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

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

Docket No. 16-1560
Issued: May 8, 2017

Case Submitted on the Record

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

JURISDICTION
On July 26, 2016 appellant filed a timely appeal from a June 28, 2016 nonmerit decision
and July 6, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of this case.2
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s request for a hearing
before a representative of OWCP’s Branch of Hearings and Review; and (2) whether appellant
has met her burden of proof to establish a recurrence of disability commencing March 19, 2016
causally related to her December 3, 2012 employment injuries.
1
2

5 U.S.C. § 8101 et seq.

Appellant timely requested an oral argument before the Board. By order dated December 22, 2016, the Board
exercised its discretion and denied the request, finding the issues presented could be addressed based on review of
the case record. Order Denying Oral Argument, Docket No. 16-1560 (issued December 22, 2016).

On appeal, appellant contends that she is entitled to wage-loss compensation for time off
work due to her work-related injuries. She further contends that OWCP had engaged in fraud
and forgery in developing the evidence in her case and did not address all the relevant evidence.
FACTUAL HISTORY
On December 3, 2012 appellant, then a 43-year-old rural carrier, filed a traumatic injury
claim (Form CA-1) alleging that, on that date, she sustained left shoulder, chest, and collar bone
injuries as a result of a motor vehicle accident while performing her work duties.3 She stopped
work on December 4, 2012. December 3, 2012 emergency room records diagnosed chest wall
contusion and neck strain or sprain. By letter dated January 9, 2013, OWCP accepted the claim
for contusion of the chest wall and cervical strain.
On January 25, 2013 appellant filed a claim for compensation (Form CA-7) for wage loss
from January 18 to 25, 2013. The accompanying time analysis form (Form CA-7a) noted that
appellant took five hours of leave without pay (LWOP) on January 25, 2013.
In a February 1, 2013 letter, OWCP advised appellant of the deficiencies in her claim and
requested a rationalized medical opinion from a physician addressing how her total disability
during the claimed period was due to the accepted employment-related conditions.
Appellant filed several Form CA-7 claims for compensation for LWOP from January 26
to March 8, 2013.
In a March 19, 2013 decision, OWCP denied appellant’s claim for compensation for the
period January 18 to March 8, 2013. It found that the medical evidence of record failed to
establish that she was disabled during the claimed period as a result of her accepted December 3,
2012 employment-related injuries.
Appellant filed additional Form CA-7 claims for compensation for LWOP from March 9
to April 19, 2013.
By letter dated March 26, 2013, appellant, through counsel, requested a telephone hearing
with an OWCP hearing representative.
In a May 13, 2013 decision, OWCP denied appellant’s claim for compensation for the
period March 9 to April 19, 2013. It found that the medical evidence of record failed to establish
that she was disabled during the claimed period as a result of her accepted December 3, 2012
work injuries.
On May 20, 2013 counsel requested a telephone hearing, which was held with an OWCP
hearing representative on July 19, 2013.

3

The employing establishment indicated that appellant had filed a prior claim for a February 16, 2012 left
shoulder injury under File No. xxxxxx945. It noted that OWCP denied the claim on April 13, 2012 and
April 12, 2013. Appellant returned to full-duty work on August 16, 2012.

2

By decision dated October 21, 2013, an OWCP hearing representative affirmed the
March 19 and May 13, 2013 decisions. She found that appellant had not submitted rationalized
medical opinion evidence sufficient to establish disability from January 18 to April 19, 2013 due
to her accepted December 3, 2012 employment-related injuries.
In a March 14, 2016 medical report, Dr. Elemer Raffai, an orthopedic surgeon, noted a
history of the accepted December 3, 2012 employment injuries and appellant’s medical and
family background. He provided examination findings and assessed left shoulder impingement
syndrome, left shoulder adhesive capsulitis, and sprain of the sternoclavicular (joint) (ligament),
sequela. Dr. Raffai advised that appellant could not work for three weeks.
A March 17, 2016 report signed by Brian Lecuyer, a nurse practitioner, revealed that
appellant had subluxation of the left acromioclavicular (AC) joint, sequela and spondylosis
without myelopathy or radiculopathy, cervical region. He found that she was totally disabled
due to pain and difficulty using her left arm and shoulder.
By letter dated April 7, 2016, OWCP accepted appellant’s claim for subluxation of the
left AC joint, sequela and spondylosis without myelopathy or radiculopathy of the cervical
region.
A March 14, 2016 disability certificate contained an unknown signature and noted
diagnoses of cervical sprain and chest contusion. Appellant was unable to work through
April 15, 2016.
In a March 17, 2016 disability certificate, Dr. Jason Arora, a physiatrist, diagnosed left
shoulder pain and cervical radiculopathy. He recommended that appellant be off work through
April 17, 2016. In an April 12, 2016 disability certificate, Dr. Arora reiterated his diagnoses and
recommended that appellant be off work through May 12, 2016.
On March 29, 2016 Dr. Kejian Tang, a neurologist, noted appellant’s history of injury
and medical background. He provided examination findings and assessed a cervical sprain.
Dr. Tang found no evidence of cervical radiculopathy.
In an April 4, 2016 operative report, Dr. Thierry Bonnabesse, Board-certified in pain
medicine and physiatry, diagnosed left posterior shoulder/trapezius pain. He noted that a left
suprascapular nerve block was given. On April 12, 2016 Dr. Bonnabesse examined appellant
and assessed radiculopathy, cervical region and left shoulder pain. He advised that she was 100
percent temporarily disabled as a result of difficulty with pain and ability to use her left arm
shoulder.
In an April 14, 2016 left shoulder magnetic resonance imaging (MRI) scan report,
Dr. Mordechai Rehany, a Board-certified radiologist, provided an impression of tendinopathy of
supraspinatus and infraspinatus tendons with an intrasubstance longitudinal tear of the
supraspinatus. There was no sign of a full-thickness tear. Dr. Rehany also found an intact
biceps, no evidence of a labral tear, and hypertrophic changes at the AC joint without significant
indentation on the muscle belly of the supraspinatus.

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In an April 12, 2016 appeal request form, appellant requested both a telephone hearing
and a review of the written record by an OWCP hearing representative with regard to OWCP’s
May 13, 2013 decision. She questioned why both of her claims for compensation had been
combined by OWCP.
On April 20, 2016 Dr. Raffai examined appellant and reviewed Dr. Rehany’s April 14,
2016 left shoulder MRI scan findings. He provided an impression of left shoulder impingement
syndrome and recommended arthroscopy. On April 28, 2016 Dr. Arora diagnosed cervical
discogenic pain and restated his prior diagnosis of cervical radiculopathy. He noted that a
cervical epidural steroid injection was given at C7-T1.
By letter dated May 11, 2016, OWCP accepted appellant’s claim for left shoulder
impingement syndrome and authorized left shoulder arthroscopic surgery.4
A disability certificate dated May 18, 2016 contained the same unknown signature as the
March 14, 2016 and indicated that appellant was unable to work from May 21 to June 21, 2016.
Appellant filed a recurrence claim (Form CA-2a) dated May 17, 2016, and received on
May 31, 2016, alleging that on March 19, 2016 she sustained a recurrence of disability of the
December 3, 2012 employment injuries. She noted that she was currently working part time.
Appellant claimed that no light-duty work was available. She reported that following the
original injury she first returned to full-time regular-duty work on May 11, 2013. On the claim
form, the employing establishment indicated that, after the original injury, it had not made any
accommodations or adjustments in appellant’s regular duties due to injury-related limitations.
Appellant submitted a May 18, 2016 laboratory report from Alice Hyde Medical Center.
In a May 18, 2016 chest x-ray report, Dr. Rehany found no abnormality.
On June 2, 2016 OWCP informed appellant of the evidence needed to establish her
recurrence claim. This included a narrative medical report from her physician describing the
objective medical findings that formed the basis of her renewed disability for work.
In a May 9, 2016 report, Dr. Bonnabesse noted findings on physical examination and
reiterated his prior assessment of left shoulder pain and cervical radiculopathy. He also
reiterated his prior opinion that appellant was totally disabled due to pain.
In a May 18, 2016 report, Dr. Raffai noted findings on examination and provided an
impression of chronic shoulder pain. He reiterated his prior impression of left shoulder
impingement and placed appellant off work as no light-duty work was available.
In an undated attending physician’s report (Form CA-20), Dr. Tang noted a history of the
December 3, 2012 work injuries. He reiterated his prior diagnosis of cervical strain and
indicated that the diagnosed condition was not caused or aggravated by an employment activity.
Dr. Tang advised that appellant could resume light work as of March 29, 2016. In a duty status

4

The record does not indicate that appellant underwent the authorized left shoulder surgery.

