United States Department of Labor
Employees’ Compensation Appeals Board
___________________________________________
)
)
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and
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DEPARTMENT OF HOMELAND SECURITY,
)
TRANSPORTATION SECURITY
)
ADMINISTRATION, Washington, DC, Employer )
___________________________________________ )
C.N., Appellant

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

Docket No. 07-28
Issued: March 2, 2007

Case Submitted on the Record

DECISION AND ORDER
Before:
DAVID S. GERSON, Judge
MICHAEL E. GROOM, Alternate Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION
On October 2, 2006 appellant filed a timely appeal from the Office of Workers’
Compensation Programs’ merit decision dated September 19, 2006 which denied her claim for a
head injury. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of the case.
ISSUE
The issue on appeal is whether appellant has met her burden of proof in establishing that
she sustained a head injury in the performance of duty.
FACTUAL HISTORY
On April 27, 2006 appellant, then a 57-year-old security officer, filed a claim alleging
that, on April 20, 2006, she struck her head on a beam in the stairwell of the employing
establishment while in the performance of duty. She stopped work on April 20, 2006. In a

witness statement on the CA-1, Omar J. Reynoso, a coworker, indicated that, on April 20, 2006,
he saw appellant hit her head in the stairwell while at work.
Appellant submitted a report of a computerized tomography (CT) scan of the
maxial/facial full sinus, dated May 2, 2006, prepared by Dr. Sangeeta Srivastava, a Boardcertified radiologist. The CT scan revealed no evidence of a fracture or abnormality involving
the left orbit including the left orbital wall and the intraconal structures. Also submitted were
physical therapy notes dated July 6 to 16, 2006 for treatment and therapy including electrical
stimulation of the left ankle.
By letter dated August 18, 2006, the Office asked appellant to submit additional
information including a comprehensive medical report from her treating physician which
included a reasoned explanation as to how the specific work factors or incidents identified by
appellant had contributed to her claimed head injury.
Appellant submitted physical therapy notes from June 13 to August 23, 2006 which noted
that appellant underwent electrical stimulation of the left ankle.
In a decision dated September 19, 2006, the Office denied appellant’s claim on the
grounds that the medical evidence was not sufficient to establish that her condition was caused
by the factors of employment as required by the Federal Employees’ Compensation Act.1
LEGAL PRECEDENT
An employee seeking benefits under the Act 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 the applicable time
limitation of the Act, that an injury was sustained in the performance of duty as alleged and that
any disability and/or specific condition for which compensation is claimed are causally related to
the employment injury. These are the essential elements of each and every compensation claim
regardless of whether the claim is predicated upon a traumatic injury or an occupational disease.2
In order to determine whether an employee actually sustained an injury in the
performance of duty, the Office begins with an analysis of whether fact of injury has been
established. Generally, fact of injury consists of two components which must be considered in
conjunction with one another. The first component to be established is that the employee
actually experienced the employment incident which is alleged to have occurred.3 The second
component is whether the employment incident caused a personal injury and generally can be
established only by medical evidence. To establish a causal relationship between the condition,
as well as any attendant disability, claimed and the employment event or incident, the employee

1

5 U.S.C. §§ 8101-8193.

2

Gary J. Watling, 52 ECAB 357 (2001).

3

Michael E. Smith, 50 ECAB 313 (1999).

2

must submit rationalized medical opinion evidence, based on a complete factual and medical
background, supporting such a causal relationship.4
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 weight of medical evidence is determined by its reliability, its
probative value, its convincing quality, the care of analysis manifested and the medical rationale
expressed in support of the physician’s opinion.6
ANALYSIS
The Office properly found that the April 20, 2006 incident occurred as appellant alleged.7
The Board finds, however, that the medical evidence is insufficient to establish that appellant
sustained a head injury causally related to the April 20, 2006 incident. On August 18, 2006 the
Office advised appellant of the medical evidence needed to establish her claim. Appellant did
not submit a rationalized medical report from an attending physician addressing how specific
employment factors may have caused or aggravated her claimed condition.
Appellant submitted a CT scan of the maxial/facial full sinus dated May 2, 2006, which
revealed no evidence of a fracture or abnormality involving the left orbit including the left orbital
wall and the intraconal structures. However, this report does not provide reference to the
April 20, 2006 incident or a physician’s rationalized opinion regarding the causal relationship
between appellant’s head injury and the factors of employment believed to have caused or
contributed to such condition.8 For example, appellant did not submit a physician’s report
explaining how the April 20, 2006 work incident caused or aggravated a specific medical
condition. She submitted various physical therapy notes from June 13 to August 23, 2006.
However, the Board has held that treatment notes signed by a physical therapist are not

4

Id.

5

Leslie C. Moore, 52 ECAB 132 (2000).

6

Jimmie H. Duckett, 52 ECAB 332 (2001); Franklin D. Haislah, 52 ECAB 457 (2001) (medical reports not
containing rationale on causal relationship are entitled to little probative value).
7

Although appellant’s supervisor noted on the Form CA-1 that appellant was on a break when she struck her
head, the employing establishment did not dispute that appellant was in the performance of duty at the time of the
incident.
8

Id.

3

considered medical evidence as a physical therapist is not a physician under the Act.9 Therefore,
these reports are insufficient to meet appellant’s burden of proof.
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.10
CONCLUSION
The Board finds that appellant failed to meet her burden of proof to establish that she
sustained a head injury causally related to her April 20, 2006 employment incident.11

9

See 5 U.S.C. § 8101(2) (this subsection defines a “physician” as surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic practitioners within the scope of their practice as defined
by State law. See also Charley V.B. Harley, 2 ECAB 208, 211 (1949) (where the Board has held that a medical
opinion, in general, can only be given by a qualified physician).
10

See Dennis M. Mascarenas, 49 ECAB 215 (1997).

11

With her request for an appeal, appellant submitted additional evidence. However, the Board may not consider
new evidence on appeal; see 20 C.F.R. § 501.2(c).

4

ORDER
IT IS HEREBY ORDERED THAT the September 19, 2006 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: March 2, 2007
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
N.T., Appellant
and
GENERAL SERVICES ADMINISTRATION,
PUBLIC BUILDING SERVICE,
Kansas City, MO, Employer
__________________________________________

)
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)
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)

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

Docket No. 12-1024
Issued: December 20, 2012

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On April 16, 2012 appellant, through his attorney, filed a timely appeal from an Office of
Workers’ Compensation Programs’ (OWCP) merit decision dated December 2, 2011 denying his
claim for an employment-related injury. Pursuant to the Federal Employees’ Compensation Act1
(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this
case.
ISSUE
The issue is whether appellant met his burden of proof to establish that he sustained an
aggravation of a preexisting emotional condition causally related to a May 14, 2007 employment
incident.

1

5 U.S.C. § 8101 et seq.

On appeal, appellant’s attorney contends that Sean R. Evers, Ph.D., a clinical
psychologist, supported that appellant’s Asperger’s syndrome was aggravated by his work duties
and established causal relationship.
FACTUAL HISTORY
On May 13, 2010 appellant, then a 51-year-old building maintenance specialist, filed a
traumatic injury claim (Form CA-1) alleging that he sustained an aggravation of his preexisting
Asperger’s syndrome as a result of being forced to attend a fitness-for-duty examination on
May 14, 2007. The employing establishment advised on the claim form that he had been
terminated effective September 4, 2007.
By letter dated June 3, 2010, OWCP requested additional factual and medical evidence.
It afforded appellant 30 days to submit additional evidence and respond to its inquiries.
Appellant submitted an April 27, 2007 letter from the employing establishment directing
him to report for a fitness-for-duty examination and a July 2, 2010 narrative statement indicating
that he submitted to the examination on May 14, 2007. He stated that he was forced to travel
100 miles to attend the examination which caused him stress and anxiety. As part of the
examination, appellant had to recount the incidents that caused a June 15, 2005 employment
injury2 and describe what happened to cause him to decompensate during a January 9, 2007
second opinion evaluation, causing him stress and anxiety. He stated that he was forced to
endure close physical contact by Dr. Robert Boesch, the Board-certified occupational medicine
physician who conducted the fitness-for-duty examination, which included touching of his chest
and genitals.
In reports dated March 25, 2008, January 26 and April 6, 2010, Dr. Evers advised that he
had treated appellant since September 26, 2005. He diagnosed Asperger’s disorder and anxiety
disorder. On March 25, 2008 Dr. Evers opined that on or about March 23, 2005 appellant
experienced a traumatic set of circumstances that caused an exacerbation of his psychological
difficulties resulting in an exacerbation of his anxiety disorder and the obsessive-compulsive
symptoms secondary to his Asperger’s disorder.
Appellant’s workload increased in
November 2004 which exacerbated his Asperger’s symptomology. The situation came to head
on or about March 23, 2005 when a flood at work required appellant to stay late, but he had
previously been told not to stay after work. Dr. Evers opined that this confluence of
contradictory directives was more than appellant could manage given his psychological
limitation.
By decision dated July 9, 2010, OWCP denied appellant’s claim finding that the evidence
failed to establish fact of injury.
On August 7, 2001 appellant, through his attorney, requested an oral hearing before an
OWCP hearing representative. He submitted treatment notes by Dr. Evers dated September 26,
2005 to November 24, 2010.
2

Under OWCP File No. xxxxxx813, OWCP accepted a claim for aggravation of hypertension and appellant
received disability benefits.

