United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., (widow of S.B.), Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
WAINWRIGHT MEMORIAL MEDICAL
CENTER, Walla Walla, WA, Employer
__________________________________________

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

Docket No. 20-0994
Issued: August 9, 2021

Case Submitted on the Record

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

JURISDICTION
On April 9, 2020 appellant, through counsel, filed a timely appeal from a March 12, 2020
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether a schedule award, pursuant to the provisions of section 8107 of the
Federal Employees’ Compensation Act,3 (FECA) may be granted posthumously where maximum
medical improvement of the injured member had not been reached during the lifetime of the
employee.
FACTUAL HISTORY
This case has previously been before the Board.4 The facts and circumstances as set forth
in the Board’s prior decision are incorporated herein by reference. The relevant facts are set forth
below.
On April 10, 2013 the employee, then a 45-year-old housekeeping aid supervisor, filed a
traumatic injury claim (Form CA-1) alleging that on March 19, 2013 he injured his lower back
when he lifted a desk while in the performance of duty. OWCP accepted his claim for left thoracic
or lumbosacral neuritis and subsequently expanded the acceptance of his claim to include
postlaminectomy syndrome. It paid the employee wage-loss compensation on the supplemental
rolls for intermittent periods of total disability beginning February 5, 2016.
The employee underwent several OWCP approved back surgeries and was intermittently
on and off work.5 November 28, 2016 he returned to full-time, modified-duty work. The
employee continued to receive medical treatment.
On August 1, 2017 the employee filed a claim for compensation (Form CA-7) for a
schedule award.
Appellant submitted an August 22, 2016 report by Dr. Jason A. Dreyer, an osteopath who
specializes in neurosurgery. Dr. Dreyer recounted the employee’s complaints of recurrent, severe
low back pain. He noted improved sensory examination and motor examination and diagnosed
status post L5-S1 fusion.
In a development letter dated August 10, 2017, OWCP requested that the employee’s
treating physician submit an impairment evaluation report in accordance with the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides)6 and The Guides Newsletter, Rating Spinal Nerve Extremity Impairment Using the Sixth

3

Id. at § 8107.

4

Docket No. 19-0866 (issued September 17, 2019).

5
Appellant underwent L2-3 microdiscectomy with L3-4 laminectomy and decompression on October 28, 2014,
anterior lumbar interbody and posterolateral arthrodesis at L1-2, L2-3, and L3-4, posterior spinal instrumentation at
L1-S1, laminectomies at L1-5 to S1 for compression on January 19, 2016, and hardware removal and revision with
posterolateral fusion at L4-5, L5-S1 on August 22, 2016.
6

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

2

Edition (July/August 2009) (The Guides Newsletter). It afforded him 30 days to submit additional
medical evidence in support of his schedule award claim.
OWCP received a July 11, 2017 report by Dr. Kyle Terry, a family medicine specialist,
who indicated that the employee was evaluated for complaints of continued low back and left
testicle pain. It also received a June 29, 2017 progress note by Dr. Michael Turner, a Boardcertified physical medicine and rehabilitation specialist, who indicated that the employee’s
electromyography and nerve conduction velocity (EMG/NCV) study was normal.
In an April 4, 2017 letter, Dr. John B. Hoehn, who specializes in family medicine, noted
that the employee had reached maximum medical improvement (MMI).
In an August 14, 2017 report, Dr. Craig Flinders, a Board-certified family medicine
specialist, noted the employee’s complaints of chronic severe left testicle and low back pain. He
discussed the employee’s history and noted that the employee only had minimal improvement in
pain and function. Upon examination of the employee’s lumbar spine, Dr. Flinders observed
moderate paraspinous tenderness in the same region and positive Patrick’s test bilaterally. He
diagnosed degenerative joint disease with discogenic lumbar radiculopathy.
An August 29, 2017 lumbar x-ray scan revealed stable changes of operative fusion
extending from L1 through S1 and possible left renal calculus.
OWCP also received a January 19, 2016 operative report, an August 22, 2016 operative
report, laboratory test results dated August 28, 2017, thoracic transforaminal epidural steroid
injection procedure reports dated September 28 and October 18, 2017, and an October 19, 2017
work status note.
A December 5, 2017 lumbar spine magnetic resonance imaging (MRI) scan report revealed
progressive degenerative disc disease and mild retrolisthesis at T12-L1 with moderate central canal
stenosis.
In reports dated December 26, 2017 through February 13, 2018, Dr. Terry noted that the
employee was doing better, but still had pain in his back and legs. He provided examination
findings and noted decreased muscle tension throughout the bilateral lower thoracic and lumbar
paraspinals. In a January 8, 2018 report, Dr. Terry indicated that the employee had asked about
his impairment rating. He explained that Dr. Flinders had recommended another surgery before
he could complete a report. Dr. Terry noted that, since the employee was still seeking curative
medicine, he did not submit the employee findings.
On February 16, 2018 OWCP advised the employee that it would not take additional action
on his schedule award claim because the medical evidence of record demonstrated that his
condition had not yet reached MMI.
In a February 20, 2018 report, Dr. Flinders noted the employee’s complaints of left groin
and testicle pain. He provided examination findings and diagnosed chronic low back pain status
posterolateral interbody fusion at L1 to S1 for degenerative disc disease.

3

On February 27, 2018 the employee underwent OWCP-authorized lumbar surgery. He
stopped work and OWCP paid him wage-loss compensation on the supplemental rolls until he
returned to part-time, limited-duty work on March 16, 2018.
In a March 1, 2018 report, Dr. Andrew Park, a Board-certified family medicine specialist,
discussed the employee’s history of injury and noted the employee’s complaints of low back pain,
left testicle pain, and numbness and pain in the left thigh. He provided examination findings and
diagnosed lumbar radiculopathy, status post multiple surgeries.
In a March 15, 2018 work capacity evaluation report (Form OWCP-5c), Dr. Flinders
indicated that the employee could work part time with restrictions for four hours per day.
By decision dated March 26, 2018, OWCP denied the schedule award claim, finding that
the medical evidence of record was insufficient to demonstrate that the employee had reached
MMI. It noted that the evidence of record demonstrated that he was still receiving medical
treatment for his accepted condition.
OWCP subsequently received a March 21, 2018 report by Dr. Park, who recounted that the
employee still complained of left testicle pain after the February 27, 2018 surgery. Dr. Park
indicated that examination of the employee’s lumbar spine revealed decreased range of motion
(ROM) and mild tenderness in the lower paraspinal areas. He diagnosed lumbar radiculopathy,
thoracolumbar radiculopathy, and myofascial pain syndrome.
The employee continued to receive medical treatment from Dr. Flinders. In reports and a
Form OWCP-5c dated March 20 through June 26, 2018, Dr. Flinders noted that the employee had
recently undergone endoscopic discectomy surgery and continued to complain of back pain. Upon
physical examination, he observed minimal tenderness and prominent trigger points in the
interspinous ligament at T6-7. Dr. Flinders diagnosed postlaminectomy pain syndrome with
chronic back pain, left T12 radicular pain, and myofascial pain. In a May 29, 2018 report, he
recommended that the employee consider a trial of spinal cord stimulation for the employee’s
chronic residual symptoms. In a June 26, 2018 report, Dr. Flinders recommended that the
employee remain off work.
In reports and OWCP-5c forms dated May 2 through June 1, 2018, Dr. Park recounted the
employee’s complaints of increasing back pain and left testicle numbness and pain. He provided
examination findings and diagnosed thoracolumbar radiculopathy, myofascial pain syndrome, and
lumbar radiculopathy. Dr. Park noted that the employee could work full-time, limited duty.
OWCP received emergency department hospital records dated June 19, 2018 and an urgent
care report dated June 20, 2018, which revealed that the employee sought medical treatment for
back pain and sciatica-like symptoms down the left leg. The employee was diagnosed with lumbar
strain and left side sciatica.
On August 7, 2018 appellant, the employee’s widow, notified OWCP that the employee
had passed away on August 6, 2018 and provided a death certificate dated August 13, 2018.
OWCP subsequently received reports dated July 3 and August 2, 2018, wherein Dr. Park
noted that on March 9, 2013 the employee injured his back at work and discussed the numerous
4

