United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
C.S., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
VETERANS ADMINISTRATION MEDICAL
CENTER, Bronx, NY, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-0399
Issued: June 19, 2017

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA H. FITZGERALD, Deputy Chief Judge
COLLEEN DUFFY KIKO, Judge
VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION
On December 13, 2016 appellant filed a timely appeal from a November 17, 2016 merit
decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal
Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction to consider the merits of this case.
ISSUE
The issue is whether appellant met her burden of proof to establish an injury causally
related to the accepted August 18, 2016 employment incident.
On appeal, appellant alleges that incorrect information regarding her case was provided
to OWCP. She reiterated the details of the employment incident, explained the delay in filing
her claim, contended that she was injured in the performance of her duties, and argued that the
medical evidence supported her claim.
1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On September 14, 2016 appellant, then a 62-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on August 25, 2016 she slipped on a waxed floor and twisted her right
ankle, right knee, and right hip. The claim form did not indicate whether she stopped work.
By letter dated September 29, 2016, the employing establishment controverted
appellant’s claim as fact of injury had not been established. It contended that she had not
provided rationalized medical evidence establishing an injury.
By letter dated October 5, 2016, OWCP informed appellant that further information was
necessary to support her claim, and afforded her 30 days to submit this evidence.
In a September 12, 2016 report, Dr. Sivaram Rajan, a Board-certified orthopedic surgeon,
noted that appellant reported a history of injuring her right knee and ankle on August 18, 2016
when, while working as a nurse, she slipped on a waxed floor and twisted her ankle. He noted
that since then she had persistent right lateral-sided ankle discomfort as well as locking, catching
and persistent medial-sided right knee pain. Dr. Rajan diagnosed right lateral malleolus avulsion
fracture and probable right knee medial meniscal tear. He recommended a magnetic resonance
imaging (MRI) scan to evaluate the right knee. Dr. Rajan noted that physical therapy was also
recommended. He placed appellant’s right knee in an air cast to control her symptoms. In a note
dated September 15, 2016, Dr. Rajan indicated that appellant was under his care for a right knee
injury. He noted that appellant could not return to work until she was reevaluated after her MRI
scan was completed. In a September 21, 2016 report, Dr. Rajan noted that he had reviewed the
MRI scan and it was essentially normal. He diagnosed right knee strain and right lateral
malleolus ankle avulsion fracture.
In an October 12, 2016 letter, appellant stated that on August 18, 2016, while walking the
corridor on the sixth floor on her way to collect the mail for her program, she slipped and tripped
on a waxed floor. She alleged that she twisted her right ankle outward and hit her right hip hard.
Appellant also noted that she slipped again while going to the operating room to assist a resident
complete a form. She noted that on the same date she reported the incident to the practitioner in
occupational health, who gave her an icepack. Appellant noted that at approximately 2:30 p.m.
her lower right leg became very painful, and she notified her supervisor of the injury by e-mail.
She noted that she continued to take Motrin and applied ice packs for the swelling at home and at
work. Appellant alleged that she did not seek treatment right away because she did not think the
injury was serious. In an October 20, 2016 statement, she stated that the correct date of her
injury was August 18, 2016.
In an attending physician’s report (Form CA-20) dated October 31, 2016, Dr. Rajan noted
that September 12, 2016 x-rays of right ankle showed an avulsion fracture of the lateral
malleolus. He checked a box marked “yes” indicating that he believed that this was caused by
the injury of August 18, 2016 when appellant slipped and twisted her ankle and knee while
walking down the corridor at her work. Dr. Rajan indicated that appellant was totally disabled
from September 16 through 21, 2016. In a report of the same date, he diagnosed right knee
strain, and right lateral malleolus ankle avulsion fracture.

2

In a letter dated November 2, 2016, Dr. Rajan stated that appellant injured her right knee
and ankle when she fell at work on August 18, 2016. He noted that appellant’s injures included a
right lateral malleolar avulsion fracture and that she also sustained a right knee strain and
contusion. Dr. Rajan noted that the findings were confirmed with x-rays of the right ankle and
right knee. He noted that appellant was advised to pursue physical therapy for both her knee and
ankle, but that she had not received approval from workers’ compensation.
By decision dated November 17, 2016, OWCP accepted that appellant’s fall occurred as
alleged, but denied appellant’s claim as she had not established that her diagnosed medical
conditions were causally related to the accepted employment incident of August 18, 2016.2
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish that 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 timely filed within the applicable
time limitation period of FECA, that an injury was caused 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.3 These are the essential elements of each and every
compensation claim regardless of whether the claim is predicated upon a traumatic injury or an
occupational disease.4
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it must first be determined whether fact of injury has been established.
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.5 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.6
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.7 The weight of the
medical evidence is determined by its reliability, its probative value, its convincing quality, the

2

The Board notes that although OWCP refers to an August 25, 2016 employment incident in its November 17,
2016 decision, the Board notes that appellant clarified that August 18, 2016 was the correct date. Additionally, the
case record refers to August 18, 2016 as the date of the alleged employment injury.
3

Joe D. Cameron, 42 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

4

Victor J. Woodhams, 41 ECAB 345 (1989).

5

John J. Carlone, 41 ECAB 354 (1989).

6

Id.

7

I.J., 59 ECAB 408 (2008); supra note 4.

3

care of analysis manifested, and the medical rationale expressed in support of the physician’s
opinion.8
ANALYSIS
OWCP accepted that the employment incident occurred as alleged and that appellant
established a medical diagnosis. However, it denied her claim as the medical evidence of record
failed to establish that the medical diagnosis was causally related to the accepted August 18,
2016 employment incident.
In support of her claim, appellant submitted multiple reports by Dr. Rajan, her treating
orthopedic surgeon. Dr. Rajan summarized his treatment in a letter dated November 2, 2016,
wherein he stated that appellant injured her right knee and ankle when she fell at work on
August 18, 2016, that appellant’s injuries included a right lateral malleolar avulsion fracture, and
that she also sustained a right knee strain and contusion. He noted that these findings were
confirmed with x-rays of the right ankle and right knee. Dr. Rajan also indicated that appellant’s
injuries were caused by her employment accident. However, he failed to provide a rationalized
medical opinion explaining the relationship. A mere conclusion without the necessary rationale
explaining how and why the physician believes that appellant’s accepted injury resulted in a
diagnosed condition is not sufficient to meet appellant’s burden of proof.9 Dr. Rajan did not
explain how or why appellant’s accepted fall caused or contributed to her right knee or ankle
conditions.10 He merely attributes appellant’s conditions to the accepted employment incident
without any medical rationale.
Causal relationship is a medical question that must be established by probative medical
opinion from a physician.11 An award of compensation may not be based on surmise, conjecture,
speculation, or appellant’s belief of causal relationship.12 Appellant has failed to submit
rationalized medical evidence to meet her burden of proof on causal relationship.
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 failed to meet her burden of proof to establish an injury
causally related to the accepted August 18, 2016 employment incident.

8

James Mack, 43 ECAB 321 (1991).

9

Id.

10

D.N., Docket No. 15-1737 (issued November 25, 2015).

11

W.W., Docket No. 09-1619 (issued June 2010); David Apgar, 57 ECAB 137 (2005).

12

John D. Jackson, 55 ECAB 465 (2004); William Nimitz, 30 ECAB 57 (1979).

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated November 17, 2016 is affirmed.13
Issued: June 19, 2017
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

13

By decision dated May 8, 2017, OWCP’s Branch of Hearings and Review denied appellant’s April 19, 2017
request for an oral hearing as untimely filed, and added that the issue could be resolved through a reconsideration
request. The Board concludes, however, that the May 8, 2017 decision is null and void as the Board assumed
jurisdiction on December 13, 2016 and the hearing request involved the same issue pending appeal before the Board.
See 20 C.F.R. § 501.2(c)(3), which provides in pertinent part: “The Board and OWCP may not exercise
simultaneous jurisdiction over the same issue in a case on appeal.” See also Douglas E. Billings, 41 ECAB
880 (1990).

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
F.L., Appellant
and
U.S. POSTAL SERVICE, DALLAS BULK MAIL
CENTER, Dallas, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 11-2083
Issued: May 24, 2012

Case Submitted on the Record

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

JURISDICTION
On September 23, 2011 appellant filed a timely appeal of an April 15, 2011 nonmerit
decision of the Office of Workers’ Compensation Programs (OWCP) denying further merit
review. Because over 180 days elapsed between the most recent merit decision of September 9,
2010 to the filing of this appeal, the Board lacks jurisdiction to review the merits of appellant’s
case, pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c)
and 501.3.
ISSUE
The issue is whether OWCP properly denied appellant’s request for reconsideration on
the merits pursuant to 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On December 17, 1986 appellant, then a 22-year-old casual clerk, filed a traumatic injury
claim alleging that he sustained a severe contusion to his left heel when a mail container over ran
his heel. OWCP accepted his claim for contusion of the Achilles tendon on the left, strain and
tarsal tunnel syndrome as well as peripheral autonomic neuropathy. Appellant underwent a
tarsal tunnel release on March 20, 1987. OWCP granted appellant a schedule award for six
percent impairment of his left lower extremity on August 15, 1988. Appellant underwent a
second tarsal tunnel release on September 9, 1988. He returned to modified work on
November 18, 1989. On November 19, 1990 OWCP granted appellant an additional schedule
award for 21 percent impairment of his left lower extremity.
Appellant was diagnosed with reflex sympathetic dystrophy (RSD) on April 20, 1990.
On November 26, 1991 a second opinion physician, Dr. William M. Osborne, a Board-certified
orthopedic surgeon, questioned the diagnosis of RSD. Dr. David R. Webb, Jr., the impartial
medical examiner Board-certified in orthopedic surgery, completed a report on January 27, 1992
and diagnosed RSD of the left lower extremity following two tarsal tunnel releases and a
questionable neuroma of the medial plantar nerve. He recommended approval of a pieces
implant. On April 27, 1992 appellant received surgical implantation of a pieces spinal cord
stimulator for treatment of RSD in his left leg authorized by OWCP. He underwent an
implantation of a electrode on May 4, 1993. On August 5, 1995 appellant had placement of an
epidural catheter for continuous epidural infusion and pain control due to RSD.
By decision dated February 17, 1999, OWCP reduced his compensation benefits to zero
finding that his actual earnings as a modified mail handler fairly and reasonably represented his
wage-earning capacity.
Dr. Nayan R. Patel, a physician Board-certified in physical medicine and rehabilitation,
examined appellant on January 7, 2003 and diagnosed chronic pain related to RSD of the left
foot. On June 4, 2003 he noted that appellant was experiencing right foot pain.
On September 28, 2003 appellant filed a notice of recurrence of disability alleging that on
March 25, 2003 his RSD symptoms increased in his left foot and ankle causally related to his
accepted employment injury of December 17, 1986 rendering him totally disabled.
Dr. Richard Eusenio, a podiatrist, completed a report on June 6, 2003 and diagnosed
complex regional pain syndrome type II and conversion reaction.
In a letter dated December 23, 2003, OWCP requested additional factual and medical
evidence in support of appellant’s claimed recurrence. It denied his claim by decision dated
January 23, 2004.
Appellant requested reconsideration on March 24, 2004 and submitted additional medical
evidence. In a note dated February 25, 2004, Dr. Patel stated that appellant did not have
significant objective changes in his examination which establish increased disability. He
recommended a functional capacity evaluation. On March 1, 2004 Dr. Eusenio again diagnosed
complex regional pain syndrome in both feet. He stated, “The exact etiology of this condition

