United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.F., Appellant
and
DEPARTMENT OF THE ARMY, ABERDEEN
PROVING GROUND, Aberdeen, MD, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Michael D. Overman, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 17-1075
Issued: January 8, 2018

Case Submitted on the Record

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

JURISDICTION
On December 30, 2016 appellant, through counsel, filed a timely appeal from a
September 20, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP).
Pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant met his burden of proof to establish a traumatic injury
causally related to his accepted employment duties on February 9, 2015.
1

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

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On April 6, 2015 appellant, then a 50-year-old electronics engineer, filed a traumatic
injury claim (Form CA-1) alleging that on February 9, 2015 he sustained “multiple knee
meniscal tears” due to walking up facility steps and working on platforms without hand rails a
few feet off the ground. He stopped work on February 23, 2015 and returned to work on
March 10, 2015.
In support of his claim appellant submitted a March 10, 2015 letter from Dr. Douglas
Palma, a treating Board-certified orthopedic surgeon, diagnosing left leg joint pain and knee joint
effusion. Dr. Palma provided work restrictions limiting appellant to a sedentary/desk position.
The date-of-injury symptoms were noted as uncertain.
By correspondence dated April 15, 2015, OWCP informed appellant that the evidence of
record was insufficient to establish his claim. Specifically, it noted that the evidence of record
was insufficient to substantiate the factual portion of his claim and requested he respond to the
questions in an attached development questionnaire. OWCP also found the medical evidence
appellant submitted failed to contain a diagnosis. It advised appellant regarding the medical and
factual evidence required to establish his claim and afforded him 30 days to provide this
information.
In response to OWCP’s request for additional information, appellant submitted medical
evidence which included October 16, 2014 and February 26, 2015 hospital operative reports;
medical reports from 2010, 2013, and 2014 from Dr. Michael J. Pushkarewicz, a treating Boardcertified orthopedic surgeon; and diagnostic test results.
In an October 28, 2014 report, Dr. Palma noted appellant had a history of osteoarthritis
and a right knee arthroscopy. Diagnoses included left knee degenerative joint disease, left leg
joint pain, left knee tear/sprain, and left knee joint effusion. A physical examination revealed a
mild antalgic gait, mild incisional tenderness, and mild joint effusion. Appellant stated that his
knee symptoms were aggravated by his daily activities, kneeling, bending, and ascending and
descending stairs.
Dr. Palma, in reports dated February 10 and March 10, 2015, provided work restrictions
and reported left knee medial joint line effusion and tenderness. Histories of right knee
arthroscopy and prior knee injuries were given. In both reports, Dr. Palma wrote that appellant
was seen for complaints of left knee pain and noted that he had left knee surgery on
October 16, 2014. Appellant related that the knee pain had begun approximately three weeks
prior and that he was on his feet all day. He was limited to sedentary work and provided work
restrictions.
In an April 7, 2015 note, Dr. Palma wrote that appellant was currently being treated for a
left meniscal tear and that the onset of pain occurred approximately three weeks prior to a
February 10, 2014 office visit. He noted that arthroscopic surgery with meniscectomy had been
performed on February 26, 2015. Dr. Palma attributed appellant’s condition to excessive stair
climbing, which he noted was a frequent work task.

2

By decision dated May 22, 2015, OWCP denied appellant’s claim, finding that he had
failed to establish that the incident occurred as alleged. In support of its decision, it referenced
the delay in filing his claim, lack of witness statements, and lack of a statement from someone
with immediate knowledge of his injury.3
On June 12, 2015 appellant, through counsel requested an oral hearing before an OWCP
hearing representative, which was held on September 15, 2015. During the hearing appellant
testified regarding his duties, which he stated required frequent ascending and descending steps.
By decision dated November 18, 2015, an OWCP hearing representative affirmed the
denial of appellant’s claim. She found that the statements from the employing establishment
were not supportive of appellant’s testimony, but did show that appellant was required to climb
10 steps 6 times per day and that no heavy lifting was required on February 9, 2015. The hearing
representative further found that the medical evidence of record was insufficient to establish
appellant’s claim due to the lack of understanding of appellant’s job duties by his treating
physicians.
Subsequent to its decision, OWCP received additional reports from Dr. Palma dated
October 30, November 13 and December 11, 2015. It also received reports dated January 25 and
March 14 and 25, 2016 from Dr. James Rubano, a treating Board-certified orthopedic surgeon.
On October 30, 2015 Dr. Palma reported that appellant had been seen for a follow-up
visit for bilateral knee discomfort and pain. Medical and illness histories were detailed in the
report. Appellant related a worsening in his right knee and a swollen knee following a work
capacity evaluation on June 30, 2015. A physical examination revealed restricted right knee
movement due to pain, normal left knee range of motion, tenderness on palpation of the medial
joint line in both knees, and mild right knee effusion. Under impression, Dr. Palma noted left
knee effusion and pain.
In a November 13, 2015 memorandum, Dr. Frank Sparandero, an employing
establishment Board-certified internist and occupational medicine physician, noted that a work
site and work status evaluation had been conducted on November 6, 2014 to determine whether
there was a causal relationship between appellant’s work activities and his severe bilateral knee
osteoarthritis.
He reported that review of the occupational health record and other
documentation showed appellant had sustained bilateral knee work injuries. Referencing
medical literature, Dr. Sparandero discussed the impact of stair climbing, squatting, bending,
kneeling, and other repetitive movements as primary risk factors associated with knee injuries
and osteoarthritis. He opined that appellant’s bilateral knee osteoarthritis had been aggravated
by his work duties of ascending and descending stairs over the years and by his limited knee
flexion and extension. He recommended work restrictions/limitations to prevent further
aggravation.

3

On August 18, 2015 OWCP received a June18, 2015 notice of occupational disease (Form CA-2) alleging a
bilateral knee injury since February 5, 2015. Appellant had filed another Form CA-2 alleging bilateral knee injury
since August 2013 which OWCP assigned File No. xxxxxx349. Appellant’s occupational disease claims are not
presently before the Board.

3

On November 30, 2015 Dr. Todd M. Lipschultz, an examining Board-certified
orthopedic surgeon, examined appellant for his bilateral knee complaints, reviewed medical
records, and noted his work and medical histories. A physical examination of both knees
revealed changes consistent with osteoarthritis, bilateral medial joint line tenderness, mild
bilateral knee flexion contraction, and no instability. Dr. Lipschultz diagnosed bilateral knee
osteoarthritis which he attributed to multiple occupational knee injuries and he noted that he
concurred with Dr. Sparandero’s opinion.
Dr. Palma, in a December 11, 2015 report, noted appellant’s follow-up visit for his knee
condition. Appellant reported an improvement in his condition since he quit his job. Dr. Palma
reiterated appellant’s medical history from prior reports. A physical examination revealed
normal bilateral knee range of motion, tenderness on palpation of the left knee medial joint line,
and mild left knee atrophy. Diagnoses included left knee effusion and pain. Dr. Palma reported
good progression following appellant’s job change.
On December 21, 2015 and January 25, 2016 Dr. Rubano noted appellant’s bilateral knee
complaints including stiffness, pain, swelling, and giving way. He noted that the onset of the
condition occurred in November 2013 when appellant twisted his knee and suffered meniscal
tears when his boot got frozen to the floor. In February 2015 appellant reinjured his left knee
due to repetitive stair climbing. Medical and illness histories were noted and physical
examination findings detailed. Dr. Rubano diagnosed bilateral unilateral primary arthritis.
In a February 20, 2016 addendum, Dr. Lipschultz diagnosed bilateral progressive knee
degeneration, chondral injury, and meniscal tearing. He opined that appellant’s work duties
aggravated the preexisting bilateral knee condition. In support of this conclusion, Dr. Lipschultz
noted that in February 2015 appellant was required to lift heavy cases as well as ascend and
descend stairs. He opined that appellant’s knee joint effusions were the result of excessive knee
stress which had aggravated his articular cartilage disorder.
In a February 25, 2016 report, Dr. Rubano noted medical and employment injury
histories including medical evidence reviewed. Based on his review of the medical and factual
evidence, he reported that appellant appeared to have sustained a work injury to his right knee on
November 5, 2013 and to the left knee on August 26, 2014. Dr. Rubano noted that arthritic
changes were seen at the time of appellant’s arthroscopic surgeries for his right and left knees.
He further opined that the job duties, as described by Dr. Sparandero in a work site evaluation on
November 13, 2015, would have aggravated his underlying knee arthritis. Dr. Rubano noted the
work activities as including repetitive and frequent descending and ascending stairs/steps,
carrying tools while ascending and descending, stooping/bending, and twisting leg movement.
On March 25, 2016 Dr. Rubano provided a clarification by noting that appellant returned
to full-time work from February 5 to 12, 2015. He opined that appellant’s work duties as
described by Dr. Sparandero aggravated appellant’s bilateral knee conditions.
By decision dated September 20, 2016, OWCP denied modification. It found the medical
evidence of record insufficient to establish an injury causally related to appellant’s employment
duties on February 9, 2015.

