United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
S.E., Appellant
and
DEPARTMENT OF DEFENSE, DEFENSE
COMMISSARY AGENCY, LITTLE CREEK
COMMISSARY, Norfolk, VA, Employer
__________________________________________

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

Docket No. 09-1706
Issued: June 1, 2010

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 15, 2009 appellant filed a timely appeal of the Office of Workers’ Compensation
Programs’ August 8, 2008 merit decision, denying her claim for disability and April 6, 2009
nonmerit decision, denying her request for reconsideration. Pursuant to 20 C.F.R. §§ 501.2(c)
and 501.3, the Board has jurisdiction over the merits of this case.
ISSUES
The issues are: (1) whether appellant was disabled from June 30, 2004 to April 12, 2008
due to her employment injury; and (2) whether the Office properly denied her request for further
merit review of her claim pursuant to 5 U.S.C. § 8128(a).
On appeal, appellant contends that she is entitled to wage-loss compensation.
FACTUAL HISTORY
On November 22, 2005 appellant, then a 43-year-old sales store checker, filed a claim for
an occupational disease alleging that on March 4, 2004 she became aware of her bilateral heel

spurs. On June 4, 2004 she realized that her condition was caused by standing and walking in
her federal employment. By letter dated March 10, 2006, the Office accepted appellant’s claim
for right plantar fasciitis. Appellant filed claims for wage-loss compensation (Form CA-7) for
the period June 30, 2004 to April 12, 2008.
By letters dated June 6, 2006 to April 15, 2008, the Office advised appellant about the
deficiencies in her claims. It requested that she provide additional factual and medical evidence
to support her disability for the claimed period.
Appellant submitted medical evidence from Dr. Peter R. Grinkewitz, an attending Boardcertified orthopedic surgeon. In disability certificates dated October 14, 2004 to October 11,
2007 and a September 2, 2004 note, Dr. Grinkewitz advised that she could return to work on
intermittent dates during the period August 22, 2004 through October 22, 2007 with restrictions.
On September 2, 2004 he advised that appellant would be out of work for three weeks due to
surgery scheduled on September 17, 2004 to treat her plantar fasciitis. In a July 26, 2005
surgical report, Dr. Grinkewitz performed a radical resection of the heel spur and plantar fascial
scarring of the right heel. In progress notes, he addressed treatment of appellant’s chronic
tendinitis, calcaneal spur, traumatic arthritis and radiculopathy of the right heel and foot post
surgery. On August 22, 2006 Dr. Grinkewitz released her to return to work. In an April 3, 2007
prescription note, he listed appellant’s physical restrictions. In a July 5, 2007 report, he advised
that she sustained chronic pain syndrome of the right heel and found that she could work four to
six hours a day with restrictions.
In letters dated June 14, 2006 to March 13, 2008, the employing establishment addressed
requests for medical documentation and removal of appellant from her employment.1
A November 6, 2007 prescription note signed by someone on the staff of Dr. A.J. Barot,
a Board-certified neurologist, stated that appellant was evaluated on that date. In a January 18,
2008 disability certificate, Dr. Barot advised that she could return to work on January 19, 2008
without restrictions.
A July 6, 2005 x-ray report of Dr. Michael Ho, a Board-certified radiologist, revealed
spurring of the calcaneus and flat longitudinal arch with weight bearing of the right foot. In a
July 6, 2005 report, Dr. Chan V. Nguyen, a Board-certified radiologist, stated that a magnetic
resonance imaging (MRI) scan of appellant’s right foot showed an unremarkable Achilles tendon
and minimal fluid signal in the retrocalcaneal bursa. Otherwise, there was no surrounding
inflammation. Dr. Nguyen stated that the MRI scan also showed a torn anterior talofibular
ligament. A July 26, 2005 x-ray report from Dr. Kip K. Park, a Board-certified radiologist,
stated that appellant was status post right heel spur removal. Appellant had soft tissue swelling
and air within the surgical site that was likely due to immediate postoperative state. In a July 27,
2005 surgical pathological report, Dr. Olubunmi T. Lampejo, a pathologist, stated that there were
no significant gross abnormalities in the bone and soft tissue related to her right heel resection.

1

In a March 13, 2008 decision, the employing establishment terminated appellant’s employment effective
March 29, 2008 based on her inability to perform the essential duties of her sales store checker position. Appellant
also submitted physical therapy reports for chronic bilateral plantar fasciitis.

2

By decision dated August 8, 2008, the Office denied appellant’s claim for compensation
for disability from June 30, 2004 to April 12, 2008. The evidence was found to be insufficient to
establish that she was totally disabled during this period due to her accepted condition.
On February 2, 2009 appellant requested reconsideration and submitted letters dated
February 1 to June 19, 2008 from the Office of Personnel Management (OPM), which addressed
her application for a disability retirement.2 In a March 20, 2008 letter, she addressed her
removal from the employing establishment. On March 28, 2008 the Office addressed the
medical evidence appellant needed to submit to establish entitlement to compensation. On
September 1 and October 6, 2006 it provided her with a benefits statement. On October 4, 2006
the Office provided appellant with an election of benefits form. In letters dated January 3, 2006
to June 16, 2008, the employing establishment addressed the processing of her compensation
claims and her disability retirement application.
By decision dated April 6, 2009, the Office denied appellant’s request for reconsideration
on the grounds that the evidence submitted was irrelevant and insufficient to warrant further
merit review of her claim.
LEGAL PRECEDENT -- ISSUE 1
Under the Federal Employees’ Compensation Act, the term disability is defined as an
inability, due to an employment injury, to earn the wages the employee was receiving at the time
of the injury, i.e., an impairment resulting in loss of wage-earning capacity.3 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.4 Whether a particular injury causes an
employee to become disabled for work and the duration of that disability are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.5 The
fact that a condition manifests itself during a period of employment does not raise an inference
that there is a causal relationship between the two.6 The Board will not require the Office 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 her disability and entitlement to compensation.7
ANALYSIS -- ISSUE 1
The Office accepted that appellant sustained right plantar fasciitis in the performance of
duty. Appellant claimed compensation for total disability from June 30, 2004 to April 12, 2008,
2

In a June 10, 2008 letter, OPM approved appellant’s application for disability retirement.

3

See Prince E. Wallace, 52 ECAB 357 (2001).

4

Dennis J. Balogh, 52 ECAB 232 (2001).

5

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

6

Manuel Garcia, 37 ECAB 767 (1986).

7

Amelia S. Jefferson, 57 ECAB 183 (2005); Fereidoon Kharabi, 52 ECAB 291 (2001).

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due to the accepted condition. On August 8, 2008 the Office found that she was not disabled for
work during the claimed period. Appellant has the burden to establish by the weight of the
substantial, reliable and probative evidence, a causal relationship between her claimed disability
and the accepted condition.8
Dr. Grinkewitz stated that appellant could return to work on intermittent dates from
August 22, 2004 to October 22, 2007 with restrictions. Although he indicated that she was
disabled for work, he did not address how her disability was due to the accepted plantar fasciitis
condition. Dr. Grinkewitz did not explain the basis for appellant’s disability commencing
June 30, 2004. As noted, it is appellant’s burden to establish her disability by the submission of
probative medical evidence. Dr. Grinkewitz’ progress notes only generally addressed the
treatment of her calcaneal spur, plantar fasciitis with scarring, chronic tendinitis, traumatic
arthritis and radiculopathy of the right heel and foot. An April 3, 2007 prescription note
provided appellant’s physical restrictions. As noted evidence does not address how her disability
for the claimed period was caused by her accepted condition. The Board finds that
Dr. Grinkewitz did not submit sufficient medical opinion to establish that appellant’s disability
for the claimed period was due to her accepted condition.
The reports from appellant’s physical therapists are of no probative medial value in
establishing her claim. A physical therapist is not a physician as defined under the Act.9 These
reports, therefore, do not constitute competent medical opinion evidence.
The November 6, 2007 prescription note from Dr. Barot’s office stated that appellant was
evaluated on that date. This evidence did not address whether she was totally disabled during the
claimed period due to the accepted employment injury. The Board finds it is insufficient to
establish appellant’s claim. On January 18, 2008 disability Dr. Barot stated that appellant could
return to work as of January 19, 2008 with no restrictions; however, he did not address whether
her disability was causally related to the accepted employment injury. The Board finds that the
evidence from Dr. Barot is insufficient to establish her claim. Similarly, the diagnostic test
reports of Dr. Ho, Dr. Nguyen, Dr. Park and Dr. Lampejo do not address the issue. The Board
finds that these reports are insufficient to establish her claim.
The Board finds that there is insufficient medical opinion to establish that appellant was
disabled from June 30, 2004 to April 12, 2008 due to residuals of her accepted right plantar
fasciitis. Appellant did not meet her burden of proof.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128 of the Act,10
the Office’s regulations provide that a claimant must: (1) show that the Office erroneously
applied or interpreted a specific point of law; (2) advance a relevant legal argument not
8

Alfredo Rodriguez, 47 ECAB 437 (1996).

9

See 5 U.S.C. § 8101(2); A.C., 60 ECAB ___ (Docket No. 08-1453, issued November 18, 2008).

10

5 U.S.C. §§ 8101-8193. Under section 8128 of the Act, the Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application. 5 U.S.C. § 8128(a).

