulder sprain class of diagnosis
(CDX), he found, under Table 15-5, a Class 1 impairment with midrange default of 1 percent upper
extremity impairment. Dr. Odeluga assigned a grade modifier for functional history (GMFH) of
2, a grade modifier for physical examination (GMPE) of 0, and a grade modifier for clinical studies
(GMCS) of 2, under Table 15-7, Table 15-8 and Table 15-9, respectively. He found that the net
adjustment within the diagnostic class was 1, which resulted in Grade D or two percent left upper
extremity permanent impairment for the accepted left shoulder sprain.
For the lower extremities, Dr. Odeluga also found an essentially normal examination with
full ROM in each joint and grade 5/5 in all major muscle groups except 4/5 in left foot dorsiflexion.
Normal sensation was noted in all dermatomes except along the medial aspect of dorsum of the
left foot, which was decreased compared to same dermatome on the right. Dr. Odeluga indicated
that the weakness of dorsiflexion was attributed to the L5 nerve root. Under Table 16-11, he
assigned severity 3 for sensory deficit of L5 nerve root as there was “impaired sharp/dull
recognition, but retained protective sensibility” with a motor deficit related to the “weakness of
dorsiflexion of 4/5.” Under Proposed Table 2 of The Guides Newsletter, Rating Spinal Nerve
Extremity Impairment Using the Sixth Edition (July/August 2009) (The Guides Newsletter),
Dr. Odeluga indicated that the mild motor deficit of the L5 nerve root was Grade C or five percent
lower extremity impairment. He found a GMFH of 0 and GMCS of 1, using a June 23, 2016
electromyogram/nerve conduction velocity (EMG/NCV) study, which resulted in a Class 1, Grade
B impairment which equaled three percent lower extremity impairment for L5 associated motor
deficit. Dr. Odeluga also indicated that appellant had five percent L4, five percent L5, and three
percent S1 moderate sensory deficits Grade B. He found that she had combined sensory and motor
deficit in the left lower extremity of 16 percent permanent impairment. A copy of Dr. Odeluga’s
impairment worksheets were provided.
In an April 4, 2019 report, Dr. Chmell reported that appellant’s recent EMG/NCV study
revealed bilateral CTS and cervical radiculopathy. He continued to submit progress reports.
On June 25, 2019 OWCP requested that Dr. Odeluga provide an amended report to include
impairment ratings for appellant’s right upper and right lower extremities. It noted that she may
be reexamined if necessary.
On August 2, 2019 OWCP issued a new SOAF, which included the accepted conditions
under OWCP File Nos. xxxxxx704, xxxxxx544, xxxxxx845, and xxxxxx514.
In his August 20, 2019 report, Dr. Odeluga indicated that appellant had essentially normal
examination of both upper extremities with left hand grip strength of 4+/5. Both of appellant’s
lower extremities were also essentially normal except for left foot dorsiflexion of 4/5 strength and
decreased sensation along the medial aspect of the dorsum of the left foot. The spinal examination

4

revealed no anatomic deformity with spinous and paraspinal tenderness noted over her lumbar
segment. Appellant had full ROM except for lumbar flexion. The straight leg test was negative
on both lower extremities. Dr. Odeluga opined that appellant reached MMI as August 20, 2019.8
Utilizing appellant’s most recent March 5, 2019 EMG/NCV postoperative study, as her symptoms
had progressed since her CTS releases in 2010 and 2011, he opined that she had three percent
permanent impairment to her left and right upper extremities based on her bilateral CTS diagnosis.
Under Table 15-23 of the A.M.A., Guides, Dr. Odeluga assigned a grade modifier 1 for test
findings, a grade modifier 2 for history, and a grade modifier 1 for physical findings, which yielded
a default upper extremity impairment rating of two percent due to entrapment neuropathy. He
adjusted the default impairment rating up based on her QuickDASH score of 50 to find three
percent permanent impairment of each upper extremity. Copies of Dr. Odeluga’s permanent
impairment worksheets were provided, which indicated his impairment calculation for the left and
right CTS.
Dr. Odeluga indicated, based on his evaluation, that there was no observed impairment of
the right lower extremity originating in the back or spine. He found no sign of right lumbar
radiculopathy despite appellant’s complaint of radicular pain into her right buttock and groin.
Dr. Odeluga noted that although the 2016 EMG/NCV study was suggestive of L4 -5 and L5-S1
active radiculopathy with sensory nerve action potential abnormalities on the right side involving
both peroneal and sural nerve sensory fibers, there was no physical evidence of nerve injury on
examination such as decreased sensation, reflexes or muscle power.
Dr. Chmell continued to submit progress reports. No right-sided radiculopathy was
reported. In an October 21, 2019 letter, Dr. Chmell took issue with Dr. Odeluga’s March 26, 2019
impairment ratings.
On January 9, 2020 OWCP referred the medical record, including Dr. Odeluga’s reports,
to Dr. Arthur S. Harris, a Board-certified orthopedic surgeon serving as a DMA.
In his January 15, 2020 report, Dr. Harris indicated that appellant did not have any
neurologic deficit in the right upper extremity consistent with cervical radiculopathy. Under Table
15-14, he opined that this was consistent with severity 0 and a Class 0 impairment based on Table
1 of The Guides Newsletter. Dr. Harris concluded that appellant had zero percent impairment for
cervical radiculopathy under The Guides Newsletter. He further noted that the A.M.A., Guides
did not allow for an impairment rating under the ROM method. For appellant’s right CTS,
Dr. Harris concurred with Dr. Odeluga’s rating that she had three percent permanent impairment
for the right upper extremity under Table 15-23 for residual problems with mild CTS symptoms
status post CTS release (grade modifier 1). He noted that the A.M.A., Guides did not allow an
impairment rating under the ROM for CTS.
For the left upper extremity, Dr. Harris indicated that appellant did not have any neurologic
deficits in the upper extremity consistent with cervical radiculopathy. Under Table 15 -14, he
opined this was consistent with severity 0 and a Class 0 impairment based on Table 1 of The Guides
Newsletter. Dr. Harris noted that the A.M.A., Guides did not allow for the impairment to be
8

Dr. Odeluga indicated that August 20, 2019 was the date of his first examination of appellant. The record reflects
that he first examined her on March 26, 2019.

5

calculated under the ROM method. He concluded that appellant had zero percent impairment for
cervical radiculopathy under The Guides Newsletter. For the left shoulder, Dr. Harris opined that
under Table 15-5, she had 10 percent upper extremity impairment for having undergone excision
of distal clavicle. As appellant had full ROM she had 0 percent impairment under the ROM
methodology. Dr. Harris opined that the DBI rating should be used as it represented the greater
impairment. For the left CTS, he noted his concurrence with Dr. Odeluga’s rating that appellant
had three percent permanent impairment for the left upper extremity under Table 15-23 for residual
problems with mild CTS symptoms status post CTS release (grade modifier 1). Dr. Harris noted
that the A.M.A., Guides did not allow an impairment rating under the ROM methodology for CTS.
Utilizing the combined values of 10 percent permanent impairment for excision of distal clavicle
and 3 percent permanent impairment for CTS, he found a total of 13 percent permanent impairment
of the left upper extremity.
For the lower extremities, Dr. Harris indicated that appellant did not have any neurologic
deficit in either the left or right lower extremity consistent with lumbar radiculopathy. This was
consistent with severity 0 under Table 16-11 and a Class 0 impairment based on Table 2 of The
Guides Newsletter. Dr. Harris concluded that this resulted in zero percent permanent impairment
for lumbar radiculopathy in either the left or right lower extremity based on the methodology
described in The Guides Newsletter. He indicated that the A.M.A., Guides did not allow for an
impairment rating under the ROM method.
Dr. Harris opined that appellant reached MMI August 20, 2019, the date of Dr. Odeluga’s
examination. As appellant was previously awarded 10 percent right upper extremity permanent
impairment and 13 percent left upper extremity permanent impairment, the DMA concluded that
there was no increase in either the right or left upper extremities.
By decision dated February 20, 2020, OWCP denied appellant’s claim for an increased
schedule award. It relied on the medical opinion of its DMA, Dr. Harris, to establish that there
was no additional permanent impairment that would justify an increased schedule award.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provisions of FECA 9 and its implementing regulations 10 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results and
to ensure equal justice under the law to all claimants, good administrative practice necessitates the
use of a single set of tables so that there may be uniform standards applicable to all claimants.
Through its implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses.11 As of May 1, 2009, schedule awards are determined in