surgeries that he underwent. Dr. Park recounted the employee’s complaints of persisting low back
pain, left testicle pain and numbness, and occasional sciatica-type pain radiating to the left leg.
Upon physical examination of the employee’s back, he observed decreased range of motion and
mild tenderness in the lower paraspinal area. Neurological examination revealed decreased and
no sensation of L1 dermatome left groin and left thigh area. Dr. Park assessed thoracolumbar
radiculopathy, myofascial pain syndrome, restless leg syndrome, and lumbar radiculopathy.
OWCP received various medical reports dated from July 11, 2016 through February 2,
2017 regarding the employee’s treatment for chronic lower back pain, lumbar disc disease, lumbar
radiculitis, sleep apnea, fatigue, and restless leg syndrome. It also received a February 7, 2013 and
December 1, 2016 sleep study note and testing report. On February 6, 2019 appellant, through
counsel, requested reconsideration of the March 26, 2018 decision. Counsel alleged that the death
of the employee placed him at MMI and that OWCP had a duty to develop the schedule award
claim.
By decision dated February 20, 2019, OWCP denied appellant’s request for
reconsideration of the merits of the claim pursuant to 5 U.S.C. § 8128(a).
Appellant filed an appeal to the Board. By decision dated September 17, 2019, the Board
set aside OWCP’s February 20, 2019 nonmerit decision,7 finding that counsel provided a new
legal argument relevant to the employee’s schedule award claim.
Appellant, through counsel, thereafter submitted a March 3, 2020 letter and requested an
update from OWCP regarding the employee’s schedule award claim.
By decision dated March 12, 2020, OWCP denied modification of the March 26, 2018
schedule award decision.
LEGAL PRECEDENT
The schedule award provisions of FECA8 and its implementing federal regulations9 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. FECA,
however, does not specify the manner in which the percentage of loss of a member shall be
determined. For consistent results and to ensure equal justice under the law for all claimants,
OWCP has adopted the A.M.A., Guides as the uniform standard applicable to all claimants and

7

Supra note 3.

8

5 U.S.C. § 8107.

9

20 C.F.R. § 10.404.

5

the Board has concurred in such adoption.10 As of May 1, 2009, the sixth edition of the A.M.A.,
Guides, published in 2009, is used to calculate schedule awards.11
A claimant has the burden of proof under FECA to establish permanent impairment of a
scheduled member or function of the body as a result of his or her employment injury entitling
him or her to a schedule award.12 Before the A.M.A., Guides can be utilized, a description of
impairment must be obtained from his or her physician. In obtaining medical evidence required
for a schedule award, the evaluation made by the attending physician must include a description
of the impairment including, where applicable, the loss in degrees of active and passive motion of
the affected member or function, the amount of any atrophy or deformity, decrease in strength or
disturbance of sensation or other pertinent descriptions of the impairment. This description must
be in sufficient detail so that the claims examiner and others reviewing the file will be able to
clearly visualize the impairment with its resulting restrictions and limitations.13
Section 8109(a) of FECA provides that if an individual has sustained disability
compensable under section 8107(a), has filed a valid claim in his lifetime, and dies from a cause
other than the injury before the end of the period specified by the schedule, the compensation
specified by the schedule that is unpaid at his death, whether or not accrued or due at his death,
shall be paid, under an award made before or after the death and for the period specified by the
schedule, to designated surviving beneficiaries.14
OWCP procedures further provide that, if at the time of the claimant’s death a schedule
award claim is being developed, but has not yet been paid, the claimant’s dependent(s) would be
entitled to the entire payment of the award.15
ANALYSIS
The Board finds that this case is not in posture for decision.
In the instant case, the Board finds that OWCP erred in denying appellant’s schedule award
claim based solely on its finding that the employee had failed to establish that he had reached
MMI. The record reflects that the employee made a claim for a schedule award during his lifetime
and the claim was under development. OWCP initially denied the employee’s schedule award
claim, finding that the evidence of record failed to establish that he had reached MMI. The
10

Id. at § 10.404 (a); see also T.T., Docket No. 18-1622 (issued May 14, 2019); Jacqueline S. Harris, 54 ECAB
139 (2002).
11

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims, Chapter
2.808.5(a) (March 2017); see also id. at Chapter 3.700.2 and Exhibit 1 (January 2010).
12
See M.G., Docket No. 19-0823 (issued September 17, 2019); D.F., Docket No. 18-1337 (issued February 11,
2019); Tammy L. Meehan, 53 ECAB 229 (2001).
13

K.F., Docket No. 18-1517 (issued October 9, 2019); A.T., Docket No. 18-0864 (issued October 9, 2018).

14

5 U.S.C. § 8109(a).

15

Supra note 11 at Chapter 2.808.7(a)(7) (February 2013).

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employee subsequently passed away on August 6, 2018. On February 6, 2019 appellant, through
counsel, requested reconsideration. By decision dated March 12, 2020, OWCP denied
modification of the March 26, 2018 schedule award decision, finding that the medical evidence of
record was insufficient to demonstrate that the employee had reached MMI.
The Board has found that a disabled employee has the right to compensation for periods of
temporary total or partial disability until MMI is reached. Upon reaching MMI, the evidence
ordinarily permits a determination to be made as to the precise degree of permanent loss of use of
the schedule member of the body. However, the Board has held that, in cases involving
posthumous schedule awards, precision often cannot be obtained. In those situations, schedule
awards have been made in other jurisdictions where the evidence shows the extent of permanent
impairment. Evidence based on conjecture, of course, would not meet the required standard of
proof. However, where a physician, within a reasonable degree of medical certainty, is able to
render an opinion as to the permanent loss of use of the injured member, such evidence should be
given credence. Although in a particular case there may be a conflict as to the extent of the
impairment, this would present a question of fact which, as in any other case, would be resolved
by weighing the evidence.16
In its March 12, 2020 decision, OWCP summarily denied appellant’s schedule award claim
without evaluating the medical evidence in the record to determine if the additional medical
evidence supported a permanent impairment rating.
The Board notes that, prior to the employee’s death, he submitted reports by Dr. Park. In
reports dated July 3 and August 2, 2018, Dr. Park described the March 9, 2013 employment injury
and discussed the numerous surgeries that the employee underwent. He noted lumbar examination
findings of decreased range of motion and mild tenderness in the lower paraspinal area.
Neurological examination revealed decreased and no sensation of L1 dermatome left groin and
left thigh area. Dr. Park diagnosed thoracolumbar radiculopathy, myofascial pain syndrome,
restless leg syndrome, and lumbar radiculopathy. The Board notes that he provided lumbar
examination findings and noted diminished sensation in appellant’s left lower extremity. Because
Dr. Park noted physical findings at the time of his last examination of the employee on July 3,
2018, OWCP erred by not further developing the medical evidence for review of the employee’s
permanent impairment to his left lower extremity due to his accepted lumbar injury in accordance
with the A.M.A., Guides.17
OWCP’s procedures provide that, if a claimant does not provide an impairment evaluation
from his/her physician when requested and there is an indication of permanent impairment in the
medical evidence of file, the claims examiner (CE) should refer the claimant for a second opinion

16

Cheryl R. Holloway (Wryland R. Holloway), Docket No. 02-2153 (issued February 28, 2003).

17

Id.

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evaluation.18 The CE may also refer the case to the DMA prior to scheduling a second opinion
examination.19
The case shall, therefore, be remanded for OWCP to consider the existing medical evidence
of record in order to determine whether any specific finding of permanent impairment can be
identified when the A.M.A., Guides are applied to the predeath physical findings. OWCP should
refer the results of Dr. Park’s reports to an OWCP medical adviser for calculation of the
employee’s permanent impairment. Following this and other such further development as deemed
necessary, OWCP shall issue a de novo merit decision regarding the posthumous schedule award
claim.
CONCLUSION
The Board finds that this case is not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 12, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this decision of the Board.
Issued: August 9, 2021
Washington, DC

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

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

18

Supra note 11 at Chapter 2.808.6(d) (March 2017).

