United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
DEPARTMENT OF THE NAVY, MARINE
CORPS LOGISTICS BASE, Albany, GA,
Employer
__________________________________________

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

Docket No. 21-1310
Issued: March 7, 2022

Case Submitted on the Record

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

JURISDICTION
On August 24, 2021 appellant filed a timely appeal from an April 29, 2021 merit decision
and an August 5, 2021 nonmerit 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 his burden of proof to establish a recurrence
of disability beginning March 5, 2020 causally related to his accepted June 28, 2000 employment

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the August 5, 2021 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.

injury; and (2) whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board on separate issues. 3 The facts and
circumstances as set forth in the Board’s prior decisions are incorporated herein by reference. The
relevant facts are as follows.
On July 18, 2000 appellant, then a 46-year-old heavy mobile equipment mechanic, filed a
traumatic injury claim (Form CA-1) alleging that on June 28, 2000 he injured his left shoulder and
neck when installing a starter on an earthmover while in the performance of duty. He stopped
work on June 28, 2000 and returned to work on July 10, 2000. OWCP accepted the claim, assigned
OWCP File No. xxxxxx970 for right lateral epicondylitis and displacement of a cervical
intervertebral disc without myelopathy.
OWCP accepted that appellant sustained a right-hand contusion, a crush injury of the right
fingers, right carpal tunnel syndrome, a right Boutonniere deformity, and traumatic righ t hand
arthropathy due to a May 8, 2001 employment injury under OWCP File No. xxxxxx500 and right
carpal tunnel syndrome due to a June 5, 2003 employment injury under OWCP File No.
xxxxxx576. It administratively combined these claims with OWCP File No. xxxxxx970, with the
latter serving as the master file.
On December 9, 2004 the employing establishment notified appellant of its decision to
remove him for cause.
On July 23, 2019 OWCP expanded its acceptance of the claim to include impingement
syndrome of the left shoulder.
In a report dated March 10, 2020, Dr. John D. Marshall, who specializes in family
medicine, diagnosed displacement of a cervical intervertebral disc without myelopathy,
hypertension, and a shoulder injury.
In an April 22, 2020 report, Dr. Robert V. Glover, Jr., a cardiologist, discussed appellant’s
history of paroxysmal supraventricular tachycardia due to chemical exposure at work.
In a progress report dated May 6, 2020, Dr. Jeffrey A. Fried, a Board-certified orthopedic
surgeon, evaluated appellant for left arm weakness and noted that appellant was disabled and had
not worked in two years. He diagnosed cervical disc displacement, right carpal tunnel syndrome,
contracture at the proximal interphalangeal (PIP) joint of the right little finger, rotator cuff
syndrome, left elbow bursitis, right shoulder pain, impingement syndrome of the left shoulder, a
thyroid cyst, spondylolisthesis, grade 1, spondylolisthesis of the lumbar spine, and
supraventricular tachycardia.

3

Docket No. 15-1477 (issued October 22, 2015); Docket Nos. 09-1090 and 09-0226 (issued March 8, 2010).

2

On June 25, 2020 appellant filed a claim for compensation (Form CA-7) for disability from
work for the period March 5 to June 25, 2020. The employing establishment indicated on the form
that he had been removed for cause on December 13, 2004.
In a development letter dated July 2, 2020, OWCP indicated that appellant was alleging a
recurrence of disability on or around March 5, 2020. It noted that he had received schedule award
compensation through March 5, 2020 and had not been in receipt of wage-loss compensation prior
to the period of his schedule award. OWCP indicated that the employing establishment had
terminated appellant for cause effective December 13, 2004. It notified him of the definition of a
recurrence of disability and requested that he provide additional factual and medical information
supporting that his accepted condition worsened such that he was disabled from employment.
OWCP afforded appellant 30 days to respond to the request.
In an undated response received July 28, 2020, appellant asserted that he had not worked
since June 2008. He noted that the Social Security Administration (SSA) had found that he was
disabled in 2008. Appellant related that Dr. Fried had found that he was disabled under the current
file number. He submitted a decision from SSA finding that he was disabled as of
December 4, 2007.
In a progress report dated August 5, 2020, Dr. Fried evaluated appellant for left shoulder
pain and indicated that appellant was unable to work or perform overhead reaching. He diagnosed
other cervical disc displacement, right carpal tunnel syndrome, contracture at the PIP joint of the
right little finger, rotator cuff syndrome, left elbow bursitis, right shoulder pain, impingement
syndrome of the left shoulder, a thyroid cyst, spondy lolisthesis of the lumbar spine, and
supraventricular tachycardia. Dr. Fried opined that appellant remained disabled.
By decision dated August 28, 2020, OWCP found that appellant had not established a
recurrence of disability beginning March 5, 2020 causally related to his accepted June 28, 2000
employment injury.
On September 12, 2020 appellant requested a review of the written record by a
representative of OWCP’s Branch of Hearings and Review.
In a report dated October 6, 2020, Dr. Fried evaluated appellant for left shoulder pain. He
noted that appellant had not worked in two years. Dr. Fried repeated the diagnoses in his prior
report. He again opined that appellant remained disabled.
By decision dated December 9, 2020, OWCP’s hearing representative affirmed the
August 28, 2020 decision.
On January 12, 2021 Dr. Fried advised that appellant “remains unemployable. [Appellant]
has multiple orthopedic problems including cervical disc displacement, right carpal tunnel
syndrome, contracture of right little finger, bursitis of left elbow, impingement and joint pain in
right shoulder and left shoulder, and spondylolisthesis of the lumbar spine. In addition, [appellant]
has a history of supraventricular tachycardia with his heart.” He concluded that appellant was
“disabled from participating in the economy.” In a January 12, 2021 progress report, Dr. Fried
provided his previous diagnoses and noted that appellant remained disabled.

3

On February 18, 2021 appellant requested reconsideration. He submitted an April 14, 2021
progress report from Dr. Fried, who provided the same diagnoses and found that appellant
remained disabled.
By decision dated April 29, 2021, OWCP denied modification of its December 9, 2020
decision.
Thereafter, appellant resubmitted the January 12 and April 14, 2021 reports from Dr. Fried
and a January 22, 2010 SSA decision, finding that appellant was disabled beginning
December 4, 2007. He further submitted a March 2013 consultation report regarding his treatment
for tachycardia and an October 9, 2014 cardiology report.
In a rating decision dated June 1, 2021, the Department of Veterans Affairs (DVA)
continued its finding that appellant was 50 percent disabled due to sleep apnea and 30 percent
disabled due to supraventricular tachycardia.
On July 20, 2021 appellant requested reconsideration.
By decision dated August 5, 2021, OWCP denied appellant’s request for reconsideration
as he had not submitted evidence or raised an argument sufficient to warrant reopening his claim
for merit review under 5 U.S.C. § 8128(a).
LEGAL PRECEDENT -- ISSUE 1
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition , which resulted from a previous
compensable injury or illness and without an intervening injury or new exposure in the work
environment. 4 This term also means an inability to work because a light-duty assignment made
specifically to accommodate an employee’s physical limitations and which is necessary because
of a work-related injury or illness, is withdrawn or altered so that the assignment exceeds the
employee’s physical limitations. A recurrence does not occur when such withdrawal occurs for
reasons of misconduct, nonperformance of job duties, or a reduction-in-force.5
OWCP’s procedures provide that a recurrence of disability includes a work stoppage
caused by a spontaneous material change in the medical condition demonstrated by objective
findings. That change must result from a previous injury or occupational illness rather than an
intervening injury or new exposure to factors causing the original illness. It does not include a
condition that results from a new injury, even if it involves the same part of the body previously
injured.6
An employee who claims a recurrence of disability due to an accepted employment-related
injury has the burden of proof to establish by the weight of the substantial, reliable, and probative
4

20 C.F.R. § 10.5(x); J.D., Docket No. 18-1533 (issued February 27, 2019).

5

Id.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Recurrences, Chapter 2.1500.2 (June 2013); F.C., Docket
No. 18-0334 (issued December 4, 2018).

4

evidence that the disability for which he or she claims compensation is causally related to the
accepted injury. This burden of proof requires that a claimant furnish medical evidence from a
physician who, on the basis of a complete and accurate factual and medical history, concludes that,
for each period of disability claimed, the disabling condition is causally related to the employment
injury, and supports that conclusion with medical reasoning. 7 Where no such rationale is present,
the medical evidence is of diminished probative value.8
ANALYSIS -- ISSUE 1
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability beginning March 5, 2020 causally related to his accepted June 28, 2000 employment
injury.
Appellant returned to work following his June 28, 2000 employment injury on
July 10, 2000. In December 2004, the employing establishment removed him from employment
for cause.
On January 12, 2021 Dr. Fried opined that appellant remained disabled from employment.
He diagnosed cervical disc displacement, right carpal tunnel syndrome, contracture of right little
finger, bursitis of left elbow, impingement, joint pain in right shoulder and left shoulder,
spondylolisthesis of the lumbar spine, and supraventricular tachycardia. Dr. Fried, however, failed
to address the cause of appellant’s disability or its relationship to his accepted employment injury.
The Board has held that medical evidence that does not offer an opinion regarding the cause of an
employee’s condition or disability is of no probative value on the issue of causal relationship. 9
In progress reports dated May 6, August 5, and October 6, 2020, Dr. Fried discussed
appellant’s complaints of left shoulder pain and diagnosed other cervical disc displacement, right
carpal tunnel syndrome, contracture at the PIP joint of the right little finger, rotator cuff syndrome,
left elbow bursitis, right shoulder pain, impingement syndrome of the left shoulder, a thyroid cyst,
and spondylolisthesis of the lumbar spine. On May 6, 2020 he noted that appellant had not worked
in two years and was disabled. In his August 5 and October 6, 2020 reports, Dr. Fried indicated
that appellant remained disabled. He, while finding that appellant was disabled, did not address
whether the disability was causally related to the accepted employment injury. As noted, medical
evidence that does not offer an opinion regarding the cause of an employee ’s condition is of no
probative value on the issue of causal relationship or disability.10 Without a specific opinion
regarding how the accepted employment injury caused a recurrence of disability, Dr. Fried’s
reports are insufficient to meet appellant’s burden of proof.11

7

L.O., Docket No. 19-0953 (issued October 7, 2019); J.D., Docket No. 18-0616 (issued January 11, 2019).