9

5 U.S.C. § 8107.

10

20 C.F.R. § 10.404.

11

Id.; see also, Ronald R. Kraynak, 53 ECAB 130 (2001).

6

accordance with the sixth edition of the A.M.A., Guides (2009).12 The Board has approved the
use by OWCP of the A.M.A., Guides for the purpose of determining the percentage loss of use of
a member of the body for schedule award purposes.13
In addressing impairment for the upper extremities under the sixth edition of the A.M.A.,
Guides, an evaluator must establish the appropriate diagnosis for each part of the upper extremity
to be rated. 14 After a CDX is determined (including identification of a default grade value), the
impairment class is then adjusted by grade modifiers based on GMFH, GMPE, and GMCS. 15 The
net adjustment formula is (GMFH - CDX) + (GMPE - CDX) + (GMCS - CDX).16
Regarding the application of ROM or DBI impairment methodologies in rating permanent
impairment of the upper extremities, FECA Bulletin No 17-06 provides:
“As the [A.M.A.,] Guides caution that if it is clear to the evaluator evaluating loss
of ROM that a restricted ROM has an organic basis, three independent
measurements should be obtained and the greatest ROM should be used for the
determination of impairment, the CE [claims examiner] should provide this
information (via the updated instructions noted above) to the rating physician(s).”17
FECA Bulletin further advises:
“Upon initial review of a referral for upper extremity impairment evaluatio n, the
DMA should identify: (1) the methodology used by the rating physician (i.e., DBI
or ROM); and (2) whether the applicable tables in Chapter 15 of the [A.M.A.,]
Guides identify a diagnosis that can alternatively be rated by ROM. If the [A.M.A.,]
Guides allow for the use of both the DBI and ROM methods to calculate an
impairment rating for the diagnosis in question, the method producing the higher
rating should be used.” (Emphasis in the original.)18
The Bulletin also advises:
“If the rating physician provided an assessment using the ROM method and the
[A.M.A.,] Guides allow for use of ROM for the diagnosis in question, the DMA

12

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); id. Chapter 2.808.5.a. (March 2017).
13

M.D., Docket No. 20-0007 (issued May 13, 2020); P.R., Docket No. 19-0022 (issued April 9, 2018); Isidoro
Rivera, 12 ECAB 348 (1961).
14

M.D., id.; T.T., Docket No. 18-1622 (issued May 14, 2019).

15

A.M.A., Guides 383-492; see M.P., Docket No. 13-2087 (issued April 8, 2014).

16

Id. at 411.

17

FECA Bulletin No. 17-06 (issued May 8, 2017); V.L., Docket No. 18-0760 (issued November 13, 2018).

18

Id.

7

should independently calculate impairment using both the ROM and DBI methods
and identify the higher rating for the CE.”19
Impairment due to CTS is evaluated under the scheme found in Table 15-23
(Entrapment/Compression Neuropathy Impairment) and accompanying relevant text. 20 In Table
15-23, grade modifier levels (ranging from zero to four) are described for the categories of test
findings, history, and physical findings. The grade modifier levels are averaged to arrive at the
appropriate overall grade modifier level and to identify a default rating value. The default rating
value may be modified up or down based on functional scale, an assessment of impact on daily
living activities (QuickDASH).21
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s DMA for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the
percentage of impairment specified. 22
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met her burden of proof to establish more than 13
percent permanent impairment of her left upper extremity and 10 percent permanent impairment
of her right upper extremity, for which she previously received schedule award compensation.
Following the Board’s October 16, 2018 decision, OWCP referred appellant’s schedule
award claim to Dr. Odeluga, serving as an OWCP second opinion physician, to provide a
permanent impairment examination and rating of her left and right upper and lower extremities in
accordance with the A.M.A., Guides and FECA Bulletin No. 17-06.
In a March 26, 2019 report, Dr. Odeluga reviewed the November 29, 2018 SOAF and set
forth his examination findings. He opined that appellant reached MMI on March 26, 2019. For
the accepted left shoulder sprain CDX, Dr. Odeluga found, under Table 15-5, a Class 1 impairment
with midrange default of 1 percent upper extremity impairment. He assigned a GMFH of 2, GMPE
of 0, and a GMCS of 2, under Table 15-7, Table 15-8 and Table 15-9, respectively. Dr. Odeluga
found that the net adjustment within the diagnostic class was 1, which resulted in Grade D or two
percent left upper extremity permanent impairment for the accepted left shoulder sprain.
In his August 20, 2019 report, Dr. Odeluga opined that appellant reached MMI as of
August 20, 2019.23 Utilizing appellant’s most recent March 5, 2019 EMG/NCV postoperative
19

Id.

20

A.M.A., Guides 449.

21

Id. at 448-49.

22

See supra note 12 at Chapter 2.808.6(f) (February 2013). See also J.T., Docket No. 17-1465 (issued
September 25, 2019); C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57 ECAB 349 (2006).
23

Dr. Odeluga indicated that August 20, 2019 was the date of his first examination of appellant. The record reflects
that he first examined her on March 26, 2019.