19

Id.

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Kansas City, MO, Employer
__________________________________________

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

Docket No. 09-1649
Issued: April 8, 2010

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 June 22, 2009 appellant filed a timely appeal from a March 30, 2009 schedule award
decision of the Office of Workers’ Compensation Programs. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3(e), the Board has jurisdiction over the merits of the schedule award claim.
ISSUE
The issue is whether appellant has established more than one percent impairment of her
right lower extremity, for which she received a schedule award.
FACTUAL HISTORY
On June 30, 2005 appellant, then a 40-year-old letter carrier, filed a claim for a back
condition which she attributed to lifting and carrying heavy loads of mail. She stated that she
started to have pain from her back down into her leg on May 14, 2005. Appellant stopped work
on July 12, 2005 and returned to limited-duty work on August 3, 2005. She last worked on
October 3, 2005. Appellant was terminated on October 4, 2005. The Office accepted the claim
for permanent aggravation of herniated nucleus pulposus L5-S1.

In a June 29, 2006 decision, the Office found that appellant was not totally disabled due
to the accepted condition for claimed periods beginning July 12, 2005, she had no continuing
work-related disability and she could perform the duties of her date-of-injury position. By
decisions dated December 11, 2006 and June 11, 2007, it denied appellant’s request for
authorization of an L5-S1 discectomy and L5 fragment removal for the reason that the need for
the surgery was not causally related to the May 14, 2005 work injury.
On September 1, 2008 appellant filed a claim for a schedule award. In an April 11, 2008
report, Dr. Glenn M. Amundson, a Board-certified orthopedic surgeon, opined that appellant
reached maximum medical improvement in terms of her back condition.
In a November 5, 2008 letter, the Office reviewed the medical evidence appellant
submitted and informed her that, to support a schedule award claim, she must submit medical
evidence which shows the impairment has reached maximum medical improvement, a detailed
description of the permanent impairment and any permanent impairment of the same member or
function which preexisted the work injury, and an estimate of the permanent impairment under
the fifth edition of the American Medical Association, Guides to the Evaluation of Permanent
Impairment (A.M.A., Guides).1 It noted that it had not accepted a radiculopathy condition
affecting the left lower extremity and that it had denied her request for lumbar surgery associated
with a left-sided radiculopathy in its December 11, 2006 decision.
Dr. Amundson continued to submit progress reports.
provided.

No impairment estimate was

In a February 23, 2009 report, Dr. William O. Hopkins, a Board-certified orthopedic
surgeon and second opinion physician, reviewed the statement of accepted facts, medical record,
history of injury and reported his examination findings. He indicated that appellant had
numbness in the right foot medially and bilaterally, numbness in the anterior right calf of the
right posterior thigh and in the left posterior thigh. Dr. Hopkins noted that he agreed with
Dr. Amundson that appellant reached maximum medical improvement on April 11, 2008. He
stated that appellant had a change in her reflexes at the right Achilles tendon with minimal
reduction in size of the right thigh as compared to the left. Dr. Hopkins advised, however, that
this would not be associated with an L4-5 or a L5-S1 disc herniation. He opined that appellant’s
disability factors were related to a mild sensory deficit in the right leg as well as pain.
Dr. Hopkins indicated strength was excellent and was not included as a disability factor. Range
of motion of the lumbar spine was also not included as a disability factor. For pain, Dr. Hopkins
reported using Table 18-4 of the A.M.A., Guides. He indicated that appellant’s total pain
severity score was 14, her mean activity limitation score was 5, and her total pain impairment
attributed to mood state was 25 with a mean score of 6 (25 divided by 4). Dr. Hopkins stated
that he added an additional score of 10 as he felt her reactions and estimates were appropriate for
her problem. He advised that he did not see any evidence of exaggerations of pain responses
during her physical examination or interview. Dr. Hopkins advised that appellant’s total score
was 45, which put her into a moderate pain category under Table 18-7. He stated that her total
extremity disability would be 45 for pain and 5 for her sensory loss. In a March 3, 2009 report,
Dr. Hopkins noted that appellant had a mild sensory loss at both the L5 and S1 root distributions.
He clarified that, using Tables 15-15 and 15-16 of the A.M.A., Guides, appellant had five
1

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

2

percent leg impairment at both levels. Dr. Hopkins advised that, under Tables 15-16, 15-17 and
15-18 of the A.M.A., Guides, this would give an additional one percent impairment for her
sensory loss.
In a March 20, 2009 report, an Office medical adviser reviewed the medical evidence and
opined that appellant had one percent right lower extremity impairment. Based on Dr. Hopkins’
reports, he indicated that appellant reached maximum medical improvement on April 11, 2008.
The Office medical adviser indicated that Dr. Hopkins erroneously cited Tables 15-16, 15-17 and
15-18 of the A.M.A., Guides to offer one percent disability for sensory loss for the right lower
extremity. He advised that the correct tables for rating pain and/or sensory change in the lower
extremity should be Tables 15-15 and 15-18. The Office medical adviser noted that Dr. Hopkins
indicated on sensory assessment that appellant had numbness in the right foot both medially and
laterally, numbness in the anterior right calf of the right posterior thigh, and numbness in the left
posterior thigh. Based on appellant’s history, he stated that left leg numbness in the upper thigh
was a referred numbness and not a radicular numbness from the accepted lumbar condition. To
offer one percent impairment rating of the right lower extremity under Table 15-15, the Office
medical adviser advised it would be appropriate to offer a grade of 20 percent and multiply the
20 percent by the maximum five percent loss due to pain for the nerve root, which would yield
one percent impairment. The Office medical adviser further advised that Dr. Hopkins did not
properly assess impairment under Chapter 18. He noted that under Chapter 18 only a three
percent impairment rating could be processed taking all the factors into consideration, which
Dr. Hopkins did not do. The Office medical adviser further indicated that Dr. Hopkins’
information did not conform to the requirements of Chapter 18 such that his pain rating was not
proper.
By decision dated March 30, 2009, the Office granted appellant a schedule award for one
percent right lower extremity impairment. The award covered the period April 11 to May 1,
2008 for a total of 2.88 weeks of compensation.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 and its
implementing regulations3 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. The Act, however, does not specify the manner in which the percentage of loss shall
be determined. For consistent results and to ensure equal justice under the law to all claimants,
good administrative practice necessitates the use of a single set of tables so that there may be
uniform standards applicable to all claimants. The A.M.A., Guides has been adopted by the
implementing regulations as the appropriate standard for evaluating schedule losses.4
A schedule award is not payable for a member, function or organ of the body not
specified in the Act or in the implementing regulations. As neither the Act nor the regulations
provide for the payment of a schedule award for the permanent loss of use of the back, no
2

5 U.S.C. §§ 8101-8193.

3

20 C.F.R. § 10.404.

4

Ronald R. Kraynak, 53 ECAB 130 (2001).