8

M.G., Docket No. 19-0610 (issued September 23, 2019); G.G., Docket No. 18-1788 (issued March 26, 2019).

9

K.F., Docket No. 19-1846 (issued November 3, 2020); L.O., supra note 7; L.B., Docket No. 18-0533 (issued
August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).
10

See id.

11

See D.B., Docket No. 21-0503 (issued August 24, 2021).

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In a March 10, 2020 report, Dr. Marshall diagnosed displacement of a cervical
intervertebral disc without myelopathy, hypertension, and a shoulder injury. On April 22, 2020
Dr. Glover advised that appellant had a history of paroxysmal supraventricular tachycardia due to
chemical exposure at work. As these reports, however, fail to address the issue of whether
appellant was disabled from employment beginning March 2020, they are of no probative value. 12
As noted, appellant must submit rationalized medical evidence supporting causal
relationship between the disabling conditions and the accepted injuries. Furthermore, the medical
evidence must directly address the dates of disability for work for which com pensation is
claimed.13 None of the medical evidence of record provided a discussion of how appellant’s
accepted conditions caused disability during the period in question. 14 Appellant, therefore, has not
met 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 and 20 C.F.R.
§§ 10.605 through 10.607.
LEGAL PRECEDENT -- ISSUE 2
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application. 15
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.16
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought. 17 If it chooses to grant reconsideration, it reopens

12

See R.J., Docket No. 19-0179 (issued May 26, 2020); see also supra note 11.

13

L.V., Docket No. 19-1725 (issued April 5, 2021); Sandra D. Pruitt, 57 ECAB 126 (2005).

14

Id.

15

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).
16

20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
17

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
For merit decisions issued on or after August 29, 2011, a request for reconsideration must be received by OWCP
within one year of OWCP’s decision for which review is sought. Supra note 6 at Chapter 2.1602.4 (February 2020).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the Integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.

6

and reviews the case on its merits. 18 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits. 19
ANALYSIS -- ISSUE 2
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim, pursuant to 5 U.S.C. § 8128(a).
Appellant has not established that OWCP erroneously applied or interpreted a specific
point of law, or advanced a relevant legal argument not previously considered by OWCP.
Consequently, he is not entitled to a review of the merits of his claim based on the first and second
above-noted requirements under section 10.606(b)(3). 20
The Board further finds that appellant has not provided any relevant and pertinent new
evidence not previously considered. Appellant submitted a March 2013 report diagnosing
tachycardia and an October 9, 2014 cardiology report. He also submitted a DVA rating decision
finding that he was 50 percent disabled due to sleep apnea and 30 percent disabled due to
supraventricular tachycardia. This evidence, however, is not relevant to the underlying issue of
whether appellant has established a recurrence of disability beginning March 5, 2020 causally
related to his accepted June 28, 2000 employment injury. The Board has held the submission of
evidence or argument, which does not address the particular issue involved does not constitute a
basis for reopening a case. 21
Appellant resubmitted a January 22, 2010 SSA decision, finding that he was disabled
beginning December 4, 2007 and reports from Dr. Fried dated January 12 and April 14, 2021. The
Board has held, however, that evidence which repeats or duplicates evidence already in the case
record does not constitute a basis for reopening a case for merit review. 22 Appellant has not
provided relevant and pertinent new evidence and, thus, is not entitled to a merit review based on
the third requirement under section 10.606(b)(3).23
The Board, accordingly, finds that appellant did not meet any of the requirements of
20 C.F.R. § 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.24

18

Id. at § 10.608(a); see also F.V., Docket No. 18-0239 (issued May 8, 2020); M.S., 59 ECAB 231 (2007).

19

Id. at § 10.608(b); Y.K., Docket No. 18-1167 (issued April 2, 2020); E.R., Docket No. 09-1655 (issued
March 18, 2010).
20

Id. at § 10.606(b)(3)(i) and (ii); see also C.K., Docket No. 18-1019 (issued October 24, 2018).

21

See P.G., Docket No. 20-1419 (issued September 16, 2021); C.C., Docket No. 20-0950 (issued October 29,
2020); Edward Matthew Diekemper, 31 ECAB 224 (1979).
22

See T.T., Docket No. 19-0559 (issued July 19, 2019); D.K., 59 ECAB 141 (2007); Eugene F. Butler, 36 ECAB
393 (1984).
23

20 C.F.R. § 10.606(b)(3)(iii); T.W., Docket No. 18-0821 (issued January 13, 2020).

24

T.G., Docket No. 20-0329 (issued October 19, 2020); C.C., Docket No. 17-0043 (issued June 15, 2018).

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CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
disability beginning March 5, 2020 causally related to his accepted June 28, 2000 employment
injury. The Board further finds that OWCP properly denied his request for reconsideration of the
merits of his claim, pursuant to 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the August 5 and April 29, 2021 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: March 7, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

Appearances:
James C. Hayes, III, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-1354
Issued: February 13, 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 May 12, 2011 appellant, through his attorney, filed an appeal of the November 16,
2010 merit decision of the Office of Workers’ Compensation Programs (OWCP), denying his
recurrence of disability claim and his request for expansion of his claim. 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 case.
ISSUES
The issues are: (1) whether appellant has established that he sustained a recurrence of
total disability on April 10, 2006 causally related to his accepted employment-related injuries;
and (2) whether appellant established that additional conditions were due to his employment
injury.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
On July 3, 1996 appellant, then a 46-year-old rural letter carrier, was injured in a motor
vehicle accident while in the performance of duty. He claimed this injury caused a wound to the
left eyebrow and general soreness. OWCP accepted the claim for laceration to the head, lumbar
strain and an aggravation of preexisting osteoarthritis of the left hip. Appellant returned to fullduty work on July 9, 1996 with restrictions on lifting.2
A July 3, 1996 emergency room report noted that appellant was the belted driver of a
jeep, which was traveling at a very slow rate of speed, when hit by a car, causing the jeep to veer
off the road and roll on the driver’s side. Appellant reported hitting his head with no loss of
consciousness, nausea, vomiting or blurred vision. He complained of neck pain and had a small
laceration above his eyebrow. Appellant was noted to have a history of chronic neck pain and
the cervical x-rays showed some degenerative changes. In an August 14, 1996 treatment note,
Dr. Thomas Eagan, a Board-certified orthopedic surgeon, reported the motor vehicle accident
and that appellant had history of intermittent low back pain over the years. He opined that
appellant had a lumbar strain and left hip strain, which aggravated the preexisting arthritis of the
hip. Dr. Eagan felt that appellant could continue to work.
Appellant received compensation, including an authorized total left hip replacement on
October 29, 2001. He returned to limited-duty work on April 29, 2002 and resumed regular-duty
work on September 11, 2002. Appellant stopped work on April 10, 2006 and retired on
disability effective February 23, 2007. By decision dated March 21, 2008, OWCP awarded
appellant 75 percent permanent impairment of the left lower extremity.
On October 27, 2009 appellant filed a recurrence of disability claim for his work
stoppage of April 10, 2006. He stated that his left wrist became progressively worse, more
painful and limited in motion and use since the work-related accident and he was unable to
complete his work duties. Appellant referenced the September 8, 2009 report of Dr. Eagan. The
employing establishment challenged the claim, noting that appellant worked on a farm and had
previously filed a claim for a left wrist condition under case number xxxxxx821,3 which was
denied.
The only treatment records submitted pertaining to a left wrist condition were from
Dr. Eagan, appellant’s treating physician, following the work-related motor vehicle accident.
Dr. Eagan first mentions appellant’s left wrist condition in a November 23, 2004 report. In that
report, he noted that appellant’s chief complaint was bilateral wrist pain, right shoulder pain, left
foot pain, left thigh pain, left hip pain and low back pain. Dr. Eagan indicated that appellant has
had pain in those areas for a few years. With respect to appellant’s wrist, he diagnosed bilateral
carpal tunnel syndrome.

2

The record indicates that July 4, 1996 was a holiday, appellant was on annual leave on July 5, 1996, his
nonscheduled days were July 6 and 7, 1996, and he was on annual leave on July 8, 1996.
3

This case is not before the Board.

