United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
L.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Melville, NY, Employer
__________________________________________

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

Docket No. 16-0869
Issued: October 13, 2016

Case Submitted on the Record

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

JURISDICTION
On March 22, 2016 appellant filed a timely appeal from a December 9, 2015 merit
decision and a February 8, 2016 nonmerit 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.
ISSUES
The issues are: (1) whether appellant met her burden of proof to establish a lower back
injury causally related to the accepted October 20, 2015 employment incident; and (2) whether
OWCP abused its discretion in denying appellant’s request for a review of the written record.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On October 20, 2015 appellant, a 52-year-old mail clerk, filed a traumatic injury claim
(Form CA-1) alleging that she injured her lower back when she bent over to pick up a parcel of
mail. She stopped work on October 20, 2015.
In a report dated October 20, 2015, Dr. Bhanumathy Vinayagasundaram, Board-certified
in family practice, opined that appellant should remain out of work until being reevaluated on
October 27, 2015.
By letter to appellant dated November 4, 2015, OWCP advised appellant that while it had
initially handled her claim administratively and authorized payment of a limited amount of
medical expenses, it was reopening her claim because her medical bills had exceeded $1,500.00.
It noted that the merits of the claim now needed to be formally considered and advised that it
required additional factual and medical evidence to determine whether she was eligible for
compensation benefits. OWCP asked appellant to submit a comprehensive medical report from
her treating physician describing her symptoms and the medical reasons for her condition, and an
opinion as to whether her claimed condition was causally related to her federal employment.
Appellant was afforded 30 days to submit the additional evidence.
In an October 20, 2015 report, received by OWCP on November 25, 2015,
Dr. Vinayagasundaram advised that appellant was experiencing low back pain which started that
morning at work when she lifted up a parcel from the floor. He reported that appellant had leftsided low back pain without sciatica, as shown by x-ray.
In a separate October 20, 2015 report, received by OWCP on November 25, 2015,
Dr. Vinayagasundaram noted that appellant had left-sided low back pain with sciatica.
(Emphasis added).
In an October 20, 2015 report, received by OWCP on November 25, 2015, Dr. Andresito
Pacis, a specialist in diagnostic radiology, noted that appellant had findings consistent with mildto-moderate degree of degenerative osteoarthropathy of the left hip, and mild facet joint
arthropathy at L5-S1. He recommended that appellant undergo a magnetic resonance imaging
(MRI) scan if her symptoms persisted or progressed.
An October 21, 2015 radiology report, received by OWCP on November 25, 2015,
revealed that appellant had left-sided low back pain with left-sided sciatica and had evidence of
minimal facet joint sclerosis with narrowing at L5-Sl. The test results showed no evidence of
blastic or lytic lesions. The report noted that appellant had mild facet joint arthropathy at L5-S1.
In an October 27, 2015 report, Dr. Vinayagasundaram essentially reiterated his previous
findings and conclusions. He noted that appellant continued to experience low back pain and left
hip pain which started after an injury at work on October 20, 2015. Appellant rated her pain as a
3 on a scale of 1 to 10 and the pain radiated to the left foot. Dr. Vinayagasundaram reiterated
that appellant had left-sided low back pain without sciatica and referred her for physical therapy.
In a duty status report (Form CA-17) dated November 2, 2015, Dr. Vinayagasundaram
advised that appellant was experiencing lower back and left hip pain and checked a box marked
2

“yes” indicating that appellant’s account of the October 20, 2015 work incident was consistent
with the injury.
In form reports dated November 3 and 18, 2015, Dr. Vinayagasundaram essentially
reiterated his previous findings and conclusions. In his November 18, 2015 State of New York
Doctor’s Progress Report, however, he checked a box marked “no” indicating that the incident
that appellant described was not the competent medical cause of the injury/illness; and checked a
box marked “no” indicating that appellant’s complaints were inconsistent with the history of the
injury/illness.
By decision dated December 9, 2015, OWCP denied the claim, finding that she had failed
to provide medical evidence sufficient to establish a low back injury causally related to the
accepted October 20, 2015 work incident.
On January 19, 2016 OWCP received appellant’s request for a review of the written
record before an OWCP hearing representative. The request was postmarked January 17, 2016.
In a decision dated February 8, 2016, OWCP denied appellant’s request for review of the
written record as untimely filed pursuant to 5 U.S.C. § 8124. It informed appellant that her case
had been considered in relation to the issues involved and that the request was further denied as
the issue in this case could be addressed by requesting reconsideration from the district office
and submitting evidence not previously considered.
LEGAL PRECEDENT
An employee seeking benefits under FECA2 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 sustained in the performance of duty as
alleged, and that any disability and/or specific condition for which compensation is claimed are
causally related to the employment injury.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 a “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

2

Id.

3

Joe D. Cameron, 41 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).

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must submit sufficient evidence, generally only in the form of medical evidence, to establish that
the employment incident caused a personal injury.6
The Board has held that the mere 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
An award of compensation may not be based on surmise, conjecture, or speculation.
Neither, the fact that appellant’s condition became apparent during a period of employment nor
the belief that her condition was caused, precipitated, or aggravated by her employment is
sufficient to establish causal relationship.8 Causal relationship must be established by
rationalized medical opinion evidence and appellant failed to submit such evidence.
ANALYSIS -- ISSUE 1
It is uncontested that appellant experienced pain in her lower back when she bent over to
pick up a parcel of mail on October 20, 2015. The question of whether an employment incident
caused a personal injury can only be established by probative medical evidence.9 The Board finds
that appellant has failed to submit rationalized, probative medical evidence to establish that the
October 20, 2015 employment incident caused a personal injury and that the work accident would
have been competent to cause the claimed injury.
Appellant submitted several reports from Dr. Vinayagasundaram who noted her
complaints of low back and low hip pain and found, based on his examination and diagnostic
tests, that she did not have sciatica.10 In a October 20, 2015 report, Dr. Vinayagasundaram
opined that appellant should remain out of work until being reevaluated on October 27, 2015, but
did not attribute her absence to any work-related injury or condition. In another October 20,
2015 report, Dr. Vinayagasundaram advised that appellant was experiencing low back pain and
opined that she had left-sided low back pain without sciatica, as shown by x-ray. In reports
dated October 27, November 3, and 18, 2015, Dr. Vinayagasundaram essentially reiterated his
previous findings and conclusions and advised that appellant continued to experience low back
pain and left hip pain which started after an injury at work on October 20, 2015. The weight of
medical opinion is determined by the opportunity for and thoroughness of examination, the
accuracy and completeness of physician’s knowledge of the facts of the case, the medical history
provided, the care of analysis manifested and the medical rationale expressed in support of stated
conclusions.11 While Dr. Vinayagasundaram noted complaints of low back and left hip pain
6

Id. For a definition of the term “injury,” see 20 C.F.R. § 10.5(ee).

7

See Joe T. Williams, 44 ECAB 518, 521 (1993).

8

Id.

9

Supra note 5.

10

The record contains conflicting opinions and documentation as to whether or not appellant had sciatica. As
noted in several reports Dr. Vinayagasundaram asserted that appellant had low back pain without sciatica; however,
he noted in one of his October 20, 2015 reports that appellant did in fact have sciatica. In addition, Dr. Pacis also
asserted in his October 21, 2015 report noted that appellant had left-sided low back pain with left-sided sciatica.
11

See Anna C. Leanza, 48 ECAB 115 (1996).

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which he generally attributed to the October 20, 2015 work incident, his reports did not contain a
probative, rationalized opinion regarding whether the October 20, 2015 work incident caused a
personal injury. They did not sufficiently explain how medically appellant would have sustained
a lower back injury because she tripped and fell to the ground on October 20, 2015.12
In a Form CA-17 dated November 2, 2015, Dr. Vinayagasundaram checked a box
marked “yes” indicating that appellant’s work incident was consistent with her back injury. The
Board has held that form reports checking a box to denote causal relationship, without more by
way of medical rationale, are of little probative value.13
In fact, in his November 18, 2015 form report, Dr. Vinayagasundaram indicated that he
did not believe appellant’s low back complaints were causally related by checking boxes marked
“no” which queried whether the incident that appellant described was the competent medical
cause of the injury/illness and whether her complaints were consistent with the history of the
injury/illness. The Board thus finds that Dr. Vinayagasundaram’s opinion regarding causal
relationship is equivocal in nature, and insufficient to establish causal relationship.14
In his October 20, 2015 report, Dr. Pacis noted findings consistent with mild-to-moderate
degree of degenerative osteoarthropathy of the left hip and mild facet joint arthropathy at L5-S1.
He recommended that appellant undergo a lumbar spine MRI scan in the event her symptoms
continued or worsened. Dr. Pacis failed to adequately describe the accepted incident or to
provide a medical explanation as to how the incident would have been competent to cause the
claimed condition. His reports failed to demonstrate a causal connection between appellant’s
October 20, 2015 work incident and appellant’s claimed lower back injury.15
In the October 21, 2015 radiology report it was noted that appellant had left-sided low
back pain with left-sided sciatica and had evidence of minimal facet joint sclerosis with
narrowing at L5-Sl. OWCP also received test results which indicated that appellant had mild
facet joint arthropathy at L5-S1, with no evidence of deistic or lytic lesions. Diagnostic test
reports, however, do not discuss the cause of the diagnosed condition and are therefore of limited
probative value regarding causal relationship.16
OWCP advised appellant of the evidence required to establish her claim; however,
appellant failed to submit such evidence. Causal relationship must be established by rationalized
medical opinion evidence. Appellant did not provide a medical opinion which describes or
explains the medical process through which the October 20, 2015 work incident would have
12

Id.

