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

)
)
)
)
)
)
)
)

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

Docket No. 15-1962
Issued: March 3, 2016

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On September 29, 2015 appellant, through counsel, filed a timely appeal of a July 29,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has met his burden of proof to establish disability for the
period April 24 to December 2, 2011 causally related to his accepted employment injury.
On appeal counsel argues the decision is contrary to law and fact.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 5, 2011 appellant, then a 59-year-old letter carrier, filed an occupational
disease claim (Form CA-2) alleging that in October 2010 he first became aware of his lumbar
spondylosis. However, it was not until May 2011 that he realized the condition had been caused
or aggravated by his employment. Appellant’s supervisor noted on the claim form that appellant
had resigned his employment. In a supplemental statement accompanying the claim form
appellant explained that as a letter carrier he carried his mailbag on his right side. In
October 2010, his right leg kept hurting, the pain worsened until he could not walk a city block
without resting. In May 2011, appellant was told that he had a back condition, which caused the
pain into his right leg.
OWCP accepted appellant’s claim for aggravation of lumbosacral spondylosis without
myelopathy.
On November 28 and December 12, 2011 appellant filed claims for wage-loss
compensation (Form CA-7) for the period April 24 to December 2, 2011.
By letter dated December 14, 2011, OWCP informed appellant that the evidence of
record was insufficient to support his claim for wage-loss compensation. Appellant was advised
as to the medical and factual evidence required to support his claim and given 30 days to provide
this information.
In response appellant submitted a December 2, 2011 report by Dr. Carolyn H. Kuerbitz, a
treating Board-certified internist, who noted that he had been diagnosed with lumbosacral
spondylosis and that over the past year he had difficulty with right leg and low back pain.
Dr. Kuerbitz reported that prolonged walking and carrying heavy loads aggravated these
symptoms. She noted that his symptoms have persisted despite physical therapy and opined that
he was unable to work.
In a letter dated January 1, 2012, appellant informed OWCP that he quit his job on
May 17, 2011. He noted that the reason he resigned was because his right leg cramped for no
reason. Appellant related that after he resigned on May 17, 2011 his then treating physician
provided work restrictions which included no walking more than 20 minutes and no lifting more
than 30 pounds.
On February 10 and 27, 2012 OWCP received a May 2, 2011 notification of personnel
action (Form SF50) noting that appellant voluntarily resigned and his last day in pay status was
April 29, 2011.
By decision dated February 10, 2012, OWCP denied appellant’s claim for wage-loss
compensation. It found that the medical evidence failed to support that he sustained a worsening
of the accepted condition “to the point of not being able to perform a limited-duty position prior
to April 24, 2011.”
In a February 16, 2012 letter, appellant’s counsel requested a telephonic hearing before
an OWCP hearing representative, which was held on May 9, 2012.

2

Dr. Kuerbitz, in a March 14, 2012 report, stated that appellant had been under her care
since July 2011. She noted that he first complained of right thigh numbness due to sitting and
occasional right hip and back pain due to carrying bags of mail in September 2010. On
March 15, 2011 appellant was seen for complaints of worsening thigh and right hip pain, which
was aggravated by prolonged standing or sitting and carrying a mailbag. He related that while
delivering mail during the winter he had fallen several times, but did not seek medical attention.
When appellant was seen on May 10, 2011 he related that he had quit his job due to his low back
pain which radiated into his thigh. A review of a magnetic resonance imaging scan revealed two
herniated discs which caused lumbar stenosis and nerve root impingement. Dr. Kuerbitz
attributed appellant’s symptoms to his lumbar spondylosis and radiculopathy, which were due to
the herniated discs. She opined that his condition had been aggravated by his falls on the job and
years of carrying a heavy mailbag. Dr. Kuerbitz concluded that appellant was totally disabled as
he was unable to tolerate prolonged standing, walking, or sitting, and could not perform any type
of lifting.
By decision dated August 6, 2012, an OWCP hearing representative set aside the
February 10, 2012 OWCP decision and remanded the case for referral to a second opinion
physician to determine whether all of appellant’s back and leg conditions were causally related to
his employment duties and whether he continued to have residuals of the accepted condition.
On August 13, 2012 OWCP referred appellant for a second opinion evaluation with
Dr. Robert J. Nickodem, Jr., a Board-certified orthopedic surgeon, to determine whether
appellant continued to have residuals of the accepted condition and whether he was disabled
from work due to the accepted condition. Dr. Nickodem was also asked to address whether
appellant’s other back and leg conditions were causally related to his postal duties.
In his report dated August 24, 2012, Dr. Nickodem detailed the medical and factual
evidence he reviewed which had been supplied by both OWCP and appellant and noted that he
resigned from the employing establishment in April 2011. He diagnosed pain associated with
aggravation of lumbar spine spondylosis and that the pain had progressed since a
September 2010 fall at work. A physical examination revealed minimal lumbar paraspinal
muscle tenderness on palpation, no spasm, a well-healed bullet hole wound in the right lower
thoracic region, and normal bilateral lower extremity motor and sensory examination.
Dr. Nickodem related that appellant’s computerized tomography (CT) scan showed significant
disc bulging at L3-4, L4-5, and L5-S1 levels with disc herniations at the L4-5 and L5-S1 levels.
He opined that there was no evidence that these diagnoses were caused by a specific work injury,
but were the result of normal degeneration of the lumbar spine. Dr. Nickodem also opined that
he believed appellant’s lumbar conditions had been aggravated by the September 2010 fall at
work and his work duties. He noted that appellant continued to have pain, which is a subjective
complaint, due to the aggravation of the lumbar spondylosis. Dr. Nickodem opined that
appellant was totally disabled from his date-of-injury job, but was capable of performing a
sedentary position and provided work restrictions. He attributed appellant’s inability to perform
his mail carrier job due to his significant lower lumbar back issues with foraminal compromise
and herniated discs. Dr. Nickodem also related that appellant had permanent chronic
aggravation of his lumbar spondylosis. Restrictions included no more than two hours of
intermittent sitting/standing in an eight-hour workday; no bending, stooping, kneeling, climbing,
or squatting; and no lifting, pushing, or pulling more than 10 pounds.

3

By decision dated October 4, 2012, OWCP denied appellant’s claim for wage-loss
compensation. It found that medical evidence established that while he was disabled from
performing his date-of-injury job, he was not totally disabled. OWCP further found that
appellant’s resignation from his employment on April 29, 2011 precluded the employing
establishment from providing a modified job or vocational rehabilitation.
By letter dated October 8, 2012, counsel requested a telephonic hearing before an OWCP
hearing representative. The hearing was held on January 16, 2013.
By decision dated June 12, 2013, an OWCP hearing representative set aside the
October 4, 2012 decision denying appellant’s wage-loss claim. The hearing representative found
that the fact that appellant quit work was not a sufficient basis to support the denial of his claim
for wage-loss compensation. He remanded the case for OWCP to request information from the
employing establishment regarding whether light-duty work had been offered or was available to
appellant at the time he resigned. The hearing representative instructed OWCP to further
develop the evidence including obtaining statements from the employing establishment
addressing whether modified work was offered to appellant during the period in question.
In a letter dated August 5, 2013, Doris Horn-Davis, an acting postal supervisor, advised
that appellant had approached her regarding leg pain. Appellant inquired whether he could be
provided light duty, but he did not submit a “request for light duty” form at that time. He was
provided with temporary limited walking and mailbox collections due to his complaint.
In a report dated September 3, 2013, Dr. Kuerbitz related that she had reviewed
Dr. Nickodem’s report and concurred with his opinions, including his work restrictions.
By decision dated October 16, 2013, OWCP denied appellant’s claim for wage-loss
compensation for the period April 24 to December 2, 2011. It found that he was provided
modified work based on his complaints regarding right leg pain. Thus, OWCP found that
appellant was offered modified work, but that he voluntarily resigned on April 29, 2011 and was
not entitled to compensation for the period April 24 to December 2, 2011.
In a letter dated October 21, 2013, counsel requested a telephonic hearing before an
OWCP hearing representative.
By decision dated March 13, 2014, an OWCP hearing representative found that the case
was not in posture for a decision as to whether appellant was entitled to wage-loss compensation
for the period April 24 to December 2, 2011. She found that further development of the
evidence was required on the issue of whether the employing establishment was advised of
appellant’s work restrictions and was unable to accommodate those restrictions. OWCP was
instructed to obtain additional clarifying evidence from the employing establishment regarding
whether he provided any work restrictions and what modified work was offered.
On June 18, 2014 Ms. Horn-Davis, related that appellant did provide medical
documentation regarding his leg injury and that he did not want to file a CA-2 form because he
was a temporary employee carrier. She noted that he was given work within his restrictions
which included box mail, assigned collections, and limited walking.