4

report (Form CA-17) dated March 29, 2016, he restated his cervical strain diagnosis and
indicated that appellant could perform her regular full-time work duties.
By letter dated June 9, 2016, appellant contended that she was first taken off work on
March 14, 2016. She noted her left shoulder and neck flare-ups and medical treatment.
Appellant also noted that she performed light-duty work on her own. In a June 10, 2016 letter,
she maintained that she was advised not to file her Form CA-2a and CA-7 forms for the period
March 5 to April 1, 2016 until March 19, 2016 because she did not know to file the claims. She
used sick leave and vacation time when her physician placed her off work on March 14, 2016.
In a June 14, 2016 letter, the employing establishment challenged appellant’s recurrence
claim, contending that it could not offer her light-duty work without any restrictions from her
physician. It questioned the date of the alleged recurrence of disability as appellant claimed that
it occurred on March 19, 2016, but her first medical documentation indicated that she was
disabled from March 17 to April 17, 2016. The employing establishment asserted that she did
not submit sufficient medical evidence.
In disability certificates dated March 17 and May 12, 2016, Mr. Lecuyer reiterated his
prior diagnoses. He recommended that appellant should be released from work from March 17
to April 17, 2016 and May 12 to June 12, 2016, respectively.
An undated Form CA-20 contained an unknown signature and noted a history of the
accepted December 3, 2012 employment injuries. The report provided the diagnoses of
subluxation of the left AC joint, sequela and left shoulder pain. A box was marked “yes”
indicating that the diagnosed conditions were caused or aggravated by an employment activity.
Appellant was advised that she could return to light work with restrictions.
In a June 23, 2016 report, Dr. Dragos Macelaru, an orthopedic surgeon, noted a history of
the December 3, 2012 work injuries and provided examination findings. He assessed left
shoulder pain and left shoulder adhesive capsulitis, and recommended surgery.
By decision dated June 28, 2016, OWCP denied appellant’s request for a hearing. It
determined that she was not entitled to an oral hearing or a review of the written record as a
matter of right as she had previously requested a hearing on the same issue, for which a decision
was issued on October 21, 2013. OWCP exercised its discretion and denied appellant’s request
for a hearing as it found that the issue in the case could be addressed equally well on
reconsideration by submitting new evidence which established that she was entitled to wage-loss
compensation for the period January 18 to April 19, 2013.5
In a July 6, 2016 decision, OWCP denied appellant’s claim for a recurrence of disability.
It found that the medical evidence of record did not contain a rationalized opinion from a
physician to establish that she was disabled commencing March 19, 2016 due to a material
change/worsening of her accepted work-related conditions.
5

OWCP inadvertently stated that the claimed period of total disability was from March 9 to April 19, 2013 rather
than January 18 to April 19, 2013 as the October 21, 2013 decision affirmed the denial of wage-loss compensation
for the latter period.

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LEGAL PRECEDENT -- ISSUE 1
Any claimant dissatisfied with an OWCP decision shall be afforded an opportunity for
either an oral hearing or a review of the written record.6 A request for a hearing or review of the
written record must be submitted, in writing, within 30 days of the date of the decision for which
a hearing is sought.7 If the request is not made within 30 days, a claimant is not entitled to a
hearing or a review of the written record as a matter of right. OWCP regulations further provide
that the claimant must have not previously submitted a reconsideration request (whether or not it
was granted) on the same decision.8 Although a claimant who has previously sought
reconsideration is not, as a matter of right, entitled to a hearing or review of the written record,
the Branch of Hearings and Review may exercise its discretion to either grant or deny a hearing
following reconsideration.9 Similarly, the Branch of Hearings and Review may exercise its
discretion to conduct a hearing or review the written record where a claimant requests a second
hearing or review on the written record on the same issue.10
ANALYSIS -- ISSUE 1
The Board lacks jurisdiction to review the merits of the underlying issue of whether
appellant has established entitlement to wage-loss compensation for the period January 18 to
April 19, 2013. The Board’s jurisdiction is limited to determining whether OWCP properly
denied her request for a hearing.
By decisions dated March 19 and May 13, 2013, OWCP denied appellant’s claims for
compensation for LWOP for the period January 18 to April 19, 2013. In an October 21, 2013
decision, an OWCP hearing representative affirmed the denial of her claims.
On April 12, 2016 appellant requested both a telephone hearing and a review of the
written from OWCP’s May 13, 2013 decision. By decision dated June 28, 2016, OWCP
determined that appellant was not entitled to a hearing as a matter of right as she had previously
requested and received a hearing by a representative of OWCP’s Branch of Hearings and
Review. The Board concludes that appellant was not entitled to a hearing as a matter of right as
she had previously requested and received a hearing by an OWCP hearing representative.11
The Board further finds that OWCP properly exercised its discretion in denying
appellant’s request for another hearing by determining that the issue in the case could be
addressed equally well by requesting reconsideration and submitting new evidence relevant to
6

5 U.S.C. § 8124(b)(1); 20 C.F.R. § 10.615.

7

Id. at 10.616(a).

8

Id.

9

D.E., 59 ECAB 438 (2008); Hubert Jones, Jr., 57 ECAB 467 (2006).

10

Supra note 7.

11

20 C.F.R. § 10.616(a). See also D.E., supra note 9.

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the issue at hand.12 The Board has held that the only limitation on OWCP’s discretionary
authority is reasonableness. An abuse of discretion is generally shown through proof of manifest
error, a clearly unreasonable exercise of judgment, or actions taken which are contrary to logic
and probable deduction from established facts.13 There is no evidence that OWCP abused its
discretion in denying appellant’s request for a hearing under these circumstances.14 Accordingly,
the Board finds that OWCP properly denied appellant’s April 12, 2016 request for a hearing.
LEGAL PRECEDENT -- ISSUE 2
A recurrence of disability means “an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.”15 An individual person who claims a recurrence of disability due to an
accepted employment-related injury has the burden of establishing by the weight of the
substantial, reliable, and probative evidence that the disability for which he or she claims
compensation is causally related to the accepted injury. This burden of proof requires that an
employee furnish medical evidence from a physician who, on the basis of a complete and
accurate factual and medical history, concludes that the disabling condition is causally related to
the employment injury and supports that conclusion with sound medical reasoning.16 Where no
such rationale is present, medical evidence is of diminished probative value.17
ANALYSIS -- ISSUE 2
OWCP accepted that appellant sustained contusion of the chest wall, cervical strain,
subluxation of the left AC joint, sequela, spondylosis without myelopathy or radiculopathy,
cervical region, and left shoulder impingement on December 3, 2012 in the performance of duty.
She stopped work on December 4, 2012 and returned to full-time regular-duty work on
May 11, 2013. Subsequently, appellant claimed a recurrence of total disability beginning
March 19, 2016.
The Board finds that appellant has not met her burden of proof to establish a recurrence
of disability. There is no rationalized medical opinion of record which sufficiently relates her
current disability and medical conditions to the December 3, 2012 accepted conditions.
OWCP received several reports from Dr. Raffai. On March 14, 2016 Dr. Raffai found
that appellant could not work for three weeks. He noted a history of the work injuries, provided
findings, and diagnosed left shoulder impingement syndrome, left shoulder adhesive capsulitis,
12

Hubert Jones, Jr., supra note 9; Sandra F. Powell, 45 ECAB 877 (1994).

13

See M.C., Docket No. 09-2314 (issued August 20, 2010); Claudia Vazquez, 52 ECAB 496 (2001).

14

See L.O., Docket No. 15-1346 (issued November 17, 2015).

15

20 C.F.R. § 10.5(x); R.S., 58 ECAB 362 (2007).

16

S.S., 59 ECAB 315 (2008).

17

See Ronald C. Hand, 49 ECAB 113 (1997).

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and sequela of sternoclavicular sprain. On May 18, 2016 Dr. Raffai examined appellant and
diagnosed left shoulder impingement and chronic shoulder pain. He placed her off work because
no light-duty work was available. While Dr. Raffai found that appellant was totally disabled
from work, he did not specifically address the cause of the disability or explain how the
disability was work related. Medical evidence that does not offer any opinion regarding the
cause of an employee’s condition is of limited probative value.18 Further, OWCP has not
accepted the currently diagnosed conditions of left shoulder adhesive capsulitis and
sternoclavicular sprain as causally related to the December 3, 2012 work injuries. For conditions
not accepted by OWCP as being employment related, it is the employee’s burden of proof to
provide rationalized medical evidence sufficient to establish causal relationship.19 None of the
reports from Dr. Raffai contain medical rationale explaining how the additional diagnosed
conditions had been caused or aggravated by the accepted December 3, 2012 employment
injuries. Dr. Raffai’s remaining report dated April 20, 2016 did not address whether appellant
had any employment-related disability commencing March 19, 2016.
Similarly, the reports of Drs. Arora and Bonnabesse are of diminished probative value.
In disability certificates dated March 17 and April 12, 2016, Dr. Arora found that appellant could
not work from March 17 to May 12, 2016. He diagnosed left shoulder pain and cervical
radiculopathy. In reports dated April 12 and May 9, 2016, Dr. Bonnabesse found that appellant
was temporarily totally disabled due to difficulty with pain and inability to use her left arm
shoulder. He diagnosed cervical radiculopathy and left shoulder pain. Neither physician offered
a medical opinion addressing whether appellant’s disability was due to the accepted December 3,
2012 work injuries as cervical radiculopathy has not been accepted as employment related by
OWCP.20 Moreover, neither Dr. Arora nor Dr. Bonnabesse provided a medical opinion that the
additional diagnosed cervical condition was causally related to the accepted employment
injuries. The remaining reports from these physicians are similarly insufficient to establish
appellant’s recurrence claim. These reports provided diagnoses and addressed her medical
treatment, but neither physician provided an opinion stating that the diagnosed conditions and
medical treatment were caused by the accepted work injuries.
The remaining reports and diagnostic test results are insufficient to establish appellant’s
recurrence claim. These reports are of limited probative value as none of the physicians
provided an opinion addressing whether appellant’s diagnosed conditions and disability were
caused by the accepted employment injuries.21
Appellant also submitted evidence from a nurse practitioner. The Board has held that
documents signed by a nurse practitioner are not considered probative medical evidence as a

18

C.B., Docket No. 09-2027 (issued May 12, 2010); J.F., Docket No. 09-1061 (issued November 17, 2009); A.D.,
58 ECAB 149 (2006).
19

G.A., Docket No. 09-2153 (issued June 10, 2010); Jaja K. Asaramo, 55 ECAB 200 (2004); Alice J. Tysinger,
51 ECAB 638 (2000).
20

See id.