8

study, as her symptoms had progressed since her CTS releases in 2010 and 2011, he opined that
she had three percent permanent impairment to her left and right upper extremities based on her
bilateral CTS diagnosis. Under Table 15-23 of the A.M.A., Guides, Dr. Odeluga assigned a grade
modifier 1 for test findings, a grade modifier 2 for history, and a grade modifier 1 for physical
findings, which yielded a default upper extremity impairment rating of two percent due to
entrapment neuropathy. He adjusted the default impairment rating up based on her QuickDASH
score of 50 to find three percent permanent impairment of each upper extremity. Utilizing the DBI
methodology, Dr. Odeluga explained that, according to Table 15-23 of the A.M.A., Guides,
appellant had a grade modifier 1 for test findings, a grade modifier 2 for history, and a grade
modifier 1 for physical findings, which yielded a default upper extremity impairment rating of two
percent due to entrapment neuropathy. He adjusted the default impairment rating up based on her
QuickDASH score of 50 to find three percent permanent impairment of each upper extremity.
Dr. Harris, OWCP’s DMA, reviewed and concurred with Dr. Odeluga’s three percent
impairment rating for the bilateral upper extremities based on the CTS diagnosis. He noted that
the A.M.A., Guides did not allow an impairment rating under the ROM method for CTS.
Dr. Harris further noted that the upper extremity examination failed to reveal any cervical
radiculopathy of either extremity. He also noted that Dr. Odeluga related that appellant’s left
shoulder examination was reported as normal with full ROM. Dr. Harris opined that, under Table
15-5, she had 10 percent left upper extremity impairment for having undergone excision of distal
clavicle. As appellant had full ROM he indicated that there was a zero percent impairment under
the ROM methodology. Dr. Harris explained that, pursuant to the A.M.A., Guides, because the
DBI method yielded greater impairment, she had 10 percent permanent impairment of the left
upper extremity. He concluded that appellant had 13 percent total left upper extremity permanent
impairment based on the distal clavicle excision and left CTS. Dr. Harris also concluded that she
had three percent right upper extremity impairment based on right CTS. However, the DMA noted
that since appellant was previously awarded 10 percent right upper extremity permanent
impairment and 13 percent left upper extremity permanent impairment, no additional upper
extremity impairment was established.
The Board finds that the DMA, Dr. Harris, properly applied the A.M.A., Guides to the
findings of Dr. Odeluga and explained that appellant’s current impairment was 13 percent total
left upper extremity permanent impairment based on the distal clavicle excision and left CTS and
3 percent right upper extremity impairment based on right CTS. Dr. Harris accurately summarized
the relevant medical evidence, provided detailed findings on examination, and reached conclusions
about her condition which comported with his findings. 24 In addition, the DMA properly utilized
the DBI method and ROM method to rate appellant’s accepted upper extremity conditions pursuant
to FECA Bulletin No. 17-06. As the DMA’s report is detailed, well rationalized, and based on a
proper factual background, his opinion represents the weight of the medical evidence. 25 Thus, the
Board finds that appellant has not met her burden of proof to establish greater right or left upper
extremity permanent impairment than previously awarded.

24

See M.D., Docket No. 20-0007 (issued May 13, 2020); M.S., Docket No. 19-1011 (issued October 29, 2019);
W.H., Docket No. 19-0102 (issued June 21, 2019); J.M., Docket No. 18-1387 (issued February 1, 2019).
25

See M.D., id., D.S., Docket No. 18-1816 (issued June 20, 2019).

9

Appellant may request a schedule award or increased schedule award at any time based on
evidence of a new exposure or medical evidence showing progression of an employment-related
condition resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Neither FECA nor its implementing regulations provides for the payment of a schedule
award for the permanent loss of use of the back/spine or the body as a whole. However, a schedule
award is permissible where the employment-related spinal condition affects the upper and/or lower
extremities.26 The sixth edition of the A.M.A., Guides provides a specific methodology for rating
spinal nerve extremity impairment in The Guides Newsletter. It was designed for situations where
a particular jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for
the spine. FECA-approved methodology is premised on evidence of radiculopathy affecting the
upper and/or lower extremities. The appropriate tables for rating spinal nerve extremity
impairment are incorporated into OWCP’s procedures. 27
OWCP’s procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s DMA for an opinion concerning the nature and percentage of
impairment in accordance with the A.M.A., Guides, with the DMA providing rationale for the
percentage of impairment specified. 28
ANALYSIS -- ISSUE 2
The Board finds that this case is not in posture for decision regarding permanent
impairment of appellant’s left lower extremity due to her accepted lumbar conditions.
The DMA, Dr. Harris, failed to review Dr. Odeluga’s March 26, 2019 impairment report.
In that report, Dr. Odeluga opined that appellant had 16 percent left lower extremity permanent
impairment. He based the impairment rating on combined sensory and motor deficits of the L4,
L5, and S1 nerve roots and set forth his impairment calculations. As there is no indication that the
DMA reviewed Dr. Odeluga’s March 26, 2019 left lower extremity impairment rating, OWCP
shall refer the case file back to its DMA, Dr. Harris, to review Dr. Odeluga’s March 26, 2019 left
lower extremity impairment rating pursuant to its procedures. 29
In his August 20, 2019 report, Dr. Odeluga discussed appellant’s complaints of radicular
pain into her right buttock and groin, but indicated that there was no observed impairment of the
right lower extremity originating in the back or spine based on his evaluation. He concluded that
26

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a) and (b); see A.G., Docket No. 18-0815 (issued January 24, 2019);
Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).
27

Supra note 12 at Chapter 3.700, Exhibit 4 (January 2010); see E.G., Docket No. 19-1081 (issued
September 24, 2020).
28

See supra note 12 at Chapter 2.808.6(f) (February 2013). See also J.T., Docket No. 17-1465 (issued
September 25, 2019); C.K., Docket No. 09-2371 (issued August 18, 2010); Frantz Ghassan, 57 ECAB 349 (2006).
29

See supra note 17.

10

there was no sign of right lumbar radiculopathy. Dr. Odeluga noted that although the 2016
EMG/NCV study was suggestive of L4-5 and L5-S1 active radiculopathy with sensory nerve
action potential abnormalities on the right side involving both peroneal and sural nerve sensory
fibers, there was no physical evidence of nerve injury on examination such as decreased sensation,
reflexes or muscle power. While Dr. Chmell noted, in his February 28, 2019 report, that a
February 6, 2019 MRI scan demonstrated significant multi-level degenerative changes in the
lumbar spine, most notably at L4-5, his subsequent reports failed to diagnose a right lumbar
radiculopathy, which is consistent with Dr. Odeluga’s findings.
On January 15, 2020 Dr. Harris, OWCP’s DMA, reviewed Dr. Odeluga’s August 20, 2019
report and opined that appellant did not have any neurologic deficit in either lower extremity
consistent with lumbar radiculopathy. He found that this was consistent with severity 0 under
Table 16-11 and a Class 0 impairment based on Table 2 of The Guides Newsletter. Dr. Harris
concluded that this resulted in zero percent permanent impairment for lumbar radiculopathy in
either the left or right lower extremity based on the methodology described in The Guides
Newsletter. He indicated that the A.M.A., Guides did not allow for an impairment rating under
the ROM method.
The Board further finds that appellant has not met her burden of proof to establish
permanent impairment of her right lower extremity due to her accepted lumbar conditions.
With respect to the right lower extremity, the Board finds that Dr. Harris applied the
appropriate tables and grade schemes of The Guides Newsletter to the examination findings for the
right lower extremity. The record contains no medical evidence in accordance with The Guides
Newsletter demonstrating a permanent impairment of the right lower extremity due to her accepted
lumbar conditions.30
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish more than 13
percent permanent impairment of her left upper extremity and 10 percent permanent impairment
of her right upper extremity, for which she previously received schedule award compensation. The
Board also finds that the case is not in posture for decision of the permanent impairment of her left
lower extremity due to her accepted lumbar conditions. The Board further finds that appellant has
not met her burden of proof to establish permanent impairment of her right lower extremity due to
her accepted lumbar conditions.

30

See E.G., Docket No. 19-1081 (issued September 24, 2020); T.K., Docket No. 19-1222 (issued December 2,
2019); C.S., Docket No. 18-0920 (issued September 23, 2019).