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previously considered by the Office; or (3) constitute relevant and pertinent new evidence not
previously considered by the Office.11 To be entitled to a merit review of an Office decision
denying or terminating a benefit, a claimant also must file his or her application for review
within one year of the date of that decision.12 When a claimant fails to meet one of the above
standards, the Office will deny the application for reconsideration without reopening the case for
review of the merits.
ANALYSIS -- ISSUE 2
On February 2, 2009 appellant disagreed with the Office’s August 8, 2008 decision,
which found the evidence of record insufficient to establish that she was totally disabled from
June 30, 2004 to April 12, 2008 due to her employment-related right plantar fasciitis. The
relevant issue is whether her disability during the claimed period was causally related to the
accepted employment injury. The Board notes that this issue is medical in nature.
Appellant submitted correspondence from OPM, the Office and the employing
establishment regarding her disability retirement and her claims for compensation. This
evidence is not relevant to the issue in this case, which is medical in nature. It does not address
whether appellant was disabled from June 30, 2004 to April 12, 2008 due to her employmentrelated right plantar fasciitis. The Board has held that the submission of evidence which does not
address the particular issue involved does not constitute a basis for reopening the claim.13 The
resubmission of correspondence with the employing establishment and the Office does not
require reopening her claim for further merit review as it was previously considered by the
Office. The Board has held that evidence that repeats or duplicates that already of record has no
evidentiary value and does not constitute a basis for further merit review.14
The Board finds that appellant did not submit arguments or evidence showing that the
Office erroneously applied or interpreted a specific point of law; advancing a relevant legal
argument not previously considered; or constituting relevant and pertinent new evidence not
previously considered by the Office. Appellant did not meet any of the necessary regulatory
requirements and the Office properly declined to reopen her claim for further merit review.15
CONCLUSION
The Board finds that appellant has failed to establish that she was totally disabled from
June 30, 2004 to April 12, 2008 due to her employment injury. The Board further finds that the
11

20 C.F.R. § 10.606(b)(1)-(2).

12

Id. at § 10.607(a).

13

D. Wayne Avila, 57 ECAB 642 (2006).

14

See L.H., 59 ECAB __ (Docket No. 07-1191, issued December 10, 2007); James E. Norris, 52 ECAB
93 (2000).
15

M.E., 58 ECAB 694 (2007) (when an application for reconsideration does not meet at least one of the three
requirements enumerated under section 10.606(b)(2), the Office will deny the application for reconsideration
without reopening the case for a review on the merits).

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Office properly denied her request for a merit review of her claim pursuant to 5 U.S.C.
§ 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the April 6, 2009 and August 8, 2008 decisions of
the Office of Workers’ Compensation Programs are affirmed.
Issued: June 1, 2010
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

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

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

Docket No. 11-1293 & 11-1825
Issued: April 9, 2012

Case Submitted on the Record

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

JURISDICTION
On May 2, 2011 appellant, through his attorney, filed a timely appeal from a January 11,
2011 merit decision of the Office of Workers’ Compensation Programs (OWCP) which denied
his recurrence of disability claim. On August 2, 2011 he appealed a June 28, 2011 decision
affirming a schedule award for facial disfigurement. 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 whether: (1) appellant met his burden of proof to establish that he
sustained a recurrence of disability commencing June 7, 2004 causally related to his accepted
condition; and (2) appellant is entitled to more than $50.00 for permanent facial disfigurement.

1

5 U.S.C. §§ 8101-8193.

FACTUAL HISTORY
This is the second appeal in the present case. In a March 9, 2011 decision, the Board
affirmed a February 16, 2010 OWCP decision, finding that appellant failed to meet his burden of
proof to establish that he sustained certain cervical disc conditions causally related to his
September 4, 2004 work injury.2 The facts and the circumstances of the case up to that point are
set forth in the Board’s prior decision and incorporated herein by reference.3
Appellant came under the treatment of Dr. Robert J. Takacs, a Board-certified orthopedic
surgeon, from June 5 to August 18, 2003. Dr. Takacs noted that appellant had right arm, leg and
neck problems since the September 4, 2001 work injury. He diagnosed herniated disc at C4-5
and recommended an anterior cervical discectomy and fusion, which OWCP authorized and was
performed on June 10, 2003. In a July 24, 2003 report, Dr. Takacs noted that appellant was
making good progress after surgery. He diagnosed healed spinal fusion of the neck and released
appellant to full-time light-duty work on August 2, 2003 with lifting limited to 10 pounds and no
overhead work. On August 13, 2003 Dr. Takacs clarified that appellant was limited to working
seated at a table with the work in front of him with no excessive flexing or extension of his neck.
On August 2, 2003 the employing establishment offered appellant a light-duty position as
a mail handler, eight hours per day, from 7:00 a.m. to 3:30 p.m. effective that date. The duties
included sorting letters, flats on a belt subject to restrictions of no lifting over 10 pounds and no
overhead work. Appellant accepted the position.
In reports dated October 13 and 27, 2003, Dr. Takacs noted that x-rays revealed
appellant’s cervical spine fusion at C4-5 was solidly in place both superiorly and inferiorly. In
an October 27, 2003 work capacity evaluation, he noted that appellant could work full time with
permanent restrictions of no frequent over the shoulder work, lifting from the floor limited to 35
pounds, from waist 20 pounds and overhead lifting up to 20 pounds. On November 28, 2003
Dr. Takacs noted that appellant had minimal pain after surgery, full range of neck motion and
normal neurological examination. He advised that, based on a functional capacity evaluation,
appellant had permanent restrictions on lifting more than 35 pounds from the floor, lifting more
than 25 pounds from the waist, lifting more than 20 pounds overhead and no frequent overhead
work. Dr. Takacs noted that appellant fell within a light to medium physical demand level of
work and had reached maximum medical improvement. On December 8, 2003 he noted that
appellant was limited to an eight-hour day.
Appellant sought treatment from Dr. William O. Reed, Jr., a Board-certified orthopedic
surgeon. In reports dated May 11 and June 3, 2004, Dr. Reed treated appellant for right arm pain
postsurgery. Appellant had normal sensory and motor function in the upper extremities and
intact reflexes. Dr. Reed noted an MRI scan of the cervical spine did not reveal abnormalities
which would cause arm pain. He diagnosed persistent radiculopathy of the right arm following
2

On September 4, 2001 appellant, a 43-year-old mail handler, was injured while pushing and pulling all purpose
containers. OWCP accepted cervical strain and a herniated disc at C4-5. Appellant also has a claim accepted for
left carpal tunnel syndrome in file number xxxxxx882.
3

Docket No. 10-1101 (issued March 9, 2011).