13

F.R., Docket No. 16-1029 (issued August 11, 2016).

14

See L.S., Docket No. 16-0036 (issued May 23, 2016).

15

Furthermore, the October 20, 2015 form report which supported causal relationship with a check mark is
insufficient to establish the claim, as the Board has held that without further explanation or rationale, a checked box
is not sufficient to establish causation. Debra S. King, 44 ECAB 203 (1992); Salvatore Dante Roscello, 31 ECAB
247 (1979).
16

L.B., Docket No. 16-0486 (issued June 28, 2016).

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caused the claimed injury. Accordingly, she has failed to meet her burden of proof to establish a
lower back injury causally related to an October 20, 2015 employment incident.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA provides that a claimant for compensation not satisfied with
a decision of the Secretary ... is entitled, on request made within 30 days after the date of the
issuance of the decision, to a hearing on his claim before a representative of the Secretary.17
Section 10.615 of the federal regulations implementing this section of FECA provides that a
claimant shall be afforded a choice of an oral hearing or a review of the written record.18 The
request must be sent within 30 days (as determined by postmark or other carrier’s date marking)
of the date of the decision for which a hearing is sought.19 A claimant is not entitled to a hearing
if the request is not made within 30 days of the date of the decision.20 OWCP has discretion,
however, to grant or deny a request that is made after this 30-day period.21 In such a case, it will
determine whether a discretionary hearing should be granted and, if not, will so advise the
claimant with reasons.22
ANALYSIS -- ISSUE 2
On January 19, 2016 OWCP received appellant’s request for review of the written record
before an OWCP hearing representative of the December 9, 2015 decision. The request was
postmarked January 17, 2016. Because appellant did not request review within 30 days of the
December 9, 2015 decision, she was not entitled to a hearing as a matter of right under section
8124(b)(1). OWCP considered whether to grant a discretionary review and correctly advised
appellant that her case had been considered in relation to the issue involved and that the request
was further denied for the reason that the issue in the case could be addressed by requesting
reconsideration from the district office and submitting evidence not previously considered.
CONCLUSION
The Board finds that appellant did not meet her burden of proof to establish that she
sustained a low back injury causally related to her accepted October 20, 2015 employment
17

5 U.S.C. § 8124(b)(1).

18

20 C.F.R. § 10.615.

19

Id. at § 10.616(a).

20

James Smith, 53 ECAB 188 (2001).

21

20 C.F.R. § 10.616(b).

22

Supra note 8.

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incident. The Board also finds that OWCP did not abuse its discretion by denying appellant’s
request for review of the written record.
ORDER
IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’
Compensation Programs dated February 8, 2016 and December 9, 2015 are affirmed.
Issued: October 13, 2016
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.D., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Boston, MA, Employer
__________________________________________

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Appearances:
Daniel B. Shapiro, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 12-976
Issued: December 19, 2012

Oral Argument September 19, 2012

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

JURISDICTION
On March 28, 2012 appellant filed a timely appeal from a September 28, 2011 merit
decision of the Office of Workers’ Compensation Programs (OWCP) regarding his schedule
award 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 claim.
ISSUE
The issue is whether appellant has more than 31 percent permanent impairment of the left
lower extremity, for which he received a schedule award.
FACTUAL HISTORY
On November 15, 2009 appellant, then a 59-year-old letter carrier, filed an occupational
disease claim alleging that his duties aggravated his left knee osteoarthritis. He previously
underwent left total knee arthroplasty on May 5, 1999 and a second revision on June 16, 2008.
1

5 U.S.C. §§ 8101-8193.

OWCP accepted aggravation of left knee osteoarthritis. On February 9, 2010 appellant retired
from the employing establishment. On June 10, 2010 he filed a claim for a schedule award.
In a June 7, 2010 report, Dr. Byron V. Hartunian, an orthopedic surgeon, noted
evaluating appellant on March 11, 2010. He presented his review of appellant’s medical record
and examination findings and opined that maximum medical improvement was reached by
June 2009, one year after the second knee revision arthroplasty. Dr. Hartunian concluded that
appellant had 37 percent impairment to the left leg under the standards of the sixth edition of the
American Medical Association, Guides to the Evaluation of Permanent Impairment (A.M.A.,
Guides) for a total knee replacement. He indicated that under Table 16-3 the diagnostic criteria
for total knee replacement placed appellant into class 3 as his physical examination indicated a
mild motion deficit by Table 16-23. Physical examination was not used as a grade modifier as it
was used to identify the class designation. Dr. Hartunian assigned grade modifier of 4 for
clinical studies as there was no cartilage interval per Table 16-8 and a grade modifier of 2 for
functional history. He found that the net adjustment formula yielded zero adjustment and that
the final impairment was class 3, grade C or 37 percent impairment.
On June 24, 2010 Dr. Barry W. Levine, a Board-certified internist serving as OWCP’s
medical adviser, reviewed the medical evidence, including Dr. Hartunian’s June 7, 2010
examination findings, and determined that appellant had 37 percent left lower extremity
impairment under the A.M.A., Guides. Table 16-3, page 511 of the A.M.A., Guides was used
with a diagnosis of total knee replacement with zero grade modifier adjustments. Maximum
medical improvement was June 7, 2010, the date of Dr. Hartunian’s examination.
On August 9, 2010 OWCP requested copies of appellant’s medical record since 1994
before further adjudicating the schedule award claim. Following the submission of appellant’s
medical record prior to and after his knee replacements, it updated its statement of accepted facts
and referred the record to another medical adviser, Dr. Christopher R. Brigham, Board-certified
in occupational medicine, for an impairment evaluation. In a September 29, 2010 report,
Dr. Brigham found that appellant reached maximum medical improvement on June 16, 2009, one
year after the left knee revision surgery. He further opined that appellant had 31 percent left leg
impairment for a diagnosed-based estimate of total knee replacement. Under Table 16-3,
Dr. Brigham agreed with Dr. Hartunian that appellant had a class 3 rating based on residual mild
motion deficits with a default score of 37 percent leg impairment. He found that grade modifiers
for physical examination and clinical studies were not applicable but the grade modifier for
functional history was zero, which moved the default finding of class 3, grade C to a final
impairment of grade A or 31 percent.
In a November 9, 2010 decision, OWCP granted appellant a schedule award for 31
percent left lower extremity impairment. The award covered 624.96 weeks, from June 16, 2009
to March 2, 2011. The effective pay rate date was June 16, 2008.
Appellant requested a telephonic hearing which was held March 3, 2011. His attorney
argued that OWCP’s decision involved an incorrect application of the A.M.A., Guides as
Dr. Brigham, the second OWCP medical adviser, erred in finding that the grade modifier for
functional history was zero. Counsel further argued that OWCP erred in finding that the
effective pay rate date was June 16, 2008, the date of appellant’s surgery, as it should be

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February 9, 2010, the date that appellant retired and was last exposed to work factors. Evidence
submitted at the hearing consisted of appellant’s affidavit regarding continuing exposure to
injurious work factors and a hearing memorandum.
Dr. Hartunian prepared a March 3, 2011 report showing impairment of 50 percent of the
left leg impairment based on accepted condition of knee arthritis.2 He stated that maximum
medical improvement was reached for the left knee by June 2009, after the revision knee
arthroplasty.
By decision dated May 16, 2011, OWCP’s hearing representative vacated the
November 9, 2010 decision and remanded the case for calculation of appellant’s left lower
extremity impairment based on the accepted condition of aggravation of osteoarthritis. She
directed that, after this and any further development deemed necessary, OWCP issue a de novo
decision on the schedule award claim including the correct pay rate date.
On remand, OWCP forwarded the case file to a third medical adviser, Dr. Guillermo M.
Pujadas, a Board-certified orthopedic surgeon, for an impairment evaluation. No instructions to
rate the impairment were provided. In a May 17, 2011 report, Dr. Pujadas found that maximum
medical improvement was achieved June 2009. He stated that Dr. Hartunian’s impairment
finding of 50 percent impairment based on arthritis was incorrect and did not follow the A.M.A.,
Guides. Using the diagnosed-based method for a total knee replacement, Dr. Pujadas calculated
21 percent impairment of the left leg. As appellant had previously been paid for 31 percent
impairment to the left leg, Dr. Pujadas found that appellant did not have additional impairment.
Following OWCP’s request to explain any disagreement with Dr. Hartunian’s 37 percent
left lower extremity impairment rating, Dr. Pujadas, in a May 19, 2011 report, argued that
Dr. Hartunian’s rating of 37 percent impairment was incorrect as appellant should be in class 2
rather than class 3 diagnosis for total knee replacement. OWCP then requested that Dr. Pujadas
provide specific rationale as to why the 50 percent impairment based on the accepted condition
of osteoarthritis of the left leg was incorrect. In a July 29, 2011 report, Dr. Pujadas stated that
Dr. Hartunian should have provided impairment based on the diagnosis of total knee
replacement, not arthritis. Using the diagnosed-based method for a total knee replacement, he
calculated 21 percent permanent impairment of the left leg. Dr. Pujadas stated that appellant was
class 2 with a grade C default value of 25 percent, which after adjustment, yielded 21 percent
impairment.
In a September 28, 2011 decision, OWCP denied appellant’s claim for an additional
schedule award. It found that Dr. Hartunian’s left leg impairment rating of 50 percent, based on
arthritis, was incorrect as it should be based on the diagnosis of total knee replacement. OWCP
accorded determinative weight to Dr. Pujada’s opinion that appellant had 21 percent permanent
impairment of the left lower extremity based on a class 2 designation.
On appeal appellant’s counsel argues that OWCP did not properly follow the A.M.A.,
Guides when it developed the schedule award issue based on the osteoarthritis condition and all
2

The hearing transcript reveals appellant’s attorney disagreed with using an impairment analysis based on the
accepted condition of arthritis.

