United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.O., Appellant
and
DEPARTMENT OF THE ARMY, BROOKE
ARMY MEDICAL CENTER, Houston, TX,
Employer
__________________________________________

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

Docket No. 21-1068
Issued: March 1, 2022

Case Submitted on the Record

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

JURISDICTION
On June 28, 2021 appellant filed a timely appeal from a May 28, 2021 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted October 9, 2020 employment incident.
FACTUAL HISTORY
On April 12, 2021 appellant, then a 57-year-old practical nurse, filed a traumatic injury
claim (Form CA-1) alleging that on October 9, 2020 a maintenance worker ran over her right foot
1

5 U.S.C. § 8101 et seq.

with a cart, which caused pain and swelling in her right foot as well as knee pain. On the reverse
side of the claim form, appellant’s supervisor indicated that she was injured in the performance of
duty. Appellant did not stop work.
In support of her claim, appellant submitted a medical report dated November 3, 2020 from
Dr. Melany A. Shearrer, a family medicine specialist. Dr. Shearrer related that appellant was seen
for right foot pain and a small lump on the top of her foot, which began one month prior when a
maintenance cart hit the top of her foot.
In reports dated March 10 and 12, 2021, Dr. Tamara Moseley, a podiatrist, related that a
cart ran over appellant’s foot in November 2020 and she noted that appellant had complaints of
right foot pain, swelling, and paresthesia. In the March 12, 2021 note, she related that x-rays of
appellant’s foot were negative for fracture and diagnosed right foot pain.
In a March 11, 2021 report, Dr. Bhavna Lalvani, a family medicine specialist, related that
appellant was seen for right knee pain, which appellant believed resulted from overcompensating
from a right foot injury in November 2020.
On March 30, 2021 a physical therapist requested a consultation for a provisional diagnosis
of right knee unilateral primary osteoarthritis.
OWCP received a letter dated April 8, 2021 from appellant’s co-worker, M.R., and a
separate letter from her co-worker, T.V. Both co-workers stated that they witnessed a maintenance
cart run over appellant’s right foot in October 2020. M.R. also related that appellant stated that
she was in pain and held her right leg and foot following the incident.
In a development letter dated April 26, 2021, OWCP informed appellant of the deficiencies
in her claim. It noted the type of factual and medical evidence needed and provided a questionnaire
for her completion. OWCP afforded appellant 30 days to submit the necessary evidence.
In a report dated April 27, 2021, Matthew Randel, a physical therapist, related that
appellant presented with signs and symptoms commonly associated with right foot pain , likely due
to nerve and soft tissue injury.
Appellant submitted a response to OWCP’s development questionnaire dated May 5, 2021.
She attested that she told her supervisor of her injury three or four weeks after it occurred as she
was still in pain. Appellant stated that her supervisor initially indicated that it was too late to file
a claim.
By decision dated May 28, 2021, OWCP accepted that the October 9, 2020 employment
incident occurred, as alleged; however the claim was denied as she had not submitted medical
evidence containing a medical diagnosis in connection with her accepted employment incident. It
concluded, therefore, that the requirements had not been met to establish an injury as defined by
FECA.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA 2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning FECA, that the claim was timely filed within the applicable time
limitation period of FECA, 3 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 4 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether a fact of injury has been established.
There are two components involved in establishing fact of injury. The first component is that the
employee must submit sufficient evidence to establish that he or she actually experienced the
employment incident at the time and place, and in the manner alleged. The second component is
whether the employment incident caused a personal injury and can be established only by medical
evidence.6
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence. 7 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee. 8

2

Id.

3

F.H., Docket No. 18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
4

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
5

P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
7

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019); Robert G.
Morris, 48 ECAB 238 (1996).
8

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted October 9, 2020 employment incident.
In support of her claim, appellant submitted a medical report dated November 3, 2020 from
Dr. Shearrer, which related that appellant was seen for right foot pain. Similarly, OWCP received
a medical report dated March 11, 2021 from Dr. Lalvani, which stated that appellant was seen for
right knee pain. The Board has held that pain is a symptom and not a compensable medical
diagnosis.9 As these reports did not provide a firm diagnosis causally related to the acc epted
employment incident, they are insufficient to establish appellant’s claim.
OWCP also received reports dated March 10 and 12, 2021 from Dr. Moseley, which related
that appellant had right foot pain, swelling, and paresthesia. As with pain, 10 swelling,11 and
numbness12 are also symptoms of a medical condition, not diagnoses. For this reason,
Dr. Moseley’s reports are insufficient to meet appellant’s burden of proof.
Appellant also submitted were reports from physical therapists. Certain healthcare
providers such as physician assistants, nurse practitioners, and physical therapists are not
considered physicians as defined under FECA. 13 Their opinions are therefore not considered
competent medical evidence. 14 Consequently, this evidence will not suffice for purposes of
establishing entitlement to FECA benefits. 15
As there is no medical evidence of record establishing a diagnosed medical condition
causally related to the accepted October 9, 2020 employment incident, the Board finds that
appellant has not met her burden of proof.

9

See S.L., Docket No. 19-1536 (issued June 26, 2020); D.Y., Docket No. 20-0112 (issued June 25, 2020).

10

Supra note 9.

11

M.C., Docket No. 17-0024 (issued March 22, 2018).

12

See Leonardo G. Cobero, Docket No. 99-2489 (issued June 1, 2001).

5 U.S.C. § 8101(2) provides that physician “includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law,”
20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter
2.805.3a(1) (January 2013); see also M.F., Docket No. 19-1573 (issued March 16, 2020); N.B., Docket No. 19-0221
(issued July 15, 2019); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician
assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA).
13

14

M.T., Docket No. 21-0783 (issued December 27, 2021).

15

See M.C., Docket No. 19-1074 (issued June 12, 2020).

4

Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted October 9, 2020 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the May 28, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: March 1, 2022
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.W., Appellant
and
DEPARTMENT OF THE AIR FORCE,
ROBINS AIR FORCE BASE, GA, Employer
__________________________________________

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

Docket No. 14-1531
Issued: November 3, 2014

Case Submitted on the Record

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

JURISDICTION
On June 26, 2014 appellant filed a timely appeal from a June 9, 2014 overpayment
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.
ISSUES
The issues are: (1) whether OWCP properly determined that appellant received an
overpayment of compensation in the amount of $344.69 for the period February 6 to April 5,
2014 because health benefits were not properly deducted from his compensation payments;
(2) whether OWCP properly denied waiver of the recovery of the overpayment; and (3) whether
OWCP properly directed recovery of the overpayment by deducting $344.69 from his continuing
compensation.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 16, 1995 appellant, then a 27-year-old mail clerk, sustained injury to both
knees while unloading a classified box onto a truck. She tripped and fell out of the truck.
OWCP accepted her claim for bilateral knee contusions; sprain of other specified sites of the left
knee and leg; derangement of anterior horn of the left medial meniscus; phlebitis and
thrombophlebitis of the deep vessels of the left lower extremity; left knee joint replacement;
osteoarthrosis unspecified of left lower leg; sprain of right knee, medial collateral ligament;
infection and inflammatory reaction due to left internal joint prosthesis; and streptococcus group
B infection. OWCP paid wage-loss compensation and medical benefits.
On March 22, 2014 OWCP received a health benefit election form in which appellant
asked that her benefits be changed from coverage for self to coverage for family effective
February 6, 2014, the date of her marriage.
On May 6, 2014 OWCP issued a preliminary determination finding that appellant
received an overpayment of compensation in the amount of $344.69 from February 6 to April 5,
2014 because she changed her health benefit coverage from self to family, but the deductions for
health benefits did not reflect this change. Appellant was not at fault in the creation of the
overpayment. She was advised that, if she disagreed to amount of the overpayment, she had a
right to a hearing. If she requested waiver, appellant was asked to provide financial information
within 30 days. It further informed she that if she did not provide the financial information
within 30 days, it would result in the denial of waiver. In an accompanying manual adjustment
form, OWCP noted that from February 6 to April 4, 2014, $256.90 was deducted for health
benefits under code 111; but deductions should have been made in the amount of $601.59 for
health benefits under code 112. The difference represented an overpayment of $344.69.
On May 9, 2014 appellant responded to the overpayment recovery questionnaire. She
listed monthly income of $89.00 from social security and stated that she supported her spouse.
Appellant did not provide any information about her monthly expenses. On the overpayment
action request, she requested a waiver, asked that OWCP make a decision based on the written
evidence, and stated that she contested the fact of overpayment because it occurred through no
fault of her own.
By decision dated June 9, 2014, OWCP finalized the overpayment to appellant in the
amount of $344.69. Although she was found without fault in the creation of the overpayment,
she had not provided sufficient financial documentation, for granting waiver of recovery of the
overpayment. OWCP stated that the sum of $344.69 would be withheld from her continuing
compensation payments beginning June 1, 2014, and shall be absorbed by June 28, 2014.
LEGAL PRECEDENT -- ISSUE 1
An employee entitled to disability compensation may continue his or her health benefits
under the Federal Employees Health Benefits (FEHB) program. The regulations of the Office of
Personnel Management (OPM), which administers the FEHB program, provides guidelines for