4

LEGAL PRECEDENT
An employee seeking benefits under FECA4 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
limitation, that an injury was sustained while in the performance of duty as alleged, and that any
disability and/or specific condition for which compensation is claimed are causally related to the
employment injury.5 These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated on a traumatic injury or an occupational disease.6
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty it must first be determined whether a fact of injury has been established.7
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.8 Second, the
employee must submit sufficient evidence, generally only in the form of 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 Rationalized medical
opinion evidence is medical evidence which includes a physician’s rationalized opinion on
whether there is causal relationship between the employee’s diagnosed condition and the
compensable employment factors.11 The opinion of the physician must be based on a complete
factual and medical background of the employee, must be one of reasonable medical certainty,
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the employee.12
ANALYSIS
OWCP’s hearing representative found that the evidence established that on February 9,
2015 appellant’s employment duties involved walking up and down 10 stairs, 6 times a day, with
4

Supra note 2.

5

C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).

6

S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).

7

B.F., Docket No. 09-60 (issued March 17, 2009); Bonnie A. Contreras, supra note 5.

8

D.B., 58 ECAB 464 (2007); David Apgar, 57 ECAB 137 (2005).

9
C.B., Docket No. 08-1583 (issued December 9, 2008); D.G., 59 ECAB 734 (2008); Bonnie A. Contreras, supra
note 5.
10

Y.J., Docket No. 08-1167 (issued October 7, 2008); A.D., 58 ECAB 149 (2006); D’Wayne Avila, 57 ECAB
642 (2006).
11

J.J., Docket No. 09-27 (issued February 10, 2009); Michael S. Mina, 57 ECAB 379 (2006).

12

I.J., 59 ECAB 408 (2008); Victor J. Woodhams, 41 ECAB 345 (1989).

5

no heavy lifting while on the stairs. However, OWCP denied appellant’s claim as it found that
the medical evidence failed to establish that the accepted February 9, 2015 employment duties
caused or aggravated a bilateral knee condition.
The issue on appeal is whether the medical evidence appellant submitted is sufficient to
establish a traumatic injury caused or aggravated by ascending and descending 10 or less stairs 6
times on February 9, 2015. As discussed above, the medical evidence submitted must include
proper medical and factual histories and an opinion explaining the causal relationship between
the diagnosed condition and the February 9, 2015 work incident.13
The Board finds that appellant has not established a traumatic injury due to the accepted
stair climbing he performed on February 9, 2015.
The record contains multiple reports from Dr. Palma diagnosing left leg joint pain, left
knee joint effusion, left knee degenerative joint disease, left meniscal tear, left knee tear/sprain,
and noted an uncertain date of injury. He provided reports dated April 28, 2014 and October 30
and December 11, 2015, diagnosing left knee conditions. However, Dr. Palma offered no
opinion as the cause of the diagnosed conditions. The Board has held that medical opinion
evidence that offers no opinion regarding the cause of an employee’s condition is of limited
probative value on the issue of causal relationship.14
The record also contains reports dated February 10, March 10, and April 7, 2015, in
which Dr. Palma attributed appellant’s diagnosed knee conditions to excessive stair climbing at
work. This opinion is based upon an incorrect history of injury. OWCP accepted that appellant
climbed 10 stairs, 6 times on February 9, 2015. It did not accept that appellant performed
“excessive stair climbing” on the day in question. Dr. Palma, therefore, did not provide an
opinion regarding causal relationship based upon an accurate history of the February 9, 2015
employment duties standing apart from employment duties on other dates.15 His reports are,
therefore, insufficient to meet appellant’s burden of proof.
Dr. Lipschultz, in a February 20, 2015 addendum, diagnosed bilateral knee osteoarthritis.
He attributed the aggravation of appellant’s bilateral knee condition to work duties in
February 2015 when appellant was required to lift heavy cases in addition to ascending and
descending stairs. The mechanism of injury described by Dr. Lipschultz is inconsistent with
OWCP’s accepted February 9, 2015 employment duties. OWCP found that appellant was
required to ascend and descend stairs, but that he was not required to lift heavy cases. The Board
has held that medical opinions based on an inaccurate history, such as that of Dr. Lipschultz, are
of diminished probative value.16 As a result, his report is insufficient to meet appellant’s burden
of proof.
13

Id.

14

M.S., Docket No. 16-1497 (issued December 20, 2016); S.E., Docket No. 08-2214 (issued May 6,
2009); Jaja K. Asaramo, 55 ECAB 200 (2004).
15

J.M., Docket No. 17-1002 (issued August 22, 2017).

16

M.W., 57 ECAB 710 (2006); James R. Taylor, 56 ECAB 537 (2005).

6

The record also contains reports from Dr. Sparandero and Dr. Rubano.
Both
Dr. Sparandero and Dr. Rubano opined that appellant’s bilateral knee osteoarthritis had been
aggravated by appellant’s work duties. Similarly, Dr. Lipschultz, in a November 30, 2015
report, also opined that appellant’s bilateral knee conditions had been aggravated by his work
duties and multiple knee injuries. The Board finds that Drs. Lipschultz, Rubano, and Sparandero
are attributing the aggravation of appellant’s bilateral knee conditions to an occupational injury
produced by his employment duties over a period longer than a single workday or shift, rather
than an injury from a single occurrence within a single workday or shift as alleged in this
claim.17 Moreover, the opinions of these three physicians on causation fail to provide a
sufficient explanation of the mechanism of injury pertaining to this traumatic injury claim,
namely, how going up and down 10 stairs, 6 times on February 9, 2015, would cause or
aggravate appellant’s knee injury.18 Thus, these opinions fail to provide sufficient support to
establish a traumatic injury claim as they are insufficient to meet his burden of proof.19
On appeal counsel argues that appellant has established fact of injury. In addition,
counsel requested that the Board remand the case to combine this file with appellant’s
occupational disease claim under OWCP File No. xxxxxx349. For the reasons discussed above,
the Board finds that the medical evidence of record is insufficient to establish a medical
condition causally related to the accepted employment duties on February 9, 2015. The Board
further finds that there is insufficient reason provided to require that appellant’s present claim be
combined with his occupational disease claim.
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that appellant did not meet his burden of proof to establish a traumatic
injury causally related to his accepted employment duties on February 9, 2015.

17

A traumatic injury means a condition of the body caused by a specific event or incident, or series of events or
incidents, within a single workday or shift. 20 C.F.R. § 10.5(ee). An occupational disease is defined as a condition
produced by the work environment over a period longer than a single workday or shift. 20 C.F.R. § 10.5(q).
18

S.W., Docket 08-2538 (issued May 21, 2009).

19

S.R., Docket No. 12-1098 (issued September 19, 2012).

7

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 20, 2016 is affirmed.
Issued: January 8, 2018
Washington, DC

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

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

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
R.A., Appellant
and
DEPARTMENT OF THE AIR FORCE,
902nd CIVIL ENGINEER SQUADRON,
RANDOLPH AIR FORCE BASE, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

Appearances:
Brett E. Blumstein, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 19-1523
Issued: February 7, 2020

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 July 9, 2019 appellant, through counsel, filed a timely appeal from an April 4, 2019
nonmerit decision of the Office of Workers’ Compensation Programs (OWCP). As more than 180
days elapsed from OWCP’s last merit decision, dated July 24, 2017, to the filing of this appeal,
pursuant to the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and
501.3, the Board lacks jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
FACTUAL HISTORY
This case has previously been before the Board.3 The facts and circumstances as set forth
in Board’s prior decision are incorporated herein by reference. The relevant facts are as follows.
On November 27, 2012 appellant then a 43-year-old maintenance mechanic, filed a
traumatic injury claim (Form CA-1), alleging that on November 13, 2012, when in the process of
moving his belongings to another department, he injured his neck, upper and lower back, and both
legs while in the performance of duty.4 He stopped work on November 16, 2012.
Contemporaneous medical reports and diagnostic studies revealed multilevel disc disease,
most significant at L3-4, and evidence of a prior fusion at L5-S1. There was also evidence of
severe cervical spondylosis and disc protrusions/herniations at C3 through C7. Appellant’s
diagnoses included lumbar disc displacement, lumbar sprain/strain, and neck sprain/strain.
By decision dated January 17, 2013, OWCP denied his traumatic injury claim finding that
appellant failed to establish that the November 13, 2012 incident occurred as alleged. It concluded,
therefore, that the requirements had not been met to establish an injury as defined by FECA.
Appellant subsequently requested reconsideration, and submitted additional factual and
medical evidence regarding his claimed cervical and lumbar injuries.
By decision dated June 19, 2013, OWCP modified the prior decision to find that appellant
established that the November 13, 2012 incident occurred as alleged. However, the claim
remained denied because the medical evidence of record was insufficient to establish a diagnosed
condition causally related to the accepted employment incident.
Appellant subsequently submitted multiple requests for reconsideration. By merit
decisions dated November 1, 2013, February 21 and July 16, 2014, and August 31, 2015, OWCP
denied modification. Appellant, through counsel, appealed to the Board on November 25, 2015.
By decision dated April 14, 2016, the Board affirmed OWCP’s August 31, 2015 decision.5

3

Docket No. 16-0248 (issued April 14, 2016).