2

In a January 9, 2007 report, Dr. John J. Verdon, Jr., a Board-certified psychiatrist, listed
the diagnosis of Asperger’s disorder, rendered by a psychologist, on questionable grounds. He
opined that Dr. Evers missed the essential diagnosis of obsessive-compulsive disorder, which
was quite severe. Upon examination, Dr. Verdon found that appellant was completely
disorganized, perplexed, confused, ruminative, fearful and easily flustered. However, he could
engage in a brief nonthreatening examination and be focused with goal direction. Dr. Verdon
stated that appellant had been a long-standing employee of the Federal Government and advised
that he was not fit for duty from a psychiatric standpoint.
In an October 13, 2010 report, Dr. Evers reiterated that appellant’s emotional conditions
were aggravated by the May 14, 2007 examination by Dr. Boesch. He explained that appellant
found medical examination particularly difficult, especially when he had to travel a distance or if
it involved physical contact. Appellant’s fitness-for-duty examination by Dr. Boesch was
approximately 70 miles from his home and he became very anxious due to the distance he had to
travel and the fact that the examination could be critical to his return to work. After the
examination, appellant manifested heightened anxiety and obsessive compulsive symptomology.
Dr. Evers opined that appellant was in a state of emotional paralysis due to the May 14, 2007
examination. He was unable to function appropriately and manage his personal affairs for
several months as he reviewed and re-reviewed the examination.
On December 6, 2010 an oral hearing was held before an OWCP hearing representative.
Appellant provided testimony and the hearing representative held the case open for 30 days for
the submission of additional evidence.
By decision dated January 25, 2011, the hearing representative modified the July 9, 2010
decision to find that the evidence established that appellant was touched by Dr. Boesch and
recounted his medical history. The claim denial was affirmed on the basis that causal
relationship was not established.
On June 27, 2011 appellant, through his attorney, requested reconsideration. He
submitted a June 7, 2011 report by Dr. Evers who reiterated the diagnosis and opined that the
May 14, 2007 examination by Dr. Boesch caused appellant an acute period of anticipatory
anxiety prior to the examination; a marked period of decomposition immediately after the
examination due to the physical contact; and that the stress of the examination caused
decomposition when it became apparent that the examination had not resulted in a formal report.
Appellant had also been misled into signing a settlement agreement which ended his career with
the employing establishment.
Appellant submitted reports dated August 1 and September 16, 2011 by Dr. Joseph W.
Slap, a Board-certified psychiatrist, who diagnosed Asperger’s disorder. Dr. Slap opined that, if
appellant’s promotion occurred before June 15, 2005, the incident was related to his Asperger’s
disease. If the promotion was not discussed, then Dr. Slap would conclude that the June 15,
2005 incident was unrelated to the Asperger’s disease.
By decision dated December 2, 2011, OWCP denied modification of the January 25,
2011 decision on the basis that the evidence submitted was insufficient to establish causal

3

relationship between the aggravation of appellant’s Asperger’s disorder and the May 14, 2007
employment incident.
LEGAL PRECEDENT
An employee seeking benefits under FECA3 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 FECA, that the claim was timely filed within the applicable time
limitation period of FECA, that an injury4 was sustained in the performance of duty, as alleged,
and that any disability or medical condition for which compensation is claimed is causally
related to the employment injury.5
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.
A fact of injury determination is based on two elements. 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. Second, the employee must submit sufficient
evidence, generally only in the form of medical evidence, to establish that the employment
incident caused a personal injury. An employee may establish that the employment incident
occurred as alleged but fail to show that his or her condition relates to the employment incident.6
Causal relationship is a medical issue and the medical evidence generally required to
establish causal relationship is rationalized medical opinion evidence. The opinion of the
physician must be based on a complete factual and medical background of the employee, must be
one of reasonable medical certainty and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and the specific employment factors
identified by the employee.7
ANALYSIS
OWCP has accepted that the employment incident of May 14, 2007 occurred at the time,
place and in the manner alleged. The issue is whether an aggravation of appellant’s preexisting
emotional condition resulted from the May 14, 2007 employment incident. The Board finds that
he did not meet his burden of proof to establish a causal relationship between the condition for
which compensation is claimed and the May 14, 2007 employment incident.
3

5 U.S.C. §§ 8101-8193.

4

OWCP’s regulations define a traumatic injury as a condition of the body caused by a specific event or incident,
or series of events or incidents, within a single workday or shift. Such condition must be caused by external force,
including stress or strain, which is identifiable as to time and place of occurrence and member or function of the
body affected. 20 C.F.R. § 10.5(ee).
5

T.H., 59 ECAB 388 (2008).
1143 (1989).

See Steven S. Saleh, 55 ECAB 169 (2003); Elaine Pendleton, 40 ECAB

6

Id. See Shirley A. Temple, 48 ECAB 404 (1997); John J. Carlone, 41 ECAB 354 (1989).

7

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

4

Dr. Evers diagnosed Asperger’s disorder and anxiety disorder. On March 25, 2008 he
opined that appellant’s emotional condition was aggravated by a flood at work on or about
March 23, 2005. On October 13, 2010 Dr. Evers opined that appellant’s emotional condition
was aggravated by a May 14, 2007 examination by Dr. Boesch. He failed to reconcile the date
of injury as he indicated that appellant’s emotional condition was aggravated at work on or about
March 23, 2005 and on May 14, 2007 as a result of the fitness-for-duty examination. Dr. Evers’
reports fail to adequately address the causal relationship between the aggravation of appellant’s
conditions and the May 14, 2007 employment incident. The fact that work activities produced
pain or discomfort revelatory of an underlying condition does not raise an inference of an
employment relation.8 Dr. Evers did not explain how the contact by Dr. Boesch, found to be
appropriate, or addressing the medical history on May 14, 2007 caused or aggravated appellant’s
conditions. He did not provide sufficient medical rationale for his conclusion that appellant’s
Asperger’s or anxiety disorder were caused or aggravated by the May 14, 2007 examination.
Lacking thorough medical rationale on the issue of causal relationship, the reports are of limited
probative value and not sufficient to establish that appellant sustained an employment-related
injury in the performance of duty on May 14, 2007.
Dr. Slap diagnosed Asperger’s disorder. He opined that, if appellant’s promotion
occurred before June 15, 2005, then he would conclude that the June 15, 2005 incident was
related to his Asperger’s disease. If the promotion was not discussed, then Dr. Slap would
conclude that the June 15, 2005 incident was unrelated to the Asperger’s disease. Although he
provided a firm diagnosis, Dr. Slap attributed appellant’s condition to an injury other than the
May 14, 2007 employment incident. His reports are of a limited probative value and insufficient
to meet appellant’s burden of proof to establish a claim.
The January 9, 2007 report by Dr. Verdon is irrelevant as it predates the May 14, 2007
employment incident and therefore fails to constitute probative medical evidence on the issue of
causal relationship in this case.
As appellant has not submitted any rationalized medical evidence to support his
allegation that he sustained an injury causally related to a May 14, 2007 employment incident, he
has failed to meet his burden of proof.
On appeal appellant’s attorney contends that Dr. Evers provided reports indicating that
appellant’s Asperger’s syndrome was aggravated by his work duties and, thus, established causal
relationship. For the reasons stated above, the Board finds the attorney’s argument is not
substantiated.
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.

8

See Wilbur D. Starks, 23 ECAB 85 (1971).

5

CONCLUSION
The Board finds that appellant has not met his burden of proof to establish that he
sustained an aggravation of a preexisting emotional condition causally related to a May 14, 2007
employment incident, as alleged.
ORDER
IT IS HEREBY ORDERED THAT the December 2, 2011 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 20, 2012
Washington, DC

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
A.D., Appellant
and
DEPARTMENT OF HOMELAND SECURITY,
TRANSPORTATION SECURITY
ADMINISTRATION, Hanover, MD, Employer
__________________________________________

)
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)
)
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)
)
)

Appearances:
Jeffrey P. Zeelander, Esq., for the appellant
Office of Solicitor, for the Director

Docket No. 14-477
Issued: July 10, 2014

Case Submitted on the Record

DECISION AND ORDER
Before:
PATRICIA HOWARD FITZGERALD, Acting Chief Judge
ALEC J. KOROMILAS, Alternate Judge
MICHAEL E. GROOM, Alternate Judge

JURISDICTION
On December 26, 2013 appellant, through his representative, filed a timely appeal from
the December 18, 2013 merit decision of the Office of Workers’ Compensation Programs
(OWCP), which awarded schedule compensation. Pursuant to the Federal Employees’
Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction to
review the merits of this case.
ISSUE
The issue is whether appellant has more than a two percent impairment of his left upper
extremity, for which he received a schedule award.