2

the registration, enrollment and continuation of enrollment for federal employees.
connection, 5 C.F.R. § 890.502(b)(1) provides:

In this

“An employee or annuitant is responsible for payment of the employee’s share of
the cost of enrollment for every pay period during which the enrollment
continues. In each pay period for which health benefits withholding or direct
payment are not made but during which the enrollment of an employee or
annuitant continues, he or she incurs an indebtedness to the United States in the
amount of the proper employee withholding required for that pay period.”2
In addition, 5 C.F.R. § 890.502(c)(1) provides:
“An agency that withholds less than or none of the proper health benefits
contributions for an individual’s pay, annuity or compensation must submit an
amount equal to the sum of the uncollected deductions.3 The Board has
recognized that, when an under withholding of health insurance premiums is
discovered, the entire amount is deemed an overpayment of compensation
because OWCP must pay the full premium to OPM when the error is
discovered.”4
ANALYSIS -- ISSUE 1
The Board finds that appellant received an overpayment of compensation in the amount
of $344.69 for the period February 6 to April 5, 2014. Appellant changed her Federal Health
Benefits enrollment from self to family health insurance coverage effective as of the date of her
marriage on February 6, 2014. The codes for withdrawing her health insurance premiums
changed from 111 to 112. Deductions from February 6 to April 5, 2014 were made in the
amount of $256.90 under code 111 (self), but should have been made in the amount of $601.69
under code 112 (family). The difference in the under deduction of her premium created an
overpayment of $344.69. When an under withholding of premiums is discovered, the amount is
deemed an overpayment of compensation to the recipient. OWCP must pay the full amount of
the premium to OPM when the error is discovered.5 Because of the under deduction of health
benefit premiums to reflect her coverage under code 112 for family this created an overpayment
of compensation in the amount of $344.69.
LEGAL PRECEDENT -- ISSUE 2
Section 8129 of FECA provides that an overpayment of compensation shall be recovered
by OWCP unless incorrect payment has been made to an individual who is without fault and
when adjustment or recovery would defeat the purpose of FECA or would be against equity and
2

5 C.F.R. § 890.502(b)(1).

3

See E.G., Docket No. 13-989 (issued December 11, 2013); 5 U.S.C. § 890.502.

4

James Lloyd Otte, 48 ECAB 334 (1997); see also D.D., Docket No. 14-572 (issued June 9, 2014).

5

Id., see also Keith H. Mapes, 56 ECAB 130 (2004).

3

good conscience.6 Section 10.438 of OWCP regulations provide that the individual who
received the overpayment is responsible for providing information about income, expenses and
assets as specified by OWCP. This information is needed to determine whether or not recovery
of an overpayment would defeat the purpose of FECA or be against equity and good conscience.7
Failure to submit the requested information within 30 days of the request shall result in denial of
waiver.8
ANALYSIS -- ISSUE 2
OWCP found appellant without fault in the creation of the overpayment. Waiver may be
considered and repayment is still required unless adjustment or recovery of the overpayment
would defeat the purpose of FECA or be against equity and good conscience.9 Appellant,
however, had the responsibility to provide complete financial information to OWCP10 but failed
to do so.11
In its preliminary determination dated May 6, 2014, OWCP clearly explained the
importance of providing the requested financial information. It advised appellant that it would
deny waiver if she failed to furnish the requested financial information within 30 days.
Appellant only listed $89.00 for income from social security. She did not include her wage-loss
benefits under FECA as a part of her income. Appellant did not provide any information with
regard to her monthly expenses or any supporting documentation. As a result, OWCP did not
have the necessary financial information to determine if recovery of the overpayment would
defeat the purpose of FECA or if recovery would be against equity and good conscience.
Because appellant did not submit the financial information required under section 10.438 of
OWCP’s regulations, it properly denied waiver of recovery of the overpayment.
6

5 U.S.C. § 8129.

7

Recovery of an overpayment will defeat the purpose of FECA if such recovery would cause hardship to a
currently or formerly entitled beneficiary because: (a) the beneficiary from whom OWCP seeks recovery needs
substantially all of his or her current income (including compensation benefits) to meet current or ordinary and
necessary living expenses; and (b) the beneficiary’s assets do not exceed a specified amount as determined by
OWCP from data furnished by the Bureau of Labor Statistics. 20 C.F.R. § 10.436. Recovery of an overpayment is
considered to be against equity and good conscience when an individual who received an overpayment would
experience severe financial hardship attempting to repay the debt; and when an individual, in reliance on such
payments or on notice that such payments would be made, gives up a valuable right or changes his or her position
for the worse. 20 C.F.R. § 10.437. OWCP procedures provide that the assets must not exceed a resource base of
$4,800.00 for an individual or $8,000.00 for an individual with a spouse or dependent plus $960.00 for each
additional dependent. Federal (FECA) Procedure Manual, Part 6 -- Debt Management, Initial Overpayment Actions,
Chapter 6.200.6(a) (June 2009); see W.F., 57 ECAB 705 (2006).
8

20 C.F.R. § 10.438(b).

9

Id.

10

Id. at 10.438; see also K.P., Docket No. 12-1450 (issued April 4, 2013).

11

On appeal, appellant submitted financial documents. As the Board’s review is limited to evidence in the case
record at the time OWCP made its decision over which the Board has jurisdiction, the Board cannot review this
evidence submitted for the first time on appeal. D.B., Docket No. 12-1653 (issued March 26, 2013); 20 C.F.R.
§ 501.2(c)(1).

4

LEGAL PRECEDENT -- ISSUE 3
Section 10.441 of OWCP’s regulations provide that, when an overpayment has been
made to an individual who is entitled to further payments, the individual shall refund to OWCP
the amount of the overpayment as soon as the error is discovered or his or her attention is called
to the same. If no refund is made, OWCP shall decrease later payments of compensation, taking
into account the probable extent of future payments, the rate of compensation, the financial
circumstances of the individual and any other relevant factors, so as to minimize hardship.12
ANALYSIS -- ISSUE 3
OWCP determined that the entire amount of the overpayment, $344.69, would be
deducted from appellant’s continuing compensation payment. In making this determination, it
found that appellant failed to submit supporting financial documentation. Because appellant
failed to submit the requested financial documentation, OWCP did not abuse its discretion in
withholding $344.69 from appellant’s continuing compensation benefits. The Board will affirm
the recovery of the overpayment.
CONCLUSION
The Board finds that OWCP properly determined that appellant received an overpayment
of compensation in the amount of $344.69 for the period February 6 to April 5, 2014 because
health benefits were not properly deducted. It properly denied waiver of the recovery of the
overpayment and required recovery by deducting $344.69 from appellant’s continuing
compensation.