4

In a November 26, 2012 statement, appellant indicated that on November 13, 2012 he was gathering and moving
his belongings to another department and as he bent over to pick up a box, the box slipped. He jerked to keep the box
from falling and felt a sharp, throbbing pain in his lower back and down his leg, as well as pain in his neck. Appellant
indicated that he put the box down and waited a couple minutes for the pain to subside and then continued to move
his belongings to the other department. The employing establishment confirmed that appellant had been informed to
report to his newly assigned work area on November 13, 2012.
5

Supra note 3.

2

On January 26, 2017 appellant, through counsel, requested reconsideration and submitted
a January 4, 2017 lumbar computerized tomography (CT) scan. Also submitted was a report from
Dr. Helo Chen, an osteopath and family practitioner, dated December 20, 2016, who noted a
history of injury on November 13, 2012. He opined that appellant suffers from a sprain of
ligaments of cervical spine, strain of the muscle tendon at the lower leg level and right leg, sprain
of the ligaments of the lumbar spine, and intervertebral disc disorders with radiculopathy due to
an on-the-job injury.
By decision dated April 26, 2017, OWCP denied modification.
On July 7, 2017 appellant, through counsel, requested reconsideration and submitted an
undated report from Dr. Chen. Dr. Chen opined that the force of appellant’s head hitting the
bottom of the desk while his cervical and lumbar spine were in a flexed position caused the injury
to his cervical spine, lumbar spine, and bilateral legs. He advised that the diagnosis was confirmed
by examination, diagnostic studies, and an accident report review.
By decision dated July 24, 2017, OWCP denied modification of the April 26, 2017
decision.
On July 23, 2018 appellant requested reconsideration. In a narrative statement dated
June 28, 2018, he indicated that on November 13, 2012 he was moving his belongings to another
department, and when he bent over to pick up a box, it slipped, and he jerked to keep the box from
falling, and he felt pain in his low back and neck. Appellant noted that the pain radiated into his
ankle. He reported that after completing his move his back pain became worse. Appellant was
treated by Dr. Chen on December 20, 2016 and June 16, 2017 and reported that he could not
remember the exact date of his injury or provide an accurate restatement of events because it had
been four to five years since the injury.
In a July 23, 2018 statement, appellant, through counsel, requested reconsideration of the
July 24, 2017 OWCP decision. Counsel indicated that his June 28, 2018 statement explained the
discrepancy between Dr. Chen’s medical report and appellant’s prior statements regarding the
history of injury. Appellant asserted that he has provided medical evidence with medical rationale,
history, findings, and diagnosis and his claim should be accepted.
By decision dated April 4, 2019, OWCP denied appellant’s request for reconsideration.
LEGAL PRECEDENT
Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether
to review an award for or against compensation. The Secretary of Labor may review an award for
or against compensation at any time on his own motion or on application.6
To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must
provide evidence or an argument which: (1) shows that OWCP erroneously applied or interpreted
a specific point of law; (2) advances a relevant legal argument not previously considered by
6

5 U.S.C. § 8128(a); see L.D., Docket No. 18-1468 (issued February 11, 2019); see also V.P., Docket No. 17-1287
(issued October 10, 2017); D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008).

3

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by
OWCP.7
A request for reconsideration must be received by OWCP within one year of the date of
OWCP’s decision for which review is sought.8 If it chooses to grant reconsideration, it reopens
and reviews the case on its merits.9 If the request is timely, but fails to meet at least one of the
requirements for reconsideration, OWCP will deny the request for reconsideration without
reopening the case for review on the merits.10
ANALYSIS
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).
Appellant disagreed with OWCP’s July 24, 2017 merit decision, and timely requested
reconsideration on July 23, 2018. The underlying issue is whether appellant has met his burden
of proof to establish a causal relationship between his cervical and lumbar conditions and the
accepted November 13, 2012 employment incident. As this is a medical question, the Board must
determine if appellant presented sufficient evidence or argument regarding causal relationship to
warrant a merit review pursuant to 5 U.S.C. § 8128(a).11
In his July 23, 2018 request for reconsideration, appellant did not show that OWCP
erroneously applied or interpreted a specific point of law, nor did he advance a new and relevant
legal argument not previously considered. Consequently, he was not entitled to a review of the
merits based on the first and second above-noted requirements under 20 C.F.R. § 10.606(b)(3).12
Along with his reconsideration request, appellant submitted a June 28, 2018 statement
regarding the November 13, 2012 incident, which was consistent with his previous statement dated
November 26, 2012.13 However, he added that when he saw Dr. Chen in 2016-2017, he told him
that he could not recall the dates and the accuracy of all of the specific events that caused his injury
because it had been four to five years since his injury. Appellant reportedly told Dr. Chen to refer
to the file for the correct information.

7
20 C.F.R. § 10.606(b)(3); see L.D., id.; see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket
No. 08-1569 (issued December 9, 2008).
8

Id. at § 10.607(a). The one-year period begins on the next day after the date of the original contested decision.
Federal (FECA) Procedure Manual, Part 2 -- Claims, Reconsiderations, Chapter 2.1602.4 (February 2016).
Timeliness is determined by the document receipt date of the request for reconsideration as indicated by the received
date in the integrated Federal Employees’ Compensation System (iFECS). Id. at Chapter 2.1602.4b.
9

Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007).

10

Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010).

11

S.W., Docket No. 18-1261 (issued February 22, 2019); S.V., Docket No. 17-2012 (issued October 18, 2018).

12

20 C.F.R. § 10.606(b)(3)(i), (ii); T.B., Docket No. 18-1214 (issued January 29, 2019); C.B., Docket No. 08-1583
(issued December 9, 2008).
13

See supra note 4.

4

As noted, the issue on reconsideration is causal relationship, which is a medical question
that requires competent medical evidence to resolve. Appellant’s explanation as to why Dr. Chen
mistakenly believed he “hit his head hard against the bottom end of his desk” is not a proper
substitute for competent medical evidence on the issue of causal relationship. The submission of
evidence that does not address the particular issue involved does not constitute a basis for
reopening a case.14 As appellant did not submit relevant and pertinent new medical evidence not
previously considered by OWCP, he is not entitled to further merit review under the third
requirement of 20 C.F.R. § 10.606(b)(3).
On appeal counsel argues that appellant’s June 28, 2018 statement is sufficient to warrant
further merit review. However, as explained above the underlying merit issue on reconsideration
requires medical evidence to resolve.
The Board therefore finds that appellant has not met any of the requirements of 20 C.F.R.
§ 10.606(b)(3). Pursuant to 20 C.F.R. § 10.608, OWCP properly denied merit review.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for reconsideration of the
merits of his claim pursuant to 5 U.S.C. § 8128(a).

14

S.W., Docket No. 19-1498 (issued January 9, 2020); M.K., Docket No. 18-1623 (issued April 10, 2019); Edward
Matthew Diekemper, 31 ECAB 224, 225 (1979).

5

ORDER
IT IS HEREBY ORDERED THAT the April 4, 2019 decision of the Office of Workers’
Compensation Programs is affirmed.
Issued: February 7, 2020
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

6


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

)
)
)
)
)
)
)
)

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

Docket No. 08-245
Issued: May 16, 2008

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On November 1, 2007 appellant, through her representative, filed a timely appeal from a
November 2, 2006 merit decision of the Office of Workers’ Compensation Programs and a
June 1, 2007 hearing representative’s decision denying her claim for a schedule award. Pursuant
to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the schedule award issue.
ISSUE
The issue is whether appellant has a permanent impairment of the left lower extremity
due to her accepted employment injury.

FACTUAL HISTORY
This case has previously been before the Board. On September 18, 2006 the Board set
aside a November 3, 2005 decision denying appellant’s schedule award claim.1 The Board found
a conflict in medical opinion between Dr. Nicholas Diamond, an attending physician, and
Dr. Richard J. Mandel, a Board-certified orthopedic surgeon and referral physician, regarding
whether she sustained any permanent impairment of the left lower extremity causally related to
her March 3, 1998 employment injury. The Board remanded the case for the Office to refer
appellant for an impartial medical examination. The findings of fact and conclusions of law
from the prior decision are hereby incorporated by reference.
By letter dated September 26, 2006, appellant’s attorney requested to participate in the
selection of the physician to ensure an impartial evaluation. He also asked that the Office
provide him with a decision with appeal rights if it denied his request. On October 4, 2006 the
Office advised the attorney that it would schedule the examination using procedures designed to
safeguard impartiality.
On October 4, 2006 the Office referred appellant to Dr. Bong S. Lee, a Board-certified
orthopedic surgeon, to resolve the conflict in medical opinion. By letter dated October 12, 2006,
her attorney requested the Office’s referral letter, a statement of accepted facts and a copy of the
report from Dr. Lee when it became available. On October 12, 2006 the Office provided him
with the requested information and informed him that he could request a copy of Dr. Lee’s report
30 days after the examination.
In a report dated October 24, 2006, Dr. Lee discussed appellant’s history of a left ankle
fracture when she slipped and fell on ice on March 2, 1998. Appellant had a previous history of
a crush injury to the left ankle. Before her March 1998 fall, appellant was diagnosed with
possible multiple sclerosis. Appellant used a walker for ambulation. Dr. Lee stated:
“The examination of the left ankle shows a well-healed surgical scar in the medial
and lateral malleolus. There is an old depigmented scar of the medial malleolus
as the result of the crush injury when she was young. There is no significant
ankle joint swelling but she does have generalized swelling of both calves. The
left ankle joint demonstrates full flexion and extension. There is no instability of
the collateral ligament on the stress test. [Appellant] has local tenderness on
palpation around the ankle joint. There is no palpable mass or joint effusion.”