2

has been well studied, but relatively little is known. Overt extensive trauma to part is not
necessary to develop this syndrome and the trauma to the right foot and ankle as a result of
favoring the already affected left limb is a reasonable cause of the same condition developing in
the overburdened right foot.”
OWCP denied modification of appellant’s claim by decision dated April 14, 2004.
Appellant again requested reconsideration on September 22, 2004. Dr. Pierre Herding, a
Board-certified neurologist, completed a report dated September 20, 2004 and stated that
appellant had a diagnosis of complex regional pain syndrome since 1986. He stated, “It has been
established that a complex regional pain syndrome, particularly if of long duration, may well
extend to involve the other limb, and it is the opinion of the undersigned that [appellant’s] right
foot pain precisely reflects this process.”
By decision dated December 15, 2004, OWCP denied modification of its prior decisions.
Appellant requested reconsideration on October 25, 2005. Dr. Michael Ellman, a
physician Board-certified in physical medicine and rehabilitation, examined appellant on
October 10, 2005 and noted his history of injury. He found that appellant had discoloration of
his feet bilaterally with some atrophic changes of his skin and nail changes bilaterally.
Dr. Ellman noted that appellant’s extremities were cool with mild edema. He diagnosed
complex regional pain syndrome involving the bilateral lower extremities. Dr. Ellman stated that
this condition initially started in the left lower extremity and had spread to the right side. He
stated, “This is a natural process of this disease and certainly, it is well known that complex
regional pain syndrome can spread from one leg to another.” OWCP declined to modify the
prior decisions on January 3, 2006.
Appellant requested reconsideration on July 26, 2006. On February 22, 2006 Dr. Patel
stated that complex regional pain syndrome was the name currently used in place of RSD. He
stated that the change in diagnosis was a change in semantics and that appellant continued to
exhibit the same pathology. Appellant submitted a report dated May 23, 2006 diagnosing
hyperesthesia with intractable pain with post-traumatic regional pain syndrome in both feet
which is worsening.2
In a note dated March 30, 2006, Dr. Ellman stated that appellant was disabled due to
complex regional pain syndrome in his right extremity. He reported that appellant had
significant pain and trouble walking and sleeping.
By decision dated March 16, 2007, OWCP reviewed the merits of appellant’s claim and
denied modification of its prior decisions.
Appellant requested reconsideration on August 7, 2007 and submitted a note dated
April 23, 2007 from Dr. Eusenio. By decision dated May 28, 2008, OWCP denied modification
of its prior decisions.

2

The physician’s signature is illegible.

3

Appellant requested reconsideration on March 10, 2009. Dr. Herding completed a note
dated March 11, 2009 and stated that appellant had a history of complex regional pain syndrome
type II which was formally known as RSD in his left foot. He noted that appellant had pain and
allodynia in his right foot. Dr. Herding stated, “It has been established that a complex regional
pain syndrome, particularly if of long duration, may well extend to involve the other limb, and it
is the opinion of the undersigned that [appellant’s] right foot pain precisely reflects this process.”
In a note dated December 30, 2008, Dr. Patel stated that appellant’s current condition was
related to his accepted employment injury on December 17, 1986 which resulted when a large
container of mail ran over his feet. He noted appellant’s history of medical treatment. Dr. Patel
stated that appellant still continues to complain of similar pain that he experienced in conjunction
with the original injury. He stated, “[S]o basically the main cause of relationship is the
documentation of the original injury in 1986 and continued pain in the same areas that it has
always been in his lower extremities with failure of the treatments documented previously.”
By decision dated March 10, 2010, OWCP denied modification of its prior decisions. It
reissued this decision on September 9, 2010. OWCP stated, “You claim that you now have a
right ankle/foot condition due to the traumatic injury in 1986. There is no objective evidence in
the case file records to support your right ankle/foot condition. Diagnostic testing has been done,
but copies have not been provided to this office for review.”
On February 27, 2011 appellant requested reconsideration. In support of this claim, he
resubmitted Dr. Herding’s September 20, 2004 report. Appellant submitted a note dated
March 11, 2009 from Dr. Herding stating that complex regional pain syndrome was formerly
termed RSD. He submitted a portion of a report dated May 19, 2003 from Dr. Herding listing
his history of injury and increasing right foot pain. Appellant submitted a May 19, 2003 nerve
conduction study of the right foot conducted by Dr. Herding which was normal. The report
stated that appellant was hypersensitive to palpation of the medial aspect of his right foot and
diagnosed complex regional pain syndrome type II. Appellant resubmitted a duty status report
from Dr. Patel dated June 4, 2003 diagnosing RSD.
By decision dated April 15, 2011, OWCP declined to reopen appellant’s claim for
reconsideration of the merits on the grounds that the evidence submitted was not relevant and
pertinent new evidence which was not previously considered by OWCP.3
LEGAL PRECEDENT
FECA provides in section 8128(a) that OWCP may review an award for or against
payment of compensation at any time on its own motion or on application by the claimant.4
Section 10.606(b) of the Code of Federal Regulations provide that a claimant may obtain review
of the merits of the claim by submitting in writing an application for reconsideration which sets
forth arguments or evidence and shows that OWCP erroneously applied or interpreted a specific
3

The Board notes that the record contains no factual or medical evidence from December 17, 2001 through
June 10, 2002
4

5 U.S.C. §§ 8101-8193, 8128(a).

4

point of law; or advances a relevant legal argument not previously considered by OWCP; or
includes relevant and pertinent new evidence not previously considered by OWCP.5 Section
10.608 of OWCP’s regulations provide that, when a request for reconsideration is timely, but
does meet at least one of these three requirements, OWCP will deny the application for review
without reopening the case for a review on the merits.6
The Board has held that the submission of evidence which repeats or duplicates evidence
already in the case record does not constitute a basis for reopening a case. The Board has also
held that the submission of evidence which does not address the particular issue involved does
not constitute a basis for reopening a case. While the reopening of a case may be predicated
solely on a legal premise not previously considered, such reopening is not required where the
legal contention does not have a reasonable color of validity.7
ANALYSIS
The only issue before the Board on appeal is whether OWCP properly declined to review
the merits of appellant’s claim. The Board does not have jurisdiction to consider whether
appellant has met his burden of proof to establish left RSD, a recurrence of disability on
March 25, 2003 or whether OWCP has properly addressed whether appellant developed a
consequential injury of the right foot as a result of his accepted left foot conditions of contusion
of the Achilles tendon on the left, strain and tarsal tunnel syndrome as well as peripheral
autonomic neuropathy on the left.
In support of his February 27, 2011 request for reconsideration, appellant resubmitted
Dr. Herding’s September 20, 2004 report and a duty status report from Dr. Patel dated June 4,
2003 diagnosing RSD. As OWCP had previously considered these reports in reaching a final
decision, these reports are not sufficient to require OWCP to reopen appellant’s claim for
consideration of the merits.
Appellant submitted a note dated March 11, 2009 from Dr. Herding stating that complex
regional pain syndrome was formerly termed RSD. The Board finds that this note does not
present relevant and pertinent new evidence not previously considered by OWCP. Dr. Herding
completed a note on March 11, 2009 which contained this information. This note was
considered by OWCP in reaching the September 9, 2010 merit decision.
Appellant also provided a portion of a report dated May 19, 2003 from Dr. Herding
listing his history of injury and increasing right foot pain and a nerve conduction study of the
right foot conducted by Dr. Herding which was normal, but stated that appellant was
hypersensitive to palpation of the medial aspect of his right foot. Dr. Herding diagnosed
complex regional pain syndrome type II. The Board finds that these documents are not
previously included in the record and that the nerve conduction study was submitted in response
5

20 C.F.R. § 10.606.

6

Id. at § 10.608.

7

M.E. 58 ECAB 694 (2007).

5

to the statement by OWCP in the September 9, 2010 decision, that appellant had not submitted
copies of diagnostic testing. As the evidence was submitted in response to OWCP’s directive,
appellant advanced relevant and pertinent new evidence not previously considered by OWCP
such that OWCP was obliged to conduct a merit review.8 On remand, OWCP shall conduct a
merit review and following any necessary development, issue an appropriate merit decision.
CONCLUSION
The Board finds that appellant submitted pertinent new and relevant evidence requiring
OWCP to reopen appellant’s claim for consideration of the merits. Thus, OWCP abused its
discretion in declining to conduct a merit review.
ORDER
IT IS HEREBY ORDERED THAT the decision of Office of Workers’ Compensation
Programs dated April 15, 2011 is set aside and remanded for further development consistent with
this decision of the Board.
Issued: May 24, 2012
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8

See John Reese, 49 ECAB 397 (1998) (finding that, when the evidence submitted by appellant was in response
to OWCP’s directive, OWCP was obliged to conduct a merit review).