4

In a September 22, 2014 letter, Marcia Kimbrough, manager, noted the work area to
which appellant was assigned and that she was uncertain whether any supervisor was aware of
any work restrictions for him. She did not know what his exact modified duties were, but that
collections required the ability to drive, lift, walk, and stand. Lastly, Ms. Kimbrough stated that
appellant would have been provided work within his restrictions on or after April 24, 2011.
By decision dated September 30, 2014, OWCP denied appellant’s claim for wage-loss
compensation for the period April 24 to December 2, 2011.
In a letter dated October 6, 2014, counsel requested a telephonic hearing before an
OWCP hearing representative, which was held on May 12, 2015.
In a December 19, 2014 report, Dr. Keurbitz provided a history of appellant’s injury
which began in September 2010 when he was seen for right thigh numbness as the result of
sitting and occasional right hip and back pain due to carrying mail. Appellant was next seen on
March 15, 2011 for complaints of worsening right thigh and hip pain which exacerbated by
carrying his mailbag and prolonged standing or sitting. Dr. Keurbitz noted that he related that he
had fallen several times during the winter while carrying mail, but he did not seek medical
treatment. Next, she noted that appellant resigned from the employing establishment on
April 29, 2011 and that he informed her he was offered modified work which involved carrying a
substantial amount of mail. Dr. Keurbitz observed that it would have been difficult for him to
carry large amounts of mail due to the diagnosis of lumbar radiculopathy. She noted appellant
complained that his pain was aggravated in October 2011 and that he was referred for pain
management. In February 2012, appellant underwent a radiofrequncy ablation procedure and
had additional physical therapy. He was doing well until June 2014 when he complained that his
back condition had worsened. Dr. Keurbitz related that appellant could walk one to two blocks
before developing right thigh pain and numbness, right buttock and low back pain, and
occasionally his leg will give out and he falls. She attributed his symptoms and radiculopathy to
his herniated discs and related that these conditions had been aggravated by his years of carrying
a heavy mailbag and his falls at work.
By decision dated July 29, 2015, an OWCP hearing representative affirmed the denial of
appellant’s claim for wage-loss compensation. She found that the medical evidence failed to
establish that he had any medical limitations related to the employment injury prior to his
resignation.
LEGAL PRECEDENT
Under FECA the term “disability” means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.2 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.3 An employee who has a physical impairment causally related to his federal
2

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 746 (2004); Conard Hightower, 54 ECAB 796
(2003); 20 C.F.R. § 10.5(f).
3

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

5

employment, but who nonetheless has the capacity to earn the wages he or she was receiving at
the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.4 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his employment, he is entitled to compensation for any loss of wages.
If an employee resigns his or her employment or is terminated from employment for
cause, the Board has explained that the issue remains whether he or she had established disability
causally related to the accepted injury, i.e., whether appellant was able to earn the wages he was
earning on the date of injury.5
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.6
ANALYSIS
Appellant’s claim was accepted for an aggravation of lumbosacral spondylosis without
myelopathy. He resigned from the employing establishment on April 29, 2011 and filed claims
for wage-loss compensation for the period April 24 to December 2, 2011. Appellant contends
that his disability for this period was due to his accepted employment injury. The Board finds
that the case is not in posture for decision.
OWCP accepted appellant’s claim for aggravation of lumbosacral spondylosis based on
reports from Dr. Kuerbitz, a treating Board-certified internist. In an August 6, 2012 decision, an
OWCP hearing representative remanded the case for further development of the medical
evidence. OWCP was instructed to refer appellant for a second opinion evaluation to determine
whether his other back and leg conditions were causally related to his employment duties and
whether he continued to have residuals from his accepted employment condition.
Appellant was referred to Dr. Nickodem, a Board-certified orthopedic surgeon, who
provided a review of the employment history and medical treatment and noted that appellant
resigned from the employing establishment in April 2011. Dr. Nickodem provided physical
examination findings and diagnosed pain associated with aggravation of lumbar spine
spondylosis and that the pain had progressed since a September 2010 fall at work. He also,
however, related that appellant’s CT scan showed significant disc bulging at L3-4, L4-5, and L5S1 levels with disc herniations at L4-5 and L5-S1 levels. While Dr. Nickodem noted that there
was no evidence that these diagnoses were caused by a specific work injury, but were the result
of normal degeneration of the lumbar spine, he also opined that he believed that appellant’s
lumbar conditions had been aggravated by the September 2010 fall at work and his work duties.
4

Merle J. Marceau, 53 ECAB 197 (2001).

5

D.M., Docket No. 14-0887 (issued October 2, 2014).

6

See William A. Archer, 55 ECAB 674 (2004); Fereidoon Kharabi, 52 ECAB 291 (2001).

6

He opined that appellant was totally disabled from his job as a mail carrier due to his significant
lower lumbar back issues with foraminal compromise and herniated discs, but was capable of
performing sedentary work.
The Board finds that Dr. Nickodem’s opinion on the nature and extent of appellant’s
disability related to the accepted aggravation of lumbar spine spondylosis and his other
diagnosed lumbar conditions, is not well explained. Dr. Nickodem noted that appellant was
disabled from performing his job as a mail carrier, but was capable of performing sedentary
work. He did not address whether appellant’s disability for work commenced as of the date of
his resignation from work on April 29, 2011 or whether his disability was due to the accepted
employment injury. Dr. Nickodem opined that appellant’s lumbar conditions had been
aggravated by his job as a mail carrier. However, he offered no rationalized opinion regarding
the cause of appellant’s diagnosed conditions. While Dr. Nickodem concluded that appellant
was disabled from performing his regular duties as a mail carrier, he provided no opinion on the
issue of whether appellant was disabled due to the accepted employment injury for the period
April 29 to December 2, 2011.7
Once OWCP undertakes development of the record, it must do a complete job in
procuring medical evidence that will resolve the relevant issues in the case.8 When it selects a
physician for an opinion on whether appellant continued to have disability and residuals causally
related to the accepted condition, it has an obligation to secure, if necessary, clarification of the
physician’s report, and to have a proper evaluation made.9 Because OWCP referred him to a
second opinion physician, OWCP has the responsibility to obtain a report that addresses the
proposed questions of whether his disability was limited to and included the period in question,
whether his back and knee conditions were caused or aggravated by his employment duties, and
whether his disability to perform his job as a mail carrier was causally related to the accepted
employment injury.
Because Dr. Nickodem failed to address appellant’s period of disability, whether his back
and knee conditions were causally or aggravated by his employment duties, and whether his
disability to perform his job as a mail carrier for the period April 24 to December 2, 2011 was
causally related to the accepted employment injury, OWCP should have requested clarification.
The case will be remanded to OWCP for further development of the medical evidence, to
be followed by a de novo decision on appellant’s claim.
CONCLUSION
The Board finds that additional development of the medical evidence is needed to
establish whether appellant was disabled for the period April 24 to December 2, 2011 as a result
of his accepted employment injury.
7

H.H., Docket No. 15-770 (issued October 8, 2015).

8

Phillip L. Barnes, 55 ECAB 426, 441 (2004); see also Virginia Richard (Lionel F. Richard), 53 ECAB 430, 433
(2002); William J. Cantrell, 34 ECAB 1233, 1237 (1993); Dorothy L. Sidwell, 36 ECAB 699, 707 (1985).
9

Peter C. Belkind, 56 ECAB 580 (2005).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated July 29, 2015 is set aside and the case remanded for further
proceedings consistent with the above opinion.
Issued: March 3, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


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

)
)
)
)
)
)
)
)

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

Docket No. 10-149
Issued: July 13, 2010

Case Submitted on the Record

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

JURISDICTION
On October 10, 2009 appellant filed a timely appeal from a May 27, 2009 nonmerit
decision of the Office of Workers’ Compensation Programs denying her untimely request for
reconsideration and finding that it failed to establish clear evidence of error. As over one year
has passed between the most recent merit decision, January 23, 2007 and the filing of this appeal,
the Board lacks jurisdiction over the merits of this case.1 Pursuant to 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the nonmerits of this case.
ISSUE
The issue is whether the Office properly denied appellant’s request for reconsideration as
untimely filed and lacking clear evidence of error.

1

For decisions issued prior to November 19, 2008, a claimant had up to one year to file an appeal. An appeal of
Office decisions issued on or after November 19, 2008 must be filed within 180 days of the decision. 20 C.F.R.
§ 501.3(e).

FACTUAL HISTORY
This case has previously been before the Board. In a December 8, 2008 decision, the
Board affirmed a February 4, 2008 Office decision denying her request for reconsideration of the
merits.2 The Office found appellant’s request did not raise substantial legal questions regarding
the denial of her recurrence of disability claim beginning January 22, 2005 or submit pertinent
new and relevant evidence. The facts of the case as set forth in the Board’s prior decisions are
incorporated herein by reference.3
Appellant submitted medical evidence dated March 14 to 28, 2008, from Dr. Timothy L.
Lukas, a treating Board-certified orthopedic surgeon, who addressed the state of her current
condition.
On December 16, 2008 appellant requested reconsideration contending that the Office
erred in denying her recurrence claim. The Office subsequently received additional progress
notes dated October 13, 2008 from Dr. Lukas.
By decision dated January 22, 2009, the Office denied appellant’s request for
reconsideration on the basis that it was untimely filed and failed to present clear evidence of
error.
On April 4, 2009 appellant requested reconsideration.
By decision dated May 27, 2009, the Office denied appellant’s request for
reconsideration on the basis that it was untimely filed and failed to present clear evidence of
error.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act4 provides that the Office may review an
award for or against compensation upon application by an employee (or his or her representative)
who receives an adverse decision. The employee may obtain this relief through a request to the
2

Docket No. 08-1336 (issued December 8, 2008).