1

Docket No. 06-952 (issued September 18, 2006). The Office accepted that appellant sustained a left ankle
fracture on March 3, 1998. On March 5, 1998 she underwent an open reduction and internal fixation of the medial
and lateral malleolus of the left ankle. On March 14, 1999 the Office terminated her compensation and
authorization for medical treatment, finding that appellant had no further disability or residuals of her employment
injury. A hearing representative affirmed the termination by decision dated January 13, 2000. On March 22, 2001
the Board affirmed the termination of compensation and medical benefits by the Office. Docket No. 00-1630
(issued March 22, 2001).

2

Dr. Lee found that appellant had swelling and limited movement of the right ankle and
general weakness of the lower extremities and arm muscles. He interpreted her final x-rays as
showing “completely healed fractures of the medial and lateral malleolus and normal ankle
mortis.” Dr. Lee stated:
“As far as the injury associated with the incident on March 3, 1998 is concerned,
this was limited to a left ankle fracture, which was treated in an excellent manner
and has completely recovered with no functional impairment, residuals or
disability at this time. Therefore, she has fully recovered.
“However, [appellant] had an unrelated preexisting medical condition of multiple
sclerosis, which is a disabling medical condition and has progressed. Her present
difficulty with ambulation is solely due to the unrelated preexisting progressive
multiple sclerosis and not from any residual of her left ankle injury, in my
opinion, within a reasonable degree of medical certainty.”
By decision dated November 2, 2006, the Office denied appellant’s claim for a schedule
award. Her attorney requested an oral hearing, which was held on February 22, 2007. At the
hearing, counsel argued that it was not evident from the record that the Office selected Dr. Lee
using the Physicians Directory System (PDS). He further contended that Dr. Lee should have
considered appellant’s impairment due to her preexisting multiple sclerosis and failed to
reference the American Medical Association, Guides to the Evaluation of Permanent Impairment
(A.M.A., Guides) (5th ed. 2001).
In a decision dated June 1, 2007, the Office hearing representative affirmed the
November 2, 2006 decision. He found that a medical appointment schedule notification in the
record established that Dr. Lee was properly selected as an impartial medical examiner using the
PDS.
LEGAL PRECEDENT
The Federal Employees’ Compensation Act2 provides compensation for both disability
and physical impairment. “Disability” means the incapacity of an employee, because of an
employment injury, to earn the wages the employee was receiving at the time of injury.3 In such
cases, the Act compensates an employee for loss of wage-earning capacity. In cases of physical
impairment the Act, under section 8107(a), compensates an employee, pursuant to a
compensation schedule, for the permanent loss of use of certain specified members of the body,
regardless of the employee’s ability to earn wages.4
As a claimant seeking compensation under the Act has the burden of establishing the
essential elements of his or her claim by the weight of the reliable, probative and substantial
evidence, it is thus the claimant’s burden to establish that he or she sustained a permanent
2

5 U.S.C. §§ 8101-8193.

3

Lyle E. Dayberry, 49 ECAB 369 (1998).

4

Renee M. Straubinger, 51 ECAB 667 (2000).

3

impairment of a scheduled member or function as a result of his or her employment injury
entitling him or her to a schedule award.5 The evidence generally required to establish causal
relationship is rationalized medical opinion evidence. The claimant must submit a rationalized
medical opinion that supports a causal connection between his current condition and the
employment injury.6 The medical opinion must be based on a complete factual and medical
background with an accurate history of the claimant’s employment injury and must explain from
a medical perspective how the current condition is related to the injury.7
Section 8123(a) provides that, if there is disagreement between the physician making the
examination for the United States and the physician of the employee, the Secretary shall appoint
a third physician who shall make an examination.8 The implementing regulations states that, if a
conflict exists between the medical opinion of the employee’s physician and the medical opinion
of either a second opinion physician or an Office medical adviser, the Office shall appoint a third
physician to make an examination. This is called a referee examination and the Office will select
a physician who is qualified in the appropriate specialty and who has no prior connection with
the case.9 Office procedure provides that the selection of impartial medical specialists is made
by a strict rotational system using the PDS whenever possible. The services of all available and
qualified Board-certified specialists will be used as far as possible to eliminate any inference of
bias or partiality. This is accomplished by selecting specialists in alphabetical order as listed in
the roster chosen under the specialty and/or subspecialty heading in the appropriate geographic
area and repeating the process when the list is exhausted.10
When there exist opposing medical reports of virtually equal weight and rationale and the
case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.11
ANALYSIS
The Office accepted that appellant sustained a left ankle fracture due to a March 3, 1998
work injury. She underwent an open reduction and internal fixation of the medial and lateral
malleolus of the left ankle on March 5, 1998. On July 10, 2001 appellant sought a schedule
award. On prior appeal, the Board determined that a conflict existed on the issue of whether she

5

See Veronica Williams, 56 ECAB 367 (2005).

6

Manuel Gill, 52 ECAB 282 (2001).

7

Yvonne R. McGinnis, 50 ECAB 272 (1999).

8

5 U.S.C. § 8123(a).

9

20 C.F.R. § 10.321.

10

Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Examinations, Chapter 3.500.4b(4) (May 2003);
see also M.A., 59 ECAB ___ (Docket No. 07-1344, issued February 19, 2008).
11

Barry Neutuch, 54 ECAB 313 (2003); David W. Pickett, 54 ECAB 272 (2002).

4

sustained a permanent left lower extremity impairment due to her accepted employment injury
and remanded the case for resolution of the conflict.
On remand, the Office referred appellant to Dr. Lee for an impartial medical examination.
On October 24, 2006 Dr. Lee examined appellant and noted that she had a preexisting history of
a crush injury to her left ankle and a diagnosis of possible multiple sclerosis. He found no
significant swelling of the left ankle but calf swelling bilaterally. Dr. Lee opined that she had
full extension and flexion of the ankle and no instability of the collateral ligament, tenderness,
joint effusion or evidence of a mass. He discussed appellant’s generalized weakness of the lower
extremities and arms. Dr. Lee found that x-rays revealed healed left ankle fractures. He
concluded that appellant had recovered fully from her March 3, 1998 employment injury with no
impairment or residuals. Dr. Lee attributed her continued problems with movement to a
progression of multiple sclerosis.
Where there exist opposing medical reports of virtually equal weight and rationale and
the case is referred to an impartial medical specialist for the purpose of resolving the conflict, the
opinion of such specialist, if sufficiently well rationalized and based upon a proper factual
background, must be given special weight.12 The Board has carefully reviewed the opinion of
Dr. Lee and finds that, as it was based on a proper factual and medical background and is well
rationalized, his opinion as the impartial medical specialist is entitled to special weight.13
Dr. Lee explained that his findings on examination and by x-ray showed a totally healed ankle
fracture. His conclusion that appellant had no impairment due to her accepted employment
injury correlates with his findings on examination. Dr. Lee found that her continued difficulties
resulted from an unrelated medical condition. Accordingly, appellant has not met her burden of
proof to establish that she sustained a permanent impairment of the left lower extremity.
On appeal, appellant’s attorney asserted that the case record did not show that Dr. Lee
was properly selected using the PDS.14 The hearing representative noted that the case record
contained an appointment schedule form documenting that the Office selected Dr. Lee as the
impartial medical specialist in rotation from the PDS. Appellant has provided no evidence that
the Office did not follow its procedures in selecting Dr. Lee as the impartial medical specialist
from the PDS.
Counsel also argues that Dr. Lee failed to reference the A.M.A., Guides in reaching his
conclusions, did not provide any specific measurements regarding left ankle range of motion,
atrophy or swelling and did not consider appellant’s preexisting impairments. A schedule award,
12

Sharyn D. Bannick, 54 ECAB 537 (2003).

13

Phillip H. Conte, 56 ECAB 213 (2004).

14

Appellant’s attorney initially requested to participate in the selection of the impartial medical specialist and
requested a decision with appeal rights if the request was denied. On October 4, 2006 the Office informed
appellant’s attorney that the selection of the impartial medical examiner would be made according to Office
procedure to safeguard against bias. On the same date the Office referred appellant to Dr. Lee on October 24, 2006
for an impartial medical examination. By letter dated October 12, 2006, her attorney requested the Office’s referral
letter and a copy of the statement of accepted facts. He did not raise any objection to the selection of Dr. Lee as the
impartial medical specialist.