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On February 7, 2013 appellant, then a 50-year-old supervisory federal air marshal,
sustained a traumatic injury in the performance of duty while participating in defensive measures
training. OWCP accepted his claim for sprain of the left elbow and forearm, radial collateral
ligament.
Dr. Robert W. Macht, a general surgeon, evaluated appellant’s impairment on
August 15, 2013. He related appellant’s history and complaints. On physical examination,
appellant lacked 30 degrees of extension at the left elbow. Flexion was limited to 135 degrees.
Supination and pronation were intact. No atrophy was noted. Dr. Macht stated: “[Appellant’s]
range of motion is passive range of motion repeated at least three times for accuracy per the
Guide Lines.” There was a negative Tinel’s sign at the elbow, but there was slight pain with
motion and resistance against active motion of his elbow. Sensation was intact. There was no
atrophy. An imaging study showed evidence of mild triceps tendinitis and degenerative changes.
Dr. Macht diagnosed traumatic injury to the left elbow with triceps tendinitis. Referring
to the American Medical Association, Guides to the Evaluation of Permanent Impairment
(6th ed. 2009), he found a four percent impairment of the left upper extremity based on loss of
flexion and extension. Dr. Macht further found that no adjustment was warranted for functional
history.
On November 5, 2013 Dr. Morley Slutsky, an OWCP medical adviser, reviewed
Dr. Macht’s evaluation. Using the diagnosis-based method of evaluating impairment, he
identified appellant’s diagnosis as left elbow muscle/tendon sprain, with a default impairment
value of one percent. Given appellant’s QuickDASH score of 41 percent, which showed a
moderate functional history, Dr. Slutsky adjusted the default impairment rating to 2 percent. He
noted that valid range of motion measurements required three active range of motion
measurements rounded up or down to the nearest 10 degrees, with each measurement falling
within 10 degrees of the average. The maximum observed measurement for each joint motion
was then used to determine the final range of motion impairment. Dr. Slutsky noted that range
of motion was used primarily as a physical examination adjustment factor.
In a decision dated December 18, 2013, OWCP issued a schedule award for a two percent
impairment of appellant’s left upper extremity.
Appellant’s representative argues that OWCP improperly excluded range of motion from
the impairment evaluation.
LEGAL PRECEDENT
The schedule award provision of FECA and the implementing regulations set forth the
number of weeks of compensation payable to employees sustaining permanent impairment from
loss or loss of use, of scheduled members or functions of the body. FECA, however, does not
specify the manner in which the percentage of loss shall be determined. The method used in
making such a determination is a matter that rests within the sound discretion of OWCP.

2

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. OWCP has adopted the A.M.A., Guides as the appropriate
standard for evaluating schedule losses. As of May 1, 2009, the sixth edition of the A.M.A.,
Guides is used to calculate schedule awards.
ANALYSIS
Diagnosis-based impairment is the primary method of evaluation for the upper
extremities. The first step is to choose the diagnosis that is most applicable for the region being
assessed. Selection of the optimal diagnosis requires judgment and experience. If more than one
diagnosis can be used, the highest causally-related impairment rating should be used; this will
generally be the more specific diagnosis. Typically, one diagnosis will adequately characterize
the impairment and its impact on activities of daily living.
Specific criteria for that diagnosis determine which class is appropriate: no objective
problem, mild problem, moderate problem, severe problem, very severe problem approaching
total function loss. The A.M.A., Guides assigns a default impairment rating for each class,
which may be slightly adjusted using such grade modifiers or nonkey factors as functional
history, physical examination and clinical studies.
Dr. Macht, the general surgeon and evaluating physician, did not use the diagnosis-based
method of evaluation. He opted instead to evaluate impairment based on range of motion. Table
15-4, page 398, allows this alternative stand-alone method of evaluation for every diagnosis
listed in the grid.
Dr. Macht’s report did not provide enough information to confirm that he followed the
procedures set out in Chapter 15.7 of the A.M.A., Guides. It does not appear that he used active
range of motion, as there was slight pain with motion and resistance against active motion.
Dr. Macht advised that appellant’s range of motion was passive range of motion repeated at least
three times. He did not disclose each measurement, so it is unclear whether each fell within 10
degrees of the average or whether he used the maximum observed measurement for determining
impairment to each joint motion. It also appears that Dr. Macht did not use the opposite
extremity to define normal. For these reasons, the Board finds that his evaluation of impairment
is of diminished probative value.
Dr. Slutsky correctly noted the deficiencies in Dr. Macht’s impairment rating and
evaluated impairment using the diagnosis-based method, which is the method of choice under the
A.M.A., Guides. The diagnosis he chose, however, was left elbow muscle/tendon sprain, which
can have no more than a two percent rating under Table 15-4, page 398. OWCP accepted
appellant’s claim for sprain of the left elbow and forearm, radial collateral ligament. Collateral
ligament injuries, on page 399, can have a rating of 3 to 7 percent if recurrent instability is
occasional, and 8 to 12 percent if it is frequent, resulting in functional limitation. Dr. Slutsky did
not adequately explain the reason he selected a muscle/tendon injury instead of a collateral
ligament injury for his diagnosis-based impairment evaluation.

3

The Board finds that this case is not in posture for decision. The Board will set aside the
December 18, 2013 schedule award and remand the case for further development of the medical
evidence and a proper evaluation of impairment under the sixth edition of the A.M.A., Guides.
After such further development as may be necessary, OWCP shall issue a de novo decision on
appellant’s entitlement to a schedule award.
Appellant’s representative argues that OWCP improperly excluded range of motion from
the impairment evaluation. As noted, Dr. Macht provided insufficient information to allow an
evaluation using range of motion as a stand-alone method. Under the diagnosis-based method,
range of motion may still be used as a factor in the adjustment grid for physical examination,
which can modify the default impairment rating.
CONCLUSION
The Board finds this case is not in posture for decision. Further development of the
medical evidence is warranted.
ORDER
IT IS HEREBY ORDERED THAT the December 18, 2013 decision of the Office of
Workers’ Compensation Programs is set aside and the case remanded for further action.
Issued: July 10, 2014
Washington, DC

Patricia Howard Fitzgerald, Acting Chief Judge
Employees’ Compensation Appeals Board

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

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
D.E., Appellant
and
U.S. POSTAL SERVICE, POST OFFICE,
Minneapolis, MN, Employer
__________________________________________

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)
)
)
)
)

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

Docket No. 06-1665
Issued: March 6, 2007

Case Submitted on the Record

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

JURISDICTION
On July 17, 2006 appellant filed an appeal from a decision of the Office of Workers’
Compensation Programs dated May 11, 2006 which denied that he sustained a recurrence of
disability. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the
merits of this case.
ISSUE
The issue is whether appellant sustained a recurrence of disability on March 20, 2006
causally related to his accepted employment injury.
FACTUAL HISTORY
On June 5, 1990 appellant, then a 41-year-old laborer-custodian, filed an occupational
disease claim alleging that factors of his federal employment caused problems with his feet. By
decision dated November 15, 1990, the claim was denied. On March 1, 1991 the Office
modified the November 15, 1990 decision and accepted that he sustained bilateral aggravation of

pes planus with marked subtalar joint degenerative disease.1 He began working limited duty and
on January 3, 1991 and February 27, 1992 underwent corrective surgery on the right. Limited
duty was withdrawn in January 1992 and appellant was placed on the periodic rolls. In
February 1992 he was referred for vocational rehabilitation and returned to limited duty at a
sedentary position at the employing establishment on May 24, 1993. On May 18, 1994 appellant
was granted a schedule award for a 17 percent permanent impairment of the right lower
extremity and on July 19, 1995 was granted an additional schedule award to total 42 percent on
the right and 36 percent on the left.2
On August 9, 1999 appellant filed a Form CA-2a, recurrence of disability claim which
was denied on May 19, 2000. On August 22, 2000 he underwent an operative repair of an ankle
ligament on the left.3 By letter dated November 6, 2000, the Office authorized an internal
diagnostic arthroscopy and removal of hardware on his right ankle with reconstruction.
Appellant filed Form CA-7, claims for compensation for the period February 24 through
March 23, 2001, for which he received wage-loss compensation. He continued to work limited
duty. By decision dated August 1, 2003, the Office denied appellant’s claim for compensation
for the period July 10 to September 15, 2000.
On March 20, 2006 appellant filed a Form CA-2a, recurrence claim, stating that he had a
hard time working because his feet hurt and stopped work that day. He also alleged that he
sustained a foot injury on February 21, 2006 when he fell on ice at work.4 In support of his
recurrence claim, appellant submitted a March 8, 2006 report which Dr. J. Chris Coetzee, Boardcertified in orthopedic surgery, advised that appellant had a good result from his left ankle
surgery. Dr. Coetzee noted in appellant’s report that he found it difficult to do standing or
walking activities at work. Findings on examination of the right ankle included very little ankle
motion. X-ray confirmed advanced degenerative changes of the right ankle. Dr. Coetzee
diagnosed right ankle degenerative joint disease and recommended surgical fusion. He advised
that appellant could continue his mainly sedentary occupation with walking and standing limited
to one hour a day and a lifting restriction of 30 pounds. By letter dated May 5, 2006, the
employing establishment controverted the claim, noting that appellant’s limited-duty position
was a totally sitting, sedentary position with no standing required. In a May 11, 2006 decision,
the Office denied appellant’s recurrence claim. The Office noted that the only accepted
condition was bilateral flat feet and the medical evidence of record did not establish that
appellant’s recurrence of disability beginning March 20, 2006 was caused by this condition.
1

Pes planus is defined as flat foot. Dorland’s Illustrated Medical Dictionary (29th edition, 2000).

2

Appellant had requested a hearing from the August 12, 1994 schedule award and by decision finalized on
May 13, 1995, an Office hearing representative found that a conflict had been created regarding appellant’s degree
of impairment and remanded the case to the Office. Upon remand, appellant was referred to Dr. Robert A. Wengler,
a Board-certified orthopedic surgeon, for an impartial evaluation. By decision dated January 28, 1996, the Office
found that appellant was at fault in the creation of an overpayment in compensation in the amount of $375.50, which
was collected with a one-time deduction from his continuing compensation. An overpayment in compensation in
the amount of $3.26 was written off on August 7, 2001.
3

The record does not indicate that this procedure was authorized.