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reports generated as a result should be disregarded. He contends that appellant is due additional
schedule award compensation based on the condition of total knee replacement for a total award
of 37 percent left leg impairment as found by appellant’s physician and the first medical adviser.
Counsel further argues that the pay rate issue was never addressed by OWCP.
LEGAL PRECEDENT
The schedule award provision of FECA and its implementing regulations3 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.4 For
consistent results and to ensure equal justice under the law to all claimants, good administrative
practice necessitates the use of a single set of tables so that there may be uniform standards
applicable to all claimants. The A.M.A., Guides has been adopted by the implementing
regulations as the appropriate standard for evaluating schedule losses.5 As of May 1, 2009, the
sixth edition of the A.M.A., Guides is used to calculate schedule awards.6
In determining entitlement to a schedule award, preexisting impairment to the scheduled
member should be included.7 Any previous impairment to the member under consideration is
included in calculating the percentage of loss except when the prior impairment is due to a
previous work-related injury, in which case the percentage already paid is subtracted from the
total percentage of impairment.8
In determining impairment for the lower extremities under the sixth edition of the
A.M.A., Guides, an evaluator must establish the appropriate diagnosis for each part of the lower
extremity to be rated. With respect to the knee, the relevant portion of the leg for the present
case, reference is made to Table 16-3 (Knee Regional Grid) beginning on page 509.9 After the
class for diagnosed condition (CDX) is determined from the Knee Regional Grid (including
identification of a default grade value), the net adjustment formula is applied using the grade
modifier for Functional History (GMFH), grade modifier for Physical Examination (GMPE) and
grade modifier for Clinical Studies (GMCS). The net adjustment formula is (GMFH - CDX) +
3

5 U.S.C. § 8107; 20 C.F.R. § 10.404.

4

Linda R. Sherman, 56 ECAB 127 (2004); Danniel C. Goings, 37 ECAB 781 (1986).

5

Ronald R. Kraynak, 53 ECAB 130 (2001).

6

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.6.6a (January 2010); see also Part 3 -- Medical, Schedule Awards, Chapter 3.700.2 and Exhibit 1
(January 2010).
7

Carol A. Smart, 57 ECAB 340 (2006); Michael C. Milner, 53 ECAB 446 (2002).

8

Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims, Chapter
2.808.7(a)(2) (January 2010).
9

See A.M.A., Guides 509-11 (6th ed. 2009).

4

(GMPE - CDX) + (GMCS - CDX).10 Under Chapter 2.3, evaluators are directed to provide
reasons for their impairment rating choices, including choices of diagnoses from regional grids
and calculations of modifier scores.11
OWCP procedures provide that, after obtaining all necessary medical evidence, the file
should be routed to an OWCP medical adviser for an opinion concerning the nature and
percentage of impairment in accordance with the A.M.A., Guides, with the medical adviser
providing rationale for the percentage of impairment specified.12
ANALYSIS
The Board finds that this case is not in posture for a decision.
OWCP accepted appellant’s claim for aggravation of left knee osteoarthritis. On
November 9, 2010 it granted him a schedule award for 31 percent impairment of the left leg
based on a total knee replacement. The effective pay rate date was June 16, 2008. After
appellant requested a hearing, OWCP developed the impairment issue for the accepted
osteoarthritis condition but subsequently found that an impairment based on total knee
replacement was proper. By decision dated September 28, 2011, it denied his claim for an
increased schedule award by according determinative weight to Dr. Pujadas, the third medical
adviser in this case, who determined that appellant had 21 percent impairment to the left leg.
The pay rate issue was not addressed.
Initially, the Board notes that it was proper for the impairment rating in this case to be
based on the diagnosed total knee replacement and not on the accepted condition of aggravation
of osteoarthritis. Diagnosis-based impairment is the primary method of evaluating the lower
extremity. Impairment is determined first by identifying the relevant diagnosis, then by selecting
the class of the impairment (no objective problem, mild problem, moderate problem, severe
problem or very severe problem approaching total function loss), which will provide a default
impairment rating and finally by adjusting the default rating up or down using appropriate grade
modifiers or nonkey factors, such as functional history, physical examination or clinical
studies.13 This process is repeated for each separate diagnosis in each limb involved. In most
cases, only one diagnosis in a region will be appropriate. If a patient has two significant
diagnoses, the examiner should use the diagnosis with the highest impairment rating in that
region that is causally related for the impairment calculation.14 The accepted condition in this
case, aggravation of osteoarthritis, should be evaluated under the diagnosed-based impairment
method which would allow for the most clinically accurate impairment rating. As appellant
10

Id. at 515-22.

11

Id. at 23-28.

12

See Federal (FECA) Procedure Manual, Part 2 -- Claims, Schedule Awards & Permanent Disability Claims,
Chapter 2.808.6(d) (August 2002).
13

A.M.A., Guides 497. When clinical studies are used to select the class of impairment, the same findings may
not be used again as grade modifiers to adjust the rating. A.M.A., Guides 500.
14

A.M.A., Guides 497.

5

underwent total knee replacement, that condition would provide the most clinically accurate
impairment rating as that is the most accurate description of appellant’s condition.
In a June 7, 2010 report, Dr. Hartunian opined that maximum medical improvement of
the left knee was reached by June 2009, one year after the second revision knee arthroplasty. He
calculated 37 percent impairment to the left leg based on the total knee replacement under the
sixth edition of the A.M.A., Guides. Under Table 16-3, knee diagnostic grid, Dr. Hartunian
placed appellant’s total knee replacement in a class 3 with a default value of 37 percent as his
physical examination indicated a mild motion deficit. He found grade modifier for physical
examination was not applicable as it was used to identify the class designation.15 Dr. Hartunian
assigned grade modifier of 4 for clinical studies as there was zero cartilage interval per Table 168 and a grade modifier of 2 for functional history. Under the net adjustment formula, (GMFH CDX) (2-3) + (GMCS - CDX) (4 -3) yields a net adjustment of zero, for a final impairment of 37
percent.
The first medical adviser, Dr. Levine, reviewed the June 7, 2010 report of Dr. Hartunian
and concurred that appellant had 37 percent left leg impairment based on a total knee
replacement. However, he did not provide any reference to or discussion of how he determined
grade modifiers used in the net adjustment formula as described in section 16.3 of the sixth
edition to reach the appropriate grade within the class of diagnosis.16 As such, Dr. Levine’s
impairment rating requires further explanation.17 Furthermore, when OWCP obtained additional
medical evidence about appellant’s left knee preexisting osteoarthritis, it is not clear why OWCP
sent appellant’s case record to another OWCP medical adviser for an impairment evaluation
review when Dr. Levine already had a familiarity with appellant’s case file. OWCP should have
obtained a supplemental opinion from Dr. Levine.
The Board will remand the case to OWCP to undertake additional development of the
medical evidence to appropriately determine if appellant has an additional impairment of the left
lower extremity for schedule award purposes. On remand, OWCP should request clarification
from its medical adviser, Dr. Levine, and develop the medical evidence as appropriate to
determine the extent of permanent impairment due to appellant’s accepted employment injury
under the sixth edition of the A.M.A., Guides. If OWCP’s medical adviser, Dr. Levine, is unable
to provide such clarification, appellant shall be referred for a second opinion. Following this and
such other development as it deems necessary, OWCP shall issue an appropriate merit decision.
On appeal, appellant’s counsel requests that the Board provide instructions regarding pay
rate, which OWCP never addressed despite his requests. When OWCP granted appellant a
schedule award of 31 percent to the left leg on November 9, 2010, it found that the effective pay
rate date was June 16, 2008. Counsel has argued that appellant’s pay rate should be based on the
date of retirement, February 9, 2010, as he was continuingly exposed to work factors up to that
15

See A.M.A., Guides 516 (if a grade modifier or nonkey factor is used for primary placement in the regional
grid, it may not be used again in the impairment calculation).
16

A.M.A., Guides 515-18.

17

See L.H., 58 ECAB 561 (2007) (where impairment has not been correctly described, a new or supplemental
evaluation should be obtained in accordance with OWCP procedures).