2

In an August 3, 2006 report, Dr. Eagan noted that appellant was seen at the Veterans
Administration for his left wrist and that the x-rays were consistent with avascular necrosis or
Kienbock’s disease. He diagnosed Kienbock’s disease left wrist and carpal tunnel syndrome left
hand. Dr. Eagan stated that early retirement from appellant’s occupation was advisable. On
August 10, 2006 he stated that appellant has osteoarthritis of the left hip, status post hip
replacement, degenerative disc disease of the lumbar spine radiating into the left hip region, and
avascular necrosis, Kienbock’s disease and carpal tunnel syndrome of the left hand. Dr. Eagan
opined that all of these conditions contributed to appellant’s difficulty performing any gainful
employment. In a January 22, 2008 report, he stated that appellant injured his back and left wrist
in the 1996 motor vehicle accident. Dr. Eagan advised that appellant had left wrist pain after the
accident, which progressed to arthritis. He stated that, after appellant lost the strength in his left
wrist, he had to stop working and that, combined with his other problems, put him out of work.
Appellant could not push on anything over a small amount of pressure with his left hand and
could not hold mail, which was why he had to stop work. On February 26, 2009 Dr. Eagan
stated that appellant injured his left wrist in the 1996 motor vehicle accident and opined that the
avascular necrosis of the left carpal lunate was related to the work injury. He further opined that
appellant was totally disabled as a postal worker and that the left wrist was functionless with
regard to handling mail.
In September 3 and 8, 2009 reports, Dr. Eagan reported that appellant stated that he had
left wrist discomfort after the accident and thought he had carpal tunnel, but he had so much hip
and back pain, that the wrist pain was not obvious until later. Appellant reported bracing himself
on the steering wheel with his hands at the time of the accident. He stated that the shaft at the
end of the steering box snapped off, indicating that a significant force was transmitted.
Appellant also reported that he did not have any pain in his left wrist prior to the motor vehicle
accident and that he did not initially connect the pain of his left wrist to the injury. Dr. Eagan
opined that appellant had a forceful injury of the left wrist causing avascular neurosis of the
lunate, which worsened over time and resulted in post-traumatic arthritis of the left wrist with
wrist subluxation. He opined that, since appellant was asymptomatic before the injury, there was
a causal relationship between the direct trauma of the steering wheel to this left wrist.
In a November 19, 2009 letter, OWCP advised appellant of the factual and medical
evidence needed to support a recurrence claim and accorded him 30 days in which to supply such
information. Copies of Dr. Eagan’s reports previously of record were resubmitted.
By decision dated January 8, 2010, OWCP denied the recurrence claim finding that the
medical evidence did not establish a change in the nature and extent of appellant’s injury-related
condition. It also found that his current medical condition was not causally related to his
accepted employment-related injury.
On January 29, 2010 appellant requested an oral hearing. Copies of reports already of
record were received. In a March 17, 2010 decision, an OWCP hearing representative found the
case not in posture for decision as OWCP did not issue the January 8, 2010 decision to
appellant’s representative. The case was remanded to OWCP for a de novo decision.
In January 28 and March 3, 2010 reports, Dr. Eagan discussed the osteoarthritis in
appellant’s left hip. He found the hip replacement in good alignment and opined that appellant

3

was totally disabled. In his March 3, 2010 report, Dr. Eagan opined with a checkmark “yes” that
appellant’s hip replacement was causally related to the work injury.
By decision dated March 25, 2010, OWCP denied the recurrence claim. It found the
evidence failed to support that appellant’s accepted conditions worsened on April 12, 2006 or
explain, from a medical perspective, how the current left wrist condition was related to the injury
of July 3, 1996.
On April 15, 2010 appellant requested an oral hearing, which was held telephonically on
July 14, 2010. Appellant’s attorney argued that Dr. Eagan’s reports support that appellant
sustained a left wrist injury during the motor vehicle accident of July 3, 1996 and that the
necrosis was a condition that developed over time. Appellant testified that he did not initially
relate his wrist problem to the motor vehicle accident and tolerated his wrist symptoms for years
until he was diagnosed with avascular necrosis in the left wrist. He stated that he did not have
any trauma to the wrist before or after the July 3, 1996 motor vehicle accident. Appellant further
stated that he stopped work on April 10, 1996 in large part due to his wrist condition.
Duplicative copies of reports previously of record were provided.
In a July 30, 2010 report to appellant’s counsel, Dr. Eagan indicated that appellant’s
motor vehicle accident was a high energy impact which caused the vehicle to turn over. He also
discussed why it took appellant over eight years to develop symptoms and seek medical attention
for his wrist.4 Dr. Eagan stated that on September 3, 2009 appellant reported having discomfort
of his left wrist after the motor vehicle accident. He indicated that appellant had a great deal of
back and hip pain which occupied his attention and that when a person is having a great deal of
pain in one area, areas of lesser pain become less noticeable. Dr. Eagan indicated that
appellant’s wrist pain gradually became worse over time and that it may take years after trauma
for avascular necrosis to become symptomatic. He stated that the wrist is a nonweight-bearing
joint and symptoms are well tolerated over a period of time. Dr. Eagan indicated that appellant
thought he had carpal tunnel syndrome of the left wrist and that nothing could be done about it.
He indicated that trauma to the wrist incurred on July 3, 1996 compromised the blood supply to
the carpal lunate and the lack of blood essentially caused the bone to lose its viability. Dr. Eagan
opined that appellant had sufficient trauma to the wrist to cause avascular insult, which over time
led to avascular necrosis of the carpal lunate. He stated that x-rays of the avascular necrosis and
wrist joint narrowing are consistent with an injury that took place in 1996 and that this type of
condition of Kienbock’s is known to slowly progress over many years. Dr. Eagan indicated that
appellant did have symptoms from the time of the injury, other things occupied his attention,
such as a post-traumatic arthritic condition of the hip, which required a hip replacement.
In a November 16, 2010 decision, an OWCP hearing representative affirmed the prior
decision. The hearing representative found Dr. Eagan’s medical opinion was insufficient to
show that the left wrist condition was due to the work injury or to establish a recurrence of
disability effective April 10, 2006.

4

Appellant first sought symptoms for his wrist on November 23, 2004.

4

LEGAL PRECEDENT -- ISSUE 1
Where appellant claims a recurrence of disability due to an accepted employment-related
injury, he has the burden of establishing by the weight of the substantial, reliable and probative
evidence that the subsequent disability for which he claims compensation is causally related to
the accepted injury.5 This burden includes the necessity of furnishing evidence from a qualified
physician who, on the basis of a complete and accurate factual and medical history, concludes
that the condition is causally related to the employment injury and supports that conclusion with
sound medical reasoning.6
To show a change in the degree of the work-related injury or condition, the claimant must
submit rationalized medical evidence documenting such change and explaining how and why the
accepted injury or condition disabled the claimant for work on and after the date of the alleged
recurrence of disability.7
ANALYSIS -- ISSUE 1
OWCP accepted that appellant’s July 3, 1996 motor vehicle accident caused an open
scalp wound, lumbosacral strain and an aggravation of preexisting left hip osteoarthritis, for
which he underwent a total left hip replacement on October 29, 2001. Appellant eventually
resumed regular duty. He claimed a recurrence of disability beginning April 10, 2006 due to his
left wrist condition, a nonaccepted condition, which he alleged became progressively worse since
the motor vehicle accident and that he was unable to complete his work duties.
The Board notes that Dr. Eagan has not provided any rationale that appellant sustained a
change in the nature or extent of his injury-related conditions. OWCP accepted that appellant
sustained an aggravation of preexisting osteoarthritis of the left hip and authorized a total left hip
replacement. In his January 28 and March 3, 2010 reports, Dr. Eagan commented that the hip
replacement was in good alignment and that appellant was totally disabled. However, he offered
no explanation as to how or why appellant would be disabled from April 10, 2006 onward due to
an accepted injury-related condition. Dr. Eagan also did not indicate that any of appellant’s
other work-related conditions had changed to a recurrence of total disability. Thus, appellant has
not met his burden of proof to establish a recurrence of total disability on April 10, 2006 causally
related to his accepted employment injuries.
LEGAL PRECEDENT -- ISSUE 2
Where an employee claims that a condition not accepted or approved by OWCP was due
to an employment injury, he bears the burden of proof to establish that the condition is causally
related to the employment injury.8 To establish a causal relationship between the condition as
5

John E. Blount, 30 ECAB 1374 (1974).

6

See Nicolea Bruso, 33 ECAB 1138, 1140 (1982); L.H., Docket No. 10-2248 (issued July 22, 2011).

7

James H. Botts, 50 ECAB 265 (1999).

8

See Jaja K. Asaramo, 55 ECAB 200 (2004).