12

The Board has jurisdiction to review the issue of recovery of an overpayment in those cases where OWCP
seeks recovery from continuing compensation benefits. See Desiderio Martinez, 55 ECAB 245, 251 (2004); see
also J.M., Docket No. 10-1913 (issued July 11, 2011).

5

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated June 9, 2014 is affirmed.
Issued: November 3, 2014
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
_______________________________________________
M.S., Appellant
and
DEPARTMENT OF TRANSPORTATION, FEDERAL
AVIATION ADMINISTRATION, Washington, DC,
Employer
_______________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

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) Docket No. 12-1276
) Issued: November 9, 2012
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Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On May 24, 2012 appellant filed a timely appeal of the May 2, 2012 merit decision of the
Office of Workers’ Compensation Programs (OWCP) which denied her claim for a schedule
award. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2
ISSUE
The issue is whether appellant has a ratable impairment of her upper and lower
extremities.

1
2

5 U.S.C. §§ 8101-8193.

The record includes evidence received after the May 2, 2012 decision. As this evidence was not part of the
record when OWCP issued its May 2, 2012 final decision, the Board is precluded from considering it for the first
time on appeal. 20 C.F.R. § 501.2(c)(1).

FACTUAL HISTORY
Appellant, a 77-year-old computer specialist, has an accepted claim for aggravation of
cervical and lumbosacral radiculopathy which arose on January 30, 2007. She subsequently filed
a claim for a schedule award (Form CA-7). However, appellant did not submit an impairment
rating with her claim. On June 12, 2009 OWCP contacted her physician and asked that she
provide an impairment rating in accordance with the sixth edition of the American Medical
Association, Guides to the Evaluation of Permanent Impairment (2008). It did not receive a
reply.
On January 17, 2012 OWCP advised appellant of the necessity of submitting an
impairment rating under the A.M.A., Guides (6th ed. 2008). Appellant forwarded OWCP’s
January 17, 2012 correspondence to several physicians but none submitted an impairment rating
on her behalf.
In a February 6, 2012 form report, appellant’s chiropractor, Dr. Anthony Holvick, stated
that he had treated appellant for injuries sustained on January 30, 2007 which included cervical
disc herniation at C5-6, lumbar disc herniation at L5-S1, right C6 radiculopathy and bilateral
L5-S1 radiculopathy.3
By decision dated May 2, 2012, OWCP denied appellant’s claim for a schedule award.
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.4 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 A.M.A., Guides as the appropriate standard for
evaluating schedule losses.5 Effective May 1, 2009, schedule awards are determined in
accordance with the sixth edition of the A.M.A., Guides.6

3

5 U.S.C. § 8101(2) of FECA provides that the term “physician” includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. The term “physician” includes chiropractors only to the extent that their reimbursable services are
limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by
x-ray to exist and subject to regulations by the Secretary. See Paul Foster, 56 ECAB 208 (2004).
4

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) and for a 100 percent loss of use of a leg, an employee shall receive 288 weeks’ compensation. Id. at
§ 8107(c)(2).
5

20 C.F.R. § 10.404.

6

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).

2

No schedule award is payable for a member, function or organ of the body that is not
specified in FECA or the implementing regulations.7 Neither FECA nor the regulations provide
for the payment of a schedule award for the permanent loss of use of the back/spine or the body
as a whole.8 However, a schedule award is permissible where the employment-related back
condition affects the upper and/or lower extremities.9
The sixth edition of the A.M.A., Guides (2008) provides a specific methodology for
rating spinal nerve extremity impairment.10 It was designed for situations where a particular
jurisdiction, such as FECA, mandated ratings for extremities and precluded ratings for the
spine.11 The impairment is premised on evidence of radiculopathy affecting the upper and/or
lower extremities.12
ANALYSIS
Appellant bears the burden of establishing her entitlement to benefits under FECA.13
OWCP advised her and her physician of the necessity of submitting an impairment rating in
accordance with the A.M.A., Guides (6th ed. 2008). The requested medical evidence was not
received. Therefore, OWCP properly denied appellant’s claim for a schedule award.
In a February 6, 2012 certification, the treating physician, Dr. Holvick, did not provide an
impairment rating or identify any specific findings that the district medical adviser (DMA) might
otherwise rely upon to determine the existence or extent of impairment. Before a case can be
referred to the DMA, the attending physician should describe the impairment in sufficient detail
to permit clear visualization of the impairment and the restrictions and limitations which have
resulted.14 The record as of May 2, 2012 did not include a current medical evaluation that would
support appellant’s claim for a schedule award. Accordingly, OWCP properly denied her claim.
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.

7

W.C., 59 ECAB 372, 374-75 (2008); Anna V. Burke, 57 ECAB 521, 523-24 (2006).

8

5 U.S.C. § 8107(c); 20 C.F.R. § 10.404(a); see Jay K. Tomokiyo, 51 ECAB 361, 367 (2000).

9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.6a(3).
10

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

11

Id.

12

Id.

13

20 C.F.R. § 10.115(f).

14

Supra note 10 at Chapter 3.700.3a(2).

3

CONCLUSION
Appellant has not established that she has a ratable impairment of the upper and lower
extremities.
ORDER
IT IS HEREBY ORDERED THAT the May 2, 2012 decision of the Office of Workers’
Compensation Programs is affirmed.15
Issued: November 9, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

15

Appellant may request a schedule award or increased schedule award based on evidence of new exposure or
medical evidence showing progression of an employment-related condition resulting in permanent impairment or
increased impairment.

4


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

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

Docket No. 09-412
Issued: September 2, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 24, 2008 appellant filed a timely appeal from an August 19, 2008 decision
of the Office of Workers’ Compensation Programs which denied her request for merit review.
Because more than one year has elapsed between the last merit decision dated May 16, 2007 and
the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s claim
pursuant to 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether the Office properly refused to reopen appellant’s case for further
consideration of the merits pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
On June 24, 2002 appellant, then a 57-year-old distribution clerk, filed a traumatic injury
claim alleging that her asthma was exacerbated due to a workplace exposure to an Ethiopian
parcel. The employing establishment controverted her claim noting that she had preexisting
asthma and that she felt that all Ethiopian packages should be held responsible for any
respiratory problems. Appellant stated that on January 7, 2002 she opened a safe containing an

envelope from Ethiopia which triggered her asthma. She had difficulty breathing, a headache
and coughing.
The Office requested additional factual and medical evidence in a letter dated
July 5, 2002.
In a report dated July 25, 2002, Dr. Leslie A. Oshita, a physician Board-certified in both
internal and preventative medicine, noted appellant’s history of injury and symptoms. He stated
that appellant attributed the exacerbation of her asthma symptoms due to stress from her claim
for cellulitis, possible anthrax exposure, physical exertion from throwing mail and exposure to
cold air. Dr. Oshita stated, “It has been my opinion that her asthma has been aggravated by her
work environment and/or physical demands of the tasks required by her supervisor.”
By decision dated August 8, 2002, the Office denied appellant’s claim finding that she
had not established that she had been exposed to any chemicals. Appellant requested an oral
hearing on August 30, 2002. She submitted a report dated September 17, 2002 from Dr. Oshita
opining that it was more probable than not that appellant’s condition was caused or aggravated
by her work activities and environment. Dr. Oshita stated that the fact that appellant required
treatment for her asthma while at work indicated that occupational factors aggravated her
condition. In a report dated March 4, 2003, he opined that appellant had sustained a workrelated aggravation of her asthma. Dr. Oshita noted that seemingly benign substances such as
food starch can be problematic for persons with respiratory illnesses.
Appellant testified at the oral hearing on March 24, 2003. By decision dated July 8,
2003, the hearing representative affirmed the August 8, 2002 decision finding that Dr. Oshita’s
reports were not sufficient to establish her claim.
Appellant requested reconsideration on July 28, 2004. She asserted that she believed that
her exposures to Ethiopian parcels worsened her asthma and led to increased doses of prednisone
which resulted in high blood pressure, diabetes and severe osteoarthritis. By decision dated
July 23, 2004, the Office reviewed the merits of appellant’s claim and denied modification of the
prior decisions.
Appellant again requested reconsideration on November 30, 2004. In a report dated
November 8, 2004, Dr. Oshita noted that appellant continued to receive treatment for a severe
asthma attack that she experienced on April 26, 2000. He stated that appellant had developed
complications from prolonged steroid containing medications. Dr. Oshita opined that appellant’s
asthma had been permanently aggravated by her workplace exposures. On November 18, 2004
Dr. Robert Sachs, a Board-certified allergist, noted that appellant had significant asthma
beginning in 1980. He noted that appellant was exposed to a white powder in 2000 and to a
strong odor in 2002. Dr. Sachs stated that appellant’s systemic steroid requirement had risen and
opined, “[I]t is certainly possible that what has happened with [appellant] is not just a natural
progression of her preexisting bronchial asthma … but, rather, an accelerated worsening of the
bronchial asthma due to persistent bronchial hyperreactivity and remodeling of her airways….”
By decision dated April 8, 2005, the Office reviewed the merits of appellant’s claim and
noted that it had accepted that appellant was exposed to an envelope from Ethiopia on January 7,