6

point. Although OWCP’s hearing representative directed OWCP, in her May 16, 2011 decision,
to consider the correct pay rate date, OWCP did not further address this matter. Section
8101(4) of FECA defines monthly pay for purposes of computing compensation benefits as
follows: The monthly pay at the time of injury or the monthly pay at the time disability begins
or the monthly pay at the time compensable disability recurs, if the recurrence begins more than
six months after the injured employee resumes regular full-time employment with the United
States, whichever is greater.18 In schedule award claims, at issue is the permanent impairment
sustained resulting from such injury. In an occupational disease claim, as in this case, the date of
injury is generally the date the employee was last exposed to the injurious employment factors.19
Where exposure to work factors continues, the date of injury is the date of the relevant medical
examination, i.e., the date of the medical examination upon which the extent of permanent
impairment has been determined.20 As appellant had retired prior to Dr. Hartunian’s June 7,
2010 report on June 7, 2010, OWCP should select appellant’s monthly pay on the date of
retirement when he was last exposed to injurious work factors, February 9, 2010, to compute
appellant’s rate of pay for compensation purposes. The case will, therefore, be remanded for
OWCP to further develop the record as to appellant’s pay rate and issue an appropriate merit
decision.21
CONCLUSION
The Board finds this case is not in posture for decision. On remand OWCP should obtain
a supplementary report from Dr. Levine regarding appellant’s impairment as well as properly
calculate the pay rate and issue an appropriate merit decision.22

18

20 C.F.R. § 8101(4).

19

See Patricia K. Cummings, 53 ECAB 623 (2002).

20

Id.; see also Barbara A. Dunnavant, 48 ECAB 517 (1997) in which the Board held that the proper pay rate for
the claimant’s schedule award was the pay rate on the date of maximum medical improvement. Dunnavant involved
continuing exposure to injurious work factors which did not cause further injury after the permanent impairment was
stabilized; therefore, the date of injury was the date of last exposure, which was, for purposes of the schedule award
issued, the date she was found to have reached maximum medical improvement. The Board explained that, where
exposure to work factors continues, the date of injury is the date of the relevant medical evaluation, i.e., the date of
the medical examination upon which the extent of permanent impairment has been determined. Id. at 520.
21

Due to the Board’s disposition of appellant’s case, it is not necessary to address counsels remanding arguments
pertaining to the correct application of the A.M.A., Guides on appeal.
22

Appellant submitted new evidence on appeal. The Board is precluded from considering evidence that was not
before OWCP at the time of its final decision. See 20 C.F.R. § 501.2(c).

7

ORDER
IT IS HEREBY ORDERED THAT the September 28, 2011 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded to OWCP for further
action consistent with this opinion of the Board.
Issued: December 19, 2012
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
B.W., Appellant
and
DEPARTMENT OF ENERGY, BONNEVILLE
POWER ADMINISTRATION, Portland, OR,
Employer
__________________________________________

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Appearances:
Daniel M. Goodkin, Esq., for the appellant1
Office of Solicitor, for the Director

Docket No. 16-0120
Issued: July 22, 2016

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 October 26, 2015 appellant, through counsel, filed a timely appeal from an April 29,
2015 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to
the Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the
Board has jurisdiction over the merits of this case.

1

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

5 U.S.C. § 8101 et seq.

ISSUE
The issue is whether OWCP properly terminated appellant’s wage-loss compensation,
effective May 3, 2015, pursuant to 20 C.F.R. § 10.500(a).
FACTUAL HISTORY
On November 29, 2012 appellant, then a 62-year-old heavy mobile equipment mechanic,
filed a traumatic injury claim (Form CA-1) alleging that he sustained multiple injuries due to his
involvement in a motor vehicle accident at work on November 27, 2012. He stopped work on
the date of the accident. OWCP accepted appellant’s claim for neck sprain, lumbago,
aggravation of lumbosacral stenosis, left shoulder impingement, and temporary aggravation of
lumbar radiculopathy. Appellant received disability compensation on the daily rolls beginning
November 27, 2012 and was placed on the periodic rolls beginning April 7, 2013.
Appellant received treatment for his medical conditions from several attending
physicians, including Dr. Anthony G. Hadden, Jr., a Board-certified neurosurgeon.3 To assess
appellant’s ability to perform physical tasks, appellant underwent a functional capacity
evaluation (FCE). The record contains an August 25, 2014 report detailing the findings, which
were deemed to be valid, of the FCE carried out on that date.
In an August 29, 2014 report, Dr. Hadden indicated that appellant could perform
modified office-type sedentary work on a full-time basis beginning September 2, 2014. He
recommended restrictions of lifting no more than 10 pounds, no repetitive climbing, bending, or
stooping, and no engaging in any kneeling, squatting, or overhead reaching/lifting. Sitting was
limited to 4 to 6 hours a day (10 to 20 minutes at one time) and walking/standing was limited to
4 to 6 hours a day with a cane (10 to 20 minutes at one time). Dr. Hadden noted that appellant
could recline for up to three hours at one time, but that he could not work with moving
machinery. He referred to an August 25, 2014 FCE and suggested that it should be referenced
for other specific restrictions. Dr. Hadden closely patterned the above-described work
restrictions on appellant’s physical capacities for various activities as demonstrated during the
August 25, 2014 FCE.4
In an October 20, 2014 letter, the employing establishment wrote to Dr. Hadden and
advised him that it intended to offer appellant a temporary modified light-duty assignment on a
full-time basis. The duties of the offered assignment involved conducting inventories of parts,
tools, equipment, stock, and the contents of flammable lockers; and scribing tools and equipment
using an electric scribe tool weighing eight ounces. The job description indicated that appellant
might be required to travel to other garages to help conduct inventories within the guidelines of
his physical restrictions. The physical duties of the position met the restrictions recommended
3

On April 2, 2014 appellant underwent surgery to repair a rotator cuff tear of his left shoulder. The surgery was
not authorized by OWCP as related to the November 27, 2012 work injury.
4

In an August 29, 2014 report, Dr. Hadden discussed appellant’s medical history and detailed the findings of the
physical examination he performed on that date. He indicated that motor tests showed normal bulk and tone in
appellant’s upper and lower extremities. Dr. Hadden noted that appellant was cleared to return to sedentary work
within the parameters of the August 25, 2014 FCE.

2

by Dr. Hadden in his August 29, 2014 report. The employing establishment requested that he
address whether appellant could perform the offered assignment.
In an October 31, 2014 letter, the employing establishment offered appellant a temporary
modified light-duty assignment on a full-time basis.5 OWCP’s October 31, 2014 letter contained
the same description of the duties and physical requirements of the offered assignment as the
employing establishment’s October 20, 2014 letter. It noted that the assignment was based on
the work restrictions provided by Dr. Hadden and that appellant was expected to report to work
with his regular supervisor on November 17, 2014. OWCP indicated, “In assigning this alternate
work assignment, we have followed the provisions of … 20 C.F.R. § 10.515(d). If you believe
[that] you are unable to perform these duties for medical reasons related to your injury, you must
provide written medical evidence to this effect from your attending physician, no later than
November 17, 2014.”
In an October 27, 2014 report received on November 3, 2014, Dr. Hadden provided
physical examination findings similar to those contained in his August 29, 2014 report. He
indicated that appellant’s lumbar magnetic resonance imaging scan showed no explanation for
his complaints of numbness in both lower extremities and indicated that he was cleared to return
to sedentary work within the parameters of the August 25, 2014 FCE.
In November 7 and 14, 2014 work release forms, Dr. Hadden indicated that appellant was
unable to return to regular work from October 27 to December 14, 2014.
Appellant did not accept the temporary light-duty assignment offered by the employing
establishment. He submitted a November 7, 2014 statement in which he argued that he was
physically unable to perform the duties of that assignment. Appellant asserted that the inventory
duties required him to walk beyond the limits of his work restrictions and would require him to
bend, stoop, kneel, and squat in counter to his work restrictions. He indicated that the
requirement to drive between garages to perform inventories would take two to four hours each
way and, therefore, would violate the restriction from sitting more than 10 to 20 minutes at one
time.
An employing establishment official responded to appellant’s November 7, 2014 letter
and indicated that duties of the offered temporary light-duty assignment would be within his
physical restrictions. The official noted that the inventory duties could be performed from a
sitting or standing position, would only require nonrepetitive climbing, bending, or stooping, and
would not require any kneeling or stooping. Accommodations would be made to allow for use
of assistive carts, chairs, or other reasonable accommodation methods.
The official
acknowledged that some garages that had to be inventoried were two to four hours away from
appellant’s duty station, but indicated that accommodations would be made to allow him to take
breaks between 20-minute periods of driving.
Appellant submitted a November 13, 2014 report in which Dr. Robert L. Shannon, an
attending orthopedic surgeon, diagnosed status post rotator cuff repair of the left shoulder and
5

OWCP indicated that the duties of the offered assignment would remain in effect for 120 days and that the
possibility existed to extend the assignment.