11

ORDER
IT IS HEREBY ORDERED THAT the February 20, 2020 decision of the Office of
Workers’ Compensation Programs is affirmed in part and set aside in part, and the case is
remanded for further proceedings consistent with this decision of the Board.
Issued: November 18, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

12


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
Y.H., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Whitestone, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Stephen Larkin, for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1303
Issued: March 13, 2018

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 May 28, 2017 appellant, through his representative, filed a timely appeal from an
April 21, 2017 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 to consider the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he was totally
disabled from work during the period February 5 to July 17, 2016 causally related to his accepted
employment conditions.
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
On December 31, 2015 appellant, then a 60-year-old city carrier, filed an occupational
disease claim (Form CA-2) alleging that he developed a bilateral knee condition as a result of
repetitive walking and climbing required in his job. He noted that he first became aware of his
condition on June 16, 2008 and realized that it was causally related to his federal employment on
December 31, 2015. Appellant stopped work on September 8, 2015 and returned to work part
time, four hours a day, restricted duty on July 18, 2016.
An October 6, 2015 magnetic resonance imaging (MRI) scan of the right knee revealed
horizontal tear of the medial meniscus, chondromalacia, osteoarthritis, intra-articular loose
bodies, synovitis and patellar tendon tendinosis. On November 4, 2015 Dr. Alexander Golant, a
Board-certified orthopedist, performed a right knee arthroscopy with removal of loose body,
partial medial meniscectomy, chondroplasty of the femoral trochlea and medial femoral condyle,
limited synovectomy, and abrasion arthroplasty.3 He diagnosed right knee medial meniscus tear,
degenerative arthritis, loose bodies, synovitis, and osteophytes.
Appellant was seen by Dr. Chenzhong Fu, a Board-certified physiatrist, on December 3,
2015, who noted treating him since January 13, 2015 for bilateral knee pain. Dr. Fu related that
appellant experienced bilateral knee pain from daily prolonged walking, carrying heavy mail,
and frequently climbing steps during mail delivery. A right knee MRI scan revealed a meniscal
tear. In November 2015 appellant had a right knee arthroscopy and postoperatively he
underwent physical therapy and his orthopedist recommended that he not work full duty for three
months. Dr. Fu noted that appellant’s chronic right knee pain was frequent and recurrent,
secondary to wear and tear, degenerative joint disease, and his job which required prolonged
walking, mail carrying, and step climbing. He opined that appellant’s bilateral knee degenerative
and arthritic symptoms were consistent with such work duties. On February 2, 2016 Dr. Fu
noted treating appellant for bilateral knee pain. Appellant reported working as a letter carrier
since February 1996 which involved repetitive walking and climbing steps. He diagnosed a
medial meniscal tear, chondromalacia, osteoarthritis, and tendinosis by MRI scan. Dr. Fu opined
that repetitive walking and climbing steps several hours a day, over 20 years, would cause his
conditions. He diagnosed torn meniscus, chondromalacia patella, osteoarthritis, and patellar
tendinosis. Dr. Fu noted appellant’s right knee arthroscopy and subsequent physical therapy. He
indicated that the prognosis of bilateral knee degenerative disease was not favorable.
On March 29, 2016 OWCP accepted appellant’s claim for torn meniscus of the right
knee, right chondromalacia patellae, and right patellar tendinosis.
On April 20, 2016 appellant was treated by Dr. Xiao-ke Gao, a Board-certified
neurologist, for a sprained right knee. He reported spraining his right knee when walking at
work. Appellant was diagnosed with a meniscal tear and underwent right knee arthroscopic
surgery in November 2015. Dr. Gao noted findings on examination of no motor deficits, no
atrophy or fasciculations, intact sensory examination and deep tendon reflexes, normal gait,
normal tandem walking, normal range of motion of the knee, and negative straight leg testing
bilaterally. She referred appellant for physical therapy, two to three times a week for four weeks.
3

This surgery was not authorized by OWCP as work related.

2

In an undated attending physician’s report, Dr. Gao diagnosed right knee sprain due to walking.
She indicated by checking a box marked “yes” that appellant’s condition was caused or
aggravated by an employment activity and noted that appellant was totally disabled since
October 7, 2015. In a duty status report dated April 20, 2016, Dr. Gao noted that he was totally
disabled.
On April 29, 2016 OWCP authorized physical therapy for 12 visits for the period
April 27 to May 27, 2016.
Appellant filed several Form CA-7 claims for compensation for leave without pay
(LWOP) for total disability during the periods January 2 to April 1, April 12 to 29, and April 30
to May 27, 2016. The employing establishment human resource specialist noted on the claim
form that the claimed hours were verified.
On May 9, 2016 OWCP requested that appellant submit additional information to support
his claim for compensation commencing January 2, 2016. It noted that the evidence of record
indicated that he stopped work on September 8, 2015 and did not return. OWCP reviewed the
reports and recommendations of Dr. Fu and Dr. Gao. It indicated that additional evidence was
needed to establish disability from work during the claimed periods due to the accepted
conditions. OWCP advised that the medical evidence of record did not substantiate that the
disability was caused by the work injury because it did not support ongoing, continued disability
beyond three months postoperation as recommended by Dr. Fu. It held appellant’s case open for
30 days to afford him the opportunity to submit the requested information.
Appellant submitted a note from Dr. Golant dated December 1, 2015, who advised that
he was unable to return to work and would be reevaluated on January 19, 2016. Dr. Golant
noted appellant’s November 4, 2015 right knee arthroscopy. In a January 19, 2016 return to
work slip, he indicated that appellant could not return to work until further notice. On March 22,
2016 Dr. Golant returned him to work on May 5, 2016. Appellant underwent physical therapy
from May 12 to June 2, 2016.
On May 18 and June 7, 2016 appellant was treated by Dr. Gao who diagnosed meniscal
tear and status post right knee arthroscopic surgery in November 2015. Appellant indicated that
he could only walk for 15 minutes and had difficulty getting up and climbing stairs. Dr. Gao
noted findings on examination of no motor deficits, no atrophy or fasciculations, intact sensory
and deep tendon reflexes, normal gait, normal tandem walking, normal range of motion of the
knee, and negative straight leg testing bilaterally. She diagnosed right knee pain and
recommended physical therapy.
On June 10, 2016 appellant filed a Form CA-7 claim for compensation for the period
May 29 to June 10, 2016. The employing establishment human resource specialist noted on the
claim form that the claimed 80 hours were verified.
On May 5, 2016 appellant filed a Form CA-7 claim for compensation for LWOP during
the period October 3, 2015 to April 1, 2016. The employing establishment verified the claimed
709.55 hours of leave buyback.
By decision dated June 16, 2016, OWCP denied appellant’s claim for compensation for
total disability for the period January 2, 2016 and continuing. It indicated that it had advised
3