5

however, can be paid only for a condition related to an employment injury.15 As Dr. Lee found
no employment-related impairment, he did not need to apply the A.M.A., Guides to his findings
or consider preexisting impairments.
CONCLUSION
The Board finds that appellant has not established that she has a permanent impairment of
the left lower extremity due to her accepted employment injury.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated June 1, 2007 and November 2, 2006 are affirmed.
Issued: May 16, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

15

See Veronica Williams, supra note 5. Permanent impairment is based on direct physiological connection
between the employment injury and the part of the body for which a schedule award is claimed. See Gregory C.
Esparza, 42 ECAB 911, 915 (1991).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.B., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Des Moines, IA, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 08-2364
Issued: June 17, 2009

Case Submitted on the Record

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

JURISDICTION
On August 28, 2008 appellant filed a timely appeal of the Office of Workers’
Compensation Programs’ decision dated May 9, 2008 denying his request to expand his claim to
include bilateral cubital tunnel syndrome and an August 22, 2008 decision denying his request
for reconsideration without a merit review. 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 has established that he sustained bilateral cubital
tunnel syndrome due to his accepted employment injury; and (2) whether the Office properly
denied appellant’s request for reconsideration without a merit review pursuant to section 8128(a)
of the Federal Employees’ Compensation Act.
FACTUAL HISTORY
On August 28, 2004 appellant, then a 47-year-old mail handler, filed an occupational
injury claim alleging that he developed carpal tunnel syndrome in both hands from repetitive

lifting and moving mail with his hands. He first realized that his condition was caused or
aggravated by his employment on January 1, 1991. Appellant did not stop work. On
November 26, 2004 the Office accepted the claim for bilateral carpal tunnel syndrome.1
On October 24, 2003 Dr. Farhana Asad, appellant’s treating physician, diagnosed
postoperative residuals from the left middle finger, secondary to debridement of infection. He
indicated that bilateral carpal tunnel syndrome was likely secondary to appellant’s repetitive
work. The report also noted that Dr. Eugene Cherny, a Board-certified plastic surgeon, indicated
possible cubital tunnel syndromes with triggering of the left long finger.
In an August 10, 2004 report, Dr. John Gregory Ganske, a Board-certified plastic
surgeon, noted appellant’s 10-year history of carpal tunnel syndrome symptoms. He stated that
appellant’s job required heavy repetitive hand labor including pushing and unloading a hand
truck. Dr. Ganske diagnosed carpal tunnel syndrome and ulnar nerve compression at the wrist.
He recommended carpal tunnel and ulnar nerve releases at the wrists.
On November 23, 2004 Dr. Cherny diagnosed bilateral carpal tunnel syndrome and ulnar
nerve compression at the wrist for at least 10 years with symptoms getting worse. He noted that
appellant was losing sensation in his fingers and had lost significant grip strength. Dr. Cherny
advised that appellant needed bilateral carpal tunnel release and ulnar nerve releases at the wrist.
In a December 9, 2004 report, he noted upon examination that the right hand had decreased
protection sensation to the thumb, index and small digit and decreased tactile sensation in the
long and ring finger. Dr. Cherny also noted that the left hand had decreased protective sensation
in the thumb, index, long and small fingers and decreased tactile sensation in the ring digit. He
diagnosed bilateral carpal tunnel syndrome and bilateral cubital tunnel syndrome.
On November 29, 2007 appellant inquired about whether he could expand his case to
include cubital tunnel syndrome. The Office explained that his case had only been accepted for
carpal tunnel syndrome.
Appellant submitted a December 26, 2007 report from Dr. Cherny, who noted a fixed
sensory deficit in both hands through the ulnar and median nerve distribution and some
symptoms involving the radial nerve along the dorsal aspect of the wrist. Dr. Cherny indicated a
positive Tinel’s test for bilateral cubital tunnel syndrome. He diagnosed bilateral nerve
compression syndromes involving the medial nerve at the wrist consistent with carpal tunnel in
the ulnar nerve at the levels of the wrist and elbow consistent with ulnar and cubital tunnel.
Dr. Cherny also noted symptoms involving the radial nerve due to sensory deficits over the
dorsal aspect of the wrist and hands. He recommended an electromyogram (EMG) and nerve
conduction study.
On February 19, 2008 the Office advised appellant of the factual and medical evidence
necessary to expand his claim. In particular, it requested a description of job activities that
appellant believed contributed to his condition and a medical report with a diagnosis and
physician’s opinion as to whether employment activities caused or contributed to his condition.
1

On July 12, 2005 the Office issued a schedule award for 23 percent impairment of the right upper extremity and
24 percent impairment of the left upper extremity, entitling appellant to 146.64 weeks of compensation.

2

Appellant submitted an undated statement describing the type of equipment he used at
work and the amount of weight each held. He also noted continued pain, swelling, tenderness,
weakness and throbbing of elbow in 2003. Appellant indicated that he had not received any
effective treatment. He also submitted several physical therapy notes and several medical
reports.
In an EMG report dated February 1, 2008, Dr. Charles Denhart, a Board-certified
physiatrist, noted appellant’s history of hand pain, paresthesias and bilateral medial elbow pain.
Upon examination, he noted that appellant’s upper extremity deep tendon reflexes were
symmetrical and his upper extremity strength and sensation were grossly intact. Dr. Denhart
found that the right and left median motor and sensory distal latencies were prolonged, consistent
with mild bilateral carpal tunnel syndrome. He also found that the right and left ulnar nerve
conduction study was normal. Dr. Denhart diagnosed bilateral carpal tunnel syndrome.
On February 12, 2008 Dr. Cherny found fixed sensory deficits through both medial and
ulnar nerve distribution, with ulnar nerve symptoms greater than median nerve symptoms. He
diagnosed bilateral carpal tunnel syndrome, cubital tunnel and ulnar tunnel syndrome.
Dr. Cherny recommended open carpal tunnel release, ulnar tunnel release and cubital tunnel
release bilaterally.
On April 17, 2008 the Office requested that an Office medical adviser determine whether
there was sufficient medical evidence to establish cubital tunnel syndrome causally related to
appellant’s federal employment, and if so, whether the medical evidence established the need for
surgery for the condition. On April 20, 2008 the Office medical adviser advised that the Office
not accept a claim for cubital tunnel syndrome or surgery for this condition. He asserted that
Dr. Cherny’s reports were based on the subjective results of the Tinel’s test and that his reports
were repeatedly generic in discussing his findings. He also advised that Dr. Denhart’s EMG was
negative for cubital tunnel syndrome.
By decision dated May 9, 2008, the Office denied appellant’s request to expand his claim
to accept bilateral cubital tunnel syndrome finding that the medical evidence did not demonstrate
that the claimed medical condition was related to the established work-related events.
Appellant requested reconsideration on May 14 and July 21, 2008. He submitted a
July 2, 2008 operative report from Dr. Cherny, in which the physician performed a neuroplasty
of the median nerve at the left carpal tunnel and empiric ulnar nerve release at the left wrist.
Appellant also submitted several work restriction forms from Dr. Cherny regarding his return to
work after the carpal tunnel surgery. On July 8, 2008 Dr. Cherny diagnosed status post left
carpal tunnel release. He noted reduced numbness and tingling in the left hand. In a report dated
July 29, 2008, Dr. Cherny noted appellant’s complaint of numbness and tingling in the left ring
and small fingers and the ulnar aspect of the left hand. He also noted continued partial sensory
loss in the left small finger and into the hypothenar region and ulnar aspect of the left forearm.
Dr. Cherny indicated that appellant continued to be limited by symptoms in the left hand
involving ulnar nerve distribution. He also reported right hand symptoms involving the median
nerve and ulnar nerve compression. Dr. Cherny noted that he would seek authorization for
surgery on the ulnar nerve at the level of the wrist and elbow. In an August 1, 2008 operative
report, he performed a neuroplasty of the median nerve at the right carpal tunnel.