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.A., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Phoenix, AZ, Employer
__________________________________________

)
)
)
)
)
)
)
)

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

Docket No. 13-634
Issued: September 25, 2013

Case Submitted on the Record

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

JURISDICTION
On January 22, 2013 appellant, through her representative, filed a timely appeal from a
December 19, 2012 decision of the Office of Workers’ Compensation Programs (OWCP)
denying her disability claim. Pursuant to the Federal Employees’ Compensation Act1 (FECA)
and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of the case.
ISSUE
The issue is whether appellant is entitled to compensation for wage loss for intermittent
periods of disability between August 1, 2009 and April 30, 2011, causally related to her
employment injuries.
On appeal, appellant, through counsel, contends that OWCP’s decision is contrary to fact
and law.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 7, 2007 appellant, then a 55-year-old custodian, filed an occupational disease
claim alleging tendinitis and a tear of her right rotator cuff as a result of her federal duties. In an
attached
statement,
she
listed
prior
compensation
claims.
Starting
in
October 2006,appellant’sright shoulder pain began to worsen when she worked the flat sorting
machine custodial route. She dumped trash and swept over mats. On February 24, 2009 OWCP
accepted appellant’s claim for right rotator cuff tear and aggravation of right shoulder
degenerative joint disease.
On May 15, 2009 appellant underwent an arthroscopic subacromial decompression, distal
clavicle resection, partial synovectomy and labral debridement; and open biceps tenodesis. On
August 8, 2009 she accepted a full-time assignment at the employing establishment as a
modified custodian. The physical requirements of the positionincluded no lifting, reaching or
pushing/pulling over two pounds with appellant’s right arm. On February 17, 2010 appellant
returned to full-duty work with no restrictions.
Appellant received treatment from Drs. Charles P. Dries, Daniel S. Choi and Kerry J.
Ando from February 22 through August 31, 2010. Each physician is Board-certified in
anesthesiology and pain medicine. Appellant was diagnosed with uncontrolled right shoulder
pain with a previous history of anxiety, cervical spinal stenosis, degenerative disc disease,
headache and myalgia. Shereceived medication, physical therapy and injections.
In a June 8, 2010 report, Dr. Jacek Sobczak, a Board-certified neurologist, noted that
appellant had moderate-to-severe pain located in the right shoulder radiating up from the lower
shoulder angle to the right clavicle and neck. He listed his impression as right arm and shoulder
pain and paresthesia likely secondary to a local musculoskeletal problem. On June 22, 2010
Dr. Sobczak interpreted appellant’s diagnostic tests as normal with no electrical evidence of
radiculopathy, nerve injury, plexopathy, myopathy or peripheral polyneuropathy.
In a July 22, 2010 report, Dr. Christopher C. Meredith, a Board-certified neurosurgeon,
advised that appellantcould return to work on July 22, 2010 with restrictionsof no lifting over
five pounds and no working more than five hours a day per week.
Appellant returned to full-duty work on October 4, 2010.
In an October 25, 2010 report, Dr. Wendi Lundquist, an osteopath, assessed appellant
with cervical spondylosis without myelopathy, cervicobrachial syndrome (diffuse), pain in joint,
shoulder region and pain medication use. She treated appellant for neck strain/sprain and
prescribed medication.In a November 3, 2010 report, Dr. Lundquist recommended that appellant
start work conditioning for two weeks before reentering part-time work and diagnosed neck
strain and shoulder pain. On December 8, 2010shenoted that appellant had been working most
days, but that on at least one occasion she was in too much pain and unable to work. On
January 12, 2011Dr. Lundquistrecommended that appellant return to work fulltime without
limitation. In a February 22, 2011 note responding to questions from OWCP,she stated that
appellant was now seeing another physician, that she was not the primary treating physician and
that it was her impression that appellant can work.

2

In a December 16, 2010 report, Dr. Brent Hansen, a treating osteopath, foundthat
appellanthad reached maximum medical improvement regarding her right shoulder exceptfor
headaches due to shoulder pain. He opined that there was a relationship between her neck and
the shoulder in this regard and that the injury initially could have had a combined affect both
upon the shoulder and on the neck. Dr. Hansen recommended treatment from a different
specialist for neck, but noted that appellantwasorthopedically stable as to her shoulder. He
opined that to a degree of certainty medical herneck problems stemmed from the same injury,
which was associated with her shoulder.
In medical reports dated February 18and April 19, 2011, Dr. James L. Beach, an
osteopath, stated that appellant had permanent disability from a shoulder injury which caused
pain and a limited range of motion. Appellant also had a complicating factor of osteoarthritis of
the cervical spine with muscle spasm pain in the cervical and thoracic spine and parevertebral
muscle area and muscle contraction headaches. These conditions limit herupper extremity and
spine motions and strength. Dr. Beach noted that appellant had attempted to control her
conditions through therapy and they were considered permanent. He stated that she would not
have the cervical spine problemsorheadaches if there had been no shoulder injury.
In a September 2, 2010 note, Dr. Meredith indicated that appellant was unable to work
until October 3, 2010 due to neck and back pain. He noted that she may return to work on
October 4, 2010 and may resume regular work/activity after.
Appellant submitted claims for compensation for intermittent periods of disability from
August 1, 2009 through April 30, 2011.
On December 4, 2010 OWCP made another offer for limited-duty modified assignment
for four hours a day doing custodial work.
By decision dated September 29, 2011, OWCP paid appellant for 111.75 hours between
September 29, 2009 and March 24, 2011 for medical and physical therapy appointments. It
denied her claim of 1,342.43 hours of leave without pay for intermittent periods of disability
between August 1, 2009 and April 30, 2011.
By letter dated October 12, 2011, appellant requested a hearing before an OWCP hearing
representative that was held on February 15, 2012. Shetestified that she never put in time for
therapy appointments as she worked night. Counsel indicated that appellant would file a
supplemental statement with regard to how the hours claimed broke down and submit further
evidence. The record remained open for 30 days after the conclusion of the hearing, but no
additional evidence was received.
By decision dated May 9, 2012,the hearing representative affirmed the decision of
September 29, 2011.
By letter dated May 18, 2012, appellant, through counsel, requested reconsideration.
By letter dated April 19, 2012, Dr. Beach listed certain dates and indicated by “yes” or
“no” whether he believed that appellant was medically justified to miss all or part of the day due
to problems related to her injuries of April 19, 2007. He listed the following dates as “no”:
3

August 1 and 9, September 1 and December 1, 2009; and July 1, 2, 3, 8, 9, 10, 11, 12, 15, 16, 17,
18, 19 and 31; and August 1, 2, 5 through 9, 2010. Dr. Beach indicated with a “yes” that
appellant did miss work for medical reasons related to her accepted injury on September 29,
October 24, November 7, 8, 9, 13 and 20 and December 12 and 18, 2009; January 8 and 17;
April 3, 8, 10, 11, 12, 15, 16, 17, 18, 19, 24, 25, 26 and 29; May 1, 2, 3, 6, 7, 9, 10, 13,14, 15, 20,
21, 22, 23, 27, 28 and 29; June 10, 11, 12, 18, 19, 20, 21, 25, 26, 27 and 28; August 13 through
17, 20 through 23 and 26 through 30; September 2 through 6, 13, 16 through 18; October 4, 7
through 11, 14 through 18, 21 through 25, 28 through 31, 2010; November 1, 4 through 8, 11
through 15, 18 through 22, 26 through 29, December 1 through 6, 9 through 13, 16 through 20,
23, 24, 26, 27, 30, 31, 2010; January 2, 3, 6 through 19, 13 through16, 20 through 24 and 27
through 31; February 3 through 7, 10 through 14, 17 through 20 and 25 and 28; March 3 through
4, 10 through 14, 17 through 21, 24 through 28 and 31; April 1 through 4, 7 through 11, 17, 18,
21 through 25 and 28 through 30, 2011. He stated that the “yes dates” were justified by chart
notes, allowing for reasonable time on either side of an office visit as well as using the daily
disabilities suffered by appellant.
Appellant also submitted chiropractic notes dated March 4through June 24, 2011.
Dr. Daniel E. Brunkhorst noted joint dysfunction. He listed signs of subluxation with
concomitant spastic and tender musculatures located in the upper thoracic region bilaterally.
By decision dated December 19, 2012, OWCP denied modification of the May 9, 2012
decision.
LEGAL PRECEDENT
An employee seeking benefits under FECA has the burden of proof to establish the
essential elements of his or her claim by the weight of the evidence.2 For each period of
disability claimed, the employee has the burden of burden of establishing that he or she was
disabled for work as a result of the accepted employment injury.3 Whether a particular injury
causes an employee to become disabled for work and the duration of that disability, are medical
issues that must be proved by a preponderance of probative and reliable medical opinion
evidence.4
Under FECA the term disability means incapacity, because of an employment injury, to
earn the wages that the employee was receiving at the time of injury.5 Disability is, thus, not
synonymous with physical impairment which may or may not result in an incapacity to earn
wages.6 An employee who has a physical impairment causally related to his or her federal
2

See Amelia S. Jefferson, 57 ECAB 183 (2005).

3

Id.

4

See Edward H. Horton, 41 ECAB 301 (1989).