21

See supra note 18.

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nurse practitioner is not considered a physician as defined under FECA.22 Similarly, appellant
submitted disability certificates and a Form CA-20 report with unknown signatures which are not
considered probative medical evidence. The Board has held that unsigned reports or ones that
bear illegible signatures cannot be considered as probative medical evidence because they lack
proper identification.23
The Board finds that appellant failed to establish a recurrence of disability commencing
March 19, 2016. Consequently, appellant failed to meet her burden of proof.
On appeal, appellant argues the merits of her claim, contending that she is entitled to
wage-loss compensation for time off from work due to her work-related injuries. She further
contends that OWCP had engaged in fraud and forgery in developing the evidence in her case
and did not address all the relevant evidence. However, as explained above appellant failed to
meet her 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 OWCP properly denied appellant’s request for a hearing before a
representative of OWCP’s Branch of Hearings and Review. The Board further finds that
appellant failed to meet her burden of proof to establish a recurrence of disability commencing
March 19, 2016 causally related to her December 3, 2012 employment injuries.

22

L.D., 59 ECAB 648 (2008); Paul Foster, 56 ECAB 208 (2004); see David P. Sawchuk, 57 ECAB 316 (2006)
(lay individuals such as physician assistants, nurses and physical therapists are not competent to render a medical
opinion under FECA); 5 U.S.C. § 8101(2) (this subsection defines a physician as surgeons, podiatrists, dentists,
clinical psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as
defined by State law).
23

See J.P., Docket No. 16-0501 (issued July 11, 2016).

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ORDER
IT IS HEREBY ORDERED THAT the July 6 and June 28, 2016 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: May 8, 2017
Washington, DC

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

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

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

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

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

Docket No. 12-1293
Issued: December 17, 2012

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 29, 2012 appellant, through his attorney, filed a timely appeal from a May 3,
2012 Office of Workers’ Compensation Programs’ (OWCP) decision denying his
reconsideration request on the grounds that it was untimely filed and failed to present clear
evidence of error. Because more than 180 days elapsed since the most recent merit decision
dated March 8, 2011 to the filing of this appeal on May 29, 2012, the Board lacks jurisdiction to
review the merits of appellant’s case but has jurisdiction over the nonmerits pursuant to the
Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the grounds that it was not timely filed and did not establish clear evidence of error.
On appeal, appellant’s attorney contends that the May 3, 2012 OWCP decision is
contrary to fact and law.
1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This case has previously been before the Board. On October 27, 2008 appellant, then a
46-year-old letter carrier, filed a traumatic injury claim (Form CA-1) alleging that on October 14,
2008 he sustained an aggravation of a lower back injury in the performance of duty. By decision
dated February 19, 2010, OWCP denied the claim finding that the medical evidence was not
sufficient to establish a diagnosis in connection to the October 14, 2008 employment incident.
Appellant, through his attorney, filed an appeal with the Board. In a decision dated March 8,
2011, the Board affirmed OWCP’s February 19, 2010 merit decision.2 The facts of the case, as
set forth in the prior decision, are incorporated by reference.
By letter dated March 9, 2012 appellant, through counsel, requested reconsideration and
submitted a February 28, 2012 report by Dr. Kevin L. Trangle, a Board-certified internist and
occupational medicine specialist, who stated that he performed a medical record review for
evaluation only. Appellant was not seen or examined. Based on his review of appellant’s
medical record, Dr. Trangle concluded that appellant experienced a recurrence of his low back
pain following the performance of heavy labor at work while transferring heavy mail trays from
his truck on October 14, 2008.
By decision dated May 3, 2012, OWCP denied appellant’s request for reconsideration on
the grounds that it was untimely filed and failed to present clear evidence of error.
LEGAL PRECEDENT
Section 8128(a) of FECA does not entitle a claimant to review of OWCP’s decision as a
matter of right.3 OWCP, through its regulations, has imposed limitations on the exercise of its
discretionary authority under section 8128(a).4 One such limitation provides that an application
for reconsideration must be submitted within one year of the date of OWCP’s decision for which
review is sought.5 The Board has found that the imposition of this one-year time limitation does
not constitute an abuse of the discretionary authority granted OWCP under 5 U.S.C. § 8128(a).6
Section 10.607(b) states that OWCP will consider an untimely application for
reconsideration only if it demonstrates clear evidence of error by OWCP in its most recent merit
decision. The reconsideration request must establish that OWCP’s decision was, on its face,
erroneous.7

2

Docket No. 10-1252 (issued March 8, 2011).

3

See Jesus D. Sanchez, 41 ECAB 964 (1990); Leon D. Faidley, Jr., 41 ECAB 104 (1989).

4

See Annette Louise, 54 ECAB 783, 789-90 (2003).

5

20 C.F.R. § 10.607(a).

6

See; F.R., Docket No. 09-575 (issued January 4, 2010); Jesus D. Sanchez, supra note 3.

7

20 C.F.R. § 10.607(b).

2

To establish clear evidence of error, a claimant must submit evidence relevant to the
issue, which was decided by OWCP.8 The evidence must be positive, precise and explicit and
must be manifest on its face that OWCP committed an error.9 Evidence that does not raise a
substantial question concerning the correctness of OWCP’s decision is insufficient to establish
clear evidence of error.10 It is not enough merely to show that the evidence could be construed
so as to produce a contrary conclusion.11 This entails a limited review by OWCP of how the
evidence submitted with the reconsideration request bears on the evidence previously of record
and whether the new evidence demonstrates clear error on the part of OWCP.12
To establish clear evidence of error, the evidence submitted must not only be of sufficient
probative value to create a conflict in medical opinion or establish a clear procedural error, but
must be of sufficient probative value to prima facie shift the weight of the evidence in favor of
the claimant and raise a substantial question as to the correctness of OWCP’s decision.13 The
Board makes an independent determination of whether a claimant has submitted clear evidence
of error on the part of OWCP such that OWCP abused its discretion in denying merit review in
the face of such evidence.14
ANALYSIS
The Board finds that OWCP properly determined that appellant failed to file a timely
request for reconsideration. OWCP’s regulations15 and procedures16 establish a one-year time
limit for requesting reconsideration, which begins on the date of the original OWCP decision.
However, a right to reconsideration within one year also accompanies any subsequent merit
decision on the issues,17 including any merit decision by the Board and any merit decision
following action by the Board.18 The most recent merit decision was the Board’s March 8, 2011
decision. Appellant had one year from the date of this decision to make a timely request for
reconsideration. Since he did not file his request until March 9, 2012, it was filed outside the
one-year time period. As appellant’s March 9, 2012 request for reconsideration was submitted
8

See Nancy Marcano, 50 ECAB 110, 114 (1998); Dean D. Beets, 43 ECAB 1153, 157-58 (1992).

9

See M.L., Docket No. 09-956 (issued April 15, 2010); Fidel E. Perez, 48 ECAB 663, 665 (1997).

10

See Richard L. Rhodes, 50 ECAB 259, 264 (1999).

11

See Leona N. Travis, 43 ECAB 227, 241 (1991).

12

See Jimmy L. Day, 48 ECAB 652 (1997); Nelson T. Thompson, 43 ECAB 919, 922 (1992).

13

See Velvetta C. Coleman, 48 ECAB 367, 370 (1997).

14

See Pete F. Dorso, 52 ECAB 424 (2001); Thankamma Matthews, 44 ECAB 765, 770 (1993).

15

20 C.F.R. § 10.607(a); see Alberta Dukes, 56 ECAB 247 (2005).

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (January 2004); see
Veletta C. Coleman, supra note 13.
17

See Robert F. Stone, 57 ECAB 292 (2005).

18

See supra note 16 at Chapter 2.1602.3.b (January 2004).

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more than one year after the March 8, 2011 merit decision, it was untimely filed. Consequently,
he must demonstrate clear evidence of error by OWCP in the denial of his claim.19
OWCP denied appellant’s traumatic injury claim because there was insufficient medical
evidence to establish a diagnosis in connection with the October 14, 2008 employment incident,
the medical component of fact of injury. In his February 28, 2012 report, Dr. Trangle concluded
that appellant sustained a recurrence of his low back injury in the performance of duty on
October 14, 2008, but his opinion was based solely on a review of appellant’s medical record.
He did not see or examine appellant, nor did he provide a firm diagnosis in connection with the
October 14, 2008 employment incident. The February 28, 2012 report by Dr. Trangle does not
establish clear evidence of error as it does not show that OWCP committed an error in denying
appellant’s claim on the grounds that the medical evidence did not establish fact of injury, nor
does it raise a substantial question as to the correctness of OWCP’s decision. Thus, the Board
finds that the medical evidence submitted by appellant is not sufficient to establish clear error by
OWCP in denying his claim.20
To establish clear evidence of error, it is not sufficient merely to show that the evidence
could be construed so as to produce a contrary conclusion. The term clear evidence of error is
intended to represent a difficult standard.21 None of the evidence submitted manifests on its face
that OWCP committed an error in denying appellant’s claim. Appellant has not otherwise
submitted evidence of sufficient probative value to raise a substantial question as to the
correctness of OWCP’s decision. Thus, the evidence is insufficient to establish clear evidence of
error.
On appeal, counsel contends that the May 3, 2012 OWCP decision is contrary to fact and
law. For the reasons stated above, the Board finds counsel’s argument is not substantiated.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration on
the basis that it was not timely filed and failed to establish clear evidence of error.