5

well as any attendant disability claimed and the employment injury, an employee must submit
rationalized medical evidence based on a complete medical and factual background supporting
such a casual relationship.9 Causal relationship is a medical issue and the medical evidence
required to establish a causal relationship is rationalized medical evidence.10 Rationalized
medical evidence is evidence which includes a physician’s rationalized medical opinion on the
issue of whether there is a causal relationship between the diagnosed condition and the specific
employment factors identified by the claimant.11 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.12
ANALYSIS -- ISSUE 2
In support of his request to expand his claim to include a left wrist condition, appellant
submitted reports from Dr. Eagan, his treating physician following the work-related motor
vehicle accident. The Board notes that, while he asserts that he had discomfort in his wrist
following the July 3, 1996 motor vehicle accident, none of the most contemporaneous documents
of record reference a wrist injury or wrist symptoms following the motor vehicle accident. The
hospital report immediately following the motor vehicle accident does not address or mention a
left wrist condition.
The only medical reports addressing a left wrist condition are from Dr. Eagan, appellant’s
attending physician, who began treating appellant following the July 3, 1996 motor vehicle
accident. However Dr. Eagan does not mention a wrist condition until November 23, 2004, eight
years after the motor vehicle accident of July 3, 1996, when he states that appellant has had
bilateral wrist pain for a few years. He fails to attribute appellant’s bilateral wrist pain to his
employment duties or to the accepted injury of July 3, 1996. On August 3, 2006 Dr. Eagan
diagnosed appellant’s left wrist with avascular necrosis of the carpal lunate, i.e., Kienbock’s
disease, but he offered no opinion on the causal relationship of such condition. While he
subsequently opined that appellant’s left wrist condition is causally related to the July 3, 1996
accident, his opinion appears to be based on appellant’s version of events and not on the
documented history or background of this case. In his January 22, 2008 report, Dr. Eagan first
relates appellant’s left wrist condition to the July 3, 1996 motor vehicle accident. However, he
offered no rationale as to how a wrist injury was sustained during the July 3, 1996 motor vehicle
accident. In his September 3 and 8, 2009 reports, Dr. Eagan opines that appellant sustained a
forceful injury of the left wrist, which subsequently caused avascular neurosis and post-traumatic
arthritis with left wrist subluxation, based on appellant’s report that he had braced himself on the
steering wheel with his hands at the time of the accident and the steering shaft at the end of the
steering box had snapped off. He opined that appellant’s left wrist condition was causally related
9

See M.W., 57 ECAB 710 (2006); John D. Jackson, 55 ECAB 465 (2004).

10

See D.E., 58 ECAB 448 (2007); Mary J. Summers, 55 ECAB 730 (2004).

11

See Phillip L. Barnes, 55 ECAB 426 (2004); Leslie C. Moore, 52 ECAB 132 (2000).

12

See V.W., 58 ECAB 428 (2007); Ernest St. Pierre, 51 ECAB 623 (2000).

6

to the motor vehicle accident because he had a forceful injury of the left wrist, pointing out that
he was asymptomatic prior to this event. Although Dr. Eagan attributed appellant’s condition to
the July 3, 1996 motor vehicle accident, he did not clearly explain why such an accident would
cause appellant’s wrist condition, why such a condition would come to light many years after the
work injury, and why appellant did not complain of his wrist condition contemporaneous to the
injury. Moreover, his observation that appellant was asymptomatic before the motor vehicle
accident and symptomatic afterward, by itself, is not sufficient opinion on causal relationship.13
A temporal relationship alone has been held of diminished probative value on causal relation.14
In his July 30, 2010 report, Dr. Eagan advised that appellant had symptoms from the time of the
injury but this is not supported by the contemporaneous evidence of record. This is important
given that there is no medical evidence of bridging symptoms that address a left wrist condition
from 1996 to 2004, when appellant was noted to have had pain in his left wrist for “a few
years.”15 During this eight-year period, there is no evidence of any physician treating appellant
for any trauma-related wrist condition. Appellant continued to work until April 10, 2006,
without any indication of wrist issues until August 3, 2006, when he was diagnosed with
avascular necrosis. The absence of prior evidence of a trauma induced left wrist injury and his
apparent ability to work until April 2006 mitigates against the July 3, 1996 injury as a cause of
the left wrist condition.16 Thus, Dr. Eagan’s opinions are not sufficiently rationalized to meet
appellant’s burden of proof in establishing his claim to include additional conditions.
On appeal appellant’s attorney argues that Dr. Eagan’s opinions are sufficiently
rationalized to meet appellant’s burden of proof. However, for the reasons set forth, Dr. Eagan’s
opinions are not sufficiently rationalized to meet appellant’s burden of proof in establishing his
claim to include additional conditions.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish a recurrence of
total disability on April 10, 2006 causally related to his accepted employment injuries. Appellant
also has failed to meet his burden of proof to expand his claim to include a left wrist condition.

13

See D.I., 59 ECAB 158 (2007); T.M., Docket No. 08-975 (issued February 6, 2009).

14

See Louis T. Blair, Jr., 54 ECAB 348 (2003).

15

See R.L., Docket No. 09-714 (issued January 4, 2010); M.C., Docket No. 09-393 (issued October 9, 2009).

16

M.J., Docket No. 08-2549 (issued July 9, 2009).

7

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decision dated November 16, 2010 is affirmed.
Issued: February 13, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
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J.W., Appellant
and
U.S. PEACE CORPS, Santo Domingo,
Dominican Republic, Employer

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

Docket No. 10-2182
Issued: May 11, 2011

Case Submitted on the Record

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

JURISDICTION
On August 24, 2010 appellant filed an appeal of an August 11, 2010 decision of the
Office of Workers’ Compensation Programs denying reimbursement of medical expenses.
Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R. §§ 501.2(c) and 501.3(d),
the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether the Office properly denied reimbursement for a March 31, 2010
cervical colposcopy.
On appeal, appellant asserts that new medical evidence established her entitlement to
reimbursement of medical expenses incurred on March 31, 2010.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 2, 2010 appellant, then a 25-year-old volunteer, filed an occupational
disease claim (Form CA-2) alleging that on or before July 11, 2008 she sustained human
papillomavirus (HPV) and genital warts while employed in the Dominican Republic. An
employing establishment official confirmed that she had no preemployment history of HPV.
Dr. Samuel Guerrero, an attending physician in the Dominican Republic,2 diagnosed an
inflamed cervix in August 2007 and genital warts in January 2008. A January 31, 2008
papanicolaou smear (Pap) and March 10, 2008 colposcopy and biopsy showed HPV of a highrisk strain. A July 21, 2008 Pap showed HPV, coccobacilli and mild cervical dysplasia. In
August 2008, appellant underwent laser vaporization of cervical lesions.
Appellant’s volunteer term ended on September 18, 2008. She developed vulvar lesions
in October 2008. The employing establishment authorized a January 2009 follow-up pap smear.
In a January 19, 2010 report, Dr. Alan B. Birnkrant, an attending Board-certified gynecologist,
diagnosed HPV, gonorrhea, chlamydia and multiple types of herpes. He obtained a Pap on
January 19, 2010 showing low grade squamous epithelial lesions consistent with HPV infection.
On April 2, 2010 the Office accepted that appellant sustained “abnormal pap and HPV”
on or before July 11, 2008.
In a June 10, 2010 letter, the Office noted that appellant had telephoned regarding
reimbursement for a March 31, 2010 medical appointment for procedure code 57454, a cervical
colposcopy. It advised her that to approve her request for reimbursement, she must submit her
physician’s notes from the March 31, 2010 visit explaining the purpose of the treatment. The
Office would then ascertain if the procedure was related to the accepted conditions and therefore
reimbursable under the Act.
The Office telephoned appellant on July 16, 2010 and again requested that she submit a
copy of the March 31, 2010 treatment notes.
By decision dated August 11, 2010, the Office denied reimbursement for the March 31,
2010 cervical colposcopy. It found that, as appellant did not submit the requested March 31,
2010 medical report, it could not be ascertained if the services provided were necessitated by the
accepted HPV.
LEGAL PRECEDENT
Section 8103 of the Act3 provides that the United States shall furnish to an employee who
is injured while in the performance of duty, the services, appliances and supplies prescribed or
recommended by a qualified physician, which the Office considers likely to cure, give relief,
2

Dr. Guerrero’s reports were reviewed by an employing establishment medical officer whose signature is
illegible.
3

5 U.S.C. §§ 8101-8193.

2

reduce the degree or the period of disability or aid in lessening the amount of the monthly
compensation.4 In interpreting section 8103, the Board has recognized that the Office has broad
discretion in approving services provided under the Act. The only limitation on the Office’s
authority is that of reasonableness.5 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 and probable deductions from established facts. It is not enough to merely show that
the evidence could be construed so as to produce a contrary factual conclusion.6
While the Office is obligated to pay for treatment of employment-related conditions,
appellant has the burden of establishing that the expenditure is incurred for treatment of the
effects of an employment-related injury or condition.7 Proof of causal relationship in a case such
as this must include supporting rationalized medical evidence.8 Therefore, in order to prove that
the medical services were warranted, appellant must submit evidence to show that those services
were for a condition causally related to the employment injury and that the services were
medically warranted. Both of these criteria must be met in order for the Office to authorize
payment.9
ANALYSIS
The Office accepted that appellant sustained HPV causing abnormal pap smears.
Appellant submitted treatment notes through October 2008 diagnosing HPV and cervical
changes. She requested reimbursement for a March 31, 2010 cervical colposcopy. The Office
denied payment for this procedure by an August 11, 2010 decision. It is appellant’s burden of
proof to establish that the Office abused its discretion by denying reimbursement for the
colposcopy.
The Office advised appellant in a June 10, 2010 letter and in a July 16, 2010 telephone
call that it could not reimburse the requested expenses without her physician’s notes from the
March 31, 2010 visit explaining why the colposcopy was necessitated by the accepted
conditions. However, appellant did not submit such evidence. She submitted January 19, 2010
reports from Dr. Birnkrant, an attending gynecologist, diagnosing cervical HPV lesions as well
as three nonaccepted venereal diseases. Dr. Birnkrant did not mention a colposcopy. As
appellant failed to submit supporting medical evidence, the Board finds that the Office acted
within its discretion in denying reimbursement of the March 31, 2010 colposcopy.10

4

5 U.S.C. § 8103; see Thomas W. Stevens, 50 ECAB 288 (1999).

5

Mira R. Adams, 48 ECAB 504 (1997).