3

claimant is entitled to such an award.5 However, as the schedule award provisions of the Act
include the extremities, a claimant may be entitled to a schedule award for permanent
impairment to an extremity even though the cause of the impairment originated in the spine.6
ANALYSIS
The Office accepted appellant’s claim for permanent aggravation of herniated nucleus
pulposus at L5-S1. Appellant claimed a schedule award for impairment to her lower extremities
due to her accepted lumbar condition. In finding that she had one percent impairment to her
right lower extremity, the Office based its decision on the opinion of its Office medical adviser.
The Board finds, however, that the case is not in posture for decision as a clarifying opinion from
the Office medical adviser is necessary.
Initially it is noted that since Dr. Amundson failed to provide any impairment rating, the
Office referred appellant to Dr. Hopkins, the second opinion physician. Dr. Hopkins noted
appellant had numbness in the right root both medially and laterally, numbness in the anterior
right calf of the right posterior thigh and the left posterior thigh. He opined appellant reached
maximum medical improvement April 11, 2008 and, under the A.M.A., Guides, she had a one
percent impairment involving both L5 and S1 root distributions subsequent to her sensory loss
and a pain impairment of 6. Dr. Hopkins’ impairment rating, however, does not conform to the
A.M.A., Guides. While he stated that he used Tables 15-15, 15-16, 15-17 and 15-18 in
determining sensory loss to appellant’s leg involving both L5 and S1 root distributions, the
Board notes only Tables 15-15 and 15-18 would be applicable for processing a sensory
impairment in the lower extremity. Additionally, he did not explain how he applied the Tables
to arrive at his impairment rating.7 The Board notes that under Table 15-18 the maximum
sensory deficit or pain arising from a L5 and S1 root distribution carries 5 percent impairment
each. This impairment value would be multiplied by the grade or percentage of sensory deficit
under Table 15-15. While Dr. Hopkins stated that appellant had a mild sensory loss, he provided
no percentage for the sensory deficit or any explanation how such a mild sensory loss of two
nerve roots would result in one percent total impairment to the lower extremity. He also rated
pain under Chapter 18 of the A.M.A., Guides. Chapter 18 however may not be utilized to rate
pain-related impairments for any condition that can be adequately rated on the basis of the body
and organ impairment systems given in other chapters of the A.M.A., Guides.8 Dr. Hopkins did
not explain why appellant’s pain could not be rated under other chapters of the A.M.A., Guides.
The Office medical adviser reviewed Dr. Hopkins’ reports. He properly noted that to
offer one percent impairment of the right lower extremity under Table 15-15, it would be
appropriate to offer a grade of 20 percent. The Office medical adviser then multiplied the 20
percent by 5 percent maximum loss due to sensory deficit or pain under Table 15-18 to arrive at
one percent impairment rating. However, he did not explain which nerve root, either the L5 or
5

George E. Williams, 44 ECAB 530, 533 (1993).

6

Id.

7

See Tommy R. Martin, 56 ECAB 273 (2005) (where the Board found that a physician’s impairment calculation
not sufficiently supported by the A.M.A., Guides is of diminished probative value).
8

See Linda Beale, 57 ECAB 429 (2006); Frantz Ghassan, 57 ECAB 349 (2006).

4

S1, he attributed the 5 percent maximum impairment or provide an explanation as to why only
one nerve root was used in his calculation when Dr. Hopkins had advised both the L5 and S1
nerve root distributions contributed to appellant’s mild sensory loss.9 As such, the case must be
remanded so the Office may obtain a clarifying opinion from the Office medical adviser.
After conducting such further development as the Office deems necessary, the Office
should issue an appropriate decision considering all applicable impairment of appellant’s lower
extremities.
CONCLUSION
The Board finds that the case in not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the March 30, 2009 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further development
consistent with this decision of the Board.
Issued: April 8, 2010
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

9

The Board notes that with a 20 percent sensory deficit either the L5 or S1 nerve root at 5 percent maximum
impairment due to sensory deficit or pain would yield one percent lower extremity impairment.

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
)
)
)
and
)
)
DEPARTMENT OF AGRICULTURE,
)
FEDERAL SAFETY & INSPECTION SERVICE, )
Neosho, MO, Employer
)
__________________________________________ )
J.R., Appellant

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

Docket No. 10-1106
Issued: December 8, 2010

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 March 30, 2010 appellant filed a timely appeal from a February 22, 2010 merit
decision of the Office of Workers’ Compensation Programs. 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 more than a two percent right leg permanent
impairment.
FACTUAL HISTORY
On June 15, 2005 appellant, then a 48-year-old food inspector, filed a traumatic injury
claim (Form CA-1) alleging that he sustained a back injury on that date when he was turning
carcasses. The Office accepted the claim for lumbar and thoracic sprain/strain. Appellant
returned to a light-duty position in November 2005.

On January 8, 2009 appellant submitted a claim for compensation (Form CA-7)
indicating he was claiming a schedule award. He submitted a December 30, 2008 report from
Dr. Horace Petersen, an osteopath, who provided a history and results on examination,
diagnosing lumbar degenerative disc disease with a small L5-S1 disc herniation, myofascial pain
syndrome, and facet disease with mild stenosis and radiculopathy. Dr. Petersen noted that
appellant complained of decreased sensation in the right calf, but he could not find a
distinguishable difference between pinched or light touch compared to the other leg. With
respect to permanent impairment, he stated that appellant had a 19 percent whole person
impairment under the sixth edition of the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides).
In a report dated March 2, 2009, Dr. Petersen indicated that appellant had myofascial
pain syndrome with degenerative disc disease causing pain in his right lower extremity with a
significant impairment to his functional activities. He opined that appellant had a 24 percent
right lower extremity impairment secondary to the stenosis and the myofascial pain syndrome,
and was rated in “a class III rating” under the A.M.A., Guides. Dr. Petersen opined that
appellant had a preexisting problem that was exacerbated by his work activities.
In a report dated May 2, 2009, Dr. Petersen again stated that the impairment was 24
percent to the right leg. The Office referred the case to an Office medical adviser for review. In
a report dated July 4, 2009, the medical adviser opined that appellant had a two percent right leg
impairment. He reported that, under Table 16-12, a sensory deficit in the sural nerve had a three
percent leg impairment as a default value. The medical adviser referred to Dr. Petersen’s
statement that he could not find a difference between pinched or light touch compared to the
other leg, and stated that this history of a sensory abnormality was unsupported by examination
findings. According to the medical adviser, since the history of sensory abnormality was not
confirmed by examination, the impairment rating had to be modified using grade modifiers to
two percent or possibly one percent. He stated that, erring on the side of generosity, the
impairment would be determined at two percent.
By decision dated August 20, 2009, the Office issued a schedule award for a two percent
permanent impairment to the right leg. The period of the award was 5.76 weeks from
December 30, 2008. Appellant requested a hearing before an Office hearing representative,
which was held on December 10, 2009. By decision dated February 22, 2010, the hearing
representative affirmed the August 20, 2009 decision.
LEGAL PRECEDENT
Section 8107 of the Federal Employees’ Compensation Act provides that, if there is
permanent disability involving the loss or loss of use of a member or function of the body, the
claimant is entitled to a schedule award for the permanent impairment of the scheduled member
or function.1 Neither the Act nor the regulations specify the manner in which the percentage of
impairment for a schedule award shall be determined. For consistent results and to ensure equal
1

5 U.S.C. § 8107. This section enumerates specific members or functions of the body for which a schedule
award is payable and the maximum number of weeks of compensation to be paid; additional members of the body
are found at 20 C.F.R. § 10.404(a).

2

justice for all claimants the Office has adopted the A.M.A., Guides as the uniform standard
applicable to all claimants.2 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition.3
ANALYSIS
With respect to a permanent impairment, appellant submitted reports from Dr. Petersen,
who initially opined that appellant had a 19 percent whole person impairment. The Board notes
that neither the Act nor its regulations provide for a schedule award for impairment to the back
or to the body as a whole. Furthermore, the back is specifically excluded from the definition of
“organ” under the Act.4
In his March 2, 2009 report, Dr. Petersen stated that the impairment was 24 percent to the
right leg, for a “Class III” rating. He did not indicate which table or tables he was attempting to
apply, or provide any other explanation as to how the 24 percent was determined under the
A.M.A., Guides. The Board finds Dr. Petersen’s opinion that appellant had 24 percent right leg
impairment is of diminished probative value.
The Office medical adviser found two percent impairment, applying the findings of
Dr. Petersen in his December 30, 2008 report. The medical adviser did identify Table 16-12, and
he identified a sensory deficit in the sural nerve. Under Table 16-12, the default impairment is
three percent for sural nerve sensory deficit for a Class (CDX) 1 impairment.5 The medical
adviser then stated that the default should be modified to two or possibly one percent because
Dr. Petersen did not confirm the history of sensory abnormality on examination, but the A.M.A.,
Guides provide a specific method for adjusting the default value up or down based on application
of Table 16-6 (functional history) and Table 16-8 (clinical studies). Moreover, the A.M.A.,
Guides specifically state that when using Table 16-12 there is no adjustment for physical
examination, since the neurologic examination findings define the impairment values found in
Table 16-12.6 The medical adviser appeared to make an adjustment based on physical
examination findings, without further explanation. He did not state what grade modifier for
functional history (GMFH) or clinical studies (GMCS) was applicable, or apply the proper
formula (GMFH-CDX) + (GMCS – CDX) to calculate the net adjustment.7
The case will be remanded to secure a medical report that properly applies the sixth
edition of the A.M.A., Guides. After such further development as the Office deems necessary, it
should issue an appropriate decision.
2

A. George Lampo, 45 ECAB 441 (1994).

3

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

4

See James E. Jenkins, 39 ECAB 860 (1988); 5 U.S.C. § 8101(20).