19

Supra note 7; see Debra McDavid, 57 ECAB 149 (2005).

20

See J.R., Docket No. 10-2137 (issued July 12, 2011).

21

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.5 (October 2011); see
Dean D. Beets, supra note 8.

4

ORDER
IT IS HEREBY ORDERED THAT the May 3, 2012 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: December 17, 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

5


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
)
and
)
)
DEPARTMENT OF THE INTERIOR,
)
NATIONAL PARK SERVICE, Greensboro, NC, )
Employer
)
___________________________________________ )
E.B., Appellant

Appearances:

Docket No. 07-963
Issued: September 14, 2007

Case Submitted on the Record

Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JURISDICTION
On February 26, 2007 appellant filed a timely appeal of a December 5, 2006 merit
decision of the Office of Workers’ Compensation Programs which found that he had no more
than a 50 percent permanent impairment of the right leg for which he received a schedule award.
He also appealed a January 10, 2007 decision which denied his request for a lump-sum payment
of the schedule award and a February 2, 2007 decision which denied further merit review of his
claim. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of
the case.
ISSUES
The issues on appeal are: (1) whether the Office properly determined that appellant had
no more than a 50 percent permanent impairment of his right leg for which he received a
schedule award; (2) whether the Office properly denied appellant’s request for a lump-sum
payment for his schedule award; and (3) whether the Office properly denied appellant’s request
for reconsideration.

FACTUAL HISTORY
On June 11, 2003 appellant, then a 39-year-old maintenance worker, filed a claim
alleging that on June 5, 2003 he injured his right knee while attempting to mount a lawn mower.
The Office accepted his claim for right knee contusion, right knee meniscus tear, derangement of
the medial meniscus of the right knee and permanent aggravation of the right knee osteoarthritis.
The Office authorized arthroscopic surgeries which were performed on August 11, 2003 and
February 6, 2004 and a right total knee replacement which was performed on August 24, 2005.
Appellant stopped work on June 6, 2003 and returned to a light-duty position on
August 29, 2003. He was terminated on November 1, 2004 because there was no work available
in conformance with his medical restrictions. Appropriate compensation benefits were paid.
A July 8, 2003 magnetic resonance imaging (MRI) scan of the right knee revealed
mucoid degeneration and a probable horizontal cleavage tear of the medial meniscus. On
August 11, 2003 Dr. John L. Graves, a Board-certified orthopedic surgeon, performed a partial
medial meniscectomy and debridement of the femoral trochlea and diagnosed medial meniscal
tear and chondromalacia of the trochlea. He noted postsurgery that appellant had persistent
medial right knee pain and recommended a repeat arthroscopy. On February 6, 2004 Dr. Graves
performed a debridement of the medial meniscus tear with corresponding debridement of
chondromalacia of the medial tibial plateau and medial femoral condyle, removal of multiple
osteocartilaginous loose bodies and debridement of minimal change chondromalacia of patella.
He diagnosed medial meniscus tear with medial-sided pain and multiple cartilaginous loose
bodies of the right knee. In reports dated February 23 to May 24, 2004, Dr. Graves advised that
appellant was progressing well postoperatively and released to full unrestricted duty on
May 3, 2004.
In July 7, 2004, appellant filed a claim for a schedule award. In a July 20, 2004 letter, the
Office requested that Dr. Graves provide an evaluation of permanent impairment of the right
lower extremity in accordance with the fifth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (A.M.A., Guides).1
On July 26, 2004 Dr. Graves advised that appellant reached maximum medical
improvement on May 24, 2004. He recommended a 10 percent permanent impairment of the
right lower extremity. In a report dated August 23, 2004, the Office medical adviser determined
that appellant had two percent permanent impairment of the right leg for a partial medial
meniscectomy. On October 13, 2004 Dr. Graves indicated that appellant had Grade 2 chondral
changes over the medial and patellofemoral compartment. He recommended 10 percent
permanent impairment. On November 12, 2004 the Office medical adviser again stated that
appellant had two percent impairment of the right leg.
On December 6, 2004 the Office granted appellant a schedule award for two percent
permanent impairment of the right leg. The award ran from June 13 to July 23, 2004.
In reports dated December 9, 2004 to February 4, 2005, Dr. Graves advised that
appellant’s degenerative joint disease of the right knee was nonresponsive to treatment. He
1

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

2

recommended a unicompartmental right knee arthroplasty. On March 3, 2005 the Office referred
appellant for a second opinion to Dr. Surendrapal Singh Mac, a Board-certified orthopedic
surgeon, for a determination as to whether a right arthroplasty should be authorized by the
Office. On March 28, 2005 Dr. Mac noted appellant’s history and diagnosed mild degenerative
arthritis. He opined that, upon physical examination and a review of x-rays, he could not
recommend a total knee replacement. Appellant submitted reports from Dr. Graves who
continued to recommend a right total knee replacement. In a report dated August 4, 2005, an
Office medical adviser recommended a right arthroplasty.
On August 24, 2005 Dr. Graves performed a right total knee replacement and diagnosed
degenerative joint disease of the right knee. He submitted reports dated September 6, 2005 to
February 28, 2006 which noted that appellant was progressing well postoperatively.
The Office received documents from the North Carolina Child Support Enforcement
Program requesting that it withhold child support arrearages from appellant’s compensation
payments. In a letter dated June 5, 2006, the Office notified the North Carolina Child Support
Collections Agency that $135.69 would be withheld from appellant’s compensation every 28
days for child support arrearages.
On July 21, 2006 appellant’s case record was referred to the Office medical adviser. On
July 24, 2006 he found that appellant sustained a 50 percent impairment of the right leg. The
Office medical adviser opined that in accordance with Table 17-35 of the A.M.A., Guides
appellant obtained fair results from the right total knee replacement.2 He noted that, under Table
17-33 of the A.M.A., Guides, a total knee replacement including uniconylar replacement with
fair results, represented 50 percent permanent impairment of the right lower extremity.3
In a report dated September 7, 2006, Dr. Graves treated appellant for right knee pain. He
noted that appellant’s right knee was intact neurovascularly, the wound was healing properly and
range of motion was 0 to 110 degrees with no instability. On November 7, 2006 Dr. Graves
advised that appellant presented with right knee pain. He noted that the right knee was stable
without effusion and had excellent range of motion with flexion of 0 to 110 degrees. X-rays of
the right knee revealed no problems with the knee prosthesis.
In a decision dated December 5, 2006, the Office granted appellant a schedule award for
50 percent permanent impairment of the right leg. The period of the award was from
December 5, 2006 to July 29, 2009. The Office noted that appellant was previously granted a 2
percent impairment of the right leg and was entitled to an additional award of 48 percent.
In a letter dated December 13, 2006, appellant requested a lump-sum payment of his
schedule award. He noted that his wife earned $9.50 per hour and they could live on her salary.
In a decision dated January 10, 2007, the Office denied appellant’s request for a lumpsum payment. The Office noted that lump-sum payments of schedule awards generally would be
2

See A.M.A., Guides, Table 17-35 at 549 (5th ed. 2001).

3

See id at 546-47, Table 17-33 (5th ed. 2001).

3

considered in the employee’s best interest when the employee did not rely upon compensation
payments as a substitute for lost wages; that is the employee was working or receiving an
annuity. The Office noted that appellant was not working or receiving an annuity. Additionally,
the Office noted that appellant would be precluded from receiving a lump-sum payment because
his compensation benefits were being garnished for child support payments.
On January 12, 2007 appellant requested reconsideration. He indicated that he had
adequate income as his wife earned $10.50 per hour and had income from an additional source of
$400.00 a month. The Office received a child support order dated November 18, 2004 which
noted that appellant was in arrears in his child support payments and was ordered to pay $147.00
per month toward his arrears.
In a decision dated February 2, 2007, the Office denied appellant’s reconsideration
request as insufficient to warrant further review of the prior decision.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of the Federal Employees’ Compensation Act4 and its
implementing regulation5 set forth the number of weeks of compensation payable to employees
sustaining permanent impairment from loss, or loss of use, of scheduled members or functions of
the body. However, the Act 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 regulation as the appropriate standard for evaluating schedule losses.6
ANALYSIS -- ISSUE 1
Appellant asserts that he has greater than 50 percent permanent impairment of the right
leg. The Office accepted appellant’s claim for right knee contusion, right knee meniscus tear,
derangement of the medial meniscus of the right knee and permanent aggravation of the right
knee osteoarthritis. The Office authorized arthroscopic surgeries which were performed on
August 11, 2003 and February 6, 2004 and a right total knee replacement which was performed
on August 24, 2005.
In a report dated September 7, 2006, Dr. Graves treated appellant for right knee pain. He
noted that appellant’s right knee was neurovascularly intact, the wound was healing properly and
range of motion was 0 to 110 degrees with no instability.
The medical adviser properly applied the A.M.A., Guides to the information provided by
Dr. Graves. He made an impairment rating of 50 percent of the right lower extremity in
accordance with Table 17-33 of the A.M.A., Guides as appellant obtained fair results from the
4

5 U.S.C. § 8107.

5

20 C.F.R. § 10.404 (1999).

6

See id.; Jacqueline S. Harris, 54 ECAB 139 (2002).