2

2002, but the evidence did not establish that the envelope was broken, damaged, leaky or
contained chemical fumes. It found that the evidence did not establish that appellant’s
respiratory condition was causally related to the January 7, 2002 exposure.
Appellant requested reconsideration on March 31, 2006 and advised that she was
submitting additional factual evidence in support of her claim. By decision dated May 12, 2006,
the Office reviewed the merits of appellant’s claim and denied modification of its prior decision.
On May 9, 2007 appellant requested reconsideration. In a report dated May 24, 2006,
Dr. Thomas Kreck, a Board-certified pulmonologist, diagnosed severe and persistent asthma
which was steroid dependent. He stated that appellant was unable to work. Dr. Kreck
concluded, “She believes that her prior symptoms of very mild intermittent asthma greatly
increased after dust exposure at work.” Dr. Maurice Franco, a Board-certified pulmonologist,
submitted pulmonary function tests dated April 12, 2006.
By decision dated May 16, 2007, the Office denied modification of its prior decisions
finding that appellant failed to submit the necessary medical opinion evidence establishing a
causal relationship between her accepted employment exposure and her diagnosed condition.
Appellant requested reconsideration on May 13, 2008 and submitted additional medical
evidence. She alleged that her asthma worsened due to exposure to dust from Ethiopian parcels.
Since her employment exposures, her physicians prescribed prednisone to treat her asthma which
had led to high blood pressure, diabetes, sleep apnea and arthritis. In a January 9, 2008 note,
Dr. Kreck stated that appellant’s condition had worsened and required additional therapy.
Appellant resubmitted Dr. Franco’s April 12, 2006 test results. In a note dated January 10, 2008,
Dr. R.S. Rajah, a Board-certified pulmonologist, opined that appellant was totally disabled due to
chronic obstructive pulmonary disease, arthritis and diabetes.
By decision dated August 19, 2008, the Office denied reopening appellant’s claim for
reconsideration of the merits, finding the evidence submitted was not relevant to the issue in her
claim, a lack of medical opinion evidence establishing a causal relationship between her accepted
exposure and her diagnosed condition.1
On appeal to the Board, appellant disagreed with the Office’s decision and noted that she
retired on disability on December 11, 2003. She reiterated that she was prednisone dependant
and that this had led to diabetes, hypertension, sleep apnea, enlarged heart, high cholesterol,
arthritis, stomach pain and chronic obstructive pulmonary disease.
LEGAL PRECEDENT
To require the Office to reopen a case for merit review under section 8128(a) of the
Federal Employees’ Compensation Act,2 the Office’s regulations provide that the evidence or
1

Following the Office’s August 19, 2008 decision, appellant submitted additional new evidence. As the Office
did not consider this evidence in reaching a final decision, the Board may not review the evidence for the first time
on appeal. See 20 C.F.R. § 501.2(c).
2

5 U.S.C. §§ 8101-8193, § 8128(a).

3

argument submitted by a claimant must: (1) show that the Office erroneously applied or
interpreted a specific point of law; (2) advance a relevant legal argument not previously
considered by the Office; or (3) constitute relevant and pertinent new evidence not previously
considered by the Office.3 When a claimant fails to meet one of the above standards, the Office
will deny the application for reconsideration without reopening the case for review on the
merits.4
ANALYSIS
Appellant requested reconsideration of the Office’s May 16, 2007 merit decision on
May 13, 2008. She claimed a permanent aggravation of her asthma due to exposure to an
envelope from Ethiopia on January 7, 2002. The Office found that the evidence did not establish
that the envelope was broken, damaged, leaky or contained chemical fumes. It denied
appellant’s claim as the medical evidence did not establish a causal relationship between her
accepted exposure and her asthma condition.
In support of her request for reconsideration, appellant submitted a brief note dated
January 9, 2008 from Dr. Kreck, a Board-certified pulmonologist, who merely stated that
appellant’s condition had worsened over the prior six months and required additional therapy.
Dr. Kreck did not address the underlying issue in the case of causal relationship. The note
concerning ongoing treatments is not relevant to the issue before the Office. In a note dated
January 10, 2008, Dr. Rajah, a Board-certified pulmonologist, opined that appellant was totally
disabled due to chronic obstructive pulmonary disease, arthritis and diabetes. This note also fails
to address the issue of causal relationship and is not relevant to the reasons for which the Office
denied appellant’s claim.
Appellant also resubmitted the April 12, 2006 test results. These test results are not
sufficient to require the Office to reopen appellant’s claim for consideration of the merits as they
were already considered by the Office in reaching the May 16, 2007 merit decision and are
therefore repetitious.5
Regarding appellant’s contentions on appeal, the Board notes that it does not have
jurisdiction to address any consequential injury resulting from her treatment with prednisone. As
her asthma condition has not been accepted by the Office, it has not adjudicated this issue.6
CONCLUSION
The Board finds that appellant has failed to submit the necessary relevant and pertinent
new evidence which would require the Office to reopen her claim for consideration of the merits.

3

20 C.F.R. § 10.606(b)(2).

4

Id. at § 10.608(b).

5

See Eugene F. Butler, 36 ECAB 393, 398 (1984).

6

20 C.F.R. § 501.2(c).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated August 19, 2008 is affirmed.
Issued: September 2, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


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

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

Docket No. 21-0979
Issued: February 15, 2022

Case Submitted on the Record

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

JURISDICTION
On June 14, 2021 appellant filed a timely appeal from a May 5, 2021 merit decision of the
Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. § § 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case. 2
ISSUE
The issue is whether appellant has met his burden of proof to establish a traumatic injury
in the performance of duty on February 18, 2020, as alleged.

1
2

5 U.S.C. § 8101 et seq.

The Board notes that, following the May 5, 2021 decision, OWCP received additional evidence and appellant
submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: The Board’s review of
a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence
not before OWCP will not be considered by the Board for the first time on appeal. 20 C.F.R. § 501.2(c)(1). Thus, the
Board is precluded from reviewing this additional evidence for the first time on appeal. Id.