5

A.M.A., Guides 534, Table 16-12.

6

Id. at 533.

7

See id. at 521.

3

CONCLUSION
The Board finds that the medical evidence requires further development with respect to
the degree of permanent impairment under the A.M.A., Guides.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 22, 2010 is set aside and the case remanded for further
action consistent with this decision of the Board.
Issued: December 8, 2010
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

4


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

)
)
)
)
)
)
)
)

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

Docket No. 18-0709
Issued: September 4, 2018

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
ALEC J. KOROMILAS, Alternate Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On February 15, 2018 appellant filed a timely appeal from an August 23, 2017 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 her burden of proof to establish a back injury
causally related to the accepted January 20, 2017 employment incident.

1
2

5 U.S.C. § 8101 et seq.

The record provided to the Board includes evidence received after OWCP issued its August 23, 2017 decision.
The Board’s jurisdiction is limited to evidence that was in the case record at the time of OWCP’s final decision.
Therefore, the Board is precluded from reviewing this additional evidence for the first time on appeal. 20 C.F.R.
§ 501.2(c)(1).

FACTUAL HISTORY
On January 21, 2017 appellant, then a 52-year-old clerk, filed a traumatic injury claim
(Form CA-1) alleging that while at work on January 20, 2017 she strained her back when she was
separating mail. She stopped work on January 22, 2017 and returned on January 24, 2017. On the
back of the claim form, the employing establishment controverted appellant’s claim contending
that appellant did not report the injury until five hours after the alleged incident and she could not
recall the equipment she used at the time of the alleged injury.
Appellant was initially treated in urgent care by Sheenz Mendez, a certified physician
assistant. In a work status note dated January 21, 2017, Ms. Mendez related that appellant was
treated on that date and could return to work on January 24, 2017. She also completed a duty
status report (Form CA-17), which indicated that on January 20, 2017 appellant injured her lower
back when separating mail. Ms. Mendez noted a diagnosis of lower back pain and related that
appellant could return to work with specified restrictions.
OWCP received a position description for a sales and distribution associate.
On January 28, 2017 OWCP offered appellant a full-time modified-duty job assignment.
Appellant accepted the job offer on that date.
In a February 3, 2017 development letter, OWCP informed appellant that additional
evidence was needed in support of her claim. It requested that she complete an attached claim
development questionnaire and advised appellant of the need for medical evidence to establish her
claim. OWCP afforded appellant 30 days to submit the requested information. No additional
information was submitted within the allotted time.
By decision dated March 10, 2017, OWCP denied appellant’s traumatic injury claim. It
accepted that the January 20, 2017 employment incident occurred as alleged, but denied her claim
because the medical evidence submitted did not contain a medical diagnosis in connection with
the accepted incident. OWCP specifically noted that “pain” was a symptom, not a medical
diagnosis. Consequently, it found that appellant had failed to establish the medical component of
fact of injury.
OWCP subsequently received several medical reports. In a January 21, 2017 hospital
record, Ms. Mendez related appellant’s complaints of low back pain “after heavy lifting at work
yesterday.” Upon physical examination of appellant’s lumbar spine, she observed mild tenderness
of the bilateral/lateral spine and good range of motion. Ms. Mendez diagnosed low back pain. In
an amended January 21, 2017 report, signed on March 7, 2017, she added a second diagnosis of
back muscle spasms.
A January 21, 2017 lumbar spine x-ray scan report showed mild degenerative changes of
the lumbar spine and bilateral sacroiliac joints.
In a January 21, 2017 doctor’s initial form report, Dr. Melina J. Khwaja, Board-certified in
emergency medicine, noted a January 20, 2017 date of injury and indicated that appellant was
processing mail. The form indicated a diagnosis of low back pain.

2

In a January 23, 2017 report, Dr. Khwaja noted a diagnosis of low back pain. She related
that appellant’s lumbar spine x-ray scan report was normal.
On March 16, 2017 OWCP received appellant’s response to its development letter. In a
narrative statement, appellant explained that on January 20, 2017 she was emptying a cage and
then moved on to remove heavy buckets from a bulk mail center (BMC). She indicated that she
felt a strain in her back when emptying the cage and lifting heavy buckets from the BMC.
Appellant was able to continue her work, but as time went on, her discomfort progressed to
excruciating pain. She explained that it was then, approximately four hours after the incident, that
she notified management. Appellant also noted that she had a previous back injury under OWCP
File No. xxxxxx845 with a date of injury of May 21, 1998.
On March 29, 2017 appellant requested a hearing before a hearing representative from
OWCP’s Branch of Hearings and Review. A hearing was held on July 13, 2017.
By decision dated August 23, 2017, OWCP’s hearing representative affirmed the
March 10, 2017 decision. She found that appellant failed to establish fact of injury as none of the
medical evidence submitted provided a medical diagnosis in connection with the January 20, 2017
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 has the burden of proof to establish the
essential elements of his or her claim by the weight of the reliable, probative, and substantial
evidence4 including that he or she sustained an injury in the performance of duty and that any
specific condition or disability from work for which compensation is claimed is causally related
to that employment injury.5
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established.6 There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged.7 Second, the employee must submit evidence, generally
only in the form of probative medical evidence, to establish that the employment incident caused
a personal injury.8 The employee may establish that the employment incident occurred as alleged,

3

Supra note 1.

4

J.P., 59 ECAB 178 (2007); Joseph M. Whelan, 20 ECAB 55, 58 (1968).

5

G.T., 59 ECAB 447 (2008); Elaine Pendleton, 40 ECAB 1143, 1145 (1989).

6

S.P., 59 ECAB 184 (2007); Alvin V. Gadd, 57 ECAB 172 (2005).

7

Bonnie A. Contreras, 57 ECAB 364 (2006); Edward C. Lawrence, 19 ECAB 442 (1968).

8

David Apgar, 57 ECAB 137 (2005); John J. Carlone, 41 ECAB 354 (1989).

3

but fail to show that his or her disability or condition for which compensation is being claimed is
causally related to the employment incident.9
ANALYSIS
Appellant alleged that she strained her back on January 20, 2017 when sorting mail.
OWCP accepted that the January 20, 2017 employment incident occurred as alleged, but denied
her claim because the evidence of record did not include a medical diagnosis in connection with
the accepted incident. The Board finds that appellant has failed to establish her traumatic injury
claim as the medical evidence submitted is insufficient to establish the medical component of fact
of injury.
In support of her claim, appellant submitted January 21 and 23, 2017 reports by
Dr. Khwaja. As OWCP noted in its denial decisions, “pain” is a symptom, not a medical
diagnosis.10 Accordingly, Dr. Khwaja’s finding of back pain is insufficient to satisfy appellant’s
burden of proof by establishing the medical component of fact of injury.11
The January 21, 2017 lumbar spine x-ray report also fails to provide a firm diagnosed back
condition resulting from the January 20, 2017 employment incident.12 Without a firm diagnosis
and rationalized medical opinion regarding causal relationship, this diagnostic report is of limited
probative value.13
The several urgent care reports by Ms. Mendez dated January 21, 2017 lack probative
value and are insufficient to establish appellant’s claim as physician assistants are not considered
physicians as defined by FECA.14
There is no evidence of record that establishes a medical diagnosis in connection with the
accepted employment incident. Accordingly, the Board finds that appellant failed to establish that
she sustained a back injury causally related to the accepted January 20, 2017 employment incident.
On appeal appellant alleges that she had two coworkers who would attest to the fact that
she injured herself. She described the January 20, 2017 employment incident and related that she
continued to suffer from back pain. As explained above, the employment incident has been
9

T.H., 59 ECAB 388 (2008); see also Roma A. Mortenson-Kindschi, 57 ECAB 418 (2006).