appellant on May 9, 2016 that additional evidence was needed to establish disability beyond the
three months recommended by Dr. Fu, but that such evidence had not been submitted.
In a June 2, 2016 work capacity evaluation form (OWCP-5c), Dr. Gao diagnosed torn
meniscus of the right knee and chondromalacia patellae. She noted that appellant could not
return to work with or without restrictions for one month. Dr. Gao advised that he had not
reached maximum medical improvement and he was unable to walk at normal speed.
On June 20, 2016 appellant requested an oral hearing before an OWCP hearing
representative, which was held on February 16, 2017.
A May 24, 2016 report from Dr. Golant was received on June 27, 2016, wherein he noted
treatment of appellant for right knee pain status post right knee arthroscopy on
November 4, 2015. He reported attending physical therapy, but noted continued knee pain with
climbing stairs, standing, or walking longer than 10 minutes. Appellant indicated that he was
unable to squat or kneel and was not ready to return to work due to his knee symptoms. Findings
included intact motor strength in all extremities, intact sensory examination, nonantalgic gait, no
swelling, tenderness of the patellae tendon and peripatellar, discomfort with range of motion, and
no crepitus. Dr. Golant diagnosed arthritis of the knee and opined that appellant’s residual
symptoms were likely due to arthritis as the postsurgical inflammation should have subsided. He
noted that appellant reported significant pain and functional limitations. Dr. Golant advised that
there was clinical and radiographic evidence of articular cartilage wear consistent with
osteoarthritis. He recommended intra-articular injections.
On June 22, 2016 OWCP authorized physical therapy for 12 visits from June 13 to
July 13, 2016.
On June 24, 2016 appellant filed a Form CA-7 claim for compensation for total disability
during the period June 11 to 24, 2016. The employing establishment noted that the claimed 80
hours of leave without pay was verified.
In a June 30, 2016 development letter, OWCP requested that appellant submit additional
information to support his claim for compensation for the period October 3, 2015 to
April 1, 2016. It advised that the medical evidence of record did not support this claimed period
of disability. OWCP noted that appellant underwent surgery on November 4, 2015, but the
surgery was not authorized by OWCP.
Appellant provided a June 7, 2016 report from Dr. Gao who diagnosed meniscal tear and
status post right knee surgery. Appellant reported that he could only walk 15 minutes and had
difficulty getting up and climbing stairs. Dr. Gao noted an essentially normal examination,
diagnosed right knee pain, and recommended physical therapy. In an undated work capacity
evaluation, she diagnosed right torn meniscus and chondromalacia patellae. Dr. Gao noted that
appellant could work two to four hours a day, light duty, for one month. Appellant underwent
physical therapy from June 8 to December 22, 2016.
On July 1, 2016 appellant was seen by Dr. Tsai C. Chao, a Board-certified physiatrist, for
progressive right knee pain since 2008. He reported worsening symptoms which prevented him
from working beginning in September 2015 with difficulties in walking and stair management.
Appellant underwent arthroscopic surgery on November 4, 2015 and was treated by Dr. Gao
4

without improvement. Right knee examination revealed positive crepitus with patellar
compression pain, increased right knee pain on resisted knee extension, swelling and tenderness
to the medial joint lines, no significant joint effusion, limited range of motion of right knee, and
significant right quadriceps atrophy. Dr. Chao diagnosed traumatic arthritis of the right knee and
impaired ambulation. He recommended an x-ray and MRI scan of the right knee, physical
therapy, and a home exercise program. Dr. Chao opined with reasonable degree of medical
probability, if the history provided was accurate, appellant’s physical injury was causally related
to cumulative trauma to his right knee since June 16, 2008 while working as a city carrier. He
advised that appellant remained temporarily and totally incapacitated.
On July 18, 2016 the employing establishment offered appellant a limited-duty
assignment as a carrier for four hours a day, effective July 18, 2016. Appellant accepted the job
offer and returned to work. In a report of termination of disability (Form CA-3), OWCP noted
that appellant returned to work limited duty as a lobby monitor on July 18, 2016.
Appellant was treated by Dr. Gao on July 5 and 12, August 2 and 30, September 6,
October 4 and 25, and December 6, 2016 for right knee pain and patellar tendinitis. Dr. Gao
restated appellant’s history and current complaints. She advised that due to his degenerative
disease of the right knee appellant had chronic pain with difficulty walking. Dr. Gao noted that
appellant was disabled from work since November 2015 due to pain and an inability to squat.
Findings included difficulty with heel to toe walking, difficulty climbing on the examination
stool due to right knee pain, knee pain upon flexion, and an inability to squat due to pain.
Dr. Gao diagnosed meniscus tear of the right knee and right knee pain with chondromalacia. She
recommended physical therapy and home exercises. Dr. Gao noted that appellant had returned to
work on July 18, 2016 for four hours a day. In duty status reports (CA-17 forms) dated
September 6, October 4 and 25, and December 6, 2016, she diagnosed right meniscal tear and
noted that appellant returned to work part-time four hours per day on July 18, 2016. In attending
physician’s reports (CA-20 forms) dated August 30, October 4 and 25, and December 6, 2016,
Dr. Gao diagnosed meniscus tear, osteoarthritis, and chondromalacia. She checked a box
marked “yes” indicating that appellant’s condition was caused or aggravated by a work activity.
Dr. Gao noted that appellant was totally disabled from work for the period October 18, 2015 to
July 18, 2016 and partially disabled from work beginning July 18, 2016.
On September 7, 2016 OWCP authorized physical therapy for 12 visits from September 6
to December 31, 2016.
On December 30, 2016 OWCP requested that Dr. Gao provide an estimated date that she
expected appellant to return to work full time with or without restrictions.
In an undated report, Dr. Gao reviewed appellant’s history and treatment. She advised
that, although it was predicted that appellant would require three months of physical therapy
postsurgery to be able to return to work, recovery was not an exact science. Dr. Gao indicated
that appellant was continuing to undergo physical therapy so that he could recover from surgery.
She advised that postoperative physical therapy was requested with the expectation that appellant
would be able to return to limited-duty work at the end of June or July. Dr. Gao opined that
appellant was totally disabled from September 8, 2015 to July 17, 2016. In attending physician’s
reports dated January 31 and April 11, 2017, she diagnosed tear of the meniscus and
chondromalacia. Dr. Gao checked a box marked “yes” indicating that appellant’s condition was
5

caused or aggravated by his work. She reiterated appellant’s total disability until July 18, 2016
and his partially disability beginning July 18, 2016. An April 11, 2017 duty status report (Form
CA-17) noted that appellant was working limited duty four to six hours daily.
On January 5, 2017 OWCP authorized physical therapy for 12 visits from December 19,
2016 to March 19, 2017. On February 23, 2017 it authorized physical therapy for 12 visits from
February 14 to June 14, 2017. Appellant attended physical therapy from January 24 to
March 23, 2017.
By decision dated April 21, 2017, OWCP’s hearing representative affirmed the decision
dated June 16, 2016, as modified. He noted that appellant was disabled for three months after
surgery from November 4, 2015 to February 4, 2016 and was entitled to compensation for wage
loss for this period. However, the hearing representative advised that the evidence of record
failed to support work-related disability from February 5 to July 17, 2016.
LEGAL PRECEDENT
Section 8102(a) of FECA4 sets forth the basis upon which an employee is eligible for
compensation benefits. That section provides: “The United States shall pay compensation as
specified by this subchapter for the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty....” In general, the term “disability” under
FECA means “incapacity, because of an employment injury, to earn the wages the employee was
receiving at the time of injury.”5 This meaning, for brevity, is expressed as disability from
work.6
For each period of disability claimed, the employee has the burden of proving that he or
she was disabled from work as a result of the accepted employment injury.7 Whether a particular
injury caused an employee to be disabled for employment and the duration of that disability are
medical issues which must be proved by the preponderance of the reliable, probative, and
substantial medical evidence.8
The Board has interpreted section 8103, which requires payment of expenses incidental
to the securing of medical services, as authorizing payment for loss of wages incurred while
obtaining medical services. An employee is entitled to disability compensation for any loss of
wages incurred during the time he or she receives authorized treatment and for loss of wages for
time spent incidental to such treatment. The rationale for this entitlement is that, during such

4

5 U.S.C. § 8102(a).

5

20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548
(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984).
6

See Roberta L. Kaaumoana, 54 ECAB 150 (2002).

7

See William A. Archer, 55 ECAB 674 (2004).

8

See Fereidoon Kharabi, 52 ECAB 291, 292 (2001).