FACTUAL HISTORY
On March 14, 2021 appellant, then a 59-year-old rural carrier associate, filed a traumatic
injury claim (Form CA-1) alleging that at approximately 6:00 p.m. on February 18, 2020 he injured
his head and lower back when he fell into a hole in a yard of a customer while in the performance
of duty. He explained that he was using his telephone as a flashlight while carrying a package to
a house for delivery. On the reverse side of the claim form, appellant’s supervisor checked a box
marked “No” in response to whether he was injured in the performance of duty. He further
controverted the claim, asserting that appellant had not reported the inciden t until 13 months later
and did not submit any medical documentation. Appellant did not stop work.
In a development letter dated March 29, 2021, OWCP informed appellant of the
deficiencies of his claim. It advised him of the type of factual and medical evidence necessary to
establish his claim and provided a factual questionnaire for his completion. OWCP afforded
appellant 30 days to provide the necessary information. No further evidence was received.
By decision dated May 5, 2021, OWCP denied appellant’s traumatic injury claim, finding
that the evidence of record was insufficient to establish that the February 18, 2020 employment
incident occurred as alleged. It concluded, therefore, that the requirements had not been met to
establish an injury as defined by FECA.
LEGAL PRECEDENT
An employee seeking benefits under FECA 3 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was timely filed within the applicable
time limitation period of FECA, 4 that an injury was sustained in the performance of duty as alleged,
and that any disability or medical condition for which compensation is claimed is causally related
to the employment injury. 5 These are the essential elements of each and every compensation claim,
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease. 6
To determine if an employee has sustained a traumatic injury in the performance of duty,
OWCP begins with an analysis of whether fact of injury has been established. 7 Generally, fact of
injury consists of two components that must be considered in conjunction with one another. First,
the employee must submit sufficient evidence to establish that he or she actually experienced the
3

Supra note 1.

4

S.S., Docket No. 19-1815 (issued June 26, 2020); S.B., Docket No. 17-1779 (issued February 7, 2018); Joe D.
Cameron, 41 ECAB 153 (1989).
5

M.H., Docket No. 19-0930 (issued June 17, 2020); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40 ECAB
312 (1988).
6

S.A., Docket No. 19-1221 (issued June 9, 2020); L.M., Docket No. 13-1402 (issued February 7, 2014); Delores C.
Ellyett, 41 ECAB 992 (1990).
7

S.C., Docket No. 20-0733 (issued August 3, 2021); E.M., Docket No. 18-1599 (issued March 7, 2019); T.H., 59
ECAB 388, 393-94 (2008).

2

employment incident at the time and place, and in the manner alleged. 8 Second, the employee
must submit sufficient evidence to establish that the employment incident caused a personal
injury.9
An injury does not have to be confirmed by eyewitnesses in order to establish the fact that
an employee sustained an injury in the performance of duty, but the employee’s statements must
be consistent with the surrounding facts and circumstances and his or her subsequent course of
action.10 The employee has not met his or her burden of proof to establish the occurrence of an
injury when there are inconsistencies in the evidence that cast serious doubt upon the validity of
the claim. Such circumstances as late notification of injury, lack of confirmation of injury,
continuing to work without apparent difficulty following the alleged injury, and failure to obtain
medical treatment may, if otherwise unexplained, cast sufficient doubt on an employee’s
statements in determining whether a prima facie case has been established.11 An employee’s
statements alleging that an injury occurred at a given time and in a given manner is of great
probative value and will stand unless refuted by strong or persuasive evidence.12
ANALYSIS
The Board finds that appellant has not met his burden of proof to establish that a traumatic
injury occurred in the performance of duty on February 18, 2020, as alleged.
On March 14, 2021 appellant filed a traumatic injury claim alleging that he injured his head
and lower back when he fell into a hole in a customer’s yard while in the performance of duty on
February 18, 2020. The Board finds that appellant’s description of the traumatic incident is
imprecise and vague and fails to provide any specific detail or evidence establishing that the
February 18, 2020 incident occurred as alleged. 13 The alleged mechanism of injury could not be
determined as essential information was not provided. 14 Furthermore, on the reverse side of the
claim form the employing establishment checked a box marked “No” in response to whether he
was injured in the performance of duty, noting that appellant failed to report the injury for over a
year.
In its March 29, 2021 development letter, OWCP advised appellant of the factual
information needed to establish his claim and attached a factual questionnaire regarding the
8

R.K., Docket No. 19-0904 (issued April 10, 2020); Elaine Pendleton, 40 ECAB 1143 (1989).

9

Y.D., Docket No. 19-1200 (issued April 6, 2020); John J. Carlone, 41 ECAB 354 (1989).

10

M.F., Docket No. 18-1162 (issued April 9, 2019); Charles B. Ward, 38 ECAB 667, 67-71 (1987).

11

J.P., Docket No. 21-0310 (issued August 13, 2021); L.D., Docket No. 16-0199 (issued March 8, 2016); Betty J.
Smith, 54 ECAB 174 (2002).
12

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

13

See J.B., Docket No. 19-1487 (issued January 14, 2020); W.C., Docket No. 18-1651 (issued March 7, 2019); see
also C.M., Docket No. 17-0627 (issued June 28, 2017).
14

S.R., Docket No. 20-1304 (issued April 8, 2021).

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circumstances surrounding the alleged traumatic injury for his completion. However, appellant
did not respond within the allotted time period. By failing to respond to the questionnaire, he did
not sufficiently explain circumstances surrounding his alleged injury. 15 These circumstances,
which include vague descriptions of the incident, late notification of injury, and lack of
confirmation of injury cast serious doubt on the validity of the claim. 16
As the evidence of record is insufficient to establish that the incident occurred as alleged,
the Board finds that appellant 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(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 traumatic
injury in the performance of duty on February 18, 2020, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the May 5, 2021 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 15, 2022
Washington, DC

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

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

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

15

R.B., Docket No. 19-1026 (issued January 14, 2020); M.S., Docket No. 18-0059 (issued June 12, 2019); John R.
Black, 49 ECAB 624 (1998); Judy Bryant, 40 ECAB 207 (1988); Martha G. List, 26 ECAB 200 (1974).
16

See M.E., Docket No. 20-1336 (issued July 2, 2021); V.J., Docket No. 19-1600 (issued March 13, 2020); E.C.,
Docket No. 19-0943 (issued September 23, 2019).

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Edison, NJ, Employer
__________________________________________

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Appearances:
Appellant, pro se
No appearance, for the Director

Docket No. 09-882
Issued: June 22, 2009

Oral Argument May 5, 2009

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

JURISDICTION
On February 5, 2009 appellant filed a timely appeal from a February 8, 2008 merit
decision of the Office of Workers’ Compensation Programs denying her traumatic injury claim.1
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant has established that she sustained an injury on August 1,
2003 in the performance of duty.
FACTUAL HISTORY
On August 13, 2003 appellant, then a 41-year-old rural carrier, filed a claim alleging that
on August 1, 2003 she sustained pain in her scapula, shoulder and right arm delivering mail. She
noted that she had sustained three prior work injuries. The Office assigned the case file number
1

The Board received appellant’s appeal on February 17, 2009 by letter postmarked February 5, 2009.

xxxxxx260. In a statement accompanying her claim, appellant related that she experienced
significant pain in her right shoulder on August 1, 2003 delivering mail.
The record indicates that appellant sustained a right shoulder injury on March 19, 1992 in
file number xxxxxx256 and a right pectoral muscle tear on October 24, 1996 under file number
xxxxxx534. On January 8, 1998 she sustained impingement syndrome of the right shoulder
under file number xxxxxx869. Under file number xxxxxx776 the Office accepted appellant’s
1992 occupational disease claims for lumbar subluxation.
By decision dated April 16, 2003, the Office terminated appellant’s compensation and
authorization for medical benefits in file number xxxxxx776. It noted that it had accepted that in
1992 she sustained lumbar subluxation due to factors of her federal employment. The Office
found that appellant had no further residuals of her work injury based on the findings of
Dr. Howard Zeidman, a Board-certified orthopedic surgeon and impartial medical examiner.
A July 3, 2002 magnetic resonance imaging (MRI) scan of the cervical spine showed a
left paracentral disc osteophyte and some foraminal narrowing at C6-7. A July 3, 2002 MRI
scan of the right shoulder revealed some mild tendinopathy. An August 3, 2003 MRI scan of
appellant’s cervical spine revealed a left posterolateral disc bulge at C6-7 and a broad-based
posterior disc bulge at C5-6. An August 3, 2003 MRI scan of the right shoulder revealed a tear
of the anterior mid labrum and tendinopathy of the supraspinatus tendon.
In a report dated August 19, 2003, Dr. Brian J. Sennett, a Board-certified orthopedic
surgeon, reviewed the results of the August 3, 2003 MRI scan and diagnosed cervical
radiculopathy.2
In a report dated October 24, 2003, Dr. David H. Kim, a Board-certified physiatrist,
summarized his treatment of appellant since August 22, 2002 for pain in her neck, right shoulder,
elbow, chest and low back after she injured her right shoulder in 1992 after carrying a heavy
object. He described her symptoms of pain which he found “appeared to be compensatory
mechanisms for her underlying problems, aggravated by repetitive motions at work, heavy
lifting, carrying and loading.” Dr. Kim stated:
“[Appellant] reinjured herself in early August 2003 and presented with severe
pain in the neck and right scapula and arm, left scapula and shoulder, and low
back. A right shoulder MRI [scan] on [August] 3[,] [20]03 revealed an anterior
mid labral tear and supraspinatus tendinopathy. A repeat EMG [electromyogram]
revealed right C5-7 radiculopathy and suprascapular entrapment …. I feel that
[appellant’s] reinjury in August was the result of a long history of poorly
managed prior injuries, which accumulated to result in a severe condition. I am in
agreement with Dr. Sennett who felt a lot of her problems are related to her
cervical spine, however she also has a regional myofascial, and possibly
neuropathic pain syndrome at this point.”
2