3

indicated that appellant could not lift more than five pounds with his left arm. In December 2
and 18, 2014 reports, Dr. Stephen P. Ireland, an attending Board-certified neurologist, noted that
appellant had degenerative disease of the cervical and lumbar spines, but indicated that his
complaints of lower extremity pain and numbness were not supported by clinical or diagnostic
study findings.6 In December 10, 2014 and January 13, 2015 work release forms, Dr. Hadden
indicated that appellant was unable to return to regular work from December 14, 2014 to
February 14, 2015.
On March 23, 2015 the employing establishment advised OWCP that the temporary
light-duty assignment was still available. It noted that the rate of pay for the assignment was
$38.59 per hour, the same as the current rate of pay for appellant’s date-of-injury position. The
assignment was temporary for 120 days, but could be renewed indefinitely.
In a March 25, 2015 letter, OWCP advised appellant of its determination that the
temporary light-duty assignment offered by the employing establishment on October 31, 2014
was suitable. It informed him that the position was vocationally suitable, as well as physically
suitable per the work restrictions of Dr. Hadden. It noted that the offered assignment was for
40 hours per week with weekly wages of $1,548.80, an amount that equaled the wages of
appellant’s date of injury, and that, therefore, he would not suffer any wage loss if he accepted
the assignment. OWCP discussed its regulations at 20 C.F.R. § 10.500(a) and advised that his
entitlement to wage-loss compensation would be terminated under 20 C.F.R. § 10.500(a) if he
did not accept the offered assignment or provide good cause for not doing so within 30 days of
the date of the letter.
Appellant resubmitted the December 18, 2014 report of Dr. Ireland and reports of
diagnostic testing from late-2014. On April 27, 2015 the employing establishment advised
OWCP that the temporary light-duty assignment it offered appellant on October 31, 2014 was
still available. Appellant did not accept the offered assignment within the allotted period.
In an April 29, 2015 decision, OWCP terminated appellant’s wage-loss compensation
effective May 3, 2015 under 20 C.F.R. § 10.500(a). It noted that he had not accepted the
temporary light-duty assignment, which was within his medical restrictions and found that,
therefore, the termination of his wage-loss compensation effective May 3, 2015 was justified
under 20 C.F.R. § 10.500(a).
LEGAL PRECEDENT
Under FECA, once OWCP has accepted a claim it has the burden of justifying
termination or modification of compensation benefits.7 OWCP may not terminate compensation
without establishing that the disability ceased or that it was no longer related to the employment.8

6

Appellant also submitted reports of diagnostic testing from late-2014.

7

I.J., 59 ECAB 408 (2008); Vivien L. Minor, 37 ECAB 541, 546 (1986).

8

Charles E. Minniss, 40 ECAB 708, 716 (1989).

4

Its burden of proof includes the necessity of furnishing rationalized medical opinion evidence
based on a proper factual and medical background.9
Section 10.500(a) of the Code of Federal Regulations provides:
“(a) Benefits are available only while the effects of a work-related condition
continue. Compensation for wage loss due to disability is available only for any
periods during which an employee’s work-related medical condition prevents him
or her from earning the wages earned before the work-related injury. For
example, an employee is not entitled to compensation for any wage-loss claimed
on a [Form] CA-7 to the extent that evidence contemporaneous with the period
claimed on a [Form] CA-7 establishes that an employee had medical work
restrictions in place; that light duty within those work restrictions was available;
and that the employee was previously notified in writing that such duty was
available. Similarly, an employee receiving continuing periodic payments for
disability was not prevented from earning the wages earned before the
work-related injury if the evidence establishes that the employing [establishment]
had offered, in accordance with OWCP procedures, a temporary light[-]duty
assignment within the employee’s work restrictions. (The penalty provision of
5 U.S.C. § 8106(c)(2) will not be imposed on such assignments under this
paragraph.)”10
When it is determined that an employee is no longer totally disabled from work and is on
the periodic rolls, OWCP’s procedures state that the claims examiner should determine whether
light-duty work was available within the employee’s medical restrictions during the period for
which compensation is claimed and a development letter should be sent to appellant setting forth
the standards under section 10.500(a) including medical evidence required to establish a claim
for wage-loss compensation. The claims examiner should also obtain documentation from the
employing establishment that written notification of light-duty work availability was provided to
the employee, if not already in the file.11 The claims examiner, when adjudicating the claim for
wage-loss compensation, must also determine whether the evidence of record establishes that the
employee was provided with written notification of a light-duty job assignment, that the job was
within the employee’s restrictions, and that the job was available to the employee during the
period wage-loss compensation was claimed.12
ANALYSIS
OWCP accepted that on November 27, 2012 appellant sustained neck sprain, lumbago,
aggravation of lumbosacral stenosis, left shoulder impingement, and temporary aggravation of
9

See Del K. Rykert, 40 ECAB 284, 295-96 (1988).

10

20 C.F.R. § 10.500(a); see also Federal (FECA) Procedure Manual, Part 2 -- Claims, Job Offers and Return to
Work, Chapter 2.814.9(a) (June 2013).
11

Id. at Chapter 2.814.9(b)(2) (June 2013).

12

Id. at Chapter 2.814.9(b)(3).

5

lumbar radiculopathy. Appellant was receiving disability compensation on the periodic rolls.
On October 31, 2014 the employing establishment offered him a temporary light-duty
assignment on a full-time basis. The assignment involved conducting inventories of parts, tools,
equipment, stock, and the contents of flammable lockers; and scribing tools and equipment using
an electric scribe tool weighing eight ounces. The job description indicated that appellant might
be required to travel to other garages to help conduct inventories within the guidelines of his
physical restrictions. The duties of the position met the restrictions provided by Dr. Hadden. In
an August 29, 2014 report, Dr. Hadden had recommended various work restrictions based on
August 29, 2014 physical examination findings and the results of an August 25, 2014 FCE.13 On
October 27, 2014 he reexamined appellant and indicated that the work restrictions provided on
August 29, 2014 were still valid. Appellant refused to accept the position and, as a result, in an
April 29, 2015 decision, OWCP terminated his wage-loss compensation effective May 3, 2015
under 20 C.F.R. § 10.500(a).
The Board finds that OWCP properly terminated appellant’s wage-loss compensation
effective May 3, 2015 under 20 C.F.R. § 10.500(a). Appellant did not accept a temporary lightduty assignment offered by the employing establishment, which was within his medical
restrictions and his vocational ability. The assignment would have paid wages equal to those
paid by his date-of-injury position. Therefore, the termination of his wage-loss compensation
effective May 3, 2015 was justified under 20 C.F.R. § 10.500(a).14
The Board finds that the medical evidence of record shows that appellant could perform
the temporary light-duty assignment offered by the employing establishment in November 2014.
The physical requirements of the offered temporary light-duty assignment were within his
medical restrictions as provided by Dr. Hadden in his August 29 and October 27, 2014 reports.
The Board notes that the medical restrictions provided by Dr. Hadden in these reports constitute
the best picture of appellant’s ability to work around the time that the employing establishment
offered him the temporary light-duty assignment.15
On appeal, counsel argues that appellant was not adequately apprised of how the actual
duties of the offered temporary light-duty assignment could be performed within his medical
restrictions. In early December 2014, the employing establishment addressed these concerns by
13

Dr. Hadden recommended restrictions of lifting no more than 10 pounds; no engaging in repetitive climbing,
bending, or stooping; and no engaging in any kneeling, squatting, or overhead reaching/lifting. Sitting was limited
to 4 to 6 hours a day (10 to 20 minutes at one time) and walking/standing was limited to 4 to 6 hours a day with a
cane (10 to 20 minutes at one time). Dr. Hadden noted that appellant could recline for up to 3 hours at one time, but
that he could not work with moving machinery. He closely patterned his work restrictions on appellant’s physical
capacities for various activities as demonstrated during the August 25, 2014 FCE.
14

See supra note 10.

15

The record also contains several work release forms in which Dr. Hadden indicated that appellant was unable to
return to regular work between late-October 2014 and mid-February 2015, but the forms provided no opinion on
appellant’s ability to perform light-duty work. In a November 13, 2014 report, Dr. Shannon, an attending physician,
diagnosed status post rotator cuff repair of the left shoulder and indicated that appellant could not lift more than five
pounds with his left arm. However, this report is of limited probative value regarding appellant’s ability to work
because Dr. Shannon did not provide any explanation of what specific condition or conditions necessitated the
lifting restriction.

6

explaining in detail how the assignment could be performed within appellant’s medical
restrictions.16
Counsel also argues on appeal that appellant was not advised that the temporary
light-duty assignment offered by the employing establishment would provide him with wages
equal to or greater than the wages he would have earned in his date-of-injury job. However,
OWCP advised appellant of this fact in its March 25, 2015 proposed termination letter and the
record contains evidence from the employing establishment confirming this fact.
The Board further finds that OWCP complied with its procedural requirements by
advising appellant that the offered assignment was suitable, providing him with the opportunity
to accept the position or provide reasons for his refusal, and notifying him that his wage-loss
compensation would be terminated if he failed to submit sufficient evidence showing such
termination was not justified.17
The evidence of record reflects that appellant did not accept a temporary light-duty
assignment offered by the employing establishment which was suitable and which would have
paid him wages equal to those of his date-of-injury job and, therefore, OWCP properly
terminated his wage-loss compensation effective May 3, 2015 under 20 C.F.R. § 10.500(a).
Appellant may submit new evidence or argument with a written request for
reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a)
and 20 C.F.R. §§ 10.605 through 10.607.
CONCLUSION
The Board finds that OWCP properly terminated appellant’s wage-loss compensation
effective May 3, 2015.