5

S.M., 58 ECAB 166 (2006); Bobbie F. Cowart, 55 ECAB 745 (2004); Conard Hightower, 54 ECAB 796 (2003);
20 C.F.R. § 10.5(f).
6

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

4

employment, but who nonetheless has the capacity to earn the wages he or she was receiving at
the time of injury, has no disability and is not entitled to compensation for loss of wage-earning
capacity.7 When, however, the medical evidence establishes that the residuals or sequelae of an
employment injury are such that, from a medical standpoint, they prevent the employee from
continuing in his or her employment, he or she is entitled to compensation for any loss of wages.
To meet this burden, a claimant must submit rationalized medical opinion evidence based
on a complete factual and medical background supporting such a causal relationship.
Rationalized medical opinion evidence is medical evidence which includes a physician’s opinion
on the issue of whether there is a causal relationship between the claimant’s diagnosed condition
and the implicated employment factor(s).8 The opinion of the physician must be based on a
complete factual and medical background, must be one of reasonable medical certainty and must
be supported by medical rationale explaining the nature of the relationship between the
diagnosed condition and the specific employment factors identified by the claimant.9
The Board will not require OWCP to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so, would essentially allow an employee to self-certify their disability and
entitlement to compensation.10
An injured employee may also be entitled to compensation for lost wages incurred while
obtaining authorized medical services.11 This includes the actual time spent obtaining the
medical services and a reasonable time spent traveling to and from the medical provider’s
location.12 As a matter of practice, OWCP generally limits the amount of compensation to four
hours with respect to routine medical appointments.13 However, longer periods of time may be
allowed when required by the nature of the medical procedure and/or the need to travel a
substantial distance to obtain the medical care.14

7

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

8

A.D., 58 ECAB 149 (2006).

9

Ruby I. Fish, 46 ECAB 291 (2001); Judith A. Peot, 46 ECAB 1036 (1995).

10

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

11

See 5 U.S.C. § 8103(a); Gayle L. Jackson,57 ECABA 546-48 (2006).

12

Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16a
(December 1995).
13

Federal (FECA) Procedure manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8
(November 1998).
14

Id.

5

ANALYSIS
The Board finds that appellant failed to meet her burden of proof to establish intermittent
periods of disability between August 1, 2009 and April 30, 2011 causally related to factors of her
employment injuries.
Appellant was treated from February 22 through August 31, 2010 for uncontrolled
shoulder pain;but her physicians never indicated that she could not work. Dr. Sobczak, who saw
her in June 2010, noted that she had moderate-to-severe pain located in her right shoulder and
radiating up from her lower shoulder to the right clavicle and neck. However,he did not list any
specific period of disability. Dr. Meredith indicated that appellant could return to work on
July 22, 2010 with restrictions, but did not provide any opinion addressing partial or total
disability. He indicated in a September 2, 2010 note that she was unable to work until October 3,
2010 due to neck and back pain, but could resume regular work activity thereafter. Dr. Meredith
did not provide a well-rationalized opinion as to the reasons appellant was unable to work.
Dr. Lunquist treated appellant from October 25, 2010 through January 12, 2011, at which point
she returned appellant to work with no limitations. While noting some issues with regard to
work, appellant was found able to work most days but, on occasion, was unable to work.
Dr. Lunquist did not provide any specific dates of disability. Dr. Hansen discussed appellant’s
neck shoulder conditions, but did not address any periods of disability. In the medical reports
dated February 18 and April 19, 2011, Dr. Beach indicated that she had permanent disability
from a shoulder injury. However, he did not explain how the shoulder injury prohibited
appellant from work on the specific dates claimed.
On reconsideration, appellant submitted an April 19, 2012 letter wherein Dr. Beach listed
numerous dates and wrote by certain dates “no” to indicate that he could not medically justify
her missing all or part of a day due to the problems related to the April 19, 2007 injury.
Dr. Beach also indicated by a “yes” certain dates wherein he believed that she should be allotted
disability either for an office visit or daily disability suffered by her. He indicated that the “yes”
dates were justified by chart notes, allowing for reasonable time on either side of an office visit
as well as using the daily disabilities suffered by appellant. However, Dr. Beach does not
explain why she was disabled on the particular dates or for what periods or the relationship
between the disability and her employment injuries. He does not explain if the disability was for
the full day or a partial day. Dr. Beach does not explain why appellant was unable to perform
the duties of her employment assignment nor does he make any determination that is supported
by rationalized medical evidence. Briefly, checking certain dates as “yes” and others as “no”
does not amount to a rationalized medical opinion.
As defined by FECA, a physician includes a chiropractor only to the extent that his
reimburseable services are limited to treatment consisting of manual manipulation of the spine to
correct a subluxation as demonstrated by x-ray to exist.15 If the accepted condition does not
pertain to a diagnosis of subluxation, a chiropractor is not a physician under FECA and his
opinion does not constitute competent medical evidence.16 Although Dr. Brunkhorst noted that
15

5 U.S.C. § 8101(2); Merton J. Sills, 39 ECAB 572, 575 (1988).

16

B.D., Docket No. 13-457 (issued May 2, 2013).

6

appellant had a subluxation, it was not diagnosed by x-ray. Accordingly, his reports are not
treated as medical evidence under FECA.
Appellant has not submitted a well-reasoned medical opinion explaining how her claimed
periods of disability are causally related to her accepted condition. The Board finds that she has
not met her burden of proof to establish that her disability is causally related to her accepted
conditions.
Appellant may submit new evidence or argument with a written request for
reconsideration within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20
C.F.R.§§10.605 through 10.607.
CONCLUSION
The Board finds that appellant has not established that she is entitled to compensation for
wage loss for intermittent periods of disability between August 1, 2009 through April 30, 2011,
causally related to her employment injuries.
ORDER
IT IS HEREBY ORDERED THATthe decision of the Office of Workers’
Compensation Programs dated December 19, 2012 is affirmed.
Issued: September 25, 2013
Washington, DC

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

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

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

7


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.M., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND, NORFOLK NAVAL
AIRSTATION, Norfolk, VA, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 10-242
Issued: October 5, 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 2, 2009 appellant filed a timely appeal from a September 23, 2009 merit
decision of the Office of Workers’ Compensation Programs that affirmed an April 15, 2009
merit decision. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant established that she sustained a recurrence of total
disability on or after January 2008 causally related to her accepted 2006 left shoulder
employment injury.
FACTUAL HISTORY
On May 14, 2006 appellant, a 60-year-old ordinary seaman, sustained a left shoulder
injury after losing her footing while descending a ladder. She grabbed a railing to prevent
herself from falling. On July 16, 2008 the Office accepted her claim for left shoulder and upper

arm sprain, unspecified disorder of the left shoulder bursae and tendons, and nonspecific sprain
and strain of the left shoulder and upper arm.
Appellant submitted a December 3, 2008 report from the employing establishment health
unit. The treating physician diagnosed neck and finger pain. On January 30, 2008 the physician
diagnosed a traumatic cyst in appellant’s right thumb as well as right shoulder impingement.
The treating physician declared appellant unfit for duty. Appellant also submitted a report
signed by a physical therapist.
On January 23, 2008 appellant filed a compensation claim for leave without pay (LWOP)
for unspecified dates in February through April 2008.1 She noted that the wage-loss
compensation sought was attributable to, among other issues, “loss of hotel lodging,” “loss …
[of] basic pay.” This form was received by the Office on February 9, 2009.
In a report dated July 18, 2008, Dr. Lydia M. Grypma, a Board-certified internist, noted
that appellant had been treated in December 2006 for left shoulder strain, but was seen again in
January 2008 for a right shoulder strain. She advised that appellant’s left shoulder “remains
well” and explained that appellant had no restrictions of the right shoulder. Dr. Grypma
presented findings on examination and diagnosed osteoarthritis of appellant’s left knee which she
opined was not caused by her employment duties. She reported that appellant’s knee strain had
resolved. Dr. Grypma released appellant to full duty without restrictions.
On February 12, 2009 the Office notified appellant that her compensation claim was one
for a recurrence of disability. It advised her that she needed to submit additional factual and
medical evidence supporting her claim and provided guidance concerning the evidence required.
Appellant did not submit any additional evidence.
In a decision dated April 15, 2009, the Office denied appellant’s claim, finding that the
evidence of record did not demonstrate that her disability for the period claimed was causally
related to her accepted left shoulder injury.
On April 19, 2009 appellant, through her attorney, requested an oral hearing.
During the hearing held on July 24, 2009, appellant and her attorney were present. She
provided testimony concerning her history of injury, employment duties and other claims.2 On
September 23, 2009 the Office affirmed the denied of the claim.

1

It appears that the form may have been completed on January 23, 2009, rather than 2008.

2

Under claim File No. xxxxxx981, the Office accepted appellant’s claim for a right thumb injury sustained on
October 25, 2007. This claim was administratively closed with no time lost from work. Under claim File No.
xxxxxx726, appellant claimed compensation for a right shoulder injury she sustained on December 28, 2007. By
decision dated July 22, 2009, the Office denied the claim. Finally, under claim File No. xxxxxx399, appellant
claimed compensation for a left knee meniscal tear she sustained on January 9, 2008. By decision dated October 6,
2008, the Office denied the claim.

2

LEGAL PRECEDENT
Under the Federal Employees’ Compensation Act,3 the term disability is defined as an
inability, due to an employment injury, to earn the wages the employee was receiving at the time
of the injury, i.e., an impairment resulting in loss of wage-earning capacity.4 For each period of
disability claimed, the employee has the burden of establishing that he or she was disabled for
work as a result of the accepted employment injury.5 Whether a particular injury causes an
employee to become disabled for work and the duration of that disability are medical issues that
must be proved by a preponderance of probative and reliable medical opinion evidence.6 The
fact that a condition manifests itself during a period of employment does not raise an inference
that there is a causal relationship between the two.7
The Board will not require the Office to pay compensation for disability in the absence of
medical evidence directly addressing the specific dates of disability for which compensation is
claimed. To do so would essentially allow an employee to self-certify his disability and
entitlement to compensation.8
In order to be entitled to reimbursement for medical expenses, a claimant must establish
the expenditures were incurred for treatment of the effects of an employment-related injury.9
Proof of causal relation in a case such as this must include supporting rationalized medical
evidence.10 Therefore, in order to prove that physical therapy is warranted, appellant must
submit evidence to show that the physical therapy is for a condition causally related to the
employment injury and that the physical therapy is medically warranted. Both of these criteria
must be met in order for the Office to authorize payment.11

3

5 U.S.C. §§ 8101-8193.

4

See S.F., 59 ECAB ___ (Docket No. 08-426, issued July 16, 2008); Prince E. Wallace, 52 ECAB 357 (2001).