6

Daniel J. Perea, 42 ECAB 214 (1990).

7

Kennett O. Collins, Jr., 55 ECAB 648 (2004).

8

Id.

9

R.L. Docket No. 08-855 (issued October 6, 2008).

10

G.A., Docket No. 09-2153 (issued June 10, 2010).

3

On appeal, appellant asserts that new medical evidence established her entitlement to
reimbursement for the March 31, 2010 colposcopy. The Board may not consider new evidence
for the first time on appeal that was not before the Office at the time it issued the final decision in
the case.11 Appellant may submit such evidence to the Office in support of a valid request for
reconsideration.
CONCLUSION
The Board finds that the Office properly denied reimbursement for a March 31, 2010
cervical colposcopy.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 11, 2010 is affirmed.
Issued: May 11, 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

11

20 C.F.R. § 501.2(c). This evidence can be submitted to the Office along with a request for reconderation.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.H., Appellant
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, Austin, TX,
Employer
__________________________________________

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

Docket No. 08-1902
Issued: March 24, 2009

Case Submitted on the Record

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

JURISDICTION
On June 27, 2008 appellant filed a timely appeal from a June 3, 2008 decision of the
Office of Workers’ Compensation Programs denying his traumatic injury claim. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant has established that he sustained a left upper extremity
injury or back injury in the performance of duty.
FACTUAL HISTORY
On April 15, 2008 appellant, then a 43-year-old mail clerk, filed a traumatic injury claim
(Form CA-1) alleging that he injured his left arm, shoulder and back on March 28, 2008. He
stated that “three months ago I really hard [sic] work all day busy” then experienced significant

pain while in the mail candling work area.1 A supervisor stated that she was unaware of the
alleged March 28, 2008 incident, noting that appellant had been upset recently by a proposed
change in his job duties. Appellant stopped work on March 28, 2008.
In a May 2, 2008 letter, the Office advised appellant of the evidence needed to establish
his claim. It noted that he did not submit enough evidence to establish that he injured himself at
work on March 28, 2008.2
In a May 6, 2008 letter, Adriane A. Harbaugh, an employing establishment supervisor,
stated that, on March 28, 2008, she advised appellant that he would join her extraction team on
April 1, 2008. Appellant had been hired as an extractor but “had been spending time in his
former area of Candling.” He then told Cindy Holladay, a candling manager, that “he did not
want to come to Extraction and was angry about it.” On Monday April 1, 2008 appellant’s wife
telephoned Ms. Holladay, stating that he injured his shoulder over the weekend and would not
report for work that day. Later that week, appellant’s wife told Ms. Holladay that appellant
injured himself at work on March 28, 2008. However, appellant did not inform Ms. Harbaugh of
an injury on March 28, 2008.
In a May 6, 2008 letter, an employing establishment official noted that, on his claim
form, appellant mentioned both that he was injured on March 28, 2008 and “three months ago.”
The official stated that three months prior to March 28, 2008, appellant was in furlough status
and did not return to duty until the end of January 2008.
In a May 27, 2008 telephone memorandum, appellant related that, on March 28, 2008, he
pulled a 200-pound cart, causing pain in his left arm and swelling in his left hand.
In reports dated April 3 to May 19, 2008, Dr. Jerald Head, an attending Board-certified
anesthesiologist, related appellant’s account of pushing carts at work on March 28, 2008. He
diagnosed a left upper arm and shoulder strain and a left C7 disc herniation with increasing
weakness in the left hand. However, Dr. Head commented that the diagnoses could not be
attributed to a specific incident. In an April 18, 2008 note, Dr. Julie Hardy, an attending general
practitioner, diagnosed left arm pain and recommended limited duty.
By decision dated June 3, 2008, the Office denied appellant’s claim on the grounds that
fact of injury was not established. It found that appellant had not established the March 28, 2008
work incident as factual. Also, Dr. Head opined that the specific cause of appellant’s injuries
could not be determined.

1

Appellant self-identifies as Deaf and utilized interpreters and relay operators to communicate with the
employing establishment and the Office.
2

Appellant signed the Form CA-1011 an Office inquiry letter on May 19, 2008 but did not answer any of the
questions provided.

2

LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act3 has the
burden of establishing the essential elements of his or her claim, including the fact that the
individual is an “employee of the United States” within the meaning of the Act; that the claim
was filed within the applicable time limitation; that an injury was sustained while in the
performance of duty as alleged; and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury.4 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.5
In order to determine whether an employee sustained a traumatic injury in the
performance of duty, the Office begins with an analysis of whether “fact of injury” has been
established. Generally, fact of injury consists of two components that must be considered
jointly. First, the employee must submit sufficient evidence to establish that he or she actually
experienced the alleged employment incident.6 Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury.7
ANALYSIS
On his April 15, 2008 claim form, appellant stated both that he injured his shoulder on
March 28, 2008 and “three months ago.” He did not identify pushing a cart until May 27, 2008.
Ms. Harbaugh, an employing establishment supervisor, stated that appellant did not inform her
on March 28, 2008 that he sustained an injury. Moreover, appellant’s wife noted both that he
injured his shoulder at home on March 29 or 30, 2008 and that he hurt himself at work on
March 28, 2008. The Board finds that the conflicting accounts of events, coupled with a lack of
factual corroboration, do not establish that he experienced the claimed employment incident at
the time, place and in the manner alleged.8 Appellant has failed to meet the first elements of his
burden of proof.
The Office advised appellant by May 2, 2008 letter of the deficiencies in his claim and of
the additional evidence needed. However, appellant did not submit such evidence. The Board
finds that appellant has not met his burden of proof to establish the employment incident.9

3

5 U.S.C. §§ 8101-8193.

4

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

5

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

6

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

7

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

8

Donna A. Lietz, 57 ECAB 203 (2005).

9

M.W., 57 ECAB 710 (2006).

3

Therefore, appellant did not establish a prima facie claim for compensation benefits under the
Act.10
The medical record demonstrates that appellant had a left arm and shoulder strain, as
diagnosed by Dr. Head, an attending Board-certified anesthesiologist. The medical evidence is
not probative as the factual evidence does not establish the claimed employment incident. For
these reasons, the Board will affirm the denial of appellant’s claim for compensation.11
CONCLUSION
The Board finds that appellant has not established that he sustained a left upper extremity
or back injury in the performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 3, 2008 is affirmed.
Issued: March 24, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

10

Frankie A. Farinacci, 56 ECAB 723 (2005).

11

See supra note 9.

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Portland, OR, Employer
__________________________________________

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

Docket No. 12-873
Issued: September 6, 2012

Case Submitted on the Record

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

JURISDICTION
On March 13, 2012 appellant timely appealed the February 17, 2012 merit decision of the
Office of Workers’ Compensation Programs, which affirmed the denial of his claim for a
schedule award. Pursuant to the Federal Employees’ Compensation Act1 and 20 C.F.R.
§§ 501.2(c) and 501.3 (2011), the Board has jurisdiction over the merits of the schedule award
claim.
ISSUE
The issue is whether appellant is entitled to a schedule award for permanent impairment
of the right upper extremity.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case was previously before the Board.2 Appellant, a 73-year-old former letter
carrier, has an accepted claim for right shoulder traumatic impingement due to slipping on a
freshly painted curb and falling on his right elbow, which occurred on October 1, 1991. He
retired effective April 2, 1995, a few weeks prior to his 56th birthday. On May 28, 2008
appellant filed a claim for a schedule award (Form CA-7). For administrative reasons, OWCP
had destroyed his October 1, 1991 injury claim file and, therefore, efforts were undertaken to
recreate the case record. However, the only prior treatment records appellant was able to secure
at the time consisted of a November 12, 1991 report from Dr. David L. Galt, a Board-certified
orthopedic surgeon, who noted an October 1, 1991 history of injury and diagnosed right shoulder
traumatic impingement.3
In support of his current claim for a schedule award, appellant submitted a May 12, 2008
impairment rating from Dr. Thomas J. Purtzer, a Board-certified neurosurgeon, who diagnosed
mild chronic pain syndrome due to chronic right shoulder impingement syndrome with
secondary osteoarthritis. Dr. Purtzer calculated five percent impairment of the right upper
extremity (RUE) due to loss of shoulder abduction (one percent) and internal rotation (four
percent).4 He attributed appellant’s loss of motion to his right shoulder impingement syndrome,
which in turn was caused by the October 1, 1991 employment injury. An August 21, 2008 right
shoulder magnetic resonance imaging scan revealed evidence suggesting a partial thickness
rotator cuff tear. In an October 30, 2008 addendum, Dr. Purtzer indicated that the additional
imaging studies did not alter his previous five percent RUE impairment rating, but the findings
did suggest that appellant might benefit from surgical intervention.
When the case was last before the Board, OWCP had denied appellant’s claim for a
schedule award and had also denied reconsideration. In denying the claim, OWCP found that
Dr. Purtzer had not provided an explanation of how appellant’s five percent RUE impairment
was causally related to the October 1, 1991 employment injury.
By decision dated January 21, 2010, the Board set aside OWCP’s December 16, 2008
and April 17, 2009 decisions, and remanded the case for further medical development. While
Dr. Purtzer’s opinion regarding the cause of appellant’s five percent RUE impairment was
insufficient to discharge appellant’s burden, this evidence was nonetheless sufficient to require
further development by OWCP. The Board’s January 21, 2010 decision is incorporated herein
by reference.
Following remand, OWCP received additional treatment records covering the period
October 16, 1991 to February 18, 1992. The records pertained to appellant’s October 1, 1991
2

Docket No. 09-1454 (issued January 21, 2010).