3

On December 10, 1998 appellant, then a 31-year-old letter carrier, filed a traumatic injury claim alleging that
she injured her right knee and possibly sustained an arm injury on that date when she was hit by a car while taking
mail out of a collection box. The Office accepted the claim for right tibia fracture, open wounds and right knee
internal derangement. Appellant stopped work on December 10, 1998 and returned to full-time work with
restrictions on August 9, 1999, but also reduced her work hours to six on August 31, 1999. On November 2, 2000
appellant reduced her hours to four hours per day. By letter dated November 2, 2001, the Office placed appellant on
the periodic rolls for partial disability for entitlement to up to four hours per day of leave without pay. On
January 28, 2005 appellant filed a claim for a recurrence of disability beginning January 22, 2005. She stated that
she had increased swelling and pain in her knee each time she increased her work hours and that working seven
hours per day aggravated her accepted knee condition. By decision dated June 14, 2005, the Office denied
appellant’s claim on the grounds that the medical evidence did not demonstrate that she sustained a recurrence of
disability as the evidence did not show her condition had materially worsened or that she was unable to perform her
limited-duty job.
4

5 U.S.C. § 8101 et seq.

2

district Office. The request, along with the supporting statements and evidence, is called the
application for reconsideration.5 To be entitled to a merit review of an Office decision denying
or terminating a benefit, a claimant must file his or her application for review within one year of
the date of that decision.6 The Board has found that the imposition of the one-year limitation
does not constitute an abuse of the discretionary authority granted the Office under section
8128(a) of the Act.7
Title 20 of the Code of Federal Regulations, section 10.607(b) provides that the Office
will consider an untimely application only if it demonstrates clear evidence of error by the Office
in its most recent merit decision. To establish clear evidence of error, a claimant must submit
evidence relevant to the issue which was decided by the Office. The evidence must be positive,
precise and explicit and must manifest on its face that the Office committed an error.8 The term
“clear evidence” of error is intended to represent a difficult standard. The claimant must present
evidence which on its face shows that the Office made an error (for example, proof of a
miscalculation in a schedule award). Evidence such as a detailed, well-rationalized medical
report which, if submitted prior to the Office’s denial, would have created a conflict in medical
opinion requiring further development, is not clear evidence of error and would not require a
review of the case on the Director’s own motion.9 The Board makes an independent
determination of whether a claimant has submitted clear evidence of error on the part of the
Office such that the Office abused its discretion in denying merit review in the face of such
evidence.10
ANALYSIS
The Board finds that the Office properly determined that appellant failed to file a timely
request for reconsideration. Its procedures provide that the one-year time limitation period for
requesting reconsideration begins on the date of the original Office decision.11 However a right
to reconsideration within one year also accompanies any subsequent merit decision on the
issues.12 The most recent merit decision was dated January 23, 2007. Appellant had one year

5

20 C.F.R. § 10.605.

6

Id. at § 10.607(a).

7

5 U.S.C. § 8128(a); E.R., 60 ECAB ___ (Docket No. 09-599, issued June 3, 2009); Leon D. Faidley, Jr., 41
ECAB 104 (1989).
8
D.O., 60 ECAB ___ (Docket No. 08-1057, issued June 23, 2009); Robert F. Stone, 57 ECAB 292 (2005);
Leon D. Modrowski, 55 ECAB 196 (2004); Darletha Coleman, 55 ECAB 143 (2003).
9

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.3(b) (April 1991). See
E.R., supra note 7; James R. Mirra, 56 ECAB 738 (2005).
10

See W.G., 60 ECAB ___ (Docket No. 08-2340, issued June 22, 2009); S.D., 58 ECAB 713 (2007); Alberta
Dukes, 56 ECAB 247 (2005).
11

20 C.F.R. § 10.607(a); see A.F., 59 ECAB ___ (Docket No. 08-977, issued September 12, 2008); Alberta
Dukes, id.
12

D.G., 59 ECAB ___ (Docket No. 08-137, issued April 14, 2008); Robert F. Stone, supra note 8

3

from the date of this decision to make a timely request for reconsideration. Since appellant did
not file her request until April 4, 2009, it was filed outside the one-year time period.
As her request was untimely, appellant must submit evidence or argument that show clear
evidence of error in the Office’s decision denying her recurrence claim. The term clear evidence
of error is intended to represent a difficult standard.13 Appellant’s request would have to
establish on its face that the Office’s denial of her recurrence claim was erroneous.
Appellant’s request for reconsideration does not establish clear evidence or error. The
Board finds that she failed to provide sufficient medical evidence to support her claim that she
sustained a recurrence of disability on January 22, 2005. Records from appellant’s treatment in
2007 and 2008 do not pertain to the time period in 2005 when she filed her recurrence claim or
address her disability as of that period. To establish clear evidence of error, the evidence
submitted must be positive, precise and explicit and must manifest on its face that the Office
committed an error.14 Appellant did not submit such evidence.
On appeal appellant contends that the Office erred in relying upon Dr. Obinanwu’s
May 19, 2004 report in denying her recurrence claim as it was stale and cites to the procedure
manual to support her allegation of an error of law or fact. The Office denied her recurrence
claim on the grounds that she failed to submit rationalized medical evidence showing either a
material worsening in her condition or that she was unable to perform her light-duty job. The
Office noted that Dr. Obinanwu report continued to constitute the weight of the evidence
regarding her ability to perform her light-duty job. It was appellant burden to submit relevant
medical evidence to support her recurrence claim. This argument was previously considered and
denied and does not establish clear evidence of error by the Office.
CONCLUSION
The Board finds that the Office properly determined that appellant’s reconsideration
request was not timely filed and failed to present clear evidence of error.

13

D.L., 60 ECAB ____ (Docket No. 08-1057, issued June 23, 2009); Joseph R. Santos, 57 ECAB 554 (2006).

14

Robert F. Stone, supra note 8.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 27, 2009 is affirmed.
Issued: July 13, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.B., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
JAMES A. HALEY VETERANS
ADMINISTRATION HOSPITAL, Tampa, FL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)
)

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

Docket No. 07-337
Issued: November 19, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On November 20, 2006 appellant filed a timely appeal of the April 26, 2006 merit
decision of the Office of Workers’ Compensation Programs and an October 18, 2006 decision of
an Office hearing representative, finding that she had no more than a 12 percent impairment of
the left upper extremity, for which she received a schedule award. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this schedule award case.
ISSUE
The issue is whether appellant has more than a 12 percent impairment of the left upper
extremity, for which she received a schedule award.
FACTUAL HISTORY
On May 15, 1998 appellant, then a 35-year-old program support assistant, filed a
traumatic injury claim. On that date she slipped and fell on sand that was on the floor at work.

Appellant fell on her left arm/elbow, her right hand bumped the back of her head and she twisted
her right knee. The Office accepted her claim for cervical sprain/strain, herniated disc at L4-5,
contusion of the left elbow, lumbar strain, neurotic depression (dysthymic disorder), cervical disc
rupture and reparative fusion and radial tunnel syndrome.
To determine whether appellant had any continuing residuals of her accepted
employment injuries the Office, by letter dated January 22, 2004, referred her along with a
statement of accepted facts, the case record and a list of questions to be addressed to,
Dr. Adam S. Bright, a Board-certified orthopedic surgeon, for a second opinion medical
examination. In a February 6, 2004 medical report, Dr. Bright provided his loss of motion and
grip strength findings on physical examination and his findings on x-ray examination. He opined
that appellant sustained a herniated disc at C4-5 and C5-6 which resulted in nerve
damage/radiculopathy in the left upper extremity, as well as, an injury to the left elbow with
probable radial tunnel syndrome. Dr. Bright stated that she had residual stiffness inside the neck
from fusion, weakness inside the arm from nerve damage and chronic pain. In an accompanying
work capacity evaluation, he stated that appellant could not perform her regular work duties but
she could work four hours per day with restrictions.
On February 9, 2004 appellant filed a claim for a schedule award.
On March 3, 2004 an Office medical adviser reviewed appellant’s case record including
Dr. Bright’s February 6, 2004 findings. He found that appellant reached maximum medical
improvement on February 6, 2004. The medical adviser determined that she sustained a
10 percent impairment of the left upper extremity based on Table 16 on page 509 of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) (5th ed. 2001).
By decision dated March 23, 2004, the Office granted appellant a schedule award for a
10 percent impairment of the left upper extremity based on the Office medical adviser’s March 3,
2004 medical opinion.
The period of the award was from February 22 through
September 27, 2004.
The Office received a March 25, 2004 report of Dr. Jorge J. Inga, an attending Boardcertified neurosurgeon, who provided a history of appellant’s cervical conditions and medical
treatment. Dr. Inga noted that a February 27, 2004 magnetic resonance imaging (MRI) scan of
her cervical spine revealed status post vertebral body fusion at C4-5 and C5-6 and evidence of a
left paracentral disc protrusion at C3-4 and a bulging disc at C6-7. He provided essentially
normal findings on neurological examination. Dr. Inga opined that appellant was status post
anterior cervical discectomies and fusion at C4-5 and C5-6 and she had a left paracentral disc
protrusion at C3-4 and radial tunnel syndrome on the left side. In a March 31, 2004 report, he
found that appellant was totally disabled and unable to engage in any type of gainful
employment due to persistent residual cervical symptomatology and radial tunnel syndrome.
Dr. Inga determined that she had a 6 percent impairment related to her cervical pathology, a 12
percent impairment related to pain in her upper extremities and a 14 percent impairment related
to permanent partial loss of use of her left arm, wrist and elbow, totaling a 32 percent impairment
of the whole body based on the A.M.A., Guides. He stated that appellant reached maximum
medical improvement on January 4, 2001 and September 11, 2003.