On August 28, 2003 Dr. Michael J. Miranda, a chiropractor, indicated that he had treated appellant for 10 years
for an employment-related neck and back injury. He opined that she was unable to work from August 3 to
September 23, 2003. Dr. Miranda submitted form reports dated October 3 through December 12, 2003.

2

By decision dated January 27, 2004, the Office denied appellant’s claim on the grounds
that the medical evidence was insufficient to establish that she sustained an injury causally
related to factors of her federal employment. It indicated that it was adjudicating her claim as an
occupational disease as she attributed her condition to events occurring over the course of more
than one workday.
In a decision dated March 31, 2004, issued under file number xxxxxx776, a hearing
representative vacated the Office’s April 16, 2003 termination of benefits. She discussed
appellant’s history of prior employment injuries to her right shoulder in file numbers xxxxxx256,
xxxxxx534 and xxxxxx869. The hearing representative noted that she had filed a traumatic
injury claim on August 1, 2003 which the Office assigned file number xxxxxx260 and
adjudicated as an occupational disease claim. She instructed the Office to combine all of
appellant’s case under one file number and to refer her for an impartial medical examination to
determine whether she had any further employment-related condition or disability.
On June 23, 2004 the Office referred appellant, together with the case record and a
statement of accepted facts, to Dr. George Glenn, a Board-certified orthopedic surgeon, for an
impartial medical examination. In the statement of accepted facts, the Office noted that on
August 7, 2003 appellant related that she was in pain because she did not have a nerve block
injection. On July 20, 2004 Dr. Glenn reviewed the medical evidence of record. He noted that
in a report dated October 24, 2003, Dr. Kim mentioned appellant reinjuring herself in
August 2003 and that she told him that she tore her glenoid labral trying to pull bundles of mail
out of a mailbox while in her vehicle. Appellant’s symptoms increased significantly after the
mailbox incident. Dr. Glenn found no evidence of any continuing diagnoses due to appellant’s
accepted work injuries. He opined that appellant could work full time but might need restrictions
pending the results of further testing.
By decision dated August 5, 2004, the Office terminated appellant’s compensation under
file number xxxxxx776 after finding that Dr. Glenn’s opinion constituted the weight of the
evidence and established that her injury-related disability had ceased.
On August 24, 2004 appellant requested an oral hearing. In a report dated May 5, 2004,
Dr. Sennett diagnosed impingement syndrome of the right shoulder. He noted that appellant
experienced a sharp pain in her shoulder delivering mail on August 1, 2003 and that a subsequent
MRI scan showed a labrum tear. Dr. Sennett found that appellant’s injury was employment
related and required surgery. On October 15, 2004 he performed a subacromial decompression
of the right shoulder with a debridement of the rotator cuff. On January 5, 2005 Dr. Sennett
diagnosed impingement syndrome and found that appellant could not work from March 17, 2004
to January 10, 2005. He released her to resume light-duty employment on January 10, 2005.
By decision dated November 3, 2005, the hearing representative affirmed the August 5,
2004 decision. She found that Dr. Glenn’s report established that appellant had no further
disability or need for medical treatment due to her work injuries.
On October 28, 2006 appellant requested reconsideration under file number xxxxxx260.
She asserted that she filed a traumatic injury claim in August 2003 but the Office adjudicated it
as an occupational disease. Appellant related that, at her hearing in file number xxxxxx776, the

3

hearing representative indicated she would also review her case under number xxxxxx260 but
then failed to render a decision in the case.
On December 14, 2006 the Office combined file numbers xxxxxx669 and xxxxxx260
into file number xxxxxx776. In a decision dated December 28, 2006, an Office hearing
representative noted that Office did not double the case files as instructed and also found that the
prior hearing representative failed to address the Office’s January 27, 2004 decision, issued
under file number xxxxxx260. The hearing representative set aside the November 3, 2005
decision. He affirmed the August 5, 2004 decision terminating appellant’s compensation. The
hearing representative however, set aside the January 27, 2004, decision denying her claim for a
traumatic injury on August 1, 2003 and remanded the case for further development. He noted
that appellant related that she experienced pain in her right shoulder on August 1, 2003
delivering mail. The hearing representative found that the Office erred in changing appellant’s
claim for a traumatic injury on August 1, 2003 to an occupational disease claim. He noted that
she underwent arthroscopic surgery of the right shoulder on October 15, 2004. The hearing
representative instructed the Office to request a supplemental report from
Dr. Glenn regarding whether appellant sustained a cervical or shoulder condition due to the
August 2003 employment injury and whether the surgery on October 15, 2004 resulted from the
incident.3
Dr. Glenn declined to provide a supplemental medical report without a repeat
examination.4 On November 15, 2007 the Office determined that a conflict existed between
Drs. Sennett and Glenn and referred her to Dr. Zohar Stark, a Board-certified orthopedic
surgeon, for an impartial medical examination.
In a report dated November 27, 2007, Dr. Stark noted that in August 2003 appellant “was
pushing mail into a box and felt a sharp stabbing pain in her right shoulder.” Appellant had
arthroscopic surgery in October 2004 and returned to work in January 2005. Dr. Stark reviewed
the medical records. He stated:
“The medical evidence does not demonstrate that [appellant] sustained any
injuries to her cervical spine or her right shoulder as a result of the August 2003
work injury. [She] was diagnosed with pathology regarding her right shoulder
and Dr. Sen[n]et, as early as December of 1996, established a diagnosis or
impingement syndrome of the right shoulder with AC [acromioclavicular] joint
arthropathy. Although [appellant] underwent an MRI [scan] of her right shoulder
3

On February 16, 2007 under file number xxxxxx776, the Office accepted thoracic or lumbosacral neuritis or
radiculitis, thoracic spine pain, an open dislocation of cervical vertebra, myalgia and myositis, a closed dislocation
of unspecified cervical vertebra and a closed dislocation of lumbar vertebra.
4

In a memorandum to file dated October 4, 2007, the Office noted that it initially made appellant and
appointment with Dr. Glenn but later requested a supplemental report without an examination. It received no
response and so cancelled the appointment. The Office indicated that Dr. Glenn’s office told them the physician
would not review records without performing a second examination. Dr. Glenn submitted an unsolicited report
dated October 4, 2007, which it excluded from the record.