5

Sandra D. Pruitt, 57 ECAB 126 (2005); Dennis J. Balogh, 52 ECAB 232 (2001).

6

G.T., 59 ECAB ___ (Docket No. 07-1345, issued April 11, 2008); Gary J. Watling, 52 ECAB 278 (2001).

7

D.I., 59 ECAB ___ (Docket No. 07-1534, issued November 6, 2007); Manuel Garcia, 37 ECAB 767 (1986).

8

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

9

See 5 U.S.C. § 8103(a) (the United States shall furnish to an employee who is injured while in the performance
of duty the services, appliances and supplies, prescribed or recommended by a qualified physician, that the Office
considers likely to cure, give relief, reduce the degree or the period of disability or aid in lessening the amount of
any monthly compensation). To be entitled to reimbursement of medical expenses, however, the employee must
establish that the expenditures were incurred for treatment of the effects of an employment-related injury. Proof of
causal relation must include supportive rationalized medical evidence. Carolyn F. Allen, 47 ECAB 240 (1995).
Federal (FECA) Procedure Manual, Part 3 -- Medical, Medical Services and Supplies, Chapter 3.400.3(d)
(September 1995).
10

See Debra S. King, 44 ECAB 203 (1992); Bertha L. Arnold, 38 ECAB 282 (1986).

11

Carolyn F. Allen, supra note 9.

3

ANALYSIS
The Office accepted appellant’s claim for left shoulder and upper arm sprain, unspecified
disorder of the left shoulder bursae and tendons, and nonspecific sprain and strain of the left
shoulder and upper arm. The issue is whether her alleged total disability for work from
February 2008 through April 2008 was causally related to her accepted injury. This is a medical
issue that can only be established by probative medical opinion evidence. The Board finds that
the medical evidence of record is insufficient to establish causal relationship; therefore, appellant
has not established that she sustained a recurrence of total disability causally related to her
accepted employment injury.
The relevant medical evidence of record consists of medical reports from the employing
establishment’s health unit and Dr. Grypma’s July 18, 2008 reports. While Dr. Grypma noted
that following appellant’s 2006 employment injury she had been treated for left shoulder strain,
the examination performed in 2008 related to a right shoulder strain. She offered no opinion
regarding the cause of appellant’s 2008 right shoulder strain, but noted only that the condition
was not causing any limitation or restriction when appellant was examined on July 18, 2008.
Dr. Grypma also diagnosed neck and finger pain, a traumatic cyst in appellant’s right thumb and
nonindustrial osteoarthritis of her left knee. The Office has not accepted appellant’s claims for
these conditions. The medical evidence of record does not explain how any of these conditions
were causally related to appellant’s accepted left shoulder injury. This evidence is not sufficient
to establish disability commencing in January 2008 due to the May 14, 2006 injury.
Appellant submitted a report signed by a physical therapist. Because healthcare
providers such as physician assistants or physical therapists are not physicians as defined under
the Act, their reports do not constitute probative medical evidence.12 This evidence does not
establish a causal relationship between the established employment incident or the accepted
employment injuries and appellant’s alleged condition.
The Board notes that the medical evidence does not establish disability from work
commencing January 2008 due to the accepted conditions. A treating physician at the employing
establishment’s heath unit declared appellant unfit for duty on January 30, 2008, but the
conditions diagnosed involved appellant’s right shoulder and thumb, neither accepted as
employment related. The Office accepted appellant’s left shoulder and upper arm injury, not her
right shoulder claim.
CONCLUSION
The Board finds appellant has not established that she sustained a recurrence of total
disability commencing January 2008 causally related to her accepted injury of May 19, 2006.

12

5 U.S.C. § 8101(2); see also G.G., 58 ECAB 389 (2007); Jerre R. Rinehart, 45 ECAB 518 (1994); Barbara J.
Williams, 40 ECAB 649 (1989); Jan A. White, 34 ECAB 515 (1983).

4

ORDER
IT IS HEREBY ORDERED THAT the September 23, 2009 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: October 5, 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
__________________________________________
S.H., Appellant
and
DEPARTMENT OF LABOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Dallas, TX, Employer
__________________________________________

)
)
)
)
)
)
)
)
)

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

Docket No. 17-0990
Issued: June 12, 2018

Case Submitted on the Record

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

JURISDICTION
On April 5, 2017 appellant filed a timely appeal from a March 13, 2017 merit decision of
the Office of Workers’ Compensation Programs (OWCP). Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over
the merits of this case.
ISSUE
The issue is whether OWCP met its burden of proof to reduce appellant’s compensation
benefits on March 14, 2017 based on her capacity to earn wages in the constructed position of
customer complaint clerk.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
This case has previously been before the Board.2 The facts and circumstances as set forth
in the Board’s prior decisions are incorporated herein by reference. The facts relevant to this
appeal are set forth below.
On September 14, 2000 appellant, then a 40-year-old claims examiner, filed an
occupational disease claim alleging that she sustained bilateral carpal tunnel syndrome due to her
repetitive work duties. OWCP accepted the claim for bilateral carpal tunnel syndrome and paid
wage-loss compensation benefits. Appellant stopped work on March 6, 2001. On April 24, 2001
she was released to return to work four hours per day with restrictions; and on May 7, 2001 she
was released to work eight hours per day with restrictions.3 This matter was developed under
OWCP File No. xxxxxx040.
On March 14, 2002 appellant filed an occupational disease claim for depression. She
attributed her depression to being forced to work outside of her medical restrictions and being
unable to meet her performance standards. OWCP developed this under File No. xxxxxx176. At
the time appellant filed her claim, she was performing a modified position as a result of previous
work-related injuries in File No. xxxxxx040.4 On May 10, 2005 OWCP accepted the claim for
depressive disorder.5 It administratively combined File Nos. xxxxxx040 and xxxxxx176.6

2

Docket No. 02-0127 (issued August 2, 2002); Docket No. 03-1447 (issued December 4, 2003); Docket No. 031592 (issued August 13, 2004); Docket No. 04-1197 (issued April 13, 2005); 05-1623 (issued April 3, 2006); 05-1722
(issued July 11, 2006); 06-1309 & 06-1153 (issued June 14, 2007); 08-1043 (issued April 8, 2009).
3
In an August 2, 2002 decision, the Board reversed OWCP decisions dated May 29 and July 13, 2001 that
suspended appellant’s compensation benefits for failure to participate in vocational rehabilitation. Docket No.
02-0127 (issued August 2, 2002). In an August 13, 2004 decision, the Board found that OWCP did not meet its burden
of proof to terminate compensation benefits and reinstated her compensation. Docket No. 03-1592 (issued
August 13, 2004).
4

By decisions dated May 7 and December 9, 2002, OWCP denied appellant’s claim for an emotional condition.
Appellant appealed her claim to the Board. In a December 4, 2003 decision, the Board remanded the case for further
development of the medical evidence; see Docket No. 03-1447 (issued December 4, 2003). In an April 13, 2005
decision, the Board reversed an OWCP decision dated March 10, 2004 finding that appellant met her burden of proof
to establish that she sustained an emotional condition in the performance of duty. The Board remanded the case to
OWCP for a determination of the nature and extent of any disability causally related to the accepted emotional
condition. See Docket No. 04-1197 (issued April 13, 2005). See also Docket No. 05-1722 (issued July 11, 2006).
5

In an April 3, 2006 decision, the Board affirmed an OWCP decision dated June 27, 2005, finding that the evidence
submitted did not support expanding appellant’s emotional condition claim to include diagnoses of anxiety and
multiple phobias. Docket No. 05-1623 (issued April 3, 2006).
6

By decision dated June 14, 2007, the Board reversed an OWCP decision dated May 19, 2006 finding that OWCP
did not meet its burden of proof to terminate appellant’s compensation benefits for her accepted bilateral carpal tunnel
syndrome and emotional condition. Docket Nos. 06-1309 & 06-1153 (issued June 14, 2007). On January 25, 2008
OWCP terminated appellant’s wage-loss compensation benefits, effective February 16, 2008, for her bilateral carpal
tunnel syndrome. On April 8, 2009 the Board reversed the January 25, 2008 termination decision. Docket No.
08-1043 (issued April 8, 2009).