2

On March 30, 2004 appellant requested a review of the written record by an Office
hearing representative regarding the Office’s March 23, 2004 decision.
By decision dated August 18, 2004, a hearing representative set aside the March 23, 2004
decision and remanded the case to the Office for further development of the medical evidence.
He found that the Office medical adviser’s impairment rating solely relied on loss of grip
strength while other physicians of record including, Dr. Bright, reported numbness in appellant’s
left upper extremity. The hearing representative further found that earlier medical reports which
indicated persistent swelling in this extremity were unaddressed by the medical adviser. He
determined that the Office inappropriately advised the medical adviser not to recommend a
second opinion medical examination. On remand, the hearing representative directed the Office
to refer appellant and the case file to a second opinion medical examiner to determine the extent
of permanent impairment of her left upper extremity based on the A.M.A., Guides.
By letter dated October 14, 2004, the Office referred appellant, along with a statement of
accepted facts, the case record and a list of questions to be addressed to Dr. David H. Baras, a
Board-certified physiatrist, for a second opinion medical examination. In an October 27, 2004
report, Dr. Baras found that appellant was status post anterior cervical discectomies and fusion at
C4-5 and C5-6. He did not find evidence of any impairment involving her left upper extremity
as a result of a work-related injury. Dr. Baras opined in an addendum report dated November 5,
2004 that appellant had no permanent impairment and there was no permanent impairment rating
involving her left upper extremity.
On November 17, 2004 the Office issued a decision finding that appellant did not sustain
any additional impairment of the left upper extremity based on Dr. Baras’ opinion. On
December 4, 2004 appellant requested an oral hearing before a hearing representative.
By decision dated October 27, 2005, a hearing representative set aside the November 17,
2004 decision and remanded the case to the Office for further medical development. He found
that the Office failed to follow its procedures in finding that appellant had no additional
impairment of the left upper extremity based on Dr. Baras’ opinion without the benefit of having
an Office medical adviser review his findings. Further, the hearing representative found that
Dr. Baras did not specifically utilize the A.M.A., Guides in determining appellant’s impairment
rating. On remand, the hearing representative instructed the Office to refer appellant along with
an updated statement of accepted facts and case record to a new Board-certified specialist in the
appropriate medical area for a second opinion medical examination to determine the extent of her
permanent impairment based on the A.M.A., Guides. He further instructed the Office to inform
the referral physician that a schedule award had been previously granted to appellant for a
10 percent impairment of the left upper extremity. Lastly, the hearing representative directed the
Office to refer the case record to a medical adviser upon receipt of the second opinion
specialist’s report.
By letter dated January 16, 2006, the Office referred appellant, together with an updated
statement of accepted facts, the case record and a list of questions to be addressed to,
Dr. Michael W. Meriweather, a Board-certified neurosurgeon, for a second opinion medical
examination. In a February 23, 2006 report, Dr. Meriweather provided appellant’s symptoms
and history of her employment-related injuries and medical treatment. On physical examination,

3

he reported diminished sensation in the left arm involving the C4, C5, C6 and C7 nerves.
Dr. Meriweather noted a well-healed scar on the left side of appellant’s neck from previous
cervical surgery. He reviewed MRI scans of her cervical spine which demonstrated fusion at the
C4-5 and C5-6 levels and an unchanged left central disc protrusion at C3-4. Dr. Meriweather
diagnosed status post anterior cervical discectomy with fusion at C4-5 and C5-6, a known central
herniated nucleus pulpsous at C3-4, left arm weakness with numbness and chronic pain. He
opined that in applying Table 15-15 on page 424 of the A.M.A., Guides to appellant’s symptoms,
she sustained a 12 percent impairment of the left upper extremity.
On March 14, 2006 an Office medical adviser reviewed appellant’s medical records
including, Dr. Meriweather’s February 23, 2006 findings. The medical adviser opined that
appellant reached maximum medical improvement on March 3, 2004. The medical adviser
noted that Dr. Meriweather utilized Tables 15-15 and 15-17 on page 424 of the A.M.A., Guides.
The medical adviser opined that, by multiplying the severity of sensory loss by the maximum
impairment of each nerve, appellant sustained a 12 percent impairment of the left upper
extremity. The medical adviser, therefore, determined that appellant had an additional two
percent impairment above the previous 10 percent schedule award granted by the Office on
March 3, 2004.
In a decision dated April 26, 2006, the Office granted appellant a schedule award for an
additional 2 percent impairment based on the opinion of Dr. Meriweather and the Office medical
adviser, totaling a 12 percent impairment of the left upper extremity. The Office noted that
appellant previously received a schedule award for a 10 percent impairment of the left upper
extremity. The period of the award was from April 16 through May 29, 2006.
On May 15, 2006 appellant requested a review of the written record by a hearing
representative. In a letter dated May 19, 2006, she contended that Dr. Meriweather did not
conduct a thorough examination. Appellant stated that no instruments were used to test the
strength in her hand or arm. No measurements were taken in the swollen area of her forearm
which had been present since her work-related fall. Appellant stated that she was not asked to
turn her head to the left or right, noting that, if this had taken place, she would have shown loss
of movement. She had to turn her body completely around to look behind herself. Appellant
further stated that she was not asked about her symptoms and overall daily discomfort.
By decision dated October 18, 2006, the hearing representative affirmed the April 26,
2006 decision. He found that Dr. Meriweather and the Office medical adviser properly utilized
the A.M.A., Guides in determining that appellant had a 12 percent impairment of the left upper
extremity.

4

LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act1 and its
implementing regulations2 sets 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 of loss of use.3 However, neither the Act nor the regulations specify the manner in
which the percentage of impairment shall be determined. For consistent results and to ensure
equal justice for all claimants, the Office adopted the A.M.A., Guides as a standard for
determining the percentage of impairment and the Board has concurred in such adoption.4
Although the A.M.A., Guides include guidelines for estimating impairment due to
disorders of the spine, a schedule award is not payable under the Act for injury to the back or
spine.5 In 1960 amendments to the Act modified the schedule award provisions to provide for an
award for permanent impairment to a member of the body covered by the schedule regardless of
whether the cause of the impairment originated in a scheduled or nonscheduled member.
Therefore, as the schedule award provisions of the Act include the extremities, a claimant may
be entitled to a schedule award for permanent impairment to an extremity even though the cause
of the impairment originated in the spine.6 An impairment should not be considered permanent
until the clinical findings indicate that the medical condition is static and well stabilized.7
It is well established that, when the attending physician fails to provide an estimate of
impairment conforming to the protocols of the A.M.A., Guides, his opinion is of diminished
probative value in establishing the degree of any permanent impairment. In such cases, the
Office may rely on the opinion of its medical adviser to apply the A.M.A., Guides to the findings
reported by the attending physician.8

1

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

2

20 C.F.R. § 10.404.

3

5 U.S.C. § 8107(c)(19).

4

See supra note 2.

5

Pamela J. Darling, 49 ECAB 286 (1998).

6

Thomas J. Engelhart, 50 ECAB 319 (1999). Section 15.12 of the fifth edition of the A.M.A., Guides describes
the method to be used for evaluation of impairment due to sensory and motor loss of the extremities as follows. The
nerves involved are to be first identified. Then, under Tables 15-15 and 15-16, the extent of any sensory and/or
motor loss due to nerve impairment is to be determined, to be followed by determination of maximum impairment
due to nerve dysfunction in Table 15-17 for the upper extremity and Table 15-18 for the lower extremity. The
severity of the sensory or motor deficit is to be multiplied by the maximum value of the relevant nerve. A.M.A.,
Guides 424.
7

Patricia J. Penney-Guzman, 55 ECAB 757 (2004).

8

See John L. McClanic, 48 ECAB 552 (1997); see also Paul R. Evans, 44 ECAB 646, 651 (1993).

5

ANALYSIS
The Office accepted that appellant sustained cervical sprain/strain, herniated disc at L4-5,
contusion of the left elbow, lumbar strain, neurotic depression (dysthymic disorder), cervical disc
rupture and reparative fusion and radial tunnel syndrome in the performance of duty on
May 15, 1998. On March 23, 2004 the Office granted appellant a schedule award for a
10 percent impairment of the left upper extremity. On April 26, 2006 the Office granted
appellant a schedule award for an additional 2 percent impairment, totaling a 12 percent
impairment of the left upper extremity.
In a March 31, 2004 report, Dr. Inga found that appellant was totally disabled and unable
to engage in any type of gainful employment due to persistent residual cervical symptomatology
and radial tunnel syndrome. He determined that she had a 6 percent impairment related to her
cervical pathology, a 12 percent impairment related to the pain in her upper extremities and a
14 percent impairment related to permanent partial loss of use of her left arm, wrist and elbow,
totaling a 32 percent impairment of the whole body based on the A.M.A., Guides. Dr. Inga,
however, failed to specifically identify what section, table or figure of the A.M.A., Guides upon
which he based his 32 percent impairment rating. Consequently, his opinion is of diminished
probative value and is insufficient to establish that appellant has any greater left upper extremity
impairment than that for which she has already received a schedule award.
Dr. Meriweather, an Office referral physician, examined appellant on February 23, 2006.
On physical examination, he reported diminished sensation in the left arm involving the C4, C5,
C6 and C7 nerves and a well-healed scar on the left side of appellant’s neck from previous
cervical surgery. Dr. Meriweather found that appellant was status post anterior cervical
discectomy with fusion at C4-5 and C5-6 and that she had a known central herniated nucleus
pulposus at C3-4, left arm weakness with numbness and chronic pain. He opined that she
sustained a 12 percent impairment due to sensory loss of the left upper extremity (A.M.A.,
Guides 424, Table 15-15).
On March 14, 2006 the Office medical adviser reviewed Dr. Meriweather’s report and
agreed with the impairment rating. The medical adviser found that appellant reached maximum
medical improvement on March 4, 2004. The medical adviser indicated that Dr. Meriweather
utilized Tables 15-15 and 15-17 on page 424 of the A.M.A., Guides. The medical adviser opined
that, by multiplying the severity of sensory loss by the maximum impairment of each nerve,
appellant sustained a 12 percent impairment of the left upper extremity. The medical adviser
concluded that appellant was entitled to an additional 2 percent impairment above the 10 percent
schedule award she previously received.
Although Dr. Meriweather and the Office medical adviser stated that appellant sustained
a 12 percent impairment for sensory loss and nerve impairment of the left upper extremity based
on the A.M.A., Guides, they did not identify a grade of sensory deficit between 1 and 5 as set
forth in Table 15-15 of the A.M.A., Guides or maximum impairment for sensory deficit of
appellant’s C5, C6 and C7 nerve roots based on Table 15-17 on page 424 of the A.M.A., Guides.
Further, the Board notes that maximum impairment for sensory deficit of the C4 nerve root is not
contained in Table 15-17. Accordingly, the Board finds that the record does not include a
probative medical opinion on the nature and extent of appellant’s impairment. The case will be