16

For example, the employing establishment noted that inventory duties could be performed from a sitting or
standing position, would only require nonrepetitive climbing, bending, or stooping, and would not require any
kneeling or stooping. Accommodations would be made to allow for use of assistive carts, chairs, or other reasonable
accommodation methods. It was acknowledged that some garages that had to be inventoried were 2 to 4 hours
away, but it was noted that accommodations would be made to allow appellant to take breaks between 20-minute
periods of driving. The Board notes that he has not alleged that he was vocationally unable to perform the offered
temporary assignment.
17

See supra notes 11 and 12.

7

ORDER
IT IS HEREBY ORDERED THAT the April 29, 2015 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: July 22, 2016
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

8


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
T.C., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Hammond, IN, Employer
__________________________________________

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

Docket No. 08-1793
Issued: January 6, 2009

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
COLLEEN DUFFY KIKO, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On June 16, 2008 appellant filed a timely appeal of the March 13, 2008 merit decision of
the Office of Workers’ Compensation Programs, finding that she did not sustain an injury while
in the performance of duty. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over the merits of this appeal.
ISSUE
The issue is whether appellant has established that she sustained a right knee injury while
in the performance of duty on August 29, 2006, as alleged.

FACTUAL HISTORY
On August 30, 2006 appellant, then a 41-year-old city carrier, filed a traumatic injury
claim assigned number xxxxxx203, alleging that on August 29, 2006 she experienced swelling
and pain in her right knee while going up and down steps at work.1
Appellant submitted medical reports dated September 1 and 20 and October 30, 2006
from Dr. James J. Murphy, an attending Board-certified orthopedic surgeon, who stated that
appellant could perform sedentary work with restrictions. In the September 1, 2006 report,
Dr. Murphy diagnosed sprained knee. In treatment notes dated September 1 and 20 and
October 30, 2006, he stated that appellant suffered from degenerative joint disease. In an
October 19, 2006 authorization for examination and/or treatment, Dr. Murphy provided a date of
injury as August 29, 2006. He indicated with an affirmative mark that appellant’s right knee
sprain was causally related to an employment activity. In reports dated December 27, 2006,
Dr. Murphy stated that appellant sustained an ACL tear/rupture.
By letter dated February 22, 2007, the Office advised appellant that the evidence
submitted was insufficient to establish her claim. It addressed the additional factual and medical
evidence she needed to submit, including a rationalized medical report from an attending
physician which described her symptoms, results of examination and tests, diagnosis, treatment
provided, the effect of treatment and opinion with medical reasons on whether exposure or
incidents in appellant’s federal employment contributed to her condition.
In a December 27, 2006 treatment note and February 28, 2007 report, Dr. Murphy
addressed appellant’s right knee problems and plan to perform ACL reconstruction.
On March 19, 2007 appellant stated that she previously underwent right knee surgery and
that she resumed her letter carrier duties until August 29, 2006. After experiencing severe pain
while climbing stairs on her route on that date, she went home and put ice on her knee.
Appellant experienced swelling again on the next day while walking and climbing stairs on her
route.
By decision dated April 4, 2007, the Office denied appellant’s claim on the grounds that
the medical evidence was insufficient to establish that the claimed condition was causally related
to the accepted August 29, 2006 employment incident. In an April 10, 2007 letter, appellant
requested an oral hearing before an Office hearing representative.
In treatment notes dated December 27, 2006 and February 28, 2007 and an April 27,
2007 report, Dr. Murphy stated that appellant suffered from an ACL deficiency in the right knee.

1

The record reveals that, prior to the instant claim, appellant filed a claim assigned number xxxxxx947, alleging
that on January 16, 2004 she sustained a right knee injury when she fell to the ground, resulting in a tear of the right
anterior cruciate ligament (ACL) and medial and lateral meniscus, for which she underwent surgery on
March 16, 2004. The Office subsequently denied her claim as not employment related.

2

Following an August 28, 2007 hearing, appellant submitted Dr. Murphy’s September 5,
2007 report which stated that appellant was status post revision ACL reconstruction.2
Dr. Murphy indicated that the surgery was due to an ACL deficient knee. He stated that
appellant suffered from pain and instability for as long as he had been evaluating her in his
clinic. Appellant experienced increasing difficulty with performing her job with an unstable
knee. Dr. Murphy reviewed a description of appellant’s job which required climbing stairs,
getting in and out of vehicles, walking and walking on uneven terrain in all weather conditions.
He opined that her work duties contributed to the exacerbation of her knee problems which
necessitated her recent surgery.
In an August 17, 2007 report, Dr. Murphy stated that appellant would be able to return to
work soon following her revision knee surgery. He requested that the employing establishment
accommodate her need to limit the number of stairs that she used on her routes.
In a November 15, 2007 decision, an Office hearing representative set aside the April 4,
2007 decision and remanded the case to the Office. He found that, although Dr. Murphy’s
September 5, 2007 report was not sufficiently rationalized to meet appellant’s burden of proof to
establish that she sustained a right knee injury causally related to the accepted August 29, 2006
employment incident, it was uncontroverted and raised an inference of causal relationship
sufficient to require further development by the Office. On remand, the hearing representative
instructed the Office to refer appellant, along with a statement of accepted facts and the case
record to an appropriate specialist for a rationalized opinion on whether she sustained a right
knee injury due to the accepted employment incident.
On December 17, 2007 the Office referred appellant to Dr. Theodore J. Suchy, a Boardcertified orthopedic surgeon, for a second opinion medical examination. In a January 7, 2008
report, Dr. Suchy reviewed a history of the August 29, 2006 employment incident and
appellant’s medical treatment. On physical examination, he reported a well-healed and
nontender midline scar of the right knee. Dr. Suchy stated that appellant had no calf pain or
tenderness. Appellant’s circulation, motion and sensation were intact distally. She had full
range of motion of the ankle. Full extension to flexion of the stable right knee was 125 degrees.
A drawer and Lachman’s test were negative. Collateral ligaments were intact to varus and
valgus stress. Circumferential measurements included 31 centimeters of the right calf, 42.5
centimeters of the left calf, 45 centimeters of the right knee, 42 centimeters of the left knee, 55
centimeters of the right thigh and 56 centimeters of the left thigh. There was full range of
motion of the bilateral hips symmetrically. On x-ray examination, Dr. Suchy reported advanced
degenerative changes in the left knee with almost complete loss of medial compartment space.3
He stated that there appeared to be evidence of chronic degenerative changes with osteophyte
formation, specifically patellofemoral articulation and medial compartment.
Dr. Suchy found that appellant was status post ACL reconstruction twice with advanced
degenerative joint disease of the right knee. He found no objective findings of instability.
2

On July 5, 2007 appellant underwent right knee surgery.

3

It appears that Dr. Suchy inadvertently stated that appellant sustained advanced degenerative changes in the left
knee rather than in the right knee as he subsequently diagnosed her as having this condition in the right knee.

3

Dr. Suchy opined that appellant’s right knee condition was not work related. He explained that
her original injury was an ACL tear that was not work related. Dr. Suchy stated that there was
no contributing factor from appellant’s light-duty work4 or aggravation or acceleration of her
ACL tear. He noted her complaints of pain with walking and climbing stairs which he
characterized as normal daily activities. Dr. Suchy opined that appellant’s work in no way
accelerated her preexisting condition. He stated that her condition was based on instability she
experienced which necessitated prior hamstring reconstruction and then subsequent revision of
the ACL reconstruction. Dr. Suchy further opined that appellant was permanently disabled from
walking any length of time and using stairs due to significant patellofemoral arthritis
demonstrated on x-rays. Appellant was also permanently restricted from stair and ladder
climbing, walking for longer than 30 minutes at any given time, squatting and kneeling.
Dr. Suchy concluded that the natural course of the degenerative process would eventually
progress and require appellant to undergo knee arthroplasty.
By decision dated April 13, 2008, the Office again denied appellant’s claim. The medical
evidence failed to establish that she sustained a right knee injury causally related to the accepted
August 29, 2006 employment incident based on Dr. Suchy’s January 7, 2008 opinion.
LEGAL PRECEDENT
An employee seeking benefits under the Federal Employees’ Compensation Act5 has the
burden of establishing 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 the Act; that the claim was
filed within applicable time limitation; that an injury was sustained while in the performance of
duty as alleged; and that any disability and/or specific condition for which compensation is
claimed are causally related to the employment injury.6 These are the essential elements of each
and every compensation claim regardless of whether the claim is predicated on a traumatic injury
of an occupational disease.7
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether the fact of injury has been established.
There are two components involved in establishing the fact of injury. First, the employee must
submit sufficient evidence to establish that he or she actually experienced the employment
incident at the time, place and in the manner alleged.8 Second, the employee must submit

4

Following her July 5, 2007 right knee surgery, appellant returned to light-duty work on September 21, 2007.

5

5 U.S.C. §§ 8101-8193.

6

Joe D. Cameron, 41 ECAB 153 (1989); Elaine Pendleton, 40 ECAB 1143 (1989).