2

On August 24, 2004 appellant filed a claim for an occupational disease (Form CA-2)
alleging that she developed bilateral cubital tunnel syndrome, neck, bilateral shoulder, and low
back pain as a result of performing repetitive duties. OWCP assigned this matter File No.
xxxxxx374, and later combined that claim with File Nos. xxxxxx040 and xxxxxx176.7
On June 24, 2009 appellant was referred for vocational rehabilitation. In a vocational
rehabilitation report dated July 31, 2009, the counselor noted that the employing establishment
requested updated medical restrictions before offering appellant a job noting that the most recent
medical report from Dr. Olayinka Ogunro, a Board-certified orthopedic surgeon, was from 2007.
The employing establishment requested a functional capacity evaluation (FCE).
On August 24, 2009 appellant underwent an FCE which demonstrated symptom
magnification. The evaluator noted that appellant was able to function at a light physical level,
sedentary, for four hours a day with five-minute breaks to perform stretching exercises.
In a letter dated October 1, 2009, appellant indicated that she obtained a Texas realtor
license in June 2004 and continued to keep her license current. She further indicated that in
June 2006 she completed her bachelor’s degree in general studies.
In a vocational rehabilitation status report dated October 2, 2009, the counselor noted that
appellant’s case was placed in interrupted status as appellant was being sent out for a second
opinion evaluation.8
Appellant was treated by Dr. Ogunro on December 5, 2011 and January 10, 2012, for
numbness and tingling in both palms, locking in her right index finger, and weakness in grasping.
Dr. Ogunro related appellant’s history and diagnosed bilateral carpal tunnel syndrome, left cubital
tunnel syndrome, possible ligament tear of the right wrist, and tendinitis of the beak ligament of
the right thumb. He noted her work status was unknown. On February 14, 2013 Dr. Ogunro noted
nerve conduction velocity testing revealed bilateral carpal tunnel syndrome. Appellant did not
want surgery, but had a cortisone injection into the left carpal tunnel. In an October 7, 2013 report,
Dr. Ogunro related appellant’s history and provided findings. Appellant’s carpal tunnel symptoms
remained active and developed while working as a claims examiner with constant keying
throughout the day. Dr. Ogunro indicated that appellant was able to work eight hours a day with
keying limited to four hours a day. In a separate October 7, 2013 report, he diagnosed bilateral
carpal tunnel syndrome and advised that appellant had not worked since September 5, 2001, but
could resume regular duty with typing restricted to four hours a day. On December 10, 2014
Dr. Ogunro noted a positive Phalen’s sign bilaterally, negative Tinel’s sign, and negative elbow
flexion test. He diagnosed bilateral carpal tunnel syndrome and continued conservative treatment.

7

By decision dated July 11, 2006, the Board affirmed an OWCP decision dated August 3, 2005 finding that
appellant failed to establish that the claimed medical conditions: bilateral cubital tunnel syndrome, neck shoulder,
foot, leg and lower back conditions were caused or aggravated by her federal employment work duties. See Docket
No. 05-1722 (issued July 11, 2006).
8

Thereafter, in the course of developing the claim, OWCP referred appellant to several second opinion physicians
and also to an impartial medical examiner regarding the extent of her condition.

3

Dr. Ogunro again advised that appellant had not worked since September 5, 2001, but could
resume regular duty with typing limited to four hours a day.
On April 15, 2015 appellant was again referred for vocational rehabilitation. She
underwent a vocational evaluation on May 22, 2015 which revealed she was capable of working
at “skilled to technical level.” Appellant could perform some keyboarding, voice recognition
software could improve her ability to type reports, and she would benefit from computer skills and
claims processing training.
In a July 29, 2015 rehabilitation plan, the counselor noted that the employing establishment
had no work available due to a hiring freeze. A rehabilitation plan was approved with the objective
of obtaining a claims position in the Department of Labor. These positions were within appellant’s
work restrictions and vocational skills. On August 3, 2015 the counselor advised that they were
awaiting approval for a voice activated computer training program and adjuster training.
Dr. Ogunro continued to treat appellant. On December 8, 2015 he related appellant’s
complaints of bilateral hand numbness and paresthesia. Dr. Ogunro found a positive Phalen’s sign
bilaterally, negative Tinel’s sign bilaterally, decreased sensation over the median distribution, and
weak thenar musculature. He diagnosed bilateral carpal tunnel syndrome. Dr. Ogunro repeated
appellant had not worked since September 5, 2001 and was capable of working with restrictions
on typing no more than four hours a day. He further noted that appellant could use a “voice
activated machine … to accommodate restrictions in an eight-hour workday.”
In a December 21, 2015 amended vocational rehabilitation plan, the counselor advised that
the vocational rehabilitation plan would start January 1, 2016 and go to March 30, 2016 which
included job placement for 90 days. In a December 23, 2015 letter, OWCP advised appellant that
the selected positions were within her work restrictions and readily available within her local
commuting area. It further advised her of her responsibility to cooperate with the 90-day
placement assistance plan to help her obtain employment.
In a March 28, 2016 OWCP telephone log, the rehabilitation counselor contacted OWCP
and indicated that he did not receive a response regarding his December 21, 2015 amended
vocational rehabilitation plan and he did not follow-up as he had a death in his family. On May 26,
2016 OWCP requested the vocational rehabilitation counselor close the case due to inactivity. It
advised that the case would be reassigned to another counselor. On June 15, 2016 OWCP again
referred appellant for vocational rehabilitation services to a new rehabilitation counselor.
In a July 19, 2016 e-mail, appellant questioned why she was being referred to vocational
rehabilitation after she participated from April 15, 2015 to the later part of 2015 with another
counselor. She indicated that the employing establishment’s Dallas, Texas office did not offer her
a claims examiner job with accommodations, but instead hired two new claims examiners.
In vocational rehabilitation reports dated July 30 and September 1, 2016, the successor
counselor noted Dr. Ogunro’s work restrictions of typing for four hours a day during an eight-hour
workweek. She noted appellant’s past work experience included clerical secretary, claims
examiner, and administrative clerk. The counselor noted transferable skills of data entry operator,
typing, inventory, invoices, mail clerk, answer telephone, bill payer, customer service, basic

4

accounting, transcriber, filing, and scheduler. She noted jobs that appellant could perform with
limitations and transferable skills included insurance clerk, Department of Labor, Dictionary of
Occupational Titles, DOT No. 219.367.014 and customer complaint clerk, DOT No. 241.367.014.
In a September 23, 2016 rehabilitation plan, the counselor noted that the employing
establishment had no work available. The rehabilitation plan was approved with the objective of
obtaining a position as a call out operator, DOT No. 237.367.014, insurance clerk, DOT No.
219.367.014, or a customer complaint clerk, DOT No. 241.367.014. The jobs were found to be
within appellant’s educational capabilities based on vocational testing and reasonably available
within her commuting area. The vocational rehabilitation counselor completed a labor market
survey for each position. In a vocational rehabilitation report dated September 26, 2016, the
counselor noted that appellant signed the rehabilitation plan, but had concerns with the call out
operator salary, noting that this was below her salary requirement.9
In an October 20, 2016 letter, OWCP advised appellant that the selected positions of
insurance clerk, DOT No. 219.367.014, with a salary of $874.80 a week, customer complaint clerk,
DOT No. 241.367.014, with a salary of $768.80 a week, and a call out operator, DOT No.
237.367.014, with a salary of $426.40 a week were within her work restrictions. It also advised
her of her responsibility to cooperate with the 90-day placement assistance plan to help her obtain
employment. OWCP indicated that at the end of the 90-day period whether she was employed or
not, it would likely reduce her compensation based on her ability to earn wages of $426.40 to
$874.80 a week.
In a vocational rehabilitation report dated October 25, 2016, the counselor noted that she
sent appellant job leads based on the transferable skills analysis. Appellant completed her resume
and was applying for positions over the internet.
Appellant, in an October 25, 2016 letter, related that her attending physician determined
that she could perform the duties of her date-of-injury position as a GS-12 claims examiner. She
reported making multiple requests to return to work with accommodations, but was rejected.
Appellant attached letters to the employing establishment and the Secretary of Labor requesting
that she be offered her GS-12 claims examiner position with accommodations. She also noted
filing several EEO complaints due to the employer’s lack of cooperation in returning her to the
date-of-injury position. Appellant asserted that a loss of wage-earning capacity (LWEC)
determination under these circumstances should not be applicable because of her efforts to return
to her date-of-injury job. She indicated that, when she applied for employment outside of OWCP,
she believed her applications were rejected because of a 15-year gap in her employment history.
In a November 27, 2016 vocational rehabilitation report, the counselor noted sending job
leads to appellant and posted her resume on a “Labor for America” job board.
In a December 22, 2016 rehabilitation action report (Form OWCP-44), the counselor noted
providing 90 days of job placement, but appellant was unsuccessful in securing employment. She
9

In a September 28, 2016 letter to the employing establishment’s Dallas, Texas office, appellant requested that she
be returned to her GS-12 position as a claims examiner with accommodations. She related making this request because
of the departure of a claims examiner from the employing establishment.

5

requested that the rehabilitation case be closed. In a December 22, 2016 closure report, the
counselor indicated that she completed vocational assessment and was able to identify suitable
employment objectives that were reasonably available to appellant. She verified the current
availability of wages of the job identified and provided information on the worker’s wage-earning
capacity.
In a December 23, 2016 rehabilitation closure memorandum, OWCP’s rehabilitation
specialist advised that placement services commenced on September 22 and ended on
December 22, 2016. The target positions were insurance clerk, DOT No. 219.367.014, customer
complaint clerk, DOT No. 241.367.014, and call out operator, DOT No. 237.367.014. Appellant
did not obtain employment and was provided with job leads. The rehabilitation specialist indicated
that the targeted positions remain vocationally and medically appropriate as they are within
appellant’s medical restrictions and her past work experience meets the requirements of these
positions. Based on the labor market survey dated September 11, 2016, the targeted positions exist
in sufficient numbers within a reasonable commuting area with a salary range of $426.40 to
$874.80. The rehabilitation specialist further noted that no jobs were available within appellant’s
agency.
Appellant continued to receive medical treatment from Dr. Ogunro. In a report dated
December 29, 2016, Dr. Ogunro noted that appellant still complained of numbness in her hands,
but she did not wish to undergo surgery. He reviewed her history and provided examination
findings similar to his previous reports. Dr. Ogunro diagnosed bilateral carpal tunnel syndrome.
He noted that “this patient stated that she can do her work but with a voice activated system since
this will not bother her wrist.” Dr. Ogunro recommended follow-up in one year.
By letter dated February 7, 2017, OWCP proposed to reduce appellant’s compensation,
based on her capacity to earn wages as a customer complaint clerk, DOT No. 241.367.014. It
noted that Dr. Ogunro related in a December 8, 2015 report that appellant could work with
restrictions of typing not to exceed four hours. OWCP advised that, based on Dr. Ogunro’s
opinion, appellant had been referred for vocational rehabilitation services, and that the customer
complaint position was selected as being the most appropriate, based upon the rehabilitation
counselor’s review of appellant’s work history and transferrable skills analysis. It described the
physical requirements of the customer complaint position as sedentary and within the restrictions
provided by Dr. Ogunro. OWCP indicated that, based on recent wage and position information,
the customer complaint position was reasonably available at an entry pay level of $768.80 a week.
Appellant was afforded 30 days to submit additional evidence or argument in opposition to this
proposal.
On March 1, 2017 appellant disagreed with the proposed reduction of compensation. She
asserted that she was denied due process because the employing establishment did not issue a job
offer to return her to her date-of-injury job as a GS-12 claims examiner. Appellant noted making
numerous requests to return to work with accommodations, but she never received a job offer. She
indicated that her vocational rehabilitation counselor failed to assign jobs that were vocationally
suitable to her date-of-injury position as a claims examiner and were entry level at best. Appellant
further noted that to determine whether a customer complaint clerk position was medically suitable
the totality of her restrictions should have been addressed including a 10-minute break per hour
which was part of her 2003 permanent restrictions. She further indicated that Dr. Ogunro indicated