3

In addition to right shoulder traumatic impingement, Dr. Galt noted the possibility of right glenoid chip fracture.
At the time, He recommended rotator cuff rehabilitation therapy and possible further evaluation to rule out a loose
body.
4

Dr. Purtzer rated appellant under the then-applicable fifth edition of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (2001).

2

right shoulder employment injury and included an October 16, 1991 physical therapy assessment
and treatment plan for right shoulder musculature strain, physical therapy progress notes through
October 28, 1991, an October 29, 1991 duty status report (Form CA-17) and February 18, 1992
treatment notes from Dr. Galt.
In his February 18, 1992 follow-up report, Dr. Galt noted that appellant’s pain was
reportedly gone and he was able to perform full range of motion (ROM) without discomfort,
except for internal rotation. Appellant informed Dr. Galt that he had rested over his last two
weeks of vacation in January 1992. Dr. Galt also noted that appellant reported that he had no
night pain. Appellant was also not taking any medications.5 Physical examination of the right
shoulder revealed full ROM and negative impingement arc. Dr. Galt also noted resisted
elevation 5/5, without pain and resisted rotation strength 5/5, similarly without pain. His
diagnostic impression was resolved right shoulder impingement. Dr. Galt advised that appellant
should continue activities as tolerated, and he anticipated that appellant would reach a medically
stationary state in one month’s time, with no permanent impairment.
OWCP prepared an April 30, 2010 statement of accepted facts (SOAF), which included
the accepted condition of right shoulder impingement, and the dates and identity of various
physicians who had previously treated or evaluated appellant, as well as the dates of imaging
studies obtained.
Dr. Timothy R. Borman, an orthopedic surgeon and OWCP referral physician, examined
appellant on June 8, 2010. Based on his physical examination and review of the record,
including the latest SOAF, Dr. Borman found 14 percent impairment of the RUE. The rating
was based on loss of shoulder ROM under the A.M.A., Guides (6th ed. 2008). Dr. Borman stated
that appellant suffered permanent functional loss of use of his right arm due to the work event of
October 1, 1991.
After reviewing Dr. Borman’s report, OWCP asked him to clarify his report in view of
Dr. Galt’s 1992 report finding that appellant’s work-related injury has resolved.
In a supplemental report dated July 7, 2010, Dr. Borman noted reviewing Dr. Galt’s
February 18, 1992 clinical note and found that appellant had not suffered permanent functional
loss of his right arm due to the October 1, 1991 work event. He stated that, because of the
reported normal shoulder ROM, normal strength, and normal function as of February 18, 1992,
any functional loss of the right arm would be due to factors subsequent to and completely
independent from the October 1, 1991 work event.
In a decision dated July 22, 2010, OWCP denied appellant’s claim for a schedule award
based on Dr. Borman’s July 7, 2010 supplemental report.
Appellant requested an oral hearing and he also submitted a November 22, 2010 report
from Dr. Purtzer. Appellant’s physician took issue with Dr. Borman’s finding that other,
unspecified factors must have been responsible for appellant’s current right upper extremity

5

When Dr. Galt initially examined appellant on November 12, 1991, he prescribed Naprosyn.

3

impairment. Dr. Purtzer thought it untenable to base one’s opinion solely on Dr. Galt’s
February 18, 1992 findings.
At the December 7, 2010 oral hearing, appellant’s then representative argued, inter alia,
that OWCP “badgered” Dr. Borman into changing his opinion. Appellant testified that his
condition waxed and waned over the years and never fully resolved. As to his reported lack of
pain on February 18, 1992, he noted that he had been on vacation for two weeks just prior to his
last visit with Dr. Galt. Appellant explained that he just might have been having a good day
when Dr. Galt examined him on February 18, 1992. However, the pain had been continually
present since then. Appellant also testified that he did not seek further treatment from Dr. Galt
because there was no guarantee that surgery would improve his condition. He “decided that [he]
would learn to live with it....”
By decision dated February 4, 2011, the Branch of Hearings & Review affirmed OWCP’s
July 22, 2010 decision denying appellant’s claim for a schedule award.
Appellant requested reconsideration on May 22, 2011. He submitted a March 2, 2011
letter from Dr. Galt who indicated that he had purged all of his treatment records regarding
appellant’s right shoulder condition. Appellant also submitted another copy of Dr. Purtzer’s
November 22, 2010 report.
In a February 17, 2012 decision, OWCP reviewed the schedule award claim on the
merits, but denied modification of its prior decisions.
LEGAL PRECEDENT
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.6 FECA,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the American Medical Association, Guides to the
Evaluation of Permanent Impairment as the appropriate standard for evaluating schedule losses.7
Effective May 1, 2009, schedule awards are determined in accordance with the sixth edition of
the A.M.A., Guides (2008).8
FECA provides that, if there is disagreement between an OWCP-designated examining
physician and the employee’s physician, OWCP shall appoint a third physician who shall make

6

For a total or 100 percent loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).
7

20 C.F.R. § 10.404.

8

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability
Claims, Chapter 2.808.6a (January 2010).

4

an examination.9 For a conflict to arise the opposing physicians’ viewpoints must be of
“virtually equal weight and rationale.”10 Where OWCP has referred the employee to an
impartial medical examiner to resolve a conflict in the medical evidence, the opinion of such a
specialist, if sufficiently well rationalized and based upon a proper factual background, must be
given special weight.11
ANALYSIS
The Board finds that the case is not in posture for decision due to an unresolved conflict
in medical opinion regarding the cause and extent of appellant’s right upper extremity
impairment. Pursuant to the Board’s January 21, 2010 decision, OWCP obtained a second
opinion evaluation from Dr. Borman, who found 14 percent right upper extremity impairment
under the A.M.A., Guides (6th ed. 2008). However, upon further inquiry on whether the
impairment was causally related to the 1991 accepted injury, Dr. Borman found the current
impairment not causally related to the accepted injury. Appellant’s physician, Dr. Purtzer,
provided a November 22, 2010 report wherein he disagreed with Dr. Borman’s July 7, 2010
opinion on causal relationship. Dr. Purtzer continued to attribute appellant’s current right
shoulder impairment to his October 1, 1991 employment injury.12 The evidence is currently in
equipoise. Accordingly, the Board finds that there is an unresolved conflict in medical opinion
regarding the cause and extent of any right upper extremity impairment.
On remand, OWCP should refer appellant to an impartial medical examiner for
evaluation and an impairment rating consistent with A.M.A., Guides (6th ed. 2008). After such
further medical development as OWCP deems necessary, a de novo decision shall be issued.
CONCLUSION
The case is not in posture for decision.

9

5 U.S.C. § 8123(a); see 20 C.F.R. § 10.321; Shirley L. Steib, 46 ECAB 309, 317 (1994).

10

Darlene R. Kennedy, 57 ECAB 414, 416 (2006).

11

Gary R. Sieber, 46 ECAB 215, 225 (1994).

12

Although the heading of Dr. Purtzer’s November 22, 2010 report references the “[s]ixth [e]dition,” he did not
provide any specific references to the A.M.A., Guides (6th ed. 2008) that might otherwise support his current 10
percent RUE impairment rating.