7

See Irene St. John, 50 ECAB 521 (1999); Michael E. Smith, 50 ECAB 313 (1999); Elaine Pendleton, supra
note 6.
8

Bonnie A. Contreras, 57 ECAB 364, 367 (2006); Edward C. Lawrence, 19 ECAB 442, 445 (1968).

4

evidence, in the form of medical evidence, to establish that the employment incident caused a
personal injury.9
ANALYSIS
The record supports that on August 29, 2006 appellant walked up and down stairs while
delivering mail on her route. The Office, however, found that the medical evidence was
insufficient to establish that the accepted employment incident caused a right knee injury based
on the medical opinion of Dr. Suchy, an Office referral physician. The Board finds that
appellant has failed to establish that she sustained a right knee injury in the performance of duty
on August 29, 2006, as alleged.
In a January 7, 2008 report, Dr. Suchy reviewed a history of the August 29, 2006
employment incident. He opined that her right knee condition was not work related. Dr. Suchy
stated that her original injury was an ACL tear that was not work related. He also stated that
there was no contributing factor from appellant’s light-duty work, aggravation or acceleration of
her preexisting ACL tear. Dr. Suchy noted her complaints of pain with walking and climbing
stairs which he characterized as normal daily activities. He further related that appellant’s
condition was based on instability she experienced which necessitated prior hamstring
reconstruction and then subsequent revision of the ACL reconstruction. Dr. Suchy concluded
that the natural course of the degenerative process would eventually progress and require
appellant to undergo knee arthroplasty.
The Board finds that Dr. Suchy’s opinion is sufficiently well rationalized and based upon
a proper factual background such that it is the weight of the evidence on the issue of whether
appellant sustained a right knee condition causally related to the August 29, 2006 employment
incident. The Board has noted that in assessing medical evidence the weight of such evidence is
determined by its reliability, its probative value and its convincing quality and the factors which
enter in such an evaluation include the opportunity for and thoroughness of examination, the
accuracy and completeness of the physician’s knowledge of the facts and medical history, the
care of the analysis manifested and the medical rationale expressed in support of the physician’s
opinion.10 The Board has carefully reviewed Dr. Suchy’s January 7, 2008 report and finds that it
has such reliability, probative value and convincing quality. Prior to reaching his conclusions,
Dr. Suchy extensively detailed appellant’s factual and medical history and reported the findings
based on his review of appellant’s medical records. He provided a proper analysis of the factual
and medical history and objective test findings of record and reached conclusions regarding
appellant’s condition which comported with this analysis.
In his several reports, although Dr. Murphy noted appellant’s employment duties and
concluded her right knee problem was employment related, he provided no rationale explaining
how her employment either caused or aggravated the degenerative arthritis, knee strain or torn

9

T.H., 59 ECAB ___ (Docket No. 07-2300, issued March 7, 2008); John J. Carlone, 41 ECAB 354, 35657 (1989).
10

See Melvina Jackson, 38 ECAB 443, 449-50 (1987); Naomi Lilly, 10 ECAB 560, 573 (1959).

5

ACL. As his reports contained statements without explaining the mechanism of the injury and
its relationship to appellant’s employment duties, they were insufficient to establish her claim.
The Board finds that appellant has not submitted rationalized medical evidence
establishing that her claimed right knee condition was causally related to the August 29, 2006
employment incident. Appellant did not meet her burden of proof.
CONCLUSION
The Board finds that appellant has failed to establish that she sustained a right knee injury
while in the performance of duty on August 29, 2006, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the March 13, 2008 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: January 6, 2009
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
E.P., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Indianapolis, IN, Employer
__________________________________________

)
)
)
)
)
)
)
)

Appearances:
Lonnie Boylan, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 13-1442
Issued: December 9, 2013

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 June 4, 2013 appellant, through his attorney, filed a timely appeal from a March 11,
2013 merit decision of the Office of Workers’ Compensation Programs (OWCP) and a May 10,
2013 nonmerit decision of 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.
ISSUES
The issues are: (1) whether OWCP properly denied appellant’s request for a schedule
award; and (2) whether OWCP properly denied appellant’s request for a hearing under section
8124 of FECA.
FACTUAL HISTORY
On April 16, 2007 appellant, then a 30-year-old mail processing clerk, filed an
occupational disease claim alleging cervical spondylosis due to repetitive bending, reaching
1

5 U.S.C. §§ 8101-8193.

above his shoulders, twisting, lifting and pulling trays out of mail machines. OWCP accepted his
claim for an aggravation of cervical and lumbar disc degeneration. Appellant worked in
modified-duty positions at the employing establishment with intermittent periods of disability.
On March 11, 2008 OWCP accepted that he sustained a cervical strain due to continuously
moving his arms and neck to sort mail, reaching above his shoulders and reaching down into a
cart to get bundles of magazines. After his March 11, 2008 injury, appellant returned to work
with restrictions.
The findings of a March 11, 2011 magnetic resonance imaging (MRI) scan of appellant’s
cervical spine showed minimal multilevel spondylosis at C3 through C7 which caused a very
mild flattening of the thecal sac and neural foramen throughout. MRI scan testing of his lumbar
spine on the same date showed mild multilevel spondylosis at L2 through S1 which represented
minimal multilevel flattening of the lateral recesses.
On September 13, 2012 appellant filed a claim for a schedule award due to his accepted
injuries. He did not submit any medical evidence providing an evaluation of permanent
impairment of his arms or legs.
In December 2012, OWCP referred appellant to Dr. Norman Mindrebo, a Board-certified
orthopedic surgeon, for a second opinion regarding whether he sustained any permanent
impairment of his arms or legs under the standards of the American Medical Association, Guides
to the Evaluation of Permanent Impairment (6th ed. 2009). OWCP sent Dr. Mindrebo the case
record and provided him with a statement of accepted facts.
In a January 10, 2013 report, Dr. Mindrebo reviewed the medical record describing
appellant’s condition, including the findings of diagnostic testing. He also reviewed the
statement of accepted facts and discussed appellant’s medical history. Appellant stated that he
had a functional capacity evaluation about a year prior, but the results of which did not appear in
the record.2 Upon physical examination, he complained of intermittent pain down his arms and
down his legs but with no specific radicular pattern. When sitting and standing, appellant tilted
his head to the right with his left shoulder slightly drooping. Dr. Mindrebo stated that appellant
had no motor deficits to strength testing of the shoulders, elbows, wrists and digits. Light touch
sensation was intact in all the major cervical dermatomes and there was no major palpable
trapezius or paravertebral muscle spasm in the neck or in the low back. Dr. Mindrebo found that
straight leg testing was negative, deep tendon reflexes of the upper and lower extremities were
intact and there were no major motor deficits to strength testing in the lower extremities. He
noted that appellant had a foot-dragging gait, but he could not explain it given appellant’s normal
deep tendon reflexes and the normal motor examination of his legs, feet and ankles while sitting.
Dr. Mindrebo stated that because appellant’s cervical and lumbar strains were still active and had
not significantly improved, appellant was basically at maximal medical improvement with regard
to these conditions. He noted:
“In my opinion, the spondylotic changes to his cervical and lumbar strains are not
directly work related, but were exacerbated by the cervical and lumbar strains and
are now quiescent, since he has no evidence of radicular signs on today’s
2

Dr. Mindrebo noted that, if an opinion were requested on appellant’s work restrictions, he would like to see a
copy of the functional capacity examination.

2

exam[ination]. Therefore, maximal medical improvement with regard to the
cervical and lumbar strains has occurred, and the approximate date would be
today’s date, January 10, 2012. This is supported by objective findings of normal
deep tendon reflexes, full range of motion of the shoulders, elbows, wrists, digits,
hips, knees, and ankles, and no paravertebral spasm or atrophy noted upon
inspection of the patient’s cervical, thoracic or lumbar spinal musculature. He
does have the bizarre postural position of head tilt to the right and left shoulder
down and that is difficult to explain. Therefore, using the [sixth edition of the
A.M.A., Guides], Cervical Spine Table 17-2 addresses soft tissue and nonspecific
conditions as a class 1 injury that is [g]rade C or two percent whole person
impairment. Likewise, Table 17-4 addresses soft tissue and nonspecific injuries
to the lumbar spine, again, as a two percent whole person impairment for a
combined four percent whole person impairment, secondary to his work-related
cervical and lumbar strains.”
In a supplemental report dated January 17, 2013, Dr. Mindrebo reiterated that appellant
had no radicular pattern to the pain in his neck and back that would involve sensory deficit or
motor deficit to the upper or lower extremities. He stated, “Therefore, based on the sixth edition
[of the A.M.A., Guides], there is no permanent partial impairment secondary to his cervical and
lumbar strains.”
On February 7, 2013 an OWCP medical adviser agreed with Dr. Mindrebo’s opinion.
Based on the A.M.A., Guides, appellant had no permanent partial impairment in his extremities
secondary to his accepted work injuries.
In a March 11, 2013 decision, OWCP denied appellant’s claim for a schedule award
finding that the weight of the medical evidence regarding the matter rested with the January 10
and 17, 2013 reports of Dr. Mindrebo.
In a letter dated and postmarked April 11, 2013, appellant requested reconsideration of
his claim before an OWCP hearing representative and provided additional argument.
In a May 10, 2013 decision, OWCP denied appellant’s request for a hearing under section
8124 of FECA. It found that his request was untimely as it was not filed within 30 days of the
issuance of OWCP’s March 11, 2013 merit decision.3 OWCP considered appellant’s request and
determined that the issue of the case could equally well be addressed by requesting
reconsideration and submitting additional medical evidence to establish his schedule award claim.
LEGAL PRECEDENT -- ISSUE 1
An employee seeking compensation under FECA has the burden of establishing the
essential elements of his claim, including that he sustained an injury in the performance of duty
as alleged and that an employment injury contributed to the permanent impairment for which

3

Appellant’s hearing request was filed on April 11, 2013 which was 31 days after the issuance of OWCP’s
March 11, 2013 decision.