10
Findings of pain or discomfort alone do not satisfy the medical aspect of the fact of injury medical determination.
B.P., Docket No. 12-1345 (issued November 13, 2012); C.F., Docket No. 08-1102 (issued October 2008); Federal
(FECA) Procedure Manual, Part 2 -- Claims, Fact of Injury, Chapter 2.803.4a(6) (August 2012).
11

F.U., Docket No. 18-0078 (issued June 6, 2018); see also Deborah L. Beatty, 54 ECAB 340, 341 (2003).

12

T.O., Docket No. 18-0139 (issued May 24, 2018).

13

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009).

14

5 U.S.C. § 8101(2) provides that a physician includes surgeons, podiatrists, dentists, clinical psychologists,
optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by state law.
V.C., Docket No. 16-0642 (issued April 19, 2016); L.C., Docket No. 16-1717 (issued March 2, 2017) (nurses);
Allen C. Hundley, 53 ECAB 551, 554 (2002) (physician assistant).

4

accepted to have occurred as alleged, however, appellant has not submitted sufficient medical
evidence to establish the medical component of fact of injury of her claim. The medical evidence
of record fails to support that she sustained a back injury as a result of the accepted employment
incident.
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 back injury
causally related to the accepted January 20, 2017 employment incident.
ORDER
IT IS HEREBY ORDERED THAT the August 23, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 4, 2018
Washington, DC

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

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
D.C., Appellant
and
DEPARTMENT OF THE NAVY,
PUGENT SOUND NAVAL SHIPYARD &
INTERMEDIATE MAINTENANCE FACILITY,
Bremerton, WA, Employer
__________________________________________

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)
)
)
)
)
)

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

Docket No. 18-0314
Issued: September 24, 2019

Case Submitted on the Record

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

JURISDICTION
On November 28, 2017 appellant filed a timely appeal from an October 26, 2017 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish an injury in the
performance of duty.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On August 24, 2017 appellant, then a 66-year-old welder, filed an occupational disease
claim (Form CA-2) for right hand/wrist carpal tunnel syndrome, due to factors of his federal
employment including welding in various locations. He indicated that he first became aware of
his condition on April 18, 2009, and first realized the condition was related to factors of his federal
employment on April 18, 2017. Appellant did not stop work. On the reverse side of the claim
form, the employing establishment noted that he first reported his condition to his supervisor on
July 17, 2017. Appellant’s supervisor indicated that while he had not seen any medical records
for appellant’s condition, he personally observed appellant’s hands and noted they were “worked
hard.” He also noted having previously observed appellant using vibrating tools while working as
a welder.
In a letter dated September 13, 2017, OWCP informed appellant of the type of evidence
needed to support his claim and requested that he submit such evidence within 30 days. It
particularly requested that he complete a questionnaire describing the employment activities he
believed caused or contributed to his condition. OWCP also advised appellant to submit a narrative
medical report from his physician, which included a specific diagnosis and an opinion on causal
relationship.
Appellant did not provide a response to the questionnaire.
OWCP received records from the employing establishment to include: a notification of
personnel action (Standard Form 50); a welder job summary; and a portion of a certificate of
medical examination pertaining to the functional requirements and environmental factors involved
to perform the duties of a welder.
In an April 18, 2017 report, Leslie B. Schoneman, a physician assistant, noted that
appellant had symptoms consistent with bilateral peripheral neuropathy and also likely bilateral
carpal tunnel syndrome. She explained that “both of these symptoms are likely related to your
diabetes.” Ms. Schoneman also noted that appellant’s primary care physician previously
diagnosed bilateral carpal tunnel syndrome in 2009. She explained that the work causality was
unclear and could not support this claim. Ms. Schoneman commented that it was more likely that
appellant’s condition was not work related.
Dr. Jenny Amani, a family medicine specialist, completed an April 18, 2017 duty status
report (Form CA-17). She noted “ongoing worsening bilateral hand pain with numbness and
tingling in first three fingers of both hands.”
By decision dated October 26, 2017, OWCP denied appellant’s claim finding that he failed
to establish fact of injury as appellant had not described in detail the employment factors he
believed either caused or contributed to his condition. 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 FECA2 has the burden of proof to establish the
essential elements of his or her claim, including that the individual is an employee of the United
States within the meaning of FECA, that the claim was filed within the applicable time limitation
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 establish that an injury was sustained in the performance of duty in an occupational
disease claim, a claimant must submit: (1) medical evidence establishing the presence or existence
of the disease or condition for which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or occurrence of the
disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally
related to the identified employment factors.6
ANALYSIS
The Board finds that appellant failed to meet his burden of proof to establish an injury in
the performance of duty.
Appellant alleged that he developed a right hand condition due to “weld[ing] in various
location[s].” However, he did not otherwise describe his specific duties as a welder that he
believed either caused or contributed to his right hand condition. On September 13, 2017 OWCP
advised appellant of the need for additional factual information regarding his alleged right hand
injury, but he did not respond to its factual questionnaire or otherwise provide a narrative
describing the implicated factors of his federal employment.
An employee’s statement as to how the injury occurred is of great probative value and will
stand unless refuted by strong or persuasive evidence.7 However, in this instance appellant did not
provide a statement as to how the injury occurred. As noted, he bears the burden of submitting a
factual statement identifying employment factors alleged to have caused or contributed to the

2

Id.

3

S.B., Docket No. 17-1779 (issued February 7, 2018); J.P., 59 ECAB 178 (2007); Joe D. Cameron, 41 ECAB
153 (1989).
4
J.M., Docket No. 17-0284 (issued February 7, 2018); R.C., 59 ECAB 427 (2008); James E. Chadden, Sr., 40
ECAB 312 (1988).
5

K.M., Docket No. 15-1660 (issued September 16, 2016); L.M., Docket No. 13-1402 (issued February 7, 2014);
Delores C. Ellyett, 41 ECAB 992 (1990).
6

S.C., Docket No. 18-1242 (issued March 13, 2019); Victor J. Woodhams, 41 ECAB 345, 352 (1989).

7

C.C., Docket No. 10-2054 (issued July 8, 2011).

3

presence or occurrence of the disease or condition.8 Accordingly, appellant has not established an
injury in the performance of duty.
Appellant may submit new evidence or argument with a written request for reconsideration
to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R.
§§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not met his burden of proof to establish an injury in the
performance of duty.
ORDER
IT IS HEREBY ORDERED THAT the October 26, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: September 24, 2019
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

8

See supra note 6.

4


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

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)
)
)
)
)
)

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

Docket No. 19-1298
Issued: March 18, 2020

Case Submitted on the Record

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

JURISDICTION
On May 23, 2019 appellant filed a timely appeal from a May 7, 2019 nonmerit decision of
the Office of Workers’ Compensation Programs (OWCP). The most recent merit decision was a
Board decision dated November 5, 2018, which became final after 30 days of issuance and is not
subject to further review.1 As there was no merit decision issued by OWCP within 180 days of
the filing of this appeal, pursuant to the Federal Employees’ Compensation Act2 (FECA) and
20 C.F.R. §§ 501.2(c) and 501.3, the Board lacks jurisdiction to review the merits of this case.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