6

required examinations and treatment and during the time incidental to undergoing such
treatment, an employee did not receive his or her regular pay.9
ANALYSIS
The Board finds this case not in posture for decision.
OWCP’s hearing representative failed to make adequate findings in his April 21, 2017
decision, which granted appellant wage-loss compensation for the period November 4, 2015 to
February 4, 2016, but found the evidence insufficient to support work-related disability from
February 5 to July 17, 2016. The Board finds that it is unclear what absences are incidental to
the accepted injuries of torn meniscus of the right knee, right chondromalacia patellae, and right
patellar tendinosis.
In a development letter dated June 30, 2016, OWCP noted that the right knee
arthroscopic surgery performed on November 4, 2015 was not authorized by OWCP. In the
April 21, 2017 decision, the hearing representative noted that appellant was disabled from work
for three months after surgery from November 4, 2015 to February 4, 2016 and was entitled to
compensation for wage loss for this period based apparently on the recovery time for surgery.
However, OWCP’s hearing representative made no clear finding on whether the surgery giving
rise to the accepted disability should be authorized and OWCP did not consult an OWCP
medical adviser regarding this matter.10 Further, OWCP did not consider whether appellant was
entitled to compensation for wage loss incidental to medical treatment for his work-related
injuries which was incurred during the claimed periods.11 As noted, it authorized physical
therapy from April 27 to May 27, 2016, June 13 to July 13, 2016, September 6 to December 31,
2016, December 19, 2016 to March 19, 2017 and February 14 to June 14, 2017. The authorized
physical therapy overlaps the period of compensation for wage loss requested by appellant from
January 2 to July 17, 2016. However, the hearing representative did not address whether
appellant was entitled to compensation for wage loss incidental to attending authorized physical
therapy for his work-related injuries.
Proceedings under FECA are not adversary in nature, nor is OWCP a disinterested
arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP
shares responsibility in the development of the evidence. It has the obligation to see that justice
is done.12
The Board finds that the case must be remanded to OWCP for preparation of a statement
of accepted facts and referral of the matter to an OWCP medical adviser, consistent with OWCP
9

Sean O’Connell, 56 ECAB 195 (2004).

10
See Federal (FECA) Procedure Manual, Part 2 -- Claims, Developing and Evaluating Medical Evidence,
Chapter 2.810.10(f) (September 2010) (where the claimant fails to request prior authorization for surgery, OWCP
should instruct the claimant to submit the minimum documentation from the appellant’s physician, as well as the
operative report, and then refer the case for an evaluation of the written record by an OWCP medical adviser).
11
12

See supra note 9.

John W. Butler, 39 ECAB 852 (1988).

7

procedures, to determine whether the November 4, 2015 arthroscopic surgery should be
considered authorized and if so, the period of temporary total disability incidental to the surgery.
OWCP shall also consider what, if any, periods of disability are incidental to the authorized
physical therapy or other authorized medical treatment. Following this and such other
development as deemed necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the April 21, 2017 decision of the Office of
Workers’ Compensation Programs is set aside. The case is remanded for further action
consistent with this decision.
Issued: March 13, 2018
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Union, NJ, Employer
__________________________________________

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

Docket No. 18-1767
Issued: March 15, 2019

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 September 19, 2018 appellant filed a timely appeal from a July 12, 2018 merit decision
of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish a left upper
extremity condition causally related to the accepted factors of his federal employment.
FACTUAL HISTORY
On March 24, 2018 appellant, then a 57-year-old transportation security explosives
specialist, filed an occupational disease claim (Form CA-2), alleging that he developed
1

5 U.S.C. § 8101 et seq.

“occupational duties stress caused extensive medical issues” due to factors of his federal
employment. He indicated that he first became aware of his condition and first realized it was
caused or aggravated by his federal employment on February 17, 2017. Appellant did not stop
work.
By development letter dated May 25, 2018, OWCP advised appellant of the deficiencies
of his claim and afforded him 30 days to submit additional evidence and respond to its inquiries.
In response, appellant submitted medical reports dated March 28, April 16, and May 8,
2018 from Dr. David R. Gentile, a Board-certified orthopedic surgeon, who diagnosed left
shoulder pain, left shoulder osteoarthritis, left radial neuritis, left cervical radiculopathy, and left
cubital tunnel syndrome. Dr. Gentile indicated that appellant had a preexisting history of cervical
symptoms which were unchanged with his onset of shoulder pain and also noted that he had
previously undergone left shoulder surgeries in 1994 and 2013 and was status post left shoulder
rotator cuff repair, glenohumeral debridement, and subacromial decompression. He related that
appellant’s left shoulder symptoms had been present since October 2016 and became worse in
October 2017 after “moving equipment at work.” Appellant reported difficulty with overhead
activity and weakness with gripping and lifting, which caused him to shake. He was experiencing
constant numbness over the back of his thumb and hand during the day. Physical examination
findings showed that appellant did shake with range of motion (ROM) exercises and muscle
testing. Appellant had incomplete active ROM and demonstrated a painful arc from 90 through
120 degrees with forward flexion. He had positive impingement and reinforcement signs and there
was increased tenderness on resisted rotator cuff activity without weakness. Dr. Gentile opined
that, at this point, appellant had shoulder symptoms on the basis of glenohumeral arthritis
following rotator cuff surgery with an intact rotator cuff with some associated atrophy. He further
opined that appellant’s history of C5-6 radiculopathy “may be contributing to his arm symptoms.”
In a narrative statement dated June 7, 2018, appellant alleged that his injury was caused
over a long period of time, the extent of which was not discovered until March 2018. He indicated
that over a period of years he was required to lift and move large and heavy Pelican cases onto
high shelves which damaged his shoulder. Appellant stated that, when he was initially injured in
2013, he was told by his supervisor, M.W., that since he had been wounded in military service, he
could not file a claim for FECA benefits. He asserted that when he was injured again, he had been
out of the Navy for 14 years. Appellant stated that he first noticed problems with his left shoulder
in April 2016 and that his condition was consistent and ongoing.
On June 11, 2018 the employing establishment controverted appellant’s claim, arguing that
appellant had exhibited a lack of candor in statements made to his supervisor on numerous
occasions and submitted no corroborative statements in regard to his claim. It reported that in
April 2017, appellant was reassigned to administrative duties, provided with a private office, and
daytime Monday to Friday work hours. All of appellant’s leave requests during his administrativeduty assignment through his retirement were approved as requested. The employing establishment
also submitted copies of appellant’s position description.
By decision dated July 12, 2018, OWCP denied appellant’s claim, finding that the medical
evidence of record was insufficient to establish causal relationship between the diagnosed
conditions and factors of his federal employment.

2

LEGAL PRECEDENT
A claimant seeking benefits under FECA has the burden of establishing the essential
elements of his or her claim by the weight of the reliable, probative, and substantial evidence,
including the fact that the individual is an employee of the United States within the meaning of
FECA, that the claim was filed within the applicable time limitation of FECA, that an injury was
sustained in the performance of duty as alleged, and that any specific condition or disability for
which compensation is claimed is causally related to the employment injury.2 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.3
To establish that an injury was sustained in the performance of duty in an occupational
disease claim, an employee must submit the following: (1) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; (2) medical evidence establishing the presence or existence of the disease or
condition for which compensation is claimed; and (3) medical evidence establishing that the
diagnosed condition is causally related to the employment factors identified by the employee.4
Causal relationship is a medical issue, and the medical evidence required to establish causal
relationship is rationalized medical evidence.5 The opinion of the physician must be based on a
complete factual and medical background of the claimant, must be one of reasonable medical
certainty, and must be supported by medical rationale explaining the nature of the relationship
between the diagnosed condition and the specific employment factors identified by the employee.6
Neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.7
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish a left upper
extremity condition causally related to the accepted factors of his federal employment.
Appellant identified the factors of employment that he believed caused his conditions,
including lifting and moving large and heavy Pelican cases at work, which OWCP accepted as
factual. However, in order to establish a claim that he sustained an employment-related injury, he
2

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

3

A.D., Docket No. 17-1855 (issued February 26, 2018); Gary J. Watling, 52 ECAB 357 (2001).