4

in August 2003, which did report a tear of the mid-portion of the right anterior
glenoid labrum and supraspinatus tendinopathy, and that diagnosis was repeated
on the [November] 25[,] [20]03 MRI [scan], the arthroscopic surgery performed
in 2004 failed to show any evidence that such pathology existed. Furthermore,
the physical examination by Dr. Sen[n]et did not suggest such pathology. As for
[appellant’s] cervical spine, she did have a prior diagnosis of cervical
radiculopathy by EMG, which was not substantiated by any clinical findings in
the records, and my findings today do not show the cervical spine done in
August 2003 are degenerative in nature and are not post-traumatic. The shoulder
arthroscopy that was performed in October 2004 is not causally related to the
August 2003 work incident. It is further my opinion that [she] did not sustain any
disability as the result of the work injury in August 2003. She is currently
working, and she can do her regular work as a rural letter carrier with no
restrictions.”
By decision dated February 8, 2008, the Office denied appellant’s claim on the grounds
that the medical evidence failed to establish that she sustained an injury on October 1, 2003 in
the performance of duty.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act5 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.6 These are the essential
elements of each and every compensation claim regardless of whether the claim is predicated on
a traumatic injury or an occupational disease.7
To determine whether an employee sustained a traumatic injury in the performance of
duty, the Office must determine whether “fact of injury” is established. First, an employee has
the burden of demonstrating the occurrence of an injury at the time, place and in the manner
alleged, by a preponderance of the reliable, probative and substantial evidence.8 Second, the
employee must submit sufficient evidence, generally only in the form of medical evidence, to
establish a causal relationship between the employment incident and the alleged disability and/or
condition for which compensation is claimed.9 An employee may establish that the employment

5

5 U.S.C. §§ 8101-8193.

6

Anthony P. Silva, 55 ECAB 179 (2003).

7

See Ellen L. Noble, 55 ECAB 530 (2004).

8

Delphyne L. Glover, 51 ECAB 146 (1999).

9

Gary J. Watling, 52 ECAB 278 (2001); Shirley A. Temple, 48 ECAB 404, 407 (1997).

5

incident occurred as alleged, but fail to show that his or her disability and/or condition relates to
the employment incident.10
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.11 The implementing regulations states that, if
a conflict exists between the medical opinion of the employee’s physician and the medical
opinion of either a second opinion physician or an Office medical adviser, the Office shall
appoint a third physician to make an examination. This is called a referee examination and the
Office will select a physician who is qualified in the appropriate specialty and who has no prior
connection with the case.12
ANALYSIS
Appellant alleged that she sustained an injury to her right shoulder on August 1, 2003
delivering mail. She has established that the August 1, 2003 incident occurred at the time, place
and in the manner alleged. The issue, consequently, is whether the medical evidence establishes
that appellant sustained an injury as a result of this incident.
The Office complicated the proceedings by initially adjudicating appellant’s traumatic
injury claim as an occupational disease. After finding that appellant’s claim was for an
occupational disease, it denied her claim in a decision dated January 27, 2004. By decision dated
March 31, 2004, a hearing representative found that all of appellant’s claims, including her
August 1, 2003 claim for occupational disease, should be combined and the case referred for an
impartial medical examination. On July 20, 2004 Dr. Glenn performed an impartial medical
examination and found that she had no residuals from her accepted work injuries. He did not
address whether she sustained an injury on August 1, 2003. Based on Dr. Glenn’s opinion, by
decision dated August 5, 2004, the Office terminated appellant’s compensation. A hearing
representative affirmed the August 5, 2004 termination decision on November 3, 2005; however,
on December 28, 2006 another hearing representative set aside the November 3, 2005 decision.
He affirmed the Office’s August 5, 2004 termination of benefits but found that the Office erred
in adjudicating appellant’s claim for a traumatic injury on August 1, 2003 as an occupational
disease.13 The hearing representative remanded the case for the Office to obtain a supplemental
report from Dr. Glenn addressing whether she sustained a traumatic injury on August 1, 2003.
Dr. Glenn was not responsive to the Office’s request for a supplemental report. The
Office determined that a conflict existed between Drs. Sennett and Glenn and referred appellant
to Dr. Stark for an impartial medical examination. The Board finds, however, that at the time of
10

Id.

11

5 U.S.C. § 8123(a).

12

20 C.F.R. § 10.321.

13

The Board does not have jurisdiction over the Office’s termination of appellant’s compensation as it was issued
more than one year prior to the filing of this appeal to the Board. See 20 C.F.R. §§ 501.2(c) and 501.3.

6

the Office’s referral to Dr. Stark, the record did not contain a conflict in medical opinion. In a
report dated May 5, 2004, Dr. Sennett, appellant’s attending physician, noted her history of right
shoulder impingement syndrome. He discussed her history of a sharp pain in her shoulder on
August 1, 2003 while delivering mail and found that an MRI scan showed a labrum tear.
Dr. Sennett attributed the labrum tear and her need for surgery to her August 1, 2003 work
injury. On October 15, 2004 he performed a subacromial decompression of the right shoulder
with a debridement of the rotator cuff.
In a report dated July 20, 2004, Dr. Glenn found that appellant had no further condition
due to her previously accepted work injuries. He noted that appellant related a history of tearing
her labral trying to get mail out of a mailbox in August 2003 but did not specifically address
whether she sustained an injury on that date. A hearing representative instructed the Office to
obtain an opinion from Dr. Glenn regarding whether she injured herself on August 1, 2003,
however, Dr. Glenn did not respond to the Office’s request. As Dr. Glenn did not provide an
opinion on whether the August 1, 2003 work incident resulted in an injury, his report is
insufficient to create a conflict with Dr. Sennett. Consequently, Dr. Stark’s opinion is that of a
referral physician rather than an impartial medical examiner.
In a report dated November 27, 2007, Dr. Stark found that appellant did not sustain a
right shoulder or cervical spine condition due to her August 2003 employment injury. The Board
finds that the record contains a conflict between Dr. Sennett, her attending physician, and
Dr. Stark, the Office referral physician, regarding whether she sustained a work injury on
October 1, 2003. Consequently, the case will be remanded for the Office to refer appellant to an
impartial medical examiner for an opinion on whether she experienced a traumatic injury on
October 1, 2003 and, if so, the nature and extent of the injury, including whether she aggravated
any preexisting condition and whether she required surgery for the injury. The impartial medical
examiner should also provide an opinion, if needed, on any periods of disability. After this and
any further development as deemed necessary, the Office shall issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

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ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 8, 2008 is set aside and the case is remanded for further
proceedings consistent with this opinion of the Board.
Issued: June 22, 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.W., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Cleveland, OH, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 15-0733
Issued: February 16, 2017