6

remanded to the Office for further development of the medical evidence, as appropriate,
followed by a de novo decision regarding appellant’s entitlement to an additional schedule award
for her left upper extremity.
CONCLUSION
The Board finds that this case is not in posture for decision as to whether appellant has
more than a 12 percent impairment of the left upper extremity.
ORDER
IT IS HEREBY ORDERED THAT the October 18, 2006 decision of the Office of
Workers’ Compensation Programs’ hearing representative and the April 26, 2006 decision of the
Office are set aside and the case is remanded to the Office for further proceedings consistent with
this decision.
Issued: November 19, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.M., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Atlanta, GA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-1712
Issued: July 14, 2009

Case Submitted on the Record

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

JURISDICTION
On June 2, 2008 appellant, through his representative, filed a timely appeal from an
April 30, 2008 merit decision of the Office of Workers’ Compensation Programs’ hearing
representative, who affirmed his loss of wage-earning capacity. Pursuant to 20 C.F.R.
§§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of the case.
ISSUE
The issue is whether the Office used the proper pay rate to calculate appellant’s loss of
wage-earning capacity. Appellant’s representative argues that the Office’s decision is contrary
to fact and law.
FACTUAL HISTORY
On September 20, 2000 appellant, then a 35-year-old letter carrier, sustained an injury in
the performance of duty when he was involved in a motor vehicle accident. He stopped work at
that time. The Office accepted appellant’s claim for cervical strain, lumbar strain and left hip

contusion.
Appellant was released to return to full duty without restrictions on
November 7, 2000.1
The Office authorized a cervical discectomy and arthrodesis at C4-6, which was
performed on April 17, 2006. Appellant again stopped work. He received compensation for
temporary total disability on the periodic rolls. The Office based appellant’s compensation for
wage loss on his April 17, 2006 pay rate. Appellant accepted a modified position and returned to
work on September 5, 2007.
In a decision dated November 8, 2007, the Office found that appellant’s actual earnings
as a modified city carrier fairly and reasonably represented his wage-earning capacity, as he had
demonstrated his ability to perform the duties of that position for more than two months.
Because appellant’s actual earnings met or exceeded the current wages of the job he held when
injured, the Office reduced his entitlement to compensation for wage loss on the date he was
reemployed with no loss in earning capacity.
During a telephonic hearing on February 11, 2008, appellant’s representative agreed that
the issue was whether the Office used the correct pay rate when calculating the loss of wageearning capacity.
In a decision dated April 30, 2008, an Office hearing representative affirmed the
November 8, 2007 decision. The hearing representative found that the Office properly
calculated appellant’s wage-earning capacity by comparing his actual earnings with the current
pay rate of his date-of-injury position.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act provides compensation for the disability of
an employee resulting from personal injury sustained while in the performance of his duty.2
“Disability” means the incapacity, because of an employment injury, to earn the wages the
employee was receiving at the time of injury. It may be partial or total.3
If the disability is partial, the United States shall pay the employee during the disability
monthly monetary compensation equal to 66 2/3 percent4 of the difference between his monthly
pay and his monthly wage-earning capacity after the beginning of the partial disability, which is
known as his basic compensation for partial disability.5
“Monthly pay” means the monthly pay at the time of injury or the monthly pay at the
time disability begins or the monthly pay at the time compensable disability recurs if the
1

Appellant sustained a recurrence on June 3, 2002. He returned to work by December 4, 2002.

2

5 U.S.C. § 8102(a).

3

20 C.F.R. § 10.5(f).

4

Augmented compensation for dependents is 75 percent. 5 U.S.C. § 8110(b)(2).

5

Id. at § 8106(a).

2

recurrence begins more than six months after the injured employee resumes regular full-time
employment with the United States, whichever is greater.6
In determining compensation for partial disability, the wage-earning capacity of an
employee is determined by the employee’s actual earnings if the employee’s actual earnings
fairly and reasonably represent his wage-earning capacity.”7 Generally, wages actually earned
are the best measure of a wage-earning capacity and in the absence of evidence showing that
they do not fairly and reasonably represent the injured employee’s wage-earning capacity, must
be accepted as such measure.8
In the case of Albert C. Shadrick,9 the Board set forth the principle that if current actual
earnings are used as one of the factors in computing an employee’s wage-earning capacity, then
the current increased wage for the employee’s original job should also be used to avoid any
distortions caused by changes in business conditions since the injury. Following this principle,
the Office established the Shadrick formula as the method of computing compensation when
determining an injured worker’s wage-earning capacity.10
After the claimant has been working for 60 days, the Office will determine whether the
claimant’s actual earnings fairly and reasonably represent his wage-earning capacity. If so, a
formal decision should be issued no later than 90 days after the date of return to work. The
Office will determine the claimant’s monetary entitlement using the Shadrick formula.11
ANALYSIS
Following the Shadrick formula, the Office properly compared appellant’s actual
earnings as a modified city carrier, effective September 5, 2007, to the current pay rate of his
date-of-injury job. The pay rates were the same, showing that appellant returned to work on
September 5, 2007 at a retained pay rate with no wage loss. By definition, he had no disability
because he had no incapacity because of the employment injury to earn the wages he was
receiving at the time of injury.
Dividing actual earnings as a modified city carrier by the current pay rate of the date-ofinjury job, the Office determined that appellant’s wage-earning capacity was 100 percent. The
Office then applied this percentage to appellant’s monthly pay, as defined by section 8101(4) of
the Act. The Board notes that the Office correctly selected appellant’s monthly pay when
6

Id. at § 8101(4); John D. Williamson, 40 ECAB 1179 (1989).

7

5 U.S.C. § 8115(a).

8

Don J. Mazurek, 46 ECAB 447 (1995).

9

5 ECAB 376 (1953).

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Reemployment: Determining Wage-Earning Capacity,
Chapter 2.814.2 (December 1993). For the formula itself, see id., Computation of Compensation, Chapter
2.901.15.c (December 1995).
11

Id. at Chapter 2.814.7.c (July 1997).

3

disability began -- or more accurately recurred -- as a result of his April 17, 2006 authorized
cervical spine surgery. This is the pay rate appellant’s representative wanted to make sure the
Office had used, and the Office did. The Office multiplied appellant’s recurrent pay rate by 100
percent, which, when subtracted from the recurrent pay rate, left no loss of wage-earning
capacity. The Office attached a computation of compensation worksheet to its November 8,
2007 decision showing how it applied the Shadrick formula and calculated the earning capacity.
Appellant’s representative will note that the Office applied the 100 percent wage-earning
capacity (item 4) to the pay rate effective April 17, 2006, when appellant underwent surgery.
The Board will affirm the Office’s April 30, 2008 decision.
CONCLUSION
The Board finds that the Office used the proper pay rate to calculate appellant’s loss of
wage-earning capacity.
ORDER
IT IS HEREBY ORDERED THAT the April 30, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 14, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

4


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

)
)
)
)
)
)
)
)

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

Docket No. 08-1329
Issued: April 20, 2009

Case Submitted on the Record

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

JURISDICTION
On April 2, 2008 appellant filed a timely appeal from a decision of the Office of
Workers’ Compensation Programs dated February 19, 2008 denying his claim for a schedule
award. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits
of this case.
ISSUE
The issue is whether appellant established a ratable hearing loss causally related to his
federal employment.
FACTUAL HISTORY
On August 29, 2007 appellant, a 66-year-old aircraft mechanic and inspector, filed an
occupational disease claim (Form CA-2) for hearing loss. He asserted, based upon audiological
testing, that his hearing loss was attributable to his years of federal employment. Appellant
submitted no medical information in support of his hearing loss claim.