3

Appellant also submitted several physical therapy reports, including a July 8, 2008 report
noting that appellant had decreased protective sensation through the ulnar nerve distribution at
the left hand.
By decision dated August 22, 2008, the Office denied appellant’s request for
reconsideration without a merit review finding that the evidence submitted was cumulative and
not relevant.
LEGAL PRECEDENT -- ISSUE 1
Where appellant claims that a condition not accepted or approved by the Office was due
to his employment injury, he bears the burden of proof to establish that the condition is causally
related to the employment injury.2 To establish a causal relationship between the condition, as
well as any attendant disability, claimed and the employment event or incident, the employee
must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.3 Causal relationship is a medical issue and
the medical evidence generally required to establish causal relationship is rationalized medical
opinion evidence. Rationalized medical opinion evidence is medical evidence which includes a
physician’s rationalized opinion on whether there is a causal relationship between the
employee’s diagnosed condition and the compensable employment factors. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.4
ANALYSIS -- ISSUE 1
The Board finds that appellant has not established that his bilateral cubital tunnel
syndrome is causally related to factors of his federal employment. The Office accepted bilateral
carpal tunnel syndrome due to repetitive lifting and moving mail with his hands. Thereafter,
appellant requested that the Office expand his claim to include bilateral cubital tunnel syndrome.
However, the Board finds that the medical evidence is insufficient to establish that appellant’s
bilateral cubital tunnel syndrome is due to the accepted employment injury.
The reports from Dr. Cherny diagnosed bilateral cubital tunnel syndrome. In particular,
his reports dated November 23, 2004 and February 12, 2008 recommended ulnar nerve releases
and cubital tunnel releases bilaterally. Also, Dr. Cherny’s December 26, 2007 report noted that
appellant had a positive Tinel’s test result for bilateral cubital tunnel syndrome as well as
decreased sensation in both hands. However, none of his reports discuss whether particular
employment activities caused or aggravated appellant’s cubital tunnel condition. In particular,
2

Jaja K. Asaramo, 55 ECAB 200 (2004).

3

Jennifer Atkerson, 55 ECAB 317 (2004).

4

I.J., 59 ECAB ___ (Docket No. 07-2362, issued March 11, 2008); Victor J. Woodhams, 41 ECAB 345,
352 (1989).

4

Dr. Cherny did not provide any opinion about the cause of appellant’s condition or address why
he continued to diagnose cubital tunnel syndrome after Dr. Denhart’s EMG indicated no
evidence of that condition. The Board has held that medical evidence that does not offer any
opinion regarding the cause of an employee’s condition is of limited probative value on the issue
of causal relationship.5
Dr. Asad’s report dated October 24, 2003 diagnosed postoperative residuals from the left
middle finger. He also noted that Dr. Cherny indicated possible cubital tunnel syndromes with
triggering of the left long finger. However, Dr. Asad’s report does not support appellant’s claim
as it contains no opinion on causal relationship, rather it is a mere reiteration of Dr. Cherny’s
findings. He did not provide his own opinion as to whether appellant had cubital tunnel
syndrome or whether that condition was attributed to appellant’s employment. Similarly,
Dr. Ganske indicated that appellant performed heavy repetitive hand labor at work and diagnosed
ulnar compression, but he did not specifically address whether appellant’s ulnar condition was
causally related by his job duties.
The record also contains an EMG report from Dr. Denhart indicating that the right and
left ulnar nerve conduction study results were normal. This report does not support that
appellant has cubital tunnel syndrome. The record also contains the April 20, 2008 report from
an Office medical adviser who recommended that the Office not accept appellant’s claim for
cubital tunnel syndrome given that Dr. Cherny’s reports were based on subjective and generic
findings as well as the fact that the EMG indicated no evidence of cubital tunnel syndrome.
Other medical reports of record do not provide any specific support for causal relationship
between appellant’s claimed cubital tunnel syndrome and particular employment activities.
Appellant also submitted physical therapy reports. However, the Board has held that
reports from physical therapists are of no probative value as physical therapists are not
considered physicians under the Act, and as a result, they are not competent to provide a medical
opinion.6 None of the other evidence of record addresses the issue of causal relationship.
Consequently, the medical evidence does not support that appellant sustained cubital
tunnel syndrome in the performance of duty.
LEGAL PRECEDENT -- ISSUE 2
To require the Office to reopen a case for merit review under section 8128(a), the
Office’s regulations provide that the evidence or argument submitted by a claimant must:
(1) show that the Office erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by the Office; or (3) constitute relevant and
pertinent new evidence not previously considered by the Office.7 Section 10.608(b) of Office
regulations provides that, when an application for reconsideration does not meet at least one of
5

K.W., 59 ECAB ___ (Docket No. 07-1669, issued December 13, 2007).

6

See Barbara Williams, 40 ECAB 649 (1989). See 5 U.S.C. § 8101(2) (defines the term “physician”).

7

D.K., 59 ECAB ___ (Docket No. 07-1441, issued October 22, 2007).

5

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.8
ANALYSIS -- ISSUE 2
In support of his reconsideration request, appellant submitted additional medical
evidence. However, none of the medical evidence submitted addressed the relevant issue of
whether appellant sustained cubital tunnel syndrome causally related to his factors of
employment.
Dr. Cherny’s July 2, 2008 operative report indicated that Dr. Cherny performed an ulnar
nerve release on appellant’s left wrist. In a July 29, 2008 report, he noted appellant’s complaint
of numbness and tingling in the ulnar aspect of his left hand. Dr. Cherny also noted that
appellant was limited by symptoms of ulnar nerve distribution. Although these reports reference
appellant’s ulnar condition, they do not constitute relevant evidence as neither addresses the
issue of causal relationship.9 The other reports from Dr. Cherny submitted upon appellant’s
reconsideration request also are not relevant as they only discuss appellant’s carpal tunnel
syndrome, which is not at issue.
Appellant also submitted several physical therapy reports in support of his
reconsideration request. However, the underlying issue is medical in nature and, as noted,
physical therapists are not physicians and their reports are not competent medical evidence.
Therefore, the physical therapy notes do not constitute relevant evidence.
None of the evidence submitted upon reconsideration constituted new and relevant
evidence not previously considered by the Office. Appellant also did not advance a legal
argument not previously considered by the Office or assert that the Office erroneously applied or
interpreted a specific point of law. Consequently, the Office properly denied appellant’s request
for reconsideration without a merit review.
CONCLUSION
The Board finds that appellant did not meet his burden of proof in establishing that he
sustained cubital tunnel syndrome causally related to his factors of employment. The Board
further finds that the Office properly denied his request for reconsideration without a merit
review.10

8

K.H., 59 ECAB ___ (Docket No. 07-2265, issued April 28, 2008).

9

See E.M., 60 ECAB ___ (Docket No. 09-39, issued March 3, 2009) (where the Board held that new evidence
submitted upon a reconsideration request that does not address the pertinent issue is not relevant evidence); Freddie
Mosley, 54 ECAB 255 (2002).
10

Appellant submitted new evidence on appeal. However, the Board may only review evidence that was in the
record at the time the Office issued its final decision. 20 C.F.R. § 501.2(c).

6

ORDER
IT IS HEREBY ORDERED THAT the Office of Workers’ Compensation Programs’
decisions dated August 22 and May 9, 2008 are affirmed.
Issued: June 17, 2009
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.W., Appellant
and
U.S. POSTAL SERVICE, CORNIS COLLINS
PROCESSING & DELIVERY, Chicago, IL,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-275
Issued: July 27, 2010

Case Submitted on the Record

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

JURISDICTION
On November 9, 2009 appellant filed a timely appeal of the May 11, 2009 decision of the
Office of Workers’ Compensation Programs denying his claim for an employment injury.
Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to review the merits of
the case.
ISSUE
The issue is whether appellant sustained an injury in the performance of duty on May 30,
2008, as alleged.
FACTUAL HISTORY
On June 9, 2008 appellant, then a 49-year-old maintenance mechanic, filed a traumatic
injury claim alleging that on May 30, 2008 while vacuuming, he felt a pop or pull in his low
back when he stood up after bending down to pick up the vacuum hose and pull it towards him.
The employing establishment, through Al Markham, manager of maintenance operations,
controverted appellant’s claim.

In a June 6, 2008 statement, appellant noted that on May 16, 2008 he felt a slight pain in
his upper back and neck area while fixing a machine. On May 30, 2008 he was vacuuming and
pulled the vacuum towards him. As appellant began to stand up he felt a pop or pull in his lower
back, which he promptly reported to his supervisor.
In an August 4, 2008 disability certificate, Dr. Kumar M. Kaliana advised that appellant
was totally incapacitated from May 31 through June 7, 2008 due to back pain, lumbosacral
sprain and strain. In a June 25, 2008 attending physician’s report, he noted appellant’s history as
feeling a pop in his back while vacuuming at his job. Dr. Kaliana diagnosed lumbosacral sprain
aggravation of a lumbosacral herniated disc and checked a box indicating that the diagnosed
condition was caused or aggravated by an employment activity. He noted that appellant was
totally disabled from May 31 through June 7, 2008. Appellant also submitted discharge
instructions from Clinic Midwest Orthopedics.
In a July 24, 2008 decision, the Office denied appellant’s claim, finding that the evidence
did not establish that the claimed medical condition was related to the accepted work incident.
On August 19, 2008 appellant requested an oral hearing which was held on
February 18, 2009. He stated that he had severely injured his back on two prior occasions while
carrying mail. Appellant further described the work incidents of May 16 and 30, 2008. He took
a week off work following the May 30, 2008 incident and returned to regular duty. Appellant
noted that he worked with pain.
Appellant submitted medical records regarding his May 31, 2008 treatment at Rush
University Medical Center. The emergency notes indicate that appellant had an onset of right
lower back pain about 10:00 a.m. while vacuuming. Dr. Galeta C. Clayton, a physician Boardcertified in emergency medicine, prescribed hydrocodone-acetaminophen, diazepam and
ibuprofen and discharged appellant. He listed a final diagnosis of lumbar sprain and strain and
noted that appellant’s condition at discharge was improved. Appellant also submitted medical
records with regard to his prior injuries.
In a decision dated May 11, 2009, an Office hearing representative affirmed the July 24,
2008 decision.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act1 has the
burden of establishing the essential elements of his or her claim, including the fact that an
individual is an employee of the United States within the meaning of the Act, that the claim was
timely filed within the applicable time limitation period of the Act, that an injury was sustained
in the performance of duty as alleged and that any disability and/or specific condition for which
compensation is claimed are causally related to the employment injury. These are the essential