Case Submitted on the Record

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

JURISDICTION
On February 6, 2015 appellant, through counsel, filed a timely appeal from a January 21,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether OWCP properly determined that appellant has one percent
permanent impairment of his left arm and zero percent permanent impairment of his right arm.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
In August 2008 OWCP accepted that appellant, then a 52-year-old mail handler,
sustained bilateral rotator cuff syndrome due to performing his repetitive work duties over time.
It later expanded the accepted conditions to include right shoulder impingement.
On April 17, 2009 Dr. John Riester, an attending Board-certified orthopedic surgeon,
performed subacromial decompression surgery on appellant’s right shoulder and, on August 21,
2009, he performed the same procedure on his left shoulder. He noted that the shoulders had
normal joint surfaces, glenoid surfaces, capsules, and labra. These procedures were authorized
by OWCP.
OWCP had previously accepted, under OWCP File No. xxxxxx655, that appellant
sustained bilateral strains on August 25, 2004 due to lifting a heavy trailer door. The file for this
injury was administratively combined with the file for the present case.
On December 21, 2011 appellant filed a claim for a schedule award (Form CA-7) due to
his accepted work injuries.
In a December 2, 2011 report, Dr. William N. Grant, an attending Board-certified
internist, determined that appellant had 17 percent permanent impairment of his right arm. He
provided range of motion findings for appellant’s right shoulder. Dr. Grant indicated that, under
Table 15-5 (Shoulder Regional Grid) of the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (6th ed. 2009), appellant had five percent
permanent impairment for rotator cuff syndrome. Under Table 15-23, he had 13 percent
permanent impairment due to right shoulder peripheral nerve impairment. Dr. Grant stated that
appellant had a combined impairment value of 17 percent for his right arm. The date of
maximum medical improvement for his right arm was December 2, 2011.
In May 3, 2012 report, Dr. Nabil F. Angley, a Board-certified orthopedic surgeon serving
as an OWCP medical adviser, noted that Dr. Grant based his impairment rating on loss of range
of motion. He noted that Table 15-5 of the sixth edition of the A.M.A., Guides was not
applicable for such an evaluation, but rather that range of motion rating fell under Table 15-34.
As Dr. Grant had not properly used the A.M.A., Guides, Dr. Angley recommended that appellant
undergo a second opinion medical examination.
OWCP referred appellant to Dr. Manhal A. Ghanma, a Board-certified orthopedic
surgeon, for a second opinion medical examination and opinion on his arm impairment. In a
report dated May 3, 2013, Dr. Ghanma noted findings for right shoulder motion: forward flexion
of 160 degrees, extension of 70 degrees, abduction of 175 degrees, adduction of 40 degrees,
external rotation of 90 degrees, and internal rotation of 90 degrees. For appellant’s left shoulder,
he reported forward flexion of 170 degrees, extension of 80 degrees, abduction of 180 degrees,
adduction of 40 degrees, external rotation of 90 degrees, and internal rotation of 90 degrees.
Dr. Ghanma noted no evidence of shoulder instability or impingement. He stated that Table 15-5
of the sixth edition of the A.M.A., Guides, using the diagnosis-based impairment (DBI) method,
was not applicable as appellant had shoulder range of motion loss. Dr. Ghanma found that

2

appellant had three percent impairment of each arm under Table 15-34 for loss of range of
shoulder motion. Appellant’s date of maximum medical improvement was November 6, 2009.
OWCP referred the file to Dr. Morley Slutksy, a Board-certified occupational medicine
physician serving as an OWCP medical adviser, for a calculation of permanent impairment of
appellant’s arms. It provided the surgical records to Dr. Slutsky. In a July 19, 2013 report,
Dr. Slutsky determined that appellant had one percent permanent impairment of his left arm
based on his left shoulder strain. Using Table 15-5 of the sixth edition of the A.M.A., Guides, he
determined a class 1 impairment with modifiers of zero for functional history, one for physical
examination, and zero for clinical studies. The net adjustment was minus one for a final class 1
(grade B) or one percent impairment. Dr. Slutksy explained that shoulder strain was the most
impairing diagnosis for appellant’s left arm and noted that the DBI impairment rating method
covered by Table 15-5 was preferred to the range of motion method. He stated that without
review of the right shoulder surgery report, he could not provide a right upper extremity rating.
Dr. Slutsky found that appellant’s date of maximum medical improvement was May 3, 2013, the
date of Dr. Ghanma’s report.
In an updated report dated July 26, 2013, Dr. Slutsky stated that the 2009 right shoulder
surgery report showed no evidence of rotator cuff tear, tendinitis, impingement, labrum, or
glenohumeral disease. He noted that right shoulder sprain/strain was the most impairing
diagnosis. Using Table 15-5 of the sixth edition of the A.M.A., Guides, he determined a class 1
impairment with grade modifiers of zero for both physical examination and functional history,
with a minus two net adjustment. With a final class A value, appellant had a zero percent
impairment of his right arm. Dr. Slutsky repeated his earlier assessment of one percent
impairment for appellant’s left arm and noted that, for both arms, his opinion was based on
application of Dr. Ghanma’s findings to Table 15-5.
On October 21, 2013 OWCP issued a schedule award for one percent permanent
impairment of his left arm and a zero percent permanent impairment of his right arm. The award
ran for 3.12 weeks from May 3 to 24, 2013 and was based on the opinion of Dr. Slutsky.
Appellant requested a hearing with an OWCP hearing representative. During the hearing
held on April 11, 2014, he submitted an October 1, 2014 report of Dr. Jessica Volsky, an
attending osteopath. In this report, Dr. Volsky found that appellant had 6 percent left arm
impairment and 10 percent right arm impairment based on range of motion loss under Table 1534 of the sixth edition of the A.M.A., Guides.
By decision dated May 7, 2014, an OWCP hearing representative set aside OWCP’s
October 21, 2013 decision and remanded the case for additional development to be followed by
an appropriate decision. He directed OWCP to have an OWCP medical adviser review
Dr. Volsky’s report and provide an impairment rating for appellant’s arm impairment.
In a May 10, 2014 report, Dr. Slutsky noted that he had reviewed Dr. Volsky’s opinion.
He repeated his prior opinion that appellant had one percent permanent impairment of his left
arm and zero percent permanent impairment of his right arm based on the diagnosis-based
impairment rating method found in Table 15-5 of the sixth edition of the A.M.A., Guides.

3

Dr. Slutsky posited that the DBI rating method was preferred under the A.M.A., Guides to the
range of motion method used by Dr. Volsky.
In a May 13, 2014 decision, OWCP found that it had been properly determined that
appellant had failed to establish more than one percent permanent impairment of his left arm and
zero percent permanent impairment of his right arm.
Appellant requested a telephonic hearing with an OWCP hearing representative. During
the December 1, 2014 hearing, counsel argued that Dr. Slutsky was biased with regard to
schedule award claims because it was felt that he determined lower impairment ratings compared
with other medical evaluators. He asserted that Dr. Slutsky ignored Table 2.1 of the A.M.A.,
Guides, which required the evaluator to use the rating method that provided the highest
impairment rating.
In a January 21, 2015 decision, the hearing representative affirmed OWCP’s May 13,
2014 decision. He found that Dr. Slutsky had properly determined, by using a DBI rating
method, that appellant has a one percent permanent impairment of his left arm and a zero percent
permanent impairment of his right arm.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of the Office of Workers’
Compensation Programs.3 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.4 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. Through its implementing regulations, OWCP adopted the American
Medical Association, Guides to the Evaluation of Permanent Impairment as the appropriate
standard for evaluating schedule losses.5
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.

3

See 20 C.F.R. §§ 1.1-1.4.

4

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation.
§ 8107(c)(1).
5

20 C.F.R. § 10.404. See also Ronald R. Kraynak, 53 ECAB 130 (2001).

4

5 U.S.C.

As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).6 The Board has approved the use by OWCP of the A.M.A.,
Guides for the purpose of determining the percentage loss of use of a member of the body for
schedule award purposes.7
ANALYSIS
The issue on appeal is whether OWCP properly determined that appellant has one percent
permanent impairment of his left arm and zero percent permanent impairment of his right arm.
The Board finds that this case is not in posture for decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the range of
motion methodology when assessing the extent of permanent impairment for schedule award
purposes.8 The purpose of the use of uniform standards is to ensure consistent results and to
ensure equal justice under the law to all claimants.9 In T.H., the Board concluded that OWCP
physicians are at odds over the proper methodology for rating upper extremity impairment,
having observed attending physicians, evaluating physicians, second opinion physicians,
impartial medical examiners, and district medical advisers use both DBI and range of motion
methodologies interchangeably without any consistent basis. Furthermore, the Board has
observed that physicians interchangeably cite to language in the first printing or the second
printing when justifying use of either range of motion or DBI methodology. Because OWCP’s
own physicians are inconsistent in the application of the A.M.A., Guides, the Board finds that
OWCP can no longer ensure consistent results and equal justice under the law for all claimants.10
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the January 21, 2015
decision. Following OWCP’s development of a consistent method for calculating permanent
impairment for upper extremities to be applied uniformly, and such other development as may be
deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper
extremity schedule award.

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6a (February 2013); Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1 (January 2010).
7

Isidoro Rivera, 12 ECAB 348 (1961).

8

T.H., Docket No. 14-0943 (issued November 25, 2016).

9

Ausbon N. Johnson, 50 ECAB 304, 311 (1999).

10

Supra note 8.

5

CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the January 21, 2015 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: February 16, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6