4

right total knee replacement.7 The medical adviser opined that, under Table 17-33 of the
A.M.A., Guides, a total knee replacement including uniconylar replacement with fair results
represents 50 percent permanent impairment of a lower extremity.8 This evaluation conforms to
the A.M.A., Guides. The Board finds that appellant has no more than a 50 percent impairment of
the right lower extremity.
The Board notes that appellant also submitted a report from Dr. Graves dated
November 7, 2006, who noted that appellant’s right knee was stable, without effusion and with
excellent range of motion with flexion of 0 to 110 degrees. Dr. Graves noted that x-rays of the
right knee revealed no problem with the knee prosthesis. Appellant did not submit any medical
evidence supporting more than 50 percent permanent impairment of his right lower extremity.
The Office properly noted that appellant was previously granted a schedule award for
2 percent permanent impairment of the right leg therefore he was entitled to an additional award
of 48 percent permanent impairment of the right leg.
LEGAL PRECEDENT -- ISSUE 2
Section 8135(a) of the Act,9 which allows for the discharge of the liability of the United
States by payment of lump sums, affords the Secretary of Labor discretionary authority to use
lump sums as a means of fulfilling the responsibility of the Office in administering the Act. The
Secretary has exercised discretion under this section by promulgation of regulation section
10.422.10 This regulation provides that a lump-sum payment may be made to an employee
entitled to a schedule award where the Office determines that such a payment is in the
employee’s best interest.11 The regulation also provides that a lump-sum payment will be
considered in the employee’s best interest only where the employee does not rely upon
compensation payments as a substitute for lost wages (that is, the employee is working or is
receiving annuity payments). An employee possesses no absolute right to a lump-sum payment
of benefits payable under 5 U.S.C. § 8135(b).12

7

See A.M.A., Guides, Table 17-35 at 549 (5th ed. 2001).

8

See id. at 546-47, Table 17-33 (5th ed. 2001).

9

5 U.S.C. §§ 8101-8193, 8135(a).

10

20 C.F.R. § 10.422.

11

20 C.F.R. § 10.422(b).

12

Id.

5

The Office Procedure Manual13 provides:
“Requests for Lump-Sum Payments.
b.
Schedule Benefits. A lump-sum payment of schedule award
benefits may still be made where the evidence shows that such a payment
would be in the claimant’s best interest. The regulations make it clear that
there is no absolute right to a lump-sum payment of schedule benefits and
every case must be considered on its individual merits using the best
interest test. The regulations also state that a lump-sum payment of
schedule benefits will not generally be considered in the claimant’s best
interest where the compensation payments are relied upon as a substitute
for lost wages.”
***
“One factor precluding payment of a lump-sum schedule award is
garnishment of compensation benefits. (Emphasis in the original.)
Although schedule award payments may be garnished, no future payment
may be garnished. Because a lump-sum award is a payment of future
benefits, the party entitled to payments from garnishment would no longer
be able to receive these payments. Therefore, a claimant whose benefits
are being garnished should not be awarded a lump sum for schedule
benefits.”
ANALYSIS -- ISSUE 2
The issue is whether payment of the lump-sum schedule award would be in appellant’s
best interest. The record establishes that appellant is not receiving a disability annuity from the
employing establishment and is, therefore, relying upon his schedule award payments as a
substitute for lost wages. As appellant is not receiving an annuity, payment of a schedule award
in a lump sum cannot be considered in appellant’s best interest in accordance with the Office’s
regulations.14
In addition, the Board notes that appellant’s compensation is currently garnished. As
noted, the Office procedures preclude the payment of a lump-sum schedule award when
compensation benefits are garnished. The record reveals that a child support order dated
November 18, 2004 from the North Carolina Child Support Enforcement Program advised that
appellant was in arrears in his child support payments and ordered garnishment in the amount of
$147.00 every 28 days for child support arrearage payments. The Board notes that because a
lump-sum award is a payment of future benefits, the party entitled to payments from

13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Lump-Sum Payments, Chapter 2.1300(3)(b)
(July 2003).
14

20 C.F.R. § 10.422.

6

garnishment, in this case the North Carolina Child Support Enforcement Program, would no
longer be able to receive these payments if a lump-sum payment was granted.
As appellant is not receiving an annuity, but relies upon compensation payments as a
substitute for lost wages and because his compensation wages are garnished for child support
payments, the Office properly denied his request for a lump-sum payment of his schedule award
as against his best interest.
LEGAL PRECEDENT -- ISSUE 3
Under section 8128(a) of the Act,15 the Office has the discretion to reopen a case for
review on the merits. The Office must exercise this discretion in accordance with the guidelines
set forth in section 10.606(b)(2) of the implementing federal regulations,16 which provides that a
claimant may obtain review of the merits of his or her written application for reconsideration,
including all supporting documents, sets forth arguments and contain evidence that:
“(i) Shows that [the Office] erroneously applied or interpreted a specific point of
law; or
(ii) Advances a relevant legal argument not previously considered by [the Office];
or
(iii) Constitutes relevant and pertinent new evidence not previously considered by
[the Office].”
Section 10.608(b) provides that any application for review of the merits of the claim
which does not meet at least one of the requirements listed in section 10.606(b) will be denied by
the Office without review of the merits of the claim.17
ANALYSIS -- ISSUE 3
Appellant’s January 12, 2007 request for reconsideration neither alleged nor
demonstrated that the Office erroneously applied or interpreted a specific point of law.
Additionally, appellant did not advance a relevant legal argument not previously considered by
the Office.
Appellant’s request for reconsideration asserted that he and his wife were capable of
living on his wife’s salary of $10.50 per hour and an additional $400.00 a month from an outside
source. However, appellant’s letter does not address how the Office erroneously applied or
interpreted a point of law nor did it advance a point of law or fact not previously considered by
the Office. The Office had previously considered appellant’s assertion that he and his wife were
able to live off of her wages and appellant did not set forth a particular point of law or fact that
15

5 U.S.C. § 8128(a).

16

20 C.F.R. § 10.606(b).

17

20 C.F.R. § 10.608(b).

7

the Office had not considered or establish that the Office had erroneously interpreted a point of
law. Consequently, appellant is not entitled to a review of the merits of his claim based on the
first and second above-noted requirements under section 10.606(b)(2).
With respect to the third requirement, submitting relevant and pertinent new evidence not
previously considered by the Office, appellant, as noted above, did not submit any new evidence
with his reconsideration request.
The Board finds that the Office properly determined that appellant was not entitled to a
review of the merits of his claim pursuant to any of the three requirements under section
10.606(b)(2), and properly denied his January 12, 2007 request for reconsideration.
CONCLUSION
The Board finds that the Office properly determined that appellant had no more than a 50
percent permanent impairment of the right leg for which he received a schedule award. The
Board further finds that the Office did not abuse its discretion in denying appellant’s request for
a lump-sum payment of a schedule award. Additionally, the Board finds that the Office properly
denied appellant’s request for reconsideration.18

18

The Board notes that appellant did not appeal the loss of wage-earning capacity determination of December 5,
2006 and, therefore, the matter is not before the Board at this time.

8

ORDER
IT IS HEREBY ORDERED THAT the February 2 and January 10, 2007 and
December 5, 2006 decisions of the Office Workers’ Compensation Programs are affirmed.
Issued: September 14, 2007
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

9


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.G., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Bellmawr, NJ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-965
Issued: December 11, 2013

Case Submitted on the Record

DECISION AND ORDER
Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On March 14, 2013 appellant, through his attorney, filed a timely appeal from a
January 11, 2013 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying his consequential injury claim.1 Pursuant to Federal Employees’ Compensation Act2
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
this case.
ISSUE
The issue is whether appellant sustained a right knee condition for which surgery was
warranted as a consequence of his May 16, 2008 employment injuries.