4

The record does not show that the Office adjudicated this claim, which would be a new traumatic injury.
20 C.F.R. § 10.5(ee).

2

LEGAL PRECEDENT
A recurrence of disability means an inability to work after an employee has returned to
work, caused by a spontaneous change in a medical condition which had resulted from a
previous injury or illness without an intervening injury or new exposure to the work environment
that caused the illness.5 This term also means an inability to work when a light-duty assignment
made specifically to accommodate an employee’s physical limitations due to his or her workrelated injury or illness is withdrawn (except when such withdrawal occurs for reasons of
misconduct, nonperformance of job duties or a reduction-in-force), or when the physical
requirements of such an assignment are altered so that they exceed his or her established physical
limitations.6
When an employee, who is disabled from the job he or she held when injured on account
of employment-related residuals, returns to a light-duty position or the medical evidence
establishes that light duty can be performed, the employee has the burden to establish by the
weight of reliable, probative and substantial evidence a recurrence of total disability. As part of
this burden of proof, the employee must show either a change in the nature and extent of the
injury-related condition, or a change in the nature and extent of the light-duty requirements.7
Disability under the Federal Employees’ Compensation Act8 means the incapacity,
because of an employment injury, to earn the wages that the employee was receiving at the time
of injury.9 Disability is thus not synonymous with physical impairment, which may or may not
result in an incapacity to earn wages.10 The test of disability under the Act is whether an
employment-related impairment prevents the employee from earning the wages he earned when
injured.11 An employee who has a physical impairment causally related to a federal employment
injury, but who nevertheless has the capacity to earn the wages he or she was receiving at the
time of injury, has no disability as that term is used in the Act.12 Furthermore, whether a
particular injury causes an employee to be disabled for employment and the duration of that
disability are medical issues which must be proved by a preponderance of the reliable, probative
and substantial medical evidence.13

5

20 C.F.R. § 10.5(x); see Theresa L. Andrews, 55 ECAB 719 (2004).

6

Id.

7

Shelly A. Paolinetti, 52 ECAB 391 (2001); Robert Kirby, 51 ECAB 474 (2000); Terry R. Hedman, 38 ECAB
222 (1986).
8

5 U.S.C. §§ 8101-8193.

9

John M. Richmond, 53 ECAB 702 (2002).

10

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

11

See Gewin C. Hawkins, 52 ECAB 242 (2001).

12

Cheryl L. Decavitch, 50 ECAB 397 (1999).

13

Fereidoon Kharabi, 52 ECAB 291 (2001).

3

ANALYSIS
The Board finds that appellant did not meet his burden of proof to establish that his
recurrence of disability beginning March 20, 2006 was employment related. The Board initially
notes that the accepted condition in this case is bilateral aggravation of pes planus with marked
subtalar joint degenerative disease, not merely bilateral flat feet (pes planus) as the Office stated
in its May 11, 2006 decision. There is, however, no medical evidence to support a recurrence of
disability on March 20, 2006. The only medical evidence submitted with appellant’s recurrence
claim is Dr. Coetzee’s March 8, 2006 report in which he advised that appellant could return to
his sedentary position with limited standing. The employing establishment advised that
appellant’s sedentary limited duty was an entirely sitting position. A claimant has the burden to
establish, by the weight of reliable, probative and substantial evidence a recurrence of total
disability14 and whether a particular injury causes an employee to be disabled for employment
and the duration of that disability are medical issues which must be proved by a preponderance
of the reliable, probative and substantial medical evidence.15 The Board will not require the
Office to pay compensation for disability in the absence of any medical evidence directly
addressing the particular period of disability for which compensation is claimed. To do so would
essentially allow employees to self-certify their disability and entitlement to compensation.16 In
this case, the record does not contain a medical opinion that appellant’s disability from work
beginning March 20, 2006 was due to his accepted condition.
The Board, however, notes that on November 6, 2000 the Office authorized additional
surgery on appellant’s right ankle. Thus, he would be entitled to wage-loss compensation for
this recommended and authorized surgical procedure and a recovery period authorized by his
physician.17
CONCLUSION
The Board finds that appellant failed to meet his burden of proof to establish that he
sustained a recurrence of disability on March 20, 2006 causally related to his accepted pes planus
with marked subtalar joint degenerative disease.

14

Supra note 7.

15

Fereidoon Kharabi, supra note 13.

16

Id.

17

5 U.S.C. § 8102(a). There is no evidence of record to show that this procedure has been done.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated May 11, 2006 be affirmed.
Issued: March 6, 2007
Washington, DC

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

David S. Gerson, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
V.D., Appellant
and
DEPARTMENT OF THE NAVY, MILITARY
SEALIFT COMMAND, Norfolk, VA, Employer
__________________________________________

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

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Docket No. 21-0734
Issued: January 11, 2022

Case Submitted on the Record

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

On April 19, 2021 appellant filed a timely appeal from a March 10, 2021 decision of the
Office of Workers’ Compensation Programs (OWCP). 1 The Clerk of the Appellate Boards
assigned Docket No. 21-0734.
On January 29, 2016 appellant, then a 42-year-old supply utility clerk, filed a traumatic
injury claim (Form CA-1) alleging that on January 24, 2016 he injured his back when carrying
boxes weighing 42 pounds when he lost his balance on an unstable deck while in the performance
of duty. He stopped work on January 25, 2016. OWCP accepted the claim for strain of the thorax.
On May 10, 2016 it authorized wage-loss compensation on the supplemental rolls beginning
March 21, 2016. On July 29, 2016 OWCP expanded the acceptance of appellant’s claim to include
lumbar sprain. On April 27, 2017 it again expanded the acceptance of his claim to include lumbar
intervertebral disc disorder with radiculopathy, and lumbar intervertebral disc displacement.

1

The Board notes that, following the March 10, 2021 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

By decision dated January 25, 2018, OWCP issued a formal loss of wage-earning capacity
(LWEC) determination based upon appellant’s ability to perform the selected position of
administrative clerk/office clerk effective February 4, 2018 as he was found to have the capacity
to earn wages of $352.00 per week. It found that the weight of the medical evidence rested with
Dr. Amer Ansari, a Board-certified physiatrist and appellant’s attending physician, who found that
he could perform the selected position of administrative clerk. OWCP applied the formula set
forth in Albert C. Shadrick as codified in section 10.403 of its regulations, to determine his loss of
wage-earning capacity. It paid appellant wage-loss compensation on the periodic rolls effective
August 30, 2019.
In a form report dated February 13, 2019, Dr. Fady Ashamalla, a psychiatrist, found that
appellant was totally disabled.
In a January 10, 2020 note, Dr. Margaret Dowdy-Yee, a Board-certified family
practitioner, found that appellant was disabled due to lumbar sprain, thorax sprain, lumbar
intervertebral disc disorders with radiculopathy, and lumbar intervertebral disc displacement. She
provided work restrictions of no lifting over 10 pounds, and no repetitive bending, twisting, or
stooping.
On December 10, 2020 appellant requested reconsideration of the January 26, 2016 wageearning capacity determination. He submitted a statement asserting that Dr. Ansari had given
appellant the choice to return to light-duty work or to find him totally disabled. Appellant further
asserted that he had been unable to secure work as an office clerk.
By decision dated March 10, 2021, OWCP denied appellant’s request for reconsideration
finding that it was untimely filed and failed to demonstrated clear evidence of error.
The Board, having duly considered this matter finds that this case is not in posture for
decision.2
Once the wage-earning capacity of an injured employee is determined, a modification of
an LWEC determination is unwarranted unless there is a material change in the nature and extent
of the injury-related condition, the employee has been retrained or otherwise vocationally
rehabilitated, or the original determination was erroneous. 3 The burden of proof is on the party
seeking modification of the wage-earning capacity determination. 4 Unlike reconsideration
pursuant to 5 U.S.C. § 8128(a), there is no time limitation for requesting modification of an LWEC
determination.5 Requests for “modification” should be reviewed carefully to determine whether

2

C.H., Docket No. 19-114 (issued April 30, 2020); B.H., Docket No. 18-1515 (issued June 20, 2019); N.M., Docket
No. 17-0262 (issued July 3, 2017).
3

20 C.F.R. § 10.511; see Tamra McCauley, 51 ECAB 375, 377 (2000); Federal (FECA) Procedure Manual, Part 2
-- Claims, Modification of Loss of Wage-Earning Capacity Decisions, Chapter 2.1501.3 (June 2013).
4

20 C.F.R. § 10.511.

5

W.W., Docket No. 09-1934 (issued February 24, 2010); Gary L. Moreland, 54 ECAB 638 (2003).

2

the claimant is seeking a reconsideration of a recently issued LWEC decision, as opposed to a
modification of the LWEC determination. 6
The Board finds that appellant’s December 10, 2020 request for reconsideration was, in
fact, a request for modification of the January 25, 2018 LWEC determination. Appellant
specifically alleged error in Dr. Ansari’s October 17, 2016 report, upon which the LWEC
determination was based. He further submitted additional medical evidence addressing a material
change in the nature and extent of the injury-related condition. It is well established that a claimant
may establish that a modification of an LWEC determination is warranted if there has been a
showing that the original determination was, in fact, erroneous 7 or if there is a material change in
his injury-related conditions. 8
The Board has held that when an LWEC determination has been issued and appellant
submits evidence with respect to one of the criteria for modification OWCP must evaluate the
evidence to determine if modification is warranted. 9
As OWCP improperly reviewed the case under the standard for an untimely
reconsideration request, the case must be remanded to OWCP for a proper decision which includes
findings of fact and a clear and precise statement regarding whether appellant has met his burden
of proof to establish modification of his LWEC determination. 10 The Board consequently remands
the case to OWCP for proper adjudication, to be followed by an appropriate decision.