1

5 U.S.C. § 8122(a).

2

elements of each and every compensation claim regardless of whether the claim is predicated
upon a traumatic injury or an occupational disease.2
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that she actually experienced the employment incident at
the time, place and in the manner alleged.3 Second, the employee must submit evidence, in the
form of medical evidence, to establish that the employment incident caused a personal injury.4
Causal relationship is a medical issue5 and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. Rationalized medical
opinion evidence is medical evidence that includes a physician’s rationalized opinion on whether
there is a causal relationship between the claimant’s diagnosed condition and the established
incident or factor of employment. The opinion of the physician must be based on a complete
factual and medical background of the claimant,6 must be one of reasonable medical certainty,7
and must be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the established incident or factor of employment.8
ANALYSIS
The Office accepted that appellant experienced a work incident on May 30, 2008.
However, it denied appellant’s claim for the reason that the medical evidence did not establish a
causal relationship between his low back condition and the accepted work incident.
The Board finds that appellant has not established a causal relationship between his low
back condition and the May 30, 2008 work incident. Appellant has not provided a rationalized
medical opinion to support his claim. The reports from Dr. Kaliana are of limited probative
value on the issue of causal relationship. Dr. Kaliana did not adequately explain how the
employment incident caused or contributed to appellant’s lumbosacral symptoms. He opined in
a June 25, 2008 attending physician’s report that appellant’s diagnosed condition of lumbosacral
sprain and strain was employment related and noted a history of the work incident. However,
Dr. Kaliana’s opinion on causal relationship consisted of a check mark on a form report, offering

2

Id.

3

John J. Carlone, 41 ECAB 345 (1989).

4

Shirley A. Temple, 48 ECAB 404 (1997).

5

Mary J. Briggs, 37 ECAB 578 (1986).

6

William Nimitz, Jr., 30 ECAB 567, 570 (1979).

7

See Morris Scanlon, 11 ECAB 384, 385 (1960).

8

See William E. Enright, 31 ECAB 426, 430 (1980).

3

no medical explanation of his conclusion.9 His August 4, 2008 disability statement noted only
that appellant was disabled from May 31 through June 7, 2008 due to back pain, lumbosacral
sprain and strain. However, Dr. Kaliana did not further address the May 30, 2008 work incident
at all. The emergency room notes of Dr. Clayton also do not provide a rationalized medical
opinion relating appellant’s diagnosed lumbar sprain and strain to the accepted employment
incident. The record reflects that appellant may have a preexisting lumbar condition. The
reports of Dr. Kaliana and Dr. Clayton do not provide a full or acceptable history of appellant’s
back condition, any prior treatment or address how his work on May 30, 2008 contributed to his
need for medical treatment.
An award of compensation may not be based on surmise, conjecture or speculation.
Neither the fact that appellant’s claimed condition became apparent during a period of
employment nor his belief that the condition was caused by his employment is sufficient to
establish causal relationship.10 The Board has held that the fact that a condition manifests itself
or worsens during a period of employment11 or that the work activities produce symptoms
revelatory of an underlying condition12 does not raise an inference of causal relationship between
the two.
CONCLUSION
The Board finds that appellant has not established that he sustained an injury in the
performance of duty on May 30, 2008, as alleged.

9

See Calvin E. King, 51 ECAB 384, 400 (2000) (numerous form reports from a physician who checked a yes box
indicating a causal relationship between appellant’s spinal stenosis and his employment had little probative value
absent supporting rationale and were insufficient to establish causation).
10

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Ruth R. Price, 16 ECAB 688,
691 (1965).
11

E.A., 58 ECAB 677 (2007); Ruth R. Price, 16 ECAB 688, 395 (1960).

12

D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155,157 (1960).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 11, 2009 is affirmed.
Issued: July 27, 2010
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
W.F., Appellant
and
U.S. POSTAL SERVICE, PROCESSING &
DISTRIBUTION CENTER, Southeastern, PA,
Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 11-440
Issued: October 27, 2011

Case Submitted on the Record

DECISION AND ORDER
Before:
RICHARD J. DASCHBACH, Chief Judge
ALEC J. KOROMILAS, Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 14, 2010 appellant, through her attorney, filed a timely appeal from an
August 24, 2010 merit decision of the Office of Workers’ Compensation Programs (OWCP)
denying her claim for increased schedule awards. Pursuant to the Federal Employees’
Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the schedule award decision.
ISSUE
The issue is whether appellant has more than a 10 percent permanent impairment of the
right arm or a 28 percent permanent impairment of the left arm for which she received schedule
awards.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board. On February 25, 2008 the Board set
aside a December 8, 2006 decision finding that appellant had no more than a 10 percent
impairment of the right upper extremity and a 28 percent impairment of the left upper extremity.2
The Board determined that neither her attending physician nor OWCP’s medical adviser properly
applied the provisions of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (5th ed. 2001) (A.M.A., Guides). The Board remanded the case for
OWCP to obtain an opinion sufficient to establish the extent of appellant’s right and left upper
extremity impairments. The facts of the case as set forth in the prior decision of the Board are
hereby incorporated by reference.
By decision dated April 29, 2008, OWCP denied appellant’s claim for an additional
schedule award. It found that OWCP’s medical adviser had adequately explained how he
applied the A.M.A., Guides.
In a decision dated January 2, 2009, a hearing representative set aside the April 29, 2008
decision. He determined that there was no current medical evidence addressing the extent of
appellant’s impairment. The hearing representative remanded the case for OWCP to refer her for
a second opinion examination.
On January 15, 2009 OWCP referred appellant to Dr. Robert F. Draper, Jr., a Boardcertified orthopedic surgeon, for a second opinion examination. On February 24, 2009
Dr. Draper found that appellant had a negative Tinel’s sign and Phalen’s test for the right wrist
with full grip strength and five millimeters of two-point discrimination. For the left wrist, he
found a positive Tinel’s sign and Phalen’s test over the median nerve of the left wrist.
Dr. Draper measured range of motion of the right shoulder of 120 degrees forward flexion, 120
degrees abduction, 80 degrees internal rotation and 70 degrees external rotation. For the left
shoulder, he measured 160 degrees forward flexion and abduction, 80 degrees internal rotation
and 70 degrees external rotation. Using the fifth edition of the A.M.A., Guides, Dr. Draper
determined that appellant had a 10 percent impairment of each upper extremity due to carpal
tunnel syndrome. He further found that she had an additional seven percent impairment of the
right shoulder and a two percent impairment of the left shoulder due to loss of range of motion.
On February 26, 2009 an OWCP medical adviser concurred with Dr. Draper’s
determination and concluded that appellant had a 16 percent right upper extremity impairment
and a 12 percent left upper extremity impairment.
By decision dated April 21, 2009, OWCP denied appellant’s claim for an additional
schedule award. It found that her impairment of the upper extremities was less than that
previously awarded.

2

Docket No. 07-1548 (issued February 25, 2008). OWCP accepted that appellant sustained bilateral carpal
tunnel syndrome and bilateral adhesive capsulitis of the shoulders. Appellant underwent a right carpal tunnel release
in July 2001 and a left carpal tunnel release in October 2001. On April 16, 2006 OWCP granted her schedule
awards for a 28 percent left upper extremity impairment and a 10 percent right upper extremity impairment.