1

The record also contains a September 28, 2012 merit decision of OWCP regarding a schedule award, but
appellant has not appealed from this decision. Thus, it is not the subject of this Board appeal. See 20 C.F.R.
§ 501.3.
2

5 U.S.C. § 8101 et seq.

On appeal, counsel for appellant contends that the medical report of the impartial medical
specialist is not entitled to the weight of medical opinion evidence. Further, Dr. Joseph A. Jelen,
Jr., a Board-certified orthopedic surgeon, was not properly selected under the Physicians
Directory System (PDS) as there was no screenshot image of his actual selection.
FACTUAL HISTORY
OWCP accepted that on May 16, 2008 appellant, then a 41-year-old driver instructor,
sustained a medial meniscus tear of the left knee as a result of a fall at work. It authorized
arthroscopic left knee surgery.3 OWCP accepted that appellant sustained a recurrence of
disability as of March 12, 2009 due to his authorized arthroscopic left knee surgery on that date.
Appellant returned to part-time limited-duty work on July 8, 2010 and to full-time limited-duty
work on September 14, 2010. On September 15, 2011 he was placed on administrative leave
until a fraud investigation was completed by the employing establishment’s inspector general
office.4
By letter dated October 8, 2010, appellant, through his attorney, requested that OWCP
accept his claim of major depression. He submitted medical reports dated October 4, 2010 and
February 22, 2011 from Samuel A. Bobrow, Ph.D., a clinical psychologist, who advised that
appellant, had a single episode of severe major depression that was a direct result of the ongoing
pain and disability resulting from his May 16, 2008 employment injury.
By letter dated May 24, 2011, counsel requested that OWCP accept his claim for a right
knee condition. He submitted reports dated October 1 to December 14, 2010 from Dr. Laura E.
Ross, a Board-certified orthopedic surgeon, who listed findings on physical examination and
diagnosed, internal derangement of the right knee with probable mild arthrosis and medial
meniscus tear with mild degenerative joint disease secondary to left knee internal derangement
and an altered gait. Dr. Ross recommended arthroscopic right knee surgery. She advised that
appellant was walking with a severe limp for one year due to his left knee problem.
In an October 6, 2010 report, Dr. George J. Broder, a Board-certified radiologist, advised
that an x-ray of appellant’s right knee showed minimal degenerative changes.
By letters dated June 17, 2011, OWCP referred appellant for a second opinion
examination, together with a statement of accepted facts and the medical record, to
Dr. Joseph W. Slap, a Board-certified psychiatrist, and Dr. Robert F. Draper, Jr., a Boardcertified orthopedic surgeon.

3

In a prior appeal regarding appellant’s schedule award claim assigned OWCP File No. xxxxxx668, the Board, in
a September 27, 2010 decision, affirmed a June 11, 2009 OWCP decision, finding that he had no more than 24
percent impairment of the left upper extremity, for which he received a schedule award. Docket No. 09-2259
(issued September 27, 2010).
4

On February 23, 2012 the Office of Personnel Management approved appellant’s disability retirement.
Appellant separated from the employing establishment effective March 1, 2012 as he was totally disabled for useful
and efficient service in his position.

2

In a July 15, 2011 report, Dr. Draper described the May 16, 2008 employment injury,
appellant’s medical treatment and social and family backgrounds. He reviewed the medical
record and a surveillance video5 from the employing establishment and listed findings on
physical examination. Dr. Draper diagnosed a torn medial meniscus and osteoarthritis of the left
knee for which appellant was status post March 12, 2009 arthroscopic left knee surgery.
Appellant had right cubital tunnel syndrome and right carpal tunnel syndrome. He was status
post right ulnar nerve transposition, neuroplasty and right carpal tunnel release which were
performed on October 20, 2009. Appellant had unrelated conditions of osteoarthritis and
degenerative tears of the medial and lateral meniscus of the right knee as demonstrated by a
magnetic resonance imaging (MRI) scan, due to osteoarthritis and not the May 16, 2008
employment injury. He stated that the claimed antalgic gait or limping did not cause the torn
medial and lateral menisci. Dr. Draper related that the surveillance video did not actually
demonstrate antalgic gait according to the claims examiner’s November 5, 2010 report.6 The
tears described in the right knee medial and lateral meniscus were typical of degenerative tears of
the menisci due to osteoarthritis of the knee. Dr. Draper disagreed with Dr. Ross’s opinion that
the proposed right knee surgery was secondary to a severely altered gait caused by the left knee
work injury. He concluded that appellant could perform regular full-duty work.
In a July 19, 2011 report, Dr. Slap reviewed a history of the May 16, 2008 employment
injury and appellant’s medical treatment. He listed findings on mental examination and
diagnosed, a single episode of severe major depression. Dr. Slap advised that this condition was
directly caused by the May 16, 2008 employment injury.
In an August 25, 2011 letter, counsel contended that there was a conflict in medical
opinion between Dr. Ross and Dr. Draper.
By letter dated September 8, 2011, OWCP accepted appellant’s claim for right carpal
tunnel syndrome, right lesion of the ulnar nerve and a single episode of major depression without
mention of psychotic behavior. In a separate letter of the same date, it advised counsel that
appellant could file an occupational disease claim for his right knee osteoarthritis and proposed
surgery.
In a September 30, 2011 decision, OWCP denied appellant’s right knee condition as
consequential to his left knee injury. It found that the weight of the medical evidence rested with
Dr. Draper.
By letter dated October 3, 2011, appellant, through his attorney, requested an oral hearing
before an OWCP hearing representative.

5

The employing establishment prepared an investigative report dated September 30, 2010 which consisted of a
surveillance video and a narrative summary of this video.
6

In a statement of accepted facts dated November 5, 2010, OWCP’s claims examiner reviewed the surveillance
video regarding appellant’s activities and opined that he appeared to use his right upper extremity with free range of
motion and without limitation in the noted activities. He carried and lifted objects and appeared to be in no apparent
distress or discomfort while using his right arm to drive or his left leg to walk, bend, lift or climb steps.

3

In a March 28, 2012 decision, OWCP’s hearing representative set aside the
September 30, 2011 decision finding a conflict in medical opinion between Dr. Ross and
Dr. Draper regarding the causal relationship of appellant’s current right knee condition to the
accepted left knee injury. On remand, he instructed OWCP to amend the statement of accepted
facts to omit mention of the claims examiner’s statement concerning the surveillance tape.
By letter dated April 2, 2012, counsel requested participation in the selection of an
impartial medical specialist. He also requested that OWCP provide documentation, to prove that
it properly selected the referee physician.
In a May 11, 2012 letter, OWCP advised counsel that Dr. Scott A. Rushton and
Dr. Walter W. Dearolf, III, Board-certified orthopedic surgeons, and Dr. Jelen, had been
selected using the PDS. It requested that appellant choose one of the physicians within seven
days. A screenshot showed that Dr. Mark S. Rekant, a Board-certified orthopedic surgeon, was
bypassed because he only treated the hand.
By letter dated May 15, 2012, counsel stated that he did not have any confidence in any
of the three selected physicians. He again requested that OWCP select a physician from the PDS
and send him screenshots for any bypassed physicians.
By letter dated May 16, 2012, OWCP referred appellant, together with a statement of
accepted facts and the medical record, to Dr. Jelen for an impartial medical examination. The
record contains a May 16, 2012 iFECS Report: MEO23 Appointment Schedule Notification
referring appellant to Dr. Jelen for an impartial medical examination. Additionally, a screenshot
listed Dr. Jelen and Dr. Dearolf.
In a June 5, 2012 report, Dr. Jelen reviewed appellant’s medical record a history of the
May 16, 2008 employment-related injury, medical treatment and social and family backgrounds.
He also reviewed the surveillance video from the employing establishment. Dr. Jelen listed
findings on physical examination of both upper extremities, lumbar and cervical spines, both
legs, feet and hips. He stated that appellant did not exhibit an abnormal gait while walking on
the date of examination. On examination of the left knee, Dr. Jelen reported no effusion. There
was mild anterior crepitus. There was no ligament instability or tenderness over the calf or thigh
area. The knee was not swollen and was cool to palpate. Dr. Jelen’s examination of the right
knee showed no patellofemoral or true medial meniscus grinding. A McMurray’s sign was
negative, but there was pain during these testing maneuvers. There was no collateral or anterior
cruciate ligament laxity. There was warmth more on the left side and swelling. A small effusion
was present. There was no calf or thigh discomfort. Dr. Jelen advised that the right knee
abnormalities were not related to the May 16, 2008 employment injury or aggravated by this
injury. He stated that no detail was provided regarding any abnormalities on the left side that
would cause or aggravate any right-sided knee abnormalities. There was no documentation to
support Dr. Ross’ statements that appellant walked with a severe limp for one year. There was
no evidence on the surveillance video of a limp or any functional abnormality of the left knee
from November 2009 through 2010 that would cause disability on the right side. Appellant
walked without difficulty, carried flat boxes, went up and down stairs and got in and out of his
car without significant limited motion or signs of pain or disability. Dr. Jelen reviewed the
reports of Dr. David O. Weiss, a Board-certified orthopedic surgeon, Dr. Vincent L. Ferrara, a