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surgery and continued his work restrictions.
On July 19, 2004 Dr. Reed noted an
electromyogram (EMG) revealed chronic radiculopathy on the left. He believed this to be a
transient condition that could be due to surgery. Dr. Reed stated that the right arm pain was
improving, “not terribly bothersome” and that continued improvement was expected.
On September 15, 2005 appellant telephoned OWCP and noted that he currently received
an annuity from the Office of Personnel Management (OPM) but advised that he wanted to apply
for wage-loss compensation. He asserted that the employing establishment was unable to
accommodate him. OWCP asked appellant to file a claim for a recurrence of disability.
Appellant reiterated his assertions in a January 4, 2006 telephone call. In a January 8, 2006
e-mail, he asked for compensation for scarring.
On January 27, 2006 appellant submitted a CA-7, claim for compensation for the period
starting June 2004. The employing establishment noted that appellant stopped work and
accepted a disability retirement effective on June 7, 2004.
In a February 6, 2006 letter, OWCP advised appellant of the factual and medical evidence
needed to establish his recurrence claim. In a February 7, 2006 letter, appellant stated that he
was never offered a light-duty job. On February 11, 2006 he indicated that he was not working a
light-duty job and he stopped work because of a worsening condition; rather, he stopped because
he was unable to perform his mail handler duties. Appellant noted that his disability did not
allow him to perform his mail handler duties and he was not offered other suitable work.
In a decision dated April 19, 2006, OWCP denied appellant’s claim for wage loss finding
that the evidence did not establish that his disability for work was caused by his accepted injury.
On April 19, 2006 appellant requested an oral hearing which was held on August 9, 2006.
He submitted reports from Dr. Curtis D. Johnson, a Board-certified orthopedic surgeon, dated
August 11 to October 17, 2006. Appellant was treated for neck and shoulder pain. Dr. Johnson
diagnosed status post C4-5 cervical fusion, multilevel degenerative disc disease of the cervical
spine, myofascial pain and failed neck syndrome and recommended physical therapy and trigger
point injections. A September 25, 2006 cervical spine MRI scan revealed a solid interbody
fusion at C4-5, mild degenerative central canal stenosis at C3-4, C4-5, mild degenerative
bilateral foraminal stenosis at C3-4 with no disc protrusion or extrusion.
In an October 20, 2006 decision, the hearing representative affirmed the April 19, 2006
decision. He found that the evidence failed to establish appellant’s claim for recurrence of
disability beginning June 2004. The hearing representative did not establish a change in the
nature of the light-duty position or a change in the nature and extent of appellant’s work-related
condition.
On June 7, 2010 appellant filed a Form CA-7, claim for compensation, for the period
June 20, 2004 to June 7, 2010 for “loss of job.” In a June 23, 2010 letter, OWCP requested
additional information. It noted that appellant’s disability retirement was effective on
June 7, 2004. At that time, appellant had permanent restrictions from Dr. Takacs and had
accepted a light-duty job in February 2004. OWCP requested that appellant address why he
stopped work on June 7, 2004.
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The employing establishment noted that appellant accepted disability retirement on
June 7, 2004 and, at that time, he was working under Dr. Takacs’ October 27, 2003 restrictions.
Appellant accepted a modified assignment within these restrictions. OWCP requested that the
employing establishment confirm if the limited-duty job would remain available. In a June 23,
2010 e-mail, the employer advised that limited-duty work within appellant’s work restrictions
would have remained available to appellant had he not retired on June 7, 2004.
In a July 4, 2010 letter, appellant noted that he turned down three or four modified
assignments because they were not within his permanent restrictions. He contended that the
employing establishment was not complying with his doctor’s orders.
In a decision dated July 28, 2010, OWCP denied appellant’s claim for wage-loss
compensation as of June 7, 2004. It noted that when he accepted disability retirement, he was
working limited duty within his work restrictions which would have remained available had he
not voluntarily retired. OWCP found no evidence to establish that appellant was unable to
perform the physical requirements of the modified mail handler position.
On September 13, 2010 appellant filed a claim for a schedule award for facial
disfigurement. OWCP notified him that he might be eligible for a schedule award of up to
$3,500.00 for facial disfigurement. It provided appellant with the appropriate application and a
medical form for his physician to complete. Appellant requested an oral hearing which was held
on November 3, 2010.
On October 5, 2010 appellant submitted a disfigurement award application, including
photographs of his face. He stated that his disfigurement was due to a surgical procedure which
left a 2¼ inches long and ½ inch wide scar on his neck and noted the scar area was darker than
his normal skin tone. Appellant noted that the surgery resulted in his retirement from the
employing establishment. When applying for jobs, he was asked about his scar and was asked to
undergo a physical examination which he failed. On May 5, 2010 Dr. Leslie Wiscombe, an
osteopath, stated that appellant’s neck disfigurement would not improve. She stated that the scar
was 8 millimeters wide and 50 millimeters long and was dark and discolored located in the left
submandibular area. Appellant submitted three color photographs of his neck.
On October 21, 2010 OWCP forwarded appellant’s file to an OWCP medical adviser.
On November 12, 2010 the medical adviser reviewed the medical record and photographs. He
noted that, to even see the scar as a consequence of the cervical surgery, appellant has to extend
the neck at a 30 degree angle which was not the normal carrying angle of the head on the neck.
The medical adviser noted that the scar was mildly hyperpigmented but at the normal carrying
angle of the head would be hardly noticeable. He noted that to be considered for a schedule
award, the disfigurement of the head, face or neck must be of a character that was likely to
handicap appellant in seeking or maintaining employment. The medical adviser noted that
appellant’s scar would have minimal impact on obtaining or maintaining employment. He
recommended a schedule award of $50.00 for the surgical scar.

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In a November 23, 2010 decision, OWCP granted appellant a schedule award for $50.00
facial disfigurement. On November 30, 2010 appellant requested an oral hearing which was held
on April 14, 2011.4
Following the November 3, 2010 hearing on appellant’s wage-loss claim, the employer
submitted a November 30, 2010 letter that reiterated he was provided a modified job according
to his physical restrictions. It disputed appellant’s assertion that he worked at his full duties.
The employer advised that appellant was instructed by his manager not to exceed his doctor’s
restrictions. It noted that appellant’s modified job assignment would still be available had he not
retired in June 2004.
In a decision dated January 11, 2011, an OWCP hearing representative affirmed the
July 28, 2010 decision denying appellant’s claim for a recurrence of disability beginning
June 7, 2004.
In a decision dated June 28, 2011, an OWCP hearing representative affirmed the
November 23, 2010 disfigurement schedule award. The hearing representative reviewed the
photographs of the scar and found that it was not a serious disfigurement that would handicap
appellant in securing or maintaining employment.
LEGAL PRECEDENT -- ISSUE 1
When an employee, who is disabled from the job he held when injured on account of
employment-related residuals, returns to a light-duty position or the medical evidence of record
establishes that he can perform the light-duty position, the employee has the burden to establish
by the weight of the reliable, probative and substantial evidence a recurrence of total disability
and show that he cannot perform such light duty. As part of this burden, the employee must
show a change in the nature and extent of the injury-related condition or a change in the nature
and extent of the light-duty requirements.5
OWCP’s regulations define the term recurrence of disability as follows: “Recurrence of
disability means an inability to work after an employee has returned to work, caused by a
spontaneous change in a medical condition, which had resulted from a previous injury or illness
without an intervening injury or new exposure to the work environment that caused the illness.
This term also means an inability to work that takes place when a light-duty assignment made
specifically to accommodate an employee’s physical limitations due to his or her work-related
injury or illness is withdrawn or when the physical requirements of such an assignment are
altered so that they exceed his or her established physical limitations.”6
4

At the hearing, appellant’s counsel questioned whether a District Director or Assistance District Director of
OWCP properly reviewed the matter and concurred in the award. The hearing representative asserted, at the
hearing, that a District Director agreed with the award but the record contains no document from a District Director
concurring with the medical adviser’s opinion on impairment due to scarring.
5

Terry R. Hedman, 38 ECAB 222 (1986).

6

20 C.F.R. § 10.5(x); J.F., 58 ECAB 124 (2006); Elaine Sneed, 56 ECAB 373, 379 (2005); 20 C.F.R. § 10.5(x).

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Causal relationship is a medical issue and the evidence generally required to establish
causal relationship is rationalized medical opinion evidence.7
ANALYSIS -- ISSUE 1
OWCP accepted appellant’s claim for cervical strain and a herniated disc at C4-5. It
authorized an anterior cervical discectomy and fusion and left iliac crest bone excision which
was performed on June 10, 2003. Following this surgery, Dr. Takacs released appellant to fulltime limited-duty work. On October 27, 2003 he provided permanent restrictions and on
November 28 and December 8, 2003 he reiterated appellant’s restrictions. There is no
contemporaneous evidence of record indicating that the employer did not provide work in
compliance with Dr. Takacs’ restrictions.
Appellant accepted retirement disability on
June 6, 2004. On June 7, 2010 he claimed compensation for total disability beginning in
June 2004 which OWCP developed as a recurrence of disability claim. In the instant case,
appellant has not submitted sufficient evidence to support a change in the nature and extent of
the injury-related condition or a change in the nature and extent of the light-duty requirements.
Reports from Dr. Takacs predate the beginning of the claimed period of disability. His
reports, as noted, following appellant’s surgery indicated that appellant could work full time
within restrictions. Dr. Takacs’ reports most contemporaneous with the beginning of the claimed
period of disability do not offer any opinion that appellant was either totally disable or disabled
from working his light-duty job on or about June 7, 2004. Reports from Dr. Reed dated May 11
and June 3, 2004, noted treatment for right arm pain postcervical surgery and continued his work
restrictions. On July 19, 2004 Dr. Reed opined that appellant’s condition was “not terribly
bothersome” and continued improvement was expected. He provided no opinion that appellant
was either totally disabled or unable to perform his modified duties on or after June 7, 2004.
These reports are insufficient to establish that appellant had work-related disability beginning
June 7, 2004. Instead, they indicate that appellant could continue to work full time within his
restrictions.
Reports from Dr. Johnson from August 11 to October 17, 2006, noted appellant’s
treatment for neck and shoulder pain status post cervical fusion at C4-5. Dr. Johnson diagnosed
status post C4-5 cervical fusion, multilevel degenerative disc disease of the cervical spine,
myofascial pain and failed neck syndrome. However, he does not specifically address how
appellant sustained a change in the nature and extent of his injury-related condition such that he
could not perform his light-duty job on or after June 7, 2004. There is no other medical evidence
of record substantiating that appellant was totally disabled or was unable to perform his limitedduty work beginning June 7, 2004 due to his accepted conditions.
The Board also finds that there is no credible evidence which substantiates that there was
a change in the nature and extent of appellant’s light-duty requirements or that he was otherwise
required to perform duties which exceeded his medical restrictions.

7

M.D., 59 ECAB 211 (2007).