3

schedule award compensation is alleged.4 The medical evidence required to establish a causal
relationship is rationalized medical opinion evidence. Rationalized medical opinion evidence is
medical evidence which includes a physician’s rationalized opinion on the issue of whether there
is a causal relationship between the claimant’s diagnosed condition and the implicated
employment factors. The opinion of the physician must be based on a complete factual and
medical background of the claimant, 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.5
The schedule award provision of FECA6 and its implementing regulations7 set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss, or loss of use, of scheduled members or functions of the body. However, FECA does not
specify the manner in which the percentage of loss shall be determined. For consistent results
and to ensure equal justice under the law to all claimants, good administrative practice
necessitates the use of a single set of tables so that there may be uniform standards applicable to
all claimants. The A.M.A., Guides has been adopted by the implementing regulations as the
appropriate standard for evaluating scheduled losses.8 The effective date of the sixth edition of
the A.M.A., Guides is May 1, 2009.9
A schedule award is not payable for the loss, or loss of use, of a part of the body that is not
specifically enumerated under FECA. Neither FECA nor its implementing regulations provide for a
schedule award for impairment to the body as a whole.10
ANALYSIS -- ISSUE 1
OWCP accepted that appellant sustained a cervical strain and aggravation of cervical disc
degeneration and lumbar disc degeneration. Appellant requested a schedule award due to these
accepted injuries. On March 11, 2013 OWCP denied his schedule award finding that the weight
of the medical evidence regarding the matter rested with the opinion of Dr. Mindrebo, a Boardcertified orthopedic surgeon.
The Board finds that OWCP properly denied appellant’s claim for a schedule award.

4

See Bobbie F. Cowart, 55 ECAB 476 (2004). In Cowart, the employee claimed entitlement to a schedule award
for permanent impairment of her left ear due to employment-related hearing loss. The Board determined that
appellant had not established that an employment-related condition contributed to her hearing loss and, therefore, it
denied her claim for entitlement to a schedule award for the left ear.
5

Victor J. Woodhams, 41 ECAB 345, 351-52 (1989).

6

5 U.S.C. § 8107.

7

20 C.F.R. § 10.404 (1999).

8

Id.

9

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

10

James E. Mills, 43 ECAB 215, 219 (1991); James E. Jenkins, 39 ECAB 860, 866 (1990).

4

In a January 10, 2013 report, Dr. Mindrebo provided a review of the medical records
describing appellant’s condition, including the findings of diagnostic testing. He noted that,
upon examination, appellant complained of intermittent pain down his arms and legs, but with no
specific radicular pattern. Dr. Mindrebo stated that appellant had no motor deficits to strength
testing of the shoulders, elbows, wrists and digits. Light touch sensation was intact in all the
major cervical dermatomes and there was no major palpable trapezius or paravertebral muscle
spasm in the neck or in the low back. Straight leg testing was negative, deep tendon reflexes of
the upper and lower extremities were intact and there were no major motor deficits to strength
testing in the lower extremities. In a supplemental report dated January 17, 2013, Dr. Mindrebo
stated that, as noted in his January10, 2013 report, appellant had no radicular pattern to his pain
in his neck and his back that would involve sensory deficits or motor deficits to the upper or
lower extremities. He stated, “Therefore, based on the sixth edition [of the A.M.A., Guides],
there is no permanent partial impairment secondary to his cervical and lumbar strains.”11
The Board finds that OWCP properly relied on Dr. Mindrebo’s well-rationalized opinion.
Appellant noted that the medical evidence of record and the physical examination did not support
that he sustained permanent impairment of his arms or legs. On February 7, 2013 an OWCP
medical adviser discussed Dr. Mindrebo’s opinion and stated his agreement that, based on the
A.M.A., Guides, appellant had no permanent partial impairment in his extremities secondary to
his accepted work injuries. Appellant did not submit any medical evidence containing an
evaluation of permanent impairment of his arms or legs.
On appeal, counsel argued that Dr. Mindrebo’s opinion was invalid because he did not
have a copy of a functional capacity evaluation that appellant mentioned had occurred about one
year prior. In his January 10, 2013 report, Mr. Mindrebo provided a review of appellant’s
medical history, including the findings on examination and diagnostic. The Board finds that he
had a sufficient understanding of appellant’s medical condition. Moreover, it should be noted
that Dr. Mindrebo was asked to indicate whether appellant had any current arm impairment
rather than comment on his medical condition in the past.12 Counsel also argued that appellant
did not have a clear picture of the accepted work injuries. Dr. Mindrebo was provided with a
current and accurate statement of accepted facts and he discussed all the accepted work
conditions.
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.
LEGAL PRECEDENT -- ISSUE 2
Section 8124(b)(1) of FECA, concerning a claimant’s entitlement to a hearing before an
Office representative, provides in pertinent part: “Before review under section 8128(a) of this title,
11

In his January 10, 2013 report, Dr. Mindrebo provided an impairment rating based on the whole body.
However, impairment ratings of the whole body are not accepted under FECA. See supra note 10.
12

Dr. Mindrebo noted that, if an opinion were requested on appellant’s work restrictions, he would like to see a
copy of the functional capacity examination. However, he did not provide any indication that he needed the report
to conduct an impairment evaluation.

5

a claimant for compensation not satisfied with a decision of the Secretary ... is entitled, on request
made within 30 days after the date of the issuance of the decision, to a hearing on his claim before
a representative of the Secretary.”13 As section 8124(b)(1) is unequivocal in setting forth the time
limitation for requesting a hearing, a claimant is not entitled to a hearing as a matter of right unless
the request is made with in the requisite 30 days.14 The date of filing is fixed by postmark or other
carrier’s date marking.15
The Board has held that OWCP, in its broad discretionary authority in the administration of
FECA, has the power to hold hearings in certain circumstances where no legal provision was made
for such hearings and that OWCP must exercise this discretionary authority in deciding whether to
grant a hearing.16 Specifically, the Board has held that OWCP has the discretion to grant or deny a
hearing request on a claim involving an injury sustained prior to the enactment of the 1966
amendments to FECA which provided the right to a hearing,17 when the request is made after the
30-day period for requesting a hearing,18 and when the request is for a second hearing on the same
issue.19
ANALYSIS -- ISSUE 2
In the present case, appellant’s April 11, 2013 hearing request was made more than 30
days after the date of issuance of OWCP’s prior decision dated March 11, 2013 and, thus, he was
not entitled to a hearing as a matter of right. He requested a hearing before an OWCP hearing
representative in a letter dated and postmarked April 11, 2013, i.e., 31 days after the issuance of
OWCP’s March 11, 2013 decision. Hence, OWCP was correct in stating in its May 1, 2013
decision that appellant was not entitled to a hearing as a matter of right because his April 11,
2013 hearing request was not made within 30 days of OWCP’s March 11, 2013 decision.
While OWCP also has the discretionary power to grant a hearing when a claimant is not
entitled to a hearing as a matter of right, OWCP, in its May 10, 2013 decision, properly exercised
its discretion by indicating it had carefully considered appellant’s request and had determined
that the issue of the case could equally well be addressed by requesting reconsideration and
submitting additional medical evidence to establish his schedule award claim. The Board has
held that as the only limitation on OWCP’s authority is reasonableness, abuse of discretion is
generally shown through proof of manifest error, clearly unreasonable exercise of judgment, or
actions taken which are contrary to both logic and probable deduction from established facts.20 In
13

5 U.S.C. § 8124(b)(1).

14

Ella M. Garner, 36 ECAB 238, 241-42 (1984).

15

See 20 C.F.R. § 10.616(a).

16

Henry Moreno, 39 ECAB 475, 482 (1988).

17

Rudolph Bermann, 26 ECAB 354, 360 (1975).

18

Herbert C. Holley, 33 ECAB 140, 142 (1981).

19

Johnny S. Henderson, 34 ECAB 216, 219 (1982).

20

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

6

the present case, the evidence of record does not indicate that OWCP committed any act in
connection with its denial of appellant’s hearing request which could be found to be an abuse of
discretion.
CONCLUSION
The Board finds that OWCP properly denied appellant’s request for a schedule award.
The Board further finds that OWCP properly denied appellant’s request for a hearing under
section 8124 of FECA.
ORDER
IT IS HEREBY ORDERED THAT the May 10 and March 11, 2013 decisions of the
Office of Workers’ Compensation Programs are affirmed.
Issued: December 9, 2013
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

7