6

Supra note 3 at Chapter 2.1501.4a (June 2013).

7

20 C.F.R. § 10.511; L.P., Docket No. 20-0154 (issued April 7, 2021); Y.R., Docket No. 18-1464 (issued
February 22, 2019).
8

See T.D., Docket No. 20-1088 (issued June 14, 2021); L.M., Docket no. 20-1028 (issued March 10, 2021); S.V.,
Docket No. 19-1521 (issued February 22, 2021).
9

L.P., supra note 7.

10

Id.; L.H., Docket No. 18-1787 (issued July 29, 2019); R.Z., Docket No. 17-1455 (issued February 15, 2019).

3

IT IS HEREBY ORDERED THAT the March 10, 2021 decision of the Office of
Workers’ Compensation Programs is set aside and the case is remanded for further proceedings
consistent with this order of the Board.
Issued: January 11, 2022
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

4


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.B., Appellant
and
DEPARTMENT OF THE ARMY, CORPS OF
ENGINEERS, Chicago, IL, Employer
__________________________________________

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

Docket No. 08-460
Issued: June 18, 2008

Case Submitted on the Record

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

JURISDICTION
On December 5, 2007 appellant timely appealed two October 26, 2007 merit decisions of
the Office of Workers’ Compensation Programs, which found that she had been overpaid
approximately $31,000.00. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has
jurisdiction over the merits of appellant’s claim.1
ISSUES
The issues are: (1) whether appellant received an overpayment of benefits in the amount
of $26,665.39 because the Office paid compensation at an incorrect pay rate; and (2) whether she
received an overpayment of $4,385.75 due to the Office’s failure to withhold medical insurance
premiums.

1

The record on appeal includes additional financial information that was received after the Office issued its
October 26, 2007 merit decisions. The Board cannot consider evidence for the first time on appeal. The review of a
case shall be limited to the evidence in the case record which was before the Office at the time of its final decision.
20 C.F.R. § 10.501.2(c) (2007).

FACTUAL HISTORY
Appellant, a 56-year-old former management analyst, has an accepted traumatic injury
claim for lumbar radiculopathy, which arose on August 12, 1999.2 She has not worked since her
injury. The Office paid appellant wage-loss compensation beginning October 29, 1999.3 At the
time of her injury, she worked full time, earning $23.87 per hour. This hourly rate corresponds
to a GS-11, Step 7, with an annual salary of $49,812.00.4 However, when the Office began
paying appellant wage-loss compensation in October 1999, the payments were computed based
on a date-of-injury weekly pay rate of $1,245.42, which represented an annual salary of
approximately $65,000.00. For almost five years thereafter, the Office continued to compensate
appellant based on an erroneous weekly pay rate of $1,245.42.
In a letter dated September 15, 2004, the Office advised appellant that her benefits had
been adjusted effective September 5, 2004 to reflect a date-of-injury pay rate of $931.33. This
new pay rate was based on 1999 earnings for a GS-11, Step 6, which was $48,429.00 annually.5
The Office relied on the GS-11, Step 6 salary because the information appeared on appellant’s
August 20, 1999 traumatic injury claim (Form CA-1) under the heading “Employee Data.”6 In a
September 7, 2004 memorandum to the file, it noted that the claim form indicated a pay rate of
GS-11, Step 6, but the employing establishment certified that appellant earned $23.87 per hour
(GS-11, Step 7). The memorandum did not explain why the Office chose to rely on the lesser
pay rate of a GS-11, Step 6. Appellant telephoned the Office on September 16, 2004 and
explained that she was a GS-11, Step 7 at the time of her employment injury. She reportedly
received a step increase just prior to her August 12, 1999 injury. From September 5, 2004
onward, the Office paid appellant wage-loss compensation based on a weekly pay rate of
$931.33 (GS-11, Step 6).
In addition to the pay rate miscalculation, the Office did not deduct health insurance
premiums from appellant’s wage-loss compensation beginning with the period February 4 to
April 20, 2002. It found the error and recovered some, if not all of the missed premiums within a
matter of weeks. The Office deducted a total of $447.75 in health insurance premiums from
2

Appellant injured herself while descending 13 flights of stairs during a power outage at her worksite.

3

Appellant retired effective September 3, 2000. She received incentive pay of $25,000.00 for agreeing to accept
an early retirement. The Office ultimately adjusted appellant’s wage-loss compensation to reflect her receipt of this
payment from the employing establishment.
4

On February 4, 2000 the employing establishment certified that appellant earned $23.87 an hour (GS-11, Step 7)
at the time of her August 12, 1999 injury. An earlier Form CA-7 dated September 26, 1999, also indicated that
appellant was paid at an hourly rate of $23.87. However, this form was not signed by the employing establishment.
When appellant retired effective September 3, 2000, her Standard Form (SF) 50B listed her as a GS-11, Step 7.
5

The Office divided the annual salary of $48,429.00 by 52 weeks to arrive at a weekly pay rate of $931.33.

6

Items 1 through 15 of the form are to be completed by the employee. Item 6 requests information regarding the
employee’s “Grade as of date of injury.” It appears that appellant reported her grade at the time of injury as
Grade 11, Step 6. This information was typewritten along with appellant’s name, address and other identifying
information. Page 2 of the claim form is to be completed by the supervisor. Item 36 on page 2 requests information
regarding the pay rate in effect at the time the employee “stopped work.” Although appellant’s supervisor signed
page 2 of the claim form on September 1, 1999, no pay rate information was provided under item 36.

2

appellant’s May 31, 2002 compensation payment. This check covered the period April 21 to
May 18, 2002. However, the health insurance premiums the Office withheld covered the
extended period February 4 to May 18, 2002.7 Despite having corrected the premium
withholding error in May 2002, the Office again failed to withhold health insurance premiums
the following month. This oversight continued for another two and a half years. The Office
neglected to withhold health insurance premiums for the period May 19, 2002 through
September 4, 2004.
On February 23, 2005 the Office issued two separate preliminary notices of
overpayment.8 One notice identified an overpayment of $26,665.39 for the periods October 29,
1999 through September 3, 2000 and October 15, 2000 through September 4, 2004. This was the
overpayment that resulted from the Office’s reliance on an incorrect weekly pay rate of
$1,245.42. The second notice pertained to a $4,385.75 overpayment for the periods February 4
to April 20, 2002 and May 19, 2002 to September 4, 2004. This latter notice addressed the
Office’s failure to withhold health insurance premiums.9 The Office did not consider appellant
at fault with respect to the failure to withhold health insurance premiums. However, appellant
was found at fault regarding the overpayment based on the erroneous pay rate.
On March 7, 2005 appellant submitted an overpayment questionnaire and asked that the
Office issue a final decision based on the documentary evidence of record. She provided copies
of bank statements from January through March 2005. Appellant also challenged the Office’s
preliminary finding of fault with respect to the overpayment of $26,665.39. She claimed that
recovering the overpayment would create a financial hardship. Appellant’s reported assets
totaled $530.00 and her monthly wage-loss compensation of $2,551.52 was her only source of
income. She listed total monthly expenses of $2,355.00. However, appellant did not submit any
documentation to support her reported monthly expenses.
More than two and a half years lapsed before the Office took any further action regarding
appellant’s two overpayments. On October 26, 2007 the Office issued two final overpayment
decisions. The February 23, 2005 preliminary notice regarding the $26,665.39 overpayment
included a finding of fault on appellant’s behalf. However, the October 26, 2007 final decision
found that appellant was not at fault in creating the overpayment. The Office also found that
appellant was not entitled to waiver of recovery of the $26,665.39 overpayment and ordered that
$200.00 be withheld every four weeks from appellant’s continuing compensation payments.
With respect to the $4,385.75 overpayment, it similarly denied waiver of recovery. The Office
advised that an additional $50.00 would be withheld from appellant’s monthly compensation.
Accordingly, appellant’s regular four-week compensation payment of $2,778.82 was reduced by
$250.00.

7

The Office’s payment records do not apportion the amount of health insurance premiums applicable to the
February 4 to April 20, 2002 period.
8

Both notices were incorrectly dated “February 23, 2004.”

9

The Office found a $328.35 overpayment for the period February 4 to April 20, 2002. The balance of the
overpayment was attributed to the May 19, 2002 to September 4, 2004 period.