6

On his June 7, 2010 Form CA-7 appellant claimed compensation for “loss of job.” In a
July 4, 2010 letter, he noted that he turned down three or four modified assignments because they
were not within his permanent restrictions. Appellant noted that the employer did not comply
with his doctors orders. However, there is no evidence establishing that any particular duty that
he actually performed exceeded his work restrictions or the employer did not provide him with
appropriate work within his restrictions. The record reveals that appellant voluntarily accepted
disability retirement on June 7, 2004 and at the time of retirement he was working under
restrictions, as noted, from Dr. Takacs. Appellant accepted the modified assignment within
those restrictions and performed that position until the time of his retirement. On June 23 and
November 30, 2010 the employer confirmed that the limited-duty work was within his work
restrictions and would have remained available to him had he not chosen to retire on
June 7, 2004.
Appellant has not met his burden of proof in establishing that there was a change in the
nature or extent of the injury-related condition or a change in the nature and extent of the lightduty requirements that prevented him from working beginning June 7, 2004.
LEGAL PRECEDENT -- ISSUE 2
FECA provides in section 8107(c)(21) that, for serious disfigurement of the face, head or
neck of a character likely to handicap an individual in securing or maintaining employment,
proper and equitable compensation not to exceed $3,500.00 shall be awarded in addition to any
other compensation payable under this schedule.8 In a case involving facial disfigurement, the
question before the Board is whether the amount awarded by OWCP was based upon sound and
considered judgment and was proper and equitable under the circumstances as provided by
section 8107(c)(21) of FECA.9 As the only limitation on OWCP’s authority is reasonableness,
abuse of discretion is generally shown through proof of manifest error, clearly unreasonable
exercise of judgment, or actions that are contrary to both logic and probable deduction from
established facts.10 The Board will not interfere with or set aside a disfigurement determination
of OWCP unless it is clearly in error.11
OWCP’s procedures provide:
“d. OWCP Medical Evaluation. After the CE has gathered the required evidence, the
case will be referred to the [d]istrict [m]edical [a]dviser (DMA). The DMA will review
the photographs submitted along with the medical evidence of record and place a
memorandum in the file describing the disfigurement and stating whether maximum
improvement has occurred. If not, final action on the application for disfigurement will
be deferred.”
8

5 U.S.C. § 8107(c)(21).

9

Hylan Shelton, 57 ECAB (2006).

10

Daniel J. Perea, 42 ECAB 214, 221 (1990).

11

Matthew Leonka, 38 ECAB 119, 121 (1986).

7

If the DMA finds maximum improvement has occurred, the concurrence of the Assistant
District Director or the District Director must be obtained. The parties evaluating the
disfigurement will place a memorandum in the file which states their findings and decision with
supporting rationale. The case will then be returned to the claims examiner for payment of the
award or denial of the application.12
ANALYSIS -- ISSUE 2
A review of the case record shows that OWCP failed to follow its procedures. On
October 5, 2010 appellant submitted a disfigurement award application. On November 12, 2010
the medical adviser reviewed the medical record and photographs. He found that the scar was
mildly hyperpigmented but, at the normal carrying angle of the head, would be hardly noticeable.
The medical adviser opined that the scar would have minimal impact on obtaining or maintaining
employment. He recommended a schedule award of $50.00 for the surgical scar. On
November 23, 2010 OWCP granted appellant a schedule award for $50.00 facial disfigurement.
The Board notes that, after the medical adviser reviewed appellant’s claim, OWCP did not refer
the case to an Assistant District Director or the District Director for review as contemplated by
OWCP procedures.13 Rather, the determination of appellant’s disfigurement schedule award was
based solely upon the medical adviser’s review of the medical records and inspection of the
photographs. As noted, OWCP procedures provide that the concurrence of the Assistant District
Director or the District Director must be obtained. Although the hearing representative indicated
at the April 14, 2011 hearing that a District Director had concurred in the award, the record
contains no such evidence from the District Director regarding the award. Therefore, the case
will be remanded to OWCP for further development consistent with this decision to be followed
by an appropriate decision regarding appellant’s entitlement to a schedule award for
disfigurement.14
On remand OWCP should follow its procedures in evaluating appellant’s impairment for
facial disfigurement. After conducting necessary development, OWCP should issue an
appropriate merit decision.
CONCLUSION
The Board finds that appellant has not met his burden of proof in establishing that he
sustained a recurrence of disability beginning June 7, 2004. The Board finds that the case not in
posture for decision with regard to his schedule award claim for disfigurement.

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.8 (January 2010); see also id. at Part 3 -- Medical, Schedule Awards, Chapter 3.700.5 (January 2010).
13

Supra note 12.

14

See Lon E. Grinage, 57 ECAB 177 (2005) (where the Board found that OWCP did not follow its procedures
when it evaluated a claimant’s impairment due to disfigurement when it failed to refer a photograph to the medical
adviser for review and obtain the concurrence of the Assistant District Director or the District Director).

8

ORDER
IT IS HEREBY ORDERED THAT the January 11, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed. The June 28, 2011 decision is set aside and the
case remanded for further development in conformance with this decision.
Issued: April 9, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

9


United States Department of Labor
Employees’ Compensation Appeals Board
_________________________________________
)
)
)
and
)
)
DEPARTMENT OF JUSTICE, BUREAU OF
)
PRISONS, Tallahassee, FL, Employer
)
_________________________________________ )
R.G., Appellant

Appearances:
Capp P. Taylor, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 10-1881
Issued: August 1, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On July 13, 2010 appellant filed a timely appeal of a June 8, 2010 decision of the Office
of Workers’ Compensation Programs (OWCP) which denied her claim as untimely filed.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over this issue.
ISSUE
The issue is whether appellant’s claim for compensation was filed within the time
limitations set forth in 5 U.S.C. § 8122.
FACTUAL HISTORY
On October 2, 2009 appellant, then a 42-year-old associate warden, filed a traumatic
injury claim alleging that on June 21, 2006 she responded to a shooting incident. She stated that
she had post-traumatic stress disorder. Appellant did not immediately stop work after the
1

5 U.S.C. § 8101 et seq.

June 21, 2006 incident. In submitting the claim, the employing establishment noted that the
claim was submitted as a traumatic injury at the insistence of appellant’s attorney although the
“nature of the injury requires” an occupational disease claim.
In a letter dated October 26, 2009, OWCP requested additional evidence regarding the
claim. Appellant did not respond.
By decision dated November 30, 2009, OWCP denied the claim on the grounds that it
was not timely filed under 5 U.S.C. § 8122. It found that appellant should have been aware of a
relationship between her employment and the claimed condition on the date of the incident,
June 21, 2006. OWCP found that the evidence did not support a finding that her immediate
supervisor had actual knowledge within 30 days of the injury.
Appellant’s representative requested a telephonic hearing that was held on
March 18, 2010. At the hearing, he argued that appellant’s case was timely filed as it was a
traumatic injury with latent disability. Appellant’s representative asserted that the time for filing
a claim did not begin to run until appellant had a compensable disability or was aware, or should
have been aware of a relationship between the disability and employment. He argued that
appellant was not disabled until she had a wage loss in 2009. The representative also asserted
that appellant was not aware that she had post-traumatic stress disorder, depression with anxiety
and anxiety disorder until her recent diagnosis. Appellant explained that on June 21, 2006 there
was a shooting at the employing establishment in which an agent and a correctional officer were
killed. She noted seeing both dead bodies after the incident. Appellant stated that, while the
situation was extremely disturbing, she served as the chief executive officer for the on scene
incident and worked 12-hour shifts for two and a half weeks afterwards. She stated that, after the
incident, she remanded as the only associate warden and “worked in the environment another
whole year after the incident” until she was transferred. Appellant noted that she lived on the
“reservation” and “never had any closure” as she was “in a constant reminder of what
happened.” She noted seeing a doctor and asked for something to help her cope as she had
trouble sleeping as was agitated and stressed due to the incident. Appellant stated that she had
no prior anxiety problems. She noted having the same problems over and over and “every time I
closed my eyes I’d wake up and even in my dreams I could see those staff lying on the ground
dead.” Appellant testified that she attempted to transfer to another facility immediately after the
shooting but was advised that it was not an immediate option. She eventually transferred in
May 2007 but continued having headaches, anxiety and stress. Appellant stated that, in the
summer of 2009, she developed an upper respiratory infection and her physician, Dr. Matthew
Soff, a Board-certified internist, placed her off work for six weeks and recommended a
psychiatrist. She testified that she went to a physician on June 23, 2006, and was prescribed
Ambien and Xanax after the shooting, as she could not sleep. Appellant testified that the 2009
diagnosis of anxiety and stress was associated with the 2006 shooting.
In a February 15, 2010 letter, appellant described the shooting incident that occurred on
June 21, 2006. She reiterated that, when she arrived on the scene, she saw two dead bodies and a
wounded lieutenant. Appellant explained that the situation was disturbing and upsetting and that
she “felt this was a normal reaction that would pass over time. However, I began suffering
headaches and my anxiety and stress seemed to be increasing, I did not associate this with any
2

particular thing.” She also noted that, while she eventually received a transfer in May 2007, her
headaches, anxiety and stress levels did not decrease as she thought they would. Appellant
alleged that she did not associate her condition to the June 2006 incident until September 2009,
when she met with her physicians. She advised that at the “end of the summer in 2009, in
September, I realized that my mental condition was related to the incident in June 2006.”
Appellant noted that she last worked on July 16, 2009.
In an April 8, 2010 letter, appellant’s representative reiterated his arguments that the
claim was timely filed. He submitted additional evidence that included nurses’ notes which
stated that appellant received treatment for a migraine, low blood pressure and anxiety on
May 14, 2007.
In a report dated April 1, 2010, Dr. Daniel Bober, a Board-certified psychiatrist and
neurologist, diagnosed chronic post-traumatic stress disorder, unspecified depressive disorder,
and generalized anxiety disorder. He explained that appellant was involved in a work-related
shooting incident and did not receive adequate support and counseling after the event. Dr. Bober
opined that the shooting episode at work in 2006 caused her diagnoses. He further noted that it
would not be unusual to suffer a traumatic event but not recognize the manifestations for “quite
some time.” Dr. Bober explained that, if the condition was not treated, it was possible for an
individual not to associate the source or causation until they received professional help, as was
the case in appellant’s situation. He noted that appellant last worked on July 16, 2009 and
advised that appellant could not presently work but that “she could return to work in a
nonstressful environment, outside of the federal prison system, within a few months.
By decision dated June 8, 2010, OWCP’s hearing representative affirmed OWCP’s
November 30, 2009 decision.
LEGAL PRECEDENT
Section 8122(a) of FECA provides that an original claim for compensation for disability
or death must be filed within three years after the injury or death.2 Section 8122(b) provides
that, in latent disability cases the time limitation does not begin to run until the claimant is aware
or by the exercise of reasonable diligence should have been aware, of the causal relationship
between the employment and the compensable disability.3 Even if a claim is not timely filed
within the three-year period of limitation, it would still be regarded as timely under section
8122(a)(1) if the immediate superior had actual knowledge of the injury or death within 30 days
or written notice of the injury as specified in section 8119 was provided within 30 days.4
In the case of occupational disease, the time for filing a claim begins to run when the
employee first becomes aware or reasonably should have been aware, of a possible relationship
between his condition and his employment. When an employee becomes aware or reasonably
2

5 U.S.C. § 8122(a).

3

Id. at § 8122(b).