5

ORDER
IT IS HEREBY ORDERED THAT the February 17, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further action
consistent with this decision of the Board.
Issued: September 6, 2012
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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.A., Appellant
and
U.S. POSTAL SERVICE, TENNESSEE
PERFORMANCE CLUSTER, Nashville, TN,
Employer
__________________________________________

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

Docket No. 12-939
Issued: August 29, 2012

Case Submitted on the Record

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

JURISDICTION
On March 22, 2012 appellant filed a timely appeal from the February 17, 2012 merit
decision of the Office of Workers’ Compensation Programs (OWCP) denying appellant’s
schedule award claim. 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 sustained any permanent impairment of her right leg.
FACTUAL HISTORY
OWCP accepted that on May 20, 2009 appellant, then a 49-year-old lead accounting
technician, sustained a closed dislocation of her right hip, closed fracture of her right
acetabulum, closed fracture of her right patella, contusions of her abdominal and chest walls,
1

5 U.S.C. §§ 8101-8193.

open wound of face without complication and localized primary osteoarthritis of her lower right
leg due to a vehicular accident. It also accepted that she sustained an acute stress disorder due to
her work-related physical injuries.
In a November 10, 2010 report, Dr. Jeffrey T. Adams, an attending Board-certified
orthopedic surgeon, stated that appellant had a patella fracture that did not have articular surface
displacement. Regarding the issue of impairment to appellant’s right leg, he stated:
“This will be a 10 percent impairment to the lower extremity. Due to having a
grade 3 modifier in her functional history of severe pain, this would be moved to a
13 percent impairment to the lower extremity for her patella fracture.
“She also suffered an acetabular fracture with this injury, which would be a 16
percent impairment to the lower extremity, but again with a grade 3 modifier, it
moves it to an 18 percent impairment to her lower extremity.
“Eighteen percent plus 13 percent is a 29 percent impairment to the lower
extremity using the Combined Value[s] Chart.”
On December 27, 2011 appellant filed a claim for a schedule award due to her accepted
work injuries.
In a December 28, 2011 letter, OWCP requested that appellant submit additional medical
evidence, including a report from her treating physician, in support of her schedule award claim.
Appellant submitted a January 6, 2012 report from Dr. Adams, who stated that she had 29
percent permanent impairment of her right leg under the standards of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (6th ed.
2009).2
In February 17, 2012 decision, OWCP denied appellant’s schedule award claim. It found
that she did not submit sufficient medical evidence in support of her claim of permanent
impairment. OWCP discussed Dr. Adams’ January 6, 2012 report, but noted that he did not
discuss the rationale for his rating calculation.
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
2

The top of the report indicated that it represented a final report for the Tennessee Department of Labor, Division
of Workers’ Compensation.
3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404 (1999).

2

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 and hip, reference is made to Table 16-3 (Knee
Regional Grid) beginning on page 509 and Table 16-4 (Hip Regional Grid) beginning on page
512.7 After the class of diagnosis (CDX) is determined from each 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
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.9
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.10
ANALYSIS
OWCP accepted that on May 20, 2009 appellant sustained a closed dislocation of her
right hip, closed fracture of her right acetabulum, closed fracture of her right patella, contusions
of her abdominal and chest walls, open wound of face without complication and localized
primary osteoarthritis of her lower right leg.11 Appellant filed a claim for a schedule award due
5

Id.

6

See FECA Bulletin No. 09-03 (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) 509-15.

8

Id. at 515-22.

9

Russell F. Polhemus, 32 ECAB 1066 (1981).

10

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(d) (January 2010).
11

OWCP also accepted that appellant sustained an acute stress disorder due to her work-related physical injuries.

3

to her accepted work injuries. OWCP denied her schedule award claim on the grounds that she
did not submit sufficient medical evidence in support of her claim. It did not refer the matter to
an OWCP medical adviser.
In support of her schedule award claim, appellant submitted November 10, 2010 and
January 6, 2012 reports of Dr. Adams, an attending Board-certified orthopedic surgeon. The
Board finds that, while the reports of Dr. Adams are not sufficiently rationalized to establish that
he rated impairment under the A.M.A., Guides, they are sufficient to require OWCP to further
develop whether appellant sustained permanent impairment entitling her to schedule award
compensation.12 OWCP did not comply with its procedures which provide for review of the
matter by an OWCP medical adviser for an opinion concerning the nature and percentage of any
ratable impairment in accordance with the A.M.A., Guides.13
In a November 10, 2010 report, Dr. Adams concluded that appellant had a 29 percent
permanent impairment of her right leg. While he did not specify the standards he applied, it
appears from the context of his report that he applied the sixth edition of the A.M.A., Guides.
Dr. Adams noted that appellant had 13 percent impairment due to her patellar fracture and 18
percent impairment due to her acetabular fracture and applied grade modifiers to arrive at these
ratings.14 He used the Combined Values Chart to combine the 13 and 18 percent losses and
concluded that appellant had 29 percent impairment of her right leg.15 In a January 6, 2012 report,
Dr. Adams generally stated that appellant had 29 percent permanent impairment of her right leg
under the standards of the sixth edition of the A.M.A., Guides.
Therefore, the case will be remanded for additional development of the evidence regarding
whether appellant met her burden of proof to show that she sustained permanent impairment
entitling her to schedule award compensation. After such development it deems necessary, OWCP
will issue an appropriate merit decision regarding this matter.
CONCLUSION
The Board finds that the case is not in posture for decision regarding whether OWCP
properly denied appellant’s claim for a schedule award.

12

See supra note 9.

13

See supra note 10.

14

It appears that Dr. Adams applied Table 16-3 (Knee Regional Grid) beginning on page 509 and Table 16-4 (Hip
Regional Grid) beginning on page 512. A.M.A., Guides 509-12. See supra notes 7 and 8.
15

A.M.A., Guides 604, Combined Values Chart.

4

ORDER
IT IS HEREBY ORDERED THAT the February 17, 2012 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
proceedings consistent with decision of the Board.
Issued: August 29, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.L., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
San Pablo, CA, Employer
__________________________________________

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

Docket No. 09-709
Issued: December 8, 2009

Case Submitted on the Record

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

JURISDICTION
On January 22, 2009 appellant filed a timely appeal from the November 26, 2008
decision of the Office of Workers’ Compensation Programs concerning his schedule award.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of the
schedule award claim.
ISSUE
The issue is whether the Office properly determined that appellant has no greater than
24 percent left lower extremity impairment, for which he received a schedule award.
FACTUAL HISTORY
On August 2, 2004 appellant, then a 57-year-old mail carrier, filed an occupational
disease claim alleging that his left knee arthritic condition was due to years of walking up and
down hills and carrying mail for 8 to 12 hours a day. The Office accepted internal derangement
of the left knee, chondromalacia and medial meniscus tear as work related. By decision dated
April 14, 2006, it awarded appellant a schedule award for 24 percent permanent impairment of

the left lower extremity.
May 18, 2007.

The period of the award ran from January 20, 2006 through

On April 22, 2008 appellant filed a claim for an increased schedule award. In an
April 25, 2008 letter, the Office requested that he submit a report from his attending physician
addressing the extent of any permanent impairment in accordance with the fifth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment, (hereinafter
A.M.A., Guides). It noted that, while Dr. Vatche Cabayan, a Board-certified orthopedic surgeon,
indicated in his January 14, 2008 report that appellant was experiencing left knee aggravation
due to overload from right knee surgery, he did not indicate whether there was any increased
permanent impairment of the left leg.1
In a May 8, 2008 report, Dr. Cabayan provided an impression of internal derangement of
left knee with magnetic resonance imaging (MRI) scan showing Grade 2 to Grade 3 tear of
medial meniscus. He indicated that appellant was permanent and stationary. Subjective factors
of disability were noted to be frequent slight pain becoming moderate with exertional activities
associated with stiffness, weather effects and limitation with prolonged sitting, jumping,
hopping, squatting and the handling of stairs, ramps, inclines and hills. Objective factors of
disability included MRI scan abnormalities, the loss of articular surface on standing x-ray of the
knee and tenderness along the patellofemoral joint as well as mildly along the joint line.
Standing x-rays revealed two millimeter (mm) of articular surface left medially and four mm of
patellofemoral cartilage. Left knee examination revealed tenderness along the patellofemoral
joint with mild crepitation. Utilizing the A.M.A., Guides, Dr. Cabayan opined that appellant had
26 percent impairment to the lower extremity. He noted that appellant had 20 percent
impairment to the lower extremity under Table 17-31 and 7 percent impairment to the lower
extremity under Table 17-33, which resulted in a combined impairment of 26 percent to the
lower extremity.
In a June 16, 2008 report, an Office medical adviser reviewed the medical records,
including Dr. Cabayan’s May 8, 2008 report. He stated that the date of maximum medical
improvement was January 20, 2006. The Office medical adviser opined that the additional
medical records did not indicate a change in appellant’s previous schedule award. Utilizing the
A.M.A., Guides, he calculated appellant’s impairment under the anatomic assessment and the
diagnosed-based estimate method. The Office medical adviser stated that the anatomic
assessment method resulted in 5 percent lower extremity impairment while the diagnosed-based
estimate method resulted in 24 percent lower extremity impairment. Under the anatomic
assessment method, he opined that appellant’s pain complaints as noted in Dr. Cabayan’s May 8,
2008 report represented a Grade 2 or 61 to 80 percent sensory deficit under Tables 15-15 and
16-10. The Office medical adviser recommended a mean or 70 percent sensory deficit of the
maximal 7 percent impairment for the femoral nerve (Table 17-37), which would equate to 4.9 or
rounded up to 5 percent impairment for pain factors. He indicated that, since the records
described no atrophy or weakness of the left lower extremity and strength was noted to be a
Grade 5 involving knee flexion and extension, no further impairment could be given under this
1

In the January 14, 2008 report, Dr. Cabayan noted findings that included no patellofemoral crepitus with passive
range of motion of the left knee.