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Board-certified neurosurgeon, Dr. Ross and Dr. Brian J. Sennett, a Board-certified orthopedic
surgeon, and stated that there was no explanation of how left knee abnormalities could cause
right knee abnormalities. He also reviewed the 2010 x-ray and MRI scan of the right knee which
revealed arthritis and meniscus tears. Dr. Jelen noted that appellant was over 300 pounds and the
x-rays revealed degenerative arthritis in his right knee. These conditions alone could cause
degenerative tearing of the medial and lateral meniscus. There was no discussion of overuse of
the right knee as a result of a left knee abnormality other than appellant’s statements during the
interview on the date of examination. Dr. Jelen stated that the conclusions reached by Dr. Ross
were not substantiated with any detail. Based on appellant’s history and his physical
examination findings, review of records and surveillance video, there was no evidence to support
a right knee injury as a result of the May 16, 2008 employment injury. Any right knee symptoms
occurred slowly with time and were of a chronic nature likely due to degenerative arthritis and
appellant’s excessive weight. Dr. Jelen advised that appellant’s present disability was a direct
result of his work-related injuries and not his right knee symptoms. He concluded that
appellant’s right knee condition and need for surgery did not arise from any altered gait due to
the left knee injury.
In a July 2, 2012 decision, OWCP found that Dr. Jelen’s report represented the weight of
the medical evidence and denied appellant’s request to expand his claim to include a right knee
condition and authorization for the proposed right knee surgery.
By letter dated July 6, 2012, appellant, through his attorney, requested an oral hearing.
At the October 23, 2012 hearing, appellant testified that he relied on his right knee to
support his weight following the accepted injuries. He walked with a knee brace and crutches
while performing most of his work duties, which required walking and climbing into tractor
trailers. Appellant eventually walked with a cane. He had no right knee problems prior to the
accepted employment injuries. Appellant further contended that Dr. Jelen relied on an edited 23minute surveillance video that unfairly portrayed his physical abilities. He stated that he had
good days and bad days and the video did not accurately portray his degree of dysfunction. The
video was taken well after appellant’s left knee injury and surgery. Appellant stated that his
ambulation problems were worse during the year following his injury and before his surgery. He
contended that contrary to Dr. Jelen’s opinion that his right knee problem was caused by his
weight gain, it was due to depression and inactivity resulting from the accepted injuries.
In a January 11, 2013 decision, OWCP’s hearing representative affirmed the July 2, 2012
decision. He found that the weight of the medical evidence rested with Dr. Jelen’s impartial
medical opinion which established that appellant’s right knee condition was not causally related
to the accepted May 16, 2012 employment injuries. The hearing representative stated that,
Dr. Jelen provided a rationalized medical opinion. He was not prejudiced by his review of the
surveillance video regarding appellant’s physical activities and was properly selected using the
PDS.
LEGAL PRECEDENT
It is an accepted principle of workers’ compensation law that, when the primary injury is
shown to have arisen out of and in the course of employment, every natural consequence that

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flows from the injury is deemed to arise out of the employment, unless it is the result of an
independent intervening cause which is attributable to the employee’s own intentional conduct.7
Regarding the range of compensable consequences of an employment-related injury, Larson
notes that, when the question is whether compensability should be extended to a subsequent
injury or aggravation related in some way to the primary injury, the rules that come into play are
essentially based upon the concepts of direct and natural results and of the claimant’s own
conduct as an independent intervening cause. The basic rule is that a subsequent injury, whether
an aggravation of the original injury or a new and distinct injury, is compensable if it is the direct
and natural result of a compensable primary injury. Thus, once the work-connected character of
any condition is established, the subsequent progression of that condition remains compensable
so long as the worsening is not shown to have been produced by an independent nonindustrial
cause.8
A claimant bears the burden of proof to establish a claim for a consequential injury.9 As
part of this burden, he or she must present rationalized medical opinion evidence, based on a
complete factual and medical background, showing causal relationship. Rationalized medical
evidence is evidence, which relates a work incident or factors of employment to a claimant’s
condition, with stated reasons of a physician. The opinion must be one of reasonable medical
certainty and must be supported by medical rationale explaining the nature of the relationship of
the diagnosed condition and the specific employment factors or employment injury.10
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 When there exist opposing medical reports of virtually equal weight and
rationale and the case is referred to an impartial medical specialist for the purpose of resolving
the conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a
proper factual background, must be given special weight.12
A physician selected by OWCP to serve as an impartial medical specialist should be one
wholly free to make a completely independent evaluation and judgment. In order to achieve this,
OWCP has developed specific procedures for the selection of the impartial medical specialist
designed to provide adequate safeguards against any possible appearance that the selected
physician’s opinion was biased or prejudiced. The procedures contemplate that the impartial
medical specialist will be selected on a strict rotating basis in order to negate any appearance that
preferential treatment exists between a particular physician and OWCP.13
7

Albert F. Ranieri, 55 ECAB 598 (2004).

8

A. Larson, the Law of Workers’ Compensation § 10.01 (November 2000).

9

J.J., Docket No. 09-27 (issued February 10, 2009).

10

Charles W. Downey, 54 ECAB 421 (2003).

11

5 U.S.C. § 8123(a).

12

Carl Epstein, 38 ECAB 539 (1987); James P. Roberts, 31 ECAB 1010 (1980).

13

Raymond J. Brown, 52 ECAB 192 (2001).

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The medical management application (MMA), which replaced the PDS, allows users to
access a database of Board-certified specialist physicians and is used to schedule referee
examination. The application contains an automatic and strict rotational scheduling feature to
provide for consistent rotation among physicians and to record the information needed to
document the selection of the physician. If an appointment cannot be scheduled in a timely
manner or cannot be scheduled for some other reason such as a conflict or the physician is of the
wrong specialty, the scheduler will update the application with an appropriate bypass code.
Upon the entering of a bypass code, the MMA will select the next physician in the rotation.14
ANALYSIS
OWCP accepted that on May 16, 2008 appellant sustained an employment-related medial
meniscus tear of the left knee, right carpal tunnel syndrome and lesion of the ulnar nerve and
single episode of major depression without mention of psychotic behavior while in the
performance of duty. Appellant contends that he sustained a right knee condition as a result of
the accepted employment injuries which warranted surgery. The Board finds that he has not
submitted sufficient medical evidence to establish his claim.
On March 28, 2012 OWCP’s hearing representative found a conflict in medical opinion
between Dr. Ross, an attending physician, who found that appellant’s right knee condition which
required surgery was causally related to an altered gait secondary to his employment-related left
knee injury and Dr. Draper, an OWCP referral physician, who opined that appellant did not
sustain a right knee condition due to his claimed gait or employment-related left knee injury. To
resolve the conflict, OWCP referred appellant to Dr. Jelen, a Board-certified orthopedic surgeon,
for an impartial medical examination.
On appeal, counsel contends that Dr. Jelen was not properly selected as the impartial
medical examiner and, thus, OWCP improperly relied on his report in its decision. OWCP has
an obligation to verify that it selected Dr. Jelen in a fair and unbiased manner. It maintains
records for this very purpose.15 The record contains a May 16, 2012 Form MEO23 iFECS report
stating that an impartial medical examination was scheduled with Dr. Jelen. The record also
contains a screenshot that indicates the selection of Dr. Jelen. Further, the record contains a
bypass screenshot for Dr. Rekant, who was bypassed because he only specialized in hand
injuries.16 The Board finds that OWCP provided documentation and properly utilized its MMA
system in selecting Dr. Jelen as the impartial medical examiner.17 The Board has placed great
importance on the appearance as well as the fact of impartiality and only if the selection
procedures which were designed to achieve this result are scrupulously followed may the
14

See generally Federal (FECA) Procedure Manual, Part 3 -- Medical, OWCP Directed Medical Examinations,
Chapter 3.500.5 (December 2012); see also R.C., Docket No. 12-468 (issued October 15, 2012) (where the Board
first discussed the application of the MMA and found that appellant’s reasons for objecting to the list of impartial
medical specialists provided by OWCP were not valid).
15

See M.A., Docket No. 07-1344 (issued February 19, 2008).

16

Federal (FECA) Procedure Manual, supra note 14 at Chapter 3.500.6 (July 2011).

17

See N.C., Docket No. 12-1718 (issued April 11, 2013).

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selected physician carry the special weight accorded to an impartial specialist. As OWCP has
met its affirmative obligation to establish that it properly followed its selection procedures, the
Board finds that counsel’s argument is not substantiated.18
In his June 5, 2012 report, Dr. Jelen found that appellant’s right knee condition which
warranted surgery was not caused or aggravated by an altered gait or the accepted May 16, 2008
employment-related injuries. He further found that his current disability was a direct result of his
work-related injuries and not his right knee symptoms. On physical examination of the right
knee, Dr. Jelen found essentially normal findings with the exception of small effusion. He
explained that there was no documentation that a right knee injury had occurred or discussion
about overuse of the right knee as a result of a left knee abnormality other than appellant’s
statements during the interview on the date of examination. Dr. Jelen further explained that
Dr. Ross did not provide any detailed documentation to support her opinion. In addition,
Dr. Weiss, Dr. Ferrara, Dr. Ross and Dr. Sennett did not explain how left knee abnormalities
could cause right knee abnormalities. Dr. Jelen noted that while the 2010 x-ray and MRI scan
revealed arthritis of the right knee, this condition and appellant’s excessive weight could cause
degenerative tears of the medial and lateral meniscus. He advised that his right knee symptoms
occurred slowly over time and were chronic in nature. Dr. Jelen reviewed the employing
establishment’s surveillance video and stated that there was no evidence of a limp or any
functional abnormality of the left knee on all occasions from November 2009 through 2010 that
would cause disability on the right side. He related that the video showed appellant walking
without difficulty, carrying flat boxes, going up and down stairs and getting in and out of his car
without significant limited motion or signs of pain or disability.
The Board finds that the opinion of Dr. Jelen is sufficiently well rationalized and based
on a complete and an accurate factual and medical history such that it is entitled to special
weight accorded an impartial medical examiner and establishes that appellant did not sustain a
right knee condition as a consequence of his May 16, 2008 employment injuries.
Counsel contends on appeal that Dr. Jelen relied almost exclusively on the surveillance
video even though an OWCP claims examiner’s personal opinion regarding appellant’s abilities
as demonstrated on the video had been deleted from the statement of accepted facts reviewed by
Dr. Jelen. He further contended that Dr. Jelen’s report was not sufficiently rationalized as he
failed to explain why an altered gait due to the employment-related left knee injury and
deteriorating right knee condition as demonstrated by x-rays would not be a contributing factor
to the cause or aggravation of appellant’s right knee condition. The Board finds these
contentions to be without merit. The Board has allowed physicians to review videotapes in
evaluating an appellant’s actual physical abilities.19 Appellant has not submitted evidence that
the videotape improperly represents his activities such that it was inappropriate for Dr. Jelen to
18

Cf. H.W., Docket No. 10-404 (issued September 28, 2011) (where the Form MEO23 IFECS report was the only
documentation of the scheduled impartial medical specialist examination. There were no screen shots substantiating
the selection of the impartial medical specialist. The Board remanded the case by an order for selection of another
impartial medical specialist and the issuance of an appropriate decision following any further development).
19

Kathleen McKinnon, Docket No. 00-2797 (issued April 26, 2002); Armengol Beltram, Docket No. 00-878
(issued February 25, 2002); James E. Hudson, Docket No. 01-858 (issued February 13, 2002); George Zupko,
Docket No. 00-1107 (issued December 14, 2001).