4
See D.R., Docket No. 09-1723 (issued May 20, 2010). See also Roy L. Humphrey, 57 ECAB 238, 241 (2005);
Ruby I. Fish, 46 ECAB 276, 279 (1994); Victor J. Woodhams, 41 ECAB 345 (1989).
5

G.N., Docket No. 18-0403 (issued September 13, 2018); Jacqueline M. Nixon-Steward, 52 ECAB 140 (2000).

6

K.V., Docket No. 18-0723 (issued November 9, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L. Fowler,
45 ECAB 365 (1994).
7

Dennis M. Mascarenas, 49 ECAB 215 (1997).

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must also submit rationalized medical evidence which explains how his medical conditions were
caused or aggravated by the implicated employment factors.8
In his reports, Dr. Gentile diagnosed left shoulder pain, left shoulder osteoarthritis, left
radial neuritis, left cervical radiculopathy, and left cubital tunnel syndrome. He related that
appellant had preexisting left shoulder symptoms which had been present since October 2016 and
became worse in October 2017 after “moving equipment at work.” Dr. Gentile noted that
appellant had previously undergone left shoulder surgeries in 1994 and 2013 and opined that
appellant’s current left shoulder symptoms were due to his glenohumeral arthritis following rotator
cuff surgery, with an intact rotator cuff with some associated atrophy. He further opined that
appellant had a prior history of cervical symptoms which were unchanged with his onset of
shoulder pain and his history of C5-6 radiculopathy “may be contributing to his arm symptoms.”
It remains unclear whether appellant’s left upper extremity condition was the result of a preexisting
condition or caused by his occupational employment duties. A well-rationalized opinion is
particularly warranted when there is a history of preexisting condition.9 The Board finds that
Dr. Gentile failed to provide sufficient medical rationale explaining how lifting and moving
Pelican cases at work either caused or contributed to appellant’s diagnosed conditions and
therefore, is of limited probative value.10
Dr. Gentile’s opinion was based on temporal correlation. However, the Board has held
that neither the mere fact that a disease or condition manifests itself during a period of employment,
nor the belief that the disease or condition was caused or aggravated by employment factors or
incidents is sufficient to establish causal relationship.11 Dr. Gentile did not otherwise sufficiently
explain the reasons why diagnostic testing and examination findings led him to conclude that
appellant’s employment factors caused or contributed to the diagnosed conditions. Moreover, the
Board finds that the diagnosis of “left shoulder pain” is a description of a symptom rather than a
clear diagnosis of the medical condition.12 Thus, the reports from Dr. Gentile are insufficient to
establish that appellant sustained an employment-related injury.
As appellant has not submitted rationalized medical evidence to sufficient support his claim
that he sustained an injury causally related to the accepted employment factors, he has failed to
meet his burden of proof.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.

8

A.C., Docket No. 08-1453 (issued November 18, 2008).

9

T.M., Docket No. 08-0975 (issued February 6, 2009); Michael S. Mina, 57 ECAB 379 (2006).

10

See James Mack, 43 ECAB 321 (1991).

11

E.J., Docket No. 09-1481 (issued February 19, 2010).

12

P.S., Docket No. 12-1601 (issued January 2, 2013); C.F., Docket No. 08-1102 (issued October 10, 2008).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a left upper
extremity condition causally related to the accepted factors of his federal employment.
ORDER
IT IS HEREBY ORDERED THAT the July 12, 2018 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 15, 2019
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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.M., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
CORPS OF ENGINEERS, New Orleans, LA,
Employer
__________________________________________

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

Docket No. 14-1404
Issued: October 10, 2014

Case Submitted on the Record

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

JURISDICTION
On June 4, 2014 appellant filed a timely appeal from a May 21, 2014 nonmerit decision
of the Office of Workers’ Compensation Programs (OWCP) denying his request for a review of
the written record. As more than 180 days elapsed from the issuance of the most recent merit
decision of April 12, 2011 and the filing of this appeal, the Board lacks jurisdiction to review the
merits of this case pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20
C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for a review of the
written record as untimely under 5 U.S.C. § 8124(b)(1).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. In a decision dated December 1, 2010,
the Board reversed September 16, 2009 and February 1, 2010 OWCP decisions reducing
appellant’s compensation benefits to zero based on a finding that his actual earnings as a
modified machinist fairly and reasonably represented his wage-earning capacity.2 The Board
determined that he had not worked in the limited-duty position for more than 60 days prior to
OWCP’s loss of wage-earning capacity determination. The Board found, consequently, that
OWCP improperly reduced appellant’s compensation as it failed to follow its procedures. The
facts and circumstances as set forth in the prior decision are hereby incorporated by reference.
By decision dated April 12, 2011, OWCP again reduced appellant’s compensation to zero
based on its finding that his actual earnings effective August 30, 2009 as a light-duty machinist
fairly and reasonably represented his wage-earning capacity.
In a letter dated April 16, 2011, appellant questioned the meaning of the April 12, 2011
decision, noting that the Board had reversed the prior finding.3
In a telephone call dated April 3, 2014, OWCP informed appellant that it had issued a
decision on April 12, 2011 reducing his compensation. Appellant responded that he had not
received an April 12, 2011 decision. OWCP advised him that the decision was not returned after
being mailed.
In a form received by OWCP on May 1, 2014, appellant requested a review of the written
record on the April 12, 2011 decision.4
By decision dated May 21, 2014, OWCP denied appellant’s request for a review of the
written record as it was not made within 30 days of the last decision. It exercised its discretion
and considered his request but found that the issue could be adequately addressed through the
reconsideration process.
On appeal, appellant contends that appeal rights were not attached to OWCP’s decision.5
He notes that he told OWCP on April 16, 2011 that he did not understand its actions on
April 12, 2011. Appellant asserts that the April 12, 2011 decision did not comply with the
2

Docket No. 10-949 (issued December 1, 2010). OWCP accepted that on July 16, 2001 appellant, then a
51-year-old machinist, sustained lumbar strain, an aggravation of lumbar degenerative disc disease, other acquired
deformities of the left ankle and foot and unequal leg length in the performance of duty. Appellant underwent back
surgeries on September 24, 2001 and May 9, 2008. On August 24, 2009 he accepted a position as a light-duty
machinist with no lifting over 20 pounds.
3

On December 7, 2012 appellant filed recurrence of disability on July 3, 2006 due to his July 16, 2001 work
injury. He did not claim medical treatment or lost wages. By letter dated April 18, 2013, OWCP advised appellant
that as he was not claiming disability compensation or medical expenses, it would not adjudicate the notice of
recurrence of disability.
4

Appellant also indicated that he wanted to appeal to the Board.

5

Appellant’s April 9, 2014 letter addressed to the Board was also provided to OWCP on May 1, 2014.