By letter dated September 4, 2007, the Office notified appellant that the materials
submitted were insufficient for purposes of determining his eligibility for benefits under the
Federal Employees’ Compensation Act. The Office requested that he submit medical evidence
and respond to a series of questions concerning his claim.1
Appellant submitted an employment history detailing his exposure to loud noise. From
April 28, 1966 to February 28, 1970, appellant was employed by the United States Air Force and
exposed to aircraft engine noise approximately five hours per day. From January 1, 1975 to
June 29, 2003, appellant was employed by the Georgia Air National Guard as an aircraft
ordinance system mechanic/utilities specialist and exposed to aircraft engine and heavy
equipment noise three to four hours, one weekend a month. Since October 31, 1988, he was
employed at the employing establishment as an aircraft mechanic. The noise sources he was
exposed to consisted of air conditioning units, compressors, rivet guns, hammering, drill motors
and impact guns from five to six hours a day and ear protection was provided.
Appellant submitted an unsigned medical report dated July 1, 2005 from Dr. Sean
Peppard, a Board-certified otolaryngologist, who noted treating appellant for a May 24, 2005
head injury. He also submitted a June 3, 2005 audiogram report prepared for Dr. Peppard.
On January 30, 2008 the Office referred appellant, together with a statement of accepted
facts, to Dr. Peppard for a second opinion examination. By report dated January 31, 2008,
Dr. Peppard diagnosed appellant with sensorineural hearing loss and bilateral tinnitus. An
audiogram conducted on January 30, 2008 reflected testing at 500, 1,000, 2,000 and 3,000 cycles
per second (cps) levels and showed the following decibel losses: 20, 5, 10 and 30 in the right ear
and 10, 10, 20 and 60 in the left ear. Dr. Peppard opined that appellant’s hearing loss was due to
noise exposure encountered in the performance of his federal civilian employment.
On February 14, 2008 the Office medical adviser reviewed Dr. Peppard’s January 31,
2008 report and concluded that appellant had a bilateral sensorineural hearing loss but that it was
not ratable for purposes of a schedule award.
By decision dated February 19, 2008, the Office accepted appellant’s claim for bilateral
sensorineural hearing loss but found that the extent of loss was not severe enough to be ratable.
Therefore, appellant was not entitled to a schedule award under the Act.
LEGAL PRECEDENT
Section 8107 of the Act sets forth the number of weeks of compensation to be paid for
the permanent loss of use of specified members, functions and organs of the body. The Act,
however, does not specify the manner by which the percentage loss of a member, function or
organ shall be determined. To ensure consistent results and equal justice under the law, good
1

Responding to the Office’s letter, appellant submitted a June 3, 2005 medical report signed by a physician
whose signature is illegible. Appellant also submitted unsigned medical notes dated June 2 and July 6, 2005. These
notes lack any identification concerning their author. The Board notes that unsigned medical reports lacking
adequate indication that they were completed by a physician are not considered probative medical evidence. See
D.D., 57 ECAB 734 (2006); Merton J. Sills, 39 ECAB 572, 575 (1988). Consequently, these notes are of no
probative value and are insufficient to support appellant’s claim.

2

administrative practice requires the use of uniform standards applicable to all claimants. The
implementing regulations have adopted the American Medical Association, Guides to the
Evaluation of Permanent Impairment (A.M.A., Guides) (5th ed. 2001) as the appropriate standard
for evaluating schedule losses.2 Effective February 1, 2001, schedule awards are determined in
accordance with the A.M.A., Guides (5th ed. 2001).3
Using the frequencies of 500, 1,000, 2,000 and 3,000 cps, the losses at each frequency are
added up and averaged.4 Then, the fence of 25 decibels is deducted because, as the A.M.A.,
Guides points out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions.5 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss.6 The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five and then added to the greater loss and the total is divided by six to arrive at the amount of
the binaural hearing loss.7
Tinnitus in the presence of unilateral or bilateral hearing impairment may impair speech
discrimination. Therefore, the A.M.A., Guides allow up to five percent additional for tinnitus in
the presence of measurable hearing loss if the tinnitus impacts the ability to perform activities of
daily living.8
ANALYSIS
The Office medical adviser applied the Office’s standardized procedures to the
January 30, 2008 audiograms obtained by Dr. Peppard. According to the Office’s standardized
procedures, testing at frequency levels of 500, 1,000, 2,000 and 3,000 cps revealed hearing loss
of 20, 5, 10 and 30 in the right ear. These totaled 65 decibels, which, when divided by 4,
obtained an average hearing loss of 16.25 decibels. The average of 16.25, when reduced by 25
decibels (the first 25 decibels are discounted as discussed above), equals 0 decibels which, when
multiplied by the established factor of 1.5, produces a 0 percent hearing loss in the right ear.
Testing for the left ear at 500, 1,000, 2,000 and 3,000 cps levels showed hearing loss of
10, 10, 20 and 60 in the left ear. These totaled 100 decibels which, when divided by 4, obtains
an average hearing loss of 25 decibels. The average of 25 decibels, reduced by 25 (the first 25
decibels are discounted as discussed above), equals 0 decibels which, when multiplied by the
established factor of 1.5, produces a 0 percent hearing loss in the left ear.
2

20 C.F.R. § 10.404 (2006).

3

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 (June 2003).

4

A.M.A., Guides 250 (5th ed. 2001).

5

Id.

6

Id.

7

Id.

8

Id. at 246.

3

The evidence of record establishes that appellant has a mild bilateral sensorineural
hearing loss causally related to his federal employment. However, the pertinent audiogram
establishes that appellant’s hearing threshold is within the confines of normal hearing and is not
ratable for a schedule award. As appellant has no ratable hearing loss, he is not entitled to an
award for his bilateral tinnitus. Therefore, the Office properly denied his claim for schedule
award compensation based upon the medical evidence in the record.
CONCLUSION
The weight of the medical evidence does not establish a ratable hearing loss causally
related to noise exposure in federal employment.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated February 19, 2008 is affirmed.
Issued: April 20, 2009
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.M., Appellant
and
DEPARTMENT OF THE ARMY, U.S. ARMY
RESERVES, Fort McCoy, WI, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 12-7
Issued: April 20, 2012

Case Submitted on the Record

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

JURISDICTION
On October 3, 2011 appellant filed a timely appeal from a September 9, 2011 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 the case.
ISSUES
The issues are: (1) whether appellant met his burden of proof in establishing that he
sustained a ratable hearing loss entitling him to a schedule award; and (2) whether OWCP
properly exercised its discretion in denying hearing aids.
FACTUAL HISTORY
On October 21, 2009 appellant, then a 59-year-old heavy mobile equipment repairer
leader, filed an occupational disease claim (Form CA-2) alleging that he developed hearing loss
1

5 U.S.C. § 8101 et seq.

as a result of employment-related noise exposure. He noted that he was exposed to noise from
body repair hammering, work truck engines, fire trucks, jackhammers, compressors, generators
and working on vehicles inside the shop. Appellant first became aware of his condition and of
its relationship to his employment on February 26, 2009.
By letter dated November 2, 2009, OWCP requested additional factual information from
both appellant and the employing establishment. Appellant was requested to provide
information regarding his employment history. He was asked to identify when he related his
hearing loss to conditions of employment and identify all nonoccupational exposure to noise.
OWCP also requested that appellant provide medical documentation pertaining to any prior
treatment he received for ear or hearing problems. It requested that the employing establishment
provide noise survey reports for each site where appellant worked, the sources and period of
noise exposure for each location and whether he wore ear protection.
In a December 1, 2009 statement, Steven Johnson, appellant’s supervisor, stated that
appellant was exposed to employment-related noise over the years from heavy mobile equipment
in the shop area. He noted that appellant was exposed to this noise four times a week for 10
hours a day.
In a February 26, 2009 audiology report, Dr. J.W. Louing, a treating physician, reported
that appellant was exposed to noise from prior military service, firearms, power tools and heavy
machinery. He noted that appellant wore hearing protection and had a history of ringing in his
ears.
OWCP referred appellant to Dr. Larry P. Conrad, a Board-certified otolaryngologist, for a
second opinion evaluation on January 13, 2010. It prepared a statement of accepted facts
addressing appellant’s federal work duties as a heavy mobile equipment repairer and the types of
employment-related noise he was exposed to. An audiogram was completed on January 13,
2010 which revealed the following decibel losses at 500, 1,000, 2,000 and 3,000 Hertz (Hz): 0,
5, 5 and 25 for the right ear and 5, 5, 5 and 20 for the left ear. Dr. Conrad diagnosed high
frequency sensorineural hearing loss. He opined that the hearing loss was due to appellant’s
workplace noise exposure. Dr. Conrad concluded that, in accordance with the sixth edition of
the American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides), appellant had zero percent monaural hearing loss in the left and right ear and zero
percent binaural hearing loss. He stated that appellant had reached maximum medical
improvement and did not recommend hearing aids.
On January 28, 2010 an OWCP medical adviser reviewed Dr. Conrad’s January 13, 2010
otologic examination report and agreed that appellant’s bilateral high frequency sensorineural
hearing loss was due to occupational noise exposure. He applied the audiometric data to
OWCP’s standard for evaluating hearing loss and determined that appellant had a zero percent
monaural hearing loss in the left ear and a zero percent monaural hearing loss in the right ear.
OWCP’s medical adviser concluded that appellant had no ratable hearing loss and opined that
hearing aids should not be authorized.
By decision dated February 10, 2010, OWCP accepted appellant’s claim for bilateral
hearing loss.

2

On August 30, 2011 appellant filed a claim for compensation (Form CA-7) for a schedule
2

award.

By decision dated September 9, 2011, OWCP denied appellant’s schedule award claim
finding that his hearing loss was not severe enough to be considered ratable. It further found that
he would not benefit from hearing aids.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA3 and its implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a matter which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides
(6th ed. 2009), has been adopted by OWCP for evaluating schedule losses and the Board has
concurred in such adoption.4
OWCP evaluates industrial hearing loss in accordance with the standards contained in the
A.M.A., Guides. Using the frequencies of 500, 1,000, 2,000 and 3,000 Hz, the losses at each
frequency are added up and averaged. Then, the fence of 25 decibels is deducted because, as the
A.M.A., Guides points out, losses below 25 decibels result in no impairment in the ability to hear
everyday speech under everyday conditions.5 The remaining amount is multiplied by a factor of
1.5 to arrive at the percentage of monaural hearing loss. The binaural loss is determined by
calculating the loss in each ear using the formula for monaural loss; the lesser loss is multiplied
by five, then added to the greater loss and the total is divided by six to arrive at the amount of the
binaural hearing loss. The Board has concurred in OWCP’s adoption of this standard for
evaluating hearing loss.6
ANALYSIS -- ISSUE 1
Appellant filed a claim for bilateral hearing loss and was referred to Dr. Conrad for a
second opinion examination. After reviewing the statement of accepted facts and medical file,
conducting a thorough physical evaluation and obtaining an audiogram on January 13, 2010,
Dr. Conrad diagnosed bilateral high frequency sensorineural hearing loss due to occupational
noise exposure. OWCP’s medical adviser concurred with this finding and further concluded that
2

Appellant noted that he stopped work on October 26, 2010, the date of his retirement.