6

that she could perform the duties of a claims examiner with a voice activation system to
accommodate her work restrictions, but OWCP failed to address how she could perform the duties
of a customer complaint clerk without a voice activated system or ergonomic equipment.
Appellant further alleged that the customer complaint clerk position exceeded the four-hour typing
requirement. She related that typing was similar to fingering and handling. Appellant asserted
that to perform fingering and handling occasionally10 as provided in the job description would
exceed the four-hour restriction on typing a day established by Dr. Ogunro. She also submitted
evidence previously of record.
By decision dated March 13, 2017, OWCP reduced appellant’s wage-loss compensation
based on her capacity to earn wages as a customer complaint clerk, effective March 14, 2017.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to justify termination or
modification of the compensation benefits.11 An injured employee who is either unable to return
to the position held at the time of injury or unable to earn equivalent wages, but who is not totally
disabled for all gainful employment, is entitled to compensation computed on LWEC.12
Under section 8115(a) of FECA, wage-earning capacity is determined by the actual wages
received by an employee if the earnings fairly and reasonably represent his or her wage-earning
capacity. If the actual earnings do not fairly and reasonably represent wage-earning capacity or if
the employee has no actual earnings, wage-earning capacity is determined with due regards to the
nature of the injury, degree of physical impairment, usual employment, age, qualifications for other
employment, the availability of suitable employment and other factors and circumstances which
may affect the employee’s wage-earning capacity in his or her disabled condition.13
OWCP must initially determine a claimant’s medical condition and work restrictions
before selecting an appropriate position that reflects his or her wage-earning capacity. The medical
evidence relied upon which OWCP relies must provide a detailed description of the condition.14
Additionally, the Board has held that a wage-earning capacity determination must be based on a
reasonably current medical evaluation.15

“Occasional” is defined as an activity/condition exists up to one-third of the time. In this case one-third of an 8hour day is 2 hours and 40 minutes.
10

11

James M. Frashner, 53 ECAB 794 (2002).

12

20 C.F.R. §§ 10.402, 10.403; John D. Jackson, 55 ECAB 465 (2004).

13

5 U.S.C. § 8115(a); 20 C.F.R. § 10.520; see Pope D. Cox, 39 ECAB 143 (1988).

14

William H. Woods, 51 ECAB 619 (2000).

15

John D. Jackson, supra note 12.

7

When OWCP makes a determination of partial disability and of specific work restrictions,
it may refer the employee’s case to a vocational rehabilitation counselor authorized by OWCP for
selection of a position listed in the Department of Labor, Dictionary of Occupational Titles or
otherwise available in the open market, that fits the employee’s capabilities with regard to his or
her physical limitations, education, age, and prior experience. Once this selection is made, a
determination of wage rate and availability in the open labor market should be made through
contact with the state employment service, local Chamber of Commerce, employer contacts, and
actual job postings.16 Lastly, OWCP applies the principles set forth in Albert C. Shadrick,17 as
codified in section 10.403 of OWCP regulations,18 to determine the percentage of the employee’s
LWEC.19
In determining an employee’s wage-earning capacity based on a position deemed suitable,
but not actually held, OWCP must consider the degree of physical impairment, including
impairments resulting from both injury-related and preexisting conditions, but not impairments
resulting from post injury or subsequently acquired conditions. Any incapacity to perform the
duties of the selected position resulting from subsequently-acquired conditions is immaterial to the
LWEC that can be attributed to the accepted employment injury and for which the claimant may
receive compensation.20
ANALYSIS
OWCP issued its March 13, 2017 LWEC determination based on appellant’s capacity to
earn wages as a customer complaint clerk. As noted above, it must initially determine appellant’s
medical conditions and work restrictions before selecting an appropriate position that reflects her
wage-earning capacity. The medical evidence upon which OWCP relies must provide a detailed
description of the condition.21
In reports dated October 7, 2013 and December 10, 2014, Dr. Ogunro, appellant’s treating
physician, reviewed appellant’s history, including diagnostic testing. He noted findings and
diagnosed bilateral carpal tunnel syndrome. Dr. Ogunro noted that appellant could resume regular
duty with restrictions of typing limited to four hours a day. On December 8, 2015 he reiterated his
diagnosis and advised that appellant could work with restrictions on typing not more than four
hours a day and noted that she could use a voice activated machine to accommodate restrictions in

16

Federal (FECA) Procedure Manual, Part 2 -- Claims, Determining Wage-Earning Capacity Based on a
Constructed Position, Chapter 2.816.6.a (June 2013).
17

Albert C. Shadrick, 5 ECAB 376 (1953).

18

20 C.F.R. § 10.403.

19

Supra note 11.

20

James Henderson, Jr., 51 ECAB 268 (2000).

21

Supra note 14.

8

an eight-hour workday. On December 29, 2016 Dr. Ogunro advised that appellant had stated that
she could do her work, but with a voice activated system since this would not bother her wrist.
The Board finds that these medically prescribed limitations are within the physical demands of the
customer complaint clerk position, which provided sedentary strength level, frequent need to hear
and talk, occasional reaching, handling and fingering, occasional need for near acuity and
accommodation with moderate level of noise with no climbing, balancing, stooping, kneeling,
crouching, or crawling.
Appellant did not submit any medical evidence which showed that she could not work
within Dr. Ogunro’s restrictions. She asserts that the selected position was not medically suitable.
Appellant contended that Dr. Ogunro’s work restrictions from 2003 should have been considered,
that she required a voice activated system and ergonomic equipment, and that the “handling” and
“typing” requirements of the position exceed her four-hour typing restriction. The Board finds
these assertions without merit. Dr. Ogunro has consistently provided work restriction of typing
not to exceed four hours a day and provided these restrictions on October 7, 2013, December 10,
2014, and December 8, 2015. He has established that appellant’s permanent work restrictions
were typing not to exceed four hours per day. Regarding a voice activated system, Dr. Ogunro
noted in his December 8, 2005 report that “patient can use voice activated machine in order to
accommodate restrictions in an eight-hour workday.” His December 29, 2016 report noted that
“this patient stated that she can do her work but with a voice activated system since this will not
bother her wrist.” A voice activated system was not a work restriction or a requirement of
reemployment, rather, Dr. Ogunro indicated that appellant could work eight hours a day and could
use a voice activated system which would not affect the four-hour typing restriction. The Board
also notes that the use of ergonomic equipment was not identified by Dr. Ogunro in his reports.
With regard to appellant’s contention that the “handling” and “typing” requirements of the position
exceed her four-hour typing restriction, the record does not support this assertion. Dr. Ogunro’s
reports do not provide for a reaching, handling, or repetitive motion restriction. Rather, the
restriction is limited to typing (fingering) four hours per day. The customer complaint clerk
position description provides for reaching, handling and fingering occasionally which is within her
restrictions. Therefore, the Board finds that appellant had the physical capacity to perform the
duties of the selected position.
The Board also finds that appellant had received the necessary vocational and educational
preparation for the selected position of customer complaint clerk. Appellant’s past work
experience included clerical secretary, claims examiner, and administrative clerk. The
rehabilitation counselor noted transferable skills of data entry operator, typing, inventory, invoices,
mail clerk, answer telephone, bill payer, customer service, basic accounting, transcriber, filing,
and scheduler. The rehabilitation counselor advised that the customer complaint clerk position
was reasonably available in the local labor market at a weekly wage of $768.80.
The Board concludes that OWCP considered the appropriate factors in determining that
the position of customer complaint clerk represented appellant’s wage-earning capacity.22 These
factors include availability of suitable employment and appellant’s physical limitations, usual

22

John D. Jackson, supra note 12.

9

employment, age, and employment qualifications.23 The evidence of record establishes that
appellant had the requisite physical ability, skills, and experience to perform the position and that
such a position was reasonably available within the general labor market of her commuting area.
OWCP therefore properly determined that the position of customer complaint clerk reflected
appellant’s wage-earning capacity, and properly reduced her compensation on March 1, 2017.24
On appeal appellant reiterated her allegations as set forth in her March 1, 2017 letter,
including that the employing establishment should have rehired her. The Board notes that workers’
compensation is not the appropriate forum to contest matters regarding the employing
establishment personnel decisions.25 As noted, OWCP considered the appropriate factors in
determining that the position of customer complaint clerk represented appellant’s wage-earning
capacity26 including the availability of suitable employment and appellant’s physical limitations,
usual employment, age, and employment qualifications.27 OWCP properly determined that the
position of customer complaint clerk reflected appellant’s wage-earning capacity, and properly
reduced her compensation on March 14, 2017.
Appellant may request modification of the LWEC determination, supported by new
evidence or argument, at any time before OWCP.
CONCLUSION
The Board finds that OWCP met its burden of proof to reduce appellant’s compensation
benefits based on her capacity to earn wages in the selected position of customer complaint clerk.

23

Id.

24

James Smith, 53 ECAB 188 (2001).