2

method. Under the diagnosed-based estimate method, the Office medical adviser found two mm
of articular cartilage preserved in the medical compartment equated to 20 percent lower
extremity impairment and four mm cartilage preserved in the patellofemoral compartment
equated to 0 percent lower extremity impairment under Table 17-31 of the A.M.A., Guides. He
noted that, since appellant had crepitation involving the patellofemoral compartment with
tenderness, this would equate to five percent impairment under the footnote attached to Table
17-31. The Office medical adviser advised that 20 percent impairment for the articular cartilage
combined with 5 percent impairment for patellofemoral pain and crepitation equated to
24 percent lower extremity impairment.
By decision dated June 25, 2008, the Office denied appellant’s claim for an increased
schedule award. It noted that he had previously received an award for 24 percent impairment of
the left lower extremity and the current medical evidence did not support an increase in the
impairment already compensated.
On August 23, 2008 appellant requested reconsideration. In a July 3, 2008 report,
Dr. Cabayan indicated that he utilized the fifth edition of the A.M.A., Guides in calculating his
impairment rating. He explained that, under Table 17-31, two mm articular surface of the knee
resulted in 20 percent lower extremity impairment. Under Table 17-33, patellar subluxation with
residual instability resulted in seven percent lower extremity impairment. Dr. Cabayan advised
that combining the 20 percent impairment with the 7 percent impairment resulted in 26 percent
lower extremity impairment. He noted that he understood how the Office medical adviser
provided five percent impairment for crepitation and chondromalacia. Dr. Cabayan further
indicated that there was good argument that Table 17-30 could also be used.
In a November 12, 2008 report, the Office medical adviser reviewed the medical records
including Dr. Cabayan’s July 3, 2008 report. He stated that the records support patellofemoral
chondromalacia with crepitation on examination but did not document patella subluxation or
patella instability. The Office medical adviser stated that the utilization of Table 17-31 to assess
five percent impairment for patellofemoral pathology with crepitation noted on examination
would be reasonable and anatomically correct based upon the documentation of the pathology.
Thus, he advised that he would affirm the previous 24 percent lower extremity impairment
calculated. The Office medical adviser noted that, while Dr. Cabayan utilized an alternative
method of calculating the award based on “patella subluxation and instability” to arrive at a
higher award, the A.M.A., Guides recommend assessing the higher award when two methods are
utilized. The records did not confirm patella subluxation or instability.
By decision dated November 26, 2008, the Office denied modification of its previous
decision. Determinative weight was accorded to the Office medical adviser’s opinion on
appellant’s impairment rating.

3

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 provides
for compensation to employees sustaining impairment from loss or loss of use of specified
members of the body. The Act, however, does not specify the manner in which the percentage
loss of a member shall be determined. The method used in making such determination is a
matter which rests in the sound discretion of the Office. For consistent results and to ensure
equal justice, the Board has authorized the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
Office as a standard for evaluation of schedule losses and the Board has concurred in such
adoption.3 As of February 1, 2001, schedule awards are calculated according to the fifth edition
of the A.M.A., Guides, published in 2000.4
The fifth edition of the A.M.A., Guides provides for three separate methods for
calculating the lower extremity permanent impairment of an individual: anatomic, functional
and diagnosis based.5 The anatomic method involves noting changes, including muscle atrophy,
nerve impairment and vascular derangement, as found during physical examination.6 The
diagnosis-based method may be used to evaluate impairments caused by specific fractures and
deformities, as well as ligamentous instability, bursitis and various surgical procedures, including
joint replacements and meniscectomies.7 The functional method is used for conditions when
anatomic changes are difficult to categorize or when functional implications have been
documented and includes range of motion, gait derangement and muscle strength.8 The
evaluating physician must determine which method best describes the impairment of a specific
individual based on patient history and physical examination.9 When uncertain about which
method to use, the evaluator should calculate the impairment using different alternatives and
choose the method or combination of methods that gives the most clinically accurate impairment

2

5 U.S.C. §§ 8101-8193.

3

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

4

See FECA Bulletin No. 01-05 (issued January 29, 2001) (schedule awards calculated as of February 21, 2001
should be evaluated according to the fifth edition of the A.M.A., Guides. Any recalculations of previous awards
which result from hearings, reconsideration or appeals should, however, are based on the fifth edition of the A.M.A.,
Guides effective February 1, 2001).
5

A.M.A., Guides 525.

6

Id.

7

Id.

8

Id.

9

Id. at 548.

4

rating.10 If more than one method can be used, the method that provides the higher impairment
rating should be adopted.11
ANALYSIS
Appellant received a schedule award on April 14, 2006 for 24 percent impairment of the
left lower extremity. He subsequently claimed an additional award based on the reports of
Dr. Cabayan, his treating physician, who stated that he had sustained a total of 26 percent
impairment of the left lower extremity. An Office medical adviser reviewed Dr. Cabayan’s
medical reports and determined that the medical evidence from Dr. Cabayan was not reliable to
support greater than the 24 percent impairment previously awarded.
Although Dr. Cabayan determined that appellant sustained a 26 percent impairment of
the left lower extremity, it is not clear how he reached this conclusion utilizing the A.M.A.,
Guides. In his May 8, 2008 report, he opined that appellant had 20 percent impairment to the
lower extremity under Table 17-31 and 7 percent impairment to the lower extremity under Table
17-33. Dr. Cabayan stated that the combined impairment resulted in 26 percent impairment to
the lower extremity. In his July 3, 2008 report, he explained that the 20 percent lower extremity
impairment under Table 17-31 was based on the two mm articular surface of the knee and the 7
percent lower extremity impairment under Table 17-33 was based on patellar subluxation with
residual instability. The Board notes that the objective evidence from Dr. Cabayan’s
examination revealed two mm cartilage interval of the articular surface left medially and four
mm of cartilage patellofemoral. Under Table 17-31, page 544 of the A.M.A., Guides, a two mm
cartilage interval of the knee results in 20 percent lower extremity impairment and a four mm
cartilage interval of the patellofemoral results in no lower extremity impairment. While
Dr. Cabayan additionally advised that appellant had patellar subluxation with residual instability,
which he rated as seven percent impairment under Table 17-33, he failed to provide sufficient
information to support this finding or to provide sufficient information based on his examination
findings upon which a finding of patellar subluxation with residual instability could be based or
rated under Table 17-33, page 546 of the A.M.A., Guides.
The Office medical adviser reviewed the physical findings as reported by Dr. Cabayan
and found that they did not support more than the 24 percent impairment previously awarded. In
his June 16, 2008 report, he stated that appellant had 5 percent lower extremity impairment under
the anatomic assessment method and 24 percent lower extremity impairment under the
diagnosed-based estimate. As the diagnosed-based estimate yielded a higher impairment rating,
the Office medical adviser properly recommended that the diagnosed-based method be
adopted.12 He concurred with Dr. Cabayan’s assessment of 20 percent impairment for arthritis
impairment based on a two mm cartilage interval of the knee under Table 17-31, page 544, of the
A.M.A., Guides. The Office medical adviser further noted that, since appellant had crepitation
involving the patellofemoral compartment with tenderness, this equated to five percent lower
10

Id. at 526.

11

Id. at 555.

12

Id.

5

extremity impairment under Table 17-31, page 544 of the A.M.A., Guides.13 In his
November 12, 2008 report, he specifically noted that the medical records failed to document
patella subluxation or patella instability to support Dr. Cabayan’s seven percent impairment
rating under Table 17-33 but supported patellofemoral chondromalacia with crepitation on
examination. Thus, the Office medical adviser concluded that utilizing Table 17-31 to assess the
five percent impairment rating for patellofemoral pathology with crepitation noted on
examination would be reasonable and anatomically correct, noting the documentation of the
pathology. He correctly combined the 20 percent impairment for the articular cartilage with
5 percent impairment for patellofemoral pain and crepitation to find 24 percent lower extremity
impairment.14 The Office medical adviser offered a reasonable explanation as to why
Dr. Cabayan’s seven percent impairment rating under Table 17-33 was not consistent with the
medical evidence of record. As such, the Board agrees that utilizing Table 17-31 to assess the
five percent impairment rating for patellofemoral pathology with crepitation is the more
appropriate rating in this case. Thus, the Board finds that the Office medical adviser’s opinion is
sufficient to establish that appellant has no more than 24 percent impairment of the left leg.
Appellant already received a schedule award for 24 percent impairment of the left lower
extremity and there is no other evidence to support a greater impairment. While he argues on
appeal that his left knee is damaged due to overcompensation of his right knee and arthritis, the
medical evidence does not support a greater impairment than that already awarded. Thus,
appellant has not established greater than 24 percent impairment of his left lower extremity for
which he received a schedule award.
CONCLUSION
The Board finds that appellant did not establish that he has more than 24 percent
permanent impairment to the left lower extremity, for which he received a schedule award.

13

This table of the A.M.A., Guides provides that five percent lower extremity impairment is given to an
individual with a history of direct trauma, a complaint of patellofemoral pain and crepitation on physical
examination but without joint space narrowing on x-rays. In this case, appellant had complaints of pain which
became moderate with exertional activities and no evidence of joint space narrowing of the patellofemoral as four
mm cartilage was preserved.
14

A.M.A., Guides 604.

6

ORDER
IT IS HEREBY ORDERED THAT the November 26, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 8, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

7