4

Id. at § 8122(a)(1); see also Larry Young, 52 ECAB 284 (2001).

3

should have been aware that he has a condition which has been adversely affected by factors of
his federal employment, such awareness is competent to start the limitation period even though
he does not know the precise nature of the impairment or whether the ultimate result of such
affect would be temporary or permanent.5 Where the employee continues in the same
employment after he or she reasonably should have been aware that he or she has a condition
which has been adversely affected by factors of the federal employment awareness, the time
limitation begins to run on the date of the last exposure to the implicated factors.6 The
requirement to file a claim within three years is the claimant’s burden and not that of the
employing establishment.7
ANALYSIS
It is well established that a claim for compensation need not be filed on any particular
form. A claim may be made by filing any paper containing words which reasonably may be
construed or accepted as a claim.8 Although appellant filed a claim for a traumatic injury,
OWCP should have developed her claim as an occupational disease claim.9 The Board also
notes that the employing establishment suggested that the claim was an occupational disease
claim.
Appellant, an associate warden, alleged that she sustained post-traumatic stress disorder
as a result of a shooting incident which occurred on June 21, 2006. She did not file the claim
form until October 2, 2009, as she was not aware that her condition stemmed from the June 21,
2006 shooting incident. Appellant asserts that she was not aware that her condition was work
related until late summer 2009 and that she did not have disability until 2009.10 OWCP found
that the time for filing a claim began to run on the date of the June 21, 2006 incident. It also
found that her immediate supervisor did not have actual knowledge within 30 days of the injury.
OWCP concluded that the claim was not timely filed within the three-year period of limitations.
However, OWCP should have treated the claim as an occupational disease claim
involving latent disability. The term latent disability refers to an occupational disease or
condition produced by repeated stress or exposure to conditions of the work environment which
produce cumulative or increasingly deleterious effect upon the employee, of which she may not

5

Larry E. Young, supra note 4.

6

Id.

7

Debra Young Bruce, 52 ECAB 315 (2001).

8

D.D., 57 ECAB 734, 738 (2006).

9

See 20 C.F.R. § 10.5(q) (defines occupational disease or illness as a condition produced by the work
environment over a period longer than a single workday or shift); 20 C.F.R. § 10.5(ee) (defines traumatic injury as a
condition caused by a specific event or incident, or series of events or incidents, within a single workday or shift).
10

See 5 U.S.C. § 8122(b) (provides that the time for filing in latent disability cases does not begin to run until the
claimant is aware or by the exercise of reasonable diligence should have been aware, of the causal relationship
between the employment and the compensable disability).

4

be immediately aware.11 Appellant explained that as a result of the June 21, 2006 incident, the
sight of the dead bodies was extremely disturbing. She attributed her condition to not only the
shooting incident, but in dealing with the aftermath of the shooting, dealing with staff, acting as
the chief investigator on the scene and working 12-hour shifts for weeks after the incident.
Appellant stated that she remained in charge of the prison, lived at the prison and was unable to
transfer for almost a year, until May 2007. The record supports that her work duties required her
to continue working in the environment in which the shooting incident occurred and that her
duties required her to deal with the investigation of the shooting in this environment until her
May 2007 transfer. Thus, the repeated exposure continued until May 2007.
Appellant also testified that she went to a doctor and requested medication to help her be
calm and cope because she had trouble sleeping as she was agitated and feeling stressed.
Medical records show that she was treated for anxiety on May 14, 2007. The record reflects that,
on May 14, 2007, appellant was treated for anxiety and became aware of her condition and its
relationship to her employment.
The Board finds that the time for filing appellant’s claim for compensation began to run
in May 2007 when she had her last exposure to the work environment that caused the claimed
condition and when she also received medical treatment that made her aware that her anxiety
condition was due to her employment. As appellant filed her claim on October 2, 2009, her
claim was timely filed within the three-year period. The case will be remanded for OWCP to
further develop her timely occupational disease claim. Following this and any further
development deemed necessary, OWCP shall issue an appropriate merit decision.
CONCLUSION
The Board finds that appellant’s claim was timely filed with the applicable time
limitation provisions of FECA.

11

Larry J. Thomas, 44 ECAB 291 (1992). See also Mary Crawford, Docket No. 05-826 (issued July 1, 2005).

5

ORDER
IT IS HEREBY ORDERED THAT the June 8, 2010 decision of the Office of Workers’
Compensation Programs is set aside and the case remanded for further action consistent with this
decision.
Issued: August 1, 2011
Washington, DC

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

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.L., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DELIVERY CENTER, Little Rock, AR,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
James Stanley, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-391
Issued: August 13, 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 December 6, 2011 appellant, through her attorney, filed a timely appeal from a
September 29, 2011 merit decision of the Office of Workers’ Compensation Programs (OWCP)
and a November 14, 2011 nonmerit decision denying her request for reconsideration. 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 sustained an employment-related permanent
impairment warranting a schedule award; and (2) whether OWCP properly denied her request for
merit review under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has been before the Board before. The facts as set forth in the Board’s prior
decision are hereby incorporated into this decision by reference.2 The relevant facts are set forth
below.
On March 18, 2005 appellant, then a 24-year-old mail handler, filed an occupational
disease claim alleging that she suffered from a pain in her lower back, left hip and left leg due to
her federal duties which involved bending, stooping, pushing and pulling. OWCP accepted her
claim for lumbar sprain. On March 5, 2007 appellant returned to her regular work duties but on
April 17, 2008 she stopped working citing the inability to perform these duties.
On March 16, 2011 appellant filed a claim for a schedule award. By letter dated
March 18, 2011, OWCP requested that she submit medical information in support of her claim
for a schedule award. Specifically it asked for a report that established the date of maximum
medical improvement, a detailed description of the permanent impairment and a final estimate of
the permanent impairment pursuant to the American Medical Association, Guides to the
Evaluation of Permanent Impairment (6th ed. 2009). Appellant did not submit the requested
medical report.
On May 3, 2011 OWCP asked its medical adviser if appellant’s accepted condition
resulted in a permanent impairment to a scheduled member. The medical adviser indicated that
he did not know if she had a scheduled impairment, noting that most of the relevant records were
more than five years old and that he could not project an impairment to the lower extremity
based on records that were so out of date.
By letter dated May 23, 2011, OWCP referred appellant to Dr. Kevin J. Collins, a Boardcertified physiatrist, for a second opinion. In a June 16, 2011 report, Dr. Collins assessed
appellant with lumbosacral sprain. He noted that she had palpable pain over her S1 joint but
other than that, there was no evidence of radicular findings. Dr. Collins applied the A.M.A.,
Guides and found that, pursuant to Table 17-4, he would rate appellant’s impairment based on
class 0. Applying the grade modifiers, he would allow one due to her functional history, zero for
clinical examination and zero for clinical studies. However, Dr. Collins noted that appellant
does have chronic pain which has been a long-term issue for her, and that the A.M.A., Guides
allow for a maximum of three percent impairment rating for nonspecific pain that cannot be
attributed to her conditions addressed in the A.M.A., Guides. He opined that he would allow a
two percent impairment rating for pain.
In a September 21, 2011 report, OWCP’s medical adviser stated that, although
Dr. Collins suggested a whole body rating based on chronic pain, this rating is not acceptable as
chronic pain is specifically reported to be nonradicular. He stated that the only painful area
demonstrated in the physical examination was over a sacroiliac joint which would not cause a
radicular finding, either motor or sensory, affecting a lower extremity. The medical adviser
indicated that, based on Dr. Collins’ report, there was zero percent impairment to the right and
2

Docket No. 11-1059 (issued March 27, 2012) (the Board affirmed OWCP’s decision denying appellant’s claim
for a recurrence of disability commencing on or about April 17, 2008).