3

5 U.S.C. §§ 8101-8193.

4

See R.D., 59 ECAB 127 (2007); Bernard Babcock, Jr., 52 ECAB 143 (2000).

5

See A.M.A., Guides 250.

6

See E.S., 59 ECAB 249 (2007); Donald Stockstad, 53 ECAB 301 (2002), petition for recon. granted (modifying
prior decision), Docket No. 01-1570 (issued August 13, 2002).

3

appellant had no ratable hearing loss to warrant a schedule award or hearing aids. OWCP
accepted appellant’s occupational disease claim for bilateral hearing loss. By decision dated
September 9, 2011, it denied appellant’s schedule award claim and authorization for hearing
aids.
The Board finds that OWCP properly denied appellant’s schedule award claim.
According to the audiometry obtained on January 13, 2010, appellant’s hearing thresholds were
0, 5, 5 and 25 on the right and 5, 5, 5 and 20 on the left. These total 35 and 35 decibels,
respectively, for averages of 8.75 and 8.75 decibels. Because these averages are below the fence
of 25 decibels, appellant is deemed to have no impairment in his ability to hear everyday sounds
under everyday listening conditions.7 This does not mean that he has no hearing loss. It means
that the extent or degree of loss is not sufficient to show a practical impairment in hearing
according to the A.M.A., Guides. The A.M.A., Guides set a threshold for impairment and
appellant’s occupational hearing loss did not cross that threshold. Thus, OWCP’s medical
adviser applied the proper standards to the January 13, 2010 audiogram. Appellant’s hearing
loss was not ratable. For this reason, the Board finds that OWCP properly denied a schedule
award for appellant’s nonratable hearing loss.
Appellant may request a schedule award or increased schedule award based on evidence
of a new exposure or medical evidence showing progression of an employment-related condition
resulting in permanent impairment or increased impairment.
LEGAL PRECEDENT -- ISSUE 2
Section 8103(a) of FECA provides that the United States shall furnish to an employee
who is injured while in the performance of duty the services, appliances and supplies prescribed
or recommended by a qualified physician, which the Secretary of Labor considers likely to cure,
give relief, reduces the degree or the period of any disability or aid in lessening the amount of
any monthly compensation.8 OWCP must therefore exercise discretion in determining whether
the particular service, appliance or supply is likely to affect the purposes specified in FECA.9
Following medical evaluation of a claim, if the hearing loss is determined to be nonratable for
schedule award purposes, other benefits such as hearing aids may still be payable if any
employment-related hearing loss exists.10
ANALYSIS -- ISSUE 2
The Board finds that the medical evidence of record supports that appellant is not entitled
to hearing aids. There is no medical evidence from a physician recommending that he be
provided with hearing aids or any other medical treatment for his employment-related hearing
7

See L.F., Docket No. 10-2115 (issued June 3, 2011).

8

See Joshua A. Holmes, 42 ECAB 231, 236 (1990).

9

5 U.S.C. § 8103.

10

See F.D., Docket No. 10-1175 (issued January 4, 2011); Federal (FECA) Procedure Manual, Part 3 -- Medical,
Medical Services and Supplies, Chapter 3.4003(d)(2) (October 1990).

4

loss. Both Dr. Conrad and OWCP’s medical adviser found that appellant did not require hearing
aids. The Board finds that under these circumstances OWCP did not abuse its discretion under
section 8103(a) by denying authorization for hearing aids.11
CONCLUSION
The Board finds that appellant has not established a ratable loss of hearing such that he is
entitled to a schedule award. The Board also finds that OWCP did not abuse its discretion in
denying authorization for hearing aids.
ORDER
IT IS HEREBY ORDERED THAT the September 9, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: April 20, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

11

This does not preclude appellant from seeking authorization for hearing aids or other appropriate medical
treatment. See Federal (FECA) Procedure Manual, supra note 10; Raymond VanNett, 44 ECAB 480 (1993).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.R., Appellant
and
DEPARTMENT OF STATE, U.S. EMBASSY,
Managua, Nicaragua, Employer
__________________________________________
Appearances:
Appellant, pro se
Office of Solicitor, for the Director

)
)
)
)
)
)
)
)

Docket No. 20-0697
Issued: November 9, 2020

Case Submitted on the Record

ORDER REMANDING CASE
Before:
ALEC J. KOROMILAS, Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

On February 7, 2020 appellant filed a timely appeal from a January 9, 2020 decision of the
Office of Workers’ Compensation Programs (OWCP). The Clerk of the Appellate Boards
docketed the appeal as No. 20-0697.1
On November 1, 2019 appellant, then a 51-year-old human resources assistant, filed an
occupational disease claim (Form CA-2) alleging that she developed pain in her palm and
numbness in the right hand up to the right shoulder due to factors of her federal employment,
including typing on her desktop computer. She noted that she first became aware of her conditions
on February 8, 2017 and first realized that they were caused or aggravated by her federal
employment on March 14, 2019. Appellant did not stop work.

1

The Board notes that, following the January 9, 2020 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

In a development letter dated November 22, 2019, OWCP informed appellant of the
deficiencies in her claim. It advised her of the type of medical evidence necessary to establish her
claim and afforded her 30 days to respond.
In an October 15, 2019 statement, appellant asserted that she was providing medical
documentation and a brief historical work-related background in support of her claim.
On January 8, 2020 OWCP received medical evidence, including a July 25, 2019 clinical
summary from Dr. Hector Mejia Meza, an orthopedic surgeon. Dr. Meza noted that appellant
presented with complaints of acute cervical pain and paresthesia of the bilateral upper extremity.
He recounted her history of injury, treatment and objective findings. Dr. Meza indicated that
appellant was diagnosed with bilateral carpal tunnel syndrome following a March 23, 2019
electromyography (EMG) study. He opined that her condition was related to repetitive actions
performed with her hands, including typing and fine motor movements.
Appellant also submitted results from a March 6, 2019 EMG study performed by
Dr. Gerardo Reyes, a neurology specialist, which demonstrated mild-to-moderate neuropathy and
moderate-to-severe sensitive mononeuropathy of the right ulnar nerve, July 3, 2019 blood test
results ordered by Dr. Meza, and a July 11, 2019 x-ray of the hands revealing signs of developing
arthritis.2 In addition, OWCP received medical reports dated March 23, 2019 from Dr. Reyes and
June 20, 2019 from Dr. Meza.3
By decision dated January 9, 2020, OWCP denied appellant’s occupational disease claim,
finding that she had not provided any medical evidence in support of her claim. As such, it
concluded that the requirements had not been met to establish an injury as defined by FECA.
The Board has duly considered the matter and finds that the case is not in posture for a
decision. In the case of William A. Couch, the Board held that, when adjudicating a claim, OWCP
is obligated to consider all evidence properly submitted by a claimant and received by OWCP
before the final decision is issued.4
In its January 9, 2020 decision, OWCP found that appellant had not submitted any medical
evidence in support of her claim. However, as detailed above, appellant submitted medical reports
dated from March 6 to July 25, 2019, which OWCP received on January 8, 2020. OWCP thus
failed to follow its procedures by failing to discuss all of the relevant evidence of record.5 It is
crucial that OWCP address all relevant evidence received prior to the issuance of its final decision,

2

The July 11, 2019 x-ray report was translated from Spanish.

3

The medical reports were in Spanish.

4

William A. Couch, 41 ECAB 548, 553 (1990).

5

OWCP’s procedures provide that all evidence submitted should be reviewed and discussed in the decision.
Evidence received following development that lacks probative value should also be acknowledged. Whenever
possible, the evidence should be referenced by author and date. Federal (FECA) Procedure Manual, Part 2 -- Claims,
Initial Denials, Chapter 2.1401.5(b)(2) (November 2012).

2

as the Board’s decisions are final with regard to the subject matter appealed.6 Furthermore, while
some of the medical evidence submitted was in Spanish, the Board has long held that OWCP
should attempt to secure an accurate translation of the evidence if there is a need for clarification.7
The Board, therefore, finds that this case is not in posture as OWCP did not address the abovenoted evidence in its January 9, 2020 decision and failed to obtain an accurate translation of the
available evidence of record. On remand, following such further development as deemed
necessary, OWCP shall review all evidence of record and shall issue a de novo decision.
IT IS HEREBY ORDERED THAT the January 9, 2020 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: November 9, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

6

See C.S., Docket No. 18-1760 (issued November 25, 2019); Yvette N. Davis, 55 ECAB 475 (2004).

7
See S.D. Docket No. 11-2004 (issued July 25, 2012); H.S., Docket No. 11-1170 (issued December 14, 2011);
Patrick T. Wall, Docket No. 01-1802 (issued March 26, 2002); Armando Colon, 41 ECAB 563 (1990).