3

LEGAL PRECEDENT
The amount of compensation paid is a function of the injured employee’s pay rate.10
Section 8101(4) of the Federal Employees’ Compensation Act provides that the rate of pay to be
used in calculating compensation is based on the greatest of either the monthly pay at the date of
injury, the date disability began or the date compensable disability recurred if it recurred more
than six months after the employee returned to work.11 Basic compensation for total disability is
equal to 66⅔ percent of the injured employee’s monthly pay.12 Compensation may be increased
to 75 percent of the employee’s monthly pay if he or she has an eligible dependent.13
An employee entitled to disability compensation may continue to participate in the
Federal Employee Health Benefits program. The injured employee is responsible for payment of
the employee’s share of the cost of enrollment.14 An overpayment of compensation results when
the Office fails to withhold the proper amount of health insurance premiums.15 Once the error is
discovered, the Office is obliged to forward the previously uncollected health insurance
premiums to the Office of Personnel Management.16
ANALYSIS
The record establishes that appellant was overpaid due to an incorrect pay rate and
because the Office failed to withhold health insurance premiums. While the fact of overpayment
has been established, the precise amount of the overpayment remains in question. With respect
to the uncollected health insurance premiums, the Office calculated an overpayment of $328.35
for the period February 4 to April 20, 2002. Appellant paid $447.75 in health insurance
premiums for the period February 4 to May 18, 2002, which the Office apparently overlooked.
The premiums were deducted from appellant’s May 31, 2002 compensation payment.
Accordingly, the record does not establish that appellant was overpaid $328.35 for the period
February 4 to April 20, 2002. As to the remainder of the overpayment, the Board finds that the
record establishes an overpayment of $4,057.40 due to uncollected health insurance premiums
over the period May 19, 2002 to September 4, 2004.
The record does not support the Office’s determination that appellant was overpaid
$26,665.39 because of an incorrect pay rate. The decision to compensate appellant based on a
date-of-injury weekly pay rate of $1,245.42 is unsupported by the record. The record similarly
does not support the Office’s decision to compensate appellant based on a date-of-injury weekly
10

20 C.F.R. §§ 10.401(b), 10.404(b).

11

5 U.S.C. § 8101(4)(2000); see Bette L. Kvetensky, 51 ECAB 346, 348-49 (2000).

12

5 U.S.C. § 8105(a).

13

20 C.F.R. §§ 10.401(b), 10.405.

14

5 C.F.R. § 890.502(a).

15

John Skarbek, 53 ECAB 630, 632-33 (2002).

16

5 C.F.R. § 890.502(c).

4

pay rate of $931.33 (GS-11, Step 6). Appellant appears to have been the source of the GS-11,
Step 6 pay rate information that appeared on page 1 of her August 20, 1999 Form CA-1.
However, the employing establishment certified that appellant was a GS-11, Step 7 at the time of
her August 12, 1999 injury. In September 2004, appellant clarified that she was in fact a GS-11,
Step 7 at the time of her injury. The Office paid compensation based on the lesser GS-11, Step 6
pay rate obtained from appellant’s claim form.
The record establishes that, at the time of her August 12, 1999 employment injury,
appellant was a GS-11, Step 7, earning $23.87 per hour. The $931.33 weekly pay rate the Office
relied on represents an hourly rate of $23.28. Applying the correct pay rate for a GS-11, Step 7
would necessarily reduce the previously calculated overpayment of $26,665.39. It also creates
an underpayment of compensation for the period beginning September 5, 2004. On remand, the
Office must recalculate appellant’s entitlement to wage-loss compensation based on her
August 12, 1999 earnings as a GS-11, Step 7 management analyst.
The overpayment issue is further complicated by the Office’s failure to properly account
for appellant’s September 3, 2000 severance pay of $25,000.00. This amount was offset against
appellant’s wage-loss compensation for the period February 19, 2001 to February 3, 2002.
Relying on a weekly pay rate of $1,245.42, the Office originally calculated that appellant was
entitled to $41,600.79 for the period. The Office reduced this amount by the $25,000.00 in
severance pay appellant received, and remitted the balance of $16,600.79. When the Office later
recalculated appellant’s wage-loss compensation based on the weekly pay rate of $931.33, it
found appellant entitled to $30,762.96 for the period February 19, 2001 to February 3, 2002. But
the Office neglected to reduce this amount by the $25,000.00 appellant received in severance
pay. The result was that appellant was found entitled to an additional $25,000.00 in wage-loss
compensation that she was not otherwise entitled to receive from the Office. Due to these errors
the case will be remanded for further consideration.
CONCLUSION
The Board finds that the case is not in posture for decision regarding the amount
appellant was overpaid.

5

ORDER
IT IS HEREBY ORDERED THAT the October 26, 2007 decision of the Office of
Workers’ Compensation Programs are affirmed, in part, and set aside, in part; and the case is
remanded to the Office for further action consistent with this decision.
Issued: June 18, 2008
Washington, DC

David S. Gerson, Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

6


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
P.S., Appellant
and
DEPARTMENT OF COMMERCE, CENSUS
BUREAU, Ludowici, GA, Employer
__________________________________________

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

Docket No. 11-829
Issued: November 10, 2011

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 February 15, 2011 appellant filed a timely appeal from October 15 and December 14,
2010 nonmerit decisions of the Office of Workers’ Compensation Programs (OWCP) denying
her requests for reconsideration without further merit review. Pursuant to the Federal
Employees’ Compensation Act (FECA)1 and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has
jurisdiction over these decisions. Because more than 180 days elapsed from July 28, 2010, the
date of the most recent OWCP merit decision, to the filing of this appeal, the Board lacks
jurisdiction to review the merits of the case.
ISSUE
The issue is whether OWCP properly denied appellant’s requests for reconsideration
under 5 U.S.C. § 8128(a).

1

5 U.S.C. § 8101 et seq.

FACTUAL HISTORY
On June 2, 2010 appellant, then a 58-year-old crew leader assistant and enumerator, filed
an occupational disease claim alleging that she sustained a pinched nerve and compressed spinal
cord as a result of moving, loading and unloading numerous boxes for the period April 11
to 28, 2010. She stopped work on April 28, 2010 and did not return. Appellant became aware of
her condition on April 15, 2010 and realized its relationship to her federal employment on
April 29, 2010.
In an April 30, 2010 progress note, Dr. Kevin O. Keown, a Board-certified family
practitioner, related that appellant had severe back pain since April 26, 2010 and experienced
bilateral arm numbness on April 29, 2010. On examination, he observed muscle spasms and
pain in the sciatic notch. Dr Keown diagnosed lumbago and sciatica. Hospital discharge
instructions dated April 29, 2010 identified left trapezius and parathoracic muscle spasms.
OWCP informed appellant in a June 16, 2010 letter that additional evidence was needed
to establish her claim. It gave her 30 days to submit a physician’s comprehensive medical report
explaining how her job duties contributed to her injury.
Appellant provided additional medical evidence. In an April 29, 2010 emergency
department report, Dr. Jeffrey Gunderson, an emergency physician, noted that her back and left
leg symptoms arose two to three days earlier at home. Following a physical evaluation, he
diagnosed left trapezius and parathoracic spasms. An accompanying nursing record specified
that appellant did not sustain a recent injury.
A May 5, 2010 magnetic resonance imaging (MRI) scan report from Dr. William G.
Greene, a Board-certified diagnostic radiologist, revealed multilevel degenerative disc
desiccation, varying degrees of neural foraminal narrowing, mild central L4-L5 spinal canal
stenosis and T12-L1 and L5-S1 paracentral disc protrusions.
In a May 25, 2010 report, a physician’s assistant related that appellant was lifting and
moving heavy boxes when she sustained pain in the lower back, which then radiated to her neck,
spine, hips and legs. Thereafter, she complained of bilateral arm paresthesia. The physician’s
assistant observed cervical and lumbar pain on extension, cervical facet pain and bilateral
sacroiliac joint tenderness on palpation and positive Tinel’s and Patrick’s signs. After reviewing
the findings of the prior MRI scan, he diagnosed lower back pain secondary to bilateral
sacroiliitis, lower lumbar facet joint pain syndrome, degenerative disc disease and lumbar
spondylosis without myelopathy. The physician’s assistant also assessed cervicalgia with
possible bilateral carpal tunnel syndrome.
A June 1, 2010 MRI scan report from Dr. Adriana M. Rodriguez, a Board-certified
diagnostic radiologist, exhibited diffuse degenerative disc disease and spondylitic changes,
resulting in mild effacement of the ventral thecal sac and bilateral foraminal stenosis from C3
to C7.

2

In a June 9, 2010 follow-up report, the physician’s assistant reviewed appellant’s cervical
MRI scan and diagnosed bilateral upper extremity paresthesia and cervical and thoracic
spondylosis without myelopathy.
Dr. Keown opined in a July 15, 2010 progress note that appellant’s lumbar symptoms
were due to her work activities as she was asymptomatic beforehand. He added that, while she
injured her back on the job, she was unable to obtain workers’ compensation because she had
preexisting arthritis. In progress notes dated May 18 and June 10, 2010, Dr. Keown diagnosed
lower back pain and radiculitis.2
By decision dated July 28, 2010, OWCP denied appellant’s claim, finding the medical
evidence insufficient to establish that the accepted employment factors caused or aggravated her
condition.
Appellant requested reconsideration on August 30, 2010. She submitted copies of
Dr. Keown’s April 30, May 18, June 10 and July 15, 2010 progress notes, Dr. Greene’s May 5,
2010 MRI scan report and Dr. Rodriguez’s June 1, 2010 MRI scan report.
By decision dated October 15, 2010, OWCP denied appellant’s reconsideration request
on the grounds that she did not present new evidence warranting further merit review.
Appellant requested reconsideration on December 2, 2010. She submitted copies of
Dr. Keown’s April 30 and July 15, 2010 progress reports and Dr. Green’s May 5, 2010 MRI scan
report.
By decision dated December 14, 2010, OWCP denied appellant’s reconsideration request
on the grounds that she did not present new evidence warranting further merit review.
LEGAL PRECEDENT
To require OWCP to reopen a case for merit review under section 8128(a) of FECA,3
OWCP’s regulations provide that the evidence or argument submitted by a claimant must either:
(1) show that OWCP erroneously applied or interpreted a specific point of law; (2) advance a
relevant legal argument not previously considered by OWCP; or (3) constitute relevant and
pertinent new evidence not previously considered by OWCP.4 Where the request for
reconsideration fails to meet at least one of these standards, OWCP will deny the application for
reconsideration without reopening the case for a review on the merits.5

2

Appellant also submitted a June 21, 2010 statement further detailing her work activities for the period April 11
to 28 and July 8, 2010 medical notes pertaining to hypertension and left bundle branch block. These conditions are
not presently at issue before the Board.
3

5 U.S.C. § 8128(a).

4

E.K., Docket No. 09-1827 (issued April 21, 2010). See 20 C.F.R. § 10.606(b)(2).