2

left lower extremities, and that, accordingly, the schedule awards were zero percent for right
lower extremity and zero percent for left lower extremity.
By decision dated September 29, 2011, OWCP denied appellant’s claim for a schedule
award.
On October 6, 2011 appellant, through counsel, requested reconsideration. In support of
his request, appellant resubmitted the June 16, 2011 report by Dr. Collins and OWCP’s medical
adviser’s September 21, 2011 report.
By decision dated November 14, 2011, OWCP denied appellant’s request for
reconsideration without conducting a merit review.
LEGAL PRECEDENT -- ISSUE 1
The schedule award provision of FECA3 and its implementing regulations,4 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law for all claimants, OWCP has adopted the A.M.A.,
Guides as the uniform standard applicable to all claimants.5 For decisions after February 1,
2001, the fifth edition of the A.M.A., Guides is used to calculate schedule awards.6 For
decisions issued beginning May 1, 2009, the sixth edition of the A.M.A., Guides, will be used.7
No schedule award is payable for a member, function or organ of the body not specified
in FECA or in the implementing regulations.8 FECA and the implementing regulations do not
provide for a schedule award for the permanent loss of use of the back or the body as a whole.9
The Board notes that section 8101(19) specifically excludes the back from the definition of
organ.10 However, a claimant may be entitled to a schedule award for permanent impairment to
an upper or lower extremity even though the cause of the impairment originated in the neck,
shoulders or spine.11

3

5 U.S.C. § 8107.

4

20 C.F.R. § 10.404.

5

Id. at § 10.404(a).

6

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700, Exhibit 4 (June 2003).

7

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

8

M.E., Docket No. 11-2088 (issued May 7, 2012).

9

See Jay K. Tomokiyo 51 ECAB 361 (2000).

10

5 U.S.C. § 8101(19).

11

Thomas J. Engelhart, 50 ECAB 319 (1999).

3

ANALYSIS -- ISSUE 1
Appellant filed a claim for a schedule award. OWCP accepted her claim for lumbar
sprain. Appellant may only be granted a schedule award for impairment to the lower extremities
if such impairment is established as being caused by her accepted lumbar condition.12
Appellant has failed to submit any evidence by a treating physician finding impairment to
the lower extremities related to the accepted lumbar sprain. The second opinion physician,
Dr. Collins, indicated a two percent impairment rating for pain due to her lumbosacral sprain.
However, he did not relate this pain to any specific condition or to any particular location. The
medical adviser stated that the pain rated by Dr. Collins was nonradicular. He noted that the
only painful area demonstrated by Dr. Collins in the physical examination was over a sacroiliac
joint which would not cause a radicular finding, either motor or sensory, affecting a lower
extremity. Accordingly, the medical adviser found Dr. Collins’ report to be insufficient to
support any impairment of appellant’s lower extremities. The Board finds that his opinion
constitutes the weight of the medical evidence of record on the issue of permanent impairment.
As there is no medical evidence supporting a ratable impairment of a scheduled body
member causally related to the accepted condition, appellant did not meet her burden of proof to
establish entitlement to a schedule award.
Appellant may request a schedule award or increased 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
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,13
OWCP’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.14 To be entitled to a merit review
of an OWCP decision denying or terminating a benefit, a claimant also must file his or her
application for review within one year of the date of that decision.15 When a claimant fails to
meet one of the above standards, OWCP will deny the application for reconsideration without
reopening the case for review on the merits.16

12

M.E., supra note 8.

13

5 U.S.C. §§ 8101-8193. Under section 8128 of FECA, “[t]he Secretary of Labor may review an award for or
against payment of compensation at any time on her own motion or on application.” 5 U.S.C. § 8128(a).
14

20 C.F.R. § 10.606(b)(2).

15

Id. at § 10.607(a).

16

Id. at § 10.608(b).

4

ANALYSIS -- ISSUE 2
In requesting reconsideration, appellant did not argue that OWCP erroneously interpreted
a specific point of law nor did she advance a relevant legal argument not previously considered.
She did not submit any pertinent new and relevant medical evidence with her reconsideration
request. The only evidence appellant submitted on reconsideration was duplicates of the prior
report by Dr. Collins and the medical adviser. The Board has found that the submission of
evidence which repeats or duplicates evidence already in the case record does not constitute a
basis for reopening a case.17 Accordingly, the Board finds that OWCP properly declined to
reopen appellant’s claim for consideration of the merits.
CONCLUSION
The Board finds that appellant did not establish that she sustained an employment-related
permanent impairment warranting a schedule award. The Board further finds that OWCP
properly denied appellant’s request for merit review under 5 U.S.C. § 8128(a).
ORDER
IT IS HEREBY ORDERED THAT the November 14 and September 29, 2011
decisions of the Office of Workers’ Compensation Programs are affirmed.
Issued: August 13, 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

17

J.B., Docket No. 12-238 (issued May 23, 2012).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.L., Appellant
and
DEPARTMENT OF ENERGY, HUMAN
RESOURCES MANAGEMENT,
Washington, DC, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 18-0582
Issued: October 5, 2018

Case Submitted on the Record

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

JURISDICTION
On January 25, 2018 appellant, through counsel, filed a timely appeal from a November 30,
2017 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 to consider the merits of the case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether appellant has met her burden of proof to establish a cervical or lumbar
injury causally related to the accepted July 6, 2015 employment incident.
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as presented
in the Board’s prior decision are incorporated herein by reference. The relevant facts are as
follows.
On July 15, 2015 appellant, then a 52-year-old budget analyst, filed a traumatic injury
claim (Form CA-1) alleging that she sustained an injury in the performance of duty at 4:00 p.m.
on July 6, 2015. She reported that she was in the employing establishment parking garage and, as
she opened her car door, her foot slid on water or oil, which caused her to jerk and fall into her
car. Appellant indicated that the claimed injury resulted in low back and neck sprains.
Beginning on June 22, 2015 appellant’s attending physician, Dr. Eric G. Dawson, an
orthopedic surgeon, described the employment incident, noting that appellant had a slip and fall at
the workplace. More specifically he recounted that, “[Appellant] actually slipped with a slight
twist and grabbed the door handle of the car with the left hand. She had a sharp jolting motion
with this.”
By development letter dated July 28, 2015, OWCP requested that appellant submit
additional evidence to support the claim for compensation. The evidence was to include a medical
report noting the mechanism of injury, results on examination, diagnostic studies, and an opinion
supported by medical explanation as to how the claimed incident caused an injury. OWCP
afforded appellant 30 days to submit this additional evidence.
On August 18, 2015 Dr. Dawson again noted that appellant’s injury was a slip and fall with
a twisting at the moment of impact.
By decision dated August 27, 2015, OWCP denied appellant’s claim. It accepted that the
July 6, 2015 employment incident occurred as alleged. However, OWCP found that the medical
evidence of record was insufficient to establish causal relationship between the accepted
employment incident and a diagnosed condition.
On September 2, 2015 appellant requested a review of the written record by an OWCP
hearing representative. Dr. Dawson completed a report on September 1, 2015 and again noted
appellant’s slip and fall with a slight twist.
By decision dated February 19, 2016, OWCP’s hearing representative affirmed the
August 27, 2015 OWCP decision, finding that the medical evidence of record failed to include

3

Docket No. 16-1808 (issued February 21, 2017).

2

sufficient medical rationale to establish appellant’s claim for cervicodorsal myofasciitis, lumbar
sprain, mild C7 impingement, and rotator cuff impingement.
Appellant, through counsel, requested reconsideration on April 11, 2016. Counsel
submitted a March 3, 2016 report from Dr. Dawson wherein he contended that his previous reports
clearly explained the mechanism of injury in this case. Dr. Dawson wrote that “with [appellant]
grabbing the door handle and then slipping, there was not only traction or pull, but also a twist.
This is enough to stretch the nerve fibers, particularly termed C7, and present to clinical hands-on
examination. Later, this was supported by [electromyogram (EMG)] and [nerve conduction
velocity (NCV)] studies, so this is definitely the case. That is the mechanism.” Dr. Dawson further
asserted that “a review of the literature definitely will demonstrate and support this point.” He
contended that he did not base his opinion on appellant being asymptomatic before the injury.
Dr. Dawson concluded that there was no doubt regarding his opinion in this case.
By decision dated July 8, 2016, OWCP reviewed the merits of the claim, but denied
modification of its prior decision, finding that the medical evidence of record did not provide
sufficient rationale to establish causal relationship. Appellant subsequently appealed to the Board.
In its February 21, 2017 decision,4 the Board found that Dr. Dawson’s reports supported
causal relationship between the July 6, 2015 employment incident and appellant’s cervical
condition, and that they were sufficient to warrant further development.
On remand from the Board, on April 5, 2017, OWCP referred appellant, a statement of
accepted facts (SOAF),5 and a list of questions for a second opinion evaluation to Dr. D. Burke
Haskins, a Board-certified orthopedic surgeon. Dr. Haskins completed a report on May 2, 2017
and noting reviewing the SOAF. He further reported appellant’s description of her employment
incident, noting that she related falling on a wet surface as she was opening her car door.
Dr. Haskins noted that she did not strike anything, but felt as if she twisted. He performed a
physical examination and described appellant’s report of pain in the posterior cervical region as
well as intermittent sensation of numbness involving the entire left side. Dr. Haskins noted
moderate lumbar lordosis, and full range of motion (ROM) of the cervical spine. He reported that
appellant’s reflexes were brisk and sensation intact in upper and lower extremities. Dr. Haskins
noted that her lumbar ROM was limited, but heal and toe standing, gait, and muscle testing was
normal. He opined that appellant’s cervical and lumbar complaints were preexisting and that there
was no objective evidence or clinical studies to establish a change in her underlying conditions
following the July 6, 2015 employment incident. Dr. Haskins diagnosed degenerative disease of
the cervical and lumbar spine. However, he opined that these conditions preexisted the June 6,
2015 employment incident and were unrelated to appellant’s employment. Dr. Haskins found that
she could return to full-duty work for eight hours a day.