25

See L.S., 58 ECAB 249, 252 (2006).

26

John D. Jackson, supra note 12.

27

Id.

10

ORDER
IT IS HEREBY ORDERED THAT the March 13, 2017 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: June 12, 2018
Washington, DC

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

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

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

11


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

)
)
)
)
)
)
)
)

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

Docket No. 11-104
Issued: September 6, 2011

Case Submitted on the Record

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

JURISDICTION
On October 19, 2010 appellant filed a timely appeal from a September 24, 2010 decision
of the Office of Workers’ Compensation Programs (OWCP) regarding a schedule award.
Pursuant to the Federal Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and
501.3, the Board has jurisdiction over the merits of the claim.
ISSUE
The issue is whether appellant sustained a ratable impairment of the lower extremities.
On appeal, counsel contends that OWCP’s September 24, 2010 decision was contrary to
fact and law.
FACTUAL HISTORY
OWCP accepted that on October 18, 2007 appellant, then a 52-year-old letter carrier,
sustained a right gastrocnemius muscle tear/leg sprain while descending steps on his delivery
route. Appellant did not stop work or claim wage-loss compensation. OWCP previously
1

5 U.S.C. § 8101 et seq.

accepted that on July 20, 2002 appellant sustained a lumbar strain, lumbar radiculopathy and
aggravation of preexisting degenerative disc disease when he tripped and fell while delivering
mail.
Dr. Frank G. Farone, an attending osteopathic physician, released appellant to limited
duty as of October 19, 2007 and to full duty effective December 3, 2007. His reports through
December 3, 2007 note a resolving right gastrocnemius tear.2
On April 8, 2009 appellant claimed a schedule award.
In an April 16, 2009 letter, OWCP requested that Dr. Farone submit an impairment rating
according to the grading criteria of the sixth edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment (hereinafter, “A.M.A., Guides”). On
April 23, 2009 the medical office where Dr. Farone worked in late 2007 noted that he was no
longer associated with the practice.
On June 16, 2009 OWCP referred appellant, the medical record and an updated statement
of accepted facts to Dr. Manhal Ghanma, a Board-certified orthopedic surgeon, for a second
opinion evaluation. In an August 20, 2009 report, Dr. Ghanma reviewed a history of injury and
treatment, with left leg fractures in 1975 and left-sided L4-5 surgeries in 1996 and 2004.
Appellant’s responses to the pain questionnaire at Figure 17-A, page 6003 of the A.M.A., Guides,
indicated a minimal pain level not affecting functioning. On examination, Dr. Ghanma noted
full right knee range of motion from 0 to 140 degrees, no sensory or motor deficits in either
lower extremity, and calf circumference at 48 centimeters in both legs. He opined that appellant
reached maximum medical improvement by December 18, 2007. Dr. Ghanma found that the
accepted right gastrocnemius tear and sprain and prior aggravation of lumbar degenerative disc
disease had resolved without disabling residuals. He stated that any lumbar radiculopathy was
likely preexisting and not due to or aggravated by the October 18, 2007 injury. Referring
generally to the A.M.A., Guides, Dr. Ghanma opined that appellant had no lower extremity
impairment. He found appellant able to perform full duty with no restrictions.
On October 16, 2009 OWCP requested that OWCP’s medical adviser review
Dr. Ghanma’s report and provide the appropriate percentage of lower extremity impairment.
In a December 6, 2009 report, Dr. William N. Grant, III, an attending Board-certified
internist, provided a history of injury and treatment and noted that appellant had reached
maximum medical improvement. He related appellant’s symptoms of 3/10 level pain in the right
gastrocnemius, increased with right knee flexion or walking on sloped surfaces. Dr. Grant
observed that appellant walked “with a limp, favoring his right lower extremity.” On
examination, he found atrophy of the right posterior calf, a 10 degree flexion contracture and
right knee flexion to 70 degrees. Dr. Grant diagnosed a right gastrocnemius muscle tear/leg
strain. Referring to Table 16-23, page 5494 of the A.M.A., Guides, he found a 20 percent
2

An October 24, 2007 magnetic resonance imaging (MRI) scan showed a resolving hematoma of the posterior
medial gastrocnemius muscle with compression and mild myositis changes.
3

Figure 17-A, page 600 of the sixth edition of the A.M.A., Guides is entitled “Pain Disability Questionnaire
(PDQ).”
4

Table 16-23, page 549 of the sixth edition of the A.M.A., Guides is entitled “Knee Motion Impairments.”

2

impairment of right lower extremity due to knee flexion limited to 70 degrees and an additional
20 percent impairment due to a flexion contracture of 10 degrees. Using the Combined Values
Chart on page 604, Dr. Grant found a 36 percent impairment of the right lower extremity.
In a March 9, 2010 report, OWCP’s medical adviser reviewed Dr. Ghanma’s August 20,
2009 report and concurred that appellant’s lumbar radiculopathy was likely to be preexisting in
nature. The medical adviser found that appellant had a zero percent impairment of the right
lower extremity.
By decision dated March 26, 2010, OWCP denied appellant’s schedule award claim on
the grounds that the medical evidence did not establish a ratable impairment of the lower
extremities. It accorded the weight of the medical evidence to Dr. Ghanma’s report as reviewed
by OWCP’s medical adviser. OWCP did not mention Dr. Grant’s report in its decision.
On March 30, 2010 appellant, through counsel, requested a telephonic hearing, held on
July 7, 2010. At the hearing, appellant testified that he had not fully recovered from the accepted
right gastrocnemius injury but was no longer receiving treatment. He noted frequent spasms of
the right calf. Counsel contended that Dr. Ghanma did not perform a thorough examination.
Alternatively, he asserted that there was a conflict of medical opinion between Dr. Ghanma and
Dr. Grant regarding the appropriate percentage of permanent impairment.
By decision dated and finalized September 24, 2010, OWCP’s hearing representative
affirmed OWCP’s March 26, 2010 decision, finding that appellant did not establish a ratable
impairment of either lower extremity, based on Dr. Ghanma’s report. The hearing representative
mentioned Dr. Grant’s report but did not identify any deficiencies in his opinion.
LEGAL PRECEDENT
The schedule award provisions of FECA provide for compensation to employees sustaining
impairment from loss or loss of use of specified members of the body. FECA, however, does not
specify the manner in which the percentage loss of a member shall be determined. The method
used in making such determination is a mater which rests in the sound discretion of OWCP. For
consistent results and to ensure equal justice, the Board has authorized the use of a single set of
tables so that there may be uniform standards applicable to all claimants. The A.M.A., Guides has
been adopted by OWCP as a standard for evaluation of schedule losses and the Board has
concurred in such adoption.5 For schedule awards after May 1, 2009, the impairment is evaluated
under the sixth edition of the A.M.A., Guides, published in 2008.6
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability

5

Bernard A. Babcock, Jr., 52 ECAB 143 (2000).

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).

3

and Health (ICF).7 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on Functional
History (GMFH), Physical Examination (GMPE) and Clinical Studies (GMCS).8 The net
adjustment formula is (GMFH-CDX) + (GMPE-DCX) + (GMCS-CDX).
Section 8123 of FECA 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.9 In situations 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.10
ANALYSIS
OWCP accepted that appellant sustained a right gastrocnemius muscle tear/leg sprain.
Appellant claimed a schedule award on April 8, 2009. OWCP referred him to Dr. Ghanma, a
Board-certified orthopedic surgeon, for an impairment rating. Dr. Ghanma submitted a June 16,
2009 report finding no permanent impairment of the lower extremities. Appellant submitted a
December 6, 2009 report from Dr. Grant, an attending Board-certified internist, finding a 36
percent impairment of the right lower extremity. OWCP denied appellant’s schedule award
claim by March 26 and September 24, 2010 decisions, based on Dr. Ghanma’s opinion. The
Board finds that there is a conflict of medical opinion between Dr. Ghanma, for the government,
and Dr. Grant, for appellant.
Dr. Grant and Dr. Ghanma noted widely divergent clinical findings. On examination,
Dr. Ghanma found right knee motion from 0 to 140 degrees, no atrophy of the right calf and did
not mention any gait abnormalities. He noted lumbar radiculopathy but did not explain why he
did not include it in his impairment rating.11 In contrast, Dr. Grant found right knee flexion
limited to 70 degrees with a 10-degree flexion contracture. He also noted atrophy of the right
posterior calf and that appellant walked with a limp, favoring his right leg. Considering the
significant differences between the two physicians’ observations, the Board finds that the case
requires the appointment of an impartial medical examiner.
As stated, 5 U.S.C. § 8123 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. Therefore, the case will be
7

A.M.A., Guides (6th ed. 2008), page 3, Section 1.3, “The International Classification of Functioning, Disability
and Health (ICF): A Contemporary Model of Disablement.”
8

A.M.A., Guides (6th ed. 2008), pp. 494-531.

9

5 U.S.C. § 8123; see Charles S. Hamilton, 52 ECAB 110 (2000).

10

Jacqueline Brasch (Ronald Brasch), 52 ECAB 252 (2001).

11

The Board notes that it is well established that all factors that prevent a limb from functioning normally should
be considered, together with the loss of motion, in evaluating the degree of permanent impairment. Robert V.
Disalvatore, 54 ECAB 351 (2003).

4

remanded to OWCP for selection of an impartial medical examiner to determine the appropriate
percentage of permanent impairment. Following this and any other development deemed
necessary, OWCP will issue an appropriate decision in the case.
On appeal, appellant contends that OWCP’s September 24, 2010 decision was “contrary
to fact and law.” As stated, the case will be remanded to OWCP for appointment of an impartial
medical examiner and issuance of an appropriate decision.
CONCLUSION
The Board finds that the case is not in posture for a decision.
ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated September 24, 2010 is set aside and the case remanded to OWCP
for further development consistent with this decision.
Issued: September 6, 2011
Washington, DC

Alec J. Koromilas, Judge
Employees’ Compensation Appeals Board

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

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

5