5

L.D., 59 ECAB 648 (2008). See 20 C.F.R. § 10.608(b).

3

ANALYSIS
By decision dated July 28, 2010, OWCP denied appellant’s occupational disease claim on
the basis that the medical evidence did not establish that her cervical, lumbar, bilateral arm and
leg condition was due to moving and lifting boxes. Appellant timely requested reconsideration
on August 30 and December 2, 2010. On both occasions, however, she submitted medical
evidence that was already of record, namely copies of Dr. Keown’s April 30, May 18, June 10
and July 15, 2010 progress notes, Dr. Greene’s May 5, 2010 MRI scan report and
Dr. Rodriguez’s June 1, 2010 MRI scan report. The Board has held that the submission of
evidence which repeats or duplicates evidence already in the case record does not constitute a
basis for reopening a case.6 Appellant did not show that OWCP erroneously applied or
interpreted a specific point of law or advance a relevant legal argument not previously
considered.7 Because she failed to meet one of the standards enumerated under section 8128(a)
of FECA, she was not entitled to further merit review of her claim.
Appellant contends on appeal that she sustained a back injury in the performance of duty
and is entitled to disability compensation. The Board only has jurisdiction to consider whether
OWCP properly denied reconsideration without further merit review based on the evidence and
argument that was before OWCP at the time it issued the October 15 and December 14, 2010
decisions. As discussed above, appellant did not offer relevant and pertinent new evidence not
previously considered by OWCP. Therefore, OWCP properly denied her application without
reopening the case for a review on the merits.
CONCLUSION
The Board finds that OWCP properly denied appellant’s requests for reconsideration
under 5 U.S.C. § 8128(a).

6

Edward W. Malaniak, 51 ECAB 279 (2000).

7

See Charles A. Jackson, 53 ECAB 671 n.14 (2002); Daniel O’Toole, 1 ECAB 107 (1948) (request for
reconsideration predicated on legal premise should contain at least an assertion of an adequate legal premise having
some reasonable color of validity).

4

ORDER
IT IS HEREBY ORDERED THAT the December 14 and October 15, 2010 decisions
of the Office of Workers’ Compensation Programs be affirmed.
Issued: November 10, 2011
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
M.G., Appellant
and
DEPARTMENT OF VETERANS AFFAIRS,
LOMA LINDA HEALTH CARE SYSTEM,
Loma Linda, CA, Employer
__________________________________________

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

Docket No. 19-1863
Issued: December 15, 2020

Case Submitted on the Record

DECISION AND ORDER
Before:
CHRISTOPHER J. GODFREY, Deputy Chief Judge
JANICE B. ASKIN, Judge
PATRICIA H. FITZGERALD, Alternate Judge

JURISDICTION
On September 11, 2019 appellant, through counsel, filed a timely appeal from a March 18,
2019 merit decision of the Office of Workers’ Compensation Programs (OWCP). Pursuant to the
Federal Employees’ Compensation Act2 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.3

1
In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal
or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e).
No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or
representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or
imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a
representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.
2

5 U.S.C. § 8101 et seq.

3
The Board notes that following the March 18, 2019 decision, OWCP received additional evidence. However, the
Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that
was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board
for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional
evidence for the first time on appeal. Id.

ISSUE
The issue is whether appellant has met her burden of proof to establish a diagnosed medical
condition causally related to the accepted September 4, 2018 employment incident.
FACTUAL HISTORY
On September 11, 2018 appellant, then a 56-year-old nurse, filed a traumatic injury claim
(Form CA-1) alleging that on September 4, 2018 she sustained injury to her right shoulder when
moving employee folders from a cabinet while in the performance of duty. She described
experiencing a burning sensation in her right shoulder. Appellant did not stop work.
In a September 5, 2018 work excuse note, E. Jean-Pierre, a physician assistant, held
appellant off work until September 8, 2018, at which time she could return to work with no
restrictions.
On September 12 and 24, 2018 the employing establishment noted that appellant was
approved for continuation of pay from September 6 through 29, 2018 due to a traumatic injury
sustained on September 4, 2018.4
In a September 19, 2018 work excuse note, Dr. Elliot Meltzer, Board-certified in family
medicine, indicated that appellant had been under his care and requested that appellant be excused
from work beginning September 19 through 28, 2019. He noted that she could return to work on
October 1, 2018.
In a December 6, 2018 work excuse note, Dr. Meltzer again requested that appellant be
excused from work until the following day.
Appellant submitted a January 3, 2019 list of physical therapy appointments for the period
January 8 through 31, 2019.
In a February 13, 2019 development letter, OWCP informed appellant of the deficiencies
in her claim. It advised her of the type of factual and medical evidence necessary to establish her
claim and afforded her 30 days to respond.
OWCP subsequently received a February 26, 2019 list of physical therapy appointments
for the period February 29 through March 26, 2019.
By decision dated March 18, 2019, OWCP denied appellant’s claim. It accepted that the
September 4, 2018 employment incident occurred as alleged, but found that appellant had not
established a diagnosed medical condition causally related to the accepted employment incident.
Thus the requirements had not been met to establish an injury as defined by FECA.

4

Appellant submitted a claim for compensation (Form CA-7) for leave buy back for the period December 6, 2018
to January 31, 2019.

2

LEGAL PRECEDENT
An employee seeking benefits under FECA5 has the burden of proof to establish the
essential elements of his or her claim, including 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 of FECA,6 that an injury was sustained in the performance of duty as alleged, and that
any disability or medical condition for which compensation is claimed is causally related to the
employment injury.7 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.8
To determine whether a federal employee has sustained a traumatic injury in the
performance of duty, it first must be determined whether fact of injury has been established. There
are two components involved in establishing fact of injury. First, the employee must submit
sufficient evidence to establish that he or she actually experienced the employment incident at the
time, place, and in the manner alleged. Second component is whether the employment incident
caused a personal injury and can be established only by medical evidence.9
The medical evidence required to establish causal relationship between a claimed specific
condition and an employment incident is rationalized medical opinion evidence.10 The opinion of
the physician must be based on a complete factual and medical background of the employee, must
be one of reasonable medical certainty, and must be supported by medical rationale explaining the
nature of the relationship between the diagnosed condition and specific employment factors
identified by the employee.11
ANALYSIS
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted September 4, 2018 employment incident.
In support of her claim, appellant submitted work excuse notes from Dr. Elliot Meltzer
dated September 19 and December 6, 2018. However, Dr. Meltzer did not identify a specific
medical diagnosis or provide a rationalized medical opinion on causal relationship. The Board has
5

Supra note 2.

6

F.H., Docket No.18-0869 (issued January 29, 2020); J.P., Docket No. 19-0129 (issued April 26, 2019); Joe D.
Cameron, 41 ECAB 153 (1989).
7

L.C., Docket No. 19-1301 (issued January 29, 2020); J.H., Docket No. 18-1637 (issued January 29, 2020);
James E. Chadden, Sr., 40 ECAB 312 (1988).
8
P.A., Docket No. 18-0559 (issued January 29, 2020); K.M., Docket No. 15-1660 (issued September 16, 2016);
Delores C. Ellyett, 41 ECAB 992 (1990).
9

T.H., Docket No. 19-0599 (issued January 28, 2020); K.L., Docket No. 18-1029 (issued January 9, 2019); John J.
Carlone, 41 ECAB 354 (1989).
10

S.S., Docket No. 19-0688 (issued January 24, 2020); A.M., Docket No. 18-1748 (issued April 24, 2019);
Robert G. Morris, 48 ECAB 238 (1996).
11

T.L., Docket No. 18-0778 (issued January 22, 2020); Y.S., Docket No. 18-0366 (issued January 22, 2020);
Victor J. Woodhams, 41 ECAB 345, 352 (1989).

3

held that medical evidence that does not offer an opinion regarding the cause of an employee’s
condition is of no probative value on the issue of causal relationship.12 As such, his notes are
insufficient to establish appellant’s claim.13
Appellant also submitted a September 5, 2018 work excuse note from E. Jean-Pierre, a
physician assistant. However, certain healthcare providers such as physician assistants are not
considered “physician[s]” as defined under FECA.14 Consequently, these notes will not suffice
for purposes of establishing appellant’s claim.
The Board finds that there is no evidence of record that establishes a valid medical
diagnosis from a qualified physician in connection with the accepted employment incident.
Consequently, appellant has not established a medical condition causally related to the accepted
September 4, 2018 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.
CONCLUSION
The Board finds that appellant has not met her burden of proof to establish a diagnosed
medical condition causally related to the accepted September 4, 2018 employment incident.