2

Board’s December 1, 2010 decision. He argues the merits of his claim and indicates that he
wants to appeal the April 12, 2011 decision.
LEGAL PRECEDENT
Section 8124(b) of FECA provides that a claimant for compensation not satisfied with a
decision of the Secretary is entitled, on request made within 30 days after the date of the issuance
of the decision, to a hearing on his claim before a representative of the Secretary.6 Section
10.615 of the federal regulations implementing this section of FECA provides that a claimant
shall be afforded a choice of an oral hearing or a review of the written record.7 The request must
be sent within 30 days (as determined by postmark or other carrier’s date marking) of the date of
the decision for which a hearing is sought.8 A claimant is entitled to a hearing or review of the
written record as a matter of right if the request is filed within 30 days.9
While a claimant may not be entitled to a hearing or review of the written record as a
matter of right if the request is untimely, OWCP has the discretionary authority to grant the
request and must properly exercise such discretion.10
ANALYSIS
By decision dated April 12, 2011, OWCP reduced appellant’s compensation effective
August 30, 2009 based on its finding that his actual earnings as a light-duty machinist beginning
that date fairly and reasonably represented his wage-earning capacity. After contacting OWCP
on April 3, 2014 to determine the status of his case, appellant sought a review of the written
record on a form received by OWCP on May 1, 2014. As his request for a review of the written
record was received May 1, 2014, more than 30 days after OWCP issued its April 12, 2011
decision, he was not entitled to a review of the written record as a matter of right.
OWCP has the discretionary power to grant a hearing or review of the written record
when a claimant is not entitled to a hearing or review as a matter of right.11 In its May 21, 2014
decision, it properly exercised discretion by stating that it had considered the matter in relation to
the issue involve and denied appellant’s request for a review of the written record on the basis
that the case could be resolved by submitting additional evidence to OWCP with a
reconsideration request. The Board has held that the only limitation on OWCP’s discretionary
authority is reasonableness. An abuse of discretion is generally shown through proof of manifest
error, clearly unreasonable exercise of judgment or actions taken which are contrary to both logic
6

5 U.S.C. § 8124(b)(1).

7

20 C.F.R. § 10.615.

8

Id. at § 10.616(a).

9

See Leona B. Jacobs, 55 ECAB 753 (2004).

10

20 C.F.R. § 10.616(b); Federal (FECA) Procedure Manual, Part 2 -- Claims, Hearings and Reviews of the
Written Record, Chapter 2.1601.4(a) (October 2011).
11

See Afegalai L. Boone, 53 ECAB 533 (2002).

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and probable deduction from established facts.12 The evidence does not establish that OWCP
committed any action in connection with its denial of appellant’s request for a review of the
written record which could be found to be an abuse of discretion. Accordingly, OWCP properly
denied his request for a review of the written record as untimely under section 8124 of FECA.
On appeal, appellant maintains that he did not receive appeal rights with the
April 12, 2011 decision. He asserts that he informed OWCP on April 16, 2011 that he did not
understand the April 12, 2011 correspondence. The record, however, indicates that the
April 12, 2011 decision was properly addressed to appellant and was accompanied by appeal
rights. There is no evidence that it was returned to OWCP as undeliverable. Absent evidence to
the contrary, a letter properly addressed and mailed in the ordinary course of business is
presumed to have been received. This is known as the mailbox rule.13 The April 12, 2011
decision was sent to appellant’s address of record with appeal rights and is presumed to have
been received absent any notice of nondelivery.
Appellant further raises arguments relevant to the merits of his case. The only issue
before the Board, however, is whether OWCP properly denied his request for a review of the
written record as untimely. The Board lacks jurisdiction to review the underlying merits of the
case.14
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a review of the
written record as untimely under section 8124(b)(1).

12

See L.W., 59 ECAB 471 (2008); André Thyratron, 54 ECAB 257 (2002).

13

See James A. Gray, 54 ECAB 277 (2002).

14

See 20 C.F.R. § 501.3(e).

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ORDER
IT IS HEREBY ORDERED THAT the May 21, 2014 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 10, 2014
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.S., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Baltimore, MD, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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Docket No. 10-2259
Issued: June 28, 2011

Case Submitted on the Record

ORDER REMANDING CASE
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
COLLEEN DUFFY KIKO, Judge

On September 3, 2010 appellant filed a timely appeal of an August 17, 2010 Office of
Workers’ Compensation Programs’ merit decision addressing his request for a schedule award.
Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction to consider the merits of the case.
Appellant requested a schedule award on December 14, 2009. Appellant’s attending
physician, Dr. Margit L. Bleeker, an occupational neurologist, provided an impairment rating.
The Office medical adviser reviewed this report on February 2, 2010 and recommended that
appellant receive a schedule award based on the diagnosis of post distal clavicle resection, 10
percent impairment. The claims examiner requested an additional report on February 17, 2010
noting that appellant had previously received a schedule award for 22 percent impairment of the
bilateral upper extremities. On February 17, 2010 the Office medical adviser reviewed his
previous reports and stated that he found appellant had 11 percent impairment bilaterally for
carpal tunnel syndrome. He noted that appellant’s previous schedule award evaluation for carpal
tunnel syndrome was in accordance with the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment.2 The Office medical adviser proceeded to
1

5 U.S.C. § 8101 et seq.

2

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

evaluate appellant’s impairment due to carpal tunnel syndrome under the sixth edition of the
A.M.A., Guides and found that appellant had five percent impairment bilaterally due to carpal
tunnel syndrome with a date of maximum medical improvement of September 28, 2008.3 On
March 2, 2010 the claims examiner asked that the Office medical adviser address whether the
schedule award previously received for carpal tunnel syndrome effected appellant’s impairment
rating for distal clavicle resection. On March 21, 2010 the Office medical adviser stated that
appellant was currently entitled to 10 percent impairment based on his left shoulder condition
and five percent impairment based on his previously awarded carpal tunnel syndrome. He found
that appellant’s total left upper extremity impairment was 15 percent based on the sixth edition
of the A.M.A., Guides.
By decision dated April 12, 2010, the Office granted appellant a schedule award for an
additional four percent impairment of the left upper extremity finding that he had previously
received a schedule award for 11 percent impairment of the left upper extremity. Appellant
requested reconsideration on May 11, 2010 and by decision dated August 17, 2010, the Office
denied modification of its prior decision.
The Board has duly considered the matter and finds that this case is not in posture for
decision as the record before the Board does not contain any information pertaining to
appellant’s carpal tunnel claim and the resulting schedule award. The Board concludes that all of
the pertinent evidence reviewed by the Office in reaching appellant’s permanent impairment
rating is not in the record currently before the Board.
Section 501.2(c) of the Board’s Rules of Procedure,4 provides that the Board has
jurisdiction “to consider and decide appeals from the final decision of the Office in any case
arising under the Act.”5 Additionally, the Board’s review of the case is limited to the evidence
which was before the Office at the issuance of the final decision.6 Since the record as
transmitted to the Board does not contain evidence that the Office relied upon in reaching its
final decisions, the Board is unable to properly “consider and decide” appellant’s claim.7 The
August 17, 2010 decision of the Office must be set aside and the case remanded to the Office for
reconstruction and proper assemblage of the case record including combining all the files
regarding permanent impairment of appellant’s left upper extremity. Following this and such
further development as the Office deems necessary8, the Office shall issue an appropriate merit
decision pursuant to 5 U.S.C. § 8128(b)(1) to preserve appellant’s right to future appeals.
Accordingly,

3

Claim number xxxxxx436 addresses appellant’s carpal tunnel syndrome and resulting impairment.

4

20 C.F.R. § 501.2(c).

5

5 U.S.C. §§ 8101-8193.

6

20 C.F.R. § 501.2(c)(1).

7

Id. at § 501.2(c).

8

The Board notes that the district medical director recommended that the Office refer appellant for a second
opinion evaluation in order to accurately assess her permanent impairment due to all accepted conditions.

2

IT IS HEREBY ORDERED that the August 17, 2010 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further proceedings
consistent with this order of the Board.
Issued: June 28, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3