4

Id.

5
The SOAF described appellant’s employment incident as listed on her Form CA-1, without mentioning any
twisting motions.

3

By decision dated June 5, 2017, OWCP denied appellant’s traumatic injury claim, finding
that the weight of the medical evidence established that her current condition was not related to
the accepted June 6, 2015 employment incident.
On June 14, 2017, appellant, through counsel, requested an oral hearing before an OWCP
hearing representative and provided an additional report from Dr. Dawson dated July 6, 2017.
Dr. Dawson disagreed with Dr. Haskins’ findings and conclusions. He again described appellant’s
mechanism of injury as a slip with a twist grabbing the door handle with the left hand. Dr. Dawson
opined that she had clinical examinations consistent with spasm to the musculature and sensory
and motor nerve impingement at C7 on the left. He noted appellant’s positive findings on EMG
for C7 nerve impingement. Dr. Dawson found that she had continued symptoms due to her June 6,
2015 employment incident. He also noted appellant’s historical strain/sprain of the lower back,
found that this condition had resolved, and reported that she had no symptoms prior to the June 6,
2015 employment incident. Dr. Dawson challenged Dr. Haskins’ failure to review her EMG and
NCV studies and disagreed that the entirety of her cervical and lumbar conditions were preexisting.
He opined that, while appellant likely had some moderate degenerative changes to her spine prior
to June 6, 2015, she “had the mechanism of injury (please read etiology and causality) that is likely
to injure soft tissues including to the neck and the back.” On September 28, 2017 Dr. Dawson
reported findings on physical examination including definite C7 partial soft touch, stamina
weakness to the ipsilateral extension. He found that appellant had pathognomic of nerve
impingement including fasciculations with extension over the C7 dermatome and partially over
the C6 ipsilateral extremity loss of extension. Dr. Dawson opined that she had documented motor
and nerve impingement.
On October 25, 2017 counsel and appellant appeared before an OWCP hearing
representative for the oral hearing. OWCP’s hearing representative read her statement from her
Form CA-1 and asked that she affirm her initial statement that she approached her car, proceeded
to open the door to get in and her foot slid either on water or oil which caused her to jerk and fall
into her car was correct. Appellant responded “yes.”
By decision dated November 30, 2017, OWCP’s hearing representative found that
Dr. Dawson’s opinion was not based on a proper factual background as he found that appellant
had twisted in connection with her June 6, 2015 employment incident. He further noted that the
second opinion physician, Dr. Haskins, also relied on her statement that she twisted during the
June 6, 2015 employment incident. OWCP’s hearing representative found that appellant’s
testimony at the oral hearing negated her previous descriptions to physicians that the June 6, 2015
employment incident involved twisting. He accorded the weight of the medical evidence to
Dr. Haskins.
LEGAL PRECEDENT
An employee seeking benefits under FECA6 has the burden of proof to establish the
essential elements of his or her claim, including the fact that the individual is an employee of the
United States within the meaning of FECA, that the claim was filed within the applicable time
6

Supra note 1.

4

limitation, that an injury was sustained in the performance of duty as alleged, and that any disability
or specific condition for which compensation is claimed is causally related to the employment
injury. These are the essential elements of each and every compensation claim regardless of
whether the claim is predicated upon a traumatic injury or an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. An injury does not have to be confirmed by eyewitnesses
in order to establish the fact that an employee sustained an injury in the performance of duty, but
the employee’s statements must be consistent with the surrounding facts and circumstances and
his or her subsequent course of action. An employee has not met his or her burden of proof to
establish the occurrence of an injury when there are such inconsistencies in the evidence as to cast
serious doubt upon the validity of the claim. Such circumstances as late notification of injury, lack
of confirmation of injury, continuing to work without apparent difficulty following the alleged
injury, and failure to obtain medical treatment may, if otherwise unexplained, cast serious doubt
on an employee’s statements in determining whether a prima facie case has been established.
However, an employee’s statement alleging that an injury occurred at a given time and in a given
manner is of great probative value and will stand unless refuted by strong or persuasive evidence.8
Second, the employee must submit medical evidence to establish that the employment
incident caused a personal injury.9 Causal relationship is a medical issue and the medical evidence
generally required to establish causal relationship is rationalized medical opinion evidence.10 The
opinion of the physician must be based on a complete factual and medical background, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment incident
identified by the claimant.11
Section 8123(a) of FECA which provides that, if there is disagreement between the
physician making the examination for the United States and the physician of the employee, the
Secretary shall appoint a third physician (known as a referee physician or impartial medical
specialist) who shall make an examination.12 This is called a referee examination and OWCP will

7

A.D., Docket No. 17-1855 (issued February 26, 2018); Gary J. Watling, 52 ECAB 357 (2001).

8

L.F., Docket No. 17-0689 (issued May 9, 2018).

9

A.D., supra note 7; T.H., 59 ECAB 388 (2008).

10

Supra note 8.

11

A.D., supra note 7; I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

12

5 U.S.C. § 8123(a); S.T., Docket No. 08-1675 (issued May 4, 2009); M.S., 58 ECAB 328 (2007).

5

select a physician who is qualified in the appropriate specialty and who has no prior connection
with the case.13
ANALYSIS
The Board finds that this case is not in posture for decision as a conflict in medical evidence
has been created between the opinions of appellant’s attending physician and OWCP’s second
opinion physician, regarding causal relationship between appellant’s diagnosed conditions and her
accepted employment incident.
Appellant claimed that, as she opened her car on July 6, 2015, her foot slid on water or oil
which caused her to jerk and fall into her car. She provided a consistent history of this incident to
her attending physician, Dr. Dawson, and to the second opinion physician, Dr. Haskins, further
explaining to both that she felt she twisted during her slip on June 6, 2015. During the October 25,
2017 oral hearing, OWCP’s hearing representative read appellant’s description of the July 6, 2015
employment incident from her Form CA-1 and asked her to certify that this statement was correct.
Appellant answered “yes.”
In his November 30, 2017 decision, OWCP’s hearing representative found that the medical
evidence of record was not based on a proper factual background, as appellant did not initially
report twisting on her claim form and affirmed during the October 25, 2017 hearing that her initial
description of the July 6, 2015 events was correct.
As noted above, to establish fact of injury the claimant must submit sufficient evidence to
establish that he or she actually experienced the employment incident at the time, place, and in the
manner alleged.14 The Board finds that appellant has established that the July 6, 2015 employment
incident occurred, as alleged. Appellant reported the twisting mechanism of the claimed July 6,
2015 employment injury in a consistent manner to both her attending physician and the second
opinion physician. Her affirmance of her initial statement during the oral hearing does not discount
her additional description of twisting while slipping that she provided to both her attending
physician and the second opinion physician. It is well established that proceedings under FECA
are not adversarial in nature.15 The nonadversarial policy of proceedings under FECA is reflected
in OWCP’s regulations at section 10.121.16 The hearing representative’s attempt to discount
appellant’s medical evidence by manipulating appellant’s description of her employment incident
does not comport with the nonadversarial policy of FECA proceedings. The Board finds that there
are no inconsistencies in the evidence which would cast serious doubt upon the validity of
appellant’s account of the July 6, 2015 work incident, and her account is not refuted by strong or
persuasive evidence.17 Consequentially, the Board finds that the reports of Dr. Dawson and
13

20 C.F.R. § 10.321; R.C., 58 ECAB 238 (2006).

14

Supra note 8; Julie B. Hawkins, 38 ECAB 393 (1987).

15

See R.A., Docket No. 14-1918 (issued March 3, 2015).

16

20 C.F.R. § 10.121.

17

Id.

6

Dr. Haskins are based on accurate histories of injury which include twisting as part of the slipping
event on July 6, 2015.
The Board previously found that Dr. Dawson’s reports were sufficient to require further
development of the medical evidence. In accordance with the Board’s instructions, on remand
OWCP undertook additional development of the medical evidence and referred appellant for a
second opinion evaluation with Dr. Haskins. Dr. Haskins found that her July 6, 2015 employment
incident had not resulted in any medical condition and that her diagnosed condition of degenerative
disease of the cervical and lumbar spine preexisted the June 6, 2015 employment incident and were
unrelated to her employment. Dr. Dawson submitted additional reports dated July 6 and
September 28, 2017 disagreeing with Dr. Haskins’ findings and conclusions and providing
objective findings on physical examination.
The Board finds that there remains a conflict of medical opinion between Dr. Dawson,
appellant’s attending physician, and Dr. Haskins, an OWCP second opinion physician, on whether
appellant’s diagnosed cervical and lumbar conditions were caused or aggravated by her accepted
July 6, 2015 employment incident. On remand, OWCP shall refer her to an appropriate Boardcertified physician for an impartial medical examination to resolve the conflict.18 After this and
such other development as OWCP deems necessary, OWCP shall issue a de novo decision.
CONCLUSION
The Board finds that this case is not in posture for decision.

18

J.M., Docket No. 17-0079 (issued January 25, 2018).