3


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
G.C., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Cleveland, OH,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 16-1430
Issued: April 6, 2017

Case Submitted on the Record

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

JURISDICTION
On June 29, 2016 appellant, through counsel, filed a timely appeal from a May 20, 2016
merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for
legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R.
§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An
attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject
to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2
3

5 U.S.C. § 8101 et seq.

The record provided to the Board includes medical evidence received after OWCP issued its May 20, 2016
decision. The Board’s jurisdiction is limited to reviewing the evidence that was before OWCP at the time of its final
decision. Therefore, the additional evidence cannot be considered by the Board. 20 C.F.R. § 510.2(c)(1).

ISSUE
The issue is whether appellant has met her burden of proof to establish that she has
greater than one percent impairment of the right upper extremity, for which she previously
received a schedule award.
FACTUAL HISTORY
Appellant, a 52-year-old former mail handler, has an accepted occupational disease claim
(Form CA-2) for lumbar radiculopathy, cervical sprain, and right medial and lateral
epicondylitis, which arose on or about October 30, 2004.4
In May 2007, appellant filed a claim for a schedule award (Form CA-7). However, she
did not submit any medical evidence of permanent impairment in support of his claim.
Consequently, OWCP denied the schedule award claim by decision dated February 5, 2009.
In February 2012 appellant filed another claim for a schedule award (Form CA-7).
In a report dated February 17, 2012, Dr. William N. Grant, a Board-certified orthopedic
surgeon, found that appellant had 17 percent permanent impairment of the right upper extremity
under the sixth edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (2009) (A.M.A., Guides). His right upper extremity rating included 13
percent brachial plexus impairment, and two percent each for lateral and medial epicondylitis.5
On April 19, 2012 OWCP’s district medical adviser (DMA) opined that the report from
Dr. Grant contained inaccurate impairment ratings and that appellant should be referred to
another physician for an impairment rating examination.6
In a report dated June 14, 2012, Dr. Manhal A. Ghanma, a Board-certified orthopedic
surgeon and OWCP-referral physician, opined that appellant’s accepted work injuries had
completely resolved and that there were no objective findings to support residual permanent
impairment from these injuries.
OWCP found that there was a conflict in medical opinion evidence between Dr. Grant
and Dr. Ghanma regarding the extent of appellant’s permanent impairment. In April 2014 it
referred appellant to Dr. Sheldon Kaffen, a Board-certified orthopedic surgeon, for an impartial
medical examination and an opinion regarding permanent impairment.
In a May 21, 2014 report, Dr. Kaffen determined that appellant’s accepted work injuries
had resolved and that there was no objective evidence of permanent impairment of her
extremities.

4

Appellant voluntarily retired effective March 30, 2007.

5

A.M.A., Guides 399, 434 (6th ed. 2009) Table 15-4 and Table 15-20. Dr. Grant also found 14 percent bilateral
lower extremity impairment under Proposed Table 2, The Guides Newsletter, Rating Spinal Nerve Extremity
Impairment Using the Sixth Edition (July/August 2009).
6

The DMA mistakenly believed that Dr. Grant rated appellant’s left upper extremity instead of her right.

2

By decision dated July 22, 2014, OWCP denied appellant’s schedule award claim finding
that she had failed to establish permanent impairment to a scheduled member due to her accepted
work injuries.
Appellant requested a review of the written record by an OWCP hearing representative.
In a January 2, 2015 decision, the hearing representative determined that the referral to
Dr. Kaffen was improper because he had previously been associated with appellant’s claim.7
Accordingly, she remanded the case to OWCP for referral to a new impartial medical examiner.
In a report dated April 10, 2015, Dr. James H. Rutherford, a Board-certified orthopedic
surgeon and impartial medical examiner, determined that appellant had one percent permanent
impairment of her right upper extremity under the sixth edition of the A.M.A., Guides. He found
that, under the diagnosis-based impairment (DBI) rating method found on Table 15-4, Elbow
Regional Grid, A.M.A., Guides 399 (6th ed. 2009), appellant’s right upper extremity condition of
lateral epicondylitis fell under the class 1 default value of one percent. Dr. Rutherford
determined that appellant had a grade modifier for functional history of 1 and grade modifier for
physical examination of 1, and that a grade modifier for clinical studies was not applicable. He
indicated that application of the net adjustment formula meant that there was no movement from
the default value of one percent and he concluded that appellant had a total right upper extremity
permanent impairment of one percent.8
On June 21, 2015 Dr. Daniel D. Zimmerman, an internist and the DMA, indicated that he
agreed with Dr. Rutherford’s assessment that appellant had one percent permanent impairment of
her right upper extremity under the sixth edition of the A.M.A., Guides.9
In a decision dated August 7, 2015, OWCP granted appellant a schedule award for one
percent permanent impairment of her right upper extremity. The award ran for 3.12 weeks and
was based on the opinion of Dr. Rutherford, the impartial medical examiner.
Appellant requested a telephone hearing with an OWCP hearing representative and a
hearing was held on April 13, 2016. By decision dated May 20, 2016, the hearing representative
affirmed OWCP’s August 7, 2015 decision finding one percent permanent impairment of
appellant’s right upper extremity.
LEGAL PRECEDENT
Section 8149 of FECA delegates to the Secretary of Labor the authority to prescribe rules
and regulations for the administration and enforcement of FECA. The Secretary of Labor has
vested the authority to implement the FECA program with the Director of OWCP.10 Section
7

Dr. Kaffen had previously examined appellant in January 2007.

8

OWCP requested that Dr. Rutherford provide a supplemental report regarding permanent impairment of the
lower extremities and Dr. Rutherford responded by submitting a May 22, 2015 report. The record does not contain a
final decision of OWCP regarding permanent impairment of appellant’s lower extremities. As such, the matter of
lower extremity impairment is not currently before the Board. See 20 C.F.R. § 501.2(c).
9

Dr. Zimmerman is a Board-certified orthopedic surgeon.

10

See 20 C.F.R. §§ 1.1-1.4.

3

8107 of FECA sets forth the number of weeks of compensation to be paid for the permanent loss
of use of specified members, functions, and organs of the body.11 FECA, however, does not
specify the manner by which the percentage loss of a member, function, or organ shall be
determined. To ensure consistent results and equal justice under the law, good administrative
practice requires the use of uniform standards applicable to all claimants. Through its
implementing regulations, OWCP adopted the A.M.A., Guides as the appropriate standard for
evaluating schedule losses.12
The sixth edition of the A.M.A., Guides was first printed in 2008. Within months of the
initial printing, the A.M.A. issued a 52-page document entitled “Clarifications and Corrections,
Sixth Edition, Guides to the Evaluation of Permanent Impairment.” The document included
various changes to the original text, intended to serve as an erratum/supplement to the first
printing of the A.M.A., Guides. In April 2009, these changes were formally incorporated into
the second printing of the sixth edition.
As of May 1, 2009, schedule awards are determined in accordance with the sixth edition
of the A.M.A., Guides (2009).13 The Board has approved OWCP’s use of the A.M.A., Guides
for the purpose of determining the percentage loss of use of a member of the body for schedule
award purposes.14
ANALYSIS
The issue is whether appellant has met her burden of proof to establish that she has
greater than one percent permanent impairment of the right upper extremity, for which she
previously received a schedule award. The Board finds that this case is not in posture for
decision.
The Board has found that OWCP has inconsistently applied Chapter 15 of the sixth
edition of the A.M.A., Guides when granting schedule awards for upper extremity claims. No
consistent interpretation has been followed regarding the proper use of the DBI or the range of
motion (ROM) methodologies when assessing the extent of permanent impairment for schedule
award purposes.15 The purpose of the use of uniform standards is to ensure consistent results and
to ensure equal justice under the law to all claimants.16 In T.H., the Board concluded that OWCP
physicians are at odds over the proper methodology for rating upper extremity impairment,
having observed attending physicians, evaluating physicians, second opinion physicians,
impartial medical examiners, and district medical advisers use both DBI and ROM
11

For a complete loss of use of an arm, an employee shall receive 312 weeks’ compensation. 5 U.S.C.
§ 8107(c)(1).
12

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

13

See Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 1
(January 2010); Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability
Claims, Chapter 2.808.5a (February 2013).
14

Isidoro Rivera, 12 ECAB 348 (1961).

15

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

16

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

4

methodologies interchangeably without any consistent basis. Furthermore, the Board has
observed that physicians interchangeably cite to language in the first printing or the second
printing when justifying use of either ROM or DBI methodologies. Because OWCP’s own
physicians are inconsistent in the application of the A.M.A., Guides, the Board finds that OWCP
can no longer ensure consistent results and equal justice under the law for all claimants.17
In light of the conflicting interpretation by OWCP of the sixth edition with respect to
upper extremity impairment ratings, it is incumbent upon OWCP, through its implementing
regulations and/or internal procedures, to establish a consistent method for rating upper
extremity impairment. In order to ensure consistent results and equal justice under the law for
cases involving upper extremity impairment, the Board will set aside the May 20, 2016 decision.
Following OWCP’s development of a consistent method for calculating permanent impairment
for upper extremities to be applied uniformly, and such other development as may be deemed
necessary, OWCP shall issue a de novo decision on appellant’s claim for an upper extremity
schedule award.
CONCLUSION
The Board finds this case not in posture for decision.
ORDER
IT IS HEREBY ORDERED THAT the May 20, 2016 decision of the Office of
Workers’ Compensation Programs is set aside, and the case is remanded for further action
consistent with this decision.
Issued: April 6, 2017
Washington, DC

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

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

Valerie D. Evans-Harrell, Alternate Judge
Employees’ Compensation Appeals Board
17

Supra note 15.

5