2

On April 23, 2009 appellant, through her attorney, requested an oral hearing. By decision
dated November 18, 2009, the hearing representative set aside the April 21, 2009 decision. She
found that Dr. Draper did not adequately explain his findings. The hearing representative
remanded the case for OWCP to obtain clarification from Dr. Draper regarding his impairment
evaluation using the provisions of the sixth edition of the A.M.A., Guides.
By letter dated November 19, 2009, OWCP requested that Dr. Draper evaluate
appellant’s impairment of the upper extremities under the sixth edition of the A.M.A., Guides. It
provided him a statement of accepted facts that indicated that she had accepted bilateral carpal
tunnel syndrome and bilateral adhesive capsulitis and that the conditions had been combined
under one file number.
On December 5, 2009 Dr. Draper applied the sixth edition of the A.M.A., Guides to his
prior examination findings. He found that appellant’s impairment due to carpal tunnel syndrome
should be rated using Table 15-21 on page 438 of the A.M.A., Guides. Dr. Draper identified a
class 1 impairment for carpal tunnel syndrome below the midfoream, which yielded a default
value of five percent. After determining the impairment class and default grade, he considered
whether there were any applicable grade adjustments for Functional History (GMFH), Physical
Examination (GMPE) and Clinical Studies (GMCS). Dr. Draper found that clinical studies were
inapplicable and that appellant had a grade modifier or one for functional history and physical
examination. Utilizing the net adjustment formula discussed above, (GMFH-CDX) + (GMPECDX) + (GMCS-CDX), or (1-1) + (1-1) + (0-0) = 0, he found no net adjustment from the default
value of five percent.
For the bilateral shoulders, Dr. Draper identified a class 1 impairment due to a partial
thickness rotator cuff tear using the shoulder regional grid set forth in Table 15-5, which yielded
a default value of three percent. After applying grade modifiers, he determined that appellant
had a four percent impairment of the right shoulder and a three percent impairment of the left
shoulder. Dr. Draper added the shoulder and carpal tunnel impairment ratings to find an eight
percent left upper extremity impairment and a nine percent right upper extremity impairment.
On December 20, 2009 an OWCP medical adviser reviewed Dr. Draper’s February 24,
2009 report. He applied Table 15-23 on page 449 and found that appellant had a two percent
impairment of the right upper extremity due to carpal tunnel syndrome and a five percent
impairment of the left upper extremity due to carpal tunnel syndrome. Regarding the shoulder,
the medical adviser noted that Table 15-5 on page 405 provided that an impairment due to
shoulder impingement could also be assessed using loss of range of motion. He found that, for
the right shoulder 120 degrees flexion yielded a three percent impairment, 120 degrees abduction
yielded a three percent impairment, 70 degrees internal rotation yielded a two percent
impairment and 70 degrees external rotation yielded no impairment, for a total right upper
extremity impairment of eight percent. For the left shoulder, the medical adviser found that 160
degrees flexion yielded a three percent impairment, 160 degrees abduction yielded a three
percent impairment and that 80 degrees internal rotation and 70 degrees external rotation yielded
no impairment, for a total right upper extremity impairment of six percent. He combined with
the impairments due to carpal tunnel syndrome with the impairments due to loss of range of
motion of the shoulder to find an 11 percent left upper extremity impairment and a 10 percent
right upper extremity impairment.

3

By decision dated February 17, 2010, OWCP denied appellant’s claim for an additional
schedule award.
On February 23, 2010 counsel requested an oral hearing. At the hearing, held on June 16,
2010, he argued that the initial schedule award paid appellant only for an impairment due to
carpal tunnel syndrome. Counsel maintained that appellant was challenging only the amount
awarded for both shoulders.
By decision dated April 24, 2010, the hearing representative affirmed the February 17,
2010 decision.
On appeal counsel maintains that appellant has two separate claims. He asserts that he is
not challenging the initial award made for carpal tunnel syndrome but that appellant was entitled
to an increased award for her shoulder impairment separate from the original award for carpal
tunnel syndrome.
LEGAL PRECEDENT
The schedule award provision of FECA,3 and its implementing federal 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 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
The sixth edition requires identifying the impairment class for the diagnosed condition
(CDX), which is then adjusted by grade modifiers based on GMFH, GMPE and GMCS.7 The
net adjustment formula is (GMFH-CDX) + (GMPE-CDX) + (GMCS-CDX).
If carpal tunnel syndrome is found under the standards of Appendix 15-B, impairment is
evaluated under the scheme found in Table 15-23 (Entrapment/Compression Neuropathy
Impairment) and accompanying relevant text.8 In Table 15-23, grade modifiers are described for
test findings, history and physical findings. A survey completed by a given claimant, known by
the name QuickDASH, is used to further modify the grade and to choose the appropriate
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 2 -- Claims, Schedule Awards and Permanent Disability Claims,
Chapter 2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
7

A.M.A., Guides 494-531.

8

Id. at 449, Table 15-23.

4

numerical impairment rating.9 If carpal tunnel syndrome is not found under the standards of
Appendix 15-B, impairment due to median nerve dysfunction is evaluated under the scheme
found in Table 15-21 (Peripheral Nerve Impairment: Upper Extremity Impairments).10 Under
Table 15-21, observed conditions are placed into classes (ranging from class 0 to class 4) based
on diagnosis and the severity of the condition. After the class is identified, the precise degree of
the impairment can be modified by various factors, including functional history, physical
examination and clinical studies.11
ANALYSIS
OWCP accepted that appellant sustained bilateral carpal tunnel syndrome and bilateral
adhesive capsulitis of the shoulders due to factors of her federal employment. In 2001 appellant
underwent bilateral carpal tunnel releases. On February 25, 2008 the Board set aside OWCP’s
December 8, 2006 schedule award decision which found that appellant had a 28 percent
permanent impairment of the left upper extremity and 10 percent permanent impairment of the
right upper extremity. The Board remanded the case for OWCP to obtain an impairment
evaluation of the bilateral upper extremities consistent with the A.M.A., Guides.
On February 24, 2009 Dr. Draper, an OWCP referral physician, found a positive Tinel’s
sign and Phalen’s test of the right wrist and a negative Tinel’s sign and Phalen’s test of the left
wrist. He measured range of motion of the right shoulder as 120 degrees forward flexion 120
degrees abduction, 80 degrees internal rotation and 70 degrees external rotation. Dr. Draper
measured range of motion for the left shoulder of 160 degrees forward flexion and abduction, 80
degrees internal rotation and 70 degrees external rotation. He applied the fifth edition of the
A.M.A., Guides and found that appellant had a 16 percent right upper extremity impairment and
a 12 percent left upper extremity impairment due to carpal tunnel syndrome and a loss of range
of motion of the shoulder.
On November 19, 2009 OWCP asked Dr. Draper to determine the extent of appellant’s
upper extremity impairment utilizing the sixth edition of the A.M.A, Guides. In a report dated
December 5, 2009, Dr. Draper advised that appellant had a five percent bilateral impairment due
to carpal tunnel syndrome using Table 15-21 of the A.M.A., Guides. He further found a four
percent impairment of the right shoulder and a three percent impairment of the left shoulder
using the diagnosis-based impairment method set forth in Table 15-5 on page 403.
OWCP referred Dr. Draper’s February 24 and December 5, 2009 reports to an OWCP
medical adviser for review. The medical adviser applied the sixth edition of the A.M.A., Guides
to the clinical findings from Dr. Draper’s February 24, 2009 report.12 He utilized Table 15-23 on
page 449 to find a two percent impairment of the right upper extremity due to carpal tunnel
syndrome and a five percent impairment of the left upper extremity due to carpal tunnel
9

Id. at 448.

10

Id. at 437-40, Table 15-21.

11

Id. at 406-09.

12

It does not appear that OWCP’s medical adviser reviewed Dr. Draper’s December 5, 2009 report.

5

syndrome. However, as discussed, with respect to evaluating impairment due to dysfunction of
the median nerves, Appendix 15-B (Electrodiagnostic Evaluation of Entrapment Syndromes)
contains criteria for evaluating whether carpal tunnel syndrome is present. If carpal tunnel
syndrome is found under the standards of Appendix 15-B, the impairment is evaluated under the
schedule found in Table 15-23. If carpal tunnel syndrome is not found under the standards of
Appendix 15-B, impairment due to median nerve dysfunction is evaluated under the scheme
found in Table 15-21. There is no indication that OWCP’s medical adviser considered Appendix
15-B and he did not provide any explanation regarding why he evaluated appellant’s impairment
due to carpal tunnel syndrome under Table 15-23.
OWCP’s medical adviser further found that appellant’s shoulder impairment could be
alternatively assessed using range of motion measurements rather than the diagnosis-based
method.13 He determined that, using Table 15-34, appellant had an eight percent right upper
extremity impairment and a six percent left upper extremity impairment due to loss of range of
motion of the shoulder. The medical adviser based his determination on Dr. Draper’s range of
motion measurements for flexion, abduction, internal rotation and external rotation. However,
the A.M.A., Guides requires evaluation of six ranges of shoulder motion: flexion, extension,
abduction, adduction, external rotation and internal rotation.14 Dr. Draper’s report did not
provide insufficient clinical findings to evaluate appellant’s shoulder impairment using range of
motion. Accordingly, the Board finds that the case must be remanded to OWCP to obtain a
report consistent with the A.M.A., Guides.15 After such further development as deemed
necessary, it should issue a de novo decision.
CONCLUSION
The Board finds that the case is not in posture for decision.

13

Id. at 401-05, Table 15-5. The Shoulder Regional Grid, provides that, if loss of motion is present, the
impairment may be assessed by using range of motion under section 15.7g.
14

Id. at 475.

15

On appeal appellant’s attorney argues that the award for the shoulder condition should be separate from the
award for carpal tunnel syndrome. However, the relevant issue is the total impairment of appellant’s upper
extremities under the sixth edition of the A.M.A., Guides.

6

ORDER
IT IS HEREBY ORDERED THAT the August 24, 2010 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 27, 2011
Washington, DC

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

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

7