1

20 C.F.R. § 501.6(d); see M.E., Docket No. 18-0215 (issued November 5, 2018).

2

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances of the case
as set forth in the Board’s prior decision are incorporated herein by reference. The relevant facts
are as follows.
On October 20, 2017 appellant, then a 54-year-old letter carrier, filed a traumatic injury
claim (Form CA-1) alleging that he injured his left knee on November 11, 2014 while in the
performance of duty “at a tree root in front of a house … while delivering mail in the rain and
dark.” The employing establishment controverted the claim alleging that appellant’s supervisor
was not aware of the incident. It also controverted continuation of pay, as the injury was not
reported on a Form CA-1 within 30 days following the injury.
In a development letter dated October 26, 2017, OWCP advised appellant of the factual
and medical deficiencies of his claim. It informed him of the evidence necessary to establish his
claim and provided a questionnaire for his completion regarding the circumstances of the injury.
OWCP afforded appellant 30 days to respond.
The employing establishment submitted a statement confirming that appellant had
delivered mail on November 11, 2014.
In a March 13, 2015 report, Dr. Alberto Bolanos, a Board-certified orthopedic surgeon,
described February 17, 2015 left knee magnetic resonance imaging (MRI) scan findings. His
diagnoses included left knee medial meniscal tear and chondromalacia of the trochlea. Dr. Bolanos
performed left knee meniscus arthroscopic repair and chondroplasty on April 13, 2015. In a
follow-up report dated June 11, 2015, he indicated that appellant was still having some pain in his
left knee, but less than previously.
The record also contains disability notes signed by Dr. Bolanos indicating that appellant
was seen on December 16, 2014, and February 13 and June 11, 2015.
By decision dated December 5, 2017, OWCP determined that appellant was not entitled to
continuation of pay (COP) for the period November 12 to December 26, 2014 as his injury was
not reported on a form approved by OWCP within 30 days following the alleged injury.
By decision dated December 5, 2017, OWCP denied appellant’s traumatic injury claim,
finding that the evidence of record was insufficient to establish that the November 11, 2014
employment incident occurred as alleged.
On December 19, 2017 appellant requested reconsideration. In an accompanying
statement, he maintained that he had immediately reported his injury to his supervisor who asked
him to continue working and finish delivering the mail. Appellant indicted that he had no choice,
but to continue to work, and had not gone to the doctor that day because he had to pick up his
children at school. He indicated that he started having severe pain, but his supervisor rejected his

3

M.E., supra note 1.

2

requests for days off. Appellant alleged that his supervisor had not documented his injury when
he reported it.
By decision dated January 3, 2018, OWCP denied appellant’s request for reconsideration
without conducting a merit review.
Appellant filed an appeal with the Board on January 19, 2018. By decision dated
November 5, 2018, the Board affirmed the January 3, 2018 and December 5, 2017 decisions
regarding denial of reconsideration and performance of duty. The Board affirmed as modified the
December 5, 2017 decision regarding the COP. The Board found that appellant had not met his
burden of proof to establish a traumatic injury in the performance of duty on November 11, 2014,
and that he was therefore not eligible for COP. The Board further found that OWCP properly
denied appellant’s request for reconsideration of the merits of his claim.
On April 5, 2019 appellant requested reconsideration with OWCP. He submitted
additional evidence, including evidence previously of record. Newly submitted evidence consisted
of an undated report in which Dr. Bolanos indicated that appellant underwent left knee surgery on
April 13, 2015. Appellant also submitted a March 12, 2019 letter from him to an employing
establishment supervisor asking for confirmation that he reported the November 2014 injury. In a
statement dated March 15, 2019 he explained that while delivering mail on November 11, 2014,
he injured his left knee on a tree that was newly cut and a branch half cut, close to a walkway in
front of a house. Appellant noted that he had reported the incident to his supervisor, but was
ordered to continue working. He further noted that he had not sought medical care until it became
severe, and this led to his April 13, 2015 surgery.
By decision dated May 7, 2019, OWCP denied appellant’s request for reconsideration,
finding that the evidence submitted was insufficient to warrant merit review.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant the review of an OWCP decision as a
matter of right.4 OWCP has discretionary authority in this regard and has imposed certain
limitations in exercising its authority.5 One such limitation is that the request for reconsideration
must be received by OWCP within one year of the date of the decision for which review is sought.6
A timely request for reconsideration, including all supporting documents, must set forth
arguments and contain evidence that either: (1) shows that OWCP erroneously applied or
interpreted a specific point of law; (2) advances a relevant legal argument not previously
4

5 U.S.C. § 8128(a).

5

20 C.F.R. § 10.607.

6

Id. at § 10.607(a). 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. Federal (FECA) Procedure
Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016). 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. Chapter 2.1602.4b

3

considered by OWCP; or (3) constitutes relevant and pertinent new evidence not previously
considered by OWCP.7 When a timely request for reconsideration does not meet at least one of
the above-noted requirements, OWCP will deny the request for reconsideration without reopening
the case for a review on the merits.8
ANALYSIS
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim.
With his April 5, 2019 reconsideration request, appellant submitted a statement in which
he documented the events of November 11, 2014, claiming that he injured his left knee on a newly
cut tree branch while delivering mail that day. He further explained that he had reported the injury
to his supervisor.
The Board finds that appellant’s March 15, 2019 response to the development
questionnaire is new and relevant evidence on the issue of whether the November 11, 2014 incident
had occurred as alleged, as it provides further detail as to the circumstances of the incident.9 As
such, the Board finds that OWCP improperly denied a merit review in its decision of May 7, 2019.
Appellant’s statement is relevant and pertinent new evidence not previously considered by
OWCP.10
The Board accordingly finds that appellant met the third above-noted requirement of
20 C.F.R. § 10.606(b)(3) in his April 5, 2019 reconsideration request. Consequently, the Board
finds that OWCP improperly denied merit review pursuant to 20 C.F.R. § 10.608.11 The case shall
therefore be remanded to OWCP for further consideration of the merits of appellant’s claim to be
followed by an appropriate merit decision.
CONCLUSION
The Board finds that OWCP improperly denied appellant’s request for reconsideration of
the merits of his claim.

7

20 C.F.R. § 10.606(b)(3); see G.L., Docket No. 19-0620 (issued September 3, 2019).

8

Id. at § 10.608.

9

See N.D., Docket No. 18-0753 (issued January 17, 2020).

10

R.M., Docket No. 19-0543 (issued December 23, 2019).

11

Id.

4

ORDER
IT IS HEREBY ORDERED THAT the May 7, 2019 decision of the Office of Workers’
Compensation Programs is set aside and the case is remanded for further proceedings consistent
with this decision of the Board.
Issued: March 18, 2020
Washington, DC

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

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

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

5


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

)
)
)
)
)
)
)
)

Appearances:
Paul B. Rippel, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 11-89
Issued: September 7, 2011

Case Submitted on the Record

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

JURISDICTION
On October 14, 2010 appellant, through his attorney, filed a timely appeal of the July 8,
2010 merit decision of the Office of Workers’ Compensation Programs (OWCP) denying waiver
of recovery of an overpayment. The decision also directed repayment of the overpayment.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 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 denied waiver of recovery of a $147,346.75
overpayment of compensation.
On appeal, appellant’s attorney contends that an overpayment of compensation was not
created in this case because appellant did not receive dual compensation as he received
compensation from the Department of Veterans Affairs and OWCP for two different injuries.
Counsel further contends that appellant is entitled to waiver as recovery of the overpayment
1

5 U.S.C. § 8101 et seq.

would be against equity and good conscience. He stated that appellant believed that he was
being paid compensation for two distinct injuries and that his belief was confirmed in writing by
OWCP. Counsel further stated that appellant would suffer financial hardship in repaying the
overpayment.
FACTUAL HISTORY
This case has previously been before the Board. In a September 17, 2008 decision, the
Board affirmed an August 20, 2007 OWCP decision with respect to fact and amount of a
$147,346.75 overpayment of compensation for the period April 19, 1996 through December 24,
2005 due to appellant’s receipt of dual compensation benefits.2 The Board, however, determined
that OWCP improperly found appellant to be at fault in creating the overpayment and remanded
the case to determine whether he was entitled to waiver of recovery of the overpayment. On the
second appeal the Board, in a March 15, 2010 order, set aside OWCP’s decision dated
February 13, 20093 which found that appellant was not entitled to waiver of recovery of the
$147,346.75 overpayment.4 The Board found that OWCP failed to explain why it denied waiver
of recovery of the overpayment and remanded the case to OWCP for consideration of appellant’s
monthly income and expenses and assets based on current financial information in order to
determine if waiver was appropriate. The facts of the case as set forth in the Board’s prior
decisions are incorporated by reference.5
In (Form OWCP-20) dated April 22, 2010, appellant reported monthly income of
$3,951.00 which represented $1,177.00 in social security benefits and $2,774.00 in VA benefits.
He also reported monthly expenses which included $470.00 for mortgage, $395.00 for food,
$40.00 for clothing, $598.04 for utilities, $635.90 for other expenses and $350.00 for child
support, totaling $2,488.94 which he rounded up to $2,489.00. Appellant had $7,739.77 in a
checking account, $68,675.29 in a savings account and $72,164.44 in a money market account,
totaling $148,579.50. He also submitted supporting financial documents.