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rely upon it in reaching his decision. Moreover, the opinion of Dr. Jelen is clearly based on more
than a review of the video. His medical report provided a thorough evaluation of appellant’s
factual and medical background and findings on physical examination. Dr. Jelen explained why
the claimed gait and accepted employment-related injuries did not cause appellant’s right knee
condition. As stated, his opinion is entitled to the special weight accorded an impartial medical
examiner and establishes that appellant did not sustain a right knee condition as a consequence of
his work-related injuries.
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 failed to establish that he sustained a right knee
condition for which surgery was warranted as a consequence of his May 16, 2008 employment
injuries.
ORDER
IT IS HEREBY ORDERED THAT the January 11, 2013 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 11, 2013
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

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

Docket No. 07-1237
Issued: September 18, 2007

Case Submitted on the Record

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

JURISDICTION
On April 4, 2007 appellant filed a timely appeal from October 31, 2006 and March 15,
2007 decisions of the Office of Workers’ Compensation Programs’ granting a schedule award.
Under 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 25 percent permanent impairment of his
left upper extremity.
FACTUAL HISTORY
Appellant, a 44-year-old letter carrier, filed a claim for benefits on October 1, 2004,
alleging that he experienced a sharp pain in his left shoulder on September 30, 2004 while casing
magazines. The Office accepted his claim for left shoulder impingement syndrome and left
trapezius sprain/strain. The Office had previously accepted that appellant sustained bilateral
carpel tunnel syndrome under a different claim number. Appellant received a schedule award for
12 percent permanent impairment of the left upper extremity resulting from median nerve
impairment from the carpal tunnel injury.

In a report dated April 28, 2006, Dr. Brian Knapp, Board-certified in preventive
medicine, stated:
“I was able to achieve approximately 90 degrees range of motion in abduction and
flexion actively, external rotation 75 degrees. Adduction, internal rotation and
extension are all unimpaired. Utilizing Figure 16-40, page 476, shows upper
extremity impairment due to a loss of flexion of six percent. Figure 16-43, on
page 477, shows upper extremity impairment due to loss of abduction of four
percent. Figure 16-46, page 479, shows upper extremity impairment due to lack
of external rotation of zero percent. This yields 10 percent of the upper extremity,
or 6 percent whole person impairment.”
On May 8, 2006 appellant filed a Form CA-7 claim for a schedule award based on a
partial loss of use of his left upper extremity.
In a report dated August 20, 2006, the Office medical adviser found that appellant had a
25 percent total left upper extremity impairment. He noted that appellant had previously been
awarded a 12 percent left upper extremity impairment for median nerve impairment resulting
from the accepted carpel tunnel condition. The Office medical adviser found that he had an
additional 13 percent left upper extremity impairment under the American Medical Association,
Guides to the Evaluation of Permanent Impairment based on his September 2004 left shoulder
injury. The Office medical adviser stated:
“Impairment due to loss of range of motion: For the shoulder, loss of flexion, six
percent and loss of extension, zero percent (Figure 16-40, page 476); loss of
abduction, four percent and loss of adduction, zero percent (Figure 16-43, page
477); [and] loss of internal rotation, zero percent and loss of extension zero
percent (Figure 16-46, page 479). Total 10 percent.
“Impairment due to loss of strength and impairment due to sensory deficit or pain;
level of symptoms as Grade 4, 25 percent (Tables 16-10 and 16-11, pages 482 and
484). Maximum combined impairment based on the suprascapular nerve is
20 percent (Table 16-15, page 492). 25 percent times 20 percent equals five
percent.
“Using the [C]ombined Values Chart, page 604 and the previous impairment, the
total impairment of the left upper extremity equals 25 percent. There is an
additional 13 percent impairment since the previous determination.”
On October 31, 2006 the Office granted appellant a schedule award for a 12 percent
additional impairment of the left upper extremity for the period April 18, 2006 to January 26,
2007, a total of 37.44 weeks of compensation.
On November 19, 2006 appellant requested a review of the written record. He did not
submit any additional medical evidence with his request.
By decision dated March 15, 2007, an Office hearing representative affirmed the
October 31, 2006 schedule award decision.
2

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 set forth the
number of weeks of compensation to be paid for permanent loss, or loss of use of the members
of the body listed in the schedule. Where the loss of use is less than 100 percent, the amount of
compensation is paid in proportion to the percentage loss of use.2 However, the Act does not
specify the manner in which the percentage of loss of use of a member is to be determined. For
consistent results and to ensure equal justice under the law to all claimants, the Office has
adopted the A.M.A., Guides (fifth edition) as the standard to be used for evaluating schedule
losses.3
ANALYSIS
The Office found that appellant had an additional 13 percent impairment of the left upper
extremity based on the Office medical adviser’s August 20, 2006 report. The Office medical
adviser arrived at this impairment rating after reviewing the range of motion and pain/sensory
deficits described by Dr. Knapp. He applied the figures and tables of the A.M.A., Guides to find
6 percent impairment for loss of flexion of the left shoulder pursuant to Figure 16-40, page 476,
and 4 percent impairment for loss of abduction pursuant to Figure 16-43, page 477 for a total
10 percent range of motion impairment for the left upper extremity. The Office medical adviser
rated 5 percent impairment due to sensory deficit or pain by rating appellant’s symptoms as
Grade 4, which equaled 25 percent impairment under Tables 16-10 and 16-11 at pages 482 and
484. He noted that the maximum combined impairment based on the suprascapular nerve was
20 percent at Table 16-15, page 492. The Office medical adviser then multiplied 25 percent
times 20 percent for a 5 percent impairment left upper extremity impairment. He utilized the
Combined Values Chart to find a total 15 percent impairment for the left shoulder. The Office
medical adviser then combined the 12 percent impairment left upper extremity impairment from
the carpal tunnel claim using the Combined Values Chart at page 604 to find a total 25 percent
impairment of the left upper extremity. Based on this report, the Office granted appellant an
award for 13 percent impairment of the left upper extremity. This award was proper, as it was in
conformance with the applicable standards of the A.M.A., Guides.
Appellant requested a review of the written record but did submit any additional medical
evidence. As there is no other probative medical evidence establishing that he sustained greater
permanent impairment, the Board will affirm the October 31, 2006 and March 15, 2007 Office
decisions finding that appellant has no more than a 25 percent impairment to his left upper
extremity.

1

5 U.S.C. §§ 8101-8193; see 5 U.S.C. § 8107(c).

2

5 U.S.C. § 8107(c)(19).

3

20 C.F.R. § 10.404.

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CONCLUSION
The Board finds that appellant has no more than a 25 percent impairment of the left upper
extremity.
ORDER
IT IS HEREBY ORDERED THAT the March 15, 2007 and October 31, 2006
decisions of the Office of Workers’ Compensation Programs be affirmed.
Issued: September 18, 2007
Washington, DC

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.I., Appellant
and
DEPARTMENT OF THE NAVY, JOINT BASE
ANACOSTIA-BOLLING, Washington, DC,
Employer
_________________________________________
Appearances:
Paul H. Felser, Esq., for the appellant1
Office of Solicitor, for the Director

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Docket No. 21-1365
Issued: March 22, 2022

Case Submitted on the Record

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

On September 16, 2021 appellant through counsel, filed a timely appeal from an
August 16, 2021, merit decision of the Office of Workers’ Compensation Programs (OWCP).
The Clerk of the Appellate Boards assigned Docket No. 21-1365.
In a letter dated February 10, 2022, counsel requested that the appeal be withdrawn.
The Board has duly considered the matter and concludes that counsel ’s request f or the
withdrawal of the appeal should be granted. Accordingly,

1

In all cases in which a representative has been authorized in a matter before the Board, no cla im f or a f ee f or
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 b y t he B oard .
Id. An attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeano r,
subject to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment o f
fees to a representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

IT IS HEREBY ORDERED THAT the request for the withdrawal of the appeal is
granted. The appeal docketed as No. 21-1365 is dismissed.
Issued: March 22, 2022
Washington, DC

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

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

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

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