12

See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

13

R.D., Docket No. 19-1076 (issued July 2, 2020).

14

Section 8101(2) of FECA provides that medical opinions can only be given by a qualified physician. This section
defines a physician as surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and
osteopathic practitioners within the scope of their practice as defined by state law. 5 U.S.C. § 8101(2); 20 C.F.R.
§ 10.5(t). See M.M., Docket No. 20-0019 (issued May 6, 2020); K.W., 59 ECAB 271, 279 (2007); David P. Sawchuk,
57 ECAB 316, 320 n.11 (2006); C.K., Docket No. 19-1549 (issued June 30, 2020) (physician assistants are not
considered physicians under FECA).

4

ORDER
IT IS HEREBY ORDERED THAT the March 18, 2019 decision of the Office of
Workers’ Compensation Programs is affirmed.
Issued: December 15, 2020
Washington, DC

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

Janice B. Askin, Judge
Employees’ Compensation Appeals Board

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

5


United States Department of Labor
Employees’ Compensation Appeals Board
__________________________________________
J.H., Appellant
and
DEPARTMENT OF LABOR, POST OFFICE,
Trumbull, CT, Employer
__________________________________________

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

Docket No. 10-966
Issued: January 25, 2011

Case Submitted on the Record

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

JURISDICTION
On February 23, 2010 appellant, through counsel, filed a timely appeal from a
January 29, 2010 merit decision of the Office of Workers’ Compensation Programs. Pursuant to
20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.
ISSUE
The issue is whether appellant has established that she is entitled to greater than three
percent permanent impairment of the right upper extremity, for which she received a schedule
award.
FACTUAL HISTORY
This case has previously been before the Board on appeal. On June 19, 2002 appellant,
then a 43-year-old letter carrier, filed a traumatic injury claim alleging that on that date she
sustained right elbow, shoulder and wrist injuries while pulling cased mail. In an April 8, 2003
decision, the Board affirmed the August 5, 2002 Office decision denying her traumatic injury
claim. The Board found that appellant failed to meet her burden of proof to establish that she

sustained an injury in the performance of duty on June 19, 2002.1 The facts and the
circumstances of the case up to that point are set forth in the Board’s prior decision and are
incorporated herein by reference.
Subsequent to the Board’s decision, the Office accepted appellant’s claim for right lateral
epicondylitis and her claim for a recurrence of disability for the period August 8 to 12, 2002. On
September 12, 2006 appellant filed a claim for a schedule award.
In a November 7, 2006 report, Dr. David B. Brown, a treating Board-certified orthopedic
surgeon, concluded that she had 10 percent right upper extremity impairment. A physical
examination revealed good right elbow mobility in flexion and rotation and mild right forearm
lateral epicondylar discomfort.
On July 9, 2007 Dr. Barry W. Levine, a Board-certified internist and an Office medical
adviser, reviewed Dr. Brown’s report and found no ratable impairment.
By decision dated March 28, 2008, the Office denied appellant’s claim for a schedule
award.
On March 29, 2008 appellant’s counsel requested a telephonic hearing.
By decision dated October 2, 2008, an Office hearing representative vacated the
March 28, 2008 decision and remanded the case for referral to a second opinion physician.
On remand from the hearing representative’s decision, the Office referred appellant to
Dr. Balazs Somogyi, a second opinion Board-certified orthopedic surgeon, to provide an opinion
on permanent impairment. On October 30, 2008 Dr. Somogyi determined that appellant had 10
percent right upper extremity impairment based on loss of grip strength using Table 16-34, page
509 of the American Medical Association, Guides to the Evaluation of Permanent Impairment
(5th ed. 2001) (hereinafter A.M.A., Guides).
In a November 3, 2008 report, Dr. David I. Krohn, an Office medical adviser and Boardcertified internist, reviewed the medical evidence including Dr. Somogyi’s October 15, 2008
report. He concluded that Dr. Somogyi incorrectly applied the A.M.A., Guides when calculating
appellant’s impairment based on decreased grip strength. Using Table 16-10, page 482 and
Table 16-15, page 492 Dr. Krohn found a total of 3 percent right upper extremity impairment (60
percent multiplied by 5 percent).
By decision dated December 22, 2008, the Office granted appellant a schedule award for
three percent right upper extremity impairment. The award was for 9.36 weeks and ran from
June 19 to August 23, 2002.
On December 30, 2008 appellant’s counsel requested a telephonic hearing.

1

Docket No. 03-320 (issued April 8, 2003).

2

By decision dated July 21, 2009, the Office hearing representative remanded the case to
the Office medical adviser for additional review under the sixth edition of the A.M.A., Guides.
In an August 1, 2009 report, Dr. Krohn concluded that appellant had one percent right
upper extremity impairment using the sixth edition of the A.M.A, Guides. In reaching this
determination, he used Table 15-4, page 399 and assigned Class 1 for her lateral epicondylitis
with residual pain which was equal to one percent right upper extremity impairment. Using
Table 15-8, page 408, Dr. Krohn found a Grade 2 modifier for moderate tenderness over
palpation. Next, the Office medical adviser noted that a Grade 1 modifier was appropriate using
Table 15-7, page 406 for pain symptoms with vigorous/strenuous activity. Using Table 15-9,
page 410, no modifier was appropriate for any relevant findings or clinical studies. Combining
the modifiers resulted in a net adjustment of zero and a total one percent right upper extremity
permanent impairment.
By decision dated September 14, 2009, the Office denied appellant’s request for an
additional schedule award.
In a letter dated September 23, 2009, appellant’s counsel requested a telephonic hearing,
which was held on November 30, 2009.
By decision dated January 29, 2010, the Office hearing representative affirmed the
September 14, 2009 decision.
LEGAL PRECEDENT
The schedule award provision of the Federal Employees’ Compensation Act2 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. However, the Act 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 schedule losses.4 Effective
May 1, 2009, the Office adopted the sixth edition of the A.M.A., Guides as the appropriate
edition for all awards issued after that date.5
The sixth edition of the A.M.A., Guides provides a diagnosis-based method of evaluation
utilizing the World Health Organization’s International Classification of Functioning, Disability
2

5 U.S.C. § 8107.

3

20 C.F.R. § 10.404.

4

Id. See C.M., 61 ECAB ___ (Docket No. 09-1268, issued January 22, 2010); Billy B. Scoles, 57 ECAB
258 (2005).
5

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

3

and Health (ICF).6 Under the sixth edition, the evaluator identifies the impairment class for the
diagnosed condition (CDX), which is then adjusted by grade modifiers based on functional
history (GMFH), physical examination (GMPE) and clinical studies (GMCS).7 The net
adjustment formula is (GMFH-CDX) + (GMPE - CDX) + (GMCS - CDX).8
ANALYSIS
The Office accepted appellant’s claim for right lateral epicondylitis and a recurrence of
disability for the period August 8 to 12, 2002. On December 22, 2008 it granted her a schedule
award for three percent right upper extremity impairment. Appellant disagreed with the
impairment rating found by the Office. The question to be resolved is whether she is entitled to
greater than three percent impairment, for which she received a schedule award. The Board
finds that the medical evidence of record does not establish a greater impairment than the three
percent impairment appellant has already received.
The only medical report discussing the relevant tables in the sixth edition is the
August 24, 2009 report of Dr. Krohn, an Office medical adviser, who applied the most recent
edition of the A.M.A., Guides to the clinical findings of Dr. Somogyi. Dr. Krohn followed the
assessment formula of the sixth edition of the A.M.A., Guides. He first identified the
impairment class for the diagnosed condition (CDX) according to Table 15-4, one percent
impairment for lateral epicondylitis of the right arm with a history of painful injury and residual
symptoms. The medical adviser then found a Grade 1 modifier according to Table 15-7 for
functional history (GMFH) and a Grade 2 modifier according to Table 15-8 for moderate
tenderness on physical examination (GMPE). As there were no relevant clinical studies
(GMCS), the net adjustment formula for this case is (GMFH-CDX or 1-1 = 0) + (GMPE - CDX
or 2-1 = 1) + (GMCS - CDX or 0-1 = -1) which resulted in a zero percent net adjustment (0+1+ 1
= 0). The medical adviser found a one percent permanent impairment of the right arm.
The Board finds that the Office medical adviser applied the appropriate tables and
grading schemes of the sixth edition of the A.M.A., Guides to Dr. Somogyi’s clinical findings.
Neither Dr. Somoygi nor Dr. Brown provided an impairment rating based on the sixth edition of
the A.M.A., Guides. Therefore, the Office properly relied on the only medical impairment rating
based on the sixth edition of the A.M.A., Guides to find one percent permanent impairment of
the right upper extremity.
CONCLUSION
The Board finds that appellant has not established that she is entitled to greater than three
percent permanent impairment of the right upper extremity, for which she received a schedule
award.
6

A.M.A., Guides (6th ed. 2009), at 3, section 1.3, The International Classification of Functioning, Disability and
Health (ICF): A Contemporary Model of Disablement.
7

A.M.A., Guides (6th ed. 2009), pp. 383-419.

8

Id. at 411.

4

ORDER
IT IS HEREBY ORDERED THAT the decision of the Office of Workers’
Compensation Programs dated January 29, 2010 is affirmed.
Issued: January 25, 2011
Washington, DC

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

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

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

5