2

Docket No. 08-378 (issued September 17, 2008).

3

In the February 13, 2009 decision, OWCP reduced the $147,346.75 overpayment to $57,346.75 by compromise
as full recovery of the overpayment at the established rate of $300.00 a month would exceed appellant’s life
expectancy.
4

Docket No. 09-1157 (issued March 15, 2010).

5

OWCP accepted that on September 22, 1990 appellant, then a 40-year-old part-time flexible clerk/carrier,
sustained lumbosacral strain and herniated disc at L3-4 and L4-5 when he fell backwards and tripped while
unloading mail sacks. It authorized a laminectomy at L3-5 which was performed on February 14, 1994. Prior to the
instant claim, the VA, on February 1, 1982, awarded appellant compensation beginning September 14, 1981 for 10
percent disability for a recurrent lumbosacral strain he sustained while serving in the military from February 25,
1969 through December 8, 1972. In a July 15, 1996 decision, it increased his compensation to 60 percent disability
and granted entitlement to individual unemployability effective April 19, 1996. The VA found, among other things,
that the evidence demonstrated an original injury sustained during service with industrial reinjury. Following the
February 14, 1994 back surgery, it found that appellant was totally disabled. On March 6, 1996 the Office of
Personnel Management approved his application for disability retirement. In an October 8, 1996 decision, the VA
denied his request to change its July 15, 1996 decision. On December 14, 2005 appellant elected to receive
compensation benefits from the VA in lieu of FECA compensation benefits effective April 19, 1996.

2

In a July 8, 2010 decision, OWCP denied waiver of recovery of the overpayment.6 It
found that appellant’s income exceeded expenses by more than $50.00.7 OWCP found that his
assets supported his ability to repay a lump sum of $50,000.00 and thereafter monthly payments
of $450.00.
LEGAL PRECEDENT
Under section 8129 of FECA and the implementing regulations, an overpayment must be
recovered 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
good conscience.8 Section 10.433 of the implementing regulations provide that OWCP may
consider waiving an overpayment if the individual to whom it was made was not at fault in
accepting or creating the overpayment.9 Section 10.434 provides that, if OWCP finds the
recipient of an overpayment was not at fault, repayment will be required unless:
“(a) Adjustment or recovery of the overpayment would defeat the purpose of
[FECA], or
“(b) Adjustment or recovery of the overpayment would be against equity and
good conscience.”10
These terms are further defined in sections 10.436 and 10.437. Section 10.436 provides
that recovery would defeat the purpose of FECA if the beneficiary needs substantially all of his
current income to meet current ordinary and necessary living expenses and the beneficiary’s
assets do not exceed a specified amount as determined by OWCP from data provided by the
Bureau of Labor Statistics.11 An individual is deemed to need substantially all of his or her
current income to meet ordinary and necessary living expenses if monthly income does not

6

On April 6, 2010 OWCP issued a preliminary notice of overpayment finding that appellant was not at fault in
creating the $147,346.75 overpayment. It advised appellant that if he disagreed with the fact or amount of the
overpayment he could submit new evidence in support of his contention. In a June 22, 2010 decision, OWCP’s
hearing representative set aside the April 6, 2010 preliminary determination, finding that the Board’s affirmance of
fact and amount of overpayment and determination that appellant was not at fault in creation of the overpayment,
were not subject to its review based on the Board’s September 17, 2008 decision. She remanded the case to OWCP
to determine whether appellant was entitled to waiver of recovery of the overpayment as directed by the Board.
7

The Board notes that OWCP found that appellant’s mortgage was $570.00 rather than $470.00 and his money
market account balance was $72,165.55 rather than $72,164.44.
8

5 U.S.C. § 8129(b); 20 C.F.R. §§ 10.433, 10.434, 10.436, 10.437.

9

20 C.F.R. § 10.433(a).

10

Id. at § 10.434.

11

20 C.F.R. § 10.436. OWCP procedures provide that 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)
(October 2004).

3

exceed expenses by more than $50.00.12 An individual’s liquid assets include but are not limited
to, the value of stocks, bonds, savings accounts, mutual funds and certificates of deposits.13
Nonliquid assets include but are not limited to the fair market value of an owner’s equity in
property such as a camper, boat, second home and furnishings and supplies.14
Section 10.437 provides that recovery of an overpayment would be against equity and
good conscience if: (a) the overpaid individual would experience severe financial hardship in
attempting to repay the debt; and (b) the 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.15 To establish that a valuable right has been relinquished, it must be shown that the
right was in fact valuable, that it cannot be regained and that the action was based chiefly or
solely in reliance on the payments or on the notice of payment.16
ANALYSIS
The Board remanded the case for OWCP to consider whether appellant was entitled to
waiver as he was without fault in creating the overpayment. On remand, OWCP requested that
appellant submit financial evidence relevant to the issue of waiver of the $147,346.75
overpayment. It reviewed the claimed income, expenses and assets provided in appellant’s
April 22, 2010 Form OWCP-20 and found that he had $3,951.00 in monthly income and
$2,588.94 in monthly expenses.
As noted, an individual is deemed to need substantially all of his or her monthly income
to meet ordinary and necessary living expenses when income does not exceed expenses by more
than $50.00. In this case, appellant’s monthly income did exceed his monthly expenses by more
than $50.00. Further, his assets exceeded the applicable resource base. Since appellant is not
deemed by law to need substantially all of his income to meet ordinary and necessary living
expenses, the Board finds that recovery of the overpayment would not defeat the purpose of
FECA.
The evidence further does not demonstrate that repayment of the overpayment would be
against equity and good conscience. Appellant contended on appeal that he believed that he was
being paid compensation for two distinct injuries which was confirmed by OWCP in writing and
that he would suffer severe financial hardship in repaying the overpayment. However, he
submitted no evidence that he relied upon the incorrect payments to his detriment or that he
would experience severe financial hardship attempting to repay the debt. The Board finds,

12

Desiderio Martinez, 55 ECAB 245 (2004).

13

See supra note 11.

14

Id.

15

20 C.F.R. § 10.437.

16

Id. at § 10.437(b)(1).

4

therefore, that OWCP properly denied waiver of the overpayment of $147,346.75 for the period
April 19, 1996 through December 24, 2005.17
On appeal, appellant further contended that an overpayment of compensation was not
created in this case because he did not receive dual compensation as the compensation he
received from the VA and OWCP were for two different injuries. This contention was
previously considered by the Board in its September 17, 2008 decision. The Board affirmed
OWCP’s finding of fact and amount of overpayment based on dual payments.18 Thus, this
matter is res judicata absent any further review by OWCP under 5 U.S.C. § 8128.19
CONCLUSION
The Board finds that OWCP properly denied waiver of the overpayment as the evidence
does not establish that recovery would defeat the purpose of FECA or be against equity and good
conscience.

17

With respect to the recovery of the overpayment in compensation, the Board’s jurisdiction is limited to
reviewing those cases where OWCP seeks recovery from continuing compensation benefits under FECA. See
Terry A. Keister, 56 ECAB 559 (2005); see also Cheryl Thomas, 55 ECAB 610 (2004). As appellant is no longer
receiving wage-loss compensation, the Board does not have jurisdiction with respect to recovery of the overpayment
under the Debt Collection Act. Cheryl Thomas, id.
18

See e.g., Robert G. Burns, 57 ECAB 657 (2006).

19

Id.; see also Clinton E. Anthony, Jr., 49 ECAB 476 (1998).

5

ORDER
IT IS HEREBY ORDERED THAT the July 8, 2010 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: September 7, 2011
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

6