7

ORDER
IT IS HEREBY ORDERED THAT the November 30, 2017 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this opinion of the Board.
Issued: October 5, 2018
Washington, DC

Patricia H. Fitzgerald, Deputy 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

8


United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
P.T., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Omaha, NE, Employer
_________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-667
Issued: August 1, 2013

Case submitted on the record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On January 30, 2013 appellant filed a timely appeal of a November 27, 2012 merit
decision of the Office of Workers’ Compensation Programs’ (OWCP) which affirmed an
August 10, 2012 schedule award decision. 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
appellant’s claim for a schedule award.
ISSUE
The issue is whether appellant sustained more than a four percent permanent impairment
of his right arm.
FACTUAL HISTORY
This case has previously been before the Board.2 In a January 23, 2013 decision, the
Board found that appellant did not meet his burden of proof to establish a recurrence of disability
from October 21 through November 1, 2011 causally related to his February 1, 2011
1

5 U.S.C. § 8101 et seq.

2

Docket No. 12-1439 (issued June 23, 2013).

employment injury. The facts and history contained in the prior appeal are incorporated by
reference.
OWCP accepted appellant’s claim for right rotator cuff syndrome and shoulder allied
disorder and surgical repair. On August 26, 2011 Dr. Michael J. Morrison, a Board-certified
orthopedic surgeon and treating physician, performed right shoulder arthroscopy with
acromioplasty; and rotator cuff repair, right shoulder (mini-deltoid splitting). Following surgery,
appellant underwent physical therapy and returned to limited-duty work on November 4, 2011.
His work restrictions included: no reaching, lifting or carrying at right shoulder level or
overhead.
Dr. Morrison returned appellant to regular duty with no restrictions on
February 6, 2012.
On April 18, 2012 appellant filed a claim for a schedule award.
In a May 14, 2012 report, Dr. Morrison reviewed appellant’s history and treatment. He
noted that appellant healed from surgery, underwent physical therapy and was advised on
February 6, 2012 that he had reached maximum medical improvement. Dr. Morrison utilized the
American Medical Association, Guides to the Evaluation of Permanent Impairment, (6th ed.
2008) (A.M.A., Guides) and referred to the Shoulder Regional Grid for upper extremity
impairments, Table 15-5.3 He selected a class 1 for a rotator cuff injury, full thickness tear, and
advised that appellant had some residual weakness, some limited internal rotation but full
abduction and flexion. Based upon these factors and the fact that he underwent acromioplasty at
the time of his surgery, appellant had seven percent impairment to the right upper extremity.
In a report dated July 5, 2012, an OWCP medical adviser noted appellant’s history of
injury and referred to the A.M.A., Guides. He reviewed Dr. Morrison’s reports and selected
February 6, 2012 as the date of maximum medical improvement as Dr. Morrison advised that
appellant was able to work without restrictions. He noted that Dr. Morrison referred to the
Shoulder Regional Grid for rating upper extremity impairments, Table 15-5, the selection of a
class 1 rotator cuff injury, full thickness rotator tear and advised that this category varied from
three to seven percent. The default C value was five percent impairment. OWCP’s medical
adviser explained that Dr. Morrison selected seven percent, the E rating from class 1 for a rotator
cuff injury with a full thickness tear for residual loss and functional with normal motion, but did
not consider the grade modifier tables in arriving at his rating. The medical adviser referred to
Table 15-7 for functional history adjustment, noted the grade modifier was zero, as appellant had
not reported pain or symptoms that impacted activities.4 OWCP’s medical adviser referred to
Table 15-8 for physical examination and determined that the grade modifier would be a one for
some limited internal rotation and residual weakness.5 He referred to Table 15-9 for clinical
studies and advised that it could not be used, as the clinical study was the basis for choosing a
diagnosis from the shoulder regional grid. After applying the net adjustment formula, he arrived
at minus one which reduced the default C value of five percent impairment, one place to the left
to total four percent impairment of the right arm.

3

A.M.A., Guides 403.

4

Id. at 406.

5

Id. at 408.

2

On August 10, 2012 OWCP granted appellant a schedule award for four percent
impairment of the right upper extremity. The award covered a period of 12.48 weeks of
compensation from February 6 to May 3, 2012.
On August 31, 2012 appellant requested a review of the written record. He argued that
his physician’s report supported seven percent impairment. Appellant indicated that he
continued to have range of motion issues and his shoulder popped.
By decision dated November 27, 2012, OWCP’s hearing representative affirmed the
August 10, 2012 decision.
LEGAL PRECEDENT
A schedule award can be paid only for a condition related to an employment injury. The
claimant has the burden of proving that the condition for which a schedule award is sought is
causally related to his or her employment.6
Section 8107 of FECA sets forth the number of weeks of compensation to be paid for the
permanent loss of use of specified members, functions and organs of the body.7 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 for all claimants under
the law, good administrative practice requires the use of uniform standards applicable to all
claimants.8 The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating schedule losses.9 Effective May 1, 2009, schedule awards
are determined in accordance with the sixth edition of the A.M.A., Guides.10
In addressing upper extremity impairments, the sixth edition requires identifying the
impairment class for the diagnosed condition (CDX), which is then adjusted by grade modifiers
based on Functional History (GMFH), Physical Examination (GMPE) and Clinical Studies
(GMCS).11 The net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).12
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to OWCP’s medical adviser for an opinion concerning the nature and

6

Veronica Williams, 56 ECAB 367 (2005).

7

5 U.S.C. § 8107.

8

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

9

20 C.F.R. § 10.404.

10

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule
Awards, Chapter 3.700.2 and Exhibit 1 (January 2010); J.B., Docket No. 09-2191 (issued May 14, 2010).
11

A.M.A., Guides at 494-531; see J.B., (Docket No. 09-2191, issued May 14, 2010).

12

Federal (FECA) Procedure Manual, Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).

3

percentage of impairment in accordance with the A.M.A., Guides, with OWCP medical adviser
providing rationale for the percentage of impairment specified.13
ANALYSIS
OWCP accepted the claim for right rotator cuff syndrome and shoulder allied disorder
and surgical repair. Appellant underwent right shoulder arthroscopy with acromioplasty and
rotator cuff repair, right shoulder (mini-deltoid splitting) on August 26, 2011.
On April 18, 2012 appellant requested a schedule award and submitted the May 14, 2012
report of Dr. Morrison, who referred to the Shoulder Regional Grid for upper extremity
impairments, Table 15-5.14 He selected class 1 for a rotator cuff injury, full thickness tear.
However, his report was not complete. While he opined that appellant was eligible for seven
percent impairment to the right arm, he did not fully explain how he arrived at the seven percent
rating. The Board notes that the grade C default impairment for this condition is five percent.
As noted, once the impairment class has been identified for the diagnosed condition, it is then
adjusted by grade modifiers based on functional history, physical examination and clinical
studies.15 Board precedent is well settled that when an attending physician’s report provides an
estimate of impairment, but does not adequately explain how the A.M.A., Guides, were applied.
OWCP may rely on the medical adviser or consultant where he or she has properly applied the
A.M.A., Guides.16
OWCP’s medical adviser concurred with Dr. Morrison’s selection of the Shoulder
Regional Grid for upper extremity impairments in Table 15-5.17 He explained that appellant
qualified for class 1 for a rotator cuff injury, full thickness rotator tear, which allowed a rating
from three to seven percent. OWCP’s medical adviser noted that Dr. Morrison did not address
the grade modifier tables in arriving at his seven percent rating, which was the maximum E
rating from class 1 for a rotator cuff injury with a full thickness tear with residual loss and
functional with normal motion. He applied the applicable grade modifiers finding that, in Table
15-7 for functional history adjustment, the grade modifier was zero, as appellant had not reported
pain or symptoms that impacted activities.18 He referred to Table 15-8 for physical examination
and determined that the grade modifier was one for some limited internal rotation and some
residual weakness.19 The medical adviser referred to Table 15-9 for clinical studies and
explained that it did not apply as a clinical study was the basis for choosing a diagnosis from the
shoulder regional grid.20 He utilized the net adjustment formula: (GMFH-CDX) + (GMPE13

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6(f) (February 2013).
14

Supra note 3.

15

See supra note 12.

16

J.Q., 59 ECAB 366 (2008); Laura Heyen, 57 ECAB 435 (2006).

17

Supra note 3.

18

Id. at 406.

19

Id. at 408.

20

See id. at 407 (if a finding is used for placement of a diagnosis within a specific class in a database interface
grid, that same finding cannot also be used as a grade modifier).

4

CDX) + (GMCS-CDX).21 The medical adviser applied the applicable grade modifiers of zero
for functional history and one for physical examination to the class 1 diagnosis. This yielded
minus one: (0-1) + (1-1). With a net adjustment of minus one, he moved that rating one place to
the left from the default grade C (five percent impairment), to grade B (four percent impairment).
The Board finds that the rating of OWCP’s medical adviser conforms to the A.M.A., Guides. As
the report of Dr. Morrison did not fully address how the grade modifiers were applied, his rating
of impairment is of reduced probative value.
On appeal, appellant asserts that his physician rated seven percent impairment. As noted,
the report from his physician did not fully comport with the A.M.A., Guides.
Appellant may request a 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.
CONCLUSION
The Board finds that appellant has no more than four percent impairment of his right arm.
ORDER
IT IS HEREBY ORDERED THAT the November 27, 2012 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: August 1, 2013
Washington, DC

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

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

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

21

A.M.A., Guides 405-12.

5